Her Majesty the Queen - v. -, 2013 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 051 Date: April 4, 2013 Information: 24273123 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jennifer Robin Lee Appearing: Brian Hendrickson, Q.C. For the Crown Self-Represented For the Accused JUDGMENT M.

GORDON , J [ 1 ] Jennifer Robin Lee is charged that on or about the 31 st of January 2010, at Gravelbourg, Saskatchewan did being the parent of Destyn Nathaniel Lee, a person under the age of 14 years did take Destyn Nathaniel Lee with intent to deprive Daniel William Cathgart, a parent of Destyn Nathaniel Lee, of the possession of Destyn Nathaniel Lee and did thereby commit an offence contrary to s. 283(1) of the Criminal Code . The face of the Information indicates it was affirmed January 31, 2011 in Swift Current. On November 21, 2011, the Crown elected to proceed summarily. BACKGROUND

[2] The matter was set for trial on January 14, 2013. The Crown called its first witness namely Daniel William Cathgart, thefather of the child Destyn Nathaniel Lee. Examination-in-chief concluded and Ms. Lee began her cross-examination of Mr. Cathgart. Just prior to the noon break, Ms. Lee brought an application under s. 786(2) of the Criminal Code to quash the Information. She arguedthat because her consent to proceed summarily was not endorsed on the court record, the Court had no jurisdiction to continue with thetrial. Ms. Lee relied on the Supreme Court of Canada case of R. v.

Dudley (2009), 2009 SCC 58 , 249 C.C.C. (3d) 421(S.C.C.). The matter was adjourned to the next day, being January 15, 2013. I noted at that time that Mr. Parker was Crown counsel indocket on November 8, 2011 and November 21, 2011. It was at the November 8, 2011 docket court appearance that the Crown electionto proceed summarily was made. The Crown advised the Court that he and Ms. Lee had been in discussions with respect to this charge. Ms. Lee made no objection. The matter was put to the foot of the docket to allow Mr. Parker and Ms. Lee to have some furtherdiscussions.

When the matter was spoken to again on November 8, 2012, Ms. Lee indicated she understood what “summary” meant. However, there was no endorsement on the court record that Ms. Lee consented or agreed expressly to the Crown proceedingsummarily. After listening to the transcript of the docket proceedings, it is clear that the question was not put directly to Ms. Lee as towhether she consented to the Crown proceeding summarily. [3] The matter was adjourned to February 5, 2013 to determine if Mr. Parker (who was away in January) could recall the matterand whether he could testify as to any conversation with Ms.

Lee as to an agreement being reached with her regarding the Crown’selection to proceed summarily. Mr. Hendrickson on that date advised the Court that Mr. Parker recalled having several discussions ande-mail exchanges with Ms. Lee. However, Mr. Parker could not recall or testify that there had been any direct discussion with Ms. Lee toindicate that she consented or agreed unequivocally with the Crown proceeding summarily outside the six month time limitation period. [4] At that time Crown counsel Mr. Hendrickson advised that from his point of view the options were as follows:

(1) First Ms. Lee could now consent to the Crown proceeding summarily and the trial could continue.

(2) The Court could consider this a continuing offence from the date in the Information to the return date of the child in Canada. In otherwords the Crown would be making an application to amend the Information to conform to the evidence already given by DanielCathgart. The Crown also pointed out that even if Ms. Lee was successful in her application pursuant to s. 786(2) of the Code and theCourt declared a mistrial, the Crown could still proceed by indictment. [5] The matter was adjourned to March 5, 2013, to allow both sides to file written material. [6] On or about February 19, 2013, Ms.

Lee filed an application for court appointed counsel. The matter was heard on March 5and on March 6, I dismissed Ms. Lee’s application. [7] She had made a previous application on June 11, 2012, for court appointed counsel and this had been denied by my brotherJudge Kovatch. There had been no change in Ms. Lee’s financial situation. Ms. Lee had not been refused Legal Aid assistance but rathercounsel, being Catherine Maloney from Regina Legal Aid, had been given leave to withdraw as counsel. Ms. Lee was quite capable ofunderstanding the case she faced and representing herself.

As well in the civil decision filed as Exhibit P-1 in the trial proceedings Mr.Justice Sandomirsky noted at paragraph 41: The petitioner (Ms. Lee) presented her own case at trial and admirably well for a self-represented litigant. [8] On March 6, 2013, the Crown and Ms. Lee spoke to the Crown’s application with respect to amending the Information. TheCrown’s application is made pursuant to s. 601(2) or 601(3) of the Criminal Code.

The application is to amend the “end date” of thetime frame set out in the Information to be a date in August 2011 when the Court heard evidence that the child was returned to Mr.Cathgart. The Crown contends that if the amendment is allowed, the

summary trial can continue. Ms. Lee opposes the applicationclaiming the actions of the Crown constitute an abuse of process and that the Crown has completely mishandled these proceedings. Ms.Lee argues that she will suffer prejudice if the amendment is allowed as she prepared her entire case focused on the January 31, 2010date as stated in the Information. Finally, Ms. Lee submitted the Court should grant her initial application. ISSUES

(1) Application by Jennifer Lee to have the Court declare a mistrial pursuant to s. 786(2) of the Criminal Code.

(2) Application by the Crown to amend the Information pursuant to s. 601(2) or (3) of the Criminal Code. ANALYSIS [9] This decision is confined to the above two issues and does not deal with the abuse of process application referred to in Ms.Lee’s submissions. [10] On November 21, 2011, the Crown made its election to proceed summarily. It is clear there was no explicit agreement byMs. Lee to the Crown proceeding summarily. The Crown did not press the argument that the Court could find that Ms. Lee hadimplicitly agreed to the

summary procedure. The manner in which this case has proceeded and the timing of the current application byMs. Lee is troubling. Therefore, in my view I need to canvass and discuss this aspect of the case in order to fully and adequately explainmy final decision on the matter. [11] In R. v. V.J., 2013 YKPC 3, Judge Cozens discusses this very issue. However, in that case the accused was represented byvery experienced counsel throughout the proceedings. The trial had concluded and defence counsel raised the jurisdictional issue as hersecond argument after arguing the case on its merits.

Judge Cozens found that there was a reasonable inference that the defence wasaware of the lack of jurisdiction but chose to remain silent. Therefore Judge Cozens after a lengthy discussion of the issue, foundimplicitly that the accused had consented to the

summary proceedings. Judge Cozens refers to the case of R. v. Moran, (SCC), [1992] 1 S.C.R. 771, which was a delay case under the Charter. In Moran, the Court states that any waiver of rights by anaccused must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect thatwaiver will have on those rights. In R. v. V.J., Judge Cozens was clearly not impressed with the defence counsel’s strategy and atparagraph 35 he states: What is clear and unequivocal is Ms.

MacDiarmid’s submission that V.J. was not consenting at any time, and her actions in proceedingthrough trial and closing submissions that would logically seem to indicate otherwise, were simply an ill informed strategic decision withno quantifiable benefit to her client. Any potential abuse of process argument against Crown counsel being allowed to re-elect toproceed indictably would likely not be weakened by the issue of jurisdiction being raised immediately prior to the trial commencingrather than several hours later at the conclusion of the trial.

I am at a loss as to why counsel waited until the conclusion of the trial andclosing submissions to raise this issue. The end result of doing so certainly gave rise to the Crown having an arguable point as to consentto proceed summarily being implicit as inferred from the circumstances. [12] In R. v. Dudley, 2009 SCC 58 , [2009] 3 S.C.R. 570, the Court comments on this point at paragraphs 19 and 36.

Atparagraph 19: To avoid uncertainty and the misunderstanding of which unnecessary litigation is formed, I think it best for the Crown to declareexplicitly whether it is proceeding on a hybrid offence summarily or by indictment before the accused is asked to plead.

And where theCrown elects to proceed summarily beyond the six month limitation period, the prosecutor and the defendant should both be [page 580]required to declare expressly again before plea that they agree to proceed summarily. [13] At paragraph 36: The consent of the parties I repeat can be given at any time during the proceedings before the verdict. The prosecutor will always bedeemed to have consented by virtue of his or her election to try the hybrid offence summarily. The defendant must consent to theproceedings in a manner consistent with the reasons of the Court. [14] In Korponay v.

Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41, the Court stated that the consent ofthe defendant to continue with the proceedings must be “informed, clear and unequivocal”.

[ 15 ] Mistakes can and do happen especially in a busy docket court. I find the Crown who was very experienced and capable was making every effort to ensure Ms. Lee was aware and understood the Crown’s position. [ 16 ] I have some concerns with respect to Ms. Lee’s position that she did not agree to the Crown proceeding summarily outside the six month limitation period. Section 786(2) reads as follows: 786.

(2) No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree. [ 17 ] The endorsements on the court record show Ms. Lee had experienced counsel representing her at various times throughout the proceedings as follows: - October 7 to 24, 2011 - Mr. Darren Chow, Q.C. (as he then was) - November 21, 2011 - Mr. Mervin Shaw (as a friend of the Court) - December 21, 2011; January 10 and 31, 2012 and February 8, 2012 - Ms. Catherine Maloney - February 29, 2012 - Mr. Shaw, Q.C. as agent for Ms.

Maloney asked and was granted leave to withdraw. [ 18 ] Ms. Lee indicated to the Court she understood what

summary meant when asked on November 8. In addition, Ms. Lee did not make this argument with respect to jurisdiction until the trial commenced. Did Ms. Lee make a strategic decision not to raise the jurisdictional argument until the first witness had completed his examination-in-chief? I have concerns that this decision by Ms. Lee was a calculated one to derail the trial proceedings. She has voiced strong objections on many docket court appearances stating that this trial should not proceed. She accuses the main Crown witness Mr.

Cathgart of lying in his evidence in-chief to date before even completing her cross-examination. What occurred between 9:30 and noon on January 14, 2013 that would alert her to the jurisdiction issue? I would guess nothing other than she thought her argument might be stronger and more likely to shut down the proceedings if she waited until Mr. Cathgart had given some of his evidence. [ 19 ] If a mistrial is declared the Crown can recommence proceedings by indictment with the potentially harsher consequences if convicted for the accused. Ms.

Lee states she will make an abuse of process application if that occurs. [ 20 ] I now return to the essence of the decision being whether I should declare a mistrial or whether I should grant the Crown’s application for an amendment and allow the case to proceed. This application by the Crown could be characterized as a defensive response to Ms. Lee’s application pursuant to s. 786(2) . In this case proceedings were instituted more than six months after the offence alleged on the Information. The Crown elected to proceed summarily.

It is reasonable to conclude that this election made by the Crown in this case was a considered one. The election indicated that the Crown was prepared to proceed with the trial on the understanding that if the accused was convicted she would be exposed to a less severe punishment than if the charge had proceeded by indictment. The application to amend was brought solely to deal with the problem of the time limitation and to confer jurisdiction.

The present case is different from the Dudley case referred to previously in that there is evidence before the Court which indicates that arguably this offence is a continuing offence and part of this time period did occur within the six month period stipulated for

summary proceedings. As such this case is not one where the entire offence simply occurred outside the limitation period. Rather it is one which the offence was improperly charged and on the face of the Information the offence occurred outside the limitation period. However, as I have stated the evidence currently before the Court shows that this is not actually the case and a portion of the offence if it is considered a continuing offence did occur within the limitation period. [ 21 ] In this case, the Crown’s application to amend the Information assumes this Court has jurisdiction to do so.

The Crown argues it is a continuation of the trial of the matter especially when it was made after hearing some evidence. However, I interpret the Dudley case precluding the amending application as the Court does not have any jurisdiction to hear anything further on the matter unless consent is given by the accused. [ 22 ] In R. v. Roulette , 2009 Man. R. 3, the Provincial Court Judge relied on the Alberta Court of Appeal decision of Dudley which was later appealed and upheld by the Supreme Court of Canada. In that case the charge was laid seven months after the offence and the

Crown elected to proceed summarily. The Court summed up the Crown’s options as follows: I am in agreement with her findings that the Crown has the following options: (

a) to withdraw the original Information, lay a new Information and elect to proceed by indictment; (

b) to re-elect to proceed by indictment on the original charge; or (

c) to seek the consent of the accused to continue with the

summary procedure. [ 23 ] Amidst all of this case law I must come full circle back to the basics to the Criminal Code itself in

summary conviction matters: No proceedings shall be instituted more than six months after the time when the subject matter of the proceeding arose ... unless there is consent. [ 24 ] As there is no consent, the election for

summary conviction could not have been made and in my view the authorities that find there is no jurisdiction to accept that election or the plea that followed are correct in law. Those steps in these proceedings are of no effect. That leaves the Crown with a valid Information charging an indictable offence. The Crown has leave to request an election to proceed by way of indictment or to proceed in the other listed manners I have just reviewed earlier.

This decision is without prejudice to the accused’s right to argue delay and/or abuse of process at a later time. [ 25 ] Justice Fish in Dudley canvassed the validity of proceedings which occurred before the limitation problem was discovered. He concurs with the view of the Alberta Court of Appeal. He emphasizes this throughout his decision at paragraph 2: Where the Crown elects to proceed by way of

summary conviction or “summarily” the hybrid (or “dual procedure”) offence is treated in all respects as a

summary conviction offence. Of particular importance here, the proceedings must be instituted within six months unless the parties otherwise agree. [ 26 ] In paragraph 3: Where the trial has proceeded before a

summary conviction court without an express election by the Crown it will be presumed that the Crown has elected to proceed summarily. Where it is discovered before adjudication on the merits that the proceedings were instituted more than six months after the offence was alleged to have been committed a mistrial should be declared unless the parties agree to waive the limitation period. [ 27 ] Based on the authorities I find that there was no consent or agreement by the accused in these proceedings to proceed summarily. Therefore there was no jurisdiction to accept that election or the plea that followed.

The steps in the proceedings are of no effect. Therefore echoing the words of Judge Cozens in R. v. V.J. in these circumstances I have no choice but to declare a mistrial. [ 28 ] As a result of my decision to declare a mistrial, I do not need to deal with the Crown’s application for an amendment other than to make the following observations: In another set of circumstances where the application to amend did not go to the jurisdiction of the Court an amendment may well have been granted.

The Crown’s very thorough brief and able submission on the amendment application was convincing and appropriate as I say in circumstances where it did not go to the very core of the jurisdiction of the Court. I adopt the words of Judge Kovatch in R. v. Derek Betker (July 9, 2007) at paragraph 13: Firstly if I were the trial judge I would not allow an amendment to the Information to allege an offence on August 3 or earlier. Allowing such an amendment would be allowing the Crown to do indirectly what it could not do directly, ie. laying a

summary Information with respect to a matter that occurred more than six months previously. Such an amendment would also be contrary to the case of R. v.

Parkin . M. Gordon, J