2014 NBCA 27, 2014 NBCA 27

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 115-13-CA TROY MORRIS ALBERT APPELLANT 120-13-CA TROY MORRIS ALBERT APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Albert v. R., 2014 NBCA 27 Albert c.

R., 2014 NBCA 27 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge en chef Drapeau l’honorable juge Quigg l’honorable juge Green Appeal (115-13-CA) from a decision of the Provincial Court: June 29, 2009 (Conviction) Appeal (120-13-CA) from a decision of the Court of Queen’s Bench: October 16, 2013 (Denial of certiorari ) Appel (115-13-CA) d’une décision de la Cour provinciale : le 29 juin 2009 (Déclaration de culpabilité) Appel d’une décision de la Cour du Banc de la Reine : le 16 octobre 2013 (Rejet de la requête en certiorari ) History of Case: Historique de la cause : Decisions under appeal: Provincial Court: unreported Court of Queen’s Bench: 2013 NBQB 340 Décisions frappées d’appel : Cour provinciale : inédite Cour du Banc de la Reine : 2013 NBBR 340 Preliminary or incidental proceedings: [2013] N.B.J.

No. 349 Procédures préliminaires ou accessoires : [2013] A.N.-B. n o 349

Appeal heard: February 17, 2014 Appel entendu : le 17 février 2014 Judgment rendered: May 1, 2014 Jugement rendu : le 1 er mai 2014 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: For the appellant: George E. Kalinowski For the respondent: David M. Schermbrucker Avocats à l’audience : Pour l’appelant : George E. Kalinowski Pour l’intimée : David M.

Schermbrucker THE COURT The appeal against the denial of certiorari in the Court of Queen’s Bench and the appeal against conviction in the Provincial Court are dismissed. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] The present proceedings result from the consolidation of two appeals with a common objective: the nullification of the appellant’s convictions in Provincial Court, nearly five years ago, for drug-related indictable offences.

Appeal 120-13-CA takes issue with the refusal of a judge of the Court of Queen’s Bench to grant an order of certiorari quashing those convictions, while appeal 115-13-CA is a direct appeal against conviction to this Court under

Part XXI of the Criminal Code , R.S.C., 1985, c. C-46. The appellant contends his convictions cannot stand because the Criminal Code ’s mandatory election-related requirements for trial in Provincial Court were not complied with, and, as a result, that Court never acquired jurisdiction to take and act

upon his guilty pleas. The respondent concedes those procedural requirements were not respected and that, but for the appellant’s“waiver”, the convictions would fall. [2] In my respectful view, the appeal from the denial of certiorari can be dealt with summarily: itcannot succeed for the reasons given in Roach v. R., 2014 NBCA 23. In that case, the Court applied Sanders v. The Queen, (SCC), [1970] S.C.R 109, [1969] S.C.J.

No. 71 (QL), and determined that s. 776 of the Criminal Code precludes the removal bycertiorari of a conviction (such as the ones at issue here), whether made with or without jurisdiction, in either of the following scenarios:(1) an appeal was taken against conviction (s. 776(a)); (2) an appeal was not taken, but might have been, and the merits were tried afterthe defendant appeared and pleaded (s. 776(b)). The case at hand falls squarely within the first scenario. [3] Accordingly, the reasons formulated hereinafter focus on the appeal against convictionpursuant to

Part XXI of the Criminal Code, specifically s. 675(1)(a). As will be seen, I conclude this appeal must also fail, the appellanthaving waived the statutory election-related conditions precedent to trial in Provincial Court on the offences charged. II. Context [4] On May 23, 2007, Information #08368205 was laid in Provincial Court. It included 20 counts,each alleging either the commission of an indictable offence under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, or aconspiracy to traffic in a controlled substance (s. 465(1) of the Criminal Code).

Only four of the counts charged the appellant with anoffence. [5] On May 24, 2007, the appellant and his counsel, Howard M. Peters, appeared in ProvincialCourt. Proceedings were adjourned to September 5, 2007, without election as to mode of trial. [6] On the return date, the 20-count Information was withdrawn and replaced by Information#08436105.

The latter differed from the previous Information in that only the four counts targeting the appellant were included(conspiracy to traffic in cocaine, possession of cocaine for the purpose of trafficking, possession of marihuana for the purpose oftrafficking and possession of cannabis resin). Mr. Peters appeared for the appellant. Proceedings were adjourned to November 6, 2007,without election as to mode of trial. [7] On November 6, 2007, Mr. Peters appeared for the appellant.

Proceedings were adjourned toJanuary 24, 2008, without election as to mode of trial. [8] On January 24, 2008, proceedings in respect of the appellant were adjourned to March 20,2008, without election as to mode of trial. [9] On February 25, 2008, a new Information (#08541105) was sworn. It differed from the thenpending four-count Information in one respect only: a previously named co-accused was moved to the un-indicted category in the countalleging conspiracy to traffic in cocaine. [10] On March 20, 2008, Mr. Peters appeared on behalf of the appellant, who was absent.

Afteradvising the presiding judge that a Designation of Counsel had been filed appointing him counsel for the appellant pursuant to s.650.01(1), Mr. Peters elected trial in the Provincial Court and entered not guilty pleas to each of the four counts. The trial was scheduledto begin on December 16, 2008. For reasons that remain unknown, the trial did not proceed at the appointed time. [11] At any rate, on June 29, 2009, the appellant appeared in person with Mr. Peters, who moved forleave to withdraw his client’s pleas of not guilty. Mr.

Peters confirmed the “Information [had] been read in its entirety” to the appellantand that he was “aware of the particulars” of each count. Mr. Peters also advised he was willing to “waive the re-reading of the variouscounts”. Upon being satisfied, following inquiry, that the conditions set out in s. 606(1) were met, the presiding judge accepted theappellant’s guilty pleas.

In the course of that inquiry, the appellant confirmed: (1) he understood the charges; (2) his pleas of guilty werevoluntary; (3) he was aware of the consequences those pleas might entail; and (4) he appreciated the court was not bound by anyagreement reached by the parties. Despite indications that a joint recommendation would be presented at the sentencing hearing, thejudge ordered a pre-sentence report. Sentencing was adjourned to October 13, 2009. On that date, the appellant was directed to attend

the probation office on October 19, 2009. Sentencing was adjourned to December 9, 2009. [ 12 ] On December 9, 2009, the appellant appeared with Mr. Peters. The presiding judge confirmed the appellant had pled guilty to the four counts in the Information – “one for conspiracy, two for possession for the purpose … dealing with cocaine and [c]annabis (marihuana), and finally simple possession, indictable, of [c]annabis resin.” The pre-sentence report was received as Exhibit #1, without objection.

It featured the assertion that the appellant was “willing and prepared to accept and comply with any disposition the court may wish to impose.” Counsel for the Crown and counsel for the appellant then made submissions as to sentence. [ 13 ] After providing an account of the background facts, Counsel for the Crown advised the parties were jointly recommending a cumulative sentence of imprisonment for 4.5 years. Counsel for the Crown also applied for a DNA order and a weapons prohibition order. For his part, Mr.

Peters described the appellant as a small player in the overall drug-distribution scheme and claimed he had “taken responsibility for his […] role in the operation”. He highlighted the appellant’s guilty pleas, his cooperation with probation services, his limited use of drugs and alcohol as well as his “positive” prospects. Mr. Peters concluded by urging the judge to give effect to the joint submission. [ 14 ] The judge agreed and sentenced the appellant to a global term of imprisonment of 4.5 years.

He added, as expected, a weapons prohibition order (s. 109) and a DNA order (s. 487.051). [ 15 ] More than three years later, more precisely on March 12, 2013, the appellant applied to the Court of Queen’s Bench for an order of certiorari quashing his convictions. On October 16, 2013, the application was dismissed: 2013 NBQB 340 , 410 N.B.R. (2d) 393. [ 16 ] On November 7, 2013, the appellant applied for an order extending the time to file a Notice of Appeal against conviction.

Based on the representations made at the hearing and the record at his disposal, a judge of this Court granted the sought-after order: [2013] N.B.J. No. 349 (C.A.) (QL) . [ 17 ] The appellant filed a Notice of Appeal on November 27, 2013. III. Analysis and Decision [ 18 ] As a general rule, the Provincial Court acquires jurisdiction to act upon a plea in relation to an indictable offence triable by judge and jury only once the accused has chosen trial in Provincial Court after being put to an election in the manner prescribed by s. 536(2) of the Criminal Code : Trites v. R., 2011 NBCA 5 , [2011] N.B.J.

No. 12 (QL). Lack of jurisdiction over the offence entails, almost invariably, reversal on appeal. One of the outcomes could be a new trial, a process that will necessarily occasion a significant expenditure of sparse public and personal resources. Moreover, a re-trial, with the potential for the emergence of a new set of circumstances (unavailability of witnesses, loss of evidence, faded memories, etc.) might jeopardize society’s interest in the determination of proceedings on the merits.

Alive to this reality, and absent exceptional circumstances, judges of the Provincial Court rarely overlook the dictates of s. 536(2) :

(2) If an accused is before a justicecharged with an indictable offence, other thanan offence listed in

section 469, and theoffence is not one over which a provincialcourt judge has absolute jurisdiction undersection 553, the justice shall, after theinformation has been read to the accused, putthe accused to an election in the followingwords: You have the option to elect to be tried by aprovincial court judge without a jury andwithout having had a preliminary inquiry; oryou may elect to be tried by a judge without ajury; or you may elect to be tried by a courtcomposed of a judge and jury. If you do notelect now, you are deemed to have elected tobe tried by a court composed of a judge andjury.

If you elect to be tried by a judge withouta jury or by a court composed of a judge andjury or if you are deemed to have elected to betried by a court composed of a judge and jury,you will have a preliminary inquiry only ifyou or the prosecutor requests one. How doyou elect to be tried? 536.

(2) Lorsqu’un prévenu est inculpé devantun juge de paix d’un acte criminel autrequ’une infraction mentionnée à l’article 469et que l’infraction n’en est pas une à l’égardde laquelle un juge de la cour provinciale acompétence absolue en vertu de l’article 553,le juge de paix, après que la dénonciation aété lue au prévenu, l’appelle à faire son choixdans les termes suivants : Vous avez le choix d’être jugé par un juge dela cour provinciale sans jury et sans enquêtepréliminaire; ou vous pouvez choisir d’êtrejugé par un juge sans jury; ou encore vouspouvez choisir d’être jugé par un tribunalcomposé d’un juge et d’un jury.

Si vous nefaites pas ce choix maintenant, vous êtesréputé avoir choisi d’être jugé par un tribunalcomposé d’un juge et d’un jury. Si vouschoisissez d’être jugé par un juge sans juryou par un tribunal composé d’un juge et d’unjury ou êtes réputé avoir choisi d’être jugé parun tribunal composé d’un juge et d’un jury,une enquête préliminaire ne sera tenue que sivous ou le poursuivant en faites la demande.Comment choisissez-vous d’être jugé? [19] As is well known, the personal appearance of the accused is usually required for s. 536(2)purposes.

However, personal appearance is unnecessary where the election is made via a “document in writing” within the meaning of s.536.2, which provides: 536.2 An election or a re-election by anaccused in respect of a mode of trial may bemade by submission of a document inwriting without the personal appearance ofthe accused. 536.2 Le choix ou le nouveau choix fait par leprévenu quant au mode de procès peut êtreeffectué par écrit sans que celui-ci ait àcomparaître. [20] Be that as it may, non-compliance with the requirements of s. 536(2) and a failure to trigger theapplication of s. 536.2 will not preclude jurisdiction where there is an effective waiver by the accused: Trites and R. v.

Vuong, 2010ONCA 798, [2010] O.J. No. 5051 (QL), Sharpe J.A. for the Court. There is such a waiver where it is “clear and unequivocal that theperson is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and ofthe effect the waiver will have on those rights”: Korponay v. Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41,[1982] S.C.J.

No. 111 (QL), at page 49 [Emphasis in the original]. [21] In the case at bar, the Notice of Appeal features one ground of appeal: the convicting ProvincialCourt judge “acted without jurisdiction in accepting the appellant’s guilty pleas and sentencing the appellant given that there was never avalid election to the jurisdiction of the Provincial Court”.

In the appellant’s submission, the requisite election to be tried in ProvincialCourt never took place on June 29, 2009 or, for that matter, on any other date, because s. 536(2) was not complied with and he did notelect to be tried in that Court by means of a “document in writing” within the meaning of s. 536.2.

The appellant submits his case doesnot differ, in any material respect, from Trites, where this Court found waiver was not in play. [22] The respondent’s counter submission rests on two closely-related propositions: Trites isdistinguishable on the facts, and the record in the present case reveals a clear, unequivocal and informed waiver by the appellant of theelection-related requirements for jurisdiction to try him in Provincial Court. It follows, so the argument goes, that the impugnedconvictions were proper and must stand.

I respectfully agree. [23] The applicability of the principle of waiver to the Criminal Code’s election-related requirementsfor trial in Provincial Court is thoroughly discussed in Trites. I can do no better than reproduce the observations on point of Richard J.A.,writing for the Court:

In light of the Supreme Court's decision in Korponay, it can now be safely asserted that an accused can waive the strict requirements of s.536(2) of the Criminal Code, provided the waiver is clear and unequivocal, and made with full knowledge of the rights that are beingwaived and the effect the waiver will have on those rights. I adopt the following statement by Doherty J.A. in R. v. Mitchell, (ON CA), [1997] O.J.

No. 5148 (C.A.) (QL) with respect to the requirements of s. 536(2), the possibility of waiving thoserequirements, and the non-applicability of s. 686(1)(b)(iv) where there has not been a valid election: If an accused has an election as to the mode of trial, that election should be put to the accused in the language of s. 536(2). Absentwaiver of the procedural requirements of that section, a failure to put the accused to his or her election, in terms which at leastsubstantially comply with the

section is a procedural error resulting in a loss of jurisdiction to conduct either a trial or a preliminaryinquiry: R. v. Wiseberg (1973), (ON CA), 15 C.C.C. (2d) 26 (Ont. C.A.); R. v. Lewis (1978), (ONCA), 43 C.C.C. (2d) 479 (Ont. C.A.); R. v. Kalkhorany (1994), (ON CA), 71 O.A.C. 39 at 41 (C.A.). The purportedelection on February 28th bore little resemblance to the procedure set out in the Criminal Code. This is a case of non-compliance withthe procedural requirements of s. 536(2). Section 686(1)(b)(iv) cannot assist the Crown. By its terms, the

section can reach only procedural errors committed by a court having"jurisdiction over the class of offence" for which the accused was convicted. A judge of the Provincial Division has no jurisdiction to tryan electable indictable offence unless an accused has made an effective election for trial in that court. As Griffiths J.A. said, in R. v.Pottinger (1990), (ON CA), 54 C.C.C. (3d) 246 at 252 (Ont. C.A.): The complete want of jurisdiction to conduct the trial is not the kind of procedural irregularity which ... should be cured by invoking s.686(1)(b)(iv). I turn next to the question of waiver.

Unless there was an effective waiver of the procedural requirements of s. 536(2), the trial was anullity and the appeal must succeed. Section 536(2) was enacted to assist an accused in making an informed decision as to the mode oftrial. An accused may personally, or through counsel, waive compliance with a procedure like s. 536(2) which has been enacted for theprotection of the accused: Korponey v. Attorney-General of Canada (1982), (SCC), 65 C.C.C. (2d) 65 at 73 (S.C.C.).

InKorponey, supra, at p. 74, a case involving waiver of procedural rights surrounding a re-election, Lamer J., for the unanimous court,described the elements of an effective waiver of a procedural right in these words: ... [T]he validity of such a waiver, and I should add that that is so of any waiver, is dependent upon it being clear and unequivocal thatthe person is waiving the procedural safeguard, and is doing so with full knowledge of the rights the procedure was enacted to protect,and of the effect the waiver will have on those rights in the process.

After indicating that the effectiveness of a waiver required a fact-specific inquiry, Lamer J. added, at p. 74: ...

However, always relevant will be the fact that the accused is or is not represented by counsel, counsel's experience, and in my view ofgreat importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events are takingplace. [paras. 28-31] It is noteworthy that in both Korponay and Mitchell, where the courts found counsel for the accused had waived the right to have theelection put in the words of s. 536(2), each accused was present in the courtroom when the right was waived on his behalf.

In bothsituations, nothing on the record suggested the accused had not been fully cognizant of the right to be given an election in the words of s.536(2) and of the effect of waiving that right. I also note that in Mitchell, the Ontario Court of Appeal considered that events subsequentto the waiver could shed light on its validity.

In that case, the Court found nothing in the subsequent events indicating there had not beena clear and unequivocal waiver. [paras. 33-34] [24] In Trites, the Court found the Attorney-General had not discharged the burden of establishingwaiver by the accused of the statutory election-related requirements for the Provincial Court’s jurisdiction to try the case.

The Courtcame to that conclusion having regard to the context and the cumulative effect of circumstances pointing to significant confusion andmisunderstanding on the part of the accused in relation to the election process, and to the very real possibility of consequential prejudice.The following circumstances weighed in the balance: (1) neither the accused nor counsel designated pursuant to s. 650.01(1) elected trialin Provincial Court; (2) it was doubtful that this election, which was put on the record by an ad hoc agent of designated counsel in theabsence of the accused, coincided with the latter’s instructions; (3) when advised his trial was set to begin in Provincial Court, theaccused immediately objected, advising the presiding judge he thought a preliminary inquiry was to take place in anticipation of aneventual trial by judge and jury; (4) at that point, defence counsel acknowledged there appeared to be a “problem”; (5) shortly thereafter,the accused sought leave to re-elect out of the Provincial Court; (6) it is only after the rejection of his re-election motion that the accused

pled guilty; and (7) he appealed at the very first opportunity against conviction, arguing in his handwritten Notice of Appeal that he had wanted all along to be tried by a judge and jury. Importantly, this Court found “there was some miscommunication somewhere that resulted in depriving Mr. Trites of his constitutional right to be tried before a court composed of a judge and jury” and that it “[could] not be said Mr. Trites suffered no prejudice” as a result of the non-compliance with the statutory requirements for a legally valid election to be tried in Provincial Court (para. 41).

The case at hand is entirely different. [ 25 ] In Korponay , the accused elected trial by judge and jury on a charge of possession of heroin for the purpose of trafficking. He was committed to stand trial following a preliminary inquiry. At the outset of the trial in the superior court, defence counsel indicated his client wished to be tried by judge alone, and Mr. Korponay pled not guilty. The trial proceeded before judge alone, and a conviction was eventually entered for the offence charged. A few years later, Mr.

Korponay sought to challenge his conviction by means of a writ of habeas corpus , arguing the convicting court did not have jurisdiction “because he had not been properly put to a re-election to the latter court under s. 492 of the Criminal Code ”: pages 42-43. The Supreme Court of Canada agreed there had been no compliance with s. 492 , “not even substantial compliance”: page 48. Nevertheless, it dismissed Mr. Korponay’s jurisdictional objection because he had waived compliance with the Criminal Code requirements for a legally valid re-election to trial by judge alone.

The Court’s observations on point bear consideration, if only for analogical purposes: […] It is clear from the exchange that ensued that the Crown, and probably the court clerk, were under the mistaken impression that the accused had already re-elected to that Court and was there to commence the trial, which is what eventually happened.

It is equally clear that appellant’s attorney and appellant himself were there to commence the trial before that Court and that the attorney for the appellant, being of the view, and rightly so, that there had not been a re-election, indicated to the judge in his client’s name that he wanted to be tried by a judge alone. The judge had before him an attorney whose knowledge of the law and of the practice of the criminal law does not appear to be in issue.

He was, in my view, amply justified in assuming, since everyone was there to proceed with the trial, that the attorney had discussed the matter with Korponay and that Korponay made an informed decision, on the advice of his attorney, to proceed to trial, not before a jury, but before that judge sitting without a jury, and that the attorney was fully authorized to do anything necessary to that end. The judge was therefore in my view amply justified in considering that the attorney’s saying “judge alone” was an informed waiver of the requirement of putting to his client the words of the section.

The accused’s attorney knew what those words were, he knew what they meant and what effect his answer “judge alone” would have on his client’ rights. […] This is a case of a clear and unequivocal waiver by the accused through his attorney of the uttering of the words set out in the section.

The attorney thought the accused had not re-elected, was right in thinking so and did re-elect for the purpose of getting on with what everyone was there to do: start the trial. […] In any event it is also evident that all there had agreed to a time, place and purpose, and that it would be extravagant to even suggest that there was not a clear and unequivocal waiver of that requirement. [pages 52-53] [ 26 ] In the case at bar, the appellant’s designated counsel, an experienced criminal lawyer, chose trial in the Provincial Court. He did not insist upon compliance with s. 536(2) .

There is every reason to believe designated counsel’s election reflected his client’s wishes and instructions. The appellant did not move for leave to re-elect. Like any other accused, he is presumed to know the law, and there is nothing in the record to rebut that presumption. More specifically, there is not a shred of evidence to suggest the appellant was not aware, at all material times, of his right to be tried by judge and jury.

There is no evidence of any client/counsel miscommunication, let alone one that culminates in a denial of the constitutional right to be tried by a court composed of a judge and jury. The appellant intended to be tried in Provincial Court and he pled guilty in that court. He did so on the understanding that a joint recommendation would be made regarding sentence, and the sentence ultimately imposed accorded with that recommendation. The appellant did not immediately appeal his convictions on jurisdictional grounds; he only did so years later, after this Court published its reasons for decision in Trites .

In my view, the respondent has made the case for the application of the principle of waiver, with room to spare. That conclusion strikes me as inescapable, particularly in light of Korponay . IV. Conclusion and Disposition [ 27 ] The appeal against the denial of certiorari in the Court of Queen’s Bench should be dismissed

for the reasons given in Roach . In that case, the Court held s. 776 of the Criminal Code precludes the removal by certiorari of a conviction, such as the ones at issue here, whether made with or without jurisdiction, in either of the following scenarios: (1) an appeal was taken against conviction ( s. 776 ( a )); (2) an appeal was not taken, but might have been, and the merits were tried after the defendant appeared and pleaded ( s. 776 (b )). As stated in my introductory remarks, the present case falls squarely within the first scenario. [ 28 ] The appeal against conviction should also fail.

The appellant waived his right to compliance with the Criminal Code election-related requirements for trial in Provincial Court. Designated counsel chose trial in that court and the appellant subsequently pled guilty in that court to each of the four counts in the underlying Information. That being so, the jurisdiction of the Provincial Court to take and act upon those guilty pleas is apodictic. [ 29 ] I would, therefore, dismiss both appeals. ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: ___________________________________ KATHLEEN A.

QUIGG, J.A. ___________________________________ BRADLEY V. GREEN, J.A.