HER MAJESTY THE QUEEN - v. -, 2019 NBPC 11

PROVINCIAL COURT TRIAL DIVISION JUDICIAL DISTRICT OF MIRAMICHI Citation: 2019 NBPC 11 Date: August 14th, 2019 Docket: 15451213 Between: HER MAJESTY THE QUEEN - and - Hugh Ryan, Foster Arsenault, Michael Clarke, James Burnside, Daniel Dion Before: His Honour Cameron Gunn Date of Decision: August 14th, 2019 Decision on the application of

Section 567 and section 536(4.2) of the Criminal Code Appearances: Melanie McAulay, counsel for - Her Majesty the Queen Maude Woods as agent for Simon Wood, counsel for - Michael Clarke Douglas L. Smith, counsel for - Foster Arsenault Abel LeBouthillier, counsel for - Hugh John Ryan Martin J. Siscoe, counsel for - Daniel Dion Luc Roy (absent) counsel for - James Burnside Introduction 1 . The case before the court raises the unusual, though not unique, circumstance of multiple accused charged with the same offence who seek different modes of trial. 2 .

To determine the impact of dissimilar elections, the court must interpret the meaning of several sections of the Criminal Code and the interplay between those sections. At first reading there appears to be a conflict between sections dealing with jointly charged accused which has led to a judicial disagreement. I believe, however, that the relevant sections can be read harmoniously and that they are in concert and not in conflict. 3 . Ultimately, I find that I retain a discretion to refuse to record the election of the one accused who expressed his desired mode of trial before me.

If I exercised the discretion it would compel a judge and jury trial for all accused and, in the circumstances before me, require a preliminary inquiry. I decline, however, to exercise my discretion to refuse to record the election and thus all of the accused will have the mode of trial they elected. 4 . To explain the reasons for my findings I will discuss the circumstances of the case, the law dealing with inconsistent elections and my analysis of both why I interpret the sections in the manner I do and why I choose not to compel a common mode of trial.

Circumstances 5 . The accused in this case are charged as follows: a. Rafeal AVILA, Hugh RYAN, Foster ARSENAULT, Micheal CLARKE, James BURNSIDE, Marc LEBLANC, and Daniel DION, on or about the 5th day of January, A. D. 2018, at or near Renous, in the County of Northumberland and Province of New Brunswick, did assault Ryan GILLESPIE, Lance WOODMAN and Blake PATTISON, to wit: members of the Correctional Service of Canada, engaged in the execution of their duty, thereby committing an indictable offence contrary to and in violation of section 270(1) (

a) of the Criminal Code of Canada and amendments thereto; b. Rafeal AVILA, Hugh RYAN, Foster ARSENAULT, Micheal CLARKE, James BURNSIDE, Marc LEBLANC, and Daniel DION, on or about the 5th day of January, A. D. 2018, at or near Renous, in the County of Northumberland and Province of New Brunswick, did intentionally or recklessly cause damage by fire to Unit 2–B Range at Atlantic Institution, the property of the Correctional Service of Canada, situate at 13175 Highway 8, Renous, New Brunswick, contrary to and in violation of

section 434 of the Criminal Code of Canada and amendments thereto c. Rafeal AVILA, Hugh RYAN, Foster ARSENAULT, Micheal CLARKE, James BURNSIDE, Marc LEBLANC, and Daniel DION, on or about the 5th day of January, A. D. 2018, at or near Renous, in the County of Northumberland and Province of New Brunswick did Commit mischief by wilfully damaging, without legal justification or excuse and without colour of right, property, to wit: Unit 2–B Range at Atlantic Institution, the property of the Correctional Service of Canada, the value of which exceeds $5000, thereby committing an indictable offence, contrary to and in violation of section 430(3) (

a) of the Criminal Code of Canada and amendments thereto 6 . Each of these offences is indictable and, not being offences listed in

section 469 nor offences over which a provincial Court judge has absolute jurisdiction under

section 553, are offences for which the accused may elect their mode of trial pursuant to

section 536 of the Criminal Code of Canada . 7 . Rafeal Avila and Marc LeBlanc have already elected the jurisdiction of the Provincial Court, entered guilty pleas (on at least one charge) and have been sentenced. This decision has no impact on them. 8 . There have been various appearances for the other accused for various purposes but ultimately all the remaining five accused have either elected a mode of trial or, upon being put to their election, indicated their desired election. [1] The table below indicates the election or desired election of each accused and the date upon which it was made.

Apart from James Burnside, the elections were taken before a judge other than me.

Accused Election and Date Status Daniel DION Provincial Court Judge Pleads Not Guilty February 14, 2019 Trial set for November 27 to 29, 2019 Micheal CLARKE Provincial Court Judge Pleads Not Guilty February 14, 2019 Trial set for November 27 to 29, 2019 Foster ARSENAULT Provincial Court Judge Pleads Not Guilty April 11, 2019 Trial set for November 27 to 29, 2019 Hugh RYAN Judge Alone with a preliminary Inquiry May 6, 2019 Expresses desire to re- elect to Provincial Court Judge on June 27 th , 2019 No preliminary inquiry date set James BURNSIDE Judge Alone with a preliminary Inquiry June 27, 2019 No preliminary inquiry date set

9 . On May 24, 2019 I raised the issue of inconsistent elections with counsel for Mr. Burnside prior to his proposed election. The question of his election was adjourned until June 27, 2019. On that date, he asked that the election be put to him, which I did. He expressed the desire to have his trial conducted before a judge alone with a preliminary inquiry. I indicated at that point that I would note his desired election but would not, at that time, record it until questions of the impact of inconsistent elections could be resolved. 10 .

It does not appear that that the issue of inconsistency and the consequences were raised until I did so with Mr. Burnside. Further all the elections of the other accused were recorded. Legislative Framework 11 . Jurisdiction with respect to the manner or mode of trial where the accused is charged with an indictable offence is presumptively trial by a court composed of a judge and jury [2] and, with respect to offences for which the maximum punishment is five years or more, constitutionally guaranteed. [3] The right to elect a mode of trial with respect to certain offences is statutorily codified.

All the offences with which the accused are charged fall into this latter category. 12 . The election procedure is mandated by s. 536 of the Criminal Code of Canada . The provisions of s. 536 relevant to this decision can be synthesized as follows: a.

With respect to the types of offences for which the accused are charged in this case the justice [4] shall, after the information has been read to the accused, put the accused to an election that provides the following options as to how to be tried: [5] i. a provincial Court judge without a jury and without having had a preliminary inquiry; ii. a judge without a jury and without a preliminary inquiry; iii. a judge without a jury with a preliminary inquiry; [6] iv. a court composed of a judge and jury and without a preliminary inquiry; or v. a court composed of a judge and jury with a preliminary inquiry. [7] b.

If the accused elects to be tried by provincial court judge the justice shall endorse on the information record of the election, call on the accused to plead to the charge and if the plea is not guilty proceed with a trial or fix a time for trial; [8] c.

If the accused elects to be tried other than by provincial court judge the justice shall endorse on the information the nature of election or deemed election [9] and, where the accused or prosecutor request a preliminary inquiry, hold a preliminary inquiry into the charge. [10] If no request is made for a preliminary inquiry the justice shall fix a date for trial or a date on which the accused must appear in trial court to have the date fixed; [11] d.

If two or more persons are jointly charged and one or more of the make a request for a preliminary inquiry a preliminary inquiry must be held with respect to all of them. [12] 13 . The other

section relevant to the consideration of the respective elections of the accused in this case is

section 567. That

section reads: 567 Despite any other provision of this Part, if two or more persons are jointly charged in an information, unless all of them elect or re- elect or are deemed to have elected the same mode of trial, the justice, provincial court judge or judge may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury. (emphasis added) 14 . If a judge exercises his or her discretion pursuant to

section 567 and declines to record the election or re-election of the accused, then, pursuant to section 565(1)(b), the accused shall be deemed to have elected to be tried by a court composed of a judge and jury (if eventually ordered to stand trial).

15 . Several other sections of the Criminal Code may be relevant to the circumstances of this case depending upon the decision of the court. a.

Section 554 allows an accused charged with an indictable offence other than one under ss. 469 or 553 to be tried by a provincial court judge f the accused elects to be tried by a provincial court judge; b.

Section 561allows a re-election and sets the time frame and pre-conditions of such re-election; c.

Section 568 indicates that even if an accused elects or re-elects to be tried by a judge or provincial court judge, the Attorney General may require the accused to be tried by a court composed of a judge and jury (so long as the offence is punishable by more than five years); and d.

Section 650.01 allows an accused to appoint counsel to represent him or her for any proceedings by filing a designation with the court. Such a designation has limited application The Law 16 . As noted by Marion J. in R. v. Burleigh , the election of mode of trial is significant and may be “an important tactical strategy in the defence of an accused person”. [13] That is not to say, however, that the right to elect a mode of trial is unlimited. The Criminal Code , as noted above, prescribes the mode of trial in certain cases and proscribes it in others. 17 .

The powers and procedures with respect to the choice of mode of trial, where the choice exists, are entirely statutory. There is no inherent power in a justice or judge to modify or disregard elections. While courts, both superior and statutory, enjoy a robust common law and statutory trial management power, this does not include disregarding elections. 18 . The Criminal Code does, however, promote the fair and efficient management of proceedings. Inconsistent or dissimilar elections are a challenge to these presumptive procedures.

Allowing multiple accused charged with the same offence to elect different modes of trials can lead to severance and thus, a multiplicity of proceedings. 19 . In the case of multiple accused, the Criminal Code provides a method to balance the competing interests of the accused with the efficient administration of justice. As noted above, s. 567 gives a justice who takes the accused’s election the discretion to refuse to record it unless all accused elect the same mode of trial. 20 . Marion, J. in R. v. Burleigh [14] interpreted the

section to have the following impact: a. A justice taking an election or at a preliminary inquiry does not have an inherent power to strike down or disregard an election; [15] b. The only way to prevent severance by dissimilar elections is to exercise the power in s. 567 to decline to record different elections; [16] c. The exercise of the discretion will result in a deemed election for all accused of a trial by judge and jury; [17] d.

The appropriate method of dealing with elections of multiple accused is to hear all of the accused as to their preferred mode of trial, and once all have been heard, if there have been dissimilar elections, either record the elections (thus severing the accused) or decline to record the elections and deem all to have elected trial by judge and jury; [18] e. A decision to decline to record the elections is discretionary and is owed deference; [19] and f. Section 536(4.2) does not impact or override s. 567.

It simply compels a preliminary inquiry for anyone whose election would have allowed a preliminary inquiry. 21 . Other courts have interpreted s. 567 , and its interplay with other sections, differently. In HMQ. v. Foster [20] Thomas, J., considered the

section in the context of an attempt by the Crown to circumvent inconsistent elections by re-laying the information.

22 . Justice Thomas found that the actions of the Crown amounted to an abuse of process, in violation of s. 7 of the Charter. [21] He also found, however, that a severance by inconsistent elections (the situation the Crown was seeking to avoid) could be overcome by a proper

interpretation of s. 536(4.2). He held that the application of s. 536(4.2) means that if a justice faced with multiple accused has one accused that elects trial by judge without a jury but with a preliminary inquiry then all accused will have a preliminary inquiry and, if committed, to a trial before a superior court judge. [22] 23 . In reaching the above conclusion, Thomas, J. specifically declined to follow Burleigh.

He found s. 536(4.2) to be a mandatory provision which required, where one of multiple accused elected to have a preliminary inquiry, all accused to have a preliminary inquiry regardless of their preferred election. 24 . Justice Thomas found support for his position in R. v. Ravandi [23] where Myers, J. held that an election by one of multiple accused to a superior court judge with or without a jury compelled a trial for all accused in that court. [24] 25 . The reasoning in Burliegh and Foster (and by extension Ravandi ) are irreconcilable.

I can find no other cases directly on point and none have been provided to me by counsel. 26 . If I were to apply the reasoning in Burliegh, I would retain the discretion to refuse to record the election of Mr. Burnside and thus trigger an automatic trial by judge and jury pursuant to s. 565(1)(

b) if the accused were ultimately committed to trial. A preliminary inquiry would be held only if one of the accused requested it. Mr. Ryan had requested a preliminary inquiry thus all accused would have a preliminary inquiry pursuant to s. 536(4.2) . If none had a requested a preliminary inquiry then I would fix a date for the accused to appear to have a trial date fixed by a Court of Queen’s Bench Judge . 27 . I could also decline to exercise my discretion under s. 567 and allow the accused to proceed to trial by their desired method.

Those that had elected trial by provincial court judge would all have a trial date fixed (one has already been set) and those that chose trial by judge alone with a preliminary inquiry would have a preliminary inquiry date set and if committed to stand trial would be ordered to appear to have a trial date fixed by a Court of Queen’s Bench Judge. 28 . If I were to adopt the reasoning in Foster the election by Mr. Ryan and the yet unrecorded election by Mr.

Burnside would compel me to strike the elections of those accused who had chosen trial by provincial court, set a preliminary inquiry date for all accused and, if one or more were committed to stand trial, order the accused to appear to have a trial date fixed by a Court of Queen’s Bench Judge. The mode of trial would be before a Court of Queen’s Bench Judge but the reasoning in Foster appears to contemplate that the nature of the trial (with or without a jury) is dictated by the choice of the first person to elect. Positions of the Parties 29 .

On July 25 th , 2019 I advised the accused of the issues that had arisen, set the matter over to August 14 th , 2019 and invited written submissions. Only Mr. Siscoe, counsel for Mr. Dion, has taken up the invitation to provide written submission. His position is that those accused who have made elections must have those elections respected and that the recording of the elections (other than Mr. Burnside’

s) had extinguished the discretion described in s. 567 . Counsel for the other accused have orally indicated that they wish to maintain their elections, or in the case of Mr. Ryan, re-elect to provincial court. The Crown takes the position that the court maintains the discretion to decline to record the election of Mr. Burnside and that this would trigger the provisions of s.567 . Analysis 30 . I must interpret the meaning of ss. 536(4.2) and 567, and the interplay between those two sections, to determine the appropriate procedure in the circumstances before the court.

At first reading there appears to be an inconsistency that has led to a disagreement with respect to the meaning of the respective sections. I believe that the proper

interpretation of those sections allows them to be read harmoniously. 31 . In interpreting the sections, I adopt the modern approach to statutory

interpretation, most recently described in R. v. Myers [25] , which says that the words of the statute must be read “'in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” [26] The analytical process used by the majority in R.

v. Summers [27] requires a consideration of: a. the text of the provision; b. the structure of the section; c. the intention of Parliament, and d. the scheme of the Criminal Code . [28] The Text 32 .

The two sections read as follows: 536(4.2) If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (4), a preliminary inquiry must be held with respect to all of them. 567 Despite any other provision of this Part, if two or more persons are jointly charged in an information, unless all of them elect or re- elect or are deemed to have elected the same mode of trial, the justice, provincial court judge or judge may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury. 33 .

The sections are not ambiguous in isolation, but, as noted above, appear initially to be potentially incongruous. 34 . I note that there is no language in either

section that limits or excludes the application of the other.

Section 567 does begin with the words “Despite any other provision of this Part”.

Section 567 is in

Part XIX/Indictable Offences – Trial without Jury. Section 536(4.2) appears in

Part XVIII/Procedure on Preliminary Inquiry. As such, the limiting words have no application to s. 536(4.2) . 35 . There is nothing else in the text of the two sections that speaks to the interplay between the sections. Structure of the Sections 36 . Section 536(4.2) reads as an extension of the general election

section in s. 536(2). Section 536(2), in those cases to which it applies, provides the election as to method of trial and advises the accused of when a preliminary inquiry may be held. Section 536(4.2) simply describes the process when, having been advised of their right, one or more jointly charged accused chooses to have a preliminary inquiry. 37 .

Section 567 is a standalone

section that exists in the Part of the Criminal Code that deals with a trial without a jury for an indictable offence. It acts as a discretionary exception to the jurisdiction of a Superior Court Judge to try certain offences by deeming, through the triggered operation of s. 565(1)(b), an election to trial by judge and jury in the case of dissimilar elections. 38 . Section 565(1)(

b) only becomes operable when two three things occur: a. One or more jointly charged accused elect a different mode of trial; b. The provincial court judge taking the election exercises their discretion to decline to record the election; and

c. One or more of the accused is ordered to stand trial. The Intention of Parliament 39 . Section 536(4.2) was introduced into the Criminal Code in 2002 through Bill C-15A, The Criminal Law Amendment Act, 2001. The intent of that Bill, with respect to the provisions relating to preliminary inquiries, was to, “ bring criminal procedure into the 21st century” by giving those responsible for the administration of justice “the tools they need to ensure the efficient and effective operation of the criminal justice system.” [29] 40 .

In short, the provisions contained in the Bill were meant to narrow the scope of preliminary inquiries, reduce their number and increase the efficiency of the process. 41 .

Section 567 was also amended by Bill C-15A (contrary to what is said in Foster [30] ). The

section read, before the amendment to its current version: 567 Notwithstanding any other provision of this Part, where two or more persons are charged with the same offence, unless all of them elect or re-elect or are deemed to have elected, as the case may be, the same mode of trial, the justice, provincial court judge or judge (

a) may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury; and (

b) if he declines to do so, shall hold a preliminary inquiry unless a preliminary inquiry has been held prior to the election, re-election or deemed election. 42 . The amendments in Bill C-15 simply removed the mandatory holding of a preliminary inquiry if the judge exercised his discretion under s. 567. This was consistent with the legislative intent of the Bill. Beyond this change, s. 567 remained the same. 43 . The original intent of s. 567 remained untouched after the amendments. The

section was directed at, and remains directed at, preventing severance by election. That is to say that it provides a measure to prevent unnecessary duplicity in proceedings. The Scheme of the Criminal Code 44 . The Scheme of the Criminal Code relevant to the matter at hand was recently and effectively summarized by Justice Henderson in R. v. Conway-McDowall . [31] I reproduce and adopt his

summary: 31 A general framework for the determining the mode of trial for indictable offences, which is subject to numerous exceptions, is set out in the Criminal Code and can be summarized as follows: i. Most Serious Indictable Offences (s. 469 - Exclusive Jurisdiction of Superior Court) • Election - the accused person has no election in relation to these offences. The election is deemed to be trial by Judge and jury: s. 471, s. 473. • Re-election - the accused person has no right of re-election, but if the accused person and the Attorney General both consent, the trial may proceed by Judge alone: s. 473(1) ii.

Least Serious Indictable Offences (s. 553 - Absolute jurisdiction of Provincial Court) • The accused person has no election as to mode of trial and no right to re-elect. The trial proceeds before a Provincial Court Judge. iii. Indictable Offences - Other Than s. 469 and s. 553 offences • Election - the accused person has an election pursuant to s. 536(2) to be tried by a Provincial Court Judge or by a Judge without a Jury, or by Judge and Jury. • Re-election - the accused generally has right to re-elect. The right is in some cases limited by time and in some cases the consent of the Crown is required. Generally:

• If a preliminary hearing is requested, the accused may re-elect, at any time, to trial in Provincial Court, but only with the consent of theCrown - s. 561(1)(a); • If a preliminary hearing is requested, the accused may re-elect to trial by either Judge alone or Judge and Jury provided the election ismade within 15 days of completion of the preliminary hearing.

The consent of the Crown is not required - s. 561(1)(b) • The accused, with the consent of the Crown, may re-elect to any mode of trial on or after 15 days following the completion of thepreliminary hearing - s. 561(1)(b). • If a preliminary hearing is not requested, or is deemed not to have been requested, then the accused may re-elect to any other mode oftrial. If the re-election is made more than 14 days before the "day first appointed for the trial" then the re-election may be made withoutthe consent of the Crown.

If the re-election is made less than 14 days before trial the consent of the Crown is required - s. 565(2). 32 There are however a number of exceptions to the general framework, some of which are as follows: • Where multiple accused persons are jointly charged on a single indictment, unless all of them elect or re-elect the same mode of trial,the Court may decline to record the elections: s. 567.

The deemed election at that point for all accused persons is Judge and jury: s.565(1)(b). • Where an accused person fails, without reasonable excuse, to attend at trial, he or she is deemed to have waived the right to trial byJudge and jury, even in relation to s. 469 offences: s. 598. • Notwithstanding that an accused person has elected to be tried by a Provincial Court Judge, the trial judge may, in some circumstances,decline to adjudicate and instead convert the proceedings to a preliminary inquiry: s. 555(1).

The deemed election at that point is judgeand jury: s. 565(1)(a). • In very limited situations a Provincial Court Judge may, after the commencement of trial on s. 553 offences (Absolute Jurisdiction ofthe Provincial Court), be required to put the accused to an election as to mode of trial - see for example s. 555(2). • An accused person has only a limited right of re-election in relation to new trials which are ordered by a Court of Appeal: s. 686(5).However, if the Court of Appeal orders that a new trial be held before a Judge and jury, the accused person may re-elect with the consentof the Crown: 686(1.1). • The Attorney General may override an accused person's election or re-election and insist on a jury trial: s. 568.

This is a rarely usedprovision which requires the direct involvement of the Attorney General. The use of this

section of the Criminal Code is reviewable bythe Court on a less deferential standard: R. v. R. (J.S.), 2012 ONCA 568 (Ont. C.A.), leave to appeal refused, (2013), 447 N.R. 389(note) (S.C.C.). 33 The scheme of the election and re-election provisions of the Criminal Code suggest that Parliament intended to attempt to balancethe rights of the accused person and the rights of the Crown in relation to mode of trial. The scheme protects the accused person'sconstitutional right to a jury trial for the most serious offences: s. 11(

f) of the Charter. This constitutional right can be waived by theaccused person in some, but not all, situations. Thus, an accused person does not have a constitutional right to trial by Judge alone: R. v.Turpin, (SCC), [1989] 1 S.C.R. 1296, 48 C.C.C. (3d) 8 (S.C.C.) at 28. Conclusion on the

Interpretation of the Sections 45. When read together ss. 536(4.2) and 567 establish a process to determine the consequences of dissimilar elections in a manner that isstatutorily compliant, balances the interests of the parties and is respectful of the rights of the accused. 46. My

interpretation of the joint operation of the sections leads to the following conclusions: a. The power in s. 567 is triggered when one accused expresses a desire to elect a mode of trial that is inconsistent with the desiredelection of another accused; b. The power is discretionary. The

section says the justice “may decline to record the election”; c. If the justice refuses to record an election this triggers s. 565(1)(b), which deems the accused to have elected trial by Judge and Juryif the accused is ordered to stand trial; d. The discretion is not extinguished until all of the jointly charged accused have indicated their desired election; e. If one of the accused requests a preliminary inquiry or the Crown requests a preliminary inquiry then, by virtue of s. 536(4.2), allthe accused will have one; and f. If a judicial official imbued with power of s. 567 refuses to exercise his or her discretion, then s. 536(4.2) operates only with respect

to the accused who have elected a mode of trial that allows for a preliminary inquiry. 47 . Before proceeding further, I note that I am aware of the provisions of Bill C-75 that will come into force on September 19, 2019 that will further restrict the use of preliminary inquiries. There is an outstanding question of whether those amendments to the Criminal Code will impact cases where a preliminary inquiry has been requested prior to September 19 th . I need not consider that question (at least for the time being) as at least one of the offences here will be unaffected by the amendments.

The impact of Bill C-75 on the other sections with which the accused are charged can be dealt with at the time the preliminary inquiry, if any is held, takes place. Application of the

Interpretation to this Case 48 . In this case I hold that I retain the discretion in s. 567 to refuse to record the election of James Burnside which would then trigger a joint trial by judge and jury for all accused. Counsel for Mr. Dion has indicated that this discretion was extinguished when the other provincial court judge who took the previous elections recorded those elections. I disagree. 49 .

Section 567 reads, in respect of the jointly charged accused, that “unless all of them elect or re-elect or are deemed to have elected the same mode of trial” the judge may refuse to record the election. Thus, by refusing to record (at least temporarily) the election of James Burnside I retained the discretion in s. 567 . 50 . It is worth noting that the preferred practice with jointly charged accused would be to note but not record the elections until all accused have had a chance to indicate their desired elections. 51 .

As indicated above, despite retaining the discretion to refuse to record the election of James Burnside, in the unique circumstances of this case I decline to exercise that discretion for the following reasons: a. The parties initially did not raise the issue of the dissimilar elections with the judge who took the elections other than Mr. Burnside, nor did the Court raise it with the parties. As such, the elections were recorded; b.

As the previous elections were recorded, and if I am wrong that I have a continued discretion to refuse to record the elections, then allowing the accused their preferred mode of trial maintains the jurisdiction of the eventual trial judges. 52 . Given the above I have recorded the election of James Burnside as a Judge sitting without a jury. I have also noted that he has requested a preliminary inquiry which is inconsequential as Mr. Ryan had previously made the same election and asked for a preliminary inquiry. Section 536(4.2) dictates that both Mr. Ryan and Mr. Burnside will have a preliminary inquiry. 53 .

Mr. Ryan has expressed a desire to re-elect to be tried by a provincial court judge. Such a re-election is possible if the dictates of the Criminal Code , specifically s. 561 which requires the written consent of the prosecutor, are followed. 54 . Finally, I sought and received the consent of all parties to provide an oral

summary of these reasons. I am filing a full written judgment, providing a copy to all parties and noting that an oral

summary of this judgment has been read into the record. ______________________________ Cameron Gunn, J.P.C.

[23] R. v. Ravandi , 2012 BCPC 432 .