R. v. Brahaney, 2016 ONCJ 395

CITATION: R. v. Brahaney , 2016 ONCJ 395 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Laura Brahaney and Jake Hopwood Before Justice David M. Paciocco – Ottawa, ON Reasons on Laura Brahaney Re-election Application Released June 23, 2016 Mr. M. Geigen-Miller ……….……………………………………………………..for the Crown Mr. M. Smith and G. Fuentealba ………………..……………for the Accused, Laura Brahaney Leo Russomanno ……………………..…..……………..Agent for the Accused, Jake Hopwood Paciocco J. I.

Introduction [ 1 ] Laura Brahaney and Jake Hopwood are charged jointly with a range of serious offences arising from the allegation that they engaged in two unlawful confinement incidents, one in Ottawa, Ontario, and the other in Richmond Hill, Ontario. From the outset they signalled their intention to seek severance of the Ottawa from the Richmond Hill charges. [ 2 ] Dates were set for hearing the severance application in the Ontario Court of Justice, on September 28 and 29, 2015.

On September 11, 2015, the date of September 28, 2015 was cancelled as unnecessary. [ 3 ] Prior to September 29, 2015, the Crown took the position that until the accused persons elected trial in the Ontario Court of Justice, the Ontario Court of Justice had no jurisdiction to order severance, as only a trial judge has the authority to sever counts. The Crown therefore brought an application for the

summary dismissal of the severance application. [ 4 ] On September 29, 2015, the parties ultimately agreed with the Crown position. I advised the accused parties that they were under no pressure to elect trial in the Ontario Court of Justice, but that if they wanted me to hear the severance application they would have to do so, and be arraigned before me. The matter was stood down to enable the parties to conduct a pretrial with the Local Administrative Judge, and for counsel to get instructions.

Ultimately, the accused elected trial before the Ontario Court of Justice and a date was set before the Local Administrative Judge to have the application scheduled before me for disposition. [ 5 ] On October 2, 2015, two dates were set. The severance application was to be heard on December 21, 2015, and 10 days were reserved for the evidentiary phase of the trial on whatever charges would be proceeding, commencing July 11, 2016. [ 6 ] On December 21, 2015 Ms. Brahaney and Mr. Hopwood appeared before me on the application and entered pleas of not guilty.

Evidence was heard on the motion and argument was made. [ 7 ] On February 29, 2016, I denied the severance application in a written decision. The matter was then remitted to the administrative stream so that the parties could discuss with the Local Administrative Judge whether the trial period set was adequate, and to secure additional dates, if necessary. [ 8 ] On June 13, 2016, six weeks after the severance application was decided adversely to Ms. Brahaney, she filed a “Notice of Intent to Re-elect” pursuant to

section 536.3, seeking a judge alone trial in the Ontario Superior Court of Justice. The notice of re-election should, in fact, have been made pursuant to Criminal Code section 561(2). The Crown has not been prejudiced by this formal error in the “Notice of Intent to Re-elect,” and all of the parties are proceeding on the footing that the notice was purportedly given pursuant to section 561(2). [ 9 ] Section 561(2) of the Criminal Code provides:

(2) An accused who elects to be tried by a provincial court judge or who does not request a preliminary inquiry under subsection536(4) may, not later than 14 days before the first day appointed for trial, re-elect as of right another mode of trial, and may do so afterthat time with the written consent of the prosecutor. [10] Ms. Fuentealba argues that the “first day appointed for trial” is July 11, 2016, which is more than a 14 days after the date noticewas filed. She therefore claims that Ms. Brahaney can re-elect, as of right. Mr. Hopwood, through the agency of Mr.

Russomanno - whois seeking to make arrangements to go on record as Mr. Hopwood’s new counsel - agrees with Ms. Fuentealba’s position. [11] The Crown takes the position that the trial already commenced with the severance application. It urges that re-election at thisstage therefore requires “the written consent of the prosecutor,” which the prosecutor will not give. The Crown argues that the mattershould continue with the Crown’s case on July 11, 2016. [12] I have to decide who is correct. That determination turns on the meaning to be ascribed to the term, “the first day appointed fortrial.” II. Analysis [13] Ms.

Fuentealba, for Ms. Brahaney, urged that the plain language of section 561(2) resolves the matter. She argues that aseverance application is a “pretrial motion,” something that occurs prior to the “trial” that is referred to in section 561(2). She contendsthat the trial begins when evidence is presented on the charges, namely, July 11, 2016, leaving Ms. Brahaney an absolute right to re-elect, even without Crown consent. [14] To support this position Ms.

Fuentealba points out that cases frequently speak of “pretrial” motions, as opposed to trial motions,as do the rules developed by this court, the Ontario Court of Justice. She contends that had Parliament intended the term “trial” to include“pretrial” matters, it had the opportunity to say so, including when the provision was amended in 2002, but did not. [15] Unfortunately, the determination of when a trial begins for the purposes of particular statutory provisions, and what takes placeas part of a trial, is not so easily resolved.

Whether something is part of the trial certainly does not turn on the colloquial habits inreported decisions of referring to some applications as “pretrial motions.” Moreover, as important as the Criminal Rules of the OntarioCourt of Justice are, they are formed under statutorily delegated authority.

The convenient division expressed in those rules betweenpretrial and trial motions cannot alter the meaning of a statutory term, such as Criminal Code section 561(2). [16] Case law makes clear that when it comes to interpreting the term “trial” in a statutory provision, a contextual and purposiveapproach is to be taken. Indeed, the term “trial” can mean different things in different contexts. As observed by Justice Ewaschuck in R.v. Curtis [1991] O.J. No. 1070 (O.C.J. Gen.

Div.), this can even result in a “trial” commencing at different points in time for a judge andjury adjudicating the same matter. [17] The influence of context and purpose on the determination of when a trial begins or is underway is best illustrated by thedecisions in R. v. Basarabas (SCC), [1982] 2 S.C.R. 730 and R. v. Barrow (SCC), [1987] 2 S.C.R.694.

Both cases involved steps taken in the selection of juries. [18] In Basarabas, supra, the issue was whether it was appropriate to appoint a replacement juror for a juror who was dischargedbecause of conflict of interest, before any evidence on the merits had been heard.

The statutory authority needed to replace that jurorwould not have existed if the juror was discharged “in the course of the trial.” Where a juror is discharged “in the course of the trial” theproper procedure is to continue with the remaining jurors, so long as there are at least 10: Criminal Code section 573(2) [now section644(2)]. [19] The Supreme Court of Canada held that, given the importance of enabling the accused to have a trial by 12 jurors, and thefeasibility of replacing the juror before the jury began its function, the term “in the course of the trial” should be interpreted in section573(2) as commencing when the accused is actually placed in the charge of the jury.

As a result, the disqualified juror should have beenreplaced, and the judge erred by not doing so. [20] In Barrow, supra, the question again was whether a trial was underway when the jury panel was in the process of beingassembled. If so, Criminal Code s. 577(1), [now section 650(1)] would apply. That provision holds that “an accused shall be present incourt during the whole of his trial.” Presence includes the right to be privy to information considered in court, including communicationsabout whether to exclude jurors. [21] In his case, Mr.

Barrow and his counsel were left out of earshot of inquires conducted by the judge, leading to jurors beingexcused. Mr. Barrow was not, therefore, “present” in a meaningful sense. If the trial was underway, section 577(1) had therefore beencontravened. [22] The Supreme Court of Canada ultimately ruled that, for the purpose of section 577(1), the trial was indeed underway during juryselection. This was so, even though the accused was not yet placed in the charge of the jury, the trigger that had been adopted inBasarabas, supra.

The Court reasoned that since the determination of who the jurors would be is a centrally important trial matter,accused persons are entitled to meaningful presence during jury selection. The meaning of “present… during the whole of his trial” iscapable of including jury selection, and given the issue, context and purpose of the provision, it should be interpreted accordingly.

Forthe purpose of section 650(1), then, “the whole of his trial” includes jury selection. [23] It is not only the policy implications of the different issues that arise that causes flux in the conception of a “trial.” The term“trial” is ambiguous because there are a range of tasks undertaken before the ultimate resolution of a case. [24] For example, there are mere administrative acts required to set the stage for the commencement of hearings, things such as intakeappearances, the conduct of pre-trials, or applications for adjournment.

Universally, mere administrative acts of this kind are notconsidered to be part of the trial. That is why, in this case, the Local Administrative Judge is empowered to conduct pretrials and

schedule court dates. [25] As a result, in R. v. Stacey [1999] N.J. No. 377 (Nfld. S.Ct. (C.A.)) the communication by the accused during the intake processof his intended election and plea, and the act of setting a date for the commencement of the evidentiary hearing, were not part of the trialwithin the meaning of Criminal Code

section 475. Since these matters were not trial matters, an accused person who failed to show upon that set date had not absconded “during the course of the trial.” It was therefore an error to try him in absentia under the purportedauthority of

section 475. [26] The same would hold true, for the purpose of section 561(2), the provision at issue here. Had only purely administrative mattersof this kind occurred prior to Ms. Brahaney’s re-election, there could be no issue taken with the validity of her re-election. [27] Then there is the formal reception of the plea. Ordinarily, this ceremony is not considered to commence the trial, and a jurist whodoes no more than receive a plea from an accused person is not seized of the matter: R. v. Wiseberg [1973] O.J. No. 945 (Ont. S.C.(A.D.)), and see Criminal Code,

section 669.1. The fact that Ms. Brahaney entered a plea before me on December 21, 2015 does not, onits own, undermine her right to re-elect. [28] Conversely, a trial is always underway where the parties are presenting evidence relating to the guilt or innocence of the accused.Unquestionably, if this occurs within 14 days of an attempted re-election, that re-election is impermissible without the Crown’s consent:R. v. Robinson [1984] M.J. No. 320 (Man. Prov. Ct.). [29] When it comes to motions commenced or adjudicated in advance of the evidentiary phase of the trial, things become morecomplicated.

In some contexts, at least, some such matters are not considered to be part of the trial. For example, in R. v. Black 2010NBCA 36 , [2010] N.B.J. No. 171 (N.B.C.A.) the determination of a request for particulars was not part of the trial, such thatthe adjudicating judge became seized as the trial judge upon making that order.[1] [30] Other hearings conducted in advance of the evidentiary phase of the trial will be part of the trial. In R. v. Poloni 2008 BCPC 326, [2008] B.C.J.

No. 2168 (B.C.P.C.), the trial judge quite correctly remarked, at para 55: “… [T]here is ample authority for the proposition that a voir dire aimed at canvassing the admissibility of evidence is part of the ‘trial’:Duhamel v. The Queen (SCC), [1984] 2 S.C.R. 555 at 563.

The fact that a voir dire occurs at the beginning of a judgealone trial, before any evidence is called on the trial proper, does not make it any less a ‘trial within a trial.’ [31] The instant question, then, is whether a severance application is the kind of motion conducted in advance of the evidentiary phaseof the trial that forms part of the trial. I have been presented with no authority resolving the question. Ms. Fuenteable offered R. v. Stacey[1999] N.J. No. 377 (Nfld. S.C. (C.A.)) and R. v. Malakpour [2012] B.C.J. No. 2471 (B.C. Prov. Ct.) yet neither case is helpful.

It is truethat each decision referred to the first date set for the reception of evidence about guilt or innocence as “the first day set for trial,” yetneither case involved pretrial motions, such as a severance application. [32] Given the capacity of the word “trial” to refer to various aspects of the proceedings, I therefore have to resolve this question as amatter of principle, bearing in mind the nature of a severance hearing, and giving particular focus to the contextual and purposiveimplications of the right to re-election provided for in section 561(2). [33] I will begin with general principles that assist in determining whether a trial is underway. [34] The first principle consulted by the courts is that “decisions having a bearing on the substantive conduct of the trial or the issueof guilt or innocence” will generally form part of the trial: R v.

Hertich [2982] O.J. No. 496 (Ont. S.C. (A.D.) at para 54. A similarsentiment was expressed in R. v. Barrow, supra where the decision to treat juror selection as part of the trial was inspired by theimportance juror selection played in the trial, and in Mr. Barrow’s right to a fair hearing.

The centrality or importance of a matter to theconduct of the trial or in determining guilt or innocence is therefore material in determining whether that matter forms part of the trial. [35] In my view, this principle suggests that a severance hearing, settling what charges the accused is going to face during the hearing,is part of the trial. While the severance hearing does not have a direct bearing on the issue of guilt or innocence, it does bear centrally onthe “substantive conduct of the trial.” Moreover, the focus during a severance application is not simply administrative.

It has to do, aswell, with ensuring the integrity of the hearing, the consistency of verdicts, and in ensuring that accused persons can be tried fairly. Aseverance application is a central and important stage in the ultimate resolution of the charges against the accused. [36] A second principle consulted by courts is that preliminary motions that require evidence to resolve tend to be part of the trial, butthose preliminary motions that do not require evidence tend not to be: R. v. Poloni, supra at para 17.

Thus, a motion for particulars is notgenerally part of the trial because the need for particulars is evaluated not by the consideration of proof, but by the characterization of thesufficiency of the information in a charge. By contrast, a motion for severance is based on claims about a state of fact that, if not agreedto, has to be resolved. In this case, for example, evidence was presented by Det.

Jacobs about the overlap and intersection between theOttawa and Richmond Hill charges. [37] The need to receive evidence to resolve a matter is not an arbitrary point of departure in determining whether a trial hascommenced. It is closely related to the notion that “trial judges are to hear all matters relating to the trial”: R. v. Black 2010 NBCA 36, [2010] N.B.J. No. 171 (N.B.C.A.) at para 49, a proposition linked to the practice of seizing judges with cases. This practice ofseizure promotes trial efficiency and encourages consistency in adjudication, including on questions of credibility.

The concept of seizurealso protects the appearance of justice by removing the spectre of judges being selected to adjudicate discrete issues. [38] This concept of seizure gives rise to a third relevant principle of assistance in determining whether a trial is underway. Although,as Barrow, supra illustrates, there is a distinction between a jdge being seized and whether a trial has commenced or is underway, I agreewith Prov. Ct. J. F.E. Howard, in R. v. Poloni, supra, that there is an important correlation between the two.

As the judge put it, “Thequestion of whether a judge is seized and the question of whether a trial has commenced is closely related. In general, if a trial hascommenced, then the trial judge is seized.”

[39] I would add to that. As a general proposition, when a seized trial judge undertakes acts that arise because of their role as trialjudge, or “qua trial judge,” the trial is more likely to be underway. Naturally, if the only authority a judge has to undertake a task is thatthey are seized as the trial judge, that task is apt to be a trial task. [40] In this case I was, at the time of the notice of re-election, seized of this matter as the designated trial judge. This occurred once Icommenced hearing Ms. Brahaney’s severance motion, after she elected trial in the Ontario Court of Justice. R. v.

Litchfield (SCC), [1993] S.C.J. No. 127 at paras 25-27, is the applicable authority for the proposition that only a trial judge can orderseverance.[2] [41] I am mindful that Litchfield, supra, involved charges tried on an indictment, and that the reasoning offered by the Court turned, inpart, on the rule that an indictment is preferred when it is lodged with the trial judge at the opening of the trial. In my view the rule inLitchfield nonetheless applies, with equal force, even in cases tried on a sworn Information, such as the matter before me. [42] As explained in R. v. Brown [2000] O.J.

No. 2434 at para 26 (Ont. C.A.), the decision to require trial judges to determineseverance matters is supported by appreciation that a “severance order will clearly have an impact on the nature and course of the trial tobe held,” matters that should ordinarily be the responsibility of the trial judge. [43] Moreover, a significant concern in Litchfield was the complication in appealing a severance ruling, if that ruling was made bysomeone other than the trial judge. This is because of the usual bar on collateral attacks, and the limitation on appeals only after finalverdict.

Appeal difficulties would apply whether charges are tried on indictment or on a sworn Information. [44] My status as the trial judge is further supported by the fact that I heard evidence in this matter, albeit evidence on a motion ratherthan for the purpose of resolving substantive issues of guilt or innocence. As

section 669.1(1) implies, once evidence is received, thejudge hearing it is seized of the trial. The term “evidence” in

section 669.1(1) should not be confined to material information relating tothe ultimate merits of the case. Interpreted purposively in light of the need for consistency in adjudication, and the value in linking ajudge to a case for administrative efficiency and constancy, only a trial judge should adjudicate matters requiring proof in their assignedcase. Indeed, as Criminal Code, s.551.1(1) demonstrates, when Parliament does intend the term “evidence” to be constrained to proofabout guilt or innocence it uses terms such as “evidence on the merits.”

Section 669.1(1) does not. It uses the term “evidence” at large. [45] In sum, general principles for determining whether the trial was underway support the conclusion that the trial started with theseverance motion. First, the issue at stake in the severance motion had a material bearing on the substantive conduct of the trial and wasof central importance in determining, as it did, the charges Ms. Brahaney would be tried upon. Second, the resolution of that issuerequired an evidentiary foundation to be established, or agreed upon.

And third, I necessarily heard that motion in my capacity as thejudge who was seized of the trial, both because only a trial judge can hear such motions, and this motion required the presentation ofevidence to resolve. Since the judicial undertaking of resolving the severance motion was engaged in “qua trial judge,” it follows thatwhen I undertook the motion, it was within the shelter of the trial under the authority of the trial judge. [46] While this is where general principles relating to the commencement of a trial lead, principles, of course, do not compeloutcomes.

They direct how things should ordinarily work, and can be outpointed by competing considerations. In this case Ms.Fuentealba relies heavily on the purposive implications of severance to urge that a severance motion should not be considered to be partof the trial for the purposes of section 561(2). [47] Ms. Feuntealba contends, first, that the right to choose the mode of trial is a centrally important right to the accused, carryingwith it the right to a jury trial, and should not be lightly restricted.

Since the purpose of section 561(2) is to preserve that choice bypermitting re-election, the concept of “trial” should be interpreted generously. Second, she urges that an accused person should not berequired to elect their mode of trial until they have full knowledge of the interests at stake. Until a determination is made about whatcharges will proceed, the accused person is unable to make an informed, tactical choice about where they wish to be tried.

I will addresseach of these considerations in turn, but only after addressing another consideration that occurred to me. [48] Specifically, the argument can be made that a severance application cannot form part of the trial, because until the severanceissue is determined, it is not even clear what charges the trial will embrace. I wanted to address this consideration because initially itseemed compelling to me. [49] On reflection, the point does not hold up.

There is no reason to conceive of a severance hearing as separate from a trial simplybecause a successful motion will result in adjudication on fewer charges than initially presented. It is not uncommon for a trial to beginincluding charges that do not remain at the end of the proceedings, whether it is because those charges have been stayed or withdrawn. Aseverance order operates similarly by removing some of the charges that are before the court. [50] Moreover, there is no limit on when a severance motion can be brought.

It is even possible to renew an application late in theproceedings, if circumstances change. Severance applications can occur even after the presentation of evidence on the merits, at a timewhen unequivocally the trial is underway: R. v. Sternig (1975), 31 C.R.N.S. 273 (Ont. C.A.). In other words, there is nothing antitheticalabout conducting a severance motion as part of the trial. [51] What, then, of Ms. Fuentealba’s purposive argument? I do accept that an accused person has an imposing interest in being able toelect mode of trial, including a trial by jury.

That interest is serviced in the Criminal Code in a variety of ways. For electable offences,the accused has the initial choice as to mode of trial: Criminal Code, section 536(2).

They also have the absolute right to re-elect within15 days after a preliminary inquiry, and where they do not have a preliminary inquiry, no later than 14 days “before the first dayappointed for trial.” This right to elect and re-elect does signal the importance of the entitlement of accused persons to exercise choiceover their mode of trial for electable indictable offences – the majority of criminal charges – and to enjoy, if they wish, either the right toa

summary trial in provincial court, or a trial in superior court, either with or without a jury. [52] On the other hand, the law makes clear that the entitlement to choose the mode of trial is not absolute. The law imposes limits onthe right to choose. Where there are co-accused persons, each accused person is compelled to have a preliminary inquiry and be tried inthe Superior Court if one of them makes that choice: Criminal Code, section 536(4.2). In some cases, the Crown can compel a trial by

jury: Criminal Code,

section 568. And in cases of re-election, there are time limits or Crown consent requirements. [53] These provisions demonstrate, as recognized in R. v. E.(L.) (ON CA), [1994] O.J. No. 2641 (Ont. C.A.), thatthere are competing public interests that operate to limit the freedom of choice granted to accused persons. As a result, the Court held inE.(L.) that it was an error for the trial judge to have disregarded the limits on the right to elect the mode of trial on the theory that theaccused’s right of election is somehow more important than the protection of these competing interests.

Simply put, statutory provisionsrelating to the mode of trial recognize competing interests and cannot be interpreted purposively, as if they serve only the preservation ofoptions for the accused. It has to be remembered that applying a narrow conception of “the first day of the trial” to permit re-electionreduces the opportunities of the Crown to withhold consent, potentially disrupting the balance established by the provision. [54] What then, is the interest being protected by the Crown that inspired Parliament to impose time limits on re-election?

Theimposition of time limits is clearly meant to facilitate the advancement of cases without delay, and to promote trial efficiency. It isimportant that the re-election provisions not be interpreted in a fashion that promotes delay or inefficiency, or otherwise operates in afashion that undermines the integrity of the administration of justice.

Interpreting section 561(2), in particular, as permitting re-electionfrom the Provincial Court to the Superior Court until 14 days before the evidence about guilt or innocence starts to flow would, in myview, create this kind of mischief. [55] First, if, as contended by Ms. Fuentealba, “the day first appointed for the trial” is to mean the first day on which evidence on themerits of the case is heard, elections will be possible until all preliminary matters are attended to, regardless of their nature. As thedecision in R. v.

E.(L.), supra exemplifies, there can be numerous complex and time-consuming matters argued and disposed of beforethe evidentiary phase of the trial arrives. In R. v. E.(L.) the trial judge heard and resolved a change of venue application, a severanceapplication, Charter applications and evidentiary applications, including relating to expert evidence, all before any evidence on themerits was presented.[3] If the position offered by Ms.

Fuentealba is correct, all of the judicial resources, time and public expenseinvested in cases were preliminary matters are addressed in advance of the evidentiary phase of the trial in this way can be laid to wasteby a simple re-election. [56] To be sure, some of those rulings might remain relevant if a preliminary inquiry is requested at the time of the purported re-election. Rulings made, however, “qua trial judge” would have to be ignored during a preliminary inquiry held after re-election becauseof jurisdictional limits. This would include motions for Charter relief, including the exclusion of evidence, or

section 11(

b) applicationsfor stay, disclosure rulings, and severance rulings. [57] Second, the implication of the position being offered by Ms. Fuentealba is that simply by re-electing the accused person canreplace a trial judge, seized of the case. This can occur not only before rulings have been made, but even after sampling the decisionsreached by the judge. The suggestion is that if things are not going well, the accused has been given the right by Parliament to reload andtry again.

The provision would facilitate an unbecoming form of judge shopping if interpreted in this way. [58] Third, the implication of the position being offered is that the accused can achieve the same outcome as an appeal or the judicialreview of a decision, having those decisions set aside, simply by re-electing. This follows because there is nothing in law to bind the trialjudge assigned in the Superior Court from revisiting a matter decided in a prior Provincial Court hearing, regardless of whether there hasbeen a change in circumstances.

It is doubtful that the law intends to offer this kind of opportunity through re-election. It not only offers ade facto right of appeal without the demonstration of error, it creates the risk of inconsistent decisions without demonstrating error. Insimple terms, it would permit what can fairly be called “decision shopping.” [59] Ultimately, I do not believe that a purposive, contextual examination of section 561(2) sustains an

interpretation that wouldsupport these kinds of implications. This re-election provision offers generous time for reconsideration, but it also meant to balancecompeting interests. Section 561(2) should not be interpreted to give accused persons a do-over before a different judge after significantmatters have been adjudicated. [60] There is, however, some intuitive currency in Ms.

Fuenteabla’s second point, that decisions as to mode of trial should be made onfull information, and that the outcome of a severance application can have a profound effect on tactical decisions about the mode of trial.For example, if one of the counts is inflammatory or is apt to turn on a highly technical legal issue, this may be enough to prevent asensible election of trial by jury, even if a trial by jury is desirable for the other charges. To support this contention she relies on thecomments made by Justice Quigley in R. v. Phillips [2006] O.J. No. 5799 (Ont.

S.C.J.), in which he accepts the proposition that theoutcome of applications and motions can substantially change the case the accused has to meet, giving a reasoned basis for re-election. [61] This concern is not enough, in my view, to carry the day. First, the Phillips decision did not involve a balancing of the kind ofcompeting interests that are at play under section 561(2), where the re-election is away from a Provincial Court trial.

Phillips is aSuperior Court Case involving a judge conducting preliminary motions before empanelling a jury for a jury trial.[4] In that context, re-election involves nothing more than having the seized judge remain the seized judge, and conducting a judge alone trial instead of a jurytrial, with the full benefit of all prior rulings made.

Re-election from one mode of Superior Court trial to another does not raise the kindof adverse implications that section 561(2) does for re-election from Provincial Court. [62] Second, in cases where there really is a compelling interest in electing one mode of trial for some charges, and another mode forothers, this can assist in forming the foundation for a severance request. In R. v. Last 2009 SCC 45 , [2009] S.C.J. No. 45, theCourt noted that the factors identified in the jurisprudence as relevant in a severance application are not exhaustive. The test for asuccessful severance application is broad.

It is whether it “is in the interests of justice,” and a severance may well be where it is required,in part, to facilitate choice as to the mode of trial. [63] It is obvious that, in spite of this, there will be cases where accused persons will have to make mode of trial decisions withoutknowing the outcome of an anticipated severance application. Naturally, it would be ideal for accused persons to have the outcome ofevery preliminary ruling in hand before electing where the evidentiary phase of the trial will be. That would be attractive to accusedpersons, but it is not the law.

When the matter is considered as whole, the impediment that uncertainty about severance poses to theability of the accused to make an informed choice about mode of trial does not outpoint the competing considerations I have identified.

A balanced, purposive, contextual

interpretation of section 561(2) will not accommodate this. [ 64 ] In sum, when the general principles that apply in identifying when a trial has commenced or is underway, and a contextual, purposive approach is taken to finding the meaning of “the first day appointed for trial” within section 561(2), it is my view that once a seized trial judge begins to receive evidence on a severance application – either in the form of contested testimony, or agreed upon facts [5] – the trial is underway.

Fourteen days before this, then, the right to re-elect without consent expires. [ 65 ] Accordingly, the trial in this case was already underway when Ms. Brahaney’s “notice of re-election” was filed. The application to have this court recognize that notice of re-election is therefore denied. The trial will proceed before me in the Ontario Court of Justice. Dated at Ottawa this 23 rd day of June 2016 _____________________________________ Justice David M. Paciocco