HIS MAJESTY THE KING Applicant - v. -, 2023 SKKB 40

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 40 Date: 2023 02 17 Docket: CRM-SA-00329-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING Applicant - and - RHETT HOLYNSKI Respondent Counsel: Linh N. Lê for the applicant Crown Patrick M. McDougall for the respondent accused ___________________________________________________________________________ DECISION LABACH J.

February 17, 2023 ___________________________________________________________________________ INTRODUCTION [ 1 ] The Crown has filed an originating application requesting the extraordinary remedies of certiorari to quash the decision of Klause P.C.J. allowing the respondent to re-elect from trial by Provincial Court to a judge-alone trial without the Crown’s consent and mandamus to have the matter returned to Provincial Court for trial. [ 2 ] The respondent opposes the application. He takes issue with the jurisdiction of the Court of King’s Bench to entertain the application.

He argues that the Crown should have appealed the matter to the Saskatchewan Court of Appeal. Irrespective of the jurisdiction issue, he argues that the judge was correct in determining that the respondent could re-elect as of right.

He asks that the Crown’s application be dismissed. [ 3 ] For the reasons that follow, I am satisfied that this application is properly brought in the Court of King’s Bench, that Klause P.C.J. had no jurisdiction to allow the respondent to re-elect without the Crown’s consent, and that the matter should be returned to Provincial Court for trial as per the respondent’s original election.

FACTS [ 4 ] On February 6, 2020, the respondent was arrested and charged with a number of serious offences, including possession of child pornography X 2, distributing child pornography, luring a person to share nude pictures X 2, and sexual assault X 2. Following his arrest, he was released on an undertaking to appear in Saskatoon Provincial Court on February 27, 2020. [ 5 ] On February 27, the respondent attended court and waived reading of his charges. The Crown elected to proceed by indictment on all matters.

The case was adjourned to March 17, 2020, for election and plea and to allow the respondent to retain legal counsel. [ 6 ] On March 17, Ms. Ammy Murray appeared on record as the respondent’s counsel. She filed a designation of counsel and adjourned the matter without election so she could obtain disclosure and get instructions from the respondent. [ 7 ] What followed were 26 adjournments of the respondent’s case. Eventually, on May 26, 2021, Ms. Murray waived reading of the election, elected trial by Provincial Court judge, and entered not guilty pleas to all counts.

The case was set to March 7, 2022, for a three-day trial, and to November 5, 2021, for a case management conference. The respondent was not present in court when the election or pleas were entered. [ 8 ] At the case management conference on November 5, Ms. Murray advised that she would be seeking leave to withdraw as the respondent’s counsel and that he had applied for Legal Aid representation. He was apparently waiting to hear if his application would be accepted. It was agreed the March 2022 trial dates would remain.

The matter was adjourned to November 9, 2021, to see if the respondent had obtained new counsel and for Ms. Murray to formally apply to the court for leave to withdraw.

[ 9 ] On November 9, Ms. Murray was granted leave to withdraw. The respondent was personally present in court and indicated that he was still waiting to hear if his Legal Aid application had been accepted. He advised that his matters could remain set for trial on the March 2022 dates. His case was adjourned to November 24, 2021. [ 10 ] On November 24, the respondent advised that his Legal Aid application had been denied.

He was provided a court-appointed counsel package, and his matter was adjourned again. [ 11 ] The respondent prepared and filed an application for court-appointed counsel and at a hearing on December 9, 2021, his application was granted. His case was adjourned to March 7, 2022, the first day set for his trial on the chance that whoever accepted the court appointment may be able to proceed with the trial. [ 12 ] It is unclear when he became respondent’s counsel, but at some point prior to March 7, 2022, Mr. Patrick McDougall accepted the court appointment to represent the respondent. Mr.

McDougall was not able to proceed with the trial on the March dates, and he advised the Crown accordingly. The Crown agreed to an adjournment, and on March 3, 2022, the parties met with the Provincial Court case manager and new trial dates were selected. At this meeting, Mr. McDougall advised that the respondent would be bringing an application under the Canadian Charter of Rights and Freedoms .

The parties agreed that this application should be heard prior to the trial, and a date was selected for that as well. [ 13 ] On March 7, 2022, the parties appeared in court, and the trial was formally rescheduled to December 6 to 8, 2022, with the respondent’s Charter application set to be heard on August 30, 2022. Finally, the matter was adjourned to May 11, 2022, for a case management conference. The respondent was not present in court, however, Mr. McDougall filed a designation of counsel. [ 14 ] At the May 2022 case management conference, the parties agreed that Mr.

McDougall would serve and file his formal Charter application no later than August 1, 2022, and the Crown would serve and file any material they wished to rely on by August 19. It was also agreed that a voir dire regarding the voluntariness of the respondent’s statement to the police would occur on August 30 as well. Finally, the parties agreed that if time permitted, they would argue applications under s. 715.1 and s. 486.2 of the Criminal Code , RSC 1985, c C-46 , that the Crown wished to bring. [ 15 ] Mr. McDougall did not file a Charter application by August 1.

On August 29, he sent an email to the court manager and the Crown advising that the respondent would no longer be pursuing a Charter application on August 30 but would be seeking to re-elect from Provincial Court to a judge-alone trial at the Court of Queen’s Bench (as it then was). [ 16 ] On August 30, 2022, the parties came before Klause P.C.J. At the commencement of court, Mr. McDougall confirmed that the respondent would not be bringing a Charter application but wished to re-elect to be tried by a judge sitting alone at the Court of Queen’s Bench. The Crown opposed the re-election.

They argued that pursuant to s. 561 of the Criminal Code , the respondent could no longer re-elect as of right, but required their consent, which they were not prepared to provide. Their witnesses on the voluntariness voir dire were present, they were ready to proceed, and the trial should proceed. [ 17 ] Mr. McDougall disagreed. In his view, the respondent did not require the Crown’s consent to re-elect at this stage of the proceedings. The trial had not yet begun and would not begin until December 6, 2022.

The respondent was well within his right to re-elect as of right, and he wanted to do so. [ 18 ] After hearing argument on the issue, Klause P.C.J. rendered a brief oral decision allowing the respondent to re-elect in the absence of the Crown’s consent. The relevant portion of his decision reads: THE COURT: ... … In my opinion, I agree with the Crown that their decision to consent is not reviewable by this Court if the time line decried by Parliament has been breached.

However, I note for the record this matter has dragged along for a great length of time, possibly due to COVID concerns and also some disclosure issues early on in the file. Both sides have had a long time to focus their attention on this file. It is not the fault of Mr. McDougall, present counsel, that it took several months for the initial date to be set, and in my opinion he has acted expeditiously since he took over the file. If, in his considered opinion, a trial in the Court of Queen’s Bench is to be desired, it is not for this court to overrule that merely on the grounds of convenience to the Crown.

He abandoned his Charter application on August 29th by written notice to the Court and a copy to the Crown. This is late notice, and he has apologized to both the Crown and Court for that late notification, but on point of fact, no evidence has been called on this case at today’s date. And if, in fact, any evidence or motion of substance had been called this morning, I would agree the trial – trial would have started, and that would preclude the defence from re-electing to the Court of Queen’s Bench, but no evidence has been called, no written material has been filed.

In my opinion, the trial of this matter does not start today. It is still going to be commenced on December 6th, given that finding the defence is well within the time frame to re-elect. As a side bar, I also pause that it would be relatively unfair to deny this counsel and this accused the right to a trial venue of his choice. He is prepared to waive delay.

I hope the Court of Queen’s Bench will be able to give this accused a relatively quick trial date so that the matter can proceed expeditiously. [Transcript, page T19, lines 12-37] [ 19 ] On September 15, 2022, the Crown filed their application for certiorari and mandamus to quash the Provincial Court judge’s decision and have the matter returned to Provincial Court for trial. ISSUES [ 20 ] The issues on this application are:

1. Does the Court of King’s Bench have jurisdiction to hear the Crown’s application? 2. Did the respondent require the Crown’s consent to re-elect his mode of trial? ANALYSIS 1. Does the Court of King’s Bench have jurisdiction to hear the Crown’s application? [21] The respondent argued that the Crown was really appealing the Provincial Court judge’s decision and as theCrown had elected to proceed by indictment on the charges, their application should have been brought to the Court of Appeal. Idisagree. [22] Criminal appeals are statutory. Appeals in indictable matters are governed by

Part XXI of the Criminal Code.The sections contained therein set out what can be appealed by an accused person, and by the Crown, once a case has been determined.But the Provincial Court judge was not rendering a decision on the merits of the respondent’s case; his was an interlocutory decision.There is no provision in the Criminal Code that allows a party to appeal a lower court’s decision to grant or refuse a re-election madepre-trial and, with few exceptions, interlocutory appeals are not allowed.

The Crown had no statutory ability to appeal the ProvincialCourt judge’s decision to the Court of Appeal, and the respondent’s argument in that regard is without merit. [23] At one point in the argument, counsel for the respondent suggested that the Crown could have appealed thedecision to the Court of Appeal pursuant to s. 784 of the Criminal Code. This argument must also fail.

Section 784 deals with appealsfrom the granting or refusal of prerogative relief. The Provincial Court judge did not grant relief of this nature. I am being asked to grantprerogative relief.

Section 784 would govern an appeal from this decision but not from that of the Provincial Court judge. [24] The only means for the Crown to take issue with the decision was to apply for the prerogative relief set out inPart XXVI of the Criminal Code. These remedies are available in respect of a jurisdictional error made by a Provincial Court judge. SeeBessette v British Columbia (Attorney General), 2019 SCC 31 at para 23, [2019] 2 SCR 535, and R v Awashish, 2018 SCC 45 at para 20,[2018] 3 SCR 87.

Certiorari is a prerogative remedy used to bring decisions of inferior courts/tribunals before a superior court where thedecision can be quashed if the court or tribunal has acted without or has exceeded jurisdiction. R v Balfour Moss, 2006 SKCA 35 atpara 9, 279 Sask R 152. Mandamus is similarly a prerogative remedy, used to secure the performance of a legal duty by an inferior courtor tribunal. It can be used to compel a court or tribunal to take an action it is obligated to take but incorrectly fails or refuses to take. SeeR v Envirogun, 2019 SKQB 89 at para 111, [2019] 9 WWR 303.

Both are discretionary remedies. [25]

Part XXVI of the Criminal Code and The Queen’s Bench Rules work in concert allowing applications forprerogative remedies to be brought in the Court of King’s Bench and specifying the procedure by which such applications are to bebrought.

Section 774 of the Criminal Code allows for these remedies to be requested in criminal matters. Section 482(1) and s. 482(3)(c)of the Criminal Code allow superior courts of criminal jurisdiction and any courts of appeal to make rules regulating the pleadings,practice and procedure in their courts with respect to these extraordinary remedies. Rule 3-70(1) of The Queen’s Bench Rules states thatthe Rules in

Part 3, Division 3, Subdivision 2, apply to applications to which the provisions of the Criminal Code apply. Rule 3-56 statesthat if an applicant seeks certiorari or mandamus, then the commencing document is an originating application. That is how the Crownproceeded in this case. [26] I acknowledge that Rule 50 of The Court of Appeal Rules gives the Saskatchewan Court of Appeal originaljurisdiction to hear an extraordinary remedy application. However, the fact that the Crown chose to pursue their application in the Courtof King’s Bench as opposed to the Court of Appeal is not fatal.

The Crown had the right to choose where they brought their application,and the respondent cannot compel them to bring it in one court or the other. [27] Here, the Crown was alleging that the Provincial Court judge had no jurisdiction to permit the respondent tore-elect his mode of trial without their consent as required by s. 561(2) of the Criminal Code. They were asking that his decision bequashed and that the Provincial Court be ordered to hear the respondent’s trial as per his original election.

The Crown has properlybrought their application for certiorari and mandamus pursuant to the Criminal Code and The Queen’s Bench Rules, and the Court ofKing’s Bench has jurisdiction to determine the application. 2. Did the respondent require the Crown’s consent to re-elect his mode of trial? [28]

Section 561 of the Criminal Code sets out the rights of an accused to re-elect his mode of trial depending onwhat his initial election had been.

Here, the respondent had initially elected trial by Provincial Court judge and that being the case, hisright to re-elect was governed by s. 561(2) of the Criminal Code: 561(2) An accused who elects to be tried by a provincial court judge may, not later than 60 days before the day first appointed for thetrial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor. [29] The disagreement between the parties in this case revolves around the meaning of the words “the day firstappointed for the trial”.

Was it March 7, 2022, the first day of the trial set by Ms. Murray, the respondent’s previous counsel? Was itDecember 6, 2022, the first day of the trial set by Mr. McDougall, the respondent’s present counsel? Or was it August 30, 2022, the dateagreed to by Mr. McDougall and the Crown for pre-trial motions? If I determine that it was March 7 or August 30, then the respondent’sre-election was well past the 60-day deadline set out in s. 561(2), and he would require the Crown’s consent to re-elect.

If it wasDecember 6, then he would still be able to re-elect of right and would not require the Crown’s consent. [30] On a purely literal reading of “the day first appointed for trial”, it is obvious that this date would be March 7,2022. And indeed, there is case law that has interpreted this phrase as meaning the very first day set for trial, whether the trial proceedson that day or not: R v Stacey (1999), (NL CA), 184 Nfld & PEIR 7 (Nfld CA); R v Lavoie, 2016 ABQB 497; R vShilmar, 2017 ABPC 213; R v T.B., 2018 ABPC 43.

There is some attraction to such a simple determination based on a textual readingof the section, but this

interpretation could prove problematic. For example, if an accused’s trial was adjourned but rescheduled earlier

than the first trial date set, and the new date was more than 60 days prior to the first trial date, then arguably that accused could still re-elect as of right during their Provincial Court trial. Such a result would be absurd. Moreover, it seems to me that such an approach would also ignore the Supreme Court of Canada’s comments in R v J.A. , 2011 SCC 28 , [2011] 2 SCR 440 [ J.A. ] , regarding the proper approach to statutory

interpretation: [32] The proper approach to statutory

interpretation was summarized in Canada Trustco Mortgage Co. v. Canada , 2005 SCC 54 , [2005] 2 S.C.R. 601 : “The

interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole.” The Court emphasized that while “[t]he relative effects of ordinary meaning, context and purpose on the interpretive process may vary, . . . in all cases the court must seek to read the provisions of

an Act as a harmonious whole” (para. 10). [ 31 ] To resolve the question of what day is “the day first appointed for trial” in any given case, it makes prudent sense for the court to engage in the analysis referenced in J.A. An analysis of this nature takes into account the fluidity of the criminal trial process. Sometimes trials proceed on the date they are set, and in those circumstances, it will be easy to determine the day first appointed for trial.

But, at other times, trials are adjourned for a variety of reasons, including the withdrawal of counsel, late disclosure, missing witnesses, sickness of the participants, lack of sufficient court time or an absconding accused. And, at other times, a date prior to the trial date may be set to hear any number of pre-trial motions. How do these factors play into a determination of when an accused’s right to re-elect as of right ends and when that accused would require the Crown’s consent?

Because criminal trials do not always proceed as expected, a textual, contextual and purposive analysis will assist in determining what the day first appointed for trial is in any given case. See , for example, R v Brahaney , 2016 ONCJ 395 [ Brahaney ] ; R v G.H. , 2021 ONCJ 107 [ G.H. ] ; R v Vella , 2020 ONCJ 338 . [ 32 ] In Brahaney , Paciocco J. (as he then was) had to determine the date first appointed for a trial where there had been a pre-trial severance application but the trial proper had not yet begun.

In that case, he said: [15] Unfortunately, the determination of when a trial begins for the purposes of particular statutory provisions, and what takes place as part of a trial, is not so easily resolved. Whether something is part of the trial certainly does not turn on the colloquial habits in reported decisions of referring to some applications as “pretrial motions.” Moreover, as important as the Criminal Rules of the Ontario Court of Justice are, they are formed under statutorily delegated authority.

The convenient division expressed in those rules between pretrial 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 purposive approach 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 and jury adjudicating the same matter. [ 33 ] So what then is the purpose of s. 561 of the Criminal Code ? The re-election provisions in the Criminal Code recognize that there is a balance between the rights of the accused to choose their mode of trial and the Crown’s obligation to move a trial along in a timely fashion. This is evident from the fact that Parliament did not make an accused’s right to re-elect absolute, but, rather, imposed some limits on when, and how, the re-election must occur.

In addition to promoting trial efficiency and avoiding delay, these limits seek to avoid the possibility of judge-shopping or decision-shopping and to minimize the impact that a change in trial mode may have on witnesses and complainants. See Brahaney , at paras 51-58 ; G.H. , at para 18 . [ 34 ] Taking into account the plain reading of s. 561(2) and its purpose, the Crown suggests that the day first appointed for trial in this case was March 7, 2022.

That was the day selected by the respondent’s previous counsel after she had waived reading of the election, elected trial by Provincial Court, and entered not guilty pleas on all counts on behalf of the respondent. In their view, it did not matter that the trial did not proceed that day or that it was adjourned with their consent. It remains the day first appointed for the respondent’s trial. [ 35 ] Mr. McDougall disagreed. The March 2022 trial dates were vacated.

The Crown consented to adjourning the trial, and the parties even went so far as to meet with the Provincial Court case manager on March 3 and select new dates for trial, including a date for a pre-trial Charter application. The parties simply appeared on March 7 to formally adjourn to the new trial dates. [ 36 ] The Provincial Court judge did not deal with this argument.

But in my view, while March 7, 2022, was the date first set for a trial, I am not satisfied that date could fairly be said to be the day first appointed for the respondent’s trial. [ 37 ] There is no question that the respondent was aware of his election and plea even though he was not present in court on May 25, 2021, when his election was made and the trial dates selected. After Ms. Murray withdrew as his counsel, the respondent appeared in court on his own behalf and advised that the trial dates in Provincial Court should be maintained while he sought new counsel. However, once Mr.

McDougall came on as new counsel, he was not available on the March trial dates. The Crown acknowledged this and did not oppose these dates being adjourned, even going so far as to select new trial dates ahead of the March 7 date and cancelling their witnesses, assuming that an adjournment was a fait accompli . Nothing substantive occurred in the respondent’s case on March 7; no evidence was heard, no determinations were made, and the judge that adjourned the matter was not seized with the case. [ 38 ] It is important to bear in mind that s. 561(2) refers to “the trial”, not “a trial”.

This suggests the day the respondent’s trial is expected to begin, not any day that the respondent’s trial is set to. On the facts of the case before me, neither of the parties attended court on March 7 expecting the respondent’s trial to begin. Therefore, I am not satisfied that March 7, 2022, was the day first appointed for the respondent’s trial. [ 39 ] The Crown’s second argument was that August 30, 2022, was the first day appointed for the trial.

Although the respondent’s trial was rescheduled to December 6 to 8, 2022, August 30 was the date set to hear the respondent’s Charter application and the Crown voir dire in respect of the voluntariness of the respondent’s statement to the police. The fact that the respondent never proceeded with his Charter application is of no consequence. The Crown had witnesses present on August 30 and expected to proceed with their voluntariness voir dire . Pre-trial motions that involve evidence being called are part of the trial process, and had the Provincial

Court judge heard the Crown’s application, he would have been seized with the December trial. August 30 was the day they expected therespondent’s trial to begin and the day first appointed for the trial, and again, the respondent was out of time to re-elect without theCrown’s consent. [40] Mr. McDougall resisted this argument on the basis that the respondent was not asked to confirm his election andpleas on August 30, that neither their Charter application nor the voluntariness voir dire proceeded, and that no evidence was called onthat date.

On December 6, 2022, the respondent would have been asked to confirm his election and pleas and the evidence portion of histrial would have begun. This was the day first appointed for the respondent’s trial. Since they were 100 days away from the start of thetrial, he did not require the Crown’s consent to re-elect. [41] It is clear from his decision that the Provincial Court judge equated the “first day appointed for the trial” asmeaning the first day that evidence was called. As no evidence was called and no material filed on August 30, he determined thatDecember 6 was the day the trial was to commence.

But this is incorrect. Putting aside the fact that no evidence was called because ofhis ruling on the respondent’s re-election application, it did not matter that no evidence was called. August 30, 2022, was set by theparties for two motions to proceed. The defence abandoned their Charter application, but the Crown did not abandon their application.As a matter of fact, on August 29, they responded to Mr. McDougall that they were not prepared to consent to a re-election and expectedto proceed with the voluntariness voir dire.

On August 30, they showed up with their witnesses ready to proceed with the voir dire. [42] A voir dire regarding the admissibility of evidence at a trial is considered part of the trial proper, even if heardin advance of the trial. It is a trial within a trial, and the fact that it occurred in advance of the trial does not make it any less a part of thetrial. See R v Poloni, 2008 BCPC 326 at para 55. A preliminary application that requires the calling of evidence and has a bearing on thesubstantive conduct of the trial is generally considered part of the trial.

See Brahaney, at paras 34-37. [43] In the present case, the Crown’s voir dire regarding the voluntariness of the respondent’s statement would havebeen part of the trial had it gone ahead. It involved the calling of witnesses to determine the admissibility of the respondent’s statement,and whether the statement went in or not, it would have had a significant bearing on the trial. Therefore, even though the substantiveportion of the trial was not scheduled to begin until December 6, the trial was set to begin on August 30, 2022, with the hearing of theCrown’s voluntariness voir dire.

Had the Provincial Court judge heard the voir dire, he would have been seized with the trial. Herealized this as is evident from his discussion with the Crown at page T13 of the transcript: THE COURT: And your position is today is the first day of trial, and his position is it’s not until December 5th [sic]. MS. LE: Yes, and you unfortunately have to rule on that. THE COURT: And I’m going to be retired in – in December, so I won’t have to sit on this case at all.

You know, my – my position isthat, you know, I’m not sure why I would deny him his right to – you know, if he feels Queen’s Bench is the best way to proceed, I’m –I’m kind of torn by that because it’s – you know, he – [Transcript, page T19, lines 27-37] [44] The respondent was present in court on August 30 and continued to be well aware of his earlier election andpleas. The fact that the Provincial Court judge did not ask him to confirm his election and pleas that day is of no significance to mydetermination. The respondent’s trial never began that day because of the decision made by the judge.

But it does not take away from thefact that August 30 was the date set for the trial to begin. [45] Before moving on, I must comment on one other argument made by Mr. McDougall. He suggested that theProvincial Court judge overrode the Crown’s discretion because he found their reason for withholding consent to be less thansatisfactory. The judge had asked the Crown why they were opposed to the re-election, and the Crown responded that they were worriedabout delay. Mr. McDougall responded that delay had been waived on several occasions.

He directed my attention to the judge’scomments that delay does not trump the respondent’s rights, especially when delay has been waived and that if the respondent wanted atrial at the Court of Queen’s Bench, it was not for him to overrule that merely on the grounds of convenience to the Crown. [46] It was not open to the Provincial Court judge to review the Crown’s exercise of their statutory discretion torefuse to consent unless it was demonstrated on the record that their decision was an abuse of the court’s process.

See R v L.E. (1994), (ON CA), 94 CCC (3d) 228 (Ont CA) at paras 26-28 and 31. [47] The court has a residual discretion to remedy an abuse of the court’s process but only in the clearest of caseswhere the conduct shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrantsjudicial intervention. See R v Power, (SCC), [1994] 1 SCR 601 at para 11. [48] The Crown had a legitimate concern regarding how long it had taken to get the respondent’s case to trial.

Therespondent was charged on February 5, 2020, and his Provincial Court trial was finally set to take place on August 30 and December 6 to8, 2022. A review of the court endorsement sheets for the 37 appearances that occurred to August 30 showed that the respondent onlyformally waived delay on August 21 and May 12, 2021, and then on August 30, 2022. There was no other evidence that the accused hadwaived delay. The Crown’s concerns with the further delay caused by re-electing to be tried in the Court of King’s Bench were wellfounded.

As a matter of fact, the Provincial Court judge recognized in his decision that the matter was dragging on. This was not aboutconvenience to the Crown. Their reason for refusing to consent was not arbitrary, capricious or for some improper motive. The Crown’sdecision to proceed with a case that was already significantly delayed would hardly shock the conscience of the community or bedetrimental to the proper administration of justice. The Crown had discretion to refuse to consent, and there was nothing untoward intheir exercise of that discretion in this case.

CONCLUSION [49] Applying a textual, contextual and purposive analysis to the particular circumstances of the case before me, I

have determined that the first day appointed for the respondent’s trial was August 30, 2022. The respondent did not give notice that he intended to seek re-election until August 29, 2022, and as per s. 561(2) , he required the Crown’s consent. The Crown declined to provide their consent. The evidence did not substantiate that their conduct by refusing to consent amounted to an abuse of process. Klause P.C.J. had no jurisdiction to grant the respondent’s request to re-elect to a judge-alone trial at the Court of King’s Bench.

Accordingly, I am of the view that an order for certiorari is appropriate. [ 50 ] I am not, however, convinced that an order for mandamus is necessary. There is no need to compel the Provincial Court to hear the respondent’s trial. The order for certiorari quashes Judge Klause’s decision to allow the respondent’s re-election. If his decision is quashed, the Court of King’s Bench has no jurisdiction to hear the respondent’s case, and the respondent is left with his original election of trial by Provincial Court judge.

It seems to me that by operation of law, this matter must return to Provincial Court for a trial in accordance with that election.

Moreover, if I was to order mandamus compelling the Provincial Court to hear the respondent’s trial, that might nullify any discretion the Crown has going forward to consent to a re-election if requested and they felt it appropriate to do so. [ 51 ] Therefore, an order for certiorari shall issue, quashing the respondent’s re-election to trial by judge alone at the Court of King’s Bench, and this matter shall be returned to Provincial Court for trial as per the respondent’s May 26, 2021, election. “D.E. Labach” J. D.E. LABACH