R. v. M., 2024 MBKB 17

Date: 20240129 Docket: YO 23-03-00594 (Brandon Centre) Indexed as: R. v. M. (S.C.R.) Cited as: 2024 MBKB 17 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) INDERJIT SINGH HIS MAJESTY THE KING, ) for the Crown Respondent ) ) EVAN ROITENBERG - and - ) for the Young Person ) S.C.R.M., ) Judgment Delivered: (Young Person) Applicant. ) November 16, 2023 ) ) Written Reasons: ) January 29, 2024 Restriction on Publication : Pursuant to s. 110(1) of the Youth Criminal Justice Act , no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as have been dealt with under this Act . LEVEN J. I.

SUMMARY [ 1 ] This was an abuse of process Application by a Young Person charged with manslaughter, in respect of a case management conference (CMC), a preliminary inquiry (PI) that never happened and a later Direct Indictment (DI) for second degree murder. [ 2 ] As the accused was a Young Person, the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”) applied. [ 3 ] Unless otherwise indicated, all dates are in 2022. [ 4 ] Counsel at the Application hearing were not the same counsel who represented the parties earlier in the proceedings. [ 5 ] In short, the Young Person was charged with manslaughter.

His first appearance was on February 3. At the June 1 CMC, counsel discussed a PI in respect of manslaughter. No one ever mentioned murder. The Young Person was not at the CMC, but his lawyers were present. A Provincial Court Judge (PCJ) conducted the CMC. [ 6 ] The Crown advised that the Young Person would be tried as an adult. The Crown advised it would not be seeking a DI. Counsel agreed to take steps to set dates for a three-day PI. [ 7 ] The dates for a PI were soon set for December 14-16, and there were appearances on July 13 and September 14.

At none of these appearances was the Young Person asked to elect any form of trial, but everyone proceeded on the basis that there would be a PI. [ 8 ] On December 14, five minutes before the PI was about to begin, the Crown told the defence for the first time that it was

thinking about second degree murder and that, at the end of the PI, it would submit that the Young Person should be committed for second degree murder. Apparently the Crown had intended to tell the defence earlier, but inadvertently neglected to. [ 9 ] Reacting quickly to this surprise, when the PCJ arrived, the Young Person (through counsel) stated in open court that he wished to elect trial in Provincial Court (PC) and enter a guilty plea to manslaughter immediately. The PCJ accepted the guilty plea. The Crown was unhappy, but never argued at the time that the PCJ had no jurisdiction to accept the guilty plea.

Rather, the Crown put the defence on notice that it intended to prefer a DI for second degree murder in due course. [ 10 ] The PCJ did not read the election

section of the YCJA . However the Crown lawyer present read the election section, and the Young Person (through counsel) elected trial in PC. [ 11 ] Counsel corresponded. The Crown advised that it would seek a DI for second degree murder. Defence counsel objected in writing and mentioned the concept of abuse of process. On February 8, 2023, the Deputy Attorney General authorized and signed a DI for second degree murder.

On March 20, 2023, the Crown stayed the manslaughter charge. [ 12 ] On October 18, 2023, defence counsel filed a Notice of Application pursuant to ss. 7 and 24 of the Canadian Charter of Rights and Freedoms (the “ Charter ” ), alleging an abuse of process and asking the Court “to return the matter to the Provincial Court of Manitoba for sentencing on the charge of manslaughter, as a plea of guilty to that charge has been entered and accepted by the Provincial Court of Manitoba.” (The defence deliberately did not ask for a stay of all charges.) [ 13 ] A hearing was held on November 16, 2023.

Defence counsel confirmed that, if its Application were allowed, it would not object to any procedural steps necessary in order to “revive” the manslaughter charge and move as quickly as possible to sentencing (on manslaughter) in the PC. At the conclusion of the hearing, I ruled in favor of the defence, with reasons to follow. [ 14 ] The Young Person has been in continuous custody throughout the entire process.

As both counsel wished to allow the Crown adequate time to make arrangements to keep the Young Person in custody at least in the short term, I suspended the effect of my decision until 4:30 p.m. on November 24, 2023. Statutes [ 15 ] Relevant sections of the Charter include: 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. ….

Life, liberty and security of person 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. …. Enforcement of guaranteed rights and freedoms 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 16 ] Relevant sections of the Criminal Code include:

Definitions 2 In this Act, …. justice means a justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction. … provincial court judge means a person appointed or authorized to act by or pursuant to

an Act of the legislature of a province, by whatever title that person may be designated, who has the power and authority of two or more justices of the peace and includes the lawful deputy of that person. …. Classification of murder 231

(1) Murder is first degree murder or second degree murder.

…. Second degree murder

(7) All murder that is not first degree murder is second degree murder. Murder reduced to manslaughter 232

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. …. Powers of justice 537

(1) A justice acting under this Part may (

a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason; (

b) remand the accused to custody for the purposes of the Identification of Criminals Act ; (

c) except where the accused is authorized pursuant to

Part XVI to be at large, remand the accused to custody in a prison by warrant in Form 19; (

d) resume an inquiry before the expiration of a period for which it has been adjourned with the consent of the prosecutor and the accused or his counsel; (

e) order in writing, in Form 30, that the accused be brought before him, or any other justice for the same territorial division, at any time before the expiration of the time for which the accused has been remanded; (

f) grant or refuse permission to the prosecutor or his counsel to address him in support of the charge, by way of opening or summing up or by way of reply on any evidence that is given on behalf of the accused; (

g) receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them; (

h) order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing; (

i) regulate the course of the inquiry in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry, that is consistent with this Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) or agreement made under

section 536.5; (

j) if the prosecutor and the accused consent, allow the accused to appear by counsel for any part of the inquiry, other than a

part in which the evidence of a witness is taken; and (j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate. …. Order to stand trial or discharge 548

(1) When all the evidence has been taken by the justice, he shall (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or (

b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. [emphasis added]

…. Indictment 576

(1) Except as provided in this Act, no indictment shall be preferred. …. Direct indictments 577 Despite

section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if (

a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or (

b) in any other case, a judge of the court so orders. …. Pleas permitted 606

(1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others. Conditions for accepting guilty plea

(1.1) A court may accept a plea of guilty only if it is satisfied that (

a) the accused is making the plea voluntarily; (

b) the accused understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (

c) the facts support the charge. Validity of plea

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea. Circumstances of aggravation 610

(1) Where an indictment charges substantially the same offence as that charged in an indictment on which an accused was previously convicted or acquitted, but adds a statement of intention or circumstances of aggravation tending, if proved, to increase the punishment, the previous conviction or acquittal bars the subsequent indictment. Effect of previous charge of murder or manslaughter

(2) A conviction or an acquittal on an indictment for murder bars a subsequent indictment for the same homicide charging it as manslaughter or infanticide, and a conviction or acquittal on an indictment for manslaughter or infanticide bars a subsequent indictment for the same homicide charging it as murder. [emphasis added] [ 17 ] Relevant sections of the YCJA include:

Interpretation

Definitions 2

(1) The

definitions in this subsection apply in this Act. …. young person means a person who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he or she was a young person or who is found guilty of an offence under this Act. …. youth justice court means a youth justice court referred to in

section 13. youth justice court judge means a youth justice court judge referred to in

section 13. …. Words and expressions

(2) Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code . …. Declaration of Principle Policy for Canada with respect to young persons 3

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences. …. (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following. ….

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values. …. (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system. …. Act to be liberally construed

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). ....

Part 2 Organization of Youth Criminal Justice System Designation of youth justice court 13

(1) A youth justice court is any court that may be established or designated by or under

an Act of the legislature of a province, or designated by the Governor in Council or the lieutenant governor in council of a province, as a youth justice court for the purposes of this Act, and a youth justice court judge is a person who may be appointed or designated as a judge of the youth justice court or a judge sitting in a court established or designated as a youth justice court.

[emphasis added] Deemed youth justice court

(2) When a young person elects to be tried by a judge without a jury, the judge shall be a judge as defined in

section 552 of the Criminal Code , or if it is an offence set out in

section 469 of that Act, the judge shall be a judge of the superior court of criminal jurisdiction in the province in which the election is made. In either case, the judge is deemed to be a youth justice court judge and the court is deemed to be a youth justice court for the purpose of the proceeding. …. Court of record

(4) A youth justice court is a court of record. Exclusive jurisdiction of youth justice court 14

(1) Despite any other Act of Parliament but subject to the Contraventions Act and the National Defence Act , a youth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person, and that person shall be dealt with as provided in this Act. … Powers of youth justice court judge

(6) For the purpose of carrying out the provisions of this Act, a youth justice court judge is a justice and a provincial court judge and has the jurisdiction and powers of a

summary conviction court under the Criminal Code . …. When young person pleads guilty 36

(1) If a young person pleads guilty to an offence charged against the young person and the youth justice court is satisfied that the facts support the charge, the court shall find the young person guilty of the offence [emphasis added] …. Application by Attorney General 64

(1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years. Notice of intention to seek adult sentence

(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence.

…. Election — adult sentence 67

(1) The youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if …. (

b) the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence for an offence committed after the young person has attained the age of fourteen years; (

c) the young person is charged with first or second degree murder within the meaning of

section 231 of the Criminal Code ; or (

d) the person to whom

section 16 (status of accused uncertain) applies is charged with having, after attaining the age of fourteen years, committed an offence for which an adult would be entitled to an election under

section 536 of the Criminal Code , or over which a superior court of criminal jurisdiction would have exclusive jurisdiction under

section 469 of that Act. Wording of election

(2) The youth justice court shall put the young person to his or her election in the following words: You have the option to elect to be tried by a youth justice court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury.

If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried? …. Preliminary inquiry provisions of Criminal Code 67

(8) The preliminary inquiry shall be conducted in accordance with the provisions of

Part XVIII (procedure on preliminary inquiry) of the Criminal Code , except to the extent that they are inconsistent with this Act. …. Application of Criminal Code 140 Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons… [18] Relevant sections of the Provincial Court Act R.S.M. 1987, c. C275 (“ PCA ”) include: Jurisdiction 7 Every judge has jurisdiction throughout Manitoba and

(

a) shall exercise all the powers and perform all the duties conferred or imposed upon a judge by or under any Act of the Legislature or ofthe Parliament of Canada; (

b) has all the power and authority now vested by or under any Act of the Legislature in a justice of the peace or a juvenile, youth orfamily court or a judge thereof. [emphasis added] CASE LAW [19] In R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686 (“McIntosh”), at paragraph 29, the Supreme Court of Canada(SCC) observed that it “is a principle of statutory

interpretation that where two

interpretations of a provision which affects the liberty of asubject are available, one of which is more favourable to an accused, then the court should adopt this favourable

interpretation.” OtherSCC decisions, including R. v. S.J.L., 2009 SCC 14 (“S.J.L.”) (at paragraph 100), have repeated the same principle. [20] Defence counsel relied on Welch v. The King, (SCC), [1950] S.C.R. 412 (a pre-Charter case). The facts werecompletely different, but the case provided one example of a scenario in which the Crown could not prefer a DI. At p. 413, the majorityobserved that the Crown’s powers to directly indict “are not absolute”. [21] Defence counsel cited R. v. Grewal, 2020 SKQB 164 (“Grewal”), which provided a good

summary of the interplaybetween DIs and the abuse of process doctrines. The ratio of the decision was that the Crown could not prefer a DI in the middle of a PCtrial. In reaching this conclusion, the Court set out several important principles. Firstly, it explained at paragraph 54 that: …trial judges maintained a residual discretion jurisdiction to stay criminal matters in the case of an abuse of process. Such an abuse wasgenerally defined as

an act or omission that would violate the fundamental principles of justice underlying the community’s sense ofjustice and fairness…. [22] At paragraph 57, the Court added that, even in the Charter era, “the common law doctrine of abuse of process has not beencompletely extinguished.” [23] At paragraph 65, the Court added that, on “an abuse of process application the accused bears the onus to establish such an abuseof power.

The applicable standard of proof is on a balance of probabilities.” [24] At paragraph 67, the Court added the “defence need not establish actual bad faith or prosecutorial misconduct on the Crown’spart to invoke the abuse of process doctrine and seek a remedy.” [25] At paragraph 98, the Court observed that “the doctrine of abuse of process is broadly applicable to direct indictments”. [26] At paragraph 115, the Court concluded that “the Crown’s power to file direct indictments, while very broad, is not limitless.” [27] On the unique facts in Grewal, the Court concluded that the DI in that case was improper.

There was an abuse of process bothunder the common law and the Charter. Therefore, at paragraphs 119 and 168, the Court concluded that the DI was a nullity, void fromthe start. [28] At paragraph 170, the Court noted “the Charter principle that an adequate remedy short of stay should be granted wheneverpossible”. In Grewal, a trial had started in PC before the Crown abused the Court’s process by purporting to prefer a DI. Therefore, theCourt quashed the DI as a nullity, and remitted the case back for trial in the PC. [29] Defence counsel mentioned R. v. Poloni, 2009 BCSC 629 . The facts were unique.

A PC trial started with severalrulings on several voir dires, but the trial judge became too ill to continue, so a second PC judge was appointed. The second judge ruledthat the trial had to begin anew, but never had a chance to begin the new trial. The Crown preferred a DI. The ratio was that this factsituation was analogous to a mistrial. Under the circumstances, the Crown had authority to prefer a DI before the new trial began. TheCourt mentioned in passing that the power to prefer a DI is not unlimited. [30] The defence cited S.J.L. The case dealt with PIs for Young Persons under the YCJA.

The ratio was that Young Persons andadult co-accused cannot be tried together. Again, this case is an example in which the power to prefer a DI is not unlimited. [31] The Crown cited R. v. L.R.F. et al, 2005 NSSC 47 . The case confirmed at paragraph 21, that a PI judge may commitan accused for trial on the charges already laid, or on additional charges that might “materialize from the evidence presented.” (Thisprinciple is now included in s. 548(1)(

a) of the Code). [32] The Crown cited R. v. Burg and Khan, 2021 MBCA 77. At paragraphs 56-58, the Court endorsed the principle that the Crownmight save time by using a DI after a PI, rather than applying for a writ of certiorari. Also, at paragraph 59, the Court observed that “anaccused person is not entitled to a perfect process”. [33] The Crown cited R. v. Srianandan, 2019 ABQB 805 . The Crown disagreed with a PI judge’s decision to discharge anaccused. Rather than seeking certiorari, the Crown preferred a DI. At paragraph 18, the Court agreed with the Crown that this was alawful option.

[34] The Crown relied on R. v. Jones, (ON CA). The case dealt with a PI, a later DI and the rights of the accusedto bail. [35] The Crown relied on R. v. Cancor Software Corp. (C.A.), (ON CA). The accused were charged with certainIncome Tax Act, S.C. 1970-71-72, c. 63 (ITA), charges. The PI judge committed them to trial both on the ITA charges and certainCriminal Code charges in respect of the same transactions. The PI judge did not err. [36] The Crown relied on R. v. Jolivet, 2000 SCC 29. During a jury trial, the Crown announced that it planned to call a certainwitness. It changed its mind and did not call him.

The defence was given an opportunity to call him, but declined. The defence wantedto mention to the jury that the Crown had said it planned to call the witness but never did. The SCC made some general comments atparagraph 21 that the Crown may change its strategy subject to certain limitations. [37] Both counsel referred to R. v. Vuong, 2010 ONCA 798 (“Vuong”). No young offenders were involved. The accusedwas convicted of certain offences in a provincial court. He appealed on the basis that he was never put to his election under what wasthen s. 536(2) of the Code.

At paragraph 12, the judge asked the accused, “Are you going to be electing a preliminary hearing or atrial?” The accused replied, “No a trial.” The matter was adjourned for a pre-trial conference. A provincial court trial date was set. Eventually, the trial date arrived. The accused was arraigned and pled “not guilty”.

The trial started with no reference to s. 536(2). [38] At paragraph 33, the Court characterized what happened as “sloppy”. [39] However, at paragraph 31 the Court commented that, “in earlier days, what transpired in this case would be regarded as a fatalprocedural defect.” However, the Court continued, it was more in keeping with the “modern approach that emphasizes substance overform”. Therefore, the Court ruled that the accused waived the procedural safeguard in s. 636(2) with full knowledge of his rights.

Theconviction was upheld. [40] Other cases were included in documents filed by the parties, and I have carefully considered them all. ARGUMENT [41] Neither party attempted to argue that comments made at the CMC were forever binding on the respective parties. Indeed, such anotion would have undermined the positions of both parties. At the CMC, the Crown indicated that it would not be seeking a DI. TheYoung Person (through counsel) indicated that he wished to have a PI. Both counsel agreed that they would cooperate in scheduling aPI.

Both parties discussed manslaughter, and neither party mentioned murder, even in passing. [42] Of course, all counsel participating at a CMC are bound by professional codes of conduct, but neither counsel alleged anyunethical behavior of any kind by any counsel. [43] Comments made at a CMC might theoretically become relevant in terms of an eventual delay analysis (if the conduct of oneparty at the CMC somehow caused some delay in the eventual scheduling of a trial), but that is not an issue before us. [44] The Crown correctly pointed out s. 548(1)(

a) of the Code. The Crown said that defence counsel must have known that, if a PIwere held, the PI judge might theoretically commit the Young Person for trial on a murder charge. Defence counsel did not deny thisobvious point. [45] Defence counsel argued that the Court must give effect to ss. 576(1) and 610(2) of the Code. After the PCJ accepted the YoungPerson’s guilty plea to the manslaughter charge, the Crown purported to prefer a DI of murder against the Young Person. The Codesimply does not allow this. [46] At the hearing, I asked the Crown to comment about s. 610(2).

Crown counsel replied that the PCJ never had jurisdiction toaccept the Young Person’s guilty plea. The Crown relied on s. 537(1) of the Code, which sets out the powers of a judge conducting a PI. That

section does not explicitly mention the power to accept a guilty plea. [47] Defence counsel replied that there never was a PI. The anticipated PI never began. Therefore, the PCJ who accepted the guiltyplea was never a PI judge. He was a PCJ who had obvious jurisdiction to accept guilty pleas (subject to certain exceptions which areirrelevant to this case). [48] Defence counsel emphasized that he was not accusing the Crown of acting in bad faith.

The Crown’s intentions may have beengood, but the Crown interpreted the legislation incorrectly. [49] Defence counsel made it clear that the defence was not arguing for a stay of proceedings. It was merely asking that the Courtgrant a remedy giving effect to the proper guilty plea to manslaughter. The parties should take all steps necessary to

schedule asentencing hearing so that the Young Person can be sentenced for manslaughter. DECISION [50] This was a case of first impression. [51] No one disputes that the Crown has broad powers to prefer DIs under many circumstances. However, the common law and s.576(1) of the Code make it crystal clear that the power to prefer a DI is not unlimited. If it were, s. 576(1) would be absurd. [52] On its face, s. 610(2) of the Code determines the outcome of this application. Again, the

section reads: Effect of previous charge of murder or manslaughter

(2) A conviction or an acquittal on an indictment for murder bars a subsequent indictment for the same homicide charging it as

manslaughter or infanticide, and a conviction or acquittal on an indictment for manslaughter or infanticide bars a subsequent indictment for the same homicide charging it as murder. ” [emphasis added] [53] The Crown did not attempt to argue that s. 610(2) was ambiguous in any way. Even if it were somehow ambiguous, general principles of statutory

interpretation (as articulated in McIntosh ) combined with s. 3(2) of the YCJA dictate that any ambiguity must be resolved in favor of the Young Person. [54] The Crown’s cases about certiorari applications after a PI is held are well and good, but not applicable to our case. [55] The Crown is correct that it may properly change its strategy as a trial progresses. This too is not relevant to our case. [56] Essentially, the Crown’s only argument was that the judge who purported to accept the Young Person’s guilty plea had no jurisdiction to do so, because PI judges do not have authority to accept guilty pleas.

The Crown relied on s. 537(1) of the Code . If that argument were correct, there never was a valid guilty plea to manslaughter, and s. 610(2) never came into effect. Therefore, the DI must have been valid pursuant to the Crown’s general broad authority to prefer DIs. [57] Defence counsel observed that the PCJ who accepted the guilty plea was never a PI judge because no PI ever began. At the CMC, both parties discussed a PI, and both parties fully anticipated that a PI would begin on December 14, but it never did. By definition, a PI cannot begin until the accused makes their election (as per s. 67 of the YCJA ).

The Young Person never made an election before December 14. [58] I begin by stating the obvious: comments made by counsel at the CMC do not amount to an “election” as set out in ss. 67(1) and (2) of the YCJA . Among other things, a young person is not present at the CMC.

Section 67 does not purport to give a young person the option of making an election in absentia at a CMC. [59] I conclude that the PI never began. The PCJ present on December 14 had jurisdiction to accept the Young Person’s guilty plea, as per s. 36(1) of the YCJA and the definition sections of the Code and the YCJA . The PCJ was a youth justice court as set out in s. 13(1) of the YCJA . [60] It is common ground that the Crown never appealed the PCJ’s decision to accept the guilty plea to manslaughter.

The general elementary principle is that a decision never appealed stands. [61] The Crown’s decision to prefer a DI for second degree murder was essentially a collateral attack upon the PCJ’s decision to accept the guilty plea (although neither counsel used the term “collateral attack”). [62] Although the Application was argued as an alleged abuse of process contrary to s. 7 of the Charter , the first part of the Application can be determined as a simple matter of statutory

interpretation. In short, I find that the Crown purported to do something that s. 610(2) explicitly barred it from doing. The Young Person proved this argument on a balance of probabilities. [63] It is not necessary to determine whether there would have been an abuse of process if s. 610(2) did not exist. [64] The Crown has broad discretion to prefer DIs. Defence counsel never argued otherwise. If the Crown had preferred a DI before December 14, we would not be here today. [65] Incidentally, Vuong helps the defence more than it helps the Crown. In Vuong , although the relevant election

section of the Code was never read aloud in full, the accused said in open court that he wanted a (provincial court) trial, not a PI. The Court gave effect to the substance of that statement. In our case, there is no dispute that the Young Person (through counsel) said in open court that he wanted to plead guilty to manslaughter immediately before the PCJ who was present. I give effect to the substance of that choice. [66]

Section 610 does not explicitly say what remedies the accused can access if the Crown attempts to violate s. 610(2). This is where ss. 7 and 24(2) of the Charter come into play.

Section 7 guarantees the liberty (and security of the person) interests of the Young Person. Section 24(1) says: Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” [emphasis added] [67] By violating s. 610(2) of the Code , I find that the Crown violated the Young Person’s liberty (and security of the person) interests under s. 7 . The Young Person is therefore entitled to an appropriate and just remedy under s. 24(1) of the Charter . [68] Whether expressed as a common law principle (of statutory

interpretation) or as the first part of a remedy under s. 24(1) of the Charter , the first part of the appropriate remedy is a declaration that the DI was a nullity. [69] Defence counsel made it clear that the Young Person was not seeking a stay of all proceedings. Rather, the Young Person

wanted a remedy that would give effect to his proper guilty plea to the charge of manslaughter, so that the parties could proceed to sentencing without further delay. [70] I find defence counsel’s submissions to be eminently reasonable. The Young Person pled guilty to manslaughter, a PCJ with jurisdiction accepted the plea and the Crown never appealed. I find that the appropriate and just remedy under s. 24(1) of the Charter is to give practical effect to the guilty plea to manslaughter.

The Young Person proved this argument on a balance of probabilities. [71] The parties shall take every practical step necessary to proceed to sentencing on the manslaughter charge. This approach is consistent with the approach taken by the court in Grewal . [72] When I gave my oral decision at the end of the hearing, counsel addressed the issue that the Young Person was in custody and that the Crown did not want him to be inadvertently released from custody following my oral decision. Defence counsel acknowledged the Crown’s reasonable concern.

I suggested that I might suspend my decision by a week, so as to give the Crown ample time to make necessary arrangements. Suspension of a Charter decision is a common, well-accepted Charter remedy. Both the Crown and defence counsel felt that this would be prudent. Therefore, I suspended my decision until 4:30 p.m. on November 23, 2023. [73] In

summary, (

a) the DI was a nullity; (

b) the parties shall cooperate to proceed to sentencing on the manslaughter charge; and (

c) my decision is (was) suspended until November 23, 2023. [74] I thank counsel for their efficient use of time and for their courtesy. ______________________ Leven J.