) ) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 3064

CITATION : R. v. D.M.G., 2013 ONSC 3064 COURT FILE NO.: 12947-12 DATE: 2013-05-24 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – D.M.G Applicant ) ) ) ) ) ) ) ))) N. Young, for the Crown T. A. Balka, for the Applicant ) ) HEARD: May 24, 2013 Justice B.A. Glass Application for an Order Permitting the Applicant to Proceed to a Preliminary Inquiry and Subsequent Trial by Judge and Jury Order Banning Publication of the Name of the Complainant or Any Information That Might Identify the Complainant.

This Includes the Name of the Applicant Because That Publication Would Identify the Complainant [ 1 ] The Applicant pled not guilty in the Ontario Court of Justice to counts of sexual interference and sexual assault. He then appealed a conviction based on ineffective legal representation at trial after being found guilty and was in effect sentenced to 15 months in custody. He had served 141 days of pre-trial custody and was given credit for 282 days. He then was to be incarcerated for an additional 168 days.

The Applicant was successful at the Ontario Court of Appeal in having his conviction overturned and being granted a new trial. The application is before the Superior Court, as a court with concurrent jurisdiction to the Ontario Court of Justice. The Applicant seeks to have a preliminary inquiry and an election to trial by judge and jury. That is opposed by the Crown.

The issue arose at the Ontario Court of Justice upon the proceeding being addressed after the decision of the Court of Appeal was released. [ 2 ] The Ontario Court of Appeal granted the appeal against conviction because trial counsel services had been deficient to such an extent that the allegations ought to be re-visited with a new trial. [ 3 ] The issue is whether the Applicant can return to the Ontario Court of Justice and make an election to have a judge and jury trial with a preliminary inquiry. The notice of appeal had been silent on that point.

The decision from the Ontario Court of Appeal was silent on the point. [ 4 ] The Applicant seeks an order from the Superior Court of Justice as a court with concurrent jurisdiction to the Ontario Court of Justice. He also submits that if

section 686 of the Criminal Code is silent to the extent that the Court of Appeal would not have jurisdiction to make an order now, then the Superior Court can make an order pursuant to section 24(1) of the Charter based upon an infringement of the

section 7 and 11(

d) and 11(

f) Charter rights. The Applicant asks that

section 686 of the Code be read down to accommodate a re-election to have a preliminary inquiry and then a judge and jury trial if there is a committal for trial. [ 5 ] If the Ontario Court of Appeal granted the appeal and ordered a new trial based on trial counsel providing inadequate legal services, can one read into the decision of the Ontario Court of Appeal that an order for a new trial means he is back to the start of the legal process whereby he can make an election for the manner of trial he wants such as a trial by judge and jury and then be entitled to a preliminary inquiry? [7] Should this court read down s. 686 of the Code to mean that in this case it is interpreted to mean that a new trial automatically takes the Applicant back to the Ontario Court of Justice at the stage prior to electing the mode of trial?

T here is no need to read down the

section of the Code. [8] What authority other than by way of the Charter and s. 24(1) allows the Superior Court of Justice to remit the case to the Ontario Court of Justice at a stage prior to election? None. The Charter is the only way with the possible exception of the Crown preferring an indictment and going directly to the Superior Court of Justice. [9] This case is a rare situation. Under 24(1), if the appellate decision only takes the Applicant back to the commencement of the

trial after an election, the Superior Court of Justice can find that such is an unreasonable

interpretation. It would create a situationcontrary to

section 7 regarding the life liberty and security of the person and

section 11(

f) right to a judge and jury trial when thepenalty is liable to be greater than 5 years because he got to that situation with inadequate legal counsel. Surely a finding at the Court ofAppeal that counsel performed legal services below standard warranting another trial is to be interpreted to mean that the lack ofadequate legal service included making an election to have a trial in the Ontario Court of Justice or with a judge and jury. [10] R. v.

Stinchcombe (SCC), [1991] 3 S.C.R. 326 provides that an accused person is not required to make anelection for a mode of trial nor enter a plea until full disclosure has been made. That had not occurred here. Counsel did not have alldisclosure, had not reviewed it with the Applicant, a proper election was not made at the Ontario Court of Justice. [11] I find that the Superior Court of Justice may grant s. 24(1) relief because the Applicant would be denied right to trial with ajudge and jury thereby jeopardizing the Applicant’s life, liberty and security. The only reasonable

interpretation of the Ontario Court ofAppeal decision is that this Applicant is to return to the Ontario Court of Justice for a new trial because his counsel did not provideadequate legal representation; however, since the same counsel was involved with the election to method of trial, the decision must takethe Applicant to the pre-election stage. Pursuant to s 24(1) of the Charter, the Applicant’s rights pursuant to ss. 7 and 11(

f) would beinfringed if he were not back to the beginning of the process with an election to the method of trial be available. Since the penalty for theoffences is greater than 5 years, s 11(

f) permits a trial by judge and jury following a preliminary inquiry if the Applicant is committed fortrial. [12] There will be an order that relief is granted pursuant to s. 24(1) of the Charter whereby the proceeding will return to the OntarioCourt of Justice with the Applicant being at the pre-election stage whereby he will be able to elect his method of trial either at theOntario Court of Justice or at the Superior Court of Justice with a judge and jury or judge alone.

This enables the Applicant to have apreliminary inquiry at the Ontario Court of Justice unless the Crown prefers an indictment. [13] I do not read down s. 686 of the Criminal Code to mean that whenever a person is granted a new trial in Ontario Court ofJustice where an election to a Superior Court judge alone or judge and jury trial might be selected, the

section takes the proceeding to thepre-election stage in the Ontario Court of Justice. This case is fact driven. Conclusion [14] It is ordered that the Applicant is to appear at the Ontario Court of Justice to make an election for his mode of trial. Should heelect trial by judge and jury or judge alone in the Superior Court of Justice, he will have the opportunity to have a preliminary inquiry. Justice B.A. Glass Released: May 24, 2013 Copy and Paste Citation/Style of Cause DELETE EXTRA LINE SPACE IF APPLICABLE

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Copy and Paste from Party/Defandant DELETE EXTRA LINE SPACE IF APPLICABLE REASONS FOR JUDGMENT Judge Released: [Click and Type Date]