R v Branscombe, 2017 SKCA 71

Court of Appeal for Saskatchewan Docket: CACR2891 Citation: R v Branscombe , 2017 SKCA 71 Date: 2017-09-01 Between: Her Majesty The Queen Appellant And Brent Blaine Branscombe Respondent Before: Caldwell and Whitmore JJ.A. and Wilkinson J. ( ad hoc ) Disposition: Allowed in part Written reasons by: The Honourable Madam Justice Wilkinson In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Whitmore On Appeal From: 2016 SKQB 394 , Melfort Appeal Heard: June 16, 2017 Counsel: W. Dean Sinclair, Q.C., for the Appellant Grant Carson for the Respondent Wilkinson J. ( ad hoc ) I. Introduction [ 1 ] This is a Crown appeal from a finding, on a

summary conviction appeal, that the joint trial of an indictable and a

summary conviction offence in Provincial Court constituted a nullity because the respondent did not receive his right to elect his mode of trial. [ 2 ] In a single information, the respondent, Mr. Branscombe, was charged with committing two weapon-related offences. Count 1 in the information was a hybrid offence (sometimes referred to as a dual procedure or Crown option offence) whereby the Crown can elect to proceed either by indictment or

summary conviction. Count 2 was an indictable (electable) offence, for which the respondent had the right under s. 536(2) of the Criminal Code [ Code ] to elect his mode of trial, whether by provincial court judge, Queen’s Bench judge alone, or Queen’s Bench judge and jury. [ 3 ] In error, the Crown elected to proceed summarily on both counts. As a result, the respondent did not receive his right of election on the indictable (electable) offence in count 2. [ 4 ] The trial on both counts proceeded before a Provincial Court judge (trial judge).

After the close of evidence, but before argument was heard, the error was discovered. The trial judge invited submissions from counsel. The defence argued for a mistrial and dismissal of the charges on the grounds of an abuse of process. [ 5 ] After hearing argument, the trial judge determined that, notwithstanding the flawed election on the indictable (electable) offence, she continued to retain jurisdiction with respect to the hybrid offence upon which the Crown had elected to proceed summarily.

While the Crown’s election in relation to count 2 was a nullity, the count itself remained a viable, indictable charge. She adjourned the matter of count 2 to a subsequent date, to allow the respondent to make his election thereto under s. 536(2) of the Code . She convicted the accused on count 1 and likewise adjourned that matter for sentencing. [ 6 ] On the adjourned date, the respondent was put to his election on count 2. He elected to be tried by Queen’s Bench judge alone and waived his right to a preliminary hearing, but reserved his right to argue that the proceedings constituted an abuse of process.

He was committed for trial in the Court of Queen’s Bench. The trial judge then dealt with the sentencing on count 1, imposing a conditional sentence and probation. [ 7 ] The respondent appealed the entirety of the trial judge’s disposition to the Court of Queen’s Bench under the

summary conviction appeal procedure in

Part XXVII of the Code . His notice of appeal raised six grounds of appeal relating to the conviction and sentence on count 1, and asserted that the trial conducted on count 2, in the absence of an election under s. 536(2) of the Code , constituted an abuse of process. [ 8 ] On appeal, the

summary conviction appeal judge (appeal judge) concluded that the procedural irregularity in relation to s. 536(2) of the Code had resulted in a misjoinder of offences for trial, an irregularity that could not be saved by the curative provisions in s. 686(1) (b)(iv) of the Code . Consequently, he determined that the trial judge was without jurisdiction in the matter and that the entire trial in Provincial Court was a nullity. The appeal judge set aside the conviction and sentence on count 1, and ordered a new trial on both counts in the information. [ 9 ] The Crown appeals from that decision.

The Crown’s principal argument is that, on a proper understanding of the law in relation to severance, there could be no jurisdictional failure with respect to the hybrid offence in count 1, the offence upon which the Crown elected to proceed summarily. The Crown acknowledges that the procedural irregularity affecting count 2, the indictable (electable) offence, resulted in the proceedings on that count being a nullity, but maintains that the count itself was not nullified.

It is the Crown’s position that the trial judge was obliged by law to sever count 2 from the information and put the respondent to his election under s. 536(2), as severance is permissible at any stage of a trial before adjudication has been made on the merits. Additional grounds of

appeal are that the appeal judge decided the matter on a jurisdictional ground not raised or argued by the parties and that the appealjudge had no jurisdiction to deal with the indictable offence in count 2 in a

summary conviction appeal. [10] The respondent takes no issue with the Crown’s position in relation to count 1. He agrees there was no jurisdictional failureand, as such, that all matters affecting count 1 should be remitted to the appeal judge for consideration of the specific issues raised in therespondent’s notice of appeal dated August 31, 2015.

With respect to count 2, the respondent contends the appeal judge had jurisdictionin the matter by virtue of s. 813 of the Code, but erred in failing to address the question of whether the trial judge’s disposition of count 2amounted to an abuse of process. [11] I have concluded, with some qualification, that the Crown’s position in the matter of count 1 is correct, while the respondent’sposition in the matter of count 2 is correct. Consequently, the grounds of appeal, as raised in the respondent’s notice of appeal, wereappropriately before the appeal judge for determination.

The issues raised by the respondent went unaddressed in light of the appealjudge’s declaration that the entirety of the proceedings in Provincial Court constituted a nullity. For the following reasons, the Crown’sappeal is allowed in part. The order of the appeal judge is set aside. The matter will be returned to the appeal judge for consideration ofthe grounds of appeal raised in the respondent’s notice of appeal dated August 31, 2015. II. BACKGROUND [12] Within a single information, the respondent, Mr. Branscombe, was charged with two separate counts.

Count 1 (pointing afirearm contrary to s. 87(2) of the Code) is a hybrid offence. Count 2 (possession of unlicensed firearms contrary to s. 92 of the Code) isan indictable offence for which Mr. Branscombe had a right to elect his mode of trial under s. 536(2) of the Code. [13] The information alleges that Mr. Branscombe pointed a firearm at a process server and that a short time afterward he wasfound in possession of a number of unlicensed firearms. [14] The Crown elected to proceed summarily on both counts and Mr.

Branscombe was never put to his election under s. 536(2) ofthe Code with respect to the indictable offence. The trial on both counts proceeded in Provincial Court. At the conclusion of theevidence, but prior to argument, the omission was uncovered. [15] Defence counsel argued for declaration of a mistrial and a judicial stay of further proceedings on the grounds that there hadbeen an abuse of process.

He relied on R v Abramczuk (1982), (ON SC), 37 OR (2d) 336 (H Ct J) [Abramczuk],where, in relation to the indictable (electable) offence of possessing a weapon for a dangerous purpose, there had been an invalid electionby the Crown to proceed summarily and the accused had not been put to his election regarding his mode of trial. The error wasdiscovered after the accused had testified, but during his cross-examination.

A mistrial was declared, and a judicial stay of proceedingswas entered on the grounds there had been an inadvertent abuse of process. [16] Without delving into the respondent’s argument, the trial judge indicated that she preferred the reasoning in R v Shia, 2015ONCA 190, 320 CCC (3d) 111 [Shia]. There, an indictable (electable) offence of production of marijuana erroneously proceeded by wayof

summary conviction and the accused was not put to his election under s. 536(2) of the Code. The accused pled guilty and sentencewas imposed. He subsequently appealed on the ground that his guilty plea was uninformed. On appeal, the Ontario Court of Appealdetermined that the presiding judge had no jurisdiction in the matter as a result of the procedural irregularity and that s. 686(1)(b)(iv) ofthe Code could not be applied to preserve the finding of guilt. A new trial was ordered.

However, an argument in relation to an abuse ofprocess was never raised in Shia and the procedural irregularity related to s. 536(2) was raised for the first time on appeal. [17] The trial judge in this case effectively concluded that it was appropriate to sever the two counts in the information, therebyretaining jurisdiction over the s. 87(2)

summary conviction offence in count 1. She adjourned the indictable (electable) offence in count2 for the purpose of allowing the respondent to elect his mode of trial. She proceeded to find the respondent guilty on count 1, which sheconcurrently adjourned for sentencing. The respondent received a four-month conditional sentence and six months’ probation on count 1,a sentence that had been fully served as at the time of the present appeal. [18] On the indictable offence in count 2, the respondent elected trial before a Queen’s Bench judge without a jury.

He waived hisright to a preliminary hearing and was committed for trial, but reserved his right to argue that an abuse of process had tainted theproceedings below. He then appealed the trial judge’s disposition in its entirety, by way of a

summary conviction appeal to the Court ofQueen’s Bench. [19] The appeal judge properly framed the issue before him as being “the extent to which the Provincial Court trial judge hadjurisdiction to try and convict Mr. Branscombe in respect of count 1 under the Information when Mr. Branscombe was not provided withhis right of election in respect of Count 2, a purely indictable offence”. [20] After comprehensively reviewing the case law, the appeal judge reached a number of conclusions, which I summarize asfollows:

(1) The proceedings in Provincial Court attracted appellate review under the

summary conviction appeal procedures, as the trialhad proceeded summarily on both counts.

(2) Where an information includes more than one count, an accused is required to elect to the information as a whole, absent aseverance application.

(3) No severance application was made in the matter.

(4) Summary conviction offences and indictable offences within the same information can only be tried together if therequirements for joinder have been met, as outlined in R v Clunas, (SCC), [1992] 1 SCR 595 [Clunas]. The

requirements are: (

a) that it is in the interests of justice to do so and the charges could initially have been jointly charged; and (

b) theaccused has clearly, unequivocally and with full understanding of his rights waived his right to be tried in a higher court.

(5) The Clunas requirements were not met in this case. The result was an improper joinder of offences for trial, a proceduralirregularity that could not be saved by the curative provisions of s. 686(1)(b)(iv) of the Code.

(6) The entire trial was therefore a nullity. The conviction on count 1 should be set aside and a new trial directed on both counts,subject to Mr. Branscombe being put to his election under s. 536(2) of the Code. [21] The Crown appealed the decision of the appeal judge. In the meantime, the indictable matter, the offence represented bycount 2, has progressed through to a pre-trial conference in the Court of Queen’s Bench. A trial date has not been assigned, the matterhaving been placed on hold pending the outcome of this appeal. III. THE GROUNDS OF APPEAL [22] The Crown raises the following errors on the part of the appeal judge:

(1) He erroneously raised a new issue on appeal, namely, the question of jurisdictional error in relation to both counts, when thatissue had never been the subject of Mr. Branscombe’s

summary conviction appeal.

(2) He erred in deciding that the trial judge had no jurisdiction to try and convict the respondent for the

summary convictionoffence due to the flawed election on the indictable offence, given that the trial judge was entitled to sever the counts at any stage,pursuant to s. 591(3) of the Code.

(3) He had no appellate jurisdiction with respect to count 2 because (

a) appeals lie to the Court of Appeal in indictable mattersand only with respect to convictions; and (

b) the trial judge’s disposition on count 2, being a committal for trial, could not be challengedother than by way of prerogative writ. IV. the crown’s argument [23] The Crown says, firstly, that the conviction on count 1 was quashed by the appeal judge on grounds that were not advanced orargued by either party at trial or on the

summary conviction appeal. Secondly, it says that the procedural irregularity on the indictable(electable) offence did not affect the trial judge’s jurisdiction to try the respondent on the

summary conviction offence, as the trial judgehad the right in law to sever the counts at any stage of the trial. Thirdly, it says the appeal judge purported to exercise appellatejurisdiction over an indictable offence, which he was not empowered to do on a

summary conviction appeal. [24] On the concluding point, the Crown notes that the appeal judge may not have been aware that, at the time the

summaryconviction appeal was heard, the respondent had already elected to the indictable offence in count 2 and consented to his committal tostand trial. The Crown states that no mention of this fact appears in the appeal judge’s decision. Instead, the appeal judge directed a newtrial on both matters subject to Mr. Branscombe’s right of election on count 2, a right that had already been exercised. [25] In

summary, the Crown’s main points are these:

(1) The respondent did not appeal the

summary conviction matter on jurisdictional grounds or argue that the proceduralirregularity in relation to the indictable offence invalidated the entire trial. The appeal judge raised a new issue on appeal, which isimpermissible unless the failure to do so would risk an injustice: R v Mian, 2014 SCC 54, [2014] 2 SCR 689 [Mian].

(2) An accused may be charged in a single information, with an indictable offence and a

summary conviction offence: R vSciascia, 2016 ONCA 411 at para 55, 336 CCC (3d) 419 [Sciascia], leave to appeal to SCC allowed, [2016] 2 SCR xi.

(3) Each count may be treated as a separate information or indictment: Code, ss. 591(2) and 795.

(4) A court may order the counts to be tried separately in the interests of justice: Code, ss. 591(3) and 795.

(5) The mistake made by proceeding summarily on an indictable offence rendered the trial of the indictable offence a nullity,but did not render the charge a nullity: R v Dudley, 2009 SCC 58 at para 43, [2009] 3 SCR 570 [Dudley]; and, Shia at para 24.

(6) Pursuant to s. 591(3) of the Code, the trial judge was entitled to sever the offences at any stage of the trial.

(7) Summary conviction appeals are reserved exclusively for appeals of

summary conviction offences: Code,

Part XXVII(Summary Convictions).

(8) The Court of Appeal has exclusive jurisdiction to hear appeals in relation to indictable offences: Code,

Part XXI (Appeals –Indictable Offences).

(9) It is the nature of the offence, and not the nature of the proceedings, that determines the appropriate appellate forum: Shia atpara 24; and, R v Yaworski (1959), (MB CA), 124 CCC 151 (Man CA) at 153–154 [Yaworski].

(10) An order committing an accused to stand trial is not appealable under either

Part XXI or

Part XXVII of the Code and can onlybe attacked by way of prerogative writ and an application to quash the committal order: R v Forsythe, (SCC), [1980] 2SCR 268 at 271.

V. THE RESPONDENT’S ARGUMENT [ 26 ] Mr. Branscombe takes no material issue with the Crown’s arguments in respect of the

summary conviction offence in count 1. He agrees with the Crown that the appeal judge quashed the conviction on count 1 on grounds not raised in argument, either at trial or on

summary conviction appeal. He consequently agrees that the Crown’s appeal should succeed on count 1. The

summary conviction offence should be remitted to the appeal judge for determination of the grounds specifically raised by the respondent’s notice of appeal dated August 31, 2015.

These centred on whether the evidence established that he had pointed a firearm, whether the firearm met the legal definition of a “firearm”, whether the trial judge made errors in her credibility findings, and whether the sentence imposed was unreasonable and excessive. [ 27 ] With respect to his appeal of the trial judge’s disposition on the indictable offence, the respondent says his ground of appeal in that regard was that an abuse of process had occurred in Provincial Court. He submits that s. 813 of the Code , dealing with general rights of appeal from adjudications made in

summary conviction proceedings, is unique in this sense: it authorizes an appeal by a defendant from a conviction or order made against him. As such, he was entitled to appeal the trial judge’s refusal to declare the proceedings an abuse of process, and the appeal judge similarly erred in failing to give any consideration whatsoever to this ground of appeal. [ 28 ] The respondent relies on Abramczuk and R v Spence , 2001 BCCA 521 , 46 CR (5th) 387 [ Spence ], for the proposition that the proceedings constituted an abuse of process warranting a judicial stay.

In Spence , the appellant had been declared “not criminally responsible by reason of mental disorder” (NCRMD) in relation to eleven offences. In addition to failures in the election procedures under s. 536(2) of the Code , there were a host of other serious procedural defects and a concession by the Crown that the facts tendered at the hearing did not provide support for four of the eleven counts charged. The appellant in that case had spent three months in custody and another year in NCRMD detention.

It was these considerations amounting to a clear miscarriage of justice that moved the Court to impose a judicial stay on appeal. [ 29 ] The Crown notes that the Abramczuk decision was overturned by the Ontario Court of Appeal without reasons, on October 20, 1982, as outlined in R v Quinn , 1983 CarswellOnt 2380 (WL) (Co Ct) . VI. ANALYSIS [ 30 ] Before us, the Crown proposed that the first and second grounds of appeal required no consideration in light of the respondent’s concessions.

As tempting as that proposal might be, we have before us a determination by the appeal judge, with considered reasons, that the trial of the two offences together, without an election by the respondent on the indictable offence, constituted an irredeemable nullity at law. Because a question of jurisdictional failure is at issue, the question merits some examination, if only to endorse the propriety of the parties’ position that a loss of jurisdiction did not occur. That is the predicate to returning the

summary conviction matter to the appeal judge for determination. Should the appeal judge’s assessment of the matter withstand examination, it is doubtful that a legal nullity, extinct of all substance, is capable of resuscitation simply upon the acquiescence of the parties. To those not steeped in the arcana of criminal procedure, it is not a self-evident proposition that the respondent’s concession of the Crown’s argument is sufficient for us to sidestep these issues entirely. For that reason, I believe it is incumbent upon us to examine the propositions advanced by the Crown and conceded by the respondent.

(1) Did the appeal judge err in raising a new issue on appeal, namely, the question of jurisdictional error in respect of both counts in the information? [ 31 ] I will address, firstly, the respondent’s concession that the appeal judge embarked on a new issue not raised or argued by either party to the

summary conviction appeal. I find that proposition to be a doubtful one. I would note that in Mr. Branscombe’s memorandum of argument to the appeal judge, he raises this specific issue at page 5: C. Did the trial judge have jurisdiction to continue dealing with the information after determining that the Crown had proceeded through trial without election on a purely indictable offence? [ 32 ] The jurisdictional issue was squarely before the appeal judge.

The respondent was simply arguing for a different remedy than the one that the appeal judge thought appropriate, namely, dismissal of the charges for an abuse of process as opposed to an order for a new trial. For its part, the Crown put forward the argument that the trial judge’s decision to sever the counts was correct, although it offered no legal analysis in support of its argument. It was in this context that the appeal judge approached the jurisdictional issue.

True, the appeal judge did not adopt the parameters or characterizations favoured by counsel, but that does not make it a “new issue” that was raised on the appeal judge’s own motion.

The jurisdictional issue was not raised in the judge’s own motion, nor in a way, or at a stage, that could have resulted in procedural prejudice to either party, in the manner proscribed by Mian . [ 33 ] I note, too, that in Shia , the appellant’s grounds of appeal did not raise the question of jurisdictional error arising from the trial judge’s failure to put him to his election on the indictable (electable) offence of producing marijuana. There, the appellant appealed on the sole ground that his guilty plea was uninformed. The Ontario Court of Appeal raised the jurisdictional issue of its own accord.

It held that the trial judge had no jurisdiction to try the appellant or accept his guilty plea in the absence of an election by the appellant under s. 536(2) of the Code . [ 34 ] Where a jurisdictional error has been committed, curable or incurable, a court can and should raise the issue in its role as an independent, impartial overseer. Matters of jurisdiction profoundly affect the administration of justice. [ 35 ] The respondent’s concession on the first ground is not in keeping with the facts or consonant with the applicable law. I see no merit to this ground of appeal.

(2) Did the appeal judge err in deciding that the trialjudge had no jurisdiction to try and convict the respondent forthe

summary conviction offence due to the flawed election onthe indictable offence, given that the trial judge was entitled tosever the counts at any stage, pursuant to s. 591(3) of the Code? [36] As noted in R v Albert, 2014 NBCA 27, 419 NBR (2d) 307, an accused person has an imposing interest in being able to electtheir mode of trial, including a trial by jury, an interest that is met by s. 536(2) of the Code.

The Court’s comments, at paragraph 18,encapsulate the jurisdictional implications: As a general rule, the Provincial Court acquires jurisdiction to act upon a plea in relation to an indictable offence triable by judge andjury only once the accused has chosen trial in Provincial Court after being put to an election in the manner prescribed by s. 536(2) of theCriminal Code: Trites v. R., 2011 NBCA 5, [2011] N.B.J. No. 12 (QL). Lack of jurisdiction over the offence entails, almost invariably,reversal on appeal.

One of the outcomes could be a new trial, a process that will necessarily occasion a significant expenditure of sparsepublic and personal resources.

Moreover, a re-trial, with the potential for the emergence of a new set of circumstances (unavailability ofwitnesses, loss of evidence, faded memories, etc.) might jeopardize society’s interest in the determination of proceedings on the merits.Alive to this reality, and absent exceptional circumstances, judges of the Provincial Court rarely overlook the dictates of s. 536(2). … [37] The weight of authority is clear, at least insofar as an information deals with an indictable (electable) offence alone.

Absentwaiver, a failure to put an accused to an election under s. 536(2) results in a loss of jurisdiction to conduct a trial, which cannot beremedied by the application of the curative provision in s. 686(1)(b)(iv) of the Code. A new trial is required: See, R v Mitchell (1997), (ON CA), 121 CCC (3d) 139 (Ont CA) at para 28 [Mitchell]; R v Varcoe, 2007 ONCA 194, 219 CCC (3d) 397[Varcoe]; and, Shia at para 39. Shia and Varcoe addressed the effect of the failure to give an accused an election on an informationcontaining a single, indictable (electable) offence.

Mitchell was ultimately decided on the basis the accused had waived his right ofelection. [38] Less explicit is the situation that arises here, involving an information containing an indictable (electable) offence (over whichthe trial judge had no jurisdiction unless the accused elected to be tried in Provincial Court) coupled with a hybrid offence (over whichthe trial judge had jurisdiction by virtue of the Crown’s election to proceed summarily).

In this context, there is some unease regardingthe procedural standards that apply. [39] The issue, correctly identified by the appeal judge, was whether the trial judge had jurisdiction to sever the counts and convicton the

summary offence when the respondent was not afforded his right of election in respect of the accompanying indictable offence.The appeal judge ultimately concluded that the trial judge did not have the necessary jurisdiction because the respondent was required tomake his election on the information as a whole and there had been no application to sever the counts. The result, in his view, wasmisjoinder of a

summary conviction offence and an indictable offence for trial absent an inquiry of the kind mandated in Clunas. [40] Prior to Clunas, there was an absolute prohibition against joining a

summary conviction offence and an indictable offence in asingle trial. Clunas now permits joinder, but only if a court is satisfied it is in the interests of justice to do so and there is no prejudice tothe accused. This inquiry is essential before a trial judge acquires jurisdiction to preside over a trial joining a

summary convictionoffence with an indictable offence. Further,

summary conviction offences should be joined with indictable offences only where theaccused has waived the right to be tried in a higher court, with or without a jury, and has also forgone his right to a preliminary hearing.In short, joinder may only occur where a trial on the indictable offence is to take place before the provincial court. [41] In its factum, the Crown says that the issue was correctly stated by the appeal judge, but wrongly decided – this is due in largepart to confusion regarding the issues of joinder and severance. The Crown asserts that, in the circumstances, the trial judge was legallyrequired to sever the counts pursuant to s. 591(3) of the Code. That

section provides that a court may order counts in an information tobe tried separately if satisfied that the interests of justice require separate trials. The Crown’s argument necessarily presumes that the“interests of justice” assessment, including consideration of any prejudice to the accused arising from the severance, was appropriatelyundertaken in the process. [42] The appeal judge was concerned, firstly, with the procedural principle requiring an accused to make a single election to allcounts in an information.

As noted in Tim Quigley, Procedure in Canadian Criminal Law, loose-leaf (2016-Rel 5) 2d ed (Toronto:Thomson Reuters, 2014) at 13-6, an accused must elect to the entire information before the court and cannot elect different trial courtsfor different counts in the same information. To do so “would amount to severance of counts without satisfying the criterion thatseverance under subsection 591(3) [of the Code] must be in ‘the interests of justice’”.

Among the cases cited in support are R v Shrader(1992), (SK CA), 69 CCC (3d) 380 (Sask CA) [Shrader]; and, R v Okell, 2006 SKCA 34, 206 CCC (3d) 513 [Okell]. [43] In Shrader, at page 384, Wakeling J.A. explained that the concept of a single election to an entire information “avoids theillogical and inefficient prospect of having separate trials in different forums for each count of an information, especially where thosecharges arise from basically the same facts or circumstances”.

He noted the application of such well-established principles, as in R vKienapple, (SCC), [1975] 1 SCR 729 [Kienapple], would be very difficult to apply where an election for trial indifferent courts had been made.

He indicated that, on the other hand, if prejudice from a single election was apparent, there wereprocedures available to obtain a severance so that any obvious prejudice might be avoided. [44] In Okell, at paragraphs 23 and 24, Smith J.A. concluded that an order for severance made by a Provincial Court judge prior tothe appellant being put to his election on the entirety of a multiple-count information was an order made without jurisdiction and thusconstituted a nullity. Select features of that case merit emphasis. The severance order in Okell arose in an unusual context, in that it was

not an order made by a trial judge. The appellant and a co-accused faced a 26-count indictment relating to drug offences. Seven of thecounts related to the appellant alone. The severance order related to these seven counts and was effected by a judge dealing solely withan appearance by the co-accused. The severance order issued in the absence of the appellant and prior to the appellant being put to hiselection. [45] Another ineluctable principle is that indictable and

summary conviction offences should not be tried together without firstconducting a Clunas inquiry. Prior to the Supreme Court of Canada’s decision in Clunas, if there were two counts in a singleinformation, one indictable and one hybrid, and the Crown elected to proceed summarily on the hybrid offence, separate trials were anecessity: R v Morelli (1970), (ON CA), 2 CCC (2d) 138 (Ont CA).

A trial of two such counts together resulted in anullity that could not be saved by the curative provisions in the Code: R v Grant (1992), 52 OAC 244 (CA) [Grant]. [46] Clunas was decided six days after Grant and responded directly to this concern. The Supreme Court of Canada decided thatjurisdiction was capable of being conferred on a court in certain circumstances, including the trial of a

summary conviction offence andan indictable offence together. The bestowal of jurisdiction could be accomplished through the consent of the accused and theprosecution; but whether or not the accused consented, a joinder should only occur where the offences could initially have been jointlycharged and where, in the court’s opinion, it was in the interests of justice to try the matters together.

The “interests of justice” inquirywas therefore a prerequisite to securing jurisdiction to preside over a single trial of both offences. [47] In Clunas, Lamer C.J. prefaced the decision with the touchstone comments in R v Kennedy (1971), (ONCA), 3 CCC (2d) 58 (Ont CA) at 60–61.

There, Kelly J.A. had said: In my view, one vital objective of criminal procedure is to ensure that no person exposed to prosecution shall be found guilty otherwisethan by the instrumentality of a trial conducted in a manner which will not prejudice him in making his full answer and defence to thecharge against him; accordingly, the gravity of any alleged procedural deviation is to be assessed in relation to the extent to which thatobjective may thereby be impeded.

While I would not countenance any departure from the rigidity with which I believe that this principle should be applied in favour of theaccused, I am firmly of the opinion that the importance of departures from the traditional form of procedure from which no prejudicearises should not be so escalated as to result in the invalidity of the proceedings where a Court is satisfied that the result would have beenthe same had the trial proceeded in the manner in which it is alleged it should have. [48] Those sentiments serve as a helpful guidepost when errors in the procedural path are committed and the repercussions areunclear. [49] A decision of this Court, not previously raised, has some bearing on the question of jurisdiction in circumstances where therehas been a misjoinder of offences coupled with an omission under s. 536(2) of the Code in relation to an indictable (electable) offence.

InR v Sewell, 2003 SKCA 52, 175 CCC (3d) 242, a trial of three drug-related offences proceeded in Provincial Court.

The Provincial Courtjudge conducted a single trial involving a number of offences: (1) an indictable (non-electable) offence in count 1 (trafficking), over which he had absolute jurisdiction; (2) an indictable (electable) offence in count 2 (possession for the purpose of trafficking), over which he had no jurisdictionbecause the accused was not put to his election under s. 536(2) of the Code; and (3) a hybrid offence in count 3 (possession of proceeds of crime), over which he had jurisdiction arising from the Crown’selection to proceed summarily. [50] The Provincial Court judge found that the trafficking and possession charges arose out of the same transaction.

ApplyingKienapple, he convicted the accused of possession for the purpose of trafficking (the electable, indictable offence over which he had nojurisdiction) and stayed the trafficking charge. The appellant appealed his conviction and sentence. One of his grounds of appeal was thetrial judge had no jurisdiction to try all these matters together. [51] At paragraph 58, and citing Clunas, this Court held in Sewell that it was permissible to try the two indictable offences togetherwith the

summary conviction offence as long as the Provincial Court judge was satisfied that the appellant was not prejudiced by thejoinder. As neither counsel had asked the judge to make such an inquiry, an issue concerning the validity of the joinder did not arise.However, this Court concluded that the conviction on the indictable (electable) offence was a nullity and had to be quashed due to thefailure to put the accused to his election under s. 536(2).

Applying Mitchell, it was clear that the omission was fatal and that the curativeproviso under s. 686(1)(b)(iv) of the Code could not be applied. [52] Notably, there was no determination in Sewell that the entire proceedings in Provincial Court were nullified by the loss ofjurisdiction on the indictable (electable) offence. Rather, the Court went on to find that justice required a verdict of guilty to besubstituted on the trafficking charge, which the trial judge had stayed on the application of the Kienapple principle.

In so doing, it reliedexpressly on the trial judge’s findings at trial that the two offences arose from the same transaction. [53] Thus, in Sewell, while the failure to grant the accused his right of election under s. 536(2) of the Code caused a loss ofjurisdiction in relation to the indictable (electable) offence, it did not co-extensively nullify the proceedings taken upon other offences inthe same information over which the trial judge had jurisdiction. [54] In Procedure in Canadian Criminal Law, at page 17-18, the author states that, generally speaking, indictable and

summaryconviction offences cannot be tried together. However, a trial of these two offences together in provincial court is an irregularity thatmay not be seen as a miscarriage of justice unless the accused has been prejudiced. In this regard, he refers to Grant, and R v Bee (1975), (BC CA), 28 CCC (2d) 60 (BCCA), and suggests that the better practice is severance of the counts pursuant to s. 591of the Code in order to avoid such problems.

[55] From his examination of the various procedural principles, the appeal judge in this case concluded that a jurisdictional failurehad occurred in relation to both counts in the information. The procedural principles were in a state of tension here. The concept of asingle election by an accused to an entire information is designed to avoid separate trials, unless prejudice would result. The principlethat indictable and

summary conviction matters should not be tried together unless it is in the interests of justice to do so means thatseparate trials may be inevitable. The procedural principle requiring a single election to the information as a whole is capable of givingway when the interests of justice require a severance to be effected (Shrader at 384). Thus, the ready solution to these conflicts lies in theremedies of joinder or severance, as the case may be, to avoid prejudicial outcomes and ensure that the interests of justice are preserved. [56] Severance is the “flip side” of joinder.

As noted in Clunas, at pages 610–611, certain aspects of the rule in favour of severancemust be inapplicable in order for any judicial joinder to occur. That said, as with joinder, questions of severance also require anassessment of the interests of justice. Section 591(3)(

a) of the Code states:

(3) The court may, where it is satisfied that the interests of justice so require, order (

a) that the accused or defendant be tried separately on one or more of the counts[.] [57] An order granting or denying severance is discretionary and not subject to interference unless it is shown the judge did not actjudicially or that the ruling resulted in an injustice: R v Litchfield, (SCC), [1993] 4 SCR 333 at 353–354. [58] When a disagreement arises as to whether severance is appropriate, the interests of justice analysis encompasses the accused’sright to be tried on the evidence admissible against him as well as society’s interest in seeing that justice is done in a reasonable, efficientand cost-effective manner.

Courts must therefore balance the risk of prejudice to the accused against the interest of the general public ina single trial: R v Last, 2009 SCC 45, [2009] 3 SCR 146 [Last]. [59] As noted, in Last, at paragraph 18, the non-exhaustive factors that a trial judge should consider before severing counts in aninformation or indictment include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity ofthe evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire toavoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to becalled; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence ofantagonistic defences as between co-accused persons. [60] Finally, reference should be made to Dudley, a decision that was relied upon by both parties.

When the trial judge made thecomment in her reasons that the Crown’s election was a nullity but the s. 92 offence as charged nonetheless remained viable, thisstemmed from Dudley. [61] Dudley held that, once the Crown elects to proceed by

summary conviction on a hybrid offence, what was once an indictablematter ceases to be so. However, should the

summary conviction proceeding be declared a nullity before the court makes an adjudicationon the merits, and a mistrial declared, the information remains valid nonetheless. Accordingly, the Crown may still proceed byindictment “except where the court is satisfied that this would amount to an abuse of process” (emphasis added, Dudley at para 5).

TheCourt in Dudley characterized an abuse of process to mean one “arising from improper Crown motive, or resulting prejudice to theaccused sufficient to violate the community’s sense of fair play and decency” (at para 44). [62] In the matter before us, the Dudley reasoning would logically preserve the integrity of the indictable matter charged in count2, but only absent a finding of an abuse of process of the kind described. The respondent’s complaint throughout has been that hisargument in relation to an abuse of process has never been examined.

It was not explored in the reasons of the trial judge who consideredthat Shia provided a definitive answer, even though the question of abuse of process did not feature in that case. It was not considered bythe appeal judge due to his conclusion on the jurisdictional issue. [63] Dudley did not implicate questions of joinder or severance; however, the decision illustrates the common analytical thread inall the cases, regardless whether the issue is one of joinder, severance, or simply a matter of the Crown proceeding anew by way ofindictment.

What is underscored is the necessity of an assessment regarding consequential prejudice to the accused, if any, and aninquiry into the interests of justice overall.

Consequently, an amalgam of these perspectives suggests that whether the argument happensto be couched in terms of an abuse of process, consistent with Dudley, or in terms of failure to consider the interests of justice andprejudice to the accused (the ultimate question in the joinder/severance cases), the bottom-line inquiry would not be functionallydifferent. [64] The appeal judge was unduly troubled by the fact that no severance application had been made by either party.

A trial judge isentitled to sever counts of his or her own motion, if satisfied the interests of justice require separate trials: Code, ss. 591(3) and 795. Themore apt concern for the appeal judge was whether the trial judge’s severance of counts in the information was conducted upon anappropriate inquiry regarding prejudice to the accused, the interests of justice, and concerns for an abuse of process. [65] For the foregoing reasons, I agree with the Crown’s position that the core issue to be resolved was a question of severance.

Iam unable to accept the Crown’s blunt proposition that the trial judge was legally compelled to sever, therefore, end of discussion. Thereis an important rider. The trial judge had jurisdiction to sever the counts, provided she satisfied herself that it was in the interests ofjustice to do so. Only when she was so satisfied could she sever the counts and adjudicate on the

summary conviction offencenotwithstanding the fundamental flaw in respect of the accompanying indictable offence. The root of the procedural mire in this casestemmed from the trial judge’s severance order. Whether that order was or was not the product of error was a question that wentunanswered in the course of the

summary conviction appeal. [66] While the severance issue has been approached from the aspect of count 1, there are similar implications for count 2, whichwas severed for the purposes of conducting a new trial. At this juncture, it is fitting to turn to the third ground of appeal, which concernsthe indictable offence in count 2. Thereafter, the nature of the remedy that should appropriately flow from the present appeal can bedetermined.

(3) Did the appeal judge lack jurisdiction to deal withcount 2 because (

a) appeals lie to the Court of Appeal inindictable matters, and only with respect to convictions; and (b)the trial judge’s disposition on count 2, being a committal fortrial, could not be challenged other than by way of prerogativewrit? [67] The appeal judge concluded he had jurisdiction over both matters on appeal because the trial had proceeded summarily onboth counts. [68] The Crown reminds us that it was not entirely clear whether the appeal judge was informed that the respondent had alreadyelected to count 2, waived a preliminary inquiry, and had been committed for trial in the Court of Queen’s Bench before a judge withouta jury.

Given that the respondent had been committed for trial, the Crown says, firstly, that the

summary conviction appeal judge had nojurisdiction under

Part XXVII of the Code to hear appeals related to indictable matters. Secondly, it argues there is no ability to appeal acommittal for trial on an indictable offence, as this is the subject of prerogative relief and extraordinary remedies. [69] The Crown’s first argument rests on the proposition that it is the nature of the offence, and not the nature of the proceedings,that determines the proper avenues of appeal. [70] The accepted proposition appears to be the reverse: it is the nature of the proceedings, and not the nature of the offence, thatdetermines the appropriate appellate forum.

I refer to this excerpt from John Sopinka and Mark A. Gelowitz, The Conduct of an Appeal,3d ed (Markham, Ont: LexisNexis, 2012) at para 3.2: The primary jurisdictional criterion in criminal appeals is the nature of the proceedings giving rise to the disposition appealed from. Inproceedings by indictment, an appeal may be taken only pursuant to

Part XXI; and in

summary conviction proceedings, an appeal liesonly pursuant to

Part XXVII. The characterization of proceedings for the purposes of appeal depends not on the nature of the offence ofwhich the accused has been convicted, but rather, on whether the trial was on indictment or by way of

summary conviction. … (Emphasis added) [71] Similar statements appear in Yaworski; in R v D.M.E., 2014 ONCA 496 at para 81, 313 CCC (3d) 70; and, in R v Lévesque,[2002] JQ No 1359 (QL) (Que CA) at para 13. Accordingly, I conclude it is the nature of the proceedings, and not the nature of theoffence, that establishes the precise path for an appeal. [72] For his part, the respondent argued that s. 813 of the Code allowed him to appeal any “order” made against him to a

summaryconviction appeal court and, therefore, what he was appealing was the trial judge’s refusal to declare that an abuse of process hadoccurred. In my view, the appropriate characterization of matters is that the respondent was appealing from the trial judge’s severanceorder. An appeal is from the order itself, not the reasons: R v Sheppard, 2002 SCC 26, [2002] 1 SCR 869. The respondent had a right toassert as a ground in his

summary conviction appeal that the severance order was wrong in law, and led to an injustice. [73] I draw comfort from R v N.A.P. (2002), (ON CA), 171 CCC (3d) 70 (Ont CA) [N.A.P.]. There, theOntario Court of Appeal addressed the Crown’s right to appeal a severance order made by a trial judge, of her own motion, at theconclusion of the Crown’s case in a jury trial. The jury convicted the respondent of the offence of assault, but acquitted him of allremaining charges in a multiple-count indictment. The Crown appealed the acquittals.

One ground of appeal was that the trial judge haderred in law in severing a charge from the indictment and instructing the jury that they should disregard the evidence adduced on thatparticular charge. The Court mentioned, at paragraph 5 of its reasons, that the severed count remained outstanding. It went on to statethat, while no freestanding right of appeal exists from a severance order, once an adjudication has been made in the proceedings (theacquittals in that particular case), it is open to argue on appeal that the severance order was wrong in law, and led to an injustice.

In theparticular circumstances of the case, the Court concluded the trial judge had indeed erred in making the severance order, but went on tofind that the error did not warrant a new trial, as it had not been demonstrated the verdict would have been different but for the error. [74] In the present case, the trial judge made an adjudication on the merits (conviction on count 1) in

summary convictionproceedings. Her impugned severance order was an order made within a

summary conviction proceeding. As with N.A.P., the severedcount remains extant. It was therefore open to the respondent to argue in his

summary conviction appeal that the severance of counts bythe trial judge led to an injustice, prejudice, or an abuse of process. In ground 8 of his notice of appeal of August 31, 2015, the respondentraised the issue sufficiently, although perhaps not with ideal clarity, by saying: “The Trial Judge acted upon an Information that was anabuse of process and that should have been dismissed as such”. [75] In his factum, the respondent identified the grounds on which the appeal judge, and the trial judge at first instance, shouldhave found an abuse of process: (

a) The Crown’s case is weak and untenable on the

Section 92 charge. The evidence in the

summary conviction trial revealed thesource of the firearms, the devolution of the firearms and that an adult person had a license to possess firearms; (

b) The decision of the Crown to proceed on a more serious charge punishable on indictment is inexplicable when the facts do notsupport even simple possession under

Section 91;

(

c) The Accused actually went to trial in this case presenting evidence. He was placed in jeopardy and the matter has been dragging on since November of 2014; (

d) The Crown has been given the benefit of a preliminary inquiry as pointed out in the Abramczuk case; (

e) The weak and untenable evidence could easily have resulted in the accused not being committed for trial had proper procedures been observed; (

f) The Respondent was denied the benefit of the warning that he was entitled to under Section 541(2) of the Criminal Code ; [and] (

g) The Respondent received a severe sentence on Count #1 and had already served that sentence subject only to the firearms restriction. [ 76 ] The respondent’s assertions of prejudice and abuse of process relied significantly on the Abramczuk decision, which was overturned by the Ontario Court of Appeal, albeit without reasons. Abramczuk concluded that two potentially prejudicial aspects stemmed from the failure to put the accused to his election regarding the mode of trial: the Crown secured a gratuitous preliminary inquiry and there were possible implications for his decision whether or not to testify.

The rationale was that these might have advantaged the Crown and disadvantaged the accused, and thus an inadvertent abuse of process had resulted. Certainly, more recent judicial pronouncements would appear to call for a broader inquiry into the interests of justice and far more definitive conclusions than reached in Abramczuk .

The conclusion reached in that case was displaced, in any event, by subsequent jurisprudence determining that an omission in relation to s. 536(2) of the Code resulted in a failure of jurisdiction. [ 77 ] Of greater interest, however, is the fact that the respondent raises some aspects that can be seen as bearing on the interests of justice analysis. Some of his complaints touch on the factual and legal nexus between the two counts, complexities in the evidence, considerations of delay, and concerns for trial efficiency.

In arguments below, the respondent had also queried the possibility of inconsistent verdicts in separate trials (relating to the legal definition of firearms). Separate trials raise difficulties in terms of the Kienapple principle, in the event it has any application here.

Without passing on the merits, these are arguments that would ordinarily have been the subject of some comment and analysis at trial and on appeal, but were not touched upon in either forum. [ 78 ] The question of whether the severance effected by the trial judge was in the interests of justice or prejudicial to the accused was not addressed at the first-stage appeal. The respondent asks us to make that determination now, and stay proceedings on count 2.

Alternatively, he asks that we refer that issue to the appeal judge, for a determination on the merits. [ 79 ] The Crown responds that the argument in relation to an abuse of process can be broached in the pending trial on count 2. It seems to me that the Crown’s suggestion, although fairly made, might add another layer of complexity to already disjointed proceedings. The plain fact remains that the issues in their entirety were properly before the appeal judge, along with a sentence appeal that went unaddressed.

It was there where all the multi-pronged aspects relating to whether the interests of justice had been properly satisfied by the trial judge’s disposition of the matter fell appropriately to be determined and where they can be considered in comprehensive fashion.

To remit count 1 issues for reconsideration by the appeal judge, while leaving the abuse of process argument for disposition in the count 2 proceedings, raises the spectre of fractured analysis and multiple avenues of appeal. [ 80 ] I turn to the respondent’s request that this Court should declare any further proceedings in the matter to be an abuse of process and impose a stay.

While this Court certainly possesses an inherent and residual discretion to stay a charge where further proceedings would constitute an abuse of process, it is exercised sparingly, and only in the clearest of cases: R v Wasilewski , 2016 SKCA 112 , 485 Sask R 68, R v Spencer , 2017 SKCA 54 . The circumstances here bear little resemblance to Spence , a case where there was a clear and abiding miscarriage of justice. We are asked to consider the question for the first time and on an incomplete record. The issue received no consideration below, as the appeal judge’s decision rested on other distinct grounds.

Moreover, the respondent did not raise the issue by way of cross-appeal, the usual precursor to seeking relief in this Court. Our primary function remains by way of review. As with the other issues raised in the respondent’s notice of appeal of August 31, 2015, it is fitting that this question be returned to the appeal judge for determination in the

summary conviction appeal. [ 81 ] The Crown did not press its remaining argument regarding the necessity of challenging the committal on count 2 by way of prerogative writ. In the circumstances, consideration of that question is unnecessary. VII. conclusion [ 82 ] In conclusion, the appeal judge did not raise a new issue on appeal. The appeal judge properly concluded he had appellate jurisdiction to deal with all matters raised by the respondent’s notice of appeal, as the issues stemmed from

summary conviction proceedings. The appeal judge properly framed the issue as being the extent to which the trial judge had jurisdiction to convict on the

summary conviction offence when the respondent was not provided his right of election on the indictable offence in the same information. The appeal judge erred in concluding, on the basis that he did, that the trial judge had no jurisdiction in respect of both offences, and in consequently failing to address the grounds raised in the respondent’s notice of appeal of August 31, 2015. [ 83 ] The Crown has leave to appeal. The appeal is allowed in part. The appeal judge’s order quashing the conviction on count 1 and directing a new trial on both counts is set aside.

The matter of count 1 is remitted to the appeal judge for determination of the grounds of appeal raised by the respondent in his notice of appeal dated August 31, 2015. The matter of count 2 (the issue being whether the trial judge’s severance of the two counts was contrary to the interests of justice, prejudicial to the accused, or an abuse of process) is likewise remitted to the appeal judge for determination.

In sum, the matter will be returned to the appeal judge for determination of all the grounds of appeal raised by the respondent’s notice of appeal dated August 31, 2015. [ 84 ] The balance of the Crown’s appeal is dismissed.

“Wilkinson J.” Wilkinson J. ( ad hoc ) I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Caldwell J.A.” for Whitmore J.A., per authorisation