R v Ali, 2019 SKCA 83

Court of Appeal for Saskatchewan Docket: CACR3180 Citation: R v Ali , 2019 SKCA 83 Date: 2019-08-29 Between: Her Majesty the Queen Appellant And Nuridin Mohamed Ali and Rodel Diezroy Dickson Respondents Before: Jackson, Whitmore and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Whitmore On Appeal From: CRM 138 of 2017, Saskatoon Appeal Heard: June 5, 2019 Counsel: Wade E. McBride, Q.C. for the Appellant Nicholas J.

Stooshinoff, Q.C. for Nuridin Ali No one appearing for Rodel Dickson Kalmakoff J.A. I. Introduction [ 1 ] This appeal comes to us by way of s. 676(1) (

b) of the Criminal Code . The Crown argues that the trial judge in the Court of Queen’s Bench improperly failed or refused to exercise jurisdiction on an indictment. [ 2 ] For the reasons that follow, I would dismiss the Crown’s appeal. II. BACKGROUND [ 3 ] Nuradin Ali and Rodel Dickson [Respondents], and a third person, Mohamed Hassan, were jointly charged with trafficking cocaine and possessing cocaine for the purposes of trafficking, contrary to the provisions of the Controlled Drugs and Substances Act .

The information was sworn on May 15, 2016, and all three individuals made their first court appearance shortly thereafter. [ 4 ] On November 29, 2016, the Respondents and Mr. Hassan each elected to be tried by Provincial Court judge. Their elections were recorded on the joint information. All three entered pleas of not guilty and trial dates were set for May 10 and 11, 2017. [ 5 ] On May 10, 2017, the trial did not proceed as scheduled. None of the three accused were present that day, but each was represented by counsel. Mr. Hassan’s lawyer, Chris Lavier, advised the Court that Mr.

Hassan had filed a notice of his intention to re-elect his method of trial, pursuant to s. 561(2) of the Criminal Code . Mr. Lavier said it was Mr. Hassan’s intention to re-elect to be tried by a Court of Queen’s Bench judge without a jury, waive his preliminary inquiry, and consent to be ordered to stand trial. The Crown then advised the Court as follows: MR. MILLER: So I think the first thing we need to do, Your Honour, if I might, is deal with the question of the re-election. My understanding of the law is that that re-election by Mr.

Lavier’s client, Hassan, will bind the other two because it’s the higher election, and, therefore, it is indeed a preliminary inquiry that we were faced with today. (Emphasis added) [ 6 ] Mr. Ali’s lawyer, Lional Kayseas, advised the Court that he had no instructions from Mr. Ali. That said, it appeared that all counsel were aware of Mr. Hassan’s intention to re-elect his method of trial, and there had been some discussion between the parties about what Mr. Ali and Mr. Dickson may do in light of that: MR. MILLER: I think we’re -- a -- there’ll be a number of things to be dealt with if Mr.

Ali -- my understanding from Mr. Kayseas -- if Mr. Ali had showed up, he was prepared to consent to committal. But I know you want to leave that ‘til the end. I just don’t want to neglect to mention that I would be asking for a warrant for him given -- THE COURT: M-hm. MR. MILLER: -- that he has not showed up. I think we’re at -- I think the first thing is to confirm, if -- if Your Honour agrees, that this was a re-election by Mr. Lavier for Hassan, that by election to a higher court would be binding on the other two accused, so it is a preliminary inquiry that was to happen today.

THE COURT: … I would assume, then, that that would -- that there would be that effect, yes.

MR. MILLER: Thank you. THE COURT: And that doesn’t -- that isn’t reflected in -- in the records, but I understand that that would be the effects. Now -- now I, as I say, I understand where -- where your references to preliminary inquiry comes from . MR. COMBE: And I can confirm from the record that when I received the [notice] of re-election two weeks ago from Mr. Lavier, that I had spoken to my client, and I had actually, two weeks ago, spoken to Mr. Miller and indicated that I was prepared to waive the preliminary inquiry on the basis that I had those instructions at that particular time. THE COURT: All right.

Thank you. (Emphasis added) [ 7 ] Because Mr. Hassan’s notice of re-election was filed with the Court in accordance with the temporal requirements of s. 561(2) of the Criminal Code , it was a re-election as of right. This meant he did not require the Crown’s consent. The Provincial Court judge presiding over the matter on May 10, 2017, accepted and recorded Mr. Hassan’s re-election and ordered him to stand trial. The Provincial Court judge also appeared to agree with the Crown’s assertion that Mr. Hassan’s re-election to trial by Queen’s Bench judge sitting alone was “binding” on Mr. Ali and Mr.

Dickson, because it was the “higher” election. [ 8 ] The Provincial Court judge then addressed Mr. Dickson’s lawyer, George Combe. Mr. Combe told the Court that he had been provided with a designation of counsel by Mr. Dickson (which was executed in accordance with s. 650.01 of the Criminal Code ) and confirmed that, even though Mr. Dickson was not present, he had provided instructions to consent to be ordered to stand trial: THE COURT: So with respect to 518, with respect to Mr. Hassan, then, that will go to the next sittings of Court of Queen’s Bench for trial.

And with respect to the other two accused, then, also on 518, Mr. Combe? Discussion MR. COMBE: Yes, with respect to those, Your Honour, I have instructions from Mr. Dickson to waive the preliminary inquiry on the three counts that are on that Information. I confirmed that with Mr. Miller two weeks ago, as well as yesterday when he had contacted me. I’m going to undertake -- I undertook to Mr. Miller that I will file a designation of counsel today on behalf of Mr. Dickson when he arrives here, and I’ll file that on the Court file. Mr.

Miller was suggesting that a warrant be issued and be held until I undertake to file that designation, but I -- I’ll give you my undertaking, then I will file that this afternoon, Sir. MR. MILLER: The Crown certainly accepts Mr. Combe’s undertaking. I just thought, to protect jurisdiction -- THE COURT: I think it will be a good idea. I -- I -- I take your undertaking, Mr. Combe; I appreciate that. At the same time, I think we all have to recognize that the reality is that until you have your client’s pen on paper, your undertaking is, to a certain extent, conditional. So - - MR. COMBE: That’s correct, Sir.

I will -- I will do that. THE COURT: -- I think the bench warrant hold is -- MR. COMBE: Sure. THE COURT: -- is reasonable. MR. COMBE: Yes. That’s fine, Sir. And then I will undertake to file that today, Sir. THE COURT: All right. Thank you. [ 9 ] Following that, the Provincial Court judge committed Mr. Dickson to stand trial at the next sittings of the Court of Queen’s Bench. He then addressed Mr. Ali’s matters. Mr. Kayseas sought, and was granted, leave to withdraw as counsel. The Crown requested a warrant for Mr. Ali’s arrest, given his failure to appear.

That request was granted and the following exchange took place: MR. MILLER: And the Crown would request a warrant to go on Mr. Ali. THE COURT: Bench warrant to go. Now, as far as Mr. Ali is concerned, his matter, then, sits here stalled? MR. MILLER : I was pondering that very question. I -- I -- I think it does. I -- I don’t think -- I think it stays here. It’s an interesting question given the fact that his election was for trial here -- THE COURT: Yes. MR. MILLER: -- but he’s bound by the higher election where there’s now been a consent committal by the other two.

But I don’t believe - - I think that’ll have to be dealt with in Provincial Court. I don’t believe I can just file an indictment. I will file an indictment with respect to the other two accused, but I don’t -- I don’t believe I can -- with -- without a consent committal, I don’t -- I don’t believe I can file an indictment on Mr. Ali. THE COURT: Obviously, I’d have to leave that to you, in any event -- … to make that decision … MR. MILLER: -- I’ll -- I’ll look into the question a little further, but I -- I don’t -- I don’t think -- I -- I don’t think I can.

THE COURT: I -- I certainly don’t think that I can commit him for trial today on -- on any basis.

MR. MILLER: That would be my view, so I’ll -- I’ll certainly look into it a little further, and I’m -- make a consultation about it with my colleagues -- a colleague or colleagues, but I think it stays here. But I don’t want to commit to that. I’ll -- if I can get it -- if I can keep them all together in Court of Queen’s Bench, that’s ideal. THE COURT: Of course. MR. MILLER: So I’ll look into that further, but I think at this point, there’s a bench warrant out of this court; it stays here pending -- pending what I come up with in terms of -- THE COURT: M-hm. MR. MILLER: -- moving to a higher court.

THE COURT: All right. I’ll necessarily, then, leave that with you. (Emphasis added) [ 10 ] The court clerk recorded the following endorsement on the information with respect to Mr. Dickson’s May 10, 2017, appearance: Preliminary hearing not requested. Bench warrant hold pending filing of designation of counsel. With the consent of the Prosecutor and the Accused, the Accused is ordered to stand trial at the Judicial Center of Saskatoon, Saskatchewan (without the taking of any evidence, pursuant to

section 549 of the Criminal Code ). ... Remarks: Co-accused Hassan re-elects Queen’s Bench Judge alone – bound by co-accused’s election. Defence will undertake to file designation of counsel today. [ 11 ] The court clerk also recorded the following endorsement on the information with respect to Mr. Ali’s May 10, 2017, appearance: Preliminary Hearing not held today’s date. (Co-accused Hassan re-elected Queen’s Bench Judge Alone – both co-accused consent committed.) [ 12 ] The record indicates that Mr. Ali was next present in court on May 18, 2017, before a different Provincial Court judge.

The bench warrant that had been authorized a week before was cancelled. Mr. Kayseas was also present and came back on the record as Mr. Ali’s lawyer. The same prosecutor represented the Crown. Once again, there was a discussion about the nature of Mr. Ali’s election and those of his co-accused. The Provincial Court judge on this occasion also appeared to accept the Crown’s assertion that Mr. Ali was “bound” by Mr. Hassan’s re-election to the same mode of trial. Accordingly, he “deemed” Mr. Ali to have elected trial by Queen’s Bench judge alone and ordered him to stand trial: MR.

MILLER: The discussions we’ve had here, Your Honour, with Mr. Kayseas. Mr. Kayseas withdrew at that time. The warrant I take it has now been executed because he’s surrendered into custody. I’ve had discussions with Mr. Kayseas. He is prepared, as I understand it, I’ll let him speak for himself, to go back on the record, and then there would be a consent to committal by this accused to all three counts on Information 45443518. THE COURT: …. All right. Consent committal, that’s 548; isn’t it, I think? Let me just double check, 4549 -- 540 pursuant to

Section -- all right. So first of all, Mr. Kayseas, you are now going to be counsel of record again? MR. KAYSEAS Yes. I am asking to go back on the record. THE COURT: And do you want Mr. Kayseas to be your lawyer? THE ACCUSED: Yes, Sir. THE COURT: All right. Now, at this stage on Information ending in 518, then, there’s a consent committal pursuant to

Section 549 on all three counts pursuant to his election which is -- oh, it was Provincial Court judge? MR. MILLER: Well, one of the accused, Mr. Hassan -- THE COURT: Are you re-electing, then, first? MR. MILLER: No. Actually, what happened, Your Honour, is one of the accused, Mohamed Hassan, who – THE COURT: Elected judge and jury? MR. MILLER: Elected Queen’s Bench judge alone, I believe, and accordingly, that bound as a higher election -- THE COURT: Yes. MR. MILLER: -- on all three accused. So it was for a preliminary inquiry on May 10th. He was bound by --

THE COURT: Yeah. MR. MILLER: -- the higher election. THE COURT: All right. So what’s the -- I’m -- what’s the endorsement I put on there, then, that consent committal pursuant to his deemed election of Queen’s Bench judge alone? MR. MILLER: That’s a good question. THE COURT: Because we’ve got to have something because the election -- or do you want to re-elect at this stage and do that endorsement? Either way works I’m presuming, but I just wanted to make sure -- MR. MILLER: Or we could -- THE COURT: -- the record is -- is clear . MR. MILLER: Yes.

We -- we could indicate co-accused on this election -- THE COURT: Yeah. MR. MILLER: -- elected higher court. THE COURT: All right. All right. So -- MR. KAYSEAS: That’s ultimately our intention, Your Honour. Order to Stand Trial (Ali) THE COURT: All right. The endorsement will show consent committal pursuant to

Section 549 to Queen’s Bench judge alone, which is a deemed election as co-accused earlier elected Queen’s Bench judge alone. How’s that? MR. MILLER: Yeah, I think that makes sense. (Emphasis added) [ 13 ] The clerk endorsed the information, in relation to that appearance, as follows: With the consent of the Prosecutor and the Accused, the Accused is ordered to stand trial at the Judicial Center of Saskatoon, Saskatchewan (without the taking of any evidence, pursuant to

section 549 of the Criminal Code ). Remarks: *Consent committal pursuant to s. 549 to QB Judge Alone as deemed by the co-accused election. [ 14 ] Counsel for all three accused then made their first appearance in the Court of Queen’s Bench on June 2, 2017, for a pretrial conference. The endorsement from the Court of Queen’s Bench appearance history from that time read: June 2, 2017 Before: Allbright, J. Barrie Miller – Crown George Combe – for Hassan & Dickson Lionel Kayseas – for Ali Mr. Hassan wishes to enter a G.P. & trial dates to be set for the other 2 accused.

Adj’d to Aug 18 pre-trials. [ 15 ] The pretrial conference was adjourned to August 18, 2017. Another four appearances and adjournments followed between August 18 and October 31, 2017. The Respondents were represented by counsel at each of these appearances, and Mr. Hassan was present at each. Despite what was noted at the June 2, 2017, appearance, Mr. Hassan’s matters had not yet been returned to Provincial Court for resolution. [ 16 ] At the pretrial conference on October 31, 2017, Mr. Hassan was present in person. Neither of the Respondents were personally present, but both were represented by counsel.

The endorsement from that date was: Trial dates are set (for all 3 accused) for April 10 th , 11 th , 12 th , 2018 at 10:00 a.m. Earlier dates in January, February, and March offered, however, at the request of Defence counsel, Mr. Combe is not available until April, 2018. ... Mohamed Abdulkadir Hassan is to be remanded, to appear on April 10, 2018 at 10:00 a.m. at the Court of Queen’s Bench to begin trial. Mohamed Abdulkadir Hassan is to be remanded, in custody, to appear via CCTV on November 22, 2017 at 9:30 a.m. in Saskatoon Provincial Court to speak to trial dates.

Informations 991013225, 991013228, and 45443517 are to be sent back to Provincial Court for November 22, 2017. Information 45443518 is to be kept on the Queen’s Bench file. Count 3 will be spoken to on the trial dates. [ 17 ] Information 45443518 charged Mr. Hassan jointly with the Respondents. It led to the indictment that was before the trial judge in the matter relevant to this appeal. [ 18 ] Shortly after the trial dates were fixed, Mr.

Hassan resolved his outstanding charges (including those arising from Information 45443518) by re-electing, once again, to be tried in Provincial Court, where he entered guilty pleas on January 9, 2018. The Crown then stayed the indictment in the Court of Queen’s Bench against Mr. Hassan, but continued the prosecution of that indictment against the Respondents. [ 19 ] On April 9, 2018, Mr. Ali fired his lawyer and retained new counsel. This led to an adjournment of the trial. After one further appearance before the pretrial judge, new trial dates were set for Mr. Ali and Mr.

Dickson for October 16, 17, and 18, 2018. [ 20 ] On the day the trial was to begin, Mr. Dickson was present with his lawyer, and ready to proceed. The Crown was also ready to proceed. Mr. Ali, however, was not present. His new lawyer, Nicholas Stooshinoff, indicated that Mr. Ali, who was living in Yellowknife at the time, had been arrested at the airport on an outstanding warrant, just as he was beginning his journey to Saskatoon for the trial. The Crown sought a bench warrant. As counsel and the trial judge were discussing what should be done about Mr. Ali’s absence, the trial judge also raised another issue.

The following exchange took place: THE COURT: Not to complicate it anymore -- MR. STOOSHINOFF: Yes. THE COURT: -- but one of the first things I was going to raise is the election. My understanding that Mr. Ali and Mr. Dickson, because of the election of Mr. Hassan, they wanted Provincial Court trial, both Mr. Dickson and Mr. Ali. But Mr. Hassan has now pled guilty, so what is the election of Mr. Ali and Mr. Dickson? MR. STOOSHINOFF: I -- if they -- originally elected -- THE COURT: Provincial Court, both of them. MR. STOOSHINOFF: -- and if they did that, then I think they’re entitled to their original election.

THE COURT: As I said, but one more wrinkle to -- MR. STOOSHINOFF: Yes. THE COURT: -- to complicate matters even more. MR. STOOSHINOFF: Yeah. If -- if they’d already entered their election -- THE COURT: They have. Both of them, I checked the endorsements -- MR. STOOSHINOFF: Yes. Then -- then they should be entitled to their original… THE COURT: -- Dickson elected Provincial Court judge on November 29th, 2016. Ali elected Provincial Court on November 29th, 2016. And subsequent to that, Hassan actually went back to Provincial Court and pled guilty. MR. COMBE: Correct. THE COURT: So -- MR.

COMBE: We’re -- we’re in the wrong court. THE COURT: I think so. [ 21 ] The Crown responded to this argument by pointing out that the record indicated the Provincial Court had deemed both Mr. Ali and Mr. Dickson to have elected trial by Queen’s Bench judge alone, and that they had both consented to being ordered to stand trial.

The Crown also directed the trial judge’s attention to s. 567 of the Criminal Code , which provides that where two or more persons are jointly charged in an information, unless all of them elect, or re-elect, or are deemed to have elected the same mode of trial, the judge may decline to record any election or re-election for a trial by a Provincial Court judge, or a Queen’s Bench judge without a jury. [ 22 ] The Crown argued that, by virtue of s. 567, the Provincial Court judge properly concluded inconsistent elections could not be entered for the three accused, and the deemed election to the Court of Queen’s Bench and the consent committals for trial that followed meant the trial judge had jurisdiction to hear the matter. [ 23 ] The trial judge disagreed, saying: THE COURT: I -- I still can’t get past, with all due respect, Mr.

Miller, an individual’s fundamental right to elect the mode of his trial. And it’s clear to me that on November 29th, two thousand and -- … THE COURT: -- 16, both Mr. Dickson and Mr. Ali elected to be tried by a Provincial Court judge. I accept that Mr. Hassan did too and

that somewhere after November 29th, 2016, and May 10th, 2017, I would think, with the consent of the Crown, Mr. Hassan decided he wanted a Queen’s Bench judge alone. And I accept what you say is that maybe what the right thing should have been is when all -- all of these three couldn’t agree on the mode of the trial, it could have been judge and jury, so be it, it didn’t… What happened is that the original trial that was to be conducted on behalf of both Mr. Dickson and Mr. Ali turned into a preliminary inquiry. There was a consent committal, there wasn’t a full-blown preliminary inquiry.

The Crown filed an indictment and it had all three on at that point in time and that Indictment was -- it was filed May 31st, 2017. And at that time, it had all three individuals on the Indictment. The Indictment was stayed with regard to Mr. Hassan on April 10th, 2018, when he went back to Provincial Court and pled out. … THE COURT: It, indeed, is unfortunate that this trial has to get adjourned but one more time. The Crown is asking for an adjournment as they want to run these matters at the same time, that makes sense to me how you’re approaching this file. I have reviewed the endorsements, Mr.

Miller, I have heard from you and, Mr. Combe, I’ve heard from you. I am of the belief that Court of Queen’s Bench has no jurisdiction to hear this trial. As I indicated before, both Mr. Ali and Mr. Dickson originally elected to be tried in Provincial Court. They --when Mr. Hassan re-elected before the preliminary inquiry, I assume with the Crown’s consent, or some other way, managed to change his election from Provincial Court to the Court of Queen’s Bench -- … THE COURT: It -- it really wouldn’t matter if he had a right or if the Crown consented because at that point in time, both Mr. Ali and Mr.

Dickson were prevented from having a Provincial Court trial which was what their original election was, to be tried by a Provincial Court judge. All three were committed to stand trial, an indictment was filed in Court of Queen’s Bench as of May 31st, 2017, and I -- I question why Mr. Hassan -- Mr. Hassan was in January of ‘18, right. So subsequent to that, Mr. Hassan re-elected back to Provincial Court, his matters have been disposed of, the matter stayed against him in Court of Queen’s Bench. And, as I said, for these reasons, I believe that the Court of Queen’s Bench has no jurisdiction at this point in time.

And it’s necessary that both of these matters be returned to Provincial Court for trial. … [ 24 ] Ultimately, the trial judge determined she had no jurisdiction to hear the matter, holding that the Crown’s decision to stay the indictment against Mr. Hassan meant that Mr. Ali and Mr. Dickson were entitled to the mode of trial they had initially elected, rather than the mode of trial they were deemed to have elected as a result of Mr. Hassan’s choices. [ 25 ] It is from this decision that the Crown appeals. III.

STANDARD OF REVIEW [ 26 ] The Crown brings this appeal under s. 676(1) (b), which reads as follows: Right of Attorney General to appeal 676

(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal (

b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment[.] [ 27 ] The central question to be resolved in this case is whether the trial judge erred by failing or refusing to exercise jurisdiction over the indictment. This is a question of law and, as such, the applicable standard of review is correctness: R v Whiting , 2013 SKCA 127 , 304 CCC (3d) 342. IV. THE ARGUMENTS on appeal [ 28 ] The Crown argues that once Mr.

Hassan re-elected to be tried by a Court of Queen’s Bench judge sitting alone, the Respondents effectively re-elected the same mode of trial, waived their right to a preliminary inquiry and consented to a committal for trial by Queen’s Bench judge sitting alone. As such, the Crown says the Court of Queen’s Bench had jurisdiction to hear the trial of the resulting indictment and the trial judge erred by refusing to exercise jurisdiction.

Even if the Criminal Code procedural requirements were not technically met, says the Crown, the Respondents waived the need for compliance with those requirements through a course of action – including agreeing to be committed to stand trial, participating in several pretrial conferences in the Court of Queen’s Bench, setting dates for trial and not applying to quash the indictment – which demonstrates an informed choice to be tried by a Queen’s Bench judge sitting alone. [ 29 ] In the alternative, argues the Crown, the record should be read as reflecting that, after Mr.

Hassan re-elected to be tried by Queen’s Bench judge alone, the Provincial Court judge declined to record inconsistent elections on the part of Mr. Ali and Mr. Dickson. As such, all three were properly deemed, by the operation of ss. 567 and 565(1) (

b) of the Criminal Code , to have elected trial by judge and jury. Therefore, even though the trial judge could not have heard the trial, sitting alone, on October 16, 2018, the order to stand trial was valid and the Court of Queen’s Bench had jurisdiction over the indictment. [ 30 ] The Crown argues that, on either of these bases, the Respondents were properly ordered to stand trial, the Court of Queen’s Bench had jurisdiction over the charges contained in the indictment, and that jurisdiction was not lost when proceedings on the indictment were stayed against Mr. Hassan.

Accordingly, the Crown says the trial judge erred in refusing to exercise jurisdiction. [ 31 ] The Respondents argue that the trial judge properly concluded she had no jurisdiction over the indictment. They contend that the Court of Queen’s Bench would have had jurisdiction only if:

(

i) Mr. Ali and Mr. Dickson, having initially elected trial in Provincial Court, had re-elected to be tried in the Court of Queen’s Bench in accordance with the procedures set out in the Criminal Code ; or (ii) they were deemed to have re-elected trial by judge and jury in accordance with s. 565(1)(

d) because a Provincial Court judge expressly declined to record inconsistent elections, as set out in s. 567. [ 32 ] Because the record does not indicate that either happened in this case, the Respondents say the trial judge properly concluded that the Court of Queen’s Bench did not have jurisdiction over the indictment.

V. analysis [ 33 ] Answering the question raised by this appeal requires consideration of a number of different factors, in light of the governing provisions of the Criminal Code , and the particular factual underpinning of the case. [ 34 ] As I will demonstrate, even though the trial judge was incorrect to hold that the Respondents would be entitled to revert to their original election once the Crown stayed proceedings against Mr. Hassan, she nevertheless correctly concluded that the Court of Queen’s Bench did not have jurisdiction over the indictment.

I reach this conclusion because a review of the full record demonstrates that (

i) the Respondents never, at any point, elected to be tried by Queen’s Bench judge sitting alone; (ii) the Respondents could not be deemed by operation of law to have elected trial by Queen’s Bench judge sitting alone; and (iii) in the circumstances of this case, the Respondents were not deemed to have elected or re-elected trial by judge and jury under the provisions of the Criminal Code that permit a court to deem such an election or re-election to have been made.

Accordingly, their consent to be ordered to stand trial was of no effect and the indictment before the trial judge was not properly preferred, resulting in an absence of jurisdiction. A.

The interplay of the Criminal Code provisions applicable to this case [ 35 ] The starting point in the analysis is an examination of how the provisions of the Criminal Code governing the election of method of trial are meant to be navigated, followed by a consideration of the procedural and substantive implications of any irregularities. [ 36 ] Before delving into the analysis of the provisions of the Criminal Code that apply in this case, it is worth pausing to note that many of those provisions are soon to change.

Bill C-75 has received royal assent and it makes a number of amendments to various parts of the Criminal Code , including Parts XVIII, XIX and XX, portions of which are in issue here. Many of those changes are due to come into force on September 19, 2019, meaning that many of the sections referred to in these reasons will change shortly. None of the pending amendments, however, are of such a nature as to affect the disposition of this appeal. B. Jurisdiction of trial courts generally [ 37 ] The Respondents in this case were charged with indictable offences.

Where that is the case, the Criminal Code defines the jurisdiction of the trial courts. [ 38 ] Generally speaking, the superior court of criminal jurisdiction (in Saskatchewan, the Court of Queen’s Bench) has jurisdiction over all indictable offences. In that regard, s. 468 provides as follows: “Every superior court of criminal jurisdiction has jurisdiction to try any indictable offence”. [ 39 ] The superior court’s jurisdiction to try indictable offences, however, is not unlimited; it is circumscribed by the provisions that govern an accused person’s ability to elect his or her mode of trial.

For most indictable offences, other than those exclusively within the jurisdiction of the superior courts (listed in s. 469), or those over which the Provincial Court has absolute jurisdiction (listed in s. 553), accused persons are entitled to elect how they wish to be tried. In that regard, s. 536 reads, in part, as follows: Election before justice in certain cases 536

(2) If an accused is before a justice charged with an indictable offence, other than an offence listed in

section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under

section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words: You have the option to elect to be tried by a provincial 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? Procedure where accused elects trial by provincial court judge

(3) Where an accused elects to be tried by a provincial court judge, the justice shall endorse on the information a record of the election and shall (

a) where the justice is not a provincial court judge, remand the accused to appear and plead to the charge before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed; or (

b) where the justice is a provincial court judge, call on the accused to plead to the charge and if the accused does not plead guilty, proceed with the trial or fix a time for the trial. [ 40 ] Where a person charged with an indictable offence elects to be tried in the superior court by a judge without a jury, or a judge

and jury, or is deemed to have elected trial by judge and jury, a preliminary inquiry may be held in Provincial Court. In that regard, the portions of s. 536 relevant to this case read as follows: Request for preliminary inquiry 536

(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1) (

b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in

section 469, the justice shall, subject to

section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under

section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge. Endorsement on the information

(4.1) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1) (

b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in

section 469, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing (

a) the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be; and (

b) whether the accused or the prosecutor has requested that a preliminary inquiry be held. Preliminary inquiry if two or more accused

(4.2) If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (4), a preliminary inquiry must be held with respect to all of them. When no request for preliminary inquiry

(4.3) If no request for a preliminary inquiry is made under subsection (4), the justice shall fix the date for the trial or the date on which the accused must appear in the trial court to have the date fixed. [ 41 ] Where a person charged with an indictable offence other than those listed in s. 469, elects, re-elects, or is deemed to have elected to be tried by a superior court judge sitting alone, s. 558 provides that a superior court judge has jurisdiction to hear the trial.

Section 566 provides that, in the circumstances applicable to this case (i.e., not a case of direct indictment), such a trial is to be on charges contained in an indictment preferred in accordance with s. 574. [ 42 ] According to s. 574, an indictment may be properly preferred against an accused person, in relation to (

i) any offences for which that person has been ordered to stand trial following a preliminary inquiry, or (ii) where the person has not requested a preliminary inquiry, on any charges contained in an information at any time after the person has elected, re-elected or been deemed to have elected a trial in the superior court. The relevant portions read as follows: 574

(1) Subject to subsection (3), the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of (

a) any charge on which that person was ordered to stand trial; or (

b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial.

(1.1) If a person has not requested a preliminary inquiry under subsection 536(4) or 536.1(3) into the charge, the prosecutor may, subject to subsection (3), prefer an indictment against a person in respect of a charge set out in an information or informations, or any included charge, at any time after the person has made an election, re-election or deemed election on the information or informations. [ 43 ] Where a person charged with an indictable offence elects to be tried by a Provincial Court judge, as permitted by s. 536, the Provincial Court has jurisdiction as the trial court (s. 554(1)), and the trial proceeds on the charges set out in the information.

C. Re-election following an initial election to Provincial Court [ 44 ] An accused person who initially elects to be tried by a Provincial Court judge may re-elect a different mode of trial, in accordance with s. 561. The relevant portions of that

section read as follows: Right to re-elect 561

(2) An accused who elects to be tried by a provincial court judge or who does not request a preliminary inquiry under subsection 536(4) may, not later than 14 days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor. … Idem

(4) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect together with the written consent of the prosecutor, where that consent is required, to the provincial court judge before whom the accused appeared and pleaded or to a clerk of the court.

… Time and place for re-election

(6) Where a provincial court judge or judge or clerk of the court is notified under paragraph (3)(

b) or subsection (4) or (5) that the accusedwishes to re-elect, the provincial court judge or judge shall forthwith appoint a time and place for the accused to re-elect and shall causenotice thereof to be given to the accused and the prosecutor. Proceedings on re-election

(7) The accused shall attend or, if he is in custody, shall be produced at the time and place appointed under subsection (6) and shall, after (

a) the charge on which he has been ordered to stand trial or the indictment, where an indictment has been preferred pursuant to section566, 574 or 577 or is filed with the court before which the indictment is to be preferred pursuant to

section 577, or (

b) in the case of a re-election under subsection (1) before the completion of the preliminary inquiry or under subsection (2), theinformation has been read to the accused, be put to his re-election in the following words or in words to the like effect: You have given notice of your wish to re-elect the mode of your trial. You now have the option to do so. How do you wish to re-elect? [45] These provisions create a number of procedural requirements where an accused person who initially elected to be tried by aProvincial Court judge wishes to re-elect. They include the following: (

a) the accused must give notice to the Provincial Court judge before whom the accused originally pleaded (or to a clerk of thecourt) of the intention to re-elect, along with the consent of the prosecutor where that consent is required (s. 561(4)); (

b) once notified, a Provincial Court clerk must appoint a time and place for the re-election (s. 561(6)); and (

c) at that time and place, a Provincial Court judge must put the formal wording of s. 561(7) to the accused, and then record there-election. [46] The rights of election and re-election in ss. 536 and 561 apply to all persons charged with indictable offences not specificallyexcepted from the operation of those sections. The formalities of these sections are important and, although they can be waived, any suchwaiver must be clear and unequivocal: Korponay v Attorney General of Canada, (SCC), [1982] 1 SCR 41 [Korponay]. [47]

Section 536.2 also provides that an accused person who wishes to re-elect the mode of trial may do so in writing, withoutmaking a personal appearance in court. D. Limits on the right of election [48] While the ability to choose one’s mode of trial is an important component of full answer and defence, it is not an unlimitedright. [49] For instance, there are certain circumstances in which an accused person does not have access to the full menu of choices forhis or her mode of trial.

For all offences listed in s. 469, trial by a Provincial Court judge is not an available option; the trial must be heldin the superior court. For offences listed in s. 553, the Provincial Court has absolute jurisdiction; an accused person charged with such anoffence cannot elect to be tried by a superior court judge sitting alone, or by a judge and jury. By virtue of s. 568, the Attorney Generalmay require a trial by judge and jury for certain offences, regardless of the accused’s election.

And, where the Crown proceeds by filing adirect indictment under s. 577, the trial must proceed in the superior court and the accused person is deemed to have elected to be tried bya judge and jury (s. 565(2)), unless he or she re-elects to be tried by a judge alone under s. 565(3). [50] The Criminal Code also makes provision for elections to be overridden in some instances, even once they have been made andrecorded.

One such example is s. 555, which provides as follows: Provincial court judge may decide to hold preliminary inquiry 555(1) Where in any proceedings under this Part an accused is before a provincial court judge and it appears to the provincial court judgethat for any reason the charge should be prosecuted by indictment, he may, at any time before the accused has entered on his defence,decide not to adjudicate and shall thereupon inform the accused of his decision and continue the proceedings as a preliminary inquiry. [51] This means a trial in Provincial Court is not guaranteed to an accused person, even where he or she elects that method of trialunder s. 536.

Where a Provincial Court judge before whom an accused person is being tried invokes s. 555(1) and decides to continue theproceedings as a preliminary inquiry rather than proceeding to adjudicate the matter, s. 565(1)(

a) deems the accused to have elected to betried by a court composed of a judge and jury. [52] There are also a number of situations where the Criminal Code permits a court to decline to record an accused person’s electionor re-election, or to deem an accused person to have elected or re-elected a certain mode of trial. One example is where an accused persondoes not make an election when called upon to do so under s. 536. Where that occurs, s. 565(1)(

c) provides that the person is deemed tohave elected to be tried by judge and jury. [53] Accused persons may also be unable to have their preferred method of trial in cases where multiple individuals are jointlycharged. In such circumstances, where jointly charged accused persons wish to enter different elections, their individual elections (or re-elections) may also be refused, and deemed elections entered. In that respect, s. 567 reads as follows: Mode of trial when two or more accused

567 Despite any other provision of this Part, if two or more persons are jointly charged in an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the justice, provincial court judge or judge may decline to record any election,re-election or deemed election for trial by a provincial court judge or a judge without a jury. [54] Where a justice, Provincial Court judge or judge declines to record an election, re-election or deemed election under s. 567, allaccused persons jointly charged in an information will be deemed to have elected trial by judge and jury (s. 565(1)(b)).

E. The importance of elections – general principles [55] The Criminal Code provisions governing election and re-election of modes of trial attempt to strike a balance between anaccused person’s right to make full answer and defence and the public interest in efficient, expeditious and fair proceedings. As HendersonJ. noted in R v Conway-McDowall, 2019 ABQB 11: [30] The Criminal Code contains a complex series of provisions which determine the mode of trial for indictable offences. In somesituations the accused person has a right to elect and then re-elect the mode of trial.

In other situations, the accused person has no right ofelection and is deemed to have made an election as the mode of trial. Where there is a deemed election, in some situations there is no rightto re-elect and in other situations there is only a limited right of re- election.

The consent of the Crown is required in some, but not all,situations where the accused person seeks to re-elect. … [33] The scheme of the election and re-election provisions of the Criminal Code suggest that Parliament intended to attempt to balancethe rights of the accused person and the rights of the Crown in relation to mode of trial. ... [56] I agree with this characterization of the scheme of the election and re-election provisions of the Criminal Code.

A balancemust be struck. [57] That said, subject to the limitations set out in the Criminal Code, the election of one’s mode of trial is a critical part of acriminal proceeding, and s. 536 is designed to ensure that an accused is given an opportunity to make a clear and unambiguous choice inthat regard. It is for this reason that the court is required to put the election to the accused in the wording specified in s. 536(2) at the timewhen that election is made.

A valid election requires substantial compliance with s. 536(2), or 536.2: R v Trites, 2011 NBCA 5, 268 CCC(3d) 206 [Trites]; R v Albert, 2014 NBCA 27, 419 NBR (2d) 307 [Albert]. [58] An accused can, of course, waive the requirements of s. 536(2), but any such waiver must be clear and unequivocal, and madewith full knowledge of the rights that are being waived and the effect that waiver will have on those rights: Korponay; R v George, 2016BCCA 229. [59] The importance of the procedural protection provided by s. 536(2) has been highlighted in a number of cases.

In R v Sewell,2003 SKCA 52, [2004] 6 WWR 694, this Court adopted the reasoning in R v Mitchell (1997), (ON CA), 121 CCC (3d)139 (Ont CA), where Doherty J.A. wrote: [28] If an accused has an election as to the mode of trial, that election should be put to the accused in the language of s. 536(2). Absentwaiver of the procedural requirements of that section, a failure to put the accused to his or her election, in terms which at leastsubstantially comply with the

section is a procedural error resulting in a loss of jurisdiction to conduct either a trial or a preliminaryinquiry: R. v. Wiseberg (1973), (ON CA), 15 C.C.C. (2d) 26 (Ont. C.A.); R. v. Lewis (1978), (ONCA), 43 C.C.C. (2d) 479 (Ont. C.A.); R. v. Kalkhorany (1994), (ON CA), 71 O.A.C. 39 at 41, 89 C.C.C. (3d) 184(C.A.). The purported election on February 28th bore little resemblance to the procedure set out in the Criminal Code.

This is a case ofnon-compliance with the procedural requirements of s. 536(2). [60] In a similar vein, in R v Branscombe, 2017 SKCA 71, this Court cited Trites and Albert with approval, noting that an accusedhas an “imposing interest” in being able to elect his or her mode of trial, and concluded that, absent waiver, a failure to put an accused toan election under s. 536(2) results in a loss of jurisdiction to conduct a trial. [61] Such procedural rigour is properly applied, in my view, to re-elections as well.

The procedural formalities set out in s. 561 mustbe followed, or at least substantially complied with, in the absence of a clear, unequivocal and informed waiver.

In Korponay, theSupreme Court described the importance of the procedural protections in what is now s. 561 (at 49–51): Indeed, the court is saying in Park that the validity of such a waiver, and I should add that that is so of any waiver, is dependent upon itbeing clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights theprocedure was enacted to protect and of the effect the waiver will have on those rights in the process.

This has long been recognized, as isillustrated by many cases, and particularly so by those dealing with a judge’s duties as regards a plea of guilty, which is the waiver by anaccused of his right to put the Crown’s case to the test of a trial. (See amongst others, Adgey v. The Queen; Brosseau v. The Queen, (SCC), [1969] S.C.R. 181). The judge’s duties concerning any waiver are no different than those on a plea of guilty.

Thefactors he will take into account in determining whether the accused has clearly and unequivocally made an informed decision to waivehis rights will vary depending on the nature of the procedural requirement being waived and the importance of the right it was enacted toprotect. However, always relevant will be the fact that the accused is or is not represented by counsel, counsel’s experience and, in myview of great importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events aretaking place.

I will now consider those principles as they apply to the procedural requirements of s. 492. First let us look at the notice that an accused may give to the sheriff. To identify the right of the accused Parliament intended to protectthrough this procedure one must look at the purpose of the notice. That purpose is revealed by the fact that it creates an obligation uponthe sheriff to “forthwith inform” the judge who in turn “shall fix a time and place for the accused to re-elect” and then “cause notice

thereof to be given to the accused”. The right to be protected by the procedural enactment is that of the accused, wishing to re-elect, to have a timely opportunity to do so. He is entitled to have the judge informed of his wish, and thus require the judge to act under the section. An accused who has in fact acted on that opportunity cannot later complain that the notice requirement needed waiver by him as it obviously, in those circumstances, no longer had any purpose. As for the notice that the judge must give the accused, it is to ensure that he will know where and when to attend to re-elect.

An accused who does in fact agree to a time and place to attend would clearly and unequivocally be waiving that notice. The procedural step set out in s. 492(3), requiring the use of certain words, is there to ensure that an accused is properly informed of the choice he has made and the one he now proposes to adopt. His alternatives in the case at bar would be trial by a court composed of a judge and jury, which he has formerly chosen, or trial by judge or magistrate alone, which he then contemplated.

An informed waiver must therefore be, as regards that portion of s. 492, a clear and unequivocal indication by the accused himself or through his counsel that he knows the words that the law says must be used when putting him to his re-election, that he does not require that those words be uttered to him, that he knows he was going to have a trial before a judge and jury, that he still has the right to such a trial but that he still has the right to re-elect for a trial before a judge sitting without a jury or a magistrate. (Emphasis in original) [ 62 ] While the importance of substantial procedural compliance in the obtaining and recording of elections and re-elections is clear, non-compliance is not always fatal to jurisdiction.

For instance, where statements made by the accused or counsel indicate an intention to make a certain election and all subsequent actions by the accused and counsel are consistent with that election and inconsistent with any equivocation as to choice of mode of trial, substance should prevail over form and an election may be found to be valid, despite the absence of procedural formalities: see, for example, R v Vuong , 2010 ONCA 798 , 272 OAC 101; R v Lamoureux , 2013 ABCA 85 , 542 AR 386 [ Lamoureux ]. F. Application to this case 1.

The Respondents were not automatically entitled to revert to their original election once the proceedings against Mr. Hassan were stayed [ 63 ] The trial judge in this case determined that, once the Crown consented to Mr. Hassan’s re-election to Provincial Court and severed him from the indictment, Mr. Ali and Mr. Dickson were automatically entitled to revert to their original election to be tried by a Provincial Court judge. This, in my view, is an error. [ 64 ] In R v Charles , 2015 SKQB 381 [ Charles ], two jointly-charged accused, Ms. Charles and Mr.

Kaiswatum, were facing charges of robbery and having their faces masked while committing the robbery. The trial proceeded before a jury because Ms. Charles elected that method of trial. Mr. Kaiswatum had initially elected trial by judge alone, but was “dragged along” with Ms. Charles’ jury election under s. 567 of the Criminal Code . Part way through the trial, Ms. Charles decided to change her plea to guilty. Mr.

Kaiswatum argued that, as a result, the court should declare a mistrial or, alternatively, that the jury should be discharged, and his trial should continue before a judge alone, in accordance with his original election.The trial judge denied Mr. Kaiswatum’s application. In doing so, he dismissed the argument that, in circumstances such as these, the conclusion of proceedings against the accused whose election triggered the operation of ss. 567 and 565(1) (

b) means that the proceedings against the remaining accused automatically revert to their original election. [ 65 ] A similar conclusion was reached in R v Wright , 2011 ABQB 145 , 517 AR 169, where Germain J. noted that an election prescribed by operation of law is still an election, and any re-election can only be accomplished in accordance with the provisions of the Criminal Code . [ 66 ] I agree with this reasoning.

Accordingly, in this case, if the Respondents re-elected, or were properly deemed to have re-elected their mode of trial as a result of the operation of the Criminal Code , then the conclusion of the proceedings against Mr. Hassan did not affect that re-election. Their election would not revert to trial by a Provincial Court judge simply because the Crown stayed proceedings against the person whose inconsistent election had triggered a re-election or deemed re-election. 2.

The Respondents did not explicitly re-elect to be tried by Court of Queen’s Bench judge alone [ 67 ] In this case, there is nothing in the record to indicate that either Mr. Ali or Mr. Dickson explicitly re-elected trial by a Queen’s Bench judge sitting alone. [ 68 ] When the Provincial Court judge accepted and recorded Mr. Hassan’s re-election on May 10, 2017, the procedure set out in s. 561 of the Criminal Code was not followed in respect of Mr. Hassan.

This was proper because he had filed a written document, in accordance with s. 536.2, conveying his intention to re-elect and had done so in compliance with the temporal requirements of s. 561(2) . [ 69 ] However, after dealing with Mr. Hassan, the Provincial Court judge did not address the issue of re-election with Mr. Dickson in the words of s. 561 of the Criminal Code , or in any wording that conveyed the substance of that

section to him. Instead, the Provincial Court judge simply accepted Crown counsel’s assertion that Mr. Hassan’s re-election was automatically binding on Mr. Dickson. In my view, he did so in error. [ 70 ] With respect, Mr. Hassan’s re-election to be tried by Queen’s Bench judge alone did not “bind” the co-accused to the same election because it was an election to a higher court. The Criminal Code does not so provide, nor does the jurisprudence support such a proposition. [ 71 ] A re-election by one jointly charged person is not binding on the others, but s. 567 obliges the judge before whom the re-

election is raised to consider whether or not it is appropriate to permit inconsistent elections to be recorded. If the judge determines it is not appropriate, then he or she may decline to enter inconsistent elections, with the result being that all accused will be deemed to have elected trial by judge and jury. At best, in this case, the prosecutor misstated the substance of s. 567 . [ 72 ] Mr. Dickson was not present and, although Mr. Combe conveyed to the Court that he had instructions to consent to a committal for trial, he said nothing about the matter of election.

He did not indicate he was waiving any formalities or that he was aware of the legally incorrect nature of the Crown’s representation. [ 73 ] When Mr. Ali appeared in court on May 18, 2017, the Provincial Court judge presiding that day raised the question of whether Mr. Ali wished to re-elect. However, Crown counsel intervened and once again advised the Court that the co-accused elected a higher court and, as such, Mr. Ali was bound by that election.

Once again, the Provincial Court judge accepted the Crown’s misstatement of the law and indicated that the endorsement would read that there was a consent committal by Mr. Ali “pursuant to his deemed election of Queen’s Bench judge alone”. While neither Mr. Ali nor his counsel took issue with this characterization, they also gave no clear indication of an intention to re-elect to be tried by a Queen’s Bench judge alone.

The record does not show that they waived the procedural formalities relating to re-election. [ 74 ] While the Respondents, through their counsel, both consented to be ordered to stand trial, evidence of a clear intention by either of them to re-elect to be tried by Queen’s Bench judge alone is absent from the record. 3.

The Respondents did not re-elect to be tried by a Court of Queen’s Bench judge alone through their conduct [ 75 ] In the circumstances of this case, I am not persuaded that the trial judge erred in failing to find that the Respondents effectively re-elected to trial by Queen’s Bench judge alone through a course of clear and unequivocal conduct consistent with an intention to have their trial proceed in that fashion. [ 76 ] Granted, counsel for the Respondents each consented to an order to stand trial on their behalf.

And, following that, neither of the Respondents took any steps to challenge the committal for trial or to quash the indictment. Both appeared at several pretrials and participated in the scheduling of trial dates in the Court of Queen’s Bench. But there was no positive statement at any point, by either of the Respondents or their counsel, that they wished to make a re-election to be tried by Queen’s Bench judge alone. When in Provincial Court, counsel for the Respondents both appeared to accept the statement of law made by the Crown regarding the binding nature of Mr. Hassan’s re-election on them.

Neither counsel appeared to turn their mind to the issue or recognize that the Crown’s assertion was incorrect. Furthermore, as soon as the trial judge raised the issue of elections at the Court of Queen’s Bench, counsel for both Respondents made it clear that it had always been their wish to have their trial in Provincial Court: MR. COMBE: Mr. Hassan was represented by Mr. Lavier at the time, Your Honour. When we had set the matter to report before Judge Agnew, I actually had showed up to a trial because I was unaware that the -- one of the co-accused had in fact elected judge alone. Mr.

Ali was represented by Mr. Nolin -- THE COURT: Yes. MR. COMBE: -- and he came expecting to run a trial at -- THE COURT: In Provincial Court? MR. COMBE: -- in Provincial Court. Oh sorry, in Provincial Court. We both showed up and then we were informed that it was here for preliminary inquiry. And I remember the date specifically because at that point, I just didn’t see any point in running a preliminary inquiry, so I just consented to waive the matter up to there. But my instructions from Mr. Dickson all along were to do that and the trial sheet was prepared to set it down for trial.

And so I wasn’t aware at that time that it was set for preliminary inquiry. I was just actually reading my notes over because I was figuring out who the players were. So it was, in fact, Mr. Hassan who had made the election and that’s where everything sort of went… THE COURT: That’s my read of the endorsements. MR. COMBE: And that’s -- and that’s how it went, Judge … MR. STOOSHINOFF: Court does not have jurisdiction over this individual until he is arraigned. He could have been arraigned in January, he could have been arraigned in April -- THE COURT: April. MR. STOOSHINOFF: -- before Justice Dawson.

He wasn’t; neither Ali or Dickson were arraigned. Court has no jurisdiction over the individual. When we were discussing this back in June, the reason that we couldn’t address the issue of going back to Provincial Court is because Mr. Dickson wasn’t present in court. I think he was -- at that point we had to get a warrant so that he could be brought before the court. THE COURT: M-hm. MR. STOOSHINOFF: So, I think that’s -- MR. COMBE: That’s right. MR. STOOSHINOFF: Yeah. So that’s why we were struggling with that issue and Justice Allbright had very little -- little choice in the

matter. Mr. Miller wanted a warrant and we didn’t know what ultimately Mr. Dickson’s desire was but now that he’s here and he wants Provincial Court and my client certainly wants Provincial Court. They both elected it and they haven’t been arraigned. I think they’re -- this is a clear situation the court no longer has jurisdiction, or does not have jurisdiction because it’s never assumed jurisdiction over the individual in the first time. He’s never been arraigned, the court ought to simply dismiss the indictment.

The Informations ought to be sent back to Provincial Court and we’ll deal with it in Provincial Court. [ 77 ] Accordingly, the situation in this case is distinguishable from the circumstances in Vuong and Lamoureux . In each of those cases, counsel for the accused had expressed in court, on a number of occasions, an intention to make a certain election and pursued a course of conduct that was consistent and unequivocal with respect to that election. That is not the case here. 4.

The Respondents were not properly deemed to have elected trial in the superior court under s. 567 [ 78 ] Given its wording, s. 567 is intended to guard against the unnecessary duplication of proceedings in respect of accused jointly charged with the same offence(s). It reflects the general principle that persons jointly charged should be tried together: R c Weinberg , 2014 QCCS 321 .

It is also clear from the wording that, while s. 567 may prevent some accused persons from having their choice of method of trial, Parliament intended to avoid infringing upon the right to a jury trial (for applicable offences) guaranteed by s. 11(

f) of the Charter . [ 79 ] It is not mandatory that a justice, Provincial Court judge or judge decline to record inconsistent elections when one co-accused wishes to elect or re-elect a different mode of trial than the others. The use of the word “may” is intended to confer a discretion. [ 80 ] While the Criminal Code does not provide any guidance as to how this discretion is to be exercised, the wording of s. 567 recognizes that, even once all jointly-charged accused have made an election, a re-election by one of them brings the elections of the others back into issue.

Where an accused who seeks to re-elect wishes to change the mode of trial from one that is mutual, the judge before whom the re-election is being made is required to raise the issue of election with the co-accused, in a way that substantially complies with s. 561 . In my view, this is the only method by which a court can properly exercise the discretion granted by s. 567 to determine whether or not to decline to record any inconsistent election.

To put that another way, where all jointly-charged accused have initially elected the same mode of trial, and one or more of them subsequently wishes to re-elect, it is incumbent upon the judge before whom that re-election is made to canvas whether the remaining co-accused wish to re-elect in a similar fashion. If they do, that re-election should take place in accordance with the procedure set out in s. 561, with necessary modifications.

If one or more co-accused does not wish to re-elect, then the judge before whom the matter is proceeding must turn his or her mind to s. 567 . [ 81 ] Proper exercise of the discretion afforded by s. 567 also requires the judge making the determination, in addition to being aware of the interest in avoiding unnecessary duplication of proceedings, to have regard for how the interests of the accused, the Crown, and the administration of justice may be affected by permitting or refusing to permit the recording of inconsistent elections for persons jointly charged. [ 82 ] In that regard, a justice or judge must be cognizant of the fact that permitting the recording of inconsistent elections may have the effect of severing proceedings in cases where the Crown’s intention is to proceed against the accused jointly.

Section 567 is not intended to provide accused persons who are jointly charged with the ability to unilaterally sever themselves from a joint information or indictment by simply electing or re-electing a different mode of trial. [ 83 ]

Section 567 uses the words “[d]espite any other provision of this Part”, which means it operates notwithstanding the other provisions in

Part XIX. Severance, however, is governed by s. 591(3) of the Criminal Code , which is located in

Part XX and reads as follows: Severance of accused and counts 591

(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; and (

b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts. [ 84 ] The Criminal Code permits the Crown to charge individuals jointly. An order for severance will only be granted where the interests of justice require it. [ 85 ] Section 591(3) requires an application to be made to the trial court and requires the judge hearing such an application to consider a number of factors to determine whether the interests of justice require severance.

Justice Watt lists those factors in R v Durant , 2019 ONCA 74 , 144 OR (3d) 465 [ Durant ], citing R v Last , 2009 SCC 45 , [2009] 3 SCR 146 [ Last ], and R v Jeanvenne , 2010 ONCA 706 , 261 CCC (3d) 462 [ Jeanvenne ]: [71] Orders for severance of counts under s. 591(3) (

a) are discretionary. They do not issue as of right. The

section confers a discretion and sets a standard governing its exercise. To engage the discretion, the judge must be satisfied that “the interests of justice” require severance. But s. 591(3)(

a) is unrevealing of the factors or considerations of which the judge may or must take account in deciding whether “the interests of justice” require severance. [72] In general terms, the phrase “interests of justice” endeavours to balance an accused’s interest in being tried on evidence properly admissible against him or her and society’s interest that justice be done in a reasonably efficient and cost-effective manner: Last , at para. 16 ; Jeanvenne , at para. 28 . [73] Over time courts have added content to the ubiquitous phrase “interests of justice” as it appears in s. 591(3)(a).

They have done so by designating a number of factors as worthy of consideration in determining where the interests of justice lie in any factual matrix, but

counselling against the dispositive influence of any specific factor.

Illustrative of the factors are these: i. general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts; ii. the legal and factual nexus between or among counts; iii. the complexity of the evidence; iv. the desire of the accused to testify on one or more counts but not on another or others; v. the possibility of inconsistent verdicts; vi. the desire to avoid a multiplicity of proceedings; vii. the use of evidence of similar acts; viii. the length of trial; ix. prejudice to the accused’s right to be tried within a reasonable time; and x. the existence or likelihood of antagonistic defences.

See, Last, at para. 18; Jeanvenne, at para. 29. [86] I agree that the factors listed above are those that must guide a judge’s exercise of discretion. As the decision in Durantdemonstrates, severance is a weighty matter. It requires a delicate balancing of many factors, an an exercise of discretion on the part of thejudge making such an order: R v Litchfield, (SCC), [1993] 4 SCR 333.

In my view, there is nothing in the Criminal Codeor the jurisprudence that suggests s. 567 was intended to give an accused person the right to do an “end run” around s. 591(3) and effect aseverance of a joint information by simply electing a different mode of trial. [87] All of that said, in this case, neither the Provincial Court judge who ordered Mr. Dickson to stand trial nor the Provincial Courtjudge who ordered Mr. Ali to stand trial exercised their discretion under s. 567. [88] Mr. Ali, Mr. Dickson and Mr.

Hassan had all initially elected to be tried by Provincial Court judge on November 29, 2016.Subsequent to that, Mr. Hassan gave notice of his intention to re-elect to be tried by Queen’s Bench judge alone. He was in time to do soas of right, under s. 561(2). This was clearly an inconsistent election, which brought s. 567 into play. It was also an election to a mode oftrial other than by judge and jury. Despite that, neither of the Provincial Court judges declined to record Mr. Hassan’s re-election.

To thecontrary, his re-election was recorded and he was ordered to stand trial in accordance with it. [89] The Provincial Court judges, both relying on the Crown’s statement of the law, and defence counsel’s acquiescence, thendeemed both Mr. Dickson and Mr. Ali to be “bound” by that election to trial by judge alone. Nothing in the Criminal Code provided theauthority for them to do so. [90] In the circumstances of this case, once the Provincial Court judge, on May 10, 2017, permitted and recorded Mr. Hassan’s re-election, he was required by s. 562(2) to proceed with a preliminary inquiry. Mr.

Hassan waived the preliminary inquiry and consented toan order that he stand trial. This left the Provincial Court judges with a number of procedural options under the Criminal Code. They wereas follows: (

a) Allow Mr. Hassan’s inconsistent election to stand, in effect severing the proceedings (although, as I observed earlier, thejurisprudence would suggest that this option would not be appropriate as it would amount to permitting Mr. Hassan to unilaterally effect aseverance in a manner that does not comply with s. 591(3)). (

b) Put the question of re-election to Mr. Ali and Mr. Dickson in a way that substantially complied with s. 561 of the CriminalCode, or obtain a clear waiver of those formalities and give them the opportunity to re-elect the same mode of trial as Mr. Hassan. If Mr.Ali and Mr. Dickson did not wish to make the same re-election, the Provincial Court judge could exercise his discretion under s. 567 todecline to record the inconsistent elections, and deem all three accused to have elected trial by judge and jury. (

c) Invoke s. 555(1) of the Criminal Code, decline to adjudicate on Mr. Ali and Mr. Dickson’s matters, and continue theproceedings against them as a preliminary inquiry (after informing them of his intention to do so), in which case their elections would bedeemed to be trial by judge and jury under s. 565(1)(a). (Resort to this option, of course, would also have the effect of severing theproceedings in a way that does not comply with s. 591(3).) [91] The Provincial Court judges before whom Mr. Dickson appeared on May 10, 2017, and before whom Mr. Ali appeared on May18, 2017, did not follow this procedure.

Both simply deemed Mr. Ali and Mr. Dickson to have been “bound” by the re-election made byMr. Hassan, that being trial by judge alone. In my view, they had no legal authority to do so. [92] Neither of the Provincial Court judges in this case exercised the first option. Inconsistent elections were not permitted to standand Mr. Hassan was not severed from the information. [93] Nor did either of the Provincial Court judges exercise the second option. While counsel for both Respondents, at some point,accepted the Crown’s misstatement of the law, agreed that they were “bound” by Mr.

Hassan’s re-election and agreed to be ordered tostand trial, this cannot be seen as substantial compliance with the procedural requirements of s. 561 regarding re-elections nor does itamount to a clear and unequivocal waiver of those requirements. The record reflects no mention of waiver and contains no indication,from the comments made by counsel, that the Respondents understood what rights they were giving up by doing so. [94] Moreover, neither of the Provincial Court judges declined to record “any election, re-election or deemed election for trial by a

provincial court judge or a judge without a jury.” In fact, they did the opposite: they both recorded elections for the Respondents of trial by judge without a jury, despite the fact that such an election was not explicitly made and the fact that no provision in the Criminal Code permitted them to deem such an election to have been made. [ 95 ] Finally, while the third option I mention above could have been invoked, and the fact that Mr.

Hassan had re-elected trial by Queen’s Bench judge alone and consented to an order to stand trial may have been a reason for the Provincial Court judges to decide to continue proceedings against the Respondents as a preliminary inquiry under s. 555(1) (with a deemed judge and jury election), there is nothing in the record to indicate that either of the Provincial Court judges turned their minds to s. 555(1) or that they were acting under the authority of that section. 5.

The indictment before the trial judge was not supported by a proper order to stand trial [ 96 ] An indictment was before the trial judge on October 16, 2018. It was preferred on the basis of the orders to stand trial made by the Provincial Court judges on May 10, 2017, and May 18, 2017, which were “consent” orders to stand trial, made under s. 549 . [ 97 ]

Section 549 permits a judge at a preliminary inquiry to order an accused person to stand trial in the court having criminal jurisdiction. For indictable offences where there is a right of election, the court having criminal jurisdiction is the court in which the accused has elected, or is deemed by operation of law to have elected, to be tried. [ 98 ] In this case, neither of the Respondents elected to be tried in the Court of Queen’s Bench. Given the way in which the matter was dealt with in Provincial Court following Mr.

Hassan’s initial re-election, neither of the Respondents was properly deemed by operation of law to have elected to be tried in the Court of Queen’s Bench. As a result, their “consent” to be ordered to stand trial had no legal effect and did not provide authority for the Crown to prefer an indictment against them. Accordingly, the Court of Queen’s Bench had no jurisdiction over the indictment against the Respondents. There was a route that could have been followed to properly deem the Respondents to have elected to be tried by a judge and jury, but that route was not followed.

Given the fundamental importance of the election of one’s mode of trial and the role it plays in full answer and defence it would not be appropriate, in my view, to retroactively connect the dots at this stage. VI. conclusion [ 99 ] For the foregoing reasons, I conclude that although there were errors in the trial judge’s reasoning, she was correct to determine that she lacked jurisdiction over the indictment. [ 100 ] Accordingly, the Crown’s appeal is dismissed. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Jackson J.A.” for: Whitmore J.A.