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Criminal law—Election of trial by judge and jury—Whether accused may elect the forum in which to be tried as well as the mode of trial—Criminal Code, R.S.C 1970, c. C-34, as amended by 1974-75-76, c. 93, ss. 429.1, 464, 482, 484, 492(3), 497(d), 507.

The appellant, the accused, was before a magistrate under Part XVI of the Criminal Code on a charge of an indictable offence which was not within the absolute jurisdiction of the magistrate nor within the exclusive jurisdiction of a superior court of criminal jurisdiction. He elected trial by a court composed of a judge and jury and requested that the judge be a Supreme Court judge. The magistrate refused to accept the accused’s election.

When an offence is not within the sole jurisdiction of a court composed of a judge and jury, jury trials in Ontario can be presided over by a Supreme Court judge or by a county court judge.

Thereupon the accused brought an application by way of certiorari and mandamus which was dismissed by the Ontario High Court. The Court of Appeal for Ontario dismissed the appeal.

Held: The appeal should be dismissed.

The success of this appeal rested on finding a necessary implication from ss. 482 and 484 to support election of the forum as well as the mode of trial. The appellant contrasted other provisions of the Code, such as ss. 464, 429.1, 492(3), 497(d) and 507, but no such implication as would support the appellant’s position could be made under the relevant provisions governing and surrounding election for trial.

The choice of forum is left open to the prosecution after an election by an accused pursuant to s. 484 of the Code.

R. v. Jory (1978), 46 C.C.C. (2d) 44, referred to.

[Page 249]

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal by the appellant from the dismissal by the Ontario High Court of an application by way of certiorari and mandamus. Appeal dismissed.

Julius Melnitzer, for the appellant.

David H. Doherty, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The issue in this appeal is whether an accused, who is before a magistrate under Part XVI of the Criminal Code on a charge of an indictable offence which is not within the absolute jurisdiction of the magistrate nor within the exclusive jurisdiction of a superior court of criminal jurisdiction, may, when put to his election under Criminal Code, s. 484(2), elect the forum in which he is to be tried as well as the mode of trial. In short, in electing trial by a court composed of a judge and jury, is he entitled to claim trial before a court composed of a Supreme Court judge and jury? Correlatively, should he elect trial by judge alone, is he entitled to specify trial by a Supreme Court judge alone?

This issue arose in Ontario where, prior to an amendment by 1974-75-76 (Can.), c. 93, s. 61, of the definition of “judge” in s. 482 of Part XVI, the term related in Ontario only to a judge or junior judge of the county or district court. As a result of the amendment, the definition of judge was extended to include a judge of the superior court of criminal jurisdiction in the province. Counsel for the appellant does not rely on this change as being decisive in his favour and, indeed, he could hardly do so because the definition of “judge” in the Province of British Columbia had, even before the amendment affecting Ontario, included the Chief Justice or a puisne judge of the Supreme Court and, similarly in Manitoba, had included the Chief Justice or a puisne judge of the Court of Queen’s Bench, as well as a judge of a county court in each of those Provinces.

[Page 250]

In some provinces, the question of choice not only of the mode of trial but of the forum is now predetermined by the merger of county and superior courts, as has happened in Prince Edward Island, in New Brunswick and in Alberta, where “judge” under s. 482 (as amended by 1978-79 (Can.), c. 11, s. 10(1)) now means a judge of the superior court of criminal jurisdiction in those Provinces. On the other hand, for Nova Scotia “judge” is defined as a judge of a county court, so that there too the mode of trial, by judge alone or a court composed of judge and jury, also determines the forum when an election is made under s. 484 and the accused chooses not to be tried by the magistrate. In short, the definition of “judge” determines the court level at which the Crown can proceed.

In the present case the magistrate refused to accept the accused’s election for trial by a court composed of Supreme Court judge and jury and directed that the election be entered in conformity with the words of s. 484(2) which reads as follows:

484. (1)…

(2) An accused to whom this section applies shall, after the information has been read to him, be put to his election in the following words:

You have the option to elect to be tried by a magistrate without a jury; 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. How do you elect to be tried?

Thereupon the accused brought an application by way of certiorari and mandamus which came before Trainor J. of the Ontario High Court who dismissed it. His judgment save for a qualification irrelevant to the issue in this case was affirmed by the Ontario Court of Appeal.

I am in substantial agreement with the reasons of Trainor J., save that (and this was a point made by the Crown respondent) it is not quite correct to say that the effect of the amendment of the definition of “judge” in Ontario was to allow the accused to re-elect without going through the pre-

[Page 251]

vious procedure of appearing before a county or district court judge. Rather, it was to enable a Supreme Court judge in Ontario to try indictable offences without a jury.

Counsel for the appellant had to make his case by finding a necessary implication from ss. 482 and 484. He emphasized the use of the indefinite article “a” in s. 484 and contrasted other provisions of the Criminal Code, such as ss. 464, 429.1 and 492(3). He also relied on the words of s. 484(3)(a), requiring a magistrate who commits an accused for trial to endorse on the information “a statement showing the nature of the election”. In my opinion, no such implication as would support the appellant’s position flows from the differences in the wording of s. 482(2) and (3).

Section 464 which is in Part XV of the Criminal Code and which provides for an election in the same terms as s. 484(2) where an accused is before a justice other than a magistrate does not help the contention of the appellant albeit there is no definition of “judge” in Part XV. The absence of a definition cannot enlarge the position of an accused vis-à-vis the Crown, nor can it gloss the words of s. 484(2) to give the accused the right to choose the forum. Nor is the contrast of s. 429.1 helpful to his position. It is an express illustration of a limited situation where the forum is prescribed. Under s. 429.1, an accused, on electing trial by a court composed of judge and jury, is to be tried by a court composed of a superior court judge and jury unless at the time of election he agrees to trial before a county or district court judge and jury or re-elects under s. 492 for trial before a juge alone, or, with the assent of the Attorney General, for trial by a magistrate. Even so s. 429.1 is qualified by reference to the powers of the Attorney General under s. 498 (i.e. in this context, to require trial by a court composed of a county or district court judge and jury).

[Page 252]

I do not question the concern of counsel for the accused that to deny his contention may leave too much power in the prosecution. However, the Crown has traditionally had the choice which counsel for the appellant now seeks to deny, and there is little point in trying to assess where the greater opportunities for abuse lie, whether with the Crown or with the accused. Certainly, where there are co-accused, each may choose a different forum, but counsel for the appellant answers this by pointing to overriding powers of the Attorney General. Be that as it may, the success of this appeal must rest on finding a necessary implication to support election of the forum as well as the mode of trial and I am unable to see how such an implication can be made under the relevant provisions governing and surrounding election for trial.

I have two other observations. It is true that s. 507 of the Criminal Code respecting the preferring of indictments in Ontario and in other specified provinces does not carry any definition of “judge” or “court”, there being no definition section in Part XVII. This, however, does not help the appellant; if anything, it fortifies the choice of forum that is left open to the prosecution in respect of an accused who has been put to his election after committal for trial, pursuant to s. 484.

The second observation concerns the judgment in R. v. Jory[1] a judgment of His Honour Judge Graburn, upon which counsel for the appellant heavily relied. It was a case where the accused had elected trial by a court composed of judge and jury and the Crown chose to proceed on the charges in the Supreme Court of Ontario. There were also co-accused involved. When the accused opted for re-election under s. 492 for trial before a judge alone, an issue arose whether, having regard to the counts under which the accused was charged, the re-election could take place before Judge Graburn or had to be made in the Supreme Court where the indictment had been sent. The fact that Judge Graburn concluded that he could take the re-elec-

[Page 253]

tion does not, in my view, mean that the accused could choose the forum. The re-election provisions are special provisions and do not colour the terms of s. 484.

It is true that Judge Graburn said he would invoke s. 497(d) if the accused should re-elect trial by judge alone in the County Court Judges’ Criminal Court and that he would then require him to be tried with his co-accused in the Supreme Court with a jury. I do not, however, regard these observations as considered conclusions that would lend support to the appellant’s contention. They are perhaps a reflection of the course of practice in such situations. The main question for Judge Graburn was whether the accused could re-elect before him. His observations about re-election for trial by judge alone in the County Court Judges’ Criminal Court are not supported by s. 492(3) nor does his invocation of s. 497(d) allow him to specify trial in the Supreme Court with a jury. Section 492(3) speaks only of re-election for trial before a judge alone without specification of forum and s. 497(d) speaks of discretion to require a trial by a court composed of a judge and jury, again without specification of the forum.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Cohen & Melnitzer, London.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

 



[1] (1978), 46 C.C.C. (2d) 44.

 

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