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IN the SUPREME COURT of CANADA (ON APPEAL from Tjie COURT of APPEAL for ALBERTA)

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IN the SUPREME COURT of CANADA (ON APPEAL from Tjie COURT of APPEAL for ALBERTA) S.C.C. File No. 32603 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM TJiE COURT OF APPEAL FOR ALBERTA) BETWEEN: STY LEANNE DUDLEY, Appellant (Respondent) - and - HER MAJESTY THE QUEEN, Respondent (Appellant) IPIESPBNDENT'S FACTUM Pursuant to Rule 36 of the Rules of the Supreme Court of Canada JIM BOWRON HENRY S. BROWN, Q.C. Alberta Department of Justice Gowling Lafleur Henderson LLP Criminal Justice Division Barristers & Solicitors Appeals Branch Suite 2600, 160 Elgin Street 3rd Floor, 9833 - 109 Street Ottawa, ON KIP 1C3 Edmonton, AB T5K 2E8 Phone: (613) 233-1781 Phone: (780) 422-5402 Fax: (613) 563-9869 Fax: (780) 422- 1106 Email: [email protected] Email: j im.bowron~,,nov.ab.ca Counsel for the Respondent Ottawa Agent for the Respondent AKRtiM ATTIA & DARYL J. ROYER HEATHER PERKINS-MCVEY Attia Reeves Tensfeldt Snow Barrister & Solicitor Barristers & Solicitors Suite 402,200 Elgin Street #200,10525 Jasper Avenue Ottawa, ON K2P 1L5 Edmonton, AB T5 J 124 Tel: (613) 231-1004 Tel: (780) 424-3334 Fax: (6 13) 23 1-4760 Fax: (780) 424-4252 Email: perltins-n~cve~(i?>,syn~,patico.ca Email: Counsel for the Appellant Ottawa Agent for Counsel for the Appellant The Factwn and Book of Authorities have been prepared in E-Appeal format. Page I TABLE OF CONTENTS PAGE PART I: OVERVIEW OF THE RESPONDENT'S POSITON ........................................2 Statement of Facts .............................................................................................. 2 PART 11: POINTS IN ISSUE ............................................................................................. 4 PART 111: ARGUMENT ...................................................................................................... 6 The Legislation and its effects ....................................................................6 Is there discretion in the Court to consider whether to refuse or permit a Crown election or re-election? ..................................................9 Stay of Proceedings .................................................................................13 Autre fois acquit ........................................................................................I? Institution of the Proceedings; The Relationship between Section 34 of the Interpretation Act and Parts XXVIl and XVI of the Criminal Code ...... 19 Fairness to the accused ...........................................................................24 Conclusion ................................................................................................27 PART IV: STJBMISSION ON COSTS .............................................................................. 30 PART V: ORDER SOUGHT ........................................................................................... 31 PART VI: TABLE OF AUTHORITIES ............................................................................ 32 PART VII LEGISLATION ............................................................................................... -35 Page 2 PART I: OVERVIEW OF THE RESPONDENT'S POSITON 1 It is the Respondent's position that the erroneous election of summary conviction on a hybrid offence should be treated as a nullity. If the error is discovered or relayed to the Court at any time before a verdict is entered, the accused should be given the option to consent to that summary election, and the matter would then continue as a trial. If the accused does not wish to consent, the accused should be given an election, and, if necessary, have the matter continued as a Preliminary Inquiry. Where no election is available to the accused, the matter would continue as an indictable trial. 2. There seems to be little efficiency in allowing the Crown to withdraw the information, or, if the Court has quashed the information, to re-lay the information and have the accused appear again in Court on the same charge. It seems much more reasonable to allow the Crown, when the error is discovered, to confirm that it is prepared to maintain the summary election if the accused consents and, if the accused does not consent, to proceed to deal with the information on the basis of the procedure applicable to an indictable offence. Statement of Facts 3. The Appellant appeared before Wenden P.C.J. on November 17'" 2007 charged with two offences. Count 1 alleged an offence under section 380(1) (b) of the Criminal Code, while Count 2 alleged an offence under section 368(1) (b) of the Criminal Code. The offences were alleged to have occurred between June 23rd,A.D. 2002 and May 3lSt,2004, and the Information was sworn in on January 30, 2006. (Information, Respondent's Record, Page 2). 4. The matter came before the Court on March gth, March 23, May 4'" May IB'~, June lSt,June 15'h, June 2gth and November 17'~,all in 2006. An endorsement of Page 3 Summary Conviction procedure was entered on the first appearance date. (Information and endorsements, Respondent's Record, Pages 2 - 5) 5. Count #I, was an offence which, if prosecuted by Indictment, was within the exclusive jurisdiction of the Provincial Court of Alberta pursuant to section 553(a)(iv), whereas the Respondent would have had an election as to mode of trial with respect to Count # 2 if the Crown had proceeded by Indictment. 6. Wenden P.C.J.'s first comment was that the Information was a 'nullity'. (Reasons for Judgment of the Provincial Court of Alberta, Appellant's Record Page 6, Page 4, lines 13-14 of the judgment) 7. When the Crown asked to re-elect to proceed by indictment, the learned trial judge told Crown counsel that the Crown was 'bound' by the earlier summary procedure election. Crown counsel did not agree with that ruling. (Reasons for Judgment of the Provincial Court of Alberta, Appellant's Record, Page 8, page 5, line 21-page 6, line Iof the judgment) 8. The learned trial judge's final decision was that the offence was a 'nullity' and the Crown could appeal that if it wanted. (Reasons for Judgment of the Provincial Court of Alberta, Appellant's record page 10, lines 1-26) 9. The Alberta Court of Appeal ruled that the learned trial judge had erred in law by declaring the information a nullity. (Appellant's Record, page 25, Reasons for Judgment of the Alberta Court of Appeal at paragraph 60) Page 4 P I: POINTS IN ISSUE 10. The Points in issue and the position of the Respondent A Did the Alberta Court of Appeal err in law in substituting the discretion of the Appellate Court for the discretion of the Learned Trial Judge on an issue involving the exercise of judicial discretion? Response: It is not clear which exercise of discretion is referred to here. Where there was an issue of discretion properly reviewed, it is the Respondent's position that any finding that the learned trial judge's discretion was exercised improperly was not in error. B. Did the Learned Trial Judge err in law in applying the correct test to the issue of whether or not a charge is a nullity when the Crown proceeded summarily outside the six-month time limitation pursuant to section 786(2) of the Criminal Code? Response; The Alberta Court of Appeal did not err when it concluded that in these circumstances it was the Crown summary election that was a nullity. C Did the Leaned Trial Judge err in law failing to allow a re-election pursuant to section 786(2) of the Criminal Code upon application of the prosecutor? Response: There is no provision in section 786(2) dealing with re-elections. In general a Court has no jurisdiction to allow or deny such exercise of Crown discretion. In these circumstances, as the summary election was a nullity, no re- election was needed. If, however, this Court finds that there was discretion in the court to deny a Crown re-election in these circumstances, the Alberta Court of Appeal correctly concluded here the learned trial judge erred in refusing to allow the Crown to proceed with the matter as an indictable procedure. Page 5 D Did the learned Trial Judge err in law by implicitly determining that a stay of the charges was appropriate? Response: The Learned Trial Judge explicitly declared that the Information was a nullity. The Alberta Court of Appeal dealt with the matter on the basis of that explicit ruling, rather than any implicit ruling involving a stay of proceedings. Further, no evidence was before the Court that these circumstances amounted to the clearest of cases where a stay of proceedings would be appropriate. Page 6 PART 112: ARGUMENT The Legislation and its effects 11. Parliament has set out the definitions for Indictable and Summary offences in section 34(1) of the Interpretation Act, R.S.C. 1985, c. 1-21, as amended. Subsection (c) deals specifically with the situation relating to a 'hybrid' offence. 12. With respect to s. 34(l)(a), under a plain reading of that section, a hybrid offence is deemed to be an indictable offence because it 'may be prosecuted by Indictment.' 13. However, a 'plain reading' of the combination of section 34(1) of the Interpretation Act and 786(1) and (2) of the Criminal Code has lead to a range of results when the Crown has mistakenly elected to proceed summarily on a hybrid offence and the offence was alleged to have occurred more than six months prior to the date the charge was instituted. 14. The most common results from this situation are: e The Information is declared a nullity and the Crown re-lays, electing to proceed by indictment. Section 786(2) would now allow a Crown election of summary procedure with the consent of the accused on the new Information. e The election is declared to be invalid or a nullity and the accused then faces a charge that, by definition, is indictable. Depending on the stage at which the proceeding has progressed to before this error is pointed out to the Court, the matter may then continue as a trial or preliminary inquiry, as the case may be. Page 7 8 The election is declared to be invalid or a nullity, and, where the accused has an election, all proceedings following that Crown election are declared to be null and void, and the Information is returned to the point where the accused can be given the opportunity to elect the mode of trial. e The election is found to be binding on the Crown, and the Court has jurisdiction to hear the matter.
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