S.C.C. File No. 32603 IN THE SUPREME COURT OF (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 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 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 , 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 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 ?

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 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. The issue of the time delay becomes a defence to the charge. That appears to be an absolute defence, and the charge is dismissed. In those cases the accused is deemed to have been in jeopardy, and the plea of autrefois acquit is available.

e The Crown is not granted permission to re-elect, the Crown then withdraws the charge and re-lays the Information, electing to proceed by Indictment. The issue of abuse of process is then advanced, and, depending on the perception of fairness with respect to this procedure, the charge may be stayed as an abuse of process.

0 The accused may raise the issue after conviction. The matter would then have to go to appeal. It would likely be an abuse of process for the Crown to raise this issue after acquittal.

15. Prior to the amendment to section 786(2), contained in S.C. 1997, c. 18, s. 110, the Crown was forced to proceed by indictment on a charge even if the public interest favored proceeding summarily, where the offence occurred more than six months prior to the charge being 'instituted' via the swearing of an Information. Page 8

16. The Ont. C.A. said in R. v. ~elly',at paragraph 55, referring to R. v. l3oufilier2, about the mistaken election to proceed summarily':

1551 At page 333 (in Boutilier), it is said that the accused was alleged to have committed a relatively minor offence "not serious enough to justify proceeding by indictment." With respect, this is to misinterpret or misunderstand the Crown's election. That election, to proceed summarily, signified a choice between two means of prosecuting, not a choice befween prosecuting by way of indictment and not prosecuting at all.

17. The Court in Kelly (supra) also referred to R. v ~elai?and noted with approval Martin J.A.'s statement at page 339 of that decision that it was clear that "[flheoffence charged was at all times triable by indictment, and indeed the lnformation charged an indictable offence until the Crown elected to treat the offence as one punishable on summary conviction".

18. The 1996 amendment under 786(2) took into account that a charge could be properly pursued in the public interest, but that the circumstances may well warrant proceeding summarily rather than by Indictment, despite the passage of time.

19. The amendment also allowed the accused person to decide whether or not they wished to exercise their right to elect a mode of trial, despite the disadvantages that would accrue if found guilty of an indictable offence. The accused of course also could choose to consent to the Crown's suggestion that the matter proceed summarily.

20. Some Courts had stayed charges where the Crown had re-laid the lnformation and proceeded by indictment. In those circumstances some Courts concluded that the

' R. v. Kelly 1998 CarswellOnt 3240,112 O.A.C. 55,128 C.C.C. (3d) 206 (Ont. C.A.) (Tab 8, Respondent's Book of Authorities) ". v. Boutilier 1995 CarswellNS 168,45 C.R. (4th) 345, 104 C.C.C. (3d) 327 (N.S.C.A.) (Tab 4, Respondent's Book of Authorities) R. v. Belnir 1988 CarswellOnt 66'64 C.R. (3d) 179,26 O.A.C. 340'41 C.C.C. (3d) 329 (Ont. C.A.) (Tab 3, Respondent's Book of Authorities) Page 9

Crown's initial assessment of the charge as not being worthy of a prosecution by indictment resulted in an abuse of process when the summary election was found to be out of time.

21. The comments of the Ontario Court of Appeal in Kelly (supra), as noted above, describe that assessment as misguided. That assessment assumes that, if the Crown had noticed the time lapse, they would have withdrawn the charge or directed the police not to lay it. If that was the case, it is surprising that the Crown would go to the trouble to relay the charge and require the accused to return to court.

22. With respect, judgments such as that referred to in Boutilier (supra) over- emphasized the meaning and import of the original election.

23. Crown election as to mode of procedure on a hybrid offence occurs very early in the procedure. However, when this kind of error is made, the error may be discovered immediately, or, as here, just before the matter was set for a guilty plea. Based on the analysis in many of the cases where a stay of proceedings was entered, it seems reasonable to conclude that the more time that has passed between the time of the error and the time it is pointed out to the court, the more likely it is that any re-laying of the charge will be found to constitute an abuse of process. Accordingly, it would seem to be to the accused's advantage to not bring this error to the Court's attention early.

Is there discretion in the Court to consider whether to refuse or permit a Crown election or re-election?

24. It is not suggested that, if the Crown had chosen to proceed by Indictment in the first instance, that the Court could have interfered with that election, required the Crown to justify it or immediately entered a stay for abuse of process. It does not follow either Page 70 that, after trial, the Court could conclude that the offence was not worthy of prosecution by indictment and stayed the charge at that point.

25. In this case the accused was not asked if she wished to proceed summarily, rather than by Indictment, pursuant to that provision in section 786(2). The proposition that the accused cannot consent to be tried pursuant to an lnformation that is by definition a nullity strongly suggests that such an election by the Crown does not change the nature of the lnformation that initiated the proceedings.

26. It is not clear from section 786(2) as to whether or not the Appellant in this case could have given her consent to proceed by summary procedure at the time the matter was before Wenden J. However, as the Alberta Court of Appeal said in paragraph 15, (Page 17, Appellant's Record) the amendment "is an indicator of Parliamentary intent that the underlying information remains valid even in the face of an invalid election. If it did not, this statutory amendment would have the unlikely result that the parties, through the mere fact of consent, could make valid what would otherwise be a fundamentally void proceeding".

27. However, some cases seem to suggest that the Crown may have the option to're-elect' and proceed by indictment, thereby resurrecting the lnformation by the re- election. In this case, for example, the Court seemed to accept that the Crown had the ability to re-elect to proceed by indictment with the consent of the Court, but, having refused that re-election, the lnformation then became a nullity. Again, it seems unlikely that a new election could 'resurrect' an information that was a nullity.

28. In R. v. Beare the Court said at paragraph 54:

R. v. Beare 1987 Carswellsask 674, El9891 1 W.W.R. 97, [I9881 2 S.C.R. 387,66 C.R. (3d) 97,45 C.C.C. (3d) 57, 36 C.R.R. 90,55 D.L.R. (4th) 481,88 N.R. 205,71 Sask. R. 1 (S.C.C.) (Tab 2, Respondent's Book of Authorities) Page I I

1571 The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice. Discretion is an essential feature of the criminal justice system.. ..Police necessarily exercise discretion in deciding when to lay charges, to and to conduct incidental searches, as do in deciding whether or not to withdraw charges, enter a stay, consent to an adjournment, proceed by indictment or summary conviction, launch an appeal and so on.

29. In Abarca v. R.~,the court stated that the Crown attorney, when exercising the discretion to proceed by way of indictment, was acting as an officer of the Crown and the decision was not reviewable by the Court (at paragraph 17).

30. This point had been stated clearly as well is Smythe v. R.~at paragraph 11 regarding the challenge to the Crown's election of indictment on a hybrid charge under the Income Tax Act where the Court concluded:

[II] ...In brief, appellant's submission is potentially destructive of statutory ministerial discretion conferred upon a Minister of the Crown for the administration of the law in Canada and tantamount to a recognition that Parliament has used an oblique method to paralyze the administration of the law.

31. In Karpinski (supra) Kerwin C.J.C. said at paragraph 1 that the Crown had the 'right' to change its election, as well as the ability to re-lay the information and proceed by indictment. Although Fauteux J. had noted at paragraph 30 that the Ontario Court of Appeal had accepted the proposition that the Crown had no right to change its election once the accused had entered a plea, that correctness of that proposition did not appear to be accepted by the Court.

32. The Alberta Court of Appeal, in R. v. J. ( R.w.)~(hereinafter referred to as J. (R.W.)) at paragraph 7, referring to the Crown's election to proceed by indictment on a

Abarca v. R. 1980 CarswellOnt 1278,57 C.C.C. (2d) 410 (Ont. C.A.) (Tab 1, Respondent's Book of Authorities) 6~mytllev. R. 1971 CarswellOnt 34, 16 C.R.N.S. 147, [I9711 1 S.C.R. 680,3 C.C.C. (2d) 366, 19 D.L.R. (3d) 480 (S.C.C.) (Tab 14, Respondent's Book of Authorities) R. V. Jans 1990 CarswellAlta 459, [I9901 A.J. No. 823,108 A.R. 324,59 C.C.C. (3d) 398 (Alta. C.A.) (Tab 14, Appellant's materials) Page 12 new lnformation after the Crown had withdrawn the first lnformation because of the time issue, said; "Indeed, it is very doubtful that the courts have the power thus to review on the merits that decision to go by indictment."

33. While not specifically referenced in Karpinski (supra) the case law seems clear that the Court has no discretion to either accept, reject, or refuse a Crown election or re- election. The remedy for an improper re-election is a stay of proceedings based on an abuse of process. No such process or analysis was evidenced here.

34. The combination of these provisions was correctly analyzed by the Alberta Court of Appeal, who concluded that in these circumstances the election by the Crown was a nullity and that the offence retained its indictable designation. Accordingly, the Court concluded that the matter should be returned to the Provincial Court where the accused could be offered the option of proceeding summarily. If that option was declined, the accused would then be allowed to make her election on the charge under section 368(1).

35. If the mistaken election was, as the Alberta Court of Appeal stated, a nullity, there was no need for the Crown to formally re-elect, as by default, with no valid election to try the matter by summary proced~r~,the charge is deemed to be indictable.

36. If the re-election was needed, and the learned trial judge had the ability to review the exercise of that discretion, he erred in doing so. The accused had not referred to any evidence that demonstrated that she had committed herself to a course of action that would cause her any unfair consequences if a Crown re-election was allowed. Nor did the learned trial judge provide any analysis as to why the Crown's request to re-elect to indictable procedure should be denied. Page 13

37. The Alberta Court of Appeal, at paragraph [I91 briefly addressed this issue. It said:

[I91 On the other hand, if the Crown is not precluded at any stage from re-electing to proceed by indictment, upon the discovery of the problem it could simply convert the proceedings into an indictable process which continue (sic) to completion on that basis, unless the accused agreed to permit it to proceed summarily.

38. It is the Respondent's position that there does not need to be a 'formal' re- election in these circumstances. Without the accused's consent to proceed by summary procedure, the matter is dealt with as an indictable offence as no valid election to proceed summarily is before the Court.

Stay of Proceedings

39. As the learned trial judge did not enter a stay of proceedings, and the Alberta Court of Appeal did not overturn any such stay, this issue is not before this Court. The fact that the Court had commented that the learned trial judge had 'implicitly' entered a stay did not result in a need for an analysis of whether or not the Alberta Court of Appeal had interfered with an exercise of the lower Court's discretion.

40. The Court simply found that the learned trial judge had erred in law in declaring the Information a nullity. In that case, the Crown could simply have re-laid the charge and brought the accused back to Provincial court, where the process could begin again. If the learned trial judge had entered a stay, that option would not have been open to the Crown.

41. However, for clarity's sake, it is the Respondent's submission that any exercise of discretion by the Court here did not accord with the basic rules covering such Page 14 exercise. There was no analysis of fault, no Charter analysis. The Court did not explain why the Crown should not be allowed to re-elect.

42. This Court, in Regan v. R.~set out the standard of review for exercises of discretion, including the entry of a stay of proceedings at paragraphs I17 and 118. At paragraph 188, the Court noted:

[I18) This does not mean, however, that the trial judge is completely insulated from review. It is settled law that where the Trial judge made some palpable and overriding error which affected his assessment of the facts", the decision based on these facts may be reversed.. ..I also find that he misdirected the law for granting a stay by overlooking key elements of the analysis, thereby committing an error which was properly reversed by the Court of Appeal.

43. The Alberta Court of Appeal, in R v. 4. (R.w)'dismissed an appeal of conviction in essentially the same circumstances. The Crown had laid a new information and elected to proceed by indictment on the new information. The accused had been convicted on the second information and applied to the Court of Appeal for a stay of proceedings, and the Court declined to do so. The Court stated that it was 'doubtful' that the courts have the power to review on the merits that decision, and at paragraph 9 said:

[9] The test (for a stay) is thus exacting but not very precise. One need not a panoramic view of the leading cases, but they do reinforce this statement. They do not grant stays for small injuries or simple violations of the cannons of good sportsmanship.

44. For example, in R. v. Kelly (supra) the question of whether or not the Crown election was a nullity was agreed upon, but the issue was whether or not a stay of

R. v. Regn~t2002 CarswellNS 61,2002 SCC 12, 161 C.C.C. (3d) 97,209 D.L.R. (4th) 41,49 C.R. (5th) 1, [2002] 1 S.C.R. 297 (S.C.C.) (Tab 12, Respondent's Book of Authorities) R. V. J. (R. W) 1990 CarswellAlta 459,108 A.R. 324,59 C.C.C. (3d) 398 (Alta. C.A.) (Tab 5, Respondent's Book of Authorities) [R. v. Jans Tab 14, Appellant's materials) Page 15 proceedings was appropriate. After referring to R. v. ~ower"regarding the concept of fairness and abuse of process shocking the conscience of the community, the Ontario Court of Appeal, referring to this type of situation, said:

[64] This is not one of such cases. There is no suggestion of improper motive or bad faith. There was only an error or oversight on the part of the prosecution. That error or oversight may have some negative consequences for the respondent. The significance of that risk, however, is a relatively minor matter when compared with the interest of the public in having the charge prosecuted.

45. Here there was no finding of a Charter breach, no discussion as to why proceeding with this case by indictment would be oppressive or vexatious and no discussion as to why this simple Crown error was of such seriousness that it was the 'clearest of cases' where a stay is appropriate. (see Regan (supra) at paragraphs 50- 57) (see contra, R. v. Boutilier , Tab 10, Appellant's materials at page 9 and R. v. ~g" at paragraphs 22-33 and Kelly (supra) at paragraphs 59 - 64)).

46. In R. v. s.D.'~(hereinafter referred to as S.D.), the Court discussed the issue of the ability of the Crown to re-elect in the context of a charge under the Young Offender's Act, beginning at paragraph 48. The conclusion appeared to be that the Crown had the right to re-elect following the discovery of a mistaken election, but the trial judge then had the ability to either allow or deny that re-election based on an assessment of prejudice to the accused. A major factor, the Court said, in that assessment was whether or not evidence had been called (at paragraph 55).

'O R. v. Power 1994 CarswellNfld 9,29 C.R. (4th) 1, 165 N.R. 241,89 C.C.C. (3d) 1, [I9941 1 S.C.R. 601 (S.C.C.) l1 R. v. Ng 2003 CarswellAlta 613,2003 ABCA 1,173 C.C.C. (3d) 349, leave denied [2007] S.C.C.A. No. 205,375 N.R. 293 (note), 433 A.R. 399 (note) 2007 CarswellAlta 943 (S.C.C.) (Tab 9, Respondent's Book of Authorities) 12R. v.S. D. (1997)[1997]N.J.No.202, 154Nfld.&P.E.I.R.225, 119C.C. C.(3d)65,35 W.C.B.(2d)492 (Tab 13, Appellant's Book of Authorities) Page 16

47. As well, in S.D. (supra) the Court discussed the idea of a deemed consent to the procedure that was being followed during the course of the trial. At paragraph 36 the Court said:

1351 Thus, the presumption in s. 34 of the Interpretation Act can be displaced where it is clear from what subsequently happens that it was intended to proceed by one way or the other, and the parties acted accordingly.

48. The conclusion that both the Crown and the defence are to be bound by a matter that has proceeded to verdict under a mistaken Crown election relates to the ability for explicit consent that was not present in many of the earlier quoted cases. This would avoid the situation that was spoken of in R. v. chernI3 (Tab 12, Appellant's materials) where the Alberta Court of Appeal was concerned that an accused could successfully 'hide in the weeds' (paragraph 17) respecting a mistaken Crown election. That Court discussed the issue of 'informed consent' and added at paragraph 17 that "If on the merits he was acquitted, he would be able to confirm the consent, but if he were convicted, he could argue that he had not been informed and that therefore the waiver by his counsel did not bind him. "

49. There is no suggestion of 'hiding in the weeds1in this matter, but it should be noted that the charges had been in court numerous times prior to the decision by Wenden P.C.J. without anyone, the Court, Student Legal Services, or counsel for the Appellant or counsel for the Crown, noticing the error. This failure to recognize this error, plain on the face of the Information, has the same result as 'lying in the weeds' would.

50. The case law seems to suggest that the longer this error remains uncorrected, the more likely an abuse of process will be found and a stay of proceedings entered. Page 17

However such an error or oversight occurred, entering a stay of proceedings in these circumstances does not seem to be the kind of 'clearest of cases' that would support a stay of proceedings.

Autre fois acquit

51. In J.(R.W) (supra), at paragraph 6, the Court had discussed two later Supreme Court cases which were said to have overruled this Court's decision in R. v. Karpinski (Tab 15, Appellant's materials) regarding the applicability of the plea of autrefois acquit. The two cases referred to were R. v. Riddle (SCC) (Tab 22, Appellant's authorities) and R. v. Peterson (SCC) (Tab 21, Appellant's authorities).

52. In Peterson (supra) the trial judge had concluded that the Court did not have jurisdiction to hear the information, and dismissed two informations. This Court ruled that in those circumstances the trial Court did have jurisdiction, the accused person was in jeopardy and the plea of autrefois acquit applied. The information in question however had neither been declared a nullity nor quashed.

53. In Riddle (supra) the Information remained valid, the accused had entered a plea and an application by the Crown for an adjournment was refused. In those circumstances the accused was found to be put in jeopardy. On that factual basis, this Court found that the plea of autrefois acquit applied.

54. In the Respondent's submission, neither of those cases overrules the decision in Karpinski (supra) regarding jurisdiction to hear and decide the matter and whether the plea of autrefois acquit applies in these circumstances.

l3 R. v. Chern 2005 CarswellAlta 94, 194 C. C. C. (3d) 43,363 A.R. 95,343 W.A.C. 95 (Tab 12, Appellant's Book of Authorities) Page 18

55. If, in this case and others like it, the Court had jurisdiction to hear the information and the accused was in jeopardy, then any attempt by the Crown to re-lay it, either by Indictment or by summary conviction with the consent of the accused, would be met with a successful plea of autrefois acquit. As Cartwright J. had said in dissent at paragraph 21 of Karpinski (supra):

21. Applying the reasoning of the above passages to the facts of the case at bar, it appears that in the course of the trial Mr. Smither brought to the attention of the learned the undisputed fact that the alleged offence was committed more than six months before the commencement of the proceedings. In doing so he was not raising a technical ground which would be a bar to the magistrate adjudicating upon the charge, & was bringing forward a defence in law to which there was no answer. To use the words of Graham J,, quoted above, any further trial "was unnecessaryJ',the learned magistrate was in a position to pass upon the merits as no evidence could have been given that would have altered the result. (emphasis added)

56. That appeared to be the result in the Alberta Summary Conviction Appeal decision in R. v. Bushel1 (Tab 11, Appellant's materials) The Alberta Court of Appeal briefly discussed this decision at paragraph 10 of its decision, but only for the issue of whether or not the information was valid still. The Bushel1 decision did suggest that the information should be dismissed as being out of time and thus a 'defence in law to which there was no answer' as stated by Cartwright J. in Karpinski (supra).

57. If the Court concludes that the election is binding and that the accused is in jeopardy, it does not seem that it is possible for the Crown to proceed without facing a plea of autrefois acquit. This seems true whether the error is brought to the Court's attention seconds after the accused has entered a plea or at the end of the trial.

58. That result, in the Respondent's submission, is out of proportion to the error made by the Crown in its initial election of summary procedure. Page 19

Institution of the Proceedings; The Relationship between Section 34 of the Interpretation Act and Parts XXVll and XVI of the Criminal Code

59. Part of the determination regarding whether or not the information is a nullity depends on whether or not the information was initially properly 'instituted'. The Newfoundland Court of Appeal had addressed that issue in S.D. (supra). At paragraph 13, while speaking specifically with respect to the Young Offender's Act situation, made a more general statement, namely that:

1131 . .. ?he nature of a hybrid offence is that it contemplates that at some later stage the Crown will elect one of two procedural tracks to follow. If it purports to elect summarily, it will be doing so in respect of which a proceeding has already been validly instituted. It follows, therefore, that the phraseology used in ss. 786 (2) ought not to be read literally as retrospectively invalidating something which the court has personal and subject-matter jurisdiction to entertain.

60. The Appellant suggests that this interpretation leads to the conclusion that the trial court had jurisdiction to hear the charge and that the improper election was a defence to that charge. (at paragraphs 26-27).

61. However, it is the Respondent's submission that if the proceeding was validly instituted a later mistaken election of summary procedure cannot retrospectively invalidate that valid proceeding.

62. That conclusion is confirmed by the cases that say that everything that is done from the time of that election is of no effect. In R. v. ~helps'~,the Ontario Court of Appeal found that the Crown election was a nullity and that all proceedings thereafter were also a nullity. (at paragraphs 12-15) Part of that judgment also concluded that the

l4 R. V. PI~elps1993 CarswellOnt 794,79 C.C.C. (3d) 550 (Ont. C.A.) (Tab 11, Respondent's Book of Authorities) Page 20 trial court had no jurisdiction to dismiss the charge. The election did not invalidate that originally valid institution of the charge.

63. In R. v. ~urcin'~,Mr. Turcin was facing a re-laid charge in Provincial Court, and was applying to the Court of Queen's Bench for a judicial review of the lower court's decision to declare the information a nullity and return the matter to provincial court. Macklin J, hearing the application set out at paragraph 20, said that there were three questions to be determined: (i) was the Information a nullity?, (ii) was the Crown precluded from electing to proceed by indictment?, and (iii) would proceeding by indictment result in an abuse of process? The learned trial judge summed up the appellant's dilemma at paragraph 25 as follows:

1251 The Applicant's counsel expressed concerns over the possibility of an agreement with the Crown to proceed by judge alone, as this might be considered as acquiescing to the Crown's approach. He noted that when the Crown proceeded summarily, he had not given express consent to the summary procedure outside the six month limitation. Nor did he consent when the issue arose at trial. He thought the time for consent had passed. He was operating under the Bushel1 regime and did not want to eradicate his client's defence. In any event, even at mid-trial, the Crown did not give him the option to proceed summarily.

64. The learned applications judge referred to the Court of Appeal's decision in Dudley and went on to conclude at paragraph [57] that:

1571 It would be, in my view, somewhat illogical to distinguish these cases on the sole basis of whether or not the trial has started, in that such an approach would encourage accused to wait until trial to raise the defence. This would encourage inefficiencies in the administration of the criminal justice system, and would certainly not be in keeping with the purposes of the legislation as determined by Bielby J.

65. The Appellant asserts, beginning at paragraph 29 of her factum that the Provincial Court judge acted properly in giving effect to the legislative intent of

l5 R. v. Turci~z2008 CarswellAlta 471,2008 ABQB 23 1 (Tab 13, Respondent's Book of Authorities) Page 21

Parliament. The Appellant asked the question, as posed in Bushel1 (supra) if there was a judicial repeal of subsection 786(2) of the Criminal Code.

66. In discussing the interpretation of statutes, the factum refers to "The Interpretation of Legislation in canadaI6 at paragraph 31 with respect to the issue of adding or deleting words in an enactment. However, it is not suggested that in this case that the Alberta Court of Appeal did either of these things. In any event, Cijte went on to say, at page 277 of the 3rdedition of his text, that "Although a common interpretive argument, the rule is not absolute: one should not ask it provide more than it is capable of-it merely states a presumption".

67. Nor did the Alberta Court of Appeal find any ambiguity in the subsection. The Court did in fact, as recommended in the quote from The Construction of Statutes by Drieger in paragraph 29 of her factum, read the subsection in its entire context and harmonious with the scheme of the Act, the object of the Act and the of Parliament.

68. The Appellant, in paragraph 32, referred to the judgment of LaForest J. in New Brunswick v. Estabrooks Pontiac Buick Ltd. (Tab 5, Appellant's Book of Authorities) regarding the Court's duty to give effect to the intention of Parliament when the words of the enactment are clear.

69. Here, because the wording of these sections did not clearly set out the various options available where a mistaken election was made, the Alberta Court of Appeal made reference to statements in the House of Commons to assist in the interpretation

l6 Pierre Andre Ciit6, The Interpretation ofLegislation in Canada, 3d ed. (Toronto: Carswell, 2000) (Tab 17, Respondent's Book of Authorities) Page 22 of the legislative intent behind these amendments (Hansard, June lothl 1996, page 3536-354517).

70. Beginning at paragraph 37 of their reasons, the Alberta Court of Appeal discussed the apparent reasons behind the introduction of the amendment allowing a summary election by consent. The Court concluded at paragraph 38 that Parliament intended to allow the Crown to re-elect in the absence of prejudice to the accused. Finally, again referring to the Parliamentary record, that "no Parliamentary purpose has been suggested that would be addressed by prohibiting effective Crown re-election on a hybrid offence."

71. Section 34 of the Interpretation Act '*separates two types of offences. It is clear that the only offences that are deemed to be summary conviction offences are ones where there is nothing in the context to suggest that the offence is an indictable offence.

72. The Alberta Court of Appeal briefly discussed subsection 34(3) in its decision in the case at bar. At paragraph 28, they concluded that this subsection is designed to

'remove the deeming of indictableness' following convictions after a summary conviction election on a hybrid offence, rather than such an election resulting in changing the matter to one instituted under the summary conviction part of the Code.

73. Although the Court did not refer to comments in Parliament in relation to this subsection, that is what in fact was said when this amendment was debated. In the debate about this subsection in the Standing Committee on Justice and Legal affairs Mr.

Thorson said in response to a question about the need for this amendment:

17 HC, Official Report (Hansard), Volume 134, No. 058, 2ndSession, 35' Parliament, June 10, 1996, pps. 3536-3545 (Tab 16, Respondent's Book of Authorities) I8 Interpretation Act R.S.C. 1985, as amended (Tab 18, Respondent's Book of Authorities) Page 23

Mr. Thorson: No. We wanted to guard against an argument coming up, and it could come up under a statute such as an immigration act where there are special provisions applicable to persons who may have been convicted of an indictable offence. If you have an offence on which a person can be prosecuted either the one way or the other, then this makes quite certain that he is not regarded as having been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction. Mr. Aiken: It is an indictable offence. Mr. Thorson: Yes, it is a safeguarding provi~ion.'~

74. The rules for laying an information instituting "proceedings under this part", where the offences are deemed to be summary offences pursuant to section 34 (l)(b) of the Interpretation Act (supra), are sections 786 and 788(1) in Part XXVll (Summary Proceedings) of the Criminal Code. A hybrid information has consistently been found to be, at least originally, an indictable offence because of the deeming provision in the Interpretation Act. Accordingly, these Part XXVll sections should not apply to lnformations where a hybrid offence is alleged.

75. The section dealing with lnformations that are deemed to be in reference to indictable offences, are covered by S.S. 504 and 505, in Part XVI of the Criminal Code. There is no limitation time period referred to in these sections, and there is no incorporation of either S.S. 786 or 788 with respect to time limitations for instituting proceedings. Section 795 of the Criminal Code incorporates Part XVI, including sections 504 and 505, only with respect to compelling the appearance of an accused before a justice.

76. The amendment to section 786(2) of the Criminal Code is best seen as permitting a summary procedure election where the information was instituted more

l9 Hansard, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 14"', 1967, pages 1027-1028 (Tab 15, Respondent's Book of Authorities) Page 24 than six months from the date of the offence. That amendment, it is submitted, supports the earlier interpretation that a summary election where the information was laid more than six months after the date(s) of the offence was a nullity, rather than the interpretation that such an election rendered the original information a nullity.

77. The logical interpretation, therefore, of section 786(2) of the Criminal Code is that there cannot be a valid summary procedure election, without the accused's consent, on that information where the proceedings were commenced more than six months after the time when the subject matter of the proceedings arose.

Fairness to the accused

78. The Appellant states at paragraphs 34-37 that fairness to the accused must be considered in assessing the denial of the Crown's application to re-elect to proceed by indictment.

79. The amendment to 786(2) does take into account the issue of fairness to the accused. This section allows the accused the benefits of a summary conviction procedure and the reduced consequences if a conviction should follow, when otherwise the Crown would have to proceed by indictment. While the Crown retains the right to exercise its discretion to prosecute an accused based on the public interest, the accused retains the ability to consent to the matter proceeding summarily. If the accused declines to consent, the issue of fairness of the Crown to the accused is not at issue.

80. In R. v. B. (M.)~',the British Columbia Court of Appeal dealt with a situation where the Crown had failed to make an election in a matter under the Young Offender's

20 R. V. B. (M.) 1997 CarswellBC 2058,119 C.C.C. (3d) 570,97 B.C.A.C. 83, 157 W.A.C. 83 (B.C.C.A.) (Tab 7, Appellant's materials) Page 25

Act. Counsel for the accused took the position that, under the YOA, where the Crown fails to make an election on a hybrid offence, the offence is deemed to be proceeding by summary conviction. At paragraphs 7-8, the British Columbia Court of Appeal followed Ontario's decision in R. v. B. (1) (1993) 93 C. C. C. (3d) 550 (Ont. C.A.) and said that, as the offence had occurred more than six months prior to the Information being sworn, the Crown could not elect to proceed by summary conviction, so the offence was treated as indictable and the Summary Conviction Appeal Court was correct in declining jurisdiction to hear the appeal. However, they also said that if the Crown had elected to proceed summarily, the information would have had to have been quashed. (at paragraph 8) Again, it is hard to see how this procedure, where the information was quashed on a summary election and returned to court to begin again, is 'more fair' to the accused.

81. R. v. ~au~~ar?'further illustrates the kind of analysis that arises from an attempt to perform some sort of statutory interpretation of the interaction between these sections. The Nova Scotia Court of Appeal succinctly sets out the problem in paragraph Iof the decision; "This appeal requires us to sort out a procedural conundrum. It results from unfortunate oversights at trial by the Crown, the defence and the judge." In the result, the Court considered that the Crown could not have elected to proceed summarily because of the passage of time, therefore the Crown was deemed to have proceeded by indictment. The whole set of charges had to be returned to Provincial Court for the proper formal Crown election and the election of mode of trial, where available, by the accused. In these types of circumstances, requiring the accused to start again from scratch does not seem fair to either party.

21 R. V. Paul-Marr 2005 CarswellNS 300,2005 NSCA 73,30 C.R. (6th) 161, 199 C.C.C. (3d) 424 (N.S.C.A.) (Tab 10, Respondent's Book of Authorities) Page 26

82. The Nova Scotia Court of Appeal, at paragraph 24, quoted with approval a ruling made by Doherty J.A. at paragraph 4 of R. v. Mitchell. Doherty J.A. had said that if the Crown failed to elect and the matter proceeded in a summary fashion, that was the election (i.e. summary) "[flhis '@resumptionnis best understood as a somewhat strained application of the "rule" that in applying the criminal law, ambiguities should be resolved in favour of the accused." In Doherty J.A.'s conclusion at paragraph 44 he noted that "In enacting that section (s. 686(1)(b)(4)) Parliament recognized that reversals of convictions which are the product of fair and error free trials is not the answer where there has been some procedural flaw in those proceedings." . However, the Nova Scotia Court of Appeal distinguished this case because not all the offences in Paul-Marrwere within the exclusive jurisdiction of the Provincial Court.

83. The Ontario Court of Appeal considered the possibility of converting a summary procedure trial into a trial by indictment when the error in Crown election was discovered part way through the hearing in R. v. Kalkhoranf2. That court said that, despite the consent of the defence to proceed with an indictable trial, that these errors were not simply 'procedural' in the circumstances and quashed the conviction. Part of the Court's concern there was whether or not the appeal process was governed by summary conviction rules or by the rules pertaining to Indictable offences. (see paragraphs 16-19) Although strictly not an issue of fairness to the accused, the Court discussed the problems these errors caused for both parties.

84. That issue of the proper appeal court discussed in Kalkhorany (supra) was one that faced the Crown here in its initial choice of appeal Court. If the summary election was binding, the appeal should have been in the Court of Queen's Bench, constituted as a Summary Appeal Conviction Court. If the summary election was deemed a nullity,

22 R. V. Kalkhoraity 1994 CarswellOnt 71'29 C.R. (4th) 379, 17 O.R. (3d) 783,89 C.C.C. (3d) 184,71 O.A.C. 39 (Ont. C.A.) (Tab 6, Respondent's Book of Authorities) Page 27 and the default position was that of an indictable offence, the proper reviewing Court was the Alberta Court of Appeal. In the result, the choice of Court was the Alberta Court of Appeal, and neither the Respondent in that Court, nor the Court itself, took issue with that choice. (For example see R. v. Kelly (supra) at paragraphs 25-29).

85. It is because of these various rulings and their permutations that it is difficult to craft a coherent set of rules for either the Crown or the accused.

86. In the result, most of these cases end up not being fair to the accused, the Courts, the Crown or the witnesses who may have testified to no purpose. In none of these cases has it been suggested that there been anything other than simple mistakes or oversights. Such errors can be expected when counsel and the Courts are handling the number of cases that they do on a daily basis. In the Respondent's submission, the unanswerable 'defence' of the expired time limit is not a proper or just solution in these types of circumstances.

Conclusion

87. It is the Respondent's submission that the amendment to section 786(2), allowing for the accused to consent to summary conviction procedure where the Information is laid more than six months following the commission of the offence, is designed to improve the efficiency of the Court system for hybrid offences.

88. Hybrid offences are, by definition, a type of offence where the circumstances of the offence have a wide range of facts that will support a conviction. The passage of time, by itself, is not necessarily the factor which will show that it is not in the public interest to prosecute. Page 28

89. Proceeding by summary conviction, with the consent of the accused, preserves the right of the Crown to proceed with this offence without involving a preliminary inquiry and a trial in the Court of Queen's Bench, where applicable, while preserving the right of the accused to take advantage of that procedure where it was deemed advantageous in all the circumstances.

90. . In none of the cases discussed in the various courts that have attempted to draft a reasonable interpretation of the interplay between the sections in the Criminal Code and the lnterpretafion Acf has there been any suggestion of Crown abuse of its authority. These cases originated with a simple Crown error, which was not brought to the attention of the Court until sometime following the entry of the Crown election.

91. It is not, in the Respondent's submission, a reasonable use of Court resources to declare the Information a nullity, and then require the Crown to re-lay the information, require the accused to respond to Court process to appear in Court to start the process anew. This is especially true now where it is likely that the accused would consent to a Crown election of summary conviction if there was no likelihood that the charge would be stayed for an abuse of process.

92. If the intent of Parliament was to simplify the process, so far that has not been the result. The most reasonable result for most cases is that put forward by the decision of the Alberta Court of Appeal in this case. The original Crown election of summary conviction is declared a nullity unless the accused, at the time the error is discovered, consents to the procedure.

93. If there is no consent, the matter is therefore deemed to be indictable, and the accused is given the election, if appropriate. If the accused chooses a mode of trial requiring a preliminary inquiry, the matter may proceed as such if reasonable in the Page 29 circumstances and both parties agree that the evidence, if any, heard prior to the discovery, be applied to the preliminary inquiry. If not, the procedure should be halted and resumed as if that evidence had not been heard.

94. A significant stumbling block occurs when the mistake is not discovered until after a verdict is rendered. If the matter is complete, the trial judge is functus, and is unable to then accept consent to the summary procedure. In that case it seems that there is no alternative but to declare the trial a nullity, and have the matter returned to Provincial Court for a Crown election, either of summary procedure by consent, or by indictment.

95. The only other resolution in those circumstances is to find that that the accused has impliedly consented to the summary conviction procedure. However, that interpretation is an extension of the concept of implied consent. Page 30

PART IV: SUBMISSION ON COSTS

96. Mot applicable. Page 31

PART V: ORDER SOUGHT

97. The Respondent asks that the appeal be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 9t17 day of February, 2009

/Yb . 1'' JIM BOWRON Counsel for the Respondent The Attorney General of Alberta Page 32

PART VI: TABLE OF AUTHORITIES

PARAGRAPH CASE LAW TAB NO. REFERENCE

Abarca v. R. 1980 CarswellOnt 1278, 57 C.C.C. (2d) 41 0 (Ont. C.A.) 1

New Brunswick V. Esfabrooks Ponfiac Buick Lfd., (1982), 44 N.B.R. (2d) 201 NIR

R. v. Beare 1987 CarswellSask 674, [I9891 1 W.W.R. 97, [I9881 2 S.C.R. 387,66 C. R. (3d) 97,45 C.C.C. (3d) 57, 36 C.R.R. 90, 55 D.L.R. (4'" 481, 88 N.R. 2 205, 71 Sask. R. 1 (S.C.C.)

R. v. Belair 1988 CarswellOnt 66, 64 C.R. (3d) 179, 26 O.A.C. 340,41 C.C.C. (3d) 329 (Ont. C.A.) 3

R. v. B. (I) (1993) 93 C. C.C. (3d) 550 (Ont. C.A.) NIR R. v. 5. (M) 1997 CarswellBC 2058, II 9 C.C.C. (3d) 570, 97 B.C.A.C. 83, 157 W.A.C. 83 (B.C.C.A.) NIR

R. v. Boufilier 1995 CarswellNS 168,45 C.R. (4th) 345, 104 C.C.C. (3d) 327 (N.S.C.A.) 4

R, v. Bushell [2000] 9 W.W.R. 489, (AB. Q.B.). NIR R. v. Chern, 2005 CarswellAlta 94, 194 C. C. C. (3d) 43, 363 A.R. 95, 343 W.A.C. 95 NIR

R. v. S. D. (1997) [I9971 N.J. No. 202, 154 Nfld. & P.E.I. R.225, 119C. C.C. (3d)65,35W.C.B.(2d) NIR 492

R. v. J. (R.W.) I990 CarswellAlta 459, 108 A.R. 324, 59 C.C.C. (3d) 398 (Alta. C.A.) [R. v. Jans Tab 14, 5 Appellant's materials)

R. v. Kalkhorany 1994 CarswellOnt 71, 29 C.R. (4th) 379,17 O.R. (3d) 783, 89 C.C.C. (3d) 184,71 6 O.A.C. 39 (Ont. C.A.)

R. v. Karpinski [I9571 S.C.R. 343 Page 33

R. v. Kelly 1998 CarswellOnt 3240, 112 O.A.C. 55, 128 C.C.C. (3d) 206 (Ont. C.A.)

R. v. Ng 2003 CarswellAlta 613, 2003 ABCA 1, 173 C.C.C. (3d) 349, leave denied [2007] S.C.C.A. No. 205, 375 N.R. 293 (note), 433 A.R. 399 (note) 2007 CarswellAlta 943 (S.C.C.)

R. v. Pawl-Marr 2005 CarswellNS 300,2005 NSCA 73, 30 C.R. (6th) 161, 199 C.C.C. (3d) 424 (N.S.C.A.) R. v. Peterson (1982), 69 C.C.C. (2d) 385 (S.C.C.)

R. v. Phelps 1993 CarswellOnt 794, 79 C.C.C. (3d) 550 (Ont. C.A.)

R. v. Power 1994 CarswellNfld 9, 29 C.R. (4th) 1, 165 N.R. 241, 89 C.C.C. (3d) 1, [I9941 IS.C.R. 601 (S.C.C.)

R. v. Regan 2002 CarswellNS 61,2002 SCC 12, 161 C.C.C. (3d) 97, 209 D.L.R. (4th) 41,49 C.R. (5th) 1, [2002] IS.C.R. 297 (S.C.C.)

R. v. Riddle (1979), 48 C.C.C. (2d) 365, (S.C.C.). NIR

R. v. Twrcin 2008 CarswellAlta 471, 2008 ABQB 231 13 Smythe v. R. 1971 CarswellOnt 34, 16 C.R.N.S. 147, [I9711 IS.C.R. 680,3 C.C.C. (2d) 366, 19 D.L.R. (3d) 480 (S.C.C.) Page 34

PARAGRAPH ARTICLES AND TEXTS TAB NO. REFERENCE

E. A. Drieger , Construction of Statutes, (Butterworths, Toronto, 2nd Ed., 1983) NIR 67

Hansard, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, 15 73 March 14'~~1967, pages 1027-1028

HC, Official Report (Hansard), Volume 134, No. 058, 2"d Session, 3!jth Parliament, June 10, 1996, pps. 16 69 3536-3545

Pierre Andre Ccite, The Interpretation of Legislation in Canada, 3d ed. (Toronto: Carswell, 2000) 17 66 Page 35

PART VII LEGISLATION

PARAGRAPH TAB NO. REFERENCE

Criminal Code of Canada, s. 368 NIR 34

Criminal Code of Canada, s. 504 and 505 NIR 75 10, 13,14, 15, 18, Criminal Code of Canada, s. 786 NIR 25, 26, 34, 65, 74, 75, 76, 77, 79, 82, 87 Criminal Code of Canada, s. 788 NIR 74 Criminal Code of Canada, s. 795 NIR 75

Interpretation Act R.S.C. 1985, as amended (s. 34) 18 11, 12, 13, 71, 72, 74,90

Young Offender's Act NIR 46,80