Criminal - Elections. R. v. R.W.
In R. v. R.W. (Ont CA, 2023) the Court of Appeal considers the law of criminal 'elections', including that of Crown consent to a re-election:
C. The Appellant’s election as to mode of trial
 I will discuss the law of elections in greater detail below, but in order to understand what went wrong in this case, it is necessary to briefly mention the limitations that are placed on an accused person’s ability to re-elect their mode of trial.
 The appellant initially elected to be tried by a court composed of a judge and a jury. At the relevant time, s. 561(1)(b) of the Criminal Code provided that the appellant had the right to re-elect to be tried by a judge of the Superior Court without a jury, as of right, until the fifteenth day after the completion of the preliminary inquiry. After that, the consent of the Crown is required.
 In this case, the notice of re-election was not filed on time. However, on its Pre-Trial Form signed by the Crown, one day after the deadline to re-elect, the Crown answered the questions – “Is there any prospect of a re-election” and “Will the Crown consent?” – in the affirmative. By the time of the Pre-Trial Conference, the Crown had changed its mind. As explained below, the missed deadline was the fault of trial counsel; the reason for the Crown’s withdrawal of its consent to the appellant’s re-election is unknown.
 Before applying these factors, it is helpful to consider the elemental nature of the right to elect the mode of trial. It has long been recognized in Canadian criminal law that the right of an accused person to elect their preferred mode of trial is of critical importance. This view crystallized in G. Arthur Martin’s famous essay, “The Role and Responsibility of the Defence Advocate” (1969-1970), 12 Crim. L.Q. 376 at pp. 387-388, in which he identified three decisions in a criminal case that are so fundamental that the lawyer cannot make them on behalf of their client: (1) the election as to mode of trial; (2) how to plead; and (3) whether to testify: see also R v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at paras. 17-18; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 56-57; and R. v. McDonald, 2022 ONCA 838, 164 O.R. (3d) 321, at paras. 31 and 35.
 In Stark, a case that also concerned an election as to the mode of trial, Lauwers J.A. described the decision as “whether to waive trial by jury where that is permissible”: at para. 17. This approach highlights the constitutional nature of the decision. As he wrote, at para. 19:
Parliament has chosen to give accused who are charged with the more serious crimes a choice as to the mode of trial. That right is partly constitutionalized in s. 11(f) of the Charter, which guarantees a right to trial by jury for offences punishable by a sentence of five years or more. The exercise of the right to choose the mode of trial is integral to the court's jurisdiction over an accused and is essential to the fairness of the proceeding. The Crown does not take issue with the fundamental nature of the right to elect the mode of trial. However, she submits that the same values do not attach to re-election decisions. I disagree. The right to re-elect is an extension of the original right to choose one’s mode of trial. Parliament has provided a limited right to re-visit the original election. It is part and parcel of the same fundamental decision.
 The Crown’s decision to withhold its consent to a re-election is a matter of prosecutorial discretion, reviewable on the basis of an abuse of process standard. In R. v. E.(L.), (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), Finlayson J.A. said, at p. 241: “I think that there would have to be some showing before the trial judge that the crown had exercised its discretion arbitrarily, capriciously or for some improper motive so as to invite an examination as to whether there was an abuse of process under Section 7 of the Charter” or when “constitutional considerations are engaged”: see also R. v. McGregor (1999), 1999 CanLII 2553 (ON CA), 43 O.R. (3d) 455 (C.A.), at p. 457-458, R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 83, and R. v. Ng, 2003 ABCA 1, 327 A.R. 215, leave to appeal refused  S.C.C.A. No. 33, at paras. 56-68.
 Moreover, because the Crown is not required to provide reasons for its refusal to consent, “it is extraordinarily difficult for an accused to make out an abuse of process claim on this basis”: see Steven Penney, Vincenzo Rondinelli, and James Stribopoulos, Criminal Procedure in Canada, 3rd ed. (Toronto: LexisNexis, 2022), at §9.02.
 It is difficult to gauge whether the appellant’s motion would have been successful had it not been abandoned. The Crown’s change of position may have increased the appellant’s chances of success. If the motion had been brought but was unsuccessful, trial counsel’s mistake in missing the deadline would have been cemented, making the IAC claim even stronger.
 But the appellant should not be in a weaker position by making or acquiescing in the decision not to pursue the motion – it was predicated on erroneous legal advice. In R. v. K.M.M., 2020 ONCA 736, the court considered inadequate advice in the context of the accused person’s decision whether to testify. As Doherty J.A. said, at para. 91:
An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying. In those situations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about the conduct of his defence. That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial. [Emphasis added.]The same principles apply in this case.
 The last factor to consider on the IAC claim is whether the appellant has established that the shortcomings in trial counsel’s representation resulted in a miscarriage of justice. As noted above, the Supreme Court of Canada in White held that the mere loss of the right to elect one’s mode of trial does not necessarily amount to a miscarriage of justice. An appellant must demonstrate subjective prejudice. The claim in White failed on this basis. As Karakatsanis J. said, “Here, Mr. White failed to state that he would have chosen differently had counsel informed him of his right to elect his mode of trial.”
 That is not the situation here. The appellant was adamant in his desire to be tried by a court composed of a judge sitting without a jury. The Crown submits that, if he was sincere, he should have followed through with his motion, but he did not do so. But as I have explained above, the appellant was not provided with proper advice about his options to rectify the predicament created by trial counsel’s initial misstep in missing the deadline, and the Crown’s curious change of position and subsequent intransigence on the issue.