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Criminal - Elections (2). R. v. G.H.
In R. v. G.H. (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here focussing on the timing of re-elections:[1] Under s. 561(2) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), an accused who has elected to be tried in the Ontario Court of Justice (“OCJ”) has a right to re-elect another mode of trial, specifically to be tried by either a Superior Court of Justice (“SCJ”) judge or by a court composed of an SCJ judge and a jury. That right may be exercised without the consent of the Crown but is subject to a deadline. The right must be exercised not later than 60 days before “the day first appointed for the trial”. This appeal turns on the proper interpretation of that phrase.
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[9] The determination of whether a date is “the day first appointed for the trial” focuses on the time the date is scheduled, rather than on what actually occurred on the scheduled date. A scheduled date will be “the day first appointed for the trial”, allowing the accused person to calculate the deadline for expiry of the right to re-elect, when it is the earliest date fixed by the court for any step that is part of the trial. For these purposes, fixed means the date has been set by the court and only the court can change it, and the word trial is to be understood expansively – it is not limited to the stage of the trial in which evidence is heard.
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II. THE STATUTORY RIGHT TO RE-ELECT AFTER A PROVINCIAL COURT TRIAL HAS INITIALLY BEEN CHOSEN
[11] The offences that the appellant was charged with were, at the time they were allegedly committed, subject to a maximum punishment of ten years imprisonment if the Crown elected to proceed by indictment. They attracted the constitutionally protected right to a jury trial, set out in s. 11(f) of the Canadian Charter of Rights and Freedoms, which provides, in relevant part, that:Any person charged with an offence has the right … to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment[.] [12] The right to a trial by jury may be waived by the person the right is designed to protect: R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, at pp. 1315-16. Once waived, “reliance on the Constitution ceases” and elections or re-elections are governed by “the provisions of the Criminal Code”: Turpin, at pp.1322-23.
[13] The Code recognizes the right of an accused charged with an offence such as sexual assault or sexual interference to a jury trial where the Crown is proceeding by indictment, as well as the ability to waive that right and elect a different mode of trial. Under s. 536(2.1) of the Code,[5] an accused may elect trial by a judge of the OCJ without a jury, trial by an SCJ judge without a jury, or trial by a court composed of an SCJ judge and a jury.
[14] If trial by a judge of the OCJ is initially chosen by the accused, the accused may re-elect a different mode of trial pursuant to s. 561(2) of the Code. Section 561(2) of the Code provides (i) a time-limited right to re-elect a different mode of trial without the Crown’s consent, and (ii) an opportunity to re-elect thereafter with the consent of the Crown. The applicable time limit, separating the right to re-elect without the consent of the Crown from the opportunity to re-elect only if the Crown consents, is “60 days before the day first appointed for the trial”. Section 561(2) provides that:An accused who elects to be tried by a provincial court judge may, not later than 60 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. ....
B. Discussion
[41] The proper interpretation of s. 561(2) of the Code is a question of law, to which a standard of correctness applies: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[42] Section 561(2) of the Code, like any legislative provision, “must be interpreted in a textual, contextual and purposive way”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 11. Legislative intent – the discernment of which is the goal of the interpretive exercise – “can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context”: Vavilov, at para. 118.
[43] The operative phrase in s. 561(2) of the Code is “the day first appointed for the trial”, which triggers the calculation of the deadline for re-election without Crown consent. It gives rise to three interpretive questions: (i) what constitutes a day having been “appointed”?; (ii) what constitutes a day having been appointed for “trial”?; and (iii) what constitutes the “day first appointed for trial”?
i. When Has a Day Been “Appointed” for Trial?
[44] Two points are important with respect to this interpretive question. First, the term “appointed” within the phrase “the day first appointed for the trial” contemplates that the day, and what is to occur on it, have been scheduled with a degree of certainty. Second, whether a day has been appointed in this sense is assessed from the perspective of when the scheduling takes place.
[45] A degree of certainty is required because “appointed” is synonymous with “fixed”.[8] This understanding accords with the French version of s. 561(2) which uses the phrase “la date fixée pour son procès”.[9]
[46] The perspective follows from the fact that s. 561(2) of the Code requires one to count backward from the day first appointed for the trial to determine the deadline for re-election. Although I do not agree with the appellant that the Charter drives this conclusion (see Turpin, at pp. 1322-23), I do agree with him that it is integral to the right to re-elect that the accused be able to determine the deadline before it expires, and therefore it must be clear that the trigger for calculation of the expiry of the deadline to re-elect has been set. The question is whether, when viewed at the time of the scheduling, a date has been fixed that constitutes the day first appointed for the trial, allowing the accused to make the necessary calculations based on that future date. Subsequent events may shed light on whether a date has been scheduled so as to constitute the day first appointed for the trial only to the extent that they reveal, or dispel, any suggestion of a lack of clarity about what was scheduled to occur.
[47] Accordingly, a day is appointed when, at the time it is scheduled, the court has directed the matter is to proceed on the scheduled date and further court involvement would be required to change the date. This approach respects the degree of certainty conveyed by the term appointed and brings the proper time perspective to the inquiry. Although there is merit to the concern that such an approach may miss either the nuance of what a scheduled date meant to the parties in a particular case, or the uncertainty inherent in the scheduling of any dates in a criminal prosecution,[10] in my view the plain language of s. 561(2) of the Code and its purpose support the conclusion that a bright line, which allows the parties to determine, in advance, the re-election deadline, is apposite. A case by case, moving target approach that does not involve accepting a judicially set date at face value but instead inquires into the parties’ subjective beliefs as to whether the date would be met or is contingent on subsequent events, would introduce unacceptable uncertainty into the determination of the deadline.
ii. What Constitutes a Day Having Been Appointed for “Trial”?
[48] Reading s. 561(2) in the context of the Code as a whole, and in light of its purpose, the term “trial” as used in the Code is to be given an expansive meaning. Accordingly, a day has been appointed for trial when the day has been fixed, in the sense described above, for any step recognized by the Code to be part of the trial. Such steps will include those considered to be part of the trial under s. 551 of the Code, a provision that describes not only the stage at which evidence is heard, but other specific steps and procedures that take place before that stage, as occurring “at trial”. Trial will also include any step mandated to be determined by the trial judge in the presence of the accused because that step is considered part of the trial for the purpose of determining whether the accused’s presence is required under s. 650(1) of the Code. I reach this conclusion for the following reasons.
[49] As the Supreme Court explained in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, what is comprised within the term trial in the Code may be given an expansive or a narrow meaning depending on the text of the section in which the term is used and the interests the section is designed to protect. As the court in Barrow stated at pp. 703-4:the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied[.] … The reason for varying starting points is that different sections of the Code protect different interests. [50] In Barrow, the court was concerned with the right of the accused to be present during the “whole of the trial” under what is now s. 650(1) of the Code. In the course of selection of the jury before evidence on the merits was heard, the trial judge had questioned jurors as to their partiality outside the presence of all counsel and the accused. The court held that for the purpose of the right of the accused to be present during the “whole of the trial”, an expansive meaning is to be given to the word trial. An accused is entitled to be present not only for the presentation of evidence and rulings on admissibility, but whenever “vital interests” of the accused are at stake or when a decision bears on the “substantive conduct of the trial”, such as proceedings relating to the selection of the jury. These steps are properly considered to be “part of the trial”, a conclusion flowing from a consideration of the interests protected by this provision:First, the accused is present to hear the case he or she faces and is thereby able to put forward a defence. Second, the accused sees the entire process by which he or she is tried and is able to see that the correct procedure is followed and the trial fair. … [T]his second value is of enormous importance to the perceived fairness of the Canadian criminal justice system. The sight of a judge conferring in private with jurors on issues that go to the partiality of the trier of fact can only prompt cynicism in an accused. It should be avoided: Barrow, at p. 707. [51] The court in Barrow referred, as an example of a section in the Code where trial, and therefore the commencement of the trial, would receive a more restricted meaning, to the decision in Basarabas and Spek v. The Queen, 1982 CanLII 216 (SCC), [1982] 2 S.C.R. 730. In that case, the trial judge discharged a juror after the jury was empanelled, but before the accused was put in the jury’s charge and evidence was heard; the trial then proceeded with eleven jurors. The question was whether the trial judge had the power to do this under what was then s. 573 [now ss. 644(1) and (2)[11]] of the Code, which gave the judge the power to discharge a juror “in the course of a trial” and continue with a jury of not fewer than ten.
[52] In Spek, the court concluded that s. 573 of the Code did not provide authority for what occurred, as the juror was discharged before the trial had commenced, as opposed to in the course of the trial. As the court in Barrow explained, for the purpose of what was then s. 573 of the Code, “‘[t]rial’” … refers to the heart of the trial, the presentation of evidence before the trier of fact”: at p. 704. That construction flowed, in part, because the provision, being an exception to the right of an accused to the unanimous verdict of twelve persons, should be construed narrowly: Barrow, at pp. 703-4.
[53] Applying that analytical framework, the text of s. 561(2) of the Code and the interests it protects lead to the conclusion that an expansive meaning is apposite and that giving the term trial a meaning that restricts it to the evidentiary phase would be inappropriate.
[54] First, the term trial appears in s. 561(2) of the Code without any limiting modifier. Restricting its meaning to a trial’s evidentiary phase would put the section out of step with other provisions of the Code that repeatedly refer to parts of the trial other than the taking or hearing of evidence.
[55] For example, s. 650(1.1) of the Code allows the court, with the consent of the accused and the prosecutor, to “allow the accused to appear by counsel for any part of the trial, other than a part in which the evidence of a witness is taken.”
[56] Further, ss. 551.3(1)(g) and 551.3(3) of the Code recognize that hearing evidence on the merits is a stage of the trial, but that certain steps that precede the hearing of evidence are also part of the trial, even if exercised by a case management judge who is different from the judge who hears the evidence on the merits. Those sections provide:551.3(1) In performing their duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial, including by
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(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to
(i) the disclosure of evidence,
(ii) the admissibility of evidence,
(iii) the Canadian Charter of Rights and Freedoms,
(iv) expert witnesses,
(v) the severance of counts, and
(vi) the separation of trials on one or more counts when there is more than one accused[.]
551.3(3) When the case management judge exercises the power referred to in paragraph (1)(g), he or she is doing so at trial. [Emphasis added.] [57] Similarly, ss. 551.7(9) and (10) of the Code, provide that a judge appointed to adjudicate, in a joint hearing, an issue referred to in ss. 551.3(g)(i) to (iii) of the Code that arises in related trials, exercises the power of a trial judge and adjudicates the issue “at trial”.
[58] Giving a restricted meaning to the term trial in s. 561(2) would also be inconsistent with provisions of the Code, such as s. 278.3 that contemplate steps that are required to be heard by the trial judge (“the judge before whom the accused is to be, or is being, tried”). Such an application is properly considered to be part of the trial, requiring the attendance of the accused, under s. 650 of the Code: R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, at paras. 42, 44, 52.
[59] Turning to the interests protected by the section, the deadline in s. 561(2) of the Code exists to avoid delay and duplication, to promote trial efficiency, and thus to protect the integrity of the administration of justice. Restricting the meaning of trial to its evidentiary phase would set the deadline for re-election under s. 561(2) of the Code at 60 days before the evidentiary phase was scheduled to begin, even if steps had already been scheduled, and had proceeded, that constituted part of the trial for the purposes of ss. 551 or 650(1) of the Code. All of those steps would be at risk of being wasted and of having to be undertaken afresh, if a re-election to move the matter to the SCJ could still occur (because the deadline had not yet expired). As Paciocco J., as he then was, noted in R. v. Brahaney, 2016 ONCJ 395, at para. 55,there can be numerous complex and time-consuming matters argued and disposed of before the evidentiary phase of the trial arrives. … If [the meaning of trial were restricted to the evidentiary phase] all of the judicial resources, time and public expense invested in cases w[h]ere preliminary matters are addressed in advance of the evidentiary phase of the trial in this way can be laid to waste by a simple re-election. [60] In summary, it would be inconsistent with the text of the section in light of the Code as a whole to consider the word “trial” in s. 561(2) as restricted to the evidentiary phase and as not including the steps or proceedings that other sections of the Code contemplate as part of the trial. And doing so would undermine the purpose of the deadline for re-election, as it would risk such steps or proceedings and all “the judicial resources, time and public expense invested” in them being “laid to waste by a simple re-election”: Brahaney, at para. 55. Giving the word trial an expansive meaning, that includes the steps contemplated by other provisions of the Code to be part of the trial, respects the text, context, and purpose of the provision.
iii. What Constitutes the Day “First” Appointed for Trial?
[61] The word “first” in s. 561(2) of the Code does not have a precise equivalent in the French version of the Code. Aligning the meaning of the two versions, the deadline is calculated from the day the earliest step that is considered part of the trial is scheduled to begin. This is both the day first appointed for the trial, even if there are more days scheduled, and “la date fixée pour son procès”, even if the trial is scheduled for more than one day.
[62] What if the earliest step scheduled for trial, as that term is expansively understood, does not take place as scheduled? Some case law holds that once a day is appointed for trial, any postponement or adjournment of the trial date does not affect the deadline for re-election, which is calculated from the date originally appointed: see e.g., R. v. T.B., 2018 ABPC 43, at para. 61; R. v. Shilmar, 2017 ABPC 213, 70 Alta. L.R. (6th) 151, at para. 136; R. v. BHS, 2020 ABPC 87, at para. 29.
[63] I am in general agreement with the proposition that a postponement or adjournment of the trial date does not change the deadline for re-election. One must be able to determine the deadline, with certainty, before it expires. That requires counting 60 days back from the day first appointed for the trial. Conditioning the validity of the deadline so determined on whether what was subsequently scheduled actually occurred or was postponed would make it impossible to have the required certainty at the point in time – 60 days before the day first appointed for the trial – the Code prescribes as when the right to re-elect without the consent of the Crown terminates.
[64] It has been pointed out, however, that the approach set out in cases like T.B., of calculating the deadline from the date for trial originally set, could result in an absurdity if the trial date were not moved back, but instead were moved up to a date 60 days earlier than the original date. A trial date moved up in this way could result in the accused retaining a right to re-elect during their provincial court trial: see e.g., R. v. Holynski, 2023 SKKB 40, 424 C.C.C. (3d) 306, at para. 30.
[65] In my view, moving the date for trial up is quite different than a postponement or an adjournment. In the latter situation, the date originally set for trial is still properly understood as the day first appointed for the trial – the postponed or adjourned date does not change that. However, when an earlier date is set for trial, the original date is no longer the day first appointed for the trial, since there is an earlier date that has taken its place. The deadline would accordingly be calculated from the new first day, that is the earliest date.[12] . R. v. Varennes
In R. v. Varennes (SCC, 2025) the Supreme Court of Canada considered law that indictable offences should be tried by judge and jury, except where both defendant and Crown agree to judge-only trials [under CCC 469, 471 and 473 - Part XIV 'Jurisdiction']. The court allowed an appeal, here where the Quebec Court of Appeal ordered a new murder trial after the Crown refused to consent to a judge-only trial - finding two exceptions (Charter s.11(b) due to risk of COVID delay and inherent jurisdiction) to this statutory elections rule:[1] When an accused is charged with an indictable offence listed in s. 469 of the Criminal Code, R.S.C. 1985, c. C‐46 — including murder — the trial shall take place before a judge and jury. Section 473(1) of the Criminal Code provides an exception if both the accused and the Attorney General consent to a judge-alone trial.
[2] This appeal asks when a superior court judge can order a judge-alone trial for a murder charge, despite the prosecution’s refusal to consent under s. 473(1).
[3] The appellant, Pascal Varennes, was charged with the second degree murder of his spouse. His trial was scheduled for September 2020, during the COVID-19 pandemic. In June 2020, he requested a judge-alone trial under s. 473(1). He argued, among other reasons, that pandemic-related delays to jury trials risked breaching his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.
[4] The prosecution refused to consent to a judge-alone trial. It asserted that the public interest favoured a jury trial for a murder charge in a domestic violence context in a small community and that pandemic-related restrictions would not clearly delay the trial.
[5] The appellant filed a motion seeking an order to proceed by judge alone. Concerned that pandemic-related restrictions would likely delay the trial, the trial judge found that the Crown’s refusal to consent was [translation] “unfair or unreasonable in the circumstances” and ordered a judge-alone trial (2020 QCCS 2734, at para. 50). After trial, she acquitted the appellant of second degree murder and convicted him of manslaughter.
[6] The Crown appealed the acquittal. It argued that the trial judge applied the wrong standard in overriding its refusal to consent. The Court of Appeal of Quebec concluded that the Crown’s decision whether to consent to a judge-alone trial under s. 473(1) constitutes prosecutorial discretion, which is reviewable only for abuse of process. Finding that this high threshold was not met, the Court of Appeal declared the judge-alone trial a “nullity”, and ordered a new trial.
[7] Before this Court, the parties disagree on whether the Crown can challenge an order relating to the mode of trial in an appeal against an acquittal, and on the standard a trial judge must apply when deciding whether to order a judge-alone trial. On the first issue, I agree with the Crown that the Court of Appeal had jurisdiction to hear the appeal. On the second issue, I conclude the Court of Appeal erred by requiring proof of an abuse of process.
[8] Our law recognizes two distinct paths for superior courts to review decisions taken by prosecutors, such as a refusal to consent under s. 473(1). First, superior courts have inherent jurisdiction, including to review core prosecutorial discretion for abuse of process and other prosecutorial decisions on a lower standard. Second, superior courts may order an “appropriate and just” remedy for a rights violation pursuant to s. 24(1) of the Charter, including in anticipation of probable future breaches. Such s. 24(1) remedies can have the effect of overriding a prosecutor’s decision.
[9] Either legal framework — inherent jurisdiction or s. 24(1) — could empower a superior court to order a judge-alone trial for an offence listed under s. 469. The Court of Appeal focused on whether inherent jurisdiction applied in this case, but did not consider s. 24(1) as a separate font of jurisdiction.
[10] Like the trial judge, I conclude that the Crown’s decision whether to consent to a judge-alone trial is not a decision engaging core prosecutorial discretion, and so could be reviewed by the trial judge under her inherent jurisdiction on a standard lower than abuse of process. I also conclude that the trial judge found that proceeding with a jury trial would likely lead to unreasonable delay, and so had jurisdiction to grant her order as a Charter remedy.
[11] Reading the trial judge’s reasons as a whole, I would review her decision as an application of remedial jurisdiction under s. 24(1). The trial judge found as fact that without intervention, the appellant’s Charter rights were at substantial risk. Given the pandemic emergency, she concluded that proceeding with a jury trial would likely breach the appellant’s right to be tried within a reasonable time, and so violate s. 11(b). I decline the Crown’s invitation to disturb this finding as speculative or to view it with hindsight. These were the early days of the pandemic, marked by uncertainty and isolation, before even the development of a vaccine. As my colleague Rowe J. points out, in 2020 there was an extreme public health crisis, and jury trials posed a grave health risk to jurors; proceeding with a jury trial under these circumstances would have burdened an already overtaxed justice system. Public health restrictions prevented large gatherings, to limit the grave risk of infection. Yet the jury selection process necessarily required gathering hundreds of people together indoors. Even if a jury could be selected, any infection amongst the jurors could derail the trial. With a second wave of infections approaching, there was sound reason to believe that a jury trial would not proceed in fall 2020, and for an indeterminate period thereafter. In this extraordinary situation, the trial judge’s findings of fact established an anticipated breach of s. 11(b) of the Charter.
[12] In considering whether to override the Crown and order a judge-alone trial under s. 24(1) of the Charter, trial judges must consider “the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system” (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 69). The judge must weigh the importance of vindicating Charter rights and ensuring state compliance with the Charter against countervailing considerations, including the public value in jury trials and respect for the separation of powers.
[13] By ordering a judge-alone trial, the trial judge prevented a probable s. 11(b) breach and avoided a stay of proceedings, thus protecting the appellant’s rights while also respecting the Crown’s decision to prosecute the charge on its merits. Based on her findings of fact, I conclude that the order for a judge-alone trial was an appropriate and just s. 24(1) remedy. The Court of Appeal erred in ordering a new trial. I would allow the appeal.
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