R. v. Dudley

R. v. Dudley
Collection
Supreme Court Judgments
Date
2009-12-17
Neutral citation
2009 SCC 58
Report
[2009] 3 SCR 570
Case number
32603
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 32603
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570
Date: 20091217
Docket: 32603
Between:
Kristy Leanne Dudley
Appellant
and
Her Majesty The Queen
Respondent
‑ and ‑
Director of Public Prosecutions of Canada
Intervener
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 56)
Concurring Reasons:
(paras. 57 to 90)
Fish J. (McLachlin C.J. and Binnie, LeBel, Abella and Cromwell JJ. concurring)
Charron J. (Deschamps and Rothstein JJ. concurring)
______________________________
R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570
Kristy Leanne Dudley Appellant
v.
Her Majesty The Queen Respondent
and
Director of Public Prosecutions of Canada Intervener
Indexed as: R. v. Dudley
Neutral citation: 2009 SCC 58.
File No.: 32603.
2009: March 18; 2009: December 17.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for alberta
Criminal law — Procedure — Hybrid offences — Summary convictions — Limitation period — Information sworn more than six months after offences were alleged to have been committed — Plea not yet entered — Trial judge declaring information to be a nullity — Whether Crown can continue prosecution as indictable offence — Whether limitation period in s. 786(2) of Criminal Code applies to hybrid offences.
D was charged with one count of fraud not exceeding $5,000 under s. 380(1) (b) of the Criminal Code , and one count of uttering a forged document under s. 368(1) (b), both hybrid offences which allow the Crown to proceed either by indictment or by summary conviction. The Crown elected to proceed summarily. When the matter came before the trial court for an expected guilty plea, defence counsel moved to dismiss the charges as a nullity because the summary conviction proceeding was statute-barred under s. 786(2) of the Code as the information had been sworn more than six months after the alleged unlawful conduct. The Crown immediately sought leave to “re‑elect” and proceed by indictment or, alternatively, to withdraw the charge. The trial judge denied these motions and concluded that the charge was a nullity. The Court of Appeal allowed the Crown’s appeal, holding that the original information remained valid and that the Crown could “re‑elect” to proceed by indictment.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Cromwell JJ.: Where the Crown elects to proceed by way of summary conviction, the hybrid offence is treated in all respects as a summary conviction offence and the proceedings must be instituted within six months unless the parties otherwise agree. Where the trial has proceeded before a summary conviction court without an express election by the Crown, it will be presumed that the Crown has elected to proceed summarily. Where it is discovered before adjudication on the merits that the proceedings were instituted more than six months after the offence is alleged to have been committed, a mistrial should be declared unless the parties agree to waive the limitation period. After the verdict has been rendered, the appropriate remedy is an appeal on any permissible ground to the summary conviction appeal court. Where an appeal by the accused is allowed on the sole ground that the proceedings were statute-barred and conducted without consent, a conviction at trial should be set aside. When a mistrial is declared or a conviction is set aside, the Crown may proceed afresh by indictment except where the court is satisfied that this would amount to an abuse of process. An appeal by the Crown against an acquittal on the ground that the proceedings were statute-barred will not lie, since it is the Crown’s responsibility to ensure that the proceedings are properly instituted. [2‑6]
When the defendant declines to consent to the continuation of the summary conviction proceedings, and the offence is punishable only on summary conviction, the court should simply dismiss the information. Hybrid offences, however, in virtue of s. 34 of the Interpretation Act , are deemed indictable unless and until the Crown has elected to proceed summarily. Where the Crown elects to proceed summarily, proceedings are governed by the provisions of the Code set out in Part XXVII, including s. 786(2). The accused’s failure to consent to the prosecution of a hybrid offence by way of summary conviction beyond the limitation period is fatal to the validity of the Crown’s election to proceed summarily and to the ensuing proceedings. The initial election and all subsequent proceedings are a nullity and have therefore no effect on the Crown’s ability to proceed by indictment. [37‑39] [42‑43]
Per Deschamps, Charron and Rothstein JJ.: The limitation period in s. 786(2) of the Criminal Code does not apply to dual procedure offences. The matter should therefore be remitted to the trial court to proceed by summary conviction in accordance with the Crown’s election. [62] [90]
Section 786(2) only operates as a general bar to the institution of proceedings more than six months after the alleged offence in respect of summary conviction offences. While the definition of “proceedings” in s. 785 of Part XXVII of the Code entitled “Summary Convictions” is wide enough to include dual procedure offences, that Part only applies “[e]xcept where otherwise provided by law”. Since dual procedure offences are deemed indictable offences by operation of s. 34 of the Interpretation Act , the proceedings are commenced pursuant to s. 504 or 505 of the Code, not s. 788(1) . As a result, the proceedings for dual procedure offences are never “instituted” under Part XXVII within the meaning of s. 788(1) and the limitation period in s. 786(2) does not apply to these offences. Proceedings in respect of dual procedure offences may therefore be instituted beyond the six‑month period. Any subsequent Crown election to proceed summarily does not retroactively invalidate the institution of the proceeding. Even though the Crown’s election to proceed summarily results in the dual procedure offence’s acquiring the same characteristics as a pure summary offence in important aspects, its choice of procedural route does not change the original characterization of the offence as an indictable offence. Further, since s. 786(2) speaks to the institution of the proceeding, not the Crown election, nothing in the provision bars the Crown from electing to proceed either by indictment or by summary conviction in respect of such offences. Parliament considers dual procedure offences as more serious than pure summary conviction offences and, had it wished to impose a limitation period on dual procedure offences, it could have expressly adverted to the offences in s. 786(2) or declined to deem them to be indictable offences in the Interpretation Act . [61] [68] [71‑72] [77-78]
Interpreting s. 786(2) to exclude dual procedure offences is consistent with the purpose of the limitation provision and does not interfere with the fair and efficient administration of the criminal justice system. Such an interpretation also respects prosecutorial discretion and protects the accused from unfair treatment since the Crown is not forced to proceed by way of indictment when it would otherwise pursue a summary conviction absent an accused’s consent to summary proceedings. In addition, this interpretation causes no conflict with other legislation and nothing in the jurisprudence militates against it as no court has ruled on the specific issue of the application of s. 786(2) to dual procedure offences. [75] [79] [80] [82‑83] [87]
Cases Cited
By Fish J.
Referred to: R. v. Richards, [1934] 2 W.W.R. 390; Smythe v. The Queen, [1971] S.C.R. 680; R. v. Mitchell (1997), 121 C.C.C. (3d) 139; R. v. Paul‑Marr, 2005 NSCA 73, 199 C.C.C. (3d) 424; R. v. C. (D.J.) (1985), 21 C.C.C. (3d) 246; Canada (Attorney General) v. Trueman, P.C.J. (1996), 83 B.C.A.C. 227; Trinidad and Tobago v. Davis, 2008 ABCA 275, 233 C.C.C. (3d) 435; R. v. Huff (1979), 50 C.C.C. (2d) 324; R. v. Gougeon (1980), 55 C.C.C. (2d) 218; R. v. Tontarelli, 2009 NBCA 52, 348 N.B.R. (2d) 41; R. v. D. (S.) (1997), 119 C.C.C. (3d) 65; R. v. O’Leary (1991), 64 C.C.C. (3d) 573; R. v. Shiplack (1993), 109 Sask. R. 311; Ahmed v. Canada (Minister of Citizenship & Immigration), 2009 FC 672, 81 Imm. L.R. (3d) 116; R. v. Connors (1998), 121 C.C.C. (3d) 358; Re Abarca and The Queen (1980), 57 C.C.C. (2d) 410; R. v. Karpinski, [1957] S.C.R. 343; R. v. Kelly (1998), 128 C.C.C. (3d) 206; Giroux v. The King (1917), 56 S.C.R. 63; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Jans (1990), 59 C.C.C. (3d) 398; R. v. Burke (1992), 78 C.C.C. (3d) 163; R. v. Kalkhorany (1994), 89 C.C.C. (3d) 184; R. v. Boutilier (1995), 104 C.C.C. (3d) 327; R. v. Belair (1988), 41 C.C.C. (3d) 329; R. v. Phelps (1993), 79 C.C.C. (3d) 550; R. v. Edwards (1898), 2 C.C.C. 96; R. v. Machacek, [1961] S.C.R. 163; Petersen v. The Queen, [1982] 2 S.C.R. 493.
By Charron J.
Considered: R. v. Karpinski, [1957] S.C.R. 343; referred to: R. v. Beare, [1988] 2 S.C.R. 387; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; Smythe v. The Queen, [1971] S.C.R. 680; R. v. Court of Sessions of the Peace, ex parte Lafleur, [1967] 3 C.C.C. 244; R. v. Connors (1998), 121 C.C.C. (3d) 358; R. v. Boutilier (1995), 104 C.C.C. (3d) 327.
Statutes and Regulations Cited
Animal Pedigree Act, R.S.C. 1985, c. 8 (4th Supp .), s. 67 .
Citizenship Act, R.S.C. 1985, c. C‑29, s. 22 .
Crimes Act 1900 (N.S.W.), ss. 475A, 475B.
Criminal Code, R.S.C. 1927, c. 36, s. 501.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 368(1) (b), 380(1) (b), 504 , 505 , 536 , 606(4) , Part XXVII, 785 “proceedings”, 786(2) [ad. 1997, c. 18, s. 110], 788.
Criminal Code, 1892, S.C. 1892, c. 29, s. 841.
Criminal Records Act, R.S.C. 1985, c. C‑47, s. 4 .
Identification of Criminals Act, R.S.C. 1985, c. I‑1 .
Interpretation Act, R.S.C. 1985, c. I‑21, s. 34 .
Juries Act, R.S.O. 1990, c. J.3, s. 4.
Magistrates’ Courts Act 1980 (U.K.), 1980, c. 43, s. 19.
Authors Cited
Barton, P. G. “Why Limitation Periods in the Criminal Code ?” (1998), 40 Crim. L.Q. 188.
Canada. Department of Justice. Public Prosecution Service. The Federal Prosecution Service Deskbook, Part V, c. 19, “Elections and Re-Elections”, 2000 (update October 2005) (online: http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/ch19.html).
Canada. House of Commons. Standing Committee on Justice and Human Rights. Minutes of Proceedings and Evidence, 1st Sess., 36th Parl., October 20, 1998 (online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1038963&Mode=1&Parl=36&Ses=1&Language=E).
Manning, Mewett & Sankoff: Criminal Law, 4th ed. by Morris Manning and Peter Sankoff. Markham, Ont.: LexisNexis, 2009.
APPEAL from a judgment of the Alberta Court of Appeal (Ritter and Slatter JJ.A. and Bielby J. (ad hoc)), 2008 ABCA 73, 425 A.R. 280, 418 W.A.C. 280, 89 Alta. L.R. (4th) 71, 231 C.C.C. (3d) 80, [2008] 7 W.W.R. 645, [2008] A.J. No. 209 (QL), 2008 CarswellAlta 261, setting aside a decision of Wenden Prov. Ct. J., 2006 CarswellAlta 2115. Appeal dismissed.
Akram Attia and Daryl J. Royer, for the appellant.
James A. Bowron, for the respondent.
François Lacasse and Gilles Villeneuve, for the intervener.
The judgment of McLachlin C.J. and Binnie, LeBel, Fish, Abella and Cromwell JJ. was delivered by
Fish J. —
I
[1] “Hybrid” offences are crimes that can be prosecuted by indictment or on summary conviction. The choice in Canada is the Crown’s, though this has not always been the case and is not the case in other jurisdictions.
[2] Where the Crown elects to proceed by way of summary conviction, or “summarily”, the hybrid (or “dual procedure”) offence is treated in all respects as a summary conviction offence. Of particular importance here, the proceedings must be instituted within six months unless the parties otherwise agree.
[3] Where the trial has proceeded before a summary conviction court without an express election by the Crown, it will be presumed that the Crown has elected to proceed summarily. Where it is discovered before adjudication on the merits that the proceedings were instituted more than six months after the offence is alleged to have been committed, a mistrial should be declared unless the parties agree to waive the limitation period (or “prescription”).
[4] After the verdict has been rendered, the appropriate remedy is an appeal on any permissible ground to the summary conviction appeal court.
[5] Where an appeal by the accused[1] is allowed on the sole ground that the proceedings were statute-barred and conducted without consent, a conviction at trial should be set aside. In either instance, the Crown may proceed afresh by indictment except where the court is satisfied that this would amount to an abuse of process. That is because neither a mistrial nor a conviction set aside on appeal gives rise to a plea of autrefois.
[6] An appeal by the Crown against an acquittal on the ground that the proceedings were statute-barred will not lie, since it was the Crown’s responsibility to ensure that the proceedings were properly instituted. Having elected to proceed by way of summary conviction before the right court, the Crown should not be heard to complain after an adverse adjudication on the merits that it neglected to obtain the consent of the accused before the accused was acquitted!
[7] In my view, these are the governing principles where a hybrid offence is prosecuted by way of summary conviction beyond the six-month limitation period.
[8] The rest is background, detail and commentary.
II
[9] The appellant, Kristy Leanne Dudley, was charged with one count of fraud not exceeding $5,000 under s. 380(1) (b) of the Criminal Code, R.S.C. 1985, c. C-46 , and one count of uttering a forged document under s. 368(1)(b) of the Code. The fraud was alleged to have occurred between June 23, 2002 and May 31, 2004; the uttering, on November 12, 2002. Both are hybrid offences and the Crown elected to proceed summarily.
[10] When the matter came before Wenden Prov. Ct. J. for an expected guilty plea, counsel for Ms. Dudley noticed that the information had been sworn on January 30, 2006 — more than six months after the alleged unlawful conduct was said to have occurred — and was therefore statute-barred as a summary conviction proceeding.
[11] Counsel for Ms. Dudley moved to dismiss the charges as a “nullity”. The prosecutor immediately sought leave to “re-elect” and proceed by indictment or, in the alternative, to withdraw the charges. Wenden Prov. Ct. J. denied the Crown’s motions and disposed of the matter by concluding that “the charge is a nullity because . . . it is sworn out of time” (2006 CarswellAlta 2115, at para. 3).
[12] The Alberta Court of Appeal allowed the Crown’s appeal and held that the original information charging Ms. Dudley with fraud and uttering remained valid (2008 ABCA 73, 231 C.C.C. (3d) 80). It also held that the Crown’s statute-barred election to proceed summarily did not afford Ms. Dudley a defence to the charges. Rather, the court concluded that the Crown could “re-elect” to proceed by indictment on the original information since the Crown’s initial election and the subsequent proceedings in the summary conviction court were nullities.
III
[13] This case requires us to consider the peculiar nature of hybrid offences, which exist nowhere — and everywhere — on the landscape of Canadian criminal procedure.
[14] They exist nowhere in the sense that the Criminal Code classifies offences as either indictable or punishable upon summary conviction, and nowhere recognizes a third, discrete category of hybrid offences. Yet hybrid offences are everywhere to be found in the Criminal Code — and in dozens, if not hundreds, of other federal statutes.
[15] Hybrid offences, though initially rare, are not of recent conception: Some can be found in the very first Criminal Code , enacted by Parliament in 1892. And in recent decades Parliament has transformed many crimes formerly triable either by indictment or summarily into offences that may now be prosecuted either way.
[16] Moreover, hybrid offences are by no means a uniquely Canadian phenomenon. Elsewhere, however, the decision whether to proceed summarily or on indictment is not generally a matter of prosecutorial discretion. In England and Wales, for example, it is the presiding magistrate who decides: Magistrates’ Courts Act 1980 (U.K.), 1980, c. 43, s. 19. And in certain Australian states, including New South Wales, the accused may apply to be tried summarily, subject to the consent of the Crown: Crimes Act 1900 (N.S.W.), ss. 475A and 475B.
[17] Even in Canada, it was at one time explicitly provided that certain offences were punishable on indictment or on summary conviction at the option of the accused: see, for example, s. 501 of the Criminal Code, R.S.C. 1927, c. 36; R. v. Richards, [1934] 2 W.W.R. 390 (B.C.C.A.). But all such provisions have long since been repealed and, as mentioned earlier, the choice is now the Crown’s: Smythe v. The Queen, [1971] S.C.R. 680, at pp. 685-87, per Fauteux C.J.
[18] Pursuant to s. 34(1) (a) of the Interpretation Act, R.S.C. 1985, c. I-21 , an offence is presumed indictable “if the enactment provides that the offender may be prosecuted for the offence by indictment”. Hybrid offences are therefore treated as indictable — unless the Crown elects, or is deemed to have elected, to try them summarily:
In these cases, it is the prosecution that first decides how to proceed. If it chooses to proceed by indictment, the offence is treated in all respects as an indictable offence and the accused has the normal rights of election; if it chooses otherwise, the case proceeds in all respects as a summary conviction offence.
(Manning, Mewett & Sankoff: Criminal Law (4th ed. 2009), at p. 44)
[19] To avoid uncertainty and the misunderstanding of which much unnecessary litigation is born, I think it best for the Crown to declare explicitly whether it is proceeding on a hybrid offence summarily or by indictment before the accused is asked to plead. And where the Crown elects to proceed summarily beyond the six-month limitation period, the prosecutor and the defendant should both be required to declare expressly — again, before plea — that they agree to proceed summarily.
[20] In the absence of an express election, it will in any event be presumed that the Crown has elected to proceed summarily where a hybrid offence “is proceeded with through trial to a verdict in a court having jurisdiction to hear a summary conviction proceeding”: R. v. Mitchell (1997), 121 C.C.C. (3d) 139 (Ont. C.A.), at para. 4. Similarly, the Crown will be deemed to have elected to proceed by indictment where the accused has been put to the election as to mode of trial required, for example by s. 536 of the Criminal Code , so long as the proceedings take place in a court having jurisdiction over the alleged offence.
IV
[21] As mentioned earlier, hybrid offences are deemed to be indictable unless and until the Crown elects to proceed summarily. Thus, speaking for the Nova Scotia Court of Appeal in R. v. Paul‑Marr, 2005 NSCA 73, 199 C.C.C. (3d) 424, at para. 20, Cromwell J.A. (as he then was) explained that “where an offence may be prosecuted by either indictment or on summary conviction at the election of the Crown, the offence is deemed to be indictable until the Crown elects to proceed by way of summary conviction”. Likewise, in R. v. C. (D.J.) (1985), 21 C.C.C. (3d) 246, at p. 252, MacDonald J., speaking for the Prince Edward Island Supreme Court, Appeal Division, stated that “in the case of a hybrid offence once the Crown elects to proceed by way of summary conviction the offence is no longer deemed to be an indictable offence”. And in Canada (Attorney General) v. Trueman, P.C.J. (1996), 83 B.C.A.C. 227, at para. 13, once more for a unanimous court, McEachern C.J.B.C. held that hybrid offences “are deemed by s. 34 of the Interpretation Act . . . to be indictable [and] remain indictable unless the Crown elects to proceed by summary conviction”. (Emphasis added throughout.)
[22] Other appellate courts across the country have reached the same conclusion: Trinidad and Tobago v. Davis, 2008 ABCA 275, 233 C.C.C. (3d) 435, at para. 14; R. v. Huff (1979), 50 C.C.C. (2d) 324 (Alta. C.A.), at p. 328; Mitchell, at para. 4; R. v. Gougeon (1980), 55 C.C.C. (2d) 218 (Ont. C.A.), at p. 234; R. v. Tontarelli, 2009 NBCA 52, 348 N.B.R. (2d) 41, at para. 55; R. v. D. (S.) (1997), 119 C.C.C. (3d) 65 (Nfld. C.A.), at para. 34; R. v. O’Leary (1991), 64 C.C.C. (3d) 573 (Nfld. C.A.), at p. 575; R. v. Shiplack (1993), 109 Sask. R. 311 (C.A.), at para. 9. See also Ahmed v. Canada (Minister of Citizenship & Immigration), 2009 FC 672, 81 Imm. L.R. (3d) 116, at para. 40.
[23] Justice Charron cites R. v. Connors (1998), 121 C.C.C. (3d) 358 (B.C.C.A.), for the proposition that “dual procedure offences retai[n] their character as indictable offences in the context of the Identification of Criminals Act ” (para. 73). As my colleague points out, the Identification of Criminals Act is not before us on this appeal. For present purposes, it will therefore suffice to emphasize that Connors stands alone in this regard. Other courts have reached the opposite conclusion. See, for example, Re Abarca and The Queen (1980), 57 C.C.C. (2d) 410 (Ont. C.A.), at p. 413.
V
[24] Against this background, I turn now to ss. 786(2) and 788(1) of the Criminal Code , which both appear in Part XXVII of the Code, entitled “Summary Convictions”:
786. . . .
(2) No proceedings shall be instituted more than six months after the time when the subject‑matter of the proceedings arose, unless the prosecutor and the defendant so agree.
788. (1) Proceedings under this Part shall be commenced by laying an information in Form 2.
[25] The time limit for instituting summary conviction proceedings that is now codified in s. 786(2) has existed in one form or another since at least 1892: Criminal Code, 1892, S.C. 1892, c. 29, s. 841. Only in 1997, however, was it made subject to waiver — that is, to extension by consent of the parties (S.C. 1997, c. 18, s. 110). Until then, summary conviction offences could not be prosecuted at all unless proceedings were timely brought: R. v. Karpinski, [1957] S.C.R. 343, at p. 350, per Fauteux J.
[26] It was in light of this that this Court in Karpinski unanimously held that the Crown could not try a hybrid offence as a summary conviction offence after the six-month limitation period had expired. But the Court divided as to the validity of the proceedings that had taken place in the summary conviction court prior to the discovery of the limitation problem.
[27] Fauteux J. (Abbott J. concurring) held that the proceedings were null ab initio because “there [was] no right for the Crown to elect to proceed by way of summary conviction and no jurisdiction for the magistrate to accept and act upon the election by receiving a plea” (p. 351). This line of reasoning has come to be known as the “no jurisdiction” view, and has been embraced by the Ontario Court of Appeal in a number of cases similar to the one at bar. See, for example, R. v. Kelly (1998), 128 C.C.C. (3d) 206.
[28] Again in Karpinski, Cartwright J. (dissenting) concluded that the summary conviction court retained at least a limited jurisdiction over the proceedings. In his view, the Crown’s “withdrawal of the charge before the learned magistrate was tantamount to an acquittal” and thus gave rise to the special plea of autrefois acquit if the Crown attempted to prosecute the same offence by indictment: Karpinski, p. 350. Justice Cartwright’s reasoning has come to be known as the “defence view” of Karpinski, and it has been embraced by the Newfoundland Court of Appeal, in obiter, in D. (S.).
[29] This division between the “no jurisdiction” and the “defence” views of acquired prescription retains its historical interest but not its former procedural significance. On either view, a summary conviction court has jurisdiction, with the consent of the parties, over statute-barred summary conviction proceedings. Absent consent, it does not.
[30] Except in one respect, I see no reason to distinguish in this regard between hybrid offences and offences punishable only on summary conviction. For hybrid offences, the Crown may proceed by indictment where its offer to proceed summarily is spurned by the accused. If the offence is a “pure” summary conviction offence — as opposed to a hybrid offence — the accused may nonetheless agree to proceed beyond the limitation period to avoid prosecution by indictment for a related offence that covers the same conduct. In either instance, if the prosecutor and defendant agree, a summary conviction court may exercise in respect of a statute-barred prosecution the jurisdiction it would otherwise have had.
[31] The sole relevant difference, it seems to me, is this. Absent consent, expiry of the limitation period bars entirely proceedings in respect of an offence that may be prosecuted only by way of summary conviction. A hybrid offence that can no longer be prosecuted summarily without the defendant’s consent may nonetheless, absent abuse of process, be prosecuted by indictment, whether or not the Crown initially elected to proceed summarily — except of course, where the accused was acquitted by a summary conviction court pursuant to the Crown’s initial election.
[32] In its reasons below, the Alberta Court of Appeal held that the Crown may “seek the consent of the accused to continue with a summary procedure” under s. 786(2) when it discovers “it has mistakenly elected to proceed summarily on an information sworn more than six months after the date of an alleged hybrid offence” (para. 42). On this view, which I share, the proceedings in the summary conviction court cannot be treated as a nullity ab initio.
[33] Whatever the situation may have been prior to the amendment of s. 786(2) in 1997, the summary conviction court now retains jurisdiction — subject to the consent of the parties — when it is discovered that the proceedings before it were statute-barred when the information was sworn. On a purposive interpretation of the amendment, the curative consent that is its object may be given at any time before verdict without requiring the parties to start the trial afresh. As I mentioned earlier, however, uncertainty and misunderstanding can easily be avoided by inviting and recording on the record — before the defendant is asked to plead — an agreement by the parties to proceed summarily.
[34] It is true, as a matter of principle, that jurisdiction cannot be conferred by consent. But this principle is subject to statutory attenuation, and Parliament has since 1997 expressly provided in s. 786(2) that the prosecutor and the defendant, by mutual consent, can renounce the six-month limitation period for summary convictions. From the defendant’s point of view, this amounts to what may properly be characterized as a waiver of the benefit of prescription.
[35] And it is not without interest that the Court, nearly a century ago, recognized in Giroux v. The King (1917), 56 S.C.R. 63, that “[c]onsent cannot confer jurisdiction but a privilege defeating jurisdiction may always be waived if the trial court has jurisdiction over the subject matter” (p. 67). In the context that concerns us here, the benefit of an expired limitation period may be regarded, at least since 1997, as a privilege that can be waived by the accused.
[36] The consent of the parties, I repeat, can be given at any time during the proceedings before the verdict. The prosecutor will always be deemed to have consented by virtue of his or her election to try the hybrid offence summarily. The defendant must consent to the proceedings in a manner consistent with the reasons of the Court in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41. That is to say, the consent of the defendant to continue with the proceedings must be “informed, clear and unequivocal”: Korponay, at p. 58.
VI
[37] The only question remaining on this appeal is what should become of the proceedings when the defendant declines to consent to their continuation.
[38] Where the offence is punishable only on summary conviction, the court should simply dismiss the information.
[39] In virtue of s. 34 of the Interpretation Act , hybrid offences are deemed indictable unless and until the Crown has elected to proceed summarily. Where the Crown elects to proceed summarily beyond the limitation period without the defendant’s consent, the Crown’s invalid election does not retrospectively invalidate an information.
[40] There is a large and divided body of case law considering the Crown’s right to “re‑elect” on the original information to proceed by indictment after first electing to proceed summarily. See, for example, Re Abarca and The Queen; R. v. Jans (1990), 59 C.C.C. (3d) 398 (Alta. C.A.); R. v. Burke (1992), 78 C.C.C. (3d) 163 (Nfld. C.A.); R. v. Kalkhorany (1994), 89 C.C.C. (3d) 184 (Ont. C.A.); R. v. Boutilier (1995), 104 C.C.C. (3d) 327 (N.S.C.A.).
[41] In my respectful view, these cases do not ask the right question.
[42] As mentioned earlier, the failure of the accused to consent to the prosecution of a hybrid offence by way of summary conviction beyond the limitation period is fatal to the validity of the Crown’s election and to the proceedings that ensue.
[43] It is for precisely this reason that the Crown is free to proceed by indictment on the original information, if valid on its face, where the accused refuses to consent. Although the information remains valid, the initial election and all subsequent proceedings are a nullity. They can therefore have no effect on the Crown’s ability to proceed by indictment.
[44] I agree with the Court of Appeal that it is not unfair to the accused to permit the Crown to proceed by indictment unless “the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency” (para. 1). On the record as we have it, nothing of the sort may be said to have occurred here.
[45] As Martin J.A. observed in R. v. Belair (1988), 41 C.C.C. (3d) 329 (Ont. C.A.):
The [hybrid] offence charged was at all times triable by indictment, and indeed the information charged an indictable offence until the Crown elected to treat the offence as one punishable on summary conviction: see Re Abarca and The Queen (1980), 57 C.C.C. (2d) 410 at pp. 413‑4 (Ont. C.A.). The respondent in this case was in no way prejudiced by the error of Crown counsel. If Crown counsel had noticed, prior to electing to proceed by way of summary conviction, that summary conviction proceedings were precluded by s. 721(2), he would, no doubt, have proceeded by indictment, as he ultimately did. The respondent in this case suffered no prejudice as a result of Crown counsel failing to notice prior to election that summary conviction proceedings were barred by s. 721(2). [p. 339]
[46] In R. v. Phelps (1993), 79 C.C.C. (3d) 550, the Ontario Court of Appeal aptly noted that “in view of the lengthy proceedings that have taken place through no fault of the appellant, [the Crown should] consider whether the interests of justice would be served by proceeding further with this charge, the seriousness of which it obviously deemed to be of a summary conviction nature” (p. 552). That decision, I agree, is best left to prosecutorial and not judicial discretion.
VII
[47] Finally, four observations regarding the reasons of Justice Charron.
[48] The first concerns the conceptual underpinning of my colleague’s entire analytical framework. Justice Charron finds that the Crown’s election to prosecute a hybrid offence by way of summary conviction, “while defining the process by which the charge will be dealt once laid, does not change the underlying character of the offence as indictable” (para. 74).
[49] With respect, I am unable to understand in what sense the “underlying character” of a hybrid offence remains indictable once the Crown has elected to proceed summarily. The trial is before a different court and follows a different procedure. The offender is subject, upon conviction, to a different punishment. An appeal against the decision at trial goes to a different court of appeal. Under various federal and provincial statutes, conviction for a hybrid offence prosecuted summarily carries with it, not only in respect of sentence but in other respects as well, different consequences than a conviction on indictment: See, for example, the Criminal Records Act, R.S.C. 1985, c. C‑47, s. 4 ; the Citizenship Act, R.S.C. 1985, c. C-29, s. 22 ; and the Ontario Juries Act, R.S.O. 1990, c. J.3, s. 4. Finally, Parliament has expressly provided, in s. 34(1) (c) of the Interpretation Act , that “no person [prosecuted summarily for a hybrid offence] shall be considered to have been convicted of an indictable offence”.
[50] In what sense, then, does a hybrid offence retain its “underlying character” as an indictable offence once the Crown has elected to proceed by way of summary conviction? I am unable to identify any. On the contrary, the hybrid offence takes on the “underlying character” of a summary conviction offence and is in every respect governed by the provisions of Part XXVII of the Criminal Code . In my view, there is no principled reason for making of s. 786(2) an exception to this rule.
[51] Second, Justice Charron finds that “s. 786(2) speaks to the institution of the proceeding, not the Crown election” (para. 61). That, of course, is so. But hybrid offences prosecuted summarily are instituted by the laying of an information and not by the Crown’s election. In virtue of s. 788, they commence with the laying of that information; and in virtue of s. 786(2) they cannot be commenced more than six months after the offence is alleged to have occurred. Accordingly, it is because s. 786(2) “speaks to the institution of proceedings, not the Crown election” that the Crown may elect to proceed summarily at any time, provided that the information was sworn no more than six months after the date of the alleged offence — and otherwise only with the consent of the accused.
[52] Third, Justice Charron states (at para. 60) that “[t]here is a conflicting body of jurisprudence, all stemming from this Court’s decision in . . . Karpinski . . . on the effect of a ‘mistaken’ Crown election to proceed summarily in respect of a dual procedure offence on an information laid more than six months after the offence was allegedly committed.” My colleague’s statement should not be misunderstood: Not a single Canadian decision drawn to our attention has held that the limitation period for summary conviction offences is inapplicable to hybrid offences prosecuted summarily. On this issue, there is no jurisprudential conflict whatever.
[53] Thus, in Karpinski, all members of the Court agreed that the limitation period applied. This understanding of the law has prevailed in Canada for well over 100 years: R. v. Edwards (1898), 2 C.C.C. 96 (Ont. H.C.J.). And it has since Karpinski been twice re-affirmed by this Court, first in R. v. Machacek, [1961] S.C.R. 163, and again in Petersen v. The Queen, [1982] 2 S.C.R. 493. Any “conflict” in the jurisprudence relates to entirely different questions that confirm the applicability of the limitation period to hybrid offences prosecuted summarily, differing only as to whether a statute-barred prosecution goes to jurisdiction or is a matter of defence. I have dealt with this branch of the matter above, at paras. 21 and following.
[54] Finally, Justice Charron states, at para. 74, that “in those jurisdictions where cases are screened before charges are laid, a dual procedure offence is still instituted as an indictable offence under s. 504 or 505 ”. On the contrary, and with the greatest of respect, I believe the opposite is true. In screening proposed prosecutions, Crown counsel are expected to determine whether charges are justified and, in the case of hybrid offences, whether they should be prosecuted summarily or by indictment. Where Crown counsel determines that the case should be prosecuted summarily, it would at the very least be incongruous to then proceed as if by indictment — and nothing in the materials before us suggests that this is done. It is more plausible to assume that where the Crown authorizes summary proceedings, they are instituted under s. 788 of the Code — in accordance with the Crown’s decision to prosecute summarily.
[55] In short, my colleague’s position — which was not raised by the parties or by the intervener — is incompatible with the text of the relevant provisions of the Code, inconsistent with more than a century of judicial decisions (including Karpinski), and contrary to how the law has always and universally been understood by lawyers and commentators alike. It is contrary as well to the position taken by the Director of Public Prosecutions of Canada in this Court when invited to do so,[2] in instructions to federal prosecutors across the country,[3] and by the Federal Department of Justice in Parliament when s. 786(2) was amended.[4]
VIII
[56] In the result, I would dismiss the appeal, set aside the decision of the trial judge and let justice take its course in accordance with the governing principles set out in these reasons.
The reasons of Deschamps, Charron and Rothstein JJ. were delivered by
Charron J. —
1. Overview
[57] The appellant, Kristy Leanne Dudley, was charged with one count of fraud not exceeding $5,000 under s. 380(1) (b), and one count of uttering a forged document under s. 368(1) (b) of the Criminal Code, R.S.C. 1985, c. C-46 , both dual procedure offences which allow the Crown to proceed either by indictment or by summary conviction. The Crown elected to proceed summarily. When the matter came before the trial court for an expected guilty plea, counsel for Ms. Dudley noticed that the information had been sworn more than six months after the offences were alleged to have been committed. Counsel therefore argued that the information was a nullity on the basis that it was statute-barred under s. 786(2) of the Criminal Code . The Crown sought leave to re-elect to proceed by indictment, or in the alternative to withdraw the information. Counsel for Ms. Dudley objected, arguing that a judicial stay would probably be appropriate as his client had “no resolution other than a guilty plea” and the extent of her jeopardy increased if this matter proceeded by indictment. The trial judge denied both Crown requests, on the ground that the information was “out of time” and “a nullity” (2006 CarswellAlta 2115, at para. 3).
[58] The Crown appealed to the Alberta Court of Appeal. The Court of Appeal set aside the trial court’s decision, holding that an information is not invalidated by the Crown’s mistaken election to proceed summarily, nor is the Crown precluded from re‑electing to proceed by indictment once the error is discovered, “unless the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency” (2008 ABCA 73, 231 C.C.C. (3d) 80, at para. 1). The matter was therefore remitted to