Summary or Indictment? It Matters!

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Paralegal Candidate Karen Fair summarizes a recent appeal, in which a matter was sent back to Ontario Court of Justice, over a jurisdictional issue.

A recent Ontario Court of Appeal decision considers the jurisdictional differences between the Superior Court of Justice and the Ontario Court of Justice when it comes to criminal summary conviction proceedings.

In R. v. D.M.E., 2014 ONCA 496, the appeal court considered whether the Superior Court of Justice has jurisdiction to hear, adjudicate and sentence summary conviction proceedings. In this case, the appeal court found that once the Crown elected to try the accused summarily, the Superior Court lost jurisdiction and the case should have been heard at an Ontario Court of Justice.

D.M.E. had been charged with sexual assault, sexual exploitation involving a minor, and breaching an undertaking. The Crown elected to proceed by indictment for all charges and the appellant elected trial by judge and jury.

“The superior court of criminal jurisdiction has no authority to try summary conviction offences charged in the same indictment as indictable offences.”

– Ontario Court of Appeal

On the trial date, the appellant appeared before a Superior Court Justice. The Crown asked the justice to approve a re-election, and to proceed by summary conviction on two charges. Defence counsel consented to the re-election and the judge approved the re-election. The appellant entered guilty pleas.

Writing for the court, Justice David Watt said the apparent reason for the re-election and guilty pleas on two counts was that the appellant wanted to be able to seek a conditional sentence on the sexual assault count. A conditional sentence was not legally available if the Crown proceeded by indictment. To permit the appellant to seek a conditional sentence, Crown counsel re-elected to proceed by summary conviction.

But the proceedings never made their way to a summary conviction court. Instead, the trial judge adjudicated on the summary matter. In Superior Court, D.M.E. was sentenced to 12 months’ imprisonment, followed by a 12-month probation period.

    Jurisdiction-Based Sentence Appeal

Soon after sentencing, the appellant sought to appeal his sentence on the basis that the sentencing judge “lacked jurisdiction to preside over the Sentencing Hearing.” The Crown brought a motion to quash the appeal.

There was no objection at the time when the Crown re-elected to proceed summarily. The appeal court noted that the trial judge approved the re-election and defence counsel consented. The Crown has the right to elect and re-elect whether to proceed summarily or by indictment, an authority grounded in the common law.

Justice Watt wrote that failing to “reconstitute the court” vitiated the proceedings at trial and sentencing. Court found that it was not the re-election that made the proceedings a nullity. Rather, it was that the trial judge lacked the jurisdiction to preside over summary conviction proceedings.

    Criminal Code Provisions Discussed

In its decision, the Court of Appeal discusses why the trial judge lacked the jurisdictional authority to preside over the summary conviction proceedings.

Under Criminal Code section 798, summary conviction proceedings are adjudicated by a summary conviction court. Further, sections 606(4) and 662(1) of the Criminal Code do not provide general authorization for a Superior Court Justice to conduct summary conviction proceedings.

The appeal court considered whether a judge of the superior court of criminal jurisdiction has the authority to take a plea of guilty in summary conviction proceedings and found that it does not.

Justice Watt wrote:

Where the principal offence charged is an indictable offence, entry of a s. 606(4) plea of guilty to a summary conviction offence does not change the nature of the proceedings in which the plea was entered.

    Included Summary Offences Do Not Confer Jurisdiction

Considering the issue of the pleas, the appeal court found that ss. 606(4) and 662(1) did not apply in R. v. D.M.E.

Here, the pleas of guilty were to the principal offences. Further, although s. 606(4) would permit an accused in proceedings by indictment to plead not guilty to the principal indictable offence charged, but guilty to a summary conviction offence arising out of the same transaction, the subsection cannot provide general authorization for what occurred here – the conduct of summary conviction proceedings by a court other than a “summary conviction court.”

“Section 662(1) of the Criminal Code permits conviction of an accused of an offence included in the indictable offence charged where the evidence fails to prove the principal offence, but does prove the included offence. The included offence of which the accused may be convicted may be punishable on summary conviction.

The superior court of criminal jurisdiction has no authority to try summary conviction offences charged in the same indictment as indictable offences. The jurisdiction of the superior court of criminal jurisdiction is to try indictable offences, not to try summary conviction offences.

    Appellate Rights Affected

The appeal court for summary convictions is the Superior Court of Justice. Justice Watt wrote on behalf of the appeal court that “It is the nature of the proceedings, not the nature of the conviction that determines appellate rights” and that “It would be somewhat undesirable to have judges of the same court try and review trials for error.”

Citing these reasons, Justice Watt determined that the Superior Court Justice lacked jurisdictional authority to preside over the summary conviction proceedings. The appeal court quashed the sentence imposed at trial, and the guilty pleas that the appellant entered. Court dismissed the Crown motion. The proceedings were sent back to the Ontario Court of Justice in the jurisdiction in which they arose.

    Workable Solution Was Available

The decision notes that the goal of the agreement between the Crown and defence on the initial trial date could have been accomplished with a different procedure. “The result the parties sought could have been accomplished in a few brief steps,” Justice Watt wrote.

“When the parties appeared before a provincial court judge in the Ontario Court of Justice, Crown counsel could then have re-elected to proceed by summary conviction.”

– Ontario Court of Appeal

When the parties appeared for trial in the Superior Court of Justice, the appellant could have re-elected trial by a provincial court judge with the written consent of the prosecutor under s. 566(1)(a) of the Criminal Code.

“The proceedings would have retained their indictable character when they returned before a judge of the Ontario Court of Justice. When the parties appeared before a provincial court judge in the Ontario Court of Justice, Crown counsel could then have re-elected to proceed by summary conviction.

“Reconstituted as a summary conviction court, the presiding judge could then proceed with the arraignment, pleas of guilty and sentencing proceedings. The parties could appeal the sentence imposed to the Superior Court of Justice under s. 812 of the Criminal Code.

Related Information

Karen-Fair

Paralegal Candidate Karen Fair’s writing includes a case summary which is listed at CanLII Connects: ‘Public Interest’ Ground in Recent POA Appeals
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