R. v. Dwyer and Lauzon, [1980] 1 SCR 481

Supreme Court of Canada

R. v. Dwyer and Lauzon, [1980] 1 S.C.R. 481

Date: 1979-06-21

Her Majesty The Queen (Plaintiff) Appellant;

and

Claude Dwyer and Richard Lauzon (Defendants) Respondents.

1979: May 31, June 1; 1979: June 21.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Trial—Election by accused—Re-election—Whether accused properly re‑elected trial by judge alone—Compliance with Code provisions—Criminal Code, ss. 492, 496.

Respondents, Dwyer and Lauzon, were convicted on indictment of receiving and giving a bribe respectively under s. 109 of the Code. The Court of Appeal quashed the conviction and ordered a new trial because, the accused not having elected of re-elected in the manner prescribed by the Code for trial by judge alone, the trial and convictions were a nullity. The issue raised on appeal is whether ther was an effective re-election.

Respondents were charged under an information consisting of one count and committed to trial. Other informations were outstanding with reference to them but no other preliminary hearing was held although counsel agreed that the preliminary hearing and the evidence there taken would apply to the other outstanding matters. An indictment dated November 29, 1976, containing six counts was ultimately preferred. On December 22, 1976, Lauzon through counsel advised the sheriff at Ottawa of his wish to re-elect trial by judge alone. On January 10, 1977, counsel for both accused appeared to fix a date for election and trial. In an affidavit counsel for Lauzon stated that the letter of December 22 was written “to the Sheriffs office” to say that both co-accused would be re-electing trial by judge alone. While this may have been sworn in error it was not contradicted in the record and the letter was apparently acknowledged and relied upon by counsel for both accused before Weatherston J. and thereafter before the late Garrett J. The trial began before Garrett J. on February 8, 1977, when there was inter alia a discussion as to election proceedings. Counsel for both accused indicated that they regarded the matter as properly before the judge alone. On appeal the Crown position

[Page 482]

was that either there had been an effective re-election in compliance with s. 492 of the Code or that there was an express waiver by the accused of a jury trial. The Court of Appeal however was of opinion that in the absence of a re-election the trial judge was precluded from trying the case without a jury. That Court rejected any notion of substantial compliance with s. 492 or that the respondents had waived their right to re-election.

Held: The appeal should be allowed.

The appeal turns on the precise meaning of the s. 492 when read as a whole. In this case there was no question of substantial compliance because the respondents had complied precisely with the provisions of the section and in the sequence prescribed.

Section 492(1) creates a right in an accused to reelect to be tried by a judge without a jury. The accused expressed desire(s) to re-elect, both accused attended at the time and place fixed by subs. (2) for trial, and, after the charge had been read, made the election prescribed by subs. (1). There is no question that such an election can be made through counsel in the presence of the accused, as was done here. There was therefore a proper re‑election. Further, while s. 496 provides that following a re-election a new indictment in Form 4 shall be preferred by the Attorney General or his agent the failure to prefer such after re-election rather than proceeding on the old indictment did not affect the validity of the proceedings particularly since here the indictment was already in Form 4.

Finally, while s. 492(3) provides that “after the charge upon which he has been committed for trial…has been read to him” the accused shall “be put to his election”, this should be interpreted as requiring the accused to hear the actual charge with which he is faced before he is required to make his election as to the mode of trial. The Court of Appeal erred in its conclusion that the initial charge, i.e., the one contained in the information was the charge which had to be read to the accused and that following re-election the new indictment preferred pursuant s. 496 “would have been prepared and formed the basis of the trial”.

[R. v. Caccamo, [1973] 2 O.R. 367, 11 C.C.C. (2d) 249, 21 C.R.N.S. 83, aff’d [1976] 1 S.C.R. 786, 21 C.C.C. (2d) 257, 54 D.L.R. (3d) 685 approved; R. v.

[Page 483]

Moreau, [1979] 1 S.C.R. 261, 89 D.L.R. (3d) 449, 42 C.C.C. (2d) 525, 23 N.R. 541 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing appeals by the accused from convictions for accepting a bribe and bribing a police officer contrary to s. 109(a) and (b) of the Criminal Code. Appeal allowed, convictions restored.

David H. Doherty, for the appellant.

Morris Manning, Q.C., for the respondent Dwyer.

Clayton C. Ruby, for the respondent Lauzon.

The judgment of the Court was delivered by

ESTEY J.—The respondents, Dwyer and Lauzon, were convicted of receiving and giving a bribe respectively under s. 109 of the Criminal Code pursuant to an indictment preferred in the Supreme Court of Ontario, by Garrett J. sitting without a jury. The Court of Appeal quashed the conviction and ordered a new trial on the principal ground that the accused, not having elected or re-elected in the manner prescribed by the Criminal Code for trial by judge alone, the trial and convictions were a nullity.

The issue raised by the Crown on this appeal is simply whether there was an effective re‑election by the respondents of trial of the charges brought against them by a judge sitting without a jury. This issue calls for the interpretation of many of the procedural provisions in the Criminal Code relating to the preferring of indictments, the forum for the trial of certain offences including those under s. 109 of the Criminal Code and the many inter-related provisions concerning the rights of the accused to elect and to re-elect forum and mode of trial. I propose to dispose of the appeal with reference to the latter provisions only because if the respondents have in law re-elected, as submitted by the Crow, trial by judge sitting without a jury, it is unnecessary to proceed to the other issues raised by the respondents.

[Page 484]

The principal provision with which we are here concerned is s. 492 which provides:

492. (1) Where an accused has elected or is deemed to have elected to be tried by a court composed of a judge and jury, the accused may notify the sheriff in the territorial division in which he is to be tried that he desires to re-elect under this section,

(a) to be tried by a judge without a jury; or

(b) if he has the consent in writing of the Attorney General or counsel acting on his behalf, to be tried by a magistrate without a jury.

(2) A sheriff who receives a notice and a consent, if required, pursuant to subsection (1) shall forthwith inform a judge or magistrate having jurisdiction and the judge or magistrate, as the case may be, shall fix a time and place for the accused to re-elect and shall cause notice thereof to be given to the accused.

(3) The accused shall attend or, if he is in custody, shall be produced at the time and place fixed under subsection (2) and shall, after the charge upon which he has been committed for trial or ordered to stand trial has been read to him,

(a) if the notice states that the accused desires to re-elect to be tried by a judge without a jury, be put to his election in the following words:

You have elected or are deemed to have elected to be tried by a court composed of a judge and jury. Do you now elect to be tried by a judge without a jury?

or

(b) if the notice states that the accused desires to re-elect to be tried by a magistrate without a jury, be put to his election in the following words:

You have elected or are deemed to have elected to be tried by a court composed of a judge and jury. Do you now elect to be tried by a magistrate without a jury?

(4) Where an accused elects under this section to be tried by a judge without a jury or a magistrate without a jury, the judge or magistrate, as the case may be, shall proceed with the trial or fix a time and place for the trial.

(5) Where an accused who desires to re-elect to be tried by a judge without a jury does not notify the sheriff in accordance with subsection (1) more than fourteen days before the day fixed for the opening of the sittings or session of the court sitting with a jury by

[Page 485]

which he is to be tried, no election may be made under this section unless the Attorney General or counsel acting on his behalf consents in writing.

Before dealing in detail with the operative provisions of this section, something should be said about the procedural history of this prosecution. The respondents were originally charged under an information consisting of one count as a result of which the respondents were committed to trial. Other informations were outstanding with reference to the respondents but no other preliminary hearing was held although it was agreed between counsel representing the accused and the Crown that this preliminary hearing and the evidence taken therein would be deemed to apply to the other informations then outstanding. Counsel for the respondents later withdrew from this agreement. An indictment dated November 29, 1976 containing six counts was ultimately preferred. Parallel proceedings in the Supreme Court of Ontario culminating in the quashing of another indictment in which the respondents were accused are of no interest in these proceedings. In the indictment with which we are concerned, count 1 approximates the charge in the aforementioned initial information.

By letter dated December 22, 1976, the respondent Lauzon, through counsel, advised the Sheriff at Ottawa:

re: Regina vs Clause Dwyer and Richard Lauzon

Please be advised that we act for Richard Lauzon who is to appear in the Supreme Court of Ontario at the Sittings commencing the 10th January.

Originally, Mr. Lauzon had elected trial by Judge and Jury. However, subsequent to that date, namely, on or about the 17th November, 1976 the Crown preferred an indictment with the consent of the Attorney General under section 507.

In view of this, please be advised that the accused Lauzon now wishes to re-elect trial by Judge alone under Section 492.

I am sending a copy of this letter to the Crown Attorney’s office.

[Page 486]

On January 10, 1977, counsel for both accused appeared before Weatherston J. for the purpose of fixing a date for election and trial. In an affidavit forming part of the record before this Court, counsel for the respondent Lauzon at trial states that the letter of December 22, quoted above was written “to the Sheriffs office” to say that both co-accused would be re‑electing trial by judge alone. While counsel for Lauzon before this Court stated that this must have been sworn in error, the fact is that the affidavit was sworn on December 27, 1977 and has not been contradicted in the record, and the letter of December 22 was apparently acknowledged and relied upon by counsel for both accused before Weatherston J. and thereafter before the late Mr. Justice Garrett.

The trial was convened before Garrett J. in Ottawa on February 8, 1977 as directed by Weatherston J. At the opening of trial, a considerable discussion ensued concerning the collateral proceedings with respect to the indictment quashed by Goodman J., and thereafter the accused were arraigned and all six counts of the indictment were read by the Registrar. After a discussion concerning the propriety of the form of the indictment and its preferment in the Court, and a discussion of the election proceedings to which I will refer below, the two accused then pleaded “not guilty.”

I turn back to the issue of re-election and the events connected therewith before Garrett J. Because of the lengthy and complete argument which took place before this Court wherein every apparent facet of the proceedings and the procedure was examined, I set out the entire discourse between Garrett J. and counsel on this subject:

HIS LORDSHIP: NOW this is something, Mr. Reilly, that I’m afraid that I haven’t looked into myself but as I recall matters, I understand there is no longer any election in these cases—

MR. REILLY: NO, sir.

HIS LORSDSHIP:—(continued) it’s a request for a plea, and then the matter proceeds.

[Page 487]

MR. REILLY: That’s right. Perhaps, sir, I would like one matter on the record.

The right to proceed before your lordship presiding as a judge of the Superior Court of Criminal Jurisdiction sitting alone is something, of course, that has been exercised fairly recently. It is probably something that was not originally anticipated by Parliament when they allowed provisions for re-election, definition of your lordship as a judge, etcetera to give that right.

I would like on the record, sir, that my friends have in fact requested that I prefer the indictment in this court, that is in your lordship’s court, sitting as a judge in the Superior Court of Criminal Jurisdiction without a jury. There is no question you have the right, sir, to hear charges, and I would like my friends’ indication—

HIS LORDSHIP: Rightly or wrongly, I apprehend a Supreme Court judge can try anything at an assize—

MR. REILLY: That’s right, sir—

HIS LORDSHIP:—(continued) which is contained in the Criminal Code.

MR. REILLY: That’s right, sir. I would like my friends’ agreement on the record that it’s at their request that I prefer this indictment in this forum and they in fact attorn to your jurisdiction.

HIS LORDSHIP: Mr. Chilcott?

MR. CHILCOTT: My lord, there is no question about that. It is, as far as Lauzon is concerned properly before your lordship, and again as far as Lauzon is concerned, we ask that it be tried without a jury.

HIS LORDSHIP: Mr. Houston.

MR. HOUSTON: Insofar as Mr. Dwyer is concerned, my lord, I completely adopt my friend, Mr. Chilcott’s statement.

HIS LORDSHIP: Mr. Simpson?

[Page 488]

MR. SIMPSON: I adopt, my friend, Mr. Chilcott’s statement.

The Crown takes the position that either there has been an effective re-election in compliance with s. 492, or alternatively, that there was an express waiver by the accused of a jury trial in such a way as to give the trial judge jurisdiction over the accused to try them without the intervention of a jury. The Court of Appeal in a unanimous judgment stated, through Lacourciere J.A.:

We are all of the view therefore, that Garrett J., in the absence of a re-election, was precluded from trying the case without a jury.

In the course of reaching such conclusion, the Court rejected any notion of “substantial compliance” with the provisions of s. 492, or that the respondents, represented as they were by experienced counsel, had “waived their right to a re-election or dispensed the presiding judge with his duty to comply with the procedure which was a condition precedent to his jurisdiction to try these offences without a jury.”

The respondents support the decision below on the basis that:

(a) there was no compliance whatever with the requirements of s. 492;

(b) the provisions of s. 492 are mandatory and complete compliance is a condition precedent to the jurisdiction of a trial judge hearing the charges without a jury;

(c) the respondents had no capacity in law to waive compliance with s. 492;

(d) finally, the respondents meet the appellant’s submissions with the argument that the question as to whether there was substantial compliance with s. 492 is a mixed question of fact and law, and not open to the appellant in this Court.

The last mentioned submission by the respondents was put to rest in the recent judgment of this

[Page 489]

Court in R. v. Moreau[2] where, speaking for the majority of the Court, Beetz J. stated at p. 274:

I now briefly turn to the other issue, that is whether the main issue raises a question of law. I think it does. It hinges upon the interpretation of a provision of the Criminal Code: what is capable of being “evidence to the contrary” within the meaning of s. 237(1)(c)? The Courts of Appeal of Nova Scotia, British Columbia, Alberta and Saskatchewan have indicated that they consider the issue as a question of law: Shafer v. Regina [1971] 5 W.W.R. 692; R. v. Gaetz (1972), 8 C.C.C. (2d) 3; R. v. Westman (1973), 11 C.C.C. (2d) 355; R. v. Davis (1973), 14 C.C.C. (2d) 573; R. v. Falkenham (1974), 22 C.C.C. (2d) 385. I agree with their approach on this point.

Here the Court is engaged with a determination of the proper interpretation in law of the provision contained in s. 492, and therefore, the submission of the appellant with reference to compliance or substantial compliance with the Code provisions raises a question of law.

This appeal turns upon the meaning of the detailed provisions and subprovisions of the section when read as a whole. It is hardly necessary to observe that the patent purpose of the section is to create a right in an accused person to re-elect to be tried by a judge without a jury even after the accused has elected once before to be tried by a court composed of a judge and jury. This section is part of a complex network of sections which in effect give an accused in many instances at least five alternative modes of trial, being: trial by magistrate without a jury (subject to the qualification of consent of the Attorney General in some instances); trial by a county court judge without a jury; trial in the county court before judge and jury; trial in the supreme court (where the province distinguishes between county and superior court) by a court composed of judge and jury; and finally, trial before a supreme court judge sitting without a jury. The interaction of the many sections of the Code setting out these rights and these procedures is very complex, but dealing with s. 492 there are certain features of this statutory provision which are abundantly clear.

[Page 490]

Subsection 1, for example, clearly creates a right in an accused to re-elect to be tried by a judge without a jury. This right both accused set out to exercise as can be seen by the letter and the affidavit described above, and the appearance before Weatherston J. There is no question of waiver or substantial compliance with subs. 1. The accused clearly expressed a “desire(s) to re-elect under this section…”

As for subs. 3, both accused clearly attended at the time and place fixed under subs. 2 for trial, and after the charge had been read, made the election described in subs. 1. It was not submitted before us that such an election cannot be made through the intervention of counsel in the presence of the accused, as was done here. In my reading of the section as a whole, and particularly when such reading is made in the context of the pattern established in the Code for the election and reelection by the accused of modes and level of trial, the accused through counsel may excuse the court from reading subs. 3 and may proceed directly to the communication of the election. This must be so, particularly where the notice under subs. 1 and 2 expressly states that the re-election is being made under s. 492. It is not a question of a waiver of a right by the respondents or by the appellant or by the Court. The respondents, being aware of the formal question, simply answered it by an essential repetition of the letter of notice already given.

Subsection 2 deals with the action by the Sheriff acting in the course of the administration of justice upon receipt of a notice given under subs. 1. The Sheriff must have responded by arranging the hearing before Weatherston J. who in turn fixed the date for trial before Garrett J.

Subsection 4 directs that the judge on receiving the election of the accused shall proceed with the trial or fix a time and place for the trial. Garrett J. proceeded with the trial forthwith in the manner requested by the respondents in their re-election.

[Page 491]

Subsection 5 is not here applicable because the respondents did notify the Sheriff in the manner set out above.

I therefore conclude that there is no question here of substantial compliance because the respondents have complied precisely with the provisions of s. 492 and in the sequence prescribed by that section. Fortunately, we are not called upon to determine, and I specifically refrain from so determining, whether substantial compliancce with s. 492(3) would indeed be sufficient for the purposes of re-election under the section. If we were by the facts and circumstances here called upon to answer such a question, considerable support could be found in the line of reasoning applied by the Court of Appeal of the Province of Alberta in R. v. Sydney MacKenzie (unreported, released March 22, 1978) where Sinclair J.A., speaking for the Court stated:

In my view the election put to the accused in the present case was substantially in the language of Section 492(3)(a), and could have left them in no doubt that they had a choice of trial by judge alone or by judge and jury. [emphasis added]

It should be added that if any relaxation of the rules had occurred here such would not have been done so as to diminish any rights of the accused, but in fact would have taken place at their request. Mr. Manning was very frank in acknowledging that this was so and with proper candour advanced the case of the respondent Dwyer on purely technical grounds.

Upon a re-election under s. 492 other sections come into operation including s. 496 which prescribes that the indictment in Form 4 shall be preferred by the Attorney General or his agent. Here the indictment which had been presented to the Court by the Crown Attorney was that which had been drawn up on November 29, 1976. After the election, the pleas of the respondents to that indictment were taken. No new indictment was prepared and preferred by the Attorney General or his agent. This procedure was precisely the same as that with which the court was concerned in R. v.

[Page 492]

Caccamo and Caccamo[3], where Gale C.J.O., speaking on behalf of the Court, stated:

Another point was taken with respect to the fact that s. 496(1) was not complied with in that after defence counsel re-elected for a trial by Judge alone, a new indictment in Form 4 was not preferred and that trial proceeded on the form of indictment normally used in the Court of General Sessions of the Peace. May I say, in the first place, that this has not heretofore been raised, either at the trial, in the notice of appeal, or in the memorandum of fact and law filed on behalf of the appellant. But, in any event, the fact that the form of the indictment was not altered did not constitute an error such as to deprive the Judge of jurisdiction. The indictment in Form 4 is substantially the same as the form of the indictment in Form 3, with respect to notifying the accused of that with which he was charged. It would be shocking that an eight-day trial could be rendered abortive if this point could be raised successfully at or near the conclusion of the trial.

As in that case, neither respondent made any issue of the failure to prefer a new indictment at the opening of trial, in the Court of Appeal, or before this Court. I adopt the reasoning of the Chief Justice of Ontario and conclude that the failure to prefer a new indictment after re-election rather than proceeding on the indictment dated November 29, 1976 does not affect the validity of the ensuing proceedings before Garrett J. In this case, the requirement of the preferment of an additional indictment is of even less substantive import because the indictment of November 29, 1976 does not follow Form 3 in any case, but is in the form prescribed in Form 4. The indictment upon which the trial proceeded was preferred in the manner prescribed by subs. 1 of s. 496 and bore the written consent of the Attorney General of Ontario as required by the section. The section contemplates, and indeed authorizes, the inclusion of a number of counts in an indictment, as was the case here, with reference to the requirement in subs. 2 of s. 496 that an indictment may include:

(b) counts relating to offences disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any offence for which the accused was committed for trial.

[Page 493]

The Court of Appeal stated:

At the trial, counsel (who were not the same as counsel on appeal), were in agreement that all the evidence that could have been heard on any of the six counts in the indictment was heard at the preliminary inquiry. On the hearing of this appeal, Mr. Manning was prepared to admit that this was so, but Mr. Ruby was not prepared to make this admission. There can be no question that defence counsel had the opportunity to hear and cross-examine every Crown witness at a preliminary inquiry, although in strictness, there was no preliminary inquiry conducted with respect to counts 2 to 6 inclusively.

No evidence was drawn to the attention of this Court which would indicate any error on the part of the Court of Appeal in reaching this conclusion.

There remains to be considered whether s. 492(3) has been complied with in that the charge read to the respondents on the opening of the trial was the indictment, and the six counts included therein, dated November 29, 1976, rather than the information as originally laid and which, of course, included only the charge described somewhat differently in count 1 of the indictment. The date of the information upon which the preliminary hearing was held is not revealed in the record but after the preliminary hearing therein had been completed, the indictment upon which the trial proceeded was drawn up and placed before Mr. Justice Donahue on December 6, 1976. It was, of course, before Weatherston J. in the hearing pursuant to subs. 2 of s. 492, on January 10, 1977. Subsection 3 prescribes that “after the charge upon which he has been committed for trial or ordered to stand trial has been read to him,” the accused shall, pursuant to subs. 3(a) “be put to his election…” It is difficult to interpret those words as requiring that there be read to the accused a form of charge which, by the stage of the proceedings then reached, has been replaced by a preferred indictment. I interpret the subsection, therefore, as requiring that the accused hear the actual charge with which he is faced before he is required to make his election as to the mode of trial. Any other interpretation would expose the accused to being misled as to the nature of the charge upon which he is about to be tried at the very moment when he is given the opportunity of exercising his

[Page 494]

right under the Criminal Code to select the nature of the forum for trial. In this case, the problem has little material content because count 1 and the charge as contained in the information are substantially the same, the only variances being:

(a) The information specified that the offence occurred “at the City of Vanier and elsewhere in the Province of Ontario” whereas count 1 of the indictment is limited to the City of Vanier;

(b) The information charged the respondents with conspiring with one another “and with divers other persons,” whereas the indictment confines the conspiracy to the two respondents;

(c) The original information charged the respondents with “corrupt payments of money”, whereas the indictment adds “or other valuable consideration”; and,

(d) The information specified that such payment was made with intent to interfere with the administration of justice whereas the indictment alleges the subject was done with the intent that the respondent Dwyer should protect from detection or punishment the respondent Lauzon who had committed or intended to commit offences by acting as a keeper of a common bawdy house.

Both forms of the charge recite ss. 109 and 423(1)(d) of the Code and with the exception of the other items noted, are identical. I deal with this aspect of s. 492, although counsel for the respondents did not raise it, because a parallel argument was made with reference to the application of s. 507 to the form of indictment in these circumstances. By reason of the interaction of ss. 492 and 496 it is not necessary, in my view of this appeal, to deal with the other issues arising under s. 507 relating to the preferment of the indictment. However, in order to put to rest the parallel argument under s. 492 which might well have arisen, I have made the foregoing observations and construe the section as it relates to these circumstances as requiring the reading of the actual charge with which the accused is faced at the opening of trial

[Page 495]

and which charge was read to him by the Registrar of the Court here.

I reach this conclusion with the greatest respect to the members of the Court below who concluded that the initial charge, that is the one contained in the information, was the charge which must be read to the accused and that following re-election, the new indictment preferred pursuant to s. 496 “would have been prepared and formed the basis of the trial.” I very much prefer the reasoning followed by the same court in the Caccomo appeal, supra, as it applies to s. 496. The sequence of events in these proceedings, including the quashing of an earlier indictment and the preferring of an indictment in November 1976, rendered the original charge, as embodied in the information, completely obsolete and indeed misleading to the accused at the time of the exercise of his rights under s. 492(1).

We are here, of course, concerned only with the legality of the convictions.

For these reasons I would therefore allow the appeal, set aside the order of the Court of Appeal, and restore the conviction of each respondent as entered at the trial court, together with the sentence there embodied.

Appeal allowed, convictions and sentences restored.

Solicitors for the appellant: The Ministry of the Attorney General for Ontario, Toronto.

Solicitor for the respondent Dwyer: Morris Manning, Toronto.

Solicitor for the respondent Lauzon: Clayton C. Ruby, Toronto.