Korponay v. Attorney General of Canada, [1982] 1 SCR 41

SUPREME COURT OF CANADA

Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41

Date: 1982-01-26

Tibor Korponay Appellant;

and

The Attorney General of Canada Respondent.

File No.: 16054.

1981: October 14; 1982: January 26.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal Law — Trial — Election by accused for a trial by judge and jury — Re-election for trial by judge alone — Whether failure to comply with re-election procedure depriving court of jurisdiction — Whether an accused may waive compliance with the procedural requirements of s. 492 of the Criminal Code — Whether the accused did waive them — Waiver must be clear and unequivocal — Criminal Code, R.S.C. 1970, c. C-34, s. 492.

Criminal law — Possession of heroin for the purpose of trafficking — Non-compliance of trial judge with s. 8 procedure of the Narcotic Control Act — Error of law — No waiver — Non-applicability of s. 613(1)(b)(iii) of the Criminal Code — New trial ordered — Narcotic Control Act, R.S.C. 1970, c. N-1, s. 8 — Criminal Code, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii).

Accused unsuccessfully appealed his conviction of possessing heroin for the purpose of trafficking to the Quebec Court of Appeal. The appeal to this Court was on two grounds: (1) the lack of jurisdiction in the Court of the Sessions of the Peace to try the accused due to the fact that he had not validly re-elected for a trial by judge alone and (2) the trial judge's error in convicting the accused without offering him the opportunity to address the issue of "purpose" after having made a finding that he was in possession of the narcotic in light of the provisions of s. 8 of the Narcotic Control Act.

Held: The appeal should be allowed.

A party may waive a procedural requirement enacted for his benefit. The validity of any waiver, however, is dependent upon it being clear and unequivocal, i.e. that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. When considering

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the circumstances surrounding the present case, the trial judge was justified to believe that there had been an informed waiver by the accused through his attorney of the procedural requirements of s. 492 of the Criminal Code.

The second ground of appeal succeeded as the judge did not comply with the procedure set out in s. 8 of the Narcotic Control Act. Without valid waiver on the part of the accused, such non-compliance is fatal. The denial of an opportunity of presenting a defence will always leave the court uncertain as to what would finally be the evidence adduced had the opportunity denied been given the accused. Section 613(1)(b)(iii) of the Criminal Code cannot apply where the provisions of s. 8 have not been complied with.

Park v. The Queen, [1981] 2 S.C.R. 64; Adgey v. The Queen, [1975] 2 S.C.R. 426; Brosseau v. The Queen, [1969] S.C.R. 181; R. v. Matheson (1979), 13 C.R. (3d) 62; R. v. McDonald (1958), 120 C.C.C. 209; Cloutier v. The Queen, [1979] 2 S.C.R. 709; R. v. Sharpe (1961), 131 C.C.C. 75; R. v. Sylvain (1974), 17 C.C.C. (2d) 323, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec dismissing the appellant's appeal from his conviction on a charge of possession of heroin for the purpose of trafficking. Appeal allowed.

Paul Skolnick and Ivan Lerner, for the appellant.

Jacques Letellier, for the respondent.

The judgment of the Court was delivered by

LAMER J.—The appellant, one Tibor Korponay, was found guilty of possession of 5 kilos of heroin for the purpose of trafficking (s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1) by a judge of the Sessions of the Peace, sitting in the judicial district of Montreal as a judge under Part XVI of the Criminal Code.

Korponay's appeal to the Quebec Court of Appeal was dismissed and he now comes to this Court on two grounds: his first ground is that, having chosen originally a trial by jury, the Court that convicted him did not have jurisdiction to do so because he had not been properly put to a

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re-election to the latter court under s. 492 of the Criminal Code; his second ground is predicated on the provisions of s. 8 of the Narcotic Control Act which require that the court conducting a trial for an offence contrary to s. 4(2) of the Narcotic Control Act proceed in determining the guilt or innocence of an accused in two phases. The appellant argues that the trial judge did not proceed in compliance with the special procedure set out in s. 8, in that he did not make a finding as to possession and then give the accused an opportunity of establishing that he was not in possession of the narcotic for the purpose of trafficking, and that, as a result, a new trial should be ordered. Appellant's first ground should not in my opinion succeed. However, as I am of the view that his second should, the issue raised by the first ground must nevertheless be decided as it is determinant of which court will have jurisdiction to hear the new trial that should in my opinion be ordered.

First ground

Korponay had elected, under s. 484(2) of the Code, to be tried by a court composed of a judge and jury. Following a preliminary inquiry he was, on September 22, 1972, committed for trial before the Superior Court of Criminal Jurisdiction.

Korponay, who was on bail, appeared before that Court on November 6, 1972, and his case was remanded from one assize to the other the last of such remands being to November 22, 1974.

However, on November 6, 1974, we find Korponay, assisted by two attorneys, appearing before the Chief Judge of another court, the Court of the Sessions of the Peace, in Montreal. The relevance of this occurrence will become apparent later. The Clerk of that Court had the Superior Court's record and, in the presence of all, including the Crown Attorney, read the charge to Korponay. What then happened is best described by reproducing here the transcript of the proceedings:

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[TRANSLATION]

CASE 01-004919-72

TIBOR KORPONEY

V.

THE QUEEN

BY THE CLERK:

(The charge is read)

Do you plead guilty or not guilty?

BY MR. JOEL GUBERMAN

ATTORNEY FOR THE DEFENCE:

Judge alone.

BY MR. REJEAN PAUL

ATTORNEY FOR THE CROWN:

No, what I mean is that it has already been done. BY THE DEFENCE (MR. GUBERMAN):

It has already been done?

BY THE CROWN:

Yes, yes.

BY MR. DAVID LINETSKY

ATTORNEY FOR THE DEFENCE:

I see.

BY THE DEFENCE (MR. GUBERMAN):

I see, all right.

BY THE CROWN:

What then?

BY THE DEFENCE (MR. GUBERMAN):

Not guilty.

BY THE CROWN:

Not guilty?

BY AN UNIDENTIFIED PERSON:

No.

BY THE CROWN:

Well then, I would suggest as a date, well let's see, let us start by reading into the record the evidence made by consent. Evidence adduced on file 4921-72, that is in the cases of Fecarotta, Balsamo and Mandolia ...

BY THE COURT (JUDGE YVES MAYRAND, J.C.S.P.): With the exhibits also?

BY THE CROWN:

With all the exhibits in support and with their marks in 4921 ...

BY THE COURT:

Not so fast.

BY THE CROWN:

. are completely read into the record of 4919 in '72 which is the present case and we wish to inform the Court that in the meantime we will be reading anew this abundant .. .

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BY THE COURT:

Subject to your completing.

BY THE CROWN:

... subject to our right to complete and to then close our case on January 8, 1975.

BY THE COURT;

I am asking you just one thing, is this Crown's proof?

BY THE CROWN:

Yes, yes, yes.

BY THE COURT:

Then Miss it should be specified. All of the evidence adduced by the Crown in case 4921 along with the exhibits in support thereof will serve as evidence for the Crown in this case, subject to that evidence being completed if need be .. .

BY THE CROWN:

That's correct. BY THE COURT:

... January 8, 1975.

BY THE CROWN:

Or at some other date, but in any event ...

BY THE COURT:

Is this by consent?

BY THE DEFENCE (MR. GUBERMAN):

Yes, your lordship. BY THE COURT:

You also "maître"? Are you attorney of record?

BY THE DEFENCE (MR. LINETSKY):

Yes, my lord. BY THE COURT:

Therefore inscribe the lawyer's name.

BY THE DEFENCE (MR. LINETSKY):

Me Linetsky. L-I-N-E-T-S-K-Y.

BY THE COURT:

You are from the same firm, I think, huh?

BY THE DEFENCE (MR. LINETSKY):

Yes, that's correct. BY THE COURT: I see.

BY THE CROWN: Fine.

BY THE COURT: Fine, fine.

So you'll be back January the 8th at half past nine (09h30), room five 0 seven.*

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BY THE ACCUSED (Mr. T. Korponey)

Thank you, Your Honour.

BY THE CROWN:

Fine. Thank you.

BY MR. GUBERMAN:

Thank you, my lord.

BY THE COURT:

Very well.

(S) GRACE LIBERATORE

(S) THÉRÈSE PELLETIER

The trial commenced on the date of that appearance before the Chief Judge by the reading into the record by consent of evidence adduced in other proceedings, against other persons involved in the events that gave rise to the charge against Korponay. The trial appears to have continued piece-meal on many occasions over the next three years. After the Crown finally closed its case, Korponay offered a defence and testified on his own behalf on May 5, 1977. On August 3 of the same year, Chief Judge Mayrand found him guilty and, on September 23, 1977 sentenced him to 14 years in the penitentiary.

It was not until October 19, 1979, some two years later, that the appellant, in a petition for a writ of habeas corpus, questioned for the first time since the beginning of his trial in the Court of the Sessions of the Peace that Court's jurisdiction to try him.

This appeal is not concerned with those proceedings but with the appeal from his conviction. His first ground alleges a lack of jurisdiction in the Court of the Sessions of the Peace to try him due to the fact that he had not validly re-elected for a trial by judge alone, and that the only court having jurisdiction for doing so was the court he had initially chosen, the Superior Court. Korponay says that the provisions set out in s. 492 for re-electing are mandatory, must be complied with strictly, and that substantial compliance with the provisions of that section is not sufficient to confer upon the court jurisdiction to try him.

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Section 492 reads as follows:

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 which he is to be tried, no election may be made under

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this section unless the Attorney General or counsel acting on his behalf consents in writing.

The appellant says that no notice was given by him to the sheriff, that no notice was given him by the judge, and that he was not read the words set out in s. 492(3)(a). He concludes that, this not having been done, the judge did not have the jurisdiction to proceed to trial as he did.

All of appellant's arguments in his factum and before this Court related to whether there was or was not strict compliance with the section and were then in support of a requirement for strict compliance.

In my view there was no compliance with the section at all, not even substantial compliance, and the issue whether there must be strict or need only be substantial compliance is of no relevance to the determination of this case. What the procedures followed in this case raise as an issue is whether an accused may waive compliance with the procedural requirements set out in the section, if so, in what manner, and whether the accused in this case did waive them.

Some procedural requirements are enacted for the protection of the rights of one of the parties, Crown and accused, and others for both. A party may waive a procedural requirement enacted for his benefit, the concurrence of both being required when enacted for both. Generally speaking, the right to waive that type of procedural requirement has been recognized by all the courts, including this Court, and has been recently reaffirmed by this Court's decision as regards the waiver of a voir dire into the circumstances surrounding the giving of a statement by an accused to a person in authority (see Park v. The Queen, [1981] 2 S.C.R. 64). Paramount to such a right is that of the trial judge to require compliance notwithstanding a desire to waive, he being the ultimate judge of what procedural safeguards need nevertheless be respected in order to protect the certainty and the integrity of the judicial process.

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When one looks at the various cases dealing with waiver, the problem which presents itself relates to what formalities should surround a waiver before the court should accept it and give it effect, in order that it will be a bar to the party seeking to assert a non-compliance with the procedural requirement.

As a general proposition, I should like to restate here what was said by our brother Dickson J., speaking for the Court, in Park, supra. He was of course speaking of the waiver by counsel of a voir dire [at pp. 73-74]:

No particular words or formula need be uttered by defence counsel to express the waiver and admission. All that is necessary is that the trial judge be satisfied that counsel understand the matter and has made an informed decision to waive the voir dire. [...]

Although no particular form of words is necessary the waiver must be express. Silence or mere lack of objection does not constitute a lawful waiver. The question is—does the accused indeed waive the requirement of a voir dire and admit that the statement is voluntary and admissible in evidence? If that question can be answered in the affirmative I cannot think that any further procedural safeguards are necessary to protect the rights of an accused person.

Indeed the Court is saying in Park that the validity of such a waiver, and I should add that that is so of any waiver, is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. This has long been recognized, as is illustrated by many cases, and particularly so by those dealing with a judge's duties as regards a plea of guilty, which is the waiver by an accused of his right to put the Crown's case to the test of a trial. (See amongst others, Adgey v. The Queen, [1975] 2 S.C.R. 426; Brosseau v. The Queen, [1969] S.C.R. 181). The judge's duties concerning any waiver are no different than those on a plea of guilty. The factors he will take into account in determining whether the accused has clearly and unequivocally made an informed decision to waive his rights will vary

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depending on the nature of the procedural requirement being waived and the importance of the right it was enacted to protect. However, always relevant will be the fact that the accused is or is not represented by counsel, counsel's experience, and, in my view of great importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events are taking place.

I will now consider those principles as they apply to the procedural requirements of s. 492.

First let us look at the notice that an accused may give to the sheriff. To identify the right of the accused Parliament intended to protect through this procedure one must look at the purpose of the notice. That purpose is revealed by the fact that it creates an obligation upon the sheriff to "forthwith inform" the judge who in turn "shall fix a time and place for the accused to re-elect" and then "cause notice thereof to be given to the accused".

The right to be protected by the procedural enactment is that of the accused, wishing to re-elect, to have a timely opportunity to do so. He is entitled to have the judge informed of his wish, and thus require the judge to act under the section. An accused who has in fact acted on that opportunity cannot later complain that the notice requirement needed waiver by him as it obviously, in those circumstances, no longer had any purpose.

As for the notice that the judge must give the accused, it is to ensure that he will know where and when to attend to re-elect. An accused who does in fact agree to a time and place to attend would clearly and unequivocally be waiving that notice.

The procedural step set out in s. 492(3), requiring the use of certain words, is there to ensure that an accused is properly informed of the choice he has made and the one he now proposes to adopt. His alternatives in the case at bar would be trial by a court composed of a judge and jury, which he has formerly chosen, or trial by judge or magistrate

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alone, which he then contemplated. An informed waiver must therefore be, as regards that portion of s. 492, a clear and unequivocal indication by the accused himself or through his counsel that he knows the words that the law says must be used when putting him to his re-election, that he does not require that those words be uttered to him, that he knows he was going to have a trial before a judge and jury, that he still has the right to such a trial but that he still has the right to re-elect for a trial before a judge sitting without a jury or a magistrate.

Now to apply these considerations to the facts of the present case.

The events took place in the judicial district of Montreal. Pursuant to questions by this Court at the hearing, attorney for the appellant acknowledged the existence of a practice particular to that district as regards re-election. (See: Traité de procédure pénale, vol. 1, 1981, by Béliveau, Bellemare and Lussier, at pp. 302-308). As appears from that book, an accused, who has elected for a trial by jury and who wishes to re-elect for a trial by judge alone, does not advise the sheriff of same but rather a particular clerk of the court who is known as being currently the person responsible for re-elections. If the re-election is to be made at a date prior to the date the accused was told to be present before the Assizes Court at his last appearance before that Court, that clerk, having been so advised by accused's counsel, arranges for an appearance before the Chief Judge of the Court of the Sessions of the Peace (or any judge replacing him for that purpose) for re-election. This is usually done in the absence of the Crown Prosecutor who is handling the case, unless there is some special reason for his being present, such as a plea of guilty followed by pre-sentence representations, or evidently unless, as in this case, the trial is to commence at that time by the reading into the record of evidence already adduced in other procedures.

That this be the practice in the judicial district of Montreal, appellant does not contest. He questions

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however the validity of that practice as not being in accordance with s. 492. In this case, the accused with his attorney, the Crown attorney and the clerk were in the Court of the Sessions of the Peace before the Chief Judge of that Court. The record, which was the Superior Court's record by virtue of the appellant's original election, had been brought to that Court and the clerk had read the charge to Korponay and asked him whether he pleaded guilty or not guilty. To that, the accused's attorney replied "judge alone". It is clear from the exchange that ensued that the Crown, and probably the court clerk, were under the mistaken impression that the accused had already re-elected to that Court and was there to commence the trial, which is what eventually happened.

It is equally clear that appellant's attorney and appellant himself were there to commence the trial before that Court and that the attorney for the appellant, being of the view, and rightly so, that there had not been a re-election, indicated to the judge in his client's name that he wanted to be tried by a judge alone. The judge had before him an attorney whose knowledge of the law and of the practice of the criminal law does not appear to be in issue. He was, in my view, amply justified in assuming, since everyone was there to proceed with the trial, that the attorney had discussed the matter with Korponay and that Korponay made an informed decision, on the advice of his attorney, to proceed to trial, not before a jury, but before that judge sitting without a jury, and that the attorney was fully authorized to do anything necessary to that end. The judge was therefore in my view amply justified in considering that the attorney's saying "judge alone" was an informed waiver of the requirement of putting to his client the words of the section. The accused's attorney knew what those words were, he knew what they meant and what effect his answer "judge alone" would have on his client's rights. Also, I should like to make my own the words of Monnin J. A. when, speaking for the majority of the Court of Appeal for Manitoba in the case of R. v. Matheson (1979), 13 C.R. (3d) 62, (the decision was reversed by this Court[1]

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but for reasons irrelevant to the passage that I am quoting with approval), he said (at p. 71):

I am of the view that what the accused can personally do counsel speaking on his behalf and in his presence can likewise do; otherwise we are diminishing the role of counsel and making a mockery of open trials solemnly conducted in the presence of the accused fully represented by counsel of his choice. It is certainly more expeditious and free from doubt to let a person who is trained and learned in the law inform the court of the election and the plea of the accused, providing it is done in open court and in the hearing of the accused, rather that [sic] to insist that a slow and tedious trial ritual be accomplished only through the mouth of the accused, who may not fully understand the questions raised and who may be hesitant to reply for fear of misunderstanding or mistake. Counsel has a role to play in the courtroom. He should be able to play it to the fullest.

This is a case of a clear and unequivocal waiver by the accused through his attorney of the uttering of the words set out in the section. The attorney thought the accused had not re-elected, was right in thinking so and did re-elect for the purpose of getting on with what everyone was there to do: start the trial. As for his "notice" to the sheriff, I think that what I have already said on the matter is sufficient. He was being offered the choice the notice was enacted to ensure, and that procedure would have been superfluous and needed not be waived.

This also disposes of notice from the judge. In any event it is also evident that all there had agreed to a time, place and purpose, and that it would be extravagant to even suggest that there was not a clear and unequivocal waiver of that requirement.

This ground should therefore fail.

Second ground

This ground concerns the procedure set out in s. 8 of the Narcotic Control Act:

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8. In any prosecution for a violation of subsection 4(2), if the accused does not plead guilty, the trial shall proceed as if it were a prosecution for an offence under section 3, and after the close of the case for the prosecution and after the accused has had an opportunity to make full answer and defence, the court shall make a finding as to whether or not the accused was in possession of the narcotic contrary to section 3; if the court finds that the accused was not in possession of the narcotic contrary to section 3, he shall be acquitted but if the court finds that the accused was in possession of the narcotic contrary to section 3, he shall be given an opportunity of establishing that he was not in possession of the narcotic for the purpose of trafficking, and thereafter the prosecutor shall be given an opportunity of adducing evidence to establish that the accused was in possession of the narcotic for the purpose of trafficking; if the accused establishes that he was not in possession of the narcotic for the purpose of trafficking, he shall be acquitted of the offence as charged but he shall be convicted of an offence under section 3 and sentenced accordingly; and if the accused fails to establish that he was not in possession of the narcotic for the purpose of trafficking, he shall be convicted of the offence as charged and sentenced accordingly.

After the Crown closed its case, Korponay, on May 5, 1977, testified and then closed his defence. The trial judge set August 3 for judgment. On that date, Korponay and three other accused, who had been charged on different records with two counts, conspiracy to traffic in a narcotic, and trafficking, appeared before him for judgment. Korponay had been tried separately. Evidence adduced at the trials of the others had been read into Korponay's trial. The trial judge was pronouncing judgment of all four accused on the same day for they were all part of the same illegal transaction though charged differently and not tried with Korponay. This is of some relevance in understanding what I consider to be but an unfortunate oversight on the judge's part, he being well cognizant of the exceptional procedure to be followed on a trial governed by s. 8 of the Narcotic Control Act. In a written judgment, which he read, he concluded by finding all of them guilty as charged. He had evidently momentarily overlooked the special position Korponay was in and as a result did not in any way comply with the procedure set out in s. 8, make a

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finding as to possession (evidently affirmative), and then offer him the opportunity to address the issue of "purpose".

Though raised in the Court of Appeal, this ground was in no way addressed or even mentioned by that court. Having dealt with the ground related to the re-election procedure Nolan J.A., speaking for the Court, reviewed the evidence and then said (A.C. at p. 2789):

In my opinion the Appellant has failed to justify his grounds of appeal. The Crown, in my view, has proven Appellant's guilt beyond a reasonable doubt and I would therefore dismiss the appeal.

Both counsel agreed that this was an unfortunate oversight. I agree, all the more so as it was not only a serious ground but in my opinion one that should have succeeded.

Appellant argues essentially that the procedure set out in s. 8 is mandatory and seeks support for that proposition in the Ontario Court of Appeal's decision in R. v. McDonald (1958), 120 C.C.C. 209. He further says that non-compliance is fatal and that the provisions of s. 613(1)(b)(iii) cannot be invoked, and, to that end, he relies on this Court's decision in Cloutier v. The Queen, [19791 2 S.C.R. 709.

Respondent says that the McDonald decision must be read in the light of the peculiar facts of the case as was done by the Court of Appeal for Ontario in R. v. Sharpe (1961), 131 C.C.C. 75, and later by the Court of Appeal of Quebec in R. v. Sylvain (1974), 17 C.C.C. (2d) 323. In essence, respondent relies on the Sharpe and Sylvain cases to argue that there is no reason why, given the proper circumstances, as those courts felt was the case in those two instances, the curative provisions of s. 613(1)(b)(iii) cannot be applied.

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Section 613(1)(b)(iii) of the Criminal Code

Respondent says that, as Korponay was de facto given the opportunity to offer an explanation and did offer one as to the purpose of his possession, the provisions of s. 613(1)(b)(iii) could and in this case should be applied.

This to me is, with deference, a misunderstanding of the rights of an accused at a trial governed by s. 8 of the Narcotic Control Act.

Under s. 8, the rights of an accused are fourfold:

—a trial conducted during the first phase as if the charge were one under s. 3;

—a full answer and defence to the issue of possession before being put in actual jeopardy of conviction of an offence under s. 4(2);

—a finding on possession before deciding on a defence and revealing its nature as regards the purpose of that possession in the event that finding be affirmative;

—an opportunity of presenting that defence.

The respondent—Crown is saying that a breach of the accused's right to a finding by the judge before addressing the issue of the purpose of his possession is necessarily cured by the accused having in fact been given at some time prior to that finding an opportunity to address the issue and by his having availed himself of that opportunity.

The accused's right is not limited to that of being given an opportunity of establishing that the purpose of his possession was not trafficking; were that the case, I would agree with the Crown that the accused having testified as to that aspect of the offence, s. 613(1)(b)(iii) could, given the proper circumstances, be applied and cure the oversight with respect to the second stage of s. 8.

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Such is not however the case because most important is the additional right of an accused to avail himself of that opportunity, or decide not to, only after having been given the trier of fact's finding as to possession and only if that finding is adverse. The question therefore, as regards the application of s. 613(1)(b)(iii), is whether the Crown has discharged the burden of satisfying the court that even if the accused had known that the finding would be adverse to him his defence would have been necessarily the same. I find it difficult to imagine a court ever being so satisfied. Indeed, an accused's whole approach to his case might well be very different at that second stage of the proceedings. Let me illustrate. An accused is perfectly entitled, by his not testifying himself in his own defence though offering a defence at the first stage of the proceedings, to refrain from revealing an addiction to drugs which could be incriminating as regards possession. He might however want to establish that fact at the second stage of the proceedings when contending that the purpose of his possession was for personal consumption. This example illustrates the general proposition that a court cannot know that a defence after the finding would necessarily have been the same as that advanced before and conclude that there was "no substantial wrong or miscarriage of justice".

In my view, the curative provisions of s. 613(1)(b)(iii) can never succeed in face of this type of error. Such non-compliance with the section will be fatal unless there has been a valid waiver on the part of the accused. Though Parliament has not put any error of law beyond the reach of s. 613(1)(b)(iii), certain types of errors of law are such that the Crown will never succeed in satisfying the court that, had it not been for the error, the verdict would of necessity have been the same.

Such is the type of error in the present case. Indeed the denial of an opportunity of presenting a defence will always leave the court uncertain as to

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what would finally be the evidence adduced had the opportunity denied been given the accused.

Appellant's reliance on this Court's decision in Cloutier was predicated on what was said by Pratte J. (at p. 724):

The accused, who is erroneously denied a peremptory challenge, is entitled to ask that the trial and the guilty verdict returned by an irregularly empanelled jury be annulled; it is not necessary for him to prove a prejudice; there is a 'préjudice de droit'; as to this no doubt exists: R. v. Churton (1919), 31 C.C.C. 188; Henry Williams (1925), 19 Cr. App. R. 67; R. v. Page, [1965] Crim. L.R. 444.

This passage is obiter. In any event, to the extent that Pratte J. could be interpreted as suggesting that the irregular empanelling of a jury is an error of law which may never be cured by the application of s. 613(1)(b)(iii), I cannot, with deference, agree. But I do agree with the appellant that such is the error in the present case. And, as I have said, the fatal effect on the trial of non-compliance in the present case can only be avoided if there be a valid waiver.

Waiver

Though waiver was not commented on by either party to the proceedings, the issue of waiver must nevertheless be addressed, as it is determinative of this appeal.

When considered in the perspective of waiver the question to be addressed is the following: has an accused waived his right to a "finding" and to then presenting anew a defence on the issue of "purpose" by the mere fact that he has already addressed that issue at the first stage?

I need not repeat here, when considering s. 8, what 1 have said earlier as regards the criterion for determining the existence and validity of a waiver, except to repeat that it must be informed, clear and unequivocal.

Two cases relied upon by respondent in support of an application of s. 613(1)(b)(iii) and which, it is true, were in fact decided on that basis, in my

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view offer illustrations of circumstances where valid waivers had in fact been made, and for that reason, though disagreeing as to the propriety of resorting to s. 613(1)(b)(iii), I find myself in agreement with the result: R. v. Sylvain, supra, which is the waiver of the "finding", and R. v. Sharpe, supra, which is different, being the waiver of adducing evidence after the finding.

In Sylvain, the accused testified at the first stage; at the outset he admitted possession and then addressed the issue of "purpose" before the judge made a finding as to his possession. The Court of Appeal of Quebec dismissed the appeal by applying s. 613(1)(b)(iii). As I said earlier, I do not think that s. 613 can have any application where the provisions of s. 8 have not been complied with. But, the fact that Sylvain, assisted by his attorney, and in answer to questions by his attorney, started by admitting possession and then dealt directly with "purpose" was, in the circumstances of that case, in my opinion, a clear and unequivocal waiver of his right to a "finding" on possession by the judge before testifying as to purpose.

The Sharpe case appears to have been decided by the Court of Appeal for Ontario by resorting to a combination of "waiver" and the provisions of s. 613. Sharpe had testified at the first stage. What then happened is best described by the Court of Appeal per Morden J.A. (at p. 80):

In the case at bar the Magistrate was well aware of the provisions of s. 4(4). After hearing counsel on the issue of possession, he made a finding that the appellant was guilty of possession. It was at that point he turned to the issue of trafficking and heard argument. The record does not show that he specifically advised the accused of his right to give or call evidence on this issue. However, I assume that the counsel who appeared for the appellant at the trial (who was not his counsel in this Court), knew the correct procedure and if he had evidence he wished to call on the issue of trafficking, he would have so advised the Magistrate and it would have been received. In view of the appellant's denial of possession, it would be difficult to imagine what evidence he himself

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could have given on the issue of trafficking. At very most, the Magistrate's failure to ask whether defence wished to call evidence at this stage was an irregularity and in view of his counsel's acquiescence, it could not be a ground for allowing this appeal. As Lord Goddard C.J. said in R. v. Neal, [1949] 2 K.B. 590 at p. 597: "We desire, however, to emphasize that if an irregularity arises in a trial which can be cured, and it is not brought timeously to the attention of the court of trial, it does not by any means follow that this court will allow advantage to be taken of it when it is too late to remedy it except by quashing the conviction."

See also R. v. Lashbrooke (1958), 43 Cr. App. R. 86.

When the finding of possession was made against the appellant, then s. 4(4) imposed an onus upon him to establish by a balance of probabilities that he was not in possession for the purpose of trafficking. He did not call evidence on this issue. He was entitled to rely upon the evidence already given and if that evidence as a whole raised a reasonable doubt then he would have been entitled to have been acquitted: R. v. Cappello, supra. In my opinion, the quantity of narcotics found in his possession and their value and the fact that the appellant was not an addict, left no room for reasonable doubt of his guilt and the Magistrate did not err when he convicted the appellant of having in his possession a drug for the purpose of trafficking.

For these reasons, I would dismiss the appeal.

(The underlining is mine.)

The fact that the attorney did not, after the affirmative finding as to possession, call any evidence but rather proceeded immediately to present his arguments as regards "purpose" could, in that case, be considered a waiver of the accused's right to adduce, anew, evidence on the issue of purpose. If and to the extent the Court of Appeal for Ontario is predicating its conclusion on the presence of a valid waiver, I agree. I should not, however, with deference, for reasons already set out, agree with what appears to be an application of s. 613(1)(b)(iii) by speculating as to whether the accused could and would have added anything

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else to his defence had he exercised his right to do so after a "finding".

The present case is different from Sharpe in that there was no finding. It differs from Sylvain in that the accused did not admit possession. There is no basis, when applying the proper criterion, for concluding that there was a waiver of the "finding", as in Sylvain, or of the calling of further evidence as in Sharpe. There being no waiver, we have here an error of law, non-compliance with s. 8, that cannot, as I said, be dealt with under s. 613(1)(b)(iii). This ground of appeal should therefore in my view succeed and a new trial should be ordered.

Appeal allowed.

Solicitor for the appellant: Ivan Lerner, Montreal.

Solicitor for the respondent: Jacques Letellier, Montreal.