Hybrid offences - Summary convictions - Limitation period

R. v. Dudley, 2009 SCC 58, released yesterday, deals with hybrid offences, summary convictions and the limitation period for prosecuting.

 

Dudley was charged with one count of fraud not exceeding $5000 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.

 

The Supreme Court agreed.

 

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. 

 

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 election and all subsequent proceedings are a nullity and have therefore no effect on the Crown’s ability to proceed by indictment. 

 

Justice Fish wrote as follows (at pages 1-3):

 

"'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.

 

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.

 

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').

 

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 [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.

 

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!

 

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."