Indictable, summary or hybrid

R. v. D.M.E., 2014 ONCA 496:

The Categories of Offences

[29]       It is well-known that the Criminal Code contains offences that are

i. indictable;

ii. summary conviction;

iii. indictable or summary conviction.

Some offences are indictable only. Others are summary conviction only. The third category, with which we are concerned here, consists of hybrid offences that may be prosecuted by indictment or on summary conviction depending upon the Crown's election of mode of proceeding.

[30]       An offence is indictable if the enactment that creates it provides that an alleged offender may be prosecuted for it by indictment: Interpretation Act, R.S.C. 1985, c. I-21, as amended, s. 34(1)(a). As a result, offences in category iii – hybrid offences – are indictable offences unless and until Crown counsel elects or chooses to proceed by summary conviction: R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570, at para. 21. Conversely, once Crown counsel elects to proceed by summary conviction, what was an indictable offence is no longer deemed to be so: Dudley, at para. 21.

[31]       In the end, depending on Crown counsel's election of mode of proceeding, or in some cases, Crown counsel's failure to elect mode of proceeding, every hybrid offence will be tried as either an indictable offence, or as a summary conviction offence, but not as both.

The Right of the Crown to Elect Mode of Proceeding

[32]       The terms "proceeding by indictment" and "proceeding by summary conviction" designate modes of proceeding and have resonance for hybrid offences. The right to choose, said differently, to elect mode of proceeding for hybrid offences resides with the Crown. This authority is grounded in the common law, not created by statute: R. v. Smythe, [1971] S.C.R. 680, at pp. 686-687; R. v. Linton (1994), 18 O.R. (3d) 647, 90 C.C.C. (3d) 528 (Gen. Div.), at p. 532. As part of the criminal law of England in force immediately before the proclamation of the Criminal Code revision on April 1, 1955, the Crown's right to choose carries forward. Nothing in the Code alters, varies, modifies or affects this authority, and thus it retains its full vigour.

[33]       No common law or statutory authority prescribes or limits the place or circumstances in which Crown counsel may elect the mode of proceeding for hybrid offences. As a matter of practice, however, the election is made on an appearance before a provincial court judge and recorded on the information on which the accused appears before that court.

[34]       The election[1] and re-election[2] provisions in the Criminal Code apply only to proceedings on indictment and relate to mode of trial (for example, by a court composed of a judge and jury). The party who elects or re-elects mode of trial is the accused, who sometimes requires prosecutorial consent for a re-election.

The Right of the Crown to Re-elect Mode of Proceeding

[35]       The authorities also recognize the right of the Crown to re-elect mode of proceeding, in other words, to change its original election to the other mode of proceeding. Unlike the right of election of mode of trial, however, the right of the Crown to re-elect mode of proceeding is not unqualified. In some cases, a re-election may require the consent of the accused and approval of the presiding judge: Linton, at p. 540; R. v. Hancock (1992), 60 O.A.C. 322 (C.A.), at p. 323;R. v. Kalkhorany (1994), 17 O.R. (3d) 783, 89 C.C.C. (3d) 184 at pp.191-192; and Re. Abarca and The Queen (1980), 57 C.C.C. (2d) 410 (Ont. C.A.), at pp. 516-517;

[36]       Despite the authority of the Crown to re-elect mode of proceeding in connection with hybrid offences, it is critical to keep in mind that the two modes of proceeding and types of trials are jurisdictionally different. The court that tries or otherwise disposes of the case must be properly constituted.

[37]       The decision of this court in Kalkhorany well illustrates some of the problems that may follow from decisions by Crown counsel to change modes of proceedings midstream.

[38]       In Kalkhorany, Crown counsel elected to proceed by summary conviction on a charge of fraud under. As the first witness was testifying, defence counsel interrupted the proceedings to point out that the Crown could not proceed by summary conviction because the offence was alleged to have been committed more than six months before the information was laid. Responding to a query from the trial judge, Crown counsel re-elected to proceed by indictment. Defence counsel indicated he was content to proceed. The appellant was not re-arraigned and entered no plea after Crown counsel had re-elected. The court was not reconstituted under Part XIX of the Criminal Code, nor was the evidence adduced prior to the re-election incorporated by reference into the indictable trial.

[39]       On appeal, Kalkhorany contended that the Crown's original election to proceed by summary conviction was a nullity because the information had been laid more than six months after the subject-matter of the proceedings arose. The Crown conceded on appeal that the original election was a nullity.[3] The court appears to acknowledge the Crown's right to re-elect mode of proceedings, but quashed the conviction because the court that entered it was never properly constituted. The court began the trial as a "summary conviction court", but purported to continue it under Part XIX of the Criminal Code as the trial of an indictable offence within the absolute jurisdiction of a provincial court judge. The two types of trials are "jurisdictionally different": Kalkhorany, at p. 191. The court did not suggest that Crown counsel had no right to re-elect mode of proceeding. What vitiated the proceedings was the failure to reconstitute the court – by arraignment, plea and referential incorporation of the evidence already given:Kalkhorany, at pp. 191-192.

[40]       Under s. 786(2) of the Criminal Code, summary conviction proceedings must generally be instituted not more than six months after the subject-matter of the proceedings arose. This general rule is not unyielding. The parties may consent to institution of summary conviction proceedings beyond the six month limitation period. There would seem no reason to assign a lesser role to mutual consent where what occurs outside the limitation period is a re-election rather than an election. It may also be open to question whether re-election of mode of proceeding amounts to an institution of proceedings: Linton, at pp. 536-537.