Indictment vs. Summary Offences: What Happens when the Crown Makes an Invalid Election?

The Supreme Court of Canada (“SCC”) has given leave to appeal to R v Dudley, 2008 ABCA 73, a curious case that turns on an murky technicality in criminal procedure: whether a Crown’s invalid election for summary proceedings outside the limitation period effectively voids an information and precludes the Crown from re-electing.

The accused in the case allegedly defrauded Alberta Human Resources and Employment and was subsequently charged with one count of fraud (per s. 380 of the Criminal Code, RSC 1985, c C-46) and one count of causing another person to act upon a forged document as if it were genuine (s. 368(1)(b) of the Criminal Code). As both are hybrid offences, the Crown had the choice to proceed by summary conviction or by indictment.

The Crown chose to proceed summarily, without realizing that the limitation period for summary conviction had already passed. Section 786(2) of the Criminal Code provides:

No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree.

The charges against Dudley, were laid eight months after the alleged incidents had occurred.

When the case went before the Provincial Court for an expected guilty plea, counsel for the accused noted that the information was laid after the six-month limitation period for summary proceedings had already expired. The Crown admitted the error and urged the court to allow it to re-elect or withdraw the charges. The judge, however, declared the charges null and granted the accused a stay of the proceedings.

In overturning that decision, the Alberta Court of Appeal (“ABCA”) focused on two issues: whether an incorrect election by the Crown invalidates the underlying information and whether it also precludes the Crown from later re-electing to proceed by indictment.

While lower courts in Alberta were inconsistent in determining whether an information was valid in the face of an erroneous election, courts in Ontario and Newfoundland held that when “the Crown’s election to proceed summarily after six months is void, the underlying information remains valid.” By contrast, the British Columbia Court of Appeal (“BCCA”) indicated in the 1997 case R v B(M), [1997] 119 CCC (3d) 570 (BCCA) that an election by the Crown to proceed summarily outside the limitation period has the effect of invalidating the charging document.

The BCCA decision, however, was made just before section 786(2) of the Criminal Code was amended to include the phrase “unless the prosecutor and the defendant so agree.” The ABCA found that Parliament’s amendment strongly suggests that the information advancing a charge remains alive notwithstanding an invalid election from the Crown. Otherwise, the statutory amendment “would have the unlikely result that the parties, through the mere fact of consent, could make valid what would otherwise be a fundamentally void proceeding.” It would give the accused the strange option of allowing an invalid action to proceed against her.

Furthermore, even if the information were nullified by an invalid election, the Crown could simply start over by laying a new information with the same charges. A nullity would not preclude the Crown from submitting a fresh charging document against the accused.

With regard to whether the Crown is allowed to re-elect with the original information, the ABCA heard two competing interpretations. The “no jurisdiction view” holds that an invalid election nullifies both the election and the whole proceeding, allowing the Crown to switch to indictment after the error is discovered. By contrast, the “defence view” holds that the Crown’s election, even if invalid, is binding; the Crown is required to continue summarily and “the accused can successfully raise s. 786(2) as a limitations defence at trial.” A re-election would only be allowed if it is not prejudicial to the accused.

Although the ABCA devoted a fair amount of analysis to both the “no jurisdiction view” and the “defence view,” the Court did not ultimately declare which approach should be adopted. Instead, the Court found that, under either approach, the Crown in this case should have been allowed to re-elect since the trial had not yet begun when the defence counsel submitted the limitations defence.

The Court concluded that when the Crown erroneously chooses to proceed summarily and the limitation period has already passed, it has three options: (1) it can lay a new information and elect to proceed by indictment, (2) it can re-elect to proceed by indictment on the original information, or (3) it can seek the accused’s consent to continue summarily as per s. 786(2).

It is unlikely that the SCC will overturn the ABCA’s decision and defer to the provincial court, as that would allow the accused to avoid prosecution based on a technicality. However, the SCC will want to reconcile the “no jurisdiction view” and the “defence view” and clarify when re-election is denied to the Crown. The ABCA suggested, in obiter, that one way to reconcile the two approaches is to allow the Crown to re-elect up until the point when evidence is called during trial. The Crown would not subsequently be permitted to switch to an indictment since it would expose the accused to greater penalties than previously contemplated. However, ABCA’s proposal is problematic because it would allow the accused to wait until evidence has been led before ambushing the prosecution with a limitations defence. It will therefore be interesting to see how the SCC deals with this possibility and whether they will draw a line for when a Crown can re-elect.