The Tantalizing Details of Criminal Procedure: R v Dudley

On December 17 of last year, the Supreme Court of Canada (“SCC”) handed down its decision in R v Dudley, 2009 SCC 58 [Dudley], which dealt with some of the finer points of criminal procedure; specifically, in the case of “hybrid” or “dual procedure” offences, whether the Crown’s invalid election to proceed summarily outside of the limitation period voids an information and bars the Crown from re-electing by indictment. Not exactly electrifying stuff, but a significant procedural issue nonetheless.

For the uninitiated, there are two procedural categories of offences under Canada’s Criminal Code, RSC 1985, c C-46: summary conviction offences and indictable offences. The latter are more serious, attracting more severe penalties and triggering additional procedural safeguards. There are also some offences known as “hybrid offences” or “dual procedure offences” that the Crown may choose to prosecute either by way of summary conviction or by way of indictment. Per Justice Charron:

Parliament’s enactment of dual procedure offences recognizes that certain crimes can be more or less serious depending on the circumstances and provides the Crown with discretion to choose the most appropriate procedure and range of potential penalties. For example, the offence of fraud under $5,000 — one of the charges in this case — can embrace criminal activity ranging from a young first offender switching price tickets on an item in a department store, to a repeat offender wrongfully appropriating the savings account of a vulnerable person under his or her care. The Crown prosecutor chooses the procedure that best fits the particular offence and offender.

Dudley was commented on at upon being given leave to appeal. To recap, at issue in R. v. Dudley has been the applicability and interpretation of the Criminal Code‘s s. 786(2), which lies under Part XXVII – Summary Convictions:

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. [My underlining.]

This then raises the question of how s. 786(2) operates in respect of dual procedure offences; i.e., in the case of a dual procedure offence, what happens when the Crown elects to proceed summarily and finds itself so time-barred? Is the Crown barred from re-electing by indictment on the original information?

On the matter of whether the Crown may re-elect, there is the “no jurisdiction view” and there is the “defence view” (again, explained here, at the ninth paragraph). Addressing these conflicting perspectices, Justice Fish (McLachlin C.J. and Binnie, LeBel, Abella, and Cromwell JJ. concurring) wrote:

This division between the “no jurisdiction” and the “defence” views of acquired prescription retains its historical interest but not its former procedural significance. On either view, a summary conviction court has jurisdiction, with the consent of the parties, over statute-barred summary conviction proceedings. Absent consent, it does not.

Agreeing with the Alberta Court of Appeal below, Fish J. held that the 1997 amendment adding the words “unless the prosecutor and the defendant so agree” to s. 786(2) means proceedings in a summary conviction court cannot be treated as a nullity ab initio even where the Crown invalidly elects to proceed summarily outside of the limitation period. The summary court now retains jurisdiction; holding otherwise would result in jurisdiction being able to be conferred by the mere fact of consent, contrary to a longstanding principle against that. In any case, the majority of the Court held that it would be better to regard the matter as a choice to waive a privilege defeating jurisdiction, rather than a choice to confer jurisdiction.

That left the question of what should become of the time-barred summary proceedings when the defendant declines to consent to their continuation. Fish J.’s majority held that where the defendant so declines in the case of an offence that is punishable only on summary conviction, the court should simply dismiss the information. However, “hybrid offences” are, according to the majority, deemed indictable by s. 34(1) of Canada’s Interpretation Act, RSC 1985, c I-21, unless and until the Crown has elected to proceed summarily.

Where the Crown elects to proceed summarily, proceedings are governed by Part XXVII of the Criminal Code, which includes s. 786(2). And so, while the defendant’s withholding of consent to the continuation of time-barred summary proceedings in respect of a hybrid offence defeats the validity of the summary proceedings and the Crown’s election to have proceeded as such, the proceedings and the election are but a nullity and do not affect the Crown’s ability to proceed by indictment.

Further, if a verdict already rendered is successfully appealed on the sole ground that proceedings were time-barred and conducted without consent, the Crown will only be disallowed from proceeding on a fresh indictment where the court feels that to do so would amount to an abuse of process. Thus, to answer the question posed earlier in this article, the majority of the Court concluded that, in the case of “hybrid” or “dual procedure” offences, the Crown’s invalid election to proceed summarily outside of the limitation period does not bar the Crown from re-electing by indictment.

Interestingly, disagreement within the Court centered around the proper effect of s. 34(1) of the Interpretation Act. Though disposing of the appeal like the majority, Justice Charron (Deschamps and Rothstein JJ. concurring) arrived at this result by finding that, by virtue of s. 34(1)(a) of the Interpretation Act, s. 786(2) of the Criminal Code does not even apply to dual procedure offences. The relevant parts of the Interpretation Act are:

34. (1) Where an enactment creates an offence,

(a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment; … and

(c) if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.

Charron J. reasoned that the effect of s. 34(1)(a) is that, “[t]he Crown’s election to proceed summarily, while defining the process by which the charge will be dealt once laid, does not change the underlying character of the offence as indictable [my italics]”, contrary to the majority’s holding that dual procedure offences are deemed indictable only unless and until the Crown has elected to proceed summarily. As such, the proceedings for dual procedure offences are never “instituted” under Part XXVII – Summary Convictions of the Criminal Code, and so are not subject to the 6-month limitation period set out in s. 786(2).

The majority characterized the minority’s reasons as being “incompatible with the text of the relevant provisions of the Code, inconsistent with more than a century of judicial decisions … and contrary to how the law has always and universally been understood by lawyers and commentators alike.”  Notwithstanding the merits the reasons of either position, it seems that, even though there was support among the Court for a ‘revolutionary change’ in Canadian criminal procedure, there simply wasn’t enough to win the day. Dudley demonstrates that even the driest of legal minutiae may produce contentious results and divergence in reasoning and interpretation as to the state of the law.

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