



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sciascia, 2016 ONCA 411

DATE: 20160530

DOCKET: C60301 & C60514

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Sciascia

Appellant

Owen Wigderson, for the appellant

Chris Chorney, for the respondent

Heard: January 14, 2016

On appeal from the decision of Justice
Johanne
    N. Morissette
of the Superior Court of Justice, sitting as a summary conviction
    appeal court, dated March 24, 2015, with reasons reported at 2015 ONSC 1885, dismissing
    an appeal from the convictions entered on June 7, 2013 by Justice A. Thomas
    McKay of the Ontario Court of Justice.

Watt J.A.:

[1]

St. Patricks Day, 2012. Parties in a college town. Four offences. Two criminal.
    Two provincial. Charged in separate informations.

[2]

Another day. This time in a courtroom. A single trial. A fair trial.
    Some offences proven. Others not. Convictions entered. Acquittals registered.
    Sentences imposed.

[3]

But there is more. Now we are told that these fair proceedings were
    flawed from the outset. Even though everybody agreed on a single trial on two informations,
    it is as though the proceedings never occurred. At least according to the
    person who had that fair trial.

[4]

Our task is to determine whether what occurred was a jurisdictional
    catastrophe beyond salvage or a procedural misadventure awaiting rescue.

[5]

Preferring substance to form, I would dismiss the appeals.

THE BACKGROUND FACTS

[6]

The circumstances underlying the offences with which Joseph Sciascia
    (the appellant) was charged are immaterial to the issues raised on appeal. Of
    greater significance is the procedural course followed in the prosecution.

The Offences Charged

[7]

The appellant was charged in an information laid under the
Criminal
    Code
, R.S.C. 1985, c. C-46,
with assaulting a peace officer with a weapon  a motor vehicle  and dangerous
    operation of a motor vehicle. Both are hybrid offences that permit the Crown to
    choose whether to proceed summarily or by indictment.

[8]

In an information laid under s. 23 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33 (
POA
), the appellant was charged with failing to
    stop for police and failing to report property damage caused by his operation
    of a motor vehicle, both offences under the
Highway Traffic Act
, R.S.O
    1990, c. H.8 (
HTA
).

The Crown Election

[9]

The Crown elected to proceed by summary conviction on both charges
    contained in the
Criminal Code

information.

The Trial Proceedings

[10]

Both informations were scheduled for trial before the same judge, on the
    same day, in the same courtroom.

[11]

As proceedings were about to begin, the Crown (not Mr. Chorney)
    suggested that pleas be entered on everything. Defence counsel (not Mr.
    Wigderson) indicated that he wanted the appellant arraigned on all charges. The
    appellant was arraigned on both informations and pleaded not guilty to all
    charges.

[12]

Defence counsel told the presiding judge that time, jurisdiction and
    identity were not in dispute. The single contested issue, according to defence
    counsel, was whether the events that occurred are sufficient to prove the
    charges.

The Findings of the Trial Judge

[13]

The trial judge found the appellant guilty of dangerous operation of a
    motor vehicle under the
Criminal Code
and of failure to stop for
    police under the
HTA
. The judge found the appellant not guilty of the
Criminal
    Code
offence of assaulting a police officer with a weapon and of the
HTA
offence of failing to report property damage.

The Summary Conviction Appeal

[14]

The appellant changed counsel after trial. He appealed the dangerous
    operation conviction and the sentence imposed under s. 813 of the
Criminal
    Code
and appealed the provincial offence conviction under s. 116 of the
POA
.
    He raised the same primary ground of appeal in each notice. He asserted that
    his trial was a nullity because he was simultaneously tried for
Criminal
    Code
and
Highway Traffic Act
charges.

The Decision of the
    Summary Conviction Appeal Court

[15]

Both appeals were heard together by a judge of the Superior Court of
    Justice sitting as a summary conviction appeal court. The appeal judge
    dismissed the conviction appeals but allowed the appeal from the sentence on
    the dangerous operation conviction and substituted an absolute discharge.

[16]

In her written reasons, the appeal judge referred to the decision in
R.
    v. Clunas,
[1992] 1 S.C.R. 595, which permitted the joint trial of an
    accused on separate informations that charged indictable and summary conviction
Criminal Code
offences with the consent of the parties. The essence of
    her reasons for rejecting the appellants claim that the trial was a nullity is
    found in paras. 17-20 of her judgment:

A judge of the Ontario Court of Justice has the jurisdiction to
    hear both the
C.C.
and
P.O.A.
informations separately and is
    empowered to try provincial offences matters as well as summary conviction
    offences.

The
P.O.A.
provides for its own procedure and
    specifically in section 2 thereof highlights that there are differences between
    the procedures in the
C.C
and in provincial prosecutions. However, as
    in this case, the appellant is charged under Part III of the
P.O.A.
Proceedings were commenced by information. The rules of evidence at the
    criminal trial, including proof beyond a reasonable doubt, etc., would be
    essentially the same, whether in the summary conviction criminal proceeding or
    in the provincial proceedings.

The appellant raises the issue of the difference between the
    federal and provincial rules of evidence that govern the contradicting of ones
    own witness. In my view, the slight difference between section 9(2) of the
Canada
    Evidence Act,
R.S.C. E-10 and section 23 of the
Ontario Evidence Act,
R.S.O.
    1990, c. E. 23 did not affect the outcome of the trial in this case. The
    appellant was not prejudiced by it.

For these reasons, I find that the decision in
Clunas
supports
    the permissibility of a more efficient and effective trial process unencumbered
    by artificial rules that serve no useful purpose and rest on no sound
    principle.

The Application for Leave to Appeal

[17]

The appellant sought and was granted leave to appeal under s. 839(1)(a)
    of the
Criminal Code
and special leave to appeal under s. 131 of the
POA
.
    He advances here the same claim of jurisdictional error as he first put forward
    before the summary conviction appeal judge.

THE GROUNDS OF APPEAL

[18]

The single ground of appeal contests the authority of the trial court to
    try, at the same time, summary conviction
Criminal Code
offences and
    provincial offences under the
POA
contained in separate informations. For
    discussion purposes, I will subdivide the ground into two issues:

i.

the authority to conduct a joint trial; and

ii.

the effect of any lack of authority on the validity of the proceedings.

GROUND #1: THE AUTHORITY TO CONDUCT A JOINT
    TRIAL

[19]

A brief recapture of the positions advanced by counsel in oral argument
    will provide the background essential to an understanding of the first ground
    of appeal.

The Arguments on Appeal


[20]

The appellant submits that no authority permits the joint trial of
    separate informations, one charging provincial offences, the other summary
    conviction
Criminal Code
offences. He says several reasons support
    this conclusion.

[21]

First, provincial offences and summary conviction
Criminal Code
offences cannot be joined together in a single information.
Clunas

requires
    that offences charged in separate informations be capable of being joined in a
    single information
before a single trial on
    those separate informations may be conducted.  This is not possible
here. Each information is laid under a different statute. Section 504 of the
Criminal
    Code
permits joinder of
Criminal Code
offences in the same
    information but not provincial offences. And
Criminal Code
offences
    cannot be included in an information laid under the
POA
because they are
    not offences created by an Act of the Legislature as s. 25(5) of the
POA
requires.

[22]

Second, the joint trial of provincial offences and summary conviction
Criminal
    Code
offences would not be permitted following
Clunas

because
    different procedural and evidentiary rules exist under the
POA
and the
Criminal Code
. Typical examples include:

·

change of venue;

·

the competence of witnesses under 14;

·

the admissibility of videotaped statements;

·

the admissibility of business records; and

·

the number of expert witnesses who may testify without leave.

[23]

Third, joinder would contravene the intent of the provincial legislature
    to create a system for the trial of
POA
offences that separates them
    from the system for the trial of criminal offences created by Parliament.

[24]

Fourth, joinder would violate the principles expressed by the Supreme
    Court of Canada in
R. v. S.J.L.
, 2009 SCC 14, [2009] 1 S.C.R. 426,
    that barred a joint trial of offences that required trial by a youth court under
    the
Youth Criminal Justice Act
(
YCJA
)
with offences tried under the
Criminal
    Code
.

[25]

As an alternative, the appellant says, the jurisdictional bar to joint
    trials can be avoided by an agreement to proceed with the criminal trial first.
    When the evidence has concluded, the defendant can be arraigned and enter a
    plea on the provincial offences. Section 47(1) of the
POA
can then be
    invoked to permit the evidence adduced at the criminal trial to apply to
    proceedings for the provincial offence. Submissions and decision in both
    prosecutions can follow. The efficiency of a joint trial is preserved without
    jurisdictional compromise.

[26]

The respondent says that it is open to this court to decide that, with
    the consent of the parties, a provincial court judge can simultaneously preside
    over the trial of a summary conviction
Criminal Code
offence and of a
    provincial offence. A combination of the
Criminal Code
,
POA
,
and the
Courts of Justice Act
,
    R.S.O. 1990 c. C.43, provides the provincial court judge with the jurisdiction
    to try both offences.

[27]

The respondent does not agree that the decision in
Clunas
prohibits
    the joint trial of provincial offences and summary conviction
Criminal Code
offences charged in separate informations. After all,
Clunas
involved
    only
Criminal Code
offences charged in separate informations and had
    nothing to say, either expressly or by necessary implication, about joint
    trials involving provincial and summary conviction
Criminal Code
offences. The decision in
Clunas
did not bar the joint trial of any
    combination of charges. The
Clunas
court could have forged such an
    all-encompassing prohibition but declined to do so.

[28]

Allowing such a joint trial is not inconsistent with the defendants
    right to any evidentiary or procedural advantages available under either the
Criminal
    Code
or
POA
. While procedural differences do exist,
they are slight and, in most cases, work no great
    mischief.
And, if the defendant has any concerns about the
    advantage or benefit that may be lost in a joint trial, she or he need only
    refuse to consent to the joint trial.

[29]

Further, the respondent says, the
    alternative advanced by the appellant  using s. 47(1) of the
POA
to incorporate by reference the evidence given at
    the criminal trial  would suffer from the same rule differential. Yet the
    appellant advances such a procedure as a jurisdictionally sound alternative.
    The appellant cannot have it both ways.

The Governing Principles

[30]

The principles that
    control our decision in this case are an amalgam of statutory enactments that
    permit and limit joinder of offences and decisions that control the
    circumstances in which a single trial may be held on more than one information
    or indictment.

(1)

The
    Commencement of Proceedings and Joinder of Counts

[31]

Criminal Code
proceedings are commenced by laying an
    information under oath alleging the commission of an offence. The same
    procedure applies whether the offence charged is an indictable or hybrid
    offence (s. 504) or a summary conviction offence (s. 788(1)).

[32]

In a
Criminal Code
information that charges indictable offences,
    subject to an exception that has no place here, any number of indictable
    offences may be included, provided each is contained in a separate count: s.
    591(1).
Likewise, s. 789(1)(b) expressly permits the inclusion of
    several summary conviction offences in separate counts in a single information.

[33]

The
Criminal Code
contains no provision that expressly permits
    or prohibits joinder of indictable and summary conviction offences as separate
    counts in the same information.

[34]

For proceedings governed by the
POA
, an information laid under
    s. 23(1) of the Act may allege, as separate counts, several offences. Section
    1(1) defines the term offence exhaustively as an offence under an Act of the
    Legislature or under a regulation or by-law made under the authority of an Act
    of the Legislature. Section 25(5) of the
POA
authorizes joinder of
    any number of counts for any number of offences in the same information. Each
    offence charged in an information must be an offence within s. 1(1) of the
POA
.

(2)

The
    Trial Court

[35]

Summary conviction offences under the
Criminal Code
are tried
    in accordance with Part XXVII by a summary conviction court as defined in s.
    785. In Ontario, a summary conviction court includes a provincial court judge,
    a member of the Ontario Court of Justice.

[36]

Provincial offences are tried in provincial offences court, a court
    created by the
Provincial Courts Amendment Act
, 1979
, S.O.
    1979, c.5. This legislation, enacted contemporaneously with the
POA
,
    conferred exclusive jurisdiction over the trial of provincial offences on the provincial
    offences court. Judges of the Ontario Court of Justice are judges of the provincial
    offences court.

(3)

Joint
    Trials on Separate Informations

[37]

In 1983, the Supreme Court of Canada held that the overwhelming weight
    of authority was against the joint trial of more than one indictment or
    information:
Phillips and Phillips v. The Queen
, [1983] 2 S.C.R. 161,
    at p. 164.

[38]

In
Phillips
, three members of the Phillips family agreed to a
    joint trial on three separate informations. Each information charged one person
    with an offence. Two charged offences under provincial law, the third a hybrid
Criminal
    Code
offence on which the Crown elected to proceed summarily. The court,
    relying on the decision of the House of Lords in
Crane v. Public Prosecutor
,
    [1921] 2 A.C. 299, and of the Court of Criminal Appeal in
R. v. Dennis
;
R. v. Parker
, [1924] 1 K.B. 867, held that a single trial could not be
    held on more than one indictment, even with the consent of the parties. Consent
    cannot confer jurisdiction:
Phillips
, at p. 164.

[39]

The
Phillips
court did not follow this courts decision in
R.
    v. Kennedy
;
R. v. Dowdall
, [1971] 2 O.R. 445 which upheld the convictions
    of two accused jointly tried on two separate informations with their consent. 
    This court had considered such a joint trial at best an irregularity curable in
    the absence of prejudice under what is now s. 686(1)(b)(iii) of the
Criminal
    Code
.

[40]

The
Phillips
court rejected the reasoning in
Kennedy
and
Dowdall
for four reasons:

i.

the elaborate procedure for joint trials contained in the
Criminal
    Code
was not replicated for the joinder of (separate) informations or
    indictments;

ii.

the joint trial of separate indictments against two accused would permit
    the Crown to call one accused as a Crown witness against the other;

iii.

an accused would be deprived of the opportunity to testify and answer to
    the charge contained in one indictment but not the other (the same would hold
    true if all the counts were included in the same indictment); and

iv.

the
Criminal Code
refers to the information and the
    indictment as the document on which an accused is tried, rendering the joinder
    and severance provisions unnecessary if a joint trial could be held on more
    than one information or indictment.

[41]

In
Phillips
, the court said nothing about the appellants claim
    that
Criminal Code
and provincial offences charged in separate
    informations could not be tried together.

[42]

Almost a decade later, the Supreme Court of Canada welcomed the
    opportunity to reconsider
Phillips
in light of Lord Roskills opinion
    in
In

re Clayton
, [1983] 2 W.L.R. 555 (H.L.), at pp. 562-63:

Any rule of practice or procedure which makes their task more
    difficult or demands subservience to technicalities is to be deprecated and
    your Lordships may think that this House should now encourage the adoption of
    rules of procedure and practice which encourage the better attainment of
    justice, which includes the interests of the prosecution as well as of
    defendants, so long as the necessary safeguards are maintained to prevent any
    risk of injustice to defendants.

See
Clunas
, at p.
    599.

[43]

In
Clunas
, a single accused was charged in two separate
    informations with two offences under the
Criminal Code
. One offence
    was an indictable offence in which Clunas elected trial by provincial court
    judge. The second was a dual procedure offence on which the Crown elected to
    proceed summarily.
Clunas

agreed
    to have the two informations tried together.

[44]

The joinder issues in
Clunas
were twofold. The first was
    whether a single accused could be tried (with consent) at the same time on two
    separate informations. And the second was whether an accused could be tried (on
    consent) in a single trial on two separate informations, one charging an
    indictable offence and the other a summary conviction offence.

[45]

The
Clunas
court rejected the reasoning in
Phillips
, based not only on
Crane
being overtaken by
Clayton,
but also on the courts conclusion that the problems
    contemplated in
Phillips
and summarized above

would
    not arise.
. Lamer C.J. expressed the unanimous conclusion of the
Clunas
court in these terms, at p. 610:

To conclude this portion of the judgment, I would say that when
    joinder of offences, or of accuseds for that matter, is being considered, the
    court should seek the consent of both the accused and the prosecution. If
    consent is withheld, the reasons should be explored. Whether the accused
    consents or not, joinder should only occur when, in the opinion of the court,
    it is in the interests of justice and the offences or accuseds could initially
    have been jointly charged.

[46]

As a result of the decision in
Clunas
, a joint trial on
    separate informations may be held, even in the absence of an accuseds consent,
    where the trial court concludes that a joint trial is in the interests of
    justice and that the offences or accuseds could initially have been jointly
    charged:
Clunas
, at p. 610.

[47]

The joint trial on separate informations in
Clunas
involved only
Criminal Code
offences. The trial took place before a provincial court
    judge who simultaneously exercised the authority of:

i.

a court of criminal jurisdiction for the trial of an indictable offence
    under Part XIX; and

ii.

a summary conviction court for the trial of a summary conviction offence
    under Part XXVII.

(4)

Joint
    Trials for Offences under Different Statutory Schemes

[48]

In
S.J.L.
, the Supreme Court was required to decide whether
    young persons could be tried together with adults. Two young persons and
    several adults were charged following a major police investigation into the
    drug trafficking activities of a criminal organization. After an unsuccessful
    motion for a preliminary inquiry for all accused, the Crown preferred a direct
    indictment against all accused. A judge of the Superior Court quashed the
    direct indictment against the young persons. A preliminary inquiry followed.
    The Qu
é
bec Court of Appeal upheld the decision of the Superior Court concluding
    that young persons and adults could not be tried together.

[49]

The Supreme Court was unanimous in concluding that young persons could
    not be tried together with adults. The court acknowledged the common law rule
    that persons charged on separate informations or indictments may be tried
    together if they committed an offence together:
S.J.L.
, at para. 48.
    Nothing in the common law or the
Criminal Code
barred either the
    joinder of young persons and adults in the same indictment or a request for a
    joint trial:
S.J.L.
, at para. 52. The court did not consider the
    simultaneous exercise by the presiding judicial officer of two different
    jurisdictions an impediment to joinder:
S.J.L.
, at para. 60.

[50]

What prohibited the joinder in
S.J.L
.,
and distinguished
    it from
Clunas
, was that in
S.J.L.
the joinder would have combined
    in a single proceeding two criminal justice systems that Parliament had made it
    clear were to be kept separate. Parliament created a separate criminal justice
    system for young offenders. It did so for the express purpose of keeping them
    and their trials separate from the adult criminal justice system. To permit the
    joint trial sought in
S.J.L.
would flout the will of Parliament to
    keep the systems separate.

[51]

The court expressed its conclusion in these terms, at para. 76:

In conclusion, the history of the separate youth criminal
    justice system, the abolition of the transfer to adult court, the content of s.
    67(5) and (7.1)
YCJA
, and the fact that neither the
YCJA
nor
    the
Criminal Code
contains specific provisions authorizing joint
    trials of adults and young persons are indications that Parliament intended to
    prohibit such trials. What is more, the adoption of this solution will make it
    easier for the youth justice court to perform its special role and will avert
    the practical difficulties inherent in a joint trial of young persons and
    adults. On this point, I therefore agree with the Court of Appeal that
    co-accused young persons and adults cannot be tried together.

The Principles Applied

[52]

As I will explain, binding authority requires us to give effect to this
    ground of appeal.

[53]

First, under
Clunas
the joint trial of separate informations
    can only occur when it is in the interests of justice and the offences could
    initially have been jointly charged:
Clunas
, at p. 610.

[54]

In this case, the appellant consented to the joint trial of the two
    informations. It was manifestly in the interests of justice that the
    allegations, all of which arose out of the same series of events, be tried at
    the same time. But the sticking point is the requirement that the
    offencescould initially have been jointly charged:
Clunas
, at p.
    610.

[55]

A
Criminal Code
information can include, as separate counts, several
    offences. It is of no moment whether those offences are exclusively indictable
    offences, exclusively summary conviction offences, or offences triable either
    way at the option of the Crown. Although the term offence is not defined in
    or for the purposes of the
Criminal Code
, it is self-evident that the
    term, as used in the joinder provisions of ss. 591(1) and 789(1)(b), refers to
    offences created and punished by the
Criminal Code
.

[56]

Section 34(2) of the
Interpretation Act
, R.S.C. 1985, c. I-21,
    as amended, makes it clear that the
Criminal Code
applies to the trial
    of all indictable and summary conviction offences created by an enactment.
    Section 2(1) of the Act defines an enactment as an Act and an Act as an
    Act of Parliament.

[57]

In combination, the joinder provisions of the
Criminal Code
and
    s. 34(2) of the
Interpretation Act
make it clear that a
Criminal
    Code

information cannot
    include a count charging a provincial offence to which the
POA
applies.

[58]

The
POA
also permits joinder of several offences in a single
    information. Unlike the
Criminal Code
, however, the

POA
,
in its s. 1(1), defines offence as an offence under an
    Act of the Legislature. From this definition it follows that a

POA

information cannot include counts charging

Criminal Code

offences.

[59]

The Supreme Courts decision in

S.J.L.
erects an additional roadblock to what occurred here.

[60]

The circumstances in

S.J.L.
are analogous, but not identical, to those of this case. Each involved a trial
    that combined the trial of a

Criminal
    Code
offence with the trial of an offence or offender for which or for
    whom a scheme separate from that used to try
Criminal Code

offences
    was specifically created. In

S.J.L.
,
the youth court had exclusive
    jurisdiction over the trial of offences committed by young persons. In this
    case, the provincial offences court has exclusive jurisdiction over the trial
    of the provincial offences with which the appellant was charged.

[61]

The procedural flaw the Supreme Court identified in
S.J.L.

    the joint trial of offences within the exclusive jurisdiction of one court with
    those in the exclusive jurisdiction of another  also occurred here. There is,
    however, one difference. In
S.J.L.,
the presiding judge was not a youth
    justice court or a youth justice court judge under the
YCJA
. In
    this case, the provincial court judge was not only a summary conviction court
    under Part XXVII of the
Criminal Code
but also a provincial offences
    court for the purposes of the
POA
. I am not persuaded, however, that
    this distinction warrants a different conclusion, at this stage of the analysis.

[62]

In the result, I am satisfied that the application of the principles
    laid down in
Clunas
and
S.J.
L.
barred the joint trial
    of the separate
Criminal Code
and
POA
informations. What
    remains is to consider the impact of that unauthorized joinder.

GROUND #2: THE IMPACT OF THE IMPROPER JOINT
    TRIAL

[63]

Nothing further need be said about the circumstances in which the joint
    trial was held. It is enough to say that the joint trial went ahead on consent
    and that nothing occurred that caused the appellant any substantive prejudice.

The Arguments on Appeal

[64]

The appellant acknowledges that not every error made in the conduct of a
    trial warrants appellate reversal. Legal errors may be saved by the application
    of the proviso in s. 686(1)(b)(iii) because they have not caused the appellant
    any substantial wrong or a miscarriage of justice. Procedural irregularities
    may be saved by the proviso in s. 686(1)(b)(iv) if the trial court had
    jurisdiction over the class of offence of which the appellant was convicted and
    the appellant suffered no prejudice as a result of the irregularity.

[65]

The appellant says that neither proviso can salvage the verdicts
    recorded at trial in this case.

[66]

The proviso s. 686(1)(b)(iii), the appellant contends, cannot render harmless
    the verdict because the error of law that occurred here was jurisdictional in
    nature and thus beyond the reach of that proviso.

[67]

The appellant concedes that the proviso of s. 686(1)(b)(iv) can be
    applied to procedural irregularities that are jurisdictional in nature but says
    that it cannot be invoked for every such error. The proviso can sustain
    verdicts where jurisdiction is lost during the proceedings, but it cannot
    underpin a decision rendered in proceedings where jurisdiction failed or was
    not established at the outset. And it is the latter that occurred here: the
    trial court was never properly constituted.

[68]

Under the
POA
, there is no curative proviso like s.
    686(1)(b)(iv) of the
Criminal Code
to remedy jurisdictional errors.

[69]

The respondent says that if the joint trial of a
Criminal Code
summary
    conviction offence and a provincial offence is characterized as an error of law,
    the verdict rendered can be preserved by the application of the proviso in s.
    686(1)(b)(iii) of the
Criminal Code
and its equivalent, s.
    120(1)(b)(iii) under the
POA
. The joinder caused the appellant no
    prejudice.

[70]

If the error is categorized as a procedural irregularity, the respondent
    says that s. 686(1)(b)(iv) should be invoked to sustain the
Criminal Code
conviction.
    The
POA
conviction would fall, however, because the
POA
has
    no equivalent to s. 686(1)(b)(iv).

[71]

In the alternative, the respondent invites us to consider whether the
    appellant waived the requirement put in place by
Clunas
that permits
    joinder only where the offences can be joined together in the same information.

The Governing Principles

[72]

To determine the impact of the improper joint trial of the
Criminal
    Code
and
POA
informations, an essential first step is to
    determine the character of the misjoinder. A procedural irregularity? An error
    of law? A procedural irregularity based on an error of law? Or something else?
    The characterization of the nature of the error, as we shall see, has
    implications for the availability of a proviso to hold harmless the verdict
    rendered at trial.

(1)

Characterizing the Error

[73]

The
Criminal Code
contains both substantive and procedural
    provisions. Among other things, the
Criminal Code
creates offences, as
    well as justifications, excuses, and defences. These provisions are substantive
    law. The procedural provisions of the
Criminal Code
regulate the
    manner in which the parties conduct proceedings, for example, the conduct of
    trials to determine whether the offences with which a person has been charged
    have been proven beyond a reasonable doubt:
R. v. Cloutier
(1988), 43
    C.C.C. (3d) 35 (Ont. C.A.), at pp. 48-49, leave to appeal refused, [1989] 2
    S.C.R. vi.

[74]

Criminal Code
provisions relating to joinder of offences and
    offenders, as for example, ss. 591(1) and 789(1)(b), have to do with the manner
    in which the trials of several offences and offenders are conducted. These
    provisions are procedural in nature: see
Kennedy
and
Dowdall
,
    at pp. 447-49, 457; and 70;
R. v. Pottinger
(1990), 54 C.C.C. (3d) 246
    (Ont. C.A.), at pp. 251-52, leave to appeal refused (1990), 58 C.C.C. (3d) vii
    (note).

(2)

The Scope of the Proviso

[75]

The
Criminal Code
contains two provisos. Each authorizes and
    defines the circumstances in which an appellate court may sustain a verdict
    rendered at trial despite errors or irregularities in the conduct of that
    trial. Each describes the nature of the error to which it applies and the
    standard to be met to preserve the disposition rendered at trial.

[76]

Section 686(1)(b)(iv), sometimes described as the procedural proviso, is
    in these terms:

686 (1) On the hearing of an appeal against a conviction or
    against a verdict that the appellant is unfit to stand trial or not criminally
    responsible on account of mental disorder, the court of appeal



(b) may dismiss the appeal where



(iv) notwithstanding any procedural irregularity at trial, the
    trial court had jurisdiction over the class of offence of which the appellant
    was convicted and the court of appeal is of the opinion that the appellant
    suffered no prejudice thereby

[77]

Section 686(1)(b)(iv) consists of three components or elements. The
    first relates to the nature of the error that occurred at trial. The second has
    to do with the jurisdiction of the trial court. And the third concerns the
    assessment of the error by the appellate court. In summary form, the elements
    are as follows:

·

procedural irregularity;

·

offence jurisdiction; and

·

absence of prejudice.

[78]

This proviso expands the remedial power of courts of appeal. It permits
    the court to dismiss appeals despite procedural irregularities that were
    previously seen as having caused a loss of jurisdiction at trial:
R. v. Khan
,
    2001 SCC 86, [2001] 3 S.C.R. 823, at para. 11. But this remedial power has its
    limits. And those limits involve both the jurisdiction of the trial court and
    the assessment of prejudice by the court of appeal. The trial court must have
    maintained its jurisdiction over the class of offence charged. And the court of
    appeal must be persuaded that the appellant has suffered no prejudice as a
    result of the procedural irregularity:
Khan
, at para. 11.

[79]

The first precondition that must be met to engage the discretion of a
    court of appeal to invoke its remedial power under s. 686(1)(b)(iv) has to do
    with the jurisdiction of the trial court. The trial court must have had
    jurisdiction over the class of offence of which the appellant was convicted.

[80]

The
Criminal Code
creates two classes of offences  indictable
    and summary conviction  and confers jurisdiction on various courts to try
    persons charged with those offences. A summary conviction court, as defined
    in s. 785, has jurisdiction to try summary conviction offences. In Ontario, a
    summary conviction court includes a provincial court judge, a judge of the
    Ontario Court of Justice.

[81]

In some cases, procedural requirements must be met in order for a trial
    court to have jurisdiction over the class of offence with which an accused is
    to be tried. For example, a failure to adhere to the statutory requirements for
    selection of a jury, where the trial is to be held in a court composed of a
    judge and jury, has been held to be a procedural irregularity that is beyond
    the remedial authority of s. 686(1)(b)(iv): see, for example,
R. v. Bain
(1989), 47 C.C.C. (3d) 250 (Ont. C.A.), at pp. 253-54, reversed on other
    grounds, [1992] 1 S.C.R. 91;
R. v. W.V.
,
2007 ONCA 546, at
    paras. 12-13, and 26-27, leave to appeal refused (2008), 397 O.A.C. 397 (note);
    and
R. v. Noureddine
, 2015 ONCA 770, 128 O.R. (3d) 23, at paras.
    49-50.

[82]

In a similar way, where a courts authority to try an accused depends on
    that accuseds election of mode of trial, a failure to follow the
Criminal
    Code
requirements on elections or re-elections of mode of trial is a
    procedural irregularity that lies beyond the remedial authority of s.
    686(1)(b)(iv):
Noureddine
, at para. 56;
R. v. Varcoe
, 2007
    ONCA 194, 219 C.C.C. (3d) 397, at paras. 14-22;
R. v. Mitchell
(1997),
    36 O.R. (3d) 643 (C.A.), at pp. 651-52; and
R. v. Shia
, 2015 ONCA 190,
    320 C.C.C. (3d) 111, at paras. 26-27 and 33.

[83]

These authorities and others make it clear that procedural
    irregularities that compromise the composition or selection of the trial court
    deprive that court of jurisdiction over the class of offence charged and are
    beyond the reach of s. 686(1)(b)(iv).

[84]

The second precondition that must be met to engage the discretion of a
    court of appeal to invoke its remedial power under s. 686(1)(b)(iv) focuses on
    the court of appeals assessment of the impact of the procedural irregularity.
    The court is required to assess whether the procedural irregularity caused the
    appellant prejudice.

[85]

The prejudice inquiry under s. 686(1)(b)(iv) examines not only actual
    prejudice to the appellant,  but also any prejudice to the due administration
    of justice caused by the procedural irregularity:
Noureddine,
at para.
    62. An appellate court may infer prejudice from the procedural irregularity,
    but the Crown may rebut that inference:
Khan,
at para. 16;
Noureddine
,
    at para. 62.

[86]

Where a procedural error or irregularity has occurred at trial, it
    becomes necessary to determine its origin. Procedural irregularities that
    amount to, or are based on, an error of law are considered under s.
    686(1)(a)(ii) and their effect assessed under the proviso of s. 686(1)(b)(iii):
Khan
,
at para. 18. If the procedural irregularity was
    classified prior to the enactment of s. 686(1)(b)(iv) as one that caused a loss
    of jurisdiction, s. 686(1)(b)(iv) provides that such an error is no longer
    fatal to the conviction. Prejudice is analysed in accordance with the
    principles in s. 686(1)(b)(iii):
Khan
, at para. 18.

The Principles Applied

[87]

As I will explain, I would reject this ground of appeal.

[88]

The procedural irregularity that occurred here was twofold. The joint
    trial of the
Criminal Code
summary conviction information and the
POA

information fell outside what
Clunas
permitted because the counts
    could not be included in the same information. The joint trial also ran afoul
    of
S.J.L.

because the joinder mixed offences to be tried in
    discrete court systems, one of which was created for the very purpose of maintaining
    separation of trials.

[89]

Each procedural irregularity originated in an error of law which, had it
    occurred prior to the enactment of s. 686(1)(b)(iv), would have caused a loss
    of jurisdiction in the trial court.

[90]

In this case, unlike in
S.J.L.
, however, the trial court had
    jurisdiction over the class of offences of which the appellant was convicted.

[91]

In
S.J.L.
,

the court in which the direct indictment was
    preferred  the Québec Superior Court  was not a youth justice court. The
    judge presiding in that court was not a youth justice court judge within s.
    2(1) of the
YCJA
. As a result, the court and judge lacked jurisdiction
    over the class of offence charged  an offence under the
YCJA
.

[92]

In this case, the presiding judge was a summary conviction court under
    s. 785 of the
Criminal Code
. As a summary conviction court, the
    provincial court judge had jurisdiction to try the class of offence charged
    under the
Criminal Code
: a summary conviction offence. In a similar
    way, the judge was a  provincial offences court under provincial law and thus
    had jurisdiction to try the class of offence charged  a provincial offence.
    That the joint trial required concurrent exercise of two discrete jurisdictions
    with some procedural differences is of no moment:
S.J.L.
, at para. 59.

[93]

Turning to the question of prejudice arising from the procedural
    irregularity, I am satisfied that the appellant suffered no actual prejudice
    and am equally satisfied that no prejudice was occasioned to the due
    administration of justice.

[94]

The inference of prejudice arising from the procedural irregularity here
    falls away on a fundamental level. All the charges related to a single incident:
    a series of events that took place within minutes, if not seconds, of one
    another. The appellant, who was represented by counsel, sought and got what he
    wanted: a single trial. He advances no ground of appeal that asserts error in
    the conduct of the trial that occurred because of its joint nature. He lost no
    substantive or procedural advantage. The prosecution gained neither.

[95]

Likewise, the record is barren of any suggestion of prejudice to the due
    administration of justice. The joint trial coincided with the positions
    advanced by counsel on both sides of the case. Joinder avoided unnecessary
    duplication and depletion of judicial resources, inconvenience to witnesses,
    and the prospect of inconsistent verdicts.

[96]

In the end, I am satisfied that this is an appropriate case to apply the
    provisos in s. 686(1)(b)(iv) of the
Criminal Code

and s.
    120(1)(b)(iii) of the
POA
to sustain the verdicts rendered at trial.
    Although the
POA
contains no provision comparable to s. 686(1)(b)(iv),
    the legal nature of the error is sufficient to bring it within the reach of s.
    120(1)(b)(iii).

CONCLUSION

[97]

I would dismiss the appeals.

Released: JCM May 30, 2016

David
    Watt J.A.

I
    agree J.C. MacPherson J.A.

I
    agree B.W. Miller J.A.


