



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences being
    dealt with in the same proceeding, at least one of which is an offence referred
    to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mitchell, 2020 ONCA 187

DATE: 20200309

DOCKET: C64826

Strathy C.J.O., Miller
    and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hugh Mitchell

Appellant

Mark Halfyard, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard: March 4, 2020

On appeal from the conviction
    entered on July 18, 2017 by the Honourable Stephen J. Hunter of the Ontario Court
    of Justice.

REASONS FOR DECISION

[1]

The appellant was charged with a single count of sexual assault contrary
    to s. 271 of the
Criminal Code
, R.S.C. 1985, c. C-46. It was alleged
    that he sexually assaulted the victim while she was unconscious as a result of
    consuming too much alcohol at a cottage party.

[2]

The appellant elected to be tried by a judge of the Superior Court of
    Justice, sitting without a jury. He requested a preliminary inquiry.

[3]

The victim testified at the preliminary inquiry, as did her friend
    (whose parents owned the cottage where the party was held). Both witnesses were
    cross-examined. There were other witnesses scheduled to testify. However, the
    preliminary inquiry judge invited counsel to meet with him in chambers.

[4]

Upon the resumption of the proceedings, trial counsel said: I have
    instructions to at this point in the preliminary hearing to approach the Court
    with respect to making a re-election. The preliminary inquiry judge (who then
    became the trial judge) noted the re-election to be tried in the Ontario Court
    of Justice, which he endorsed on the information. The trial judge asked trial counsel
    whether he would be calling any evidence. He said that he would not. The Crown
    then asked the trial judge to make a finding of guilt based on the evidence
    that was heard. Trial counsel made no objection.

[5]

The trial judge found the appellant guilty of sexual assault. In brief
    reasons, he said that was not satisfied beyond a reasonable doubt that
    intercourse had occurred; however, he was satisfied that the appellant touched
    the victim in a sexual manner without her consent. The case was adjourned for
    sentencing.

[6]

Within roughly two months, the appellant appeared before the trial judge
    with new counsel. He moved to re-open the proceedings with a view to reversing
    his re-election. He argued that, because the mandatory requirement of s. 561(7)
    of the
Criminal Code
had not been complied with, the re-election was
    invalid. The Crown took the position that the trial judge was
functus
    officio
and, therefore, could not re-open the proceedings for the purpose of
    entertaining an application for a further re-election.

[7]

The trial judge expressed concerns about whether he was
functus
    officio
. However, acting on the assumption that he was not, the trial
    judge concluded that the appellants previous re-election was valid. He said:
    in my view, the procedure that was conducted before the Court was fair to Mr.
    Mitchell, was fully informed to Mr. Mitchell, he had an election to  he gave 
    instructions to re-elect and proceed with the trial with the full knowledge of
    the process that would unfold after that election was made.

[8]

Sentencing proceedings were adjourned to facilitate the preparation of a
    pre-sentence report. The trial judge acceded to a joint submission of 12
    months imprisonment.

[9]

The appellant submits that the trial judge erred both in concluding that
    he was
functus officio
, and in his alternative finding that the
    appellant waived his right to the reading of the re-election in s. 561(7).

[10]

On appeal, the Crown concedes that the trial judge was not
functus
    officio
but submits that the re-election was valid.

[11]

We agree that the trial judge was not
functus officio
when trial
    counsel applied to re-open the proceedings to make a further re-election. Until
    sentence is imposed, a trial judge has jurisdiction to re-open the proceedings:
R. v. Griffith
, 2013 ONCA 510, 116 O.R. (3d) 561;
R. v. Lessard
(1976), 30 C.C.C. (2d) 70 (Ont. C.A.); and
R. v. Kippax
, 2011 ONCA
    766, 286 O.A.C. 144. The trial judge could have re-opened the case to deal with
    the re-election request had he seen fit to do so. However, we agree with the
    trial judges assessment of the merits of the appellants request.

[12]

Section 561(7) of the
Criminal Code
requires that the following
    words or words to like effect be read to the accused person: You have given
    notice of your wish to re-elect the mode of your trial. You now have the option
    to do so. How do you intend to re-elect? This was not done in this case.
    However, when the appellant re-elected to be tried by a judge of the Ontario
    Court of Justice, he was represented by capable counsel. It is clear from the
    record that, through counsel, he waived his right to have the words of s.
    561(7) read to him. The trial judge was entitled to rely upon counsels
    representations as to the instructions he received from the appellant, and to
    conclude that the requirements of s. 561(7) had been waived:
Korponay v. Attorney
    General of Canada
, [1982] 1 S.C.R. 41, at p. 53.

[13]

Nothing was placed before us that calls into question the appellants
    understanding of the consequences of his re-election. Moreover, there is no
    suggestion that trial counsel was ineffective in his representation of the
    appellant. We are satisfied that the appellant waived his right to the reading
    of the re-election and his re-election was valid.

[14]

It would have been better if the language of s. 561(7) was read to the
    appellant, as required by that section: see
R. v. Mitchell
(1997), 36
    O.R. (3d) 643 (C.A.), at pp. 655-656; and
R. v. Vuong
, 2010 ONCA 798,
    264 C.C.C. (3d) 39, at para. 33. Nevertheless, we are satisfied that there was
    a valid waiver and the appellant was dealt with fairly.

[15]

The appeal is dismissed.

G.R. Strathy C.J.O.

B.W. Miller J.A.

Gary Trotter J.A.


