Joint trial of provincial and summary conviction criminal charges consistent with intent of POA, Criminal Code: SCC

The Supreme Court of Canada has dismissed the appeal of an Ontario man who was convicted under both the Criminal Code and the province’s Highway Traffic Act and who had argued that the trial judge lacked jurisdiction to conduct a joint trial on the criminal and provincial charges.

In R. v. Sciascia, 2017 SCC 57, the majority of the Supreme Court found that an Ontario Court of Justice judge has jurisdiction to conduct a joint trial of provincial charges and summary conviction criminal charges, depending on compliance with legislative intent and adherence to relevant common law principles, and that combining charges led to greater efficiencies in the court system.

Permitting a joint trial of provincial charges and summary conviction criminal charges is consistent with the intent of both the Provincial Offences Act and the Criminal Code, Justice Michael Moldaver wrote, with Chief Justice Beverley McLachlin and justices Rosalie Abella, Andromache Karakatsanis, Richard Wagner, Clément Gascon and Malcolm Rowe concurring.

“The POA was designed to implement more efficient procedures to deal with the large volume of provincial offences that were clogging up courts in Ontario,” he continued. “Although the separation of POA prosecutions from the more rigorous and time‑consuming criminal trial process was designed in the main to enhance efficiency and reduce court backlogs, where this objective of efficiency is better served by conducting a joint trial than by holding separate trials, it would pervert the true spirit and objectives of the POA to blindly enforce strict separation.”

Following an incident of erratic driving, the appellant, Joseph Sciascia, was charged with dangerous operation of a motor vehicle and assaulting a police officer under the Criminal Code and for failing to stop for police and failure to report property damage caused by his operation of a motor vehicle under the Ontario Highway Traffic Act. The Crown elected to proceed by way of summary conviction for the criminal offences and, with his consent, the appellant was tried in the Ontario Court of Justice for all the offences in a single proceeding. He was found guilty of one criminal offence and one provincial offence.

On appeal from his convictions, Sciascia argued that the trial judge lacked jurisdiction to conduct a joint trial on the criminal and provincial charges. The summary conviction appeal judge dismissed the appeals; Ontario’s Court of Appeal found the trial judge lacked jurisdiction to hold a joint trial, but it dismissed the appeals on the basis that the error could be cured by applying the procedural proviso under s. 686(1) (b)(iv) of the Criminal Code and the proviso under s. 120(1)(b)(iii) of the Provincial Offences Act.

“In the present case, four considerations lead me to conclude that conducting a joint trial was permissible,” Justice Moldaver wrote for the majority.

“First, no provision in the relevant statutes prohibits an OCJ judge from conducting a joint trial of criminal and provincial offences. Second, allowing for a joint trial is consistent with enhancing efficiency — the main objective underlying the enactment of the POA. Third, in this case, the charges in question related to the same course of events, establishing a clear factual nexus. Finally, there was no prejudice to the accused — indeed, he expressly consented to the joint trial taking place. In these circumstances, conducting a joint trial was both permissible and desirable in the interests of justice.”

In dissenting reasons, Justice Suzanne Côté found that joining the charges together in a single trial was inconsistent with the legislative scheme of the POA and that the provincial court judge’s error in conducting a joint trial could not be saved by the curative provisos in either the Criminal Code or the POA. “The error in this case was  . . .  a foundational defect in the proceedings  there was a total absence of jurisdiction to conduct the joint trial,” Justice Côté wrote.

The Attorney General of British Columbia was an intervenor in the case. Since 1985, when R. v. Massick (1985), 21 C.C.C. (3d) 128) was decided by the British Columbia Court of Appeal, “it’s been the practice in B.C.” to hold joint trials and combine criminal and provincial charges, says John Caldwell, a Crown counsel in the Criminal Appeals and Special Prosecutions office in Vancouver, who represented the B.C. attorney general before the Supreme Court in Sciascia.

The B.C. attorney general’s position has been “good law remains good law,” Caldwell told Legal Feeds. “In a nutshell, that’s why the AG of B.C. chose to intervene here,” he says, noting that the Massick decision, which the B.C. attorney general referred to in its factum, was cited by Moldaver in his decision.

“We are pleased with the result” in that the court has said, “as a matter of statutory interpretation . . . a joint trial . . .  is a permissible and often desirable procedure,” Caldwell says.

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