Criminal jurisdiction – trial and appellate – depends on several factors that vary with respect to particular cases. The result of this is that sometimes appeals of convictions that were imposed at the same trial can lead to appeals to different courts. The Ontario Court of Appeal’s May 21, 2014 decision in R. v. Horton comprehensively reviewed the state of the law in this respect, and how appellate courts should approach such cases. The decision holds that, in cases of ambiguity, an appellate Court must look at the entire circumstances of a case to determine how the Crown elected to proceed with a particular charge, and, correspondingly, what is the proper court for an appeal.

Understanding the case requires understanding its procedural facts in some detail.

The accused was originally charged with nine offences – all were “hybrid”, where the Crown could choose to proceed summarily or by indictment, or were offences where the Crown could only proceed by indictment. Originally, it appeared as though the Crown was going to proceed by indictment, and the accused was going to request a jury trial in the Superior Court. After the accused second-guessed this decision, significant negotiation occurred between the Crown and the accused. Eventually, two charges were withdrawn, the accused pleaded guilty to four charges, and it was agreed that the other three would proceed in the Provincial Court. After the accused’s guilty plea, the Court Clerk asked how the Crown wished to proceed on the three charges to which the accused pleaded not guilty. Crown counsel responded “summarily”.

In the trial in the Provincial Court, the accused was convicted of assaulting a peace officer and intimidating a justice system participant. (He was acquitted of a third charge.) Assaulting a peace officer is a hybrid offence, which, when tried summarily, has an appropriate appellate route to the Summary Conviction Appeal Court (comprised of the judges of the Superior Court). Intimidating a justice system participant is an indictable offence, with the appellate route to the Court of Appeal regardless of whether it is tried in the Provincial Court or the Superior Court.

The accused appealed both his convictions to the Court of Appeal. To do so, the accused obtained the required order under s. 675(1.1) of the Criminal Code to have the appeals of both convictions heard together as the conviction for assaulting a peace officer otherwise was clearly within the purview of the Summary Conviction Appeal Court.

Before the Court of Appeal, however, the accused submitted that the Crown elected to proceed summarily on all charges before the Provincial Court, and therefore the appeal before the Court of Appeal had to be quashed. He sought to have a single judge of the Court of Appeal designated the Summary Conviction Appeal Court judge, and then intended to argue that his conviction on the count of intimidating a justice system participant had to be quashed because he was tried summarily on an indictable offence.

Goudge J.A., on behalf of a unanimous Court of Appeal, did not accept this argument. He analyzed:

[20]     The cornerstone of the appellant’s position is that in answering “summarily” to the question from the clerk of the court, the Crown was purporting to re-elect to proceed summarily on all three charges.  In other words, the appellant contends, the Crown’s response meant “summarily on all three offences”.  If the appellant’s interpretation of the Crown’s answer is incorrect, the balance of his argument on this preliminary issue falls away.

He then proceeded to show why the “full record” demonstrated that this was not the case as:

  • It was unnecessary to indicate how the Crown elected to proceed on the indictable offence, since no election is required for such offences.
  • The agreement reached before trial was to have a trial of all three charges tried in the Provincial Court. No change in the Crown’s method of proceeding either with the indictable offence or with the two hybrid offences was necessary to achieve this objective.
  • The agreement reached also had the purpose of reducing the sentencing jeopardy to which the accused would be exposed on the hybrid offences – the understanding that this was only with respect to the hybrid offences was confirmed by the actions of the judge and counsel later in trial.
  • The idea that the Crown would attempt to proceed summarily on a charge that can only proceed by indictment would be contrary to established principles of criminal procedure. The fact that counsel for the accused did not object to this, and the trial judge did not say anything, suggests that the intention was to proceed summarily only on the hybrid offences.
  • The trial judge’s reasons belied the suggestion that the Crown had proceeded summarily to try an indictable offence.
  • The sentencing submissions and reasons suggested that the Crown was proceeding summarily on the two hybrid offences only, and that counsel and the Court understood this to be the case.
  • There were only two indications in the record that pointed in the opposite direction.  The first was on the information, where the court clerk checked the box marked “Summarily”, indicating how the Crown elected to proceed.  The second was on the warrant of committal where again the court clerk checked the box marked “Summary Conviction Offence”, indicating the offences for which the appellant was convicted at trial. These were accorded little weight, merely reflecting what the clerk heard the Crown say in its one-word response the day the trial commenced.

The accused’s jurisdictional challenge accordingly failed and his appeal proceeded in the Court of Appeal.