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R. v. Dudley

2009 SCC 58 [2009] 3 SCR 570 Court SCC Decision date 2009-12-17 Docket 32603 English

PartiesKristy Leanne Dudley Appellant·Her Majesty The Queen Respondent·Director of Public Prosecutions of Canada Intervener

Judges McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert

Decision 6–3 Reasons (6) — Fish J. (McLachlin C.J. and Binnie, LeBel, Abella and Cromwell JJ. concurring) · Concurring (3) — Charron J. (Deschamps and Rothstein JJ. concurring)

On appeal from Alberta

Subjects Criminal law

Contents

Reasons for Judgment — Fish J. (McLachlin C.J. and Binnie, LeBel, Abella and Cromwell JJ. concurring)

Fish J. —

“Hybrid” offences are crimes that can be prosecuted by indictment or on summary conviction. The choice in Canada is the Crown’s, though this has not always been the case and is not the case in other jurisdictions.
Where the Crown elects to proceed by way of summary conviction, or “summarily”, the hybrid (or “dual procedure”) offence is treated in all respects as a summary conviction offence. Of particular importance here, the proceedings must be instituted within six months unless the parties otherwise agree.
Where the trial has proceeded before a summary conviction court without an express election by the Crown, it will be presumed that the Crown has elected to proceed summarily. Where it is discovered before adjudication on the merits that the proceedings were instituted more than six months after the offence is alleged to have been committed, a mistrial should be declared unless the parties agree to waive the limitation period (or “prescription”).
After the verdict has been rendered, the appropriate remedy is an appeal on any permissible ground to the summary conviction appeal court.
Where an appeal by the accused[1] is allowed on the sole ground that the proceedings were statute-barred and conducted without consent, a conviction at trial should be set aside. In either instance, the Crown may proceed afresh by indictment except where the court is satisfied that this would amount to an abuse of process. That is because neither a mistrial nor a conviction set aside on appeal gives rise to a plea of autrefois.
An appeal by the Crown against an acquittal on the ground that the proceedings were statute-barred will not lie, since it was the Crown’s responsibility to ensure that the proceedings were properly instituted. Having elected to proceed by way of summary conviction before the right court, the Crown should not be heard to complain after an adverse adjudication on the merits that it neglected to obtain the consent of the accused before the accused was acquitted!
In my view, these are the governing principles where a hybrid offence is prosecuted by way of summary conviction beyond the six-month limitation period.
The rest is background, detail and commentary.

II

The appellant, Kristy Leanne Dudley, was charged with one count of fraud not exceeding $5,000 under s. 380(1) (b) of the Criminal Code , R.S.C. 1985, c. C-46 , and one count of uttering a forged document under s. 368(1)(b) of the Code. The fraud was alleged to have occurred between June 23, 2002 and May 31, 2004; the uttering, on November 12, 2002. Both are hybrid offences and the Crown elected to proceed summarily.
When the matter came before Wenden Prov. Ct. J. for an expected guilty plea, counsel for Ms. Dudley noticed that the information had been sworn on January 30, 2006 — more than six months after the alleged unlawful conduct was said to have occurred — and was therefore statute-barred as a summary conviction proceeding.
Counsel for Ms. Dudley moved to dismiss the charges as a “nullity”. The prosecutor immediately sought leave to “re-elect” and proceed by indictment or, in the alternative, to withdraw the charges. Wenden Prov. Ct. J. denied the Crown’s motions and disposed of the matter by concluding that “the charge is a nullity because . . . it is sworn out of time” (2006 CarswellAlta 2115, at para. 3).
The Alberta Court of Appeal allowed the Crown’s appeal and held that the original information charging Ms. Dudley with fraud and uttering remained valid (2008 ABCA 73, 231 C.C.C. (3d) 80). It also held that the Crown’s statute-barred election to proceed summarily did not afford Ms. Dudley a defence to the charges. Rather, the court concluded that the Crown could “re-elect” to proceed by indictment on the original information since the Crown’s initial election and the subsequent proceedings in the summary conviction court were nullities.

III

This case requires us to consider the peculiar nature of hybrid offences, which exist nowhere — and everywhere — on the landscape of Canadian criminal procedure.
They exist nowhere in the sense that the Criminal Code classifies offences as either indictable or punishable upon summary conviction, and nowhere recognizes a third, discrete category of hybrid offences. Yet hybrid offences are everywhere to be found in the Criminal Code — and in dozens, if not hundreds, of other federal statutes.
Hybrid offences, though initially rare, are not of recent conception: Some can be found in the very first Criminal Code , enacted by Parliament in 1892. And in recent decades Parliament has transformed many crimes formerly triable either by indictment or summarily into offences that may now be prosecuted either way.
Moreover, hybrid offences are by no means a uniquely Canadian phenomenon. Elsewhere, however, the decision whether to proceed summarily or on indictment is not generally a matter of prosecutorial discretion. In England and Wales, for example, it is the presiding magistrate who decides: Magistrates’ Courts Act 1980 (U.K.), 1980, c. 43, s. 19. And in certain Australian states, including New South Wales, the accused may apply to be tried summarily, subject to the consent of the Crown: Crimes Act 1900 (N.S.W.), ss. 475A and 475B.
Even in Canada, it was at one time explicitly provided that certain offences were punishable on indictment or on summary conviction at the option of the accused: see, for example, s. 501 of the Criminal Code , R.S.C. 1927, c. 36; R. v. Richards, [1934] 2 W.W.R. 390 (B.C.C.A.). But all such provisions have long since been repealed and, as mentioned earlier, the choice is now the Crown’s: Smythe v. The Queen, [1971] S.C.R. 680, at pp. 685-87, per Fauteux C.J.
Pursuant to s. 34(1) (a) of the Interpretation Act , R.S.C. 1985, c. I-21 , an offence is presumed indictable “if the enactment provides that the offender may be prosecuted for the offence by indictment”. Hybrid offences are therefore treated as indictable — unless the Crown elects, or is deemed to have elected, to try them summarily:
In these cases, it is the prosecution that first decides how to proceed. If it chooses to proceed by indictment, the offence is treated in all respects as an indictable offence and the accused has the normal rights of election; if it chooses otherwise, the case proceeds in all respects as a summary conviction offence.

(Manning, Mewett & Sankoff: Criminal Law (4th ed. 2009), at p. 44)

To avoid uncertainty and the misunderstanding of which much unnecessary litigation is born, I think it best for the Crown to declare explicitly whether it is proceeding on a hybrid offence summarily or by indictment before the accused is asked to plead. And where the Crown elects to proceed summarily beyond the six-month limitation period, the prosecutor and the defendant should both be required to declare expressly — again, before plea — that they agree to proceed summarily.
In the absence of an express election, it will in any event be presumed that the Crown has elected to proceed summarily where a hybrid offence “is proceeded with through trial to a verdict in a court having jurisdiction to hear a summary conviction proceeding”: R. v. Mitchell (1997), 121 C.C.C. (3d) 139 (Ont. C.A.), at para. 4. Similarly, the Crown will be deemed to have elected to proceed by indictment where the accused has been put to the election as to mode of trial required, for example by s. 536 of the Criminal Code , so long as the proceedings take place in a court having jurisdiction over the alleged offence.

IV

As mentioned earlier, hybrid offences are deemed to be indictable unless and until the Crown elects to proceed summarily. Thus, speaking for the Nova Scotia Court of Appeal in R. v. Paul‑Marr, 2005 NSCA 73, 199 C.C.C. (3d) 424, at para. 20, Cromwell J.A. (as he then was) explained that “where an offence may be prosecuted by either indictment or on summary conviction at the election of the Crown, the offence is deemed to be indictable until the Crown elects to proceed by way of summary conviction”. Likewise, in R. v. C. (D.J.) (1985), 21 C.C.C. (3d) 246, at p. 252, MacDonald J., speaking for the Prince Edward Island Supreme Court, Appeal Division, stated that “in the case of a hybrid offence once the Crown elects to proceed by way of summary conviction the offence is no longer deemed to be an indictable offence”. And in Canada (Attorney General) v. Trueman, P.C.J. (1996), 83 B.C.A.C. 227, at para. 13, once more for a unanimous court, McEachern C.J.B.C. held that hybrid offences “are deemed by s. 34 of the Interpretation Act . . . to be indictable [and] remain indictable unless the Crown elects to proceed by summary conviction”. (Emphasis added throughout.)
Other appellate courts across the country have reached the same conclusion: Trinidad and Tobago v. Davis, 2008 ABCA 275, 233 C.C.C. (3d) 435, at para. 14; R. v. Huff (1979), 50 C.C.C. (2d) 324 (Alta. C.A.), at p. 328; Mitchell, at para. 4; R. v. Gougeon (1980), 55 C.C.C. (2d) 218 (Ont. C.A.), at p. 234; R. v. Tontarelli, 2009 NBCA 52, 348 N.B.R. (2d) 41, at para. 55; R. v. D. (S.) (1997), 119 C.C.C. (3d) 65 (Nfld. C.A.), at para. 34; R. v. O’Leary (1991), 64 C.C.C. (3d) 573 (Nfld. C.A.), at p. 575; R. v. Shiplack (1993), 109 Sask. R. 311 (C.A.), at para. 9. See also Ahmed v. Canada (Minister of Citizenship & Immigration), 2009 FC 672, 81 Imm. L.R. (3d) 116, at para. 40.
Justice Charron cites R. v. Connors (1998), 121 C.C.C. (3d) 358 (B.C.C.A.), for the proposition that “dual procedure offences retai[n] their character as indictable offences in the context of the Identification of Criminals Act ” (para. 73). As my colleague points out, the Identification of Criminals Act is not before us on this appeal. For present purposes, it will therefore suffice to emphasize that Connors stands alone in this regard. Other courts have reached the opposite conclusion. See, for example, Re Abarca and The Queen (1980), 57 C.C.C. (2d) 410 (Ont. C.A.), at p. 413.

V

Against this background, I turn now to ss. 786(2) and 788(1) of the Criminal Code , which both appear in Part XXVII of the Code, entitled “Summary Convictions”:
786. . . .
(2) 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.
788. (1) Proceedings under this Part shall be commenced by laying an information in Form 2.

(2) 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. 788.

(1) Proceedings under this Part shall be commenced by laying an information in Form 2.

The time limit for instituting summary conviction proceedings that is now codified in s. 786(2) has existed in one form or another since at least 1892: Criminal Code, 1892, S.C. 1892, c. 29, s. 841. Only in 1997, however, was it made subject to waiver — that is, to extension by consent of the parties (S.C. 1997, c. 18, s. 110). Until then, summary conviction offences could not be prosecuted at all unless proceedings were timely brought: R. v. Karpinski, [1957] S.C.R. 343, at p. 350, per Fauteux J.
It was in light of this that this Court in Karpinski unanimously held that the Crown could not try a hybrid offence as a summary conviction offence after the six-month limitation period had expired. But the Court divided as to the validity of the proceedings that had taken place in the summary conviction court prior to the discovery of the limitation problem.
Fauteux J. (Abbott J. concurring) held that the proceedings were null ab initio because “there [was] no right for the Crown to elect to proceed by way of summary conviction and no jurisdiction for the magistrate to accept and act upon the election by receiving a plea” (p. 351). This line of reasoning has come to be known as the “no jurisdiction” view, and has been embraced by the Ontario Court of Appeal in a number of cases similar to the one at bar. See, for example, R. v. Kelly (1998), 128 C.C.C. (3d) 206.
Again in Karpinski, Cartwright J. (dissenting) concluded that the summary conviction court retained at least a limited jurisdiction over the proceedings. In his view, the Crown’s “withdrawal of the charge before the learned magistrate was tantamount to an acquittal” and thus gave rise to the special plea of autrefois acquit if the Crown attempted to prosecute the same offence by indictment: Karpinski, p. 350. Justice Cartwright’s reasoning has come to be known as the “defence view” of Karpinski, and it has been embraced by the Newfoundland Court of Appeal, in obiter, in D. (S.).
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.
Except in one respect, I see no reason to distinguish in this regard between hybrid offences and offences punishable only on summary conviction. For hybrid offences, the Crown may proceed by indictment where its offer to proceed summarily is spurned by the accused. If the offence is a “pure” summary conviction offence — as opposed to a hybrid offence — the accused may nonetheless agree to proceed beyond the limitation period to avoid prosecution by indictment for a related offence that covers the same conduct. In either instance, if the prosecutor and defendant agree, a summary conviction court may exercise in respect of a statute-barred prosecution the jurisdiction it would otherwise have had.
The sole relevant difference, it seems to me, is this. Absent consent, expiry of the limitation period bars entirely proceedings in respect of an offence that may be prosecuted only by way of summary conviction. A hybrid offence that can no longer be prosecuted summarily without the defendant’s consent may nonetheless, absent abuse of process, be prosecuted by indictment, whether or not the Crown initially elected to proceed summarily — except of course, where the accused was acquitted by a summary conviction court pursuant to the Crown’s initial election.
In its reasons below, the Alberta Court of Appeal held that the Crown may “seek the consent of the accused to continue with a summary procedure” under s. 786(2) when it discovers “it has mistakenly elected to proceed summarily on an information sworn more than six months after the date of an alleged hybrid offence” (para. 42). On this view, which I share, the proceedings in the summary conviction court cannot be treated as a nullity ab initio.
Whatever the situation may have been prior to the amendment of s. 786(2) in 1997, the summary conviction court now retains jurisdiction — subject to the consent of the parties — when it is discovered that the proceedings before it were statute-barred when the information was sworn. On a purposive interpretation of the amendment, the curative consent that is its object may be given at any time before verdict without requiring the parties to start the trial afresh. As I mentioned earlier, however, uncertainty and misunderstanding can easily be avoided by inviting and recording on the record — before the defendant is asked to plead — an agreement by the parties to proceed summarily.
It is true, as a matter of principle, that jurisdiction cannot be conferred by consent. But this principle is subject to statutory attenuation, and Parliament has since 1997 expressly provided in s. 786(2) that the prosecutor and the defendant, by mutual consent, can renounce the six-month limitation period for summary convictions. From the defendant’s point of view, this amounts to what may properly be characterized as a waiver of the benefit of prescription.
And it is not without interest that the Court, nearly a century ago, recognized in Giroux v. The King (1917), 56 S.C.R. 63, that “[c]onsent cannot confer jurisdiction but a privilege defeating jurisdiction may always be waived if the trial court has jurisdiction over the subject matter” (p. 67). In the context that concerns us here, the benefit of an expired limitation period may be regarded, at least since 1997, as a privilege that can be waived by the accused.
The consent of the parties, I repeat, can be given at any time during the proceedings before the verdict. The prosecutor will always be deemed to have consented by virtue of his or her election to try the hybrid offence summarily. The defendant must consent to the proceedings in a manner consistent with the reasons of the Court in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41. That is to say, the consent of the defendant to continue with the proceedings must be “informed, clear and unequivocal”: Korponay, at p. 58.

VI

The only question remaining on this appeal is what should become of the proceedings when the defendant declines to consent to their continuation.
Where the offence is punishable only on summary conviction, the court should simply dismiss the information.
In virtue of s. 34 of the Interpretation Act , hybrid offences are deemed indictable unless and until the Crown has elected to proceed summarily. Where the Crown elects to proceed summarily beyond the limitation period without the defendant’s consent, the Crown’s invalid election does not retrospectively invalidate an information.
There is a large and divided body of case law considering the Crown’s right to “re‑elect” on the original information to proceed by indictment after first electing to proceed summarily. See, for example, Re Abarca and The Queen; R. v. Jans (1990), 59 C.C.C. (3d) 398 (Alta. C.A.); R. v. Burke (1992), 78 C.C.C. (3d) 163 (Nfld. C.A.); R. v. Kalkhorany (1994), 89 C.C.C. (3d) 184 (Ont. C.A.); R. v. Boutilier (1995), 104 C.C.C. (3d) 327 (N.S.C.A.).
In my respectful view, these cases do not ask the right question.
As mentioned earlier, the failure of the accused to consent to the prosecution of a hybrid offence by way of summary conviction beyond the limitation period is fatal to the validity of the Crown’s election and to the proceedings that ensue.
It is for precisely this reason that the Crown is free to proceed by indictment on the original information, if valid on its face, where the accused refuses to consent. Although the information remains valid, the initial election and all subsequent proceedings are a nullity. They can therefore have no effect on the Crown’s ability to proceed by indictment.
I agree with the Court of Appeal that it is not unfair to the accused to permit the Crown to proceed by indictment unless “the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency” (para. 1). On the record as we have it, nothing of the sort may be said to have occurred here.
As Martin J.A. observed in R. v. Belair (1988), 41 C.C.C. (3d) 329 (Ont. C.A.):
The [hybrid] offence charged was at all times triable by indictment, and indeed the information charged an indictable offence until the Crown elected to treat the offence as one punishable on summary conviction: see Re Abarca and The Queen (1980), 57 C.C.C. (2d) 410 at pp. 413‑4 (Ont. C.A.). The respondent in this case was in no way prejudiced by the error of Crown counsel. If Crown counsel had noticed, prior to electing to proceed by way of summary conviction, that summary conviction proceedings were precluded by s. 721(2), he would, no doubt, have proceeded by indictment, as he ultimately did. The respondent in this case suffered no prejudice as a result of Crown counsel failing to notice prior to election that summary conviction proceedings were barred by s. 721(2). [p. 339]
In R. v. Phelps (1993), 79 C.C.C. (3d) 550, the Ontario Court of Appeal aptly noted that “in view of the lengthy proceedings that have taken place through no fault of the appellant, [the Crown should] consider whether the interests of justice would be served by proceeding further with this charge, the seriousness of which it obviously deemed to be of a summary conviction nature” (p. 552). That decision, I agree, is best left to prosecutorial and not judicial discretion.

VII

Finally, four observations regarding the reasons of Justice Charron.
The first concerns the conceptual underpinning of my colleague’s entire analytical framework. Justice Charron finds that the Crown’s election to prosecute a hybrid offence by way of summary conviction, “while defining the process by which the charge will be dealt once laid, does not change the underlying character of the offence as indictable” (para. 74).
With respect, I am unable to understand in what sense the “underlying character” of a hybrid offence remains indictable once the Crown has elected to proceed summarily. The trial is before a different court and follows a different procedure. The offender is subject, upon conviction, to a different punishment. An appeal against the decision at trial goes to a different court of appeal. Under various federal and provincial statutes, conviction for a hybrid offence prosecuted summarily carries with it, not only in respect of sentence but in other respects as well, different consequences than a conviction on indictment: See, for example, the Criminal Records Act , R.S.C. 1985, c. C‑47, s. 4 ; the Citizenship Act , R.S.C. 1985, c. C-29, s. 22 ; and the Ontario Juries Act, R.S.O. 1990, c. J.3, s. 4. Finally, Parliament has expressly provided, in s. 34(1) (c) of the Interpretation Act , that “no person [prosecuted summarily for a hybrid offence] shall be considered to have been convicted of an indictable offence”.
In what sense, then, does a hybrid offence retain its “underlying character” as an indictable offence once the Crown has elected to proceed by way of summary conviction? I am unable to identify any. On the contrary, the hybrid offence takes on the “underlying character” of a summary conviction offence and is in every respect governed by the provisions of Part XXVII of the Criminal Code . In my view, there is no principled reason for making of s. 786(2) an exception to this rule.
Second, Justice Charron finds that “s. 786(2) speaks to the institution of the proceeding, not the Crown election” (para. 61). That, of course, is so. But hybrid offences prosecuted summarily are instituted by the laying of an information and not by the Crown’s election. In virtue of s. 788, they commence with the laying of that information; and in virtue of s. 786(2) they cannot be commenced more than six months after the offence is alleged to have occurred. Accordingly, it is because s. 786(2) “speaks to the institution of proceedings, not the Crown election” that the Crown may elect to proceed summarily at any time, provided that the information was sworn no more than six months after the date of the alleged offence — and otherwise only with the consent of the accused.
Third, Justice Charron states (at para. 60) that “[t]here is a conflicting body of jurisprudence, all stemming from this Court’s decision in . . . Karpinski . . . on the effect of a ‘mistaken’ Crown election to proceed summarily in respect of a dual procedure offence on an information laid more than six months after the offence was allegedly committed.” My colleague’s statement should not be misunderstood: Not a single Canadian decision drawn to our attention has held that the limitation period for summary conviction offences is inapplicable to hybrid offences prosecuted summarily. On this issue, there is no jurisprudential conflict whatever.
Thus, in Karpinski, all members of the Court agreed that the limitation period applied. This understanding of the law has prevailed in Canada for well over 100 years: R. v. Edwards (1898), 2 C.C.C. 96 (Ont. H.C.J.). And it has since Karpinski been twice re-affirmed by this Court, first in R. v. Machacek, [1961] S.C.R. 163, and again in Petersen v. The Queen, [1982] 2 S.C.R. 493. Any “conflict” in the jurisprudence relates to entirely different questions that confirm the applicability of the limitation period to hybrid offences prosecuted summarily, differing only as to whether a statute-barred prosecution goes to jurisdiction or is a matter of defence. I have dealt with this branch of the matter above, at paras. 21 and following.
Finally, Justice Charron states, at para. 74, that “in those jurisdictions where cases are screened before charges are laid, a dual procedure offence is still instituted as an indictable offence under s. 504 or 505”. On the contrary, and with the greatest of respect, I believe the opposite is true. In screening proposed prosecutions, Crown counsel are expected to determine whether charges are justified and, in the case of hybrid offences, whether they should be prosecuted summarily or by indictment. Where Crown counsel determines that the case should be prosecuted summarily, it would at the very least be incongruous to then proceed as if by indictment — and nothing in the materials before us suggests that this is done. It is more plausible to assume that where the Crown authorizes summary proceedings, they are instituted under s. 788 of the Code — in accordance with the Crown’s decision to prosecute summarily.
In short, my colleague’s position — which was not raised by the parties or by the intervener — is incompatible with the text of the relevant provisions of the Code, inconsistent with more than a century of judicial decisions (including Karpinski), and contrary to how the law has always and universally been understood by lawyers and commentators alike. It is contrary as well to the position taken by the Director of Public Prosecutions of Canada in this Court when invited to do so,[2] in instructions to federal prosecutors across the country,[3] and by the Federal Department of Justice in Parliament when s. 786(2) was amended.[4]

VIII

In the result, I would dismiss the appeal, set aside the decision of the trial judge and let justice take its course in accordance with the governing principles set out in these reasons.

The reasons of Deschamps, Charron and Rothstein JJ. were delivered by

Charron J. —

Concurring Reasons — Charron J. (Deschamps and Rothstein JJ. concurring)

The appellant, Kristy Leanne Dudley, was charged with one count of fraud not exceeding $5,000 under s. 380(1)(b), and one count of uttering a forged document under s. 368(1) (b) of the Criminal Code , R.S.C. 1985, c. C-46 , both dual procedure offences which allow the Crown to proceed either by indictment or by summary conviction. The Crown elected to proceed summarily. When the matter came before the trial court for an expected guilty plea, counsel for Ms. Dudley noticed that the information had been sworn more than six months after the offences were alleged to have been committed. Counsel therefore argued that the information was a nullity on the basis that it was statute-barred under s. 786(2) of the Criminal Code . The Crown sought leave to re-elect to proceed by indictment, or in the alternative to withdraw the information. Counsel for Ms. Dudley objected, arguing that a judicial stay would probably be appropriate as his client had “no resolution other than a guilty plea” and the extent of her jeopardy increased if this matter proceeded by indictment. The trial judge denied both Crown requests, on the ground that the information was “out of time” and “a nullity” (2006 CarswellAlta 2115, at para. 3).
The Crown appealed to the Alberta Court of Appeal. The Court of Appeal set aside the trial court’s decision, holding that an information is not invalidated by the Crown’s mistaken election to proceed summarily, nor is the Crown precluded from re‑electing to proceed by indictment once the error is discovered, “unless the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency” (2008 ABCA 73, 231 C.C.C. (3d) 80, at para. 1). The matter was therefore remitted to the trial court, for the Crown to apply to re-elect to proceed by indictment on the information, or alternatively to withdraw the information and proceed by indictment on a new information.
Ms. Dudley appeals to this Court, arguing that the trial judge’s decision was, in effect, an implicit determination that a stay of the charges was appropriate and, as such, an exercise of judicial discretion which ought not to have been interfered with by the Court of Appeal. She therefore asks that the trial court’s decision be reinstated, disallowing the Crown to re-elect or to proceed with the matter by indictment.
There is a conflicting body of jurisprudence, all stemming from this Court’s decision in R. v. Karpinski, [1957] S.C.R. 343, on the effect of a “mistaken” Crown election to proceed summarily in respect of a dual procedure offence on an information laid more than six months after the offence was allegedly committed. In all cases, much as in the case at bar, it was simply assumed that s. 786(2) of the Criminal Code operated to bar a proceeding by summary conviction in respect of a dual procedure offence, without asking whether the six-month prescription applies at all to such offences. In this appeal, this precise issue was canvassed at the hearing before this Court, following which the parties and the Director of Public Prosecutions, as intervener, filed supplementary submissions. Ms. Dudley argues that dual procedure offences are subject to the general limitation period under s. 786(2). The intervener supports her position. The Crown, on the other hand, takes the position that the general limitation period under s. 786(2) cannot govern the institution of proceedings in respect of dual procedure offences, as these offences are deemed indictable at law.
Having considered those submissions, I have come to the conclusion that s. 786(2) only operates as a general bar to the institution of proceedings more than six months after the alleged offence in respect of summary conviction offences. Dual procedure offences are deemed indictable offences by operation of s. 34 of the Interpretation Act , R.S.C. 1985, c. I‑21 , and, as such, not subject to any general limitation period under the Criminal Code . Proceedings in respect of dual procedure offences may therefore be instituted beyond the six-month period. Further, s. 786(2) speaks to the institution of the proceeding, not the Crown election. Therefore, nothing in the provision bars the Crown from electing to proceed either by indictment or by summary conviction in respect of such offences.
Consequently, I would confirm the Court of Appeal’s judgment setting aside the trial court’s decision, but would remit the matter to the trial court to proceed by summary conviction in accordance with the Crown’s election.
The first question in this case is whether the limitation period in s. 786(2) applies to dual procedure offences. In light of my conclusion that it does not, this is the only question that need be answered. Resolving this issue is a matter of statutory interpretation, which requires ascertaining Parliament’s intent. Before interpreting the provision in question, I will briefly discuss the nature and purpose of dual procedure offences.
The Criminal Code creates two categories of offences: summary conviction offences and indictable offences. Since indictable offences are more serious, a prosecution by indictment triggers additional procedural safeguards and a conviction attracts more severe penalties. Some offences may be prosecuted either summarily or by indictment, at the Crown’s discretion. These offences are commonly known as “hybrid offences”, but this term is misleading if it suggests that there exists a third category of offences. As discussed below, these offences are deemed at law to be indictable offences; they do not occupy a third category. I will therefore refer to these hybrid offences as “dual procedure offences”.
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. As this Court has recognized, discretion, including prosecutorial discretion, is an “essential feature of the criminal justice system” which will not be lightly interfered with: R. v. Beare, [1988] 2 S.C.R. 387, at p. 410; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372.
With few exceptions, the decision to proceed summarily or by way of indictment in Canada has always been the Crown prosecutor’s. This Court made this explicit in Smythe v. The Queen, [1971] S.C.R. 680, at p. 686, when it adopted the following statement from the Quebec Court of Appeal: “If an authority such as the Attorney‑General can have the right to decide whether or not a person shall be prosecuted, surely he may, if authorized by statute, have the right to decide what form the prosecution shall take”: R. v. Court of Sessions of the Peace, ex parte Lafleur, [1967] 3 C.C.C. 244, at p. 248. Justice Fish, at para. 17, points to s. 501 of the 1927 version of the Criminal Code which, exceptionally, left the choice to the accused. The operative part of s. 501 read as follows: “Every one is guilty of an offence punishable, at the option of the accused, on indictment or on summary conviction before two justices and liable on conviction to a fine not exceeding one hundred dollars, or to three months’ imprisonment with or without hard labour . . .”. Since the potential range of penalties on conviction of this offence was the same whichever procedural route was chosen, in effect, s. 501 gave the accused the choice of trial forum, a choice that is commonly left with the accused. In any event, the wording of s. 501 appears to be an anomaly as it is not replicated in any other provision in that version of the Criminal Code .
I now turn to the question of statutory interpretation. The starting point in interpreting statutes is the wording of the provision. The provision in question is found at the commencement of Part XXVII of the Criminal Code , entitled “Summary Convictions”. A number of definitions are set out in s. 785, then s. 786 provides the following:
786. (1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part.
(2) 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.

The relevant part of the definition of “proceedings” under s. 785 reads as follows:

“proceedings” means
(a) proceedings in respect of offences that are declared by an Act of Parliament or an enactment made thereunder to be punishable on summary conviction . . . .
Ms. Dudley claims that since dual procedure offences are “punishable on summary conviction”, s. 786(2) applies to them. As she points out, nothing in para. (a) of the definition of “proceedings” in s. 785 suggests that an offence must be punishable exclusively on summary conviction to fall within the definition. True enough, but this argument only brings us so far. While the definition of “proceedings” is wide enough to include dual procedure offences, Part XXVII only applies “[e]xcept where otherwise provided by law”. For example, it is obvious that many of the provisions contained in Part XXVII do not apply to dual procedure offences when the Crown elects to proceed by indictment. Other provisions of the Criminal Code govern instead. Therefore, the definition of “proceedings” does not answer the question whether the limitation provision under s. 786(2) applies to dual procedure offences. The fact that the provision deals with the institution of the proceedings, in my view, provides more fruitful ground to ascertain its meaning.
Section 786(2) states that proceedings shall not be “instituted” outside of the six-month limitation period. Proceedings relating to summary conviction offences are instituted pursuant to s. 788(1) of the Code; proceedings relating to indictable offences are instituted pursuant to s. 504 or 505 of the Code. In either case, instituting the procedure requires laying an information in Form 2. Thus, the Criminal Code provides two routes to the same result. There is no third route in respect of dual procedure offences — this reflects the fact that, as stated earlier, there is no third category of “hybrid” offences.
The question therefore becomes whether dual procedure offences are instituted pursuant to s. 788(1) or pursuant to s. 504 or 505. Section 34(1) of the Interpretation Act makes it clear that it is the latter, as s. 34(1) (a) deems a dual procedure offence to be an indictable offence. The provision reads as follows:
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;
(b) the offence is deemed to be one for which the offender is punishable on summary conviction if there is nothing in the context to indicate that the offence is an indictable offence; 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.
The import of s. 34(1) of the Interpretation Act is that dual procedure offences are deemed to be indictable offences, so the proceedings are commenced pursuant to s. 504 or 505, not s. 788(1). As a result, the proceedings are never “instituted” under Part XXVII within the meaning of s. 788(1), and the limitation period does not apply to these offences. Any subsequent Crown election to proceed summarily does not retroactively invalidate the institution of the proceeding.
Further, as the wording of s. 34(1) of the Interpretation Act indicates, the characterization of a dual procedure offence as an indictable offence endures. Paragraph (a) provides no suggestion that the dual procedure offence ever ceases being deemed indictable. In addition, the safeguarding provision under para. (c) would not be necessary if a summary election or plea negated the deeming provision in para. (a). Therefore, subsequent events — notably the Crown’s election to proceed by way of summary conviction or the accused’s decision to plead guilty to a summary conviction offence pursuant to s. 606(4) — do not affect the original characterization. They do affect the procedure that is followed, the penalty that may be imposed, and the effect of a conviction — as Fish J. notes in his reasons, where the Crown elects to proceed summarily, the dual procedure offence acquires the same characteristics as a pure summary offence in all those important respects and indeed, as he points out, the offence has been described by many courts as having ceased to be indictable at that point. (See paras. 21-22.) While this view may accurately reflect the practical effects of the Crown election from a procedural standpoint, there is no support in the wording of s. 34 to say that the offence, from a substantive standpoint, is no longer indictable. If it were otherwise and the offence ceased to be characterized as an indictable offence upon the Crown electing to proceed summarily, there would be no basis in law for the Crown to “re-elect” and continue the proceedings by indictment. In my respectful view, the Crown’s choice of procedural route does not change the original characterization of the offence as an indictable offence.
The extent to which the original characterization of the offence carries the day in any particular context has been the subject of debate in other contexts. For example, the British Columbia Court of Appeal in R. v. Connors (1998), 121 C.C.C. (3d) 358, came to the conclusion that dual procedure offences retained their character as indictable offences in the context of the Identification of Criminals Act , R.S.C. 1985, c. I-1 , which allows for the fingerprinting of any person who is in lawful custody, charged or convicted of an indictable offence:
At least for the purposes of the Identification of Criminals Act the term “indictable offence” includes offences which may be prosecuted summarily, but they retain their character as indictable offences no matter how the Crown elects. The Crown election has an impact procedurally on how and in what court the charge proceeds and, as well, on the maximum penalty that may be imposed, but does not change the character of the offence. It remains an indictable offence.
(Per Cumming J.A. writing for a unanimous bench on this point, at para. 69.)
The interpretation of the Identification of Criminals Act is not before us. Therefore suffice it for our purposes to conclude that the underlying characterization of the dual procedure offence as indictable certainly governs the institution of the process. The 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. Therefore, it is of no moment when the Crown makes the decision. As noted by the intervener, in some jurisdictions the Crown’s election is sometimes expressly set out on the form or in the wording of the count before the information is laid. In my view, this causes no difficulties. Regardless of the timing of the Crown election, the offence is still deemed to be an indictable offence pursuant to the Interpretation Act . Another way of looking at it is the following. An election is not made in the abstract. It must relate to a proceeding. As matter of logic, the institution of the proceeding therefore must precede the election. Accordingly, in those jurisdictions where cases are screened before charges are laid, a dual procedure offence is still instituted as an indictable offence under s. 504 or 505, following which the election becomes immediately effective to govern the ensuing process accordingly.
An examination of the purpose of the limitation provision supports the conclusion that Parliament did not intend to time-limit prosecutions of dual procedure offences.
As one academic has noted, it is primarily the interests of the defendant that animate limitation periods in criminal law: P. G. Barton, “Why Limitation Periods in the Criminal Code ?” (1998), 40 Crim. L.Q. 188. A central purpose is to allow those who commit minor offences to rest easy after a period: “. . . if the matter is of a level of seriousness of a summary conviction offence, it is not so significant that, after a time, a person should have to fear prosecution. He or she should be able to get on with life without the threat of a criminal proceeding hanging over his or her head. The seriousness of indictable matters overweighs this factor” (p. 190).
In respect of dual procedure offences, as discussed above, Parliament has recognized that certain crimes may be more or less serious depending on the circumstances and has provided the Crown with broad discretion to choose the most appropriate procedure. It follows that Parliament considers dual procedure offences as more serious than pure summary conviction offences.
It is of course open to Parliament to create limitation periods for all offences, some offences, or no offences. While Parliament has imposed a limitation period on summary conviction offences, the least serious crimes, it has not made the same choice regarding indictable offences. It has determined that the public interest in prosecuting these more serious offences outweighs the defendant’s interest in resting easy. It has also chosen that dual procedure offences are deemed to be indictable offences. In my view, imposing a limitation period on dual procedure offences would frustrate Parliament’s purpose. Had Parliament wished to impose a limitation period on dual procedure offences, it could have expressly adverted to these offences in s. 786(2) or declined to deem them to be indictable offences in the Interpretation Act .
In my view, interpreting s. 786(2) to include dual procedure offences would have undesirable consequences: it would interfere with the fair and efficient administration of the criminal justice system.
As many cases exemplify, including the case at bar, the consequence of imposing a limitation period on dual procedure offences is to force the Crown to proceed by way of indictment when it would otherwise pursue a summary conviction (unless the accused consented to summary proceedings). This interpretation would restrain the Crown’s exercise of discretion, the importance of which was alluded to above. It might also be unfair to the accused. As Ms. Dudley argued, proceedings by way of indictment may cause more prejudice to the accused: they place the accused in greater jeopardy, can involve increased cost and delay, and may carry greater stigma. See R. v. Boutilier (1995), 104 C.C.C. (3d) 327 (N.S.C.A), at pp. 335-36.
An interpretation excluding dual procedure offences from s. 786(2) avoids these adverse consequences. For dual procedure offences, Crown prosecutors would continue to exercise their full discretion, even after the expiry of six months. For pure summary offences instituted beyond the six months, defendants would still have the option, granted in s. 786(2), to agree to proceed by way of summary conviction. I do not accept the argument that this option would be absurd if the limitation applied only to pure summary conviction offences on the basis that an accused’s only possible motivation for waiving the limitation period would be to avoid proceedings by indictment in respect of a dual procedure offence. This premise is incorrect: defendants might well exercise that option where their conduct can be captured by several different offences, some indictable and others not. Agreeing to summary conviction proceedings, in return for the Crown’s decision not to proceed with the indictable offence(s), would decrease their jeopardy.
In my view, the interpretation that respects prosecutorial discretion and protects the accused from unfair treatment should be favoured in this case.
Interpreting s. 786(2) to exclude dual procedure offences also does not cause conflicts with other legislation. No inconsistency results.
I would dismiss three concerns raised by the intervener about incoherence with other statutes. First, this intervener has identified a number of federal statutes which contain only dual procedure offences and for which a specific limitation period applicable when the proceedings are instituted by way of summary conviction is prescribed. The intervener argues that these limitation periods must remain. I agree. At issue in this case is the limitation period in s. 786(2) of the Code only; Parliament of course may institute any other statutory limitation periods it wishes.
Second, this intervener has identified a number of other federal statutes providing for summary conviction offences which are not subject to a specific limitation period. It worries that an interpretation of s. 786(2) excluding dual procedure offences would lead to the result that the dual procedure offences set out in these statutes would elude prescription, while the dual procedure offences in the statutes described in the preceding paragraph would not. I do not think there is any cause for concern. Again, Parliament is free to impose, or not to impose, limitation periods. No conflict arises.
Third, this intervener points specifically to the Animal Pedigree Act , R.S.C. 1985, c. 8 (4th Supp .). This Act contains only one offence which is a dual procedure offence, but s. 67 of the act states, “[t]he provisions of the Criminal Code prescribing a time limit for making a complaint or laying an information in respect of offences punishable on summary conviction do not apply to proceedings in respect of an offence under this Act.” According to the intervener, this indicates that Parliament considered that s. 786(2) applies to dual procedure offences. I disagree. I take comfort in the fact that the parties and the intervener could locate only one such example and, in my view, this provision was added for greater certainty. No incoherence results: this provision in fact aligns with the proposed interpretation of s. 786(2).
Finally, nothing in the jurisprudence militates against the proposed interpretation as no court has ruled on this issue.
This Court did not hold in Karpinski that the Crown could not try a dual procedure offence as a summary conviction offence after the expiry of the limitation period; this question was not before the Court. In Karpinski, an information was sworn, the Crown elected to proceed summarily, and the defendant entered a plea of not guilty. Defence counsel then moved to dismiss on the ground that the information had been laid out of time. The magistrate permitted Crown counsel to withdraw the information and lay a new information to proceed by way of indictment. This Court confronted only the narrow question of whether the withdrawal of the first information amounted to an acquittal thereby allowing the accused to plead autrefois acquit. It did not address the aborted trial, or the propriety of withdrawing the information.
While other courts have also assumed that s. 786(2) applies to dual procedure offences, none has ruled on this issue. Therefore, no case law stands against the conclusion that s. 786(2) does not apply to dual procedure offences.
I have reached the conclusion that, properly interpreted, s. 786(2) does not bar the institution of proceedings more than six months after the alleged offence in respect of dual procedure offences. I would dismiss the appeal, confirm the Court of Appeal’s order setting aside the trial court’s decision, and amend that order so as to remit the matter to the trial court to proceed by summary conviction in accordance with the Crown’s election.

Footnotes

  1. [1] I am aware, of course, that the Criminal Code uses the term “accused” for indictable offences and “defendant” for offences punishable on summary conviction. For the sake of simplicity without unnecessary terminological nuance, I shall, dealing here with hybrid offences, use “accused” for both and “defendant” only for summary conviction proceedings. I shall also use “verdict” to signify a decision on the merits (“guilty” or “not guilty”) both for indictable and for summary conviction matters, “acquittal” to signify a not guilty verdict in either instance, and “summarily” to signify proceedings by way of summary conviction.
  2. [2] Supplementary Factum, Intervener Director of Public Prosecutions.
  3. [3] The Federal Prosecution Service Deskbook, Section 19.2.1 (updated 2002).
  4. [4] Senior Counsel, Department of Justice Criminal Law Policy Section, before the Standing Committee on Justice and Human Rights, at 0930 (October 20, 1998).

Cases cited

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