Case information

Criminal law — Courts — Jurisdiction — Procedure — Trial — Trial without jury — Trial judge allowing appellant’s motion for trial without jury despite absence of consent of prosecutor — Discretion of prosecutor to consent to trial without jury — Whether Quebec Court of Appeal erred in finding that trial judge had held appellant’s trial “without jurisdiction” — Whether prosecutor’s appeal of order made by trial judge was governed by s. 676(1)(a) of Criminal Code — If trial was held without jurisdiction, whether Quebec Court of Appeal erred in finding that irregularity could not be corrected through application of s. 686(4) of Criminal Code while denying stay of proceedings pursuant to s. 686(8) — Criminal Code, R.S.C. 1985, c. C-46, ss. 473, 686(4), (8).<br>

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In 2015, the appellant was charged with the second degree murder of his spouse. Before his trial, a Quebec Superior Court judge allowed his motion for the trial to take place before a judge alone, in accordance with s. 473(1) of the Criminal Code, R.S.C. 1985, c. C-46, despite the absence of consent from the respondent prosecutor. The judge was of the opinion that a prosecutor’s decision to consent to a trial before a judge alone does not fall within the core of prosecutorial discretion but is instead a tactical decision subject to a court’s authority to control its own processes. Considering the particularities of the case, the judge was of the view that the accused had discharged his burden of demonstrating that the prosecutor’s decision was unreasonable or unfair in the circumstances. After a trial without jury, the accused was acquitted of second degree murder, but he was convicted of manslaughter.

The Court of Appeal allowed the respondent prosecutor’s appeal and ordered, among other things, that a new trial be held before a jury on the charge of second degree murder. The court was of the opinion that the trial judge had erred by applying the unreasonableness standard in her review of the prosecutor’s refusal to consent despite the fact that the accused had to prove that this refusal constituted an abuse of process. The Court of Appeal found that the accused had failed to prove this and that the impugned judgment was therefore vitiated by an error of law that had the effect of granting the Superior Court jurisdiction that it did not have. The accused’s trial was therefore a nullity.