Trial judges reserve this right even if the Crown's refusal did not amount to an abuse of process
A trial judge can override the Crown’s discretion to refuse a judge-only criminal trial if the judge believes the prosecutors’ refusal could potentially breach an accused’s rights under the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada ruled on Friday.
Trial judges reserve this right even if the Crown’s refusal did not constitute an abuse of process, the high court added. The court returned the case to the Quebec Court of Appeal for reconsideration.
All seven justices presiding over the case agreed on the result, but were split on the reasons. Justice Andromache Karakatsanis wrote the decision for the majority. Justices Malcolm Rowe and Nicholas Kasirer provided concurrent reasons.
“I conclude that the Crown’s decision whether to consent to a judge-alone trial is not a decision engaging core prosecutorial discretion, and so could be reviewed by the trial judge under her inherent jurisdiction on a standard lower than abuse of process,” Karakatsanis wrote.“I also conclude that the trial judge found that proceeding with a jury trial would likely lead to unreasonable delay, and so had jurisdiction to grant her order as a Charter remedy.”
Pascal Varennes was charged with the second-degree murder of his spouse. Under the Criminal Code, individuals charged with indictable offences are tried by both a judge and jury by default, with some exceptions. However, s. 473(1) of the Criminal Code allows individuals accused of certain offences – including murder – to be tried without a jury if both the individual and the Crown agree to do so.
Because Varennes’ trial was scheduled for September 2020, he requested a judge-only trial to avoid pandemic-related delays. He argued any delays would breach his s. 11 Charter right to be tried within a reasonable timeframe.
The Crown refused to consent to a judge-only trial, arguing it was in the public’s interest to hold a jury trial for a murder charge given the domestic violence context and the fact that the alleged offence took place in a small community. The Crown further argued that pandemic-related restrictions would not delay the trial.
Varennes filed a motion asking the trial court to allow his case to proceed by a judge alone. The trial court approved his motion and went on to acquit him of second-degree murder. The court convicted Varennes of manslaughter instead.
The Crown appealed. The Quebec Court of Appeal sided with the Crown, ruling that the Crown’s rejection of Varennes’ request constituted prosecutorial discretion. The appellate court said a trial court can only interfere with this discretion to remedy an abuse of process, which did not occur in Varennes’ case. The appellate court declared the judge-only trial a “nullity,” and ordered a new trial involving both judge and jury.
Varennes appealed to the SCC. The high court rejected the Court of Appeal’s ruling, stating that the appellate court erred by requiring the trial judge to prove that the Crown engaged in an abuse of process.
According to the SCC majority, the scope of the Crown’s core prosecutorial discretion does not include decisions on whether to consent to a judge-only trial. This means that the Crown’s decision to reject Varennes’ request did not have to amount to an abuse of process for the trial judge to override it. The trial judge could review the Crown’s decision using a lower standard instead.
However, the majority said it was unnecessary to “decide what precise standard would be required for a court to review, under inherent jurisdiction, such a non-core prosecutorial decision made pursuant to statute.” This is because the trial court could take another legal route to override the Crown’s decision: the trial court could order a judge-only trial on the basis that the Crown’s rejection of Varennes’ request held the potential to infringe on his Charter right to a timely trial.
“Judges have a constitutional duty to grant meaningful remedies in response to the violation of Charter rights,” Karakatsanis wrote. “Courts can always review a prosecutor’s decision for compliance with the Charter.”
The majority allowed Varennes’ appeal and quashed the Court of Appeal’s order for a new trial.
The trial judge’s “findings of fact and reasoning make clear that the order she granted was an ‘appropriate and just’ remedy,” Karakatsanis wrote. “It protected the appellant’s rights and avoided the risk of a stay down the road, thus respecting the Crown’s core prosecutorial discretion to seek adjudication of this murder charge on the merits.”
Rowe said he would have allowed the appeal for different reasons. While he agreed with the majority that the trial court had the authority to override the Crown’s discretion, he departed from his colleagues by arguing that the Crown’s decision did constitute an exercise of prosecutorial discretion.
This means that the trial judge only had the authority to review the Crown’s decision to remedy an abuse of process. Rowe argued that the Crown’s decision amounted to an abuse of process.
“In the exceptional circumstances of this case, the trial judge was justified in overriding the Crown decision because it was conduct that undermined the integrity of the justice system — the residual category of abuse of process under s. 7 of the Charter,” Rowe wrote.
“The Crown’s conduct was ‘vexatious to such a degree that it contravene[d] fundamental notions of justice’ in the context of the enormous health risks posed by the early days of the COVID-19 pandemic.”
Rowe further argued that the trial judge could not justify overriding the Crown’s decision because it would potentially breach Varennes’ Charter rights, as no Charter breach was established.
In a statement on Friday, Marie-Claude Bourassa, a Crown prosecutor for the Directeur des poursuites criminelles et pénales du Québec, said, "The majority establishes that the Attorney General’s decision whether to consent to a judge‑alone trial under s. 473(1) [of the Criminal Code] does not fall within core prosecutorial discretion as it does not directly impact the nature and extent of the criminal jeopardy to which the accused will be subjected."
Bourassa noted that "courts must adopt a posture of deference even when reviewing a 'non-core prosecutorial' decision by a prosecutor," and that "the fact that a non‑core prosecutorial decision is made pursuant to statutory authority will require that deference feature prominently in the analysis."
She added that the SCC's decision "seems that it reaffirms [the high court's 2014 decision in R. v. Anderson] and give courts guidance on how to intervene without unduly intrud[ing] on prosecutorial decisions."
Maxime Hébert Lafontaine, a lawyer with Latour Dorval Avocats who represented Varennes, declined to comment on the case because it is still pending.
