Bich, Healy, Sansfaçon

Appeal from conviction. Dismissed.

The appellant, who was accused of fraud, elected through his counsel to be tried by a court composed of a judge of the Court of Québec after a preliminary inquiry. Two months later, the parties agreed to end the preliminary inquiry in accordance with section 549(1) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.), and the appellant was thus ordered to stand trial. On August 29, 2019, during a facilitation conference, counsel for the appellant informed the prosecution and the judge that the appellant intended to “re-elect” to be tried by a judge and jury pursuant to former section 561(1)(b) Cr. C. The trial judge dismissed this application because, in her view, the preliminary inquiry ended on May 22, 2019, and the 15-day time limit set out in that section at the time to elect a new mode of trial expired on June 6, 2019. After that date, the appellant could not re-elect without the prosecution’s consent.

The preliminary inquiry indeed ended on May 22, 2019, after the appellant informed the Court of Québec of his decision under section 549 Cr. C., to forgo completing the preliminary inquiry. The decision to turn to that provision has immediate consequences; it terminates the preliminary inquiry. The accused is ordered to stand trial, and the judge presiding the inquiry becomes functos officio and no longer has jurisdiction to continue. The preliminary inquiry does not survive a decision made pursuant to section 549 and cannot be maintained provisionally or conditionally.

However, the right to re-elect at the end of the preliminary inquiry remains available for another 15 days pursuant to section 561(1)(b) Cr. C. It is not an extension of the duration of the preliminary inquiry, but affects only the right to elect a new mode of trial without the prosecution’s consent. In this case, whether or not the appellant is entitled to the retroactive application of the amendment of section 561 Cr. C., which came into force on September 19, 2019, his motion to elect a trial before a judge and jury exceeds the applicable time limit, whether such time limit is 15 or 60 days, because he expressed this wish over 90 days after the end of the preliminary inquiry. Moreover, the appellant raised no abusive element in the prosecution’s exercise of discretion to refuse his request to re-elect.

Also, the judge did not err in deciding to admit into evidence several text messages exchanged after the period specified in the indictment. There is no general legal rule that evidence obtained after the fact is presumed inadmissible. In addition, these messages confirm dishonest acts of deceit and concealment consistent with the appellant’s subjective conscience that his actions would at the very least put the victims’ pecuniary interests at risk. They are therefore not only directly relevant, but also have great probative value with respect to the constitutive elements of fraud.

In this case, the appellant has not established any error in the judge’s decision not to exercise her discretion to exclude admissible evidence, because there was no risk of harm that offset the probative value of the text messages.

Last, he failed to establish the unreasonableness of the conviction or a significant erroneous interpretation of the evidence that could be characterized as a miscarriage of justice.

Text of the decision: http://citoyens.soquij.qc.ca