Supreme Court

Werner v. HMTQ, 2003 NWTSC 35
Date: 20030625
Docket: S-1-CR-2003000014

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HARVEY WERNER

     Appellant


- v -


HER MAJESTY THE QUEEN

     Respondent


Transcript of the Oral Judgment on Appeal by The Honourable Justice J. Z. Vertes, sitting in Hay River, in the Northwest Territories, on the 16th day of June, A.D., 2003.


APPEARANCES:

Mr. J. Burke:   Counsel for the Crown

Mr. H. Werner:   Representing Himself


THE COURT:   This is an appeal by Harvey Werner from his conviction on three offences after trial in Territorial Court. Mr. Werner had been charged with four offences, one of which was a failure to wear a seat belt contrary to the Motor Vehicle Act; another one was failure to produce proof of insurance, also contrary to the Motor Vehicle Act; and then there were two offences of failing to appear in court contrary to the Summary Conviction Procedures Act. All of these charges were summary conviction matters, and each one was contained in a separate Information.

Mr. Werner has argued a number of grounds of appeal, but I need to deal with only one. That one was what Mr. Werner referred to as a failure to be given a fair trial, but which essentially boiled down to an issue of criminal procedure, that being whether he was properly tried in one trial for all four of fences.

The issue arose early on in the trial. At the commencement of the trial the learned trial judge asked if he was going to hear all of the charges at the same time; that is, all of the evidence at the same time on all charges. The Crown Attorney at the trial stated, and I quote:

My application was going to be that we deal with the two Motor Vehicle Act Informations on one trial, and then call the evidence on the two fail to appears, but I could also do it all at once,

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Sir.

The trial judge responded:

Well, I would prefer that you do it all at once, subject to what Mr. Werner says, simply because if I make rulings on one set I do not want that to be the basis of some application.

The trial judge then turned to Mr. Werner and asked him if he had any objections if he heard all of the matters at the same time. Mr. Werner then responded “No, I don't want them all set at the same time, Your Honour.” The trial judge replied “Okay.” Mr. Werner then said “I get a little confused with what's going on,” and the trial judge then said “Go ahead.” Crown counsel then called the first witness.

Later on, partway into the direct-examination of the first witness, Mr. Werner raised an objection about the witness referring to one charge when he thought he was talking about another charge, and the trial judge informed him, “We are hearing everything. Everything occurred at the same time, Mr. Werner.” The appellant replied “Sir, I'm working on I believe that we were doing one charge at a time.” The trial judge replied “Well, I am hearing all of the evidence, Mr. Werner. Everything occurred at the same time, so I am going to hear this evidence. Go ahead.”

Leaving aside for the moment whether the trial judge was correct or not as to whether everything did

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occur, as he put it, at the same time, what happened here raises the technical question of whether a summary conviction court judge has jurisdiction to proceed in one trial on separate Informations. This is not a question of proceeding on multiple counts in one Information. These are all separate Informations, and indeed the Criminal Code is silent on that point. The common law did not allow for such a procedure.

In 1992 the Supreme Court of Canada addressed this question in the case of Clunas, [1992] 70 C.C.C. (3d) 115. The very question it had to address was whether a Court has jurisdiction to try two separate Informations in a single trial. The Supreme Court of Canada in effect modified the common law on this point, and held as follows.

First, an accused may not, generally, be concurrently tried on separate Informations in a nonjury trial unless the accused expressly consents to such procedure. However, and this is the second point, a Court has power to order a joint trial of two or more Informations if the offences could have been joined in a single Information and provided, of course, that they are to be tried by the same mode of trial.

Chief Justice Lamer, writing for the Court in Clunas, said this:

I would say that when joinder of offences, or of accuseds for that

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matter, is being considered, the court should seek the consent of both the accused and the prosecution. If consent is withheld, the reasons should be explored. Whether the accused consents or not, joinder should only occur when, in the opinion of the court, it is in the interests of justice and the offences or accuseds could initially have been jointly charged.

In my respectful opinion, in this particular case, consent was expressly not forthcoming. The reasons were not explored, nor was there any consideration given as to whether the interests of justice were best served by a joint trial of these separate charges, and no consideration was given as to whether the offences could initially have been jointly charged.

It is not for me to speculate as to what would have been the decision if such an investigation or inquiry had been conducted, but the record reveals that there was no exploration of these issues, that consent was explicitly not forthcoming, and, in my respectful opinion, this comes directly up against the issue identified in Clunas, that being that in the absence of consent, or in the absence of a considered conclusion that the interests of justice so require it, there is no general jurisdiction to try separate offences in separate Informations in one trial.

This, in my respectful opinion, is an error of

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law and, while I may not favour the outcome, this is not something that merely goes to a question of whether it is an innocuous error, it is a jurisdictional question, and therefore I have no alternative but to allow the appeal.

The convictions are therefore set aside, all charges are remanded, the three charges; that is the failure to wear a seat belt and the two fail to appear charges, the ones on which the accused was convicted, those convictions are set aside and all three charges are sent back to the Territorial Court for new trials. It is up to the presiding judge at the new trials to determine whether the interests of justice warrant having one joint trial on all three charges or not.

Thank you, Mr. Werner. Mr. Burke, may I impose on you to take out a formal order?

MR. BURKE:   Yes, Sir, that's no problem. I will do that.

THE COURT:   Thank you. You need not obtain Mr. Werner's consent to the form, but I ask, once it is filed, that a copy of it be mailed to Mr. Werner.

MR. WERNER:  So I'm having a new trial?

THE COURT:   Mr. Werner, I have set aside the convictions on the highly technical ground that dealt with this question of whether you can have all charges proceed in one trial, and I have sent it back for new

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trials. You are not acquitted, I have just sent them back to the Territorial Court for new trials. So you will have to pay attention, and at some point you will be notified of the new date, and you will have to appear in court once again.

MR. WERNER:  So now I can subpoena the people for the new trial?

THE COURT:   Yes.

MR. WERNER:  Thank you, Your Honour.


Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 off the Supreme Court Rules

Joel Bowker
Court Reporter

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