R. v. Mitchell

R. v. Mitchell

The Court held the trial judge was not functus officio but, in any event, the requirements of s.561(7) were effectively waived by the appellant through competent counsel; accordingly the re‑election was valid, the conviction stood, and the appeal was dismissed.

Citation
2020 ONCA 187
Parties
Respondent: Her Majesty the Queen; Appellant: Hugh Mitchell
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
9 March 2020
Procedural Posture
Criminal Appeal From Conviction / Appeal From Conviction and Sentence to the Court of Appeal
Outcome
Appeal dismissed; conviction and sentence affirmed.
Legal Topics
Re‑election Under S.561(7) of the Criminal Code, Waiver by Counsel, Functus Officio and Trial Judge Jurisdiction, Preliminary Inquiry Procedure, Sentencing
Source Language
English
Criminal Law Sexual Offences Appellate Procedure Re‑election Under S.561(7) of the Criminal Code Waiver by Counsel Functus Officio and Trial Judge Jurisdiction Preliminary Inquiry Procedure Sentencing

Case Brief

Summary, issues, holding and outcome

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Parties

Her Majesty the Queen

Respondent

Hugh Mitchell

Appellant

Procedural Posture

Criminal Appeal From Conviction / Appeal From Conviction and Sentence to the Court of Appeal

Legal Issues

  1. 1 Whether the re‑election to be tried summarily under s.561(7) was valid given the statutory wording was not read to the accused
  2. 2 Whether the trial judge was functus officio and therefore unable to re‑open proceedings to entertain a further re‑election
  3. 3 Whether counsel validly waived the accused's right under s.561(7)

Ratio Decidendi

The Court held the trial judge was not functus officio but, in any event, the requirements of s.561(7) were effectively waived by the appellant through competent counsel; accordingly the re‑election was valid, the conviction stood, and the appeal was dismissed.

Court Disposition

Appeal dismissed; conviction and sentence affirmed.

Orders

  • Appeal dismissed.
  • Conviction and sentence affirmed.