JOINDER OF TRIALS/COUNTS
R. v. Clunas,  1 SCR 595 CLII
Appellant pleaded not guilty to the indictable offence of assault causing bodily harm and to assault (which was dealt with summarily). The charges arose from separate incidents. When appellant appeared on the assault causing bodily harm charge, he elected trial before a provincial court judge thereby foregoing a preliminary inquiry. Both matters were put over to the same date. Defence counsel, when the matter came on to be heard, proposed that it would be more efficient to deal with both charges at once and the Crown consented. Appellant was convicted of both charges.
Appellant's appeal to the Summary Conviction Appeal Court from conviction for assault was not resolved when the appeal from conviction for assault causing bodily harm was heard and dismissed by the Court of Appeal.
At issue here were: (1) whether the proceedings constituted two separate trials with the evidence in one trial applying in the other trial; (2) whether a court has jurisdiction to try two separate informations in a single trial; (3) whether a summary conviction offence and an indictable offence can be properly joined and tried together; and (4) whether the proceedings constituted a procedural irregularity, and if so, whether s. 686(1)(b)(iv) of the Criminal Code could be applied to uphold a conviction.
Held: The appeal should be dismissed.
When joinder of offences, or of accuseds, 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 occur only when, in the court's opinion, it is in the interests of justice and the offences or accuseds could initially have been jointly charged.
Here, a trial was conducted simultaneously as regards two distinct informations. This was done at the suggestion of the defence and, therefore, with the accused's consent and that of the Crown.
While an elaborate procedure is provided under the Criminal Code for joint trials, all that has to be done is that, to the extent possible, the same procedure should be followed when joining indictments.
Accused persons being dealt with in separate informations at the same time should not be any more compellable against each other, especially in light of s. 11(c) of the Canadian Charter of Rights and Freedoms, than when tried on one single information or indictment.
When two or more accused in different informations are charged with the same offence or with different offences, if they are proceeded against jointly, they will not be compellable one against the other.
When the Crown chooses to proceed at the same time, the Crown then waives the right to call one accused against the other, as is the case of proceeding against the two accused on the same document.
An accused who might wish to testify with respect to only one information should not and would not give his or her consent to a joint trial; and, when consent is withheld, under such circumstances it would be inappropriate for the judge to order a joint trial.
Joinder can be effected between charges for summary convictions and charges for indictable offences, notwithstanding the difference in procedure. The difference of the process as regards indictable offences and summary convictions must, however, be kept in mind. That indictable offences must on some occasions, and may in others, be tried by a judge and a jury, is an impediment to proceeding jointly when before that court with a summary conviction. That preliminary inquiries are available for most indictable offences is another impediment for the joinder of trials.
Summary convictions should be joined with indictable offences only where the accused has waived the right to be tried in a higher court (either with or without a jury) and has also foregone his or her right to a preliminary hearing. Joinder therefore may occur only where trial on the indictable offence is to take place before the provincial court.
In the event of any conflict as to the applicable procedure, indictable offence procedures should apply.
Where an issue common to both informations has gone to the Summary Conviction Appeal Court and the Court of Appeal, the Summary Conviction Appeal Court should await decision by the higher court.
Proceeding jointly here did not constitute a procedural irregularity.
Phillips and Phillips v. R 1983 CanLII 161 (S.C.C.),  2 S.C.R. 161, the court stated the following in deciding whether or not to join informations:
One may consider as well the case of an accused charged in two separate indictments or informations with difference offences. It may be advantageous for him to testify with respect to one charge but not to the other. Such an advantage is lost if both indictments are tried together.
This problem to be sure may arise where an accused is charged with separate counts on one indictment or information, but where this occurs he enjoys the protection of the detailed procedural provisions of the Code relating to severance.
While in retrospect, this is to say, from the vantage point of the appellate courts, it may be possible in any given case to conclude that no prejudice resulted from a joinder for trial of two indictments or informations, it would be impossible for a trial judge to foresee at the outset of the trial all possible consequences of such a joinder.
The dangers then of prejudice and injustice are such that they outweigh any advantage or consideration of efficiency thought to be gained by the joinder.