Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

R. v. Varennes

Case summary

The Supreme Court of Canada confirms that a trial judge can order a judge-alone trial, even when the Crown refuses to consent, if doing so is necessary to protect the Charter rights of the accused.

This appeal asks the Court to clarify when a Superior Court judge can order a judge-alone trial for a murder charge, despite the Crown’s refusal to consent.

Pascal Varennes was charged with the second degree murder of his spouse. His jury trial was scheduled for September 2020, during the COVID-19 pandemic. In June 2020 he requested a judge-alone trial, which is allowed for a murder charge under the Criminal Code if both the accused and the Crown consent to this mode of trial. Mr. Varennes argued that potential pandemic-related delays to jury trials risked violating his right to be tried within a reasonable time as set out in section 11(b) of the Canadian Charter of Rights and Freedoms. Crown prosecutors refused to consent to a judge-alone trial.

Mr. Varennes filed a motion seeking an order for a trial by judge alone before the Superior Court. The trial judge found that the Crown’s refusal to consent to a trial by judge alone was “unreasonable or unfair in the circumstances” and proceeded with a judge-alone trial. At the end of the trial, the judge acquitted Mr. Varennes of second degree murder but convicted him of manslaughter.

The Crown appealed the acquittal. It argued that the trial judge applied the wrong standard in overriding the Crown’s refusal to consent, which rendered the trial invalid. The Court of Appeal of Quebec concluded that the Crown’s decision whether to consent to a judge-alone trial falls within the prosecution’s discretion; the trial judge therefore erred in law by overriding that decision, so the Court of Appeal ordered a new trial. Mr. Varennes appealed to the Supreme Court.

The Supreme Court has allowed Mr. Varennes’s appeal, set aside the Court of Appeal’s judgment, and sent the matter back to the Court of Appeal to decide the Crown’s other grounds of appeal.

In this case, the trial judge was justified in ordering a judge-alone trial to avoid the serious risk of delay caused by the pandemic, which would likely have violated Mr. Varennes’ Charter right to be tried within a reasonable time.

Writing for a majority of the Court, Justice Karakatsanis said that the Court of Appeal had jurisdiction to hear the Crown’s appeal of the trial judge’s decision to hold a judge-alone trial. However, the Court of Appeal erred by requiring proof that the Crown’s refusal to consent to a judge-alone trial was an abuse of process, and in ordering a new trial. A decision of the Crown to consent or not to a judge-alone trial does not fall within the Crown’s core prosecutorial discretion and can be reviewed by a superior court under its inherent jurisdiction, on a standard lower than abuse of process. It is not necessary, however, to decide the precise standard, given that section 24(1) of the Charter also applies in this case as another legal route through which the trial judge could override the Crown’s decision. Since the trial judge found that pandemic-related delays associated with a jury trial would likely have violated Mr. Varennes’s right to be tried within a reasonable time under section 11(b) of the Charter, she had jurisdiction to order a judge-alone trial as a section 24(1) Charter remedy in this case.