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The Supreme Court of Canada’s (“SCC”) decision in R. v. Varennes 2025 SCC 22 ("Varennes") highlights the tension between prosecutorial discretion, judicial oversight, and the protection of Charter rights under extraordinary circumstances. Varennes addresses whether a trial judge can order a judge-alone trial over the Crown’s objection during the COVID-19 pandemic. The SCC’s reasoning navigates uncharted territory, balancing procedural fairness against executive authority, and signals both the flexibility and the limits of Canadian criminal law in emergency contexts.
Facts
The appellant, Pascal Varennes, was charged with second-degree murder under s. 469 of the Criminal Code of Canada ("the Code"), which ordinarily requires a jury trial (Varennes, para 1). His trial was scheduled for September 2020, in the midst of the COVID-19 pandemic. Mr. Varennes asked the court for a judge-alone trial under s. 473(1) of the Criminal Code, citing risk of delay (Varennes, para 3). The Crown refused to consent, suggesting a jury trial was in the public interest (because of the domestic-violence context, the gravity of the charge, and the small community), and contesting that pandemic restrictions would necessarily delay the trial (Varennes, para 4). Mr. Varennes filed a motion for a judge-alone trial, and the trial judge granted the motion finding the Crown’s refusal “unfair or unreasonable” in the circumstances (Varennes, para 5). Mr. Varennes was ultimately acquitted of murder but convicted of the lesser offence of manslaughter (Varennes, para 6).
Judicial History
At first instance in the Quebec Superior Court (R. v. Varennes, 2020 QCCS 2734), the motion judge accepted the appellant’s request for a judge-alone trial (Varennes, para 20). She characterized the Crown’s refusal not as core prosecutorial discretion, but as a tactical decision that, in the context of the pandemic, was “unfair or unreasonable” (Varennes, para 20). She also weighed the risk of delay, health concerns, and the difficulties of travel and maintaining defence consultations as part of her analysis.
The Crown appealed the acquittal. The Court of Appeal of Quebec (R. v. Varennes, 2023 QCCA 136) held that the Crown’s decision under s. 473(1) should be treated as prosecutorial discretion, and only reviewable for abuse of process, applying a high threshold (Varennes, para 23-27). The Court of Appeal concluded the trial judge had erred by using a lower standard (“unfair or unreasonable”), declared the judge-alone trial a nullity, and ordered a new jury trial (Varennes, para 27).
Mr. Varennes then appealed to the SCC to resolve the underlying issue of whether a superior court judge can override the Crown’s refusal to consent, and if so, what the appropriate standard is for an overriding.
Issues
The SCC framed the appeal around three main issues:
- Whether the Court of Appeal of Quebec had jurisdiction to hear the Crown’s appeal of the trial judge’s order for a judge-alone trial;
- Whether the trial judge was entitled to order a judge-alone trial despite the Crown’s refusal under s. 473(1); and
- Whether, given the particular circumstances, the remedy of a judge-alone trial was appropriate, or whether a different remedy (such as a stay) should have been ordered.
Decision
Majority
Justice Karakatsanis, writing for the majority, allowed the appeal, setting aside the Court of Appeal’s ruling, and remanding the matter for further consideration (Varennes, para 2, 6; see also para 115). She first clarified that the Court of Appeal did have jurisdiction to consider the Crown’s appeal under section 676(1)(a) of the Code (Varennes, para 29). The Court of Appeal was wrong to require proof of abuse of process before overriding the Crown’s refusal.
On the merits, Karakatsanis J. held that the Crown’s decision whether to consent to a judge-alone trial under s. 473(1) does not fall within “core” prosecutorial discretion, as it does not directly affect the nature or extent of criminal jeopardy (Varennes, para 60). Accordingly, it can be reviewed under a superior court’s inherent jurisdiction, and the standard need not be as high as abuse of process (Varennes, para 57).
Karakatsanis J. also emphasized the availability of Charter remedies under s. 24(1). Although no clear Charter violation had been definitively established, the trial judge had found a probable future breach of the appellant’s s. 11(b) right (right to a trial within a reasonable time), based on her factual findings about likely pandemic-related delay (Varennes, para 3, 5, 11). Karakatsanis J. accepted those findings and held that the judge’s remedy of ordering a judge-alone trial was “appropriate and just” under s. 24(1), because it prevented a likely breach and avoided a stay (Varennes, para 99-106).
Karakatsanis J. rejected the Court of Appeal’s view that a stay was required; in this case, a judge-alone trial was a tailored remedy that vindicated the appellant’s rights while still allowing the prosecution to proceed on the merits (Varennes, para 103-105). In doing so, she respected the separation of powers by minimizing interference with prosecutorial discretion while ensuring fair trial rights in extraordinary circumstances (Varennes, para 101–102, 105).
Concurring
Justice Rowe, writing for himself and Justice Kasirer , also allowed the appeal and agreed with the remand, but offered different reasoning (Varennes, para 117, 181). Unlike Karakatsanis J., he held that the trial judge should not have relied on s. 24(1) of the Charter, because the appellant did not prove a Charter breach on the balance of probabilities (Varennes, para 118). He stressed that proof of a breach is a threshold requirement for a s. 24(1) remedy (Varennes, para 121).
Instead, Rowe J. grounded his analysis in the superior court’s inherent jurisdiction to review prosecutorial decisions. He reaffirmed that the Crown’s decision under s. 473(1) is a form of prosecutorial discretion, reviewable only for abuse of process (Varennes, para 153). He rejected any revived distinction between “core” and “non-core” discretion, arguing that such a distinction is inconsistent with the Court’s prior jurisprudence (Varennes, para 146–150).
He found that in the exceptional context of summer 2020 during the COVID pandemic, the Crown’s insistence on a jury trial constituted abusive conduct. This conduct “undermined the integrity of the justice system” and fell into the residual category of abuse of process under section 7 (Varennes, para 172–174).
Rowe J. noted the vital constitutional role of the jury in Canadian law as a community-based decision-maker, reflecting collective values and legitimacy, but concluded that the Crown’s conduct in this case disproportionately risked public health and justice functioning (Varennes, paras 165–168). He held that ordering a judge-alone trial, while a serious intervention, was justified and proportionate; a stay was not necessary given that a less drastic remedy was available (Varennes, para 179–180).
In his view, the trial judge’s intervention was warranted, and her remedial decision should be upheld.
Analysis
Critique of the Decision
Karakatsanis J. in the majority distinguishes between core prosecutorial discretion, which concerns decisions to charge or proceed, and procedural discretion, such as consenting to a judge-alone trial (Varennes, para 57). The Court held that procedural discretion can be subject to judicial review to prevent Charter violations. This distinction is persuasive, as it preserves the principle that procedural fairness can temper prosecutorial autonomy. In the pandemic context, prolonged delays posed a genuine risk to the appellant’s s. 11(b) right to a trial within a reasonable time (Varennes, para 3–5). By permitting the trial judge’s intervention, the Court recognized the practical reality that extraordinary circumstances may necessitate exceptional remedies.
However, this reasoning raises concerns regarding prosecutorial independence. By allowing judicial review of procedural choices, the SCC risks encouraging future challenges to Crown strategy, even in less urgent situations (Varennes, para 20). While the majority emphasizes the pandemic as a limiting factor, Varennes potentially opens the door to judicial second-guessing of tactical prosecutorial decisions. This tension is partly addressed by Rowe J., who stresses that intervention should remain exceptional and confined to circumstances where abuse-of-process review is warranted (Varennes, para 153, 172–174). The concurring reasoning preserves the traditional deference owed to the Crown while endorsing judicial flexibility in truly extraordinary cases.
Another area of concern involves the use of section 24(1) Charter remedies. Karakatsanis J. relied on the trial judge’s findings of anticipated Charter violations to justify pre-emptive relief (Varennes, para 99–106). This approach expands the traditional scope of s. 24(1), which generally requires proof of an actual breach. The majority’s reasoning enhances the Court’s ability to protect rights proactively but may dilute the evidentiary rigor usually necessary for such remedies. Rowe J.’s opinion reinforces caution, emphasizing that pre-emptive remedies should be exceptional and clearly justified (Varennes, para 118–121).
Policy Implications
Varennes has significant implications for the administration of justice during emergencies. By recognizing that pandemic-related delays may justify procedural departures, the Court implicitly sets a precedent for future crises, including public health emergencies, natural disasters, and/or security threats. This flexibility ensures that trials remain fair and efficient under exceptional circumstances. At the same time, it risks normalizing judicial intervention in prosecutorial decisions, which could shift the balance between executive and judicial authority in Canadian criminal law. Courts must be cautious to avoid creating expectations of routine oversight in ordinary circumstances.
The decision also raises questions about the broader impact on the jury system. Judge-alone trials bypass the participatory and symbolic function of juries. Rowe J. highlights the importance of this function for public confidence in the justice system (Varennes, para 165–168). While the pandemic justified this exceptional step, repeated judicial overrides in other contexts could undermine public trust and erode civic engagement in criminal trials. A more robust policy discussion on this tension between fairness and the jury’s societal role would have strengthened the majority’s reasoning.
Defence of the Decision
Despite potential critiques, the decision is defensible. The outcome protected Mr. Varennes’ Charter rights without unduly compromising the public interest or undermining the rule of law. The SCC demonstrated sensitivity to context and acknowledged the unique pressures of the pandemic and the necessity of timely trials. Moreover, the judgment illustrates the SCC's commitment to ensuring that exceptional circumstances do not justify ordinary procedural injustice. The careful framing of judicial authority and the narrow circumstances identified limit the potential for overreach, making the decision a measured exercise of the Court’s supervisory powers.
Conclusion
Varennes reflects the complex interplay between procedural fairness, prosecutorial discretion, and emergency-responsive judicial authority. It demonstrates both the flexibility and the potential risks inherent in Canadian criminal law. The majority’s willingness to authorize pre-emptive remedies under s. 24(1) and to review procedural discretion enhances the protection of Charter rights but introduces doctrinal tensions regarding prosecutorial independence and jury participation. Rowe J.’s concurrence tempers these concerns by reinforcing the exceptional nature of judicial intervention. Going forward, courts, prosecutors, and policymakers must carefully navigate these tensions, ensuring that the flexibility endorsed in Varennes is applied judiciously and does not become a precedent for routine interference in prosecutorial discretion.