When Can a Judge Overrule the Crown? What R v Varennes Means for Defence Lawyers

Summary: In R v Varennes, the Supreme Court of Canada clarified the limits of Crown authority when it comes to consenting to judge-alone trials. The Court ruled that in rare and urgent cases—especially when a delay could result in a Charter breach—a judge can override the Crown’s refusal and order a judge-alone trial. This decision is a significant development for defence lawyers, as it confirms that procedural decisions like trial format do not fall under the Crown’s untouchable “core prosecutorial discretion.”

 

When Can a Judge Overrule the Crown?                             What R v Varennes Means for Defence Lawyers

 

On July 11, 2025, the Supreme Court of Canada released its
decision in R v Varennes, 2025 SCC 22. It’s a key case for criminal
defence lawyers across Canada. It confirms that in rare but serious cases, a
judge can step in and order a judge-alone trial, even if the Crown refuses to
consent.

What Happened 

Pascal Varennes was charged with second-degree murder. His
trial was scheduled for September 2020, during the height of the COVID-19
pandemic. Varennes asked for a judge-alone trial under section 473(1) of the
Criminal Code. The Crown said no.

The Crown argued that the public had an interest in a jury
trial, especially since it was a domestic violence case in a small community.
Varennes argued that waiting for a jury would delay the trial too much and
would violate his right under section 11(b) of the Charter to be tried within a
reasonable time.

The judge agreed with Varennes. She said the Crown’s refusal
was unfair in the circumstances and ordered a judge-alone trial.

The trial went ahead. Varennes was acquitted of murder but
convicted of manslaughter. The Crown appealed. The Quebec Court of Appeal sided
with the Crown, said the trial was invalid, and ordered a new one.

What the Supreme Court Decided 

The Supreme Court disagreed with the Quebec Court of Appeal.

It said the judge did have the power to order a judge-alone
trial when there was a clear risk of a Charter breach. The Crown’s refusal to
agree to a judge-alone trial was not “core prosecutorial discretion.” That
means it was not the kind of decision that courts must stay out of. The mode of
trial affects how the case is heard, not whether a case is brought or what
charges are laid.

The Court also said that Charter remedies can be used to
stop a future rights violation. If a judge finds that delay is likely to
happen, they do not have to wait until it actually happens. The judge can act
to prevent the breach. That is exactly what happened here.

 

The Court restored the original conviction and sent the rest
of the Crown’s appeal back to the Court of Appeal for review.

Why it Matters for Defence Lawyers

This case is a practical tool.

It confirms that you can challenge the Crown’s refusal to
consent to a judge-alone trial in serious cases where delay is a real problem.
The Court was clear. Judges can use their powers under section 24(1) of the
Charter to prevent a trial from being delayed beyond what the law allows.

It also draws a clear line between “core” prosecutorial
decisions and ones that affect procedure but not the substance of the
prosecution. The decision to proceed with a jury is important, but not
untouchable.

 

Finally, the Court respected the context. This happened
during the early days of COVID, before vaccines, when jury trials were not only
hard to schedule but posed real risks to health and fairness. The judge made a
reasonable call, and the Supreme Court backed her up.

Conclusion

Defence lawyers now have clear support for asking for
judge-alone trials in special cases, even if the Crown refuses. If there is a
real risk that delay will cause a Charter breach, judges can step in. And they
should.

Contact us online or call 306-359-0202 to schedule a consultation. Whether in-person or virtual, we’re here to help you achieve the best possible outcome.