Canadian Criminal Procedure and Practice/Election

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Crown Election[edit]

The election process is a "means by which the criminal law provides the Attorney General with sufficient flexibility to take the specific circumstances of each case into account and ensure that, in each case, the interests of justice are served." [1]

The Crown has the power of election on hybrid criminal offences. A hybrid offence is an offence defined in the Criminal Code as having both summary and indictable classes of punishment. Hybrid offences are deemed to be indictable until the Crown elects to proceed summarily.[2]

No offences with maximum penalty of 14 years or life are hybrid offences.[3]

The power to elect is at the discretion of the Crown.[4]

Proceedings on summary offences must commence within six months of the incident date. (s. 786(2)) That is, unless the Crown and Defence agree.[5]

It is acceptable practice to elect indictable in order to allow the prosecution to proceed, such as where the 6 month time limit has expired, and then re-elect summarily with consent.[6] The judge cannot interfere by refusing to allow re-election.[7]

Hybrid offences are deemed to be indictable "unless and until the Crown elects to proceed summarily".[8]

Where a proceedings progresses to its conclusion without the Crown having made no election on a hybrid offence and the charge was within 6 months of the incident, the Crown is deemed to have elected to proceed by "summary conviction".[9]

However, where the accused elects mode of trial even though the Crown failed to make an election, the trial will be deemed indictable.[10]

Whether a matter is part of the discretionary core functions of the Attorney General is a question of law.[11]

The 6 month limitation under s. 786 does not count from the beginning of the offence where it spans several days. An offence spanning a timeframe will be valid for the entire span as long as the end date is within the 6 month limit.[12]

  1. R. v. Century 21 Ramos Realty Inc. and Ramos, 1987 CanLII 171 (ON CA)
  2. R. v. Marr, 2005 NSCA 73 at para. 20; R. v. Dudley 2009 SCC 58 at para. 21
  3. See List of Offences by Penalty
  4. Smythe 1971 SCR 680
  5. s. 786(2)
  6. Burke (1992), 78 C.C.C. (3d) 163 (NLCA)
  7. R. v. Linton (1994) 90 CCC 528
  8. R. v. Dudley 2009 SCC 58 para. 21 [1]; see also R. v. Paul-Marr, 2005 NSCA 3 at para 20; see also s.34 of the Interpretation Act
  9. R. v. Mitchell, 1997 CanLII 6321 (ON CA)
    R. v. Marcotullio (1978), 39 C.C.C. (2d) 478 (Ont. C.A.)
    R. v. W. (W.W.) (1985), 20 C.C.C. (3d) 214 (Man. C.A.)
  10. R. v. Mitchell (1997), 121 C.C.C. (3d) 139 (Ont. C.A.)
  11. R v Nixon, 2009 ABCA 289 at para. 13
  12. R. v. Nadir, 2004 CanLII 59965 (ON CA)

Defence Election[edit]

Unless the Code provides otherwise, where an accused is charged with an indictable offence or a hybrid offence which was elected to proceed indictably, the accused has the right of electing the mode of trial under s. 536(2).

The defence election consist of trial by the following methods:

  1. trial by a provincial court judge;
  2. trial by a superior court judge with a judge and jury, with a preliminary inquiry
  3. trial by a superior court judge with a judge alone, with a preliminary inquiry
  4. trial by a superior court judge with a judge and jury, without a preliminary inquiry
  5. trial by a superior court judge with a judge alone, without a preliminary inquiry

The Court is required to read the "election address" unless it is waived by the accused. The address is set out in s. 536:

s.536...

Election before justice in certain cases
(2) If an accused is before a justice charged with an indictable offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

The right of election is not available for indictable offences that are either "absolute jurisdiction" offences or "exclusive jurisdiction offences".

Under s. 471, a person charged with an indictable offence is presumed to be be tried by a judge and jury unless they consent to otherwise.

An election to provincial court under s. 536(3) requires that the judge endorse the information showing the election and direct the matter before a provincial court judge for the purpose of taking a plea.

Absolute and Exclusive Jurisdiction[edit]

Under s. 553, the Provincial Court has jurisdiction that is "absolute and does not depend on the consent of the accused where the accused is charged in an information" with several classes of offences. These are classified as "absolute jurisdiction" offences.

Under section 469, courts of criminal jurisdiction, being provincial courts, have judisdiction over all indictable offences except for those listed in the following table.

Absolute Jurisdiction (s. 553) Exclusive Jurisdiction (s. 469)
  • treason (s. 47)
  • alarming Her Majesty (s. 49)
  • intimidating Parliament or a legislature (s. 51)
  • inciting to mutiny (s. 53)
  • seditious offences (s. 61)
  • piracy (s. 74) and piratical acts (s. 75)
  • attempts of any of the above listed
  • murder (s. 235) and conspiracy to commit murder
  • offences under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
  • the offence of being an accessory after the fact to high treason or treason or murder;
  • bribery of a holder of a judicial office (s. 119)

Re-election[edit]

The relevant provisions state as follows:

Right to Re-elect
561 (2) An accused who elects to be tried by a provincial court judge or who does not request a preliminary inquiry under subsection 536(4) may, not later than 14 days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor.

(4) idem — Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect together with the written consent of the prosecutor, where that consent is required, to the provincial court judge before whom the accused appeared and pleaded or to a clerk of the court.

CCC

After the initial election, the Defence may change the mode of trial by re-electing under s. 561. The Defence is permitted to elect from provincial court to Superior Court judge alone or judge and jury (s.561(2)). This will only be possible without consent of the Prosecution when it is within the 14 day time limit.

There is a discretion with the provincial court judge to allow re-election during a trial to allow the accused to re-elect without the Crown's consent.[1]

The accused may only re-elect once, after which they have no further discretion of election.[2]

See also: The Practitioner’s Criminal Precedents, Second Edition, Document 3.30.


  1. Re Diamonti (1981), 61 CCC (2d) 483 (BCSC); R v Jonkers (1991) unreported (BCPC)
  2. R v Ishmail, (1981) 6 WCB 148 (BSCS)

See also[edit]