Canadian Criminal Procedure and Practice/Election

Crown Election
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."

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.

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

The power to elect is at the discretion of the Crown.

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

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. The judge cannot interfere by refusing to allow re-election.

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

Where a proceedings progresses to its conclusion without the Crown having made an 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".

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

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

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.

Defence Election
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:

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 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
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.

Re-election
The relevant provisions state as follows:

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.

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

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