Electing the Mode of Trial: Judge or Jury?

In Canada, all criminal charges are classified into three categories: a) summary conviction offences, b) indictable offences, or c) hybrid offences. Pure summary conviction offences are those that are considered less serious, whereas pure indictable offences are those considered the most serious under Canadian criminal law. Hybrid offences are those that the Crown Attorney may “elect” to proceed by indictment or summary conviction. The Crown’s decision to elect one way or another is entirely discretionary and challengeable only in clear and exceptionally rare cases of abuse of process or malicious prosecution.

Summary or Indictable Election/Offence?

Whether the criminal offence is summary, indictable, or hybrid, nearly all criminal charges commence at the Provincial level of criminal court. In Ontario, this court is known as the Ontario Court of Justice. Depending on the nature of the offence or the nature of the Crown’s decision on how to proceed (i.e. how they elect), the case may progress to a higher level of criminal court known as the Superior Court if the accused wishes.

Is there a right to a preliminary hearing or jury trial?

For any offence with a maximum penalty of 14 years or higher, an accused has a right to conduct or waive a preliminary hearing prior to a trial. All preliminary hearings are held in the Provincial level of court. Similarly, the accused may also chose to conduct a trial in the Provincial level of court without having a preliminary hearing. If the accused chooses to proceed to the Superior Court, that person may then chose to have a trial before a judge sitting without a jury, or to be tried by a jury. That mode of election and rights therein is found under section 536.1(2) of the Criminal Code of Canada which reads:

You have the option to elect to be tried by a judge without a jury or 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?

An exception to these typical choices in the mode of trial are those offences found within section 553 of the Criminal Code of Canada. Section 553 lists those crimes that the Provincial court has “absolute jurisdiction” over. This means that even when the Crown proceeds by indictment, a person does not have a right to a preliminary hearing, jury trial, or to be tried in the Superior Court.

Another exception to these typical choices are those offences listed within section 469 of the Criminal Code of Canada. “469 offences” are the most serious offences under Canadian criminal law. They include murder, treason, and terrorism offences. Unlike most indictable offences where an accused has a right to be tried before a judge alone, section 469 offences must be tried by a jury unless the Crown Attorney consents to a judge sitting alone.