Defence Election

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General Principles

See also: Crown Election

Where an accused is charged with an indictable offence, or a hybrid offence which was elected to proceed by indictment, the accused has the right to chose (or "elect") the mode of trial under s. 536(2), unless the Code specifies otherwise.[1]

Where the offence has a maximum penalty of less than 14 years, the defence election consists of the following:

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

Where the offence has a maximum penalty of 14 years or life, the defence election consists of the following:

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

Section 554(1) authorizes a provincial court judge to have jurisdiction to try indictable matters (other than offences listed in 469 or 553) only where the accused elects to be tried by a provincial court judge. That section states:

Trial by provincial court judge with consent

554 (1) Subject to subsection (2) [trial by provincial court judge with consent – nunavut], if an accused is charged in an information with an indictable offence other than an offence that is mentioned in section 469 [exclusive jurisdiction offences], and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553 [absolute jurisdiction offences], a provincial court judge may try the accused if the accused elects to be tried by a provincial court judge.
[omitted (2)]
R.S., 1985, c. C-46, s. 554; R.S., 1985, c. 27 (1st Supp.), ss. 105, 203; 1999, c. 3, s. 38; 2002, c. 13, s. 31.
[annotation(s) added]

CCC


Note up: 554(1)

Presumption

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.[2]

Election to the entire information

The election chosen by defence must be applied to the entire information, not divided between counts.[3]

  1. The right of election is not available for indictable offences that are either "absolute jurisdiction" offences or "exclusive jurisdiction offences". See below for details
  2. s. 471 states: "Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury."
  3. R v Anderson, 1971 CanLII 1304 (BC SC), per Macfarlane J

Procedure

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:

536
[omitted (1), (2) and (2.1)]

Procedure where accused elects trial by provincial court judge

(3) Where an accused elects to be tried by a provincial court judge, the justice shall endorse on the information a record of the election and shall

(a) where the justice is not a provincial court judge, remand the accused to appear and plead to the charge before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed; or
(b) where the justice is a provincial court judge, call on the accused to plead to the charge and if the accused does not plead guilty, proceed with the trial or fix a time for the trial.


[omitted (4), (4.1), (4.11), (4.12), (4.2), (4.3) and (5)]
R.S., 1985, c. C-46, s. 536 R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.

CCC


Note up: 536(3)

A failure to take an election from the accused does not lose jurisdiction of the court.[1]

No Judge Seized

Once an election has been made, the provincial court level judge does not get seized with either the trial or the preliminary inquiry.[2]

Waiver of Procedure

When electing the mode of trial, the accused or his counsel may waive formal compliance to the procedural requirements found in s. 536(2). To be valid, the waiver must be "clear, unequivocal, and informed."[3]

  1. R v Geszthelyi, (1977) 33 CCC (2d) 543 (BCCA), 1977 CanLII 1921 (BC CA), per Seaton J
  2. R v Danchella, 1985 CanLII 639 (BC CA), per Craig JA
  3. R v George, 2016 BCCA 229 (CanLII), per Lowry JA, at para 4
    Korponay v Canada (Attorney General), 1982 CanLII 12 (SCC), per Lamer J
    R v Mitchell, 1997 CanLII 6321 (ONCA), per Doherty JA
    R v Vuong, 2010 ONCA 798 (CanLII), per Sharpe JA

Two or More Accused

Conflicting elections may arise where there is two or more accused. Section 567 addresses this issue, stating:

Mode of trial when two or more accused

567 Despite any other provision of this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)], if two or more persons are jointly charged in an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the justice, provincial court judge or judge may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury.
R.S., 1985, c. C-46, s. 567; R.S., 1985, c. 27 (1st Supp.), s. 111; 2002, c. 13, s. 43.
[annotation(s) added]

CCC


Note up: 567

This section provides the discretionary power to ignore the conflicting elections and record a judge and jury election for all parties.

Upon receiving conflicting elections, a provincial court judge may not hold a trial simultaneously with a preliminary inquiry.[1]

Election for Preliminary Inquiry

536
[omitted (1), (2), (2.1), (3), (4), (4.1), (4.11) and (4.12)]

Preliminary inquiry if two or more accused

(4.2) If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (4) [request for preliminary inquiry], a preliminary inquiry must be held with respect to all of them.
[omitted (4.3) and (5)]
R.S., 1985, c. C-46, s. 536 R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.
[annotation(s) added]

CCC


Note up: 536(4.2)

  1. R v Christie, 2003 CanLII 24397 (ON SC), per Dambrot J , at para 20

Endorsement for Section 469 Offences

536
[omitted (1), (2), (2.1), (3), (4) and (4.1)]

Endorsement on the information — other accused charged with an offence punishable by 14 years or more of imprisonment

(4.11) If an accused is before a justice, charged with an offence listed in section 469 that is punishable by 14 years or more of imprisonment, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing whether the accused or the prosecutor has requested that a preliminary inquiry be held.
[omitted (4.12), (4.2), (4.3) and (5)]
R.S., 1985, c. C-46, s. 536 R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.

CCC


Note up: 536(4.11)

Endorsement for Mixed Prelim Offences

536
[omitted (1), (2), (2.1), (3), (4), (4.1) and (4.11)]

Endorsement on the information — accused referred to in subsection (2.1)

(4.12) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) [deemed election where lower judge declined to record] to have elected to be tried by a court composed of a judge and jury, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be.
[omitted (4.2), (4.3) and (5)]
R.S., 1985, c. C-46, s. 536 R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.

CCC


Note up: 536(4.12)

Election Address

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
[omitted (1)]

Election before justice — 14 years or more of imprisonment

(2) If an accused is before a justice, charged with an indictable offence that is punishable by 14 years or more of imprisonment, other than an offence listed in section 469 [exclusive jurisdiction offences], 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?


Election before justice — other indictable offences

(2.1) If an accused is before a justice, charged with an indictable offence — other than an offence that is punishable by 14 years or more of imprisonment, an offence listed in section 469 that is not punishable by 14 years or more of imprisonment or an offence over which a provincial court judge has absolute jurisdiction under section 553 [absolute jurisdiction offences]—, 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; 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. How do you elect to be tried?


[omitted (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3) and (5)]
R.S., 1985, c. C-46, s. 536 R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.
[annotation(s) added]

CCC


Note up: 536(2) and (2.1)

Waiver of Address

The duty to read the election address under s. 536(2) can be waived by the accused, either by himself or by counsel.[1]

The address can be waived expressly or by implication.[2] Instructions to "set the matter down for trial" when it is before the provincial court can be sufficient to amount to a waiver of the address and a choice of provincial court.[3]

Procedural Errors

Some cases suggest that any irregularities in the reading of the election causes a jurisdictional error that cannot be cured.[4] Others suggest that such errors are curable under the curative proviso under s. 686(1)(b) where there is no prejudice to the accused.[5]

There suggestion that where the election was not properly entered would require either an appeal or a mistrial.[6]

  1. R v Mitchell, 1997 CanLII 6321 (ON CA), per Doherty JA, at para 30 (“An accused may personally, or through counsel, waive compliance with a procedure like s.536(2) which has been enacted for the protection of the accused")
  2. R v Carver, 2013 ABPC 51 (CanLII), per Rosborough J, at para 12
  3. see R v Wunderlich, 2014 ABCA 94 (CanLII), per curiam (2:1)
  4. See R v Leske (1967), [1968] 1 CCC 347, 60 WWR 760 (Alta SC AD), 1967 CanLII 681 (AB CA), per Cairns JA
    also referenced in R v Lamoureux, 2013 ABCA 85 (CanLII), per curiam - comments that this is not applicable anymore since the addition of the curative proviso in s. 686
    See also R v Trites, 2011 NBCA 5 (CanLII), per Richard JA, at para 41
    R v Sewell, 2003 SKCA 52 (CanLII), per Bayda CJ , at para 62
  5. See Lamoureux, supra
    R v Joinson, 1986 CanLII 1195 (BC CA), (1986), 32 CCC (3d) 542 (BCCA), per MacFarlane JA
    R v Cloutier, 1988 CanLII 199 (ON CA), per Goodman JA
  6. see comments Wunderlich, supra, at para 13

Judge-Alone Election

Judge’s Jurisdiction with Consent
Trial by judge without a jury

558 If an accused who is charged with an indictable offence, other than an offence mentioned in section 469 [exclusive jurisdiction offences], elects under section 536 [trial of absolute jurisdiction offences] or 536.1 [trial of absolute jurisdiction offences – Nunavut] or re-elects under section 561 [right of re-election] or 561.1 [right of re-election - Nunavut] to be tried by a judge without a jury, the accused shall, subject to this Part, be tried by a judge without a jury.
R.S., 1985, c. C-46, s. 558; R.S., 1985, c. 27 (1st Supp.), s. 108; 1999, c. 3, s. 41.
[annotation(s) added]

CCC


Note up: 558

Duty of judge

560 (1) If an accused elects, under section 536 [trial of absolute jurisdiction offences] or 536.1 [trial of absolute jurisdiction offences – Nunavut], to be tried by a judge without a jury, a judge having jurisdiction shall

(a) on receiving a written notice from the sheriff or other person having custody of the accused stating that the accused is in custody and setting out the nature of the charge against him, or
(b) on being notified by the clerk of the court that the accused is not in custody and of the nature of the charge against him,

fix a time and place for the trial of the accused.

Notice by sheriff, when given

(2) The sheriff or other person having custody of the accused shall give the notice mentioned in paragraph (1)(a) [duty to set trial on election for judge-alone trial – accused in custody] within twenty-four hours after the accused is ordered to stand trial, if the accused is in custody pursuant to that order or if, at the time of the order, he is in custody for any other reason.

Duty of sheriff when date set for trial

(3) Where, pursuant to subsection (1), a time and place is fixed for the trial of an accused who is in custody, the accused

(a) shall be notified forthwith by the sheriff or other person having custody of the accused of the time and place so fixed; and
(b) shall be produced at the time and place so fixed.
Duty of accused when not in custody

(4) Where an accused is not in custody, the duty of ascertaining from the clerk of the court the time and place fixed for the trial, pursuant to subsection (1) [duty to set trial on election for judge-alone trial], is on the accused, and he shall attend for his trial at the time and place so fixed.
(5) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 109]
R.S., 1985, c. C-46, s. 560; R.S., 1985, c. 27 (1st Supp.), ss. 101(E), 109; 1999, c. 3, s. 42; 2002, c. 13, s. 36.
[annotation(s) added]

CCC


Note up: 560(1), (2), (3), and (4)

Election Without Requesting Preliminary Inquiry

536
...

When no request for preliminary inquiry

(4.3) If no request for a preliminary inquiry is made under subsection (4) [request for preliminary inquiry], the justice shall fix the date for the trial or the date on which the accused must appear in the trial court to have the date fixed.
...

[annotation(s) added]

CCC


Note up: 536

Deeming an Electing

See also: Direct Indictments

A party who by action or inaction refuses to make a choice of election the court may "deem" an election by entering an election on the accused's behalf under s. 565 for a judge and jury trial with a preliminary inquiry.

Section 565 states:

Election deemed to have been made

565 (1) If an accused is ordered to stand trial for an offence that, under this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)], may be tried by a judge without a jury, the accused shall, for the purposes of the provisions of this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)] relating to election and re-election, be deemed to have elected to be tried by a court composed of a judge and jury if

(a) the justice of the peace, provincial court judge or judge, as the case may be, declined to record the election or re-election of the accused under section 567 [mode of trial where more than one accused] or subsection 567.1(1) [mode of trial where more than one accused – nunavut]; or
(b) the accused does not elect when put to an election under section 536 [trial of absolute jurisdiction offences] or 536.1 [trial of absolute jurisdiction offences – Nunavut].

(1.1) [Repealed, 2019, c. 25, s. 260]

[omitted (2) [deemed election on direct indictment] and (3) [notice of re-election on direct indictment]]

Application

(4) Subsections 561(6) [time and place for re-election] and (7) [proceedings on re-election], or subsections 561.1(8) [time and place for re-election — Nunavut] and (9) [proceedings on re-election — Nunavut], as the case may be, apply to a re-election made under subsection (3) [notice of re-election on direct indictment].

R.S., 1985, c. C-46, s. 565; R.S., 1985, c. 27 (1st Supp.), s. 111; 1999, c. 3, s. 46; 2002, c. 13, s. 41; 2008, c. 18, s. 23; 2019, c. 25, s. 260.
[annotation(s) added]

CCC


Note up: 565(1) and (4)

A judge may deem an election even where full disclosure is not complete.[1]

  1. R v Jonsson, 2001 SKCA 53 (CanLII), per Lane JA - court overturns quashing of a deemed election. QB quashed order as disclosure was not complete.

Recording Supreme Court Election

536
[omitted (1), (2), (2.1), (3) and (4)]

Endorsement on the information — accused referred to in subsection (2)

(4.1) If an accused referred to in subsection (2) [election before justice – 14 years or more of imprisonment] elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) [deemed election where lower judge declined to record] to have elected to be tried by a court composed of a judge and jury, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing

(a) the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be; and
(b) whether the accused or the prosecutor has requested that a preliminary inquiry be held.

[omitted (4.11), (4.12), (4.2), (4.3) and (5)]
R.S., 1985, c. C-46, s. 536; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.
[annotation(s) added]

CCC


Note up: 536(4.1)

Young Accused Persons

Attorney General Override

See also: Defence Election for Young Accused

Section 568 provides for a rarely used power of the attorney general to override any Defence election that is not for trial by judge and jury and require that the trial be held before a jury.

Attorney General may require trial by jury

568. Even if an accused elects under section 536 [trial of absolute jurisdiction offences] or re-elects under section 561 [right of re-election] or subsection 565(2) [deemed election on direct indictment] to be tried by a judge or provincial court judge, as the case may be, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge or provincial court judge has no jurisdiction to try the accused under this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)] and a preliminary inquiry must be held if requested under subsection 536(4) [request for preliminary inquiry], unless one has already been held or the re-election was made under subsection 565(2) [deemed election on direct indictment].
R.S., 1985, c. C-46, s. 568; R.S., 1985, c. 27 (1st Supp.), s. 111; 2002, c. 13, s. 43; 2008, c. 18, s. 24.
[annotation(s) added]

CCC


Note up: 568

This authority under s. 568 to force a judge and jury election can likely still be exercised even where the Crown had previously consented to a re-election.[1]

The discretionary exercise of section 568, forcing the accused to have a jury trial can potentially result in an abuse of process.[2]

  1. R v Pontbriand (1978), 39 CCC (2d) 145 (QCSC), 1978 CanLII 2180 (QC CS), per Hugessen ACJ, at para 7 ("It was suggested that the Crown, having once consented under s. 492(5) to a re-election by the accused, is precluded from exercising the rights given to it under s. 498 to require a trial before judge and jury. This argument cannot stand in the light of the text of s. 498, which gives the right to the Attorney General to require a jury trial...") -- however this case concerned a previous version of s. 568 with different wording
  2. R v Vittorio (Vic) De Zen et al, 2010 ONSC 974 (CanLII), per MF Brown J
    Abuse of Process

Absolute and Exclusive Jurisdiction Offences

Judge Trials on Absolute Jurisdiction Offences

Remand by justice to provincial court judge in certain cases

536 (1) Where an accused is before a justice other than a provincial court judge charged with an offence over which a provincial court judge has absolute jurisdiction under section 553 [absolute jurisdiction offences], the justice shall remand the accused to appear before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed.
...
R.S., 1985, c. C-46, s. 536; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.
[annotation(s) added]

CCC


Note up: 536(1)

Judge-alone Trials on Exclusive Jurisdiction Offences

Section 473 permits an accused who is charged with a 469 exclusive jurisdiction offence to elect to be tried by a superior judge sitting without a jury.

Trial without jury

473 (1) Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 [exclusive jurisdiction offences] may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction.

Joinder of other offences

(1.1) Where the consent of the accused and the Attorney General is given in accordance with subsection (1) [s. 469 triable without jury on consent], the judge of the superior court of criminal jurisdiction may order that any offence be tried by that judge in conjunction with the offence listed in section 469 [exclusive jurisdiction offences].

Withdrawal of consent

(2) Notwithstanding anything in this Act, where the consent of an accused and the Attorney General is given in accordance with subsection (1) [s. 469 triable without jury on consent], that consent shall not be withdrawn unless both the accused and the Attorney General agree to the withdrawal.
R.S., 1985, c. C-46, s. 473; R.S., 1985, c. 27 (1st Supp.), s. 63; 1994, c. 44, s. 30.
[annotation(s) added]

CCC


Note up: 473(1), (1.1) and (2)

Re-Election

See Also