Crown Election

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 95385)

General Principles

See also: Types of Offences and Election

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.

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 source of the Crown discretion to elect mode of prosecution is the common law and is part of the tradition of "equality before the law."[2]

Timing of Election

Elections are not necessarily made at with full knowledge of the case, nor it is expected to be the case.[3]

Election Procedure

Interpretation of the meaning of the Crown's words when making an election or re-election should be read in the context of the entire court record.[4]

Appeal Standard

Whether a matter is part of the discretionary core functions of the Attorney General is a question of law.[5]

  1. ↑ R v Century 21 Ramos Realty Inc and Ramos, 1987 CanLII 171 (ON CA), 32 CCC (3d) 353, per curiam
  2. ↑ R v Sheehan, 2010 NLTD 167 (CanLII), per Goodridge J, at para 8
  3. ↑ R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ (6:3), at para 97
    R v Smickle, 2012 ONSC 602 (CanLII), 280 CCC (3d) 365, per Molloy J, at para 110
  4. ↑ R v Horton, 2014 ONCA 414 (CanLII), per Goudge JA, - ambiguous comment regarding election not interpreted as implicit re-election
  5. ↑ R v Nixon, 2009 ABCA 289 (CanLII), 448 AR 289, per curiam, at para 13

Presumptions

Hybrid offences are deemed to be indictable until the Crown elects to proceed summarily.[1]

Hybrid offences are treated as indictable during the proceedings until such time as the Crown makes their election.[2] Where the Crown fails to make their election, they are deemed to have made a summary election.[3]

Where a proceeding progresses to its conclusion without the Crown having made an election on a hybrid offence and the charge was within the 12 months of the incident (based on the 786(2) time limitation), the Crown is deemed to have elected to proceed by "summary conviction."[4]

However, where the accused elects mode of trial even though the Crown failed to make an election, the trial will be deemed indictable.[5]

Where the offence is prosecuted by indictment there is a statutory presumption under s. 471 that the trial will be by judge and jury.[6]

  1. ↑ R v Paul-Marr, 2005 NSCA 73 (CanLII), 199 CCC (3d) 424, per Cromwell JA, at para 20
    R v Dudley, 2009 SCC 58 (CanLII), [2009] 3 SCR 570, per Fish J, at para 21
    R v Belair, 1988 CanLII 7110 (ON CA), 41 CCC (3d) 329, per Martin JA ("The [hybrid] offence charge was at all times triable by indictment, and indeed the information charged an indictable offence until the Crown elected to treat the offence as one punishable on summary conviction")
    Re Abarca and The Queen, 1980 CanLII 2958 (ON CA), 57 CCC (2d) 410, per Lacourciere JA
  2. ↑ cf. see s. 34 of the Interpretation Act (Election is deemed to be indictable "unless and until the Crown elects to proceed summarily")
  3. ↑ R v Dudley, 2009 SCC 58 (CanLII), [2009] 3 SCR 570, per Fish J, at paras 18, 21
    R v Dixon, 2013 BCCA 41 (CanLII), per Chiasson JA, at paras 21 to 25, 42
    see also Paul-Marr, supra, at para 20
  4. ↑ R v Mitchell, 1997 CanLII 6321 (ON CA), 121 CCC (3d) 139, per Doherty JA
    R v Marcotullio, 1978 CanLII 2332, 39 CCC (2d) 478, per Arnup JA
    R v W(WW), 1985 CanLII 3641 (MB CA), 20 CCC (3d) 214, per Huband JA (2:1)
  5. ↑ R v Mitchell, 1997 CanLII 6321 (ON CA), 121 CCC (3d) 139, per Doherty JA
  6. ↑ see "471. 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."

Crown Discretion

See also: Prosecutorial Discretion

The power to elect mode of procedure for prosecution is at the discretion of the Crown.[1]

  1. ↑ R v Smythe, 1971 SCR 680 (CanLII), [1971] SCR 680, per Fauteux CJ

Review of Crown Election

See also: Abuse of Process

The Crown election may only be reviewable by a court where the election amounts to an abuse of process.

The decision of the Crown to make an indictable election must amount to flagrant impropriety.[1]

  1. ↑ R v Slaney, 2013 NLCA 70 (CanLII), [1971] SCR 680, per Barry JA, at para 6

Crown Re-Election

The Crown has the common law right of re-election after making an initial election. In certain cases consent of defence or the judge will be required.[1]


Re-Election from Summary Conviction to Indictment

The re-election from summary to indictable while in-trial requires the consent of the accused.[2]

Re-Election from Indictable to Summary Conviction

A re-election for an indictable charge to then proceed by summary election while the charge is before a superior court judge is permissible, but once re-election is complete the matter should be remitted to provincial court for guilty plea and sentencing. The superior court does not have jurisdiction to handle sentencing.[3]

The Crown discretion to re-elect from indictment to summary conviction may be lost if:[4]

  • preliminary inquiry has begun;
  • trial has begun,
  • the time limitation of summary offences has expired; or
  • there is a finding of an abuse of process.

The Crown may re-elect to proceed by summary conviction if the information was sworn within the summary proceedings limitation.[5]

Unless abusive or without jurisdiction, the Crown may be able to simply withdraw the indictment and re-lay an information.[6]

Effect of Re-election

It has been suggested that it is an open question whether a re-election constitutes a commencement of a new proceedings under s. 786(2).[7]

However, it has been found that re-election recommences proceedings and requires a new plea before a court with jurisdiction.[8]


  1. ↑ R v DME, 2014 ONCA 496 (CanLII), 313 CCC (3d) 70, per Watt JA ("the common law equally permits the Crown, having once elected one mode of proceeding in connection with a hybrid offence, to re-elect later the other mode of proceeding. In some instances consent of the accused and approval of the presiding judge may be required.")
  2. ↑ R v Hancock, (1992) 60 O.A.C. 322, 1992 CarswellOnt 786 (Ont. C.A.)(complete citation pending)
  3. ↑ DME, ibid.
  4. ↑ R v Sheehan, 2010 NLTD 167 (CanLII), per Goodridge J, at para 8
  5. ↑ R v Kalkhorany, 1994 CanLII 687 (ON CA), 29 CR (4th) 379, 89 CCC (3d) 184
    R v E(DM), 2014 ONCA 496 (CanLII), 12 C.R. (7th) 406, 313 CCC (3d) 70
  6. ↑ e.g. see R v Nassar, 2023 NSSC 379 (CanLII)(complete citation pending)
  7. ↑ DME, ibid., at para 45
  8. ↑ Kalkhorany, supra
    E(DM), supra

Summary Election Time Limitation

Proceedings on summary offences must commence within 12 months of the incident date unless the Crown and Defence agree to waive the time limitation. Section 786(2) states:

786
[omitted (1)]

Limitation

(2) No proceedings shall be instituted more than 12 months after the time when the subject matter of the proceedings arose, unless the prosecutor and the defendant so agree.
R.S., 1985, c. C-46, s. 786; 1997, c. 18, s. 110; 2019, c. 25, s. 315.

– CCC (CanLII), (DOJ)

Note up: 786(2)

The Crown has no jurisdiction to make a summary election outside of the 12 month period of time.[1] Summary elections on an information sworn more than 12 months after the subject matter of the proceedings is "null and of no effect."[2]

The 12-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 12 month limit.[3]

Transactions material to the offence are admissible in trial so long as the period of time in which the offence occurred is within the time limit.[4]

It is acceptable practice to elect indictable in order to allow the prosecution to proceed, such as where the 12 month time limit has expired, and then re-elect summarily with consent.[5] The judge cannot interfere by refusing to allow re-election.[6]

If the Crown elects by summary conviction despite being outside the permissible time limitation, the Crown has several options:[7]

  • may change its election and proceed by indictment once it has discovered its error. It is not bound by the initial election.[8]
  • withdraw the original information, lay a new information and elect to proceed by indictment
  • seek consent of the accused to continue by summary conviction.
Provincial Summary Proceedings

In some provinces, summary proceedings rules and legislation incorporate this provision into their summary offence regime.[9]

History

Prior to September 19, 2019, the time limitation was 6 months instead of 12 months.

  1. ↑ R v Karpinski, 1957 CanLII 9 (SCC), [1957] SCR 343, 117 CCC 241, per Fauteux J, at p. 249 (CCC) stating (there are “no rights for the Crown to elect to proceed by way of summary conviction and no jurisdiction for the Magistrate to accept and act upon the election by receiving a plea”)
  2. ↑ R v PWK, 1998 CanLII 7145 (ON CA), 128 CCC (3d) 206, per Austin JA, at para 31
  3. ↑ R v Nadir, 2004 CanLII 59965 (ON CA), per curiam
  4. ↑ R v Duzan, 1993 CanLII 14700 (SK CA), 79 CCC (3d) 552, per Wakeling JA
  5. ↑ R v Burke, 1992 CanLII 7121 (NL CA), 78 CCC (3d) 163, per Steele JA
  6. ↑ R v Linton, 1994 CanLII 7272 (ON SC), 90 CCC 528, per Moldaver J
  7. ↑ R v Roulette, 2009 MBPC 3 (CanLII), 246 Man R (2d) 1, per Harapiak J
  8. ↑ R v Burke, 1992 CanLII 7121 (NL CA), 78 CCC (3d) 163, per Steele JA, at para 14 citing Ewaschuk
    See also R v Belair, 1988 CanLII 7110 (ON CA), 26 OAC 340, 41 CCC (3d) 329, per Martin JA
  9. ↑ e.g. NS: Cape Breton Regional Municipality v Smith, 2019 NSSC 41 (CanLII), per Edwards J, at para 21

Crown's Failure to Elect

Crown's election can be "deemed" by means of "the way in which the pleadings were conducted."[1]

This usually means they are deemed to have made a summary election.[2]

Section 34(1)(a) of the Interpretation Act creates a presumption of an indictable election.[3] Where the presumption is not displaced, and the pleadings did not include a proper election address any verdict can be quashed and become a nullity.[4]

Where a proceedings progresses to its conclusion without the Crown having made an election on a hybrid offence and the laying of the charge was within 6 months of the incident, the Crown is deemed to have elected to proceed by "summary conviction."[5] This will vary in some circumstances.[6]

However, where the accused elects mode of trial even though the Crown failed to make an election, the trial will be deemed indictable.[7]

  1. ↑ R v Matthews, 2015 NSCA 4 (CanLII), per Farrar JA, at para 13
  2. ↑ R v Dudley, 2009 SCC 58 (CanLII), [2009] 3 SCR 570, per Fish J, at paras 18, 21
    R v Dixon, 2013 BCCA 41 (CanLII), per Chiasson JA, at paras 21 to 25, 42
    see also R v Paul-Marr, 2005 NSCA 73 (CanLII), 199 CCC (3d) 424, per Cromwell JA, at para 20
  3. ↑ Matthews, supra, at para 12
  4. ↑ Matthews, supra, at para 18
    see also Paul-Marr, supra, at para 33
  5. ↑ R v Mitchell, 1997 CanLII 6321 (ON CA), 121 CCC (3d) 139, per Doherty JA
    R v Marcotullio, 1978 CanLII 2332, 39 CCC (2d) 478, per Arnup JA
    R v W(WW), 1985 CanLII 3641 (MB CA), 20 CCC (3d) 214, per Huband JA (2:1)
    see also R v Ashoona, 1985 CanLII 3476 (NWT SC), 19 CCC (3d) 377, per De weerdt J
    R v Gal, 1985 CanLII 1483 (AB QB), 60 AR 333, per Wachowich J
  6. ↑ Matthews, supra, at para 17
  7. ↑ R v Mitchell, 1997 CanLII 6321 (ON CA), 121 CCC (3d) 139, per Doherty JA

See Also

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