Defence Election

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General Principles

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.

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), if an accused is charged in an information with an indictable offence other than an offence that is mentioned in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, a provincial court judge may try the accused if the accused elects to be tried by a provincial court judge.

Nunavut

(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.

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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.

Election to the entire information

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

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
...

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.

...
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.

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

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.

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."

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, 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.

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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.

Election for Preliminary Inquiry

536
...

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), a preliminary inquiry must be held with respect to all of them.
...
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.

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Endorsement for Section 469 Offences

536
...

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.
...
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.

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Endorsement for Mixed Prelim Offences

536
...

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) 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.
...
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.

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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
...

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 , 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 —, 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?

...
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.

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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.

The address can be waived expressly or by implication. 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.

Procedural Errors

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

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

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 , elects under section 536 or 536.1 or re-elects under section 561 or 561.1 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]

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Duty of judge

560 (1) If an accused elects, under section 536 or 536.1 , 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) 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), 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.

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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), 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.
...

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Deeming an Electing

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 (ss. 552 to 572)], may be tried by a judge without a jury, the accused shall, for the purposes of the provisions of this Part 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 or subsection 567.1(1) ; or

(b) the accused does not elect when put to an election under section 536 or 536.1 .

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

When direct indictment preferred

(2) If an accused is to be tried after an indictment has been preferred against the accused on the basis of a consent or order given under section 577 , the accused is, for the purposes of the provisions of this Part relating to election and re-election, deemed to have elected to be tried by a court composed of a judge and jury and not to have requested a preliminary inquiry under subsection 536(4) or 536.1(3) , if they were entitled to make such a request, and may re-elect to be tried by a judge without a jury without a preliminary inquiry.

Notice of re-election

(3) If an accused intends to re-elect under subsection (2), the accused shall give notice in writing to a judge or clerk of the court where the indictment has been filed or preferred. The judge or clerk shall, on receipt of the notice, notify a judge having jurisdiction or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect and send to that judge or clerk any indictment, appearance notice, undertaking or release order given by or issued to the accused, any summons or warrant issued under section 578 and any evidence taken before a coroner that is in the possession of the first-mentioned judge or clerk.

Application

(4) Subsections 561(6) and (7), or subsections 561.1(8) and (9), as the case may be, apply to a re-election made under subsection (3).

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.

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

Recording Supreme Court Election

536
...

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

(4.1) If an accused referred to in subsection (2) 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) 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.

...
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.

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Young Accused Persons

• Defence Election for Young Accused

Attorney General Override

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 or re-elects under section 561 or subsection 565(2) 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 and a preliminary inquiry must be held if requested under subsection 536(4) , unless one has already been held or the re-election was made under subsection 565(2) .
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.

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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.

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

Absolute and Exclusive Jurisdiction Offences

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.

Section 553 states:

Absolute jurisdiction

553 The jurisdiction of a provincial court judge, or in Nunavut, of a judge of the Nunavut Court of Justice, to try an accused is absolute and does not depend on the consent of the accused where the accused is charged in an information

(a) with

(i) theft, other than theft of cattle,

(ii) obtaining money or property by false pretences,

(iii) unlawfully having in his possession any property or thing or any proceeds of any property or thing knowing that all or a part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from the commission in Canada of an offence punishable by indictment or an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment,

(iv) having, by deceit, falsehood or other fraudulent means, defrauded the public or any person, whether ascertained or not, of any property, money or valuable security, or

(v) mischief under subsection 430(4),

where the subject-matter of the offence is not a testamentary instrument and the alleged value of the subject-matter of the offence does not exceed five thousand dollars;

(b) with counselling or with a conspiracy or attempt to commit or with being an accessory after the fact to the commission of

(i) any offence referred to in paragraph (a) in respect of the subject-matter and value thereof referred to in that paragraph, or

(ii) any offence referred to in paragraph (c); or

(c) with an offence under

(i) section 201 (keeping gaming or betting house),

(ii) section 202 (betting, pool-selling, book-making, etc.),

(iii) section 203 (placing bets),

(iv) section 206 (lotteries and games of chance),

(v) section 209 (cheating at play),

(vi) [Repealed, 2019, c. 25, s. 251.1]

(vii) [Repealed, 2000, c. 25, s. 4]

(viii) section 393 (fraud in relation to fares),

(viii.01) section 490.031 (failure to comply with order or obligation),

(viii.02) section 490.0311 (providing false or misleading information),

(viii.1) section 811 (breach of recognizance),

(ix) subsection 733.1(1) (failure to comply with probation order), or

(x) paragraph 4(4)(a) of the Controlled Drugs and Substances Act.

(xi) [Repealed, 2018, c. 16, s. 219]

R.S., 1985, c. C-46, s. 553; R.S., 1985, c. 27 (1st Supp.), s. 104; 1992, c. 1, s. 58; 1994, c. 44, s. 57; 1995, c. 22, s. 2; 1996, c. 19, s. 72; 1997, c. 18, s. 66; 1999, c. 3, s. 37; 2000, c. 25, s. 4; 2010, c. 17, s. 25; 2012, c. 1, s. 33; 2018, c. 16, s. 219; 2019, c. 25, s. 251.1.

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Under section 469, courts of criminal jurisdiction, being provincial courts, have jurisdiction over all indictable offences except for those listed in the section. These are commonly referred to as "exclusive jurisdiction" offences and cannot be tried at provincial court.

Absolute Jurisdiction (s. 553)

Exclusive Jurisdiction (s. 469)

"theft, other than theft of cattle" (where value =< $5,000) [s.553(a)(i)] "obtaining money or property by false pretences", (where value =< $5,000) [s.553(a)(ii)] "possess stolen property" (value =< $5,000) [s.553(a)(iii)] Fraud (value =< $5,000) [s.553(a)(iv)] "mischief under subsection 430(4)" (value =< $5,000) [s.553(a)(v)] Gaming and betting-related offences (s. 201 - 210) [s.553(c)(i-v)] Keeping a Common Bawdy-house (210) [s.553(c)(vi)] "fraud in relation to fares" under s 393 [s.553(c)(viii)] Breach of SOIRA Order under s. 490.031 or 490.0311 [s.553(c)(viii.01 to viii.02)] "failure to comply with probation order" under s. 733.1 [s.553(c)(viii.1)] "breach of recognizance" under s. 811 [s.553(c)(ix)] Possession of a Schedule II Drug under s. 4(4)(a) of the CDSA [s.553(c)(x)] Trafficking or Possession for the Purpose of Trafficking of a Scheduled II Drug under s. 5(3)(a.1) of the CDSA [s.553(c)(xi)] "counselling or with a conspiracy or attempt to commit or with being an accessory after the fact" of the above offences [s.553(b)]

treason under s. 47 (469(a)(i)) alarming Her Majesty under s. 49 (469(a)(ii)) intimidating Parliament or a legislature under s. 51 (469(a)(iii)) inciting to mutiny under s. 53 (469(a)(iv)) seditious offences under s. 61 (469(a)(v)) piracy under s. 74 (469(a)(vi)) and piratical acts under s. 75 (469(a)(vii)) attempts of any of the above listed (469(d)) murder under s. 235 (469(a)(viii)) and conspiracy to commit murder offences under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act (469(c.1); the offence of being an accessory after the fact to high treason or treason or murder; bribery by a holder of a judicial office under s. 119 (469(c))

All indictable offences offence are presumptive judge and jury election. However, "exclusive jurisdiction" offences are those which can only be re-elected to superior court Judge-alone under s. 473, requiring the consent of both parties.

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 , 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

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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 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), 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.

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), 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.

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Re-Election

• Defence Re-Election

See Also

• Crown Election
• Direct Indictments