Defence Re-Election

< Procedure and Practice
< Election

This page was last substantively updated or reviewed December 2022. (Rev. # 96014)

General Principles

On indictable offences where the defence has a right to elect the mode of trial, there is a limited right to re-elect to a different mode of trial. The limitations depend on the type of offence, the desired mode of trial, and the timing of the re-election.

The relevant provisions state as follows:

Right to re-elect

561 (1) An accused who elects or is deemed to have elected a mode of trial other than trial by a provincial court judge may re-elect,

(a) if the accused is charged with an offence for which a preliminary inquiry has been requested under subsection 536(4) [request for preliminary inquiry],
(i) at any time before or after the completion of the preliminary inquiry, with the written consent of the prosecutor, to be tried by a provincial court judge,

(ii) at any time before the completion of the preliminary inquiry or before the 60th day following the completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court judge, and

(iii) on or after the 60th day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor; or

(b) if the accused is charged with an offence for which they are not entitled to request a preliminary inquiry or if they did not request a preliminary inquiry under subsection 536(4) [request for preliminary inquiry],
(i) as of right, not later than 60 days before the day first appointed for the trial, another mode of trial other than trial by a provincial court judge, or

(ii) any mode of trial with the written consent of the prosecutor.

Right to re-elect

(2) An accused who elects to be tried by a provincial court judge may, not later than 60 days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so after that time with the written consent of the prosecutor.
[omitted (3), (4), (4) and (6) and (7)]
R.S., 1985, c. C-46, s. 561; R.S., 1985, c. 27 (1st Supp.), s. 110; 2002, c. 13, s. 37; 2019, c. 25, s. 254.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 561 (1) and (2)

After the initial election, the defence may change the mode of trial by re-electing under s. 561. The defence is permitted to elect to move from a provincial court trial to a Superior Court judge-alone trial or judge and jury trial (s.561(2)). This will only be possible without consent of the Prosecution when it is within the 60-day time limit.

There may be some discretionary right to re-elect without the consent of the Crown where the accused was not properly informed of his rights and relevant issues at the time the initial election was made.^[1]

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.^[2]

The accused has the right to re-elect only once, after which they have no further discretion of election.^[3]

The procedure for re-election can be waived.^[4]

Initial Election	Final Election	Timing of Notice	Enabling Sections	Crown Consent	Notice To
Provincial Court	Sup Crt Trial - Any Mode	60 days or more before trial	561(2), 561(4)	No Consent Needed	Provincial Court Judge
Provincial Court	Sup Crt Trial - Any Mode	less than 60 days before trial	561(2), 561(4), 561(6), 561(7)	Written Consent Needed	Provincial Court Judge
Sup Crt Trial - Any Mode (with preliminary inquiry)	Provincial Court	Anytime	561(1)(a)(i), 561(3)(b), 561(5), 561(6), 561(7)	Written Consent Needed	Prelim. Judge
Sup Crt Trial - Any Mode (without preliminary inquiry)	Provincial Court	Anytime	561(1)(b)(ii), 561(4), 561(7)	Written Consent Needed	Trial Judge
Sup Crt Trial - Mode 1^[5] (with preliminary inquiry)	Sup Crt Trial - Mode 2^[6]	less than 60 days after prelim.	561(1)(a)(ii), 561(3)(a), 561(7)	No Consent Needed	Supreme Court Judge
Sup Crt Trial - Mode 1 (with preliminary inquiry)	Sup Crt Trial - Mode 2	60 days or more after prelim.	561(1)(a)(iii), 561(3), 561(5), 561(6), 561(7)	Written Consent Needed	Supreme Court Judge
Sup Crt Trial - Mode 1 (without preliminary inquiry)	Sup Crt Trial - Mode 2	60 days or more before trial	561(1)(b)(i), 561(4), 561(6), 561(7)	No Consent Needed	Supreme Court Judge
Sup Crt Trial - Mode 1 (without preliminary inquiry)	Sup Crt Trial - Mode 2	less than 60 days before trial	561(1)(b)(ii), 561(4), 561(7)	Written Consent Needed	Supreme Court Judge
SC Judge and Jury (direct indictment)	SC Judge-alone	After the Indictment is preferred	565(2), 565(3)^[7]	No Consent Needed	Supreme Court Judge
SC Judge and Jury (s. 469 offence)	SC Judge-alone	After the Indictment is preferred	473	Written Consent Needed	Supreme Court Judge

Once an election to Superior Court (either judge-alone or jury and jury) has been made, the defence cannot re-elect to provincial court without the consent of the Crown.

↑ R v Edmunds, 2013 CM 4015 (CanLII), per Perron J , at para 19
↑ Re Diamonti, 1981 CanLII 372 (BC SC), 61 CCC (2d) 483 (BCSC), per Toy J
↑ R v Ishmail, (1981) 6 WCB 148, BCJ No 1802 (BCSC)(*no CanLII links)
R v Savoie, 2012 QCCQ 3864 (CanLII), per Chapdelaine J
↑ Korponay v Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 SCR 41, per Lamer J
↑ * be it judge alone or judge and jury
↑ the alternative to Mode 1. Judge-alone if Mode 1 is judge and jury, and vice versa.
↑ see Direct Indictments#Deemed Election

Effect of Re-Election

Proceedings following re-election

562 (1) If the accused re-elects under subparagraph 561(1)(a)(i) [re-elect from superior court with prelim to provincial with consent] before the completion of the preliminary inquiry, under paragraph 561(1)(a) [right to re-elect – superior court with preliminary inquiry] after the completion of the preliminary inquiry or under paragraph 561(1)(b) [re-elect from superior where prelim not available], the provincial court judge or judge, as the case may be, shall proceed with the trial or appoint a time and place for the trial.

Proceedings following re-election

(2) If the accused re-elects under subparagraph 561(1)(a)(ii) [re-elect from superior court to same level within 60 days of prelim] before the completion of the preliminary inquiry, or under subsection 561(2) [right to re-elect – from provincial court at 60 days to trial], and requests a preliminary inquiry under subsection 536(4), the justice shall proceed with the preliminary inquiry.
R.S., 1985, c. C-46, s. 562; R.S., 1985, c. 27 (1st Supp.), s. 110; 2019, c. 25, s. 256.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 562 (1) and (2)

Proceedings on re-election to be tried by provincial court judge without jury

563 Where an accused re-elects under section 561 [right of re-election^[1]] to be tried by a provincial court judge,

(a) the accused shall be tried on the information that was before the justice at the preliminary inquiry, if applicable, subject to any amendments to the information that may be allowed by the provincial court judge by whom the accused is tried; and

(b) the provincial court judge before whom the re-election is made shall endorse on the information a record of the re-election.

R.S., 1985, c. C-46, s. 563; R.S., 1985, c. 27 (1st Supp.), s. 110; 2019, c. 25, s. 258.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 563

Timing

Right to re-elect

561
[omitted (1), (2), (3), (4) and (5)]

Time and place for re-election

(6) Where a provincial court judge or judge or clerk of the court is notified under paragraph (3)(b) [right to re-elect from superior with prelim – notice] or subsection (4) [right to re-elect with no prelim – notice] or (5) [right to re-elect from superior with prelim – notice and transmitting record] that the accused wishes to re-elect, the provincial court judge or judge shall forthwith appoint a time and place for the accused to re-elect and shall cause notice thereof to be given to the accused and the prosecutor.
[omitted (7)]
R.S., 1985, c. C-46, s. 561 R.S., 1985, c. 27 (1st Supp.), s. 110; 2002, c. 13, s. 37; 2019, c. 25, s. 254.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 561 (6)

After the Beginning of the Trial

It is generally understood that the defence cannot re-elect after the trial has begun and the trier-of-fact has become seized with the matter, even if both sides consent.^[2]

↑ Found elsewhere in this same page.
↑ R v MacLean, 2002 NSSC 283 (CanLII), 210 NSR (2d) 150, per Hall J

Notice

Right to re-elect

561
[omitted (1) and (2)]

Notice of re-election under paragraph (1)(a)

(3) If an accused intends to re-elect under paragraph (1)(a) [right to re-elect – superior court with preliminary inquiry] before the completion of the preliminary inquiry, they shall give notice in writing of their intention to re-elect, together with the written consent of the prosecutor, if that consent is required, to the justice presiding at the preliminary inquiry who shall on receipt of the notice,

(a) in the case of a re-election under subparagraph (1)(a)(ii) [re-elect from superior court to same level within 60 days of prelim], put the accused to their re-election in the manner set out in subsection (7) [proceedings on re-election]; or

(b) if the accused intends to re-elect under subparagraph (1)(a)(i) [re-elect from superior court with prelim to provincial with consent] and the justice is not a provincial court judge, notify a provincial court judge or clerk of the court of the accused’s intention to re-elect and send to the provincial court judge or clerk any information, appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the justice.

Notice of re-election under paragraph (1)(b) or subsection (2)

(4) If an accused intends to re-elect under paragraph (1)(b) [re-elect from superior where prelim not available] or subsection (2) [right to re-elect – from provincial court at 60 days to trial], they shall give notice in writing that they intend to re-elect together with the written consent of the prosecutor, if that consent is required, to the provincial court judge before whom the accused appeared and pleaded or to a clerk of the court.

Notice and transmitting record

(5) If an accused intends to re-elect under paragraph (1)(a) [right to re-elect – superior court with preliminary inquiry] after the completion of the preliminary inquiry, they shall give notice in writing, together with the written consent of the prosecutor, if that consent is required, to a judge or clerk of the court of the accused’s original election. The judge or clerk shall, on receipt of the notice,

(a) notify the judge or provincial court judge or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect; and

(b) send to that judge or provincial court judge or clerk any information, evidence, exhibits and statement of the accused taken down in writing in accordance with section 541 [hearing witnesses and accused], any appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the first-mentioned judge or clerk.

[omitted (6) and (7)]
R.S., 1985, c. C-46, s. 561; R.S., 1985, c. 27 (1st Supp.), s. 110; 2002, c. 13, s. 37; 2019, c. 25, s. 254.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 561 (3), (4) and (5)

Procedure

561
[omitted (1), (2), (3), (4), (5) and (6)]

Proceedings on re-election

(7) The accused shall attend or, if in custody, shall be produced at the time and place appointed under subsection (6) [time and place for re-election] and shall be put to a re-election after

(a) the charge on which the accused has been ordered to stand trial or the indictment, if an indictment has been preferred under section 566 [charges on indictment], 574 [authority to prefer an indictment] or 577 [direct indictments] or is filed with the court before which the indictment is to be preferred under section 577 [direct indictments], has been read to the accused; or

(b) the information, in the case of a re-election under paragraph (1)(a) [right to re-elect – superior court with preliminary inquiry], before the completion of the preliminary inquiry, or under paragraph (1)(b) [re-elect from superior where prelim not available] or subsection (2) [right to re-elect – from provincial court at 60 days to trial], has been read to the accused.

The accused shall be put to their re-election in the following words or in words to the like effect:

You have given notice of your intention to re-elect your trial mode. You now have the option to do so. How do you intend to re-elect?

R.S., 1985, c. C-46, s. 561; R.S., 1985, c. 27 (1st Supp.), s. 110; 2002, c. 13, s. 37; 2019, c. 25, s. 254.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 561 (7)

Form of Re-Election

Elections and re-elections in writing

536.2 An election or a re-election by an accused in respect of a mode of trial may be made by submission of a document in writing without the personal appearance of the accused.
2002, c. 13, s. 27.

– CCC (CanLII), (DOJ)

Note up: 536.2

Crown Consent

The Crown decision to refuse re-election cannot be challenged except as an abuse of process.^[1] The decision would have to be "arbitrary, capricious, or for improper motive.^[2]

The Court has no jurisdiction to override the Crown's decision to refuse consent.^[3]

The Crown does not need to give reasons for refusing to consent.^[4]

On Direct Indictment

Where a direct indictment has been laid, the accused does not need the Crown's consent to re-elect.^[5]

↑ R v LE, 1994 CanLII 1785 (ON CA), 94 CCC (3d) 228, per Finalyson JA
R v Ng, 2003 ABCA 1 (CanLII), 173 CCC (3d) 349, per curiam (2:1)
See Abuse of Process by Crown Counsel
↑ Ng, supra
LE, supra
↑ R v Effert, 2011 ABCA 134 (CanLII), 502 AR 276, per curiam (2:1)
↑ Ng, supra, at para 68
Effert, supra
↑ see Direct Indictments#Right to Re-Elect

Re-Election of Exclusive Jurisdiction Offences

Offences of exclusive jurisdiction are presumptively elected as trial by judge and jury.^[1] Section 473 permits an exclusive jurisdiction offence to be re-elected as trial by a superior court judge-alone trial with the consent of the Crown.

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 (CanLII), (DOJ)

Note up: 473 (1), (1.1) and (2)

Where an accused charged with an offence under s. 469, but is committed for trial on a non-469 offence such as manslaughter, he is not entitled to a new election. He may only re-elect under s. 561(1)(b) within 61 days of the committal order.^[2]

↑ see s. 471
↑ R v Wright, 2011 ABQB 145 (CanLII), 517 AR 169, per Germain J

Judge-Imposed Re-Election

If charge should be prosecuted by indictment

555 (1) If in any proceedings under this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)] an accused is before a provincial court judge and it appears to the provincial court judge that for any reason the charge should be prosecuted by indictment, the provincial court judge may, at any time before the accused has entered a defence, decide not to adjudicate and shall then inform the accused of the decision.

Election before justice

(1.1) If the provincial court judge has decided not to adjudicate, the judge shall put the accused to an election in the following words:

You have the option to 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 are entitled to one and you or the prosecutor requests one. How do you elect to be tried?

Continuing proceedings

(1.2) If the accused is entitled to a preliminary inquiry and they or the prosecutor requests one, the provincial court judge shall continue the proceedings as a preliminary inquiry.

If subject matter is testamentary instrument or exceeds $5,000 in value

(2) If an accused is before a provincial court judge, charged with an offence prosecuted by indictment mentioned in paragraph 553(a) [absolute jurisdiction offences – property offences] or subparagraph 553(b)(i) [absolute jurisdiction offences – party to property offences], and, at any time before the provincial court judge makes an adjudication, the evidence establishes that the subject matter of the offence is a testamentary instrument or that its value exceeds $5,000, the provincial court judge shall put the accused to their election in accordance with subsection 536(2.1) [election before justice – other indictable offences].

Continuing proceedings

(3) If an accused is put to their election under subsection (1.1) [election address] or (2) [election address if subject matter is testamentary instr. or exceeding $5,000], the following provisions apply:

(a) if the accused elects to be tried by a judge without a jury or a court composed of a judge and jury or does not elect when put to their election, the provincial court judge shall endorse on the information a record of the nature of the election or deemed election; and

(b) if the accused elects to be tried by a provincial court judge, the provincial court judge shall endorse on the information a record of the election and continue with the trial.

R.S., 1985, c. C-46, s. 555; R.S., 1985, c. 27 (1st Supp.), ss. 106, 203; 1994, c. 44, s. 58; 2002, c. 13, s. 32; 2019, c. 25, s. 252; 2022, c. 17, s. 36.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 555 (1), (1.1), (1.2), (2), and (3)