Defence Re-Election

< Procedure and Practice
< Election

General Principles

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) 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;

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

(c) on or after the fifteenth day following the completion of the preliminary inquiry, 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 or who does not request a preliminary inquiry under subsection 536(4) may, not later than 14 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.

Notice

(3) Where an accused wishes to re-elect under subsection (1) before the completion of the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, where 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 paragraph (1)(b), put the accused to his re-election in the manner set out in subsection (7); or

(b) where the accused wishes to re-elect under paragraph (1)(a) 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 the information and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, or any evidence taken before a coroner, that is in the possession of the justice.

Idem

(4) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect together with the written consent of the prosecutor, where 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) Where an accused wishes to re-elect under subsection (1) after the completion of the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, where that consent is required, to a judge or clerk of the court of his original election who shall, on receipt of the notice, 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 send to that judge or provincial court judge or clerk the information, the evidence, the exhibits and the statement, if any, of the accused taken down in writing under section 541 and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, or any evidence taken before a coroner, that is in the possession of the first-mentioned judge or clerk.
...

R.S., 1985, c. C-46, s. 561; R.S., 1985, c. 27 (1st Supp.), s. 110; 2002, c. 13, s. 37.

– CCC

After the initial election, the Defence may change the mode of trial by re-electing under s. 561. The Defence is permitted to elect from provincial court to Superior Court judge alone or judge and jury (s.561(2)). This will only be possible without consent of the Prosecution when it is within the 14 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 that 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 on re-election can be waived.^[4]

Initial Election	Final Election	Timing of Notice	Enabling Sections	Crown Consent	Notice To
Provincial Court	SC Judge-alone or Judge and Jury	More than 14 days before trial	561(2), 561(4)	No Consent Needed	Provincial Court Judge
Provincial Court	SC Judge-alone or Judge and Jury	14 days before trial or less	561(2)	Consent Needed	Provincial Court Judge
SC Judge-alone or SC Judge and Jury	Provincial Court	Before the end of Preliminary	561(1)(a), 561(3)	Consent Needed	Prelim. Judge
SC Judge-alone or SC Judge and Jury	Provincial Court	After the end of Preliminary	561(1)(a), 561(5)	Consent Needed	Supreme Court Judge
SC Judge and Jury	SC Judge-alone	Less than 15 days after Prelim.	561(1)(b), 561(5)	No Consent Needed	Supreme Court Judge
SC Judge and Jury	SC Judge-alone	15 days after Prelim. or more	561(1)(c), 561(5)	Consent Needed	Supreme Court Judge
SC Judge and Jury (direct indictment)	SC Judge-alone	After the Indictment is Preferred	565(2), 565(3)	No Consent Needed	Supreme Court Judge
SC Judge and Jury (s. 469)	SC Judge-alone	After the Indictment is preferred	473	Consent Needed	Supreme Court Judge
SC Judge-alone	SC Judge and Jury	before end of prelim.	561(1)(b), 561(3)	No Consent Needed	Prelim. Judge
SC Judge-alone	SC Judge and Jury	less than 15 days after prelim.	561(1)(b), 561(5)	No Consent Needed	Supreme Court Judge
SC Judge-alone	SC Judge and Jury	15 days after prelim. or more	561(1)(c), 561(5)	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), (1981), 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] 1 SCR 41, 1982 CanLII 12 (SCC), per Lamer J

Effect of Re-Election

Proceedings following re-election

562 (1) If the accused re-elects under subparagraph 561(1)(a)(i) before the completion of the preliminary inquiry, under paragraph 561(1)(a) after the completion of the preliminary inquiry or under paragraph 561(1)(b), 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) before the completion of the preliminary inquiry, or under subsection 561(2), 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

– CCC

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

563 Where an accused re-elects under section 561 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.

– CCC

Timing

Right to re-elect

561 (1)
...

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) or subsection (4) or (5) 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.

– CCC

After Beginning of 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.^[1]

↑ R v MacLean, 2002 NSSC 283 (CanLII), per Hall J

Notice

Right to re-elect

561 (1) ...

Notice

(3) Where an accused wishes to re-elect under subsection (1) before the completion of the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, where 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 paragraph (1)(b), put the accused to his re-election in the manner set out in subsection (7); or

(b) where the accused wishes to re-elect under paragraph (1)(a) 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 the information and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, or any evidence taken before a coroner, that is in the possession of the justice.

...
R.S., 1985, c. C-46, s. 561; R.S., 1985, c. 27 (1st Supp.), s. 110; 2002, c. 13, s. 37.

– CCC

Procedure

561 (1) ...

Proceedings on re-election

(7) The accused shall attend or, if he is in custody, shall be produced at the time and place appointed under subsection (6) and shall, after

(a) the charge on which he has been ordered to stand trial or the indictment, where an indictment has been preferred pursuant to section 566, 574 or 577 or is filed with the court before which the indictment is to be preferred pursuant to section 577, or

(b) in the case of a re-election under subsection (1) before the completion of the preliminary inquiry or under subsection (2), the information

has been read to the accused, be put to his re-election in the following words or in words to the like effect:

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

– CCC

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

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 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 consent to re-elect.^[5]

↑ R v LE, 1994 CanLII 1785 (ON CA), per Finalyson JA
R v Ng, 2003 ABCA 1 (CanLII), per curiam (2:1)
See Abuse of Process by Crown Counsel
↑ Ng, supra
LE, supra
↑ R v Effert, 2011 ABCA 134 (CanLII), 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 superior court judge-alone trial.

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.

– CCC

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 15 days of the committal order.^[2]

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

Judge-Imposed Re-Election

Provincial court judge may decide to hold preliminary inquiry

555 (1) Where in any proceedings under this Part 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, he may, at any time before the accused has entered on his defence, decide not to adjudicate and shall thereupon inform the accused of his decision and continue the proceedings as a preliminary inquiry.

Where subject-matter is a testamentary instrument or exceeds $5,000 in value

(2) Where an accused is before a provincial court judge charged with an offence mentioned in paragraph 553(a) or subparagraph 553(b)(i), 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 five thousand dollars, the provincial court judge shall put the accused to his or her election in accordance with subsection 536(2).

Continuing proceedings

(3) Where an accused is put to his election pursuant to subsection (2), the following provisions apply, namely,

(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 his or her election, the provincial court judge shall continue the proceedings as a preliminary inquiry under Part XVIII and, if the provincial court judge orders the accused to stand trial, he or she shall endorse on the information a record of the 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.

– CCC

Pending Amendment

If charge should be prosecuted by indictment

555 (1) If in any proceedings under this Part 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 in superior court, 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 superior court 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) or subparagraph 553(b)‍(i), 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).
...

Continuing proceedings

(3) If an accused is put to their election under subsection (1.‍1) or (2), the following provisions apply:

(a) if the accused elects to be tried by a superior court 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

Pending Sept 19, 2019 Bill C-75 [1]