Election (Mode of Trial)
Where an offence is indictable and not within the exclusive jurisdiction of the Superior Court (murder, treason) or within the absolute jurisdiction of the Provincial Court (theft under $5,000, fraud under $5,000, certain gaming and bawdy-house offences), the accused has the right to elect the mode of trial. Section 536(2) of the Criminal Code sets out the choices: (1) trial by a Provincial Court judge; (2) trial by a Superior Court judge alone; or (3) trial by a Superior Court judge and jury.
Mass Tsang's criminal lawyers carefully consider election strategy in every eligible file. For more, see our comprehensive guide for the accused.
When the election is made
The election is normally made at first appearance after the Crown has elected to proceed by indictment, or at any later appearance up to the close of the Crown's case at preliminary inquiry (in cases where one is held). Once made, the election can sometimes be re-elected within statutory limits, with the consent of the Crown in some configurations.
Strategic considerations
Election strategy depends on the offence, the strength of the case, the trial issues, the local court culture, and the personalities of judges and Crowns involved. Considerations include: speed of trial (Provincial Court usually proceeds fastest); availability of preliminary inquiry (now only for offences punishable by 14+ years); jury appeal (some cases play better to a jury, others to a judge); evidentiary issues (judge-alone trials are usually preferable for complex Charter motions); and disclosure dynamics.
Trial by jury
A Canadian criminal jury is composed of 12 jurors, who must reach a unanimous verdict on each count. Jury trials are typically longer and more procedurally complex than judge-alone trials. They are useful where the case turns on a sympathetic factual narrative the defence can present, or where the defence wants community participation in the verdict. They are riskier where the case requires sustained engagement with technical or legal issues.
Re-election
After an initial election, the accused has limited rights to re-elect. Re-election from a higher to a lower mode (jury to judge alone, or Superior to Provincial) generally requires Crown consent within prescribed time frames. Re-election the other way is broader. Counsel should understand the windows and the procedural mechanics before locking in.
Related glossary terms
