Election and Plea

What are elections and pleas in the court process?

Whether you are released from custody on a bail order or detained in custody, navigating the criminal justice system can be extremely daunting.

You may need to make an election, and you will, at some point, need to enter a plea. The golden rule is to never make key decisions like this without first consulting with a criminal defence lawyer.

What is an election?

During the court process, election may refer to either:

1. The decision of the Crown to proceed summarily or by indictment for ‘hybrid’ offences.
2. The decision of the accused about how the criminal trial will be conducted.

Summary offences

Summary offences are considered less serious, with lower penalties than indictable offences: 

• The maximum penalty is generally two years less a day and a $5,000 fine.
• They are tried in provincial court by a judge alone (without a jury).
• Because summary offences are automatically tried in this way, you do not need to make an election.

Indictable offences

For most indictable (serious) offences, the accused has the right to choose how their trial will proceed, as per Section 536 (2.1) of the Criminal Code.

The basic choice is between:

• Trial by a provincial court judge.
• Trial by a superior court judge alone.
• Trial by judge and jury.

However, keep in mind these nuances: 

• If an election is available (even if you intend to plead guilty), you must elect to be tried by the court before which you intend to enter the plea.
• If no election is made, you are deemed to have elected trial by judge and jury.
• For some offences, like murder, the superior court has exclusive jurisdiction, with no election available.
• You can change your chosen mode of trial under certain conditions and timelines.
• If a crime is punishable by more than five years’ imprisonment, the prosecution may require that the trial be by judge and jury, even if you request a trial by judge alone.

Hybrid offences

Many offences in the Criminal Code are classified as ‘hybrid’. They proceed at the discretion of the Crown, which ‘elects’ to try the offence either by indictment or by way of summary conviction, depending on the circumstances of the case.

What is a plea?

A plea is the formal response to a criminal charge, governed by Section 606 of the Criminal Code. To be valid, the plea must be voluntary, informed, and clear.

An accused person can plead:

• Guilty: they admit to the offence and receive sentencing without a trial, either immediately or at a later date scheduled by the judge.
• Not guilty: the case may progress to trial to determine if they committed the crime (the Crown will need to prove guilt beyond a reasonable doubt).

Only a small fraction of not guilty pleas in Calgary end up at a full trial. Often, pre-trial resolutions and diversion programs resolve the matter, negating the need for a trial.

A not-guilty plea preserves legal options while you and your lawyer assess the case.

After entering a not-guilty plea, a Strategic Criminal Defence lawyer can sometimes find mistakes in how the case is being handled or problems with the evidence that could help your case before a trial.

Many cases end up with charges dropped or stayed, reduced charges, non-criminal resolutions, or acquittals at trial.

When and where in Calgary will you make your election and enter your plea?

Elections and pleas typically take place at the Calgary Courts Centre (601 5 Street SW), the same building used for nearly all Calgary criminal matters:

• Less serious matters are heard in the Alberta Court of Justice.
• More serious indictable offences may proceed to the Court of King’s Bench, both located in the same building.

The timing of elections and pleas depends on the case but it doesn’t happen at the first court appearance. You have time to discuss strategy with your defence lawyer:

• If the Crown elects to proceed summarily with a hybrid offence, or your offence falls under the provincial court’s absolute jurisdiction, your matter stays in the Alberta Court of Justice. No election is available to you.
• Where an election is available, you should discuss this with your lawyer and enter a plea only after reviewing the Crown’s disclosure (evidence package), often following one or more earlier court appearances.
• If you elect trial by a judge alone or by judge and jury, your matter proceeds to the Court of King’s Bench, and your plea is entered before that court.

Can you change a guilty or not guilty plea?

If the judge believes you changed your mind after receiving an unexpected sentence or without a good reason, you cannot change your plea.

However, several situations may warrant a change of plea, including:

• No representation or inadequate representation by counsel: you were not fully aware of the legal consequences of the plea.
• Evidence of an invalid plea: such as the failure of the Crown to disclose evidence before trial.
• An uninformed or equivocal plea: you entered a guilty plea without understanding the nature of the charge or the effect of the plea.

The onus is on you to show why the change of plea should be permitted. If valid, the new plea request must be made before sentencing to the same judge who took the plea.

This process is usually best handled by a criminal defence lawyer, who understands the local court procedures and evidentiary rules that must be followed when presenting a case.

Changing a not guilty plea to a guilty plea

In rare cases, it may be advisable to change a not guilty plea to guilty before a trial. This can be accomplished at any stage before the trial and may be advisable if:

• Your defence is weak.
• You face a high likelihood of conviction if you go to trial.

A guilty plea doesn’t necessarily mean a criminal record. In some cases, it may be possible to avoid a criminal record by making an application for a conditional or absolute discharge.

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We can help you make smart criminal defence decisions

The early involvement of a seasoned Strategic Criminal Defence lawyer can help you make informed decisions about your election (if applicable) and your plea. We will:

• Protect your legal rights.
• Explain the legal options available and possible outcomes in plain language.
• Tailor a defence based on the circumstances of your case.
• Represent you at all court appearances.

Our team has defended over 10,000 charges in the past two decades and earned over 750 5-star reviews. Our extensive network of lawyers and experience can work to limit the consequences of the charge for your future.