What does making an “election” mean?
In criminal trials there are two types of election: the Crown Prosecutor’s election, and the defence’s election.
When an accused is charged with a hybrid offence, the Crown Prosecutor can elect to proceed by way of indictment and seek jail time in the event of conviction, or they can elect to proceed summarily. When the Crown proceeds by way of summary conviction, the matter will be heard before the provincial court and the defence will not have an election.
The defence makes an election when the Crown proceeds by indictment. In this instance the defence will be able to choose whether their matter will be heard before the provincial Court, or whether it will be heard before the superior court. Where the defence elects to have their trial heard before the superior court, they will also have the right to chose whether they would like the trial to be heard before a judge and a jury, or a judge alone.
Whether it would be more beneficial to proceed to trial with judge alone or with a judge and a jury will depend heavily on the unique circumstances of your case. For example, it may be favorable to proceed by judge alone in instances where the verdict turns on highly technical points of law that may be difficult for people without a legal background to grasp. However, there are great benefits to having a jury decide the outcome of a trial. Not only will a jury not be subject to the same individual biases that a single judge may have, but the Prosecutor will have to convince 12 people of the accused’s guilt, rather than just one. However, whether in your case it is more beneficial for you to proceed to trial with a judge and jury or with a judge alone is a decision that should be made in consultation with your criminal defence lawyer.
An exception to these customary choices in the mode of trial are for those offences that, according to the Criminal Code, are the most serious offences under Canadian criminal law. Among them are murder, treason, and terrorism offences. Unlike indictable offences where an accused has a right to be tried before a judge alone, these offences must be tried by a jury unless the Crown consents to a trial by judge alone.
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About The Author
Michael Oykhman
Managing Partner
Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.
My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.
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