{"id":50505,"date":"2022-01-24T23:07:59","date_gmt":"2022-01-24T23:07:59","guid":{"rendered":"https:\/\/www.oykhmancriminaldefence.com\/faq\/?p=50505"},"modified":"2025-09-19T16:22:55","modified_gmt":"2025-09-19T16:22:55","slug":"election-and-plea-in-canada","status":"publish","type":"post","link":"https:\/\/www.strategiccriminaldefence.com\/faq\/election-and-plea-in-canada\/","title":{"rendered":"Election and Plea in Canada"},"content":{"rendered":"

Whether you are released from custody on a bail<\/a> order, or detained in custody, navigating the criminal justice system can be extremely daunting to do alone. For a step-by-step overview, see our guide to\u00a0Canada\u2019s criminal court process<\/a>.<\/p>\n

There are numerous steps to the life cycle of a criminal charge within the court system. Some of these steps you\u2019ve surely heard of and may even have some familiarity with, while others are likely new to you. If you have just been charged, here is\u00a0what happens when you are charged with a crime<\/a>.<\/p>\n

One important step is deciding, when applicable, where the trial will take place and whether it will be by judge and jury or by judge alone. How you or your loved one will be tried depends on multiple factors, including the classification of the offence, and, when applicable, elections made by the Crown and the accused.<\/p>\n

Election refers to the ability of the Crown and\/or the accused to choose which court will have jurisdiction over a criminal charge.<\/p>\n

\"plea<\/p>\n

Offence Classification<\/h3>\n

Criminal offences are classified into three categories.<\/p>\n

The classification of the offence will impact the election(s) available:<\/strong><\/p>\n

    \n
  1. Summary:<\/u><\/strong> Offences falling into the summary offence category are typically considered less serious. Summary offences carry lower penalties than indictable offences with the maximum penalty generally being two years less a day and a $5,000.00 fine. Summary conviction offences are tried in provincial court by a judge alone (without a jury). Because summary offences are automatically tried in this way, the accused does not make an election.<\/li>\n
  2. Indictable:<\/u><\/strong> Indictable offences are more serious and carry higher maximum sentences. Reflecting the more serious nature of the charges, the accused is put to an election, meaning they can choose how they are tried. The precise wording for the accused\u2019s election is set out in section 536(2.1) of the Criminal Code of Canada <\/em>(the \u201cCode<\/em>\u201d).<\/a><\/u><\/li>\n
  3. Hybrid:<\/u><\/strong> Hybrid offences are at the discretion of the Crown, meaning that the Crown can choose to try the offence either by indictment or by way of summary conviction. This is the main election that the Crown will make.\u00a0<\/strong><\/li>\n<\/ol>\n

    Crown election<\/h3>\n

    The primary election made by the prosecution is in the case of hybrid offences.<\/p>\n

    When an accused is charged with a hybrid offence, the Crown can elect to proceed by way of indictment, or they can elect to proceed summarily.<\/p>\n

    When the Crown proceeds by way of summary conviction, the matter will be heard before the provincial court and the accused will not have an election.<\/p>\n

    Accused election<\/h3>\n

    The defence makes an election when the Crown proceeds by indictment. In this instance the defence will be able to choose whether the matter will be heard before the provincial or superior court.<\/p>\n

    Where the defence elects to have their trial heard before the superior court, they will also have the right to choose whether they would like the trial to be heard before a judge and a jury, or judge alone.<\/p>\n

    Whether you or your loved one are advised to elect to be tried by judge alone or by judge and jury depends heavily on your unique circumstances. Selecting a mode of trial is an important step in the criminal trial process<\/a> and should be made in consultation with your experienced criminal defence lawyer.<\/p>\n

    For more information on the pros and cons of different modes of trial please see our making an election FAQ<\/a>.<\/p>\n

    Exceptions to the general election rule<\/h3>\n

    If a crime is punishable by more than five years imprisonment, the prosecution may require that the trial is by judge and jury. This means that absent the prosecution\u2019s consent, you cannot have a trial by judge alone.<\/p>\n

    The main factor the prosecution must consider is whether a jury trial is in the public\u2019s best interest. The prosecutor\u2019s ability to do this is found in section 568 of the Code<\/em>: <\/a>\u00a0<\/em><\/p>\n<\/div>