{"id":196,"date":"2024-06-11T22:14:38","date_gmt":"2024-06-11T22:14:38","guid":{"rendered":"http:\/\/www.oykhmancriminaldefence.com\/toronto\/?page_id=196"},"modified":"2025-07-08T16:30:10","modified_gmt":"2025-07-08T16:30:10","slug":"election-and-plea","status":"publish","type":"page","link":"https:\/\/www.strategiccriminaldefence.com\/victoria\/election-and-plea\/","title":{"rendered":"Election and Plea Victoria"},"content":{"rendered":"
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What is an Election?<\/h2>\n

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. There are numerous steps to the life cycle of a criminal charge within the court system. Some of those steps you\u2019ve surely heard of and may even have some familiarity with, while others are undoubtedly new to you.<\/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. 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

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

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  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 $5000.00 fine. Summary conviction offences are tried in provincial court by a judge alone (without a jury).<\/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 Prosecutor can elect to proceed by way of indictment, 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. If the Crown proceeds by indictment, the accused will have an election, meaning they can choose the mode of trial.<\/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 Court of British Columbia or whether it will be heard before the superior court (the Supreme Court of British Columbia<\/a>). 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 a judge alone.<\/p>\n

    Whether you should 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 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 elections 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. The main factor the prosecution must consider is whether a jury trial is in the public\u2019s best interest. See section 568 of the Code<\/em>. <\/a><\/p>\n<\/div>

    Attorney General may require trial by jury<\/strong><\/p>\n

    568<\/strong> Even if an accused elects under section 536 or re-elects under section 561 to be tried by a judge or provincial court judge, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge or provincial court judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536(4), unless one has already been held.<\/p>\n<\/div><\/div>