CRIMINAL MATTER-ELECTIONS
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1.) Defence Elections Summary
In accordance with Criminal Code, RSC 1985, c C-46, unless provided otherwise, when one has been charged with an indictable offence or hybrid offence, the accused may elect the mode of trial. There are several options when pursuing election. The defence may elect for;
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Trial by Provincial Court Judge
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Trial by Superior Court Judge, with a Judge/jury, and preliminary inquiry
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Trial by Superior Court Judge, with Judge alone, and preliminary inquiry
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Trial by Superior Court Judge, with Judge/jury, no preliminary inquiry
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Trial by Superior Court Judge, with Judge alone, no preliminary inquiry
In the case that trial by a Provincial Court Justice is elected, and the Judge is not a Provincial Court Judge, they will remand the accused to appear before such a Judge and plead to their charge in a division where the offence was alleged to have been committed. In the case where the Justice is a Provincial Court Judge, they will call on the accused at that time to plead to their charge, and in the event they plead not guilty, will commence or schedule a trial. The Justice must also endorse the information that such an election has been made.
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The process for both a Superior Court trial with both a Judge and jury or a Judge alone follows a similar procedure. In this case a preliminary inquiry will be held by the Justice within a scheduled time period or at the time of election. Prior to engaging in the preliminary inquiry, one must provide statements to both the Court and other party as to the issues requiring evidence and to the witnesses they want to hear at the inquiry. Following such statements, there may be a request for a hearing to take place. A hearing would hold the purpose of assisting the parties to identify issues and witnesses and promote a fair inquiry. Whether or not such a hearing is decided upon, the parties might also agree to have the preliminary inquiry be limited in scope to specific issues. Finally, in the case that no preliminary inquiry is selected, the Justice will schedule a date for trial or when the accused must reappear in Court to have a date fixed for the trial.
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As per this selection, the Court is then required to read what is called an election address, as laid out in s. 536(2). The accused or their Counsel may waive this procedure if desired. There are a few caveats to this method of procedure, however. First and foremost, this method is not available to the accused if any of the offences listed in s. 469 are met. Such offences include: murder, treason, mutiny, sedition, piracy and acts of piracy, and intimidating Parliament. Second, the right to election is not available to those who have been charged with an offence that is classified as either absolute or exclusive jurisdiction. S. 469 lists out what is considered exclusive jurisdiction. S. 553 encompasses absolute jurisdiction and is rather vast in its scope, as it includes various forms of theft, mischief and fraud, all under $5000. Absolute jurisdiction also includes; breaches of recognizance, failing to comply with a probation order as well as paragraphs 4(4)(a) and 5(4) of the Controlled Drugs and Substances Act. The Code also stipulates that under the condition that no such election is made that, in accordance with s. 471, it is presumed that the accused shall be tried by a Judge and a jury.
There also exists a stipulation in that the accused may also re-elect their mode of trial, provided they have not already elected trial by a Provincial Court Judge. Both with the written consent of the prosecutor before, on or after the 60th day the preliminary inquiry has been completed the accused may elect a different mode of trial. The accused must also give notice of their intention to re-elect before their preliminary inquiry, along with the prosecutor's written consent to the Justice presiding over the inquiry.
CASE LAW SUMMARIES
1.) R v. FRANCIS, [1998] OJ No 4977.
In R v Francis, it was found that the Defendant, Francis, was not given the right to elect his mode of trial. Thus he sought to nullify the previous proceedings. Previously, the Crown had elected to proceed summarily, and through jurisdictional errors, the Defendant pleaded guilty to an incorrect charge. Thus, the previous plea was nullified, and the ruling rectified from the incorrect plea of guilty for theft under $5000 to theft over $5000.
2.) R v. VUONG, 2010 ONCA 798.
In another case, similar to the above, the Defendant, Vuong, attempted to appeal a previous conviction in regard to his blood alcohol level while operating a vehicle. Vuong asserted that he was not allowed his election as per s. 536(2) of the Criminal Code. The Judge would, however, dismiss the appeal. Despite Vuong not getting his election, there was an entire pre-trial held at which there were no objections made throughout. Thus, Vuong’s complete participation in the pretrial was deemed grounds for waiving the right election.
3.) R v. AW, 2016 ABQB 688.
In this particular case, there is another instance of one incorrectly claiming trial procedure due to not receiving their election in the words of s.536(2). However, the Defendant, AW, was deemed to have waived their rights due to conduct of Counsel.
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It is clear that implied consent and conduct of Counsel during trial is enough to waive a right to election. In so much as case law determines, it seems quite common, except in extenuating circumstances, that appeals on election are often dismissed. This could be largely due to the fact that modes of election for trial should be decided before the case is heard, and all parties have fully participated in the procedures. As such, once an individual has given their implied consent by participating fully and without objection, it is unlikely they will be successful on appeal citing s.536(2).
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RE-ELECTION BEFORE TRIAL
When the defence has the right to elect the mode of trial, there is a limited window of time to be able to re-elect a different mode of trial. In particular, in terms of a re-election to a Superior Court Justice with a preliminary inquiry, the defence must submit their notice of intention to the Provincial Court Judge. If the notice is sent more than 60 days before a trial, no consent is needed, whereas if the notice is sent 60 days or less before a trial, there will be consent needed.
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It appears largely that with all occurrences of re-election, as long as they fall within the required timeframe (more than or less than 60 days before), the Crown must generally consent to re-election. Specifically it appears that cases where the Crown withholds their consent have been met with unfavourable decisions by Judges.
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CASE LAW SUMMARIES
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1.) R v. DME, 2014 ONCA 496
In this particular case, the accused was initially charged with sexual assault. The Crown elected for indictment and the accused requested a trial by jury. After the pretrial, the Crown decided to proceed summarily instead, on two counts and the accused pleaded guilty. The same Judge sentenced the accused to 12 months of imprisonment. The accused argued that the Judge lacked jurisdiction to sentence him after the re-election to summary conviction. The appeal was allowed.
2.) R v. RUSTONG (Man CA), 1991 MJ No 112
In this particular case, the accused, charged with sexual assault, was charged with another account of sexual assault while the trial was pending. Separate preliminary inquiries were held. While attending the preliminary hearing for the second charge, the accused elected trial by Judge alone. When the accused was informed that the Crown intended to file similar fact evidence in relation to the first charge, they filed notice to change the mode of trial to trial by jury. The Crown withheld their consent.
An appeal was successfully allowed on the grounds that the accused had their 11(f) Charter rights infringed upon by the withholding of consent on the part of the Crown. It was deemed that the accused had a right to make an informed decision in regard to their trial. This re-election was filed within 14 days of the trial and met the necessary timeframe.
3.) R v. ARNOLD 2014 ONSC 2706
This case saw three individuals accused on numerous charges, including sexual assault. The accused individuals opted for trial by jury. At that trial, the victim, and only Crown witness, had no recollection of any details regarding the alleged incident. Then the accused individuals went for trial by Judge alone and the Crown refused consent. It was held that the only fair way going forward was to allow the accused trial by Judge alone due to inconsistent Crown evidence, and the weakness of the case. The accused individuals were all found not guilty.
4.) R v. SHILMAR, 2017 ABPC 213
The accused, charged with sexual assault, initially elected to be tried by a Provincial Court Judge. On the day of the trial, the accused appointed a new Lawyer, which led to an adjournment. No re-election was sought. The second Lawyer would later withdraw due to a conflict, resulting in a third Lawyer. The accused now sought to re-elect to trial by Judge and jury, arguing that he had not been a recipient of effective Legal counsel up to that point. The motion was dismissed due to the accused not being allowed to elect a new method of trial no later than 14 days before the first appointed trial date.
Summary:
In summary, it appears that most case law points to re-election being allowed, provided it is not within 14 days of the trial and meets the time limitations as expressed in the Criminal Code. In opposition, most cases that do not allow re-election seem to hinge arguments on fairness of trial.