What is an Election?
Whether you are released from custody on a bail 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’ve surely heard of and may even have some familiarity with, while others are undoubtedly new to you.
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.
Criminal offences are classified into three categories. The classification of the offence will impact the election(s) available.
- Summary: 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). To find the Ontario Court of Justice (provincial courthouse) closest to you, please see here. Because summary offences are automatically tried in this way, the accused does not make an election.
- Indictable: 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’s election is set out in section 536(2.1) of the Criminal Code of Canada (the “Code”).
- Hybrid: 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.
The primary election made by the prosecution is in the case of hybrid offences.
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.
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 Ontario Court of Justice (Provincial Court) or whether it will be heard before the Ontario Superior Court of Justice. Where the defence elects to have their trial heard before the Ontario 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.
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.
For more information on the pros and cons of different modes of trial please see our elections FAQ.
Exceptions to the general election rule
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’s 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’s best interest. See section 568 of the Code.
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.
What is a Plea?
In Canada, prior to proceeding to trial, you will have the opportunity to enter a plea of guilty or not guilty. Pleading guilty is a formal admission of guilt to the offence charged. In other words, you are consenting to a guilty verdict and waiving the trial process.
Criminal convictions have both immediate penalties and long-term negative consequences on your future. Depending on the crime, a guilty verdict may impact employment, housing, immigration status, your ability to travel and more. Moreover, social stigma is frequently attached to criminal convictions.
Even if you intend on accepting responsibility for an offence, it is important to consider all your options and the potential short- and long-term consequences. Good representation can greatly reduce the severity of the punishment you face.
Our criminal defence lawyers are skilled at coming to non-criminal resolutions. Even if it is not possible to reach such a resolution, our lawyers will work hard to defend you so that you are not saddled with the most severe consequences of a criminal conviction. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.
Criminal Trial FAQs
- What does making an “election” mean?
- I have already pleaded guilty or not guilty. Can I change my plea?
- How does a criminal trial work in Canada?