Criminal Trials | The Election

In Canada, when someone is charged with an offence under the Criminal Code, the term “election” refers to the process by which the accused chooses how they want their case to be handled in court. This is particularly relevant for certain types of offenses, specifically those that fall under the Criminal Code of Canada.

Types of Election

The accused generally has the option to elect between three main venues for their trial:

Summary Conviction Offense:

• These are less serious charges.
• Typically tried in Provincial Court.
• The accused does not have an election to make since these cases automatically proceed in this manner.

Indictable Offense:

• More serious charges.
• The accused can elect to be tried:
  • In provincial court (judge alone),
  • In the Superior Court (with a judge, and possibly a jury).

Hybrid Offense:

These offenses can be prosecuted either as summary or indictable, depending on the circumstances. The Crown (prosecutor) determines whether the charge(s) will proceed by way of indictment or summary conviction. If the Crown chooses to proceed summarily, it means that the Crown has chosen the lesser set of penalties that will result if the accused person is convicted on the charge or charges. If the Crown chooses to proceed by way of indictment, this means that the Crown sees the need to ask the Court for increased penalties if the accused is convicted.

Summarily or By Way of Indictment

In Canada, when the Crown chooses to proceed summarily instead of by way of indictment, it means that they are opting to prosecute a criminal offense using the summary conviction procedure. This choice impacts the legal process significantly and has various implications for the accused. Here’s what it entails:

Summary Proceeding vs. Indictable Proceeding

1. Nature of Offense:

• Summary Conviction Offenses: These are generally less serious criminal offenses, such as minor assaults or certain regulatory offenses. The Crown has discretion to proceed summarily for these types of offenses.
• Indictable Offenses: More serious charges (such as robbery or murder) are typically tried by way of indictment, which allows for more formal procedures, including options for jury trials.

1. Legal Process Differences:

• Speed: Summary proceedings are typically faster to resolve than indictable offenses. This can lead to quicker trial dates and resolutions.
• Judicial Venue: Summary offenses are usually tried in Provincial Court, while indictable offenses can be tried in either Provincial Court (judge alone) or Superior Court (which may involve a jury).
• Rights of the Accused: In summary cases, the accused has fewer procedural rights compared to indictable offenses (e.g., no right to a jury trial).

1. Penalties and Sentencing:

• Lower Maximum Penalties: Summary conviction offenses have lower maximum penalties compared to indictable offenses. Typically, the maximum penalty for a summary offense is six months imprisonment and/or a fine (though this can vary depending on the exact offense).
• Criminal Record: A conviction under a summary conviction can still result in a criminal record, but the implications may be less severe than for more serious indictable offenses.

Implications for the Accused

1. Legal Strategy: If the Crown proceeds summarily, it may indicate that they believe the case is less serious and that the evidence may not support a more serious prosecution. This could potentially affect the accused’s defense strategy.
2. Consulting Counsel: It remains crucial for the accused to seek legal representation to understand the specifics of their case and the consequences of proceeding summarily.
3. Potential for Resolution: Summary proceedings may provide more opportunities for resolution through plea deals or alternative measures, reflecting the less severe nature of the offenses involved.

Conclusion

In summary, when the Crown elects to proceed summarily, it indicates a choice to handle the case in a more streamlined, less formal process suited for less serious offenses. Understanding the implications of this decision is important for the accused, and consulting with legal counsel is key in navigating the process effectively.

Indictable Offenses | What Should the Accused Elect?

The choice largely depends on various factors, including:

Severity of the charges: More serious offenses might warrant a trial in a higher court.

Consequences of the conviction: Potential penalties and lasting impacts on life and career.

Legal Advice: It is crucial for the accused to consult with a lawyer who can provide tailored advice based on the specifics of the case.

Advantages of Trial Before Judge Alone

Whether it is better for an accused in Canada to elect for a trial before a judge alone depends on various factors related to the specific circumstances of the case. Here are some considerations to keep in mind:

Advantages of a Judge Alone Trial:

Quicker Resolution:

Trials before a judge alone can be scheduled sooner than jury trials, which may lead to a faster resolution of the case.

Legal Expertise:

Judges are legal professionals trained to interpret law, which can be beneficial in complex cases. They may understand legal nuances better than a jury.

Less Emotionally Charged:

A judge may avoid emotional biases that can sometimes influence jury decisions. This focus on the legal aspects may favor the accused.

Fewer Legal Complications:

Jury trials can involve additional legal complexities, such as jury selection and jury instructions. A judge-alone trial simplifies the process.

Privacy:

Trials by judge may offer more privacy since they do not involve a public jury, which can be beneficial in sensitive cases.

Disadvantages of a Judge Alone Trial:

Perception of Bias:

Some individuals may believe that a single judge might be less favorable than a jury of peers, depending on the case’s context.

Limited Pressure on the Prosecution:

The prosecution might feel less pressure to present their case compellingly compared to addressing a jury.

Appeals and Judicial Discretion:

The judge has significant discretion, and if the judgment goes against the accused, the grounds for appeal may be limited compared to jury verdicts.

Factors to Consider:

Nature of the Offense: More serious charges might benefit from the “buffer” of a jury.

Evidence Strength: If the evidence strongly favors the accused, a judge alone may be preferable.

Legal Representation: Consulting with a competent defense attorney should always be the first step, as they can provide specific guidance based on the accused’s situation.

Conclusion:

Ultimately, the decision to elect a trial before a judge alone should be made with careful consideration of the specific circumstances, potential outcomes, and legal advice. It’s essential for the accused to weigh the pros and cons based on their unique case.

Advantages of Trial by Jury

In Canada, whether an accused has an advantage in a trial by jury depends on several factors. Here are some potential advantages and disadvantages of opting for a jury trial:

Advantages of a Jury Trial:

Community Perspective:

A jury is composed of members of the community, which can bring a diverse perspective that may be more sympathetic to the accused.

Higher Burden of Proof:

Juries may require a higher degree of persuasion from the prosecution, as they are made up of individuals who might be more reluctant to convict unless they are thoroughly convinced.

Emotional Engagement:

Jurors may connect emotionally with the testimony and evidence, which can sometimes work in favor of the accused, especially in cases with strong personal narratives.

Avoiding Judicial Bias:

The presence of multiple jury members can distribute decision-making, potentially reducing the impact of any individual bias that a single judge might have.

Transparency and Public Interest:

Jury trials can enhance public confidence in the justice system, as they are deemed to involve citizens in the judicial process, which may lead to a perception of fairness.

Disadvantages of a Jury Trial:

Jury Complexity:

Jurors may have difficulty understanding complex legal concepts or evidence, which could negatively impact the accused if the mechanics of the case are not clearly conveyed.

Emotional Decisions:

Jurors can be influenced by emotional appeals or sensational evidence, which may not always align with the legal standards of evidence.

Longer Process:

Jury trials can take longer to arrange and conduct compared to trials by judge alone, potentially delaying resolution.

Unpredictability:

Juries can be unpredictable in their decisions, sometimes leading to outcomes that deviate from what would be expected based on the evidence.

Conclusion:

Choosing between a jury and judge-alone trial should involve a careful evaluation of the specific case details, the nature of the charges, the strength of the evidence, and the potential for emotional appeal. Involve a qualified defense lawyer to discuss these aspects thoroughly, as they can provide tailored advice based on legal strategy.

Costs

Generally speaking, a jury trial is often more costly than a trial before a judge alone. Here are some reasons for the increased costs associated with jury trials:

Reasons Why Jury Trials Are More Costly:

Jury Selection:

The process of selecting a jury involves additional time and resources. Lawyers may need to conduct extensive voir dire (jury selection) to ensure an impartial jury, which can add to overall costs.

Longer Duration:

Jury trials usually take longer than trials before a judge alone. This extended duration can lead to increased costs for legal fees, court expenses, and other related expenses.

Additional Preparation:

Cases that will be tried before a jury often require more extensive preparation, including creating engaging presentations and jury instructions, which can increase legal costs.

Expert Witnesses:

In jury trials, parties might feel the need to call more expert witnesses or present more elaborate evidence to appeal to a jury, which can add to expenses.

Potential for Additional Motions:

Jury trials can lead to more pre-trial motions and legal arguments related to the jury process, which can incur further legal fees.

Additional Considerations:

Court Costs: Court fees can be higher for jury trials due to the additional administrative requirements involved.

Appeals and Retrials: If a jury trial results in a conviction and leads to an appeal, the costs may escalate further if a retrial is required.

Conclusion:

While the total costs can vary significantly based on the specific case, a jury trial is typically more expensive than a trial by judge alone. It’s essential for an accused to consider these financial implications alongside other factors when deciding on the type of trial to pursue. Consulting with a legal professional can provide valuable insights into the best approach considering both legal strategy and costs.

Grant Edward Rayner B.Comm., LL.B.*
Langdon Law PLC
Tel: 506-496-5872 (direct line)

If you have been charged with an offence and require immediate legal advice, call my mobile number at 226-228-1663 (24/7)

* ^{Qualified to Practice Law in New Brunswick and Ontario.
In practice since 1985.}

In Canada, when the Crown chooses to proceed summarily instead of by way of indictment, it means that they are opting to prosecute a criminal offense using the summary conviction procedure. This choice impacts the legal process significantly and has various implications for the accused. Here’s what it entails:

Summary Proceeding vs. Indictable Proceeding

1. Nature of Offense:

• Summary Conviction Offenses: These are generally less serious criminal offenses, such as minor assaults or certain regulatory offenses. The Crown has discretion to proceed summarily for these types of offenses.
• Indictable Offenses: More serious charges (such as robbery or murder) are typically tried by way of indictment, which allows for more formal procedures, including options for jury trials.

1. Legal Process Differences:

• Speed: Summary proceedings are typically faster to resolve than indictable offenses. This can lead to quicker trial dates and resolutions.
• Judicial Venue: Summary offenses are usually tried in Provincial Court, while indictable offenses can be tried in either Provincial Court (judge alone) or Superior Court (which may involve a jury).
• Rights of the Accused: In summary cases, the accused has fewer procedural rights compared to indictable offenses (e.g., no right to a jury trial).

1. Penalties and Sentencing:

• Lower Maximum Penalties: Summary conviction offenses have lower maximum penalties compared to indictable offenses. Typically, the maximum penalty for a summary offense is six months imprisonment and/or a fine (though this can vary depending on the exact offense).
• Criminal Record: A conviction under a summary conviction can still result in a criminal record, but the implications may be less severe than for more serious indictable offenses.

Implications for the Accused

1. Legal Strategy: If the Crown proceeds summarily, it may indicate that they believe the case is less serious and that the evidence may not support a more serious prosecution. This could potentially affect the accused’s defense strategy.
2. Consulting Counsel: It remains crucial for the accused to seek legal representation to understand the specifics of their case and the consequences of proceeding summarily.
3. Potential for Resolution: Summary proceedings may provide more opportunities for resolution through plea deals or alternative measures, reflecting the less severe nature of the offenses involved.

Conclusion

In summary, when the Crown elects to proceed summarily, it indicates a choice to handle the case in a more streamlined, less formal process suited for less serious offenses. Understanding the implications of this decision is important for the accused, and consulting with legal counsel is key in navigating the process effectively. If you have further questions or need more details on this topic, feel free to ask!