DATE: May 20, 2008
UPDATE: November 28, 2008
SUBJECT: ADDRESSING RE-ELECTIONS PURSUANT TO SECTIONS 473, 561, AND 568 OF THE CRIMINAL CODE OF CANADA
Where the accused is charged with an indictable offence other than those listed in s. 469 or s. 553 of the Criminal Code of Canada, the accused is permitted to elect the manner in which he chooses to be tried (i.e., trial by a provincial court judge, trial by judge alone or trial by judge and jury). After the initial election, he may seek to change the mode of trial by re-electing in accordance with the provisions of s. 561. In most cases, these re-elections are authorized only with the consent of the Crown.
Offences listed in s. 469 (“exclusive jurisdiction offences”) are to be tried in the Court of Queen’s Bench with a judge and jury unless the Crown consents to the accused being tried by a Court of Queen’s Bench justice without a jury. Only the Deputy or Assistant Deputy Attorney General, Directors and Chief Crown Prosecutors are designated to give the consent of the Attorney General under this section (see s. 473).
In certain cases, the Attorney General retains the discretion to override an election (or re-election) by the accused and compel a trial by judge and jury (see: s. 568).
The provisions of the Criminal Code authorizing a re-election by the accused require that written notice be given to the Crown. They also require the Crown’s consent be given in writing. However, s. 561 is otherwise silent about the criteria or manner in which Crown prosecutors exercise the discretion to consent or withhold consent to the intended re-election. This guideline is designed to guide Crown prosecutors in the exercise of that discretion.
It should be borne in mind that the interests of the accused and those of the Attorney General are not the same when considering re-election as to mode of trial. The accused is entitled to base his decision to re-elect on purely tactical considerations. A Crown prosecutor’s exercise of discretion must take into account a much broader range of interests. These include legal, practical and ethical interests. This responsibility stems from the Attorney General’s constitutional duty to ensure the orderly administration of criminal justice in the province.
The manner in which the accused has re-elected his mode of trial in criminal proceedings has proven to be very problematic. And the problems have typically arisen where the accused has sought to re-elect trial by judge alone after having originally elected to be tried by judge and jury. Problems have also arisen where the accused has re-elected to be tried by provincial court judge after having elected to be tried in the Court of Queen’s Bench.
Tardy re-elections are harmful to the administration of criminal justice for practical reasons:
- Several weeks before jury selection proceedings, the Sheriff summons many jurors to attend the Court of Queen’s Bench. There is a cost to the system associated with that process.
- Citizens summoned for jury duty must take time off work or away from their everyday duties in order to attend court for this important civic function. Their failure to comply with this summons can render them liable to sanction. There is also a cost to the citizen, their employers and others, all associated with attending court for the purpose of jury selection.
- Jury trials take more time to complete than trials by judge alone. Although the amount of additional time may vary, it is not uncommon for a jury trial to take up to twice as long as a trial by judge alone. Court administrators schedule ‘jury’ trials in accordance with this norm. Where the accused re-elects trial by judge alone at a late date, it is usually impossible to make constructive use of any additional ‘trial’ time scheduled for what was to be a jury trial.
- A Crown prosecutor prepares his or her case based upon the election entered by the accused. Jury trials involve procedures not required in trials by judge alone. These include jury selection procedures, opening and closing addresses, the scheduling of witnesses in a different manner, ordering of voir dires and motions and assistance to the trial judge with the charge. Where there is a tardy re-election, this preparation may be for naught and the scheduling of witnesses may be skewed.
There have been occasions in which an entire jury panel has been assembled and then discharged because of a later re-election in each of the cases scheduled for jury selection. In some instances, more than 200 citizens have been sent home because of tardy re-elections by the accused. The public have expressed their concerns to our office and to the judiciary.
Finally, tardy re-elections by the accused are not mandated by the letter or policy of the law. The starting-point for consideration of the legality of re-elections is the fact that there is, of course, no constitutional right to a trial by judge alone or by Provincial Court Judge: Turpin and Siddiqui v. The Queen (1989), 48 CCC (3d) 8 (SCC). The accused’s right to be tried by judge alone is circumscribed by statute.
The Criminal Code is sensitive to the accused’s need to re-elect his mode of trial following a preliminary inquiry. For it is at that proceeding that the accused may test the credibility of witnesses or otherwise assess the strength of the Crown’s case beyond the information provided through the process of disclosure. Section 561 authorizes a re-election by the accused as of right at any time up to 15 days following the preliminary inquiry (note the exception in s. 561(2)).
However, where that time period has passed, the Criminal Code provides that any further re-election must occur with the consent of the Crown. It is at least arguable that proviso was added in order ensure that these later re-elections are undertaken in a manner that does not interfere with the orderly administration of criminal justice. This guideline is provided in furtherance of that objective.
Three other propositions concerning Crown consent to a defence request to re-elect trial by a judge alone have recently been addressed by our highest courts: (1) the Crown’s legitimate public interest in the mode of trial; and (2) judicial review of the Crown’s exercise of discretion; (3) that the identity of the trial judge is not among the considerations relevant to Crown consent to a defence request to re-elect the mode of trial.
As to judicial review of prosecutorial discretion, in R. v. Ng,  ABCA 1 the Court of Appeal of Alberta stated – in a decision that helpfully summarizes much of the legislation that is the subject of this guideline – as follows:
The case authorities confirm that a trial judge may review a prosecutor’s discretionary decision where the accused has proven on a balance of probabilities that the prosecutor exercised his discretion abusively, capriciously, or for improper motive such that the court may examine whether there was an abuse of process. The court may intervene if it finds it is necessary to prevent the prosecutor’s conduct from resulting in oppressive or vexatious proceedings that would have violated the fundamental principles of justice underlying the community’s sense of fair play and decency.
In respect of the so-called judge-shopping, the majority judgement of the Supreme Court of Canada in R. v. Regan,  1 SCR 297 commented on the impropriety of “judge shopping”
… This Court has adverted to the impropriety of trying to influence the outcome of a proceeding by trying to "select" the judge. Where it appeared that the Crown had abandoned a case before one judge to avoid an unfavourable ruling, and then reinstated charges at a new trial before a new judge, McLachlin J. was quick to point out the affront to the integrity of the system (Scott, supra, at pp. 1008-9)
The Chief Justice of Alberta, writing alone, has also commented in R. v. Ng, supra, on “judge-shopping”.
…Within the constraints of the fair trial process, the defence is entitled to press its case, as is the Crown. However, when the defence re-election to judge alone is firmly tethered to knowing the identity of the trial judge, this belies the assertion that it is the mode of trial which is of primary concern. In these circumstances, it clearly is not. Instead, the choice of mode of trial is being used as a means to manoeuvre the criminal justice system. If the accused considers the particular assigned judge a better option than the jury, then, and only then, does the preferred mode of trial become judge alone. But a right to select mode of trial, where one exists, is not tied to knowing the name of the trial judge. Indeed, the statutory framework under the Code is designed to ensure that the final choice of mode of trial is made before the name of the trial judge is disclosed, failing which Crown consent is required….
Parameters of this Guideline
This guideline applies to those re-elections described in ss. 473, 561 and 568 of the Criminal Code that require the consent of a Crown prosecutor or the Attorney General or involving a direction by the Attorney General as to mode of trial. More specifically, these include re-elections:
- from judge alone or judge and jury to provincial court judge (s.561(1)(a))
- from judge and jury to judge alone (ss.473 & 561(1)(c))
- from judge alone to judge and jury (s.561(1)(c))
- from provincial court judge to judge alone or judge and jury (s.561(2))
- from provincial court judge or judge alone to judge and jury (s.568)
Section 469 Offences / Section 568
Section 469 offences are the most serious offences in the Criminal Code. These offences should be tried by a jury unless there are exceptional and compelling reasons for the matter to be tried by a judge alone.
If a Crown prosecutor recommends that consent to a re-election be granted in a case engaging s. 473, he or she shall refer the request for re-election to the responsible Chief Crown Prosecutor or Director.
Similarly, if a Crown prosecutor is of the view that the Attorney General should direct a trial by judge and jury in accordance with s.568, the Crown prosecutor shall refer the matter to the responsible Chief Crown Prosecutor or Director.
The Exercise of Discretion
- Each Chief Crown Prosecutor may create, and publish for the Defence Bar, criteria that will be applied by the locale’s Crown prosecutors in deciding whether or not to consent to re-election requests.
- Where criteria established by the local Chief Crown Prosecutor permit, a Crown prosecutor should consider the following factors in deciding whether or not to consent to a re-election requests.
- The jury represents the community in the criminal trial process and acts as its conscience. Trials by jury increase the public knowledge of the criminal justice process and can serve to increase the public trust in the process.
- The nature of the offences being tried and the conduct alleged, including whether or not the issues engage community standards.
- Whether or not the accused can receive a fair trial by a jury selected from the community in which the offence is to be tried. (It may be that despite traditional safeguards such as challenges for cause and peremptory challenges the accused might successfully apply for a change of venue.)
- Some aspect of the trial, such as how long it might take, would limit to an unacceptably low number the pool of jurors able to hear the matter.
- Whether the issues at the trial are predominantly factual or legal.
- The complexity of the legal issues.
- How long before the trial the accused seeks the Crown’s consent.
- Any delay a re-election might cause and the effects that delay (including the right of the accused to, and the interests of society in, a trial within a reasonable time).
- The history of the matter, including the accused person’s previous elections and re-elections, and any significant change in circumstances.
- Inconvenience to the Court, including prospective jurors, a re-election might cause.
- The reasons given, if any, for the re-election request.
- A Crown prosecutor from a different Branch of the Criminal Justice Division or a different Crown Prosecution Office who is conducting a trial shall, before consenting to any re-election request, consult with the local Chief Crown Prosecutor in addition to seeking the approval required to provide consent pursuant to s. 473 or applying the criteria outlined above.
- In all cases, the decision to consent (or withhold consent) to re-elect shall be communicated in writing to the accused or to his or her counsel.