3.10 Elections and Re-Elections

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Introduction

This guideline is designed to direct Crown counsel in the following exercises of prosecutorial discretion:

Like any exercise of prosecutorial discretion, decisions regarding elections and re-elections must be made in accordance with Crown counsel’s duty to be fair.Footnote 1 Such decisions must not be, and must not appear to be, an attempt by the prosecutor to achieve an unfair tactical advantage.

While the Crown is not legally required to give reasons for its elections or its refusal to consent to an accused’s intended re-election, the need to maintain public confidence in the administration of justice may necessitate in some circumstances the giving of reasons. For example, Crown counsel should consider providing an explanation for a particular decision regarding elections and re-elections where the basis is not self-evident and it is reasonably foreseeable that the lack of an explanation would lead the court or members of the public to draw conclusions that attribute erroneous and improper motives to the Crown’s exercise of prosecutorial discretion.Footnote 2 Prior to giving reasons in respect of these decisions, Crown counsel must consult with and seek prior approval of their Chief Federal Prosecutor (CFP) or the CFP’s designate. Additionally, Crown counsel should note in the prosecution file the particular factor(s) which influenced their decision.

2. Crown Elections in Hybrid Offences

In hybrid offences, Crown counsel has the discretion to proceed by summary conviction or indictment.Footnote 3 This discretion allows Crown counsel the flexibility of taking the specific circumstances of a case into account to ensure that the interests of justice, including the public's interest in the effective and efficient enforcement of the criminal law, are best served.

2.1. Statement of policy

Generally, Crown counsel should elect whether to proceed summarily or by indictment on a hybrid offence before the accused is asked to enter a plea on the charge(s).

When deciding whether to proceed summarily or by indictment,Footnote 4 Crown counsel shall examine the circumstances surrounding the offence and the background of the accused. The following factors are of particular importance:

Where an accused is charged with a number of offences arising out of the same transaction, Crown counsel also should consider making elections that avoid a multiplicity of proceedings. Such a course may benefit the accused, by reducing his or her court appearances, as well as serve the interests of the administration of justice. This approach will be beneficial not only at the trial level, but also in the event of an appeal.

2.2. Crown re-elections

Where the Crown initially elects to proceed by indictment, Crown counsel normally may re-elect to proceed summarily without the accused’s consent, unless the preliminary inquiry or trial has begun.Footnote 7 Crown re-elections may be used, for example, in respect of guilty plea agreements. The factors set out in the previous paragraph apply in respect of re-elections.

2.3. Proceeding summarily or by indictment beyond the six-month limitation period

A summary conviction court has jurisdiction, with the consent of both the Crown and defence counsel, pursuant to s. 786(2) of the Code, over time-limited summary conviction proceedings.Footnote 8 Absent consent, it does not. Where the Crown elects to proceed summarily beyond the statutory limitation period, the prosecutor and the defendant must both declare expressly on the record — again, before plea — that they agree to proceed summarily.Footnote 9

The failure of the accused to consent to the prosecution of a hybrid offence by way of summary conviction beyond the limitation period is fatal to the validity of the Crown’s election and to the proceedings that ensued.Footnote 10 However, the information remains valid, and the Crown may still proceed by indictment, unless “the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency”.Footnote 11 In some circumstances, the Crown's election may be impugned as an abuse of process if it appears that it was made solely to circumvent a limitation period.Footnote 12

Where, having considered the factors set out in section 2.1 of this guideline, Crown counsel would normally elect to proceed summarily but the limitation period for a summary proceeding has expired and the accused has refused to give consent to have the matter proceed by summary conviction, Crown counsel generally should not elect to proceed by indictment unless:

3. Re-Elections by an Accused

Where the accused is charged with an indictable offence other than those listed in s. 469 or s. 553 of the Code, the accused is permitted to elect his or her mode of trial (i.e., trial by a provincial or territorial court judge, trial by judge alone or trial by judge and jury). After the initial election, the accused may seek to change the mode of trial by re-electing in accordance with the provisions of s. 561 or s. 561.1 of the Code (for Nunavut).Footnote 13 In most cases, these re-elections are authorized only with the Crown’s consent.

The Criminal Code provisions authorizing 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, ss. 561 and 561.1 of the Code are 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 applies to the re-elections described in ss. 473, 561 and 561.1 of the Code that require the consent of Crown counsel or the Director of Public Prosecutions (DPP). More specifically, these include re-elections:

3.1. Statement of policy

While the decision to consent or to refuse to consent to a re-election must be made on a case-by-case basis, Crown counsel should generally consent to a timely request for re-election made by an accused or counsel for the accused. The following factors are important in deciding whether to consent. In some instances one of them may be decisive:

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 or her decision to re-elect on purely tactical considerations. Crown counsel’s exercise of discretion cannot be for tactical reasons but must take into account a much broader range of interests. These include legal, practical and ethical interests.

Absent Crown misconduct amounting to an abuse of process (arbitrary, capricious or improper considerations), the court has no jurisdiction to override the Crown’s exercise of discretion not to consent.Footnote 17

4. Decision to Require Trial by Judge and Jury

4.1. Statement of policy

Under s. 568 of the Code,Footnote 18 the DPPFootnote 19 may require an accused to be tried by a court composed of a judge and jury, even if the accused has previously elected or re-elected otherwise. The alleged offence must be punishable by more than five years imprisonment.

A requirement to be tried by judge and jury under s. 568 of the Code will be directed only when it is in the public interest to do so. Requiring a trial by judge and jury may be warranted on the basis of factors including the following:

  1. where someone who is normally involved in the administration of justice, such as a police officer, lawyer, or judge, is charged with a serious offence. It is important in those cases to ensure that the public has, and continues to have, confidence in the criminal justice system;
  2. where community standards are in issue, or where the accused's guilt or innocence is of particular public importance; and
  3. where jointly charged accused select different modes of trial, and the provincial court judge chooses not to exercise the power in s. 567 of the Code to decline to record the non-jury elections.

In all instances the decision to proceed under s. 568 of the Code shall be made personally by the DPP, on the advice of a Deputy DPP and the CFP.

4.2. Content of the request

The CFP must ensure preparation of the following:

  1. a legal memorandum that should:
    1. set out the names of the accused, the charges, and the date, if any, for which the decision under s. 568 of the Code is required;
    2. summarize the admissible evidence in support of the charges;
    3. set out the historical and/or procedural record of the case;
    4. highlight any significant legal issues that are anticipated, and any issues of particular importance to the public interest;
    5. explain the reasons why it is in the public interest to require a jury trial;
    6. include a list and a reasoned and objective assessment of the factors weighing both for and against requiring a trial by judge and jury, and the recommendation of the CFP; and
    7. when Crown counsel has provided notice to defence counsel, the memorandum should also set out any representations made by defence counsel in response to the notice of the prospect of a requirement;
  2. Two original indictments containing all charges on which the requirement is sought to be directed. Both should be signed in the usual way by the person normally signing indictments in the Regional Office. Below that, the following should appear:
  3. I hereby require the above-named accused to be tried by a court composed of a judge and jury pursuant to s. 568 of the Criminal Code. Dated at Ottawa, Ontario, this ____day of ____ ,  ____.

Director of Public Prosecutions and Deputy Attorney General of Canada

4.3. Procedure

In general, requests for a requirement should be presented to the DPP at the earliest possible stage of proceedings. Generally, notice should be given to the accused or counsel for the accused.

The CFP shall review each recommendation and, if satisfied that the case is appropriate to direct a requirement under s. 568 of the Code, send it to the appropriate Deputy DPP with a recommendation.

If the Deputy DPP concludes that the circumstances do justify proceeding under s. 568 of the Code, then advice on the case will be prepared for the DPP and the recommendation will be forwarded to the DPP for consent. If the Deputy DPP concludes that proceeding under s. 568 is not appropriate in the circumstances, the Deputy DPP will advise the CFP that no recommendation will be made to the DPP. The DPP ultimately decides whether or not to require a jury trial under s. 568 of the Code If the DPP accepts the recommendation, one of the original indictments, signed by the DPP, will be sent to the Regional Office. The second signed original will be filed at Headquarters.

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