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

Revised March 25, 2022

1. Introduction
2. Crown elections in hybrid offences
3. Re-elections by an accused
- 3.1 Statement of Policy
4. Decision to require trial by judge and jury
- 4.1 Statement of Policy
- 4.2 Procedure

1. Introduction

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

Deciding whether to proceed summarily or by indictment in "hybrid" ("dual procedure") offences;
Consenting to re-election by an accused; and
Requiring a trial by a judge and jury under s. 568 of the Criminal Code (Code).

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

Crown counsel should generally 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 must examine the circumstances surrounding the offence and the background of the accused. Factors that are of particular importance include whether:

The facts alleged make the offence a relatively serious one, for example when:

The offence caused death or serious bodily harm;
The offence involves a large number of victims or a large financial loss;
An innocent third party suffered significant losses because of the actions of the accused or by innocently acting on the advice of the accused;
The accused, or someone on the accused's behalf, attempted to tamper with important evidence or witnesses; or
The accused used intimidation to coerce others to assist in or acquiesce in the offence.

The accused has a lengthy criminal record or a record of criminal convictions for similar types of offences.
In the event of a conviction, the range of sentences at the summary conviction level could adequately address the purpose and principles of sentencing in respect of the particular offender and offence.^{Footnote 5}
Having to testify at both a preliminary inquiry and a trial may have an effect on witnesses.^{Footnote 6}
The offence is prevalent in the community and requires deterrence.
The accused is alleged to be a member of a criminal organization as defined in s. 467.1(1) of the Code.
The accused holds themselves out as a member or sympathizer of a criminal organization or of an organization that uses physical violence or intimidation, or wears symbols associated with a criminal organization.
It is in the public interest to have a trial by jury.

Where an accused is charged with a number of offences arising out of the same transaction, Crown counsel should also consider making elections that avoid a multiplicity of proceedings. Such a course may benefit the accused, by reducing their 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:

The particular circumstances of the offence did not come to light until shortly before or at some time after the limitation period expired;
The accused contributed significantly to the delay;
The investigative agency acted with due diligence but the investigation continued beyond the limitation period because of the complexity of the case; or
Not proceeding would bring the administration of justice into disrepute.

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 their 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, the CFP or the Director of Public Prosecutions (DPP). More specifically, these include re-elections:

From judge alone or judge and jury to provincial court judge (ss. 561(1)(a) and (c) of the Code);
From provincial court judge to judge alone or judge and jury (s. 561(2) of the Code);
From judge and jury to judge alone for offences listed in s. 469 (s. 473 of the Code);
To another mode of trial in the Nunavut Court of Justice (ss. 561.1(1) and (3) of the Code).

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:

The timing of the request for re-election;^{Footnote 14}
The impact of a re-election on the orderly administration of justice;^{Footnote 15}
The reasons for the re-election;^{Footnote 16}
The delay that may result from the proposed re-election and whether this delay could lead to a violation of s. 11(b) of the Canadian Charter of Rights and Freedoms;
Any previous re-election by the accused in the same case;
The inconvenience caused by a re-election on the court, including prospective jurors and witnesses;
The complexity of the legal issues; and
The public interest in having a trial by jury.

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 their decision to re-elect on purely tactical considerations. Crown counsel's exercise of discretion cannot be for tactical reasons. It must instead take into account a much broader range of interests, including 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 DPP^{Footnote 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 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;
Community standards are in issue, or where the accused's guilt or innocence is of particular public importance; and
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 must be made personally by the DPP, on the advice of a Deputy Director of Public Prosecutions (DDPP) and the CFP.

4.2 Procedure

In cases where a prosecutor seeks the DPP's approval under s. 568 of the Code, the prosecutor should generally provide notice to the accused or their counsel. The prosecutor should also present their request for approval to the DPP at the earliest stage of the proceeding possible.

To request the DPP's approval under s. 568 of the Code, the prosecutor must:

Inform their Chief Federal Prosecutor (CFP) or Deputy Chief Federal Prosecutor (DCFP) of the potential request for approval.
Prepare a memorandum containing:
1. A concise statement of facts showing that there is a reasonable prospect of conviction and that the public interest is best served by a prosecution. If multiple accused are to be charged, the memorandum must demonstrate that there is sufficient evidence to implicate each accused individually. The statement of facts must also include:
  1. The name of the accused;
  2. Their citizenship, if the accused is not a Canadian;
  3. A list of the charges sought against the accused;
  4. A summary of the evidence;
  5. A historical or procedural record of the case;
  6. Any representation made by defence counsel in response to being notified that a decision under s. 568 of the Code was being sought; and
  7. The date by which a decision under s. 568 of the Code is required.
2. An analysis explaining:
  1. The strengths and weaknesses of the case;
  2. Any significant legal issues expected to be encountered and any issues of particular importance to the public interest;
  3. The reasons why a trial by a judge and jury would be in the public interest; and
  4. The factors set out in this guideline, including a reasoned and objective assessment of the factors weighing both for and against requiring a trial by judge and jury.
3. A copy of the approved prosecution plan, if any.
4. An annex containing an indictment containing all charges for which requirement for a trial by a judge and jury is requested, with the following appearing at the end:
  - I hereby require the above-named accused to be tried by a court composed of a judge and jury pursuant to section 568 of the Criminal Code.
  - Dated at Ottawa, Ontario, this_____ day of _____ , _____ .
  - Director of Public Prosecutions and Deputy Attorney General of Canada
Provide this memorandum to the CFP or DCFP.

The CFP or the DCFP will:

Inform the appropriate Deputy Director of Public Prosecutions (DDPP) of the intention to seek the DPP's approval under s. 568 of the Code.
Review the memorandum prepared by the prosecutor and, if they are satisfied that the factors are met and that requiring a trial by a judge and jury pursuant to s. 568 of the Code is appropriate, endorse the memorandum and send it to the DDPP.

The DDPP will:

Review the memorandum and conduct an objective assessment of the request. In this role, the DDPP exercises a challenge function.
Advise the CFP or DCFP that no recommendation will be made to the DPP, if the DDPP concludes that requiring a trial by a judge and jury pursuant to s. 568 of the Code is not appropriate in the circumstances.
Endorse the recommendation and send it to the DPP, if the DDPP concludes that requiring a trial by a judge and jury pursuant to s. 568 of the Code is appropriate.

Footnotes

Footnote 1

See the PPSC Deskbook guideline "2.2 Duties and Responsibilities of Crown Counsel". For example, Crown counsel's election decision should not be made for the sole purpose of prohibiting access to conditional sentences under s 742.1(f) of the Code. See also R v De Zen, [2010] OJ No 601 (ONSCJ).

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Footnote 2

Ibid at paras 35–36. See also R v Gill, 2012 ONCA 607 at para 77.

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Footnote 3

For a discussion of the nature of hybrid offences, see R v Dudley 2009 SCC 58, [2009] 3 SCR 570 [Dudley]; see generally R v Smythe, [1971] SCR 680, (1971), 3 CCC (2d) 366, which held that the discretion given by law to the Attorney General to prosecute by way of summary conviction or on indictment is not discriminatory or contrary to the principles of equality under the Canadian Bill of Rights; R v Century 21 Ramos Realty (1987), 32 CCC (3d) 353 (Ont CA), holding that the authority of Crown counsel to elect the mode of procedure in hybrid offences is not contrary to the Charter of Rights and Freedoms; R v V.T., [1992] 1 SCR 749, (1992), 71 CCC (3d) 32 which confirmed R v Smythe

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Footnote 4

Before the Crown elects, a hybrid offence is treated as an indictable offence, pursuant to s 34(1)(a) of the Interpretation Act, RSC 1985, c I-21. See also Dudley, supra note 3 at paras 18, 20. Where the Crown fails to elect the mode of procedure for a hybrid offence and the case proceeds in summary conviction court, the Crown is deemed to have elected to proceed on a summary conviction basis: see E. Ewaschuk, Criminal Pleadings and Practice in Canada, 2d ed, Aurora (Ontario: Canada Law Book, 2010) at s 7:2070.

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Footnote 5

Note, however, that imposition of the maximum sentence for a summary conviction offence does not require the the "worst offence" having been committed in the "worst circumstances". See R v LM, 2008 SCC 31, [2008] 2 SCR 163 at paras 18–22.

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Footnote 6

If the procedure by indictment is chosen, this may lead to the preferring of a direct indictment or resort to s 540(7) of the Code where the complainant's evidence is considered credible and trustworthy. See the PPSC Deskbook guideline "3.6 Direct Indictments" and the PPSC Deskbook directive "5.6 Victims of Crime".

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Footnote 7

R v Sheehan, 2010 NLTD 167 (CanLII) at paras 10–16, citing Abarca v R, (1980) 57 CCC (2d) 410, (ONCA) at para 17, R v Graetz, 2007 QCCS 309 at paras 16–17, R v Linton, [1994], 90 CCC (3d) 528, 18 OR (3d) 647 (Gen Div).

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Footnote 8

See s 786 of the Code. For a discussion of the governing principles where a hybrid offence is prosecuted by way of summary conviction beyond the six-month limitation period, see Dudley, supra note 3 at paras 2, 24, 29. For example, where an information contains both indictable and straight summary conviction offences, defence counsel may want to avoid an indictable trial and may thus consent to a Crown election to proceed summarily in respect of statute-barred offences.

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Footnote 9

Dudley, supra note 3 at para 19.

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Footnote 10

Ibid at paras 42–44. Prior to Dudley, there was a large and divided body of case law considering the Crown's right to "re-elect" on the original information to proceed by indictment after first electing to proceed summarily; See e.g. Dudley, supra note 3 citing Re Abarca and The Queen, (1980) 57 CCC (2d) 410 (ONCA) at para 17; R v Jans, (1990), 59 CCC (3d) 398 (Alta CA) [Jans]; R v Burke, (1992), 78 CCC (3d) 163 (Nfld CA); R v Kalkhorany, (1994), 89 CCC (3d) 184 (Ont CA); R v Boutilier, (1995), 104 CCC (3d) 327 (NSCA) [Boutilier]; See also R v Phelps, (1993), 79 CCC (3d) 550 (ONCA).

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Footnote 11

Dudley, supra note 3 at para 44.

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Footnote 12

There are a number of decisions in the area, with each turning on its particular facts; See e.g. Dudley, supra note 3 at para 5; R v Smith, 210 NSR (2d) 234; 170 CCC (3d) 315, R v Quinn (1989), 54 CCC (3d) 157 (Que CA); Boutilier, supra note 10 (the first information was laid within the six month limitation period, but charged the wrong offence. On those facts the court was satisfied the second information was an abuse of process and that a stay was the appropriate remedy); R v Belair (1988), 41 CCC (3d) 329 (ONCA); Jans, supra note 10.

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Footnote 13

Section 473 of the Code is specific to the offences listed in s 469 (e.g. murder) and allows for a trial without a jury when both the accused and Attorney General consent.

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Footnote 14

For example, Crown counsel should ask: How soon after the time limit was the request made? Was the request made before a particular trial judge was assigned?

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Footnote 15

Tardy re-elections may be harmful to the administration of justice for various practical reasons including jury selection proceedings, summons of potential jurors, inconveniencing witnesses, and Crown counsel trial preparation.

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Footnote 16

For example, the Supreme Court of Canada affirmed the impropriety in trying to influence the outcome of a proceeding by trying to "select" the judge (i.e. "judge-shopping") in R v Regan, 2002 1 SCR 297 at para 60. See also R v Ng (2003), 173 CCC (3d) 349, 12 CR (6^th) 1, [2003] 11 WWR 429 (ABCA): "Within the constraints of the fair trial process, the defense is entitled to press its case, as is the Crown. However, when the defense 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 maneuver 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 Criminal 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."

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Footnote 17

See e.g. R v Ng (2003), 173 CCC (3d) 349, 12 CR (6^th) 1, [2003] 11 WWR 429 (ABCA) at para 33 "The basis for a court to probe into prosecutorial discretion, therefore, arises in the limited case of an abuse of the court's process where the prosecutor's misconduct threatens either the accused's Charter right to a fair trial or the public interest in a fair and just trial process."

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Footnote 18

In Re Hanneson v The Queen (1987), 31 CCC (3d) 560 (ONHC), it was held that this section is not contrary to the Canadian Charter of Rights and Freedoms.

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Footnote 19

The DPP makes the decision under and on behalf of the Attorney General of Canada. See the PPSC Deskbook guideline "3.5 Delegated Decision-Making", as well as the Delegation to Prosecutors, the Delegation to Paralegals and the Delegation to Articling Students.

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Date modified:: 2022-04-20

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