Judge & jury? Judge alone? Treating criminal offences differently.

• Author: Jack Watson

Introduction

If you are a reader of true crime or a watcher of the courts, you will have heard of American crimes categorized as felonies or misdemeanours, and perhaps have heard of Canadian crimes categorized as indictable or summary conviction offences. You may also have heard of accused persons being asked if they elect a trial by judge and jury, by judge alone, or by provincial court judge alone. What is the basis of these differences?

This central feature of the criminal law of Canada has become an area of debate in criminal law. The possible results of the debated changes may be one of the most important practical developments in the criminal law in generations, because it has to do with how quickly, and in what court, a person charged with an offence will be tried. And all of this goes by the humdrum and uninspiring name of Classification of Offences.

What is Classification of Offences?

Classification of offences, which sounds like a typically mind-numbing bureaucratism, is based upon a fairly simply idea. That idea is that not all offences under the criminal law are the same, nor are they of the same degree of seriousness. Accordingly, they have to be organized and dealt with differently. That blinding statement of the obvious, however, falls well short of explaining what's involved.

Classification of offences involves setting up the offences and their categories into large groupings for the purposes of determining what court they are tried in, how quickly, where does an appeal go to, and for what purposes. Because some offences are fairly minor, and fairly frequent (unfortunately), it makes no sense to assign to them the costly and slow apparatus of trial by jury. However, some offences are so serious, the consequences are so grave, and the public interest in ensuring an open and fair trial by jury is so great, that this special form of trial is required.

Essentially, classification of offences involves (a) classification by magnitude of the crime, (b) classification by the type of court and mode of trial. This gets a little complicated, so it seems best to briefly talk about the history of Classification of Offences before turning to Canada's current situation.

The History of Classification of Offences

Some people have heard from American television and cinema the words felony and misdemeanour. Although these terms are not used in Canada, they do reflect notions involved in our criminal law about the serious and the less serious categories of crime. These terms actually date back centuries in British history.

Felony refers of the sort of high crime that was, at one time, punishable by only one form of punishment -- death. Apart from issues such as the modes of trial that existed in early times--such as trial by battle or trial by ordeal--the grim reality of felonies was that the trials were brisk and the consequences final. Appeals were not to come along until too late for a number of persons. It is interesting to note that even William the Conqueror wasn't too enthused about the death penalty because of his loss of workingmen, but he, apparently, felt maiming was an adequate substitute.

Crimes regarded as felonies for a long time included a variety of what we would now call property crimes such as theft of a certain type of goods. As the political power of the moneybags began to increase, the number of enacted felonies increased correspondingly, to the point where there were some 200 of them on the books. These included such notables...