Over a number of years, and with increasing amendments to the Criminal Code, the procedures for deciding the mode of trial have become needlessly complex. The current scheme is "based more on the accidents of history than on any rational plan."1As a practical matter, it is easiest to understand the current system first by imagining the very simple system that, at least conceptually, underlies it and then by looking at the variety of exceptions that serve to effectively conceal that model.
Imagine a system of prosecuting crimes that has only two types of offences and two methods of prosecution: less serious offences that are prosecuted in lower courts, and more serious offences that are prosecuted in superior courts. That seems to be the underlying theory of our classification and mode of trial system, but it is subject to amendments, exceptions, and sub-exceptions relating to the number of types of offences, the number of modes of trial, and the provision to the accused of a choice of mode of trial in some cases and then the removal of that choice in others. We shall pursue each of these issues in more de-
tail below, but an overview of how these exceptions overlay the simple model will be a useful starting point.
First, in one sense our system has only two types of offences: summary conviction offences and indictable offences. However, the model is made more complex because the Code provides for a great number of offences that can be prosecuted in either fashion: these are referred to as "hybrid offences."
Second, there are not really only two modes of trial, but three. One mode of trial is in front of the "court of criminal jurisdiction," and the other mode of trial is in front of the "superior court of criminal jurisdiction." However, the superior court can hear matters in two ways: either without a jury (a "judge alone" trial) or with a jury.
Third, we do not automatically send all less serious offences to the lower court and all more serious matters to the superior court. For summary conviction offences that equation does hold, and the only mode of trial for them is in the court of criminal jurisdiction. In the case of indictable offences, however, the accused is not forced to choose the "top of the line" mode of trial, and can instead choose whether to have a trial by superior court judge and jury, by superior court judge alone, or by provincial court judge. This choice is referred to as an "election."
Fourth, having given that election to the accused, the Code then takes it away again in a number of situations. For example, section 469 lists a series of offences that must be tried by a judge and jury, so the accused is given no election. Further, section 553 lists a number of offences that will be tried in provincial court, and so again the accused is given no election. In principle, the rationale for these two lists is that since section 469 contains such serious offences-for example murder-the public interest demands a jury trial. In contrast, section 553 lists offences that are less serious than most indictable offences (though not so much less serious as to be summary conviction offences, it seems), and so there is no justification to offer the accused any choice beyond provincial court.
Fifth, if the trial will eventually take place in a superior court (either a judge alone, or a judge and jury) the matter does not go immediately to trial, but can first be referred to a preliminary inquiry in front of the provincial court. Only if this proceeding concludes that there is sufficient evidence will a trial actually take place.
Finally, there are various other exceptions to exceptions, such as the ability of the Crown, in some cases, to compel a jury trial, regardless of the accused’s election, or the ability of the accused to re-elect having made one election, and so on.
One might also note that the way in which the Code is drafted does not contribute to an easy understanding of this structure. Section 471, for example, states that trial by jury is compulsory for all indictable of-fences, unless some other Code provision creates an exception to that requirement. Other Code provisions then create exceptions for literally every offence. One could easily gain the impression that trial by jury is the norm when, in fact, it is a rarity.
Criminal offences are classified as indictable or offences punishable on summary conviction. These are the only two classifications in Canadian criminal procedure. In every statutory provision that creates an offence Parliament designates the offence by one classification or the other.2However, for many offences Parliament has applied a hybrid classification to allow the prosecutor discretion as to whether to proceed by indictable-offence procedure or summary conviction procedure. That is, the offence is designated to fall into either category. Offences thus designated are typically called hybrid or dual procedure offences. These should not be viewed as a third classification of of-fences, however, because they represent no more than a legislative decision to allow the prosecution the right to elect to proceed by one form of procedure or the other.3Once that election is made, the procedure for that type of offence will be followed.
In broad terms, indictable offences are more serious than summary conviction offences but, unfortunately, the classification of the offence is not always a reliable indication of its relative seriousness. It is cer-
tainly true that indictable offences carry a higher maximum penalty than summary conviction offences but this, by itself, is not a sound or sophisticated gauge of the seriousness of crimes. Some serious offences of violence may be prosecuted by way of summary conviction procedure while many nonviolent, property offences must be prosecuted by indictable procedure. Neither the severity of the maximum penalty, nor the perceived seriousness of violence provides a sound basis to explain why offences have been designated as they have. Indeed, the existence of hybrid offences, and the growing numbers of them, seems only to provide acknowledgement that the classification of offences is not something that can easily be rationalized by reference to their seriousness.
Nevertheless, the classification of offences is one of the most important organizing principles in the law of criminal procedure. The most obvious is perhaps the jurisdiction of the courts over offences, but some other ramifications of the classification might be...