Elements of Criminal Procedure

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 35-65

35

CHA PTER 3

ELEMENTS OF

CRIMINAL PROCEDURE

A. CLASSIFICATION OF OFFENCES AND

MODE OF TRIA L

1) Introduction

Over a number of years, and with i ncreasing amendments to the Cr im-

inal Cod e, the procedures for deciding the mode of trial have become

needlessly complex. The current scheme is “based more on the acci-

dents of history than on any rational plan.”1 As a practical matter, it is

easiest to understand t he current system f‌irst by imagining the very

simple system that, at least conceptually, underlies it and then by look-

ing at the variety of exceptions th at 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 ser ious offences that are

prosecuted in lower courts, and more serious offences th at are pros-

ecuted in superior courts. That seems to be the underlying theory of

our classif‌ication and mode of tr ial system, but it is subject to amend-

ments, exceptions, and sub-exceptions relating to the number of types

of offences, the number of modes of trial, and the provision to the ac-

cused of a choice of mode of trial in some ca ses and then the removal of

1 Law Reform Comm ission of Canada, Class if‌ication of Offences (Ottawa: Law

Reform Commi ssion of Canada, 1986) at 1 [Classif‌ication of Offences].

CRIMIN AL PROCEDURE36

that choice in others. We shall pursue each of these i ssues in more de-

tail below, but an overview of how these exceptions overlay the simple

model will be a usef ul starting point.

First, in one sense, our system ha s only two types of offences: sum-

mary 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 tr ial, but three. One

mode of trial is in f ront of the “court of criminal jurisd iction,” and the

other mode of trial is in front of the “superior court of criminal jur is-

diction.” However, the superior court can hear matter s in two ways:

either without a jury (a judge-alone trial) or with a jury.

Third, we do not automatically send all less ser ious offences to the

lower court and all more serious matters to the supe rior court. For sum-

mary conviction offences that equation does hold, and the only mode

of trial for them is in t he court of criminal jur isdiction. In the case of

indictable offences, however, the accused is not forced to choose the

top-of-the-line mode of trial and ca n instead choose whether to have

a trial by super ior court judge and jury, by superior court judge alone,

or by provincial court judge. This choice is referred to as a n “election.”

Fourth, having given t hat election to the accused, the Code then

takes it away again in a number of situ ations. 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 of-

fences that will be t ried in provincial court, and so again the accused

is given no election. In principle, the rationale for these t wo lists is

that since section 469 contain s such serious offences — for example,

murder — the public interest demands a jury tri al. In contrast, section

553 lists offences that are less ser ious than most indictable offences

(though not so much less serious as to be s ummary conviction offences,

it seems), and so there is no justif‌ication to offer the accused any choice

beyond provinci al court.

Fifth, if the tr ial will eventual ly take place in a superior court

(either a judge alone, or a judge and jury), the matter does not go im-

mediately to trial, but can f‌irst be referred to a prelimin ary inquiry i n

front of the provincial court. Only if this proceeding concludes that

there is suff‌icient evidence wi ll a trial actually take place.

Finally, there are various other exceptions to exceptions, such a s

the ability of the Crown, in some ca ses, to compel a jury tri al, regard-

less of the accused’s election, or the ability of the accused to re-elect

having made one election, and so on.