Elements of Criminal Procedure

• Author: Stephen Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 33-58

33

CHAPTER 3

ELEMENTS OF

CRIMINAL PROCEDURE

A. CLASSIFICATION OF OFFENCES AND

MODE OF TRIA L

1) Introduction

Over a number of years, and with increasing amendment s to the Cri mi-

nal Code, the procedures for deciding the mode of tr ial have become

nee dle ssly comp lex. The c urr ent s chem e is “bas ed mo re on the a ccid ent s

of histor y than on any rational plan.”1 As a practical matter, it is easi-

est to understand the current system f‌irst by imagini ng the very simple

sys tem tha t, at le ast conc eptual ly, underl ies it a nd then by look ing at t he

variety of exceptions that ser ve to effectively conceal that model.

Imagine a system of prosecuting crimes that ha s only two ty pes of

offences and two methods of prosecution: less serious offences that are

prosecuted in lower courts, and more s erious offences that are pros-

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

our classif‌ication and mode of trial system, but it i s subject to amend-

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

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

cused 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 i ssues in more de-

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

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

CRIMIN AL PROCEDURE34

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 has only two types of offences: sum-

mary conv iction offences and indictable offences. However, the model

is made more complex because the Code provides for a great number of

offences that c an 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 juris diction,” and the

other mode of t rial i s in f ront of the “super ior court of criminal juris-

diction.” However, t he superior court can hear matters i n two ways:

either without a jury (a ‘judge alone’ trial) or with a jur y.

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 t hem is in the court of criminal jurisdiction. In the

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

the “top of t he line” mode of trial, and c an inste ad choose whether to

have a trial by superior court judge and jury, by s uperior 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 th at must be t ried by a judge and jury, so

the accused is given no election. Furt her, section 553 list s a number

of offences that w ill be tr ied in provincial court, and so again the ac-

cused is given no election. In principle, the rationale for these two lists

is that since section 4 69 contains such serious offences — for example

murder — the public interest demand s a jury trial. In contrast, section

553 list s offences that are less s erious 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 tr ial will eventually take place in a superior court (eit her

a judge alone, or a judge and jury) the matter does not go immediately

to trial, but can f‌irst be referred to a preliminar y inquiry in front of the

provincial court. Only if this proceeding concludes that there is suf-

f‌icient evidence will a tr ial actually take place.

Finally, there are various other exceptions to exceptions, such as

the ability of the Crown, in some case s, to compel a jur y trial, regard-

less of the accus ed’s election, or the abilit y of the accused to re-elect

having made one election, and so on.