Elements of Criminal Procedure

• Author: Steve Coughlan
• Pages: 34-62

34

CHAPTER 3

ELEMENTS OF

CRIMINAL PROCEDURE

A. CLASSIFICATION OF OFFENCES AND

MODE OF TRIAL

1) Introduction

Over a number of years, and with increasing amendments to the Crim-

inal Code, 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 t he very sim-

ple 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 ser ious offences that are

prosecuted in lower courts, and more serious 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 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

that choice in others. We shall pursue each of these issues 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 Offences].

Elements of Cri minal Procedure 35

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: 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 front of the “court of criminal jurisdiction,” and the

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

diction.” 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 super ior court. For sum-

mary 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 ac-

cused 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 s ummary 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 im-

mediately 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, regard-

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

having made one election, and so on.