Elements of Criminal Procedure

• Author: Steve Coughlan
• Pages: 40-74

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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,1 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.”2 As a practical matter, it is easiest

to understand the current system first by imagin ing the very simple

system that, at least conceptual ly, 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 th at are pros-

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

our classificat ion and mode of trial system, but it is subject to amend-

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

1 For an explanat ion of this issue in cha rt form, see Steve Coughlan & Ale x

Gorlewski, The Anatomy of Crimi nal Procedure: A Visual Guide to the Law (Toron to:

Irwin L aw, 2019) [Anatomy of Criminal Procedure], Chart 2.4(a), “Determini ng the

Mode of Trial.”

2 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 41

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

accused of a choice of mode of trial in some cas es and then the removal

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

detail below, but an overview of how these exceptions overlay the sim-

ple model will be a useful st arting 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 eit her fashion: these are referred

to as “hybrid offences.” In addition, there are offences under provincial

acts which are not crimes but which nonetheless are tried in the same

courts as summ ary conviction offences.3

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. Furt her, 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 t wo lists relates

to the relative seriousness of the offences on them. Section 469 con-

tains ser ious enough offences — for example, murder — that the public

interest demands a jur y trial.4 In contrast, section 553 lists offences that

3 Additional con fusion is avoided here by the Supreme Cour t’s finding that a judge

with juri sdiction over both summa ry conviction and provinc ial offences can try

both sets of ch arges jointly: R v Sciascia, 2017 SCC 57.

4 This is the rat ionale for the particula r list of offences, but one could easily d is-

agree as to whethe r that goal has been achieve d. For example, section 469 long

included the offence of “Alar ming Her Majesty,” until that offence was re moved

from the Criminal Code enti rely: see An Act to amend the Criminal Cod e and the

Departme nt of Justice Act and to make consequ ential amendmen ts to another Act,

SC 2018, c 29.

CRIMIN AL PROCEDURE

42

are less serious th an most indictable offences (though not so much less

serious as to be summ ary conviction offences, it seems), and so there is

no justification to offer the accused a ny choice beyond provincial court.

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

(either a judge alone, or a judge and jury) and is for an offence with a

punishment of fourteen years or more imprisonment, the matter does

not go immediately to trial, but can first be referred to a prelimin ary

inquiry in front of the provincial court.5 Only if this proceeding con-

cludes that there is sufficient evidence will a tri al actually take place

(unless the Crown prefers a direct indictment6).

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

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

less of the accused’s election,7 or the ability of the accused to re-elect

having made one election,8 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 i ndictable

offences, unless some other Code provision creates an exception to that

requirement. Other Code provisions then create exceptions for literally

ever y offence. One could easily gain the impre ssion that trial by jur y is

the norm when, in fact, it is a rarity.

We shall now pursue these issues individually in greater detail.

2) Types of Offences

Criminal offences are classified as indictable or offences punishable on

summary conv iction. These are the only two clas sifications in Canadian

crimina l procedure. In every statutory provision that creates an offence,

Parliament designates t he offence by one classification or the other.9 How-

ever, for many offences, Parliament has applied a hybrid classi fication to

5 Section 535.

6 Section 577.

7 See ss 568 and 577.

8 See s 561.

9 The Contraventions Act, SC 1992, c 47, creates another categor y of offence called a

“contravention,” which mean s, according to section 2, “an offence t hat is created

by an enactment a nd is designated as a cont ravention by regulation.” Section 8

prohibits the des ignation of an indictable offe nce. Section 4 states that t he pur-

poses of the Act a re to provide a procedure for the prosecut ion that distingui shes

between cri minal and regulator y offences and to abolish the leg al consequences

of conviction. Sect ion 63 specifically provi des that there shall be no c riminal

record upon conviction. I n sum, a contravention is not properly cl assified as

a crimin al offence, even though Parliament m ight have originally e nacted the