Elements of Criminal Procedure

AuthorSteve Coughlan
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.
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

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