When you’re charged with a criminal offence in Canada, one of the most important early decisions you’ll make is how you want your trial to proceed. This choice is called an “election right,” and it determines whether your case will be heard by a judge alone or a judge and jury, and whether it will take place in Provincial Court or Superior Court. Your election also impacts whether you can request a preliminary inquiry. It’s a major decision with long-term consequences, and it’s one that should be made with the guidance of a defence lawyer.
You become eligible to make an election when charged with a straight indictable offence, or a hybrid offence where the Crown elects to proceed by indictment.
Hybrid offences are extremely common and include charges like assault, theft over $5,000, and fraud. Until the Crown formally states how it intends to proceed, these offences are presumed to be indictable. (This default position was confirmed by the Supreme Court in R. v. Dudley, 2009 SCC 58, which also clarified that if the Crown fails to elect within the statutory time limit, the offence may be treated as summary).
If you’re facing a summary conviction offence, you are not given an election. Summary offences are always tried in Provincial Court before a judge alone, and there’s no jury or preliminary inquiry involved.
If your offence qualifies, you will typically be given three options:
- Trial by a Provincial Court judge alone (no jury, no preliminary inquiry)
- Trial by a Superior Court judge alone, with the option to request a preliminary inquiry
- Trial by a Superior Court judge and jury, also with the option to request a preliminary inquiry
Each mode of trial has its own advantages and disadvantages.
A Provincial Court trial is usually faster, less procedurally complex, and may involve fewer court appearances. However, there’s no opportunity for a preliminary inquiry, which is a pre-trial hearing where the Crown must show there’s enough evidence to justify a trial.
Superior Court trials, either with a judge alone or a jury, give the defence more options, including requesting a preliminary inquiry, which can help identify weaknesses in the Crown’s case and potentially lead to charges being dropped or reduced. This benefit is highlighted in CanLII’s commentary on preliminary inquiries (2008CanLIIDocs613).
Choosing between a judge-alone trial and a jury trial is also strategic. In some cases, a jury may be more receptive to certain defences or sympathetic to the accused. In others, particularly where the defence is technical or rooted in legal interpretation, a judge-alone trial may be preferable. These decisions are fact-specific and should be discussed with a lawyer who understands your case.
It’s also important to know that you don’t have to make your election right away. You are entitled to reserve your election until after you receive disclosure which is the evidence the Crown intends to rely on. This gives you the chance to review the strength of the case before deciding how to proceed. The Supreme Court confirmed this right in R. v. Archambault, 2024 SCC 35, stating that delaying an election is lawful and helps protect an accused person’s right to make an informed decision.
The election process is not just procedural, it can shape the outcome of your case. The choice of trial mode affects how evidence is tested, how long your case takes, and who decides your fate. It also determines whether you’ll face a jury of your peers or a judge who decides both fact and law. In some cases, your lawyer may also use the election process strategically for example, to position the case for resolution, explore weaknesses in the Crown’s evidence, or minimize delay and publicity.
If you or someone you know is facing criminal charges and is unsure about how to proceed, it’s critical to get legal advice before making an election. This decision has serious legal consequences and must be made with a clear understanding of the charges, available evidence, and courtroom strategy. A defence lawyer can explain your rights, walk you through disclosure, and help you decide what election is in your best interest.
For experienced guidance on elections and criminal trial strategy, contact Linh Pham at (306) 502-5987 for a free, confidential consultation. The earlier you get advice, the better positioned you’ll be to make the right moves from the start.
Legal references:
- v. Dudley, 2009 SCC 58 – https://canlii.ca/t/25t3f
- v. Archambault, 2024 SCC 35 – https://canlii.ca/t/k4m79
- CanLII Commentary – Criminal Law eBook: 2022CanLIIDocs3273 CanLII Commentary – Preliminary Inquiries: 2008CanLIIDocs613
- Criminal Law Notebook – Crown Election: https://criminalnotebook.ca/index.php/Crown_Election