Choix du mode de poursuite

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• < Procédure et pratique
• < Élection

General Principles

The Crown has the power of election on hybrid criminal offences. A hybrid offence is an offence defined in the Criminal Code as having both summary and indictable classes of punishment.

The election process is a "means by which the criminal law provides the Attorney General with sufficient flexibility to take the specific circumstances of each case into account and ensure that, in each case, the interests of justice are served."

The source of the Crown discretion to elect mode of prosecution is the common law and is part of the tradition of "equality before the law."

Timing of Election

Elections are not necessarily made at with full knowledge of the case, nor it is expected to be the case.

Election Procedure

Interpretation of the meaning of the Crown's words when making an election or re-election should be read in the context of the entire court record.

Appeal Standard

Whether a matter is part of the discretionary core functions of the Attorney General is a question of law.

Presumptions

Hybrid offences are deemed to be indictable until the Crown elects to proceed summarily.

Hybrid offences are treated as indictable during the proceedings until such time as the Crown makes their election. Where the Crown fails to make their election, they are deemed to have made a summary election.

Where a proceeding progresses to its conclusion without the Crown having made an election on a hybrid offence and the charge was within the 12 months of the incident (based on the 786(2) time limitation), the Crown is deemed to have elected to proceed by "summary conviction."

However, where the accused elects mode of trial even though the Crown failed to make an election, the trial will be deemed indictable.

Where the offence is prosecuted by indictment there is a statutory presumption under s. 471 that the trial will be by judge and jury.

Crown Discretion

The power to elect mode of procedure for prosecution is at the discretion of the Crown.

Review of Crown Election

The Crown election may only be reviewable by a court where the election amounts to an abuse of process.

The decision of the Crown to make an indictable election must amount to flagrant impropriety.

Crown Re-Election

The Crown has the common law right of re-election after making an initial election. In certain cases consent of defence or the judge will be required.

Re-Election from Summary Conviction to Indictment

The re-election from summary to indictable while in-trial requires the consent of the accused.

Re-Election from Indictable to Summary Conviction

A re-election for an indictable charge to then proceed by summary election while the charge is before a superior court judge is permissible, but once re-election is complete the matter should be remitted to provincial court for guilty plea and sentencing. The superior court does not have jurisdiction to handle sentencing.

The Crown discretion to re-elect from indictment to summary conviction may be lost if:

• preliminary inquiry has begun;
• trial has begun,
• the time limitation of summary offences has expired; or
• there is a finding of an abuse of process.

The Crown may re-elect to proceed by summary conviction if the information was sworn within the summary proceedings limitation.

Unless abusive or without jurisdiction, the Crown may be able to simply withdraw the indictment and re-lay an information.

Effect of Re-election

It has been suggested that it is an open question whether a re-election constitutes a commencement of a new proceedings under s. 786(2).

However, it has been found that re-election recommences proceedings and requires a new plea before a court with jurisdiction.

Summary Election Time Limitation

Proceedings on summary offences must commence within 12 months of the incident date unless the Crown and Defence agree to waive the time limitation. Section 786(2) states:

786
[omis (1)]

Limitation

(2) No proceedings shall be instituted more than 12 months after the time when the subject matter of the proceedings arose, unless the prosecutor and the defendant so agree.
R.S., 1985, c. C-46, s. 786; 1997, c. 18, s. 110; 2019, c. 25, s. 315.

– CCC (CanLII), (Jus.)

---

The Crown has no jurisdiction to make a summary election outside of the 12 month period of time. Summary elections on an information sworn more than 12 months after the subject matter of the proceedings is "null and of no effect."

The 12-month limitation under s. 786 does not count from the beginning of the offence where it spans several days. An offence spanning a timeframe will be valid for the entire span as long as the end date is within the 12 month limit.

Transactions material to the offence are admissible in trial so long as the period of time in which the offence occurred is within the time limit.

It is acceptable practice to elect indictable in order to allow the prosecution to proceed, such as where the 12 month time limit has expired, and then re-elect summarily with consent. The judge cannot interfere by refusing to allow re-election.

If the Crown elects by summary conviction despite being outside the permissible time limitation, the Crown has several options:

• may change its election and proceed by indictment once it has discovered its error. It is not bound by the initial election.
• withdraw the original information, lay a new information and elect to proceed by indictment
• seek consent of the accused to continue by summary conviction.

Provincial Summary Proceedings

In some provinces, summary proceedings rules and legislation incorporate this provision into their summary offence regime.

History

Prior to September 19, 2019, the time limitation was 6 months instead of 12 months.

Crown's Failure to Elect

Crown's election can be "deemed" by means of "the way in which the pleadings were conducted."

This usually means they are deemed to have made a summary election.

Section 34(1)(a) of the Interpretation Act creates a presumption of an indictable election. Where the presumption is not displaced, and the pleadings did not include a proper election address any verdict can be quashed and become a nullity.

Where a proceedings progresses to its conclusion without the Crown having made an election on a hybrid offence and the laying of the charge was within 6 months of the incident, the Crown is deemed to have elected to proceed by "summary conviction." This will vary in some circumstances.

However, where the accused elects mode of trial even though the Crown failed to make an election, the trial will be deemed indictable.

See Also

• Defence Election
• Purpose and Principles of Sentencing - for details on election as a factor in sentencing