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Elections
As we mentioned earlier, criminal offences are classified as "summary" or "indictable". These names refer to the procedure the Crown uses to prosecute the offence. Many offences, though, are what is called "dual" or "hybrid", which means that the Crown has the choice of prosecuting either by the summary conviction procedure or by indictment.
Charges that go ahead to trial by the summary conviction procedure are heard in provincial court, in front of a judge of that court without a jury.
If, on the other hand, the charge is prosecuted by indictment, the accused person will usually have a choice (an "election") about the method of trial. The options are:
- provincial court judge sitting alone
- superior court judge sitting alone; or
- superior court judge sitting with a jury.
There are some exceptions. There is no choice for some (more minor) offences, listed in section 553 of the Criminal Code - for example theft under $5,000 and driving while disqualified - which are always tried in provincial court. At the other end of the scale, the most serious offences such as murder and treason, listed in section 469 of the Code, will always be heard before a jury in the superior court unless the Crown consents to the trial being before a judge alone.
There are rules for changing an election ("re-electing"), in section 561 of the Code. If no election is made (sometimes an accused person simply refuses to choose), the trial will be by judge and jury in the superior court. If two people are charged together, and make different elections, the court will record the "higher" of those two elections, and both accused with be tried the same way.
As we mentioned earlier, if the election is for trial in the superior court, there will first be a preliminary inquiry in provincial court.
Preliminary Inquiries
The procedures for preliminary inquiries are found in Part XVIII of the Criminal Code.
A preliminary inquiry is held before a provincial court judge, justice of the peace or magistrate. This person's job is to decide if there is enough evidence for the case to go on to a full trial. A second purpose of the hearing is to allow the defence to know the strength and details of the case it has to answer.
The prosecutor will usually produce any evidence and witnesses that support the Crown's case, and the accused person then has a chance to reply, either by way of witnesses and sworn evidence, or by a simple unsworn statement to the court. He or she cannot be compelled to produce witnesses or give evidence, but must be given the opportunity to do so, in the statutory words of s.541(1). This section allows an unsworn statement to be made by an accused person standing before the judge, rather than from the witness box. Anything said is written down and kept with the record of evidence. This can all later become evidence in the trial itself [s.541].
At the end of a preliminary inquiry, the judge either dismisses the charge(s), or commits the accused for trial. The Crown does not have to prove its case to get a committal. It just has to show there is some evidence on each of the points necessary for a conviction at trial. A charge will only be dismissed at a preliminary inquiry if there is no case to answer, because of a complete lack of evidence on a crucial issue.
At the trial, the accused person usually faces the same charges as at the preliminary inquiry, but there may be others if evidence has come out that would support them. On the other hand, if the preliminary inquiry court did not hear enough evidence to commit for trial on the offence charged, but there was enough evidence on a lesser offence, the accused may go on to be tried only on that lesser charge.
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FIRST LINE CRIMINAL LAW INFORMATION