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Types of Offences
As we have said, criminal offences are classified as either summary, indictable or "hybrid" (ones that can be treated as either summary or indictable). To find out what type a particular offence is, read the section of the Criminal Code or other statute that creates the offence.
Generally, summary offences are the most minor, indictable offences are the most serious, and of course hybrid offences tend to fall in between, in an area of overlap. A great number of offences are hybrid.
For hybrid offences, the Crown decides ("elects") whether to proceed summarily or indictably. Until it elects one way or the other, the offence is considered to be indictable, but if the Crown does not elect, and simply goes to trial in provincial court, it is considered to have elected to proceed summarily, and from then on the offence is viewed as a summary one.
Which Court?
Summary offences are tried in provincial court, before a judge of that court sitting alone, with no jury. There is never a jury in provincial court.
There is a list of hybrid offences in s. 553 of the Criminal Code (including theft under $5,000 and driving while disqualified) which are also tried before a provincial court judge sitting alone, regardless of whether the Crown elects to proceed summarily or by indictment. These are the "absolute jurisdiction" offences.
All indictable offences can be tried in the superior courts (in British Columbia, the B.C. Supreme Court). The superior courts can also try an absolute jurisdiction offence, if one happens to be charged together with an indictable offence, but the accused has no right to demand a superior court trial for an absolute jurisdiction offence.
Some of the most serious indictable offences, listed in s. 469 and including murder and treason, can only be tried by a superior court. The trial must be by judge and jury, unless both the accused and the Crown consent to trial by judge alone [s. 473].
"Election"
Otherwise, someone charged with an offence that is proceeded with indictably can generally elect how they want to be tried [s. 536]: by provincial court judge sitting alone [s. 554], or in superior court, either by judge alone or by judge and jury. If the accused elects to be tried in the superior court, there will first be a preliminary inquiry in provincial court, to see if there is sufficient evidence to make a trial worthwhile.
If he or she does not make any election, there will be a superior court trial with a jury. This sometimes happens when two (or more) people are charged together, and elect different types of trial. The justice taking the election can record that as "no election", in which case both the accused will be tried in front of a jury [s. 567].
There are rather complicated rules in s. 561 for "re-election" if the accused later has a change of mind.
Exceptions
If the offence has a maximum punishment of more than five years imprisonment, the Crown has the right to insist on trial in superior court by judge and jury [s. 568]. This is virtually always done in murder cases. The Canadian Charter of Rights and Freedoms guarantees the right to be tried by a jury in appropriate cases, but it does not guarantee the opposite - that is, choosing not to have a jury is not a constitutional right.
The right to trial by jury can be lost if the accused fails to appear for trial [s. 598].
A young person charged under the Youth Criminal Justice Act and tried in Youth Court is not entitled to a jury trial, because that Act says that all such charges, whether summary or indictable, must be dealt with by the summary conviction procedures.
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FIRST LINE CRIMINAL LAW INFORMATION