What does making an election mean?
If you spend any time in a criminal courtroom, you will repeatedly hear the judge ask the prosecutor if the Crown has made an election. This means that the offence is a hybrid offence and the judge is asking if the Crown is proceeding summarily or by indictment. In Canada, criminal offences are categorized into three levels of seriousness:
- Summary conviction offences
- Hybrid offences
- Indictable offences
Summary conviction means that the charges are less serious and that the potential punishments are not as serious as indictable offences. Proceedings on summary offences must commence within six months of the incident date unless the Crown and Defence agree to extend the period of time. A summary conviction offence must be heard in front of a Provincial Court judge.
A hybrid offence is a criminal offence that can be prosecuted by summary conviction or by indictment. Hybrid offences are deemed to be indictable unless and until the Crown elects to proceed summarily. The Crown elects very early in the process, usually after one or two docket court appearances. If the proceedings conclude without the Crown having made an election within 6 months of the incident, the Crown is deemed to have elected to proceed by summary conviction. If the accused elects a mode of trial without the Crown having made an election, the trial will be deemed indictable.
An indictable offence is a criminal offence that is more serious and has the most significant consequences. There is no time limit or “statute of limitations” on being charged with an indictable offence.
When an accused is charged with an indictable offence or if the Crown elected to proceed by way of indictment, the accused elects the mode of trial from the following options:
- Provincial Court Judge
- Superior Court Judge with a Jury, with a preliminary inquiry
- Superior Court Judge with a Jury, without a preliminary inquiry
- Superior Court Judge alone, with a preliminary inquiry
- Superior Court Judge alone, without a preliminary inquiry
The vast majority of criminal matters are dealt with in Provincial Court where the judges almost exclusively deal with criminal matters.