Failing to Afford the Accused an Election of Mode of Trial


If the accused is a person charged with an indictable offence not listed in either section 469 (offences within the exclusive jurisdiction of a judge of the superior court of criminal jurisdiction—generally, the most serious types of crimes) or section 553 of the Criminal Code (indictable offence within the absolute jurisdiction of a provincial court judge), he/she is entitled to elect his mode of trial under section 536(2) of the Criminal Code.  

If the accused is not afforded this statutory requirement, the presiding judge has no inherent jurisdiction to try the accused or receive his plea of guilty. The judge’s authority to do either depended entirely on the accused’s election “to be tried by a provincial court judge without a jury and without having had a preliminary inquiry” as s. 536(2) requires. The absence of an election means that the provincial court judge has no authority to try the appellant or to receive his plea of guilty:

R. v. Shia, 2015 ONCA 190, at paras 26, 27;  R. v. Varcoe, 2007 ONCA 194 (CanLII), 219 C.C.C. (3d) 397, at paras. 15 and 22; R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA) 1997 CanLII 6321 (ON CA), 121 C.C.C. (3d) 139 (Ont. C.A.), at paras. 28-30.

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