Guilty Plea but No Election

An accused charged with an indictable offence is entitled to elect her mode of trial under s. 536(2) of the Criminal Code if the offence is not

a.       an offence listed or described in s. 469 – offences falling within the exclusive trial jurisdiction of the Superior Court of Justice, or

b.       an offence listed or described in s. 553 of the Criminal Code – offences falling within the absolute jurisdiction of a judge of the Ontario Court of Justice sitting as a provincial court judge.

It is well settled that the failure to comply with the election requirements in s. 536(2) (eg. putting the accused to her election as to the mode of trial) goes to the jurisdiction of the trial court. 

The jurisdiction of a judge of the Ontario Court of Justice to try the accused or to receive and act upon her plea of guilty, depends entirely upon her choice of that court as her mode of trial.

Absent an election under s.536(2), the provincial court judge has no jurisdiction to receive and to act upon the plea of guilty that the accused entered.

R. v. Tadesse, 2017 ONCA 682, at para. 5 [guilty plea and conviction set aside and a new trial ordered].



Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca


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