Crown Election
The Criminal Code creates
two categories of offences: summary conviction offences and indictable
offences.
The trial of a summary
conviction offence is before a different
court and follows a different
procedure from that of an indictable offence. An appeal against the decision at trial goes
to a different court of appeal.
Since indictable offences
are more serious, a prosecution by indictment triggers additional procedural
safeguards [FN1] and a conviction attracts more severe penalties. Indictable
offences also confront the accused with greater expense and delay, and carry
greater stigma.
Hybrid offences
Some offences may be
prosecuted either summarily or by indictment, at the Crown’s discretion.
These offences are commonly known as hybrid
offences (or dual procedure offences).
Hybrid offences do not comprise a third category of offences.
In hybrid offences, the
same essential elements must be proven whether the Crown elects to proceed by
way of indictment or by summary conviction.
In virtue of s. 34 of the federal Interpretation
Act, hybrid offences are
deemed at law to be indictable unless and until the Crown has elected to
proceed summarily.
R. v. Dudley,
2009 SCC 58, [2009] 3 S.C.R. 570, at para. 64 (in dissent, but not on this proposition);
See
Interpretation Act, R.S.C.,
1985, c. I-21, section 34(1)(a).
Crown Election
The Crown is entrusted with
making the necessary determination whether to proceed summarily or by
indictment, different means of prosecuting the offence.
The Crown derives its
power to proceed by indictment or summarily by common law, not statute.
An indication by the Crown
on the Charge Screening Form as to
how it will elect (summarily or by indictment) is not the Crown’s election.
See
Stuart O’Connell Law Blog, The Charge
Screening Form,
Crown election can occur
more than one way:
1.
Crown Expressly Elects
The Crown
expressly elects to proceed summarily or by indictment;
The
Court of Appeal for Ontario has held Crown
elections should be made expressly
and recorded on the information: R. v.
Mitchell, 1997 CanLII 6321 (ON CA).
However, this is not always the case.
2. Crown Presumed to Elect Summarily
3. Crown Inferred to have Elected
Where the
trial has proceeded before a summary conviction court without an express election by the Crown, it will be presumed that the Crown has elected to
proceed summarily.
R. v.
Dudley, 2009 SCC 58, [2009] 3
S.C.R. 570, at para. 3
3. Crown Inferred to have Elected
For
instance, where the Crown has not elected, but the accused is put to his/her
election as to mode of trial, it may be inferred that Crown has elected to
proceed by indictment.
R.
v. Bee (1975), 28 C.C.C. (2d) 60 (BC CA);
R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570, at para. 20: “the
Crown will be deemed to have elected to proceed by indictment where the accused
has been put to the election as to mode of trial required,”
The Exercise of the Crown’s Discretion
The court does not
superintend prosecutors in the exercising of core areas of discretion
The Crown's election is
protected by a strong presumption of regularity and the offence is deemed to
have been correctly characterized. The exercise of the Crown's discretion is
subject to judicial review only for improper or arbitrary motives.
R.
v. Balderstone (1983), 1983 CanLII 2803 (MB CA);
R.
v. Beare (1988), 1988 CanLII 126 (SCC);
See
also R. v. Kelly, 1998 CanLII 7145
(ON CA).
See Stuart O’Connell, Criminal Law Blog, Prosecutorial Discretion,
www.stuartoconnell.blogspot.ca/2017/11/prosecutorial-discretion.html
See Stuart O’Connell, Criminal Law Blog, Prosecutorial Discretion,
www.stuartoconnell.blogspot.ca/2017/11/prosecutorial-discretion.html
Thus,
in most cases getting the Crown to re-elect or to change its intention as to
how it will exercise its discretion is a matter of advocacy.
Stuart O’Connell, O’Connell Law
Group, www.leadersinlaw.ca
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