Understanding Indictable Offences
In Canadian criminal law, serious criminal offences are classified as “indictable offences.” Examples include sexual assault, aggravated assault, and fraud over $5,000. When charged with an indictable offence, important decisions regarding the trial process must be made, such as whether to elect to be tried by a judge alone or judge and jury.
Election Rights
- Crown’s Election:
- In many serious cases, the Crown will likely elect by indictment, given the severity of the charges. This provides the accused with greater mode of trial election rights, but also entails more severe penalties.
- Election Decision:
- The accused must decide whether to be tried in the Ontario Court of Justice, or elect to be tried in the Superior Court of Justice. For serious charges where the maximum jail term is 14 years or more, the accused can also elect to have a preliminary hearing (“PH” which is also called a “preliminary inquiry”) in the Ontario Court of Justice and then be tried in the Superior Court of justice by judge alone or by a judge and jury, or to be tried in the Ontario Court of Justice or Superior Court of Justice without having a PH.
Factors Influencing the Decision
- Need for Preliminary Hearing:
- The decision to have a preliminary hearing depends on factors such as the need to explore the Crown’s case further and the potential strategic advantage of having a transcript of a witness’s testimony to create inconsistency when they testify at the trial. In many cases, it is advantageous to have a preliminary hearing to gain further discovery of the Crown’s case.
- Assessment of Local Bench:
- Knowledge of the local judges of the Ontario Court of Justice and Superior Court of Justice is crucial. Understanding whether the local judges are liberal (i.e., pro-defence) conservative (i.e., pro-Crown) , or neutral, influences the decision to proceed in the lower or higher court.
- Understanding Local Juries:
- Different counties may have different tendencies in terms of the expected pool of juries and whether local juries tend to favour the Crown or defence in their verdicts. Specific experience and knowledge of jury tendencies in a particular county will impact the decision whether to elect to be tried by a judge alone versus a judge and jury. An experienced criminal lawyer familiar with the local context is essential.
Election Strategies
- Initial Election for Judge and Jury:
- In cases where the accused decides to elect to be tried in the Superior Court of Justice, the initial choice is often judge and jury. In most cases, this will allow the defence lawyer to eventually find out who the trial judge will be and potentially re-elect to be tried by a judge alone if the judge is either liberal or neutral. Alternatively, the accused may decide to continue with their initial judge and jury election if their lawyer thinks that the judge is not a good draw for their particular case.
- Reelection Based on Preliminary Hearing:
- After the preliminary hearing, the accused technically has only fifteen days to reelect. However, most Crown Attorneys will consent to a re-election to be tried by a judge alone in the Superior Court of Justice up to about one month, and in many cases even a week or less before the trial commences. The decision to reelect judge alone or judge and jury depends on many factors, including being able to find out who the trial judge is and the viability of the defence.
- Delaying Reelection for Strategic Reasons:
- Delaying the reelection provides an opportunity to assess the trial judge assigned to the case. This strategic delay allows the defence to bring motions or applications which will reveal who the trial judge is.
Navigating Local Dynamics
- Counseling Clients:
- The accused must be counseled on the advantages and disadvantages of each election option. The decision involves considerations of local bench tendencies, jury pool tendencies in a particular county, the strengths and weaknesses of the Crown’s case, and the overall strategy for the case.
- Extending Reelection Time:
- Negotiating with the Crown to extend the time period for reelection allows for a more informed decision closer to the trial date. This extension can be valuable in assessing the case dynamics and making an informed and timely decision to reelect the mode of trial.
Conclusion
Making the right election in serious criminal cases involves a nuanced understanding of local dynamics, including the bench’s tendencies, jury pool tendencies, the viability of the defence, and the strategic implications of preliminary hearings. An experienced criminal lawyer with knowledge of the local legal landscape is crucial in guiding the accused through these complex decisions.
Video Transcription:
I’m really glad you could join me today. I want to talk to you about a very interesting topic and that is when you’re charged with an ‘indictable offense’ under Canadian criminal law and that is a serious criminal offense. That’s what indictable offense is. Should you elect judge and jury or judge alone? Should you like to have a preliminary hearing? These are all questions that your lawyer is going to assist you with so let me give an example of a typical case that’s serious: like a sexual assault, rape case, anaggravated assault – those types of cases that are serious – a fraud over five thousand dollars. In these types of cases, the crown is in most of those cases, gonna probably “elect by indictment”. Some of these are dual procedure offenses where the crown can elect summarily or by indictment so when the facts are aggravated, for example, a rape is a serious sexual assault versus a more minor touching; the crown’s definitely get elect by indictment. That’s good news and bad news for you. The bad news, of course, is that the penalties are greater when the crown elects by indictment. You can face more years in jail. The good news is you have greater election rights. You see, when you’re charged with a merely a summary conviction offense like a minor assault, a DUI, a “theft under [5000 dollars]”, “fraud under”, those type of minor cases, the crown is gonna elect summarily and you’re required to have a trial in the lower court called the Ontario Court of Justice so you have to go directly to trial. You have no election right so taking the example the of sexual assault, indictable case, what’s gonna happen here is that you’re gonna have to make an election in the entire court of justice at some point. You’re gonna either file an election document or make an election on the record in court, and what that means is you’re gonna elect to be tried, either A in the Ontario Court of Justice, go right to trial, you have that option or B, you can elect to be tried in the higher court, in the superior court by judge alone or or a judge and jury with preliminary hearing in the Ontario Court of Justice. So as a lawyer you have to sit down and examine that client’s case and decide many issues. You have to decide, first of all, do I need a preliminary hearing? Do I need to explore the crown’s case further, in other words, that’s an evidentiary hearing. I’ve covered that in other videos. Sometimes it’s advantageous to have a preliminary hearing. So you really need to sit down and look at that. You need to ask yourself, “What’s our Ontario Court bench like here: are they liberal are they conservative? Are they pro- crown and pro-defense or are they neutral?” Because the answer to that question may lead you to simply go rate to the Ontario Court of Justice in a given case. That’s a tough call to make so in other words your lawyer needs to know the local bench. Your lawyer needs to have done many trials with each of the judges in your own local county to make that decision. So let’s say that the county is liberal towards defense counsel and believe me, many counties are not, some are, it just depends. You need to know the local judges, it’s so important. So you elect Ontario Court of Justice, you go right to trial. No preliminary hearing. Now let’s take a situation where A you have a, you know, a conservative local Ontario Court of Justice bench which is more pro- crown, very nice judges. They’re very bright judges but they maybe tend to convict more than other judges in other counties and you want a preliminary hearing or a combination of both of those things. In this situation, you’re going to want to elect the Superior Court. For example, you know the Superior Court bench in that county is a little bit liberal or neutral, you in your own mind feel you’re gonna get a better trial of our fair trial for the client. Now what do you do? Well, you have to assess the case and say what are my odds of winning this case? What is the bench like? What’s a jury gonna to be like in these counties? In other words, you have to know the county even for the juries because different counties in their province have different pre-elections for their juries whether they, you know, tend to convict or tend to acquit and a good lawyer who appears across Ontario in different counties is going to know that. If they don’t appear in that county, they’re gonna have contacts in that county who know that as well but it’s better to have a lawyer that appears regularly in that county and knows all these issues so what does it come down to? So you decide you need a preliminary hearing and the best wait that I approach this is this way: once I decide to go to the Superior Court, I always counsel the client. Let’s initially elect a judge and jury. We’re gonna have our preliminary hearing. After the preliminary hearing we have fifteen days to reelect. I see how the preliminary hearing proceeded. It went very well for us. It’s gonna be easy to create reasonable doubt. I now know that I’m in a county that has very fair superior court of justices. Well, I’m going to reelect judge alone. I have fifteen days to do that and I’m gonna do that. Let’s take another case where, well, it’s not so clear-cut. The preliminary hearing went okay, you know, we have a chance of winning. There’s five Superior Court Justices in this county. I know three of them are pro-defense. I know two of them are pro-crown. Now, I’ve got a tough decision, what I do in that situation, I reach out to the crown I say, “Will you extend the time period that I can re-elect?”, and in most situations the crown will do that. Many crowns will allow you to relax even a month before the trial is set. What’s the advantage of that and there’s a trick of the trade here which I’m going to share with you. As a lawyer, in many of these cases I have to file what’s called a pre-trial application, charter applications, applications that wrote statements etc. etc. That is done in advance of the trial so we have the preliminary hearing. We in the Ontario Court of Justice, we move into superior court. The crown’s allowed me to delay my re-election, wait until a month before the trial I bring a motion or application that I have to bring, a legitimate one in and that’s brought in front of the trial judge. Aha! What happens now I know who the trial judge is. I find that out three months before the trial, I say, I like this judge. We’ve got a tough case but this is a fair judge and I’m going to reelect for judge alone to be tried with that judge or you know what, I draw one of the other very bright judges but they’re more pro-crown. I’ve got a decision now, is it better with the jury? Is it better with the judge alone? It’s a real art form. You really have to put a lot of thought into it. You really have to strategize. You need to discuss it with your client, as well, and you need to know your counties. You need to know your juries in the past history in those counties so what they tend to convict or acquit on and, as well, as the judges. Very difficult decision and every county in the province, I can assure you is different. Some of them have liberal Ontario Court of Justice benches. Some neutral, some pro-crown, same with the superior court and we have all different levels and abilities in those courts of the judges, obviously, any judge sitting in the Ontario Court, a superior court is a bright person but let’s face it. We all have different biases and leanings in in the way we approach our life and it’s no different with judges and I can assure you that’s the case across the province so this is such an important right. You really have to be careful about it and you have to pick the right lane for your case on the advice of an experienced lawyer in that county. That’s the video tip of the day on whether to elect in the Ontario Court of Justice a judge alone on an indictable case in the Superior Court: judge alone or judge and jury with a preliminary hearing.
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