Should an Accused Elect a Judge Alone or Jury Trial?

I haven’t very interesting criminal law topic for you today. And that is, should I elect judge and jury or judge alone? So we represent a lot of clients facing serious charges like aggravated assault, assault causing bodily harm, sexual assault, fraud, these types of cases. Indictable offenses where they’re facing five years or more in jail. So you have a right to elect either judge alone in the Superior Court of Justice or judge and jury in the Superior Court of Justice. If the sentence, the case you’re charged with has a five year or more maximum sentence. So for example, sexual assault, has a ten year max, you get your right to a jury trial.

So our client says to us well which should I elect Mike? Well, it’s your decision, but I’m going to help you with the decision. So here’s my thinking, here’s how I do it. So I always tend to elect judge and jury and I try and find out who the judge is going to do the case because every judge in the province is different. And this is a psychological trick here. You have to know your judges. Some judges are pro defense, they tend to acquit. Some judges are neutral, very fair. Some judges are pro crown. You first and foremost you need to know your judge.

So by electing a jury, let’s say I’m in a particular county, let’s say I’m in Toronto, and I’m in the Superior Court of Justice. I elect judge and jury and in my sexual assault trial, three months before the trial I have some pretrial motions. Okay, pretrial applications, I can find out who my judge is, now I know who the judge is and invariably the crown will allow me to re-elect. They always do basically. And I can choose to go with that Judge alone, oh, that’s a great judge for us. They’re very defense friendly. I know them, I’ve done cases with them before. Or no, that judges tends to convict or their neutral. It depends on the case as well. Like I got a look at my case. I am a great believer in the jury system. I’ve done lots of jury trials over the years. I find them very fair. Sometimes I’m disappointed in the result with the jury, but for the most part I find them very fair.

So I don’t have a bias towards judge or jury. I have a bias towards getting the right judge in my case. I hate to put it that way. But it’s a way of finding the right judge for your case. If you think you know it’s right judge you can re-elect. So that’s the way it works in the province. I mean, jury trials are very expensive, very time consuming. So if I let the crown know in advance of the trial well enough, their going to let me re-elect pretty much every time and I get that in writing from them. Will you let me reelect up to two months before the trial? Oh, absolutely. Mike, that’s not a problem. Okay. Now I’ve got my pretrial motions. I find out who the judge is. And I’m not going to go with that judge. I’m going to stick with the jury.

So that’s the most important thing. I know a lot of defense counsel, they were automatically electing judge alone. Well why would you do that? You may be automatically convicting your client with some judges. I hate to say it. So you got to keep your options open. At least you can get if you if you drew the wrong judge. If you have a jury, at least you have the chance of getting a fair trial frankly, with 12 people because I’ll tell you 12 people to convict your client they all have to be convinced unanimously beyond a reasonable doubt of your clients guilt. Don’t get me wrong. Judges convict people all the time. You know in the province, they sleep well at night.

Some people on a jury if there’s a reasonable doubt they’re not sleeping well, you know, and there’s some judges have no problem at all, even in my mind even on a case that they shouldn’t convict on convicted. There’s no question that everyone’s different. We’re all people. We all have our particular decisions. So that’s the way I do it. And I think that’s the best advice to your client. Keep your options open. Elect judge and jury try and find out who the judge is in that county doing your case and then proceed accordingly based on what their predilections are the liberal, conservative or neutral or you think a jury trials can be better for this particular case. There you have it. Electing judge alone or judge and jury.

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