What does an "election" mean?

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What does an "election" mean?

Election (also called ‘defence election’) is when an accused person who pleads not guilty to a crime chooses the kind (“mode”) of trial they will have. There is also “crown election,” which I discuss separately below.

The options that the accused can choose from depend on the crime they are charged with.

Some crimes do not allow for any choice at all must be held in provincial court. Provincial court trials do not have juries. A few must be held in superior court (in superior court is the Court of King’s Bench). For many crimes, the accused may choose whether to have their trial in provincial court of King’s Bench. 

For King’s Bench trials, the accused may choose whether to be tried by judge and jury, or just a judge. For King’s Bench trials for crimes with a maximum sentence of 14 years or more, the accused has the option of having a preliminary inquiry before the trial. 

All criminal trials in Alberta are held in one of the following modes:

  • In provincial court by a judge.
  • In the Court of King’s Bench by a judge, without a preliminary inquiry.
  • In the Court of King’s Bench by a judge, with a preliminary inquiry.
  • In the Court of King’s Bench by a judge and a jury, without a preliminary inquiry.
  • In the Court of King’s Bench by a judge and a jury, with a preliminary inquiry.

Most criminal trials in Alberta are held in provincial court by a judge.

What is a preliminary inquiry?

A preliminary inquiry is a hearing for a matter that is scheduled for trial (usually months later) where the crown prosecutor provides evidence and the judge decides whether there is enough evidence to require the accused person to stand trial.

A preliminary inquiry can be thought of like a “mini trial,” where witness(es), often including the complainant, testify and are cross-examined by the defence lawyer, and the judge decides whether the crown prosecutor has enough evidence to even run the trial. It is very rare that a judge will decide that there is not enough evidence to have the trial.

However, it is still often beneficial for an accused person to have a preliminary inquiry. A preliminary inquiry gives the defence lawyer an opportunity to see how strong the crown prosecutor’s case against the accused really is. Often, a prosecution witness will change their story between the preliminary inquiry and the trial, which can be key to a successful defence at trial.

Can I change my election?

If you have elected to proceed with a certain mode of trial, you may have a right to re-elect to proceed to a different mode of trial, depending on what mode of trial you elected and what mode you intend to elect to.

Re-election may require giving notice a specific amount of time before re-election and/or obtaining crown consent to re-elect. Re-election can bring up concerns about delay, and may require you to waive your Charter-protected right to a timely trial.

What does "crown election" mean?

Crown election means the choice of the crown prosecutor to prosecute a summary offence by summary conviction procedure or indictment.

All criminal offences in Canada are either summary offences, indictable offences, or hybrid offences. Most crimes are hybrid offences. For hybrid offences the crown prosecutor will choose (“elect”) to proceed by summary or not. If the crown does not elect, or elects by indictment, then you will be facing an indictable offence.

What is the difference between summary and indictable offences?

Many Canadians have heard of “felonies” and “misdemeanours.” These are United States criminal law terms. There are no felonies or misdemeanours in Canada. That said, indictable offences are like felonies, and summary offences are like misdemeanours. Usually, summary offences are less serious and carry lighter sentences, and indictable offences more serious with longer sentences. For summary offence sentences, the maximum fine is $5000.00 and the maximum prison sentence is two years’ less a day. For some indictable offences, you can face much larger fines, and receive a life prison sentence.