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What is your election, Jury or Judge Alone?

01 July, 2020

Photo of Lawyer Hans 'John' KalinaBy Hans 'John' Kalina


In Canada, all criminal charges are classified into three categories: a) summary conviction offences, b) indictable offences, or c) hybrid offences. Pure summary conviction offences are those that are considered less serious, whereas pure indictable offences are those considered the most serious under Canadian criminal law. Hybrid offences are those that the Crown Attorney may “elect” to proceed by indictment or summary conviction. The Crown’s decision to elect one way or another is entirely discretionary and challengeable only in clear and exceptionally rare cases of abuse of process or malicious prosecution.

Choosing the Forum

Whether the criminal offence is summary, indictable, or hybrid, nearly all criminal charges commence in the Provincial level of criminal court. In Ontario, this court is known as the Ontario Court of Justice. Depending on the nature of the offence or the nature of the Crown’s decision on how to proceed (i.e. how they elect), the case may progress to a higher level of criminal court known as the Superior Court if the accused so elects.

Preliminary Hearings

For indictable offences in which the maximum sentence is 14 years or more, the accused has a right to conduct or waive a preliminary hearing prior to a trial. All preliminary hearings are held in the Provincial level of court. Similarly, the accused may also choose (elect) to conduct a trial in the Provincial level of court without having a preliminary hearing.

Superior Court Election

Once in the Superior Court, an accused person has another election to make. Whether to elect a trial by judge alone or to be tried by a judge and jury is one of the most fundamental rights of an accused person. That mode of election and rights therein is found commencing under section 535 of the Criminal Code of Canadaand following.

The right to a trial by a jury is a constitutional right in Canada. Section 11(f) of Canadian Charter of Rights and Freedoms provides that “except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment”

An exception to these typical choices in the mode of trial are those offences found within section 553 of the Criminal Code of Canada. Section 553 lists those crimes that the Provincial court has “absolute jurisdiction” over. This means that even when the Crown proceeds by indictment, a person does not have a right to a preliminary hearing, jury trial, or to be tried in the Superior Court.

Another exception to these typical choices are those offences listed within section 469 of the Criminal Code of Canada. “469 offences” are the most serious offences under Canadian criminal law. They include murder, treason, and terrorism offences. Unlike most indictable offences where an accused has a right to elect to be tried before a judge alone, section 469 offences must be tried by a jury unless the Crown Attorney consents to a judge sitting alone. Studies have shown that a 12-person jury is more likely to make a fair decision.


Whether to elect to be tried by a jury is a serious decision. It may seem bizarre that 12 laypersons, untrained in the law, would be required to come into a courtroom and listen to the recounting of events about which they know nothing, involving people with whom they have no familiarity, and then make a decision about whether someone has committed a crime.

Why do we use juries? What are their advantages and disadvantages? How do we decide who should sit on a jury?

Choosing a Jury vs. Judge Alone

Sometimes, accused persons have firm views about whether they want a judge or a jury to hear their case, often the result of past experiences with the court system. An accused who has been in trouble in the past and feels she has not been treated fairly, when in front of a judge alone, will often insist on a jury trial, believing she will get a better hearing in front of 12 ordinary people. The reverse is sometimes true: an accused who feels he was wrongly convicted by a jury in the past may be more likely to ask for a “judge alone” trial.

Sometimes, simply as a matter of principle, accused persons want representatives of their community to pronounce judgment opposed to a judge. Sometimes the opposite occurs, where an accused decline their right to a jury because they do not want local people to know the details of what is alleged to have been done.

A defence lawyer who is advising an accused may have different considerations. Cases which are mainly about the law are probably better suited to the assessment of a judge. (In a jury trial, the judge explains to the jury what the applicable law is; the jury then has to apply that law to the evidence and determine the verdict).

Cases where the main question is what precisely took place between the people involved are sometimes better suited for a jury, but not always. One big difference between a trial with a judge and one with a jury is that a judge is required to give reasons for the verdict he reaches, while a jury gives only a one or two word verdict (“guilty” or “not guilty”) without any explanation of any sort. Even for a judge, finding a coherent, logical way through a tangled web of evidence can be a challenge. It might be easier to appeal a judge’s decision, if his or her reasons include errors of fact, or illogical or irrational trails of reasoning. It is often more difficult to appeal a jury’s decision which considers the evidence and returns with a verdict.

Juries are always told they must not allow sympathy to play a role in their decision-making, but in the real world, sympathy is almost always a factor taken into account in choosing whether to have a jury trial. An accused who will likely be seen with sympathy and compassion by other persons may more likely want a jury. Arguments along the lines “this could have been you; what would you have done?” are more likely to find favour with ordinary persons than with judges, whose reasons must show that they have carefully and dispassionately applied the law.

Sympathy and compassion can also weigh against an accused, in which case they will more likely not want a jury trial. If a particularly vulnerable person is the victim or an important prosecution witness, the accused might want a judge alone: a judge must dispassionately apply the law, and provide logical reasons which show she has done that, no matter how sad or sympathetic the plight of the victim might be. Similarly, if the crime alleged is particularly violent and the evidence expected to be graphic, a judge might be a better choice, as he or she will be less likely swayed by the horror of what they are hearing and seeing than might be the case with a jury, who might let feelings of revulsion and anger sway their reasoning.

In many cases an accused person can usually be satisfied that the final verdict has been reached after the careful consideration and close attention paid by 12 ordinary community members who have brought their common sense and everyday wisdom to bear upon the issues they have been told to consider. We view juries as a fundamental protector of our liberties and freedoms, 12 ordinary, independent fellow citizens who can protect us from the whims and arbitrariness of decisions made by officials who are beholden to the sovereign, a local figure, or other arms of government.

Choosing the Jury

When it comes to deciding who from our communities should sit on a jury, the process is designed to ensure independence and impartiality. The first step is to summon a large group of persons selected from the community at random, to attend a court sitting to choose a jury. Local sheriffs, using names taken at random from sources such as health care records, electors lists, tax rolls and telephone books choose this group, which is referred to as the jury “pool” or “panel”. Efforts are made to obtain as wide a cross-selection of community members as possible. The Supreme Court of Canada ruled in R. v. Kokopenace, 2015 SCC 28, that accused persons of a minority background are not entitled to a jury pool which represents their group, or even one which has a proportionate number of their community, but rather, a panel which randomly represents the makeup of society at large.

Jury selection usually begins with dozens of people, and sometimes 200 or 300, gathered together, in a courtroom or other facility large enough to accommodate the group. Sometimes an even larger pool of persons is necessary to ultimately select 12 jurors when the trial is going to be quite lengthy or the charges have been widely publicized. The presiding judge usually begins by explaining in general terms how the proceedings will unfold. This involves the length of time the trial will likely take, who is the accused, who the lawyers and witnesses are, and the reasons individuals might properly ask to be excused from jury duty. This usually leads to many persons coming forward asking to be excused for various reasons such as health problems, work or school commitments which cannot be avoided, or travel which has been booked and paid for. Moreover, anyone who is related or otherwise connected to any of the participants is usually excused from jury duty for that trial, to ensure that all jurors are unbiased and impartial.

The Clerk of the Court selects possible jurors at random, and then the defence and the Crown decide whether that individual is someone they want on the jury. As of September 19, 2019, peremptory challenges were abolished. One by one, persons are chosen until there are 12 who will form the jury. Sometimes, either two more persons are chosen to sit as alternates (in case, before the trial begins, one of the original 12 is not able to continue) or as substitutes (in case, during the trial, one of the original 12 cannot carry on). A criminal trial must always begin with 12 jurors, and the law allows for up to two to be excused as the trial proceeds. Having alternates and substitutes better ensures the trial will proceed to a conclusion, in the event that a juror cannot carry on.

A jury selection may include what is called a “challenge for cause” process. This usually occurs where there are concerns about impartiality. In Canada, these concerns usually arise from either racial bias, or from pre-trial publicity. In some situations, and among some communities, racial and ethnic prejudices may taint potential jurors. Similarly, where there was unusually high-profile media coverage when the crime occurred, there will sometimes be concern that potential jurors may have been influenced by what they have heard about the allegations and the accused even before the trial has begun. In such situations, the judge will allow questions to be asked to “weed out” anyone who will not be able to act impartially. The judge may allow one or more carefully crafted questions to be asked of them.

Simply holding views about different racial groups or having some knowledge of the matter due to publicity will not necessarily exclude an individual from the jury. What matters is whether the juror can leave those views, or their knowledge of the case, outside the courtroom and, for the purposes of the trial and rendering their verdict, take account only of the evidence introduced in court, the arguments of the lawyers, and the legal instructions given by the judge.

Making the appropriate elections are difficult decisions that should be discussed with your lawyer to ensure that you are getting the best defence in your situation.

Hans John Kalina is a lawyer with Kalina & Tejpal. He can be reached at (416) 900-6999 or www.lawyer4u.ca

Tags: criminal, criminal defence, legal advice

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