The accused may want to re-elect the mode of his/her trial. Section 561 of the Code is the section that permits an accused to make a re-election depending upon the timing of the decision to re-elect. Section 561 of the Code provides the procedure to follow when an accused wishes to change her election or deemed election as to the mode of trial. Here are the possibilities:
if the original election is a forum other than before a provincial court Judge, the consent of the Crown is required to re-elect to have a trial in provincial court; (1)(a);
if the original election is to be tried before a Judge alone or before a Judge and jury, changing the election from one forum to the other may be accomplished as of right up to 2 weeks following the completion of the preliminary hearing; (1)(b);
the re-elections referred to in paragraph b above may only be accomplished afterwards with the written consent of the prosecutor; (1)(c);
if the original election is to be tried before a provincial court Judge, or, if the accused has not requested a preliminary hearing, the accused has the right to re-elect another forum for trial up to 14 days before the first trial date that has been fixed. If the accused seeks a re-election beyond this time he requires the written consent of the prosecutor.
The procedural requirements for written notice to re-elect are contained in subsections 561(6) and (7). If the case is still before the provincial court the re-election takes place in that court. If the accused has been ordered to stand trial after a preliminary hearing and the accused wishes to re-elect to also have his trial in the provincial court, the re-election will take place in the provincial court. A re-election from either Judge alone to Judge and jury or Judge and jury to Judge alone will take place in the Superior Court.
If an accused is to be tried after an indictment has been preferred against the accused pursuant to a consent or order given under section 577, the accused is deemed both to have elected to be tried by a court composed of a Judge and jury and to have not requested a preliminary inquiry pursuant to subsections 536(4) or 536.1(3), and, may reelect to be tried by a Judge without a jury without a preliminary hearing.2
Subsection 536(2) provides for the general right of election by an accused person charged with an indictable offence other than those listed in sections 469 and 553.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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