What Is Your Election: Jury or Judge Alone?
Original article: July 1, 2020 | By Hans 'John' Kalina | Reviewed and updated October 7, 2026
An election is a choice about the mode of trial where the Criminal Code permits a choice. It is different from a plea of guilty or not guilty, and different from the Crown’s decision to prosecute a hybrid offence summarily or by indictment. The available options must be identified before weighing their advantages.
Start with the offence and the Crown’s election
Summary-conviction charges are ordinarily tried by a judge in the Ontario Court of Justice, without a jury. For a hybrid offence, the Crown decides whether to proceed summarily or by indictment. That prosecutorial choice is not the accused’s trial election. Indictable proceedings do not all provide the same trial options.
Where an election is available under section 536 of the Criminal Code, the options generally involve an Ontario Court of Justice judge, a Superior Court judge alone, or a Superior Court judge and jury. The choice is normally addressed when the accused is put to an election; it is not automatically a two-stage choice made afresh after arriving in the Superior Court.
Important limits on the available options
Section 553 gives a provincial court judge absolute jurisdiction over specified charges. Those cases do not provide the ordinary election between provincial court and Superior Court judge or jury.
Section 469 identifies offences, including murder, subject to special jurisdiction rules. For such an offence, section 473 requires the consent of both the accused and the Attorney General for trial by a Superior Court judge without a jury.
Section 11(f) of the Charter protects the benefit of a jury trial where the maximum punishment is five years’ imprisonment or more severe punishment, subject to the stated military-law exception. Its application must be considered with the actual charge and governing procedure.
A preliminary inquiry is a separate issue
Under section 535 and section 536, preliminary inquiries are restricted to qualifying indictable offences punishable by 14 years or more, with the required request and procedural conditions. They are not automatic for every indictable offence, or simply because a jury trial is selected. The accused or prosecutor may request one in eligible proceedings, subject to provisions such as direct indictment.
A preliminary inquiry determines whether the evidentiary basis is sufficient to commit the accused for trial; it does not decide guilt beyond a reasonable doubt. Discuss whether it is available, what purpose it would serve and the request deadline. Electing trial in the Ontario Court of Justice does not carry a preliminary inquiry.
How to assess judge-alone and jury trials
In a judge-alone trial, the judge determines the facts and law and gives reasons. In a jury trial, the judge decides legal and evidentiary issues and instructs the jury; the jury decides the verdict. A jury does not give reasons for its verdict in the manner of a judge. Neither mode guarantees a favourable outcome or should be selected on assumptions that jurors decide through sympathy rather than evidence.
Consider the issues the evidence raises, including credibility, disputed facts and legal complexity.
Consider trial length, practical demands and any properly supported concern about impartiality or prejudicial publicity.
Discuss how rulings, jury instructions and reasons may affect any later appeal; neither mode makes an appeal automatically easier or successful.
Assess the whole defence with counsel rather than relying only on previous experiences or a general preference for one decision-maker.
How jury selection works
Ontario’s jury-duty information describes the qualification and random-selection process. The goal is an impartial jury, not one hand-picked to favour a party. In R. v. Kokopenace, 2015 SCC 28, the Supreme Court focused on a fair process providing a broad cross-section of society an opportunity to participate, not a guarantee of proportional representation on the final jury.
Peremptory challenges were abolished in 2019. R. v. Chouhan, 2021 SCC 26 addresses that change. Challenges for cause under section 638 remain available on the statutory grounds, including lack of impartiality. The court controls the process; counsel cannot reject a prospective juror simply because they do not want that person.
A criminal jury ordinarily has 12 members, but section 631 permits a judge to order 13 or 14 jurors sworn, and provides for alternate jurors where ordered. Further rules govern discharge and which jurors deliberate. It is therefore inaccurate to say every trial must begin with exactly 12 jurors or that extra jurors automatically deliberate on the verdict.
Changing an election: do not assume it is unrestricted
Re-election under section 561 depends on the original choice, the stage of the proceeding and applicable notice and consent requirements. Other provisions may also affect the available route. Raise any proposed change promptly with counsel; do not wait until trial or assume the prosecutor’s consent is never needed.
Related guidance
For advice about your circumstances, contact our office. This article provides general information, not legal advice.