- J. Olfert (law student)
Flexibility and Discretion: Crown and Defense Elections: R v Luu, 2019 MBQB 11.
The Canadian judicial system is not quite as rigid as some might assume. In fact, both the Crown and accused in some cases have various choices as to how the trial process unfolds. If you are interested in either what discretion the Crown has or what an accused persons options are (hopefully not for your own sake), the following overview will outline when an election can be made by the Crown and accused as well as what the elections entail. Thereafter, the reasoning for certain elections will be considered according to the 2019 Manitoba Court of Queen’s Bench case R v Luu.
Each crime in the Criminal Code of Canada is either a summary, hybrid or indictable offence. Summary offences are less serious than indictable offences. A summary offence must be tried by a provincial court. A hybrid offence may be tried with a summary or indictable offence depending on the seriousness of the offence and/or how the Crown decides to proceed.
For example, section 334 (a) states that a theft of over five thousand dollars must be charged as an indictable offence, yet a theft of under five thousand dollars may be charged either as a summary or indictable offence according to the Crown’s discretion. Yet, other crimes such as Assault (section 270.01 (1)) are hybrid and determined to be tried as a summary or indictable offence entirely according to the discretion of the Crown. In addition, crimes listed under section 536 must all be tried as indictable offences. If the Crown does not make an election, the Crown is deemed to have elected indictably. Most offences are hybrid, which gives the Crown flexibility.
If a charge proceeds as an indictable offence, the accused can generally make an election as to how they are tried. Exceptions to an election are outlined in sections 469 and 553 of the Criminal Code. Section 553 lists 18 sections, which can only be tried by a provincial/territorial court judge. The 18 charges are generally non-violent in nature, such as placing bets, cheating at play, and non-cattle theft.
Section 469 includes more serious offences only tried by provincial/territorial superior courts. Examples of section 469 offences include murder, piracy, and alarming her majesty.
An accused capable of making an election may choose to be tried one of five ways (according to section 536). One way is to be tried by a provincial court judge. If an accused elects to be tried by a provincial court, section 536(3) states that the judge must endorse the election.
The remaining four elections are either with a superior court judge or judge and jury, either with or without a preliminary inquiry. Section 471 notes that an accused who fails to make an election is assumed to have elected to be tried in a superior court with a judge and jury.
As the name suggests, a preliminary inquiry is an inquiry that takes place prior to any trial. The purpose of the inquiry is to determine whether there is appropriate evidence to set the matter down before entering a more formal trial.
R v Luu
An overview of the case of R v Luu provides a clear example of how to apply the elections of the Crown and accused along with potential motivations for their decisions. The accused is charged with possession of controlled substance (section 7.1(1). On March 22, 2016, an RCMP officer stopped a semi-truck driven by Vinh Duc Luu. The accused was stopped on the Trans-Canada Highway near Portage la Prairie in Manitoba. The sleeper berth of the tractor unit contained 86 pounds of marihuana. The RCMP officer searched the tractor unit, seized the marihuana, and arrested Mr. Luu. Defense counsel claimed that the marihuana was seized by an unreasonable search contrary to section 8 of the Canadian Charter of Rights and Freedoms. At issue in this case was whether the evidence obtained through the search and seizure was warranted.
Section 7.1(2) states that possession of controlled substances is a hybrid offence. Moreover, the section notes that an indictable offence may include a term of imprisonment not exceeding ten years. Note that the minimum sentence for an indictable offence is over six months in jail time or a fine over $5000. A summary conviction on the other hand would have a maximum of six months in jail time and a fine of $5000.
When the Crown is determining how to proceed, they may consider factors including the accused’s criminal record, the severity of the offence, and public policy. In the present case, the accused had no criminal record, yet the quantity of the controlled substance was substantial. As you may have noticed from the court the case was heard in, the Crown elected for an indictable offence.
The accused can make an election as the Crown chose to proceed with an indictable offence and the crime of possession of controlled substances is neither referenced in sections 469 nor 553. Factors the accused and his lawyer may have considered are the severity of the offence, public perception of the evidence, and the complexity of the defense.
In general, Courts are expected to be consistent, yet there is a perception that provincial courts may give lower sentences as they regularly deal with summary convictions. Therefore, one may contend that if the severity of the offence is high, they may get a lighter sentence if found guilty in a provincial court. Another general perception is that provincial court judges deal with a higher volume of criminal cases and are therefore more familiar with the concepts, requiring less work on the part of the lawyer and a lower bill for the accused. On the other hand, a superior provincial court judge is likely to devote more time to the case and therefore more adequately address a complex issue. Furthermore, a jury may be a good option if the legal concept is simple and they may be able to garner some sympathy.
In the present case, the accused elected for a superior provincial court judge alone. The election is likely primarily motivated by the complexity of the defense. Whether Mr. Luu elected for a preliminary hearing is unclear. Such a move could save accused persons like Mr. Luu from going to trial if the evidence was found to be insufficient.
The Crown and defendants’ elections demonstrate how the Canadian judicial system is surprisingly flexible. More specifically, an examination of the elections in the case of R v Luu, illustrates how the parties are involved in creating a fair and just setting for a trial.