Judge alone or jury, and do you need a preliminary inquiry? Your election in an Ontario criminal case

When the Crown proceeds by indictment on most charges, you choose how you will be tried: by an Ontario Court of Justice judge, by a Superior Court judge alone, or by a Superior Court judge and jury. If you do not choose, the law treats you as having chosen a judge and jury. A preliminary inquiry is only available for offences punishable by 14 years or more, and only if someone asks for one.

This decision, called your election, usually comes up in case management court, often before you have seen all the evidence. Here is how it works in a criminal case in Ontario, what each choice means in Toronto, and how people weigh it.

When do you get to choose?

Only in some cases. The Criminal Code's starting rule is that a person charged with an indictable offence is tried by a judge and jury unless the law provides otherwise (s. 471), and the election is the main exception. The Charter also guarantees the benefit of a jury trial where the maximum punishment is five years or more (s. 11(f)). You will not be asked to elect if:

• The Crown proceeds summarily on a hybrid charge. The case is then tried by a judge of the Ontario Court of Justice, with no jury. Our page on summary and indictable offences explains that choice.
• The provincial court has absolute jurisdiction, for example over theft or fraud where the value is $5,000 or less (s. 553). These are tried in the Ontario Court of Justice.
• The charge is one of the most serious offences listed in section 469, such as murder. These are tried in the Superior Court with a jury, unless both the accused and the Attorney General agree to a judge alone (s. 473).

According to the Ontario Court of Justice, your lawyer, duty counsel or the presiding justice in case management court will tell you whether you have an election.

How does the election work in Toronto, step by step?

1. The Crown's track. Your disclosure usually includes a Charge Screening Form, which the Ontario Court of Justice says will usually show whether the charges proceed summarily or by indictment.
2. Disclosure and pre-trials. For cases started since November 1, 2023, the court's trial scheduling practice direction says a judicial pre-trial that is needed should be scheduled within four months of the date the information was sworn, and both sides are expected to be ready to resolve the case or set a trial within six months. Our page on what disclosure is and why early dates are adjourned explains the first months.
3. The election. In case management court, the justice reads you the election wording from section 536(2) or (2.1), and you or your lawyer answer. Most Toronto case management appearances are at the Ontario Court of Justice, 10 Armoury Street, covered in our guide to the criminal courts at 10 Armoury Street.
4. A preliminary inquiry, if requested. If the case qualifies and you or the Crown asks, an Ontario Court of Justice judge holds the inquiry. If no one asks, the justice fixes the trial date or a date to set one (s. 536(4.3)).
5. The Superior Court stage. After an order to stand trial, the Superior Court's criminal rules call for a pre-trial conference within 60 days (r. 28.03(1)). In Toronto, its trials are scheduled through the Criminal Trial Office on the 4th floor of 361 University Avenue.
6. The trial. The case is tried in the court you chose, on the dates set at the earlier steps.

What are the three choices?

The wording the justice reads to you comes from section 536(2) for offences punishable by 14 years or more, and from section 536(2.1) for other indictable offences. Both end the same way: if you do not elect, you are deemed to have elected a judge and jury (see also s. 565(1)(b)). In a jury trial, the jury that hears the evidence is made up of 12, 13 or 14 sworn jurors (s. 643(1)).

In Toronto, the Superior Court's Criminal Trial Office also handles Superior Court judicial pre-trials and assignment court. Our guide to the Superior Court criminal courthouse at 361 University Avenue explains what happens there after an election.

What is a preliminary inquiry, and do you need one?

A preliminary inquiry is a hearing before a judge of the Ontario Court of Justice that decides only one thing: whether there is enough evidence to send the case to trial in the Superior Court. It does not decide guilt. It is available only when the Crown is proceeding by indictment, the offence is punishable by 14 years or more, you have chosen a Superior Court trial, and you or the Crown requests one (ss. 535 and 536(4)).

The Ontario Court of Justice describes it as a good opportunity to hear the evidence of the Crown's key witnesses before they testify at trial, with a chance to cross-examine them. The party asking for it must file a statement of the issues and the witnesses it wants to hear, with a short summary of each witness's expected evidence. If the judge finds the evidence insufficient, you are discharged and the case ends; if not, you are committed to stand trial in the Superior Court.

If two or more people are charged together and one of them asks for a preliminary inquiry, it must be held for all of them (s. 536(4.2)).

Can you change your election later?

Sometimes, within limits set by section 561:

The Ontario Court of Justice puts it simply: once an election is made, it may not be possible to change it without the Crown's consent. Re-electing also requires written notice to the court.

How do people weigh the choice?

There is no single right answer, and no lawyer can promise that one route will lead to a better result. The questions usually include how strong and how technical the Crown's evidence is, whether testing key witnesses at a preliminary inquiry would help, what pre-trial applications are needed, and timing. On timing, the Ontario Court of Justice's practice direction says it will offer trial dates expected to finish within 15 months of the date the charge was sworn.

Our page on fraud charges in Ontario discusses which court may hear those cases, depending on the election. The same question comes up often with sexual assault charges. The issues are usually narrowed at a judicial pre-trial in an Ontario criminal case, which often comes before a trial date is set.

What changes the answer?

• The maximum sentence. Offences punishable by 14 years or more use the s. 536(2) election, which can include a preliminary inquiry; other indictable offences use s. 536(2.1), with no preliminary inquiry.
• The kind of offence. Section 553 offences stay in the Ontario Court of Justice, and section 469 offences go to the Superior Court with a jury unless both sides consent otherwise (s. 473).
• Time. In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a presumptive ceiling on delay of 18 months for cases tried in the provincial court and 30 months for cases in the superior court, or tried in the provincial court after a preliminary inquiry. Delay caused or waived by the defence does not count toward the ceiling.
• Co-accused. When people are charged together, one person's request for a preliminary inquiry brings it for everyone (s. 536(4.2)).
• Language. The right to an interpreter does not depend on the choice. Section 14 of the Charter covers any party or witness who does not understand the language of the proceedings, in either court.

For example: weighing the election on a fraud charge

This is a hypothetical, not a real client or a result. Suppose the owner of a small North York business is charged with fraud over $5,000 after a dispute with a former partner. That offence is indictable and punishable by up to 14 years (s. 380(1)(a)), so the justice reads the s. 536(2) election: an Ontario Court of Justice judge, a Superior Court judge alone, or a Superior Court judge and jury, with the option of a preliminary inquiry if he chooses the Superior Court.

The Crown's key witnesses are two former employees, and one of them is more at ease in Farsi. His lawyer explains, in Farsi, what each route means. A preliminary inquiry would let the defence hear and cross-examine both witnesses before trial, and the court would need notice to book an interpreter for the witness. It would also lengthen the case, which matters under the 30-month ceiling that applies after an inquiry.

After reviewing the disclosure, the lawyer advises on the route that best fits the evidence and the client's priorities, and on keeping the right to re-elect in mind before the deadlines in s. 561. There is no answer that suits every case, and no route guarantees a result.

What mistakes do people make with their election?

1. Saying nothing when put to the election. Silence is not a neutral answer: you are deemed to have chosen a judge and jury (s. 536(2) and (2.1)).
2. Electing before reading the disclosure. The strength and type of the evidence are central to the choice. Ask for time if key material is missing.
3. Assuming a jury is always better, or always worse. It depends on the evidence, the issues and the applications needed. Neither route promises an outcome.
4. Missing the re-election window. Changing course as of right ends 60 days before the first trial date in most cases (s. 561), after which the Crown's written consent is needed.
5. Forgetting the interpreter until the trial. Ontario asks counsel to give court staff as much notice as possible for an interpreter, so raise it at the first appearance.
6. Treating the election as an immigration decision. The court you choose does not change how immigration law treats a conviction; the offence and the sentence do.

What can you do this week?

1. Check your next court date and whether it is a case management appearance where an election may be asked for.
2. Read the Charge Screening Form in your disclosure and note whether the Crown is proceeding by indictment.
3. Look up the maximum for your charge with your lawyer: 14 years or more means a preliminary inquiry may be possible.
4. List the witnesses you expect the Crown to call, and which of them, if any, may need an interpreter.
5. Tell your lawyer your immigration status and any travel or work commitments that affect timing.
6. Do not answer the election until you have had advice on it.

If you or a family witness is more comfortable in Persian, our guide for Persian-speaking people charged in the GTA explains how we work in Farsi and how court interpreters are arranged.

Frequently asked questions

Does the election change the maximum sentence?

No. The maximum comes from the offence and the Crown's choice to proceed by indictment. The election decides which court and which kind of trial will hear the case, not the sentence range.

Will I have an interpreter at a jury trial?

Yes, if you need one. Ontario's Ministry of the Attorney General provides interpretation in any language required in criminal matters, and a request should state the type of appearance, such as a trial. A family member who testifies can also use an interpreter, because the Charter right covers witnesses.

Can I be tried by a judge alone for murder?

Only if both the accused and the Attorney General consent, and then by a Superior Court judge (s. 473(1)). Otherwise, offences listed in section 469 are tried by a judge and jury.

Is a preliminary inquiry a trial?

No. It only decides whether there is enough evidence to send the case to trial. You are not found guilty or not guilty at a preliminary inquiry.

Can I attend my Toronto Superior Court trial by video?

The Superior Court's Toronto practice direction lists jury and non-jury trials as presumptively in person. Plan to be at 361 University Avenue for each trial day unless a judge orders otherwise.

Does my election affect my immigration status?

Not directly. For immigration purposes, what matters is the offence and the outcome; an offence that can be prosecuted either way is deemed indictable even if it was prosecuted summarily (IRPA s. 36(3)(a)). Read how a criminal conviction can affect permanent resident status.

Does choosing the Superior Court make the defence bigger?

Often it adds steps, such as a preliminary inquiry or a pre-trial conference. Our page on what drives the cost of a criminal defence in Toronto explains which stages add work.

Getting help

Gambriani Law PC advises clients in Toronto and across the GTA on their election, in English or Farsi. The best time to talk is before the case management date where the election may be asked for. The office is at Suite 1901, 5000 Yonge Street in North York, open Monday to Friday, 9:00 a.m. to 5:00 p.m., at +1 647 970 3370.

This page is general information about Ontario criminal procedure, not legal advice about your case.