Right to Re-elect under s.561(2) of the Criminal Code

In R. v. G.H., 2025 ONCA 667, the Court of Appeal confirmed that an accused has a right to re-elect another mode of trial under s.561(2) of the Code without the consent of the Crown strictly no later than 60 days before “the day first appointed for the trial”. Further, it provided the proper interpretation of that phrase. Notably, the date of a pre-trial application is included in that count, because it is “properly considered to be part of the trial, requiring the attendance of the accused.” See below.

Zarnett J.A.:

[1] Under s. 561(2) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), an accused who has elected to be tried in the Ontario Court of Justice (“OCJ”) has a right to re-elect another mode of trial, specifically to be tried by either a Superior Court of Justice (“SCJ”) judge or by a court composed of an SCJ judge and a jury. That right may be exercised without the consent of the Crown but is subject to a deadline. The right must be exercised not later than 60 days before “the day first appointed for the trial”. This appeal turns on the proper interpretation of that phrase.

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[8] For the following reasons I would dismiss the appeal. Although my reasons differ from those of the OCJ judge, I agree with her conclusion that the time for re-election without Crown consent had expired by the time the appellant sought to re-elect.

[9] The determination of whether a date is “the day first appointed for the trial” focuses on the time the date is scheduled, rather than on what actually occurred on the scheduled date. A scheduled date will be “the day first appointed for the trial”, allowing the accused person to calculate the deadline for expiry of the right to re-elect, when it is the earliest date fixed by the court for any step that is part of the trial. For these purposes, fixed means the date has been set by the court and only the court can change it, and the word trial is to be understood expansively – it is not limited to the stage of the trial in which evidence is heard.

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Discussion: at paras. 41-65

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[58] Giving a restricted meaning to the term trial in s. 561(2) would also be inconsistent with provisions of the Code, such as s. 278.3 that contemplate steps that are required to be heard by the trial judge (“the judge before whom the accused is to be, or is being, tried”). Such an application is properly considered to be part of the trial, requiring the attendance of the accused, under s. 650 of the Code: R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, at paras. 42, 44, 52.