Re-Electing Mode of Trial During COVID-19: Strategic Considerations

Introduction

COVID-19 disrupted jury trials across Canada, forcing defence counsel to reconsider how and where cases should proceed. Re-electing the mode of trial became an important strategic option.

The Right to Re-Elect

For many indictable offences, accused persons may re-elect their mode of trial, sometimes as of right and sometimes with prosecutorial consent. These decisions must comply with strict Criminal Code timelines and formalities.

COVID-19 and Jury Trials

Public health restrictions, jury availability, and the risk of mistrials due to illness made jury trials difficult during the pandemic. Judge-alone trials often provided a more efficient and predictable path forward.

Delay and Charter Considerations

Re-election decisions can have significant implications under section 11(b) of the Charter. Defence counsel must carefully assess whether re-election mitigates or exacerbates delay, and whether waivers are required.

Conclusion

Re-electing the mode of trial is a powerful strategic decision. COVID-19 highlighted the importance of flexibility, careful planning, and proactive defence advocacy.