The right to re-elect from trial by judge to trial by jury

When does a defendant lose their right to re-elect the mode of trial?

Every defendant charged with an indictable offence carrying a maximum penalty of 5 years or more has the right to choose whether to be tried by a judge or by a jury. The Criminal Code says that once they have made their election, they can change their mind without the consent of the Crown at any point 60 days prior to the scheduled start of trial. But does that provision refer to the start of the *merits trial*, where the accused enters the plea and the trial begins, or to *pre-trial motions*, such as a Charter application or voluntariness voir dire?

In R v GH, 2025 ONCA 667, the Court of Appeal for Ontario decided that the 60 day period expires before *pre-trial motions*. You cannot schedule your judge alone trial 60 days after your Charter, run and lose your Charter, and then decide to re-elect as of right to trial by jury. (Though you can always re-elect if the Crown consents.)

As a practice point, it's important to keep in mind that the Crown routinely consents to re-election in one direction: when changing from judge and jury to judge alone (in non-murder cases). There is typically little risk in advising a client to elect judge and jury first, with a potential for re-election later on down the road. Though since the right to choose one's mode of election is a fundamental right that can only be made by the accused, and not the lawyer, the client should be told in no uncertain terms that there is a risk that the Crown does not consent and they are stuck with the jury.