Crown decision to compel jury trial subject to judicial review on less deferential standard

R. v. J.S.R., 2012 ONCA 568, released today, holds, among other things, that a decision by the Crown to compel a jury trial may be reviewed by the Court for abuse of process on a less deferential standard:

[127] I agree with Brown J. that the Crown's decision under s. 568 of the Criminal Code to require a jury trial even where the accused has elected to be tried by a judge alone is not a core aspect of prosecutorial discretion. It is not a decision as to whether the prosecution will proceed or on what charge. Similarly, in my view, a decision by the Deputy Attorney General under s. 67(6) of the YCJA to override a young person's decision to be tried by a judge alone and to require the trial to be by judge and jury is also not a core exercise of prosecutorial discretion. As a result, it is the type of decision by the Crown that is subject to judicial review for abuse of process on a less deferential standard. Specifically, it does not require flagrant impropriety to be found in order to justify a remedy under s. 24(1) of the Charter.