INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the options for an accused person charged with an indictable offence to elect to be tried by a provincial court judge, judge without a jury, or court composed of a judge and jury.
SECTION WORDING
536(2) If an accused is before a justice charged with an indictable offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words: You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
EXPLANATION
Section 536(2) of the Criminal Code of Canada outlines the procedure for an accused person who is charged with an indictable offence that falls outside the jurisdiction of a provincial court judge. The section provides the accused person with the option to elect the mode of trial they prefer. The mode of trial is the process by which an accused person's case is heard in a court of law. The section requires the justice to inform the accused of their options after the information has been read to them. The accused is provided with three options to elect: to be tried by a provincial court judge without a jury and without having a preliminary inquiry; to be tried by a judge without a jury; or to be tried by a court composed of a judge and jury. If the accused does not make an election, they are deemed to have elected to be tried by a court composed of a judge and a jury, which is the default option. If the accused elects to be tried by a judge without a jury or a court composed of a judge and jury, they will only have a preliminary inquiry if requested by them or the prosecutor. A preliminary inquiry is a hearing held to determine whether there is enough evidence to proceed to trial. The purpose of this section is to provide the accused person with the opportunity to choose the mode of trial that they believe is most suitable for their case. It reflects the principles of fairness and justice by ensuring that the accused person has a say in how their case will be heard. The options provided also reflect the different levels of complexity and seriousness of offences that may be brought before the court. Overall, the section seeks to strike a balance between the interests of the accused person and the public's interest in justice.
COMMENTARY
Section 536(2) of the Criminal Code of Canada lays out the options for an accused person charged with an indictable offence, other than an offence listed in section 469, and that is not under the jurisdiction of a provincial court judge under section 553. The accused is given the option to choose how they want to be tried, with the possibility of having a preliminary inquiry. The three options presented to the accused are: to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; to be tried by a judge without a jury; or to be tried by a court composed of a judge and jury. The first option, to be tried by a provincial court judge without a jury, may be attractive to an accused person for a few reasons. Firstly, it is likely to be the quickest option for having a trial, as there is no need to select a jury. Secondly, the provincial court is generally considered to be less formal than a higher court, which may put an accused person at ease. Finally, there is no preliminary inquiry required, which means there is less chance of the Crown building a stronger case against the accused. The second option, to be tried by a judge without a jury, may also be attractive to an accused person. It eliminates the possibility of having a biased or emotional jury deciding their fate. In addition, trials without a jury tend to be shorter and less complicated, as there is no need for the Crown to present its case to a group of jurors. Finally, the third option is to be tried by a court composed of a judge and jury. This option is often seen as the fairest and most unbiased, as the jury is made up of everyday citizens who are not legal professionals. However, it is also the option that is most likely to result in a longer trial, due to the need to select and instruct a jury. If an accused person does not make a choice, they are deemed to have chosen the third option, which is to be tried by a court composed of a judge and jury. It is important that the accused person understands that they have the right to select the option that they feel is best for their case, and that they are not obligated to choose one over the other. In addition, the section makes it clear that the accused person will only have a preliminary inquiry if they or the prosecutor requests one. This is important because preliminary inquiries can be time-consuming and costly, and may not be necessary for every case. Overall, section 536(2) of the Criminal Code of Canada provides accused persons with a degree of flexibility and choice when it comes to the process of their trial. It is important that all options are considered carefully, and that the accused person makes an informed decision based on their individual circumstances.
STRATEGY
Section 536(2) of the Criminal Code of Canada provides an accused with three options when facing an indictable offence: to be tried by a judge without a jury; to be tried by a court composed of a judge and jury; or to be tried by a provincial court judge without a jury and without having had a preliminary inquiry. The decision made by the accused can have significant ramifications for the outcome of the case, making it important to consider strategic options when dealing with this section of the Criminal Code. One strategic consideration is the role of the jury in the trial process. A jury is composed of members of the public who are tasked with determining the guilt or innocence of the accused. They are expected to consider the evidence presented before them and make a decision based on the facts of the case. Choosing to be tried by a jury may be advantageous if the accused believes that their case would be more persuasive to members of the public than to a single judge. This could be the case, for example, if the accused was charged with a crime that could be viewed as socially unacceptable or morally reprehensible. However, opting for a jury trial may also present certain challenges. Juries are often less familiar with legal procedures and principles than judges, which can make it more difficult to present complex legal arguments in a way that is persuasive to them. Additionally, a jury's decision can be unpredictable, making it difficult for the accused to predict the outcome of the trial. Another strategic consideration is the preliminary inquiry. A preliminary inquiry is a hearing that takes place prior to a trial to determine whether there is enough evidence for the case to proceed. Electing to be tried by a judge without a jury or by a court composed of a judge and jury may allow the accused to avoid a preliminary inquiry, which can be a lengthy and costly process. However, if the accused believes that there are weaknesses in the Crown's case that may be exposed during a preliminary inquiry, they may see value in requesting one. A further strategic consideration is the nature of the offence charged. Certain offences may be better suited to a particular trial format. For example, offences that are more technical in nature may be better presented in front of a judge without a jury, who may have a better understanding of the legal principles at play. Conversely, offences that are more emotional in nature may be better presented in front of a jury, who may be more likely to connect with the human elements of the case. Overall, the decision to elect a particular trial format will depend on a number of strategic considerations, including the role of the jury, the value of a preliminary inquiry, and the nature of the offence charged. In order to make an informed decision, accused persons should seek the advice of an experienced criminal lawyer who can advise them on the potential advantages and drawbacks of each trial format and develop a strategic approach that is tailored to their specific case.