Criminal Code of Canada - section 536(5) - Jurisdiction

section 536(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section of the Criminal Code of Canada allows a justice with jurisdiction to conduct a preliminary inquiry if the original justice has not started taking evidence.

SECTION WORDING

536(5) Where a justice before whom a preliminary inquiry is being or is to be held has not commenced to take evidence, any justice having jurisdiction in the province where the offence with which the accused is charged is alleged to have been committed has jurisdiction for the purposes of subsection (4).

EXPLANATION

Section 536(5) of the Criminal Code of Canada deals with the issue of jurisdiction in regards to preliminary inquiries in criminal cases. A preliminary inquiry is a process that takes place before a trial, where a judge determines if there is enough evidence to proceed with the trial. If there is not enough evidence, the judge can dismiss the charges. This section gives the power to any justice in the province where the offence is alleged to have taken place to act as a justice for the purposes of subsection 4, provided that the justice assigned to the preliminary inquiry has not begun taking evidence. Subsection 4 gives the presiding justice the power to make orders that are necessary to ensure the accused receives a fair and impartial preliminary inquiry. This includes the power to decide on the admissibility of evidence and whether the accused should be discharged or committed to stand trial. The purpose of this section is to ensure timely and efficient administration of justice by allowing for the transfer of preliminary inquiries to other justices if the assigned justice is not available or is unable to continue with the inquiry. This provides flexibility in the scheduling of court dates and helps prevent delays in the administration of justice. It also ensures that the rights of the accused are protected and they receive a fair and impartial preliminary inquiry from a qualified justice.

COMMENTARY

Section 536(5) of the Criminal Code of Canada is a provision that pertains to the jurisdiction of justices before whom a preliminary inquiry is being or is to be held. According to this section, if a justice has not yet commenced the taking of evidence at a preliminary inquiry, any other justice who has jurisdiction in the province where the alleged offence was committed may assume jurisdiction for the purposes of subsection (4). This provision is important because it ensures that the administration of justice is not delayed or compromised in situations where a justice is unavailable or unable to continue with a preliminary inquiry. In such cases, the provision empowers another justice to take over the matter and carry it forward until completion. The purpose of a preliminary inquiry is to determine whether there is enough evidence to proceed with a trial. During the inquiry, witnesses give evidence, and the accused has an opportunity to cross-examine them. The inquiry is a crucial step in the criminal justice process because it provides an opportunity to test the strength of the Crown's case and allows the accused to prepare for trial. The provision in Section 536(5) ensures that the accused's right to a fair trial is not compromised by delays or other issues that may arise during a preliminary inquiry. In situations where a justice is unable to continue with the inquiry, the provision ensures that there is no undue delay in the administration of justice. The provision also underscores the importance of judicial discretion in the criminal justice system. The provision recognizes that different judges may have different interpretations or approaches to issues that arise during a preliminary inquiry. Therefore, the provision allows for flexibility in the administration of justice by enabling another justice to take over the matter if necessary. Overall, Section 536(5) of the Criminal Code of Canada is a vital provision that ensures the smooth and timely administration of justice during preliminary inquiries. The provision allows for flexibility and discretion in the process and underscores the importance of the judicial role in the criminal justice system.

STRATEGY

Section 536(5) of the Canadian Criminal Code grants jurisdiction to a justice who has not started taking evidence in a preliminary inquiry to any justice who has jurisdiction in the province where the alleged crime was committed. This section has several strategic implications, especially in cases where the prosecution may seek to take advantage of the jurisdictional loophole to their advantage. Some legal strategies that could be employed to make the most of this provision include: Raising the issue of jurisdiction at the outset One of the first strategic considerations for the defense is to raise the issue of jurisdiction at the outset of the preliminary inquiry. This can help to establish which justice has jurisdiction over the case, thereby avoiding any confusion or uncertainty during the hearing. It can also help to establish a favorable jurisdiction or venue for the defendant. Challenging the jurisdiction of the court If the defendant believes that the prosecution is deliberately taking advantage of the lack of jurisdiction of the court or is acting in bad faith, they may consider challenging the jurisdiction of the court. This can be done by filing a motion to dismiss the charges or arguing that the prosecution is in violation of their right to a fair trial. Applying for a change of venue The defense may also consider applying for a change of venue if they believe that the jurisdiction of the court is biased or hostile to their client. This can help to ensure that their client receives a fair and impartial trial, free from any undue influence or prejudice. Appealing a decision on jurisdiction In some cases, the defense may have to appeal a decision made by the court regarding jurisdiction. This can be a time-consuming and costly process, but it can be necessary to ensure that the rights of the defendant are protected. Negotiating a plea deal Finally, the defense may consider negotiating a plea deal with the prosecution if they believe that the jurisdiction of the court is not favorable to their client. This can help to minimize the risks and uncertainties associated with a trial and may result in a more favorable outcome for the defendant. In conclusion, Section 536(5) of the Criminal Code of Canada has significant strategic implications for defendants and their legal counsel. By understanding the potential risks and benefits associated with this provision, defendants can develop effective legal strategies that maximize their chances of success in court.