INTRODUCTION AND BRIEF DESCRIPTION
This section states that a publication ban order can only be made for trials for an indictable offence where the indictment has been preferred, except for trials before a provincial court judge.
SECTION WORDING
551.7(4) However, the order may only be made in respect of a trial for an indictable offence, other than a trial before a provincial court judge, if the indictment has been preferred.
EXPLANATION
Section 551.7(4) of the Criminal Code of Canada is a provision that governs when a judge can issue an order for a trial to be conducted by way of a judge and jury. This provision specifies that such an order can only be made in respect of a trial for an indictable offence, which is a more serious type of criminal offence in Canada. It should be noted that this provision applies to all jurisdictions in Canada, except those with their own specific legislation addressing this issue, such as Quebec. However, this provision also contains an important restriction on the ability of a judge to issue such an order. Specifically, the judge can only do so if the indictment has been preferred. An indictment is a formal document that sets out the charges against a person accused of a criminal offence. It is issued by a grand jury or a prosecutor, and it is an essential requirement for a case to proceed to trial. The practical effect of this provision is that a judge cannot order a jury trial until the prosecution has taken the necessary steps to bring an accused person before a court on an indictment. This ensures that the basic legal procedures are followed, and that the accused person's rights are protected. It also ensures that a person cannot be forced to undergo a trial by jury for a criminal offence until the Crown has provided sufficient evidence to justify a trial. Overall, section 551.7(4) of the Criminal Code of Canada is an important provision that helps to ensure that the justice system operates fairly and efficiently. By limiting the judge's ability to order a jury trial and requiring the Crown to preferred an indictment first, this provision helps to protect the rights of the accused, while also ensuring that only legitimate cases proceed to trial.
COMMENTARY
Section 551.7(4) of the Criminal Code of Canada specifies the circumstances under which an order for a trial to be held in the absence of the accused may be made. This provision is in place to ensure that proceedings can continue when an accused person absconds or obstructs the administration of justice. However, this provision is subject to certain limitations. Specifically, the order can only be made in respect of a trial for an indictable offence - in other words, a serious criminal offence. This ensures that the accused person's right to a fair trial is respected, as less serious offences are typically tried by summary conviction and do not require the same level of procedural protection. Furthermore, the provision states that the order may only be made for a trial before a superior court judge, and not before a provincial court judge. This ensures that the order is only made in circumstances where the seriousness of the offence warrants a trial before a higher court. It also recognizes the importance of having a competent and experienced judge presiding over the case in such circumstances. The requirement that the indictment has been preferred is another important safeguard. Indictments are formal charges that are handed down by a grand jury or a judge, following a preliminary hearing. They are a key part of the criminal justice process, and their issuance signals that the Crown believes there is enough evidence to proceed with a trial. Requiring that an indictment has been preferred before an order for a trial in the absence of the accused can be made ensures that the Crown has met a higher burden of proof, and that the accused person has already had some basic procedural safeguards. It also means that the accused person has been formally charged and is aware of the nature of the charges they are facing. In sum, Section 551.7(4) of the Criminal Code of Canada provides important safeguards for the use of orders for trials to proceed in the absence of the accused. By limiting the use of these orders to serious indictable offences, before a superior court judge, and only when an indictment has been preferred, the provision ensures that the rights of the accused are protected, and that the public interest in the administration of justice is preserved.
STRATEGY
Section 551.7(4) of the Criminal Code of Canada presents important strategic considerations for those dealing with criminal trials. This section establishes that an order for a trial by judge alone can only be made in the case of an indictable offence, provided an indictment has been preferred. This means that those involved in criminal trials must consider carefully whether seeking a trial by judge alone is the most effective and appropriate strategy given the specific circumstances of their case. One of the key strategic considerations that arises from Section 551.7(4) is whether or not to proceed with an indictment. In order to seek a trial by judge alone, an indictment must be preferred, which means that the Crown must present the case to a grand jury to obtain an indictment. This can be a time-consuming and expensive process, and may not be appropriate or necessary in all cases. If the potential benefits of a trial by judge alone do not outweigh the costs of seeking an indictment, it may be more effective to proceed with a jury trial. If an indictment is sought, there are several strategies that can be employed to increase the likelihood of obtaining an order for trial by judge alone. One strategy is to argue that a judge-alone trial would provide a more efficient and effective means of adjudicating the case, particularly if the case is complex or involves sensitive issues that may be difficult for jurors to comprehend. Another strategy is to argue that a trial by jury would be prejudicial to the accused, perhaps because of pre-trial publicity or other factors that may make it difficult to obtain an impartial jury. On the other hand, if an accused is seeking to avoid a judge-alone trial, there are strategies they can use to prevent the Crown from obtaining an indictment. One strategy might be to argue that the case does not involve a serious indictable offence and therefore an indictment is not warranted. Another strategy might be to argue that the Crown has failed to present sufficient evidence to support an indictment. Ultimately, the decision to seek a judge-alone trial or to challenge the Crown's attempt to obtain an indictment will depend on a range of factors, including the specifics of the case, the potential consequences of a conviction, and the resources available to the accused. It is important for those involved in criminal trials to carefully consider the strategic implications of Section 551.7(4) in order to determine the most effective course of action for their particular circumstances.