INTRODUCTION AND BRIEF DESCRIPTION
A provincial court judge may, before the accused has entered their defense, decide to have a charge prosecuted by indictment and inform the accused, continuing the proceedings as a preliminary inquiry.
SECTION WORDING
555(1) Where in any proceedings under this Part an accused is before a provincial court judge and it appears to the provincial court judge that for any reason the charge should be prosecuted by indictment, he may, at any time before the accused has entered on his defence, decide not to adjudicate and shall thereupon inform the accused of his decision and continue the proceedings as a preliminary inquiry.
EXPLANATION
Section 555(1) of the Criminal Code of Canada deals with the jurisdiction of provincial court judges in criminal proceedings. The section provides a mechanism by which a provincial court judge may transfer a case from summary proceedings to an indictment based on the seriousness of the offence or other factors that warrant a more formalized and lengthier trial process. The section gives a provincial court judge the authority to make a decision to transfer a case to an indictment proceeding if it appears that the charge against the accused should be prosecuted through a formal indictment process. This can happen if, for example, the charges are more serious and would warrant a more formalized procedure. This decision can be made at any time before the accused enters on his or her defence. If the judge decides to transfer the case, he or she must inform the accused of their decision and the proceedings then continue as a preliminary inquiry. The preliminary inquiry is a process that determines whether there is enough evidence to require a trial, and the judge will decide whether the case should proceed to a trial. If the judge decides that there is enough evidence, the case will be transferred to a higher court for a more formalized process. This section is crucial in ensuring that justice is done and that the appropriate trial process is followed. It provides a mechanism for provincial court judges to handle cases that would warrant a more formalized process, without having to adjudicate on those cases themselves. This ensures that the most appropriate and fair process is used for each case, and allows the accused to know what type of trial they will be facing.
COMMENTARY
Section 555(1) of the Criminal Code of Canada empowers provincial court judges to determine the appropriate mode of prosecution for certain criminal charges that are brought before them. Specifically, the section allows a judge to decide that a charge that is currently being heard in the provincial court should, in fact, be prosecuted by indictment. There are a few key implications of this section that are worth exploring. Firstly, it gives judges a certain degree of discretion in deciding how a case should be prosecuted. This discretion is important because it allows judges to consider a range of factors, such as the severity of the offence, the criminal record of the accused, and the interests of justice, in determining the appropriate mode of prosecution. Secondly, section 555(1) provides an avenue for charges to be escalated to the higher courts where necessary. This can be an important safeguard in cases where the accused is facing serious charges and a trial by jury is deemed necessary. By allowing judges to transfer these cases to be prosecuted by indictment, the section ensures that the accused is afforded the full range of procedural protections that come with a more serious charge. Thirdly, section 555(1) can be seen as reflective of the broader approach to criminal justice in Canada, which places a strong emphasis on efficiency and proportionality. By providing judges with this power, the section helps to ensure that resources are directed towards cases that necessitate a more strenuous prosecution effort, while less serious offences can be dealt with more quickly and efficiently in the provincial court. There are, however, some potential drawbacks to section 555(1) that are worth considering. One concern is that the discretion provided to judges could be abused, leading to unfair outcomes. For example, some critics have argued that judges may be overly inclined to transfer cases to be prosecuted by indictment, which could result in higher sentences for accused persons. Additionally, some have suggested that the discretion provided by section 555(1) could lead to inconsistencies in the application of the law. Because judges are free to consider a range of factors in determining whether to transfer a case to be prosecuted by indictment, there is the potential for different judges to interpret these factors in different ways, leading to uneven outcomes across the criminal justice system. Overall, section 555(1) of the Criminal Code of Canada is an important provision that provides provincial court judges with the flexibility to determine the appropriate mode of prosecution for certain criminal charges. While there are some potential drawbacks associated with this provision, its overall effectiveness in promoting efficiency and proportionality in the criminal justice system suggests that it is a welcome addition to the Canadian legal landscape.
STRATEGY
Section 555(1) of the Criminal Code of Canada provides a strategic opportunity for the defence or the prosecution in criminal proceedings. By allowing the provincial court judge to transfer a case to an indictment proceeding, it provides the accused with the right to a jury trial and potentially a more severe punishment; however, it also poses a potential disadvantage for the defence as it may lead to longer pre-trial detention, a more formalized process, and higher legal fees. Some of the strategic considerations when dealing with this section of the Criminal Code are as follows: 1. Defending Counsel Strategy - The defence may seek to persuade the judge that the charge against their client should remain as a summary conviction. Therefore, the defence may want to present a case that is well-organized, with strong arguments, witnesses, and evidence. The defence may also argue that the case is factually lacking, or that the evidence against their client was obtained unlawfully. 2. Prosecution Strategy - The prosecution may choose to file a criminal charge as a summary offence in the hope that it will increase their chances of conviction. If the prosecution can show that the offence is serious enough to warrant an indictment, then they may be interested in having the charge upgraded. The prosecution may also choose to upgrade the charge to an indictment to ensure that the accused faces a harsher punishment, or it may be in the public interest to do so. 3. Timing - The timing of when the decision to transfer the charge to indictment proceeding is crucial. The Crown will generally have more control over the timing of the decision to transfer the case than the defence. Therefore, the defence may want to be proactive in presenting evidence or making legal arguments that would indicate the charge should remain a summary offence earlier in the proceedings. 4. Financial Risk - The cost associated with defending a client in an indictment proceeding is typically higher than that of a summary conviction. This expense can be due to additional legal fees, longer pre-trial detention, and the need for more expert witnesses. Defence counsel may advise their client on this matter and try to convince them to accept a plea deal to avert an indictment hearing. 5. Jury Trials - If the accused is unhappy with any conviction via a summary conviction, they have the right to request a trial by jury. However, when the accused is charged with an indictable offence from one committed within Canada, they have the right to a jury trial, which is not available in a summary conviction. Therefore, counsel should also consider the jury or the judge-alone option when defending clients in such cases. In conclusion, when dealing with section 555(1) of the Criminal Code of Canada, it is essential to consider various strategic options. Defence lawyers will aim to maintain the summary proceeding to avoid higher legal fees or unexpected conviction outcomes with jury trials, while prosecution lawyers will look to upgrade to an indictment proceeding to ensure a harsher punishment, or when in the public interest. The timing of the decision and financial risk are also important considerations to be made. Counsel needs to be proactive in making arguments, presenting evidence, and advising their clients on these matters to achieve the best possible outcome.