Criminal Code of Canada - section 561.1(5) - Notice at preliminary inquiry Nunavut

section 561.1(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the process for an accused person to elect to be tried by a judge without a jury at a preliminary inquiry.

SECTION WORDING

561.1(5) If at a preliminary inquiry an accused wishes to re-elect under subsection (1) or (3) to be tried by a judge without a jury but does not wish to request a preliminary inquiry under subsection 536.1(3), the presiding justice of the peace shall notify a judge or a clerk of the Nunavut Court of Justice of the accused’s intention to re-elect and send to the judge or clerk the information and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, or any evidence taken before a coroner, that is in the possession of the justice of the peace.

EXPLANATION

Section 561.1(5) of the Criminal Code of Canada outlines the procedures surrounding an accused person's right to re-elect to be tried by judge alone. This section applies specifically when an accused person has previously elected to be tried by judge and jury, but changes their mind and wishes to be tried by judge alone instead. If an accused person wishes to re-elect to be tried by judge alone at the preliminary inquiry stage, they must inform the presiding justice of the peace. The presiding justice of the peace is then responsible for notifying a judge or clerk of the Nunavut Court of Justice of the accused person's intention to re-elect. The presiding justice of the peace must also provide the judge or clerk with any relevant information that may be in their possession, including promises to appear, undertakings, recognizances given in accordance with Part XVI, or any evidence taken before a coroner. This ensures that all relevant information is available to the judge who will be presiding over the trial. Overall, section 561.1(5) ensures that accused persons have the right to change their election to be tried by judge alone, without being required to request a preliminary inquiry. This section also ensures that all necessary information is forwarded to the appropriate judge or clerk, enabling them to properly assess the case and make informed decisions about the trial proceeding.

COMMENTARY

Section 561.1(5) of the Criminal Code of Canada specifies the procedure that an accused person must follow if they wish to re-elect to be tried by a judge without a jury at their preliminary inquiry. The section outlines the required notification process and the information that must be shared between the involved parties. In order to understand the significance of this provision, it is essential to have a broader understanding of the context and implications of the preliminary inquiry. Preliminary inquiries allow the court to determine whether there is enough evidence to proceed with a trial on indictable offences. Essentially, it is a hearing to determine if there is enough evidence to proceed to trial. If an accused person wishes to re-elect to be tried by a judge alone instead of a jury, they must first request a preliminary inquiry. During this inquiry, the Crown prosecutor will present evidence to the court, and the accused person or their counsel will have the opportunity to cross-examine witnesses and present their own evidence. If the accused person is satisfied with the evidence presented at the preliminary inquiry, they may choose to re-elect. This effectively means that they waive their right to a trial by jury, and the case proceeds to trial before a judge alone. However, if the accused person does not wish to request a preliminary inquiry, but still wishes to re-elect, they may do so under section 561.1(5). In this case, the presiding justice of the peace is responsible for notifying a judge or clerk of the Nunavut Court of Justice of the accused person's intention to re-elect and for sending any relevant information or evidence to that party. This process ensures that the judge who will hear the trial is aware of the accused person's decision to re-elect and has access to all the relevant information from the preliminary inquiry. It also allows for a smoother transition between the preliminary inquiry and the trial, as the judge can review the evidence in advance. One potential concern with this provision is that it may limit the accused person's access to justice. If they do not wish to request a preliminary inquiry but still wish to re-elect, they may be required to go through an additional step in the legal process. This could potentially create barriers for those who do not have access to legal representation or are navigating the legal system without a strong understanding of its procedures. Overall, section 561.1(5) is an important provision that ensures a smooth and fair transition between the preliminary inquiry and the trial in cases where the accused person wishes to re-elect. However, it is essential to balance this with the accused person's access to justice and ensure that the process remains accessible and transparent for all parties involved.

STRATEGY

Section 561.1(5) of the Criminal Code of Canada deals with the process of an accused re-electing to be tried by a judge without a jury. There are several strategic considerations that need to be taken into account when dealing with this section of the Criminal Code. One of the first strategic considerations is whether the accused should elect to be tried by a judge without a jury or not. This decision must be taken based on the particular circumstances of the case. For example, if the case involves complex legal issues or technical evidence, it may be better for the accused to have the case heard by a judge without a jury who may have more legal expertise. On the other hand, if the case involves emotional or sensitive evidence, it may be better for the case to be heard by a jury who can understand and empathize with the emotional impact of the evidence. Another strategic consideration is whether the accused should request a preliminary inquiry or not. A preliminary inquiry allows the accused to see the evidence against them and to assess the strength of the Crown's case. This can help the accused to develop a defense strategy and to negotiate a plea bargain. However, a preliminary inquiry can also provide the Crown with an opportunity to test the strength of the defense's case and to obtain additional evidence. If the accused elects to be tried by a judge without a jury, they must notify the presiding justice of the peace who will then notify the Nunavut Court of Justice. At this stage, the accused should carefully review all the evidence that has been gathered by the Crown and prepare a strong defense strategy. This may involve gathering additional evidence, hiring expert witnesses, and cross-examining the prosecution's witnesses. One strategy that may be employed is to challenge the admissibility of evidence. If the defense can successfully argue that certain evidence should be excluded, it may significantly weaken the Crown's case. For example, evidence that was obtained illegally or through coercion may be ruled inadmissible by the judge. Another strategy is to argue for a lesser charge. In some cases, the Crown may be willing to accept a plea to a lesser charge if it means securing a conviction. This may be a strategic decision for the accused if the evidence against them is strong, or if they wish to avoid a lengthy trial and a more severe sentence. In summary, there are several strategic considerations that need to be taken into account when dealing with section 561.1(5) of the Criminal Code of Canada. The accused must decide whether to elect to be tried by a judge without a jury, whether to request a preliminary hearing, and how to develop a strong defense strategy. Tactical considerations may include challenging the admissibility of evidence, negotiating a plea bargain, or arguing for a lesser charge. Ultimately, the accused should work closely with their lawyer to develop the most effective defense strategy for their individual case.