INTRODUCTION AND BRIEF DESCRIPTION
An accused can change their mode of trial before or after the completion of the preliminary inquiry with consent of prosecutor.
SECTION WORDING
561(1) An accused who elects or is deemed to have elected a mode of trial other than trial by a provincial court judge may re-elect (a) at any time before or after the completion of the preliminary inquiry, with the written consent of the prosecutor, to be tried by a provincial court judge; (b) at any time before the completion of the preliminary inquiry or before the fifteenth day following the completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court judge; and (c) on or after the fifteenth day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor.
EXPLANATION
Section 561(1) of the Canadian Criminal Code sets out the rules for an accused person's right to elect or change the mode of trial. When someone is charged with a criminal offence, they have the right to choose how they will be tried. They can choose to be tried by a judge alone in a provincial court or in front of a judge and jury in a superior court. Under section 561(1), an accused person has the right to make an initial election at the outset of the trial. However, the accused person is also given the opportunity to alter their choice of trial mode at certain stages in the proceedings. Specifically, if they have elected to have their trial heard by a judge and jury, they have the right to re-elect trial by a provincial court judge before or after the completion of the preliminary inquiry, with the written consent of the prosecutor. Alternatively, an accused person has the right to make a further election at any time before the completion of the preliminary inquiry or before the fifteenth day following the completion of the preliminary inquiry, without the prosecutor's written consent. After the fifteenth day following the preliminary inquiry, the accused person still has the right to change their original election but must receive written permission from the prosecutor. Overall, Section 561(1) enshrines an accused person's right to choose how they want to be tried. It also grants flexibility within the legal process for an accused person to change their decision and allows them to seek the consent of the prosecutor where needed. This provision ensures that the accused person has a fair and just trial.
COMMENTARY
Section 561(1) of the Criminal Code of Canada outlines the process by which an accused individual may elect or re-elect their mode of trial. The section provides for various options that an accused individual may choose from based on their preferences and the circumstances of their case. The first option available to an accused individual is to elect or be deemed to have elected a mode of trial other than trial by a provincial court judge. This may include trial by judge alone or trial by judge and jury. If an accused individual elects this option, they may still have the opportunity to change their mode of trial under certain circumstances. The second option available to an accused individual is to re-elect to be tried by a provincial court judge with the written consent of the prosecutor. This option may be useful if an accused individual initially elected trial by judge alone or judge and jury but later decides that they would prefer to be tried by a provincial court judge instead. The third option available to an accused individual is to re-elect another mode of trial other than trial by a provincial court judge before the completion of the preliminary inquiry or before the fifteenth day following the completion of the preliminary inquiry as of right. This option provides more flexibility to an accused individual who may have changed their mind regarding their initial mode of trial election. The fourth and final option available to an accused individual is to re-elect any mode of trial with the written consent of the prosecutor on or after the fifteenth day following the completion of the preliminary inquiry. This option provides a further opportunity for an accused individual to change their mode of trial, albeit with the requirement for written consent from the prosecutor. Overall, section 561(1) of the Criminal Code of Canada provides important flexibility to an accused individual in terms of their choice of mode of trial. This flexibility allows an accused individual the ability to make an informed decision about how they wish to be tried and the opportunity to change their decision under certain circumstances. The provision also ensures that the interests of justice are served by requiring written consent from the prosecutor before certain changes to mode of trial can be made. It is essential to understand that an accused individual should not enter into an election of mode of trial without first seeking the advice of legal counsel. A skilled criminal defense lawyer can provide critical guidance and support throughout the criminal trial process, including assistance in making crucial decisions about mode of trial. In addition to legal representation, an accused individual may also choose to explore other resources such as victim services, community organizations, and mental health support to ensure that they receive the support they require in navigating the often stressful and complex criminal justice system.
STRATEGY
Section 561(1) of the Criminal Code of Canada provides the accused with the right to choose the mode of trial that they wish to undergo. This decision can have significant strategic implications for the accused and their legal team. The aspect of this section that allows an accused to re-elect the mode of trial also provides them with an opportunity to reconsider their initial decision. One of the first strategic considerations for an accused is to determine the potential advantages and disadvantages of each mode of trial available to them. The main options include trial by a provincial court judge, trial by a judge and jury, or a preliminary inquiry followed by trial by a judge and jury. Each mode of trial has its own features that could be more advantageous depending on the specific circumstances of the case. One important strategic consideration is to ensure that the chosen mode of trial aligns with the evidence and defenses that the accused has available. For example, if the case hinges on a technicality that may be best explained to a judge, it may be preferable to undergo trial by a provincial court judge rather than a judge and jury who may not have the same technical background. Alternatively, if the defense relies on swaying the emotions or prejudices of a jury, trial by judge alone may not be the optimal choice. Another strategic consideration is to assess the competency and experience of the presiding judge or jury. For instance, a legal team may choose to re-elect trial by a provincial court judge if the judge previously demonstrated a favorable demeanor toward similar types of cases. Likewise, a decision may be made to elect trial by a jury instead of a judge if the legal team believes the jury may be more likely to view the evidence in a particular way. Since the decision to re-elect must receive the written consent of the prosecutor, the legal team has the responsibility of evaluating the prosecutor's likely response to their request. If the prosecutor is given an opportunity to consent, they may be more likely to accept a mutually acceptable mode of trial and avoid a potential adverse outcome in court. It may be possible to improve the chances of getting written consent for re-election if the legal team can emphasize shared goals and concessions for both the accused and the prosecutor in the trial. Ultimately, the strategic considerations and possible strategies that can be employed when dealing with Section 561(1) of the Criminal Code of Canada depend on a case-by-case basis. Understanding the unique circumstances of each case is essential to making informed decisions that increase the chances of achieving the best possible outcome.