section 562.1(2)

INTRODUCTION AND BRIEF DESCRIPTION

If the accused chooses to be tried by a judge or judge and jury and requests a preliminary inquiry, it must be conducted by a justice of the peace or judge upon election under section 561.1 before the completion of the preliminary inquiry.

SECTION WORDING

562.1(2) If the accused re-elects under section 561.1 before the completion of the preliminary inquiry to be tried by a judge without a jury or by a court composed of a judge and jury, and requests a preliminary inquiry under subsection 536.1(3), the justice of the peace or judge shall proceed with the preliminary inquiry.

EXPLANATION

Section 562.1(2) of the Criminal Code of Canada deals with the process of an accused who wishes to avoid a trial by jury. The section outlines that if an accused person chooses to be tried by either a judge alone or a court that comprises both a judge and a jury, they must inform the court of their decision as early as possible, preferably before the preliminary inquiry has concluded. However, if an accused person changes their mind about the type of trial they would prefer after the preliminary inquiry has begun, they may still request a preliminary inquiry under subsection 536.1(3) of the Criminal Code. This subsection allows the accused, with the agreement of the prosecutor, to request a preliminary inquiry to determine whether there is enough evidence to proceed to trial. Section 562.1(2) states that if the accused person decides to take advantage of this provision and requests a preliminary inquiry under subsection 536.1(3), the justice of the peace or judge conducting the inquiry must proceed with it. The purpose of this requirement is to ensure that the accused person has a fair and impartial hearing before deciding whether to proceed with a trial by judge alone or a trial by judge and jury. In short, section 562.1(2) of the Criminal Code of Canada ensures that an accused person who wishes to avoid a jury trial can still have a preliminary inquiry, even if they initially indicated a preference for a non-jury trial. The section reflects the principle of procedural fairness and ensures that accused persons have the right to make informed decisions about their trial.

COMMENTARY

Section 562.1(2) of the Criminal Code of Canada governs the process of an accused person choosing to re-elect to be tried by a judge without a jury or by a court composed of a judge and jury. This decision can be made before the completion of the preliminary inquiry. If the accused wishes to have a preliminary inquiry under subsection 536.1(3), the justice of the peace or judge shall proceed with it. The purpose of this section is to ensure that an accused person is given the opportunity to choose the manner in which they will be tried, while also ensuring that the preliminary inquiry process is adhered to. The right to a fair trial is a fundamental principle of our justice system, and this section of the Criminal Code helps to uphold this principle. The decision to be tried by a judge without a jury or by a court composed of a judge and jury can have significant implications for the accused person. For example, if the accused elects to be tried by a judge without a jury, they will be subject to a trial conducted by a single judge who will be responsible for determining the guilt or innocence of the accused. This may be advantageous in cases where the evidence is complex, and a judge may be better equipped to interpret the evidence than a jury. On the other hand, if the accused elects to be tried by a court composed of a judge and jury, they will be subject to a trial conducted by a judge and a group of their peers. This may be advantageous in cases where the evidence is straightforward, and a group of ordinary citizens may be more likely to understand and come to a fair decision on the matter. It is important to note that the decision to re-elect to be tried by a judge without a jury or by a court composed of a judge and jury must be made before the completion of the preliminary inquiry. This is because the preliminary inquiry process is designed to provide the accused person with an opportunity to determine whether the case against them is strong enough to proceed to trial. If the accused person determines that the case is weak, they may choose to plead guilty or negotiate a plea bargain with the Crown before the trial begins. Overall, Section 562.1(2) of the Criminal Code of Canada is an important provision that helps to ensure that accused persons are given the opportunity to choose the manner in which they will be tried, while also upholding the fairness of the legal process. It is important that this provision is interpreted and applied fairly to ensure that the rights of accused persons are protected, while also ensuring public safety and upholding the rule of law.

STRATEGY

Section 562.1(2) of the Criminal Code of Canada allows an accused person to elect to be tried by a judge without a jury or by a court composed of a judge and jury. However, if the accused person wishes to have a preliminary inquiry, they must request it before the completion of the preliminary inquiry. This section raises several strategic considerations, both for the accused person and for the prosecutor. For the accused person, one key consideration is whether they want to have a preliminary inquiry. A preliminary inquiry is a hearing before a judge to determine whether there is enough evidence to proceed to trial. It can be valuable for the accused person to hear the evidence and see the witnesses testify, as it can help them prepare for trial. However, it also gives the prosecutor a chance to test their evidence and potentially strengthen their case. Another consideration for the accused person is whether they would prefer to be tried by a judge without a jury or by a court composed of a judge and jury. If the accused person expects to have a strong legal argument, they may prefer to be tried by a judge alone, as judges are often seen as more open-minded and less swayed by emotion than juries. On the other hand, if the accused person believes that their case will be more persuasive to a layperson, they may prefer to be tried by a jury, as juries are made up of members of the public who are expected to apply the common sense and community values. For the prosecutor, one key consideration is how strong their case is. If the prosecutor has a strong case with clear evidence, they may be inclined to encourage the accused person to waive their right to a preliminary inquiry, as it would give them less opportunity to challenge the evidence. Conversely, if the prosecutor is uncertain about their evidence or expects the defence to have strong counter-arguments, they may prefer to proceed with a preliminary inquiry to test their evidence and potentially strengthen their case. Strategies that could be employed by the accused person include retaining an experienced criminal defence lawyer who can advise them on the best course of action, and who can cross-examine witnesses effectively during the preliminary inquiry. The accused person could also try to negotiate with the prosecutor to avoid a preliminary inquiry, if they believe it would be detrimental to their case. Another strategy would be to tailor their decision on whether to be tried by judge alone or judge and jury based on the strength of their case and the potential biases of the trier of fact. For the prosecutor, strategies may include presenting a strong case during the preliminary inquiry to dissuade the accused person from proceeding to trial, or offering a plea deal to avoid a trial altogether. The prosecutor may also consider a number of factors when deciding whether to proceed by judge alone or judge and jury, including the complexity of the case, the strength of the evidence, and the potential biases or prejudices of the trier of fact. In conclusion, Section 562.1(2) of the Criminal Code of Canada can have significant strategic implications for both the accused person and the prosecutor. While there are many factors to consider when deciding whether to request a preliminary inquiry or be tried by judge alone or judge and jury, a carefully considered strategy can reduce the risk of unwanted outcomes and improve the chances of success.