section 565(1.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section pertains to criminal proceedings in Nunavut and specifies that an accused ordered to stand trial for an offence that may be tried by a judge without a jury shall be deemed to have elected to be tried by a court composed of a judge and jury if certain conditions are met.

SECTION WORDING

565(1.1) With respect to criminal proceedings in Nunavut, if an accused is ordered to stand trial for an offence that, under this Part, may be tried by a judge without a jury, the accused shall, for the purposes of the provisions of this Part relating to election and re-election, be deemed to have elected to be tried by a court composed of a judge and jury if (a) the accused was ordered to stand trial by a judge who, under subsection 555.1(1), continued the proceedings as a preliminary inquiry; (b) the justice of the peace or judge, as the case may be, declined pursuant to subsection 567.1(1) to record the election or re-election of the accused; or (c) the accused did not elect when put to an election under section 536.1.

EXPLANATION

Section 565(1.1) of the Criminal Code of Canada is a provision that applies specifically to criminal proceedings in Nunavut. It deals with situations where an accused person is ordered to stand trial for an offence that can be tried by a judge without a jury - in other words, a summary offence. Normally, an accused person has the right to choose whether they want to be tried by a judge alone or by a judge and jury. However, in Nunavut, if an accused person is ordered to stand trial for a summary offence and they do not make an election, they will be deemed to have elected to be tried by a judge and jury if certain conditions are met. First, the accused must have been ordered to stand trial by a judge who continued the proceedings as a preliminary inquiry. Second, if the justice of the peace or judge declined to record the election or re-election of the accused, they will be deemed to have elected for the judge and jury. Finally, if the accused did not make an election when they were put to an election under section 536.1, they will be deemed to have elected for the judge and jury. This provision is intended to ensure that an accused person in Nunavut who is facing a summary offence will have the benefit of a jury trial if they do not make an election. However, it is important to note that this provision only applies in Nunavut and not in other parts of Canada.

COMMENTARY

Section 565(1.1) of the Criminal Code of Canada pertains to criminal proceedings in Nunavut and the default election to be tried by a court composed of a judge and jury. This section applies when an accused is ordered to stand trial for an offence that, under this Part, may be tried by a judge without a jury. The first condition of Section 565(1.1) is that if the accused was ordered to stand trial by a judge who continued the proceedings as a preliminary inquiry under subsection 555.1(1), they are deemed to have elected to be tried by a court composed of a judge and jury. This means that if the judge decides that the case should proceed as a preliminary inquiry, and the accused is later ordered to stand trial, they will face a judge and jury, not just a judge. The second condition of Section 565(1.1) pertains to cases where the justice of the peace or judge declines to record the election or re-election of the accused under subsection 567.1(1). In such cases, the accused is deemed to have elected to be tried by a court composed of a judge and jury. This means that if the justice of the peace or judge does not record the election or re-election of the accused, they will be tried by a judge and jury by default. The third condition of Section 565(1.1) applies when the accused did not elect when put to an election under section 536.1. In such cases, the accused is deemed to have elected to be tried by a court composed of a judge and jury. This means that if the accused fails to elect when given the opportunity, they will be tried by a judge and jury by default. The purpose of Section 565(1.1) is to ensure that an accused's right to elect to be tried by a judge alone or a judge and jury is upheld. It is important to note that the default election to be tried by a court composed of a judge and jury only applies in the specific circumstances outlined in this section. It does not negate an accused's right to make an election or re-election under section 536.1 or to have such elections recorded under subsection 567.1(1). In conclusion, Section 565(1.1) of the Criminal Code of Canada provides for a default election to be tried by a court composed of a judge and jury in certain circumstances in Nunavut. It is essential to preserving an accused's right to elect to be tried by a judge alone or a judge and jury.

STRATEGY

Section 565(1.1) of the Criminal Code of Canada raises several strategic considerations for both the accused and the crown in criminal proceedings in Nunavut. One important consideration for the accused is whether to elect to be tried by a judge and jury or to waive their right to a jury trial and opt for a judge-alone trial. This decision may depend on several factors, including the strength of the evidence against them, their perception of the fairness and impartiality of the judge and potential jurors, and the potential impact of a guilty verdict on their future prospects. If the accused is ordered to stand trial for an offence that may be tried by a judge without a jury, they are deemed to have elected for a judge and jury trial if they do not explicitly waive this right. However, if they do not want a jury trial, they may be able to argue that they have not waived their right to a judge-alone trial and request that the case be heard by a judge alone. Another consideration for the accused is whether to elect to be tried by a judge and jury or to waive their right to a jury trial and plead guilty. In some cases, a guilty plea may result in a more lenient sentence than a conviction at trial, particularly if the crown's case is strong and the accused faces a significant risk of a conviction. For the crown, a strategic consideration may be whether to pursue a judge and jury trial or a judge-alone trial. If the evidence against the accused is strong and the crown believes that a conviction is likely, they may prefer a judge-alone trial as it can often be quicker, less costly and more predictable than a jury trial. However, if the charges are particularly serious or the case involves complex legal or factual issues, the crown may opt for a judge and jury trial to ensure that the decision-making process is more robust. Another consideration for the crown is whether to oppose an accused's request for a judge-alone trial in cases where the accused has not explicitly waived their right to a jury trial. If the accused is successful in arguing that they have not waived this right, the crown may be forced to proceed with a jury trial, which can increase the uncertainty and unpredictability of the outcome. Overall, Section 565(1.1) of the Criminal Code of Canada requires careful consideration by both the accused and the crown in criminal proceedings in Nunavut. The decision whether to elect for a judge and jury trial or to waive this right in favour of a judge-alone trial or guilty plea can have significant consequences for the outcome of the case.