INTRODUCTION AND BRIEF DESCRIPTION
Jury discharged counts may be proceeded with as if they were in a separate indictment.
SECTION WORDING
591(5) The counts in respect of which a jury is discharged pursuant to paragraph (4)(a) may subsequently be proceeded on in all respects as if they were contained in a separate indictment.
EXPLANATION
Section 591(5) of the Criminal Code of Canada deals with the discharge of a jury in a criminal trial. If, during the course of a trial, the judge determines that the jury is unable to reach a verdict on all counts, they may choose to discharge the jury from giving any verdict. In such situations, the judge has the discretion to order a new trial with a new jury, providing the Crown with an opportunity to pursue the prosecution again. Section 591(5) allows for the counts that were not included in the original indictment to be treated as a separate indictment in the event that the jury is discharged. This means that the Crown can proceed with a new trial on the same charges without the need for a fresh indictment. The prosecution can essentially treat the charges that were not concluded in the previous trial as if they were part of a separate and distinct criminal matter. The purpose of section 591(5) is to ensure that the criminal justice system operates efficiently and effectively. It eliminates the need for additional procedural steps that may be required to initiate a new trial. This provision also provides clarity to both the Crown and the accused, ensuring that the legal process is both straightforward and consistent. Overall, section 591(5) is an important component of the Criminal Code of Canada, designed to promote fairness, efficiency, and consistency in the criminal justice system.
COMMENTARY
Section 591(5) of the Criminal Code of Canada provides clarity on what happens when a jury is discharged pursuant to paragraph (4)(a) of the same section. When a jury is discharged pursuant to this paragraph, it means that the jury could not agree on a verdict after a reasonable period of time. This normally happens when a criminal trial results in a hung jury, which is a term used to describe a situation where the jury cannot come to a unanimous decision. According to the section, the counts in respect of which a jury is discharged pursuant to paragraph (4)(a) may subsequently be proceeded on in all respects as if they were contained in a separate indictment. What this means is that once the jury is discharged, the trial judge may remand the accused back into custody or release him or her on bail. The Crown may then decide to bring the discharged counts again before another jury on a separate indictment. This provision is crucial in ensuring that justice is done, even when the first trial results in a hung jury. The fact that the counts can be proceeded on as if they were contained in a separate indictment means that the accused will not be subjected to double jeopardy. Double jeopardy is a concept that prohibits an accused person from being tried twice for the same offence. This principle is enshrined in the Canadian Charter of Rights and Freedoms, which is the constitutional document that guarantees the fundamental rights and freedoms of Canadians. It is worth noting that the decision to proceed with a new trial on separate charges after a hung jury is at the discretion of the Crown. The Crown will take into consideration a number of factors, including the cost and time involved in conducting another trial, as well as the potential for obtaining a conviction. If the case is such that a conviction is unlikely, the Crown may choose to drop the charges altogether. The provision in section 591(5) also ensures that the accused person's right to a fair trial is protected. A fair trial means that the accused is entitled to have the charges brought against him or her be heard and decided by an impartial and independent tribunal. In the case of a hung jury, the fairness of the trial is not necessarily compromised, but the outcome shows that there was not a unanimous agreement about the verdict. By proceeding with a new trial on a separate indictment, the accused person is given another opportunity to have the charges heard and decided by a new jury, which would increase the chances of a unanimous verdict being reached. In conclusion, section 591(5) of the Criminal Code of Canada provides for what happens when a jury is discharged pursuant to paragraph (4)(a). The provision ensures that the accused person's right to a fair trial is protected, while also allowing for justice to be done by providing for a new trial on separate charges.
STRATEGY
Section 591(5) of the Criminal Code of Canada allows prosecutors to proceed with charges against an accused person even if a jury has been discharged, as if the charges were contained in a separate indictment. This provision has important strategic implications for both the prosecution and defense in criminal trials. For the prosecution, the ability to proceed with charges in a separate trial allows them to tailor their approach to the evidence presented. If the jury in the first trial was unable to reach a verdict, the prosecution may choose to present their case differently in subsequent trials to improve their chances of conviction. They may choose to emphasize different pieces of evidence, call different witnesses, or try different legal arguments. However, the prosecution must be careful when using this provision to ensure that they do not engage in tactical splitting" of charges. This occurs when the prosecutor deliberately proceeds with separate trials in order to increase the chances of securing a conviction on at least one of the charges. Splitting charges in this manner may be seen as an abuse of process and can be challenged by the accused. For the defense, the strategic considerations around section 591(5) largely revolve around timing. If they believe that a jury is unlikely to reach a verdict, the defense may choose to consent to a discharge, knowing that the charges can be re-prosecuted later. This allows them to avoid the negative publicity and expense of a mistrial, while also providing an opportunity to re-evaluate their strategy for the upcoming trial(s). On the other hand, the defense may also choose to use the possibility of re-prosecution to their advantage by dragging out the trial process as much as possible. By presenting a strong defense in the first trial, they may be able to exhaust the prosecution's resources and delay any subsequent trials. This can be particularly effective in complex cases where multiple trials are likely. Overall, section 591(5) of the Criminal Code of Canada provides both the prosecution and defense with important strategic considerations when dealing with criminal trials. The ability to proceed with charges in a separate trial can be advantageous for prosecutors, but they must be careful not to engage in tactical splitting". For the defense, the strategic implications of this provision revolve largely around timing and the possibility of using delays to their advantage.