section 645(5)

INTRODUCTION AND BRIEF DESCRIPTION

The judge in a jury trial can deal with matters that would typically be dealt with in the absence of the jury before the jurors are called.

SECTION WORDING

645(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

EXPLANATION

Section 645(5) of the Criminal Code of Canada grants the judge presiding over a trial with particular powers in relation to a jury. Specifically, before any jurors are called to the panel, and in the absence of any juror who may have been called pursuant to subsections 631(3) or (3.1), the judge has the authority to deal with all matters that would typically be addressed after the jury has been sworn in. This provision gives the judge considerable power to manage the trial and ensure that it runs smoothly. The purpose of this provision is to grant the trial judge greater authority to manage the proceedings and guarantee fairness in trials. A judge may use this power to deal with matters that might disrupt the proceedings, such as any issues that could potentially prejudice the accused or influence the outcome of the case. This gives judges the ability to act swiftly and without prejudice to protect the interests of both the defendant and the prosecution. For example, if the judge is made aware that a juror may be biased against the accused, the judge can withdraw that juror and replace them with an alternate juror at the start of the trial. The judge can also use this provision to provide guidance to counsel on permissible lines of questioning or to rule on legal issues that may arise during the trial. Overall, Section 645(5) ensures that judges have the power to effectively manage jury trials to ensure a fair and just outcome for all parties involved. This allows judges to preemptively address issues as they arise, mitigating the risk of mistrial and guaranteeing the proper administration of justice.

COMMENTARY

Section 645(5) of the Canadian Criminal Code outlines the jurisdiction of a judge to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury, before any juror is called to serve. This provision is important as it grants judges the power to manage the trial proceedings effectively, ensuring that all legal issues are addressed before the trial begins in earnest. The right to a fair trial is paramount in the Canadian justice system, and section 11(d) of the Canadian Charter of Rights and Freedoms grants the right to a trial by an impartial jury. However, it is the responsibility of the judge to ensure that this right is upheld, and this often involves dealing with preliminary legal matters before the jury is sworn in. In accordance with section 631(3) and (3.1) of the Criminal Code, a panel of prospective jurors is selected to serve on a case-by-case basis. Before any juror is selected, the judge has the power to make orders and rulings that are necessary to ensure that the trial proceeds fairly and effectively. This may include determining the admissibility of evidence, excluding witnesses from the courtroom, and setting time limits for the presentation of evidence. The judge may also hear arguments from both the Crown and the defence regarding any potential legal issues that may arise during the trial, such as the admissibility of certain evidence or the interpretation of specific legal principles. The judge may also resolve any procedural issues that may arise, such as requests to adjourn the proceedings or to allow additional evidence to be presented. Section 645(5) of the Criminal Code affords judges a significant degree of discretion in managing the trial proceedings. This is necessary as each criminal case is unique in its own right, and the judge must be able to address any legal issues that arise on a case-by-case basis. However, this power must be exercised judiciously, with due regard for the rights of the accused and the need to maintain a fair and impartial trial. In conclusion, section 645(5) of the Criminal Code of Canada provides judges with the authority to deal with matters that would ordinarily or necessarily arise after the jury has been sworn in. This power is necessary to manage trial proceedings effectively, ensure that all legal issues are addressed, and maintain a fair and impartial trial. As such, it is an important provision that plays a key role in upholding the principles of justice in Canadian criminal trials.

STRATEGY

Section 645(5) of the Canadian Criminal Code grants the presiding judge in a jury trial certain powers to deal with matters that are typically handled outside the presence of the jury. Strategic considerations when dealing with this section of the code can relate to the timing and specific content of the judge's order, as well as the potential impact on the trial outcome. One strategy for employing section 645(5) is to use it early in the trial to dismiss a charge or exclude evidence, particularly if the judge has a strong opinion on the merits of the prosecution's case. In this way, the judge can avoid wasting the time and resources of the parties and jury in an ultimately futile prosecution. Alternatively, a judge could use their powers under this section to exclude certain witnesses or evidence if it might be prejudicial to the accused. This approach could also be employed later in the trial if new evidence is uncovered that would not have been admissible at an earlier stage. Another strategic consideration when dealing with Section 645(5) is the potential impact of the judge's order on the jury. If a judge exercises their powers in the presence of the jury, they may need to carefully explain their reasoning and the legal principles involved to the jurors. This explanation could be a powerful tool to influence the jury's perception of the case as a whole, especially if the judge's exercise of power links directly to matters the jury will need to consider. For example, if an issue of law arises during the trial that directly affects the elements of the offence that the jury must decide, the judge's exercise of their power under Section 645(5) could be helpful in clarifying the legal issues in a way that is accessible to a layperson juror. Additionally, the timing of the order could be an important consideration when employing this section of the Criminal Code. If the judge chooses to exercise their power under Section 645(5) early in the trial, it could set a precedent and establish the judge as being sympathetic to the accused. This could colour the jury's perception of the subsequent evidence or arguments presented by the prosecution. On the other hand, if the judge waits until later in the trial, they may have a better understanding of the strengths and weaknesses of the prosecution's case, and can make a decision that truly affects the outcome of the trial. Ultimately, whether and when to employ section 645(5) will depend on the particular circumstances of each case, and the strategic goals of the parties involved. By carefully considering the judge's powers and the potential impact of their exercise on the proceedings and the ultimate outcome, the prosecution or defence may be able to achieve their desired goals, or at least limit the damage of an adverse ruling.