Criminal Code of Canada - section 686(5.1) - Election if new trial a jury trial

section 686(5.1)

INTRODUCTION AND BRIEF DESCRIPTION

An accused person may elect to have a new trial heard before a judge without a jury or provincial court judge with consent from the prosecutor.

SECTION WORDING

686(5.1) Subject to subsection (5.2), if a new trial ordered by the court of appeal is to be held before a court composed of a judge and jury, (a) the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge; (b) the election shall be deemed to be a re-election within the meaning of subsection 561(5); and (c) subsection 561(5) applies, with such modifications as the circumstances require, to the election.

EXPLANATION

Section 686(5.1) of the Criminal Code of Canada pertains to the procedure that must be followed when a new trial is ordered by the court of appeal. Specifically, this section outlines the options available to the accused if the new trial is to be heard before a court composed of a judge and jury. According to subsection (5.1), the accused may choose to have the trial heard before a judge without a jury or a provincial court judge, provided that the prosecutor consents to this option. If the accused elects to proceed with this option, the election is deemed to be a re-election within the meaning of subsection 561(5) of the Criminal Code. Subsection 561(5) deals with the issue of jury selection. In essence, it allows a Crown attorney or a defence counsel to challenge prospective jurors during the selection process. The modifications referenced in subsection 686(5.1) would pertain to the fact that, in the case of a judge-alone trial, there would be no jury selection process. However, the provisions of this subsection would still apply in a modified form to ensure a fair trial. Overall, Section 686(5.1) provides the accused with the option to choose a judge-alone trial if they believe it will be advantageous to their case. However, this option is not guaranteed, as it requires the consent of the prosecutor. Ultimately, the goal of this section is to ensure that all trials are conducted fairly and in accordance with the principles of justice and due process.

COMMENTARY

Section 686 (5.1) of the Criminal Code of Canada allows for a retrial to be held if ordered by the court of appeal. In such cases, if the retrial is to be held before a court composed of a judge and jury, the accused is given the opportunity to elect to have the trial heard before a judge without a jury or a provincial court judge, provided the prosecutor consents to the same. This provision grants a valuable choice to the accused and the prosecutor and ensures that the trial is conducted in a manner that is best suited to the needs of the case. While a trial by jury ensures a fair trial, it can also be a highly time-consuming and expensive process. In certain cases, where a retrial has been ordered after an appeal, and after the evidence has already been fully presented in the initial trial, both parties may prefer a more streamlined process. A judge-alone trial can be less time-consuming and less expensive, and it can also reduce the risk of inconsistencies caused by a split jury verdict. Another important aspect of this provision is that it deems the choice made by the accused as a re-election within the meaning of subsection 561(5). This means that the accused is entitled to make an election regarding the mode of trial, just as they would have been entitled to prior to their initial trial. This provision ensures that the accused is not disadvantaged due to the retrial ordered by the court of appeal. Furthermore, subsection 561(5) applies to this provision with such modifications as the circumstances require. Subsection 561(5) is concerned with the election of mode of trial and its effect on the accused's statutory rights. It provides various conditions and possible consequences of the choice made by the accused. The application of this provision ensures that the accused's right to a fair trial is not compromised, irrespective of the mode of trial chosen. In regards to subsection 686(5.1) itself, the provision does not explicitly state how a judge-alone trial should be conducted. The usual practices and procedures for a judge-alone trial are likely to apply unless the circumstances of the case require any modifications of those practices. Nevertheless, it is always advisable to rely on legal counsel as to the appropriate direction that should be taken. Therefore, the provision is to be welcomed for promoting efficiency and reducing the costs of a retrial when it is warranted and consented to by the prosecutor. It ensures that the accused's right to a fair trial is protected, and it also provides the necessary modifications to ensure that the process is conducted fairly, whatever mode of the trial is chosen.

STRATEGY

Section 686(5.1) of the Criminal Code of Canada provides a significant strategic advantage to defendants in criminal cases who have had a new trial ordered by the court of appeal. This section allows the accused to elect to have their retrial heard before a judge without a jury, or a provincial court judge, rather than before a judge and jury. This means that the defendant can potentially avoid the unpredictability and risk associated with a jury trial. One strategic consideration for defendants is whether they are more likely to receive a fair trial from a judge or a jury. Jury trials are often viewed as more sympathetic to defendants, as they are made up of a group of ordinary citizens who are supposed to represent the community. However, juries can also be unpredictable, and their decisions can be swayed by emotional appeals rather than purely legal arguments. In contrast, judges are trained legal professionals who are expected to be impartial. However, some defendants may feel that judges are more likely to be biased against them, as they are seen as representative of the law and may be more likely to side with the prosecution. Another strategic consideration is the nature of the evidence against the defendant. If the evidence is particularly complex or technical, a judge may be more equipped to understand and evaluate it than a jury. However, if the evidence is emotionally charged or requires a sympathetic understanding of the defendant's circumstances, a jury may be more open to the defendant's arguments. One potential strategy for defendants is to try to negotiate with the prosecutor to agree to a judge-only trial. This may involve making concessions or offering to plead guilty to lesser charges in exchange for the agreement. It may also be beneficial for defendants to have a lawyer who is experienced in negotiating with prosecutors and can work to secure the best possible outcome. Another strategy for defendants is to carefully evaluate the potential jurors if they do elect to have a jury trial. This involves researching the backgrounds and biases of potential jurors and using this information to select jurors who may be sympathetic to the defendant's case. It may also involve using peremptory challenges to remove jurors who may be particularly biased or unsympathetic. Ultimately, the decision to elect for a judge-only trial or to take the risk of a jury trial should be carefully considered and based on the specific circumstances of the case. A competent and experienced criminal defense lawyer can provide invaluable guidance and support in making these strategic decisions and working to achieve the best possible outcome for the defendant.