INTRODUCTION AND BRIEF DESCRIPTION
Accused in Nunavut can opt for judge-only trial if Supreme Court orders new trial.
SECTION WORDING
695(3) If a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury in Nunavut, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election is deemed to be a re-election within the meaning of subsection 561.1(6) and subsections 561.1(6) to (9) apply to it with any modifications that the circumstances require.
EXPLANATION
Section 695(3) of the Criminal Code of Canada outlines the provision for a new trial ordered by the Supreme Court of Canada to be held in Nunavut. In such cases, the accused may, with the consent of the prosecutor, choose to have the trial heard before a judge without a jury. This provision is important because it recognizes the unique circumstances of Nunavut, a Canadian territory with a predominantly Inuit population and its own legal system. The choice to have a trial heard before a judge only, without a jury, is significant, as this allows for a more culturally sensitive trial process. In some Inuit communities, the concept of a jury trial may be unfamiliar or even taboo. Furthermore, juries in Nunavut are often composed of people from outside the community, which can lead to cultural misunderstandings and mistrust. Allowing the accused to choose a judge-only trial ensures that the trial is more familiar and culturally appropriate for both the accused and the community. It is important to note that the election to have a judge-only trial is deemed a re-election and therefore follows the rules outlined in subsections 561.1(6) to (9) of the Criminal Code of Canada. This ensures that the election process is fair and consistent with other election procedures in the Criminal Code. Overall, section 695(3) recognizes and respects the unique cultural context of Nunavut and ensures that the trial process is appropriate and fair. It is an example of how the Canadian legal system can be adapted to better serve diverse communities.
COMMENTARY
Section 695(3) of the Criminal Code of Canada provides an interesting provision for cases where a new trial is ordered by the Supreme Court of Canada and the trial is to be held before a court composed of a judge and jury in Nunavut. In such cases, the accused is given the option, with the consent of the prosecutor, to elect to have the trial heard before a judge without a jury. This provision raises some important questions about the right to a fair trial and the role that jurors play in the criminal justice system. The right to a fair trial is a fundamental principle of Canadian law, enshrined in the Canadian Charter of Rights and Freedoms. This principle includes the right to an impartial and independent tribunal, which includes a jury in criminal trials. The role of the jury is to hear the evidence and make a decision on guilt or innocence based on that evidence, and to be free from outside influences or bias. The question that arises here is whether the right to a fair trial is compromised by allowing the accused to elect to have the trial heard by a judge without a jury. One argument in favour of allowing the accused to make this election is that it provides them with greater control over the trial process. In some cases, an accused may feel that a judge would be more impartial or less susceptible to bias than a jury, particularly in cases where the issues are complex or controversial. Additionally, having a judge without a jury can sometimes make the trial process more efficient, as there are fewer people involved in the decision-making process and less time needed for deliberations. On the other hand, there are concerns that allowing the accused to elect to have the trial heard by a judge without a jury undermines the role of the jury in the criminal justice system. The role of the jury is to provide a check on the power of the state, and to ensure that the accused is given a fair and impartial trial. The use of juries is a key aspect of the Canadian criminal justice system, and it is important that they continue to play a meaningful role in the trial process. Another concern is that allowing the accused to elect to have the trial heard by a judge without a jury could lead to inconsistent results, particularly in cases where the accused has a choice between the two options. If two different accused persons are charged with the same offence, and one elects to have a trial with a jury while the other elects to have a trial with a judge without a jury, the outcomes of those trials could be different, even if the evidence presented is the same. Overall, the provision in section 695(3) raises some important questions about the role of juries in the criminal justice system and the right to a fair trial. While there are arguments in favour of allowing the accused to elect to have the trial heard by a judge without a jury, it is important to ensure that the use of juries continues to play a meaningful role in the trial process, and that the accused's right to a fair trial is not compromised. Ultimately, the decision of whether to elect to have a trial with or without a jury will depend on the specific circumstances of each case, and it is important that prosecutorial and defence counsel carefully consider the pros and cons of each option before making a decision.
STRATEGY
One of the key strategic considerations when dealing with Section 695(3) of the Criminal Code of Canada is whether to elect for a trial before a judge without a jury. This decision will largely depend on a range of factors, including the specific circumstances of the case, the strength of the evidence, and the potential biases or prejudices of a jury. One strategy that could be employed is to carefully assess the potential benefits and drawbacks of opting for a trial before a judge without a jury. On the one hand, this approach may be advantageous if there are concerns about potential biases or prejudices among jurors, or if the evidence is complex and may be better understood by a legal expert. Additionally, a judge may be more likely to follow legal precedent and apply the law more strictly than a jury, which could be helpful in cases where the defence is based on specific legal arguments or technicalities. On the other hand, there may be strategic reasons to opt for a trial by jury. A jury trial may be more favourable if the defendant's case rests on emotional or sympathetic arguments, or if there are concerns about the judge being overly strict or inflexible. Additionally, a jury trial may be seen as more fair or transparent, especially in cases where the public may feel strongly about the outcome. Another important strategic consideration is the timing of the election. The accused must elect to have the trial heard before a judge without a jury with the consent of the prosecutor. This means that the defence team may need to carefully negotiate with the prosecution over this decision, and timing could be a critical factor. For example, it may be advantageous to wait until a later stage in the trial, once evidence has been presented, to make this election. Alternatively, the defence may want to make the decision early on in order to focus on presenting their case to a judge rather than a jury. Overall, the decision to elect for a trial before a judge without a jury will depend on a range of strategic factors that must be carefully considered by the defence team. It is important to assess the specific circumstances of the case, the strength of the evidence, and the potential biases or prejudices of a jury. Additionally, careful negotiation with the prosecution over the timing and nature of the election may be necessary to achieve the best possible outcome for the accused.