Criminal Code of Canada - section 536.1(3) - Request for preliminary inquiry Nunavut

section 536.1(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the requirement for a preliminary inquiry when an accused elects to be tried by a judge and jury or is charged with an offence listed in section 469.

SECTION WORDING

536.1(3) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice or judge shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the judge or justice, hold a preliminary inquiry into the charge.

EXPLANATION

Section 536.1(3) of the Canadian Criminal Code defines the circumstances under which a preliminary inquiry into a criminal charge must be held. A preliminary inquiry is a hearing before a judge that determines whether there is enough evidence for a trial to proceed. This section states that if an accused is electing to be tried by a judge without a jury or by a court composed of a judge and jury, or if they do not elect within the time limit, or if they are deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury, or if they are charged with a serious offence listed in section 469, the justice or judge must hold a preliminary inquiry on request of the accused or the prosecutor. It is important to note that the purpose of a preliminary inquiry is not to find the accused guilty or innocent, but rather to determine if there is enough evidence for a trial to proceed. This can save time and resources by avoiding unnecessary trials that may result in an acquittal due to insufficient evidence. Section 536.1(3) also mentions that the request for a preliminary inquiry must be made within a certain period of time, as specified by court rules. If there are no such rules, the judge or justice may fix the time limit. This ensures that the inquiry does not unduly delay the legal process. Overall, section 536.1(3) of the Criminal Code of Canada outlines the circumstances under which a preliminary inquiry must be held and aims to ensure that the legal process is fair, efficient, and effective.

COMMENTARY

Section 536.1(3) of the Criminal Code of Canada deals with the right of an accused to elect the mode of trial. Under this provision, an accused can choose to be tried either by a judge alone or by a judge and jury, or can opt not to elect when given the option. However, if the accused is facing serious charges, such as those listed in section 469 of the Criminal Code, then a preliminary inquiry must be held to determine whether there is enough evidence to proceed to trial. The concept of the right to elect the mode of trial is a core principle in Canadian criminal law. It is designed to ensure that accused persons receive a fair and impartial trial, and that they have some say in the process. The right to trial by jury is enshrined in section 11(f) of the Canadian Charter of Rights and Freedoms, and is seen as an important safeguard against arbitrary state power. However, the right to elect the mode of trial is not absolute. Section 536.1(3) provides that if an accused is charged with certain types of offences, a preliminary inquiry must be held regardless of whether the accused elects a mode of trial. The purpose of the preliminary inquiry is to determine whether there is enough evidence to justify a trial. Preliminary inquiries have been the subject of debate in recent years. Critics argue that they are time-consuming and expensive, and that they result in undue stress for victims and witnesses who have to testify twice. Some have called for their abolition or at least significant reform. Despite these criticisms, preliminary inquiries remain an important part of the Canadian criminal justice system. They serve as a check on the power of the state, ensuring that cases are only brought to trial when there is sufficient evidence to support them. They also provide a forum for the defence to review the Crown's evidence and prepare their case, which can be crucial to ensuring a fair trial. Overall, section 536.1(3) of the Criminal Code strikes a balance between the rights of the accused and the need to ensure that justice is served. While the right to elect the mode of trial is an important safeguard, it cannot be allowed to undermine the integrity of the criminal justice system. As such, preliminary inquiries are necessary in certain cases to ensure that only the most serious cases proceed to trial.

STRATEGY

Section 536.1(3) of the Criminal Code of Canada is a crucial section that governs the mandatory preliminary inquiry process in criminal proceedings. The section provides for the holding of a preliminary inquiry whenever an accused elects to be tried by a court composed of a judge and jury, or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offense listed in section 469. The section also provides for the request of a preliminary inquiry by the accused or the prosecutor, subject to section 577. One of the strategic considerations when dealing with this section of the Criminal Code of Canada is the importance of obtaining a preliminary inquiry. A preliminary inquiry is a vital stage in the criminal justice system, as it allows the accused to test the strength of the prosecution's case and to determine whether there is enough evidence to proceed to trial. As such, the decision to request a preliminary inquiry should be made with careful consideration. One strategy that could be employed when dealing with section 536.1(3) is to carefully assess the strength of the prosecution's case before making a decision on whether to request a preliminary inquiry. This assessment should involve a review of the evidence against the accused, as well as an evaluation of the potential defenses that may be raised at trial. If there is a strong likelihood that a preliminary inquiry will not provide any significant advantage to the accused, then it may be more strategic to waive the right to a preliminary inquiry and proceed directly to trial. Another strategy that could be employed when dealing with section 536.1(3) is to use the preliminary inquiry process as an opportunity to gain additional information and evidence that may be helpful in preparing for trial. This may involve challenging the prosecution's evidence and cross-examining witnesses in an effort to uncover weaknesses in the case. Additionally, the accused may use the preliminary inquiry process to obtain additional disclosure from the prosecution and to prepare a stronger defense in preparation for trial. Finally, when dealing with section 536.1(3), it is important to be aware of the potential risks associated with a preliminary inquiry. For example, if the accused is successful in challenging the prosecution's evidence, this may lead to the case being dismissed or charges reduced. However, if the preliminary inquiry is unsuccessful, the prosecution's case may become stronger, making it more difficult to mount a successful defense at trial. In conclusion, section 536.1(3) of the Criminal Code of Canada is a critical section that governs the mandatory preliminary inquiry process in criminal proceedings. When dealing with this section, it is essential to carefully assess the strength of the prosecution's case, use the preliminary inquiry process strategically to gather additional evidence and information, and be aware of the potential risks associated with the process. By employing strategic considerations and strategies, an accused can make an informed decision on whether to request a preliminary inquiry and proceed to trial.