INTRODUCTION AND BRIEF DESCRIPTION
If no request for a preliminary inquiry is made, the accused must either plead before a judge or elect to be tried by a judge with or without a jury.
SECTION WORDING
536.1(4.2) If no request for a preliminary inquiry is made under subsection (3), (a) if the accused is before a justice of the peace, the justice of the peace shall remand the accused to appear and plead to the charge before a judge; or (b) if the accused is before a judge, the judge shall (i) if the accused elects to be tried by a judge without a jury, call on the accused to plead to the charge and if the accused does not plead guilty, proceed with the trial or fix a time for the trial, or (ii) if the accused elects or is deemed to have elected to be tried by a court composed of a judge and jury, fix a time for the trial.
EXPLANATION
Section 536.1(4.2) of the Criminal Code of Canada outlines the next steps after an accused person has been formally charged with an offence and a request for a preliminary inquiry has not been made. A preliminary inquiry is a hearing where a judge determines if there is enough evidence for the case to proceed to trial. If no request for a preliminary inquiry is made, the accused has two options for how they wish to be tried. If the accused is before a justice of the peace, they will be remanded to appear before a judge to plead to the charge. This means they will have to officially answer to the charge against them, either by pleading guilty or not guilty. If the accused elects to be tried by a judge alone, they will enter a plea and the trial will either proceed immediately or a time will be set for the trial. If the accused elects or is deemed to have elected to be tried by a court composed of a judge and jury, the judge will fix a time for the trial to take place. This section of the Criminal Code of Canada ensures that the justice system keeps moving forward and that a trial date is set in a timely manner. It also gives the accused the opportunity to choose how they would like to be tried, depending on their personal circumstances and legal strategy. It is important to note, however, that once the accused enters a plea, they cannot change their decision and must proceed with the chosen trial option.
COMMENTARY
Section 536.1(4.2) of the Criminal Code of Canada outlines the procedure to be followed when an accused person does not request a preliminary inquiry. A preliminary inquiry is a hearing where the prosecution must present evidence to determine if there is enough evidence to support the charges laid against the accused. If the accused chooses not to request a preliminary inquiry, they can be remanded to appear before a judge or plead guilty before a justice of the peace. If the accused is before a justice of the peace and no request for a preliminary inquiry is made, the justice must remand the accused to appear before a judge to plead to the charges. This is done to ensure that the accused has the chance to be tried in front of a higher court, where the charges can be more thoroughly examined. The justice of the peace cannot enter a verdict and must defer judgment to the judge. If the accused is before a judge, there are two possible outcomes. Firstly, the accused may elect to be tried by a judge without a jury. If this is the case, the judge will call on the accused to plead to the charge, and if they do not plead guilty, the judge will proceed with the trial or fix a time for the trial. Secondly, the accused may elect or be deemed to have elected to be tried by a court composed of a judge and jury. In this case, the judge will fix a time for the trial. Section 536.1(4.2) is an important section of the Criminal Code of Canada, as it outlines the process to be followed when an accused person chooses not to request a preliminary inquiry. This section helps to ensure that the accused is tried in front of a higher court and that the trial process is fair and just. However, some critics argue that the elimination of the preliminary inquiry can lead to some negative consequences. One of the main concerns is that without a preliminary inquiry, the defence may not have the opportunity to fully examine the evidence against the accused. This could result in cases where innocent people are wrongly convicted due to a lack of proper examination of the evidence. Another concern is that eliminating the preliminary inquiry could lead to longer trials and delays in the justice system. This is because without a preliminary inquiry, the evidence must be presented at the trial, which can take longer to complete. This could lead to cases being delayed, which can be frustrating and stressful for both the accused and the victims of the crime. In conclusion, section 536.1(4.2) of the Criminal Code of Canada outlines the procedure to be followed when an accused person does not request a preliminary inquiry. Although this section helps to ensure a fair and just trial process, there are concerns that the elimination of the preliminary inquiry could lead to negative consequences. It is important for the justice system to balance these concerns and ensure that the trial process is fair and efficient.
STRATEGY
Section 536.1(4.2) of the Criminal Code of Canada outlines what should happen when an accused person does not request a preliminary inquiry. The section sets out two scenarios: if the accused is before a justice of the peace, they are remanded to appear before a judge to plead to the charge. If the accused is before a judge, the judge must either proceed with the trial if the accused elects to be tried without a jury or fix a time for the trial if the accused elects to be tried by a court composed of a judge and jury. Given these parameters, there are numerous strategic considerations that a defence lawyer must weigh when dealing with this section of the Code. One key consideration is the decision to request a preliminary inquiry in the first place. A preliminary inquiry can be a useful tool for the defence to test the prosecution's evidence and identify potential weaknesses in the Crown's case. However, if the Crown's evidence is strong, it may be more strategic to forgo the preliminary inquiry and negotiate a plea deal with the Crown rather than risking a trial. Assuming that the defence has decided not to request a preliminary inquiry, the next strategic consideration is whether to elect for a trial by judge alone or by judge and jury. This decision will depend on a number of factors, including the strength of the Crown's case, the credibility of potential witnesses, and the likelihood of jurors being sympathetic to the accused. In cases where the evidence is complex and difficult to understand, it may be more strategic to choose a judge alone trial, as judges are generally considered to be better equipped to understand technical or legal nuances. On the other hand, if the case involves emotional or sympathy-provoking evidence, such as in cases involving victim impact statements, a jury may be more likely to be swayed in favour of the accused. Another strategic consideration is the timing of the trial. The defence may want to delay the trial in order to better prepare their case or to allow for the possibility of new evidence or legal developments. Conversely, the Crown may want to push for an expedited trial in order to capitalize on the perceived strength of their case or to avoid the accused getting bail or being acquitted on a technicality. The defence may also try to negotiate with the Crown for a plea deal or lesser charge in exchange for agreeing to a speedier trial. In addition to these larger strategic considerations, there are various tactical strategies that can be employed by the defence in a trial. For example, the defence may want to file pre-trial motions in order to exclude certain evidence or to limit the scope of the trial. They may also use opening statements or cross-examination to cast doubt on the Crown's evidence or to present an alternative theory of the crime. In cases where the accused is representing themselves, the defence may choose to use this section of the Code to request the assistance of a court-appointed advocate in order to increase the odds of a successful defence. In conclusion, there are many strategic considerations and tactical decisions that must be made when dealing with section 536.1(4.2) of the Criminal Code of Canada. The ultimate goal of the defence is to secure the best possible outcome for their client, whether that means acquittal, a plea deal, or a reduced sentence. The best strategies will depend on the individual circumstances of each case, including the strength of the Crown's case, the credibility of witnesses, and the potential biases of judges or jurors. By carefully weighing these factors and selecting the most appropriate strategies, a skilled defence lawyer can help to protect their client's rights and secure a favourable outcome.