INTRODUCTION AND BRIEF DESCRIPTION
This section requires an endorsement on the information and warrant of remand for an accused who elects to be tried without a jury or is charged with an offence listed in section 469.
SECTION WORDING
536.1(4) 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 endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing (a) the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be; and (b) whether the accused or the prosecutor has requested that a preliminary inquiry be held.
EXPLANATION
Section 536.1(4) of the Criminal Code of Canada outlines the procedure for indicating an accused person's choice of trial when facing criminal charges. An accused person in Canada has the right to choose to be tried either by the judge alone or by a court comprised of a judge and jury. However, in certain cases, the accused person may not have the opportunity to make a choice. For example, if the accused is charged with an offence listed in section 469, they must be tried by a court composed of a judge and jury. This section requires that the justice or judge, upon receiving an accused person's choice of trial or deemed election, endorse this information on the warrant of remand and, if applicable, on the information. This statement must indicate the nature of the accused person's election and whether the accused or the prosecutor has requested a preliminary inquiry. This requirement for documentation ensures that there is a clear, written record of the accused person's choice of trial and whether a preliminary hearing will be held. This information is important for ensuring that the trial proceeds in accordance with the accused person's chosen method of trial and for preventing any confusion or disputes later in the trial process. Overall, section 536.1(4) of the Criminal Code of Canada is an important procedural safeguard that helps to uphold the rights of accused persons and ensure that trials are conducted fairly and transparently.
COMMENTARY
Section 536.1(4) of the Criminal Code of Canada is a procedural provision that deals with the process of election by an accused person for trial by a judge, a judge and jury or jury alone. This section outlines the process that is required for recording the decision of the accused. Whether the accused person has elected to be tried by a judge alone, judge and jury, or has failed to make an election, this section requires that the judge or justice hearing the case must endorse the information and the warrant stating the decision the accused has made. This section of the Criminal Code is vital because it ensures that the accused person is aware of the decision being made and that it is reflected on the court record. The endorsement by the judge or justice is important because it now becomes clear whether the trial will take place as a jury trial or judge-alone trial. Furthermore, it helps to avoid confusion and possible delays in the proceedings. Another critical element of this section of the Criminal Code is the requirement that the endorsement includes a statement regarding whether a preliminary inquiry was requested. A preliminary inquiry is a pre-trial hearing before a judge to determine if there is enough evidence to justify a trial. This announcement helps to clarify the next steps in the legal process in the case of a preliminary inquiry. The provision of section 536.1(4) operates to provide crucial information that guides the conduct of the trial and mitigates confusion regarding the trial process's structure. It plays an essential role in ensuring that everyone involved in the proceedings is aware of the accused's decision and subsequent actions by the court. Moreover, it allows the system to prepare itself adequately for a trial by forwarding the case to the appropriate court and ensures that the trial proceeds in an expeditious and efficient manner. In addition, this section of the Criminal Code also has the purpose of ensuring fairness in the legal process. By requiring the accused person to make a clear decision regarding the mode of trial, the system can ensure that the trial takes place with the trial mode that is most appropriate and just for the circumstances of the case. It is also important to note that section 536.1(4) does not apply to those accused of offenses listed in section 469 of the Criminal Code of Canada. This provision outlines the highest level of offenses that exist in Canada, such as murder. Such accused persons will automatically be assigned a court composed of a judge and jury, and thus there is no need for an election to be made. In conclusion, Section 536.1(4) of the Criminal Code of Canada is an essential and informative provision that provides clarity regarding the decision-making process of an accused person. It plays a vital role in ensuring that the trial process is just, adequately structured, and expeditious. The endorsement provides critical information that guides the court and the prosecution in their respective roles and mitigates the potential confusion regarding the mode of trial. Overall, it is a necessary provision that contributes to maintaining the integrity and fairness of the Canadian legal system.
STRATEGY
Section 536.1(4) of the Criminal Code of Canada is an important provision that aims to establish procedural guidelines for an accused who elects to be tried by a judge without a jury or by a court composed of a judge and jury. The section requires the justice or judge to endorse on the information and, if the accused is in custody, on the warrant of remand, certain information related to the accused's election or deemed election and whether a preliminary inquiry has been requested. There are several strategic considerations when dealing with this section of the Criminal Code of Canada, some of which are discussed below. One of the primary strategic considerations when dealing with this section is ensuring that the accused fully understands their options and the implications of their election or deemed election. Counsel must provide the accused with informed, practical advice on the potential advantages and disadvantages of electing a trial by judge alone or by a court composed of a judge and jury. Such advice may include discussing the likelihood of obtaining an acquittal or a better plea deal under different trial scenarios. Counsel may also need to explain the differences between a preliminary inquiry and a trial and how this may affect the outcome of the case. Another strategic consideration when dealing with this section is ensuring that the endorsed statement accurately reflects the accused's election or deemed election. If the accused did not make a clear election or deemed election, counsel may need to make submissions to clarify or correct the record to ensure that the accused's legal rights are protected. In some cases, counsel may need to challenge the endorsement of the statement due to an error of law or fact. A third strategic consideration is determining whether a preliminary inquiry should be requested. A preliminary inquiry is a hearing that takes place before a trial to determine whether there is enough evidence to proceed to trial. If the accused or the prosecutor requests a preliminary inquiry, the justice or judge must endorse this on the information. Counsel must therefore weigh the potential benefits and drawbacks of a preliminary inquiry, taking into account the nature and strength of the evidence, the witnesses available, and the anticipated length and costs of the proceedings. One strategy that could be employed when dealing with this section is to negotiate with the prosecutor to obtain a plea deal that is favorable to the accused. This may involve agreeing to waive the right to a preliminary inquiry in exchange for a reduction in the charges or a more lenient sentence recommendation. Alternatively, counsel may negotiate with the prosecutor for a trial by judge alone or by a court composed of a judge and jury that is more likely to result in an acquittal or a lighter sentence. Another strategy that could be employed is to challenge the endorsement of the statement, especially if there is an error of fact or law that could affect the accused's legal rights. Counsel may need to make submissions to clarify or correct the record, or seek an order from the court to amend the endorsed statement to accurately reflect the accused's election or deemed election. In conclusion, section 536.1(4) of the Criminal Code of Canada presents several strategic considerations for counsel when dealing with an accused's election or deemed election. By providing informed advice to the accused, ensuring accurate endorsement of the statement, and making strategic decisions about requesting a preliminary inquiry or negotiating a plea deal with the prosecutor, counsel can increase their chances of obtaining a favorable outcome for their client.