INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the procedure for an accused person electing to be tried by a provincial court judge.
SECTION WORDING
536(3) Where an accused elects to be tried by a provincial court judge, the justice shall endorse on the information a record of the election and shall (a) where the justice is not a provincial court judge, remand the accused to appear and plead to the charge before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed; or (b) where the justice is a provincial court judge, 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.
EXPLANATION
Section 536(3) of the Criminal Code of Canada outlines the procedure to be followed in the event that an accused elects to have their trial heard before a provincial court judge. This provision allows an accused to choose the forum in which their case will be heard, meaning that they can choose to have their case heard before a judge of the provincial court rather than before a judge or jury of the superior court. If an accused chooses to be tried by a provincial court judge, the justice who is hearing the case must endorse the information with a record of the election. If the justice is not a provincial court judge, they must remand the accused to appear and plead to the charge before a provincial court judge in the territorial division where the offence is alleged to have been committed. If the justice is a provincial court judge, they will call on the accused to plead to the charge, and if the accused does not plead guilty, they will proceed with the trial or set a time for the trial. This provision is important because it gives accused persons the right to choose the forum in which their case will be heard. This can be significant because trials before a provincial court judge are generally less formal and less complex than trials before a judge or jury of the superior court. This means that an accused who elects to be tried by a provincial court judge may benefit from a more streamlined and less intimidating process. Conversely, an accused who elects to be tried by a superior court may be seeking a more formal and rigorous process that may be more likely to result in a not guilty verdict. Ultimately, the choice of forum is up to the accused, and this provision ensures that their choice will be respected.
COMMENTARY
Section 536(3) of the Criminal Code of Canada sets out the procedure for an accused person to elect to be tried by a provincial court judge. This section is a crucial element of the criminal justice system as it provides accused individuals with the opportunity to choose the forum in which they are tried. The section provides a framework for the transfer of jurisdiction from the court in which the accused is initially charged to the provincial court, and lays out the requirements for a successful transfer. The purpose of Section 536(3) is to give an accused person the right to choose the forum where their trial will take place. It allows an accused individual who is charged with an offence to elect to have their case heard before a provincial court judge, rather than a judge and jury in a higher court. This choice can be made based on a variety of factors, including the complexity of the case, the potential sentence, or the preference of the accused. Section 536(3) sets out two options for the justice who receives a request from the accused to be tried by a provincial court judge. If the justice is not a provincial court judge, they must remand the accused to appear and plead before a provincial court judge in the territorial division in which the offence is alleged to have been committed. On the other hand, if the justice is a provincial court judge, they can call on the accused to plead guilty and proceed with the trial or fix a time for the trial if the accused pleads not guilty. The section also requires the justice to endorse the information with a record of the election to ensure that the request is properly recorded. This record is important because it serves as evidence that the accused elected to be tried by a provincial court judge, and it can be used to avoid inconsistent judgments, appeals, or other procedural challenges. Overall, Section 536(3) of the Criminal Code of Canada is an important provision that guarantees the right of an accused person to choose the forum in which they are tried. This section serves the interests of justice by ensuring that the accused can make an informed decision about the forum where their case will be heard, and it provides a clear procedure for the transfer of jurisdiction from one court to another. By giving accused persons the right to elect for their trial to be held before a provincial court judge, the Canadian justice system ensures that all accused individuals receive fair and impartial trials, regardless of the complexity of the case or the potential sentence.
STRATEGY
Section 536(3) of the Criminal Code of Canada sets out the procedure for an accused to elect to be tried by a provincial court judge. This decision can have significant strategic implications for both the defence and the prosecution, and careful consideration should be given to the decision to make such an election. One of the primary strategic considerations for the defence is the potential for a more lenient sentence from a provincial court judge. Provincial court judges have limited jurisdiction and typically have lower sentencing powers than superior court judges. As a result, a defendant may believe that they have a better chance of receiving a more lenient sentence from a provincial court judge. However, the defence must also consider that a provincial court judge may have less experience and knowledge than a superior court judge, which could result in a less favourable outcome if the case is complex or involves important legal issues. Additionally, if the case is likely to be appealed, an accused may prefer to be tried by a superior court judge who has more experience with appeals. Another strategic consideration for the defence is the potential for a quicker trial in provincial court. Superior court trials can take many months or even years to conclude, whereas a trial in provincial court may be completed more quickly. This can be advantageous for an accused if they are in custody awaiting trial, as they may be able to secure a faster release if the trial is held in provincial court. For the prosecution, the main strategic consideration is the potential for a lower burden of proof in provincial court. The burden of proof in a criminal trial is high - the prosecution must prove guilt beyond a reasonable doubt. In a provincial court trial, the Crown need only prove guilt on a balance of probabilities, meaning that it is more likely than not that the accused committed the offence. Despite this lower burden of proof, however, a trial in provincial court may not be as advantageous for the prosecution as it may appear. Provincial court judges are often more lenient in their sentencing, which means that a judge may be less likely to impose a significant sentence even if the accused is found guilty. Additionally, the Crown must consider the potential for an appeal if the case is tried in provincial court and the accused is acquitted. There are several strategies that could be employed by both the defence and the prosecution when dealing with section 536(3) of the Criminal Code. One strategy for the defence is to carefully evaluate the facts of the case and the potential outcome in both provincial court and superior court. If the case is relatively straightforward and likely to result in a lenient sentence, the accused may choose to elect to be tried in provincial court. However, if there are complex legal issues or a risk of a harsh sentence, the defence may elect to remain in superior court. For the prosecution, one strategy could be to oppose the election for trial by a provincial court judge. This would require the Crown to show that the case is too complex or serious to be heard in provincial court, and that a superior court judge is needed to ensure a fair trial. Another strategy could be to proceed with the trial in provincial court but seek a higher sentence than might normally be imposed in that court. This would provide a deterrent effect for future offenders and could discourage accused persons from electing to be tried in provincial court. In conclusion, section 536(3) of the Criminal Code of Canada provides an important strategic consideration for both the defence and the prosecution. The decision to elect to be tried by a provincial court judge must be made carefully and with a full understanding of the potential implications for the outcome of the case. Both sides must consider a range of factors, including the complexity of the case, the likely sentence, and the potential for an appeal. By carefully considering all of these factors, an accused and their lawyer can make the most strategic decision for their case.