Criminal Code of Canada - section 536(4) - Request for preliminary inquiry

section 536(4)

INTRODUCTION AND BRIEF DESCRIPTION

Section 536(4) requires a preliminary inquiry to be held for an accused who elects to be tried by a judge and jury or is charged with an offense listed in section 469.

SECTION WORDING

536(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 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 justice, hold a preliminary inquiry into the charge.

EXPLANATION

Section 536(4) of the Criminal Code of Canada establishes the circumstances under which a preliminary inquiry must be held in criminal cases. If an accused individual chooses to be tried by a judge without a jury or by a court composed of a judge and jury, or if they do not make an election when asked to do so, or if they are charged with a serious indictable offence listed in section 469, then a preliminary inquiry must be held upon the request of the accused or the prosecutor. A preliminary inquiry is a process that takes place in court before a trial. It is an opportunity for the prosecution to present evidence to a judge, who will then decide whether or not there is enough evidence to proceed with a trial. It allows the defence to question and cross-examine witnesses and may provide an opportunity for the accused to enter a plea deal. The purpose of a preliminary inquiry is to determine if the evidence provided by the prosecution is sufficient to warrant a trial. If the judge finds that there is enough evidence, the accused will be committed to stand trial. If not, the charges may be dismissed. The decision to hold a preliminary inquiry is an important one, as it may impact the length and cost of the legal process. However, the rules around preliminary inquiries are constantly evolving, and recent changes have limited their use in certain circumstances. Overall, section 536(4) ensures that a preliminary inquiry will be held when it is deemed necessary to ensure a fair and just legal process for the accused.

COMMENTARY

Section 536(4) of the Criminal Code of Canada mandates the holding of a preliminary inquiry in certain criminal cases. Specifically, this section applies when an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury, or when they do not make that election and are deemed to have chosen to be tried by a court composed of a judge and jury. It also applies when an accused is charged with an offence listed in Section 469. The purpose of a preliminary inquiry is to determine whether there is enough evidence for the case to proceed to trial. During the inquiry, a judge will hear evidence from the Crown prosecutor and any witnesses they present, as well as from the accused and their lawyer. The judge will then decide whether there is enough evidence for the case to proceed to trial. There are several benefits to holding a preliminary inquiry. For one, it can help to ensure that only cases with strong evidence proceed to trial, which can save both time and resources. Further, it allows the accused to hear the evidence against them and to challenge it as needed. This can be particularly important in cases where the evidence against the accused is weak or circumstantial. On the other hand, there are some arguments that have been made against the use of preliminary inquiries. One is that they can be time-consuming and costly, as they require the presence of a judge and the production of evidence. Additionally, there are concerns that they may not always be necessary or effective, as some cases may have enough evidence to proceed to trial without an inquiry. Overall, the decision to hold a preliminary inquiry should be made on a case-by-case basis, taking into account factors such as the strength of the evidence, the seriousness of the charge, and the interests of justice. Section 536(4) of the Criminal Code of Canada ensures that the option of a preliminary inquiry is available in certain cases, but it is up to the judiciary to determine when it is appropriate to exercise that option.

STRATEGY

Section 536(4) of the Criminal Code of Canada is a provision that outlines the procedures to be followed when an accused person elects to be tried by a judge without a jury or by a court composed of a judge and jury. The section is also applicable when an accused person is charged with an offence listed in section 469 or if they do not elect when put to the election. In such cases, a preliminary inquiry must be held into the charge. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that should be taken into account. These include: 1. Timing of the request: It is important to consider the timing of the request for a preliminary inquiry. The request can be made at the time of the election or within the period fixed by the rules of court. It is important to make the request in a timely manner to avoid delays in the legal process. 2. Strength of the Crown's case: The strength of the Crown's case is a significant factor to consider when deciding whether to request a preliminary inquiry. If the Crown's case is weak, a preliminary inquiry can be used as a strategic tool to weaken the Crown's case further. 3. Legal costs: The costs associated with a preliminary inquiry can be significant. It is important to consider these costs before making a request for a preliminary inquiry. 4. Disclosure: A preliminary inquiry provides an opportunity for the defence to obtain more information about the Crown's case. This information can be used to prepare a stronger defence strategy. 5. Trial strategy: Decisions relating to the type of trial and the timing of the trial can be critical to the success of the defence strategy. A preliminary inquiry can provide useful information for making these strategic decisions. Strategies that can be employed when dealing with Section 536(4) of the Criminal Code of Canada include: 1. Using the preliminary inquiry as an opportunity to cross-examine Crown witnesses and test the Crown's evidence. 2. Using the preliminary inquiry to limit the scope of the charges and to exclude certain evidence. 3. Using the preliminary inquiry to negotiate a favourable plea deal with the Crown. 4. Employing the preliminary inquiry as a strategic tool to gather information, build case theory, and identify potential weaknesses in the Crown's case. 5. Timing the election of trial type strategically, and using the preliminary inquiry to assess the strength of the Crown's case, and the potential for acquittal by way of a summary trial. In conclusion, Section 536(4) of the Criminal Code of Canada provides important procedural rules for the holding of a preliminary inquiry in certain circumstances. This section can be used strategically by the defence to gather information, limit the scope of the charges, negotiate plea deals, and prepare for trial. It is important to carefully consider the legal and cost implications before making a request for a preliminary inquiry and to develop a defence strategy that best suits the facts of the case.