section 561.1(6)

INTRODUCTION AND BRIEF DESCRIPTION

Accused who didnt request preliminary inquiry or had one can re-elect with written notice and prosecutors consent.

SECTION WORDING

561.1(6) If an accused who has not requested a preliminary inquiry under subsection 536.1(3) or who has had one wishes to re-elect under this section, the accused shall give notice in writing of the wish to re-elect together with the written consent of the prosecutor, if that consent is required, to the judge before whom the accused appeared and pleaded or to a clerk of the Nunavut Court of Justice.

EXPLANATION

Section 561.1(6) is a provision within the Criminal Code of Canada that governs the process of re-electing a mode of trial. When an accused person is charged with a criminal offence, they have the right to choose whether to be tried by a judge alone in provincial court, or by judge and jury in superior court. This choice is known as a mode of trial election". The accused person must make this election before their preliminary inquiry is held, which is a hearing to determine whether there is enough evidence to proceed to trial. However, in some cases, an accused person may wish to change their mode of trial election. This is where section 561.1(6) comes into play. If an accused person did not request a preliminary inquiry, or if they did request one but have since changed their mind, they may re-elect their mode of trial. To do so, they must provide written notice of their intention to re-elect, along with the written consent of the prosecutor (if required) to either the judge before whom they appeared and pleaded, or to a clerk of the Nunavut Court of Justice. The purpose of this provision is to ensure that any changes to the mode of trial election are made in a formal, documented way. This helps to avoid confusion or misunderstandings later on in the legal process. It also ensures that the prosecutor is aware of the accused person's intentions, and has the opportunity to object if necessary. Overall, section 561.1(6) is an important aspect of the Criminal Code of Canada that governs the process of re-electing a mode of trial. Its purpose is to ensure that any changes are properly documented and communicated to all parties involved in the legal process.

COMMENTARY

Section 561.1(6) of the Criminal Code of Canada outlines the procedures for an accused who has not requested a preliminary inquiry under subsection 536.1(3) or who has had one to re-elect under this section. This section is essential because it enables the accused to have a fair and impartial trial. It is important to note that this section is not applicable in Nunavik and the Cree Territory of James Bay. The procedure for an accused to re-elect under this section involves giving notice in writing of the wish to re-elect, together with the written consent of the prosecutor if required, to the judge before whom the accused appeared and pleaded or a clerk of the Nunavut Court of Justice. This requirement seeks to provide an opportunity for the prosecutor to express their views on the re-election so that the court can make an informed judgment. Section 536.1(3) of the Criminal Code of Canada provides for the right of an accused to a preliminary inquiry in specific circumstances. For example, it is available to an accused charged with an offence punishable by imprisonment for 14 years or more, or when the prosecutor elects to proceed by way of indictment. The objective of the preliminary inquiry is to determine if there is enough evidence to warrant a trial. If the accused decides not to request a preliminary inquiry, Section 561.1(6) allows the accused to re-elect and have their case heard in a higher court without the preliminary hearing. The procedures outlined in Section 561.1(6) are essential in maintaining the integrity and fairness of the criminal justice system. Re-electing the mode of trial can significantly impact the outcome of a trial, and therefore, it is crucial that both the accused and the prosecutor have a say in how the trial proceeds. The written consent of the prosecutor serves as a check and balance to ensure that the accused does not re-elect solely for tactical or strategic reasons. Furthermore, the provision also recognizes the importance of efficiency in the criminal justice system. A preliminary inquiry can be time-consuming and costly, and re-electing to bypass it can facilitate faster resolution of criminal cases. However, it is also important to remember that the accused's right to a fair trial should always take precedence over any concerns with the time or cost of the proceedings. In conclusion, Section 561.1(6) of the Criminal Code of Canada outlines the procedures for an accused who wishes to re-elect under this section. The section recognizes the importance of fairness, integrity, and efficiency in the criminal justice system and ensures that the accused is heard and the prosecutor has an opportunity to consent or object to the re-election. This provision is crucial in maintaining confidence in the criminal justice system and providing an opportunity for a fair and just trial.

STRATEGY

Section 561.1(6) of the Criminal Code of Canada provides an opportunity for an accused to re-elect their mode of trial. There are several strategic considerations that an accused must take into account when dealing with this section of the Criminal Code. The first consideration is whether re-electing the mode of trial is in the accused's best interest. If the accused had previously chosen to proceed by way of summary conviction, but the matter has become more serious or complex, it may be advantageous to re-elect to proceed by way of indictment. Similarly, if the accused had previously elected to proceed by way of indictment but now believes that proceeding by way of summary conviction would be more beneficial, then re-electing to proceed summarily may be in the accused's best interest. The decision to re-elect the mode of trial should be made after careful consideration of the evidence, the seriousness of the offence, and the potential consequences of conviction. The second consideration is whether the prosecutor's consent is required in order to re-elect the mode of trial. If the prosecution's consent is required, the accused must obtain it before re-electing. This may involve negotiating with the prosecutor to agree on the mode of trial that is in both parties' best interests. For example, the prosecutor may agree to a summary conviction if the accused agrees to plead guilty or accepts a lesser sentence. The third consideration is the timing of the re-election. Section 561.1(6) requires that the accused give notice in writing of the wish to re-elect together with the written consent of the prosecutor, if that consent is required, to the judge before whom the accused appeared and pleaded or to a clerk of the Nunavut Court of Justice. The accused should ensure that they provide notice well in advance of the trial date to allow for any necessary procedural changes. The fourth consideration is how the re-election may impact the trial strategy. Depending on the mode of trial elected, there may be different procedural and evidentiary rules that apply. For example, evidence that is admissible in a summary conviction trial may not be admissible in an indictment trial. The accused's legal counsel should ensure that they are aware of the differences in procedure and evidence for each mode of trial and that their trial strategy is adapted accordingly. There are several strategies that an accused may employ when dealing with section 561.1(6) of the Criminal Code. One strategy is to negotiate with the prosecutor to agree on the mode of trial that is in both parties' best interests. Another strategy is to seek the advice and guidance of an experienced criminal defence lawyer who can provide legal counsel on the best course of action given the circumstances of the case. Finally, the accused may consider applying for a stay of proceedings if they believe that the trial process has been unfair or prejudicial.