Criminal Code of Canada - section 561(5) - Notice and transmitting record

section 561(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the process for an accused person to re-elect the mode of trial after a preliminary inquiry.

SECTION WORDING

561(5) Where an accused wishes to re-elect under subsection (1) after the completion of the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, where that consent is required, to a judge or clerk of the court of his original election who shall, on receipt of the notice, notify the judge or provincial court judge or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect and send to that judge or provincial court judge or clerk the information, the evidence, the exhibits and the statement, if any, of the accused taken down in writing under section 541 and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, or any evidence taken before a coroner, that is in the possession of the first-mentioned judge or clerk.

EXPLANATION

Section 561(5) of the Criminal Code of Canada deals with the re-election of an accused person who has already made an election on how they wish to be tried for a criminal offence. In Canada, an accused person has the option to choose to be tried by either a judge and jury or a judge alone. This decision is made at the time of their first court appearance. However, there may be situations where an accused person wishes to change their initial election. For instance, they may have made an initial election for a trial by judge alone but now want a trial by jury. When an accused wishes to re-elect after the completion of the preliminary inquiry, they must provide written notice to the court with the written consent of the prosecutor if required. Upon receiving the notice of the accused person's intention to re-elect, the judge or clerk of the court of the original election must notify the judge or provincial court judge or clerk of the court where the accused person wishes to be tried. They must also forward all relevant information, evidence, exhibits, and statements of the accused person taken down in writing under section 541. This section ensures that the judicial system operates fairly and efficiently by providing an accused person with the opportunity to change their initial election in certain circumstances. It also ensures that the information needed for the trial is communicated to the appropriate court, thereby enabling the trial to proceed smoothly.

COMMENTARY

Section 561(5) of the Criminal Code of Canada outlines the process for an accused who wishes to re-elect their mode of trial after the completion of a preliminary inquiry. This section is a crucial aspect of the criminal justice system as it helps to ensure that the accused is given the opportunity to choose the mode of trial that would best serve their interests. Under the Criminal Code of Canada, an accused person has the right to choose whether they want to be tried by a judge alone or by judge and jury. This choice is typically made at the time of the accused's first appearance in court, also known as the election. However, in some cases, an accused person may wish to change their mode of trial, and this is where section 561(5) comes into play. The section outlines the requirements for an accused person who wishes to re-elect their mode of trial. For starters, the accused must give notice in writing that they wish to re-elect, along with the written consent of the prosecutor, if required. The notice and consent must be given to a judge or clerk of the court of the accused's original election. Once the notice and consent have been received, the judge or clerk of the court must notify the judge or provincial court judge or clerk of the court by which the accused wishes to be tried of the accused's intention to re-elect. They must also send to that judge or provincial court judge or clerk all the information, evidence, exhibits and statements that have been taken down in writing under section 541 of the Criminal Code of Canada. This includes any promises to appear, undertakings, or recognizances given or entered into in accordance with Part XVI, or any evidence taken before a coroner that is in the possession of the first-mentioned judge or clerk. The purpose of this section is to ensure that the accused's right to re-elect their mode of trial is respected and that all relevant information is forwarded to the new court where the accused will be tried. This is important as it helps to ensure that the accused is given a fair trial and that the new court has all the necessary evidence to make an informed decision. In conclusion, section 561(5) of the Criminal Code of Canada is an important provision that helps to ensure that an accused person's constitutional right to choose their mode of trial is upheld. It outlines the requirements for an accused person who wishes to re-elect their mode of trial and ensures that all relevant information is forwarded to the new court where the accused will be tried. This section is a crucial aspect of the criminal justice system and helps to ensure that accused persons are given a fair trial.

STRATEGY

Section 561(5) of the Criminal Code is a provision that allows an accused person to re-elect the court level at which they will be tried. This section may be important to an accused as different court levels have different rules, procedures, and sentencing powers. Therefore, it is an important strategic decision to be made by an accused and their lawyer. One strategic consideration is timing. An accused person must give notice in writing if they wish to re-elect after the completion of the preliminary inquiry. Therefore, an accused person and their lawyer must ensure that they have enough time to adequately assess their case and make a decision before this deadline. It may be beneficial to request the preliminary inquiry be adjourned to allow time for this consideration. Another strategic consideration is the strength of the evidence. An accused may wish to re-elect to a higher court level if they perceive that the evidence against them is weaker, and therefore, they have a better chance at acquittal. Conversely, an accused may wish to re-elect to a lower court level if the evidence against them is strong, but the penalties at that level are more lenient. A key strategy that may be employed is negotiations with the Crown prosecutor. The written consent of the prosecutor is required for an accused to re-elect. Therefore, a lawyer may engage in discussions with the Crown prosecutor to negotiate a plea deal or reduced charges in exchange for the accused's agreement to remain at the current court level. This strategy may be particularly important if the accused is facing serious charges and does not wish to risk a more severe sentence at a higher court level. Finally, an accused person may wish to consider strategic considerations based on their personal circumstances. For instance, an accused may wish to remain at a lower court level to minimize the cost of litigation or to avoid media attention. In conclusion, Section 561(5) of the Criminal Code of Canada is an important consideration for an accused person and their lawyer. Timing, evidence strength, negotiations with the Crown prosecutor, and personal circumstances are all important strategic considerations that need to be taken into account when making a decision whether or not to re-elect to a different court level.