section 565(3)

INTRODUCTION AND BRIEF DESCRIPTION

An accused who wishes to re-elect under subsection (2) must give written notice to a judge or clerk of the court.

SECTION WORDING

565(3) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect to a judge or clerk of the court where the indictment has been filed or preferred who shall, on receipt of the notice, notify a judge having jurisdiction or clerk of the court by which the accused wishes to be tried of the accuseds intention to re-elect and send to that judge or clerk the indictment and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, any summons or warrant issued under section 578, or any evidence taken before a coroner, that is in the possession of the first-mentioned judge or clerk.

EXPLANATION

Section 565(3) of the Criminal Code of Canada deals with the right of an accused person to re-elect the type of court they wish to be tried in. This right arises when someone is charged with an offence that can be tried in either a provincial court or superior court, and they have initially chosen one option but changed their mind later on. If an accused person wishes to re-elect the type of court they will be tried in, they must give written notice of this intention to either a judge or clerk of the court where the indictment has been filed. This notice must include their preference for the type of court they wish to be tried in. Once the notice has been received, the judge or clerk must notify the judge of the court where the accused wishes to be tried, and provide them with any relevant information or documentation related to the case. The purpose of this section is to give accused persons the right to change their minds about which type of court they want to be tried in. This can be important for several reasons, such as if new evidence comes to light that suggests one court would be better suited to the case than the other. It is important to note that the right to re-elect is not guaranteed in all cases, and that there may be limitations or restrictions on when it can be exercised. Overall, section 565(3) provides a mechanism for accused persons to change their minds about the type of court they wish to be tried in, and ensures that all relevant information and documentation is provided to the appropriate judge or clerk of the court.

COMMENTARY

Section 565(3) of the Criminal Code of Canada is an important provision that governs the procedure of re-election in criminal cases. The section outlines the process for an accused to re-elect for trial by judge and jury in cases where they initially opted for a trial by judge alone. The right to choose the mode of trial is a fundamental principle of criminal law in Canada. Section 11(f) of the Canadian Charter of Rights and Freedoms recognizes this right, and it allows an accused to elect their trial by judge alone or judge and jury. However, once an accused makes their choice, they cannot easily change it. Section 565(2) of the Criminal Code provides that an accused can re-elect their mode of trial only with leave of the court, and only if it is in the interests of justice to do so. Section 565(3) sets out the process for an accused who wishes to re-elect their mode of trial. Specifically, the accused must give notice in writing to a judge or clerk of the court where the indictment was filed or preferred. The judge or clerk who receives the notice must then notify a judge who has jurisdiction or the clerk of the court where the accused wishes to be tried. The first judge or clerk must also send all the relevant documents, such as the indictment, promise to appear, undertaking or recognizance, summons or warrant, or any evidence taken before a coroner, to the second judge or clerk. This provision is important because it ensures that the process of re-electing is both transparent and efficient. It allows for clear communication between the two jurisdictions involved, which is crucial for ensuring that the accused can be tried in the appropriate court. Moreover, it ensures that all the relevant documents and evidence are available to the second court, which is necessary for ensuring that the trial can proceed without unnecessary delay. Section 565(3) also ensures that the accused is given ample opportunity to exercise their right to choose their mode of trial. By requiring written notice, the provision ensures that the accused is making a deliberate and informed decision to re-elect their mode of trial. Additionally, by requiring the approval of the court and considering the interests of justice, this provision ensures that the right to choose one's mode of trial is balanced against the need for an efficient and fair justice system. In conclusion, Section 565(3) is an important provision in the Criminal Code of Canada, as it outlines the process for an accused to re-elect their mode of trial in criminal proceedings. By ensuring transparency and efficiency, this provision helps to safeguard the accused's right to choose their mode of trial while also ensuring that the justice system can function fairly and effectively.

STRATEGY

Section 565(3) of the Criminal Code of Canada pertains to an accused person's right to re-elect to be tried by a judge or a judge and jury after initially electing to be tried by a provincial court judge or a justice of the peace. This section outlines the requirements for the accused to give notice in writing of their intention to re-elect, which includes providing relevant documents to the appropriate court. When dealing with this section of the Criminal Code, there are several strategic considerations that should be taken into account by both the accused and their legal counsel. One strategic consideration is timing. An accused person must re-elect before they enter a plea to the charges against them. Therefore, timing is essential in deciding whether to re-elect or not, as an accused's plea can impact the strength of their defence. Legal counsel should advise their client on the implications of re-electing and make sure that they have enough time to gather all the necessary evidence and prepare their defence. Another strategic consideration is the nature of the case. Re-electing to a higher level court could have advantages or drawbacks depending on the specific facts of the case. For example, a case where the evidence is weak may benefit from being heard by a lower court judge rather than a judge and jury. Alternatively, a case with complex issues or one that is likely to generate substantial media attention may be better suited for trial by a judge or judge and jury, as they are better equipped to handle cases involving more significant complexity. In addition, the cost of a re-election may be a significant strategic consideration. Re-electing to a judge and jury can be substantially more expensive than proceeding with a trial before a judge alone. As a result, an accused person must weigh the cost of a re-election against the potential benefits. Finally, the defendant's personal circumstances may be a strategic consideration when deciding whether to re-elect or not. For example, an accused person who has a high profile or sensitive occupation may not want their case heard by a judge and jury due to the potential risks of reputational damage. In contrast, a defendant who believes that they will receive a fairer trial or a more lenient sentence if heard by a judge and jury may choose to re-elect. In terms of strategies that could be employed in dealing with this section of the Criminal Code, legal counsel should assess the case carefully and provide comprehensive advice to the accused. This should include an analysis of the strength of the prosecution case, the advantages and disadvantages of a judge and jury trial, the cost implications of a re-election, and the defendant's personal circumstances. Legal counsel should also ensure that their client is aware of their legal rights and obligations, and that they have sufficient time to make an informed decision. In conclusion, Section 565(3) of the Criminal Code of Canada outlines an essential right for an accused person to re-elect to be tried by a higher court. The strategic considerations that both an accused person and their legal counsel should take into account include timing, the nature of the case, cost, and personal circumstances. By considering these factors in detail, an accused person can make an informed decision that maximizes their chances of a positive outcome.