section 566.1(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the preference of an indictment in Form 4 in cases where an accused elects to be tried by a judge without a jury and a preliminary inquiry is requested by one of the parties.

SECTION WORDING

566.1(2) If an accused elects under section 536.1 or re-elects under section 561.1 to be tried by a judge without a jury and one of the parties requests a preliminary inquiry under subsection 536.1(3), an indictment in Form 4 may be preferred.

EXPLANATION

Section 566.1(2) of the Criminal Code of Canada refers to the procedure to be followed in cases where an accused person elects to be tried by a judge without a jury under section 536.1 or re-elects under section 561.1. In such cases, if one of the parties requests a preliminary inquiry under subsection 536.1(3), an indictment in Form 4 may be preferred. In Canada, an accused person has the right to choose whether to be tried by a judge alone or by a judge and jury. Section 536.1 of the Criminal Code provides for this election. Similarly, section 561.1 allows an accused person to re-elect to be tried by a judge alone after choosing to be tried by a judge and jury. However, even if an accused person chooses to be tried by a judge alone, a preliminary inquiry may still be required. A preliminary inquiry is a hearing held in front of a judge to determine whether there is sufficient evidence to justify sending the case to trial. Subsection 536.1(3) of the Criminal Code allows for a preliminary inquiry in cases where the maximum sentence for the offence is life imprisonment. Section 566.1(2) deals with the situation where an accused person elects to be tried by a judge alone under section 536.1 or re-elects under section 561.1, but the Crown or defence requests a preliminary inquiry under subsection 536.1(3). In this case, an indictment in Form 4 may be preferred. An indictment in Form 4 is a standard form of indictment that is used in most criminal cases in Canada. It sets out the specific charges against the accused person. By allowing for an indictment in Form 4 in cases where a preliminary inquiry is requested despite the accused person's election to be tried by a judge alone, section 566.1(2) ensures that the normal process of a criminal trial is followed, even if the trial is ultimately heard by a judge alone.

COMMENTARY

Section 566.1(2) of the Criminal Code of Canada deals with the procedure for a preliminary inquiry in cases where an accused elects to be tried by a judge without a jury. The section provides that if an accused chooses to be tried by a judge alone under section 536.1 or re-elects under section 561.1, and one of the parties requests a preliminary inquiry under subsection 536.1(3), an indictment in Form 4 may be preferred. The purpose of a preliminary inquiry is to determine whether there is enough evidence to justify a trial. It is held before a judge in the provincial court and the accused has the right to be present. The Crown presents evidence to show that there is sufficient evidence to proceed to trial, and the accused has the right to cross-examine the witnesses and make submissions. The process of electing to be tried by a judge without a jury is called a "waiver of the right to a jury trial." An accused may choose to do so for various reasons, such as concerns about media attention, wanting a faster trial, or feeling that a judge's decisions may be less influenced by emotion than those of a jury. However, if an accused decides to waive their right to a jury trial, they also waive their right to a preliminary inquiry, unless the Crown agrees to it or a judge orders it. This is because a preliminary inquiry is meant to assist a jury in deciding the case, and if there is no jury, it may be considered unnecessary. Section 566.1(2) provides an exception to this rule. It allows for a preliminary inquiry to be held if one of the parties requests it, even if the accused has elected to be tried by a judge without a jury. This provision recognizes that a preliminary inquiry may still be useful in some cases, even without a jury. There may be several reasons why a party would request a preliminary inquiry in a judge-alone trial. For example, the defence may want to test the strength of the Crown's case or cross-examine witnesses in advance of the trial. Alternatively, the Crown may want to ensure that its evidence is solid before proceeding to trial without a jury. However, it should be noted that a preliminary inquiry in a judge-alone trial differs significantly from one held before a judge and jury. Without a jury, the judge will be the ultimate decision-maker on whether there is enough evidence to proceed to trial. Additionally, the scope of the preliminary inquiry may be narrower, as there may be fewer issues to explore without a jury. In conclusion, Section 566.1(2) of the Criminal Code recognizes that there may be circumstances where a preliminary inquiry is useful in a judge-alone trial. It provides an exception to the usual rule that a waiver of the right to a jury trial also waives the right to a preliminary inquiry. However, parties should be aware that a preliminary inquiry in a judge-alone trial may have different implications and outcomes than one held before a judge and jury.

STRATEGY

Section 566.1(2) of the Criminal Code of Canada outlines the circumstances under which an accused individual can elect to be tried by a judge without a jury and how a preliminary inquiry can be requested by one of the parties. As with any legal provision, there are various strategic considerations that both the prosecution and defense must bear in mind when dealing with this section of the Criminal Code. From the defense standpoint, one of the key strategic considerations is deciding whether to opt for a trial by judge alone. Factors that play into this decision include the nature of the case, the strength of the evidence, and the anticipated attitude of the judge towards a particular client. Choosing a trial by judge alone can be advantageous for a defendant in certain cases. For example, if the defendant fears that the evidence against them is too strong to risk a jury trial, a judge alone may be more likely to make a fair ruling based on the law without being swayed by emotional appeals from the prosecution. On the other hand, if the defendant believes that a jury would be more sympathetic if they were able to see the facts of the case from their perspective, a jury trial might be the more strategic option. If an accused elects to be tried by a judge alone, the prosecution may then request a preliminary inquiry under subsection 536.1(3). This allows the Crown to obtain evidence and gauge the strength of their case before proceeding to trial. As such, the defense must also consider whether to consent to a preliminary inquiry and must be prepared to present their case before a judge. In some cases, the defense may wish to contest a preliminary inquiry or to limit the scope of the inquiry to prevent the Crown from obtaining evidence that could be damaging to their case. Another strategic consideration is the potential impact of section 566.1(2) on the potential for a plea bargain. If the Crown has a strong case, they may be less inclined to offer a plea deal if they know they can proceed with a trial by judge alone. On the other hand, if the prosecution's case is weak, this may increase the likelihood of an offer being made. The section also raises a number of ethical considerations for both the defense and prosecution. Both parties must ensure that they are acting in the best interests of their clients while also upholding their professional and ethical responsibilities. For example, defense counsel must not encourage a client to elect to be tried by judge alone if this is not in their client's best interests. Similarly, the prosecution must not abuse their powers or engage in any unethical practices to secure a conviction. In summary, section 566.1(2) of the Criminal Code of Canada raises various strategic and ethical considerations for both the defense and prosecution. The decision of whether to elect for a trial by judge alone, consent to a preliminary inquiry, and how to approach plea bargaining will depend on the specific circumstances of each case. It is therefore essential for both parties to fully understand this section of the Criminal Code and to act in accordance with their professional and ethical responsibilities.