section 598(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section explains the circumstances under which a defendant who fails to appear for trial may still be tried by a judge and jury.

SECTION WORDING

598(1) Notwithstanding anything in this Act, where a person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or a provincial court judge without a jury, he shall not be tried by a court composed of a judge and jury unless (a) he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or (b) the Attorney General requires pursuant to section 568 or 569 that the accused be tried by a court composed of a judge and jury.

EXPLANATION

Section 598(1) of the Criminal Code of Canada pertains to individuals who have elected or are deemed to have elected to be tried by a court composed of a judge and jury. If such an individual fails to appear or remain in attendance for their trial, they will not be tried by a judge and jury unless they establish a legitimate excuse for their absence or the Attorney General requires them to be tried by a judge and jury. This section is important as it ensures that individuals who have elected to be tried by a judge and jury are not automatically disqualified from this process due to an absence from their trial. However, it also provides necessary safeguards to ensure that individuals who fail to appear or remain in attendance are still held accountable for their actions. The requirement to establish a legitimate excuse for an absence is a means of preventing individuals from deliberately avoiding trial and potentially escaping punishment for their crimes. It ensures that individuals who have elected to be tried by a judge and jury take this process seriously and remain committed to attending their trial. The provision for the Attorney General to require an individual to be tried by a judge and jury provides an additional layer of oversight and accountability. This allows for situations where an individual's absence may have been deliberate or where there are other factors that make a judge and jury trial more appropriate. Overall, section 598(1) serves to balance the rights and responsibilities of individuals who have elected to be tried by a judge and jury, with the need to maintain accountability and integrity within the justice system.

COMMENTARY

Section 598(1) of the Criminal Code of Canada is an important provision that lays down the process to be followed in cases where an accused person who has elected or is deemed to have elected to be tried by a court composed of a judge and jury fails to appear or remain in attendance for their trial. Under such circumstances, the accused person cannot be tried by a court composed of a judge and jury unless they can establish to the satisfaction of a judge of the court that there was a legitimate excuse for their failure to appear or the Attorney General requires them to be tried by a court composed of a judge and jury. The provision is based on the principle of fairness and ensures that an accused person is not automatically deprived of their right to choose the mode of trial they prefer simply because they have failed to appear or remain in attendance for their trial. Instead, the provision sets out a clear process that must be followed before an accused person can be tried by a court composed of a judge and jury. One of the key features of section 598(1) is the requirement that the accused person establish to the satisfaction of a judge of the court that there was a legitimate excuse for their failure to appear or remain in attendance for their trial. This establishes a high threshold that the accused must meet, which ensures that only genuine reasons are accepted as valid excuses. This is important because it prevents accused persons from using frivolous or fabricated excuses to avoid having to face trial by a jury, which can result in delays and added costs for the justice system. The provision also recognizes the discretion of the Attorney General to require an accused person to be tried by a court composed of a judge and jury. This discretion is a necessary component of the criminal justice system because it allows the Attorney General to make informed decisions about the appropriate mode of trial for a particular case based on factors such as the complexity of the case, the seriousness of the offence, and the likely impact on the victim. This discretion is subject to review by the court, which can ensure that it is exercised fairly and in accordance with the principle of a fair trial for all accused persons. In conclusion, section 598(1) of the Criminal Code of Canada is an important provision that safeguards the right of an accused person to choose the mode of trial they prefer while ensuring that this right is not abused. By setting out a clear process for determining whether an accused person can be tried by a court composed of a judge and jury and by recognizing the discretion of the Attorney General, this provision ensures that the criminal justice system operates fairly and effectively.

STRATEGY

Section 598(1) of the Criminal Code of Canada is an important provision that provides some control to the accused over the mode of trial. This section enables the accused to elect to be tried by a judge without a jury or a provincial court judge without a jury. However, if the accused fails to appear or remain present for the trial, he or she will not be tried by a court composed of a judge and jury unless there is a legitimate excuse for the failure or the Attorney General orders the accused to be tried by a judge and jury. When dealing with this section of the Criminal Code, there are several strategic considerations defense counsel should keep in mind. These considerations include: 1. Elevation of charges: As the accused has the right to choose the mode of trial, the Crown may try to elevate the charges to make the case more serious and complicated, forcing the accused to select a judge-only trial. Defense counsel should consider this possibility when devising their defense strategy. 2. Availability of an appropriate judge: If the accused elects to proceed with a judge-only trial, the presiding judge's subjective views on certain issues may impact the outcome more than with a jury. Therefore, understanding the judge presiding over the case is crucial to design a defense strategy that brings the best result for the accused. 3. Potential consequences of a jury trial: In some cases, such as those involving highly sensitive topics, the trial by jury may not be the best option, as the emotions of a particular juror or group of jurors may impact the outcome. In such cases, defense counsel should carefully consider the potential consequences of proceeding with a jury trial. 4. Establishing legitimacy: If the accused fails to appear or remain in attendance for the trial, then the accused must establish to the satisfaction of a judge that there was a legitimate excuse for the failure. If the accused cannot establish this, then he or she will not be entitled to a trial by judge alone. Defense counsel must have a viable explanation for why the accused was not present in court even if there was genuine carelessness on the side of their client. The strategies that could be employed to deal with this provision should involve: 1. Thorough discussion: Counsel should ensure that the client fully understands the differences between a trial by judge and jury versus judge alone, the risks associated with each, and the strategic implications associated with their choice. 2. Strong communication: Counsel needs to maintain constant communication with the client to keep themselves informed on the client's strategies and available options. 3. Evidence management: While juries are often given a great deal of deference, judges are more receptive to legal arguments and evidence that juries might not understand. The defense counsel should try to ensure that the key pieces of evidence are explained as correctly as possible to the judge so that they take it into account while delivering their verdict. 4. Familiarity with jury instructions: In situations where the accused chooses to proceed with a jury trial, counsel needs to be familiar with the jury instructions. They should ensure that any jury instructions include all the instructions appropriate to the particular testimony provided. In conclusion, to deal with Section 598(1) of the Criminal Code of Canada, defense counsels should have to weigh the potential advantages and drawbacks of a judge-only versus a trial by judge and jury, formulate a pre-trial strategy and anticipate the prosecution's possible elevations of the charges. By implementing a robust strategy, counsel increases their chances of success in their client's case.