section 647(4)

INTRODUCTION AND BRIEF DESCRIPTION

If there is a failure to comply with Section 647 or Section 648 before the jury verdict, the judge may discharge the jury and direct a retrial or postpone the trial.

SECTION WORDING

647(4) Where the fact that there has been a failure to comply with this section or section 648 is discovered before the verdict of the jury is returned, the judge may, if he considers that the failure to comply might lead to a miscarriage of justice, discharge the jury and (a) direct that the accused be tried with a new jury during the same session or sittings of the court; or (b) postpone the trial on such terms as justice may require.

EXPLANATION

Section 647(4) of the Criminal Code of Canada is an important provision that allows judges to address situations where there has been a failure to comply with certain requirements during a criminal trial. Specifically, this section deals with situations where there has been a failure to comply with Section 647 or 648 of the Criminal Code, which relate to the selection and composition of juries. If the judge discovers that there has been a failure to comply with these sections before the verdict of the jury is returned, they have the discretion to take action if they believe that the failure to comply might lead to a miscarriage of justice. This can include discharging the jury and either directing that the accused be tried with a new jury during the same session or postponing the trial on such terms as justice may require. The purpose of Section 647(4) is to ensure that the jury selection process is fair and impartial, and that juries are composed of individuals who are representative of the community and able to render a fair and impartial verdict. By giving judges the power to address failures to comply with these requirements, the section helps to safeguard against potential miscarriages of justice that can occur when the jury selection process is flawed or biased. Overall, Section 647(4) is an important provision that plays a vital role in maintaining the integrity and fairness of the criminal justice system in Canada.

COMMENTARY

Section 647(4) of the Criminal Code of Canada is a provision that empowers judges to discharge a jury in certain circumstances. Specifically, this section applies where there has been a failure to comply with section 647 or section 648 of the Code, and where the judge considers that this failure might lead to a miscarriage of justice. In such cases, the judge may choose to discharge the jury and order a new trial with a different jury, or he or she may postpone the trial on such terms as justice requires. The purpose of section 647(4) is to protect the integrity of the justice system by preventing miscarriages of justice. By allowing judges to discharge a jury where there has been a failure to comply with the Code, the provision ensures that trials are conducted fairly and without bias. One of the key features of section 647(4) is that it gives judges a considerable degree of discretion. The provision does not lay out a specific test or standard for judges to follow in determining whether a failure to comply with the Code might lead to a miscarriage of justice. Instead, judges must use their own judgment and assess the circumstances of each case on their own merits. This discretion allows judges to be responsive to the nuances of individual cases. For example, a minor failure to comply with the Code, such as a mistake in jury selection, might not require the discharge of the jury. However, a more serious breach, such as evidence tampering, could justify such drastic action. Despite the benefits of section 647(4), the provision is not without its critics. Some argue that the element of judicial discretion is too great, and that the lack of guidance on what constitutes a failure to comply with the Code leaves too much room for interpretation. Others contend that the provision can be abused by judges who are inclined to favor one side or the other. Nonetheless, most legal experts agree that section 647(4) serves an important function in protecting the fairness and impartiality of the criminal justice system. By allowing judges to discharge a jury and order a new trial, or to postpone a trial on just terms, the provision helps to ensure that justice is done, even in the face of mistakes or misconduct. As such, it remains a vital tool in the administration of criminal justice in Canada.

STRATEGY

Section 647(4) of the Criminal Code of Canada can have a significant impact on criminal trials, particularly if there has been a failure to comply with the section or its related section 648. These provisions require that the accused be provided with a jury list in a timely manner and that certain procedural requirements be met during the jury selection process. In situations where these requirements are not met, the judge may need to consider whether or not to discharge the jury and, if so, what steps to take next. One of the key strategic considerations when dealing with section 647(4) is whether a failure to comply with its requirements has actually occurred. If there has been a minor procedural deficiency, for example, the judge may be less likely to discharge the jury. However, if a more serious breach has occurred, such as the accused not being provided with a jury list at all, the judge may be more inclined to take action. Therefore, it may be advisable for lawyers to carefully review the procedural requirements of section 647(4) and 648 to ensure that they are being followed properly. Another important strategic consideration is whether or not to request that the jury be discharged. This can be a difficult decision to make, as it essentially puts the trial on hold and means that a new jury selection process will have to be conducted. However, if there has been a serious failure to comply with the requirements of section 647(4) or 648, it may be necessary in order to ensure that justice is done. Lawyers may need to carefully weigh the pros and cons of seeking a discharge of the jury, taking into account factors such as the strength of their case, the potential impact on their client, and the potential for negative publicity. If a decision is made to seek a discharge of the jury, lawyers may need to develop strategies to mitigate the impact of the delay on their client's case. For example, they may need to find ways to keep their client informed and engaged during the delay, or seek to expedite the selection process for a new jury. Timely preparation and communication with the accused, their family, and witnesses is key to avoid complications. Finally, lawyers may wish to seek guidance from the judge on how best to proceed in situations where a failure to comply with section 647(4) or 648 has occurred. Judges have significant discretion under the Criminal Code in determining how to handle such situations, and their experience and expertise can be invaluable in determining the best course of action. In conclusion, section 647(4) of the Criminal Code of Canada is an important provision that can have a significant impact on criminal trials. Strategic considerations when dealing with this section include carefully reviewing procedural requirements, making decisions about whether to seek a discharge of the jury, and developing strategies to mitigate the impact of any delay on the case. Ultimately, seeking guidance from the judge can help ensure that the interests of justice are served.