Criminal Code of Canada - section 686(5.2) - Election if new trial a jury trial Nunavut

section 686(5.2)

INTRODUCTION AND BRIEF DESCRIPTION

An accused in Nunavut may elect to have a new trial before a judge without a jury with the consent of the prosecutor.

SECTION WORDING

686(5.2) If a new trial ordered by the Court of Appeal of Nunavut is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election shall be deemed to be a re-election within the meaning of subsection 561.1(1), and subsection 561.1(6) applies, with any modifications that the circumstances require, to the election.

EXPLANATION

Section 686(5.2) of the Criminal Code of Canada deals with the right of an accused person to elect to have their new trial heard before a judge without a jury, if the new trial has been ordered by the Court of Appeal of Nunavut. This provision recognizes the importance of fair trial rights and allows an accused person to choose the format in which their trial will be conducted. The provision specifies that if an accused person elects to have their trial heard before a judge without a jury, this will be considered a re-election within the meaning of subsection 561.1(1) of the Criminal Code, which deals with the right to elect trial by judge alone. This means that the accused person will have the same rights and protections as they would if they had originally elected for a trial by judge alone. The provision also states that subsection 561.1(6) of the Criminal Code will apply, with any modifications that the circumstances require, to the election. Subsection 561.1(6) outlines the process for electing for a trial by judge alone, including the requirements for written notice to the Crown and the timeframe for making the election. The modifications that may be required in the context of section 686(5.2) could include different notice or time requirements. Overall, section 686(5.2) recognizes the importance of fair trial rights and gives an accused person the ability to choose the format in which their trial will be conducted, ensuring that their rights are respected throughout the legal process.

COMMENTARY

Section 686(5.2) of the Criminal Code of Canada specifies a procedure for a new trial ordered by the Court of Appeal of Nunavut that is to be held before a court composed of a judge and jury. The section provides the accused with an option to elect to have the trial heard before a judge without a jury upon the consent of the prosecutor. This section has significant implications for the administration of justice and the rights of the accused. The right to a fair trial is a fundamental principle of the Canadian legal system. The choice between a judge or a judge and jury trial is an essential aspect of this right. The section 686(5.2) addresses one of the debates in the judicial system that often arises as to whether a trial by a judge alone or a judge and jury is the most appropriate. The right to elect a judge-alone trial for the accused in this section is an extension of the traditional rights of the accused in Canada. The provision of this section provides an advantage to the accused, which could benefit the accused in some cases. The decision to elect a judge-alone trial is assumed to eliminate the uncertainty that comes with a jury trial. Issues such as jury bias, jurors' lack of understanding and potential misconduct, and mistakes in jury deliberation and determination of facts are mitigated when a judge alone hears the case. This approach ensures a fair trial and helps to save time and resources as it eliminates the need to assemble a jury. The prosecutor's consent is another significant aspect of section 686(5.2). The Crown prosecutor's role is to protect the public interest, and this may be different from the accused's interest. Therefore, it is just fair to require the prosecutor's agreement before a change in the trial's composition. This section also provides a safeguard to ensure that this section is not misused, and a judge alone trial is not selected to gain an unfair advantage. The provision also indicates that the election is considered a re-election under subsection 561.1(1), and subsection 561.1(6) applies, with necessary modifications. The accused originally had the right to choose a judge and a jury under this section, so a choice for a judge alone trial is seen as a re-election. This subsection assures that the accused cannot use the option to attempt to benefit from either a judge or a jury trial. In conclusion, section 686(5.2) extends the rights of the accused to choose between a judge alone or a judge and jury trial. It also ensures a fair trial by mitigating potential risks and uncertainties surrounding a jury trial. It allows the accused and the prosecutor to work together to select the appropriate format for a new trial. Further, it reassures the public of the fairness and transparency of the judicial system in Canada.

STRATEGY

One strategic consideration when dealing with section 686(5.2) of the Criminal Code of Canada is whether to elect for a judge or jury trial. A judge-alone trial may be preferable if the defence believes the judge will be more likely to acquit the accused, or if there is concern about jury bias or prejudice in the community. On the other hand, a jury trial may be preferred if the defence believes they can sway the emotions or sympathies of the jurors, or if the evidence is complex and would benefit from a group of individuals deliberating on it. Another strategic consideration is whether to seek the consent of the prosecutor for a judge-alone trial. This may depend on the relationship between the defence counsel and prosecutor, as well as the likelihood of the prosecutor consenting. If the prosecutor is unlikely to consent, the defence may need to make a stronger case for a judge-alone trial and be prepared to argue that the circumstances require it. Additionally, the defence should consider how the election will affect any possible appeals. If the defence elects for a judge-alone trial and is subsequently convicted, they may have fewer grounds for appeal than if they had opted for a jury trial. Similarly, if the defence elects for a jury trial and is acquitted, the prosecutor may have less ability to appeal the decision. Other strategic considerations may include the strength of the evidence, the credibility of witnesses, and the potential biases or prejudices of judge or jury. The defence may also consider whether to waive their right to a preliminary inquiry in order to streamline the trial process and increase the chances of obtaining a favourable outcome. In terms of strategies that could be employed, the defence may choose to conduct research on the judge and jury pool in order to identify any potential biases or prejudices that may affect the trial outcome. They may also consider hiring a jury consultant to assist with jury selection and ensure a fair and impartial trial. The defence may also seek to present evidence or arguments in a way that is likely to sway the judge or jury. This could involve presenting evidence in a more compelling manner, using persuasive language, or highlighting key points in a way that resonates with the judge or jury. Ultimately, the choice of whether to elect for a judge or jury trial in accordance with section 686(5.2) of the Criminal Code of Canada will depend on the specific circumstances of each case, as well as the strategic considerations and goals of the defence counsel. By carefully considering these factors and developing effective strategies, the defence can increase the likelihood of a positive outcome for their client.