section 686(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the process for a new trial under Part XIX of the Criminal Code of Canada, including whether it will be held before a judge and jury or a judge alone.

SECTION WORDING

686(5) Subject to subsection (5.01), if an appeal is taken in respect of proceedings under Part XIX and the court of appeal orders a new trial under this Part, the following provisions apply: (a) if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly; (b) if the accused, in his notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, be held before a judge or provincial court judge, as the case may be, acting under Part XIX, other than a judge or provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or provincial court judge who tried the accused in the first instance; (c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and (d) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 553 and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX, other than the provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the provincial court judge who tried the accused in the first instance.

EXPLANATION

Section 686(5) of the Criminal Code of Canada outlines the process for a new trial to be ordered by the court of appeal in proceedings under Part XIX of the Code. The section specifies that if an appeal is taken and a new trial is ordered, the accused may request that the new trial be held before a court composed of a judge and jury, or it will be held before a judge or provincial court judge, as the case may be. If the accused requested a trial before a judge and jury in their notice of appeal, the new trial will be held accordingly. If they did not make such a request, the new trial will be held before a judge or provincial court judge, other than the one who tried the accused initially, unless directed otherwise by the court of appeal. Furthermore, if the conviction against which the accused appealed was for an offence mentioned in section 553 and was made by a provincial court judge, the new trial shall be held before a different provincial court judge unless directed otherwise by the court of appeal. Overall, section 686(5) ensures that a fair trial is provided to the accused in the event of an appeal leading to a new trial. The section outlines the possible options for a court composition and emphasizes that the new trial shall be held in accordance with the accused's original request, if any, unless directed otherwise as required by the court of appeal.

COMMENTARY

Section 686(5) of the Criminal Code of Canada outlines the procedures that must be followed when a court of appeal orders a new trial under Part XIX. This provision is important because it ensures that the new trial is conducted in a fair and transparent manner, and all parties are given a chance to present their case. The first provision, subsection (a), allows the accused to request that the new trial be held before a court composed of a judge and jury. This can be a crucial decision, as the presence of a jury can affect the outcome of the case. If the accused chooses to request a judge and jury trial, then the new trial must be held accordingly. On the other hand, subsection (b) specifies that if the accused did not request a judge and jury trial, then the trial will be held before a judge or provincial court judge, as the case may be, acting under Part XIX. However, this provision does not allow for the same judge or provincial court judge who tried the accused in the first instance to hear the new trial, unless the court of appeal directs it. Subsection (c) states that if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury, it must be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered. This ensures that the accused is fully aware of the charges against them and can prepare a defence accordingly. Finally, subsection (d) specifies that if the conviction being appealed was for an offence mentioned in section 553 and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX. However, the same provincial court judge who tried the accused in the first instance cannot hear the new trial, unless directed by the court of appeal. Overall, section 686(5) of the Criminal Code of Canada lays out a fair and just process for ordering a new trial, ensuring that all parties are given the opportunity to present their case in a transparent and unbiased manner. It is a crucial provision that upholds the principles of justice and fairness in the Canadian legal system.

STRATEGY

One of the main strategic considerations when dealing with Section 686(5) of the Criminal Code of Canada is whether to request a new trial before a judge and jury or before a judge alone. This decision will depend on a variety of factors, including the nature of the offence, the strength of the evidence, the composition of the jury pool, and the specific legal arguments that can be made. If the accused believes that a judge-alone trial would be more advantageous, they may want to consider not requesting a new trial before a judge and jury in their notice of appeal or application for leave to appeal. This would ensure that the new trial would be held before a judge alone, unless the court of appeal directs otherwise. On the other hand, if the accused believes that a trial by jury would be more advantageous, they should request a new trial before a judge and jury in their notice of appeal or application for leave to appeal. This would ensure that the new trial is held before a judge and jury, unless the court of appeal directs otherwise. Another strategic consideration is whether to argue for the new trial to be held before the same judge as in the original trial or before a different judge. This decision will depend on various factors, including any perceived bias on the part of the original judge, any legal errors made by the original judge, and whether the accused believes that a different judge would be more favourable to their case. When arguing for a new trial before the same judge, the accused may want to emphasize any positive aspects of their previous interactions with the judge, such as favourable rulings or constructive feedback given during the trial. They may also want to argue that the judge would have a better understanding of the case and be better equipped to handle any complex legal issues that arise during the new trial. Conversely, when arguing for a new trial before a different judge, the accused may want to emphasize any perceived bias or errors made by the original judge. They may also want to argue that a different judge would bring fresh eyes to the case and provide a more objective and impartial perspective. Overall, the strategic considerations when dealing with Section 686(5) of the Criminal Code of Canada will depend on the specific circumstances of the case and the arguments that the accused and their legal team can make. Some key strategies that could be employed include carefully weighing the pros and cons of a judge-alone trial versus a trial by jury, and arguing for the new trial to be held before the same judge or a different judge depending on which approach is deemed most advantageous.