Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Proceedings on re-election to be tried by provincial court judge without jury

563 Where an accused re-elects under section 561 to be tried by a provincial court judge,

• (a) the accused shall be tried on the information that was before the justice at the preliminary inquiry, if applicable, subject to any amendments to the information that may be allowed by the provincial court judge by whom the accused is tried; and

• (b) the provincial court judge before whom the re-election is made shall endorse on the information a record of the re-election.

Marginal note:Proceedings on re-election to be tried by judge without jury — Nunavut

• 563.1 (1) If an accused re-elects under section 561.1 to be tried by a judge without a jury and does not request a preliminary inquiry under subsection 536.1(3) or is not entitled to make such a request under that subsection,

  • (a) the accused shall be tried on the information that was before the justice of the peace or judge at the preliminary inquiry, if applicable, subject to any amendments that may be allowed by the judge by whom the accused is tried; and

  • (b) the judge before whom the re-election is made shall endorse on the information a record of the re-election.

• Marginal note:Application to Nunavut

  (2) This section, and not section 563, applies in respect of criminal proceedings in Nunavut.

564 [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 110]

Marginal note:Election deemed to have been made

• 565 (1) If an accused is ordered to stand trial for an offence that, under this Part, may be tried by a judge without a jury, the accused shall, for the purposes of the provisions of this Part relating to election and re-election, be deemed to have elected to be tried by a court composed of a judge and jury if

  • (a) the justice of the peace, provincial court judge or judge, as the case may be, declined to record the election or re-election of the accused under section 567 or subsection 567.1(1); or

  • (b) the accused does not elect when put to an election under section 536 or 536.1.

• (1.1) [Repealed, 2019, c. 25, s. 260]

• Marginal note:When direct indictment preferred

  (2) If an accused is to be tried after an indictment has been preferred against the accused on the basis of a consent or order given under section 577, the accused is, for the purposes of the provisions of this Part relating to election and re-election, deemed to have elected to be tried by a court composed of a judge and jury and not to have requested a preliminary inquiry under subsection 536(4) or 536.1(3), if they were entitled to make such a request, and may re-elect to be tried by a judge without a jury without a preliminary inquiry.

• Marginal note:Notice of re-election

  (3) If an accused intends to re-elect under subsection (2), the accused shall give notice in writing to a judge or clerk of the court where the indictment has been filed or preferred. The judge or clerk shall, on receipt of the notice, notify a judge having jurisdiction or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect and send to that judge or clerk any indictment, appearance notice, undertaking or release order given by or issued to the accused, any summons or warrant issued under section 578 and any evidence taken before a coroner that is in the possession of the first-mentioned judge or clerk.

• Marginal note:Application

  (4) Subsections 561(6) and (7), or subsections 561.1(8) and (9), as the case may be, apply to a re-election made under subsection (3).

Trial

Marginal note:Indictment

• 566 (1) The trial of an accused for an indictable offence, other than a trial before a provincial court judge, shall be on an indictment in writing setting forth the offence with which he is charged.

• Marginal note:Preferring indictment

  (2) Where an accused elects under section 536 or re-elects under section 561 to be tried by a judge without a jury, an indictment in Form 4 may be preferred.

• Marginal note:What counts may be included and who may prefer indictment

  (3) Section 574 and subsection 576(1) apply, with such modifications as the circumstances require, to the preferring of an indictment pursuant to subsection (2).

Marginal note:Indictment — Nunavut

• 566.1 (1) The trial of an accused for an indictable offence, other than an indictable offence referred to in section 553 or an offence in respect of which the accused has elected or re-elected to be tried by a judge without a jury and in respect of which no party has requested a preliminary inquiry under subsection 536.1(3) or was not entitled to make such a request under that subsection, must be on an indictment in writing setting out the offence with which the accused is charged.

• Marginal note:Preferring indictment — Nunavut

  (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.

• Marginal note:What counts may be included and who may prefer indictment — Nunavut

  (3) Section 574 and subsection 576(1) apply, with any modifications that the circumstances require, to the preferring of an indictment under subsection (2).

• Marginal note:Application to Nunavut

  (4) This section, and not section 566, applies in respect of criminal proceedings in Nunavut.

General

Marginal note:Mode of trial when two or more accused

567 Despite any other provision of this Part, if two or more persons are jointly charged in an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the justice, provincial court judge or judge may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury.

Marginal note:Mode of trial if two or more accused — Nunavut

• 567.1 (1) Despite any other provision of this Part, if two or more persons are jointly charged in an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the justice of the peace or judge may decline to record any election, re-election or deemed election for trial by a judge without a jury.

• Marginal note:Application to Nunavut

  (2) This section, and not section 567, applies in respect of criminal proceedings in Nunavut.

Marginal note:Attorney General may require trial by jury

568 Even if an accused elects under section 536 or re-elects under section 561 or subsection 565(2) to be tried by a judge or provincial court judge, as the case may be, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge or provincial court judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536(4), unless one has already been held or the re-election was made under subsection 565(2).

Marginal note:Attorney General may require trial by jury — Nunavut

• 569 (1) Even if an accused elects under section 536.1 or re-elects under section 561.1 or subsection 565(2) to be tried by a judge without a jury, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536.1(3), unless one has already been held or the re-election was made under subsection 565(2).

• Marginal note:Application to Nunavut

  (2) This section, and not section 568, applies in respect of criminal proceedings in Nunavut.

Marginal note:Record of conviction or order

• 570 (1) If an accused who is tried under this Part is determined by a judge or provincial court judge to be guilty of an offence on acceptance of a plea of guilty or on a finding of guilt, the judge or provincial court judge, as the case may be, shall endorse the information accordingly and shall sentence the accused or otherwise deal with the accused in the manner authorized by law and, on request by the accused, the prosecutor, a peace officer or any other person, a conviction in Form 35 and a certified copy of it, or an order in Form 36 and a certified copy of it, shall be drawn up and the certified copy shall be delivered to the person making the request.

• Marginal note:Acquittal and record of acquittal

  (2) If an accused who is tried under this Part is found not guilty of an offence with which the accused is charged, the judge or provincial court judge, as the case may be, shall immediately acquit the accused in respect of that offence, an order in Form 37 shall be drawn up and, on request, a certified copy shall be drawn up and delivered to the accused.

• Marginal note:Transmission of record

  (3) Where an accused elects to be tried by a provincial court judge under this Part, the provincial court judge shall transmit the written charge, the memorandum of adjudication and the conviction, if any, into such custody as the Attorney General may direct.

• Marginal note:Proof of conviction, order or acquittal

  (4) A copy of a conviction in Form 35 or of an order in Form 36 or 37, certified by the judge or by the clerk or other proper officer of the court, or by the provincial court judge, as the case may be, or proved to be a true copy, is, on proof of the identity of the person to whom the conviction or order relates, sufficient evidence in any legal proceedings to prove the conviction of that person or the making of the order against that person or his acquittal, as the case may be, for the offence mentioned in the copy of the conviction or order.

• Marginal note:Warrant of committal

  (5) If an accused other than an organization is convicted, the judge or provincial court judge, as the case may be, shall issue a warrant of committal in Form 21, and section 528 applies in respect of a warrant of committal issued under this subsection.

• Marginal note:Admissibility of certified copy

  (6) If a warrant of committal is signed by a clerk of a court, a copy of the warrant of committal, certified by the clerk, is admissible in evidence in any proceeding.

Marginal note:Adjournment

571 A judge or provincial court judge acting under this Part may from time to time adjourn a trial until it is finally terminated.

Marginal note:Application of Parts XVI, XVIII, XX and XXIII

572 The provisions of Part XVI, the provisions of Part XVIII relating to transmission of the record by a provincial court judge where he holds a preliminary inquiry, and the provisions of Parts XX and XXIII, in so far as they are not inconsistent with this Part, apply, with such modifications as the circumstances require, to proceedings under this Part.

PART XIX.1Nunavut Court of Justice

Marginal note:Nunavut Court of Justice

• 573 (1) The powers to be exercised and the duties and functions to be performed under this Act by a court of criminal jurisdiction, a summary conviction court, a judge, a provincial court judge, a justice or a justice of the peace may be exercised or performed by a judge of the Nunavut Court of Justice.

• Marginal note:Status when exercising power

  (2) A power exercised or a duty or function performed by a judge of the Nunavut Court of Justice under subsection (1) is exercised or performed by that judge as a judge of a superior court.

• Marginal note:Interpretation

  (3) Subsection (2) does not authorize a judge of the Nunavut Court of Justice who is presiding at a preliminary inquiry to grant a remedy under section 24 of the Canadian Charter of Rights and Freedoms.

Marginal note:Application for review — Nunavut

• 573.1 (1) An application for review may be made by the Attorney General or the accused, or by any person directly affected by the decision or order, to a judge of the Court of Appeal of Nunavut in respect of a decision or order of a judge of the Nunavut Court of Justice

  • (a) relating to a warrant or summons;

  • (b) relating to the conduct of a preliminary inquiry, including an order under subsection 548(1);

  • (c) relating to a subpoena;

  • (d) relating to the publication or broadcasting of information or access to the court room for all or part of the proceedings;

  • (e) to refuse to quash an information or indictment; or

  • (f) relating to the detention, disposal or forfeiture of any thing seized under a warrant or order.

• Marginal note:Limitation

  (2) A decision or order may not be reviewed under this section if

  • (a) the decision or order is of a kind that could only be made in a province or a territory other than Nunavut by a superior court of criminal jurisdiction or a judge as defined in section 552; or

  • (b) another statutory right of review is available.

• Marginal note:Grounds of review

  (3) The judge of the Court of Appeal of Nunavut may grant relief under subsection (4) only if the judge is satisfied that

  • (a) in the case of any decision or order mentioned in subsection (1),

    • (i) the judge of the Nunavut Court of Justice failed to observe a principle of natural justice or failed or refused to exercise the judge’s jurisdiction, or

    • (ii) the decision or order was made as a result of an irrelevant consideration or for an improper purpose;

  • (b) in the case of a decision or order mentioned in paragraph (1)(a), that

    • (i) the judge failed to comply with a statutory requirement for the making of the decision or order,

    • (ii) the decision or order was made in the absence of any evidence that a statutory requirement for the making of the decision or order was met,

    • (iii) the decision or order was made as a result of reckless disregard for the truth, fraud, intentional misrepresentation of material facts or intentional omission to state material facts,

    • (iv) the warrant is so vague or lacking in particularity that it authorizes an unreasonable search, or

    • (v) the warrant lacks a material term or condition that is required by law;

  • (c) in the case of a decision or order mentioned in paragraph (1)(b), that the judge of the Nunavut Court of Justice

    • (i) failed to follow a mandatory provision of this Act relating to the conduct of a preliminary inquiry,

    • (ii) ordered the accused to stand trial when there was no evidence adduced on which a properly instructed jury acting reasonably could convict, or

    • (iii) discharged the accused when there was some evidence adduced on which a properly instructed jury acting reasonably could convict;

  • (d) in the case of a decision or order mentioned in paragraph (1)(c) or (d), that the judge of the Nunavut Court of Justice erred in law;

  • (e) in the case of a decision or order mentioned in paragraph (1)(e), that

    • (i) the information or indictment failed to give the accused notice of the charge,

    • (ii) the judge of the Nunavut Court of Justice did not have jurisdiction to try the offence, or

    • (iii) the provision creating the offence alleged to have been committed by the accused is unconstitutional; or

  • (f) in the case of a decision or order mentioned in paragraph (1)(f), that

    • (i) the judge failed to comply with a statutory requirement for the making of the decision or order,

    • (ii) the decision or order was made in the absence of any evidence that a statutory requirement for the making of the decision or order was met, or

    • (iii) the decision or order was made as a result of reckless disregard for the truth, fraud, intentional misrepresentation of material facts or intentional omission to state material facts.

• Marginal note:Powers of judge

  (4) On the hearing of the application for review, the judge of the Court of Appeal of Nunavut may do one or more of the following:

  • (a) order a judge of the Nunavut Court of Justice to do any act or thing that the judge or any other judge of that court failed or refused to do or has delayed in doing;

  • (b) prohibit or restrain a decision, order or proceeding of a judge of the Nunavut Court of Justice;

  • (c) declare invalid or unlawful, quash or set aside, in whole or in part, a decision, order or proceeding of a judge of the Nunavut Court of Justice;

  • (d) refer back for determination in accordance with any directions that the judge considers to be appropriate, a decision, order or proceeding of a judge of the Nunavut Court of Justice;

  • (e) grant any remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms;

  • (f) refuse to grant any relief if the judge is of the opinion that no substantial wrong or miscarriage of justice has occurred or that the subject-matter of the application should be determined at trial or on appeal; and

  • (g) dismiss the application.

• Marginal note:Interim orders

  (5) If an application for review is made, a judge of the Court of Appeal of Nunavut may make any interim order that the judge considers appropriate pending the final disposition of the application for review.

• Marginal note:Rules

  (6) A person who proposes to make an application for review shall do so in the manner and within the period that may be directed by rules of court, except that a judge of the Court of Appeal of Nunavut may at any time extend any period specified in the rules.

• Marginal note:Appeal

  (7) An appeal lies to the Court of Appeal of Nunavut against a decision or order made under subsection (4). The provisions of Part XXI apply, with any modifications that the circumstances require, to the appeal.