If two or more persons are jointly charged on an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the Justice may decline to record any election, re-election or deemed election for trial by a provincial court Judge or a Judge without a jury. The accused is deemed to have elected to be tried by a court composed of a Judge and jury if the provincial court Judge declines to record the accused’s election pursuant to section 567.
The accused is deemed to have elected to be tried by a court composed of a Judge and jury if ordered to stand trial by a provincial court Judge who continues the proceedings as a preliminary inquiry pursuant to section 555 of the Code, or, if the accused refuses to elect pursuant to section 536 of the Code.
The practical effect is that, in circumstances where there are multiple accused, any accused who elects to be tried by a higher forum causes the court receiving the various elections to insist that all accused be tried in the same forum, that is, at the highest level. For example, if four persons are to be tried together and one of the four persons elects to be tried by a court composed of a Judge and jury, even if the other three accused elect to be tried by a Superior Court Judge sitting without a jury, the court receiving the elections, will refuse to record the choice of the three accused and register an election of Judge and jury for all four accused.
This re-election procedure effectively prevents persons who are joined together by the prosecution from splitting or severing their charges from other jointly charged accused. The court may, where it is satisfied that the interests of Justice so require, order that the accused be tried separately on one or more of the counts; and where there is more than one accused, that one or more of them be tried separately on one or more of the counts, but only after a successful application pursuant to subsection 591(3) of the Code.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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