|
|
(b) whether the accused or the prosecutor
has requested that a preliminary inquiry be
held.
|
|
| Preliminary
inquiry if two
or more
accused
|
(4.1) If two or more persons are jointly
charged in an information and one or more of
them make a request for a preliminary inquiry
under subsection (3), a preliminary inquiry
must be held with respect to all of them.
|
|
| Procedure if
accused elects
trial by
judge -
Nunavut
|
(4.2) If no request for a preliminary inquiry
is made under subsection (3),
|
|
|
|
(a) if the accused is before a justice of the
peace, the justice of the peace shall remand
the accused to appear and plead to the
charge before a judge; or
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|
|
(b) if the accused is before a judge, the judge
shall
|
|
|
|
(i) if the accused elects to be tried by a
judge without a jury, call on the accused
to plead to the charge and if the accused
does not plead guilty, proceed with the
trial or fix a time for the trial, or
|
|
|
|
(ii) if the accused elects or is deemed to
have elected to be tried by a court
composed of a judge and jury, fix a time
for the trial.
|
|
| Jurisdiction
- Nunavut
|
(5) If a justice of the peace before whom a
preliminary inquiry is being or is to be held has
not commenced to take evidence, any justice
of the peace having jurisdiction in Nunavut
has jurisdiction for the purpose of subsection
(3).
|
|
|
|
27. The Act is amended by adding the
following after section 536.1:
|
|
| Elections and
re-elections in
writing
|
536.2 An election or a re-election by an
accused in respect of a mode of trial may be
made by submission of a document in writing
without the personal appearance of the
accused.
|
|
|
|
|
|
| Statement of
issues and
witnesses
|
536.3 If a request for a preliminary inquiry
is made, the prosecutor or, if the request was
made by the accused, counsel for the accused
shall, within the period fixed by rules of court
made under section 482 or 482.1 or, if there are
no such rules, by the justice, provide the court
and the other party with a statement that
identifies
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|
|
|
(a) the issues on which the requesting party
wants evidence to be given at the inquiry;
and
|
|
|
|
(b) the witnesses that the requesting party
wants to hear at the inquiry.
|
|
| Order for
hearing
|
536.4 (1) The justice before whom a
preliminary inquiry is to be held may order, on
application of the prosecutor or the accused or
on the justice's own motion, that a hearing be
held, within the period fixed by rules of court
made under section 482 or 482.1 or, if there are
no such rules, by the justice, to
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|
|
|
(a) assist the parties to identify the issues on
which evidence will be given at the inquiry;
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|
|
(b) assist the parties to identify the
witnesses to be heard at the inquiry, taking
into account the witnesses' needs and
circumstances; and
|
|
|
|
(c) encourage the parties to consider any
other matters that would promote a fair and
expeditious inquiry.
|
|
| Agreement to
be recorded
|
(2) When the hearing is completed, the
justice shall record any admissions of fact
agreed to by the parties and any agreement
reached by the parties.
|
|
| Agreement to
limit scope of
preliminary
inquiry
|
536.5 Whether or not a hearing is held under
section 536.4 in respect of a preliminary
inquiry, the prosecutor and the accused may
agree to limit the scope of the preliminary
inquiry to specific issues. An agreement shall
be filed with the court or recorded under
subsection 536.4(2), as the case may be.
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|
|
|
28. (1) Paragraph 537(1)(i) of the Act is
replaced by the following:
|
|
|
|
(i) regulate the course of the inquiry in any
way that appears to the justice to be
consistent with this Act and that, unless the
justice is satisfied that to do so would be
contrary to the best interests of the
administration of justice, is in accordance
with any admission of fact or agreement
recorded under subsection 536.4(2) or
agreement made under section 536.5;
|
|
|
|
(2) Subsection 537(1) of the Act is
amended by striking out the word ``and'' at
the end of paragraph (j) and by adding the
following after paragraph (j):
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|
|
|
(j.1) permit, on the request of the accused,
that the accused be out of court during the
whole or any part of the inquiry on any
conditions that the justice considers
appropriate; and
|
|
|
|
(3) Section 537 of the Act is amended by
adding the following after subsection (1):
|
|
| Inappropriate
questioning
|
(1.1) A justice acting under this Part shall
order the immediate cessation of any part of an
examination or cross-examination of a
witness that is, in the opinion of the justice,
abusive, too repetitive or otherwise
inappropriate.
|
|
|
|
29. (1) Paragraph 540(1)(a) of the Act is
replaced by the following:
|
|
|
|
(a) take the evidence under oath of the
witnesses called on the part of the
prosecution and allow the accused or
counsel for the accused to cross-examine
them; and
|
|
|
|
(2) Section 540 of the Act is amended by
adding the following after subsection (6):
|
|
| Evidence
|
(7) A justice acting under this Part may
receive as evidence any information that
would not otherwise be admissible but that the
justice considers credible or trustworthy in the
circumstances of the case, including a
statement that is made by a witness in writing
or otherwise recorded.
|
|
| Notice of
intention to
tender
|
(8) Unless the justice orders otherwise, no
information may be received as evidence
under subsection (7) unless the party has given
to each of the other parties reasonable notice
of his or her intention to tender it, together
with a copy of the statement, if any, referred
to in that subsection.
|
|
| Appearance
for
examination
|
(9) The justice shall, on application of a
party, require any person whom the justice
considers appropriate to appear for
examination or cross-examination with
respect to information intended to be tendered
as evidence under subsection (7).
|
|
| R.S., c. 27
(1st Supp.),
s. 101(3)
(Sch. II, s. 3)
|
30. Subsection 549(2) of the Act is
replaced by the following:
|
|
| Limited
preliminary
inquiry
|
(1.1) If the prosecutor and the accused agree
under section 536.5 to limit the scope of a
preliminary inquiry to specific issues, the
justice, without recording evidence on any
other issues, may order the accused to stand
trial in the court having criminal jurisdiction.
|
|
| Procedure
|
(2) If an accused is ordered to stand trial
under this section, the justice shall endorse on
the information a statement of the consent of
the accused and the prosecutor, and the
accused shall after that be dealt with in all
respects as if ordered to stand trial under
section 548.
|
|
| 1999, c. 3,
s. 38
|
31. Subsection 554(2) of the Act is
replaced by the following:
|
|
| Nunavut
|
(2) With respect to criminal proceedings in
Nunavut, if an accused is charged in an
information with an indictable offence other
than an offence that is mentioned in section
469 and the offence is not one over which a
judge of the Nunavut Court of Justice has
absolute jurisdiction under section 553, a
judge of the Nunavut Court of Justice may try
the accused if the accused elects to be tried by
a judge without a jury.
|
|
| R.S., c. 27
(1st Supp.),
s. 106
|
32. Paragraph 555(3)(a) of the Act is
replaced by the following:
|
|
|
|
(a) if the accused elects to be tried by a
judge without a jury or a court composed of
a judge and jury or does not elect when put
to his or her election, the provincial court
judge shall continue the proceedings as a
preliminary inquiry under Part XVIII and,
if the provincial court judge orders the
accused to stand trial, he or she shall
endorse on the information a record of the
election; and
|
|
| 1999, c. 3,
s. 39
|
33. Subsections 555.1(3) and (4) of the Act
are replaced by the following:
|
|
| Continuation
as preliminary
inquiry -
Nunavut
|
(3) A judge shall continue the proceedings
as a preliminary inquiry under Part XVIII if
the accused is put to an election under
subsection (2) and elects to be tried by a judge
without a jury and requests a preliminary
inquiry under subsection 536.1(3) or elects to
be tried by a court composed of a judge and
jury or does not elect when put to the election.
|
|
| Continuing
proceedings
- Nunavut
|
(4) If an accused is put to an election under
subsection (2) and elects to be tried by a judge
without a jury and does not request a
preliminary inquiry under subsection
536.1(3), the judge shall endorse on the
information a record of the election and
continue with the trial.
|
|
| R.S., c. 27
(1st Supp.),
s. 107
|
34. (1) Paragraph 556(2)(b) of the Act is
replaced by the following:
|
|
|
|
(b) shall, if the charge is not one over which
he or she has absolute jurisdiction, fix the
date for the trial or the date on which the
accused corporation must appear in the trial
court to have that date fixed.
|
|
| 1999, c. 3,
s. 40(2)
|
(2) Subsection 556(3) of the Act is
replaced by the following:
|
|
| Preliminary
inquiry not
requested
|
(3) If an accused corporation appears and a
preliminary inquiry is not requested under
subsection 536(4), the provincial court judge
shall fix the date for the trial or the date on
which the corporation must appear in the trial
court to have that date fixed.
|
|
| Preliminary
inquiry not
requested -
Nunavut
|
(4) If an accused corporation appears and a
preliminary inquiry is not requested under
subsection 536.1(3), the justice of the peace or
the judge of the Nunavut Court of Justice shall
fix the date for the trial or the date on which the
corporation must appear in the trial court to
have that date fixed.
|
|
| 1999, c. 3,
s. 41
|
35. Section 557 of the Act is replaced by
the following:
|
|
| Taking
evidence
|
557. If an accused is tried by a provincial
court judge or a judge of the Nunavut Court of
Justice in accordance with this Part, the
evidence of witnesses for the prosecutor and
the accused must be taken in accordance with
the provisions of Part XVIII, other than
subsections 540(7) to (9), relating to
preliminary inquiries.
|
|
| 1999, c. 3,
s. 42
|
36. The portion of subsection 560(1) of
the Act before paragraph (a) is replaced by
the following:
|
|
| Duty of judge
|
560. (1) If an accused elects, under section
536 or 536.1, to be tried by a judge without a
jury, a judge having jurisdiction shall
|
|
| R.S., c. 27
(1st Supp.),
s. 110
|
37. Subsection 561(2) of the Act is
replaced by the following:
|
|
| Right to
re-elect
|
(2) An accused who elects to be tried by a
provincial court judge or who does not request
a preliminary inquiry under subsection 536(4)
may, not later than 14 days before the day first
appointed for the trial, re-elect as of right
another mode of trial, and may do so after that
time with the written consent of the
prosecutor.
|
|
| 1999, c. 3,
s. 43
|
38. (1) Subsections 561.1(1) to (3) of the
Act are replaced by the following:
|
|
| Right to
re-elect with
consent -
Nunavut
|
561.1 (1) An accused who has elected or is
deemed to have elected a mode of trial may
re-elect any other mode of trial at any time
with the written consent of the prosecutor.
|
|
| Right to
re-elect before
trial -
Nunavut
|
(2) An accused who has elected or is
deemed to have elected a mode of trial but has
not requested a preliminary inquiry under
subsection 536.1(3) may, as of right, re-elect
to be tried by any other mode of trial at any
time up to 14 days before the day first
appointed for the trial.
|
|
| Right to
re-elect at
preliminary
inquiry -
Nunavut
|
(3) An accused who has elected or is
deemed to have elected a mode of trial and has
requested a preliminary inquiry under
subsection 536.1(3) may, as of right, re-elect
to be tried by the other mode of trial at any
time before the completion of the preliminary
inquiry or before the 15th day after its
completion.
|
|
| 1999, c. 3,
s. 43
|
(2) Subsections 561.1(5) to (7) of the Act
are replaced by the following:
|
|
| Notice at
preliminary
inquiry -
Nunavut
|
(5) If at a preliminary inquiry an accused
wishes to re-elect under subsection (1) or (3)
to be tried by a judge without a jury but does
not wish to request a preliminary inquiry
under subsection 536.1(3), the presiding
justice of the peace shall notify a judge or a
clerk of the Nunavut Court of Justice of the
accused's intention to re-elect and send to the
judge or clerk the information and any
promise to appear, undertaking or
recognizance given or entered into in
accordance with Part XVI, or any evidence
taken before a coroner, that is in the possession
of the justice of the peace.
|
|
| Notice when
no
preliminary
inquiry or
preliminary
inquiry
completed -
Nunavut
|
(6) If an accused who has not requested a
preliminary inquiry under subsection 536.1(3)
or who has had one wishes to re-elect under
this section, the accused shall give notice in
writing of the wish to re-elect together with
the written consent of the prosecutor, if that
consent is required, to the judge before whom
the accused appeared and pleaded or to a clerk
of the Nunavut Court of Justice.
|
|
| 1999, c. 3,
s. 44
|
39. Subsections 562.1(1) and (2) of the Act
are replaced by the following:
|
|
| Proceedings
following
re-election -
Nunavut
|
562.1 (1) If the accused re-elects under
subsection 561.1(1) to be tried by a judge
without a jury and does not request a
preliminary inquiry under subsection
536.1(3), the judge shall proceed with the trial
or appoint a time and place for the trial.
|
|
| Proceedings
following
re-election -
Nunavut
|
(2) If the accused re-elects under section
561.1 before the completion of the
preliminary inquiry to be tried by a judge
without a jury or by a court composed of a
judge and jury, and requests a preliminary
inquiry under subsection 536.1(3), the justice
of the peace or judge shall proceed with the
preliminary inquiry.
|
|
| 1999, c. 3,
s. 45
|
40. The portion of subsection 563.1(1) of
the Act before paragraph (a) is replaced by
the following:
|
|
| 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),
|
|
| R.S., c. 27
(1st Supp.),
s. 111
|
41. Subsection 565(2) of the Act is
replaced by the following:
|
|
| When direct
indictment
preferred
|
(2) If an accused is to be tried after an
indictment has been preferred against the
accused pursuant to 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 both 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) and may, with the written consent
of the prosecutor, re-elect to be tried by a judge
without a jury without a preliminary inquiry.
|
|
| 1999, c. 3,
s. 47
|
42. Subsections 566.1(1) and (2) of the Act
are replaced by the following:
|
|
| 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), must be on an indictment in writing
setting out the offence with which the accused
is charged.
|
|
| 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.
|
|
| R.S., c. 27 (1st
Supp), s. 111;
1999, c. 3,
s. 48
|
43. Sections 567 to 568 of the Act are
replaced by the following:
|
|
| 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.
|
|
| 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.
|
|
| Application to
Nunavut
|
(2) This section, and not section 567,
applies in respect of criminal proceedings in
Nunavut.
|
|
| Attorney
General may
require trial
by jury
|
568. Even if an accused elects under section
536 or re-elects under section 561 to be tried
by a judge or provincial court judge, 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.
|
|
| 1999, c. 3,
s. 49
|
44. Subsection 569(1) of the Act is
replaced by the following:
|
|
| 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
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.
|
|