CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART XVIII PROCEDURE ON PRELIMINARY INQUIRY
Adjudication and Recognizances


Witness refusing to be bound

(4) Where a witness does not comply with subsection (1) or (3) when required to do so by a justice, he may be committed by the justice, by warrant in Form 24, to a prison in the territorial division where the trial is to be held, there to be kept until he does what is required of him or until the trial is concluded.

Discharge

(5) Where a witness has been committed to prison pursuant to subsection (4), the court before which the witness appears or a justice having jurisdiction in the territorial division where the prison is situated may, by order in Form 39, discharge the witness from custody when the trial is concluded.

R.S., 1985, c. C-46, s. 550; R.S., 1985, c. 27 (1st Supp.), s. 101.

Transmission of Record

Transmitting record

551. Where a justice orders an accused to stand trial, the justice shall forthwith send to the clerk or other proper officer of the court by which the accused is to be tried, the information, the evidence, the exhibits, the statement if any of the accused taken down in writing under section 541, 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.

R.S., 1985, c. C-46, s. 551; R.S., 1985, c. 27 (1st Supp.), s. 102.

PART XIX
INDICTABLE OFFENCES—TRIAL WITHOUT JURY

Interpretation

Definitions

552. In this Part,

"judge" juge

"judge" means,

(a) in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province,

(b) in the Province of Quebec, a judge of the Court of Quebec,

(c) in the Province of Nova Scotia, a judge of the superior court of criminal jurisdiction of the Province,

(d) in the Province of New Brunswick, a judge of the Court of Queen's Bench,

(e) in the Province of British Columbia, the Chief Justice or a puisne judge of the Supreme Court,

(f) in the Provinces of Prince Edward Island and Newfoundland, a judge of the Supreme Court,

(g) in the Province of Manitoba, the Chief Justice or a puisne judge of the Court of Queen's Bench,

(h) in the Provinces of Saskatchewan and Alberta, a judge of the superior court of criminal jurisdiction of the province, and

(i) in the Yukon Territory and the Northwest Territories, a judge of the Supreme Court.

"magistrate" [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 103]

R.S., 1985, c. C-46, s. 552; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), s. 103, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 6, c. 17, s. 13; 1992, c. 51, s. 38.

Jurisdiction of Provincial Court Judges

Absolute Jurisdiction

Absolute jurisdiction

553. The jurisdiction of a provincial court judge to try an accused is absolute and does not depend on the consent of the accused where the accused is charged in an information

(a) with

(i) theft, other than theft of cattle,

(ii) obtaining money or property by false pretences,

(iii) unlawfully having in his possession any property or thing or any proceeds of any property or thing knowing that all or a part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from the commission in Canada of an offence punishable by indictment or an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment,

(iv) having, by deceit, falsehood or other fraudulent means, defrauded the public or any person, whether ascertained or not, of any property, money or valuable security, or

(v) mischief under subsection 430(4),

where the subject-matter of the offence is not a testamentary instrument and the alleged value of the subject-matter of the offence does not exceed five thousand dollars;

(b) with counselling or with a conspiracy or attempt to commit or with being an accessory after the fact to the commission of

(i) any offence referred to in paragraph (a) in respect of the subject-matter and value thereof referred to in that paragraph, or

(ii) any offence referred to in paragraph (c); or

(c) with an offence under

(i) section 201 (keeping gaming or betting house),

(ii) section 202 (betting, pool-selling, book-making, etc.),

(iii) section 203 (placing bets),

(iv) section 206 (lotteries and games of chance),

(v) section 209 (cheating at play),

(vi) section 210 (keeping common bawdy-house),

(vii) subsection 259(4) (driving while disqualified),

(viii) section 393 (fraud in relation to fares),

(viii.1) section 811 (breach of recognizance),

(ix) subsection 733.1(1) (failure to comply with probation order),

(x) paragraph 4(4)(a) of the Controlled Drugs and Substances Act, or

(xi) subsection 5(4) of the Controlled Drugs and Substances Act.

R.S., 1985, c. C-46, s. 553; R.S., 1985, c. 27 (1st Supp.), s. 104; 1992, c. 1, s. 58; 1994, c. 44, s. 57; 1995, c. 22, s. 2; 1996, c. 19, s. 72; 1997, c. 18, s. 66.

Provincial Court Judge's Jurisdiction with Consent

Trial by provincial court judge with consent

554. (1) Where 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 provincial court judge has absolute jurisdiction under section 553, a provincial court judge may try the accused if the accused elects to be tried by a provincial court judge.

(2) to (4) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 105]

R.S., 1985, c. C-46, s. 554; R.S., 1985, c. 27 (1st Supp.), ss. 105, 203.

Provincial court judge may decide to hold preliminary inquiry

555. (1) Where in any proceedings under this Part an accused is before a provincial court judge and it appears to the provincial court judge that for any reason the charge should be prosecuted by indictment, he may, at any time before the accused has entered on his defence, decide not to adjudicate and shall thereupon inform the accused of his decision and continue the proceedings as a preliminary inquiry.

Where subject-matter is a testamentary instrument or exceeds $5,000 in value

(2) Where an accused is before a provincial court judge charged with an offence mentioned in paragraph 553(a) or subparagraph 553(b)(i), and, at any time before the provincial court judge makes an adjudication, the evidence establishes that the subject-matter of the offence is a testamentary instrument or that its value exceeds five thousand dollars, the provincial court judge shall put the accused to his or her election in accordance with subsection 536(2).

Continuing proceedings

(3) Where an accused is put to his election pursuant to subsection (2), the following provisions apply, namely,

(a) if the accused elects to be tried by a judge without a jury or a court composed of shall continue the proceedings as a preliminary inquiry under Part XVIII and, if he orders the accused to stand trial, the provincial court judge shall comply with subsection 536(4); and

(b) if the accused elects to be tried by a provincial court judge, the provincial court judge shall endorse on the information a record of the election and continue with the trial.

R.S., 1985, c. C-46, s. 555; R.S., 1985, c. 27 (1st Supp.), ss. 106, 203; 1994, c. 44, s. 58.

Corporation

556. (1) An accused corporation shall appear by counsel or agent.

Non-appearance

(2) Where an accused corporation does not appear pursuant to a summons and service of the summons on the corporation is proved, the provincial court judge

(a) may, if the charge is one over which he has absolute jurisdiction, proceed with the trial of the charge in the absence of the accused corporation; and

(b) shall, if the charge is not one over which he has absolute jurisdiction, hold a preliminary inquiry in accordance with Part XVIII in the absence of the accused corporation.

Corporation not electing

(3) Where an accused corporation appears but does not elect when put to an election under subsection 536(2), the provincial court judge shall hold a preliminary inquiry in accordance with Part XVIII.

R.S., 1985, c. C-46, s. 556; R.S., 1985, c. 27 (1st Supp.), s. 107.

Taking evidence

557. Where an accused is tried by a provincial court judge in accordance with this Part, the evidence of witnesses for the prosecutor and the accused shall be taken in accordance with the provisions of Part XVIII relating to preliminary inquiries.

R.S., 1985, c. C-46, s. 557; R.S., 1985, c. 27 (1st Supp.), s. 203.

Jurisdiction of Judges

Judge's Jurisdiction with Consent

Trial by judge without a jury

558. Where an accused who is charged with an indictable offence, other than an offence listed in section 469, elects under section 536 or re-elects under section 561 to be tried by a judge without a jury, the accused shall, subject to this Part, be tried by a judge without a jury.

R.S., 1985, c. C-46, s. 558; R.S., 1985, c. 27 (1st Supp.), s. 108.

Court of record

559. (1) A judge who holds a trial under this Part shall, for all purposes thereof and proceedings connected therewith or relating thereto, be a court of record.

Custody of records

(2) The record of a trial that a judge holds under this Part shall be kept in the court over which the judge presides.

R.S., c. C-34, s. 489.

Election

Duty of judge

560. (1) Where an accused elects, under section 536 to be tried by a judge without a jury, a judge having jurisdiction shall,

(a) on receiving a written notice from the sheriff or other person having custody of the accused stating that the accused is in custody and setting out the nature of the charge against him, or

(b) on being notified by the clerk of the court that the accused is not in custody and of the nature of the charge against him,

fix a time and place for the trial of the accused.

Notice by sheriff, when given

(2) The sheriff or other person having custody of the accused shall give the notice mentioned in paragraph (1)(a) within twenty-four hours after the accused is ordered to stand trial, if the accused is in custody pursuant to that order or if, at the time of the order, he is in custody for any other reason.

Duty of sheriff when date set for trial

(3) Where, pursuant to subsection (1), a time and place is fixed for the trial of an accused who is in custody, the accused

(a) shall be notified forthwith by the sheriff or other person having custody of the accused of the time and place so fixed; and

(b) shall be produced at the time and place so fixed.

Duty of accused when not in custody

(4) Where an accused is not in custody, the duty of ascertaining from the clerk of the court the time and place fixed for the trial, pursuant to subsection (1), is on the accused, and he shall attend for his trial at the time and place so fixed.

(5) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 109]

R.S., 1985, c. C-46, s. 560; R.S., 1985, c. 27 (1st Supp.), ss. 101(E), 109.

Right to re-elect

561. (1) An accused who elects or is deemed to have elected a mode of trial other than trial by a provincial court judge may re-elect

(a) at any time before or after the completion of the preliminary inquiry, with the written consent of the prosecutor, to be tried by a provincial court judge;

(b) at any time before the completion of the preliminary inquiry or before the fifteenth day following the completion of the preliminary inquiry, as of right, another mode of trial other than trial by a provincial court judge; and

(c) on or after the fifteenth day following the completion of the preliminary inquiry, any mode of trial with the written consent of the prosecutor.

Idem

(2) An accused who elects to be tried by a provincial court judge may, not later than fourteen days before the day first appointed for the trial, re-elect as of right another mode of trial, and may do so thereafter with the written consent of the prosecutor.

Notice

(3) Where an accused wishes to re-elect under subsection (1) before the completion of the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, where that consent is required, to the justice presiding at the preliminary inquiry who shall on receipt of the notice,

(a) in the case of a re-election under paragraph (1)(b), put the accused to his re-election in the manner set out in subsection (7); or

(b) where the accused wishes to re-elect under paragraph (1)(a) and the justice is not a provincial court judge, notify a provincial court judge or clerk of the court of the accused's intention to re-elect and send to the provincial court 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.

Idem

(4) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect together with the written consent of the prosecutor, where that consent is required, to the provincial court judge before whom the accused appeared and pleaded or to a clerk of the court.

Notice and transmitting record

(5) Where an accused wishes to re-elect under subsection (1) after the completion of the preliminary inquiry, the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, where that consent is required, to a judge or clerk of the court of his original election who shall, on receipt of the notice, notify the judge or provincial court judge 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 provincial court judge or clerk the information, the evidence, the exhibits and the statement, if any, of the accused taken down in writing under section 541 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 first-mentioned judge or clerk.

Time and place for re-election

(6) Where a provincial court judge or judge or clerk of the court is notified under paragraph (3)(b) or subsection (4) or (5) that the accused wishes to re-elect, the provincial court judge or judge shall forthwith appoint a time and place for the accused to re-elect and shall cause notice thereof to be given to the accused and the prosecutor.

Proceedings on re-election

(7) The accused shall attend or, if he is in custody, shall be produced at the time and place appointed under subsection (6) and shall, after

(a) the charge on which he has been ordered to stand trial or the indictment, where an indictment has been preferred pursuant to section 566, 574 or 577 or is filed with the court before which the indictment is to be preferred pursuant to section 577, or

(b) in the case of a re-election under subsection (1) before the completion of the preliminary inquiry or under subsection (2), the information

has been read to the accused, be put to his re-election in the following words or in words to the like effect:

You have given notice of your wish to re-elect the mode of your trial. You now have the option to do so. How do you wish to re-elect?

R.S., 1985, c. C-46, s. 561; R.S., 1985, c. 27 (1st Supp.), s. 110.

Proceedings following re-election

562. (1) Where the accused re-elects under paragraph 561(1)(a) before the completion of the preliminary inquiry or under subsection 561(1) after the completion of the preliminary inquiry, the provincial court judge or judge, as the case may be, shall proceed with the trial or appoint a time and place for the trial.

Idem

(2) Where the accused re-elects under paragraph 561(1)(b) before the completion of the preliminary inquiry or under subsection 561(2), the justice shall proceed with the preliminary inquiry.

R.S., 1985, c. C-46, s. 562; R.S., 1985, c. 27 (1st Supp.), s. 110.

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, subject to any amendments thereto 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.

R.S., 1985, c. C-46, s. 563; R.S., 1985, c. 27 (1st Supp.), s. 110.

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

Election deemed to have been made

565. (1) Where 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 accused was ordered to stand trial by a provincial court judge who, pursuant to subsection 555(1), continued the proceedings before him as a preliminary inquiry;

(b) the justice, provincial court judge or judge, as the case may be, declined pursuant to section 567 to record the election or re-election of the accused; or

(c) the accused does not elect when put to an election under section 536.

Where direct indictment preferred

(2) Where 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 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 and may, with the written consent of the prosecutor, re-elect to be tried by a judge without a jury.

Notice of re-election

(3) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect, together with the written consent of the prosecutor, to a judge or clerk of the court where the indictment has been filed or preferred who 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 the indictment and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, any summons or warrant issued under section 578, or any evidence taken before a coroner, that is in the possession of the first-mentioned judge or clerk.

Application

(4) Subsections 561(6) and (7) apply to a re-election made under subsection (3).

R.S., 1985, c. C-46, s. 565; R.S., 1985, c. 27 (1st Supp.), s. 111.

Trial

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.

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.

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).

R.S., 1985, c. C-46, s. 566; R.S., 1985, c. 27 (1st Supp.), s. 111; 1997, c. 18, s. 67.

General

Mode of trial where two or more accused

567. Notwithstanding any other provision of this Part, where two or more persons are charged with the same offence, unless all of them elect or re-elect or are deemed to have elected, as the case may be, the same mode of trial, the justice, provincial court judge or judge

(a) may decline to record any election, re-election or deemed election for trial by a provincial court judge or a judge without a jury; and

(b) if he declines to do so, shall hold a preliminary inquiry unless a preliminary inquiry has been held prior to the election, re-election or deemed election.

R.S., 1985, c. C-46, s. 567; R.S., 1985, c. 27 (1st Supp.), s. 111.


 

CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART XVIII PROCEDURE ON PRELIMINARY INQUIRY
Adjudication and Recognizances