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 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.

Marginal note:Prosecutor may prefer indictment

• 574. (1) Subject to subsection (3), the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of

  • (a) any charge on which that person was ordered to stand trial; or

  • (b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial.

• Marginal note:Preferring indictment when no preliminary inquiry requested

  (1.1) If a person has not requested a preliminary inquiry under subsection 536(4) or 536.1(3) into the charge, the prosecutor may, subject to subsection (3), prefer an indictment against a person in respect of a charge set out in an information or informations, or any included charge, at any time after the person has made an election, re-election or deemed election on the information or informations.

• Marginal note:Preferring single indictment

  (1.2) If indictments may be preferred under both subsections (1) and (1.1), the prosecutor may prefer a single indictment in respect of one or more charges referred to in subsection (1) combined with one or more charges or included charges referred to in subsection (1.1).

• Marginal note:Consent to inclusion of other charges

  (2) An indictment preferred under any of subsections (1) to (1.2) may, if the accused consents, include a charge that is not referred to in those subsections, and the offence charged may be dealt with, tried and determined and punished in all respects as if it were an offence in respect of which the accused had been ordered to stand trial. However, if the offence was committed wholly in a province other than that in which the accused is before the court, subsection 478(3) applies.

• Marginal note:Private prosecutor requires consent

  (3) In a prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene, an indictment may not be preferred under any of subsections (1) to (1.2) before a court without the written order of a judge of that court.

Marginal note:Direct indictments

577. Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if

• (a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or

• (b) in any other case, a judge of the court so orders.

Marginal note:When Attorney General does not stay proceedings

579.01 If the Attorney General intervenes in proceedings and does not stay them under section 579, he or she may, without conducting the proceedings, call witnesses, examine and cross-examine witnesses, present evidence and make submissions.

• Marginal note:Election deemed to be waived

  (2) An accused who, under subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 536 or 536.1 to be tried without a jury by a judge of the court where the accused was indicted and section 561 or 561.1, as the case may be, does not apply in respect of the accused.

• Marginal note:Mandatory pre-trial hearing for jury trials

  (2) In any case to be tried with a jury, a judge of the court before which the accused is to be tried shall, before the trial, order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by a judge of that court, be held in accordance with the rules of court made under sections 482 and 482.1 to consider any matters that would promote a fair and expeditious trial.

Marginal note:Presiding judge

626.1 The judge before whom an accused is tried may be either the judge who presided over matters pertaining to the selection of a jury before the commencement of a trial or another judge of the same court.

• (b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or

Marginal note:Calling jurors who have stood by

• 641. (1) If a full jury and any alternate jurors have not been sworn and no names remain to be called, the names of those who have been directed to stand by shall be called again in the order in which their names were drawn and the jurors necessary to make a full jury and any alternate jurors shall be sworn, unless excused by the judge or challenged by the accused or the prosecutor.

Marginal note:Summoning other jurors when panel exhausted

• 642. (1) If a full jury and any alternate jurors considered advisable cannot be provided notwithstanding that the relevant provisions of this Part have been complied with, the court may, at the request of the prosecutor, order the sheriff or other proper officer to summon without delay as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury and alternate jurors.

Marginal note:Substitution of alternate jurors

• 642.1 (1) Alternate jurors shall attend at the commencement of the trial and, if there is not a full jury present, alternate jurors shall be substituted, in the order in which their names were drawn under subsection 631(3), until there are twelve jurors.

• Marginal note:Excusing of alternate jurors

  (2) An alternate juror who is not required as a substitute shall be excused.

Marginal note:Who shall be jury

• 643. (1) The twelve jurors who are sworn in accordance with this Part and present at the commencement of the trial shall be the jury to try the issues of the indictment.

• Marginal note:Names of jurors

  (1.1) The name of each juror, including alternate jurors, who is sworn shall be kept apart until the juror is excused or the jury gives its verdict or is discharged, at which time the name shall be returned to the box as often as occasion arises, as long as an issue remains to be tried before a jury.

Marginal note:Taking evidence

646. On the trial of an accused for an indictable offence, the evidence of the witnesses for the prosecutor and the accused and the addresses of the prosecutor and the accused or counsel for the accused by way of summing up shall be taken in accordance with the provisions of Part XVIII, other than subsections 540(7) to (9), relating to the taking of evidence at preliminary inquiries.

Marginal note:Accused to be present

• 650. (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than a corporation, shall be present in court during the whole of his or her trial.

Marginal note:Designation of counsel of record

• 650.01 (1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court.

• Marginal note:Contents of designation

  (2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel.

• Marginal note:Effect of designation

  (3) If a designation is filed,

  • (a) the accused may appear by the designated counsel without being present for any part of the proceedings, other than

    • (i) a part during which oral evidence of a witness is taken,

    • (ii) a part during which jurors are being selected, and

    • (iii) an application for a writ of habeas corpus;

  • (b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and

  • (c) a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise.

• Marginal note:When court orders presence of accused

  (4) If the court orders the accused to be present otherwise than by appearance by the designated counsel, the court may

  • (a) issue a summons to compel the presence of the accused and order that it be served by leaving a copy at the address contained in the designation; or

  • (b) issue a warrant to compel the presence of the accused.

Marginal note:Technological appearance

650.02 The prosecutor or the counsel designated under section 650.01 may appear before the court by any technological means satisfactory to the court that permits the court and all counsel to communicate simultaneously.

• Marginal note:Notice for expert testimony

  (3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,

  • (a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by

    • (i) the name of the proposed witness,

    • (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and

    • (iii) a statement of the qualifications of the proposed witness as an expert;

  • (b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties

    • (i) a copy of the report, if any, prepared by the proposed witness for the case, and

    • (ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and

  • (c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).

• Marginal note:If notices not given

  (4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,

  • (a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;

  • (b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and

  • (c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so.

• Marginal note:Additional court orders

  (5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following:

  • (a) adjourn the proceedings;

  • (b) order that further particulars be given of the evidence of the proposed witness; and

  • (c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.

• Marginal note:Use of material by prosecution

  (6) If the proposed witness does not testify, the prosecutor may not produce material provided to him or her under paragraph (3)(c) in evidence without the consent of the accused.

• Marginal note:No further disclosure

  (7) Unless otherwise ordered by a court, information disclosed under this section in relation to a proceeding may only be used for the purpose of that proceeding.