Procedural rules for preliminary inquiries are given in Part 18 of the Criminal Code (Code). In order to protect an accused from being subjected to a public trial improperly or unnecessarily, a preliminary inquiry (or hearing) is held to ensure that the Crown has sufficient evidence to warrant a trial. Primarily and most importantly, a charge-screening device, the preliminary inquiries serve a host of other functions benefitting the defence, the Crown, and the administration of justice. Besides the possibility of putting an end to the proceedings by having the accused discharged, the primary benefit (from a defence point of view) of the hearing is as a tool for discovery and trial preparation. Consequently, questioning and testing of witnesses can be done; information helpful in preparing the case or pre-trial motions can be gathered by the defence; and the issues on trial can be narrowed and focused.
A preliminary hearing is useful to the Crown as a discovery tool because it opens a window of opportunity to see the defence reveal their tactics in their conduct of the hearing. It also provides the Crown with an opportunity to create a helpful record from which to refresh a witness’s memory at trial. Moreover, at the time of the hearing, the deficiencies in the Crown’s preparations for trial become apparent, and this could lead to a resolution without trial. As evidence taken at a preliminary hearing is admissible at trial, it can be used when a witness has died or is unable or unwilling to testify at trial. Having regard to this fact, the hearing could very well serve the purpose of preserving evidence that would otherwise be unavailable. Thus a preliminary hearing serves both the Crown and defence, facilitating the resolution of cases or at least the narrowing of issues. Another advantage is that it also reduces the chances of surprises (mostly unpleasant) at trial and the delay that these surprises may cause.
All cases to be tried in the Superior Court of Justice are allowed to have a preliminary hearing.
In the following circumstances, either the Crown or the defence may request a hearing where:
- When the offence is indictable or is a hybrid offence for which the Crown has elected to proceed by indictment; and
- The accused elects a trial in the Superior Court of Justice (judge alone or with judge and jury) or the offence is within the absolute jurisdiction of the Superior Court.
When nobody wants a preliminary hearing, the accused will be remanded directly to the Superior Court where a trial date will be set. However, if any one of the multiple accused on a single Information requests a preliminary hearing, a preliminary hearing will be held in respect of all the accused.
Issues and focus
Provisions designed to streamline preliminary inquiries by encouraging both the Crown and the defence to focus the hearing on essential issues are given in Part 18 of the Code. The party requesting the preliminary hearing has to identify the witnesses and the issues on which he or she wants to hear evidence. Moreover, any party can apply to have a focus hearing before the preliminary hearing judge. In addition, the court can also order a focus hearing on its own motion. Its purpose is to help the parties identify the issues on which evidence will be given at the preliminary hearing, as well as the witnesses to be heard from, and to “encourage the parties to consider any other matters that would promote a fair and expeditious inquiry”. However, it is possible for the parties to limit the scope of the hearing to specific issues, even without a focus hearing.
If the accused has not been arraigned already, it is to be done before the preliminary inquiry judge commences the proceedings with the accused and put to his or her election regarding the mode of trial. The accused is not required to enter a plea.
Before calling for evidence, defence generally requests for an order (usually granted) excluding witnesses. The order can be refused, but the officer in charge of the case assisting the Crown in court is always an exception. The defence generally request for an order under section 539 of the Code prohibiting the publication of any of the evidence from the preliminary hearing to protect their clients’ right to a fair trial and untainted jury. If the order is requested before any evidence is called, the justice has no jurisdiction to refuse the request. Similarly, the Crown could also request for a ban, which the justice might or might not grant. When a publication ban is ordered, it operates until the accused is discharged or until the end of the trial. An unrepresented accused is to be informed by the presiding justice of the right to apply for a publication ban. It is expected that the accused will be present at the preliminary hearing whenever evidence is taken, but the justice can permit an accused to be absent for the whole or part of the inquiry. An accused is permitted to sit at counsel table (if permission is sought), provided there is no proven security risk.
The evidence commences with the Crown calling its witnesses. Then the defence is given an opportunity to cross-examine. Having regard to the multiple purposes of the hearing beyond a simple charge-screening, the Crown may choose to call more witnesses than necessary to obtain an order for the accused to stand trial, and the justice is not authorized to prevent them from doing so. Though the right to cross-examine includes the right to a full, detailed, and careful cross-examination, the presiding justice can make evidentiary rulings, and curtail a cross-examination that is abusive, too repetitive, or otherwise inappropriate. Considering that the right to cross-examine is that of the “accused or his counsel”, an exception is made in the case of a cross-examination of a child complainant on a violent or sexual offence where, if an accused is unrepresented, the judge is to appoint counsel to conduct the cross-examination.
If a witness is unable to come to court to testify due to disability or “some other good and sufficient cause,” one of the parties can apply to the justice presiding at the hearing for an order appointing a commissioner to take the evidence of the witness. The application may also be made to a Superior Court judge. When the witness is outside Canada, the application for the appointment of a commissioner has to be made to a Superior Court judge. The resulting evidence is admissible at trial, as well as at the preliminary inquiry.
If the confessional statement is proven to be voluntary beyond a reasonable doubt, the Crown may lead evidence of an accused person’s confession at the preliminary hearing. Should the Crown choose not to lead the statement, the defence could still cross-examine police witnesses about the circumstances of the taking of the statement, an exercise that may prove helpful when the admissibility of the statement arises at trial. There is to be no publication of a confession or the fact that one was tendered at the preliminary hearing, even when the standard publication ban has not been applied.
Knowing when and how to conduct a preliminary hearing can be the first step to obtaining your acquittal. Call the lawyers at Levy Zavet PC the next time you are charged with a criminal offence.