RIGHT TO REMAIN SILENT:”…whatever you say may be given in evidence against you at your trial…”
In Criminal Charges, Charter Jurisdiction is a very important point to keep in mind during preliminary inquiries, because a justice conducting a preliminary hearing is not “a court of competent jurisdiction” under the Canadian Charter of Rights and Freedoms (Charter), and has no power to grant remedies for Charter breaches. Those provisions also exclude power to make evidentiary rulings based on Charter violations.
Proceedings after the Crown’s case
An opportunity to call his or her own evidence at the conclusion of the Crown’s case is given to the accused, though an accused rarely testifies. Specific circumstances are there when the defence has wished to call other witnesses, for instance:
- To “discover” the evidence of a Crown witness the Crown has not called at the hearing;
- To preserve the evidence of a defence witness who might disappear; and
- To discover the potential evidence of a witness who is unwilling to be interviewed by the defence outside court.
The defence, before calling any witnesses, has to consider the power of the justice to order the accused to stand trial on offences revealed by the evidence, which have not been charged on the Information.
An unrepresented accused at the preliminary hearing is to be cautioned by the justice according to the Code: “You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.” On completion of the evidence, the justice has to provide the accused or his or her counsel an opportunity to make submissions, and also grant this right to the prosecutor or Crown counsel.
It is within the powers of the justice presiding at a preliminary inquiry to vary the bail of the accused (excepting that of an accused charged with a section 469 offence) in the following circumstances:
- Any time, with the consent of the parties; and
- On completion of the hearing.
It is an opportunity for defence to seek the release of a detained client before a justice familiar with the strength of the case.
When an accused absconds during the course of the preliminary inquiry, it has no effect thereon. Any time after arraignment and election, the hearing may continue in her or his absence to completion.
It is possible to waive the hearing at any stage of the proceedings, provided the Crown and the accused agree. In that event, the presiding justice will take no more evidence and order the accused to stand trial.
After the evidence is over, the preliminary inquiry justice is to commit the accused to trial on any offence for which there was any evidence upon which a reasonable jury properly instructed could return a verdict of guilty or where there is admissible evidence which could, if believed, result in a conviction. If the Crown relied upon direct evidence, the justice has to simply determine whether the Crown has led evidence going to every element of the offence, which is enough for committal. In a circumstantial case, the justice is to do some limited weighing of the whole of the evidence to determine whether, if believed, it would be reasonable for a properly instructed jury to infer guilt. This limited weighing is not the same as drawing inferences from facts or assessing the reliability or credibility of the evidence. Actually, the issue here is what inferences the whole of the evidence could support.
Other Offences discovered in the preliminary inquiry
If any “other” indictable offence, meaning not charged on the Information, in respect of the same transaction, or connected events is revealed by the evidence during the preliminary hearing, the justice can commit the accused to stand trial on that charge. This “other” offence has to be closely interwoven or related to the charged offences, but could be a more serious offence than any charged on the Information. Thus, a preliminary hearing held on a charge of second degree murder can turn into a committal to trial on a charge of first degree murder, if the evidence reveals any admissible evidence which, if believed, could support a finding of planning and deliberation. A justice is authorized to commit an accused to stand trial on Criminal Code charges revealed by the evidence even though the preliminary hearing is being held in regards to charges under some other Act such as the Income Tax Act for example. The justice can commit an accused to stand trial on any indictable or hybrid offence, even if the offence is one within the absolute jurisdiction of the Ontario Court of Justice, but will not commit an accused to stand trial on any purely summary offence.
In most occasions, a discharge at the preliminary inquiry will mark the end of the proceedings. It is also possible that with the Attorney General’s personal consent, the charge would become the subject of a “preferred” or direct indictment under section 577. Alternatively, the prosecutor may bring to light a new Information and start the process again. That would not amount to double jeopardy under section 11(h) of the Charter, or a successful plea of autrefois acquit, but may give rise to an abuse of process argument under section 7 of the Charter.