Author: Michael Ducharme

Patrick Ducharme

Expert evidence may be given by means of a report accompanied by the affidavit or solemn declaration of the expert, setting out in particular the qualifications of the person as an expert and with reasonable notice of the intention to produce it in evidence as long as the party intending to produce the report in evidence has also given the other party a copy of the affidavit or solemn declaration, and, the court recognizes that person as an expert. This method of producing expert evidence by means of a report is an exception to the hearsay rule. The notice is to be given thirty days before trial, or, “such other period as fixed by the Judge.”
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Patrick Ducharme

Fixing an arbitrary time limitation on cross-examination of a witness constitutes a refusal to exercise jurisdiction that can be cured by a mandamus order. Subsection 540(1)(a) permits the right of cross-examination of any witness called by the Crown. The right of cross-examination contemplated is that of full, detailed and careful cross-examination.
Continue reading “Right to Cross-Examine at Preliminary Inquiry”

Patrick J Ducharme

A Dawson application refers to a request by defence counsel at a preliminary inquiry to cross-examine police witnesses on affidavits filed in support of a wiretap authorization or in support of an application for a search warrant. A Garofoli application is the same application at trial. In Dawson1 defence lawyers sought to cross-examine police witnesses on affidavits filed in support of a wiretap authorization at a preliminary hearing.
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Patrick Ducharme

Prior to recent amendments of the Code, there would be a preliminary inquiry whenever the accused elected to be tried in a court other than the Provincial Court. Now, a request has to be made in order to have a preliminary inquiry. If a request for a preliminary inquiry is made, the prosecutor, or, if the request is 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 the issues on which the requesting party wants evidence to be given at the inquiry; and the witnesses that the requesting party wants to hear at the inquiry.1 It is the party who requests the preliminary inquiry who is required to file a statement of issues and requested witnesses. As a matter of practice, generally, both parties file this statement with the court.
Continue reading “Hearing Must Be Requested 536.3”

Patrick Ducharme

Although a Justice at a preliminary inquiry has no jurisdiction to entertain Charter applications, a Justice at a preliminary may nevertheless consider Charter “values” in exercising their statutory powers. For example, this consideration of Charter values by a Justice at a preliminary was considered in relation to making orders directed at witnesses such as wearing a hijab in court. The Justice was entitled to consider Charter values in permitting the witness to wear the hijab as part of the Justice’s powers to regulate the proceeding.
A Judge or Justice presiding at a preliminary hearing may be considered a “creation of statute” because the Judge is limited to the powers specifically outlined in the Criminal Code provisions; possessing no more than but also no less than the powers specifically provided beginning at section 537 of the Code.2 If the powers are not found within the provisions of Part XVIII then they do not exist. For example, the power to order production of a statement via section 10 of the Canada Evidence Act is limited to the circumstance of a “trial” and therefore a preliminary hearing Judge does not have the power to order production of a statement.
Continue reading “The Role of the Judge in a Preliminary Healing”

Patrick Ducharme

Section 548 provides the test: to determine if there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

The duty imposed upon a Justice under section 548 is the same duty that governs a trial Judge sitting with a jury in deciding whether the evidence is insufficient to the point that a directed verdict of acquittal should be ordered, and, is also the same duty imposed upon a Judge asked to decide on whether a person should be extradited.
Continue reading “The Purpose of a Preliminary Healing”

Patrick Ducharme

The Judge presiding over a preliminary inquiry must decide whether the accused should be committed to trial or be discharged. This determination is described in section 548 of the Code. An order of committal to trial is made when the Justice presiding is of the opinion that there is “sufficient evidence” to put the accused on trial for the offence charged, or, any other indictable offence in respect of the same transaction. This finding results in an order to “stand trial.” The prosecutor who is seeking to obtain an order that the accused stand trial must produce sufficient evidence of the charge(s) before the court or any other indictable offence in respect of the same transaction.
If, however, the presiding Justice is of the opinion, on the whole of the evidence, that there is not sufficient evidence to put the accused on trial for the offence charged, or any other indictable offence in respect to the same transaction, the Justice will “discharge” the accused. A discharge order by the Justice at the completion of a preliminary inquiry is not the same as an acquittal.
Continue reading “Preliminary Hearings: The Test for Committal”

Patrick J Ducharme

To read about strategies and tactical considerations for preliminary hearings, see chapter four of my book, Criminal Trial Strategies.

Overview

The basic function of a preliminary hearing is to determine whether the case moves on (an order of committal) or stops (an order of discharge).

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Patrick Ducharme

A significant decision by the Ontario Court of Appeal is R. v. McCallen1. In this case the court held that the subsection 10(b) right to counsel includes the right to retain counsel of choice and to be represented by that counsel throughout the proceedings. Justice O’Connor, for the court, provided the following analysis of this subsection 10(b) right:
Continue reading “Pre-trials: Summary”