Author: Michael Ducharme

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 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”

Patrick Ducharme

The right of an accused to retain counsel of choice has long been recognized as a fundamental right. It is now included in the Charter. It is not, however, an absolute right and is subject to reasonable limitations in determining the individual’s right to select counsel of choice. The court must balance that right with public policy and public interest in the administration of justice and basic principles of fairness.

Continue reading “Pre-trials: Counsel of Choice”

Patrick J Ducharme

Rule 2 (Relationship to Clients) of the LSUC’s Rules of Professional Conduct provides that the lawyer must not advise or represent both sides of the dispute, and, save after adequate disclosure to and with the consent of the client or prospective client concerned, should not act or continue to act in a matter when there is or is likely to be a conflicting interest.

Continue reading “Pre-trials: Conflicts”

Patrick Ducharme

On three days notice by either party, the court may order the release of any exhibit for the purpose of a scientific or other testing, subject to such terms as appear to be necessary to safeguard the exhibit.
Continue reading “Pre-trials: Release of the Exhibits for Testing”

Patrick Ducharme

Where the court is satisfied that particulars are necessary for a fair trial, the prosecutor will be ordered to furnish particulars. In determining whether a particular is required the court may consider any evidence that has been taken.
Continue reading “Pre-trials: Particulars”

Patrick J Ducharme

These applications have two separate and distinct possibilities. One may apply to sever the counts or one may apply to sever the accused. Severance will be allowed where the court is satisfied that it is in the interests of justice.
Continue reading “Pre-trials: Severance”

Patrick Ducharme

Section 709 provides for making application to take commission evidence of a witness not likely to be able to attend at the time of trial because of either physical disability arising out of illness, or some other good or sufficient cause. An order may also be made when the proposed witness is out of Canada.
Continue reading “Pre-trials: Commission Evidence”

Patrick Ducharme

Generally, all pre-trial applications are brought to the trial Judge to:

Prevent fragmentation
Provide factual foundation
Permit the trial Judge to reserve judgment on the application if not enough evidence at the present time.
Continue reading “Special Status of Trial Judge for Pre-Trial Applications”