Author: Patrick Ducharme

Patrick Ducharme

Decisions on the reasonableness of subsection 740 (8) notice or subsection 740 (7) decisions on credible or trustworthy evidence are not appealable. They are also not easily reviewable by way of extraordinary remedy. Challenges to an order of committal, or, alleged jurisdictional errors related to the evidence taken at a preliminary hearing are limited to relief sought by way of certiorari, mandamus or prohibition. The scope of these extraordinary remedies is very limited. They require proof of jurisdictional error.
Continue reading “What is the Proper Method of Challenge?”

Patrick J Ducharme

R. v. Vasarhelyi was not about these subsections. Its focus was section 507. R. v. Rao1 directly considered the goals and meaning of these provisions. The court would have granted a remedy if it was possible to do so. In the course of supporting a beleaguered accused, the court suggested that a Judge at a preliminary inquiry may, in rare circumstances, breach the rules of natural Justice.
Continue reading “Summary of Appellate Decisions”

Patrick Ducharme

In LeBlanc and Steeves v. R.1 the Court of Appeal for New Brunswick was asked to resolve a conflict between the provisions of subsection 189 (5) and subsection 540 (7). Subsection 189 (5) provides that the contents of a private communication lawfully intercepted shall not be received in evidence unless the party intending to adduce it has complied with certain notice requirements. Subsection 540 (7) provides that a Justice may receive as evidence any information that would not otherwise be admissible provided the Justice considers the evidence credible or trustworthy in the circumstances of the case.
Continue reading “The Appellate Decisions – New Brunswick”

Patrick Ducharme

The issues before the Saskatchewan Court of Appeal in R. v. Beaven1 were as follows:

a. In a preliminary inquiry where the Crown’s case was largely based on wiretap information led through the affidavit of the lead investigating officer; was the admission of hearsay identification of the accused’s voice recorded by the wiretap a jurisdictional error? and,
b. Did the denial of defence counsel’s ability to cross-examine the witness at the preliminary inquiry engage principles of natural Justice?
The case came before the appellate court after the accused’s application to quash his committal was rejected in the Superior Court. The accused was charged with trafficking in a controlled substance for the benefit of a criminal organization contrary to section 467.12 of the Code. Counsel for the accused always maintained that identification of his client was an issue. The Crown relied upon Cpl. Beaton’s affidavit that provided this information:
Continue reading “The Appellate Decisions – Saskatchewan”

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).

Continue reading “Preliminary Hearings”

Patrick Ducharme

Pre-trials (referred to as “pre-hearings” in Section 625.1) are increasingly used by our courts to produce fair and expeditious trials or resolutions. Pre-trials, however, impose some added hazards for counsel.

Pre-trial discussions are “off the record” in the sense that what is discussed during a pre-trial is not to be used for or against a party during the trial.
Continue reading “Pre-trials”

Patrick Ducharme

It is inappropriate to fix the amount of the cash deposit as some portion of the amount still unrecovered (e.g. if the accused is charged with robbery of a large amount of money) or to fix the amount so high that it amounts effectively a detention order.1 Subsection 515(2)(d) that appears to require the consent of the prosecutor before a cash bail can be ordered violates subsection 11(e) of the Charter and should be read down to exclude these words.
Continue reading “Cash Bail”

Patrick Ducharme

Subsection 11(e) of the Charter provides that reasonable bail is a constitutionally protected right. In an unreported decision of the Ontario Superior Court of Justice, Justice Joseph Quinn in R. v. Benic decided that the practice of remanding accused persons for greater than three days without the consent of the accused was an infringement of subsection 11(e) of the Charter as well as a breach of the mandatory provisions of subsection 516(1) of the Code and he ordered that the accused be given an immediate bail hearing in accordance with subsection 516(1).
Continue reading “The Right to Bail Expeditiously and Burden of Proof”

Patrick J Ducharme

In R. v. St-Cloud the accused was charged with aggravated assault. The incident giving rise to the charge was captured on a video recording system. The video demonstrated that the accused and two others assaulted a bus driver. In addition, there was eyewitness testimony. It was inarguable at the time of the bail hearing that the Crown’s case was strong since the incident was videotaped and the videotape was augmented by eyewitness testimony.
Continue reading “R. v. St-Cloud and the Tertiary Ground of Bail”

Patrick Ducharme

R. v. Antic re-iterated that the right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. This enlightened system guarantees the right to reasonable bail. The court stated that except for certain exceptions, an unconditional release on an undertaking is the default position when granting release.
Continue reading “Release is Default Position”