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| Patrick Ducharme |
Even if an accused has been discharged at the preliminary inquiry, the prosecutor may obtain a direct indictment pursuant to section 577 if the Attorney General or Deputy A.G. consents in writing.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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| Patrick Ducharme |
Subsection 523(2)(c) permits a Justice “at the completion of the preliminary inquiry” to vary any release or detention order in relation to an offence for which the accused is ordered to stand trial, other than for an offence listed in section 469.
Continue reading “Changing Bail at Preliminary Inquiry”
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| Patrick Ducharme |
Decisions on the reasonableness of subsection 540(8) notice or subsection 540(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 “The Proper Method of Challenge”
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| Patrick Ducharme |
The Justice may apparently grant or refuse permission to the prosecutor or counsel to address the court in support of the charge, by way of opening or summing up or by way of reply. The case law, however, suggests strongly that both counsel should be afforded an opportunity to make submissions.
Continue reading “Submissions at Preliminary Hearing”
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| Patrick J Ducharme |
Before hearing any witness called by an accused who is not represented by counsel, the Justice shall address the accused as follows or to like effect:
Do you wish to say anything in answer to these charges or to any other charges, which might have arisen from the evidence led by the prosecution? 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.
Continue reading “The Warning and Statement of the Accused”
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| Patrick Ducharme |
Prior to the commencement of the taking of evidence at a preliminary inquiry, the Justice holding the inquiry may, if application is made by the prosecutor, and shall, if application is made by the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as the accused is either discharged, or if ordered to stand trial, the trial is ended.
Continue reading “Publication Bans”
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| Patrick Ducharme |
There is a general power to exclude everyone other than the prosecutor, the accused and counsel during the preliminary inquiry where the ends of Justice so require.1 There is also a general power to exclude witnesses from the courtroom until they are required to testify. The accused is entitled to be present.
Continue reading “Exclusion of the Public”
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| Patrick J Ducharme |
The broad powers of the court to regulate are contained in section 537. These powers are made even wider because the presiding Justice may “regulate the course of the inquiry in any way that appears to him to be desirable and that is not inconsistent with this Act.”1
Also, subsection 537(1)(g) provides that the Justice may receive evidence on the part of the prosecutor or the accused after hearing any evidence that has been given on behalf of either of them. Although awkwardly worded, this section seems to provide the Justice with the power to allow reply evidence or rebuttal evidence.
Continue reading “Regulating Hearing”
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| Patrick Ducharme |
Expert testimony, by either the defence or the prosecution, unless otherwise ordered by the court, may only be presented on thirty days’ notice and service of a copy of the expert’s report or summary of anticipated evidence.
It is important to note that the provisions related to expert testimony apply equally at trial or at a preliminary inquiry. Section 657.3 of the Code provides that in any proceedings the evidence of an expert may be given by means of a report accompanied by an affidavit or solemn declaration of the person setting out the qualifications of the person as an expert, and, if the court recognizes that person as an expert, the report may be used as evidence, subject to the power of the court to require the person to appear in person to be cross-examined.
Continue reading “Expert Evidence”
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| Patrick Ducharme |
Similarly, use of business records requires that the record shall not be admitted into evidence unless the party producing the record or affidavit has at least seven days before its production, given notice of the intention to produce it to each other party, and has, within five days after receiving a notice produced it for inspection by that party unless the court orders otherwise.1 It is safe to say therefore that reasonable notice is usually somewhere between seven days and thirty days prior to the event to which the notice applies. And notice requirements may always be abridged in the discretion of the trial Judge or presiding Justice based upon reasonable grounds presented to the court. Continue reading “Business Records”
