Category: articles

Patrick J Ducharme

What amounts to reasonable notice has never been the subject of any authoritative decision. There are, however, several yardsticks that offer some assistance. The rules of most courts require applications for adjournments to be filed with the court at least thirty days before the date fixed for the hearing of the application and not less than sixty days prior to the date fixed for trial. Applications by counsel seeking to be removed as counsel of record usually require fifteen days’ notice before the date fixed for the hearing of the application, and that date cannot be less than ten days prior to the date set for trial. Section 657.3 requires a party who intends to call an expert witness “shall at least thirty days before the commencement of the trial, or within any other period fixed by the Judge, give notice to the other party of his intention to do so”.
Continue reading “Reasonable Notice”

Patrick Ducharme

Subsections 540 (7) and (8) permit the reception of copies of statements as evidence, provided: reasonable notice of the intention to tender the statements is given, together with a copy of the statements, and, the Justice considers the information in those statements credible or trustworthy in the circumstances of the case. Continue reading “Basis of Admissibility”

Patrick Ducharme

A preliminary hearing Justice can act on credible and trustworthy evidence, and/or witness statements, if reasonable notice of the intention to use statement evidence is given and subject to the right of cross- examination. Subsections 540(7) to (9) allow for the admission of evidence that would not otherwise be admissible provided the Justice considers it “credible and trustworthy in the circumstances of the case”.
Continue reading “Powers of the Justice”

Patrick J Ducharme

With or without a focus hearing, the prosecutor and the accused may agree to limit the scope of the preliminary inquiry to specific issues. Any agreement between the prosecutor and the defence shall be filed with the court or recorded under subsection 536.41
Whether there is a focus hearing is a matter of discretion for the Justice presiding at the preliminary hearing.
Continue reading “Agreement to Limit Scope”

Patrick Ducharme

The Justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the Justice’s own motion, that a hearing be held, 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, to assist the parties to identify the issues and witnesses on which evidence will be given at the inquiry and to encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.
Continue reading “Focus Hearings: Section 536.4 of the Code”

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. A request must now be made in order to have a preliminary inquiry. That request may only be made if the offence before the court carries with it a punishment of fourteen years or more.
Continue reading “Hearing Must Be Requested”

Patrick J Ducharme

The 2019 Amendments also dealt with section 537 of the Criminal Code. This section, in general, sets out the powers of the Justice or Provincial Judge presiding at a preliminary inquiry providing for adjournments of the inquiry and orders directing the accused to attend for observation or to be remanded for observation.
Continue reading “Increased Powers of Regulation”

Patrick Ducharme

On September 19, 2019, the Federal government passed into law amendments affecting the availability of preliminary inquiries. The opportunity to have a preliminary inquiry is now significantly reduced. Only the most serious charges in our criminal law are punishable by fourteen years or more. Continue reading “Recent Amendments Restricting the Availability of Preliminary Inquiries to Offences Carrying Penalties of fourteen years or More”

Patrick Ducharme

It also affords the defence an opportunity to discover the prosecution’s case beyond the written statements and documents that are provided in disclosure. Until the 2019 Amendments, the decision on how to present the evidence and what witnesses will be called was almost entirely in the hands of the prosecutor.
Continue reading “Discovery for the Defence at Preliminary Hearing”

Patrick J Ducharme

The preliminary inquiry also serves as a screening vehicle, permitting prosecutors to assess their case and determine whether charges should proceed to trial. This hearing is not meant to provide a forum for litigating the merits of the case against the accused.1 Although it may not be the stated purpose, this assessment has the effect of filtering out weak cases that do not merit a trial. From the accused’s perspective it protects him from needless, sometimes improper, exposure to a public trial in circumstances where the prosecution is not in possession of evidence that warrants the continuation of the process.
Continue reading “Prosecutors Assessing the Case at Preliminary Hearing”