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| 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”
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| 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”
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| 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”
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| Patrick Ducharme |
The end result of a preliminary inquiry could be an order of discharge of the accused. This occurs when the court is of the opinion that there is insufficient evidence to put the accused on trial for the offence charged or for any other indictable offence in respect of the same transaction. The presiding Justice may order that the accused be put on trial either for the offence charged or any other indictable offence in respect of the same transaction. Section 548 provides the statutory test for an order to stand trial where, in the opinion of the presiding Justice, the evidence is “sufficient”. In the United States v. Sheppard the court provided the classic description of the test: if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. This also is the test for ordering extradition or for withdrawing a case from a jury on an application for a directed verdict.
Continue reading “Summary of Preliminary Hearing”
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| Patrick Ducharme |
Even if an accused has been discharged at the preliminary inquiry, the prosecutor may obtain a direct indictment or lay a new information pursuant to section 577 if the Attorney General or Deputy A.G. consents in writing.
Continue reading “Preferring Indictments at Preliminary Hearing”
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| Patrick J Ducharme |
Section 523 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 “Altering Conditions of Bail at Preliminary Hearing”
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| Patrick Ducharme |
The Justice may 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. Case law, however, suggests that both counsel should be afforded an opportunity to make submissions.
Continue reading “Submissions at Preliminary Hearings”
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| Patrick Ducharme |
Before hearing any witness called by an accused who is not represented by counsel, the Justice shall address the accused as follows:
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 “Warning and Statement of Accused”
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| Patrick J Ducharme |
a. The evidence must be taken under oath and in the presence of the accused, allowing counsel for the accused to cross-examine the witnesses.
b. The scope of evidence at preliminary hearings is extended by subsection 540(7). A Justice may receive as evidence, “any information that would not otherwise be admissible but that the Justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.” Decisions on the admissibility of the evidence are not, however, reviewable by the Superior Courts, unless there has been a jurisdictional error.
Continue reading “Evidence: to Include Credible or Trustworthy Evidence”
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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 at Preliminary Hearings”
