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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.
The Amendments now permit the presiding Judge to “limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.”
Previously, the prosecutor had no obligation to afford the defence an opportunity to discover its case. The prosecutor was only required to present “sufficient” evidence to obtain an order of committal. Prior to the Amendments there was no jurisdictional limitation that precluded a preliminary inquiry Judge from allowing defence counsel to pursue discovery within reasonable bounds. Because the Amendments speak only in terms of “limiting the scope” and “limiting the witnesses to be heard” by order of the presiding Judge it might be expected that there is now a new power of jurisdictional limitation that will have the impact of preventing or prohibiting discovery within reasonable bounds.
In R. v. McGrath1 the Nova Scotia Superior Court confirmed the discovery aspect of a preliminary inquiry. The inquiry is not solely for the purpose of determining whether there is sufficient evidence to commit the accused to trial. Here, the court decided to allow the defence to introduce testimony from a police officer respecting the admissibility of evidence that could only be presented at trial, on the basis that the Judge presiding at a preliminary inquiry has jurisdiction to make decisions based on relevance that is not governed only by the narrow test for committal.
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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