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| 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”
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| 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”
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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”
PJD has the coolest grandson that celebrates his birthday today… Xael’s Uncle Michael (the Webmaster of this site) wishes Xael an amazing day and infinite wellness forever. Continue reading “Happy Birthday Xael”
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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”
