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| Patrick Ducharme |
The Judge presiding over a preliminary inquiry must decide whether the accused should be committed to trial or be discharged. This determination is described in section 548 of the Code. An order of committal to trial is made when the Justice presiding is of the opinion that there is “sufficient evidence” to put the accused on trial for the offence charged, or, any other indictable offence in respect of the same transaction. This finding results in an order to “stand trial.” The prosecutor who is seeking to obtain an order that the accused stand trial must produce sufficient evidence of the charge(s) before the court or any other indictable offence in respect of the same transaction.
If, however, the presiding Justice is of the opinion, on the whole of the evidence, that there is not sufficient evidence to put the accused on trial for the offence charged, or any other indictable offence in respect to the same transaction, the Justice will “discharge” the accused. A discharge order by the Justice at the completion of a preliminary inquiry is not the same as an acquittal.
A discharge order following the evidence at a preliminary inquiry is only a finding that the presiding Justice has determined that there is not sufficient evidence. That finding is not the same as “no evidence” and definitely is not a finding that the accused cannot be charged again with the same offence or offences if later the prosecution is in possession of sufficient evidence.
The test for sufficiency at a preliminary hearing is the same as that which governs a trial Judge sitting with a jury when deciding if the evidence at trial is “sufficient” to justify the Judge withdrawing the case from the jury. This test of sufficiency is determined based on whether there is any evidence “upon which a reasonable jury properly instructed could return a verdict of guilty.”1 If the answer to this question is “yes” there is such evidence, there should be an order of committal, and conversely, if the answer to the question is “no” there should be an order discharging the accused.
The presiding Justice has several other important powers and responsibilities at the preliminary inquiry. These are outlined in section 537 of the Code. Some of the more important powers of the presiding Justice are:
1.a. regulate the course of the inquiry in any way that appears to the Justice to be desirable, including to promote a fair and expeditious inquiry.
1.b. permit, on the request of the accused, that the accused be out-of-court during the whole or any part of the inquiry.
1.c. limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.
1.d. order the immediate cessation of any part of an examination or cross-examination of a witness that is, in the opinion of the Justice, abusive, too repetitive or otherwise inappropriate.
1.e. order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to the Justice that the ends of Justice will be best served by so doing.
Preliminary inquiries provide for an accused to be discharged if, in the opinion of the presiding Justice, on the whole of the evidence, no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
The elimination of preliminary inquiries for all but the most serious offences in Canada amounts to sacrificing the legal principle that we will never punish the innocent, or, risk that an innocent person will be wrongfully convicted for the sake of expediency in the trial or pretrial process. Bill C-75, in its effort to free up court time and expedite the process, will likely lead to more innocent persons wrongfully convicted in Canada. As a nation with an unenviable record of wrongful convictions these legislative changes can only enhance the likelihood of many more wrongful convictions.
The committee making recommendations for legislative change did not hide their overall purpose as expediency over the protection of innocent persons charged with serious offences. The authors of Bill C-75 declared that the reduction in the number of preliminary hearings would “free up court time and resources in provincial courts, while alleviating the burden on some witnesses and victims by preventing them from having to testify twice in those cases.” Their goal was expediency. It was not to protect innocent persons from wrongful conviction. That ugly part of our criminal trial history is now enhanced rather than ameliorated.
The authors of these legislative changes did not stop there. They wrote that the amendments “further allow the Justice conducting a preliminary inquiry to limit the issues to be explored and the witnesses to be heard at the inquiry.” The authors did not explain how a Justice, scheduled to preside over a preliminary inquiry, is to decide what witnesses should be heard. In the normal criminal case that makes its way to a Justice scheduled to hear a preliminary inquiry, the Justice knows nothing about the case. The decision to “limit the issues to be explored and the witnesses to be heard” will be made by the person least knowledgeable about the case.
The preliminary hearing is a discovery hearing, a time for the accused and his counsel to learn as much as possible about the case. If counsel for the accused at the time of the preliminary inquiry is not yet possessed of all the information necessary to embark upon a trial, then obviously the Justice scheduled to hear the preliminary inquiry is not going to be in any better position than counsel for the accused to determine what witnesses should be called or not called to testify. There is no obligation upon counsel for the accused to share with the presiding Justice her knowledge of the case for the defence or advise a preliminary hearing Justice of counsel’s anticipated strategy at a later trial.
As a result of these amendments Canadians can likely look forward to many more wrongful convictions in Canada. In virtually every previous wrongful conviction in Canada the government of Canada was sued and/or ordered to pay multi-million-dollar settlements to the wrongfully convicted persons for their years in prison despite their innocence. In several instances the Canadian government also paid large sums of money to the “victims” of wrongful convictions rather than contest civil lawsuits brought by the wrongfully convicted.
The Federal government, knowing that a court would eventually provide a wrongfully convicted individual with a financial award for years in prison for a crime not committed by that person, would decide to negotiate a payout to save the legal fees for a case that the government could confidently predict it would lose. The government’s “generosity” in its offers of settlement sought to avoid significant court costs that would be piled on top of the award to the Plaintiff for wrongfully convicting an innocent person.
Preliminary inquiries have, as their main purpose, an obligation to determine if there is sufficient evidence to put the accused on trial. The hearing therefore serves as an important screening device to avoid expensive, needless trials based on insufficient evidence. Making preliminary inquiries less available will inevitably lead to more unnecessary trials with the prospect of wrongful convictions continuing unabated.
Simply reading “will say” statements of witnesses prepared by police officers and provided to the prosecutor and the defence in preparation for a preliminary inquiry, are not nearly as informative and helpful in assessing the strength of a case. Hearing from the witnesses under oath, and, having the opportunity to contest their evidence at the preliminary inquiry was a valuable tool in eliminating cases that were too weak to proceed to trial.
Reducing the availability of preliminary inquiries will result in more trials, including trials of little or no merit.
Arguably, preliminary inquiries are as vitally important today as they were prior to the 2019 amendments.
They were an effective method of screening out and eliminating criminal cases that did not merit a trial. The 2019 amendments will have the effect of severely reducing the number of preliminary inquiries in Canada. They are no longer available for the vast majority of serious offences in Canada.
The driving force leading to the passage of the amendments was political pressure by special interest groups representing alleged victims of crime. The special interest groups were complaining about the rigours of the trial process. One of their main complaints was that alleged victims of sexual assault were forced to testify twice, once at the preliminary inquiry and once at trial. The elimination of the preliminary inquiry in these types of cases would mean that the alleged victim would only have to testify once. The alleged victim would only testify at the trial.
The government, however, was not anxious to concede that the elimination of preliminary inquiries for most cases alleging sexual assault or assault bodily harm was a political decision. Instead, the government claimed the elimination of preliminary inquiries for so many criminal offences was just one part of a process to streamline and make more efficient criminal trials. The federal government’s claim in this regard does not, however, hold up to scrutiny.
Those recommending the legislative changes admitted openly that at least one of the “benefits” of eliminating many preliminary inquiries was to prevent the complainant in such cases from having to testify twice, once at the preliminary inquiry and once at trial. The government therefore made a political decision, a decision based on believing that it was politically advantageous to be on the side of alleged victims rather than on the side of an alleged criminal.
There was evidence before the committee considering these amendments that preliminary hearings significantly reduced the number of trials. Evidence was presented to the committee that prosecutors routinely used preliminary inquiries to assess the strength of their case and when weaknesses were discovered at the preliminary inquiry the charges would be withdrawn, thus eliminating the number of trials.
There was also evidence before the committee that often prosecutors discovered, through the preliminary inquiry process, that the preliminary inquiry process demonstrated that a case should not proceed to trial. The preliminary would expose a lack of merit that could not be determined simply by reading the written statements in the Crown brief. Preliminary inquiries assisted prosecutors in bringing a halt to meritless cases.
Even if the preliminary inquiry did not end in a decision to stop the trial process, they often allowed the lawyers to hone the evidence to be called at trial or led to discussions of resolution between the Crown and the defence, eliminating entirely the necessity of a trial. These discussions leading to a resolution without trial usually centred on pleas of guilty to some lesser or included offence, to the offence or offences that were revealed or became obvious at the preliminary inquiry.
There is good reason why hearing the actual testimony at a preliminary inquiry amounts to the best screening device. At the time any witness provides a written statement to the police there is no one present to challenge their statement or to match their statement against other known facts that are inconsistent with what the witness claims.
Preliminary inquiries provide a valuable opportunity for counsel on both sides to assess the veracity and reliability of their witnesses. Prosecutors often realize at the conclusion of a preliminary inquiry that certain charges do not have merit and should not proceed to trial. Regularly prosecutors would ask the presiding Justice presiding at a preliminary inquiry to only order that the accused to be tried on some, but not all of the charges, against the accused at the preliminary inquiry. Similarly, defence lawyers conducting a preliminary may discover that certain charges facing the accused have merit, while others do not. The preliminary inquiry would therefore lead to resolutions of cases that could not be resolved by simply going directly to trial.
The government committee recommending these changes heard from several groups that certain alleged victims were adversely affected by having to testify twice, once at a preliminary inquiry, and a second time at trial. While having to testify twice may present some inconvenience, that process has demonstrated over many years that false and unreliable testimony seldom holds up to scrutiny when evidence under oath at the preliminary inquiry can be considered, examined, and challenged by evidence gathered between the preliminary and the actual trial.
Various interest groups complained vociferously to the Committee proposing legislative changes that lawyers were able to use the evidence of witnesses required to testify twice to demonstrate some witnesses provide different versions of the same event, or, that a witness might demonstrate troubling inconsistencies between his or her testimony at the preliminary inquiry and his or her testimony at trial.
This is one of the most cogent reasons why the Committee should have decided that preliminary inquiries are an essential tool in arriving at the truth. Different or inconsistent testimony by a witness is, of course, an important measure of the accuracy and truthfulness of the evidence in question. If the trial process is the most reliable manner for a court to determine the truth, we should be preserving the ability to have a witness testify twice under oath.
Their inconvenience in having to testify twice is less important than ensuring a fair trial for the accused and avoiding wrongful convictions.
Counsel should have an opportunity to examine the prosecutor’s evidence at a preliminary in preparation for trial. And a reasonable opportunity to find and present evidence that challenges the evidence under oath at the preliminary inquiry for consideration by the trial Judge or jury. Instead, the Committee recommended convenience and freeing up court time over a full and fair examination of the evidence and discovery of the evidence in the most reliable way prior to answering that evidence at trial. The framers of the amendments, in their zeal to speed up the process, free up court time and satiate special interest groups traded a powerful tool for fairness and protection of the presumption of innocence for political expedients.
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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