Preliminary Hearing

For Indictable Offences

How It Works

Overview of the Preliminary Hearing

Definition:

A Preliminary Hearing is a judicial proceeding conducted to determine whether there is sufficient evidence to commit an accused person to stand trial for an indictable offence (more serious crimes). It is not a trial but rather a preliminary assessment of the evidence presented by the prosecution. When a person is eligible for a Preliminary Inquiry, they are often useful to assess the Crown’s evidence and the credibility and reliability of witnesses in the case. In layman’s terms, it can be seen as a “test-run” of the evidence, and may result in more evidence to use at trial, if the case proceeds to that stage. It is also a useful platform for counsel to negotiate on the number of charges with more or less evidence, and often come to terms in advance about what charges can be committed, and charges cannot. It is helpful to streamline the process, gather further information, and potentially, resolve the case earlier then advancing to the ultimate trial hearing, which determines guilt or innocence.

Purpose:

  • Assess Evidence: The primary purpose is to assess whether the prosecution has enough evidence to justify moving forward with a full trial.

  • Prevent Unwarranted Trials: It ensures that individuals are not subjected to trial unless there is a reasonable basis for the charges.

When a Preliminary Hearing is Required

Indictable Offences:

  • Serious Crimes: Preliminary Hearings are typically required for indictable offences, which are more serious crimes under Canadian law. Examples include murder, robbery, and large-scale fraud.

  • Exception for Summary Offences: Preliminary Hearings are not permitted for summary offences or hybrid offences prosecuted summarily.

Request for Preliminary Hearing:

  • Application by the Defence: The Defence may request a preliminary hearing. The request is made to ensure that there is a proper basis for proceeding to trial. After the election for a preliminary inquiry is made, the Crown may exercise its discretion with the permission of the Attorney General, to proceed by way of Direct Indictment. In these instances, even if an Accused wants a preliminary inquiry, the Justice System may use its power to usurp this phase, and force an Accused to proceed directly to trial at the Court of King’s Bench (Superior Court). These cases will be fact specific.

Preliminary Hearing Procedure

1. Preparation:

  • Disclosure: Before the hearing, the prosecution provides the defence with disclosure of evidence, including witness statements and other relevant materials. The defence reviews this information to prepare for the hearing.

  • Witnesses: Both the prosecution and defence may prepare witnesses to testify during the preliminary hearing. The prosecution must present evidence to support the charges, while the defence may challenge this evidence.

2. Conduct of the Hearing:

  • Judge’s Role: A judge presides over the preliminary hearing. The judge's role is to assess the evidence presented by the prosecution to determine whether there is enough to proceed to trial.

  • Presentation of Evidence: The prosecution presents its case by providing evidence and calling witnesses. This may include testimonies, documents, and physical evidence related to the alleged crime.

  • Cross-Examination: The defence has the opportunity to cross-examine the prosecution’s witnesses and challenge the evidence. The defence may also present its own evidence or witnesses if necessary.

3. Standard of Proof:

  • Prima Facie Case: The standard of proof at the preliminary hearing is whether there is a “prima facie” case. This means the prosecution must show that there is sufficient evidence for a reasonable person to believe that the accused committed the alleged offence.

  • No Determination of Guilt: The judge does not determine guilt or innocence during the preliminary hearing. The focus is solely on whether the evidence supports proceeding to trial.

Outcomes of the Preliminary Hearing

1. Commitment to Trial:

  • If Evidence is Sufficient: If the judge determines that there is sufficient evidence, the case is committed to trial. This means the accused will face a full trial where the evidence is fully examined, and a verdict will be reached.

  • Trial Scheduling: The case proceeds to the trial stage, where the full legal process unfolds, including the presentation of evidence, legal arguments, and a verdict.

2. Dismissal of Charges:

  • If Evidence is Insufficient: If the judge finds that the prosecution does not have enough evidence to support the charges, the case may be dismissed. This means the accused will not proceed to trial on those particular charges.

  • Charges May Be Reinstated: In some cases, the prosecution may choose to bring new charges or seek a review of the decision if new evidence becomes available.

Role of the Defence Lawyer

1. Legal Representation:

  • Preparation and Strategy: The defence lawyer plays a critical role in preparing for the preliminary hearing, including reviewing evidence, preparing cross-examination questions, and formulating arguments against the charges.

  • Challenging Evidence: The defence lawyer challenges the prosecution’s evidence and aims to demonstrate that there is insufficient basis to proceed to trial.

2. Protecting Client’s Rights:

  • Ensuring Fair Process: The defence lawyer ensures that the accused’s rights are protected throughout the preliminary hearing process and that any procedural errors are addressed.

Importance of the Preliminary Hearing

1. Protecting the Accused:

  • Preventing Unwarranted Trials: The preliminary hearing acts as a safeguard to prevent individuals from facing trial without sufficient evidence. It ensures that only cases with a reasonable basis proceed to trial.

2. Pre-Trial Preparation:

  • Case Assessment: The preliminary hearing allows both the prosecution and defence to assess the strength of their cases and prepare for the trial stage.

3. Legal Rights:

  • Fairness: The preliminary hearing helps uphold the principle of fairness by providing a mechanism to review the evidence before subjecting an individual to a full trial.

The Preliminary Hearing is a vital component of the Canadian criminal justice system, particularly for indictable offences. It serves to evaluate the evidence and ensure that there is a reasonable basis for proceeding to trial. Understanding the details of this process helps ensure that the rights of the accused are protected and that the legal proceedings are conducted fairly and justly.