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Criminal Preliminary Hearing

What is a preliminary hearing?

Court of Justice or Superior Court

Depending on the seriousness of the charge, an accused person may either have their trial in the Ontario Court of Justice or the Ontario Superior Court of Justice. These are the two levels of trial court in Canada.

Most Canadian criminal cases are conducted in the Ontario Court of Justice because the penalties they attract do not exceed two years less a day. If the Crown is proceeding by Indictment, in cases with maximum penalties of 14 years or more incarceration, you are entitled to a preliminary hearing.

Summary Offences v. Indictable Offences

All criminal matters are serious. There is, however, a spectrum or range of seriousness when assessing criminal charges. Summary matters or offences are those that are considered to be less serious. These less serious offences can still carry jail terms and negatively impact an accused person. For a straight summary matter, the maximum punishment is incarceration for up to six months or a fine of up to $5,000. For example, “causing a disturbance” is a simple summary offence.

Certain summary offences are considered “super summary” offences. These offences carry maximum jail terms of up to two years less a day. Examples of potential “super summary” offences are assault cause bodily harm and assault with a weapon.

Robbery, murder, aggravated assault, and trafficking in cocaine are all examples of Indictable offences. Canadian criminal law considers these types of crimes as the most serious. The above examples of indictable offence would entitle an accused person to a preliminary hearing. In 2019, the government made it so that only offences with a maximum sentence of 14 years or more are entitled to a preliminary hearing. Notably, most sexual assault allegations will no longer entitle an accused person to a preliminary hearing. These indictable offences also give the person facing charges the right to have a trial by jury should that be their choice. Murder cases are all mandatory jury trials unless the Crown Attorney consents to a trial by judge alone.

An increasing number of Criminal Code offences are considered hybrid offences. If an offence is a hybrid offence, the Crown Attorney is permitted to elect to prosecute the offence as a summary offence or as an indictable offence. There are a range of factors which will guide the Crown Attorney’s decision in this regard. If the Crown Attorney elects to proceed by indictment, the accused will normally have several choices regarding how their trial is conducted (except offences outlined in s. 553 of the Criminal Code known as absolute jurisdiction offences).

What are the options available to an accused charged with an indictable offence?

An accused charged with an indictable offence will have the choice of one the following modes of trial:

  1. Trial before a Provincial Court Judge
  2. Trial before a Superior Court Judge without a Jury
  3. Trial before a Superior Court Judge with a Jury

A preliminary hearing is not mandatory. The Crown or accused may choose to have a preliminary hearing. There may be tactical reasons not to have a preliminary hearing. These tactical decisions are regularly made by the accused person after receiving tactical advice from their trial lawyer.

What is a preliminary hearing?

A preliminary hearing is a hearing in Court where the Crown calls its evidence against an accused, primarily through witnesses who take the stand and testify. Most often no defence is mounted at this stage. It is an opportunity for the defence to evaluate the case against an accused. At the conclusion of the preliminary hearing, the client is either “committed to trial” (sent to trial) if the evidence is sufficient, or “discharged” (essentially acquitted) if the evidence is insufficient. For a judge to order an accused to be committed to trial, there does not have to be as much evidence as there will need to be for a conviction after trial. There just must be some evidence capable of convicting the accused.

Why might I want a preliminary hearing?

A preliminary hearing is not appropriate for every case where it is available. In certain cases, a preliminary hearing will just allow the Crown Attorney or prosecutor to put together an otherwise fragmented and difficult to prove Crown case. Sometimes a preliminary hearing will do nothing more than assist the prosecution in developing a theory against an accused person.

In certain cases, however, a preliminary hearing can be an extremely important proceeding where valuable evidence is gathered which may be of assistance at trial or in pre-trial applications. The decision to elect to have a preliminary inquiry is a tactical one and can only be assessed on a case by case basis. Adam Weisberg will spend considerable time strategizing and fully explaining the tactical considerations to his clients.

By way of some examples, a preliminary hearing can be very useful in eligible cases as a means to set up contradictory evidence, gain insight into the background of a witness, and form a basis for applications which will be brought at trial. A preliminary hearing is often very useful in search and seizure cases where police evidence can be discovered which will assist in drafting Charter applications and written legal arguments aimed at having evidence excluded at trial.

Cases must be evaluated on an individual basis to determine whether a preliminary hearing would be helpful. Equipped with professional advice from Adam Weisberg at Weisberg Law Professional Corporation, an accused person can make an informed decision about whether or not to have a preliminary hearing and their mode of trial.

Does a case end after a preliminary hearing?

An accused person may be “discharged” by the judge following a preliminary hearing. This means that the judge has determined that there is insufficient evidence to send the case to trial. If the accused is discharged on all counts, then the matter will be completed. The accused will have no criminal entry for that case. There are very rare situations where fresh evidence may surface after the preliminary hearing, and the accused may be prosecuted again.

In some cases, the accused will be discharged on some counts and committed to trial on others, where the evidence only supports some but not all charges. In most cases, accused individuals are committed to trial following the preliminary inquiry because the Crown does not have to prove guilt beyond a reasonable doubt, as is the case at trial. At the preliminary hearing stage, to commit an accused to trial, the judge only needs to be satisfied that there is some evidence, upon which a reasonable jury, properly instructed, may convict. This is a far lower standard than that used at trial, which is that the guilt of an accused must be proven by the Crown beyond a reasonable doubt.