Preliminary Hearings

What Are Preliminary Hearings?

In Canada, the right to request a preliminary hearing before a judge to evaluate the merits of a criminal case against an individual is granted to both those accused of and those prosecuting indictable offences. Indictable offences, including murder, aggravated assault, theft over $5,000 and other crimes against persons, property and society, are distinguished from summary conviction offences such as trespassing or drug possession because of the severity of the punishment assigned by the courts: namely, the mandatory sentence for murder convictions under the Criminal Code of Canada is life imprisonment. Despite the grave malice of the actions underlying indictable offences, the relative infrequency of their occurrences means that less than three percent of criminal proceedings necessitate preliminary hearings. See “Types of Criminal Offences” on the Next Gen Litigators Instagram and Medium pages for a broader exploration of indictable and summary conviction offences.

Why Request a Preliminary Hearing?

For Crown prosecutors, preliminary hearings present a prime opportunity to evaluate the strength of criminal cases against an accused, complete with the jurisdiction to hear witness testimony. If the presiding judge rules that the accused be “committed to trial,” a future date is set for jury selection and trial commencement, allotting the Crown further time to ironclad its prosecution. The pressure exerted by the preliminary hearing process on the accused often promotes negotiations around possible plea agreements to avoid trial. Charges may also be discharged at a preliminary hearing if the judge determines that the evidence against the accused is insufficient, effectively halting the criminal procedure should prosecutors fail to gather additional evidence. However, the “beyond a reasonable doubt” burden of proof enforced during jury trials is lowered during preliminary hearings, meaning that judges overwhelmingly commit the accused to trial. Individuals accused of indictable offences seldom invoke the right to call witnesses at preliminary hearings, instead employing their legal counsel to discern the legal theories of the prosecution’s case. See prior Next Gen Litigators Instagram and Medium posts on the “Fundamentals of Criminal Law” and “Reverse Onus In Canadian Law” for discussions on burden of proof.

What Timeline do Preliminary Hearings Typically Follow?

Although criminal trials are the most glamourized expression of the justice system, the mechanics of the criminal legal process in Canada proceed even preliminary hearings, back to the Crown prosecutor’s decision to act upon a criminal investigation conducted by police. An attorney must not proceed with charges against an accused person if either a.) there is no reasonable likelihood of conviction, or b.) it is not in the public interest to proceed. While the former criteria is self-explanatory, the latter takes into consideration the nature of the alleged offence, the nature of the harm caused by the offence, and other factors beyond the scope of this discussion. Should the Crown choose to prosecute, and the charges laid be deemed as “indictable offences,” the accused will likely face a future trial with a judge and optionally a jury by the superior court of a province or territory. Regardless, all scheduled preliminary hearings, as well as initial pleas and bail hearings, occur in lower provincial courts. The accused possess the right to be represented by legal counsel during the preliminary hearing pursuant to section 10 of the Canadian Charter of Rights and Freedoms, and the defence can request a copy of the transcript to be submitted as evidence at trial. In rare instances where defence lawyers attempt to “exhaust the court system” by unreasonably extending court proceedings, the Attorney General of a province or territory may grant permission to bypass the preliminary hearing.

Why is the Right to a Preliminary Hearing so Important?

The right of the accused to request a preliminary hearing is inscribed in the Criminal Code of Canada and acts as an invaluable check against malicious prosecution, although discharges of criminal charges at this stage occur rarely. Even still, preliminary hearings may be instrumental in gaining insight into the background of witnesses to be called at trial, according to Weisberg Law. It may be argued that the lower burden of proof and typical lack of involvement from defence lawyers at preliminary hearings is evidence of a redundant stage of the criminal legal process. However, this characterization is far from the truth. Accusations of the most insidious violations of human conduct against persons must be handled with utmost rigor. The right to request a preliminary hearing helps to ensure that the rulings of Canada’s justice system are meaningful and entrenched in the due processes guaranteed by the country’s constitution. Follow Next Gen Litigators on Instagram and Medium for future discussions of Criminal Court Procedure, or inquire about content and events at nextgenlitigators@gmail.com.

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