We may not all understand the legal terms that are associated with criminal law or even know what all the laws are and how they affect us. It is advisable that we educate ourselves even if it’s with just the basics so we can know what our rights are as civilians.
The lawyers at the Kruse Law Firm are here to help you if ever you stand accused of any crime. Our priority is to defend you with the utmost level of professionalism, helping and informing you along the way to ensure that you are aware of the stages of the entire process from the initial police investigation, arrest and through to the trial.
In an effort to keep you informed about real-life cases and issues affecting Canadians, we would like to address the issue of direct indictments and the impact it has on a defendant. Section 577 of the Criminal Code explains in detail the parameters of a direct indictment.
A preliminary hearing is an evidentiary hearing that is held before a trial. The Crown usually calls some of the key witnesses to testify and the defence counsel cross-examines the witnesses with a view to fully “discovering” the Crown’s case, creating inconsistencies and trying to weaken the Crown’s case and develop the appropriate winning strategies for trial. At the end of the preliminary hearing, the judge must decide if there is sufficient evidence for the accused to be “committed for trial”. The test which is applied, is whether there is “sufficient evidence upon which a judge or jury properly instructed, could convict.” This is called the “Shepherd” test and is based on a leading case from the United States which was adopted and further developed under Canadian criminal case law. This is a low-level test which serves an important screening function to “weed out” cases that should not be going to trial due to a lack of evidence.
The preliminary hearing serves to guard against false arrests and accusations and is also a very useful strategic tool for the defence to set up winning strategies for the trial. For indictable matters (i.e. serious criminal charges such as sexual assault, aggravated assault, fraud over $5000, murder etc.), a defence lawyer will usually recommend that a client should elect to have a preliminary hearing. It is usually a key part of setting up a winning defence and in a minority of cases, might result in the dismissal of the charges if the evidence is weak and does not pass the screening test cited above.
A direct indictment occurs where the Attorney General “prefers an indictment” to send a case directly to trial. Therefore the accused loses his or her important right to have a preliminary hearing. This results in the accused being forced to forgo the very important strategic advantage of fully discovering the case against him or her before the trial. It is generally not a good sign for the defence when a direct indictment is preferred by the Crown. There are other reasons for the Attorney General to proceed by a direct indictment. A few examples are set out below:
- Protection of an informant
- Protection of a witness from any psychological or physical trauma that they may face through numerous judicial hearings (for example children or a vulnerable sexual assault victim)
- A case where a decision by a judge dismissing the defendant at the preliminary trial garners enough public pressure to allow for the trial to continue.
In some very high profile cases in Ontario, the Attorney General has recently decided to proceed with direct or “preferred indictments” and has intentionally dispensed with the important preliminary hearing right of the accused. For example, this occurred just last year in the Tim Bosma murder case. The fact of the direct indictment and other sensational media attention regarding this case is still ongoing. Tim Bosma, thirty-two years old at the time, was last seen on May 6thdriving away with two men now identified as Dellen Millard and Mark Smich who arrived to test drive a vehicle he had on sale and advertised online. After not returning home, his disappearance was investigated by the police.
His cell phone was found three days later in an industrial complex and his truck was found another three days later in a trailer registered to the accused (Millard) and parked at his mother’s house.
The police believe that the victim was targeted, as surveillance cameras show a vehicle trailing him and the two men. Millard and Smich were both charged with first-degree murder and Christina Noudga (the girlfriend of Millard) has been charged as an accessory after the fact in connection with the murder.
Bosma’s remains were found badly charred on the defendant Millard’s farm. The fact that the defence lawyers in this case will not have a chance to cross-examine witnesses at a preliminary hearing before the trial, will likely leave them at a disadvantage to properly defend the accused at the trial.
Another example of a case where there was a direct indictment was the Crown’s case against Michael Rafferty. He was accused and convicted of kidnapping, sexual assault and the murder of an eight-year-old girl in Woodstock Ontario. Rafferty has attempted to appeal but says he has been turned down four times by legal aid. It is now left to the Ontario office of the Attorney General to pay for his defence.
In any case involving a direct indictment, the need for an experienced and capable criminal defence lawyer is imperative. The prosecution cannot be challenged when asking for a direct indictment and a person loses their right to fully discover their case at the preliminary hearing. It is in your best interests to be properly represented and defended by an experienced criminal defence lawyer from the Kruse Law Firm. We are experienced in all facets of criminal law, including DUI law. We have a consistent winning track record. Contact us now for a free initial consultation. We are here to help you.