Under Canadian criminal law, there’s many offences which are called ‘dual offences’. What that means is that the crown can elect summarily or they can elect by indictment.
Let’s take a sexual assault charge, for example. So let’s say it’s a simple – well, they’re all serious – but a simple breast touching. The crown will elect summarily in that case, and you only have a right to be tried in the Ontario Court of Justice, which is a lower court.
Let’s consider a different sexual assault, which is, for example, a rape charge. The crown’s going to elect by indictment, which attracts much more serious penalties. Now, you as the accused, that gives you much more rights to be tried. You can be tried in the Ontario Court of Justice – go directly to trial – or you can be tried by a judge and jury in the high court – which is called the Superior Court of Justice – or by a judge alone in the Superior Court of Justice.
Now, there’s never a good thing about facing an indictable offence, but the one good thing is that you have the right to what’s called a preliminary hearing. You don’t have that right in a summary offence.
Now, a preliminary hearing is something that happens well in advance of the trial, and serves a screening function. It’s to determine whether there’s enough evidence to proceed in your particular case. And it’s a very low-level test, so we show up, the crown calls the preliminary hearing. They call some of their evidence, and they call enough evidence to show that they have enough evidence to pursue your trial.
The test is very low. The defence rarely wins at the preliminary hearing. And this is the test – and I’ll explain why. Is there some evidence under which a judge and a jury could probably convict? Is there some – that a judge and a jury, properly instruct, could convict? You rarely win, but the beauty of it is that as a defence counsel you get a free crack at the crown’s witnesses. We get full discovery, we have a change to create improbabilities, inconsistencies before the trial: pin down their story and you’re setting up strategically to win at trial. And there’s a real art form to it. You’re not attacking the witness there.
For example, let’s say the witness on the original video statement said “well, he touched me on the left shoulder”. And at the preliminary hearing, during cross-examination, you say ‘right shoulder’. Well, now is not the time to confront them that they had an inconsistency, ’cause they’ll explain it. Now is the time to say “so you’re certain that he touched you on the right shoulder?” and they’ll say, hopefully, yes. You have tied them down. Now you have a powerful inconsistency that you attack at the trial. So as a defence counsel, it’s more ‘softer’ cross-examination, it’s full discovery, you’re tying them down, creating those inconsistencies, lulling them into a false sense of security, not giving away your trial tactics.
I see so many defence counsels make the mistake at a preliminary hearing, not proceeding that way and attacking the witness. Now, the witness is ready for them at the trial. The only time you would ever attack a witness at a preliminary hearing is if you’re almost convinced that you can win outright at that point and turn their story. And you have to explain this to clients. But it’s a great right if you get charged with an indictable offence. It often serves the function of eventually winning your case because you have that hearing. And the disadvantage of a minor offence is that you don’t get that – you have to go right to trial in the Ontario Court of Justice. That’s what a preliminary hearing – also called a preliminary inquiry – is all about.