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What Is A Preliminary Hearing?

I am going to talk to you a little bit today about what is a preliminary hearing, also called a preliminary inquiry, and when can you elect to have a preliminary inquiry. 

So I am going to give you an example, let’s say you are charged with sexual assault on an adult and the crown elected by indictment. So what happened on September 19, 2019, parliament brought in this new law that got rid of preliminary hearings for all offences, unless you are facing fourteen or more years in jail. Now a sexual assault charge carries a mandatory maximum of ten years, so you are not allowed to have a preliminary hearing anymore on that particular case.  So you can elect in the Ontario Court of Justice, or you can elect in the Superior Court of Justice , judge alone or judge and jury but you are not allowed to have a preliminary hearing and that was a very important right that they have taken away by the way. So now, it’s restricted to cases with mandatory maximum fourteen years. So, for example, if you sexually assault a minor, someone you know, under sixteen, (the age of consent by the way is sixteen).  In that case, it’s a mandatory maximum of fourteen years in jail, so you can elect to have a preliminary hearing. Or for example, on a murder charge, or a drug trafficking charge. So it’s a very important right they took away by the way for people now facing sexual assault or break in enters or other serious charges that you know, that can’t have a preliminary hearing anymore. So what is a preliminary hearing? A preliminary hearing is an evidentiary hearing, where the crown calls certain witnesses of their case and the crown has to show that there’s some evidence to show upon what a reasonable jury is properly instructed could convict. That’s the test, so in other words, if you pass that test, it goes on to trial. So it is very rare not to pass that test, it was a screening function but it was very rare for defence counsel to successfully win outright a preliminary hearing just because it’s such a low level test.  But the important thing and this is why you should often have preliminary hearing, for a serious case, is it was a discovery tool for the defence to set up their strategies for trial. You could create inconsistency. For example, in a sexual assault matter, you had a video of the complainant, who gave a statement to the police. At the preliminary hearing, you are trying to create inconsistencies, improbabilities, with that video. The more you can create, the greater the credibility problems and you can confront the victim at trial and say “ look, you said this at one time, you said this another, you are not telling the truth here , etc” and you learn everything there was about the case. Now, on a sexual assault matter, involving an adult, you going in a little bit blind at the trial. True, you have full disclosure, but you don’t have the benefit of that transcript under oath where you know what exactly she is going to say or he, and they are totally pinned down, so you can develop your strategy better. So this is the new state of the law, we only have preliminary hearings now, for very serious indictable offences where you are facing a mandatory maximum of fourteen years or more and there has been a lot of criticism about losing this fundamental right, there’s a lot of legal commentators to believe that this is going to result in more miscarriage of justice. Certainly, I’m sure the vast majority of the people are truthfully guilty in  Canadian criminal law, but what about those innocent ones and we are often able to create reasonable doubt by using the preliminary hearings tool. So that’s all well, great and dandy, who is truly guilty but what about the innocent. I’m wondering and other commentators are wondering that this is going to create more miscarriage of justice in Canada.

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