What Happened To Preliminary Hearings In Canada?

The Shift in Canadian Criminal Procedure

Today, we dive into the significant changes surrounding preliminary hearings in Canada. What exactly is a preliminary hearing, and why has there been a shift in this legal process?

Defining a Preliminary Hearing

A preliminary hearing (also known as a “preliminary inquiry”) is a pre-trial evidentiary court proceeding held months before the actual trial. During this stage, the Crown presents part of their evidence through key witnesses testifying under oath. The purpose is to screen the case and determine if it should proceed to trial. Defence counsel has the opportunity to cross-examine witnesses, a process we’ll explore further shortly.

Screening Test: Should a Case Proceed to Trial?

The screening test at the end of a preliminary hearing assesses whether there is some evidence upon which a judge or jury, properly instructed, could convict. It’s crucial to note that this is a relatively low threshold, making it rare for cases to be dismissed at this stage.

Benefits of a Preliminary Inquiry: A “Free Kick at the Can”

One of the primary benefits of a preliminary hearing is providing defence counsel with an opportunity to cross-examine key witnesses, such as the complainant in a sexual assault trial. This allows for exploring inconsistencies, probing the witness’s version of events, and strategizing based on their statements. It is essentially a “test run” of the evidence before the actual trial, which can often maximize the chances of winning the trial.

Recent Changes: Loss of a Key Right

However, recent changes in Canadian criminal procedure have led to the loss of the right to a preliminary hearing for any criminal matter where the maximum sentence is less than 14 years in prison. This loss applies to a wide range of offences, significantly impacting the defence’s ability to thoroughly examine and challenge evidence before trial.

Impact on Sexual Assault Cases Involving Adults

For instance, in the case of an indictable sexual assault involving an adult victim, where the maximum sentence is 10 years, the accused no longer has the right to a preliminary hearing. Instead, the matter must proceed directly to trial. This change has raised concerns about the potential impact on the accused’s ability to confront witnesses effectively.

Election for Serious Crimes: Limited Availability of Preliminary Hearings

The right to elect a preliminary hearing is now limited to the most serious criminal matters where the maximum sentence is 14 years or more. Examples include aggravated assault, large-scale fraud, indictable sexual assault involving a child, drug trafficking, murder, and break and enter. Unfortunately, this option is no longer available for indictable sexual assault cases involving adult complainants.

Reflection on the Changes: Balancing Rights and Procedures

The shift in the availability of preliminary hearings raises questions about the impact on the accused’s rights and the effectiveness of the legal process. While some argue that this change streamlines procedures, others contend that it may undermine the accused’s ability to confront evidence effectively.

Navigating the New Landscape

The recent changes to preliminary hearings in Canada, particularly for sexual assaults and other crimes with less than a 14-year maximum sentence, mark a significant shift in the legal landscape. As legal professionals and commentators reflect on the implications, those charged with serious offences must navigate the new procedures with a keen understanding of their rights.

Free Consultation

If you find yourself facing legal challenges or have questions about the recent changes, we offer a free consultation. Contact us here to discuss your case and explore your legal options. Your rights matter, and we are here to guide you through the complexities of the legal system.

Video Transcription:

What happened to preliminary hearings in Canada? That is the topic for today.  First of all, what is a preliminary hearing?  Well, a preliminary hearing is a court proceeding which takes place months before the trial where the Crown calls at least part of their evidence in the form of key witnesses testifying under oath. So witnesses will take the stand and give their evidence and the case will be presented and it serves a screening function, to see if a case should proceed to trial or not.  Defence counsel gets a chance to cross examine the witnesses at length which we will talk about in a moment.  The screening test which the court must consider upon completion of the evidence at the preliminary hearing, in terms of whether a criminal matter should proceed to trial or not is as follows:   is there some evidence upon which a judge or jury, properly instructed, could convict?   This is a very low level test.   Very few cases get thrown out at a preliminary hearing because it is such a low level threshold i.e.  the crown only has to present some evidence upon which a judge or jury properly instructed in the law, could convict. But the great benefit of a preliminary hearing to defence counsel and their clients is they get a “free kick at the can” so to speak or a test run at the victim prior to the trial.   Defence counsel was formerly able to cross examine the complainant for example, in a sexual assault trial with a view to trying to create reasonable doubt, inconsistencies, improbabilities, pinning down their version of events, and finding out all of the evidence in the case regarding what the complainant is   going to say and comparing their evidence to their original statement, in order to strategize and set the witness up for the trial and confront them with inconsistencies.  We have now lost the former right to a preliminary hearing in Canada for any criminal matter where the maximum sentence is less than 14 years in prison. We have simply lost this very important right except for the most serious criminal matter.   So for example, for an indictable sexual assault case involving an adult victim rape allegation, the maximum sentence is 10 years in jail.  Therefore, there is no right to a preliminary hearing for this type of case anymore and the matter must proceed directly to trial and a great benefit to the defence has been lost So a person charged with an indictable sexual assault case involving an adult victim can elect to be tried by judge alone in the Ontario Court of Justice or by a judge and jury or judge alone in the Superior Court of Justice. However, they do not have the right to a preliminary hearing.  I will leave it to other commentaries to opine on whether this is ultimately a good or bad thing for society, but it clearly is not a good thing for an accused who is presumed innocent.   There are some legal commentators who state that we have lost a very important right where defence counsel was able confront witnesses at trial in a much more effective manner. There are situations now where you are still fortunately able to elect to have preliminary hearing where the maximum jail term is 14 years or more.   Some examples where a preliminary hearing is still; available include, aggravated assault, large scale frauds over $5000, indictable sexual assault involving a child, drug trafficking, murder, break and enter, but not for an indictable sexual assault involving an adult complainant. It is important to note that preliminary hearings are still available for sexual assaults or sexual crimes against children, where the Crown elects by indictment because these serious types of charges have a maximum fourteen-year jail term.  So this is a relatively new criminal procedure law in Canada where an accused can only elect to have a preliminary hearing if they have been charged with a serious crime with a maximum of 14 or more years in jail.  There you have it; that’s what happened to preliminary hearings in Canada for sexual assaults and other crimes involving less than 14-year maximum sentences.