Preliminary hearings, also known as preliminary inquiries, play a crucial role in the Canadian criminal justice system. These court hearings are to determine if there is enough evidence to require a trial.
The Legislative Change of 2019
Overview of the Change
On September 19, 2019, the Canadian Parliament enacted a law that fundamentally altered the landscape of preliminary hearings. This legislation eliminated the option for preliminary hearings for all offences, except those carrying a potential sentence of fourteen years or more in jail.
Impact on Charges with Lower Maximum Sentences
For charges like sexual assault on an adult, which have a mandatory maximum sentence of ten years in jail, the right to a preliminary hearing has been removed. This represents a significant change from previous standard legal practices, affecting how defence strategies are formulated for such cases.
The Purpose and Value of Preliminary Hearings
Definition and Function
A preliminary hearing serves as an evidentiary screening function, allowing the Crown to present key evidence and bring witnesses to the stand. The objective is to demonstrate that there exists sufficient evidence upon which a reasonable jury properly instructed, could potentially convict the accused. If the Crown’s evidence at preliminary inquiry satisfies this test, then the matter will proceed to trial. If the test is not met, then the charges will be dismissed.
The Screening Test
The bar or requirements for advancing past a preliminary hearing to trial is relatively low, making it rare for a case to be dismissed at this stage. However, the true value of a preliminary hearing lies in its function as a discovery tool for the defence.
Strategic Importance for the Defence
Discovery and Strategy Formulation
Preliminary hearings have traditionally offered defence lawyers the opportunity to cross-examine the Crown’s witnesses and evidence under oath. This process is extremely important in identifying inconsistencies and formulating strong defence strategies for trial.
Challenges Posed by the Legislative Change
With the restriction of preliminary hearings to only the most serious criminal offences, defence lawyers face new challenges. Particularly in sexual assault cases involving adults, the absence of a preliminary hearing means going into trial with less insight into the prosecution’s case, potentially impacting the defence’s ability to effectively challenge the credibility and reliability of witnesses.
Concerns and Criticisms
Potential for Miscarriages of Justice
The limitation on preliminary hearings has sparked widespread concern among legal professionals and lawyers. There’s a growing apprehension that this change may lead to an increase in miscarriages of justice, particularly for individuals who might have benefitted from the detailed scrutiny and strategic advantages provided by preliminary inquiries.
The 2019 legislative changes to preliminary hearings mark a significant shift in Canadian criminal law, with profound implications for legal defence strategies and the overall fairness of the judicial process. While the intention behind these reforms may be to streamline legal proceedings, the potential impact on the rights of the accused and the integrity of the justice system warrants careful consideration and ongoing evaluation.
Video Transcription:
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.
