Preliminary Hearings and Serious Criminal Cases

what is a preliminary hearing court canadaThe preliminary hearing serves a gatekeeper function under Canadian criminal law.  In short, it is a proceeding to determine whether there is sufficient evidence for a person to stand trial on the acts alleged.  The threshold required for a person to stand trial is very low.

The legal test is whether “a jury who is properly instructed and acting reasonably, could return a verdict of guilt on the evidence presented.”  There is little jurisdiction for a preliminary hearing judge to consider competing inferences that may establish innocence in the end.

If the case is circumstantial in nature, a preliminary hearing judge is permitted to engage in a limited weighing of that evidence in their assessment in the test above and in asking the question of whether a jury could still reasonably return a verdict of guilt.

Reasons for a preliminary hearing beyond committal to stand trial

Although preliminary hearings are rarely successful in having charges disposed of by way of an accused being discharged, they are of great benefit to all parties involved as it serves as an invaluable discovery mechanism so that the case is better understood for trial.  The preliminary hearing is very similar to the trial process.  Witnesses come to court and testify under oath, opposing counsel may cross-examine then, and judges will make rulings on admissibility of evidence.   As a preliminary hearing proceeds, there is little distinguishable difference between it and a criminal trial.   However, there are some differences that are of significance.

One major difference is that under certain sections of the Criminal Code, the prosecutor may introduce that may otherwise be inadmissible so long as the evidence is credible and trustworthy and the opposing counsel does not wish to hear from the witness (see ss.540(7) to 540(9) of the Criminal Code).

Another significant difference is that an accused would rarely call evidence at the preliminary hearing.  Although they have the right to, it would be unusual for an accused to present evidence as the test for committal is a one-way street and a judge is not permitted by law to consider what evidence to prefer if they contradict one another.

Who is entitled to a preliminary hearing?

Lastly, not every charge entitles a person to a preliminary hearing.  Preliminary hearings are only applicable to cases of a serious nature and proceeded by way of indictment.  An accused may waive his or her right to a preliminary hearing; however, the Crown Attorney also has the right to conduct one regardless of the accused’s waiver.