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Preliminary Hearings Simplified: What Are They and How Do They Help?

By Layo Adeusi and Richard J. Aitken

What is the Purpose of a Preliminary Hearing?

A preliminary hearing is used to as a means for the Crown to prove that they have a good enough case to go to trial. Its purpose is to filter out weak cases before they are set for trial. This protects the accused from any unnecessary or harmful exposure to a public trial. To be committed to trial the Crown must prove using the test in United States of America v. Shephard that there “is any admissible evidence upon which a reasonable jury, properly instructed, could convict beyond a reasonable doubt.” This is a very low threshold. Not every case is entitled to have a preliminary hearing. It is only in the most serious of charges.

What Happens at the Preliminary Hearing?

A preliminary hearing is an inquiry designed to determine whether there is sufficient evidence for your matter to go to trial. It takes place in court with a Crown attorney, defence counsel, and a judge. Its purpose is to allow the Crown to calls its evidence against the accused usually through witnesses who take the stand and testify.

How Can This Help Your Case?

In certain cases, a preliminary hearing can be an important proceeding for the defence as it is an opportunity to test the strength of the Crown’s case against the accused. The defence is not looking to provide any defences or heavily scrutinize the evidence against the accused. It is a chance to see the Crown’s evidence, assess their witnesses and find any weaknesses in the Crown’s case. The defence should be asking open questions in order to expand the record and to allow the witnesses an opportunity to make statements that they may contradict at trial. The defence does not usually submit evidence simply because they don’t have to. There is no need for them to show their hand and give the Crown an opportunity to come up with evidence against the defence before it is presented at trial. At the conclusion of the hearing, the accused is either committed to trial, or discharged (which means victory for the accused).

An Example From Our Firm

Our client, Ms. X, was charged with forgery as a result of proceedings at the landlord and tenant board. She presented the board with an agreement of purchase and sale for a home she had been renting for over 20 years. The owners of the home accused her of presenting a false document and she was therefore charged with forgery.

At the preliminary hearing, the two co-owners were called to testify. The Crown opened a line of inquiry into several documents presented as evidence. In cross examination the defence council asked several open questions regarding the evidence. The purpose of which is to allow the witnesses to go on record with what they could or could not remember and ultimately was able to spot some holes in their stories which may be helpful when evidence is presented on behalf of the defence at trial. This also gave the defence council an opportunity to assess the character and persuasiveness of the witnesses before the trial.

A preliminary hearing can be very useful for the defence, and your lawyer should be able to conduct it in order to prove to the judge that the Crown has not shown sufficient evidence for the matter to go to trial, or achieve a favourable outcome to put you in the best position before the matter goes to trial.

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