Although a Justice at a preliminary inquiry has no jurisdiction to entertain Charter applications, a Justice at a preliminary may nevertheless consider Charter “values” in exercising their statutory powers. For example, this consideration of Charter values by a Justice at a preliminary was considered in relation to making orders directed at witnesses such as wearing a hijab in court. The Justice was entitled to consider Charter values in permitting the witness to wear the hijab as part of the Justice’s powers to regulate the proceeding.
A Judge or Justice presiding at a preliminary hearing may be considered a “creation of statute” because the Judge is limited to the powers specifically outlined in the Criminal Code provisions; possessing no more than but also no less than the powers specifically provided beginning at section 537 of the Code.2 If the powers are not found within the provisions of Part XVIII then they do not exist. For example, the power to order production of a statement via section 10 of the Canada Evidence Act is limited to the circumstance of a “trial” and therefore a preliminary hearing Judge does not have the power to order production of a statement.
Continue reading “The Role of the Judge in a Preliminary Healing”
The Late Great Edward W Ducharme
On June 2 The Late Great Edward W Ducharme was reunited with his great mother Teresa Ducharme. Edward was PJD’s best friend and most trusted partner for many years prior to his ascension to the bench and later to the Court of Appeal for Ontario, and his subsequent ascension to a higher realm.
The Purpose of a Preliminary Healing
Section 548 provides the test: to determine if there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
The duty imposed upon a Justice under section 548 is the same duty that governs a trial Judge sitting with a jury in deciding whether the evidence is insufficient to the point that a directed verdict of acquittal should be ordered, and, is also the same duty imposed upon a Judge asked to decide on whether a person should be extradited.
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Preliminary Hearings: The Test for Committal
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| Patrick Ducharme |
The Judge presiding over a preliminary inquiry must decide whether the accused should be committed to trial or be discharged. This determination is described in section 548 of the Code. An order of committal to trial is made when the Justice presiding is of the opinion that there is “sufficient evidence” to put the accused on trial for the offence charged, or, any other indictable offence in respect of the same transaction. This finding results in an order to “stand trial.” The prosecutor who is seeking to obtain an order that the accused stand trial must produce sufficient evidence of the charge(s) before the court or any other indictable offence in respect of the same transaction.
If, however, the presiding Justice is of the opinion, on the whole of the evidence, that there is not sufficient evidence to put the accused on trial for the offence charged, or any other indictable offence in respect to the same transaction, the Justice will “discharge” the accused. A discharge order by the Justice at the completion of a preliminary inquiry is not the same as an acquittal.
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Preliminary Hearings
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| Patrick J Ducharme |
To read about strategies and tactical considerations for preliminary hearings, see chapter four of my book, Criminal Trial Strategies.
Overview
The basic function of a preliminary hearing is to determine whether the case moves on (an order of committal) or stops (an order of discharge).
Pre-trials: Summary
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| Patrick Ducharme |
A significant decision by the Ontario Court of Appeal is R. v. McCallen1. In this case the court held that the subsection 10(b) right to counsel includes the right to retain counsel of choice and to be represented by that counsel throughout the proceedings. Justice O’Connor, for the court, provided the following analysis of this subsection 10(b) right:
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Pre-trials: Counsel of Choice
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| Patrick Ducharme |
The right of an accused to retain counsel of choice has long been recognized as a fundamental right. It is now included in the Charter. It is not, however, an absolute right and is subject to reasonable limitations in determining the individual’s right to select counsel of choice. The court must balance that right with public policy and public interest in the administration of justice and basic principles of fairness.
Pre-trials: Conflicts
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| Patrick J Ducharme |
Rule 2 (Relationship to Clients) of the LSUC’s Rules of Professional Conduct provides that the lawyer must not advise or represent both sides of the dispute, and, save after adequate disclosure to and with the consent of the client or prospective client concerned, should not act or continue to act in a matter when there is or is likely to be a conflicting interest.
Pre-trials: Release of the Exhibits for Testing
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| Patrick Ducharme |
On three days notice by either party, the court may order the release of any exhibit for the purpose of a scientific or other testing, subject to such terms as appear to be necessary to safeguard the exhibit.
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Pre-trials: Particulars
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| Patrick Ducharme |
Where the court is satisfied that particulars are necessary for a fair trial, the prosecutor will be ordered to furnish particulars. In determining whether a particular is required the court may consider any evidence that has been taken.
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