Criminal Law – Preliminary Hearings

Criminal court processes can be complex and difficult to understand, especially for those involved. In Ontario, before cases of indictable (serious) offences go to trial, the Court usually holds a hearing called the preliminary hearing or preliminary inquiry, to determine whether there is sufficient evidence to send to the case to trial. The judge will consider and decide whether the Crown Attorney has enough evidence against the person such that a reasonable jury that is property directed could convict them. Where it is found that there is insufficient evidence, the accused is typically discharged, and the case is dismissed. If sufficient evidence to support a trial is found and the accused pleads not guilty, the Court will then set a trial date.

Preliminary hearings are held at the Ontario Court of Justice. Offenses requiring preliminary hearings can vary in seriousness, though such hearings are generally held for offenses that are punishable by 14 years of imprisonment or more if found guilty, such as aggravated assault or murder. Generally, in Toronto, cases that have preliminary court hearings do go to trial. This is because, at the hearing, the Crown does not have to prove your guilt beyond a reasonable doubt, but rather just has to show that there is some evidence that can be presented at trial to find you guilty.

An accused has the option to waive his/her right to a preliminary hearing – this would mean they are not admitting guilt but are accepting that there is enough evidence to go to trial. However, the Crown also has the right to conduct such a hearing regardless of the accused’s waiver. In the case where more than one person has been accused of a crime, only one accused is required to ask for a preliminary hearing; however, all other co-accused would be required to attend the hearing unless the court decides to hear and decide their cases separately.

Process of Preliminary Hearing

A preliminary hearing is much like a trial, but much shorter. Typically, the Crown would present the most important parts of the evidence against the accused and may call witnesses to testify under oath. The accused generally does not present any evidence at this hearing. Where Crown witnesses are called, the defense lawyer will have the right to cross-examine them. While it is the prosecutor’s job to show the judge that there is enough evidence to move forward with a trial, this hearing can also provide criminal defense lawyers with the opportunity to explore the Crown’s case for the upcoming trial and prepare their defense accordingly. It also provides the accused with an idea of the strength of the case against them, which could then guide their choice of legal options moving forward.

 After the accused and the Crown make closing statements about whether or not a trial should be had (or if the accused concedes committal to trial), the judge would decide whether there is enough evidence and if the accused has been “committed to stand trial.” The trial would then be held at the Superior Court of Justice.

Should You Accept Your Right to a Preliminary Hearing?

               Before deciding whether to accept a preliminary hearing or not, it is recommended that you speak to a lawyer or duty counsel. You should consider whether a hearing would help or weaken your case. A preliminary hearing can be beneficial in cases where you wish to hear the Crown’s case and evidence against you; you need evidence from Crown witnesses who are unlikely/unable to come to the trial at a later date; or you wish to show the Crown their weaknesses, which could help in the negotiations for the resolution of the case.

On the other hand, you may not want to have a hearing if it may significantly delay your trial; if you cannot afford both a hearing and a trial; or if you would prefer to not expose the weaknesses in the Crown’s case against you, as it would allow them to correct those mistakes before the trial. If you choose to move forward with the hearing, you would be required to fill out a Notice of Election form choosing which court you wish to have a trial at, along with a Statement of Issues that lists the Crown witnesses you wish to hear from and the issues you wish to hear evidence about.

If you have been charged with an offense and require assistance or legal advice on whether you should proceed with a preliminary hearing, please do not hesitate to contact us, and our specialist Criminal Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.

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