Nov 21

A preliminary hearing is a hearing held by the court to determine if there is sufficient evidence for a case to go to trial. The test is whether there is sufficient evidence that a jury properly instructed could convict. The trial judge does not weigh the evidence, but considers whether the Crown’s case, at its highest, is sufficient for committal.

Who Is Entitled to a Preliminary Hearing?

Only accused charged with an offence that carries a maximum penalty of 14 years plus is eligible for a preliminary hearing. If your criminal charges meet this threshold, you would need to formally request a preliminary hearing when you elect your mode of trial.

Why Should I Conduct a Preliminary Hearing?

Beyond the possibility of being discharged of your charges, the preliminary hearing can still have a substantial impact on your case. A preliminary hearing allows you to challenge the civilian and police witnesses, it would allow you to see potential holes in the Crown’s case or allow you to build a record for a Charter application.

After a preliminary hearing, even if you are not discharged, the Crown will need to reassess the strength of their case. This could lead to a new resolution position or the end of the Crown’s case. This may also occur during an exit judicial pre-trial which is conducted by the preliminary hearing judge. During this judicial pre-trial, your lawyer, the Crown and will have a discuss and the judge will provide their opinion as to the merits and strength of the case.

What Happens at a Preliminary Hearing?

The Crown will call witnesses that are important to establish committal. Other witnesses may be called for a discovery function, if they are not required for committal, but they have been requested by the defence.

When a witness is called, the Crown would conduct their examination-in-chief, while your counsel would have the opportunity to cross-examine the witnesses called by the Crown after the Crown has questioned their witness. It is rare for the defence to call evidence at the preliminary hearing stage.