What Is a Preliminary Hearing?

Alexander Karapancev

Alexander Karapancev

The Court will have a preliminary hearing to determine whether there is sufficient evidence to proceed to trial. There are only a few indictable offences that receive preliminary hearings. Only cases involving indictable offences carrying sentences of 14 years or longer are eligible for preliminary investigations. The Ontario Court of Justice, often known as Provincial Court, is the venue for all preliminary inquiries.  

The prosecutor presents the key pieces of the prosecution’s case against the defendant at the preliminary hearing. To present evidence, the prosecutor may call witnesses. The outcome of a preliminary hearing does not establish guilt or innocence. The hearing is used to decide whether there is sufficient evidence to commit the accused to stand trial. Whether there is sufficient evidence that a jury with the right instructions may use to convict someone is the litmus test for committal. If you are not ordered to stand trial, your case will be concluded and you will be discharged. A preliminary inquiry is another name for a preliminary hearing.

What Happens at a Preliminary Hearing?

A preliminary inquiry’s main goal is to ascertain whether there is sufficient evidence to proceed with the accused’s trial. A secondary function of the preliminary hearing is its discovery aspect for the defence.

This means what happens at a preliminary hearing is the Crown typically calls witnesses to testify so that it can show that there is enough evidence to commit the accused to trial. The defence lawyer on the other hand, normally cross-examines the Crown witnesses to discover what their evidence will be at trial, locate problems in their evidence, and in applicable situations, cross-examine to show that there is not enough evidence for the judge to commit the accused to stand trial. 

At the preliminary inquiry, the Crown is not required to establish the charges beyond a reasonable doubt. For the matter proceed to trial, all they need to demonstrate is that there is sufficient evidence for a propertly instructed judge or jury to find the accused guilty. This requires that the judge must essentially accept that what they hear from the witnesses during the preliminary inquiry as truthful rather than taking the credibility of the witnesses into account. The preliminary judge must commit the accused to stand trial if the totality of the evidence—assumed to be credible—would be sufficient for the accused to be found guilty. The preliminary judge’s sole responsibility is to determine if there is sufficient evidence to commit the accused to face trial. It is the jury’s or the trial judge’s responsibility to evaluate witness credibility and determine whether they are reliable. 

The preliminary hearing judge must still weigh the Crown’s evidence in a circumstantial case, but only to the amount necessary to determine whether or not it supports a reasonable inference of guilt. The purpose of this is to safeguard the accused and prevent the improper and unnecessary exposure of an accused to a public trial if the Crown does not have enough evidence that could establish guilt. 

How Long Is a Preliminary Hearing?

A preliminary hearing can vary in length depending on the nature of the case. For some simpler cases, the preliminary hearing can last a day or two. For other more complicated cases and cases with many witnesses, they can go on for weeks. 

The Criminal Code provides provisions that permit the Crown to streamline the calling of certain evidence to shorten the length of the proceeding. A common such section relied upon is s.540(7) of the criminal code. 

Can Charges Be Added After a Preliminary Hearing?

The accused must be discharged by the judge following a preliminary hearing if there is insufficient evidence to proceed to trial. If all charges against an accused are dismissed, the case will be closed. There won’t be any more proceedings. This does not occur frequently. Some of the charges brought against an accused person may be dismissed, but others may not. A judge may also decide to order the accused to stand trial on all counts raised at the preliminary hearing. 

Additional charges may be filed if new criminal offences that the accused was not initially charged with are revealed by the evidence presented during the preliminary hearing. For the Crown to be able to ask that the accused be committed to further fresh charges, the requisite legal test must be satisfied.

What Comes After a Preliminary Hearing?

The judge will determine at the conclusion of the hearing whether there is sufficient evidence to send the accused to trial in the Supreme Court. The question is whether a reasonably instructed jury could find a defendant guilty based on the evidence presented during the preliminary hearing. The accused will be discharged and the case will be end if there is insufficient evidence. 

If the accused is committed to stand trial, the next step in Toronto and commonly throughout Ontario is that the matter will be sent to an Assignment Court date at the Superior Court of Justice. At the Superior Court, the Crown will file an Indictment with the charges for which the accused is standing trial. At the Superior Court the Crown and Defence will typically have one or more Judicial Pre-trials with a judge to determine what issues are at play and to develop trial estimates. A Judge will then authorize a trial estimate for the number of days they believe the trial will take. Following this, the trial coordinator will work with the parties and schedule the matter for trial. 

Toronto Criminal Lawyer

A seasoned criminal lawyer in Toronto, Alexander Karapancev has offices in the heart of the city’s legal district as well as an office in Mississauga. He is aware of the significant difficulties that come with being charged with a serious offence. Your personal and professional lives could be impacted in these situations. He vigorously and professionally defends his clients in court all throughout Ontario. If you are looking for a top Toronto criminal lawyer, do not hesitate in calling our office.

Alexander Karapancev

Alexander Karapancev

Alexander Karapancev is a Toronto criminal lawyer practicing throughout the province of Ontario. He regularly serves as lead trial counsel on serious and complex criminal cases. He is the founder of Karapancev Law, a law firm representing clients facing criminal charges, regulatory offences, and professional discipline proceedings.

Mr. Karapancev has acted as counsel in hundreds of cases throughout the province of Ontario, regularly representing clients at trials, applications, bail hearings and preliminary inquiries. He is regularly retained to defend individuals charged with serious allegations of fraud, drug trafficking, DUI offences, domestic assault, and sexual assault. Prior to founding his law firm, Mr. Karapancev practiced criminal defence at a boutique Toronto law firm and also served as a per diem Crown prosecutor.

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