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Important Strategy to Deal with the Loss of the Preliminary Hearing

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By Joseph Neuberger

Neuberger & Partners

Criminal Defence Lawyers

Preliminary hearings have played an important role in the justice system ever since the Criminal Code of Canada was introduced in 1892. As a result of these hearings, many cases have been granted “stays” of proceedings – meaning that they did not proceed to trial, or charges withdrawn as the Crown often re-assesses reasonable prospect of conviction.  The Crown always has the responsibility to continually and judiciously reevaluate its case.  Having cases dismissed at an earlier stage, can help save the accused considerable time, money and stress when it is found that there is not enough evidence to proceed with a trial.   It also has the benefit of rooting out cases that lack merit and clogging the courts with unnecessary trials.

In the summer of 2016 however, new legislation was introduced to eventually end preliminary hearings for all but the most serious of crimes.  Bill C-75 came into force on September 19th, and for any offence punishable with a jail sentence of less than 14 years are no longer eligible for a preliminary hearing.

How Preliminary Hearings were Used in the Past

In the past, preliminary hearings have played an important role in identifying weaknesses in the Crown’s evidence, not only preventing the accused from facing a potential loss of liberty but also sparing some complainants from having to testify in front of a jury and be exposed to very significant credibility issues.

Everyone engaged in the legal system, including the Crown, benefited from getting through the process faster and preliminary inquiries have historically provided a means for early resolution.  This incudes cases that resolve by way of guilty pleas as well.  I imagine that all fair-minded Crown Attorney’s will agree that preliminary hearings conducted in an efficient manner provide a robust tool for rooting out cases that should not proceed.  And it is important to note that in most preliminary hearings, the actual court time utilized ranged from less than one day to a few days but were never run-away proceedings, at least for those that involved offences punishable of less than 14 years.  Most commonly in sexual assault and domestic assault cases.  This was also partly due to past amendments to the Criminal Code which made running of preliminary hearings very efficient, that saved considerable time.

For people accused of sexual assault and or domestic assault, particularly those that arise from a high conflict divorce, preliminary hearings have provided a tremendously important opportunity to explore important evidentiary issues, that are far better examined prior to trial.  But that is now all gone.

Impact on Due Process

With the new changes, a person charged with a criminal offence under 14 years jail, will no longer have access to such an important hearing and now preparation for cross-examination of untested witnesses at trial must be undertaken in a very careful and detailed manner to ensure that all important evidence to a defence is brought forth.  This loss of a preliminary hearing increases the burden on the criminal defence lawyer to identify and prepare in advance for information gaps that may cause trial delays.

Stronger, Better-Prepared Defence Lawyers Are a Must!

With the elimination of preliminary hearings, comes the loss of an opportunity for defence lawyers to fully vet their witnesses. While police reports are usually available, they rarely capture the full complaint sufficiently and witnesses cannot be held accountable to the version of their statements reported second hand.

Additionally, not every police investigation acquires comprehensive statements from a complainant or witnesses under oath and it has been common for both prosecutors and defence lawyers to learn new information about the case in the course of cross-examination.  Because of this, lawyers must be extremely well versed in art of cross-examination and now expand the use of pre-trial defence investigations.  We are Neuberger & Partners LLP have expanded our use of private investigators and forensic experts to assist us in crafting defence strategies and to acquire evidence to assist our clients.

Once a trial is underway, delays are both disruptive and costly. The loss of preliminary hearings means that lawyers may find themselves in the difficult position of having to ask questions to which they don’t know the answer and make effective use of that information as the trial progresses in real time and this is where detailed pre-trial preparation comes in and defence investigation.

The Best Way to Avoid Wrongful Conviction!

Constitutionally, the accused must know the full evidence against them before launching their defence to both ensure trial fairness and guard against wrongful convictions. It is important that all accused facing criminal charges communicate more robustly with their lawyers to ensure a smoother trial process and proper preparation to maintain their advantage at trial.

While the changes to preliminary hearings are new legislation, the importance of having an experienced defence lawyer remains the same. Now more than ever, if you have been charged with a crime, you will require an experienced defence lawyer on your side. Contact Neuberger & Partners today to schedule a consultation.

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