Q: I always hear in the media that someone is going through a preliminary inquiry. Is that the same as a trial? If not, what is it and why do we have them?
A: The preliminary inquiry, which is sometimes called a preliminary hearing, is not the same as a trial. It is not well understood by the general public, but there are good reasons for holding these hearings.
Preliminary inquiries are held when an accused person is facing serious criminal charges and chooses to have a trial in a higher court.
Read Also
Vintage power on display at Saskatchewan tractor pull
At the Ag in Motion farm show held earlier this year near Langham, Sask., a vintage tractor pull event drew pretty significant crowds of show goers, who were mostly farmers.
The preliminary inquiry is conducted before the trial as sort of a screening device. Its primary purpose is to see if the crown can bring forward enough evidence to produce the possibility that the accused could be found guilty.
If not, the accused is entitled to be discharged and does not have to face trial. If there is enough evidence, a trial proceeds.
A committal to stand trial does not mean that the accused is guilty or even probably guilty. It just means is that there is at least some evidence, even a little bit, against the accused to justify a higher court hearing all the crown’s evidence to determine guilt or innocence. People involved in this process and facing charges are still entitled to be presumed innocent until proven guilty.
Crown prosecutors do not have to call all the evidence against the accused person at a preliminary hearing. They just have to call enough evidence to show there is something to consider on each element of the charge facing the accused person.
If a person is facing a first degree murder charge, the crown must generally show that there is some evidence tending to prove that the accused person caused the death of the victim and that it was planned and deliberate.
If there is absolutely no evidence on even one of the necessary elements of a crime, the accused may be discharged and may not have to face a trial on the charge.
The test is usually relatively easy for the crown to satisfy. In my experience, most accused persons end up committed after the preliminary inquiry, and a full trial is held in front of a Queen’s bench judge, either with or without a jury.
It was originally intended to be a screen to ensure the higher court’s time was not wasted hearing lengthy criminal trials where there was not enough evidence to justify it. That is still the main purpose of a preliminary hearing.
Over time, a secondary purpose has evolved. The hearing allows defence counsel to receive insight into the Crown’s case and to question the Crown’s witnesses to see how they will react and if their testimony holds water.
It is an important discovery and preparation tool for the defence, because the defence lawyer essentially gets to test drive some of the crown’s witnesses before the trial.
Sometimes those witnesses will contradict themselves at trial and give a different account of events than they gave under oath at the preliminary inquiry. This can cast doubt on the truthfulness or reliability of the witness.
When you read or hear about preliminary inquiries in the media, usually it is the bare bones of the case. That is because most hearings are subject to a publication ban on the actual evidence presented so that potential jurors are not tainted in their outlook and can remain fair and impartial. As a result, it is important to remember that the trial is the real test of an accused’s guilt and not a preliminary inquiry.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions when dealing with legal matters.
