If you have been charged with a crime, the smartest way to protect yourself is to hire a criminal defence lawyer to assist with your case.
If you have been charged with a crime, there are a number of court appearances that typically take place prior to the final trial and/or sentencing hearing. Some of the pre-trial court appearances could be to adjourn the matter while awaiting further evidence form the crown, it could be for the purposes of scheduling a trial, etc. One of the most complex pre-trial court appearances is the “preliminary inquiry”. Preliminary inquiries are only available where an accused has been charged with an indictable offense (an indictable offense is one that is more serious in nature). Or where the accused has been charged with a hybrid offence and the crown has elected to proceed by way of indictment.
A preliminary inquiry must be requested by either the crown or the defence. If there are more than one accused, if one requests a preliminary inquiry there will be a preliminary inquiry for all of the accused.
Purpose Of The Preliminary Inquiry
There are two purposes for conducting a preliminary inquiry.
- To protect people from having to go through the ordeal of a trial when there is not enough evidence to justify a trial. This is the primary purpose for the preliminary inquiry.
- To assist the accused in getting further disclosure of the Crown’s case. This purpose is less relevant as there are now expansive rules surrounding the Crown’ obligation to disclose their evidence to the defence. However, the preliminary inquiry can still be useful to question and assess witnesses.
Test To Move Onto Trial
Since the main purpose of the preliminary inquiry is to assess whether there is enough evidence to warrant a trial, the courts have established a test to answer that question. There test, as established by the Supreme Court of Canada is; is there sufficient evidence upon which a reasonable and properly instructed jury could return a verdict of guilty.
The judge is not deciding guilt or innocence but rather looking at the evidence and deciding that if the evidence is believed could a jury find the accused guilty. If the answer is yes, a trial can be ordered and if the answer is no the accused would be discharged.
What Happens At The Preliminary Inquiry?
The crown and defence would both present their case and evidence and both sides also have the option of calling witnesses. Witnesses called to the stand can be questioned by the other side via a process known as “cross examination”. After the parties’ finish presenting their evidence the judge would decide whether there was sufficient evidence to warrant a trial or not.
Whether or not to request a preliminary inquiry can be highly strategic consideration for an accused and their defence team. There are a number of factors to consider prior to moving forward. Hiring a competent criminal lawyer, you can be given guidance on your specific case on all of your pre-trial options. Mehdi Au LLP has criminal lawyers working in Markham that may be able to assist you with your case.
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