Once upon a time the preliminary hearing was a much simpler proceeding than it is today. You heard from the complainant on the sexual assault or the robbery, and your client, having seen and heard the evidence, either changed or confirmed his instructions. You had a dry run at the evidence, boxed the complainant in a bit, and committal was a near certainty if the witness testified.
It is not clear that this is the case anymore.
The preliminary hearing serves different functions, of course. For the defence, it is important for disclosure and to see if the client will be committed on fewer charges, as a discharge is not likely. There is always the risk, of course, of more charges being added to the indictment. One of the advantages for the defence is possibly getting a transcript that will lay the groundwork for the Charter violation that you will be advancing at trial. One of the great disadvantages is that the witnesses will get too
comfortable with you, too familiar with where you are going.
The preliminary hearing also has an important screening function. And it is this screening process that I want to address because it has begun to develop recently in the case law.
Some years ago I did a preliminary hearing in a circumstantial homicide case, where three potential suspects, including the two accused, lived in the same house, and I successfully argued that the evidence was insufficient for committal.
This is the principle that was set out by the Supreme Court of Canada in 2001’s R. v. Arcuri: in a circumstantial case the preliminary hearing judge is required to engage in a limited weighing of the evidence. This is because with circumstantial evidence there is an inferential gap - a mental leap that must be taken - between the evidence and the matter to be established.
Section 548 (1)(b) of the Criminal Code requires the judge to discharge the accused “if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial.” Supreme Court of Canada Chief Justice Beverley McLachlin, writing for the majority in the 2001 case R. v. Hynes, at paragraph 30 held that the preliminary hearing is “a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial.”
I think that one can start looking at the recent extradition cases as being exemplary of the direction in which the law is moving, and that is because the leading case on the law of committal has long been the 1977 SCC case United States v. Shephard.
In United States v. Ferras (2005), McLachlin, at paragraph 369, held that it would violate the principles of fundamental justice in s. 7 of the Charter if the extradition judge were to be a “rubber stamp.” The judge should not commit if on the evidence as a whole it would be dangerous or unsafe to do so (at p. 378). The court noted that Shephard was a pre-Charter case, modified only by Arcuri.
Most significantly in Ferras, McLachlin stated, “I take as axiomatic that a person could not be committed for trial for an offence in Canada if the evidence is so manifestly unreliable that it would be unsafe to rest a verdict upon it.”
Put that quotation in your briefcase for your next preliminary hearing.
In United States v. Thomlison, release Jan. 17, the Ontario Court of Appeal reiterated this at paragraph 9 and held that the evidence for an application for extradition must meet the test of being available for trial and “not manifestly unreliable.”
This is an important new gloss on the case law for preliminary hearings, and there appears to be much greater scope to argue against committal than there was prior to United States v. Ferras.
It is time to challenge committal for trial in cases with disreputable, unreliable witnesses so that the preliminary hearing can have the important screening function that s. 548(1)(b) of the Criminal Code appears to assign to it.
Rosalind Conway practises criminal law in Ottawa. She can be reached at firstname.lastname@example.org