PRELIMINARY INQUIRIES ) These materials were prepared byandrew Mason; of Dufour &Company law firm.saskatoon,. Saskatchewan for the SaskatchewanLegal Education Society Inc. seminar, Criminal. Law Essentials;. ~.~ May 2002.
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PRELIMINARY INQUIRIES Prepared for the Saskatchewan Legal Education Society Inc. Criminal Law Seminar, May 23, 2002 by Andrew Mason General Provisions relating to Preliminary Inquiries The Preliminary Inquiry (PI) is governed by Part XVIII (sections 535-551) ofthe Criminal Code. It is available to all accused persons charged with offences that proceed by way ofindictment for which the maximum punishment is five years or more. Where the accused is charged with a s. 469 offence (e.g. murder), a PI is set without election. For other indictable offences, other than absolute jurisdiction offences (s. 553), the accused has an election and will have a PI ifhe/she elects trial by judge alone or judge and jury (i.e. not provincial court) - see section 536 ofthe Code. Purposes ofthe Preliminary Inquiry In law, the purpose ofthe PI is to determine whether there is sufficient evidence for a trial - s. 548. The standard of "sufficient evidence" is set by the Supreme Court of Canada's decision in United States of America v. Sheppard, [1977] 2 S.c.R. 1067, 30 c.c.c. (2d) 424 per Ritchie, J., (at p. 427 CCC): "I agree that the duty imposed upon a "Justice" under section 475(I)[currently section 548(I)J is the same as that which governs a trial judge sitting with the jury in deciding whether the evidence is "sufficient" to justify him in withdrawing case from the jury, and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "Justice" in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction."... I cannot accept the proposition that a trial judge is ever entitled to take a case from the jury and direct an acquittal on the ground that in his opinion the evidence is manifestly "unreliable". If this were the law, it would deprive the members of the jury of their function to act as the sole judges of the truth or falsity of the evidence and would thus, in my opinion, be contrary to the accepted role of the jury in our legal system. " This standard for committal was re-confirmed recently by the Supreme Court of Canada in R. v. Arcuri, [2001] 2 S.C.R. 828.
Page 2 In order to obtain a committal, the Crown must lead evidence with respect to each element ofthe offence. 1 Generally speaking, the evidentiary burden for committal is so low the Crown need only produce some evidence on each element of the offence - that it is rare where the accused is discharged at the PI. In practice, the PI serves another function: it allows both the defence and crown to take a long, hard look at the evidence. Ifit is carefully conducted, the PI will have more of an effect on the outcome ofthe trial than any other pre-trial procedure, including disclosure. The PI provides the accused with a chance to test the Crown's case and explore defences. Defence counsel has an opportunity to freely cross-examine Crown witnesses, to pin down testimony for purposes oftrial and to establish the factual underpinnings for future Charter applications. For the Crown, the PI gives the prosecutor an opportunity to assess the strength ofthe case and see how the prosecution witnesses respond to questioning. Bothcounsel and the accused are better equipped to predict the result ofa trial after a PI. Often charges are reduced or withdrawn and/or guilty pleas are entered before trial. The PI and the Charter In Mills v. The Queen, [1986] 1 S.c.R. 863,26 C.C.c. (3d) 481, the Supreme Court of Canada held that the PI court (provincial court) is not a "court of competent jurisdiction" within the meaning of section 24 of the Charter for the purpose of granting a stay of proceedings. In R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, (1991) 66 C.C.C. (3d) 321 the Supreme Court of Canada held that a PI judge does not have jurisdiction to decide the constitutionality of legislation relating to evidence (in that case, the 'rape-shield' provisions ofthe Criminal Code). In R. v. Hynes, [2001] S.C.J. No. 80,2001 SCC 82, 159 C.C.C. (3d) 359, the Court in a 5:4 decision held that the PI court is not a "court of competent jurisdiction" for the purpose ofexcluding evidence under s. 24(2) ofthe Charter. 1 In Re Skogman and the Queen, [1984] 2 S.C.R. 93, 13 C.C.r..(3d) 161 the Supreme Court of Canada held that where there is no evidence on an essential element of an offence, a committal will be set aside on judicial review. A discharge will be granted where evidence that is needed to prove an element of the offence is held by the PI judge to be inadmissible.
Page 3 As a result of these decisions, it is now clear that the defence cannot make Charter applications at the PI to exclude evidence or obtain other relieffor Charter violations. Although the PI is not the proper forum for raising Charter issues, the defence can use the opportunity to elicit evidence that may be useful for the purpose of Charter applications before the trial judge. Defence counsel should be aware of all potential Charter applications before he/she embarks on the PI. The accused him/herself may not be able to establish entitlement to Charter relief without support in the Crown's case. 2 Charter applications can be complex and time consuming. Most will require notice to the Crown prior to trial. Without a sound factual basis for the application based on evidence from the PI, it may not be practical or possible to obtain Charter relief from the trial judge. Admissibility ofevidence (non-charter) The PI judge may be called upon to decide matters relating to admissibility of evidence. Issues of relevance, hearsay, exceptions to hearsay and voluntariness will be decided by the judge conducting the PI. Where a statement ofthe accused is tendered, section 542 of the Code applies: 542. (1) Nothing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him. The crown must establish to the satisfaction ofthe PI judge on a voir-dire that a statement of the accused was voluntary. Voluntariness must be proven beyond a reasonable doubt at the PI: R. v. Pickett (1975), 28 C.C.C. (2d) 297 (Ont. c.a.). Similarly, the Crown may wish to introduce a statement from a witness under the rule in R. v. Khan, [1990] 2 S.c.R. 531, 59 C.C.c. (3d) 92, R. v. K.G.B., [1993] 1 S.C.R. 740, 79 C.c.c. (3d) 257. Where the crown seeks to admit such a statement, the PI judge must hold a voir-dire to determine whether the tests for admissibility (necessity and reliability) are met: see R. v. Seper (1997), 207 A.R. 296 (Prov. Ct.). ) 2 Counsel should keep in mind that on an application under s. 24 of the Charter, the accused has the burden of proving entitlement to relief on a balance of probabilities.
Page 4 Conduct of the voir-dire at the PI may different than at trial, particularly where success may require placing the accused on the witness stand. Ifthe statement is not essential to establish an element ofthe offence, there may be little to be gained and much to be lost by subjecting the accused to cross-examination at this stage. Perpetuated Evidence Defence counsel should be aware of the risk in failing to cross-examine a witness at the PI, or cross-examining too much. If the witness is not available at trial the evidence from the PI may be admitted. Section 715 ofthe Criminal Code provides: 715. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person (a) is dead, (b) has since become and is insane, (c) is so ill that he is unable to travel or testify, or (d) is absent from Canada, and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. The word 'may' implies that admission ofpi evidence under this section is discretionary. On an application to admit evidence under s. 715 the fact that counsel had full opportunity to cross-examination is sufficient. Whether the right was exercised is immaterial. Where, however, the opportunity to cross-examine was hampered by inadequate disclosure, the accused may successfully argue that he/she did not have a full opportunity to crossexamine the witness: R. v. Barembruch (1997), 119 C.c.c. (3d) 185 (B.C.C.A.). Publication Ban - s. 539(1) Particularly where the accused has elected or may re-elect to be tried by a jury, defence counsel should ask for a ban on the publication of evidence under section 539. This must be done before the hearing of evidence begins. This ban is mandatory if requested by the defence. The PI may provide the only opportunity to effectively prevent witnesses from hearing what other witnesses have said before giving evidence under oath.
Page 5 Approaches to the PI for Defence Counsel Defence counsel should review disclosure with the client to detennine possible defences and Charter applications relating to the case. A review of all the essential elements of the case and the evidence relating to each element is important. Counsel should explain to the client what the l~gal are and explainthe likelihood (or lackthereof) ofa discharge atthe PI stage. and practical purposes of the PI An analysis of the potential weaknesses in the Crown's case should be undertaken and consideration should be given to the potential for the Crown to fix up any weaknesses exposed by cross-examination. Counsel should use the PI to make an informed exploration of possible defences and Charter applications. Careful consideration should be given to the evidence that is needed by the defence in orderto establish Charter defences at trial. Counsel's demeanour when questioning certain witnesses may be different at the PI than at trial, although the reasons often may have more to do with style than strategy: Defence counsel may not wish to put the witness on his or her guard for the trial, by displaying an aggressive manner during cross-examination at the preliminary hearing. If, therefore, part of the plan is to attack the witness at trail, the cross-examiner may wish to lull the witness by friendly approach at the preliminary inquiry.3 Some counsel may be aggressive at the PI and assume a more friendly manner at trial. As a general rule, at trial counsel should not ask a question unless he/she knows what the answer will be or is confident that answer will not be harmful. This rule is not as strictly followed at the PI. Counsel may take a more discovery-like approach to questioning. The general approach of defence counsel to the PI will depend whether there is a good chance that the accused may be discharged. If a discharge is being sought, the PI should be conducted more like a trial. As the late G. Arthur Martin, Q.C., observed: "I have indicated so far in this discussion that usually a preliminary hearing should be conducted with a view to obtaining complete disclosure of the Crown's case. There are certain exceptions to that rule, as there are to all 3 Earl J. Levy, a.c., Examination of Witnesses in Criminal Cases, (4 th Ed., Toronto, Carswell, 1999) at p. 441.
general rules, and one exception is in the case where you, after having made an investigation before the preliminary hearing, have come to the conclusion that there is not sufficient evidence or not likely to be sufficient evidence to obtain the accused's committal for trial and where you intend, if he is committed for trial, to seek his release on a habeas corpus proceeding on the ground that there is no evidence. If you are contemplating following such a procedure, then you will conduct your preliminary hearing from an entirely different point of view. You will be alert to see that only admissible evidence is admitted. You won't go on any fishing expedition with the possibility of getting a bad answer. You will conduct the preliminary hearing just as though you were conducting a trial.,04 Page 6 A "dance like a butterfly" approach to questioning may be used at the PI (where counsel is not anticipating a discharge): asking short exploratory questions while maintaining a quick escape route if danger is sensed. Counsel should avoid exposing weaknesses that can be easily rectified by the Crown at trial. Where an important admission is obtained in cross-examination, counsel should "sting like a bee" and crystallize the evidence. The witness should be restated in a clear and succinct manner so that can the admission may be used at trial in the event that the witness should change his/her testimony. At trial, particularly a jury trial, it is not very effective to read in several pages ofevidence when attempting to contradicta witness. It is very important to "contain" the evidence of a witness at the PI. This is to enable counsel to handle a situation where the witness changes or adds to their testimony at trial. Here are some examples of such "containment" questions: the PI. "Is there any other detail about the appearance of this person that you can recall?" (answer: No). There is nothing you can add, or want to add, to your description? (answer: No). So the description you have given is both accurate and complete? (answer: Yes). "Have you told us everything you can recall about your dealings with the accused?" (answer: Yes). "Everything about your conversations with him?" (answer: Yes). So you have provided a complete account of what happened? (answer: Yes). As a general rule, counsel should be wary of attacking the credibility of a witness at Witnesses are very good at fixing up weaknesses in their testimony by the time of trial, so attacking credibility at this stage can be counter-productive. This would not apply if 4 GA Martin, a.c., "Preliminary Hearings," in Law Society of Upper Canada Special Lectures, Evidence (Toronto, Richard De Boo Ltd., 1955), p.20.
Page 7 there is reason to believe that the circumstances set out in s. 715 may be present at trial and the evidence from the PI admitted at trial. Counsel should anticipate the issues and consider what evidence, if any, should be called on behalf ofthe defence in any voir-dire to be held at the PI. Counsel may wish to call the accused where exclusion of the statement will result in a discharge. Otherwise, there is rarely anything to be gained by exposing the accused to cross-examination. Calling defence evidence at the PI The accused may insist on testifying at the PI, despite strong admonitions by counsel. It is the accused's right to testify. If the accused wishes to be heard at the PI, an unsworn statement may be made under s.541. This statement is not subject to cross-examination. There is no benefit to making such a statement since it cannot be used in favour of the accused, but ifthe accused insists on saying something, the s.541 procedure offers less risk. There may be reasons to call defence evidence. In Re Ward and the Queen (1976), 31 C.c.c. (2d) 466, at p. 470 (Ont. H.C.)., Cory, J. (as he then was) remarked: "There may well be cases where it is essential for the accused to call witnesses at this stage of the proceedings in order to make his "full answer and defence" at the time of his trial. Indeed, in some situations it may be impossible to establish the full defence of an accused, if he cannot call witnesses at the preliminary hearing. Such a right is well recognized." Arthur Martin once suggested that alibi evidence may be one example where the defence may wish to lead evidence at the PI. 5 Also, the accused may wish to call a witness who appears to have useful evidence but will not speak to defence counsel. If counsel is satisfied that the witness will not hurt the defence, it may be useful to subpoena the witness for the purpose of discovering what he/she will say. Nevertheless, it will be very rare that the accused will have anything to gain by calling evidence at the PI. The test for committal does not allow the PI judge to weigh the evidence at all. While there may be occasions when the calling of non-controversial evidence 5 Martin, Ibid at p. 18
Page 8 may render the Crown's evidence dubious on its face, thereby enabling the PI judge to discharge the accused, these cases will be exceedingly rare. 6 A partial Defence check-list - questions to ask yourself in preparation for a PI: o Has full Crown disclosure been provided? o Have you thoroughly reviewed disclosure with client? I o Have you explained to the client the purpose of the PI and the likelihood of discharge? o What are the essential elements of each offence? o What evidence does the Crown have on each element? o What are your potential defences (non-charter)? o Is there a reasonable prospect that the accused may be discharged? On what basis? o What evidence might the Crown be able to lead at trial if you demonstrate weaknesses in the Crown's case at the PI? o What are your potential bases for excluding evidence (non-charter)? o Will there be a voir-dire? Will the accused be needed in order to succeed? Does success matter at the PI (will it result in a discharge)? o What evidence do you require from Crown witnesses to support exclusion of evidence (non-charter)? o What are your potential Charter applications/defences at trial, including exclusion of evidence? o What evidence do you require from Crown witnesses to support Charter applications? o What are the potential dangers in eliciting evidence from the Crown witnesses on crossexamination? (be mindful of potential use at trial - s. 715) o Ask for ban on publication: s. 539(1) - mandatory when requested by defence. Also ensure that the Crown will be excluding witnesses until they have given evidence. Ask for an order preventing witnesses from talking to other witnesses who have not yet testified. o Pin down admissions into concise, useable form for use at trial. o Plan "containment" questions for crucial witnesses. o "Dance like a butterfly, sting like a bee". Andrew Mason, May 2002 6 In a case where all the evidence is circumstantial, there may be a reason to adduce evidence based on the test for committal set out in R. v. Nelles, 16 C.C.C. (3d) 97 (ant. Prov.Ct; There is some controversy whether Nelles is good law. It is submitted that Nelles is consistent with U.S. v. Sheppard. But see: R. v. Sittampalam, [1996] O.J. No. 3494 in which the judge declined to follow Nelles on the grounds that the test in Nelles was rejected by the S.C.C. in Sheppard.