A criminal conviction can have devastating consequences. It can mean time in jail, a fine, or a permanent criminal record. In some cases, it can also mean being deported from Canada. Therefore, if you have been charged with a crime, it is important to understand the process and what your options are at each stage. One of the most critical stages in the Canadian criminal process is the preliminary inquiry, a hearing that takes place for serious offences, also known as indictable offences.
In Ontario, accused persons will have their trial either in the Ontario Court of Justice or in the Ontario Superior Court of Justice. For charges that call for penalties that do not exceed two years less a day, the case will typically be held in the Ontario Court of Justice and the accused is not entitled to a preliminary hearing. On the other hand, serious or “indictable” offences that have maximum penalties of 14+ incarceration, such as murder or serious sexual assault, will be tried in the Ontario Superior Court of Justice and the accused is entitled to a preliminary hearing.
Visit this post to read a comprehensive overview of Canadian criminal trials work in Ontario.
What is a Preliminary Hearing?
A preliminary hearing is a hearing before a judge to determine if there is enough evidence for the case to go to trial. The Crown must prove there is enough evidence to believe you committed the offence and that a trial would be in the public’s best interest. A preliminary hearing is not a trial. Here, the Crown is not responsible for proving beyond a reasonable doubt you committed the offence. Rather, they must only show there is enough evidence to go to trial.
If the judge determines there’s enough evidence, the case will go to trial. Being sent to trial is also referred to as being “committed to trial.”
What Happens at a Preliminary Hearing?
This hearing or inquiry is held in front of a judge. The Crown prosecutor presents evidence against you, the accused, to the judge. This may include witness testimony, police reports, and other evidence. You or your Ontario criminal defence lawyer will have an opportunity to cross-examine the witnesses. After hearing all of the evidence against you, the judge decides if there is sufficient evidence for the case to go to Canadian criminal trial.
You will be ordered to stand trial if the judge decides there is enough evidence. The preliminary hearing is important because it allows you to see the evidence against you and test the credibility of the witnesses. It also allows your lawyer to negotiate with the Crown about what charges should be laid.
What Happens if the Judge Decides There is Not Enough Evidence?
If the judge decides there is insufficient evidence, you will be discharged, which also means the case is dismissed.
Serious Criminal Hearings
As previously mentioned, those accused of indictable offences or serious criminal offences are entitled to a preliminary hearing in Ontario. But what exactly are serious criminal offences?
Some examples of serious criminal offences that call for preliminary hearings in Ontario are:
- Aggravated assault
- Sexual assault
If you have been charged with any of the above offences, or any other indictable offence, you are entitled to a preliminary hearing. However, this does not mean you have to have one. You can also choose to waive your preliminary hearing and go straight to trial. This is a decision that must be weighed carefully with your lawyer, as there are pros and cons to both preliminary hearings and waiving them.
Pros and Cons of Preliminary Hearings
Preliminary hearings offer several advantages. They give you the opportunity to:
- Hear the evidence against you and assess its strengths and weaknesses
- Cross-examine Crown witnesses
- Gauge the Crown’s case against you
- Make decisions about how to proceed with your defence
However, preliminary hearings also have some disadvantages. These include:
- The preliminary hearing may take longer than going straight to trial, which can cause delays in the court process
- The preliminary hearing may be used as a “dress rehearsal” for the trial, giving the Crown an opportunity to fine-tune their case against you
Waiving Your Preliminary Hearing
If you do choose to waive your preliminary hearing, this does not mean you are admitting guilt. Instead, you are simply choosing to forgo the preliminary hearing and proceed straight to trial.
There are a few reasons you may choose to waive your preliminary hearing.
- You believe the evidence against you is strong and you want to avoid a lengthy court process
- You want to get the case over with as quickly as possible
- You want to prevent evidence that could affect your bail status
- You’re hoping to avoid generating publicity about the case
Remember: making the decision to waive your preliminary hearing is a difficult one. You should discuss all of your options with your lawyer before making a decision. You can view an overview of the full criminal trial process through this article: How Does a Canadian Criminal Trial Work in Ontario?
Preliminary Hearing FAQs
Now, let’s answer some preliminary hearing FAQs.
What is the difference between preliminary hearings and a trial?
A preliminary hearing is held in front of a judge to determine if there is adequate evidence for the case to go to trial. A trial is held in front of a judge and jury and determines whether or not the accused is guilty of the charges against them.
Who decides if there is enough evidence for the case to go to trial?
At a preliminary hearing, the judge hears all of the evidence and decides if there is enough evidence for the case to go to trial.
What happens if I miss my preliminary hearing?
If you miss your preliminary hearing, a warrant may be issued for your arrest. This means you can be arrested and taken into custody until your next court date. In addition, if you are out on bail, your bail may also be revoked. So, attending all of your court dates is crucial, as missing one can have serious consequences.
Preliminary Hearings: Conclusion
Preliminary hearings play an integral role in the criminal justice system in Canada. They offer accused persons the opportunity to hear the evidence against them, cross-examine witnesses, and decide how to proceed with their defence. While preliminary hearings do have some disadvantages, they can be a valuable tool for those facing serious criminal charges.
If you have been charged with a serious criminal offence, speak with a lawyer immediately about your options. A lawyer will be able to help you decide if a preliminary hearing is right for you, and will guide you through every step of the process.
We strongly encourage you to contact a criminal lawyer at KIVLaw in Ontario today. Our team of experienced defence lawyers will help you navigate the criminal justice system and protect your rights during this challenging time in your life.