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When the defense has elected to have the trial in the Supreme Court, there is a right to request that a Preliminary Inquiry be held in the Provincial Court.

The Preliminary Inquiry must be held before the plea is entered in the Supreme Court.

The Preliminary Inquiry is really for the benefit of the defense.  The defense must make an application to the Provincial Court indicating the issues and the names of the witnesses requested to be examined.

The Provincial Court will normally grant the application and the prosecutor will supboena the witnesses to be present at the Preliminary Inquiry.

Unless there is an agreement to the contrary, the prosecution will have the burden of establishing some evidence on each essential element of the alleged offense.  It is not a very great burden and so long as there is some evidence on each essential element, the Provincial Court Judge will normally rule that the case proceed to trial in the Supreme Court.

Unless there are uncommon factors at play, it is my usual practice to waive the requirement for the prosecution to establish its case (it can be a time waster) because what I really want to do is to examine key crown witnesses.

The testimony of the witnesses is given under oath and a transcript is prepared in advance of the trial. The witnesses may be cross examined at the trial on the testimony they gave at the preliminary inquiry.

In cases where it is appropriate to challenge the prosecution’s case at the preliminary enquiry, I serve notice upon the prosecution that committal for trial is in full issue and notify the judge as well.

The Supreme Court of Canada had set out the burden of proof for committal for trial that the prosecution has to meet when the evidence is direct, and when it is circumstantial.  Where the evidence is circumstantial, the prosecution has a greater difficulty and the judge must weigh the evidence.

R.v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828  Clii

[The Overall Test]

21                              The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”:  Shephard, supra, at p. 1080; see also R. v. Monteleone, 1987 CanLII 16 (S.C.C.), [1987] 2 S.C.R. 154, at p. 160.  Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080.

 [Direct Evidence - Truth Test]

22                              The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 CanLII 16 (S.C.C.), [1986] 1 S.C.R. 802, at pp. 842-43;  Monteleone, supra, at p. 161.  The nature of the judge’s task, however, varies according to the type of evidence that the Crown has advanced.  Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward.  By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true:  see Watt’s Manual of Criminal Evidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at  §2.74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”).  It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87.  Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete.  If there is direct evidence as to every element of the offence, the accused must be committed to trial.

[Circumstantial Evidence - Must Weigh The Evidence]

23                              The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence.  The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence.  Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact.  It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”).  The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.  This weighing, however, is limited.  The judge does not ask whether she herself would conclude that the accused is guilty.  Nor does the judge draw factual inferences or assess credibility.  The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.


24                              The principles described above are well settled.  In Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.), at p. 197, Lord Cairns wrote:

The Judge has a certain duty to discharge, and the jurors have another and a different duty.  The Judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred; the jurors have to say whether, from those facts . . . [the matter in issue] ought to be inferred. [Emphasis omitted.]

We reaffirmed the traditional common law rule in Shephard, supra.  As I noted in Charemski, supra, the same rule applies in England, in Australia, and in the United States:  see Cross and Tapper on Evidence (8th ed. 1995), at pp. 190-92; P. Gillies, Law of Evidence in Australia (2nd  ed. 1991), at pp. 206-8; Curley v. United States, 160 F.2d 229 (D.C. Cir. 1947), at p. 232 (the judge “must determine whether upon the evidence . . . a reasonable mind might fairly conclude guilt beyond a reasonable doubt”).

In R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623 we are reminded that the evidence must be “admissible evidence”.

...  Green J.A. emphasized that the preliminary inquiry justice is directed under the Code to inquire into whether sufficient evidence exists to commit the accused to trial.  Pursuant to United States of America v. Shephard, 1976 CanLII 8 (S.C.C.), [1977] 2 S.C.R. 1067, “sufficient evidence” under s. 548(1) of the Code means “sufficient admissible evidence”.

Jim O'Neil, LL.B.

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