What is a Pre-Liminary Hearing?

Preliminary inquiries are available for indictable offences which carry a maximum penalty of 14 years or more. 


In a preliminary inquiry, the judge must determine whether the Crown has presented a prima facie case. A prima facie case means that the Crown has to present enough evidence to support a guilty verdict. If the Crown is able to present a prima facie case, then you must stand trial. The Crown will then be called upon to draft an indictment. This indictment will replace the original information as the new charging document. 


If the Crown does not establish a prima facie case then you are discharged. However, this does not mean that you will be acquitted, this is because s. 535 of the Criminal Code indicates the following: “If an accused who is charged with an indictable offence that is punishable by 14 years or more of imprisonment is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.” 


The appropriate test to determine if the Crown has a prima facie case is to use the “air of reality” test. In the case of R v Cinuous [2002] 2 SCR 3 at paragraph [49] the Court indicated that the “air of reality” test creates an evidential burden, rather than a persuasive burden, which requires that there must be some evidence which a properly instructed jury acting reasonably could base a verdict on. 


Additionally, the case of R v Arcuri [2001] 2 SCR 828 at para 22, provided that if there is direct evidence of all the elements of the offence, then the Crown will automatically have a prima facie case. However, if the Judge relies on circumstantial evidence for any or all the elements of an offence that you are charged with, then the Judge must engage in limited weighing of the evidence to determine whether a reasonable jury might rely on that evidence for guilt. 


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