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Monthly Archives: November 2015

Preliminary Inquiry – Understanding Criminal Law Procedure

A preliminary inquiry is held to determine if there is enough evidence for an individual to be tried on their charges, and can only happen when the accused is charged with an indictable offence. Indictable offences can be classified in a variety of ways. They can be specified as indictable in the Criminal Code; the offence can be a hybrid one (the Crown elects whether or not the charges will be summary or indictable) where the Crown has chosen to proceed by indictment; or the offence falls under s. 553 of the Criminal Code, which are indictable offences where the provincial courts have absolute jurisdiction.

The accused will be present at the preliminary inquiry, as will their lawyer, the Crown and a judge. The outcome of the preliminary inquiry is either that the accused will be committed to stand trial, or that the case against the accused will be dismissed.

A Judge must read, pursuant to s. 536, an election address:

“You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury, or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?”

Requesting A Preliminary Hearing

A request (application)  for a preliminary hearing must be made to the court by either the defence or the crown.   (s. 536(3))

Situations in which there are multiple accused any single accused person can request to proceed to a preliminary hearing, binding all other parts to proceed to a preliminary inquiry.  A successful severance application would have to be granted in order to avoid proceeding. (s. 536(4.2))

Failure of an accused to request a preliminary inquiry may result in the assumption that the request to hold  preliminary hearing has been waived. (s. 536(4.3)) Losing the right to  have a preliminary hearing could have serious consequences on the durability of a defence strategy.

Issues & Witnesses

Statement of issues and witnesses
536.3 If a request for a preliminary inquiry is made, the prosecutor or, if the request was made by the accused, counsel for the accused shall, within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, provide the court and the other party with a statement that identifies

(a) the issues on which the requesting party wants evidence to be given at the inquiry; and
(b) the witnesses that the requesting party wants to hear at the inquiry.

2002, c. 13, s. 27; 2011, c. 16, s. 3(F).

Commencing a Preliminary Hearing

The information will be confirmed and the accused will be arraigned , with the charges read.  The accused will elect the mode of trial.

Orders Often Sought at a Preliminary Inquiry

Publication Ban – Prevents the media form reporting on the hearing.

Public Ban – Excludes the public from attending the hearing

Witness Exclusion – An order to prevent witnesses from attending the proceeding except when they are not he stand.

Absence Order – In some cases an order allowing the accused to be absent from the proceeding can be granted.

Counsel Table – In a preliminary inquiry the accused can be allow to join counsel at their table.

Crown Case

The crown wil present it’s case against an accused in order to justify the charges it seeks to to have the accused committed for trial 0n.  The crown may call witnesses and submit statements and recordings. The defence has the right to cross examine all witness in chief.  A witness is in chief when they are on the stand giving sworn testimony in person.

Defence Case

The defence has the option to call witness to give testimony to the court.  All defence witnesses can be cross examined by the crown.  An experienced criminal defence your can best assess if it is wise to present a defence case at preliminary hearing.

Submissions

Following the presentation of their respective cases to the judge and the cross-examination of  witness both sides have the opportunity to make submissions for the judge to consider.

Judges Ruling

The judge will make a ruling on committal for trial.

Smordin Law Criminal Lawyers
41 King William St. #200
Hamilton, ON
L8R 1A2
Tel: 1 (905) 525-0005
Toll Free: 1 (844) 525-0005
Fax: 1 (905) 525-5716
www.smordinlaw.com

 

preliminary inquiry




What Need to Know About Pre-Trial Procedures

Pre-trial Procedures | What is a Preliminary Inquiry?

A preliminary inquiry one of several Pre-trial Procedures held to determine if there is enough evidence for an individual to be tried on their charges, and can only happen when the accused is charged with an indictable offence. Indictable offences can be classified in a variety of ways. They can be specified as indictable in the Criminal Code; the offence can be a hybrid one (the Crown elects whether or not the charges will be summary or indictable) where the Crown has chosen to proceed by indictment; or the offence falls under s. 553 of the Criminal Code, which are indictable offences where the provincial courts have absolute jurisdiction.

The accused will be present at the preliminary inquiry, as will their lawyer, the Crown and a judge. The outcome of the preliminary inquiry is either that the accused will be committed to stand trial, or that the case against the accused will be dismissed.

Pre-trial Procedures | What is a Resolution Meeting?

A resolution meeting another one of the common Pre-trial Procedures, also called a Crown pre-trial, is a meeting that happens between counsel and the Crown prior to the date of the trial. Typically, the accused is absent from these type of meetings. During these meetings, the accused’s
counsel and the Crown discuss issues such as varying bail conditions, and the withdrawal of charges.

Pre-trial Procedures |What is a Judicial Pre-Trial?

A judicial pre-trial, the last of the common pre-trial procedures occurs after a resolution meeting or Crown pre-trial. The key difference between these types of meetings is that a judge is present at a judicial pre-trial. It is important to note that judicial pre-trial judge will not be the same judge that presides over the case if it goes to trial. Judicial pre-trials, like resolution meetings, can occur for both the Ontario Court of Justice and the Superior Court of Justice matters.

Pre-trial ProceduresPre-trial Procedures

Sources:

http://www.lsuc.on.ca/For-Lawyers/Manage-Your-Practice/Practice-Area/Criminal-Law/How-to-Prepare-and-Conduct-a-Preliminary-Inquiry/

http://lawfacts.ca/node/56

http://lawfacts.ca/taxonomy/term/59

http://www.ontariocourts.ca/ocj/criminal-rules/criminal-rules/

 

Smordin Law Criminal Lawyers
41 King William St. #200
Hamilton, ON
L8R 1A2
Tel: 1 (905) 525-0005
Toll Free: 1 (844) 525-0005
Fax: 1 (905) 525-5716
www.smordinlaw.com




Criminal Charges. Indictable, Summary & Hybrid Explained

Types of Criminal Charges

When an individual is arrested, they receive a set of criminal charges. Charges mean that the individual has been accused of committing an offence contrary to the Criminal Code, and that they could be facing sanctions such as probation, a fine, or jail time. There are three main types of criminal charges (offences): summary, indictable, and hybrid.

What do Summary, Indictable and Hybrid mean?

Summary offences are offences that carry a maximum of 6 months in prison, or a fine of up to $5000, or both. Generally these offences are less serious than indictable offences. The charging document for summary offences is called an information. Indictable offences can carry punishments that include fines over $5000 or more than 6 months in prison, or both. The charging document for an indictable offence is called an indictment, and when an individual is facing charges related to an indictable offence, they can elect whether to have a trial with or without a jury. Hybrid offences are offences that can either be summary or indictable, depending on what the Crown elects. Most offences in the Criminal Code are hybrid offences, and the offence will be deemed indictable until the Crown makes the election.

The Smordin Law Approach

In Ontario there are two courts that hear criminal matters: the Ontario Provincial Offencese, and the Superior Court of Justice. The Ontario Provincial Offences hears both summary and indictable offences, but the Superior Court of Justice only hears indictable offences.

The lawyers at Smordin Law have years of experience dealing with all types of criminal offences. If you or someone you know are facing criminal charges for any type of offence, contact Smordin Law to discuss your options.

Criminal Code, RSC 1985, c C-46, ss. 469, 787.

Interpretation Act, RCS 1985 c I-21, s. 34(1)(a).

Smordin Law Criminal Lawyers
41 King William St. #200
Hamilton, ON
L8R 1A2
Tel: 1 (905) 525-0005
Toll Free: 1 (844) 525-0005
Fax: 1 (905) 525-5716
www.smordinlaw.com




Aboriginal Criminal Law | Gladue

Canada’s Aboriginal people make up about 3.8% of the Canadian population but account for almost 24% of the total inmate population. Recently, Howard Sapers, the Correctional Investigator of Canada, called for more oversight for Aboriginal inmates. Sapers has made several recommendations, including: appointing a deputy commissioner for Aboriginal corrections, and addressing Aboriginal-specific provisions in the Corrections and Conditional Release Act. These recommendations were made in 2013 but Sapers is hopeful that the new federal government will be quick to enact changes in order to address the growing number of Aboriginal inmates. Sapers notes that Aboriginal inmates are more likely to spend time in custody and in segregation cells. Aboriginal Criminal Law is constant evolving before the courts.  The aboriginal criminal law team at Smordin Law is constantly updating their knowledge of the law that affects aboriginal criminal issues.

Longer time in jail for Aboriginal inmates

Sapers concerns are obviously well founded. For example, according to a 2014 Corrections and Conditional Release Statistical Overview, Aboriginal inmates are less likely to get early release. Nearly 85% of Aboriginal inmates remain until they have served two-thirds of their sentences – compared to 69% of non-Aboriginal inmates. Sapers also refers to the lack of healing lodge spaces in prisons across the country. He is hopeful that the new government will be able to address the issue of over representation of aboriginal people and the criminal justice system.

While Canada’s prison watchdog fights for Aboriginal inmates, efforts are being made to help Aboriginal accused through restorative justice programs. For example, in 2014, an Aboriginal Persons was created in Brantford, Ontario. The Aboriginal Persons’ court is designed to handle the cases of Aboriginal people who have been charged with a criminal offence and propose sentences using a restorative justice approach aligned with Aboriginal culture and traditions. It runs two days per week and deals with guilty pleas and sentencing. Even if you’re charged outside of Brantford, you can request that your matter be transferred to this special court.

Smordin Law Experienced Advocates in Aboriginal Criminal Law

If you identify as Aboriginal and have been charged with a crime, it’s important to know the options available to you during your trial or plea, sentencing, and incarceration. The lawyers at Smordin Law have worked extensively with Aboriginal clients and understand how to incorporate Aboriginal culture and traditions into your case.

aboriginal criminal law
Smordin Law Criminal Lawyers
41 King William St. #200
Hamilton, ON
L8R 1A2
Tel: 1 (905) 525-0005
Toll Free: 1 (844) 525-0005
Fax: 1 (905) 525-5716
www.smordinlaw.co

 




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