Pro Se Litigant
1554: In England, before granting bail, a Justice of the Peace inquired of the accused and any witnesses as to the circumstances of the alleged offence, and took depositions of those examined. The JP conducted the investigation.
Over time: The practice of examining the accused fell away, but the examination of witnesses continued.
1848: Preliminary Hearing modified by statute to require the examination of witnesses in the presence of the accused, who was then afforded a right to cross-examine, and an opportunity to make a statement after being cautioned. This approximates its modern form.
In Canada, Parliament limited the powers of a Preliminary Inquiry by vigilant wording of the enacting statute. The Criminal Code in section 535 limits the evidence which may be taken at the Inquiry: “The justice shall inquire into the charge and any other indictable offence, in respect of the same transaction.” The word shall removes any discretion.
R. v. Goldstein (1988) ONCA set out the definition used by modern courts: “Transaction means the doing or performing of some matter of business between two or more persons. A transaction may and frequently does include a series of occurrences extending over a length of time. The same transaction means the series of connected acts extending over a period of time which the Crown alleges prove the commission of the offence charged in the Information.”
When a Preliminary Inquiry ends, the judge decides whether to commit the accused to stand trial. The power to commit cannot be larger than the power to inquire. Judges are not empowered to bind an accused over for trial on just any offence disclosed by the evidence. Rather, judges may only commit for trial on any other indictable offence in respect of the same transaction.
This is so the accused will not be misled. Some defendants are innocent; for those, the attorney needs time to prepare – to compare police reports; to uncover the inconsistencies that flag malfeasance; to locate and interview witnesses; to research case law. The defence should not have to fly by the seat of its pants after the Preliminary Inquiry begins. CCC s. 581(3) says: “A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to.”
Saskatchewan Justice guidelines say: The Canadian police are free to lay whatever charges they feel proper. Once the police have laid a charge, the Crown prosecutor is then free to decide whether to prosecute. The Crown may advise the police, but the Crown is not an investigative body. Likewise, the prosecutor does not direct the actions of the courts.
The duty of the Crown is to prosecute the Information as it stands. Once the police lay an Information and swear it under oath before a Judge, the Crown cannot modify it. During a Preliminary Inquiry the Crown must conform to the counts as written. On an indictable matter, the transaction rule means the Crown may not sweep in evidence, or lead evidence, blatantly outside the scope of the charges.
Over decades the best courts in Canada clarified the same transaction rule, evolving it until the concept aligned with the res gestae of a case. The best modern courts still hammer home the transaction rule and its logic. Yet time and again, Preliminary Inquiry judges and prosecutors routinely manipulate this point, ignore it, or when challenged pretend they don't understand.
Law and medicine are both self-regulated professions. Both share a limitation: Both use the language of damage control – telling the public what they long to hear – as a sleek substitute for a workaday practice of ethics.
Definition: The Information is the charging document. It itemizes each offence (or count) with details of the time, location, event, people involved, and the Criminal Code section that was contravened.
In the adversary system of trial which evolved in this country, a judge sits to hear and determine the issues raised by the parties, and does not conduct an investigation or examination on behalf of society at large.
The origin of the Preliminary Hearing began in 1554 in England: Before granting bail, a justice of the peace inquired of the accused and any witnesses as to the circumstances of the alleged offence, and took depositions of those examined. The Preliminary Hearing truly was the justice's inquiry. Over time, the practice of examining the accused fell away, but the examination of the witnesses continued.
In 1848, the Preliminary Hearing was modified by statute to require the examination of witnesses in the presence of the accused, who was then afforded a right to cross-examine, and an opportunity to make a statement after being cautioned. This approximates its modern form.
The day is long past when a justice conducting a Preliminary Inquiry was seen as participating in an investigation of the offence.
When examining the nature of interventions made by a Preliminary Hearing judge, it is helpful to compare them to the principal types of interventions by trial judges that have resulted in the quashing of convictions. These are concisely listed in R. v. Valley (1986) ONCA as follows:
During a Trial, sometimes the judge's interventions go too far and result in the quashing of a conviction. A new Trial is obviously required when the interventions prejudice the accused, but prejudice is not a prerequisite. The ultimate question to answer is not whether the accused was in fact prejudiced, but whether he might reasonably consider that he had not had a fair trial, or whether a reasonably minded person who was present throughout the trial would consider that the trial had been unfair.
When there is bias during a Trial, the conviction gets quashed. By extrapolation, when there is bias from a lower tribunal (a Preliminary Inquiry), the order to go to trial should be quashed and the case remitted for a new Preliminary Inquiry. Bias is a denial of natural justice, and always causes a loss of jurisdiction.
In speaking of lack of jurisdiction, this Court was not referring to lack of initial jurisdiction of a Judge to enter upon a preliminary inquiry. The concern rather was with the loss of this initial jurisdiction. Jurisdiction will be lost by a Magistrate who fails to observe a mandatory provision of the Criminal Code. Canadian law recognizes that a denial of natural justice goes to jurisdiction.
A committal for trial is a very serious matter for the accused. While society must be protected, the rights of the accused must also be jealously guarded.
In R. v. Colley the accused said the preliminary inquiry should not be remitted back to the same Provincial Court Judge because of an apprehension of bias. The words of Judge Randall, as quoted from the court transcript, show that Randall had foreclosed his mind to any arguments.
A reasonable person might arrive at that conclusion. While the words of Judge Randall might be innocuous in another context, in this case they followed the denial of the right of counsel to address the court. This raises a reasonable apprehension that his mind was made up. Any decision Judge Randall might come to after hearing the submission of counsel would be tainted by this suspicion. The accused met the evidentiary burden for setting aside decisions in like circumstances. The committal for trial was quashed.
The above case R. v. Colley is an example of a published ruling. But few cases of bias ever see publication.
An example of an unpublished opinion: In Saskatoon Queen's Bench Court, at a Pre-Trial Conference, Judge Mona Dovell told a self-represented defendant: “You don't have any rights. You are the accused.” I attest to this example, reported verbatim. I was present and personally witnessed it. [Report from Tuum Est Webmaster Georgena Sil]
Where the prosecutor discovers a mistake in a charge after the end of the limitation period, lays a new Information charging the appropriate offence, and determines to proceed by indictment, the proceedings may be stayed as an abuse of process.
In R. v. Boutilier the Crown laid the wrong charge initially, and a new charge had to be laid. But the error was discovered after a limitation period had expired. The Judge's ruling was firm: “I'm not prepared to correct the Crown's errors to be quite plain with you and I'm not prepared to go along with it. I'll stay the Information. If the Crown makes an error, don't come to my court to get it corrected in this manner.”
A stay of proceedings is granted only in the clearest of cases. When this trial judge ordered the stay, he obviously felt that the court process was being abused, even if he did not voice this opinion outright.
Fairness to the accused is a consideration in every case. There can be no doubt that proceedings by way of indictment are more prejudicial to an accused person than summary proceedings. The additional procedural safeguards for indictable offences attest to their seriousness.
Every tribunal making decisions that could adversely affect individual rights or interests must proceed fairly. At a minimum, this includes adequate notice of the case to be met.
Tuum Est - It Is Up To You
The Circuit Judge
I in life was the Circuit Judge, a maker of notches, deciding cases on the points the lawyers scored, not on the right of the matter.
O wind and rain, leave my head-stone alone! For worse than the anger of the wronged, the curses of the poor, is to lie speechless, yet with vision clear, seeing that even the lowest whom I sentenced were innocent in soul compared with me.
Edgar Lee Masters
Spoon River Anthology (1916)
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