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Preliminary Inquiry:  Judicial Bias

You Don't Have Any Rights, You Are the Accused

Preliminary Inquiry:  History

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.

R. v. Hughes (2007) ONSC 20780

The Fundamental Question:  Was the Trial Unfair?

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:

  • Questioning an accused or his witnesses to an extent or in a manner which conveys the impression that the Judge is placing his authority on the side of the prosecution, or conveys the impression the Judge disbelieves the accused or the defence witnesses.
  • Interventions that make it impossible for the defence attorney to do his or her duty in presenting the defence.
  • Interventions that prevent the accused from doing himself or herself justice or telling his or her story in his or her own way.
  • Interventions suggesting that counsel is acting unethically.

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.

R. v. Colley (1991) NSCA 2534

Judge Cannot Foreclose His/Her Mind to the Defence

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.

A Hidden World of Bias

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]

R. v. Boutilier (1995) NSCA 4169

Crown Cannot Alter Charges During Preliminary Inquiry

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.

R. v. Stick (2001) SKQB 99

Adequate Notice of Case to Be Met

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.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia

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Q.B. Courthouse, Saskatoon

Queen’s Bench Courthouse

Saskatoon, Canada

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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