Although I have covered the courts for a total of six years, I have not attended a lot of preliminary hearings.
That is because I am not a full-time crime reporter and prelims tend to be a bit of a waste of time. They are almost always subject to a publication ban on the evidence presented so we end up being pretty limited in what we can publish.
Also, I can鈥檛 remember a single time when a preliminary hearing did not result in a committal to trial, usually by consent.
I never gave it much thought, but after sitting through four hours last Wednesday of a prelim for Chancey Heiser in a case of alleged arson for the fire that claimed his gym in 2010, only to have his defence attorney consent to committal, I started wondering why they go through it.
By way of background, preliminary hearings are available to defendants who have been charged with an indictable offence and have elected to be tried in Court of Queen鈥檚 Bench by either judge alone or judge and jury.
There is no constitutional right to a preliminary hearing, it must be requested by either the defence or the Crown. It is almost always the defence who requests it. Ostensibly, a preliminary hearing is held for a lower court judge to assess if there is sufficient evidence for the case to go to trial. Since the Crown has pressed the charges, presumably prosecutors believe they have a case and therefore it makes sense they would not seek a prelim.
Also, a British Columbia judge once told me that the evidentiary bar for committal to trial was set so low, it would have to be a very weak Crown case indeed to warrant a dismissal.
That being said, there must be some other reason defence attorneys so frequently request preliminary hearings.
In practice, the preliminary hearing is an opportunity for the defence to test the strength of the Crown鈥檚 case. I have often thought that seems a bit redundant since the defence is entitled to full disclosure of the evidence and will have had access to it long before the prelim takes place.
I found a really interesting article by Toronto defence attorney Edward Prutschi that shed some light. He notes that although both lawyer and defendant have seen the disclosure, the prelim is the first opportunity to evaluate it in the context of the court.
Furthermore, it gives them an opportunity to box witnesses into their evidence.
鈥淲e have the transcript of their responses, and they can鈥檛 change their evidence when they get to the trial from what they have already given,鈥� he wrote.
It is also a chance to see how the witnesses perform. A witness鈥檚 evidence could be very strong, but the witness himself might not be convincing. That could give the defence much more confidence moving forward.
The opposite could also hold true. A preliminary hearing might convince the defence that they are better off negotiating a plea bargain than going ahead with the trial.
Prutschi also outlined some disadvantages to the preliminary hearing, such as increased time in remand and greater cost for the accused.
They also must be careful not to tip their own hand to the Crown. The defence is not obligated to present any evidence and rarely do unless they have a very good case for dismissal.
Heiser鈥檚 prelim was one of the more interesting ones I have attended. The only Crown witness who appeared laid out the anatomy of a fire investigation, which I found fascinating. It struck me how similar it is to how geologists (I studied geology in university) unravel the history of a suite of rocks. That was not really surprising since they both follow the scientific method.
Unfortunately dear readers, I am unable to share the actual details of the hearing as that could land me in jail, or at least legal discomfort.
You will just have to wait until the trial, or, depending on how the defence felt about the strength of the Crown鈥檚 case, another resolution.
