Pre-Trial and Discovery Procedures

In summary cases, there is no right to have a preliminary hearing (for more about preliminary hearings see the section on Basic Trial Procedures.) Defence usually obtains information before trial by obtaining disclosure from the Crown Prosecutor. There is a provision in the Criminal Code for making a formal application for disclosure, although it is rarely used. In the case of indictable offences, pre-trial discovery in the form of a preliminary hearing is available for all indictable offences except those for which the Code provides a mandatory trial by Provincial Court judge, such as theft under $5,000, false pretenses under $5,000, or possession of stolen property under $5,000. Right to Preliminary Inquiry has been severely restricted by legislation effective June 2004. In other cases of indictable offences, the accused has the right to choose to be tried by a Queen’s Bench Judge without a jury, a Provincial Court Judge without a jury, or a Queen’s Bench Judge and a jury. A preliminary inquiry may be held to determine whether there is sufficient evidence to commit the accused for trial. If there is insufficient evidence to commit the accused for trial, then he/she will be discharged at the end of the preliminary hearing and there will be no trial.