R. v. Kuzmich and Defence Strategy
Today I would like to take a moment to consider the case of R. v. Kuzmich [2020] ONCA 359, which was before the Ontario Court of Appeal and for which a judgement was recently released.
One of the reasons this case is important is due to the discussion that the Court takes us through with respect to applications made pursuant to s.276 of the Code. This is important for criminal defence lawyers to review before they engage in their next preliminary inquiry on a sexual assault case.
But there is another aspect of this case that is of practical interest. In Kuzmich, the defence counsel had the opportunity to cross-examine the complainant at the preliminary inquiry. Counsel chose not to explore certain areas for tactical reasons. This is not out of the ordinary.
Many counsels (myself included) take the view that there are certain aspects of a cross-examination best left for trial and merely staged at the preliminary inquiry. We frequently use the preliminary inquiry to cross-examine complainants in a way that helps establish our defence at trial without tipping our hand.
In this particular case, after the preliminary inquiry, the complainant died and as a result, the Crown sought to admit their testimony at trial for the truth of its contents. The admissibility of this evidence was this case’s second issue. Counsel submitted an affidavit essentially outlining the areas of the cross they did not explore for tactical reasons. The Court ruled that the preliminary testimony evidence was properly admitted at the trial of the accused despite their inability to cross-examine the witness at trial. The important distinction was that the counsel for the accused had the opportunity to fully cross-examine the witness. They chose not to.
Given that this judgement has just been released, this would seem to be an opportune time to review this common defence tactic. We hold back at the preliminary inquiry in order to preserve the element of surprise at trial. We hope and assume that we’ll be able to catch a witness off guard in front of a jury. We also hope that this surprise will throw them off so much that the witness won’t be unable to recover their composure in front of a jury. Victory will be ours.
But how realistic is this hope? The fact is that witnesses will usually know exactly what the thrust of the defence will be. Even with a more reserved approach at a preliminary inquiry, most witnesses will know the general tenor of the defence. Consent. Identification. Self-defence. Whatever the case, we lay the groundwork for it during the preliminary inquiry; they can see the writing on the wall. Though there may be some key issues we will always want to hold back at the preliminary inquiry, I submit that we should reconsider how important that strategy is. The pros aren’t as great as we think.
What Kuzmich reveals is that the downside of holding back can be substantial. The death of a witness is a relatively uncommon occurrence but obviously not unheard of. There can be many other reasons why a witness is no longer available at trial. And given the ratio in Kuzmich, we cannot expect the Court to save us when we plead that we didn’t ask everything at the preliminary inquiry because we were waiting for trial.
As counsel, we must be willing to throw our strongest salvos at the preliminary inquiries. If for whatever reason the witness is unable to testify and the Crown seeks to admit their testimony at the hearing, the weaknesses of the witness’s evidence are laid bare.
And there are other advantages. An effective cross-examination at a preliminary inquiry can help a reasonable Crown see the weaknesses in their cases. The same is true with a Judge in a Superior Court Judicial Pre-Trial. This can lead to stays, withdrawals of charges, or more favourable positions on pleas of guilt (if the client is interested).
Furthermore, if you craft your cross-examination properly, the lack of surprise won’t help the witness at trial in any event. They may know where you’re going, but they will be helpless and unable to prevent you from getting there.
There is good reason to believe that the advantages of holding back at the preliminary inquiry are outweighed by its disadvantages. It is not my view that this is good advice in every case. Every fact scenario and every case is different. There may very well be situations where the proper course of action is to hold back. With the benefit of experience, counsel will be able to better identify those cases, but those cases will be increasingly rare.
Preliminary inquiries have become rare given recent amendments to the Criminal Code. As it stands, they exist as of right in far fewer cases than before, but when they are available, it is invariably in a case involving serious charges. The stakes are at their highest and counsel has to maximize every opportunity to defend their client. The power of the preliminary inquiry must not be squandered. Defence counsel must be aware of the ramifications of failing in order to seize all the benefits at this very important stage.