A. Introduction

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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Before an accused is tried on an indictable offence, a preliminary inquiry may be conducted by a justice,1at the request of the prosecution or the accused, unless the offence is within the absolute jurisdiction of the provincial court judge.2This entitlement can be overridden if the attorney general elects to proceed by way of a direct indictment, pursuant to section 577 of the Criminal Code, which has the effect of putting an indictment immediately before the court of trial.3There is no entitlement to a preliminary inquiry in summary conviction matters, nor

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has a justice any jurisdiction to inquire into such offences. More generally, there is no constitutional right to a preliminary inquiry.4The nature, scope, and purpose of the preliminary inquiry are now in flux, and they are becoming both less interesting and less important as a subject of discussion.5In principle, one of their central functions is to serve as a screening mechanism for unmeritorious prosecutions. As a matter of fact, though, most preliminary inquiries result in an accused being committed for trial and, in any event, the Crown has the ability to send the accused to trial despite a discharge, as noted above. Preliminary inquiries also long performed a type of disclosure function, but that need is more directly dealt with by Charter decisions requiring the Crown to disclose all relevant evidence to the accused. Further, as noted in Chapter 3, Charter remedies are not available at a preliminary inquiry. For a long time preliminary inquiries were frequently waived, and recent legislative changes make them available only on request, and potentially only on some issues, further marginalizing the procedure.

Until 2004 the preliminary inquiry was understood chiefly as a test of the sufficiency of the prosecution’s case for trial. The central question was whether the prosecution could produce sufficient evidence on the whole of the case to warrant committal for trial.6As of right, the accused was entitled to a preliminary inquiry on the whole of the case and, in principle, the preliminary inquiry served important functions in screening out unsupportable charges and in providing the accused with a fuller understanding of the case to meet. Unless the accused waived the preliminary inquiry, the prosecution was required as a matter of course to produce sufficient evidence. A secondary function of the inquiry was to afford an opportunity to test the quality of evidence

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taken from witnesses under oath.7Among other advantages, this allowed the parties, especially the defence, to have a record of sworn evidence that could later be used at trial to challenge the credibility of a witness.

Since 2004 amendments to the Code have altered the nature of the preliminary inquiry and it can no longer be said that its primary function is to test the sufficiency of the prosecution case as a whole.8The central feature of those amendments is that a preliminary inquiry will be held only upon the request of a party. That party will almost always be the accused, but a request can be made by the prosecutor. In the absence of a request the accused will simply be committed to stand trial on a date fixed by the court.9Nothing in Part XVIII specifically allows a justice to refuse a request for a preliminary inquiry,10but this does not imply that a full preliminary inquiry will be...

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