B. Jurisdiction

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University

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The authority of a justice to conduct a preliminary inquiry is strictly statutory under Part XVIII of the Code.16This means that there is no inherent jurisdiction and the only powers that may be exercised by the judge are those that are explicitly granted in the Code or that are necessarily implicit in those provisions. The only additional authority they have to expand upon the express powers granted to them is found in section 537(1)(i). It provides that the judge at the preliminary inquiry may regulate the course of the inquiry in any way that appears to be desirable and not inconsistent with any other provision of the Code. There is an obvious tension between the traditional view of the judge’s jurisdiction at a preliminary inquiry and the scope of this discretion. Clearly, this discretion does not expand the scope of a preliminary inquiry, but it does confer broad authority with regards to the manner in which an inquiry is conducted.

The courts have said repeatedly that the preliminary inquiry justice has only the powers given by Parliament in Part XVIII of the Code. Thus, a judge who fails to comply with Part XVIII or who exceeds the authority given by the Code acts without jurisdiction and may be subject to review in the superior court.17This position was fuelled in some measure by the fact that preliminary inquiries were typically held, many years ago, before magistrates without formal legal training. It was also fuelled more generally by the idea that the provincial court is a statutory tribunal that has only those powers in criminal matters that are specifically accorded to it by Parliament. This approach to the jurisdiction of the provincial court is somewhat antiquated, in part because preliminary inquiries are now routinely held before professional judges

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in the provincial court, and in part because those same judges are competent to exercise all functions for a proper trial. It is not surprising, therefore, that the powers of the justice at the preliminary inquiry have been expanded. Not only is the justice empowered to regulate the inquiry as appropriate, but she is also now entitled to cajole the parties to limit the scope of the inquiry or to do so herself.

Nonetheless, a judge at a preliminary inquiry has no power to grant any remedy other than those contemplated by the Code.18The Supreme Court has specifically held that the judge cannot grant a remedy under the Charter, including remedies for delay, non-disclosure, or the production of evidence obtained in violation of a constitutional right.19

1) Commencement

Section 536 states that an accused who is charged with an indictable offence within the absolute jurisdiction of a provincial court judge shall be remanded to appear before such a judge for trial within the territorial jurisdiction in which the offence was allegedly committed. For all other indictable offences, the justice has jurisdiction to proceed with a preliminary inquiry or to adjourn the preliminary inquiry to a later date. Almost invariably the matter is adjourned at the first appearance and, indeed, there may be frequent adjournments before the preliminary inquiry actually begins with the presentation of evidence.20The central point is that the possibility of having a preliminary inquiry in respect of an indictable offence will depend, first, on the classification of the offence and, second, on the election of the accused as to mode of trial.

There can be variations on the prototypical case in which an inquiry proceeds on a single count, in a single information, against a single accused. It is important to bear in mind that the jurisdiction of the judge at the preliminary inquiry is to examine indictable offences charged by the prosecution or disclosed by the evidence. Thus, even if the judge otherwise has jurisdiction over the offences, he cannot conduct a trial and a preliminary inquiry for the same accused simultaneously;21nor can he try one accused and at the same time conduct a preliminary inquiry in respect of a co-accused.22He can, however, conduct a pre-

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liminary inquiry in respect of charges in separate informations simultaneously.23At the first appearance of the accused there is an arraignment, in the sense that the charge or charges will be read to the accused. It is not necessary for a formal plea to be recorded because the justice has the power to adjourn the matter. A formalistic reading of the Code suggests that the first appearance is the commencement of the preliminary inquiry.24In practice, it marks only a pro forma commencement of the inquiry at which the accused submits to the jurisdiction of the court, makes a provisional election as to mode of trial,25and sets a subsequent date for the actual commencement of the preliminary inquiry. For practical purposes, little turns on whether the preliminary inquiry formally commences at the first appearance or at a later date, such as the date on which the election is recorded. It is important, however, to note that on any account the judge presiding at the inquiry is seized of the matter as soon as evidence is adduced.26Until that time, the accused may appear before several justices or judges on various matters. Once evidence is adduced, though, the preliminary inquiry will continue to its conclusion before the same judge.27

2) Scope

The scope of the inquiry is defined by section 535 of the Code, which directs the justice or judge to inquire into the charge of any indictable offence or any other indictable offence in respect of the same transaction disclosed by the evidence taken in accordance with Part XVIII. Until 1985, the jurisdiction to inquire was limited to the charge recited in the information or any included charge that might be disclosed by the evidence. Accordingly, the jeopardy of the accused in commit-tal proceedings could be no greater than the charge or charges in the information. On a charge of second-degree murder, for example, the presiding judge had no jurisdiction to commit the accused for trial on a charge of first-degree murder.28The Code was amended in 1985 to al-

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low the judge to commit the accused for trial on any indictable offence disclosed by the evidence at the preliminary inquiry.29This extension of jurisdiction implies that the presiding judge and the accused must be alert throughout the preliminary inquiry to the possibility that of-fences other than those stated in the information may be disclosed by the evidence. Although in principle this may seem like a perilous enterprise, it rarely causes difficulty. Moreover, with the shift to limited inquiries focused on specific issues, it is even less likely to pose problems.

The scope of the preliminary inquiry is thus not strictly limited to the offences as charged in the information. The inquiry can extend to any indictable offence disclosed by the evidence, provided that it arises from the same transaction. "Transaction" in this sense is not co- extensive with an offence. It refers to a narrative of conduct that may comprise several acts and may disclose several offences. If the information charges only one indictable offence, for example, but evidence of the transaction at the...

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