Preliminary Inquiry

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 291-317

291

CHA PTER 9

PRELIMINARY INQUIRY

A. INTRODUCTION

Before an accused is tried on an indictable offence, a preliminary i n-

quiry can be conducted by a justice,1 at the request of the prosecution

or the accused, unless t he offence is within the absolute jurisdiction

of the provinc ial court judge.2 This entitlement can be overridden if

the Attorney General elects to proceed by way of a direct indictment,

pursuant to section 577 of the Code, which h as the effect of putting an

indictment immediately before the court of t rial.3 There is no entitle-

ment to a preliminar y inquiry in summary conviction matters, nor has

1 A “justice” is def‌ine d in s 2 of the Code to mean either a ju stice of the peace or a

judge of the provinci al court. In virtua lly all jurisdiction s of Canada, a prelim-

inary i nquiry is held by a provinci al court judge.

2 See ss 535, 536(4), and 536.1(3). Offences with in the absolute jurisdict ion of

the provinci al court are listed in s 553. If the accu sed elects trial in a prov in-

cial court be fore a preliminary inqu iry has been held, he waive s the right to a

preliminary inquiry.

3 Conversely, if an accused h as elected trial in a prov incial court, the pre siding

judge has disc retion under s 555(1) to convert the tria l into a preliminar y in-

quiry. If a tri al has begun on an indict able property offence withi n the absolute

jurisdict ion of the provincial court (s 553), and evidence disclos es that the

value involved exceed s $5,000, the judge must put t he accused to his election

according to s 536(2). If the accused then ele cts trial by judge alone or tr ial by

judge and jury, the proceed ings shall continue as a preli minary inquir y unless

waived by the accu sed.

CRIMIN AL PROCEDURE292

a justice any jurisdict ion to inquire into such offences. More generally,

there is no constitutional r ight to a preliminary inquiry.4

The nature, scope, and purpose of the preliminary inquir y are now

in f‌lux, and they are becoming both less interesting and les s important

as a subject of discussion.5 In principle, one of their centra l functions

is to serve as a screen ing mechanism for unmeritorious prosecutions.

As a matter of fact, though, most prelimin ary inquiries re sult in an ac-

cused being committed for tr ial and, in any event, the Crown ha s the

ability to send the accused to t rial despite a disch arge, as noted above.

Prelimina ry inquiries also long performed a t ype of disclosure function,

but that need is dealt with more di rectly 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 legislative changes m ake them now available only on request and

potentially only on some issues, further margina lizing the procedure.

Until 2004 the prelim inary inquiry was understoo d chief‌ly as a test

of the suff‌iciency of the prosecution’s case for trial. The central ques-

tion was whether the prosecution could produce suff‌icient evidence on

the whole of the case to warrant comm ittal for trial.6 As of right, t he

accused was entitled to a preliminary inquiry on the whole of the case

and, in principle, the prelimin ary inquiry s erved important functions

in screening out unsupportable charges and in providing the accused

with a fuller understanding of the case to meet. Unless t he accused

waived the prelimina ry inquiry, the prosecution was required a s a mat-

ter of course to produce suff‌icient evidence. A secondary function of

the inquiry was discovery: the inquir y afforded an opportunity to test

4 R v SJL, 2009 SCC 14 [SJL]. The Court, in that case, n oted that this rule wa s

equally tr ue for young persons charged wit h an offence. See also R v Bjelland,

2009 SCC 38 at para s 34–37, holding that the re is no Charter right to cross-

examine a w itness at a prelimina ry inquiry and th at an accused’s fair tria l right

can be adequate ly protected in other ways.

5 See David Paciocco, “A Voyage of Discovery: Ex amining the Preca rious Condi-

tion of the Preli minary Inquir y” (2003) 48 Criminal Law Qua rterly 151.

6 See, for example, R v Hynes, [2001] 3 SCR 623 [Hynes]. Evidence “on the whole

of the case” mea ns evidence on each element of an offence. It do es not mean

that the prose cution must tender all of the evidenc e that it can produce at trial:

R v Caccamo, [1976] 1 SCR 786. Committal for t rial can be ordered only i f the

evidence at the prel iminary inquir y is suff‌icient in the sen se that a jury, prop-

erly instr ucted, can f‌ind the accused g uilty beyond reasonable doubt: Unite d

States of Americ a v Shephard, [1977] 2 SCR 1067 [Shepha rd] (discussed in S ec-

tion D, below in this c hapter).