Preliminary Inquiry

• Author: Stephen Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 224-249

C H A P T E R 9

PRELIMINARY INQUIRY

A. INTRODUCTION

Before an accused is tried on a n ind ictable offence, a preliminary in-

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

or the accused, unless the offence within the absolute juri sdiction of

the provincial court judge.2 This entitlement can be overridden if the

attorney general elects to proceed by way of a direct indictment, pursu-

ant to section 577 of the Criminal Code, which ha s the effect of putting

an i ndictment immediately before the court of trial.3 There is no en-

1 A “justice” is def‌in ed in s. 2 of the Code to mean eithe r a justice of the peace or a

judge of the provinci al court. In virtua lly all jurisdict ions 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 within t he absolute jurisdiction of

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

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

prelimin ary inquiry.

3 Conversely, if an accuse d has elected trial i n provincial court, the pre siding

judge has dis cretion under s. 555(1) to convert the tria l into a preliminary i n-

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 disclo ses that the

value involved exceed s $5000.00, the judge mus t put the accused to his election

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

judge and jury, the proceed ings shall continue as a prel iminary inquir y unless

waived by the accu sed.

224

Prelimi nary Inquiry 225

titlement to a preliminary inqui ry in summar y-conviction matters, nor

has a justice any juri sdiction to inquire into such offences.

The nature, scope, and purpos e of the prelimin ary are now in f‌lux,

and they are becoming both less interesting and less important as a

subject of discus sion.4 In principle, one of their central funct ions is to

serve as a screening mechan ism for unmeritorious prosecutions. As a

matter of fact, though, most preliminar y inquiries result in an accused

being committed for tria l and, in any event, the Crow n has the ability

to send t he accused to trial despite a discharge, as noted above. Pre-

liminar y inquiries also long performed a type of disclosure function,

but that need is more d irectly dealt w ith by Charter decisions requiring

the Crown to disclose all relevant evidence to t he accused. Fur ther, as

noted in Chapter 3, Charter remedies are not available at a preliminary

inquiry. For a long time preliminary inquir ies were frequently waived,

and recent legislative changes make them available only on request, and

potentially only on some issues, further marginalizing t he procedure.

Until 2004 the prelimina ry inquiry was understood chief‌ly a s a

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

question was whether the prosecution could produce suff‌icient evi-

dence on the whole of the case to warrant committal for tr ial.5 As of

right, the accused was entitled to a preliminary inquiry on the whole

of the case and, in principle, it served important functions in screening

out unsupportable charges a nd in providing t he accused with a fuller

understanding of t he case to meet. Unle ss the accused waived the pre-

liminar y inquiry, the prosecution was required as a matter of course to

produce suff‌icient evidence. A secondar y function of the inquiry was

to afford an opportunity to test the quality of evidence taken from wit-

nesses under oath.6 Among other advantages, this allowed the pa rties,

especially the defence, to have a record of sworn evidence that could

later be used at trial to challenge the credibil ity of a witness.

Since 2004 amendments to the Code have altered the nature of t he

preliminar y inquiry and it can no longer be said that its pr imary f unc-

4 See David Paciocc o, “A Voyage of Discovery: Exam ining the Precariou s Condi-

tion of the Preli minary Inquir y” (2003) 48 Crim. L.Q. 151.

5 See, for example, R. v. Hynes, [2001] 3 S.C.R. 623 [Hynes]. Evidence “on the

whole of the case” mea ns evidence on each element of an offence . It does not

mean that t he prosecution must tender all of the ev idence that it can produce

at trial: Cac camo v. The Queen, [1976] 1 S.C.R. 786. Committal for tria l can be

ordered only if the e vidence at the prelimina ry inquiry is suf f‌icient in the sense

that a jury, properly in structed, can f‌ind the acc used guilty beyond rea sonable

doubt: United States of Amer ica. v. Shephard, [1977] 2 S.C.R. 1067 [Shephard ]

(discussed i n Section D, below in this chapter).

6 R. v. Skogman, [1984] 2 S.C.R. 93 at 105 [Skogman].