Preliminary Inquiry

• Author: Steve Coughlan
• Pages: 253-279

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CHAPTER 9

PRELIMINARY INQUIRY

A. INTRODUCTION

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

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

or the accused, unless the offence is within the absolute jurisdiction 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 has the effect of putting

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

titlement to a preliminar y inquiry in summary conviction matters, nor

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 prelimi-

nary inqu iry is held by a provinci al court judge.

2 See ss. 535, 536(4), and 536.1(3). Offences within the a bsolute 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

preliminary inquiry.

3 Conversely, if an accused h as elected trial in pro vincial court, the pre siding

judge has dis cretion under s. 555(1) to convert the trial i nto a preliminary

inquiry. If a tr ial has begun on an ind ictable property offence wit hin the ab-

solute jurisd iction of the provincial court (s. 553), and evidence disc loses that

the value involved excee ds $5,000.00, the judge must put the accused to h is

election accordin g to s. 536(2). If the accused then elect s trial by judge alone or

trial by jud ge and jury, the proceedings shal l continue as a preliminar y inquiry

unless waive d by the accused.

CRIMINAL PROCEDURE

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has a justice any jurisdiction to inquire into such offences. More gener-

ally, there is no constitutional right to a preliminary inquiry.4

The 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.5 In 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 ac-

cused 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.

Prelimina ry inquiries also long performed a ty pe 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 m ake them available only on request, and

potentially only on some issues, further marginalizing the procedure.

Until 2004 the prelim inary inquiry was u nderstood 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 committal for trial.6 As 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 mat-

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

the inquiry was to afford an opportunity to test the quality of evidence

4 R. v. S.J.L., 2009 SCC 14 [S.J.L.]. The Court in th at case noted that this r ule was

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

2009 SCC 38 at para s. 34–37, holding that there i s no Charter right to cross-

examine a w itness at a prelimina ry inquiry, and that an acc used’s fair trial r ight

can be adequate ly protected in other ways.

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

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

6 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: R . v. Caccamo, [1976] 1 S.C.R. 786. Committal for tri al can be ordered

only if the evi dence at the preliminar y inquiry is suff‌icient i n the sense that a

jury, properly instr ucted, can f‌ind the accuse d guilty beyond reason able doubt:

United States of Amer ica. v. Shephard, [1977] 2 S.C.R. 1067 (discussed in Section

D, below in this ch apter).