Preliminary Inquiry

• Author: Steve Coughlan
• Pages: 253-279

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C H A P T E R 9

PRELIMINARY INQUIRY

A. INTRODUCTION

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

quiry may 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 provincial court judge.2 This entitlement can be over ridden 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 ef fect of putting

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

titlement to a preliminar y inquiry in summary convict ion 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.

CRIMIN AL PROCEDURE

254

has a justice any juri sdiction 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 prelim inary inquiry are now

in f‌lux, and they are becoming both less interesting and less import ant

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

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

As a matter of fact, though, most prelimin ary inquiries result in a n ac-

cused being committed for tr ial 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 w ith 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 t he whole of the case

and, in principle, the prelimin ary 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).