Preliminary Inquiry

AuthorSteve Coughlan
For many years, before an accused could be tr ied on an indictable offence
in superior court, a prelimin ary inquiry was to be conducted, to see
whether the accused should in fact be committed for tri al. The assump-
tion that there is such a two-stage structure is deeply embedded in the
crimina l justice system, affecting not only decisions about mode of tri al
or election and re-election,1 but also the approach to determining whether
a person’s right to a trial wit hin a reasonable time ha s been violated.2
However, the nature, scope, and purpose of the prelimin ary inquiry
have been in flux for some time,3 and they are becoming both less inter-
esting and less important as a subject of discussion. Most notably, as of
2019 they have changed from a procedure which was available in the
case of all indictable offences tried in superior court to one which is
only available where the accused faces i mprisonment of fourteen years
or more.4 Further, although in principle one of their central functions
1 See, for example, s 561, settin g deadlines for re-election in re lation to date of the
prelimin ary inquiry. See also t he discussion in Chapter 3, S ection A(3).
2 See the dis cussion of this issue in C hapter 10, Section B(2)(c)(i).
3 See, for example, Dav id Paciocco, “A Voyage of Discover y: Examining the P recar-
ious Condition of the Pr eliminary Inqu iry” (2003) 48 Criminal Law Quarterly 151.
4 This change wa s made in Bill C-75, An Act to amend the Criminal Code, the Youth
Criminal Justice Act and o ther Acts and to make conseque ntial amendment s to other
Acts, Royal Assent Ju ne 21, 2019.
was to serve as a screening mechanism for unmeritorious prosecutions,
as a matter of fact it is very uncommon for a preliminary inquiry to
result in the accused not being ordered to st and trial.5 Beyond th at, even
if the justice6 does di scharge the accused, the Crown h as the ability to
send the accused to trial despite a discharge, or without a preliminary
inquiry hav ing been held at all.7 As a result, t hey do not genuinely serve
as very much of a screening mecha nism. Similarly, preliminar y inquir-
ies also long performed a ty pe of disclosure function, but that need i s
now dealt with more directly by Char ter decisions requiri ng the Crown
to disclose all relevant ev idence to the accused. Some defence counsel
see a benefit to being able to not only know the evidence that w ill come
from a witness but actual ly test that w itness on the stand, but otherwise
the discovery fu nction is better satisfied in other ways. Further, as noted
in Chapter 3, Charter remedies a re not available at a preliminary inquir y.
Finally, of course, the vast majority of crimi nal offences are tried in
provincial court rather t han superior court, and so the is sue of a prelim-
inary inqui ry does not arise.8
In short, over time legislative change h as made preliminary inqui ries
less relevant. They were never available for matters to be tried i n prov-
incial court, which included not only summa ry conviction offences but
5 See Department of Ju stice, “JustFacts: Prelimi nary Inquiries” June 2017, online:
Research b y Justice Canada found that hold ing a preliminary i nquiry did not
impact the like lihood of a trial tak ing place while Webster’s resea rch found
some evidence to ind icate that when a prelimin ary inquiry was hel d the
likelihood of a t rial taking pla ce decreased.
6 A “justice” is defined in s 2 of t he Code to mean either a justic e 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.
7 Section 577.
8 See, for example, Canadia n Centre for Justice Statistic s, “Adult Crimi nal Court
Processi ng Times, Canada, 2015/16,” 13 February 2018. Based on the f igures in
Tables 1 and 3 in that repor t, there were 339,175 total cas es (that is, one or more
charges agai nst the same accused) completed i n provincial court in 2015/16, but
only 3,099 case s in superior court: that i s, roughly 99 percent of cases were i n
provincial c ourt. Unfortunately, those fig ures are not reliable because t hey do
not include superior cour t figures from five juri sdictions, including Ont ario,
which has the mo st criminal cas es. As a result, although a ver y strong tendency
for cases to occ ur in provincial court ca n be pointed to, it is not possible to put
a reliable percent age on it.
Note that it is pos sible for a case to be tried in prov incial court after a pre-
limina ry inquiry, if the accused r e-elects afterward, t hough in most cases thi s
re-election would happ en in order for the accused to plead gu ilty.

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