Preliminary Inquiry

• Author: Steve Coughlan
• Pages: 387-417

387

CHA PTER 9

PRELIMINARY INQUIRY

A. INTRODUCTION

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.

CRIMIN AL PROCEDURE

388

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:

www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/jun01.html:

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.