Preliminary Inquiry

• Author: Steve Coughlan
• Pages: 387-417

387

CHAPTER 9

PRELIMINARY INQUIRY

A. INTRODUCTION

For many years, before an accused could be tr ied on an indictable offence

in superior court, a preliminary inquiry was to be conducted, to see

whether the accused should in fact be committed for trial. The assump-

tion that there is such a two-stage structure is deeply embedded in the

criminal justice system, affecting not only decisions about mode of trial

or election and re-election,1 but also the approach to determining whether

a person’s right to a trial within a reasonable time has 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 imprisonment 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.

CRIMINAL PROCEDURE

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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 discharge the accused, the Crown has 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 mechanism. Similarly, preliminary inquir-

ies also long performed a type of disclosure function, but that need is

now dealt with more directly by Charter decisions requiring the Crown

to disclose all relevant evidence 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 criminal offences are tried in

provincial court rather than superior court, and so the is sue of a prelim-

inary inquiry 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 in prov-

incial court, which included not only summary 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.