Preparing for the Preliminary Inquiry

• Author: Daniel Brown/Jill Witkin
• Pages: 141-161



Preparing for

the Preliminary

Inquiry

6

I. Introduction ............................................. 

A. Bill C- Amendments ............................... 

B. Jordan: Presumptive Ceilings .......................... 

II. Purpose of the Preliminary Inquiry ........................... 

A. Test for Committal .................................. 

B. Scope of Preliminary Inquiry ........................... 

C. Mechanism of Discovery ............................. 

III. Powers of the Justice ...................................... 

IV. Committal on Additional Charges ............................ 

V. Insucient Evidence ...................................... 

VI. Direct Indictment ......................................... 

VII. Crown Preparation for the Preliminary Inquiry .................. 

A. File Review ......................................... 

B. Calling the Victim at the Preliminary Inquiry .............. 

C. Filing of Evidence (Section ()) ..................... 

D. Cross-Examination of Witness Where

Evidence Filed (Section ()) ........................ 

E. Rules of Evidence Apply at a Preliminary Inquiry ........... 

F. Preparing the Victim for Testifying ...................... 

VIII. Defence Preparation for the Preliminary Inquiry ................ 

© [2020] Emond Montgomery Publications. All Rights Reserved.

 Prosecuting and Defending Sexual Oence Cases

I. Introduction

For the Crown or defence counsel, properly preparing for the preliminary inquiry is

an important step in the process of a criminal prosecution. The preliminary inquiry

is a means to determine whether there is sucient evidence to proceed to trial on

all of the essential elements of the oence. And while it serves as an opportunity to

“discover” or test a case, it is also a means of preparation for trial. Amendments to

the provisions governing preliminary inquiries in 2004 and 2019 have reinforced the

fact that the preliminary inquiry should be focused and ecient. Eective counsel can

play a significant role in streamlining this process and should be aware of the rules and

limits that apply to the inquiry, as well as which oences are eligible for a preliminary

inquiry. Furthermore, in a sexual oence case, the Crown should determine whether

there are areas of evidence that can be proved using evidentiary shortcuts available

in the Criminal Code.1

A. Bill C- Amendments

In 2019, Bill C-75 received royal assent.2 As of September 19, 2019, preliminary

inquires are only available for oences punishable by at least 14 years.3 The oence of

sexual assault under section271(a) where the complainant is 16 years of age or more

is no longer eligible for preliminary inquiry unless it relates to an indictable oence

against an intimate partner where the defendant has been previously convicted of an

indictable oence against an intimate partner. In such circumstances, the maximum

penalty is raised from 10 years to 14 years, triggering the eligibility of a preliminary

inquiry.4 For cases not eligible for a preliminary inquiry, the accused can elect to go

directly to trial in the Superior Court or can elect trial in the Provincial Court.

In terms of retrospectivity, the Ontario Court of Appeal has held that the recent

amendments substantially limiting the availability of preliminary inquiries aect

substantive rights and therefore do not apply to accused persons who, prior to

September19, 2019, “have formally entered an election and requested a preliminary

inquiry, as well as those who have made a clear, but informal election and request, as

evinced by the transcript of proceedings or endorsements on the information.”5 Con-

versely, the amendments limiting preliminary inquiries do apply to accused persons

who were before the courts prior to September 19, 2019, but who had not elected their

1 RSC 1985, c C-46.

2 Bill C-75, An Act to amend the Criminal Code and the Youth Criminal Justice Act and other Acts

and to make consequential amendments to other Acts, SC 2019, c25.

3 This includes oences under ss 151, 152, 153, and 155 where the prosecutor proceeds by indict-

ment, oences under s271 where the victim is under 16 years of age and oences under ss272

and 273.

4 See Criminal Code, s 718.3(8).

5 R v RS, 2019 ONCA 906 at para 15.

© [2020] Emond Montgomery Publications. All Rights Reserved.