Preparing for the Preliminary Inquiry

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 153-178

153

Preparing for

the Preliminary

Inquiry

6

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

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

B. R v 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 ................ 

© 2024 Emond Montgomery Publications. All Rights Reserved.

154 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 pre-

liminary 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. Further-

more, 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-75 Amendments

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

inquiries are only available for oences punishable by at least 14 years at the time the

oence was committed.3 In Ontario, historic oences that were subject to a lesser

maximum penalty at the time the oence was committed are not eligible for prelimi-

nary inquiries.4 However, the Court of Appeal of Quebec drew a dierent conclusion:

the right to a preliminary inquiry depends on its availability on the date of the oence,

not the date the charge was laid or the date the election was made.5 Therefore, that

same person charged with committing sexual interference on a date before the maxi-

mum sentence was raised would be entitled to a preliminary inquiry in Quebec. On

June 1, 2023, the Supreme Court of Canada (SCC) granted leave to appeal the Court

of Appeal of Quebec’s decision and thus this division between provincial appellate

courts will likely soon be resolved. Oences with a maximum penalty of less than 14

years are unavailable even if the Crown provides notice to seek a dangerous oender

designation under section 752.1 of the Criminal Code.6 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

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 indictment,

oences under s271 where the victim is under 16 years of age and oences under ss272 and 273.

4 R v SS, 2021 ONCA 479, leave to appeal dismissed SS v Her Majesty the Queen, 2021 CanLII

129760 (SCC).

5 Archambault c R, 2022 QCCA 1170 at paras 37-39.

6 R v Windebank, 2021 ONCA 157.

© 2024 Emond Montgomery Publications. All Rights Reserved.