Canadian Criminal Procedure and Practice/Preliminary Inquiry

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General Principles[edit]

The preliminary inquiry justice derives all of its authority from Part XVIII of the Code. [1]


  1. R. v. Hynes (2001), 159 C.C.C. (3d) 359 (S.C.C.)

Purpose[edit]

The purpose of the preliminary inquiry is to determine if there is sufficient evidence to set the matter down for trial before a Justice of the Superior Court.[1] In practice the Inquiry is used to test the strength of the Crown’s case.

Its purpose is also "to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process." [2]

It is an "expeditious charge-screening mechanism"[3]

Prior to the amendments in 2005, it has also been used as a venue for discovery.[4]

The inquiry judge has a general power to regulate the inquiry process under s. 537. The judge may require counsel to define the issues for which evidence will be called (see s.536.3), and may further limit the scope of the inquiry under section 536.5 and 549.

  1. R. v. O’Connor (1995), 191 N.R. 1 (S.C.C.) at para. 134 ("The primary function of the preliminary inquiry...is undoubtedly to ascertain that the Crown has sufficient evidence to commit the accused to trial")
    R. v. Hynes (D.W.) (2001), 278 N.R. 299 (SCC) at para. 30-31
  2. Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 SCR 93 at p. 105
  3. R v. Hynes 2001 SCC 82 (CanLII), [2001] 3 S.C.R. 623
  4. Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 SCR 93 at p. 105 ("the preliminary hearing has become a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present")
    See R. v. Kasook, 2000 NWTSC 33 at para. 25

Procedure[edit]

A Preliminary Inquiry can only be available for indictable offences. A hearing will be scheduled in any one of the following situations:

  • the accused elects trial by judge alone or judge and jury (s. 536(2), (4))
  • the accused is charged with an offence under s. 469 (e.g. murder, treason, etc)
  • the accused refuses to make an election (s. 565)
  • the judge exercises discretion in ordering the matter be prosecuted by indictment (s 555(1))
  • the attorney general orders a trial by judge and jury (s. 568)

On the election the judge must endorse the information to show the election and who made the election. (s. 536(4.1))

Where there are more than one accused, if one person elects to have a preliminary inquiry the remainder are deemed to have made the same election. (s. 536(4.2), 567)

The time limit is set by the rules of the Court pursuant to s. 482 and 482.1

Setting of Preliminary Inquiry[edit]

Under s. 536, at sometime before the setting of a preliminary inquiry date, the judge must read the accused his election address:

You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury, or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?


Statement of Issues[edit]

Under s. 536.3, where an accused elects to have a preliminary inquiry, counsel must provide the court and the other party with a statement that identifies the issues that the evidence should cover and a list of the witnesses expected to provide the evidence:

Statement of issues and witnesses
536.3 If a request for a preliminary inquiry is made, the prosecutor or, if the request was made by the accused, counsel for the accused shall, within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, provide the court and the other party with a statement that identifies

(a) the issues on which the requesting party wants evidence to be given at the inquiry; and
(b) the witnesses that the requesting party wants to hear at the inquiry.

2002, c. 13, s. 27; 2011, c. 16, s. 3(F).

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Publication Bans[edit]

There are several publication bans available for preliminary inquires:

  • complainant's identity (s. 486.4(1) and (2), 486.4(3) [mandatory]; s. 486.4(1), 486.5(1))
  • accused's confessions (s. 542) [mandatory]
  • evidence of preliminary inquiry (s. 539)
  • witnesse's identity (s. 486.5(1))
  • justice system participant's identity (s. 486.2(5))

See more: Canadian Criminal Procedure and Practice/Pre-Trial Matters/Public and Media Restrictions

Crown Evidence[edit]

The Crown has unfettered discretion on whom they wish to call as witnesses. A judge has no authority to direct the Crown to call witnesses.[1]

  1. R. v. Brass (1981), 64 C.C.C. (2d) 206 (Sask. Q.B.)

Defence Evidence[edit]

Under s. 541(2), once the Crown has closed its case at the preliminary inquiry, the presiding judge must ask the accused whether he wishes to testify on his own behalf. The address to the accused is as follows:

Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.

Anything the accused says can be taken down and used as evidence.(s. 541(2))

The accused is entitled to call any witnesses he wishes (s. 541(4)). The judge should be sure to inquire whether the accused is calling any other witnesses.(s.541(3)

The judge must inquire into whether a self-represented accused has any witnesses to call as evidence.[1]


  1. R. v. LeBlanc, 2009 NBCA 84, 250 C.C.C. (3d) 29

Burden of proof[edit]

The test for a preliminary inquiry is the same as a motion for non-suit or directed verdict.[1]

  1. R v Arcuri per McLachlin

Evidence[edit]

The justice presiding the inquiry will received evidence including that evidence "that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded." (s.540 (7)) Anytime evidence is put forward under s.540(7) there must be reasonable notice to the other parites of "the intention to tender it, together with a copy of the statement". (s. 540(8))

The crown may adduce evidence of an admission or confession by the accused “that by law is admissible” against him. (s. 542(1))

Under s. 548(1), the Court must decide whether any admissible evidence upon which a reasonable jury, properly instructed, could return a guilty verdict. [1]

Where direct evidence on each element of an offence is presented, the court must order the accused to stand trial on the charge. Exculpatory evidence will not result in a discharge of the charges.

Where circumstantial evidence is presented, the court engages in "limited weighing" of all the evidence, to determine whether a reasonable jury, properly instructed, could return a guilty verdict. This involves considering the reasonableness of the inferences drawn from the evidence.

The judge may not exclude evidence at the inquiry due to any constitutional violations.[2]

The judge does not have the authority to compel the Crown to provide particulars or disclosure to the defence or compel the production of Third Party Records. Further, the judge cannot order a stay proceedings for abuse of process. [3]

The judge however may exclude a statement of the accused as involuntary.[4]

  1. See R. v. Arcuri, [2001] 2 S.C.R. 828 2001 SCC 54
    United States of America v. Shephard, [1977] 2 SCR 1067 1976 CanLII 8
    Mezzo v. R., [1986] 1 S.C.R 802 1986 CanLII 16
    Dubois v. The Queen, [1986] 1 SCR 366 1986 CanLII 60
    R. v. Charemski, [1998] 1 S.C.R. 679 1998 CanLII 819
    R. v. Monteleone, [1987] 2 SCR 154 1987 CanLII 16
  2. See, R. v. R. (L.), 1995 CanLII 8928 (ON CA), (1995), 28 C.R.R. (2d) 173 at p. 183, per Arbour J.A.
    also R. v. Mills 1986 CanLII 17 (SCC), (1986), 26 C.C.C. (3d) 481 (S.C.C.)
    R. v. Seaboyer 1991 CanLII 76 (SCC), (1991), 66 C.C.C. (3d) 321 (S.C.C.)
    R. v. Hynes (2001), 159 C.C.C. (3d) 359 (S.C.C.), at paras. 28, 32
  3. R. v. Hynes (2001), 159 C.C.C. (3d) 359, (S.C.C.), at paras. 33 and 38
    R. v. Chew , [1968] 2 C.C.C. 127 , [1968] 1 O.R. 97, 1967 CLB 46 (Ont. C.A.) R. v. Hynes (2001), 159 C.C.C. (3d) 359 , 206 D.L.R. (4th) 483, 51 W.C.B. (2d) 453, 2001 CLB 68 (S.C.C.), at para. 33
  4. R. v. Hynes (2001), 159 C.C.C. (3d) 359 (S.C.C.), at paras. 32 and 47

Admissions or Confessions[edit]

Confessions, admissions or statements of the accused are admissible under the same test to be applied at trial.[1] Thus the crown must advance some evidence that the statement was made and to establish beyond a reasonable doubt that it was voluntary.[2]

  1. See, R. v. Pickett (1975), 28 C.C.C. (2d) 297 (Ont. C.A.) at p. 303, per Jessup J.A.
  2. For example, R. v. Mulligan (1955), 111 C.C.C. 173 (Ont. C.A.) at pp. 176-7, per MacKay J.A.
    R. v. Pickett, Pickett (1975), 28 C.C.C. (2d) 297 (Ont. C.A.) at p. 302, per Jessup J.A.

Defence evidence[edit]

Where the accused is unrepresented, under s. 541(2), the judge must warn the accused before he calls any defence evidence. The suggested warning consists of the following:

“Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.”

Decision to Commit[edit]

After hearing evidence and argument the court must make a ruling on whether to commit the accused to stand trial for the charges alleged.

Where the evidence is not sufficient to commit the matter to trial the Judge may discharge the accused of the charges alleged:

Order to stand trial or discharge
548. (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.


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Consent to Committal[edit]

At any time before the conclusion of the preliminary inquiry the accused may consent to committal.

Order to stand trial at any stage of inquiry with consent
549. (1) Notwithstanding any other provision of this Act, the justice may, at any stage of a preliminary inquiry, with the consent of the accused and the prosecutor, order the accused to stand trial in the court having criminal jurisdiction, without taking or recording any evidence or further evidence.

Limited preliminary inquiry
(1.1) If the prosecutor and the accused agree under section 536.5 to limit the scope of a preliminary inquiry to specific issues, the justice, without recording evidence on any other issues, may order the accused to stand trial in the court having criminal jurisdiction.

Procedure
(2) If an accused is ordered to stand trial under this section, the justice shall endorse on the information a statement of the consent of the accused and the prosecutor, and the accused shall after that be dealt with in all respects as if ordered to stand trial under section 548.

R.S., 1985, c. C-46, s. 549; R.S., 1985, c. 27 (1st Supp.), s. 101; 2002, c. 13, s. 30.

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Bail[edit]

After a judge orders a person to stand trial, he may also review any detention orders or conditions of release. (s. 523(2)(b))