Electing a Preliminary Inquiry
Offences Eligible for a Preliminary Inquiry
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
Parties Able to Request a Preliminary Inquiry
Under 536(4) either the Defence or the Crown may request that a preliminary inquiry so long it is within the time-limit as set by the rules of court or the justice.
Request for preliminary inquiry
(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or 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, hold a preliminary inquiry into the charge.
(5) Where a justice before whom a preliminary inquiry is being or is to be held has not commenced to take evidence, any justice having jurisdiction in the province where the offence with which the accused is charged is alleged to have been committed has jurisdiction for the purposes of subsection (4).
R.S., 1985, c. C-46, s. 536; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9.
The obligation upon the accused under s. 536(4) to request a hearing does not violate their freedom of expression or right against self-crimination.
There is no requirement of when the request for a preliminary inquiry must be made. It is preferred practice that the counsel requesting the preliminary inquiry identify the issues to addressed and witnesses required at the time of the request.
Setting of Preliminary Inquiry Hearing
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?