Electing a Preliminary Inquiry

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General Principles

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.

536
...
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.
...
Jurisdiction
(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.


CCC

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.[1]

There is no requirement of when the request for a preliminary inquiry must be made.[2] 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.[3]

  1. R v Seniuk, 2007 SKQB 73 (CanLII)
  2. R v Stinert, 2015 ABPC 4 (CanLII) at para 19
    R v Young, 2011 BCPC 421 (CanLII)
  3. Stinert at paras 20 and 21
    R v Hathway, 2005 SKPC 99 (CanLII) at para 62

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?

Statement of Issues and Witnesses

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).


CCC

The provisions are said to be "mandatory".[1] However, these provision does not create a mandatory obligation upon the Crown to address all issues and call all witnesses on a list provided by the defence. [2]

Purpose and History
Section 536.3 came into force on June 1, 2004. Its objective was to address "concerns about the efficiency of the preliminary inquiry".[3]It was considered a compromise between those seeking to abolish the hearing and those wishing to keep it.[4]

The purpose of this section is to "streamline the preliminary inquiry process, reduce the number of witnesses who need to be called nd shortened the legnth of the inquiry as a whole."[5]

Appropriate Issues
There is no fixed limitation on how many issues are permitted to be raised in a preliminary inquiry.[6]

The party requesting the inquiry must identify only those "issues" that "are in question in the proceeding and why they are important subjects of litigation".[7] The issues cannot be listed in a "perfunctory manner" or in "overbroad or obscure" terms.[8]

Improper issues include statements such as "all issues", "credibility", "mens rea and actus reus", "whether the accused was involved in or committed any criminal offence".[9]

The Criminal Rules of the Ontario Court of Justice, SI/2012-30 s. 4.3(3) sets out specific requirements for the list of issues.[10]

Crown Compliance with the List
The Crown has no obligation to call all witnesses listed on the defence's notice, especially if they are not required to address proper issues raised.[11]

Defence Failure to List Issues or Witnesses
A failure to comply with s. 536.3 can result in the preliminary inquiry judge applying s. 537 to "deem" the request for a preliminary inquiry to be abandoned.[12]

  1. LeBlanc and Steeves v R., 2009 NBCA 84 (CanLII)
  2. R v Brufatto, 2011 ABPC 347 (CanLII) at para 10
    R v T.P., [2006] N.J. No. 278 (P.C.)(*no link)
  3. R v Stinert, 2015 ABPC 4 (CanLII) at para 6
  4. Stinert at paras 6 to 17
  5. Stinert at para 24
    TP, supra at para 26 to 28 (The sections are "designed to expedite and to shorten the length of preliminary inquiries by reqwurieign counsel to focus on issues which are being contested and the witnesses that are relevant to those issues").
  6. Stinert, supra at para 26
    R v Gallant, 2009 NBCA 409 (CanLII)
  7. Stinert, supra at para 25
  8. Stinert, supra at para 26
  9. See Stinert, supra at para 29 - lists other examples as well
  10. see Stinert, supra at para 37
  11. TP, supra at para 28
    Stinert, supra at para 24 to 25
  12. R v Stinert at paras 40 to 45
    R v Callender, 2007 ONCJ 86 (CanLII) at paras 9 to 10