Miscellaneous Issues for Preliminary Inquiry

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Bail

After a judge orders a person to stand trial, he may also review any detention orders or conditions of release.[1]

  1. s. 523(2)(b)

Bind Witnesses into Recognizance

Recognizance of witness
550. (1) Where an accused is ordered to stand trial, the justice who held the preliminary inquiry may require any witness whose evidence is, in his opinion, material to enter into a recognizance to give evidence at the trial of the accused and to comply with such reasonable conditions prescribed in the recognizance as the justice considers desirable for securing the attendance of the witness to give evidence at the trial of the accused.
Form
(2) A recognizance entered into pursuant to this section may be in Form 32, and may be set out at the end of a deposition or be separate therefrom.
Sureties or deposit for appearance of witness
(3) A justice may, for any reason satisfactory to him, require any witness entering into a recognizance pursuant to this section

(a) to produce one or more sureties in such amount as he may direct; or
(b) to deposit with him a sum of money sufficient in his opinion to ensure that the witness will appear and give evidence.

Witness refusing to be bound
(4) Where a witness does not comply with subsection (1) or (3) when required to do so by a justice, he may be committed by the justice, by warrant in Form 24, to a prison in the territorial division where the trial is to be held, there to be kept until he does what is required of him or until the trial is concluded.
Discharge
(5) Where a witness has been committed to prison pursuant to subsection (4), the court before which the witness appears or a justice having jurisdiction in the territorial division where the prison is situated may, by order in Form 39, discharge the witness from custody when the trial is concluded.
R.S., 1985, c. C-46, s. 550; R.S., 1985, c. 27 (1st Supp.), s. 101.


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Absconding During Preliminary Inquiry

Absconding Accused
Accused absconding during inquiry
544. (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of a preliminary inquiry into an offence with which he is charged,

(a) he shall be deemed to have waived his right to be present at the inquiry, and
(b) the justice
(i) may continue the inquiry and, when all the evidence has been taken, shall dispose of the inquiry in accordance with section 548, or
(ii) if a warrant is issued for the arrest of the accused, may adjourn the inquiry to await his appearance,

but where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue it at any time pursuant to subparagraph (b)(i) if he is satisfied that it would no longer be in the interests of justice to await the appearance of the accused.
Adverse inference
(2) Where the justice continues a preliminary inquiry pursuant to subsection (1), he may draw an inference adverse to the accused from the fact that he has absconded.
Accused not entitled to re-opening
(3) Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.
Counsel for accused may continue to act
(4) Where an accused has absconded during the course of a preliminary inquiry and the justice continues the inquiry, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.
Accused calling witnesses
(5) Where, at the conclusion of the evidence on the part of the prosecution at a preliminary inquiry that has been continued pursuant to subsection (1), the accused is absent but counsel for the accused is present, he or she shall be given an opportunity to call witnesses on behalf of the accused and subsection 541(5) applies with such modifications as the circumstances require.
R.S., 1985, c. C-46, s. 544; 1994, c. 44, s. 55.


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Justice Unable to Continue

See also: Loss of Judge During Proceedings

Inability of justice to continue
547.1 Where a justice acting under this Part has commenced to take evidence and dies or is unable to continue for any reason, another justice may

(a) continue taking the evidence at the point at which the interruption in the taking of the evidence occurred, where the evidence was recorded pursuant to section 540 and is available; or
(b) commence taking the evidence as if no evidence had been taken, where no evidence was recorded pursuant to section 540 or where the evidence is not available.


R.S., 1985, c. 27 (1st Supp.), s. 100.


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