Preliminary Inquiry

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

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

Where an election for trial by superior court judge (alone or with jury), the provincial court judge receiving the election must inquire whether the accused wishes to have a preliminary inquiry.[2] Where a preliminary inquiry is requested, the provincial court judge has jurisdiction to take evidence as a preliminary inquiry judge.[3]

The powers of a preliminary inquiry judge exist only in statute and within Part XVIII of the Code.[4]

  1. R v Hynes, 2001 SCC 82 (CanLII), [2001] 3 SCR 623, (2001), 159 CCC (3d) 359 (S.C.C.)
  2. see s. 535
  3. see s. 535
  4. R v Hynes at para 28

Purpose

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]

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.

There is no constitutional right to a preliminary inquiry. Thus, any deprivation of a preliminary inquiry does not violate any principles of fundamental justice.[4]

Discovery Function
Prior to the amendments in 2005, it has also been used as a venue for discovery.[5]

Since the passing of the Criminal Law Amendment Act, 2002, c. 13 (Bill C-15A), discovery has lost some relevancy as a purpose of the preliminary inquiry. [6] The discovery purpose is "ancillary" to the main purpose of the hearing.[7]

The discovery function of the preliminary inquiry "does not encompass the right of the accused to call evidence ... which is solely relevant to a proposed application to exclude evidence at trial".[8]

  1. R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, 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, 2001 SCC 82 (CanLII), [2001] 3 SCR 623 at para 30-31
    R v Coke, [1996] O.J. No. 808(*no link), per Hill J. at para 8 to 11
    R v Deschamplain, 2004 SCC 76 (CanLII) per Major J. R v MS, 2010 CanLII 61755 (NL PC) at para 24
  2. Skogman v The Queen, 1984 CanLII 22 (SCC), [1984] 2 SCR 93 at p. 105
  3. Hynes, supra
  4. R v SJL, 2009 SCC 14 (CanLII), [2009] 1 SCR 426, at para 21 per Deschamps J
  5. Skogman v The Queen at p. 105 (SCR) ("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 (CanLII) at para 25
  6. see SJL, supra, at paras 21 and 23, 24
  7. R v Bjelland, 2009 SCC 38 (CanLII) at para 36
    SJL, supra at paras 21-24
    R v Kushimo, 2015 ONCJ 28 (Ont.C.J.) (*no link) at para 18
    R v Stinert, 2015 ABPC 4 (CanLII) at paras 6 to 17
  8. R v Cowan, 2015 BCSC 224 (CanLII), at para 96

Electing a Preliminary Inquiry

Test for Committal to Stand Trial

Procedural Powers of a Preliminary Inquiry Judge

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.


CCC

Evidence

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)

Absconding During Preliminary Inquiry

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.


CCC