Procedural Powers of a Preliminary Inquiry Judge

From Criminal Law Notebook
This page was last substantively updated or reviewed December 2022. (Rev. # 89800)

General Principles

The procedural powers of a preliminary inquiry judge are enumerated in s. 537. Those powers consist of:

  • adjourn the inquiry
  • remand the accused into custody for the purpose of establishing identity;
  • remand the accused into custody for the duration of proceedings;
  • resume the inquiry after being adjourned with consent of parties;
  • order attendance of accused while they are in custody;
  • permit or prohibit opening or closings submissions from crown on preliminary inquiry;
  • permit or prohibit reply evidence to any evidence presented by the accused;
  • permit or prohibit any other evidence after hearing the preliminary inquiry case;
  • exclude the public or others from the courtroom;
  • control the process of the inquiry; and
  • permit the accused to be out of court for the duration of the inquiry.
Powers of justice

537 (1) A justice acting under this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] may

(a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason;
(b) remand the accused to custody for the purposes of the Identification of Criminals Act;
(c) except where the accused is authorized pursuant to Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] to be at large, remand the accused to custody in a prison by warrant in Form 19 [forms];
(d) resume an inquiry before the expiration of a period for which it has been adjourned with the consent of the prosecutor and the accused or his counsel;
(e) order in writing, in Form 30, that the accused be brought before him, or any other justice for the same territorial division, at any time before the expiration of the time for which the accused has been remanded;
(f) grant or refuse permission to the prosecutor or his counsel to address him in support of the charge, by way of opening or summing up or by way of reply on any evidence that is given on behalf of the accused;
(g) receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them;
(h) order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing;
(i) regulate the course of the inquiry in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry, that is consistent with this Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) [agreement to be recorded] or agreement made under section 536.5 [agreement to limit scope of preliminary inquiry];
[omitted (j)]
(j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate.
(k) [Repealed, 2022, c. 17, s. 35]
Power provided under paragraph (1)(i)

(1.01) For the purpose of paragraph (1)(i) [power to regulating inquiry], the justice may, among other things, limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.

Section 715 or 715.01

(1.02) If a justice grants a request under paragraph (1)(j.1) [power to permit accused to be absent during inquiry], the Court must inform the accused that the evidence taken during their absence could still be admissible under section 715 [evidence at preliminary inquiry may be read at trial in certain cases] or 715.01 [transcript of evidence of peace officer admissible at trial].

Inappropriate questioning

(1.1) A justice acting under this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] shall order the immediate cessation of any part of an examination or cross-examination of a witness that is, in the opinion of the justice, abusive, too repetitive or otherwise inappropriate.

Change of venue

(2) Where a justice changes the place of hearing under paragraph (1)(a) to a place in the same province, other than a place in a territorial division in which the justice has jurisdiction, any justice who has jurisdiction in the place to which the hearing is changed may continue the hearing.

(3) and (4) [Repealed, 1991, c. 43, s. 9]

R.S., 1985, c. C-46, s. 537; 1991, c. 43, s. 9; 1994, c. 44, s. 53; 1997, c. 18, s. 64; 2002, c. 13, s. 28; 2008, c. 18, s. 22; 2019, c. 25, s. 242; 2022, c. 17, s. 35.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 537(1), (1.01), (1.02), (1.1), and (2)

Organization

538 Where an accused is an organization, subsections 556(1) [organization to appear by agent or counsel] and (2) [consequence of non-appearance by organization] apply with such modifications as the circumstances require.

R.S., 1985, c. C-46, s. 538; 2003, c. 21, s. 8.
[annotation(s) added]

CCC (CanLII), (DOJ) CCC]


Note up: 538

Powers described in s. 537 should be "interpreted broadly so that the judge can carry out his mandate effectively."[1]

Disclosure

The accused right to disclosure has no connection with the course of the preliminary inquiry. The power of the court to ensure that disclosure is met is not affected by the inquiry process.[2] Unavailable evidence that would assist in full answer and defence has no bearing on the preliminary inquiry process.[3]

  1. R v Swystun, 1990 CanLII 7682 (SK CA), 84 Sask R 238, per Gerwing JA
    R v Stinert, 2015 ABPC 4 (CanLII), 604 AR 151, per Rosborough J, at para 41
  2. R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA
    R v Paulishyn, 2017 ABQB 61 (CanLII), 377 CRR (2d) 29, per Yamauchi J
  3. Paulishyn, ibid.

Focus Hearings

Order for hearing

536.4 (1) The justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the justice’s own motion, that a hearing be held, within the period fixed by rules of court made under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules] or, if there are no such rules, by the justice, to

(a) assist the parties to identify the issues on which evidence will be given at the inquiry;
(b) assist the parties to identify the witnesses to be heard at the inquiry, taking into account the witnesses’ needs and circumstances; and
(c) encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.
Agreement to be recorded

(2) When the hearing is completed, the justice shall record any admissions of fact agreed to by the parties and any agreement reached by the parties.
2002, c. 13, s. 27.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 536.4(1) and (2)

Agreement to limit scope of preliminary inquiry

536.5 Whether or not a hearing is held under section 536.4 [order for preliminary inquiry hearing], the prosecutor and the accused may agree to limit the scope of the preliminary inquiry to specific issues. An agreement shall be filed with the court or recorded under subsection 536.4(2) [agreement to be recorded], as the case may be.

2002, c. 13, s. 27; 2019, c. 25, s. 241(E)
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 536.5

Proceeding with Accused by Video

See s. 715.23.

Proceeding without Accused

Section 537(1)(j.1) provides the preliminary inquiry judge discretion to complete the preliminary inquiry without the accused being present.[1]

Best practices require that the accused file an affidavit and notice of application.[2]

  1. e.g. R v Sigsworth, 2022 BCPC 91 (CanLII), per Patterson J
  2. Sigsworth, ibid., at para 12

Publication Bans

See also: Public and Media Restrictions

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))

Absence of Accused or Video-link Attendance

See also: Remote Attendance of Counsel or Other Participants and Remote Attendance by Accused