Order of Committal to Stand Trial

From Criminal Law Notebook


This page was last substantively updated or reviewed January 2020. (Rev. # 94371)

General Principles

The test for a preliminary inquiry is the same as a motion for non-suit or directed verdict.[1] The test is: "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty."[2]

The analysis requires the judge to determine whether "there is admissible evidence which could, if it were believed, result in a conviction."[3]

The evidentiary standard is "very low". There must simply be "some or a scintilla of evidence on each essential element of the offence."[4]

If the "evidence is capable of belief, it is to be believed."[5]

The evidence cannot be considered "piecemeal" but rather the judge must examine the evidence as a whole.[6]

After hearing evidence and argument the court must make a ruling on whether to commit the accused to stand trial for the charges alleged.[7]

Where the evidence "consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror, the trial judge must direct an acquittal upon a motion for directed verdict."[8]

  1. R v Arcuri, 2001 SCC 54 (CanLII), [2001] 2 SCR 828, per McLachlin J
    United States of America v Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067, (1976) 30 CCC (2d) 424, per Ritchie J, at p. 427
    R v Mezzo, 1986 CanLII 16 (SCC), [1986] 1 SCR 802, per McIntyre J, at pp. 842‑43
  2. Arcuri, supra, at para 21
  3. USA v Shephard, supra, at p. 427
  4. see R v Hyra, 2013 MBCA 59 (CanLII), per Chartier JA, at para 10
  5. R v Eckstein, 2012 MBCA 96 (CanLII), [2012] MJ No 352 (CA), per Chartier JA, at para 18
  6. R v Muir, 2008 ONCA 608 (CanLII), [2008] OJ No 3418 (CA), per curiam
  7. R v Coke, [1996] OJ No 808(*no CanLII links) , per Hill J, at paras 8 to 11
  8. R v Hay, 2013 SCC 61 (CanLII), per Rothstein J

Inferences and Circumstantial Evidence

The test remains the same whether the evidence is circumstantial or direct. [1]

Where inferences may be drawn, it is not important if "more than one inference can be drawn...only the inferences that favour the Crown are to be considered."[2]

  1. see Mezzo v The Queen, 1986 CanLII 16 (SCC), [1986] 1 SCR 802
  2. R v Sazant, 2004 SCC 77 (CanLII), [2004] 3 SCR 635, per Major J, at para 18
    see also R v Noddie, [2009] OJ No 855(*no CanLII links) - trial judge weighs inferences, ruling overturned

Insufficient Evidence

Where the evidence is not sufficient to commit the matter to trial the Judge may discharge the accused of the charges alleged:

Order to stand trial or discharge

548 (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[omitted (2), (2.1) and (3)]
R.S., 1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994, c. 44, s. 56.

CCC (CanLII), (DOJ)


Note up: 548(1)

Standard of Review

See also: Mandamus, Certiorari, and Prohibition
Errors of jurisdiction

Where a judge incorrectly decides on the issue of committal there may be a loss of jurisdiction reviewable on a writ of certiorari.

A committal where there is an absence of evidence on an essential element of the charge is a jurisdictional error.[1]

An error in an evidentiary ruling on an element of the offence is not a jurisdictional error that is reviewable.[2]

  1. R v Skogman, 1984 CanLII 22 (SCC), [1984] 2 SCR 93, (1984) 13 CCC (3d) 161, at p. 170-171
  2. R v Beaven, 2012 SKCA 59 (CanLII), 290 CCC (3d) 312 ("erroneous evidentiary ruling under which the only evidence on an essential ingredient of an offence is admitted is not a jurisdictional error")
    R v LeBlanc, 2009 NBCA 84 (CanLII), 250 CCC (3d) 29

Consent to Committal

At any time before the conclusion of the preliminary inquiry the accused may consent to committal.

Order to stand trial at any stage of inquiry with consent

549 (1) Notwithstanding any other provision of this Act, the justice may, at any stage of a preliminary inquiry, with the consent of the accused and the prosecutor, order the accused to stand trial in the court having criminal jurisdiction, without taking or recording any evidence or further evidence.

Limited preliminary inquiry

(1.1) If the prosecutor and the accused agree under section 536.5 [agreement to limit scope of preliminary inquiry] to limit the scope of a preliminary inquiry to specific issues, the justice, without taking or recording evidence on any other issues, may order the accused to stand trial in the court having criminal jurisdiction.

Procedure

(2) If an accused is ordered to stand trial under this section, the justice shall endorse on the information a statement of the consent of the accused and the prosecutor, and the accused shall after that be dealt with in all respects as if ordered to stand trial under section 548.

R.S., 1985, c. C-46, s. 549; R.S., 1985, c. 27 (1st Supp.), s. 101; 2002, c. 13, s. 30; 2019, c. 25, s. 247.

CCC (CanLII), (DOJ)


Note up: 549(1), (1.1) and (2)

Ordering Committal

When the preliminary inquiry judge makes an order of committal he must transfer the record of the matter (the information, evidence, exhibits and statements made under s. 541, release documents, etc) to the superior court. That is stated in s. 551:

Transmission of record by justice

551 If a justice orders an accused to stand trial, the justice shall immediately send to the clerk or other proper officer of the court by which the accused is to be tried, any information, evidence, exhibits, or statement of the accused taken down in writing in accordance with section 541 [hearing witnesses and accused], any appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the justice.
R.S., 1985, c. C-46, s. 551; R.S., 1985, c. 27 (1st Supp.), s. 102; 2019, c. 25, s. 249.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 551


Defined terms: "appearance notice" (s. 2), "justice" (s. 2), "release order" (s. 2), and "undertaking" (s. 2)

This provision came into force on December 18, 2019.

Fixing Dates

548
[omitted (1) and (2)]

Where accused ordered to stand trial

(2.1) A justice who orders that an accused is to stand trial has the power to fix the date for the trial or the date on which the accused must appear in the trial court to have that date fixed.
[omitted (3)]
R.S., 1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994, c. 44, s. 56.

CCC (CanLII), (DOJ)


Note up: 548(2.1)


Defined terms: "justice" (s. 2)

New Charges

548
[omitted (1)]

Endorsing charge

(2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.
[omitted (2.1) and (3)]
R.S., 1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994, c. 44, s. 56.

CCC (CanLII), (DOJ)


Note up: 548(2)


Defined terms: "justice" (s. 2)

Defects to Order

548
[omitted (1), (2) and (2.1)]

Defect not to affect validity

(3) The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect.
R.S., 1985, c. C-46, s. 548; R.S., 1985, c. 27 (1st Supp.), s. 101; 1994, c. 44, s. 56.

CCC (CanLII), (DOJ)


Note up: 548(3)

Order Transferring Detained Property

490
[omitted (1), (2), (3) and (3.1)]

When accused ordered to stand trial

(4) When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) [detention of things seized without consent (various means)] to the clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk of the court and disposed of as the court directs.
[omitted (5), (6), (7), (8), (9), (9.1), (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14; 2017, c. 7, s. 63(F).
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 490(4)


Defined terms: "clerk of the court" (s. 2) and "justice" (s. 2)