Procedural Powers of a Preliminary Inquiry Judge: Difference between revisions
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{{LevelZero}}{{HeaderPrelim}} | [[Fr:Pouvoirs_procéduraux_d'un_juge_d'enquête_préliminaire]]{{Currency2|December|2022}}{{LevelZero}}{{HeaderPrelim}} | ||
==General Principles== | ==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. | |||
{{quotation2| | {{quotation2| | ||
; Powers of justice | ; Powers of justice | ||
| Line 13: | Line 27: | ||
:(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; | :(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; | :(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) {{AnnSec5|536.4(2)}} or agreement made under section 536.5 {{AnnSec5|536. | :(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) {{AnnSec5|536.4(2)}} or agreement made under section 536.5 {{AnnSec5|536.5A}}; | ||
:(j) | :{{removed|(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 | :(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) | :(k) [Repealed, 2022, c. 17, s. 35] | ||
; Power provided under paragraph (1)(i) | ; Power provided under paragraph (1)(i) | ||
| Line 38: | Line 52: | ||
{{LegHistory00s|2002, c. 13}}, s. 28; | {{LegHistory00s|2002, c. 13}}, s. 28; | ||
{{LegHistory00s|2008, c. 18}}, s. 22; | {{LegHistory00s|2008, c. 18}}, s. 22; | ||
{{LegHistory10s|2019, c. 25}}, s. 242. | {{LegHistory10s|2019, c. 25}}, s. 242; | ||
{{LegHistory20s|2022, c. 17}}, s. 35. | |||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|537}} | ||
|{{NoteUp|537|1|1.01|1.02|1.1|2}} | |{{NoteUp|537|1|1.01|1.02|1.1|2}} | ||
}} | }} | ||
| Line 51: | Line 66: | ||
{{LegHistory00s|2003, c. 21}}, s. 8. | {{LegHistory00s|2003, c. 21}}, s. 8. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|538}} CCC] | ||
|{{NoteUp|538}} | |{{NoteUp|538}} | ||
}} | }} | ||
Powers described in s. 537 should be "interpreted broadly so that the judge can carry out his mandate effectively."<ref> | Powers described in s. 537 should be "interpreted broadly so that the judge can carry out his mandate effectively."<ref> | ||
{{ | {{CanLIIRP|Swystun|gc6z1|1990 CanLII 7682 (SK CA)|84 Sask R 238}}{{perSKCA|Gerwing JA}}<br> | ||
{{ | {{CanLIIRP|Stinert|gfz29|2015 ABPC 4 (CanLII)|604 AR 151}}{{perABPC|Rosborough J}}{{atL|gfz29|41}}<br> | ||
</ref> | </ref> | ||
; Disclosure | ; 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.<ref> | 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.<ref> | ||
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} <br> | |||
{{ | {{CanLIIRP|Paulishyn|gx79v|2017 ABQB 61 (CanLII)|377 CRR (2d) 29}}{{perABQB|Yamauchi J}} | ||
</ref> | </ref> | ||
Unavailable evidence that would assist in full answer and defence has no bearing on the preliminary inquiry process.<ref> | Unavailable evidence that would assist in full answer and defence has no bearing on the preliminary inquiry process.<ref> | ||
| Line 84: | Line 99: | ||
{{LegHistory00s|2002, c. 13}}, s. 27. | {{LegHistory00s|2002, c. 13}}, s. 27. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|536.4}} | ||
|{{NoteUp|536.4|1|2}} | |{{NoteUp|536.4|1|2}} | ||
}} | }} | ||
| Line 95: | Line 110: | ||
{{LegHistory10s|2019, c. 25}}, s. 241(E) | {{LegHistory10s|2019, c. 25}}, s. 241(E) | ||
{{Annotations}} | {{Annotations}} | ||
| | |{{CCCSec2|536.5}} | ||
|{{NoteUp|536.5}} | |{{NoteUp|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.<ref> | |||
e.g. {{CanLIIR|Sigsworth|jpbs3|2022 BCPC 91 (CanLII)}}{{perBCPC|Patterson J}} | |||
</ref> | |||
Best practices require that the accused file an affidavit and notice of application.<Ref> | |||
{{ibid1|Sigsworth}}{{atL|jpbs3|12}} | |||
</ref> | |||
{{reflist|2}} | |||
==Publication Bans== | ==Publication Bans== | ||
| Line 110: | Line 139: | ||
==Absence of Accused or Video-link Attendance== | ==Absence of Accused or Video-link Attendance== | ||
{{seealso|Remote Attendance of Counsel or Other Participants|Remote Attendance by Accused}} | |||
{{ | |||
}} | |||