Electing a Preliminary Inquiry
| This page was last substantively updated or reviewed January 2020. (Rev. # 95257) |
General Principles
Crown and defence have the right to elect to hold a preliminary inquiry for indictable and hybrid offences prosecuted by indictment that have a maximum penalty of 14 years or more.
A preliminary inquiry judge who sits at the provincial court level presides over the hearing and determines whether to make an order of committal directing that the accused stand trial before a superior court judge or jury.
Offences Eligible for a Preliminary Inquiry
A Preliminary Inquiry can only be available for indictable offences with a maximum penalty of 14 years or more (s.535). A hearing will be scheduled in any one of the following situations:
- the accused elects trial by judge alone or judge and jury (s. 536(2), (4))
- the accused is charged with an offence under s. 469 (e.g. murder, treason, etc)
- the accused refuses to make an election (s. 565)
- the judge exercises discretion in ordering the matter be prosecuted by indictment (s 555(1))
- the attorney general orders a trial by judge and jury (s. 568)
On the election the judge must endorse the information to show the election and who made the election. (s. 536(4.1))
Where there are more than one accused, if one person elects to have a preliminary inquiry the remainder are deemed to have made the same election. (s. 536(4.2), 567)
The time limit is set by the rules of the Court pursuant to s. 482 and 482.1
Parties Able to Request a Preliminary Inquiry
Under 536(4) either the Defence or the Crown may request that a preliminary inquiry so long it is within the time-limit as set by the rules of court or the justice.
536
[omitted (1), (2), (2.1) and (3)]
- Request for preliminary inquiry
(4) If an accused referred to in subsection (2) [election before justice – 14 years or more of imprisonment] elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) [deemed election where lower judge declined to record] to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 [exclusive jurisdiction offences] that is punishable by 14 years or more of imprisonment, the justice shall, subject to section 577 [direct indictments], on the request of the accused or the prosecutor made at that time or 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, hold a preliminary inquiry into the charge.
[omitted (4.1), (4.11), (4.12), (4.2) and (4.3)]
- Jurisdiction
(5) Where a justice before whom a preliminary inquiry is being or is to be held has not commenced to take evidence, any justice having jurisdiction in the province where the offence with which the accused is charged is alleged to have been committed has jurisdiction for the purposes of subsection (4) [request for preliminary inquiry[1]].
R.S., 1985, c. C-46, s. 536; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 25; 2004, c. 12, s. 9; 2019, c. 25, s. 239.
[annotation(s) added]
The obligation upon the accused under s. 536(4) to request a hearing does not violate their freedom of expression or right against self-crimination.[2]
There is no requirement of when the request for a preliminary inquiry must be made.[3] It is preferred practice that the counsel requesting the preliminary inquiry identify the issues to addressed and witnesses required at the time of the request.[4]
- ↑ Found elsewhere in this same page.
- ↑ R v Seniuk, 2007 SKQB 73 (CanLII), 292 Sask R 278, per Allbright J
- ↑
R v Stinert, 2015 ABPC 4 (CanLII), 604 AR 151, per Rosborough J, at para 19
R v Young, 2011 BCPC 421 (CanLII), per de Couto J - ↑
Stinert, supra, at paras 20 and 21
R v Hathway, 2005 SKPC 99 (CanLII), 249 CCC (3d) 84, per Whelan J, at para 62
Setting of Preliminary Inquiry Hearing
Under s. 536, at sometime before the setting of a preliminary inquiry date, the judge must read the accused his election address:
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You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury, or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried? |
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