Choix d'une enquête préliminaire

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• < Procédure et pratique
• < Enquête préliminaire

Principes généraux

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
[omis (1), (2), (2.1) and (3)]

Request for preliminary inquiry

(4) If an accused referred to in subsection (2) [élection devant un juge – 14 ans ou plus d'emprisonnement] 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) [élection réputée lorsque le juge de première instance a refusé d'enregistrer] 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 [Infractions pertinentes d'une compétence exclusive] that is punishable by 14 years or more of imprisonment, the justice shall, subject to section 577 [actes d'accusation directs], 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 [pouvoirs de la cour supérieure et de la cour d'appel pour établir des règles] or 482.1 [pouvoirs de la cour supérieure et de la cour d'appel pour établir des règles de gestion des affaires] or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.
[omis (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) [demande d'enquête préliminaire].
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) ajoutée(s)]

– CCC (CanLII), (Jus.)

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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.

There is no requirement of when the request for a preliminary inquiry must be made. 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.

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:

“

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?

”

Statement of Issues and Witnesses

• Statement of Issues and Witnesses Under Section 536.3