Enquête préliminaire

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General Principles

The preliminary inquiry justice derives all of its authority from Part XVIII of the Code.

Preliminary Inquiry Flowchart

Inquiry by justice

535 If an accused who is charged with an indictable offence that is punishable by 14 years or more of imprisonment is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) [demande d'enquête préliminaire] or 536.1(3) [demande d'enquête préliminaire – Nunavut], the justice shall, in accordance with this Part [Pt. XVIII – Procédure à l’enquête préliminaire (art. 535 à 551)], inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part [Pt. XVIII – Procédure à l’enquête préliminaire (art. 535 à 551)].
R.S., 1985, c. C-46, s. 535; R.S., 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 24; 2019, c. 25, s. 238.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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The powers of a preliminary inquiry judge exist only in statute and within Part XVIII of the Code.

Availability

Where an election for trial by superior court judge (alone or with jury) and the maximum penalty is 14 year or more, the provincial court judge receiving the election must inquire whether the accused wishes to have a preliminary inquiry. Where a preliminary inquiry is requested, the provincial court judge has jurisdiction to take evidence as a preliminary inquiry judge.

Dangerous Offender Application

Where the Crown provides proper notice of an intention to seek a Dangerous Offender Order prior to election and plea on an offence with a penalty under 14 years. The prospects of a Dangerous Offender Order does not create .

Retrospectivity of Bill C-75 Changes

On September 19, 2019, Bill C-75 removed the availability of preliminary inquiries to offences with maximum penalty of 10 years or less.

There is a division in the case law of whether the amendments in Bill C-75 removing the preliminary inquiry for certain offences will affect those matters with inquiries already scheduled.

Offences that had a maximum penalty of 10 years at the time they were permitted but have since been increased to 14 years or more are not entitled to a preliminary inquiry under the current law.

Purpose

The purpose of the preliminary inquiry is to determine if there is sufficient evidence to set the matter down for trial before a Justice of the Superior Court. In practice the Inquiry is used to test the strength of the Crown’s case.

Its purpose is also "to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process."

It is an "expeditious charge-screening mechanism"

The inquiry judge has a general power to regulate the inquiry process under s. 537. The judge may require counsel to define the issues for which evidence will be called (see s.536.3), and may further limit the scope of the inquiry under section 536.5 and 549.

There is no constitutional right to a preliminary inquiry. Thus, any deprivation of a preliminary inquiry does not violate any principles of fundamental justice.

Discovery Function

Prior to the amendments in 2005, it has also been used as a venue for discovery.

Since the passing of the Criminal Law Amendment Act, 2002, c. 13 (Bill C-15A), discovery has lost some relevancy as a purpose of the preliminary inquiry. The discovery purpose is "ancillary" to the main purpose of the hearing.

The discovery function of the preliminary inquiry "does not encompass the right of the accused to call evidence ... which is solely relevant to a proposed application to exclude evidence at trial."

Where the accused is in possession of all disclosure covering the investigation and offence there is some suggestion that the discovery purpose of the preliminary inquiry becomes largely irrelevant.

Discovery function does not impose any obligations upon Crown to call all relevant evidence for trial.

Cross-examining Warrant Affiant (Dawson Applicantion)

There is some support to allow the accused to cross-examine the affiant during the preliminary inquiry. In Ontario, this requires an application before the preliminary inquiry judge to determine if it is available.

Topics

• Electing a Preliminary Inquiry
  • Statement of Issues and Witnesses Under Section 536.3
• Order of Committal to Stand Trial
• Procedural Powers of a Preliminary Inquiry Judge
• Preliminary Inquiry Evidence
• Miscellaneous Issues for Preliminary Inquiry