Updated December 2013
This How-To Brief outlines the steps to take to prepare for and conduct a preliminary inquiry. References to sections refer to sections of the Criminal Code.
1 Determine whether a preliminary inquiry is appropriate
Section 548 of the Criminal Code sets out the purpose of a preliminary inquiry, which is to determine whether there is sufficient evidence to require a person charged with an indictable offence, to stand trial on that or any other indictable offence arising out of the same transaction .
- Review type of charge:
- Is it a straight indictable charge?
- Is it a s. 469 offence (such as murder)?
- Is it a dual procedure (hybrid offence) where the Crown has elected to proceed by indictment?
- Is it a hybrid matter in which the Crown is proceeding summarily?
- Do you want evidence "on the record"?
- Are Crown witnesses so fragile, elderly or likely not to attend trial that the Crown would welcome the opportunity to have their evidence secured at the preliminary inquiry to be used later at trial? (s.715)
- Are there witnesses you wish to hear from who may not attend trial and whose evidence you want to ensure is secured on the record?
- Do you have insufficient disclosure? If so, a preliminary inquiry may assist you in flushing out more evidence. It may also assist the Crown in recognizing that there is not enough evidence against your client.
- Will a preliminary inquiry make the Crown's case stronger by allowing them to see your theory and/or the strengths and weaknesses of their own case?
- Is there a danger that your client may be sent to trial on further offences arising out of the evidence presented at the preliminary inquiry (s. 548(1)-(2))?
- If this is primarily a documentary case, is a preliminary inquiry necessary?
- Can you use the preliminary inquiry to set up a Charter of Rights and Freedoms argument for trial?
- Can you use the preliminary inquiry to set up a third party record application?
- Can you use the preliminary inquiry to familiarize yourself with exhibits and witnesses so that you will know what to expect at trial?
- Can you use the preliminary inquiry to test your defence theory, for example, by calling alibi witnesses?
- Are you using the preliminary inquiry to show your client the weaknesses in his or her case?
- Can the preliminary inquiry be used to assist you in resolving the matter?
- Is this a matter that you want to ultimately resolve in the Superior Court as opposed to the Provincial Court?
- Is committal in issue? If not, consider conducting a discovery instead of a preliminary inquiry?
Note: Obtain detailed written instructions from the client after explaining the pros and cons of conducting or not conducting a preliminary inquiry.
2 Request to proceed to a preliminary inquiry
Sections 534 to 551 set out the procedure to be followed when dealing with preliminary inquiries.
- A request must be made on the record by either the defence or the Crown to have a preliminary inquiry (s. 536(3)).
- Failure to make that request will result in an assumption that the preliminary inquiry is waived and the matter will be remanded to set a date for trial or a trial date will be set (s. 536(4.3)).
- In situations where there are multiple accused, if only one requests a preliminary inquiry, then all must proceed to the inquiry unless a severance application is granted (s. 536(4.2)).
3 Prepare a statement of issues
- The onus is on the party requesting to proceed to a preliminary inquiry to prepare a statement of issues (s. 536.3).
- Things to include in a statement of issues:
- the issues on which the party requesting the inquiry wishes to hear evidence (s. 536(3)(a))
- a list of witnesses from which you wish to hear (s. 536(3)(b))
- a list of any concessions or admissions you are prepared to make for the purpose of the preliminary inquiry
- an indication of any outstanding disclosure issues
4 Prepare for a pre-inquiry hearing/judicial pre-trial
- Depending on the case and the jurisdiction, a pre-inquiry hearing (or a judicial pre-trial) may be held to
- assist the parties in identifying issues on which evidence will be given at the inquiry (s. 536.4(1)(a))
- assist the parties in identifying the witnesses to be heard at the inquiry, taking into account the witnesses' needs and circumstances (s. 536.4(1)(b))
- encourage the parties to consider any other matters that would promote a fair and expeditious inquiry (s. 536.4(1)(c))
- If there is no pre-inquiry hearing, the Crown and defence counsel may agree between themselves to limit the scope of the preliminary inquiry. This agreement should be filed with the Court (s. 536.5).
5 Prepare for a preliminary inquiry
- Ensure that you have all the disclosure. Review it thoroughly. Know your case.
- Have a strategy. What do you want to achieve at the preliminary inquiry? What do you want to avoid (e.g. familiarizing witnesses with your cross-examination technique)?
- Decide what, if any, trial issues you can set up at the preliminary inquiry (e.g. lay the groundwork for Charter applications).
- Prepare your cross-examinations. Know what evidence you want to secure from each witness.
- Know your defence theory.
- Prepare for any applications such as third party records or an application to cross-examine an affiant on a search warrant.
- Do you intend to call defence witnesses? If so, prepare your witnesses thoroughly. Witnesses should rarely be called at a preliminary inquiry by the defence.
- Research any legal issues that may arise, and prepare a casebook with supporting materials.
6 How to commence a preliminary inquiry
- Check the information to see if the charges disclose offences known to law. If not, you may challenge the validity of the information.
- Subsection 601(11) gives the justice at a preliminary inquiry the power to either amend or quash a defective information
- Arraignment of your client—the charge(s) against your client will be read, but no plea will be taken from your client.
- Election—your client will be asked to elect his or her mode of trial (s. 536(2)).
- Possible orders sought:
- ban excluding the public (s. 537)(1)(h))
- ban excluding witnesses/members of the public (s. 486)
- publication ban (ss. 539, 486.4 and 486.5)
- order allowing client to sit at counsel table
- order allowing client to be absent for parts of hearing (s. 537(1)(j.1))
- Indicate any concessions or admissions for the purpose of the preliminary inquiry.
7 The Crown's case-in-chief
- The Crown may call witnesses and examine them in chief.
- The Crown may make witnesses available solely for the purpose of cross-examination.
- The Crown may seek to rely upon a statement reduced to writing or recorded in some manner (s. 540(7)) (reasonable notice must be given by the Crown pursuant to s. 540(8) of its intention to rely on such evidence).
8 The defence's cross-examination of the Crown's witnesses
- Take note of the witness's demeanour for future reference when deciding how best to approach the witness at trial.
- Be wary that a witness may grow used to your cross-examination style, so you may want to vary your style at trial.
- You may not want to cross-examine the witness if there is no benefit.
- If the Crown does not wish to call a witness in chief, ask if they will make the witness available for cross-examination. If they do not, you may have to call the witness as a defence witness, providing the Crown with the opportunity to cross-examine that witness (s. 541(1)).
- If the Crown chooses to rely on a statement, as opposed to calling a witness, you may bring an application pursuant to s. 540(9) applying for an opportunity to examine-in-chief or cross-examine the witness.
9 Decide whether to call a defence
- Think carefully whether you want to call defence witnesses. To do so makes your witnesses vulnerable to cross-examination by the Crown (e.g. if you are calling an alibi defence, thoroughly investigate the alibi before subjecting your witness to cross-examination and further investigation) (s. 541(1)).
- If you are calling witnesses, ensure that they are subpoenaed in a timely manner.
- If the justice denies your application under s. 540(9) to have a Crown witness made available for cross-examination, consider calling that witness in chief as a defence witness (s. 541(1)).
- Upon the completion of the Crown's case, your client will be asked whether he or she wishes to say anything in answer to the charges (s. 541(2)).
- Do you want to call your client to give evidence? Carefully consider the pros and cons of such a decision.
Note: When making strategic decisions, do not hesitate to consult with colleagues to seek their thoughts on your decisions. Always seek detailed written instructions from your client.
Note: If you decide to call your client, obtain written instructions clearly indicating that your client understands the pros and cons of such a decision
10 Prepare to make submissions
Note: When conceding committal on all or some of the charges, ensure that you have written instructions clearly setting out your client's understanding in support of such concessions.
Statutes and Rules
- Criminal Code. R.S.C. 1985, c. C-46
- Canadian Charter of Rights and Freedoms. Part 1 of the Constitution Act, 1982. being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11