A preliminary inquiry is held to determine if there is enough evidence for an individual to be tried on their charges, and can only happen when the accused is charged with an indictable offence. Indictable offences can be classified in a variety of ways. They can be specified as indictable in the Criminal Code; the offence can be a hybrid one (the Crown elects whether or not the charges will be summary or indictable) where the Crown has chosen to proceed by indictment; or the offence falls under s. 553 of the Criminal Code, which are indictable offences where the provincial courts have absolute jurisdiction.
The accused will be present at the preliminary inquiry, as will their lawyer, the Crown and a judge. The outcome of the preliminary inquiry is either that the accused will be committed to stand trial, or that the case against the accused will be dismissed.
A Judge must read, pursuant to s. 536, an 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?”
Requesting A Preliminary Hearing
A request (application) for a preliminary hearing must be made to the court by either the defence or the crown. (s. 536(3))
Situations in which there are multiple accused any single accused person can request to proceed to a preliminary hearing, binding all other parts to proceed to a preliminary inquiry. A successful severance application would have to be granted in order to avoid proceeding. (s. 536(4.2))
Failure of an accused to request a preliminary inquiry may result in the assumption that the request to hold preliminary hearing has been waived. (s. 536(4.3)) Losing the right to have a preliminary hearing could have serious consequences on the durability of a defence strategy.
Issues & Witnesses
Statement of issues and witnesses
536.3 If a request for a preliminary inquiry is made, the prosecutor or, if the request was made by the accused, counsel for the accused shall, within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, provide the court and the other party with a statement that identifies
- (a) the issues on which the requesting party wants evidence to be given at the inquiry; and
- (b) the witnesses that the requesting party wants to hear at the inquiry.
2002, c. 13, s. 27; 2011, c. 16, s. 3(F).
Commencing a Preliminary Hearing
The information will be confirmed and the accused will be arraigned , with the charges read. The accused will elect the mode of trial.
Orders Often Sought at a Preliminary Inquiry
Publication Ban – Prevents the media form reporting on the hearing.
Public Ban – Excludes the public from attending the hearing
Witness Exclusion – An order to prevent witnesses from attending the proceeding except when they are not he stand.
Absence Order – In some cases an order allowing the accused to be absent from the proceeding can be granted.
Counsel Table – In a preliminary inquiry the accused can be allow to join counsel at their table.
The crown wil present it’s case against an accused in order to justify the charges it seeks to to have the accused committed for trial 0n. The crown may call witnesses and submit statements and recordings. The defence has the right to cross examine all witness in chief. A witness is in chief when they are on the stand giving sworn testimony in person.
The defence has the option to call witness to give testimony to the court. All defence witnesses can be cross examined by the crown. An experienced criminal defence your can best assess if it is wise to present a defence case at preliminary hearing.
Following the presentation of their respective cases to the judge and the cross-examination of witness both sides have the opportunity to make submissions for the judge to consider.
The judge will make a ruling on committal for trial.
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