Preliminary Inquiry

After you are arrested, police will take the results of their investigation to the Crown who decides whether to proceed with a prosecution. If you have been charged with an indictable offenceA more serious type of Canadian criminal offence. that carries a maximum punishment of 14 years or more and you elect to be tried by a judge, with or without a jury, either you or the prosecutor can ask for a preliminary inquiry. If neither side requests one, the case proceeds directly to a trial date without a hearing.

If you have been charged with a co-accused and one of you asks for a preliminary inquiry, a preliminary inquiry must be held for all jointly charged accused unless the court agrees to hear the cases separately. This would be done by making a severance application and showing that it would be unfair to have a single trial.

A preliminary inquiry is much like a trial with the Crown tasked with proving there is enough evidence to justify a trial. The prosecution does not have to prove guilt beyond a reasonable doubtThe high standard the Crown must meet to prove guilt., which is the case in a criminal trial.

Typically, the Crown will present the most important parts of the evidence against you and may call witnesses to testify. You are allowed to cross examine any witnesses, call your own witnesses and present evidence. An accused does not have to mount a defence. The hearing is often used as a discovery tool by the defence, giving you the opportunity to look for inconsistencies that can be brought out at trial.

After the Hearing

After the hearing, the court will decide if there is enough evidence to proceed to trial. The judge does not have to be convinced that you are guilty of the crime to commit you to stand trial, only that sufficient evidence exists. The test for proving the case at the preliminary stage is considered low, so cases generally proceed to the next stage. If you are facing multiple offences, the court can order you to stand trial on all of them, dismiss some counts or order a trial on a single count.

If you decide to plead not guilty after the preliminary hearing, the judge will set a trial date. If you are not out on bail you will be held in custody until that time. After hearing the evidence, you may decide to negotiate with the Crown to plead guilty to a lesser offence or strike a deal to drop some charges in exchange for a lesser sentence.

If the case against you is dismissed you are free to go. However, in rare cases the Attorney General (or, in some cases, by court order) can bypass the preliminary inquiry result and send the case directly to trial by way of a direct indictment. No new evidence is required to do this. If a direct indictment is filed, you will still face trial even though the preliminary inquiry was dismissed.

In a report for the Department of Justice, researchers noted a number of advantages to the justice system for preliminary hearings, including the fact that they can facilitate plea negotiations. They can also decrease the likelihood of a wrongful conviction, help to focus the trial and streamline the criminal justice system. These inquiries can serve as a dry run, giving witnesses or victim the chance to tell their stories early in the process which may give them a familiarity and better understanding of the court process.

The report states that the main advantage to the prosecution or the defence was that the inquiries “provide a forum where witness credibility may be assessed, where the strengths and weaknesses of the case can be discovered and where any lack of disclosure will be highlighted.”

The biggest disadvantage, researchers found, was the cost and delay that accompany the process. The Crown may face a disadvantage due to the potential for inconsistent or contradictory evidence by witnesses due to the time between the preliminary and the trial, researchers found. The report also notes the potential disadvantage to victims and witnesses who “felt the experience of testifying twice (at the preliminary hearing and again at trial) was difficult, traumatic and expensive.”

Preliminary hearings were once allowed for serious offences with a maximum penalty of 10 years or less. However, in 2019 the federal government introduced Bill C-75, An Act to Amend the Criminal Code, the Youth Criminal Justice Act and other Acts. 

Since then, inquiries are only permitted for indictable offences with penalties exceeding 14 years such as homicide and aggravated sexual assault.

In explaining the amendment, the government reasoned that the change "frees up court time and resources in provincial courts, while alleviating the burden on some witnesses and victims by preventing them from having to testify twice in those cases."