QUICK TAKEAWAY
A Preliminary Inquiry, as outlined in s.535 of the Criminal Code, is a hearing in provincial court that determines whether a case involving an indictable offense should proceed to trial. It is not a trial in the strict sense, but the Crown prosecutor will present evidence against the accused and witnesses will give testimony under oath. The accused (if self-represented) or their lawyer can cross-examine any witness. The accused cannot be found guilty at the end of the hearing, but they may choose to negotiate a deal with the prosecutor to plead guilty in exchange for a lighter sentence. If the judge does not believe the evidence against the accused is strong enough, the charges will be dismissed. It is important to note that as of 2019, preliminary hearings are only allowed for indictable offenses punishable by 14 or more years in prison.
Table of Contents:
What Is a 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 offenceIndictable offences are more-serious criminal offences that carries a sentence of 14 years in prison or more and you choose to have your trial at the Superior Court of Justice, you or the prosecutor can ask for a preliminary hearing.
If you have been charged with a co-accused and one of you asks for a preliminary hearing, you both must attend unless the court agrees to hear your cases separately. This would be done by making a severance application and you or your co-accused would have to prove that it would be unfair to have a single trial.
A preliminary hearing 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 doubt, 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, there are rare circumstances where fresh evidence may be presented after the preliminary inquiry and you could be prosecuted again.
The Pros and Cons of the Preliminary Inquiry
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.”
Changes in the Law
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."
Glossary of Legal Terms
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
