The Preliminary Inquiry (4 of 5)

Nikolas Lust


In this section we discuss an optional step in the criminal process - a step that is only available to a narrow set of charges - The Preliminary Inquiry. 

What is a Preliminary Inquiry

The preliminary inquiry serves a gatekeeper function under Canadian criminal law - but only for the most serious of offences.  It is a proceeding to determine whether there is sufficient evidence for a person to stand trial on the acts alleged.  The Prosecutor typically has little difficulty meeting the test of sufficient evidence because the threshold is so low. 

Think of the preliminary inquiry as a trial before the trial. There are some slight, but important differences. Here are the similarities:

1. Like a trial, the Crown and Defence counsel appear in a courtroom for a hearing before a Judge.  

2. The Crown presents their evidence in the case to establish the guilt of the accused.

3. Witnesses come to court and testify under oath, opposing counsel may cross-examine them and judges will make rulings on admissibility of evidence.

4. At the end of the inquiry, the judge make a final ruling. 

Most importantly, here are the DIFFERENCES between a trial and a preliminary inquiry: 

1. A preliminary inquiry is not to determine if you are guilty or not. As a result, you cannot be found guilty of a crime at the end of the inquiry as you can be at the end of a trial. 

2.  The prosecutor may introduce evidence that may otherwise be inadmissible at trial so long as the evidence is credible and trustworthy and the opposing counsel does not wish to hear from the witness (see ss.540(7) to 540(9) of the Criminal Code).

3. If a judge finds there is sufficient evidence presented by the Crown, you are committed to stand trial, rather than found guilty.

4. If a Judge finds there is insufficient evidence presented by the Crown, your charges are dismissed, rather than being found 'not guilty'. 

5. The legal test is whether “a jury who is properly instructed and acting reasonably, could return a verdict of guilt on the evidence presented.”

6. If the case is circumstantial in nature, a preliminary hearing judge is permitted to engage in a limited weighing of that evidence in their assessment in the test above and in asking the question of whether a jury could still reasonably return a verdict of guilt.

7. Although they have the right to, it would be unusual for an accused to present evidence as the test for committal is a one-way street and a judge is not permitted by law to consider what evidence to prefer if they contradict one another.


The Benefits of a Preliminary Inquiry

Although preliminary hearings are rarely successful in having charges disposed of by way of an accused being discharged, they are of great benefit to all parties involved as it serves as an invaluable mechanism to better understand the Crown's case. 

When you go straight from court appearances, to a trial, you often have little-to-no idea of what a witness will actually say when they hit the stand. You may have video statement the witness gave a year prior, or written statements, but often times, a witness will slightly alter their story for better or for worse. 

The benefit of the prelim is that you can hear the witness hit the stand, and compare their statement on the stand to the statement they gave police, and see what happens to their evidence once you cross examine them. They may recant a part of their story, they may contridict themselves, they may add detail and description to their previous statement that lends them credibility - you never know. 

Once the matter proceeds to trial, you'll have in your back pocket the intial statement the witness gave, the statement the witness gave at the prelim, and the witnesses satement at the prelim following cross examination. This will give you a very good idea of how the witness and other evidence will play out at a trial. It allows you to gameplan with a slight degree of predictability that is otherwise non-existent at a trial without a prelim. 


When, How, and Who Qualifies

WHEN: After you have had a meeting with the Crown and the Judge at a Judicial Pre-Trial Meeting, the next step in the process is setting either trial or preliminary inquiry dates. 

HOW: In order to set preliminary inquiry dates, you must go to an office in the courthouse, called trial coordinators, with the Crown Prosecutor. There, you give trial coordinators the time estimate of the preliminary inquiry, and advise whether or not the client is in custody. If the client is in custody, you generally get earlier dates for a prelim. Trial Coordinator begin offering dates, and defence counsel and the Crown Prosecutor check their calenders and either confirm their availability or if they are unavailable. For every date that is offered and not accepted, Trial Coordinators will state on a form which party was unavailable for the date offered. Why? Because if the trial date is set beyond the time frame allowed for scheduling a trial within a reasonable amount of time, Defence Counsel may file a motion to have the charges disposed of because the trial took to long to conduct  - a right guaranteed under s.11(b) of the Charter. In determing whether or not the delay was too long, a Judge will look to see who was responsible for delay. They will look at things like the Trial Coordinators sheet to see which party wasn't available for which date.

Once a date has been agreed by both parties, Defence counsel must appear in court, confirm the prelim dates, and adjourn the matter to the preliminary hearing

WHO QUALIFIES FOR A PRELIM: The unfortunate reality of our justice system is that our politicians do not believe the prelim in a very important tool. But if you ask any Criminal Defence Lawyer, a preliminary inquiry is unbelieveably helpful, particularily in a case where much of the evidence comes from people testifying. 

Recently, the Government of Canada enacted a bill that reduced the availability of the prelim. Before this Bill, a prelim was available to anyone charged with an indictable offence and elected to be tried in Superior Court. 

Now, the only people who qualify for a Preliminary Inquiry are those who have been charged with an Indictable offence where the punishment on conviction for that offence, is AT LEAST 14 years. 

This means that people charged with Sexual Assault no longer have a right to a prelim. Yet, people who sell a large amount of weed have a right to a prelim. The Bill makes no sense, and is just another way that the Government has made it harder for those charged with serious offences to beat their charges. 



If in the likely event you have been comitted to stand trial, the next step is to set trial dates. If not, your charges will be dismissed.