To have a preliminary inquiry or not, that is the question

As recently as a few months ago, the Attorney General for Ontario was in the news calling for the elimination of preliminary inquiries. The concern from the Attorney General was for court delays and this elimination, he claimed, would help speed up trials in criminal proceedings. Many individuals and organizations have spoken out against this suggestion and have argued the important role that preliminary inquiries have in the criminal justice system, including an article written by Ian Carter of Bayne Sellar Ertel Carter.

In all this, you may be left wondering what is in fact a preliminary inquiry? What purpose does it serve and whether or not you should have a preliminary inquiry in your case?

A preliminary inquiry is a proceeding that is permitted in the Criminal Code and occurs before a trial in the Superior Court of Justice. Not all charges permit an accused person to have a preliminary inquiry; typically, whether an accused person is entitled to have a preliminary inquiry depends on the nature of the charge (such as sexual assault) and the nature of the election by the prosecutor (whether the prosecutor proceeds by summary election or by indictment). So, the first step is to determine whether you are entitled to a preliminary inquiry.

Sometimes even if an accused person is entitled to a preliminary inquiry, an accused person may not want to have a preliminary inquiry at all or may want to have a limited preliminary inquiry (or a discovery). This may be for a variety of strategic reasons, as discussed below.

Typically, a preliminary inquiry may occur one of two ways. In some cases, the defence wishes to argue that the prosecutor does not have sufficient evidence to support the charges against an accused person and that the accused person should be discharged (and not have to proceed to trial). For these types of proceedings, the prosecutor calls their witnesses to support the allegations and the defence is allowed to cross-examine those witnesses. At the end of the proceeding, the defence is able to argue that the accused person should not be committed to stand trial.

In other cases, the defence may be prepared to agree that there is at least some evidence – if believed – to support the charges, but may wish to cross-examine some witnesses to explore particular issues that may be relevant at the trial. For these types of proceedings, the defence concedes that the accused person should be committed to stand trial, but is permitted to cross-examine witnesses that they wish to hear from.

In deciding whether to have a preliminary inquiry or not some considerations may include:

· Whether a preliminary inquiry will show weaknesses to the prosecutor’s case and thus help in the negotiation process with the prosecutor?

· Whether the defence will be able to explore whether there were violations of the Charter rights of an accused person that can then be argued at trial?

· Whether the defence will be able to explore the evidence of key witnesses to establish weaknesses in a witness’s credibility or reliability?

Having a preliminary inquiry can be an important decision. It has the potential to lengthen the proceedings and can have financial consequences on the defendant, but in some cases, it can also be a useful tool in defending oneself against criminal allegations and thus is a decision that should not be made lightly. Each case is different, involving different strategic decisions depending on the evidence and the defence that will be argued.


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