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Pro Se Litigant

Taking Evidence at a Preliminary Inquiry

Jurisdiction Differs from Admissibility

R. v. Stoll (2014) ONSC 5242

Scope of a Preliminary Inquiry

The jurisdiction of a preliminary inquiry judge is statutory and based on s. 548(1) of the Canadian Criminal Code. While the Inquiry affords defence counsel the opportunity to assess the nature and strength of the case against his client, its primary purpose is to ascertain whether there is sufficient evidence to commit the accused to trial.

Critically, the Preliminary Inquiry is not meant to determine the accused's guilt or innocence. That determination is made at trial. The Preliminary Inquiry serves a screening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused.

The limited scope of supervisory remedies reflects the limited purpose of the preliminary inquiry. A decision by a preliminary inquiry judge to commit or to discharge is not subject to appeal. It is, however, subject to review by Certiorari.

Yet, a reviewing court should only intervene on a Certiorari application where the Prelim­inary Inquiry judge commits a jurisdictional error. Errors of law are not reviewable nor can a reviewing court overturn a decision of a Preliminary Inquiry judge on the basis that it would have reached a different decision.

Exceeding Jurisdiction

A Preliminary Inquiry judge exceeds his or her jurisdiction if he or she fails to consider the whole of the evidence as directed by CCC section 548(1)(b). Where the Crown's case consists of, or includes, circumstantial evidence, the Preliminary Inquiry judge is entitled to engage in a limited weighing of the evidence to determine whether a reasonable jury, properly instructed, could return a verdict of guilty.

The jurisdiction of the Preliminary Inquiry judge is not inherent, but statutory. Jurisdiction is lost when a judge fails to observe a mandatory provision of the Criminal Code. The judge has the obligation to obey the jurisdictional prescriptions of s. 535 of the Code.

Parliament never intended to allow decisions on the discharge of an accused to be made without full regard to all of the evidence. It is a jurisdictional error for a Preliminary Inquiry judge to fail to consider the whole of the evidence.

Dubois v. The Queen (1986) SCC 60

No Jurisdiction to Act Arbitrarily

Superior courts, from the earliest days in our law, have exercised their inherent authority to force lower tribunals to comply with the law. Lower tribunals must exercise in full their statutory jurisdiction without exceeding that jurisdiction. Such is the position of a Preliminary Inquiry in Provincial Court.

The Preliminary Inquiry is entirely statutory and its activities are measured on judicial review against the jurisdiction accorded to it by sections 535 to 551 of the Canadian Criminal Code. These sections collectively are called the Procedure on Preliminary Inquiry.

Those sections are mandatory provisions of the Criminal Code. Jurisdictional error ensues when any one of those provisions is not followed. There is no jurisdiction to act arbitrarily.

Certiorari is the traditional way to challenge a Preliminary Inquiry decision when:

  1. the Judge lacked initial jurisdiction; or
  2. the Judge lost jurisdiction by failing to observe mandatory provisions of the Criminal Code; or
  3. the Crown failed to introduce any evidence of an essential element of the charges; or
  4. there was a denial of natural justice.

R. v. VandenElsen and Finck (2004) NSPC 44

Crown Must Not Mislead an Accused

In the absence of any agreements, the Crown is left with the charges stated on the Information. The judge ruled: If, before the start of the Preliminary Inquiry, the Crown had clearly stated its intention to lay new charges, and if, at the start of the Inquiry, the Crown had presented a draft of the new allegations, then the accused would not have been prejudiced.

There is no suggestion that the accused were informed what new charges were to be pursued against them. It is an inappropriate use of the Preliminary Inquiry process for the Crown, having proffered an Information which the accused were prepared to defend, to then ask the court to hear evidence only for the purpose of attempting to have a committal to trial on charges other than, and in addition to, those addressed in the Information.

If the Crown was aware of the new charges before the beginning of the Preliminary Inquiry, it should have presented a new Information that spelled out the charges on which it sought a committal.

The Judge drew the line: If the rationale behind the Crown's conduct is that it wants to lead more evidence so it could be in a position to seek committals over and above the charges on the Information, then that could, in my view, change the fundamental reasons for the holding of a Preliminary Inquiry.

Canadian Criminal Code
Procedure on Preliminary Inquiry


Inquiry by Justice

CCC s 535  –  If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

Adjudication and Recognizances

Order to Stand Trial or Discharge

CCC s 548. (1)  –  When all the evidence has been taken by the justice, he shall:

  1. if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
  2. discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

Canadian Criminal Code
Procedure in Jury Trials

General Provisions Respecting Counts

CCC s 581 (1)  –  Each count in an Indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.

CCC s 581 (2)  –  The statement referred to in subsection (1) may be:

  1. in popular language without technical averments or allegations of matters that are not essential to be proved;
  2. in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or
  3. in words that are sufficient to give to the accused notice of the offence with which he is charged.

CCC s 581 (3)  –  A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia

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Queen’s Bench Courthouse

Saskatoon, Canada

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