Pro Se Litigant
Indictable charges are more calamitous than summary charges. When the Crown proceeds by way of indictment, the accused may elect a Preliminary Inquiry. The additional procedural safeguards for indictable offences attest to their seriousness.
The jurisdiction of a Preliminary Inquiry judge is conferred exclusively by sections 535 to 551 of the Canadian Criminal Code (CCC). Neither the Canadian Charter of Rights, nor any other legislation, modifies or extends the specific tasks assigned to the magistrate by the Code.
CCC section 535 defines how evidence is taken at a Preliminary Inquiry. If the judge admits into evidence, or acts upon evidence, which does not comply with this section, then the judge exceeds his jurisdiction. The section says:
CCC s. 535 Inquiry by Justice – If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry … the justice shall 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.
That is not mere bureaucratic jargon. Parliament carefully worded section 535 to restrict the powers of a Preliminary Inquiry judge. The practical consequences are:
In testing for compliance, modern courts adopt a flexible approach as opposed to a technical one. The central consideration, called the Golden Rule of Sufficiency of a charging document, is: “The accused must be reasonably informed of the transaction alleged against him, thus giving him access to a full defence and a fair trial. When the Information recites all the facts and relates them to a definite offence spelled out in a section of the Code, it is impossible for the accused to be misled.”
The Supreme Court in R. v. Chabot 1980 SCC affirmed: “The Criminal Code does not authorize an inquiry at large into not only the specific offence charged but also all areas in which the Crown may choose to lead evidence. An accusation does not exist in latent form. A person is charged or he is not. The charges that a justice may inquire into must exist at the time the Preliminary Inquiry commences.”
The Crown may advise the police, but the Crown is not an investigative body. After police lay an Information, the Crown cannot modify it. The duty of the Crown is to prosecute the Information as it stands. The Crown is not allowed to sweep in evidence, or lead evidence, outside the scope of the charges.
The scope of the Inquiry is limited to the charges laid in the Information. The question here is not the application of legal principles within the realm of evidence. It is a matter of crossing the dividing line between mere evidentiary rulings, versus the right to gather any of the disputed evidence at all.
It is vital to distinguish between errors of jurisdiction, and errors in the admissibility of evidence:
Jurisdiction – refers to the content, the topic, or subject matter of the evidence. What set of facts does it contain? The evidence must speak to the charges, and must fall within the transactions listed by police on the Information.
Admissibility – refers to the format and credibility of the evidence. Some examples are: Is the evidence oral testimony, a written statement, or a videotape? Is it hearsay or not? Was an intercepted communication obtained lawfully or not? Was doctor-patient confidentiality breached in obtaining medical records? Is a child witness old enough to understand the oath?
The day is long past when a justice conducting a Preliminary Inquiry was seen as participating in an investigation of the offence. In Canada today, even a Preliminary Inquiry must be conducted according to the rules of evidence.
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.
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.”
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:
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
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
CCC s 548. (1) – When all the evidence has been taken by the justice, he shall:
Canadian Criminal Code
Procedure in Jury Trials
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:
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.
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