Unfortunately, not enough laws are federal and apply from coast to coast. In so many areas of the law, major differences occur as soon as you cross a provincial border.

But criminal law is a major and welcome exception to this rule, as the Canadian constitution gave the right to write criminal law to the federal government. As the following article is on a criminal law matter, and is based on the Criminal Code of Canada, it applies everywhere in Canada.


The traditional process for the treatment of serious criminal charges in Canada involves a multi-step tango.

For the more serious crimes, one of these steps involves a preliminary inquiry, at which time the prosecution must show the judge that there is a bare minimum of evidence to justify a full-fledged trial (a prima facie case). In practise, this is often the defence lawyer's first chance to see just how good a case the prosecution has and so it may be the time and place to plead guilty or fish for a plea bargain.

The Criminal Code of Canada provides for a preliminary inquiry in all cases involving serious crimes.

preferred indictmentIn each province, most criminal matters are brought by lawyers employed by the government known as Crown counsel, attorney or prosecutor or just "the Crown".

The Criminal Code allows the Crown to jump right over the preliminary inquiry and go straight to a trial.

This is known as a preferred indictment.

It is a very exceptional procedure and the Criminal Code goes so far as to insist that such requests require "the personal consent in writing of the Attorney General or Deputy Attorney General" of each province.

As Attorney Generals are politicians, appointed to their respective cabinets, there may be times where an Attorney General leaves his political office between the time of the signature on the preferred indictment and the date of the trial. In these cases, the approval of his or her successor is presumed. Also, the Attorney General does not have to appear before the court in person, only sign the indictment. Nor is there any right to a hearing before the Attorney General in making the decision to prefer indictment.

The judge has no choice about the matter; if the Attorney General prefers an indictment, it goes to trial.

The Crown can even prefer an indictment if there has been a preliminary inquiry or even right in the middle of a preliminary inquiry.

One example of a situation which would lend itself well to a preferred indictment is where the witnesses against an accused are fellow inmates in a penitentiary and where a long preliminary inquiry would be dangerous to the witnesses.

Other situations where the Crown might be tempted to prefer an indictment would be a case where the Crown has overwhelming evidence and the case has a high public profile.

Some prosecutions are handled by private lawyers. These lawyers cannot prefer an indictment without the written permission of the judge. These are very rare.

The preferred indictment procedure has withstood challenges based on §7 (i.e., the right to cross examine witnesses that appear against oneself), §9 and §15 of the Canadian Charter of Rights and Freedoms.

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