Duhaime's Law Dictionary

Preliminary Inquiry Definition:

Canada: An initial inquiry that occurs at the demand of an accused wherein a judge screens the proposed criminal charge against the available evidence.

The statutory foundation for a preliminary inquiry is set out at §535 of Canada's Criminal Code (2009):

"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 ...."

The law as to preliminary inquiries, previously known as preliminary hearings, is fully codified in the Criminal Code starting at §535.

Note that the charge on the table must be for an indictable offence and that only the accused can request a preliminary inquiry.

A preliminary inquiry is often used by the Crown to test or challenge the Crown's case. In any event, the inquiry is not a trial on the merits and nothing can be read into a judge's direction to send the charge to trial.

In R v Sahadevah, Alberta Provincial Court judge Lefever wrote:

"(A) preliminary inquiry is not a trial. No decision on the guilt or innocence of an accused is made. At the conclusion of the evidence, the presiding judicial officer must ... determine whether there was any admissible evidence whether direct or circumstantial which if believed by a properly charged jury acting reasonably would justify a conviction. If an affirmative answer to the question is reached, the accused is committed to stand trial on the charges, at which trial a decision on guilt or innocence will be made. "

A year later, in R v Hynes, Justice McLachlin of Canada's Supreme Court wrote:

"The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial.

"The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring the accused to stand trial."

In Canadian Criminal Procedure, retired Ontario judge R. E, Salhany writes:

"In discharging this duty (at a preliminary inquiry), the justice should remember that it is not his function to determine the guilt or innocence of the accused. There must, however, be more than a mere possibility or suspicion that the accused is guilty. Generally, before he orders an accused to stand trial, the evidence must be such as to cause him to form the opinion that the accused is probably guilty, and any doubts in this respect should be resolved in favour of making the order."


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