Goodbye to Preliminary Inquiries

Bill C-75, the federal government’s 300+ page omnibus bill makes some significant alterations to the landscape of criminal procedure, including restricting preliminary inquiries to offences punishable by imprisonment for life and investing a justice with increased powers to limit the issues explored and the witnesses to be heard at the inquiry.

A preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to require a person charged with a crime to stand trial. Subject to one exception, preliminary inquiries are available to an accused’s who is to be tried in the Superior Court and who has requested one.  The Superior Court generally only tries the most serious criminal offences. 

To the lay person, a preliminary inquiry can look like a trial.  Even a lawyer walking into a preliminary inquiry may not be able to tell, at least initially, that he/she has stumbled into a preliminary inquiry and not a trial. Preliminary inquiries occur before a judge (not of the Superior Court, but of the provincial court); witnesses give their evidence under oath and are subject to cross-examination by opposing counsel. 

The test to commit an accused to trial (that is, to require an accused to stand trial) is not proof beyond a reasonable doubt.  It is much lower: is there evidence upon which a reasonable and properly instructed jury could convict.  Since 2002, parties can agree to limit the scope of a preliminary inquiry, a change that introduced greater flexibility into preliminary inquiries and (as our courts have recognized) promoted fair and expeditious inquiries.

Where it is clear that the Crown will meet the evidentiary burden for committal, the accused will sometimes concede committal to trial and use the preliminary inquiry as an opportunity to cross-examine key Crown witnesses.  In such instances, the preliminary inquiry becomes, primarily, a forum for witness discovery.

Certainly, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of the relevance it once historically held, given an accused’s right under the Canadian Charter of Rights and Freedoms to the disclosure of all material information in the Crown’s possession, unless the evidence is privileged or plainly irrelevant. The Crown’s disclosure obligations under the Charter do not extend to producing a witness for discovery.

While the disclosure obligations imposed on the Crown make the preliminary inquiry less important as a forum for disclosure of the Crown’s case against the accused, the constitutional principle that evidence should be made available to the defence if there is a possibility that non-disclosure will impair the accused’s right to make full answer and defence, by extension, would seem to direct the justice presiding at the preliminary inquiry to ensure that the defence is given the widest latitude in obtaining disclosure during the course of the preliminary inquiry.

While preliminary inquiries may lack the relevance they once held, for the accused they have retained their importance as a forum for witness discovery.

When Bill C-75 becomes law, for all but those facing the most grievous type of crimes—those with maximum sentences of life imprisonment: murder, aggravated sexual assault, aircraft hijacking, etc.—the discovery of Crown witnesses becomes significantly curtailed.

The preliminary inquiry is not the stage at which the guilt of the accused or the appropriate sanction is determined.  Since the accused continues to be presumed innocent and retains the right to make full answer and defence, dispensing with the screening process therefore does not result in a deprivation of fundamental justice. While a preliminary inquiry may allow an accused to test the credibility of witnesses and better appreciate the Crown’s evidence such incidental benefits do not give rise to a constitutional right to this proceeding.  Preliminary inquiries may support the accused’s right to make full answer and defence, but they are not a required aspect of that right.

In my opinion, justice is better served with preliminary inquiries than without them. 

Witnesses will sometimes commit themselves to a version of events at the preliminary inquiry inconsistent with the testimony they later give at trial.  There may be various reasons for this, but where such reasons implicate the credibility of the witness or the reliability of the witness’s evidence, the revelation of such advances the truth-seeking function of the trial process.

Based on my experience, I can say with almost certainty that as a result of the curtailment of preliminary inquiries more accused persons are going to be convicted of criminal offences where they would have been acquitted. While you may think that is a good thing—if you accept that most accused persons committed the offences for which they are being prosecuted—it also means that the Crown will be able to meet the standard of proof for conviction (proof beyond a reasonable doubt) where it otherwise wouldn’t have been able to and for the singular reason that its witnesses were not subject to more extensive cross-examination of their evidence.

And that cannot be a good thing. 

Stuart O’Connell, O’Connell Law Group (Al rights reserved to the author).