Preliminary Inquiry: Who Gets One, Who Doesn't
The primary purpose of a preliminary
inquiry is to screen out meritless allegations. A preliminary inquiry gives the
accused the opportunity to have a judicial determination of whether the Crown
can produce sufficient evidence to justify the case going forward to trial.
On September 19, 2019 new amendments
to the Criminal Code came into force. [FN1] These amendments substantially
limit the availability of preliminary inquiries.
Prior to the amendments, anyone in Ontario
who had elected trial in the Superior Court of Justice (judge and jury, or
judge alone) could request and, upon request, was entitled to a preliminary
inquiry. The recent amendments limit
that entitlement to offences that provide for a sentence of at least 14 years’
imprisonment.
Those who have Requested a Preliminary
Inquiry Before September 19, 2019
The amendments to preliminary inquiries do
not apply to an accused who is charged with an indictable electable offence and
who has elected trial in the Superior Court of Justice and requested a
preliminary inquiry prior to September 19, 2019 but has not yet had that
preliminary inquiry. That person has a
right to request and is entitled to have a preliminary inquiry. [FN2]
R.
v. R.S.,
2019 ONCA 906, at para. 4.
The elimination of the preliminary inquiry
through the amendments affects a substantive right of those who have requested but
not yet received a preliminary inquiry prior to September 19, 2019: the entitlement
to be discharged at a preliminary inquiry if the Crown cannot meet its
evidentiary burden. Legislation that
interferes with acquired substantive rights is presumptively prospective and
only rebutted where Parliament has clearly signaled that the legislation should
have retrospective effect. Parliament
had not evinced such an intention.
R.
v. R.S.,
2019 ONCA 906, at paras. 49, 59.
Those who have not Requested a Preliminary
Inquiry Before September 19, 2019
However, an accused charged with an
indictable electable offence but who has not, prior to September 19, 2019, elected
trial in the Superior Court of Justice and requested a preliminary inquiry is not
thereafter entitled to request a preliminary inquiry or receive a preliminary
inquiry unless that person faces a charge punishable by 14 years’ imprisonment
or more.
R.
v. R.S., 2019 ONCA 906, at para. 14.
Stuart O’Connell, O’Connell Law Group, Toronto.
Tel: 416-628-1942
(All rights reserved to author)
[FN1] Bill C-75, An Act to amend the
Criminal Code, the Youth Criminal Justice Act and other Acts and to make
consequential amendments to other Acts, 1st Sess., 42nd Parl., 2019, c. 25.
[FN2] This includes those who have made a
clear, but informal election and request, as evinced by the transcript of
proceedings or endorsements on the information.
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