How to Prepare and Conduct a Preliminary Inquiry

Updated November 2016

This How-To Brief outlines the steps to take to prepare for and conduct a preliminary inquiry. References to sections refer to sections of the Criminal Code.

1Determine whether a preliminary inquiry is available/appropriate

  • Availability of a Preliminary Inquiry:
    • Is it a straight indictable charge?
    • Is it a s. 469 offence (such as murder)?
    • Is it a dual procedure (hybrid offence) where the Crown has elected to proceed by indictment?
     
  • Is a Preliminary Inquiry useful/appropriate in the circumstances of the case?
    • Is evidence required “on the record”?
    • Are Crown witnesses fragile, elderly or unlikely to attend trial? If so, do you want to give the Crown an opportunity to preserve the evidence at the preliminary inquiry so that it can later be used at trial?
    • Are there defence witnesses who may not attend trial and whose evidence should be secured on the record?
    • Is the preliminary inquiry required to address issues of non-disclosure?
    • Is the preliminary inquiry going to be useful in highlighting frailties in the Crown’s case that will assist with negotiations?
    • Will a preliminary inquiry make the Crown's case stronger by confirming the theory of the police?
    • Will a preliminary inquiry draw attention to weaknesses in the case that the Crown can strengthen/fix before trial?
    • Will cross-examination at the preliminary inquiry disclose too much information about the theory of the defence?
    • Is there a danger the client may be sent to trial on further offences arising out of evidence presented at the preliminary inquiry (s. 548(1)-(2))?
    • If the case is primarily a documentary case, is a preliminary inquiry necessary?
    • Is the preliminary inquiry necessary to set up a Charter of Rights and Freedoms argument or a third party records application for trial?
    • Can you use the preliminary inquiry to familiarize yourself with exhibits and witnesses so that you will know what to expect at trial?
    • Can you use the preliminary inquiry to test your defence theory, for example, by calling alibi witnesses?
    • Are you using the preliminary inquiry to show the client the strengths or weaknesses of the case?
    • Is this a matter that you want to ultimately resolve in Superior Court as opposed to Provincial Court?
    • Is committal an issue? If not, consider conducting a discovery instead of a preliminary inquiry.  
     

2Request to proceed to a preliminary inquiry

  • A request must be made on the record by either the defence or the Crown to have a preliminary inquiry (s. 536(3)).
  • Failure to make that request will result in an assumption that the preliminary inquiry is waived and the matter will be remanded to set a date for trial or a trial date will be set (s. 536(4.3)).
  • In situations where there are multiple accused, if one accused requests a preliminary inquiry, all must proceed to the inquiry unless a severance application is successfully argued (s. 536(4.2)).

3Prepare a statement of issues

  • The onus is on the party requesting to proceed to a preliminary inquiry to prepare a statement of issues (s. 536.3).
  • A statement of issues should
    • identify the issues on which the party requesting the inquiry wishes to hear evidence (s. 536(3)(a)).
    • provide a list of witnesses required (s. 536(3)(b)).
    • indicate any concessions or admissions.
    • indicate if there are any outstanding disclosure issues.
     

4Prepare for a pre-inquiry hearing/judicial pre-trial

  • Depending on the case and the jurisdiction, a pre-inquiry hearing (or a judicial pre-trial) may be held to
    • assist the parties in identifying issues on which evidence will be given at the inquiry (s. 536.4(1)(a)).
    • assist the parties in identifying the witnesses to be heard at the inquiry, taking into account the witnesses' needs and circumstances (s. 536.4(1)(b)).
    • encourage the parties to consider any other matters that would promote a fair and expeditious inquiry (s. 536.4(1)(c)).
     
  • If there is no pre-inquiry hearing, the Crown and defence counsel may agree between themselves to limit the scope of the preliminary inquiry. This agreement should be filed with the Court (s. 536.5).

5Prepare for a preliminary inquiry

  • Ensure all relevant disclosure has been received.  Review it thoroughly.
  • Have a strategy.  What do you want to achieve at the preliminary inquiry?  What do you want to avoid (e.g., familiarizing witnesses with your cross examination technique)?
  • Decide what, if any, trial issues can be set up at the preliminary inquiry (e.g., lay the groundwork for Charter applications).
  • Prepare cross examinations.  Know what evidence you want to secure from each witness.
  • Know your defence theory.
  • Prepare all application materials such as third party record applications or an application to cross-examine an affiant on a search warrant and serve this material in advance of the commencement of the inquiry on the Crown and the court.
  • If the intention is to call defence witnesses, prepare them thoroughly for examination-in-chief and cross-examination. Witnesses should rarely be called at a preliminary inquiry by the defence.
  • Research any legal issues that may arise, and prepare a book of authorities with supporting materials if necessary.

6How to commence a preliminary inquiry

  • Check the information to see if the charges disclose offences known to law. If not, you may challenge the validity of the information.
    • Subsection 601(11) gives the justice at a preliminary inquiry the power to either amend or quash a defective information  
     
  • Arraignment of your client—the charge(s) against your client will be read, but no plea will be taken from your client.
  • Election—your client will be asked to elect his or her mode of trial (s. 536(2)).
  • Possible orders sought:
    • order excluding the public (s. 537)(1)(h))
    • order excluding witnesses/members of the public (s. 486)
    • publication ban (ss. 539, 486.4 and 486.5)
    • order allowing client to sit at counsel table
    • order allowing client to be absent for parts of hearing (s. 537(1)(j.1))  
     
  • Indicate any concessions or admissions for the purpose of the preliminary inquiry.

7The Crown's case-in-chief

  • The Crown may call witnesses and examine them in chief.
  • The Crown may make witnesses available solely for the purpose of cross-examination.
  • The Crown may seek to rely upon a statement reduced to writing or recorded in some manner (s. 540(7)) (reasonable notice must be given by the Crown pursuant to s. 540(8) of its intention to rely on such evidence).

8Cross-examination of the Crown's witnesses

  • Take note of the witness's demeanour for future reference when deciding how best to approach the witness at trial.
  • Be wary that a witness may grow used to your cross-examination style, so you may want to vary your style at trial.
  • Do not cross-examine the witness if there is no benefit to the client.
  • If the Crown does not wish to call a witness in chief, ask if they will make the witness available for cross-examination. If they will not, the witness may have to be called as a defence witness in chief, providing the Crown with the opportunity to cross-examine that witness (s. 541(1)).
  • If the Crown chooses to rely on a statement as opposed to calling a witness, the defence may bring an application pursuant to s. 540(9), for an opportunity to examine the witness.

9Decide whether to call a defence

  • Think carefully whether you want to call defence witnesses. To do so makes witnesses vulnerable to cross-examination by the Crown.
  • Ensure defence witnesses are subpoenaed in a timely fashion.
  • If the justice denies your application under s. 540(9) to have a Crown witness made available for cross-examination, consider calling that witness in chief (s. 541(1)).
  • Upon the completion of the Crown's case, the defence will be asked whether the client wishes to say anything in answer to the charges (s. 541(2)).  Prepare the client for this question and review the answer.  It is unusual to call evidence at this stage of the court proceedings and seldom beneficial.

10Prepare submissions

  • If the preliminary inquiry was lengthy, decide whether you need to order transcripts from which you will make your submissions.
  • Decide whether to concede some, all, or none of the charges.
  • The client can be charged with further indictable offences arising from the same transaction if there is such evidence given at the preliminary inquiry. (s. 548(1)(a)). Be prepared to address this possibility.

Statutes