The prosecution has the sole discretion to lay criminal charges against a person. It makes this decision based on the evidence it has. On the other hand, in some cases, it may turn out that this evidence does not seem sufficient in the eyes of the defence.
In certain circumstances, the Commission may then request what is called a preliminary inquiry. This procedure allows a judge to determine whether there is sufficient evidence against the accused to continue the case or whether the charges should be withdrawn.
It could be said that the preliminary inquiry is essentially a screening mechanism to rule out frivolous charges where there is no realistic prospect of conviction.
Effects of the preliminary inquiry
The preliminary inquiry also allows the defence to discover the theory of the prosecution’s case and to assess the strength of its case. This allows the defence to know the nature of the charges against it and the value of the evidence and testimony that will be heard, even if the prosecution is not obliged to present all of its evidence to the judge at this stage.
The prosecution is only required to make a prima facie case of the essential elements of the charge, but must still disclose all the evidence it has to the defence. Through the preliminary inquiry, the defence will be better able to anticipate the evidentiary debates and legal issues raised at trial and will also be able to obtain information in preparation for potential motions under the Canadian Charter.
The preliminary inquiry is also useful to the prosecution in that it allows it to assess the seriousness of its complaint and the credibility of its witnesses, to determine whether further investigation is necessary in preparation for the trial, and to show the accused the seriousness of the case against him or her and to encourage him or her to plead guilty.
Event
Before the preliminary inquiry can even begin, the party seeking a preliminary inquiry must provide the court with a list of the items on which he or she wishes witnesses to be heard, as well as their names. A preliminary hearing may be held so that the parties can determine which witnesses should be heard and on which points the questioning should be focused. However, even in the absence of such a hearing, the parties may agree to limit the preliminary inquiry to specific issues.
At the preliminary inquiry, the parties will take part in a hearing before a judge and present all of their evidence. To do this, the preliminary inquiry takes place in four stages. The first is the presentation of the Crown’s case. At this stage, the prosecution will question its witnesses, and then the defence will be able to cross-examine them. The second is the voluntary examination of the accused in which the judge will assess whether the prosecution has brought probable cause for the accused before him. If not, he may decide to release the accused without continuing the preliminary investigation.
If he decides to continue the preliminary investigation, it will be up to the defense to call its witnesses. Defence counsel is very rarely allowed to present evidence that exonerates the accused, but must cross-examine the witnesses presented by the prosecution and challenge the evidence presented in order to sow doubt in the judge’s mind. After hearing all the evidence, the judge will then have to make a decision.
Judge’s decision
When the evidence is closed, the judge may regulate the course of the inquiry in any manner that he or she considers desirable so as to ensure the proper administration of justice. This includes deciding whether to discharge the accused if there is no evidence, to commit the accused to trial on the offences as charged, or to commit the accused to trial on other offences arising from the facts. To do so, he cannot assess the quality, credibility or reliability of the evidence, or the merits of a defence. Its role is simply to determine whether there is admissible evidence that could, if believed, result in a conviction. It should be noted that, during the preliminary inquiry, the judge may also investigate the charge as well as any other indictable offence arising from the same matter.
For example, in the case R. v. M.L, a preliminary inquiry was held in 2017. In his analysis, the judge begins by recalling the nature and function of a preliminary inquiry, as well as the provisions of the Criminal Code relevant to the case. He then verifies that evidence has been filed for each of the constituent elements of the offences with which the accused is charged. He finally concluded that there was sufficient evidence and that the trial should take place.
Conditions for the application of the preliminary investigation
Not all offences allow for a preliminary inquiry. This process is reserved for the most serious offences. Under section 535 of the Criminal Code, all of the following conditions must be met in order to be eligible for a preliminary inquiry:
- The accused is charged with an indictable offence or a hybrid offence that the Crown prosecutes by indictment;
- The offence of which the accused is charged is punishable by a maximum sentence of 14 years or life;
- The trial takes place in the Superior Court of Justice;
- The defence lawyer or the Crown requests a preliminary inquiry.
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