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| Patrick Ducharme |
Prior to recent amendments of the Code, there would be a preliminary inquiry whenever the accused elected to be tried in a court other than the Provincial Court. A request must now be made in order to have a preliminary inquiry. That request may only be made if the offence before the court carries with it a punishment of fourteen years or more.
If a request for a preliminary inquiry is made, the prosecutor, or, if the request was made by the accused, counsel for the accused, shall, within the period fixed by rules of court made under section 482 or 482.1, or, if there are no such rules, by the Justice, provide the court and the other party with a statement that identifies the issues on which the requesting party wants evidence to be given at the inquiry; and the witnesses that the requesting party wants to hear at the inquiry.
It is the party who requests the preliminary inquiry who is required to file a statement with this information. As a matter of practice, generally, both parties file a statement with the court. And, as a matter of practice, the court usually convenes a “focus hearing” to discuss, and where possible, identify the appropriate areas that will be explored at the preliminary inquiry. The amendments of 2019 now extend the powers of the presiding Justice to regulate the proceedings and will likely result in the Justice determining the issues to be explored, and where possible, narrowing the scope of the evidence presented. Before the 2019 amendments, the Justice before whom a preliminary inquiry was to be held was entitled to “encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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