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| Patrick Ducharme |
Although a Justice at a preliminary inquiry has no jurisdiction to entertain Charter applications, a Justice at a preliminary may nevertheless consider Charter “values” in exercising their statutory powers. For example, this consideration of Charter values by a Justice at a preliminary was considered in relation to making orders directed at witnesses such as wearing a hijab in court. The Justice was entitled to consider Charter values in permitting the witness to wear the hijab as part of the Justice’s powers to regulate the proceeding.
A Judge or Justice presiding at a preliminary hearing may be considered a “creation of statute” because the Judge is limited to the powers specifically outlined in the Criminal Code provisions; possessing no more than but also no less than the powers specifically provided beginning at section 537 of the Code.2 If the powers are not found within the provisions of Part XVIII then they do not exist. For example, the power to order production of a statement via section 10 of the Canada Evidence Act is limited to the circumstance of a “trial” and therefore a preliminary hearing Judge does not have the power to order production of a statement.
While subsection 537(1)(i) appears to give the Justice at a preliminary hearing wide latitude in regulating the course of the inquiry in any way that appears to the Justice to be desirable and not inconsistent with the Act, this power is still limited to powers taken in context with the other provisions in this Part. The power given to the Justice under this section includes the power to order disqualification of counsel where necessary to prevent a lawyer from placing himself in a conflict of interest.
A preliminary hearing Justice has the authority to conduct the proceedings much the same as a trial Judge may conduct the trial. A Justice is, for instance, given the authority to limit abusive and repetitive examinations4 and has the authority to conduct informal hearings to identify issues, and assist the parties to identify the witnesses to be heard at the inquiry and encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.
The Code provisions are to make preliminary hearings more meaningful and directed toward specific issues and in less time-consuming ways.
The accused and prosecutor may agree to limit the scope of the preliminary inquiry to specific issues. An agreement shall be filed with the court or recorded under subsection 536.4(2) in such circumstances.6 A Justice presiding at a preliminary inquiry may order that a particular witness is not necessary or that a line of questioning does not fit within the parameters of a properly conducted hearing. Section 536.4 provides as follows:
536.4(1) The Justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the Justice’s own motion, that a hearing be held, 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, to
assist the parties to identify the issues on which evidence will be given at the inquiry;
assist the parties to identify the witnesses to be heard at the inquiry, taking into account the witnesses’ needs and circumstances; and
encourage the parties to consider any other matters that would promote a fair and expeditious inquiry. These hearings intended to “assist the parties” are referred to as focus hearings. The Justice conducts a hearing with counsel in order to assist in focusing the preliminary hearing on issues and matters of relevance.
The Justice presiding at a preliminary hearing is not given specific powers to order Crown disclosure. Ordering disclosure is not incidental to a Justice’s power to regulate the course of the preliminary inquiry. Where the Crown has not provided sufficient disclosure to allow the accused to make a reasonably informed election and the Crown requests further time to make that disclosure, a Justice should adjourn the taking of the election and allow the Crown a reasonable time to fulfill its disclosure obligations. Any delay in the proceedings will count against the Crown on any subsequent delay application under subsection 11(b) of the Charter.
When there is a disagreement as to the adequacy of the disclosure, a Justice may adjourn the taking of the election of the accused to allow the accused an opportunity to obtain an appropriate remedy in the Superior Court. If the Crown improperly withholds disclosure, any delay caused by having to bring an application in the Superior Court will count against the Crown under 11(b) also.7 Mandamus with certiorari in aid is not available to challenge a Justice’s method of conducting a preliminary inquiry as when the accused seeks to challenge a Justice’s refusal to allow certain cross-examination.
Subsections 540(7)-(9) of the Criminal Code
Subsections 540 (7)-(9) of the Code became law June 1, 2004. The intention of Parliament in enacting these subsections, according to the Parliamentary Research Branch, was three-fold:
a. To streamline preliminary inquiries;
b. Reduce the time it takes to bring criminal cases to trial by reducing the number and duration of preliminary inquiries, and,
c. Minimize the extent to which complainants (particularly those in sexual assault cases, are subject to examination and cross-examination.
In the last decade and a bit these amendments have been all but ignored by Canada’s appellate courts. The few appellate decisions that have considered the amendments have focused on the facts of the case giving rise to the appeal and the limitations of certiorari as a vehicle of challenge for decisions alleged to be jurisdictionally flawed. The extraordinary remedies are aptly named. Any measure of success by their use is indeed extraordinary.
McLachlin C.J.C. in Russell10 wrote:
The scope of review on certiorari is very limited. While at certain times in its history the writ afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a Superior Court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense.”
With respect to preliminary inquiries held under section 548 of the Criminal Code, the reasons for limiting the scope of supervisory remedies are clear. While the preliminary inquiry also affords defence counsel the opportunity to assess the nature and strength of the case against his or her client, its primary purpose is to ascertain whether there is sufficient evidence to warrant committing the accused to trial. Critically, the preliminary inquiry is not meant to determine the accused’s guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused. The limited scope of supervisory remedies reflects the limited purpose of the preliminary inquiry.
In Skogman Estey J. wrote:
It need only be added by way of emphasis that such certiorari review does not authorize the Superior Court to reach inside the functioning of the statutory tribunal for the purpose of challenging the decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached.
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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