Preliminary Inquiry: What You Need to Know

If you are facing serious criminal charges in Canada, you may have the opportunity to go through a preliminary inquiry before your case proceeds to trial. This part of the legal process often raises questions and concerns for defendants, particularly around what it involves, what purpose it serves, and how it might affect the outcome of your case.

In this blog post, we’ll break down what a preliminary inquiry is, when it’s available, what happens during one, and how it can impact your defence strategy.

1. What Is a Preliminary Inquiry?

A preliminary inquiry is a pre-trial hearing available in cases involving indictable offences—the more serious criminal charges in Canada. The purpose of a preliminary inquiry is to determine whether there is enough evidence for the case to proceed to a full trial. It gives the court an opportunity to review the Crown’s evidence and decide if the prosecution has a prima facie case—meaning there is sufficient evidence to support the charges.

If the judge decides that there is not enough evidence, they can dismiss the charges, ending the case at this stage. If there is enough evidence, the case will move forward to trial.

Takeaway: A preliminary inquiry is not a trial. The judge does not determine guilt or innocence but decides whether the case has enough evidence to go to trial.

2. When Is a Preliminary Inquiry Available?

Not every criminal case in Canada qualifies for a preliminary inquiry. This pre-trial hearing is only available for indictable offences, which are more serious than summary offences. These include crimes such as:

• Sexual assault

• Fraud over $5,000

• Drug trafficking

• Aggravated assault

• Murder

Preliminary inquiries are not automatic; either the defence or the Crown must request one. In addition, they are only available when the accused has elected to be tried by a judge and jury or by a judge alone in the Superior Court of Justice.

Takeaway: Preliminary inquiries are available in serious indictable offence cases, but they must be requested and are not part of every case.

3. What Happens During a Preliminary Inquiry?

During a preliminary inquiry, the Crown prosecutor presents its key evidence against the accused, often by calling witnesses or submitting other forms of evidence, such as documents or recordings. However, the scope of the evidence presented is limited to whether the Crown has enough to justify moving forward with the case. The Crown does not present its entire case or strategy for trial.

The defence also has the opportunity to cross-examine the Crown’s witnesses during the preliminary inquiry. This can serve several important purposes for the defence:

• Testing the strength of the evidence: The defence can challenge the credibility and reliability of the Crown’s evidence by questioning witnesses.

• Revealing weaknesses: Cross-examination at this stage can help expose weaknesses or inconsistencies in the Crown’s case, which can be used in the trial.

• Discovering the Crown’s case: Preliminary inquiries allow the defence to gain insight into the Crown’s evidence and strategy, which can help in preparing for trial.

Takeaway: The preliminary inquiry is an opportunity for the Crown to present some of its evidence and for the defence to test the strength of that evidence through cross-examination.

4. Possible Outcomes of a Preliminary Inquiry

The preliminary inquiry can result in one of two main outcomes:

• Committal to Trial: If the judge decides that there is sufficient evidence to support the charges, the accused will be committed to stand trial in the Superior Court. This means the case will proceed to trial, where the full evidence will be presented, and a decision on guilt or innocence will be made.

• Discharge of the Accused: If the judge determines that the Crown has not provided enough evidence to justify a trial, the charges against the accused will be dismissed, and the case will be concluded without going to trial.

It’s important to note that the threshold for evidence at a preliminary inquiry is relatively low. The Crown only needs to show that there is some evidence that could support a conviction, not that the accused is guilty beyond a reasonable doubt.

Takeaway: The most common outcome of a preliminary inquiry is committal to trial, but in some cases, the judge may discharge the accused if there isn’t enough evidence.

5. How a Preliminary Inquiry Can Help Your Defence

A preliminary inquiry can offer several key benefits to your defence, even if the case proceeds to trial afterward:

• Evaluating the Strength of the Case: The preliminary inquiry gives your lawyer a preview of the Crown’s evidence. This can help your defence team evaluate whether the Crown’s case is strong or weak and adjust your defence strategy accordingly.

• Cross-Examining Witnesses Early: Your lawyer has the opportunity to cross-examine the Crown’s witnesses, which can expose weaknesses in their testimony. This is a valuable tool for challenging their credibility and setting up potential defences for trial.

• Identifying Legal Issues: Sometimes, the preliminary inquiry will bring up legal issues or violations of your Charter rights. If your lawyer identifies such issues, they can raise them in pre-trial motions or use them to challenge the admissibility of evidence later.

• Negotiating a Plea: In some cases, the preliminary inquiry reveals that the Crown’s case is weaker than initially thought. This may open the door for your lawyer to negotiate a more favourable plea deal before the case goes to trial.

Takeaway: Even if the case goes to trial, a preliminary inquiry is a valuable opportunity for the defence to test the evidence, cross-examine witnesses, and gather information to strengthen your defence.

6. Do You Need a Preliminary Inquiry?

Whether or not to request a preliminary inquiry is a decision that should be made in consultation with your criminal defence lawyer. In many cases, a preliminary inquiry can be beneficial, particularly if the Crown’s evidence is unclear or if the defence wants to cross-examine witnesses early. However, in some cases, it may be more strategic to proceed directly to trial.

Your lawyer will consider factors such as:

• The strength of the Crown’s case

• The potential witnesses that may testify

• Whether early cross-examination would be helpful

• The overall timeline of your case

Takeaway: Your lawyer will help you determine whether requesting a preliminary inquiry is the right decision based on the specifics of your case and your defence strategy.

7. Recent Changes to Preliminary Inquiries in Canada

Recent reforms to the Criminal Code have limited the availability of preliminary inquiries to cases where the maximum sentence is 14 years or more. This means that preliminary inquiries are no longer available for some indictable offences that carry lesser penalties. These changes were made to streamline the justice system and reduce delays, but they also limit the strategic use of preliminary inquiries in certain cases.

If you’re unsure whether you’re eligible for a preliminary inquiry under the new rules, your lawyer can explain how the changes may affect your case.

Takeaway: Not all indictable offences are eligible for a preliminary inquiry due to recent changes in the law, but your lawyer can advise you on your options.

Conclusion

A preliminary inquiry can be a crucial step in defending against serious criminal charges. It allows the court to assess whether the Crown has enough evidence to proceed to trial and gives your defence team the chance to test the strength of that evidence. While not all cases require or qualify for a preliminary inquiry, it can provide valuable insights and opportunities to strengthen your defence.

If you are facing serious charges and want to know more about whether a preliminary inquiry is right for your case, consult an experienced criminal defence lawyer. At J. Kalirai Law Firm, we’re here to help you understand your options and build a strong defence, every step of the way. Contact us today to discuss your case and learn more about how we can help protect your rights and future.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Consult a qualified lawyer for advice on your specific legal situation.