Preliminary inquiries are no longer available for most criminal charges, but they still offer strategic value in serious cases. Here’s what you should know:
- Since 2019, they’re limited to indictable offences with a maximum sentence of 14+ years.
- A preliminary inquiry is not a trial—it’s a screening process to determine if there’s enough evidence to proceed.
- Benefits include the early examination of Crown witnesses and the ability to preserve testimony.
- Many charges no longer qualify, including common ones like basic sexual assault.
- A 2024 Supreme Court ruling clarified that some pre-2019 cases may still be eligible.
- The decision to request one requires careful legal strategy, as timing and case specifics matter.
Read the full article to learn when preliminary inquiries are available, why they matter, and how recent legal changes could affect your case.
When facing serious criminal charges, understanding your legal options can feel overwhelming. One crucial decision you may face is whether to request a preliminary inquiry—a legal proceeding that could significantly impact your case’s trajectory. With recent changes to Canadian criminal law, knowing when and why to pursue this option has become more complex but equally important.
The Preliminary Inquiry: Your First Opportunity to Test the Crown’s Case
What It Is and Its Purpose: A Screening Tool
A preliminary inquiry serves as a judicial screening mechanism before a judge in provincial court. Unlike a trial, it doesn’t determine guilt or innocence. Instead, the inquiry tests whether the Crown has assembled enough evidence to warrant sending your case to trial.
The standard is deliberately low—the Crown only needs to present “some evidence” upon which a reasonable jury, properly instructed, could potentially convict. This threshold is far below the “beyond a reasonable doubt” standard required for conviction at trial.
During this process, Crown witnesses testify under oath, and your defence lawyer has the crucial right to cross-examine them. This creates a valuable opportunity to assess the prosecution’s case strength, have further discovery of the evidence, identify weaknesses, and lock in witness testimony that could prove inconsistent later.
How It’s Different from a Trial or Preliminary Hearing
Many people confuse preliminary inquiries with trials or use “preliminary hearing” interchangeably. Here’s the distinction: in Canadian criminal law, “preliminary inquiry” and “preliminary hearing” refer to the same proceeding—the formal legal term is “preliminary inquiry.”
A preliminary inquiry differs fundamentally from a trial:
- Purpose: Screening for sufficient evidence vs. determining guilt
- Standard: “Some evidence” vs. “beyond reasonable doubt”
- Outcome: Committal to trial or discharge vs. conviction or acquittal
- Location: Preliminary inquiries are held in the Provincial court vs. the trial will take place in the Superior Court whenever an accused has elected to have a preliminary inquiry
- Jury: A preliminary inquiry takes place in front of a judge alone vs. judge alone trial or jury trial depending on the accused’s election regarding the mode of trial
Think of it as your defence’s first real look at what the Crown intends to prove against you.
Can I Have a Preliminary Inquiry? The Rules After Bill C-75
The 14-Year Rule: Which Offences Are Eligible
The landscape changed dramatically when Bill C-75 took effect on September 19, 2019. Previously, anyone charged with an indictable offence generally had the right to request a preliminary inquiry. Now, you can only request one if charged with an indictable offence punishable by 14 years or more imprisonment.
This restriction significantly narrows eligibility. For example:
- Still eligible: Aggravated sexual assault (life imprisonment), sexual assault involving children if the Crown elects to proceed by indictment, trafficking substantial quantities of drugs
- No longer eligible: Basic sexual assault (maximum 10 years), assault causing bodily harm, most fraud charges
The change particularly impacts sexual assault cases handled by our experienced lawyers, where standard adult charges no longer qualify for a preliminary inquiry, though more serious variants involving minors or aggravating factors may still be eligible.
Understanding the Impact of the 2019 Legal Changes
Bill C-75 aimed to reduce court delays and streamline the justice system. The government argued that preliminary inquiries contributed to lengthy proceedings and re-traumatized complainants who had to testify twice.
However, defence lawyers expressed concern that this change eliminated a crucial tool for testing weak cases early, potentially forcing more cases to full trial. The restriction means that many serious charges—including those we handle in London, Windsor, Toronto, and Kitchener—no longer automatically qualify.
What About Cases from Before 2019? The 2024 Supreme Court Ruling Explained
A crucial development occurred in November 2024 when the Supreme Court of Canada clarified how Bill C-75 applies to ongoing cases. The Court ruled that the new restrictions don’t apply to all ongoing cases.
Specifically, a preliminary inquiry remains available when:
- An accused person could actually face 14 or more years imprisonment for their specific circumstances
- The alleged offence occurred before September 19, 2019, and the accused was eligible under the previous rules
This ruling is particularly significant for cases involving historical allegations or complex prosecutions that began before the law changed.
The Inquiry Process: A Step-by-Step Guide
Key Players: The Judge, Crown, and Your Defence Lawyer
The preliminary inquiry takes place in provincial court before a judge (no jury). Three key players shape the proceeding:
The Judge controls the process, including limiting which issues can be explored and which witnesses testify. Judges increasingly restrict the scope to prevent preliminary inquiries from becoming “fishing expeditions”.
The Crown Prosecutor presents evidence methodically, calling witnesses to establish their case. They’re not required to present their entire case – just enough to meet the “some evidence” threshold.
Your Defence Lawyer cross-examines Crown witnesses, challenges evidence, and may identify Charter violations or inconsistencies. This isn’t the time to present your defence case or to bring formal Charter applications to exclude evidence – that happens at trial.
Examining Witnesses and Evidence
Crown witnesses testify under oath, and your lawyer can cross-examine them thoroughly. This serves multiple strategic purposes:
- Locking in testimony: Creating a transcript that can impeach witnesses if they change their story at trial
- Identifying weaknesses: Revealing inconsistencies, memory problems, or credibility issues
- Preserving evidence: Ensuring testimony is available if witnesses become unavailable for trial
- Charter applications: Gathering evidence for potential applications to exclude improperly obtained evidence
The process is more focused than trials. Courts increasingly use “focus hearings” to streamline proceedings and prevent unnecessary examination of witnesses on non-contentious issues.
The Possible Outcomes: From Committal to Discharge
After hearing evidence, the judge makes one of two decisions:
Committal to Trial: If there’s sufficient evidence, you’re committed to stand trial in the Superior Court of Justice. This doesn’t indicate guilt—merely that the Crown has met the low threshold for proceeding.
Discharge: If evidence is insufficient, you’re discharged and the case typically ends. This is relatively rare, as the threshold is deliberately low.
However, even if discharged, the Crown can still proceed by filing a “direct indictment,” bypassing the preliminary inquiry entirely and sending the case directly to trial.
The Critical Decision: Should You Request a Preliminary Inquiry?
The Strategic Advantages for Your Defence
When available, preliminary inquiries offer significant strategic value:
Early Case Assessment: You gain insight into the Crown’s evidence quality and witness credibility before investing in full trial preparation.
Witness Examination: Cross-examining witnesses under oath can reveal inconsistencies, omissions, memory problems, motives to lie, or bias that strengthens your defence strategy.
Preservation of Testimony: If a witness dies, becomes ill, or refuses to testify at trial, their preliminary inquiry testimony may be admissible.
Charter Applications: The process often reveals constitutional violations that can lead to evidence exclusion or stay applications.
Settlement Leverage: Exposing weaknesses in the Crown’s case may prompt more favourable plea negotiations.
Potential Risks and Reasons to Waive an Inquiry
Preliminary inquiries aren’t always beneficial. Consider these potential drawbacks:
Delay: The process adds months to case resolution, which may conflict with your interests to proceed to trial in a more timely manner.
Crown Preparation: The Crown sees your cross-examination strategy and can better prepare their witnesses for trial.
Complainant Impact: In sensitive cases, requiring a complainant to testify twice may influence how a judge or jury views your defence.
Limited Scope: Courts increasingly restrict preliminary inquiry scope, potentially limiting the strategic benefits.
Direct Indictment Risk: Even if discharged, the Crown can simply file a direct indictment and proceed to trial anyway.
Where Preliminary Inquiries Happen
Preliminary inquiries take place in provincial courts across Ontario. Whether you’re facing charges in London, Windsor, Toronto, or Kitchener, the process remains consistent, though local court scheduling and practices may vary.
Key Legal Rules and Case Law
The Criminal Code of Canada governs preliminary inquiries under Part XVIII. Key sections include:
- Section 535: Establishes when preliminary inquiries are available
- Sections 537 and 540: Outline the judge’s powers during the inquiry
- Section 548: Describes the evidence standard for committal to trial
Recent Supreme Court decisions have clarified how Bill C-75 applies to ongoing cases, particularly regarding the transitional provisions for charges laid before the 2019 changes.
Recent Changes to Preliminary Inquiries
Beyond Bill C-75’s fundamental restrictions, courts have implemented additional limitations:
- Scope restrictions: Judges more frequently limit the issues that can be explored
- Time limits: Some jurisdictions impose stricter time limits on examinations
- Focus hearings: Increased use of pre-inquiry conferences to streamline proceedings
These changes reflect ongoing efforts to balance the defence’s right to test the Crown’s case with system efficiency and witness protection concerns.
Frequently Asked Questions
Q: Can I request a preliminary inquiry for any criminal charge? A: No. Since 2019, preliminary inquiries are only available for indictable offences punishable by 14 years or more imprisonment. Many common charges no longer qualify, such as sexual assault allegations involving an adult complainant.
Q: How long does a preliminary inquiry take? A: Duration varies significantly based on case complexity, number of witnesses, and court scheduling. Simple cases may typically take 3 hours to one full day, while complex matters can require weeks spread over several months.
Q: What happens if I’m discharged at a preliminary inquiry? A: The charges are typically dropped, but the Crown can still proceed by filing a direct indictment, sending your case directly to trial in superior court.
Q: Can I change my mind about requesting a preliminary inquiry? A: Generally yes, but timing matters. You should make this decision with your lawyer’s guidance based on your specific circumstances and strategic considerations.
Q: Do preliminary inquiries help with bail or sentencing? A: Preliminary inquiries focus solely on whether there’s sufficient evidence for trial. They don’t directly impact bail decisions or eventual sentencing, though information gathered might be relevant to other applications.
Q: Are preliminary inquiries still worth pursuing given the restrictions? A: For eligible offences, they can provide substantial strategic value. The decision depends on case-specific factors including evidence strength, witness credibility issues, and overall defence strategy.
The decision to request a preliminary inquiry requires careful analysis of your specific charges, circumstances, and strategic goals. Given the complexity of recent legal changes and the significant impact on your case’s outcome, this decision should always be made in consultation with experienced criminal defence counsel who can assess whether this option serves your best interests.
Contact Kruse Law today to schedule a confidential consultation and get the legal guidance you need to make informed, strategic decisions about your defence.
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