The primary purpose of a preliminary inquiry is to screen out meritless allegations. A preliminary inquiry gives the accused the opportunity to have a judicial determination of whether the Crown can produce sufficient evidence to justify the case going forward to trial.
On September 19, 2019 new amendments to the Criminal Code came into force. [FN1] These amendments substantially limit the availability of preliminary inquiries.
Prior to the amendments, anyone in Ontario who had elected trial in the Superior Court of Justice (judge and jury, or judge alone) could request and, upon request, was entitled to a preliminary inquiry. The recent amendments limit that entitlement to offences that provide for a sentence of at least 14 years’ imprisonment.
Those who have Requested a Preliminary Inquiry Before September 19, 2019
The amendments to preliminary inquiries do not apply to an accused who is charged with an indictable electable offence and who has elected trial in the Superior Court of Justice and requested a preliminary inquiry prior to September 19, 2019 but has not yet had that preliminary inquiry. That person has a right to request and is entitled to have a preliminary inquiry. [FN2]
R. v. R.S., 2019 ONCA 906, at para. 4.
The elimination of the preliminary inquiry through the amendments affects a substantive right of those who have requested but not yet received a preliminary inquiry prior to September 19, 2019: the entitlement to be discharged at a preliminary inquiry if the Crown cannot meet its evidentiary burden. Legislation that interferes with acquired substantive rights is presumptively prospective and only rebutted where Parliament has clearly signaled that the legislation should have retrospective effect. Parliament had not evinced such an intention.
R. v. R.S., 2019 ONCA 906, at paras. 49, 59.
Those who have not Requested a Preliminary Inquiry Before September 19, 2019
However, an accused charged with an indictable electable offence but who has not, prior to September 19, 2019, elected trial in the Superior Court of Justice and requested a preliminary inquiry is not thereafter entitled to request a preliminary inquiry or receive a preliminary inquiry unless that person faces a charge punishable by 14 years’ imprisonment or more.
R. v. R.S., 2019 ONCA 906, at para. 14.
Stuart O’Connell, O’Connell Law Group (All rights reserved to author).
[FN1] Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess., 42nd Parl., 2019, c. 25.
[FN2] This includes those who have made a clear, but informal election and request, as evinced by the transcript of proceedings or endorsements on the information.