Yesterday, we started to learn about the current debate around Preliminary Inquiries (PIs). More specifically, we examined why PIs are currently an issue and what exactly a PI is. Today, we’ll delve a little deeper.
Who and When: So who gets a PI and when does it occur. Is it every accused, every time? No.
When someone is charged with a crime, the criminal charges can be handled in one of three different ways (depending on what the Criminal Code of Canada says about that particular crime). Crimes are divided as follows.
- Summary conviction offences: these crimes are often sometimes considered to be ‘less serious’ crimes, carry a lesser penalty.
- Indictable offences: these are consideredmore ‘serious’ offences and have greater penalties.
- Dual or hybrid offences: these are a bit of a mix of the two. In a nutshell: the Crown prosecutor can choose whether to prosecute the case by way of summary conviction or indictment, depending on the circumstances of the case.
Trials for summary offences are heard before a judge in the Provincial Court and there are NO preliminary inquiries.
For indictable offences, on the other hand, (unless it as offence for which the Provincial Court has absolute jurisdiction – i.e. the case has to go Provincial Court) the Accused has the right to have his/her trial either before a Provincial Court judge or a Court of King’s Bench justice (with or without a jury – the Accused chooses that, too). The process of the Accused deciding which court will hear the trial is called “making an election.” If the Accused elects to have the trial in the Court of King’s Bench (“KB”), there will be a preliminary inquiry (unless the Accused waives that right, or unless the Crown proceeds by way of direct indictment – more on that coming right up).
Where: If, after all of that of that charging and electing, a preliminary inquiry is to occur, it will be held in Provincial Court. Then the trial, if it goes ahead, will be in KB.
More When: Let’s look at it from another angle. When will there not be a PI?
- If it is a summary offence.
- If the Accused elects to have the trial in Provincial, there will not be a preliminary hearing.
- If the Accused elects not to have the PI, there will not be a PI. It is believed that this does not happen terribly often, but it does happen. An example of this was the recent BC toddler-kidnapping case. (There are no doubt many reasons an Accused may choose to go this route. A few examples include: the Accused intends to plead guilty and wants to avoid publicity and/or expense; the Accused is guilty of more than the charged offenses and fears further charges from the evidence that may come out at the PI, or the defence already knows that the evidence is sufficient and wants to avoid wasting time and public expense);
- If the Crown proceeds by way of direct indictment. Direct Indictment is a power described in s.577 of the Criminal Code. Essentially, this a power held by the Attorney General to direct that the matter go straight to trial (without a PI), usually on the grounds that is it in the public interest to do so. In order to get a direct indictment, the Crown must obtain the personal consent in writing of either the Attorney General or the Deputy Attorney General. It has been held that, in and of itself, such an action does not necessarily violate and Charter rights. Historically, this direct indictment has not occurred that often, but it is on the rise in Alberta, from a total 10 in 2010 to 35 in the first 6 months of 2013. You might recognize some of the cases: Travis Vader (the McCann disappearance); Travis Baumgartner (the G4S shooting) and the Baby M case.
Why? But what is purpose of all of this, you say (aren’t you the inquisitive one!)….. can’t we just figure this out at the start of the trial itself?
Historically, the PI was also used by the Defence to learn about the Crown’s case (i.e. what evidence did they have exactly), but now that purpose is also served by a mandatory process known as “discovery” (wherein the Crown has to tell the defence about its evidence).
These days, as our Supreme Court of Canada has noted, the PI: “is meant to be a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to ‘protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.’ The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring the accused to stand trial.”
In other words, the PI is sort of like hospital triage, or an x-ray: it is meant to help determine whether or not a case warrants the time and resources of a full trial, and it helps to narrow the focus the case (one learns what part are clearly evidenced and what parts are not). If the evidence is weak or non-existent, then the judge can dismiss the case. This step is meant to ensure that the time of the court is not wasted on frivolous or weak cases. It also has a focus on the rights and freedom of the accused, as, remember, an accused may be held in custody until trial (depending on whether or not s/he gets bail), so if it is frivolous, we want to know sooner rather than later.