The preliminary inquiry is a hearing in front of a judge. It happens before the actual trial, at the request of either the Crown prosecutor or the accused. At the preliminary inquiry, the judge does not decide on the guilt or innocence of the accused. The quality of the evidence is not considered at this stage. Rather, the point of this step is simply to figure out if there is enough evidence to proceed to trial. The preliminary inquiry makes it possible to avoid a trial where there is absolutely no evidence on one or more elements of the alleged offence.

In Quebec, the preliminary inquiry usually happens before a judge at the Court of Québec.

The preliminary inquiry takes place in a courtroom and looks a bit like a trial. During the proceeding, the prosecutor presents the elements needed to prove the case, using witness testimony, documents and other evidence. At this stage, the prosecution rarely presents all of the available evidence to the court. The person who requests a preliminary inquiry has to indicate the topics he wants to address and the witnesses and evidence that he would like to hear.

For example, let’s say that Paul is accused of murder. Paul admits the victim is dead, but he denies he is the person who killed her. So the real issue is the murderer’s identity. At the preliminary inquiry, Paul isn’t interested in calling to the stand the police officers who discovered the body or the forensic scientist who did the autopsy. Instead, Paul wants to hear the witness who says she saw him running from the victim’s home on the night of the murder. As a result, the preliminary inquiry will only deal with that witness’s testimony.

The preliminary inquiry allows the accused to find out more about the evidence against him — without risking a conviction. During the proceeding, the accused can ask witnesses lots of questions to get their version of events. This allows everyone to see how believable each witness is and to prepare for the next phase: the trial.

For example, let’s say that Jean is accused of impaired driving causing death. In order for Jean to be convicted, the prosecution has to prove that he in fact drove the vehicle. A witness named André says he saw Jean driving on the night of the offence. At the preliminary inquiry, the lawyers question André about every detail of his story. After half an hour of testimony, it becomes obvious that André doesn’t clearly remember Jean as the one who was driving the vehicle. This means that the prosecutor would have a hard time at trial proving beyond a reasonable doubt that Jean was driving. Also, since the preliminary inquiry is recorded, André cannot change his story on the day of the trial without risking being charged with an offence himself!

At the end of a preliminary inquiry, the judge decides if there is enough evidence to justify holding a trial. If there is, the judge determines what offences can be charged against the accused based on this evidence. Her decision will help in the preparation of the “indictment” (this is a document that lists the charges against the accused in preparation for the trial). The judge orders a trial to be held on each of the charges supported by the evidence. We say that she “commits the accused to trial.”

The judge can also add charges if the facts shown at the preliminary inquiry justify doing so.

For example, let’s say that a person is charged with one count of robbery in a bank. During the preliminary inquiry, a witness says he saw the suspect steal a car in order to escape. The information (a document that lists the charges filed before the preliminary inquiry) doesn’t include anything about stealing a car. After the preliminary inquiry, the judge can decide to add a theft charge to the robbery charge. The accused will then be tried on both charges, even if the prosecutor didn’t include a theft charge in the information.

On the other hand, if the judge concludes that there is not enough evidence, she frees the accused. This generally puts an end to the legal proceedings against him.

Let’s go back to the example of Jean, who has been accused of impaired driving causing death. If it turns out that the witness cannot identify Jean as the driver, the judge would conclude that there is no evidence of him driving the car. Since “driving” is an essential element of the offence, the charges against Jean would be dropped without a trial.

Under most circumstances, the accused must attend the preliminary inquiry. But if the prosecution agrees, the court can allow the defence lawyer to appear in the place of the accused during the preliminary inquiry, except when the witnesses are testifying.

If the accused fails to appear for the preliminary inquiry or if he tries to run from the law during the proceedings, the judge can either:

• go ahead with the inquiry; or
  
• issue an arrest warrant for the accused and postpone the preliminary inquiry until the accused appears in court.

In some serious cases, an accused can be kept in custody during proceedings against him. At the preliminary inquiry, the defence can sometimes try to get the judge to reverse the decision to keep the accused locked up. If the judge agrees, the accused is released to await the actual trial.

If the accused is already free at the time of the preliminary inquiry, the prosecutor can try to convince the judge to reverse the decision to release the accused.