People who have watched courtroom dramas sometimes imagine a preliminary inquiry as a mini-trial where the case can collapse dramatically. It is not quite that. The Crown is not trying to prove guilt, the accused almost never testifies, and the judge will send the case forward on evidence that would be far from enough at trial. Even so, for those who qualify, the hearing can be one of the most useful steps in a serious criminal case, because a key witness may answer questions under oath before the trial ever begins.
Fewer people can use it than most realize. A person charged with something like theft over $5,000, or sexual assault of an adult complainant, might ask for one and be told it does not exist for their offence. Since 2019, the Criminal Code has limited the process to a small group of serious offences.
This is general information about how the process works in Ontario, and it should not be taken as legal advice about your own charge, including whether a hearing is available or worthwhile for you.
Who Can Have One
Under sections 535 and 536 of the Criminal Code, a preliminary inquiry is available only where the accused is charged with an indictable offence punishable by 14 years or more of imprisonment. It must also be requested. Charges that often qualify include:
- aggravated assault
- robbery
- break and enter of a dwelling-house
- possession of a loaded prohibited or restricted firearm, when prosecuted by indictment
- attempted murder and manslaughter
- aggravated sexual assault
- many serious drug offences, such as trafficking in certain substances
- sexual assault where the complainant is under 16, if prosecuted by indictment
Section 469 offences, most importantly murder, must be tried in the Superior Court, and a preliminary inquiry may be requested there too.
Hybrid offences add a wrinkle. If the Crown proceeds summarily, no preliminary inquiry is possible, whatever the maximum on indictment would be, so the Crown’s election can affect your access to this step.
The Election That Comes First
If you are charged with one of these offences (other than section 469 offences), you will be asked to elect your mode of trial:
- a provincial court judge without a jury, with no preliminary inquiry
- a judge of the Superior Court alone
- a judge and jury in the Superior Court
If you do not choose, you are deemed to have elected a judge and jury. Under either Superior Court option, a preliminary inquiry happens only if you or the Crown request it. If nobody requests one, the case goes on to the Superior Court directly.
These choices interact with other tactical decisions. Your lawyer will ask whether a jury would suit your case, what the local timelines look like, whether a witness is fragile or strong, and whether a transcript from an early hearing would be useful. In Peel, both levels of court sit at 7755 Hurontario Street, so location itself is not a factor, but timing and strategy can be.
It is also possible to change your mind later, in some circumstances, by re-electing under section 561. There are limits and timing rules, and consent of the Crown may be needed.
How the Hearing Works
A preliminary inquiry is held in the Ontario Court of Justice before a judge or justice. Before the hearing, the party requesting it must file a statement identifying the issues on which it wants evidence and the witnesses it wants to hear, as required by section 536.3. Section 536.4 allows the court to hold a focus hearing, which is a planning meeting to narrow the issues and assess witness time.
At the hearing itself:
- The Crown calls evidence. The witnesses testify under oath and are cross-examined by defence counsel. Testimony is recorded, and transcripts can be ordered later.
- Not all of it has to be live. Section 540(7) lets the justice receive evidence that would not normally be admissible, including written or recorded witness statements, if it is credible or trustworthy, with reasonable notice. Crowns can use this to avoid calling some witnesses. The defence can ask the justice to require a person to testify, and may get that order if it is appropriate.
- The justice can control the process. The justice can stop questioning that is abusive, repetitive or otherwise inappropriate.
- The defence can call evidence but usually does not. The accused has the right to say something or call witnesses, though this is rarely in their interest, as doing so reveals the defence and gains little at this stage.
- A publication ban is commonly available. Under section 539, the accused can ask for a ban on publishing the evidence until the case ends, and the judge must grant it if the accused requests it. Section 542 also limits reporting of any confession that is introduced.
A hearing can last anywhere from a part of a day to several weeks or longer, depending on the witnesses and the issues.
The Test Is Low, and That Matters
Under section 548, at the end, the justice either orders you to stand trial or discharges you. The test is whether there is sufficient evidence. This comes from the Supreme Court of Canada’s decision in United States v. Shephard, which asks whether a reasonable jury, properly instructed, could convict.
Importantly, the justice does not decide whether the witnesses are believable. Credibility questions are left to the trial. The justice takes the Crown’s evidence at its highest. Where the Crown relies on direct evidence for every element, the case will generally go forward. Where the evidence is circumstantial, R. v. Arcuri says the justice may do a limited weighing, asking whether the evidence could reasonably support an inference of guilt.
So committal to trial is the usual outcome. A discharge is possible, particularly where the Crown has no evidence at all on a required element, such as identity, but you should not go in expecting one. A person who is discharged may also face a fresh charge or a direct indictment, although that is uncommon.
The justice can also commit you on a different indictable offence that the evidence supports in relation to the same events. This can work in both directions, either reducing an offence or adding a new one, where the facts warrant.
So Why Bother? The Real Benefits
If you will probably be sent to trial anyway, the true value lies elsewhere.
Seeing witnesses first-hand. A lawyer gets a sense of how a witness speaks, what they remember and how they respond to pressure, and that may shape strategy far more than anything on paper.
Locking in testimony. The witness has now given sworn evidence. If the witness says something different at trial, that transcript can be used to challenge them. In some situations, if a witness becomes unavailable, their evidence can be read in at trial under section 715. This is a real risk for the defence, and experienced counsel keep it in mind when they cross-examine.
Exploring facts the disclosure doesn’t address. Officers can be asked how they stopped you, what grounds they had, and who else was investigated. Those answers can lay the groundwork for Charter applications at trial. A preliminary inquiry is not a Charter forum, however. The justice cannot exclude evidence under the Charter here.
Encouraging a resolution. A Crown who hears a key witness falter may reassess. So may an accused, on seeing how strong a witness actually is. Many cases resolve after the hearing, on either better terms or more realistic expectations. Reassessment is common, even if it is not guaranteed.
Narrowing the issues. A successful partial argument can remove a count or reduce an offence.
When a Hearing May Not Be Worth It
There are good reasons not to ask for one, or to shorten it:
- Delay. Preliminary inquiries add time before trial. For someone in custody, or a person whose bail terms are hard on family life, this is a real cost. Constitutional delay arguments under section 11(b) can also be affected by how time is spent, and by which side causes the delay.
- Cost. Preparation and court time can add significant legal fees.
- Strengthening the Crown’s case. Cross-examination can warn a witness about weak spots, or give them a dry run for trial.
- Preservation of adverse evidence. A frail or transient witness’s testimony could be preserved for the Crown’s benefit.
- Vulnerable witnesses. Pressing a young witness or a complainant may be unnecessary, and in many instances the court can limit or restrict how that witness is questioned or give them protective measures.
Options in between do exist. Section 536.5 allows the Crown and defence to agree to limit the scope of the inquiry to specific issues or witnesses. Section 549 allows you to consent to committal at any stage, even without evidence, when the hearing has done what you wanted it to do. A discovery-style arrangement where the defence gets to ask certain questions of a witness out of court by agreement may also be possible in some files.
After the Order to Stand Trial
If you are committed, the case moves to the Superior Court of Justice, which also sits in Brampton. The Crown files an indictment, and you will likely have a judicial pre-trial in that court. Your release order generally continues.
Limited review may be available. A discharge or a committal can be challenged by a certiorari application in the Superior Court, but only where the justice exceeded their jurisdiction, such as by committing on no evidence of an essential element or denying a right to call evidence. Simply disagreeing with the conclusion is not enough. The Crown can respond to a discharge by asking for review too, or by preferring a direct indictment under section 577 with the written personal consent of the Attorney General or Deputy Attorney General.
Section 577 also means the Crown can sometimes skip the preliminary inquiry altogether, by sending a case straight to trial. That happens rarely but is known to occur in complex or sensitive cases, such as with vulnerable witnesses.
Preparing With Your Lawyer
Your role during this stage is not passive. Before the hearing, go through the disclosure with counsel. Help them understand who the witnesses are, what is accurate, and what might be missing. During the hearing, take notes on what surprises you and pass them along quietly. Dress as you would for trial. Follow your release conditions strictly, including any no-contact terms, as witnesses will be in the building. Do not speak with any witness in the hall, even out of courtesy.
Afterwards, order the transcript if your lawyer recommends it, and read it together. It may be the clearest picture you ever get of the Crown’s case before trial.
Our criminal law page provides more on the charges we address, and you can contact the office to ask whether a preliminary inquiry is available in your case and whether it would actually help. The answer depends on the charge, the witnesses and your priorities, and a good answer may be “not this time.”