Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Order for hearing

• 536.4 (1) The justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the justice’s own motion, that a hearing be held, within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, to

  • (a) assist the parties to identify the issues on which evidence will be given at the inquiry;

  • (b) assist the parties to identify the witnesses to be heard at the inquiry, taking into account the witnesses’ needs and circumstances; and

  • (c) encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.

• Marginal note:Agreement to be recorded

  (2) When the hearing is completed, the justice shall record any admissions of fact agreed to by the parties and any agreement reached by the parties.

Marginal note:Agreement to limit scope of preliminary inquiry

536.5 Whether or not a hearing is held under section 536.4, the prosecutor and the accused may agree to limit the scope of the preliminary inquiry to specific issues. An agreement shall be filed with the court or recorded under subsection 536.4(2), as the case may be.

Powers of Justice

Marginal note:Powers of justice

• 537 (1) A justice acting under this Part may

  • (a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason;

  • (b) remand the accused to custody for the purposes of the Identification of Criminals Act;

  • (c) except where the accused is authorized pursuant to Part XVI to be at large, remand the accused to custody in a prison by warrant in Form 19;

  • (d) resume an inquiry before the expiration of a period for which it has been adjourned with the consent of the prosecutor and the accused or his counsel;

  • (e) order in writing, in Form 30, that the accused be brought before him, or any other justice for the same territorial division, at any time before the expiration of the time for which the accused has been remanded;

  • (f) grant or refuse permission to the prosecutor or his counsel to address him in support of the charge, by way of opening or summing up or by way of reply on any evidence that is given on behalf of the accused;

  • (g) receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them;

  • (h) order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing;

  • (i) regulate the course of the inquiry in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry, that is consistent with this Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) or agreement made under section 536.5;

  • (j) if the prosecutor and the accused so agree, permit the accused to appear by counsel or by closed-circuit television or videoconference, for any part of the inquiry other than a part in which the evidence of a witness is taken;

  • (j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate; and

  • (k) require an accused who is confined in prison to appear by closed-circuit television or videoconference, for any part of the inquiry other than a part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel.

• Marginal note:Power provided under paragraph (1)(i)

  (1.01) For the purpose of paragraph (1)(i), the justice may, among other things, limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.

• Marginal note:Section 715 or 715.01

  (1.02) If a justice grants a request under paragraph (1)(j.1), the Court must inform the accused that the evidence taken during their absence could still be admissible under section 715 or 715.01.

• Marginal note:Inappropriate questioning

  (1.1) A justice acting under this Part shall order the immediate cessation of any part of an examination or cross-examination of a witness that is, in the opinion of the justice, abusive, too repetitive or otherwise inappropriate.

• Marginal note:Change of venue

  (2) Where a justice changes the place of hearing under paragraph (1)(a) to a place in the same province, other than a place in a territorial division in which the justice has jurisdiction, any justice who has jurisdiction in the place to which the hearing is changed may continue the hearing.

• (3) and (4) [Repealed, 1991, c. 43, s. 9]

Marginal note:Organization

538 Where an accused is an organization, subsections 556(1) and (2) apply with such modifications as the circumstances require.

Taking Evidence of Witnesses

Marginal note:Order restricting publication of evidence taken at preliminary inquiry

• 539 (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

  • (a) may, if application therefor is made by the prosecutor, and

  • (b) shall, if application therefor is made by any of the accused,

  make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

  • (c) he or she is discharged, or

  • (d) if he or she is ordered to stand trial, the trial is ended.

• Marginal note:Accused to be informed of right to apply for order

  (2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

• Marginal note:Failure to comply with order

  (3) Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

• (4) [Repealed, 2005, c. 32, s. 18]

Marginal note:Taking evidence

• 540 (1) Where an accused is before a justice holding a preliminary inquiry, the justice shall

  • (a) take the evidence under oath of the witnesses called on the part of the prosecution, subject to subsection 537(1.01), and allow the accused or counsel for the accused to cross-examine them; and

  • (b) cause a record of the evidence of each witness to be taken

    • (i) in legible writing in the form of a deposition, in Form 31, or by a stenographer appointed by him or pursuant to law, or

    • (ii) in a province where a sound recording apparatus is authorized by or under provincial legislation for use in civil cases, by the type of apparatus so authorized and in accordance with the requirements of the provincial legislation.

• Marginal note:Reading and signing depositions

  (2) Where a deposition is taken down in writing, the justice shall, in the presence of the accused, before asking the accused if he wishes to call witnesses,

  • (a) cause the deposition to be read to the witness;

  • (b) cause the deposition to be signed by the witness; and

  • (c) sign the deposition himself.

• Marginal note:Authentication by justice

  (3) Where depositions are taken down in writing, the justice may sign

  • (a) at the end of each deposition; or

  • (b) at the end of several or of all the depositions in a manner that will indicate that his signature is intended to authenticate each deposition.

• Marginal note:Stenographer to be sworn

  (4) Where the stenographer appointed to take down the evidence is not a duly sworn court stenographer, he shall make oath that he will truly and faithfully report the evidence.

• Marginal note:Authentication of transcript

  (5) Where the evidence is taken down by a stenographer appointed by the justice or pursuant to law, it need not be read to or signed by the witnesses, but, on request of the justice or of one of the parties, shall be transcribed, in whole or in part, by the stenographer and the transcript shall be accompanied by

  • (a) an affidavit of the stenographer that it is a true report of the evidence; or

  • (b) a certificate that it is a true report of the evidence if the stenographer is a duly sworn court stenographer.

• Marginal note:Transcription of record taken by sound recording apparatus

  (6) Where, in accordance with this Act, a record is taken in any proceedings under this Act by a sound recording apparatus, the record so taken shall, on request of the justice or of one of the parties, be dealt with and transcribed, in whole or in part, and the transcription certified and used in accordance with the provincial legislation, with such modifications as the circumstances require mentioned in subsection (1).

• Marginal note:Evidence

  (7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.

• Marginal note:Notice of intention to tender

  (8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to in that subsection.

• Marginal note:Appearance for examination

  (9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7).

Marginal note:Hearing of witnesses

• 541 (1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, if required by this Part, has been read, the justice shall, subject to this section and subsection 537(1.01), hear the witnesses called by the accused.

• Marginal note:Contents of address to accused

  (2) Before hearing any witness called by an accused who is not represented by counsel, the justice shall address the accused as follows or to the like effect:

  “Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.”

• Marginal note:Statement of accused

  (3) Where the accused who is not represented by counsel says anything in answer to the address made by the justice pursuant to subsection (2), the answer shall be taken down in writing and shall be signed by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part.

• Marginal note:Witnesses for accused

  (4) Where an accused is not represented by counsel, the justice shall ask the accused if he or she wishes to call any witnesses after subsections (2) and (3) have been complied with.

• Marginal note:Depositions of witnesses

  (5) Subject to subsection 537(1.01), the justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies with any modifications that the circumstances require.

Marginal note:Confession or admission of accused

• 542 (1) Nothing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him.

• Marginal note:Restriction of publication of reports of preliminary inquiry

  (2) Every one who publishes in any document, or broadcasts or transmits in any way, a report that any admission or confession was tendered in evidence at a preliminary inquiry or a report of the nature of such admission or confession so tendered in evidence unless

  • (a) the accused has been discharged, or

  • (b) if the accused has been ordered to stand trial, the trial has ended,

  is guilty of an offence punishable on summary conviction.

• (3) [Repealed, 2005, c. 32, s. 19]

Remand Where Offence Committed in Another Jurisdiction

Marginal note:Order that accused appear or be taken before justice where offence alleged to have been committed

• 543 (1) If an accused is charged with an offence alleged to have been committed out of the limits of the jurisdiction in which they have been charged, the justice before whom they appear or are brought may, at any stage of the inquiry after hearing both parties, order the accused to appear or, if the accused is in custody, issue a warrant in Form 15 to convey the accused before a justice who, having jurisdiction in the place where the offence is alleged to have been committed, shall continue and complete the inquiry.

• Marginal note:Transmission of transcript and documents and effect of order or warrant

  (2) Where a justice makes an order or issues a warrant pursuant to subsection (1), he shall cause the transcript of any evidence given before him in the inquiry and all documents that were then before him and that are relevant to the inquiry to be transmitted to a justice having jurisdiction in the place where the offence is alleged to have been committed and

  • (a) any evidence the transcript of which is so transmitted shall be deemed to have been taken by the justice to whom it is transmitted; and

  • (b) any appearance notice, undertaking or release order issued to or given or entered into by the accused shall be deemed to have been issued, given or entered into in the jurisdiction where the offence is alleged to have been committed and to require the accused to appear before the justice to whom the transcript and documents are transmitted at the time provided in the order made in respect of the accused under paragraph (1)(a).