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Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2022-06-20 and last amended on 2022-06-20. Previous Versions

PART XVIIIProcedure on Preliminary Inquiry (continued)

Absconding Accused

Marginal note:Accused absconding during inquiry

  •  (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of a preliminary inquiry into an offence with which he is charged,

    • (a) he shall be deemed to have waived his right to be present at the inquiry, and

    • (b) the justice

      • (i) may continue the inquiry and, when all the evidence has been taken, shall dispose of the inquiry in accordance with section 548, or

      • (ii) if a warrant is issued for the arrest of the accused, may adjourn the inquiry to await his appearance,

    but where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue it at any time pursuant to subparagraph (b)(i) if he is satisfied that it would no longer be in the interests of justice to await the appearance of the accused.

  • Marginal note:Adverse inference

    (2) Where the justice continues a preliminary inquiry pursuant to subsection (1), he may draw an inference adverse to the accused from the fact that he has absconded.

  • Marginal note:Accused not entitled to re-opening

    (3) Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.

  • Marginal note:Counsel for accused may continue to act

    (4) Where an accused has absconded during the course of a preliminary inquiry and the justice continues the inquiry, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.

  • Marginal note:Accused calling witnesses

    (5) If, at the conclusion of the evidence on the part of the prosecution at a preliminary inquiry that has been continued under subsection (1), the accused is absent but their counsel is present, the counsel shall be given an opportunity to call witnesses on behalf of the accused, subject to subsection 537(1.01), and subsection 541(5) applies with any modifications that the circumstances require.

Procedure where Witness Refuses to Testify

Marginal note:Witness refusing to be examined

  •  (1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence,

    • (a) refuses to be sworn,

    • (b) having been sworn, refuses to answer the questions that are put to him,

    • (c) fails to produce any writings that he is required to produce, or

    • (d) refuses to sign his deposition,

    without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may, by warrant in Form 20, commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.

  • Marginal note:Further commitment

    (2) Where a person to whom subsection (1) applies is brought before the justice on the resumption of the adjourned inquiry and again refuses to do what is required of him, the justice may again adjourn the inquiry for a period not exceeding eight clear days and commit him to prison for the period of adjournment or any part thereof, and may adjourn the inquiry and commit the person to prison from time to time until the person consents to do what is required of him.

  • Marginal note:Saving

    (3) Nothing in this section shall be deemed to prevent the justice from sending the case for trial on any other sufficient evidence taken by him.

  • R.S., c. C-34, s. 472

Remedial Provisions

Marginal note:Irregularity or variance not to affect validity

 The validity of any proceeding at or subsequent to a preliminary inquiry is not affected by

  • (a) any irregularity or defect in the substance or form of the summons or warrant;

  • (b) any variance between the charge set out in the summons or warrant and the charge set out in the information; or

  • (c) any variance between the charge set out in the summons, warrant or information and the evidence adduced by the prosecution at the inquiry.

  • R.S., c. C-34, s. 473

Marginal note:Adjournment if accused misled

 Where it appears to the justice that the accused has been deceived or misled by any irregularity, defect or variance mentioned in section 546, he may adjourn the inquiry and may remand the accused or grant him interim release in accordance with Part XVI.

  • R.S., c. C-34, s. 474
  • 1974-75-76, c. 93, s. 59.1

Marginal note:Inability of justice to continue

 Where a justice acting under this Part has commenced to take evidence and dies or is unable to continue for any reason, another justice may

  • (a) continue taking the evidence at the point at which the interruption in the taking of the evidence occurred, where the evidence was recorded pursuant to section 540 and is available; or

  • (b) commence taking the evidence as if no evidence had been taken, where no evidence was recorded pursuant to section 540 or where the evidence is not available.

  • R.S., 1985, c. 27 (1st Supp.), s. 100

Adjudication and Recognizances

Marginal note:Order to stand trial or discharge

  •  (1) When all the evidence has been taken by the justice, he shall

    • (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

    • (b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

  • Marginal note:Endorsing charge

    (2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.

  • Marginal note:Where accused ordered to stand trial

    (2.1) A justice who orders that an accused is to stand trial has the power to fix the date for the trial or the date on which the accused must appear in the trial court to have that date fixed.

  • Marginal note:Defect not to affect validity

    (3) The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect.

  • R.S., 1985, c. C-46, s. 548
  • R.S., 1985, c. 27 (1st Supp.), s. 101
  • 1994, c. 44, s. 56

Marginal note:Order to stand trial at any stage of inquiry with consent

  •  (1) Notwithstanding any other provision of this Act, the justice may, at any stage of a preliminary inquiry, with the consent of the accused and the prosecutor, order the accused to stand trial in the court having criminal jurisdiction, without taking or recording any evidence or further evidence.

  • Marginal note:Limited preliminary inquiry

    (1.1) If the prosecutor and the accused agree under section 536.5 to limit the scope of a preliminary inquiry to specific issues, the justice, without taking or recording evidence on any other issues, may order the accused to stand trial in the court having criminal jurisdiction.

  • Marginal note:Procedure

    (2) If an accused is ordered to stand trial under this section, the justice shall endorse on the information a statement of the consent of the accused and the prosecutor, and the accused shall after that be dealt with in all respects as if ordered to stand trial under section 548.

  • R.S., 1985, c. C-46, s. 549
  • R.S., 1985, c. 27 (1st Supp.), s. 101
  • 2002, c. 13, s. 30
  • 2019, c. 25, s. 247

Marginal note:Recognizance of witness

  •  (1) Where an accused is ordered to stand trial, the justice who held the preliminary inquiry may require any witness whose evidence is, in his opinion, material to enter into a recognizance to give evidence at the trial of the accused and to comply with such reasonable conditions prescribed in the recognizance as the justice considers desirable for securing the attendance of the witness to give evidence at the trial of the accused.

  • Marginal note:Clarification

    (2) A recognizance entered into under this section may be set out at the end of a deposition or be separate from it.

  • Marginal note:Sureties or deposit for appearance of witness

    (3) A justice may, for any reason satisfactory to him, require any witness entering into a recognizance pursuant to this section

    • (a) to produce one or more sureties in such amount as he may direct; or

    • (b) to deposit with him a sum of money sufficient in his opinion to ensure that the witness will appear and give evidence.

  • Marginal note:Witness refusing to be bound

    (4) Where a witness does not comply with subsection (1) or (3) when required to do so by a justice, he may be committed by the justice, by warrant in Form 24, to a prison in the territorial division where the trial is to be held, there to be kept until he does what is required of him or until the trial is concluded.

  • Marginal note:Discharge

    (5) Where a witness has been committed to prison pursuant to subsection (4), the court before which the witness appears or a justice having jurisdiction in the territorial division where the prison is situated may, by order in Form 39, discharge the witness from custody when the trial is concluded.

Transmission of Record

Marginal note:Transmission of record by justice

 If a justice orders an accused to stand trial, the justice shall immediately send to the clerk or other proper officer of the court by which the accused is to be tried, any information, evidence, exhibits, or statement of the accused taken down in writing in accordance with section 541, any appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the justice.

PART XVIII.1Case Management Judge

Marginal note:Appointment

  •  (1) On application by the prosecutor or the accused or on his or her own motion, the Chief Justice or the Chief Judge of the court before which a trial is to be or is being held or the judge that the Chief Justice or the Chief Judge designates may, if he or she is of the opinion that it is necessary for the proper administration of justice, appoint a judge as the case management judge for that trial at any time before the jury selection, if the trial is before a judge and jury, or before the stage at which the evidence on the merits is presented, if the trial is being heard by a judge without a jury or a provincial court judge.

  • Marginal note:Conference or hearing

    (2) The Chief Justice or the Chief Judge or his or her designate may order that a conference between the prosecutor and the accused or counsel for the accused or a hearing be held for the purpose of deciding if it is necessary for the proper administration of justice to proceed with the appointment.

  • (3) [Repealed, 2019, c. 25, s. 250]

  • Marginal note:Same judge

    (4) The appointment of a judge as the case management judge does not prevent him or her from becoming the judge who hears the evidence on the merits.

Marginal note:Role

 The case management judge shall assist in promoting a fair and efficient trial, including by ensuring that the evidence on the merits is presented, to the extent possible, without interruption.

  • 2011, c. 16, s. 4

Marginal note:Powers before evidence on merits presented

  •  (1) In performing their duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial, including by

    • (a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses’ needs and circumstances;

    • (b) encouraging the parties to make admissions and reach agreements;

    • (c) encouraging the parties to consider any other matters that would promote a fair and efficient trial;

    • (d) establishing schedules and imposing deadlines on the parties;

    • (e) hearing guilty pleas and imposing sentences;

    • (f) assisting the parties to identify the issues that are to be dealt with at the stage at which the evidence on the merits is presented;

    • (g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to

      • (i) the disclosure of evidence,

      • (ii) the admissibility of evidence,

      • (iii) the Canadian Charter of Rights and Freedoms,

      • (iv) expert witnesses,

      • (v) the severance of counts, and

      • (vi) the separation of trials on one or more counts when there is more than one accused; and

    • (h) ordering, in each case set out in subsection 599(1), that the trial be held in a territorial division in the same province other than that in which the offence would otherwise be tried.

  • Marginal note:Hearing

    (2) The case management judge shall order that a hearing be held for the purpose of exercising the power referred to in paragraph (1)(g).

  • Marginal note:Power exercised at trial

    (3) When the case management judge exercises the power referred to in paragraph (1)(g), he or she is doing so at trial.

  • Marginal note:Decision binding

    (4) A decision that results from the exercise of the power referred to in paragraph (1)(g) is binding on the parties for the remainder of the trial — even if the judge who hears the evidence on the merits is not the same as the case management judge — unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.

 
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