Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Elections and re-elections in writing

536.2 An election or a re-election by an accused in respect of a mode of trial may be made by submission of a document in writing without the personal appearance of the accused.

Procedures before Preliminary Inquiry

Marginal note:Statement of issues and witnesses

536.3  If a request for a preliminary inquiry is made, the prosecutor or, if the request was made by the accused, counsel for the accused shall, 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, provide the court and the other party with a statement that identifies

• (a) the issues on which the requesting party wants evidence to be given at the inquiry; and

• (b) the witnesses that the requesting party wants to hear at the inquiry.

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 in respect of a preliminary inquiry, 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 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) where the prosecutor and the accused so agree, permit the accused to appear by counsel or by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, 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) for any part of the inquiry other than a part in which the evidence of a witness is taken, require an accused who is confined in prison to appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, if the accused is given the opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.

• Marginal note:Section 715

  (1.01) Where a justice grants a request under paragraph (1)(j.1), the Court must inform the accused that the evidence taken during his or her absence could still be admissible under section 715.

• 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 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).