No constitutional right to a preliminary inquiry

Yesterday's Supreme Court of Canada decision in v. S.J.L.-G., 2009 SCC 14 arises under the YCJA but has an important ruling relevant for all accused.

There is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry.

The preliminary inquiry is a screening mechanism for determining whether the Crown has sufficient evidence to commit the accused to trial.

Relying on Hynes and Sazant the Court ruled that a preliminary inquiry allows for disclosure and then relies on lower court decisions to find there is no constitutional right to such a hearing.

The decision would seem to end any claim that the abolition of preliminary inquiries is unconstitutional.

The Court rules:

[21] It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30, and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 14‑16. However, there is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry: R. v. Ertel (1987), 35 C.C.C. (3d) 398 (Ont. C.A.), leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Moore (1986), 26 C.C.C. (3d) 474 (Man. C.A.). The principle of fundamental justice recognized by this Court in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, according to which young persons are entitled to a presumption of diminished moral blameworthiness has no bearing on the right to a preliminary inquiry. That is not the stage at which the guilt of the accused or the appropriate sanction is determined. Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since the accused continues to be presumed innocent and retains the right to make full answer and defence: R. v. Ertel.

[22] Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciate the Crown's evidence (Skogman v. The Queen), [1984] 2 S.C.R. 93, at p. 105), such incidental benefits do not give rise to a constitutional right to this proceeding: Re Regina and Arviv (1985), 51 O.R. (2d) 551 (C.A.), leave to appeal refused, [1985] 1 S.C.R. v, Ertel and R. v. Sterling (1993), 113 Sask. R. 81 (C.A.).

[23] Moreover, since R. v. Stinchcombe, [1991] 3 S.C.R. 326, R. v. Egger, [1993] 2 S.C.R. 451, R. v. O'Connor, [1995] 4 S.C.R. 411, R. v. La, [1997] 2 S.C.R. 680, R. v. Dixon, [1998] 1 S.C.R. 244, and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, an accused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry. But the Crown's duty in this respect does not extend to producing a witness for discovery: R. v. Khela, [1995] 4 S.C.R. 201, at para. 18. Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance: David Pomerant and Glenn Gilmour, Department of Justice Canada, Working Document, A Survey of the Preliminary Inquiry in Canada (April 1993), at pp. ix and 35‑36, and G. Arthur Martin and Joseph W. Irving, G. Arthur Martin: Essays on Aspects of Criminal Practice (1997), at p. 78.