Pre-enquete hearings

If a layperson appears before a justice of the peace to have criminal charges for an indictable offence laid there is a two step process.

First a justice of the peace receives the charge and determines if the offence alleged is known to law. If it is then the next step is a separate hearing to determine whether the person alleged to have committed the offences described in the sworn information should be compelled to appear in answer to those charges. This hearing determines whether process should issue; the hearing is known as a Pre-enquete hearing.

Today's decision in R. v. Vasarhelyi, 2011 ONCA 397 describes the process in useful summary:

[34]         Section 504 of the Criminal Code describes who may lay an information before a justice of the peace alleging that a person or persons committed an indictable offence.  The section describes the form of the information and defines the circumstances in which the justice is required to receive it.

[35]         Receipt of a sworn information by a justice of the peace does not, on its own, require the person alleged to have committed the offence to answer to the charge.  The next step is a hearing or an inquiry to determine whether the person alleged to have committed the offences described in the sworn information should be compelled to appear in answer to those charges. This hearing or inquiry determines whether process should issue.

[36]         The Criminal Code contains two separate provisions for inquiries about the issuance of process. The distinction resides in the status of the informant. One provision governs where the informant is a law enforcement official and the other, where the informant is a private citizen. Where, as in this case, the informant is a private citizen, s. 507.1 of the Criminal Code governs the inquiry into the issuance of process, commonly described as the pre-enquete. 

[37]         Under s. 507.1, the purpose of the pre-enquete is to determine whether process should issue to compel the appearance of the prospective accused to answer to the charges contained in the information. The designated justice or provincial court judge who presides at the pre-enquete decides whether a case has been made out for the issuance of process on the basis of "the allegations of the informant and the evidence of witnesses".

[38]         The language used in s. 507.1(3), which defines the conditions to be satisfied before process may issue, is discretionary: "the judge or designated justice may issue a summons or warrant".  The standard or test the judge or justice is to apply emerges from s. 507.1(2): "that a case for doing so is made out".  Sections 507.1(5) – (7) describe the effect of a finding that no case has been made out for the issuance of process.

Evidence at the Pre-enquete

[39]         Section 507.1(3)(a) distinguishes between "the allegations of the informant", on the one hand, and "the evidence of witnesses", on the other. Unlike s. 507(1)(a)(ii), applicable to informations laid by law enforcement officers, where the introduction of the evidence of witnesses is only required where the justice "considers it desirable or necessary to do so", s. 507.1(3)(a) appears to make the introduction of "evidence of witnesses" essential.  Such a requirement serves as an important control over invocation of the criminal process to further the fevered imaginings of a private informant.

[40]         Despite this apparent requirement of "the evidence of witnesses" at the pre-enquete under s. 507.1(3), the section does not specify or otherwise describe, in express words, the substance or kind of evidence that must or may be introduced on the inquiry.  For example, nothing like s. 518(1), which sets the boundaries of the justice's inquiry and delineates the nature and scope of evidence that may be received at a judicial interim release hearing, appears in s. 507.1.

[41]         The absence of express provisions governing the evidence of witnesses at the pre-enquete is alleviated by the provisions of s. 507.1(8), which incorporate by reference ss. 507(2)-(8). Among the incorporated provisions of ss. 507(2)-(8) is s. 507(3)(b), which requires a justice who hears the evidence of a witness under s. 507(1), a provision like ss. 507.1(2) and (3), to "cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied".

[42]         Section 540 is one of several provisions that appear under the heading, Taking Evidence of Witnesses, under Part XVIII that deals with the procedure on the preliminary inquiry.

[43]         Sections 540(1) – (5) have appeared in one form or another, since the Criminal Code of 1892. With the more recent addition of subsection (6), these provisions describe the mechanics of recording evidence received in the proceedings. They do not concern themselves with what may be given in evidence, only with how it is to be recorded once received.

[44]         Sections 540(7) – (9) entered service on June 1, 2004, as part of a comprehensive series of amendments intended to expedite the hearing and circumscribe the scope of the preliminary inquiry.  The current regime for private prosecutions, including the procedure to be followed at the pre-enquete, came into force on July 23, 2002. The referential incorporation of the provisions of s. 540 by what is now s. 507(3) continues provisions to the same effect that have been in force since prior to the 1955 revision of the Criminal Code. 

[45]         Sections 540(7)-(9) and sections 540(1)-(6) serve entirely different functions.

[46]         The admissibility of evidence at a preliminary inquiry is the focus of ss. 540(7)- (9).  In other words, these provisions have to do with what the justice may receive as evidence at the inquiry.  Sections 540(7)-(9) expand the scope of what may be received as evidence beyond what the traditional rules of admissibility would permit.  Provided the information tendered for reception is credible and trustworthy, and the opposite party has received reasonable notice of the intention to introduce it, together with disclosure, the justice may admit the information as evidence even though the traditional rules of evidence would exclude it.

[47]         In contrast, ss. 540(1)-(6) have nothing to do with what may be admitted as evidence at the preliminary inquiry.  Their focus is on how what is admitted as evidence is to be recorded, not on the evidentiary composition of the record. 

[48]         In combination, ss. 507.1(8) and 507(3)(b) appear to incorporate s. 540 in its entirety "in so far as that section is capable of being applied" to the pre-enquete.  By contrast, s. 646,[2] the marginal heading of which is also "taking evidence", expressly excludes ss. 540(7)-(9) from its incorporation of the evidence taking provisions of Part XVIII.

[49]         Unlike a preliminary inquiry to which s. 540 applies directly, a pre-enquete is not an adversarial proceeding.  The person against whom the informant seeks to have process issued is not present and is not represented by counsel.  The Attorney General is entitled to notice of the hearing, an opportunity to attend, to cross-examine and call witnesses and to present any relevant evidence at the pre-enquete without being deemed to intervene in the proceeding.  The Attorney General may also enter a stay of proceedings on a private information as soon as the information has been laid or withdraw the information once a justice has determined that process should issue: Criminal Code, s. 579(1); R. v. Dowson, [1983] 2 S.C.R. 144; and R. v. McHale (2010), 256 C.C.C. (3d) 26 (Ont. C.A.), at para. 89, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 290