R. v. Rao, 2012 BCCA 275 deals with a number of issues about what can be put forward as evidence on a preliminary inquiry and the right to examine and cross-examine. In the course of its reasons the British Columbia Court of Appeal makes clear that “discovery” is a proper function for a preliminary inquiry. (Indeed, this author has agreed to committal on a number of occasions and conducted a preliminary inquiry solely for discovery and preservation of testimony). The Court writes:
[96] In his article entitled “A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry” (2003) 48 Crim. L.Q. 151, (written after the 2004 amendments had received Royal Assent, but before their proclamation) Professor Paciocco (now Justice Paciocco) expressed the view that, since Parliament had not opted to abolish the preliminary inquiry, the 2004 amendments should not be interpreted by the courts as having done so in practice. In urging an interpretation of the amendments which preserved the dual functions of the preliminary inquiry, Professor Paciocco stated (at p. 184):
... First, if Parliament truly wanted the institution [of the preliminary inquiry] to disappear, it should have said so openly and unambiguously, not by inflicting death through a thousand cuts. Secondly, we were told by Parliament when proposals for the abolition of the preliminary inquiry were denied, that it did not intend to abolish the preliminary inquiry with these amendments. The amendments should not be interpreted and applied, therefore, in a way that will accomplish this result.
[97] There is nothing in any of the authorities that is binding on this Court which justifies the conclusion that s. 541(5) was to be read as precluding the calling of witnesses to further the discovery function of the preliminary inquiry. Rather, such cases as
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