Canadian criminal justice: Pre-trial procedures

6 - Pre-charge diversion

Before a case goes to trial, it may involve one or more pre-trial procedures. There are many different kinds of pre-trial procedures, but the two most common are (1) preliminary inquiries and (2) applications to admit or exclude evidence.

Preliminary inquiries 

In some circumstances, a defendant may have the right to hold a preliminary inquiry. This procedure is available when two conditions are met:

First, one of the offences must be a straight "indictable offence" (these are more serious offences, like theft over $5000.00 under subsection 334(a) of the Criminal Code) or if the prosecution chooses to proceed by indictment on a "hybrid offence" (these are moderately-serious offences where the prosecution can choose to treat them as more or less serious, like theft under $5000.00 under subsection 334(b) of the Criminal Code).

Second, the defendant either chooses to hold a preliminary inquiry in the Ontario Court of Justice and then a trial in the Ontario Superior Court of Justice or the defendant is deemed to request a preliminary inquiry if they refuse to make a choice.

In other words, a preliminary inquiry is only available in more serious cases and usually when the defendant chooses to hold one.

There are two purposes to a preliminary inquiry. First, at a preliminary inquiry, the prosecution must present "some evidence" that could prove each essential element of each offence. However, this is a very low standard for the prosecution to meet because the preliminary inquiry judge must assume that everything they hear is true at this stage. Where the prosecution cannot provide "some evidence," then one or more of the offences will be discharged (in other words, those offences are dropped). Where the prosecution can provide "some evidence," then the defendant will be committed to stand trial on those charges. Second, since the prosecution must present "some evidence," the defendant has an opportunity to discover the prosecution's case - to see their evidence, to question their witnesses, and to learn their theory.

Preliminary inquiries are important pre-trial procedures that ensure that defendants are only put on trial if there is some evidence showing they may be guilty and that help defendants know what that evidence will be.

Applications to admit or exclude evidence

The verdict at trial must be based only on admissible evidence. Sometimes, a piece of evidence may be subject to special rules that make it inadmissible. Depending on the rules, one side or the other may need to bring an "application" (a special pre-trial hearing) in order to make inadmissible evidence admissible or to make admissible evidence inadmissible.

In some cases, the evidence may be inadmissible because of a common law rule or a rule in a statute like the Criminal Code. For example, under the common law, "hearsay evidence" is normally inadmissible (when a witness tells the court about a statement they heard someone else make in order to prove that the statement was true), but it could be admitted under a special exception to the rule (such as when the statements are part of a "business record").

In some cases, the evidence may be inadmissible because it violates a right under the Canadian Charter of Rights and Freedoms. For example, items that a police officer seizes from a suspect's house are admissible, unless the judge finds that the search of the house violated the person's right against unreasonable search and seizure under section 8 of the Charter and that admitting the evidence would bring the administration of justice into disrepute under subsection 24(2) of the Charter.

Applications to admit or exclude evidence are important pre-trial procedures that help ensure that the only evidence used for or against the defendant is proper evidence.

Our lawyers carefully consider all available pre-tial procedures. We have been successful at having charges dropped at preliminary inquiries, obtaining helpful admissions by witnesses at preliminary inquiries, and having crucial prosecution evidence thrown out in pre-trial applications.

Contact the lawyer of your choice for a free consultation.

This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at to propose any changes or updates.