INTRODUCTION AND BRIEF DESCRIPTION
This section allows a judge to order a hearing to identify issues and witnesses for a preliminary inquiry.
SECTION WORDING
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.
EXPLANATION
Section 536.4(1) of the Criminal Code of Canada provides guidance on the conduct of a preliminary inquiry, a crucial aspect of the criminal justice system. The section gives the presiding justice the power to order a hearing to help identify the issues and witnesses to be presented at the inquiry. This can be done at the request of the prosecutor, the accused, or the justice's own discretion. The purpose of the hearing is to promote a fair and expeditious inquiry by helping the parties to define the issues and evidence beforehand. This can help to streamline the inquiry process and enhance the accuracy of the evidence presented. Furthermore, it allows the parties to consider other relevant matters that may impact the inquiry, such as the needs and circumstances of the witnesses to be called. The ultimate goal of this section is to ensure that the preliminary inquiry is conducted efficiently and justly. By identifying the issues and evidence in advance, the inquiry can be focused and productive. This can help to reduce the time and resources expended on the preliminary inquiry, and ultimately serve the interests of justice by producing a more accurate and reliable determination of guilt or innocence. In summary, Section 536.4(1) of the Criminal Code of Canada provides the presiding justice with the authority to order a hearing before the preliminary inquiry to assist in identifying the issues and evidence to be presented. This promotes a fair and efficient inquiry process, and ultimately helps to uphold the principles of justice and the rule of law.
COMMENTARY
Section 536.4(1) of the Criminal Code of Canada provides provisions for a hearing to be held before a preliminary inquiry to identify the issues on which evidence will be given at the inquiry and assist the parties to identify the witnesses to be heard at the inquiry. Additionally, the section encourages the parties to consider any other matters that would promote a fair and expeditious inquiry. The purpose of a preliminary inquiry is to determine whether there is enough evidence to justify sending the case to trial. It is an essential step in the criminal justice system as it helps to ensure that only cases with sufficient evidence proceed to trial, saving valuable time and resources. However, it can be a lengthy and complicated process that can cause delays in the criminal justice system. The provisions of Section 536.4(1) aim to alleviate some of the issues that can arise during a preliminary inquiry. By allowing for a hearing to be held, the parties can identify the issues in advance, which can potentially streamline the process. Furthermore, by assisting the parties in identifying the witnesses that need to be heard, the hearing can help to prevent unnecessary witness testimony, which can further streamline the process. The process also ensures that the witness' needs and circumstances are taken into consideration. The section also encourages the parties to consider any other matters that would promote a fair and expeditious inquiry. This provision suggests that the parties should actively engage in discussions to identify potential issues that may arise during the preliminary inquiry. In doing so, the parties can address these issues proactively, potentially avoiding any unnecessary delays. Overall, the provisions of Section 536.4(1) of the Criminal Code of Canada aim to promote a fair and efficient preliminary inquiry process. By allowing for a hearing to be held, the parties can identify the issues in advance, which can streamline the process, ensure the witness' needs and circumstances are considered, and promote a fair and expedited inquiry. These provisions ultimately serve to uphold the integrity of the legal system while also saving valuable time and resources. Another way that Section 536.4(1) of the Criminal Code of Canada helps to promote a fair and efficient preliminary inquiry process is by encouraging cooperation between the parties. The section allows for a hearing to be held on the justice's own motion, meaning that they can initiate the process themselves without the prosecutor or the accused having to request it. This encourages the justice to actively engage in the process and helps to ensure that the needs of both parties are considered. Furthermore, the section encourages the parties to consider any other matters that would promote a fair and expeditious inquiry. In doing so, the parties can potentially identify potential issues that may arise, such as the need for a particular witness to testify via video conference. By identifying these issues proactively, the parties can address them in advance, potentially avoiding any delays that may have otherwise occurred. The provisions of Section 536.4(1) ultimately serve to ensure that both parties are on the same page prior to the preliminary inquiry. By identifying the issues and witnesses in advance, the process can potentially be streamlined and expedited, saving valuable time and resources. Additionally, by encouraging cooperation and identifying potential issues proactively, the process can also be more fair and transparent. In conclusion, Section 536.4(1) of the Criminal Code of Canada provides valuable provisions that aim to ensure a fair and efficient preliminary inquiry process. These provisions encourage cooperation between the parties, identify potential issues in advance, and ultimately serve to uphold the integrity of the legal system.
STRATEGY
Section 536.4(1) of the Criminal Code of Canada provides the justice before whom a preliminary inquiry is to be held with the power to order a hearing to assist the parties in identifying the issues, witnesses, and other matters that would promote a fair and expeditious inquiry. This section provides legal professionals with strategic considerations to ensure that they effectively utilize it to their advantage. One strategic consideration is that lawyers must understand the objectives of their respective parties. The prosecutor, for instance, may want to gather evidence to secure a conviction, while the accused may want to mount a strong defense. In this case, it would be strategic for the prosecutor to apply for a hearing and identify the issues she intends to prove at the trial. This approach would ensure that the evidence gathered is in pursuit of proving the identified issues, as provided under section 536.4(1) (a). The defense lawyer, on the other hand, may want to identify the issues that the prosecutor intends to prove and apply for a hearing. This strategy enables the defense to prepare a more effective defense by ensuring they are familiarized with all the issues that the prosecutor intends to prove. Another strategic consideration is to identify the witnesses that will be presented at the inquiry. The witnesses who need to be heard must be taken into account along with their needs and circumstances. This requirement is enshrined in section 536.4(1) (b). Lawyers may apply for a hearing to determine which witnesses they will call to support their case. For instance, the defense may apply for a hearing to determine which witnesses would be called by the prosecutor to prove their case. This strategy allows the defense to prepare counter-evidence to refute the testimony of such witnesses and strengthen their defense. Another strategy that legal professionals could employ is by encouraging the parties to consider any other matters that would promote a fair and expeditious inquiry as provided under section 536.4(1) (c). For instance, parties may agree to have a joint preliminary hearing that incorporates all parties' issues and witnesses rather than having separate hearings. A joint hearing promotes expeditious inquiry and allows parties to share their evidence and identify the issues with clarity. Further, a strategic consideration is to utilize the opportunity provided under section 536.4(1) to negotiate a plea bargain. Lawyers may arrange a pre-preliminary inquiry meeting to discuss the issues, witnesses, and other matters that would promote a fair and expeditious inquiry. This strategy allows the parties to identify their positions and explore the possibility of a plea agreement. In conclusion, section 536.4(1) of the Criminal Code of Canada provides legal professionals with several strategic considerations that they can employ to effectively utilize its provisions. Lawyers must identify the objectives of their respective parties, identify the witnesses they will call, encourage parties to consider any other matters that would promote a fair and expeditious inquiry, and negotiate to achieve a plea agreement. These considerations will enable lawyers to effectively utilize section 536.4(1) of the Criminal Code to their advantage.