INTRODUCTION AND BRIEF DESCRIPTION
If multiple people are charged together and one requests a preliminary inquiry, it must be conducted for all of them.
SECTION WORDING
536.1(4.1) If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (3), a preliminary inquiry must be held with respect to all of them.
EXPLANATION
Section 536.1(4.1) of the Criminal Code of Canada is a provision that governs the conduct of preliminary inquiries. This section pertains to situations where multiple individuals are jointly charged with a criminal offense and one or more of these individuals request a preliminary hearing in accordance with subsection (3) of this section. A preliminary inquiry is a court proceeding that takes place before a trial. Its purpose is to determine whether there is enough evidence to justify a trial. During a preliminary inquiry, the prosecution presents evidence to the court, and the defence has the opportunity to cross-examine witnesses and challenge the evidence. The judge then decides whether or not there is sufficient evidence to warrant a trial. In the context of section 536.1(4.1), if two or more individuals are jointly charged with a criminal offense, and one or more of them requests a preliminary inquiry, then a preliminary inquiry must be held with respect to all of the individuals who have been charged. This means that even if one of the accused persons would prefer to waive their right to a preliminary inquiry, they will not be permitted to do so if any of the co-accused individuals request one. The rationale behind this provision is to ensure that all of the accused individuals are treated fairly and equally. It prevents one accused person from waiving their right to a preliminary inquiry and potentially putting the other accused persons at a disadvantage. For example, if one of the accused individuals has access to information that the others do not, and that information could be helpful in challenging the prosecution's evidence, then denying the other accused individuals the opportunity to examine that evidence would be unfair. In conclusion, section 536.1(4.1) of the Criminal Code of Canada is a provision that mandates the holding of a preliminary inquiry with respect to all jointly charged individuals if one or more of them requests it. This ensures that all accused individuals are treated fairly and equally, and that they have the opportunity to challenge the evidence and defend themselves against the charges.
COMMENTARY
Section 536.1(4.1) of the Criminal Code of Canada is a provision that establishes the obligation to hold a preliminary inquiry when two or more persons have been jointly charged with an offence and one or more of them request such an inquiry, pursuant to subsection (3). This section is designed to ensure that the preliminary inquiry process is not selectively applied to only some of the accused persons in a joint trial, and that all co-accused have an equal opportunity to contest the charges against them before trial. The preliminary inquiry is an important phase in the criminal trial process because it provides an opportunity for defence counsel to assess the strength of the Crown case, cross-examine the Crown's witnesses, and challenge the admissibility of evidence that may be used against the accused at trial. This process is also important for the Crown because it allows the prosecution to test their evidence and refine their case before trial. If one or more members of a group charged with an offence request a preliminary inquiry, it is essential that all parties have the same opportunity to present their case and challenge the evidence against them. The provision also reflects the importance of ensuring procedural fairness in the criminal justice process. In Canada, the right to a fair trial is enshrined in Section 11(d) of the Canadian Charter of Rights and Freedoms, which guarantees that every person charged with an offence has the right to a fair and public hearing by an independent and impartial tribunal. The preliminary inquiry is part of that fair hearing process, and this provision helps to ensure that all members of a joint trial are treated fairly and equally. There are, of course, certain exceptions to the requirement for a joint preliminary inquiry. For example, if one or more accused persons are represented by different counsel, there may be practical difficulties in coordinating the inquiry. There may also be situations where some accused persons are charged with offences unrelated to the others, in which case separate preliminary inquiries may be appropriate. Nevertheless, the general rule is that if two or more persons are jointly charged with an offence and one or more of them requests a preliminary inquiry, the inquiry must be held with respect to all of them. Overall, Section 536.1(4.1) of the Criminal Code of Canada serves an important purpose in ensuring that co-accused have equal access to the preliminary inquiry process. It helps to protect the right to a fair trial, and promotes fairness and consistency in the administration of criminal justice. While there may be circumstances where a joint preliminary inquiry is not practical or appropriate, the default rule is that all accused persons should have an equal opportunity to challenge the prosecution's case and assert their innocence.
STRATEGY
Section 536.1(4.1) of the Criminal Code of Canada highlights the obligation of the court to conduct a preliminary inquiry in case two or more persons are jointly charged in an information and one or more requests for the same. This section has significant implications for both prosecutors and defense lawyers, as it shapes the direction and scope of the criminal proceedings. In this context, it is essential to understand some strategic considerations that can aid in dealing with this section of the Criminal Code of Canada. One strategic consideration for defense lawyers is to ensure that all co-accused make a joint request for a preliminary inquiry, as this will ensure that no accused person is excluded from such an inquiry. In doing so, they can also avoid the risk of accused persons contradicting each other in later stages of the proceedings. Furthermore, defense lawyers may wish to use the preliminary inquiry stage to gain valuable knowledge about the Crown's case and evidence, which can help them develop a more effective defense strategy. For prosecutors, one strategic consideration may be to avoid delaying tactics that could lead to a backlog of cases. This section of the Criminal Code of Canada enhances the rights of the accused to a preliminary inquiry. However, prosecutors can limit the number of preliminary inquiries through early plea bargaining or streamlining the case to ensure that only the necessary accused are charged. In addition, prosecutors may choose to disclose the necessary evidence for the preliminary inquiry to reduce the overall length of the inquiry. Another strategic consideration for both defense lawyers and prosecutors is to assess the strength of the evidence against each accused and not base their strategy on the presumption of innocence or guilt. Based on this assessment, defense lawyers may wish to focus their efforts on the co-accused who have a weaker case, while prosecutors may seek to drop charges against those accused persons who have strong defenses. This can optimize the efficiency of the criminal proceedings, reduce costs and delay. Overall, some key strategies that can be employed when dealing with Section 536.1(4.1) of the Criminal Code of Canada include prompt plea bargaining, streamlining cases, ensuring that all co-accused make a joint request for preliminary inquiry, and developing defense strategies based on a comprehensive analysis of the evidence. By doing so, it is possible to make the best possible use of the preliminary inquiry stage while reducing the time, cost, and complexity of the overall proceedings.