The Paper Chase: Subsections 540(7)-(9) of the Criminal Code

By Patrick J Ducharme, delivered to the Judges of the Ontario Court of Justice at their Educational Conference at Niagara-on-the-Lake, Ontario, November 4-6 2015.

Introduction

Subsections 540 (7)-(9) of the Criminal Code became law June 1, 2004. The intention of Parliament in enacting these subsections, according to the Parliamentary Research Branch, was 3-fold:
a. To streamline preliminary inquiries;
b. Reduce the time it takes to bring criminal cases to trial by reducing the  number and duration of preliminary inquiries, and,
c. Minimize the extent to which complainants (particularly those in sexual assault cases, are subject to examination and cross-examination. 2

In the last decade and a bit these amendments have been all but ignored by  Canada’s appellate courts. The few appellate decisions that have considered the amendments have focused on the facts of the case giving rise to the appeal and the limitations of certiorari as a vehicle of challenge for decisions alleged to be jurisdictionally flawed. The extraordinary remedies are aptly named. Any measure of success by their use is indeed extraordinary.

McLachlin C.J.C. in Russell 3 wrote:

The scope of review on certiorari is very limited. While at certain times in its history the writ afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a Superior Court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense.”
With respect to preliminary inquiries held under section 548 of the Criminal Code, the reasons for limiting the scope of supervisory remedies are clear. While the preliminary inquiry also affords defence counsel the opportunity to assess the nature and strength of the case against his or her client, its primary purpose is to ascertain whether there is sufficient evidence to warrant committing the accused to trial. Critically, the preliminary inquiry is not meant to determine the accused’s guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and it is not meant to
provide a forum for litigating the merits of the case against the accused. The limited scope of supervisory remedies reflects the limited purpose of the preliminary inquiry.

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The Paper Chase, by Patrick J Ducharme