- A preliminary inquiry is a pre-trial hearing to determine whether the Crown has enough evidence to justify a full trial — it does not decide guilt or innocence.
- Since Bill C-75 came into force on September 19, 2019, preliminary inquiries are only available for offences with a maximum penalty of 14 years or more imprisonment.
- The test applied is whether there is some evidence on each essential element — a low threshold, far below what is required to convict at trial.
- A presiding justice can limit the issues and witnesses examined at the inquiry, keeping it more focused than in the past.
- A preliminary inquiry can result in the accused being discharged if the evidence genuinely does not meet even this low threshold.
- For most criminal charges today, there is no preliminary inquiry available at all — the matter proceeds straight toward trial.
The Short Answer
A preliminary inquiry is a pre-trial hearing that tests whether the Crown has enough evidence to justify a full trial. Since Bill C-75 came into force on September 19, 2019, this process is only available for adults charged with an indictable offence carrying a maximum penalty of 14 years imprisonment or more — meaning most charges today, including many serious ones, no longer have a preliminary inquiry stage at all.
What a Preliminary Inquiry Actually Is
A preliminary inquiry is not a trial and does not determine guilt. Instead, a justice hears evidence — often including live testimony from key Crown witnesses, subject to cross-examination — and decides only whether there is enough evidence for the case to proceed to trial at all.
Who Is Eligible After Bill C-75
Before September 19, 2019, any accused charged with an indictable offence was generally entitled to request a preliminary inquiry. Bill C-75 restricted this significantly — today, preliminary inquiries are only available for offences punishable by 14 years imprisonment or more, including offences carrying a maximum of life imprisonment.
Someone charged with a serious offence carrying a maximum penalty of life imprisonment remains eligible for a preliminary inquiry. Someone charged with an indictable offence carrying a maximum penalty of 10 years, by contrast, is not eligible under the current rules and proceeds directly toward trial without this intermediate step.
The Test Applied
The presiding justice asks whether there is “some evidence” on each essential element of the offence — evidence upon which a properly instructed jury, acting reasonably, could convict. This is a deliberately low threshold, far below the “beyond a reasonable doubt” standard required to actually convict at trial.
What Happens at the Inquiry
- The Crown presents evidence, often including testimony from key witnesses
- Defence counsel can cross-examine those witnesses under oath
- The presiding justice can limit which issues are explored and which witnesses are heard, focusing the hearing
- The justice ultimately decides whether the case proceeds to trial
Possible Outcomes
| Outcome | What It Means |
|---|---|
| Committed to trial | Sufficient evidence exists; the matter proceeds toward a full trial |
| Discharged | Insufficient evidence on one or more essential elements; that charge does not proceed to trial |
| Partially committed | Some charges proceed to trial while others are discharged, where multiple charges are involved |
Why an Accused Might Want One
For eligible offences, a preliminary inquiry gives the defence a genuine early opportunity to test the Crown's case — cross-examining key witnesses under oath before trial, and getting a realistic read on the strength of the evidence. This can meaningfully shape trial strategy, plea discussions, or, in some cases, result in the charge being discharged outright.
Preliminary Inquiry vs. Trial
| Factor | Preliminary Inquiry | Trial |
|---|---|---|
| Purpose | Tests whether there is enough evidence to proceed | Determines guilt or innocence |
| Standard | "Some evidence" on each element | Beyond a reasonable doubt |
| Availability | Only offences with 14+ year maximum penalty | Available for all charges that proceed |
| Outcome | Committal to trial, or discharge | Conviction or acquittal |
Common Misconceptions
Myth: “A preliminary inquiry decides guilt or innocence.”
False. It only decides whether there is enough evidence to justify a trial — nowhere near a finding of guilt.
Myth: “Everyone charged with an indictable offence gets one.”
False since 2019. Only offences carrying a maximum penalty of 14 years or more are eligible under the current rules.
Myth: “Being discharged at a preliminary inquiry means the Crown can never charge you again for the same conduct.”
Not necessarily true in every circumstance — the specifics depend on the situation, and this is an area where legal advice matters.
Facing a serious indictable charge and wondering whether a preliminary inquiry applies to your case? Call our Toronto criminal defence lawyers at 416-274-2222 for a free consultation.
Frequently Asked Questions
A preliminary inquiry is a pre-trial hearing where a judge determines whether the Crown has enough evidence to justify sending the case to trial. It is a screening step, not a determination of guilt — the standard applied is much lower than what is needed to convict.
Since amendments under Bill C-75 came into force on September 19, 2019, preliminary inquiries are only available to adults charged with an indictable offence carrying a maximum penalty of 14 years imprisonment or more (including offences punishable by life imprisonment). Most criminal charges, including many serious ones, do not meet this threshold and proceed directly toward trial.
The presiding justice asks whether there is "some evidence" upon which a properly instructed jury, acting reasonably, could convict on each essential element of the offence. This is a low threshold — far below the "beyond a reasonable doubt" standard required for an actual conviction at trial.
Yes. If the presiding justice finds there is not even "some evidence" to support one or more essential elements of the offence, the accused can be discharged on that charge, meaning it does not proceed to trial.
A preliminary inquiry gives the defence an early opportunity to test the Crown's evidence, cross-examine key witnesses under oath before trial, and assess the real strength of the case — information that can meaningfully shape trial strategy or settlement discussions.
Yes. Since the Bill C-75 reforms, a justice conducting a preliminary inquiry has the authority to limit the issues explored and the witnesses to be heard, focusing the hearing and reducing the burden on witnesses who might otherwise have to testify twice — once at the inquiry and again at trial.
No. A preliminary inquiry is an entirely separate, earlier step. If the case survives the inquiry, it still proceeds to a full trial, where guilt or innocence is actually determined based on the higher "beyond a reasonable doubt" standard.
Bill C-75 restricted preliminary inquiries to reduce delay and free up limited court resources, following concerns about trial delays highlighted in the Supreme Court's R. v. Jordan decision. Restricting inquiries to the most serious offences (14 years or more) was intended to preserve the benefit of the process where the stakes are highest, while reducing its use in less serious matters.
They proceed directly through the standard pre-trial process — including disclosure, judicial pre-trial conferences, and potentially other pre-trial motions — toward trial, without a separate preliminary inquiry stage.
Strongly recommended. A preliminary inquiry involves examining and cross-examining witnesses under oath and making legal arguments about the sufficiency of the evidence — exactly the kind of proceeding where experienced legal representation makes a significant difference.