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48 Crim. L.Q. 151 (2003-2004)
A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry

handle is hein.journals/clwqrty48 and id is 177 raw text is: A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry David M. Paciocco* 1. Introduction The preliminary inquiry is not yet dead. Uncharacteristically effective lobbying by the defence bar, coupled with an under- standable reluctance within the Department of Justice to execute publically a 150-year-old, liberty protecting institu- tion,' helped it survive calls for its abolition? The preliminary inquiry remains, however, on life support. Recent statutory amendments have sought to reduce the number and length of preliminary inquiries. Some of these amendments are objectionable philosophically; they are overt in arming prosecutors with the power to decide, * Professor, University of Ottawa; counsel, Edelson & Associates. 1. The preliminary inquiry has been around since 1851. D. Pomerant and G. Gilmour, A Survey of the Preliminary Inquiry in Canada (Annex D, History of the Preliminary Inquiry) (Ottawa: Department of Justice, 1993) at p. 19, cited in John Arnold Epp, Abolishing Preliminary Inquiries in Canada (1996), 38 C.L.Q. 495 at p. 495, note 3. The modem preliminary inquiry emerged in England three years earlier in the Indictable Offences Act, 1848 (or Sir John Jervis's Act, 1848) (U.K.), 11 & 12 Vict., c. 42. Prior to that enactment, the preliminary inquiry served more as an inquisition of the accused than as a means by which to protect the accused with discovery and to have weak charges dismissed: Law Reform Commission, Study on Discovery (Information Canada: Ottawa, 1974), at pp. 64 et seq. 2. See, for example, John Arnold Epp, ibid. More complicated proposals that would have abolished the preliminary inquiry in all but s. 469 indictable offence cases (the only one commonly tried being murder) were advanced in a Department of Justice Consultation Paper: Department of Justice Canada, Do We Still Need Preliminary Inquiries? Options for Change to the Criminal Code (Ottawa: Department of Justice Canada, 1993).

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