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The paper also considers whether or not the procedure is in need of reform, or perhaps even abolition, given concerns that it contributes to delay and may unduly burden witnesses and victims. A Provincial Court judge has jurisdiction to hold a preliminary inquiry in some, but not all criminal cases; if an inquiry is held, it occurs between the first appearance of the accused and the trial. Its primary purpose is the screening out of weak or unmeritorious cases from the criminal process. This assessment of the preliminary inquiry identifies the restrictions imposed on the preliminary inquiry under current law and examines the scope of statutory duties allowed the presiding judge. To assess the role of the inquiry as a useful discovery mechanism, the paper also analyzes the recent "Stinchcombe" decision, in which the Supreme Court of Canada held that there must be full pretrial disclosure by the prosecution of all information relevant to the accused. In assessing the extent to which the law that governs the preliminary inquiry may need reform, the analysis examines reforms to the procedure in a number of Commonwealth countries and in the United States. The pros and cons of various reform proposals are presented. The paper concludes that the status quo is the least preferable option, given the disclosure requirements now applicable in Canada and the failure of the existing procedure to perform the function assigned to it. A 170-item bibliography and appended background information
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« Fruit d’une collaboration entre universitaires et praticiens, cet ouvrage de procédure pénale a pour double mission de servir à l’enseignement collégial et universitaire, mais aussi d’ouvrage de référence pour les juristes de tous horizons. Ils ont emprunté une perspective chronologique de la procédure pénale afin de contextualiser et de rendre plus lisibles les nombreuses règles et concepts que ce domaine du droit affectionne. »-- Résumé de l’éditeur
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The preliminary inquiry has existed as a procedural protection in our criminal justice system for well over a century. Despite its longevity, this procedural option has not been without controversy. Particularly over the last several decades, there has been considerable debate surrounding its continuing value. Recently, a 2012 press release by the federal, provincial, and territorial ministers responsible for justice and public safety suggests that reform (and quite possibly abolition) of the preliminary inquiry is again being considered. The present article provides an empirical context in which to think about preliminary inquiry reform. Using a detailed and comprehensive national data set, developed in 2003 and specifically tailored to examine this criminal procedure, we do not find a clear case for re-opening the debate. The preliminary inquiry appears to have value in reducing the use of expensive court resources, either by altering the course of cases destined for Superior Court or by eliminating weak charges. Its costs in terms of court delay and valuable resources are significantly limited by its infrequent use and few court appearances. At a minimum, this article suggests that a more detailed empirical examination is justified (if not required) before any changes are made to the preliminary inquiry.
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