Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Hearing of witnesses

• 541 (1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, if required by this Part, has been read, the justice shall, subject to this section and subsection 537(1.01), hear the witnesses called by the accused.

• Marginal note:Contents of address to accused

  (2) Before hearing any witness called by an accused who is not represented by counsel, the justice shall address the accused as follows or to the like effect:

  “Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.”

• Marginal note:Statement of accused

  (3) Where the accused who is not represented by counsel says anything in answer to the address made by the justice pursuant to subsection (2), the answer shall be taken down in writing and shall be signed by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part.

• Marginal note:Witnesses for accused

  (4) Where an accused is not represented by counsel, the justice shall ask the accused if he or she wishes to call any witnesses after subsections (2) and (3) have been complied with.

• Marginal note:Depositions of witnesses

  (5) Subject to subsection 537(1.01), the justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies with any modifications that the circumstances require.

Marginal note:Confession or admission of accused

• 542 (1) Nothing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him.

• Marginal note:Restriction of publication of reports of preliminary inquiry

  (2) Every one who publishes in any document, or broadcasts or transmits in any way, a report that any admission or confession was tendered in evidence at a preliminary inquiry or a report of the nature of such admission or confession so tendered in evidence unless

  • (a) the accused has been discharged, or

  • (b) if the accused has been ordered to stand trial, the trial has ended,

  is guilty of an offence punishable on summary conviction.

• (3) [Repealed, 2005, c. 32, s. 19]

Remand Where Offence Committed in Another Jurisdiction

Marginal note:Order that accused appear or be taken before justice where offence alleged to have been committed

• 543 (1) If an accused is charged with an offence alleged to have been committed out of the limits of the jurisdiction in which they have been charged, the justice before whom they appear or are brought may, at any stage of the inquiry after hearing both parties, order the accused to appear or, if the accused is in custody, issue a warrant in Form 15 to convey the accused before a justice who, having jurisdiction in the place where the offence is alleged to have been committed, shall continue and complete the inquiry.

• Marginal note:Transmission of transcript and documents and effect of order or warrant

  (2) Where a justice makes an order or issues a warrant pursuant to subsection (1), he shall cause the transcript of any evidence given before him in the inquiry and all documents that were then before him and that are relevant to the inquiry to be transmitted to a justice having jurisdiction in the place where the offence is alleged to have been committed and

  • (a) any evidence the transcript of which is so transmitted shall be deemed to have been taken by the justice to whom it is transmitted; and

  • (b) any appearance notice, undertaking or release order issued to or given or entered into by the accused shall be deemed to have been issued, given or entered into in the jurisdiction where the offence is alleged to have been committed and to require the accused to appear before the justice to whom the transcript and documents are transmitted at the time provided in the order made in respect of the accused under paragraph (1)(a).

Absconding Accused

Marginal note:Accused absconding during inquiry

• 544 (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of a preliminary inquiry into an offence with which he is charged,

  • (a) he shall be deemed to have waived his right to be present at the inquiry, and

  • (b) the justice

    • (i) may continue the inquiry and, when all the evidence has been taken, shall dispose of the inquiry in accordance with section 548, or

    • (ii) if a warrant is issued for the arrest of the accused, may adjourn the inquiry to await his appearance,

  but where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue it at any time pursuant to subparagraph (b)(i) if he is satisfied that it would no longer be in the interests of justice to await the appearance of the accused.

• Marginal note:Adverse inference

  (2) Where the justice continues a preliminary inquiry pursuant to subsection (1), he may draw an inference adverse to the accused from the fact that he has absconded.

• Marginal note:Accused not entitled to re-opening

  (3) Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.

• Marginal note:Counsel for accused may continue to act

  (4) Where an accused has absconded during the course of a preliminary inquiry and the justice continues the inquiry, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.

• Marginal note:Accused calling witnesses

  (5) If, at the conclusion of the evidence on the part of the prosecution at a preliminary inquiry that has been continued under subsection (1), the accused is absent but their counsel is present, the counsel shall be given an opportunity to call witnesses on behalf of the accused, subject to subsection 537(1.01), and subsection 541(5) applies with any modifications that the circumstances require.

Procedure where Witness Refuses to Testify

Marginal note:Witness refusing to be examined

• 545 (1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence,

  • (a) refuses to be sworn,

  • (b) having been sworn, refuses to answer the questions that are put to him,

  • (c) fails to produce any writings that he is required to produce, or

  • (d) refuses to sign his deposition,

  without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may, by warrant in Form 20, commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.

• Marginal note:Further commitment

  (2) Where a person to whom subsection (1) applies is brought before the justice on the resumption of the adjourned inquiry and again refuses to do what is required of him, the justice may again adjourn the inquiry for a period not exceeding eight clear days and commit him to prison for the period of adjournment or any part thereof, and may adjourn the inquiry and commit the person to prison from time to time until the person consents to do what is required of him.

• Marginal note:Saving

  (3) Nothing in this section shall be deemed to prevent the justice from sending the case for trial on any other sufficient evidence taken by him.

Remedial Provisions

Marginal note:Irregularity or variance not to affect validity

546 The validity of any proceeding at or subsequent to a preliminary inquiry is not affected by

• (a) any irregularity or defect in the substance or form of the summons or warrant;

• (b) any variance between the charge set out in the summons or warrant and the charge set out in the information; or

• (c) any variance between the charge set out in the summons, warrant or information and the evidence adduced by the prosecution at the inquiry.

Marginal note:Adjournment if accused misled

547 Where it appears to the justice that the accused has been deceived or misled by any irregularity, defect or variance mentioned in section 546, he may adjourn the inquiry and may remand the accused or grant him interim release in accordance with Part XVI.

Marginal note:Inability of justice to continue

547.1 Where a justice acting under this Part has commenced to take evidence and dies or is unable to continue for any reason, another justice may

• (a) continue taking the evidence at the point at which the interruption in the taking of the evidence occurred, where the evidence was recorded pursuant to section 540 and is available; or

• (b) commence taking the evidence as if no evidence had been taken, where no evidence was recorded pursuant to section 540 or where the evidence is not available.

Adjudication and Recognizances

Marginal note:Order to stand trial or discharge

• 548 (1) When all the evidence has been taken by the justice, he shall

  • (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

  • (b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

• Marginal note:Endorsing charge

  (2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.

• Marginal note:Where accused ordered to stand trial

  (2.1) A justice who orders that an accused is to stand trial has the power to fix the date for the trial or the date on which the accused must appear in the trial court to have that date fixed.

• Marginal note:Defect not to affect validity

  (3) The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect.

Marginal note:Order to stand trial at any stage of inquiry with consent

• 549 (1) Notwithstanding any other provision of this Act, the justice may, at any stage of a preliminary inquiry, with the consent of the accused and the prosecutor, order the accused to stand trial in the court having criminal jurisdiction, without taking or recording any evidence or further evidence.

• Marginal note:Limited preliminary inquiry

  (1.1) If the prosecutor and the accused agree under section 536.5 to limit the scope of a preliminary inquiry to specific issues, the justice, without taking or recording evidence on any other issues, may order the accused to stand trial in the court having criminal jurisdiction.

• Marginal note:Procedure

  (2) If an accused is ordered to stand trial under this section, the justice shall endorse on the information a statement of the consent of the accused and the prosecutor, and the accused shall after that be dealt with in all respects as if ordered to stand trial under section 548.

Marginal note:Recognizance of witness

• 550 (1) Where an accused is ordered to stand trial, the justice who held the preliminary inquiry may require any witness whose evidence is, in his opinion, material to enter into a recognizance to give evidence at the trial of the accused and to comply with such reasonable conditions prescribed in the recognizance as the justice considers desirable for securing the attendance of the witness to give evidence at the trial of the accused.

• Marginal note:Clarification

  (2) A recognizance entered into under this section may be set out at the end of a deposition or be separate from it.

• Marginal note:Sureties or deposit for appearance of witness

  (3) A justice may, for any reason satisfactory to him, require any witness entering into a recognizance pursuant to this section

  • (a) to produce one or more sureties in such amount as he may direct; or

  • (b) to deposit with him a sum of money sufficient in his opinion to ensure that the witness will appear and give evidence.

• Marginal note:Witness refusing to be bound

  (4) Where a witness does not comply with subsection (1) or (3) when required to do so by a justice, he may be committed by the justice, by warrant in Form 24, to a prison in the territorial division where the trial is to be held, there to be kept until he does what is required of him or until the trial is concluded.

• Marginal note:Discharge

  (5) Where a witness has been committed to prison pursuant to subsection (4), the court before which the witness appears or a justice having jurisdiction in the territorial division where the prison is situated may, by order in Form 39, discharge the witness from custody when the trial is concluded.

Transmission of Record

Marginal note:Transmission of record by justice

551 If a justice orders an accused to stand trial, the justice shall immediately send to the clerk or other proper officer of the court by which the accused is to be tried, any information, evidence, exhibits, or statement of the accused taken down in writing in accordance with section 541, any appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the justice.