Preliminary Inquiries in Ontario: Eligibility, Process, and Strategy

A preliminary inquiry is one of the most misunderstood procedures in Ontario criminal law. Clients hear the term and assume it is a mini-trial — a chance to argue their innocence before the case goes any further. It is not. A preliminary inquiry serves a very specific and limited purpose, and understanding what it can and cannot do is essential to making informed decisions about your defence.

This guide explains what a preliminary inquiry is, who is eligible for one after the 2019 changes to the Criminal Code, what the process looks like, and — most importantly — when requesting a preliminary inquiry is a strong strategic move.

What Is a Preliminary Inquiry?

A preliminary inquiry is a hearing before a judge to determine whether there is sufficient evidence to commit the accused to stand trial. It takes place before trial and is conducted in a courtroom with witnesses, cross-examination, and a judge presiding — but it is not a trial. No verdict of guilty or not guilty is rendered. The only question is whether the case should proceed.

The test for committal was set out by the Supreme Court of Canada in United States of America v. Shephard: is there some evidence upon which a reasonable jury, properly instructed, could convict?

That test is deliberately low. The preliminary inquiry judge does not decide whether the evidence is strong, believable, or persuasive. The judge does not weigh credibility. The judge does not assess whether the accused is likely guilty. If there is some evidence on each element of the offence — even evidence that is weak, contradicted, or questionable — the accused will be committed to stand trial.

This is critically important for managing expectations. Most preliminary inquiries result in committal. That does not mean your case is hopeless — it means the preliminary inquiry serves a different purpose than proving innocence.

The Bill C-75 Changes: Who Is Eligible?

Before 2019, a preliminary inquiry was available for virtually any indictable offence. That changed dramatically with Bill C-75, which came into force on September 19, 2019. Under the current law, preliminary inquiries are only available for offences punishable by a maximum of 14 years or more imprisonment.

This was a sweeping change. The vast majority of criminal cases in Ontario no longer qualify for a preliminary inquiry.

Offences That Qualify

The following are examples of offences that carry a maximum sentence of 14 years or more and therefore remain eligible for a preliminary inquiry:

• Murder (first and second degree) — life imprisonment
• Manslaughter — life imprisonment
• Aggravated assault — 14 years
• Robbery — life imprisonment
• Sexual assault with a weapon or causing bodily harm — 14 years
• Major drug trafficking (Schedule I substances) — life imprisonment
• Firearms offences (many carry 14 years or more)
• Kidnapping — life imprisonment
• Arson (disregard for human life) — life imprisonment

Offences That No Longer Qualify

Even when the Crown proceeds by indictment, the following offences do not qualify for a preliminary inquiry because their maximum sentences fall below the 14-year threshold:

• Simple assault (5 years)
• Domestic assault (5 years)
• Theft under $5,000 (2 years)
• Fraud under $5,000 (2 years)
• Most drug possession offences
• Uttering threats (5 years)
• Criminal harassment (10 years)
• Breach of conditions
• Assault causing bodily harm (10 years)

Note that break and enter into a dwelling (maximum: life imprisonment) does qualify for a preliminary inquiry — it is one of the most common offences where the right to a prelim is preserved.

If you are unsure whether your charge qualifies, the maximum sentence for the offence is the determining factor. Understanding the difference between summary conviction and indictable offences is an important first step.

The Election Prerequisite

Before you can request a preliminary inquiry, you must first elect your mode of trial. A preliminary inquiry is only available when you elect to be tried in Superior Court — either by judge alone or by judge and jury. If you elect trial in the Ontario Court of Justice, there is no preliminary inquiry.

This means the decision to request a preliminary inquiry is bound up with the broader question of how you elect. Choosing to go to Superior Court has consequences for timelines, complexity, and cost. The election decision and the preliminary inquiry decision must be considered together.

The Strategic Value of a Preliminary Inquiry

If the committal threshold is so low that most cases proceed to trial anyway, why request a preliminary inquiry at all? Because committal is not the point. The real value of a preliminary inquiry lies in what it gives the defence.

1. Discovery Through Cross-Examination

A preliminary inquiry is the only pre-trial opportunity to cross-examine Crown witnesses under oath. In Ontario criminal law, the defence has no general right to examine witnesses before trial. Disclosure gives you the police reports, witness statements, and physical evidence — but it does not give you the chance to question witnesses directly.

At a preliminary inquiry, you can test a witness’s account in real time. You can probe for details that were left out of their statement. You can explore inconsistencies between what they told the police and what they say on the stand. This is enormously valuable information that shapes how you prepare for trial.

2. Locking In Testimony

Every word a witness says at a preliminary inquiry is recorded and transcribed. That transcript becomes a powerful tool at trial. If a witness changes their story — even on seemingly minor details — the defence can confront them with their sworn preliminary inquiry testimony.

Inconsistencies between preliminary inquiry testimony and trial testimony are devastating to witness credibility. Juries and judges notice when a witness cannot keep their story straight, and the transcript makes it impossible for a witness to deny what they previously said under oath.

3. Identifying Weaknesses in the Crown’s Case

The Crown’s case sometimes looks different in a courtroom than it does on paper. A witness who gave a confident, detailed statement to the police may fall apart under cross-examination. Physical evidence that seemed damning in the disclosure package may have gaps in the chain of custody. A timeline that looked airtight may have unexplained holes.

A preliminary inquiry lets you see the Crown’s case performed live — and weaknesses that were invisible on paper become obvious.

4. Strengthening Negotiations

A strong performance at the preliminary inquiry can shift the dynamics of resolution discussions. If the Crown’s key witness struggles under cross-examination, or if the evidence looks thinner than expected, the Crown may be more willing to negotiate — whether that means withdrawing charges, reducing the offence, or offering a more favourable joint submission on sentence.

This is not hypothetical. Defence counsel regularly use preliminary inquiry transcripts as leverage in plea negotiations. A Crown Attorney who watched their main witness get taken apart on cross-examination is far more receptive to a reasonable offer.

5. The Rare Discharge

In some cases, the evidence at the preliminary inquiry is genuinely insufficient — even under the low committal threshold. If the Crown cannot establish some evidence on each essential element of the offence, the judge must discharge the accused. The charges are effectively dismissed at that stage.

This is uncommon, but it happens. It is most likely in cases where the Crown’s evidence depends entirely on a single witness whose account is internally incoherent, or where a critical element of the offence (such as identity or intent) has no evidentiary support at all.

The Focused Preliminary Inquiry

Bill C-75 did not just restrict eligibility — it also changed how preliminary inquiries are conducted. Under the current law, preliminary inquiries must be focused. The parties and the judge must agree in advance on the specific issues to be explored. The days of wide-ranging, open-ended preliminary inquiries are over.

In practice, this means:

• The defence must identify the issues it wants to examine witnesses on
• The Crown and the judge may push back on overly broad requests
• The judge has the authority to limit questioning that goes beyond the agreed scope

A focused preliminary inquiry still provides significant strategic value — but it requires careful planning. Your lawyer must know exactly what they are looking for and why, because the opportunity to explore tangential issues is limited.

Preliminary Inquiries and Jordan Timelines

Any discussion of preliminary inquiries must account for delay. The Supreme Court of Canada’s decision in R. v. Jordan established presumptive ceilings for how long a criminal case can take to reach trial: 18 months in the Ontario Court of Justice and 30 months in the Superior Court of Justice. If those ceilings are exceeded and the delay is not attributable to the defence, the accused is entitled to a stay of proceedings under Section 11(b) of the Charter.

A preliminary inquiry adds time to the process. Scheduling the hearing, conducting it, and then scheduling a trial in Superior Court all take months. The 30-month Superior Court ceiling includes the time spent on the preliminary inquiry — the clock does not reset after committal.

This means the decision to request a preliminary inquiry must weigh the strategic benefits of the hearing against the time it consumes. In some cases, the discovery value is worth the added delay. In others — particularly where the Jordan ceiling is approaching or where a faster resolution serves the client’s interests — waiving the preliminary inquiry is the better choice.

When to Waive the Preliminary Inquiry

Requesting a preliminary inquiry is not always the right move. There are situations where waiving the preliminary inquiry and proceeding directly to trial is the stronger strategy:

• Time pressure: If the case is already approaching the Jordan ceiling, adding a preliminary inquiry may push the timeline in a direction that benefits neither party — or may give the Crown an excuse to argue that delay was defence-caused.
• Preserving your strategy: Cross-examining a witness at a preliminary inquiry shows the Crown your lines of attack. A skilled Crown Attorney will use the preliminary inquiry transcript to prepare their witnesses for trial. Sometimes the element of surprise at trial is more valuable than the discovery a prelim would provide.
• The case is straightforward: If the Crown’s case is simple and the evidence is already well understood from disclosure, a preliminary inquiry may add time and expense without generating new information.
• The client’s priorities: Some clients want the fastest possible resolution. They want to get to trial, get a verdict, and move on with their lives. A preliminary inquiry delays that.

The decision to request or waive a preliminary inquiry is not one to make on your own. It requires a careful assessment of the evidence, the charges, the timelines, and your overall defence strategy.

How Mor Fisher LLP Approaches Preliminary Inquiries

At Mor Fisher LLP, preliminary inquiries are a core part of how we defend serious criminal charges. When a client faces an offence that qualifies — robbery, sexual assault, drug trafficking, firearms charges, or other serious matters — we conduct a thorough assessment of whether a preliminary inquiry serves the client’s interests.

That assessment includes reviewing all disclosure, identifying the Crown’s evidentiary weaknesses, evaluating how key witnesses are likely to perform under cross-examination, and accounting for Jordan timelines. When we proceed with a preliminary inquiry, we go in with a clear plan — focused on the issues that matter most and designed to generate the maximum strategic advantage for trial or negotiations.

If you have been charged with a serious criminal offence in Barrie or anywhere in Ontario and want to understand whether a preliminary inquiry is right for your case, contact us today for a consultation. The decisions made early in your case — including the election and whether to request a preliminary inquiry — shape everything that follows. Do not make those decisions without experienced criminal defence counsel at your side.

Call 705-252-2828 or reach out online. We are available 24/7, including weekends and holidays. If you are unsure whether you need a lawyer for your charges, the answer is almost certainly yes — and the sooner you call, the better positioned your defence will be.