Preliminary inquiries in the judicial district of Québec, 1897-1927

In 1763, by the Treaty of Paris, France ceded its North American colonies to the British Empire. Very rapidly, a confrontation broke out between the French-speaking and English-speaking elites concerning the judicial system. The French speakers wanted to keep their original judicial system, including French ordinary law, whereas the English speakers wished to see the application of English public law, including civil and criminal law.

As a result of the Royal Proclamation, the government established the Court of King's Bench, a superior trial court applying the criteria of English law to civil as well as criminal cases. The government also introduced justices of the peace, an institution distinct from low-level English jurisdiction and local administration. The Quebec Act, in 1774, reinstated Canadian (French) civil law and made the use of English criminal law official in criminal proceedings.

Over the years, a handful of reforms were made to the initial structure, but there were few major modifications, at least until the mid-19th century. A major, lasting overhaul of the judicial system finally came in 1849. Subsequently, the British North America Act, assented to in 1867, gave the federal parliament jurisdiction in criminal law matters and power to establish federal courts, but made the provinces responsible for organizing their civil and criminal courts.

On into 1892, criminal law was limited to the provisions of precedent and custom in both Canada and England. In that year, Sir John Thompson, then federal Minister of Justice, saw to the passage of the Canadian Criminal Code, which came into force on July 1, 1893. The code set forth the English criminal law already in place, but did so in a clear and orderly fashion, exempt of all extraneous content. Among other things, it gave an exhaustive description of all types of crimes and explained the procedures to be adhered to when a complaint was brought against one or more individuals. The Criminal Code of 1892 also appreciably improved the position of the accused in the conduct of the prosecution. Section 590 granted the accused the right to be accompanied by an attorney during the preliminary inquiry, and section 594 allowed the accused to call witnesses in his or her defence.

The preliminary inquiry, also called a preliminary hearing, has always been part of English criminal procedure, evolving with the ways and customs of each era. Until the mid-19th century, it was the first phase of criminal prosecution proceedings. The duty of the justice of the peace, then charged with conducting the inquiry, was to look for evidence against the accused in the way that a police officer would. The justice of the peace could even go so far as to examine the scene of the crime and question witnesses or neighbours, in order to better judge the merits of the accusations.

With the gradual organization of police forces, the justice of the peace abandoned the role of investigator and concentrated on the conduct of preliminary inquiries, taking cognizance of the accusations, the evidence of the prosecution (exhibits) and the sworn statements of the complainant and the accused. During the inquiry, the justice of the peace could also receive revelations from third parties concerning facts witnessed, and thereby better understand the dispute in question. Thus, the preliminary inquiry became a procedure aimed at determining, in cases of offence liable to punishment, whether there was enough relevant evidence to justify a trial.

Considering the facts brought forward during the inquiry, the justice of the peace could decide to continue judicial proceedings and have the accused stand trial or put a stop to proceedings for lack of evidence. If the accusation was founded, an indictment was laid against the accused and a jury, called Grand Jury, was formed of 12 to 23 citizens of the district. A justice of the peace presided over a hearing at which the indictment was laid before the Grand Jury. The justice of the peace addressed the members of the jury, presenting the situation as he saw it and explaining their duty as jurors, which was to examine the indictment against the accused in order to make sure it was serious. At the end of the hearing, the Grand Jury had to deliberate and establish whether the indictment justified (true bill) or did not justify (no bill) going to trial. Not until 1933 was the concept of the Grand Jury abandoned in the province of Québec.

At the time of Confederation, the Court of General Sessions of the Peace, created in 1777 by Ordinance 17 George III c. 5, became a lower court with criminal and penal jurisdiction in Québec City and Montréal, for all criminal offences, except those falling to the Court of King's or Queen's Bench. Ordinance 8 Edward VII c. 42, assented to on April 25, 1908, established a new court, the Court of Sessions of the Peace, which replaced the general or quarter sessions of the peace. The Court of Sessions of the Peace, a lower court with provincial jurisdiction, had the same powers as its predecessor, but had authority throughout the province, although, until 1945, it sat only in the districts of Québec and Montréal. Not until 1957 were its sittings extended to all judicial districts.

Karine Vézina
Trainee
Université Laval