Supreme Court Judgments

R. v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82

Dwayne W. Hynes                                                                                            Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Manitoba,

the Attorney General of British Columbia

and the Attorney General for Alberta                                                          Interveners

Indexed as:  R. v. Hynes

Neutral citation:  2001 SCC 82.

File No.:  27443.

2001:  February 13; 2001:  December 6.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for newfoundland

Constitutional law -- Charter of Rights  -- Court of competent jurisdiction -- Preliminary inquiry -- Exclusion of evidence -- Whether preliminary inquiry justice is court of competent jurisdiction to exclude evidence -- Canadian Charter of Rights and Freedoms, s. 24(2) .

The accused stands charged with three offences under the Criminal Code  arising from a motor vehicle accident.  The judge presiding over the preliminary hearing into the charges held voir dires to determine the admissibility of statements made by the accused to the police while he was under arrest.  The accused argued that these statements were obtained by the police in a fashion infringing his rights under ss. 7 , 10( a ) , 10( b )  and 11( a )  of the Canadian Charter of Rights and Freedoms .  After completion of the Crown’s evidence on each of the voir dires, the accused sought a declaration that the presiding judge constituted a “court of competent jurisdiction” under s. 24  of the Charter .  The judge refused on the ground that, sitting in his capacity as a preliminary inquiry justice, he was not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2).  The Trial Division dismissed the accused’s application to direct the preliminary inquiry judge to conduct the inquiry under s. 24 .  The Court of Appeal upheld that decision.

Held (Iacobucci, Major, Binnie and Arbour JJ. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and L’Heureux-Dubé, Gonthier, Bastarache and LeBel JJ.:  A justice presiding at a preliminary inquiry is not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2)  of the Charter .

A “court of competent jurisdiction” is one that possesses jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction to grant the remedy.  The test for the third element is whether the court or tribunal is suited to grant the remedy sought under s. 24 in light of its function and structure.  The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial.  In support of this function, Parliament equipped the preliminary inquiry with a structure that shares broad similarities with that of the trial court.  The preliminary inquiry is not a trial, however, and this distinction is reflected in the powers and procedure.  Preliminary inquiry justices should not be allowed general powers to exclude evidence for Charter  breaches.  First, recognizing a remedial jurisdiction in preliminary inquiry justices has the potential to transform the role Parliament intended this process to perform in the criminal justice system.  Instead of performing a preliminary screening function, the preliminary inquiry might become a forum for trying Charter  breaches and awarding remedies.  Second, assigning this new role to preliminary inquiry justices might undermine the expeditious nature of the preliminary inquiry.  Third, trial courts are better situated than preliminary inquiries to engage in s. 24(2) determinations.  Finally, Charter  litigation at the preliminary stage may ultimately serve no other practical purpose than to increase the costs and delays associated with this process.  If the accused is discharged as the result of excluded evidence under s. 24(2), the Crown may still prefer a direct indictment against the accused and proceed to trial regardless.  There is no statutory right of appeal from the ruling of a preliminary inquiry justice.  The Crown’s power to proceed by preferred indictment cannot be accepted as a proper substitute for a statutory appeal mechanism.  Parliament intended Charter  issues to be resolved in a forum equipped with established and well-understood avenues of appeal.  The trial court is the obvious choice for this task.

Under the current rule, the preliminary inquiry justice may consider the admissibility of the accused’s statement based on voluntariness, but not Charter  violations.  Although these powers appear similar, only the latter involves an exercise of remedial authority – an authority with which a preliminary inquiry justice is not cloaked.  Further, the common law confessions rule always results in the exclusion of offending evidence.  As such, it involves a relatively discrete inquiry.  By contrast, the s. 24(2) inquiry transcends the immediate facts of the Charter  breach and embraces a much more comprehensive appraisal of the impact of the evidence on the fairness of the trial and the repute of the justice system.  These issues are best reserved for the trial judge, who is likely to have a more complete picture of the evidence and its significance in the context of the case and is thus better situated to decide such questions.

Per Iacobucci, Major, Binnie and Arbour JJ. (dissenting):  A preliminary inquiry hearing, by virtue of its function and structure, is an appropriate forum for excluding statements obtained contrary to the Charter .  Many statutory provisions in Part XVIII of the Criminal Code  demonstrate that a preliminary inquiry justice has been provided with the power to determine the admissibility of evidence, including  s. 542, which requires a preliminary inquiry justice to exclude confessions under exclusionary rules at common law.  A “much more comprehensive appraisal” is not necessarily required to determine whether statements that violate the Charter  should be excluded.  Generally, if an accused’s statement is obtained in violation of Charter  rights, self-incriminating evidence will be excluded under s. 24(2) without the need for much further inquiry.  Even if a much more comprehensive appraisal is required, there will be overlap between the “administration of justice” test used to determine whether evidence should be excluded pursuant to s.  24(2)  of the Charter  and the factors used in the common law confessions rule.  With such overlap, the voir dire needed to exclude a confession at common law will provide virtually all the requisite information for exclusion under the Charter .  Moreover, the rationale for the common law exclusionary rule is much the same as the “remedial” rationale for s. 24(2)  of the Charter .

If the test for committal is the intended function of the preliminary inquiry and if a “much more comprehensive appraisal” is required to determine whether to exclude confessions obtained contrary to the Charter , the discovery mechanism engaged by the preliminary inquiry is adequate to the task.  A preliminary inquiry justice is required to hear an accused’s witnesses even if evidence introduced by the Crown satisfies the test for committal.  Defence counsel have a statutory right to cross-examine the Crown’s evidence and to call witnesses.  Moreover, there is nothing to suggest that if justices at preliminary inquiries are given the power to exclude confessions obtained contrary to the Charter , additional cost and delay will be occasioned.  A discharge at the preliminary inquiry stage that manages to avoid a jury trial saves an enormous amount of otherwise wasted time and resources.  If preliminary inquiry justices do not have power to exclude evidence pursuant to s. 24(2)  of the Charter , fewer discharges will result.  Conversely, if preliminary inquiry justices are given the power to exclude evidence, more accused people will be discharged.  If an accused is improperly discharged, the Crown can always prefer a direct indictment pursuant to s. 577 of the Code and proceed to trial regardless of the preliminary inquiry justice’s decision.  The justice could also refuse to grant the remedy the accused seeks.  By having the Charter  question determined and rejected, an accused would be more likely to plead guilty and avoid a trial.  If the preliminary inquiry justice decided to exclude evidence pursuant to the Charter , the decision would not bind the trial judge.  Under the present preliminary inquiry system, where preliminary inquiry justices are not thought to have the power to grant Charter  remedies, preliminary inquiries routinely engage Charter-related evidence.  The preliminary inquiry justice should be permitted to rule on Charter  issues.  It is not supportable by logic or efficiency to permit a preliminary inquiry justice to determine the admissibility of statements for common law purposes but not for Charter  purposes when it is recognized that preliminary inquiry justices are armed with all the facts.  Parliament could not have intended such waste.

This Court’s obiter analysis in Mills, if binding, should be overruled to the extent that it holds that the provincial court and its members are not courts of competent jurisdiction for purposes of excluding certain evidence obtained contrary to s. 24(2)  of the Charter .  This change is incremental and Mills has been attenuated by subsequent decisions.  The change suggested reflects a better understanding of the Charter .  Guided by the substantial case law, preliminary inquiry justices are well placed to decide whether to exclude evidence pursuant to the Charter  in a fair manner that corresponds to the law.

Cases Cited

By McLachlin C.J.

Applied:  R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; followed:  Mills v. The Queen, [1986] 1 S.C.R. 863; referred to:  R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. B. (K.G.), [1993] 1 S.C.R. 740; Caccamo v. The Queen, [1976] 1 S.C.R. 786; Skogman v. The Queen, [1984] 2 S.C.R. 93; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Chew, [1968] 2 C.C.C. 127; R. v. Girimonte (1997), 121 C.C.C. (3d) 33; R. v. Richards (1997), 115 C.C.C. (3d) 377; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Patterson v. The Queen, [1970] S.C.R. 409; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Garofoli, [1990] 2 S.C.R. 1421; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Power, [1994] 1 S.C.R. 601; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38.

By Major J. (dissenting)

R. v. Pearson (1957), 117 C.C.C. 249; R. v. Ferrero (1981), 59 C.C.C. (2d) 93; R. v. Ward (1976), 31 C.C.C. (2d) 466, aff’d Ont. C.A., February 15, 1977; Mills v. The Queen, [1986] 1 S.C.R. 863, aff’g (1983), 43 O.R. (2d) 631, aff’g (1983), 40 O.R. (2d) 112, aff’g (1982), 2 C.R.R. 300; R. v. 974649 Ontario Inc., [2001] S.C.R. 575, 2001 SCC 81; United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Stillman, [1997] 1 S.C.R.  607; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Cook, [1998] 2 S.C.R. 597; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Grossi (1992), 133 A.R. 278; R. v. McIntosh (1999), 141 C.C.C. (3d) 97; Skogman v. The Queen, [1984] 2 S.C.R. 93; R. v. Barbeau, [1992] 2 S.C.R. 845; R. v. R. (L.) (1995), 100 C.C.C. (3d) 329; R. v. George (1991), 5 O.R. (3d) 144; R. v. Dawson (1998), 123 C.C.C. (3d) 385; R. v. Arviv (1985), 19 C.C.C. (3d) 395, leave to appeal refused, [1985] 1 S.C.R. v; R. v. Ertel (1987), 58 C.R. (3d) 252, leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Seaboyer, [1991] 2 S.C.R. 577; Schwartz v. The Queen, [1977] 1 S.C.R. 673; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Chaulk, [1990] 3 S.C.R. 1303; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 7 , 10( a ) , (b), 11( a ) , (b), 24 .

Criminal Code , R.S.C. 1985, c. C-46 , ss. 2  “justice”, 220 [repl. 1995, c. 39, s. 141], 252(1)(b) [repl. 1994, c. 44, s. 12], 255(3) [rep. & sub. c. 27 (1st Supp.), s. 36], 535 [idem, s. 96], 536, 537(1)(g), (i) [am. 1997, c. 18, s. 64], 540, 541, 541(5) [am. 1994, c. 44, s. 54], 542(1), 548(1) [rep. & sub. c. 27 (1st Supp.), s. 101], 577 [idem, s. 115].

Authors Cited

Alford, David G., et al.  Some Statistics on the Preliminary Inquiry in Canada.  Ottawa:  Department of Justice, 1984.

Canada.  Department of Justice.  Consultation Paper.  Do we still need preliminary inquiries?  Options for changes to the Criminal Code.  Ottawa:  Department of Justice Canada, 1994.

Freedman, Samuel.  “Admissions and Confessions”.  In Roger E. Salhany and Robert J. Carter, eds., Studies in Canadian Criminal Evidence.  Toronto:  Butterworths, 1972, 95.

Gold, Alan D., and Jill R. Presser.  “Let’s Not Do Away with the Preliminaries:  A Case in Favour of Retaining the Preliminary Inquiry” (1996), 1 Can. Crim. L.R. 145.

Greenspan, Edward L., and Marc Rosenberg.  “The Preliminary Inquiry”.  In Vincent M. Del Buono, ed., Criminal Procedure in Canada: Studies.  Toronto:  Butterworths, 1982, 263.

Martin, G. Arthur.  “Preliminary Hearings”.  In Special Lectures of the Law Society of Upper Canada, 1955.  Toronto:  Richard de Boo, 1955, 1.

Martin, John C.  Martin’s Annual Criminal Code 2002.  Aurora, Ont.:  Canada Law Book, 2002.

Ontario.  Criminal Justice Review Committee.  Report of the Criminal Justice Review Committee.  Toronto:  The Committee, 1999.

Ontario.  Royal Commission Inquiry into Civil Rights. Report of the Royal Commission Inquiry into Civil Rights, vol. 2, Report No. 1.  Toronto:  Queen’s Printer, 1968.

Pomerant, David, and Glenn Gilmour.  Working Document.  A Survey of the Preliminary Inquiry in Canada.  Ottawa:  Department of Justice Canada, 1993.

Stuart, Don.  Annotation on Mills v. R. (1986), 52 C.R. (3d) 1.

APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 177 Nfld. & P.E.I.R. 232, 26 C.R. (5th) 1, [1999] N.J. No. 210 (QL), dismissing the accused’s appeal from an order of O’Regan J.  Appeal dismissed, Iacobucci, Major, Binnie and Arbour JJ. dissenting.

David C. Day, Q.C., for the appellant.

Thomas G. Mills, for the respondent.

S. R. Fainstein, Q.C., and Peter De Freitas, for the intervener the Attorney General of Canada.

Robert Kelly, for the intervener the Attorney General for Ontario.

Darrin R. Davis, for the intervener the Attorney General of Manitoba.

Alexander Budlovsky, for the intervener the Attorney General of British Columbia.

Written submissions only by James A. Bowron for the intervener the Attorney General for Alberta.

The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Bastarache and LeBel JJ. was delivered by

The Chief Justice –

I.  Introduction

1                                   The issue in this case is whether a justice presiding at a preliminary inquiry has the power to exclude statements obtained in violation of the accused’s Charter  rights in assessing whether sufficient evidence exists to warrant committing the accused to trial.  

2                                   The appellant stands charged with three offences under the Criminal Code , R.S.C. 1985, c. C-46 , arising from a motor vehicle accident:  causing death by criminal negligence (s. 220); failure to stop at an accident scene (s. 252(1)(b)); and impaired driving (s. 255(3)).  The judge presiding over the preliminary hearing into the charges held voir dires to determine the admissibility of statements made by the appellant to the police while he was under arrest.  The appellant argued that these statements were  obtained by the police in a fashion infringing his rights under ss. 7 (right to life, liberty and security of the person), 10(a) (right to be promptly informed of reasons for arrest or detention), 10(b) (right to retain and instruct counsel without delay upon arrest or detention), and 11(a) (right to be informed of specific offence) of the Canadian Charter of Rights and Freedoms .

3                                   After completion of the Crown’s evidence on each of the voir dires, the appellant sought a declaration that the presiding judge constituted a “court of competent jurisdiction” under s. 24(1)  of the Charter  and could therefore rule on whether the police, in obtaining the statements of the accused, violated his rights or freedoms and, if so, whether this evidence should be excluded pursuant to s. 24(2).  The judge refused on the ground that, sitting in his capacity as a preliminary inquiry justice, he was not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2).  The question before us is whether he erred in doing so.

4                                   I conclude that the preliminary inquiry justice did not err in refusing to exclude the evidence for breach of the Charter .  The preliminary hearing is not a trial but simply a preliminary review to determine whether there is sufficient evidence to proceed to trial.  Whether admitting evidence obtained as a result of a Charter  breach would bring the administration of justice into disrepute is best determined at the time of trial, when all the relevant circumstances can be weighed by the judge, as mandated by s. 24(2).  The accused’s ability to apply for the exclusion of evidence under s. 24(2) at trial adequately safeguards his rights under the Charter .

II.  Constitutional and Statutory Provisions

5                                   Criminal Code , R.S.C. 1985, c. C-46 

535.  Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part, inquire into that charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

                                                                  .  .  .

537. (1) A justice acting under this Part may

                                                                  .  .  .

(g) receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them;

                                                                  .  .  .

(i) regulate the course of the inquiry in any way that appears to him to be desirable and that is not inconsistent with this Act;

                                                                  .  .  .

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.

                                                                  .  .  .                                   

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.

Canadian Charter of Rights and Freedoms 

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

III.  Judgments

6                                   In an oral decision, Power Prov. Ct. J., the judge presiding over the preliminary inquiry, dismissed the appellant’s application for a declaration that a preliminary inquiry judge or justice is a “court of competent jurisdiction” under s. 24(1) for the purpose of excluding Charter-offending evidence under s. 24(2).  In his view, the decisions of this Court in Mills v. The Queen, [1986] 1 S.C.R. 863, R. v. Smith, [1989] 2 S.C.R. 1120, and R. v. Seaboyer, [1991] 2 S.C.R. 577, compelled the conclusion that a preliminary inquiry justice is not a court of competent jurisdiction for this purpose.

7                                   The appellant brought an application before the Newfoundland Trial Division in the nature of certiorari and mandamus to direct the preliminary inquiry judge to conduct the inquiry under s. 24.  O’Regan J., in an oral judgment, dismissed this application on the ground that the authorities did not support it.  The Court of Appeal, Green J.A. dissenting, dismissed a further appeal from this order: (1999), 177 Nfld. & P.E.I.R. 232.

8                                   Gushue J.A. wrote the main reasons for the majority of the Court of Appeal.  He reviewed the current authorities and concluded that they supported the view that a justice on a preliminary hearing is not a court of competent jurisdiction for the purpose of excluding evidence.  He noted that the current state of the law seemed incongruous, given the sections of the Criminal Code  that define the authority of a  justice sitting on a preliminary inquiry (at para. 18):

The justice is granted the statutory authority to inquire into the charges that are “disclosed by the evidence” (s. 535), to use his or her discretion to receive evidence tendered by the prosecutor or the accused (s. 537(1)) and, with particular reference to admissions, confessions or statements made by an accused, a prosecutor is expressly granted the right to adduce such evidence if it is “by law admissible against him” (the accused).  Thus, in reaching his decision as to whether there exists sufficient evidence to require the accused to stand trial (s. 548(1)), it would appear that the justice must assess all of the admissible evidence placed before him. [Emphasis in original.]

9                                   Gushue J.A. noted the further anomaly that a preliminary inquiry justice can exclude statements because they are not voluntary, but cannot exclude them on the ground that they were obtained in violation of the Charter .  As a result, a justice on a preliminary inquiry may be required to commit the accused for trial on statements that will be ruled inadmissible at trial, even where no case against the accused would exist without this evidence. 

10                               Finally, Gushue J.A. speculated that the exclusion of evidence may not even constitute a Charter  remedy.  Rather than granting a remedy under s. 24(2), the  justice is merely electing not to rely on the impugned evidence for the purpose of committal.  Nevertheless, Gushue J.A. considered himself bound by the authority of this Court to hold that a preliminary inquiry justice has no power to exclude evidence on Charter  grounds. 

11                               Marshall J.A. concurred with Gushue J.A.  However, he disagreed with Gushue J.A.’s view that the result was anomalous.  To the contrary, he considered it entirely congruent and compatible with both the Criminal Code  and the Charter .  In Marshall J.A.’s opinion, s. 24(2) operates to exclude evidence only after “a comprehensive vetting of ‘all the circumstances’” (para. 100).  This can best be done at trial, where the judge has the fullest account of the relevant evidence.  By contrast, empowering preliminary inquiry justices to make this determination “risks inculpatory evidence being ruled inadmissible on a less than full appreciation of the facts.  Such happenings would be calculated to expose the justice system to disrepute, and endanger a concomitant diminution of confidence in the judiciary’s capacity to protect the public, and in the integrity of the Charter  and other laws of the state” (para. 100).

12                               Green J.A., dissenting, agreed with Gushue J.A. that not permitting a preliminary inquiry justice to exclude evidence on Charter  grounds was anomalous and incongruous and that excluding evidence should not be viewed as the grant of a Charter  remedy.  Unlike Gushue J.A., however, Green J.A. did not consider this Court’s previous decisions with respect to the exclusion of inadmissible evidence by a justice at a preliminary inquiry as binding.  The cases relied upon had not definitively resolved the issue and the obiter comments in these cases did not represent the fully considered opinion of the Court.

13                               From a practical perspective, Green J.A. was of the view that preliminary inquiries offered sufficient context for the decision to exclude evidence for Charter  breaches.  While this may result in the Crown leading more evidence than it otherwise would, this disadvantage is more than offset by the importance of not subjecting an accused to the expense, inconvenience and publicity of a trial where there is insufficient admissible evidence.  Moreover, he felt that the “only means of effective enforcement of the right to have Charter-offending evidence excluded for the purpose of resisting committal to trial is the exercise of the jurisdiction at the preliminary” (para. 69).  Green J.A. accordingly held that the preliminary inquiry justice is a court of competent jurisdiction to exclude evidence under s. 24(2)  of the Charter .

IV.  Issue

14                               Is a justice presiding at a preliminary inquiry a court of competent jurisdiction for the purposes of an application under s. 24(1)  of the Charter  to exclude evidence under s. 24(2)?

V.  Discussion

15                               With the enactment of s. 24  of the Charter , Parliament provided a mechanism for enforcing the rights and freedoms guaranteed by the Charter .  Section 24(1)  provides that anyone whose rights and freedoms under the Charter  are infringed or denied may apply to a “court of competent jurisdiction” for an appropriate and just remedy.  Section 24(2) complements this general remedial provision with more specific direction in cases where evidence is obtained in violation of Charter  rights.  It directs courts to exclude such evidence if, “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.  Since this remedy can issue only in “proceedings under subsection (1)”, it is similarly available only from a “court of competent jurisdiction”.

16                               Consequently, this appeal turns on the question of whether a preliminary inquiry justice is a court of competent jurisdiction under s. 24(1) for the purpose of excluding evidence under s. 24(2).  This issue is not novel.  The Court has considered the definition of “court of competent jurisdiction” on a number of occasions.  It has also addressed the power of preliminary inquiry justices to grant Charter  remedies – including the exclusion of evidence under s. 24(2) – in several of these decisions.  I propose to consider the existing jurisprudence, and then to apply the test for identifying a court of competent jurisdiction that emerges from these decisions. 

A.                               Prior Jurisprudence

17                               The test for identifying a court of competent jurisdiction under s. 24(1) originated in Mills, supra.  The issue before the Court in Mills was whether a judge or justice presiding at a preliminary inquiry was a court of competent jurisdiction for the purpose of determining whether an accused’s s. 11(b) right to be tried within a reasonable time was infringed and, if so, to stay the proceedings as a remedy.  Lamer J. (as he then was), with the agreement of the Court on this point, defined a “court of competent jurisdiction” as one that has: (1) jurisdiction over the person; (2) jurisdiction over the subject matter; and (3) jurisdiction to grant the remedy (p. 890).  Applying this test, the Court unanimously held that a preliminary inquiry justice is not a court of competent jurisdiction for the purposes of granting a stay under s. 24(1).

18                               This holding sufficed to dispose of the appeal.  However, the Court proceeded to consider the issue on appeal in the present case: the power of a preliminary inquiry justice to exclude evidence obtained in violation of Charter  rights under s. 24(2).  The majority of the Court, per McIntyre J., held that a preliminary inquiry justice is not a court of competent jurisdiction for this purpose.  McIntyre J. emphasized that the role of the preliminary inquiry justice is confined to assessing the sufficiency of the Crown’s case and consequently committing or discharging the accused.  This limited screening function, in his view, did not provide a sufficient jurisdictional foundation to permit a preliminary inquiry justice to embark on Charter  questions or to grant Charter  remedies, including the exclusion of evidence (at pp. 954-55):

He has no jurisdiction to acquit or convict, nor to impose a penalty, nor to give a remedy.  He is given no jurisdiction which would permit him to hear and determine the question of whether or not a Charter  right has been infringed or denied.  He is, therefore, not a court of competent jurisdiction under s. 24(1)  of the Charter .  It is said that he should be a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2).  In my view, no jurisdiction is given to enable him to perform this function.  He can give, as I have said, no remedy.  Exclusion of evidence under s. 24(2) is a remedy, its application being limited to proceedings under s. 24(1) .  [Emphasis added.]

19                               La Forest J., in a separate opinion, concurred with this view.  He added that the preliminary inquiry is not designed to engage in the balancing of factors demanded by the s. 24(2) remedy (at pp. 970-71):

... I agree with McIntyre J. that the preliminary hearing magistrate has no jurisdiction to exclude evidence under s. 24(2)  of the Charter .  While this power may seem similar to the magistrate’s duty regarding admissibility of evidence, what is involved is the granting of a remedy under s. 24(2).  That remedy, it should be observed, is to be exercised “having regard to all the circumstances”.  Those circumstances may again require more evidence than is presented at the preliminary hearing.  This evidence can be presented at trial.

20                               Three dissenting justices took the view that s. 24 did permit a preliminary inquiry justice to exclude evidence on Charter  grounds.

21                               In Seaboyer, supra, the Court affirmed the majority view in Mills that a preliminary inquiry judge has no power to exclude evidence on Charter  grounds under s. 24(2), again emphasizing the specialized function of the preliminary inquiry and the limits of its process (at pp. 638-39):

I see no reason to depart from the statement of McIntyre J. in Mills that the Criminal Code  does not permit a preliminary inquiry judge to determine whether a Charter  right has been infringed or denied.  Both statutory interpretation and policy support this view.  The Criminal Code  restricts the task of the preliminary inquiry judge to determining if there is a sufficient case to warrant prosecution.  While evidentiary rulings may be made in the course of discharging this function, they have no effect on the outcome of the trial or the accused’s guilt or innocence.  To discharge the function of determining if there is sufficient evidence to warrant committal it is sufficient to accept the rules of evidence as they stand; the rights of the accused do not require more at this stage.  As for policy, there is much to be said for leaving Charter  challenges in so far as possible to the trial judge.  The trial judge is likely to have a more complete picture of the evidence and its significance in the context of the case and is thus better situated to decide such questions.  Moreover, permitting constitutional challenges before the preliminary court judge is likely, as in this case, to produce interlocutory appeals on narrow issues which may take years to complete, during which time the trial judge is delayed.  All these reasons suggest constitutional questions are best left to the trial judge. [Emphasis added.]

22                               Mills and Seaboyer thus rejected the argument that a preliminary inquiry justice is a court of competent jurisdiction under s. 24(1) for the purposes of excluding evidence under s. 24(2).  This conclusion was, strictly speaking, obiter in both cases; nevertheless it stands as an authoritative legal statement of the existing general rule.  This, however, does not mean that the law is inevitably frozen.  New cases may bring considerations to light which favour revising the rule or recognizing exceptions to it.  Underlying principles or rules may have evolved, suggesting the rule should be adjusted.  Uncertainties may have arisen or the rule become unduly technical.  Any or all of these considerations may support reconsideration of an established general rule: see R. v. Bernard, [1988] 2 S.C.R. 833, per Dickson C.J. (in dissent but not on this point); R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. B. (K.G.), [1993] 1 S.C.R. 740. 

23                               It is in this spirit that I approach the appellant’s submission that the Court should revisit the general rule that a preliminary inquiry justice is not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2)  of the Charter .  This case brings before the Court a question hitherto not specifically explored – whether the general power of a preliminary inquiry justice to exclude confessions extends to exclusion on Charter  grounds.  It comes over a decade after Mills, during which time the test for “court of competent jurisdiction” under s. 24(2) has evolved into what is described in the companion case, R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 (“Dunedin”), as the functional and structural approach.  And it concerns a submission that strict application of the Mills rule to preliminary inquiry justices results in technical distinctions between what evidence the justice can and cannot exclude.  Against this background, I turn to the issue before the Court. 

B.                                Application of the Functional and Structural Test

24                               The issue before the Court is whether a preliminary inquiry justice is a  “court of competent jurisdiction” under s. 24(2) for the purpose of excluding evidence, in particular confessions, on grounds that they were obtained in breach of the Charter  and that their admission would bring the administration of justice into disrepute.

25                               In Dunedin, the Court elaborated on the “functional and structural” approach to identifying a court of competent jurisdiction.  For the purposes of this appeal, it suffices to set out the key elements of this approach.

26                               The starting point is the tripartite Mills test.  A “court of competent jurisdiction” is one that possesses jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction to grant the remedy.  Dunedin provides guidance on the third and final element of this test.  It clarifies that whether a court or tribunal possesses the power to grant the remedy sought is first and foremost a matter of discerning legislative intent.  The question in all cases is whether Parliament or the legislature intended to empower the court or tribunal to make rulings on Charter  violations that arise incidentally to their proceedings, and to grant the remedy sought as a remedy for such violations. 

27                               Absent express empowerment, this determination requires consideration of the function performed by the court or tribunal and the structure, powers and processes conferred on it by Parliament or the legislature.  This approach rests on the theory that where Parliament or a legislature confers on a court or tribunal a function that engages Charter  issues, and equips it with procedures and processes capable of fairly and justly resolving these incidental Charter  issues, then it must be presumed that the legislature intended the court or tribunal to exercise this power.  Distilled to a single statement, the test of power to grant the remedy sought can be stated as follows: is the court or tribunal suited to grant the remedy sought under s. 24 in light of its function and structure?

28                               In the present appeal, the jurisdiction of the preliminary inquiry justice over the parties and the subject matter is uncontested.  The sole issue in dispute is whether he also had the necessary power to grant the remedy sought (i.e. the exclusion of evidence obtained as a result of a Charter  breach).  The powers of a preliminary inquiry justice are entirely statutory, and therefore the power to grant the remedy sought must derive expressly or impliedly from its enabling legislation, namely Part XVIII of the Criminal Code .  Parliament did not expressly empower preliminary inquiry justices under the Code to exclude evidence obtained in violation of the Charter .  The question is whether Parliament conferred this remedial power by implication. 

29                               It is true that in this case, as in Dunedin, the relevant legislation predates the Charter .  Nonetheless, Parliament’s intention must be assessed in light of the new regime of rights and remedies ushered in with the Charter ’s enactment.  It is only in this manner that the purpose of the Charter  – as well as the mandates of the courts and tribunals in existence at its inception – can be meaningfully realized: Dunedin, at paras. 37-43.  The question remains whether the function and structure that Parliament bestowed upon the preliminary inquiry, and its silence on this issue following the Charter ’s enactment, lead to the inference that Parliament intended the presiding justice to exclude evidence on Charter  grounds.  

30                                The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial: Criminal Code , s. 548(1) ; Caccamo v. The Queen, [1976] 1 S.C.R. 786.  The preliminary inquiry is not a trial.  It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial.  Its paramount purpose is to “protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process”: Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105.  The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring the accused to stand trial.  (The trial judge cannot, with due respect to the contrary suggestion of Gushue and Green JJ.A., simply “choose not to” rely on offered evidence without first making a positive ruling against its admissibility.)

31                               Over time, the preliminary inquiry has assumed an ancillary role as a discovery mechanism, providing the accused with an early opportunity to discover the Crown’s case against him or her: Skogman, supra, at pp. 105-6.  Nonetheless, this discovery element remains incidental to the central mandate of the preliminary inquiry as clearly prescribed by the Criminal Code ; that is, the determination of whether “there is sufficient evidence to put the accused on trial” (s. 548(1)(a)).

32                               In support of this function, Parliament equipped the preliminary inquiry with a structure that shares broad similarities with that of the trial court.  It is conducted like a trial with regard to the presentation of evidence.  Further, the preliminary inquiry is a court of record, and evidence is taken under oath in the presence of the accused.  The accused has the right to cross-examine witnesses and respond to the Crown’s case.  The preliminary inquiry justice, in assessing the sufficiency of the Crown’s case, may rule on the admissibility of evidence.  Section 542(1) of the Code expressly includes statements made by the accused in the evidence that the Crown may call at a preliminary inquiry.  The traditional rules governing the admissibility of evidence apply.  Most notably, the preliminary inquiry justice may refuse to admit statements of the accused to persons in authority if they were not made voluntarily. 

33                               The preliminary inquiry is not a trial, however, and this distinction is reflected in the powers and procedure.  Significantly, the preliminary inquiry justice has no authority to grant remedies.  The justice cannot, for example, order the Crown to provide particulars or disclosure to the defence, stay proceedings for abuse of process, compel the production of third party records, or grant relief against informer privilege by recourse to the innocence at stake exception: R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Chew, [1968] 2 C.C.C. 127 (Ont. C.A.); R. v. Girimonte (1997), 121 C.C.C. (3d) 33 (Ont. C.A.); R. v. Richards (1997), 115 C.C.C. (3d) 377 (Ont. C.A.).  These powers are reserved for the trial judge.  The Crown also has a discretion to lead only a prima facie case at the preliminary inquiry and rarely calls all the evidence it plans to lead at trial: Caccamo, supra, at pp. 809-10.

34                               The appellant argues that recognizing the power to exclude Charter-offending evidence at the preliminary inquiry would bolster its function as a screening mechanism.  He relies in substance on the reasoning of Green J.A. (in dissent) in the Court of Appeal.  Green J.A. emphasized that the preliminary inquiry justice is directed under the Code to inquire into whether sufficient evidence exists to commit the accused to trial.  Pursuant to United States of America v. Shephard, [1977] 2 S.C.R. 1067, “sufficient evidence” under s. 548(1) of the Code means “sufficient admissible evidence”.  Further, the preliminary inquiry justice is granted the discretion to receive evidence tendered by the prosecutor or the accused, including admissions, confessions or statements that are “by law . . . admissible against [the accused]”: s. 542(1) (emphasis added).  This evidence-screening function, in Green J.A.’s view, requires the justice to examine all the evidence to determine whether it is relevant and, if so, whether it would be admissible against the accused at trial.  Thus, the exclusion of evidence “whether based on a Charter  breach or not, falls squarely within the basic purpose and function of a preliminary inquiry of screening evidence” (para. 51). 

35                               The appellant similarly argues that by conferring on preliminary inquiry justices the function of screening unmeritorious cases on the basis of admissible evidence (although Parliament actually uses the word “admissible” only in relation to admissions, confessions or statements), Parliament must be taken to have impliedly intended that preliminary inquiry justices have the power to decide Charter  issues incidental to that function, including the exclusion of evidence on Charter  grounds.  He argues that the basic function of the preliminary inquiry is frustrated if justices have no choice but to rely on evidence to commit the accused despite their conviction that this evidence would not be admitted against the accused at trial.  The result may be to subject an accused unnecessarily to the expense, inconvenience and indignity of a trial.

36                               On its face, this argument is strong.  Yet against it may be put the fact that the preliminary inquiry, as mandated by Parliament, is in essence a screening process  – its primary purpose is neither to determine rights, nor to grant remedies for their breach.  It is quite plausible to infer that while Parliament intended preliminary inquiry justices to have the power to determine the admissibility of evidence in aid of their screening function, this power stops short of permitting them to enter on Charter  questions.  In fact, preliminary inquiry justices have for almost two decades performed their screening functions without apparent difficulty, absent any power to exclude evidence on grounds of Charter  breach.  The possibility that some cases may pass the screening stage which might be dismissed, were Charter  exclusion possible, is not cause for serious concern, it is argued, since the offending evidence can be excluded at trial.  This possibility may be less disadvantageous than allowing preliminary inquiring justices general powers to exclude evidence for Charter  breaches.

37                               The disadvantages of the latter course are manifest.  First, recognizing a remedial jurisdiction in preliminary inquiry justices has the potential to transform the role Parliament intended this process to perform in the criminal justice system.  Instead of performing a preliminary screening function, the preliminary inquiry might become a forum for trying Charter  breaches and awarding remedies.  This function seems remote from that envisaged by Parliament for preliminary inquiries.

38                               Second, assigning this new role to preliminary inquiry justices might undermine the expeditious nature of the preliminary inquiry.  As discussed, the preliminary inquiry “is not a trial and should not be allowed to become a trial”: Patterson v. The Queen, [1970] S.C.R. 409, at p. 412.  Yet s. 24(2) frequently involves an extensive and comprehensive inquiry.  It requires the judge to determine the extent of Charter  protections, whether they were breached, and finally whether, in “all the circumstances” it is necessary to exclude evidence to preserve the repute of the administration of justice.  It seems reasonable to conclude that the Crown might be compelled to present a much fuller case – perhaps its entire case – in order to place “all the circumstances” before the court.  The accused might also present more evidence than is generally the case, since it is the accused who bears the burden of establishing a Charter  breach and showing that the threshold for exclusion is satisfied.

39                               Without seeking to overdramatize the matter, experience and common sense suggest that preliminary inquiries would become longer and more complex if applications to exclude evidence on Charter  grounds were part of their daily fare.  This in turn would increase the degree to which preliminary inquiry justices and trial judges are doing the same work, resulting in additional cost and delay.  In all probability, the preliminary inquiry would become less preliminary and more like a trial.

40                               Third, trial courts are better situated than preliminary inquiry justices to engage in s. 24(2) determinations.  This Court has repeatedly identified the trial court as the preferred forum for resolving Charter  issues: Mills, supra; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Garofoli, [1990] 2 S.C.R. 1421; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; O’Connor, supra.  This principle holds particularly true for s. 24(2) determinations.  The inquiry is potentially wide-ranging, sometimes complex.  Preliminary inquiry justices usually possess the expertise necessary to deal with Charter  issues; indeed sitting as trial judges they do so routinely.  However, it is the trial judge that will generally enjoy the fullest appreciation of “all the circumstances” relevant to a s. 24(2) determination.  At the preliminary inquiry, where evidence may be incomplete and the full circumstances unknown, this assessment may be difficult, or worse, erroneous.  The result may be to exclude evidence that would have been admitted in the light of the fuller picture presented at trial.  This in turn may lead to the premature dismissal of cases warranting prosecution at the preliminary stage.

41                               The question is at what stage of the proceedings it is best to assess whether “the admission of it in the proceedings would bring the administration of justice into disrepute”.  Clearly, there is much to be said in favour of leaving this assessment to the trial.  As L’Heureux-Dubé J. observed in R. v. Power, [1994] 1 S.C.R. 601, at p. 630:

It should also be underlined that evidence adduced at a preliminary inquiry is incomplete.  Indeed, a number of witnesses, who will be called to testify at trial, are not called at the preliminary inquiry and vice versa.  In my view, therefore, the evidence adduced at a preliminary inquiry does not properly reflect the whole of the evidence that will be presented at trial on the merits, nor does it give sufficient indication of the strength of the evidence that will be presented at trial.

The very nature of the preliminary inquiry suggests that the justice will have access to only a portion of the evidence that will be led at trial.  Consequently, the preliminary inquiry may provide an insufficient vantage from which to assess “all the circumstances” that must inform the s. 24(2) analysis. 

42                               Moreover, whether the admission of evidence will bring the administration of justice into disrepute is not a matter of scientific precision so much as an informed judgment based on the entire context of the trial.  While R. v. Collins, [1987] 1 S.C.R. 265, and subsequent cases, established the factors that must guide this determination, the ultimate decision depends to some degree on the judge’s assessment of their relative significance in the case at hand.  The trial judge evaluates these factors in the context of the trial as a whole and the requirements of essential fairness.  This endeavour may involve the weighing of evidence, assessments of credibility, and other such determinations that fall outside the narrow mandate and powers of a preliminary inquiry justice.  Justices at a further remove are also less likely to be able to evaluate the situation as well as the trial judge.  Thus appellate courts accord considerable deference to the trial judge’s conclusion on whether admission of a particular piece of evidence would bring the administration of justice into disrepute: R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis, [1997] 3 S.C.R. 341.  The same reasoning suggests that justices at the stage of preliminary screening may be similarly disadvantaged.

43                               Finally, Charter  litigation at the preliminary stage may ultimately have no practical effect beyond increasing the costs and delays associated with this process.  If the preliminary inquiry justice excludes evidence under s. 24(2), but still commits the accused to trial, his or her conclusion on this issue does not bind the trial judge.  When the Crown seeks to introduce the evidence at trial, the exact same matter will require litigation again.  Conversely, if the accused is discharged as the result of excluded evidence under s. 24(2), the Crown may still prefer a direct indictment against the accused pursuant to s. 577  of the Criminal Code  and proceed to trial regardless. 

44                               Several of the  intervening Attorneys General cautioned that the discretion of the Crown to prefer a direct indictment, now used sparingly, might be exercised routinely in situations where the preliminary inquiry justice’s decision to exclude evidence under s. 24(2) curtailed a prosecution before it reached trial.  Indeed, the Crown may have no other available option, since no right of appeal lies from the order made at the preliminary inquiry.  Consequently, regardless of the finding at the preliminary stage on the s. 24(2) issue, its effect in practice might often prove negligible.

45                               The lack of a statutory right of appeal from the ruling of a preliminary inquiry justice is particularly telling.  The majority of the Court in Mills, per McIntyre J., clearly stated that decisions respecting a Charter  remedy should be subject to review (at pp. 958-59):

[T]he Charter  is silent on the question of appeals and the conclusion must therefore be that the existing appeal structure must be employed in the resolution of s. 24(1) claims.  Since the Charter  has conferred a right to seek a remedy under the provisions of s. 24(1) and since claims for remedy will involve claims alleging the infringement of basic rights and fundamental freedoms, it is essential that an appellate procedure exist. There is no provision in the Code which provides a specific right to appeal against the granting, or the refusal, of a Charter  remedy under s. 24(1), but appeals are provided for which involve questions of law and fact.  The Charter, forming part of the fundamental law of Canada, is therefore covered and the refusal of a claim for Charter  relief will be appealable by a person aggrieved as a question of law, as will be the granting of such relief by the Crown.  The appeal will follow the normal, established procedure.  [Emphasis added.]

46                               Contrary to this principle, the Crown would lack a right of appeal from the decision of a preliminary inquiry justice excluding evidence under s. 24(2) and discharging the accused as a result.  Such a decision would amount to a final determination in favour of the accused.  The Crown’s power to proceed by preferred indictment in such circumstances cannot be accepted as a proper substitute for a statutory appeal mechanism.  This power is, and should be, exercised sparingly.  Its routine exercise by the Crown to nullify rulings by a preliminary inquiry justice on Charter  issues may carry serious ramifications.  As Marshall J.A. emphasized in the court below, resort by the Crown to its discretion under s. 577 as a matter of course “would be calculated to engender impressions that there were no teeth in the recourse given to individuals” (para. 101) to enforce their Charter  rights.  It would certainly do little to preserve the repute of the administration of justice in the eyes of the public it serves.  I have difficulty accepting that Parliament intended this result.  The more compelling conclusion is that Parliament intended Charter  issues to be resolved in a forum equipped with established and well understood avenues of appeal.  The trial court is the obvious choice for this task. 

47                               The appellant argues that deferring s. 24(2) issues to trial creates anomalies in the operation of preliminary inquiries, particularly in relation to statements of the accused.  Preliminary inquiry justices can generally exclude admissions, confessions or statements made by an accused on the grounds of inadmissibility at common law.  Indeed, Parliament directly alludes to this power in s. 542(1) of the Code.  This produces the apparent anomaly of a preliminary inquiry justice being empowered to exclude statements made by an accused because they are not voluntary (and thus inadmissible at common law) but not because they were obtained in breach of the Charter .  This anomaly, the appellant contends, is exacerbated by the fact that the same circumstances may be relevant to both the voluntariness of a statement and the alleged breach of the Charter .  Nonetheless, the preliminary inquiry justice, pursuant to the current rule, may consider the admissibility of the statement based on the former concern (voluntariness), but not the latter (Charter  violations).

48                               However, the fact that exclusion of evidence is involved should not blind us to the fundamental distinctions that exist between excluding evidence under the common law, on one hand, and excluding evidence under s. 24(2)  of the Charter  on the other.  Although these powers appear similar, only the latter involves an exercise of remedial authority – an authority with which a preliminary inquiry justice is not cloaked: Mills, supra, at pp. 970-71 (per La Forest J.).  Further, the common law confessions rule always results in the exclusion of offending evidence.  As such, it involves a relatively focussed inquiry into the immediate circumstances surrounding the alleged statements of the accused.  By contrast, the s. 24(2) inquiry transcends the immediate facts of the Charter  breach and embraces a much more comprehensive appraisal of the impact of the evidence on the fairness of the trial and the repute of the justice system: see R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, at para. 30.  As discussed, imposing this task on the preliminary inquiry may hamper or distort its intended function as an expeditious charge-screening mechanism.  At any rate, given the non-binding nature of evidentiary rulings at the preliminary inquiry, and the power of the Crown to prefer a direct indictment, the perceived benefits of litigating s. 24(2) issues at the preliminary stage may prove more illusory than real.

49                               The specialized and limited function of the preliminary inquiry leads me to conclude that Parliament, while furnishing this process with trial-like features, did not intend for it to engage in s. 24(2) considerations.  These issues are best reserved for the trial judge, who “is likely to have a more complete picture of the evidence and its significance in the context of the case and is thus better situated to decide such questions”: Seaboyer, supra, at p. 638.  Consequently, I see little reason to depart from the clear precedent to this effect established in Mills and Seaboyer.

VI.  Conclusion

50                               The preliminary inquiry justice, the reviewing judge and the Court of Appeal did not err in holding that the preliminary inquiry justice had no power to enter into the question of whether the statements taken from the appellant had been obtained as a result of Charter  breach and, if so, whether they should be excluded on this ground.  I would dismiss the appeal and remand the case for continuation of the preliminary inquiry.

The reasons of Iacobucci, Major, Binnie and Arbour JJ. were delivered by

Major J. (dissenting) –

I.  Introduction

51                               It is a tenet of Canadian law that an accused is entitled to make full answer and defence to a criminal charge at a preliminary inquiry (R. v. Pearson (1957), 117 C.C.C. 249 (Alta. S.C.), at p. 257, “[t]here can be no doubt that an accused is entitled to make a full answer and defence at a preliminary inquiry”; R. v. Ferrero (1981), 59 C.C.C. (2d) 93 (Alta. C.A.); R. v. Ward (1976), 31 C.C.C. (2d) 466 (Ont. H.C.), aff’d Ont. C.A., February 15, 1977).

52                               Although a defence can be made, the presiding justice cannot weigh its merits.  If, at the conclusion of the preliminary inquiry, there is admissible evidence which if believed would result in a conviction, the accused is committed for trial. 

53                               Another tenet of our law is that the Canadian Charter of Rights and Freedoms  rights belong to all Canadians.  They are not rights granted by the court.  The court’s function is to identify them.

54                               Obviously, if an accused has a Charter  right, it should be recognized at the earliest stage.  There are many rights for the accused at a preliminary inquiry.  The most obvious is the right to a fair and unbiased proceeding, and the acceptance of only legally admissible evidence.

55                               Historically, preliminary inquiries were conducted by untrained lay magistrates drawn as a mix from the community consisting of farmers, police officers, merchants and blacksmiths, whose time on the bench was brief and whose appointment to the bench was frequently the beginning of the journey to retirement.  The tribunals presided over by this group of people were variously referred to as “police courts”, “provincial courts” or “appearances before a Justice of the Peace”.  In 1968, Ontario’s Royal Commission Inquiry into Civil Rights criticized that “[i]n this Province we have an elaborate system of training for police officers in law and police duties, but ironically laymen are appointed to hold judicial office and receive no real opportunity for training” (Report of the Royal Commission Inquiry into Civil Rights, vol. 2, Report No. l, 1968, at pp. 519-20). 

56                               Today, although the Criminal Code , R.S.C. 1985, c. C-46 , technically permits a justice of the peace to conduct a preliminary inquiry (see s. 2 “justice” and s. 535 of the Code), “[a]s a matter of practice preliminary inquiries are usually conducted by provincial court judges” (Martin’s Annual Criminal Code 2002, at p. 907).  Provincial court judges are former lawyers with wide legal training and hear with few exceptions the majority of criminal cases in Canada. 

57                               Whatever considerations may have properly limited the presiding justice at preliminary hearings more than 50 years ago should be abandoned in favour of recognizing provincial court judges fully trained in the law as courts of competent jurisdiction to exclude certain evidence obtained contrary to s. 24(2)  of the Charter  at the first opportunity.

58                               In Mills v. The Queen, [1986] 1 S.C.R. 863, in obiter, a majority of the Court concluded that preliminary inquiry justices were not a court of competent jurisdiction for this purpose and accordingly should not have the jurisdiction to exclude evidence pursuant to s. 24(2)  of the Charter .  This conclusion has been followed in subsequent cases in Canadian courts.

59                               In this decision, I conclude the obiter in Mills is not binding.  There are sound reasons not to follow it.  These reasons conclude that a preliminary inquiry justice should have jurisdiction to exclude statements obtained contrary to the Charter , pursuant to s. 24(2).

II.  Application of the Functional and Structural Test

A.  Generally:  Part XVII of the Criminal Code 

60                               Only a “court of competent jurisdiction” has the power to exclude evidence pursuant to s. 24(2)  of the Charter .  This appeal, as noted, raises once again whether a preliminary inquiry justice is a “court of competent jurisdiction” for the purposes of excluding evidence pursuant to s. 24(2). 

61                               I agree with the functional-structural approach used to determine whether a court is a “court of competent jurisdiction” pursuant to s. 24(2), described in the companion case R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 (“Dunedin”).  I disagree with the application of the test to the present appeal.

62                               The functional and structural test revolves around “whether the legislator endowed the court or tribunal with the power to pronounce on Charter  rights and to grant the remedy sought for the breach of these rights” (Dunedin, supra, at para. 25).  As described in Dunedin, “[t]he paramount question remains whether the court or tribunal, by virtue of its function and structure, is an appropriate forum for ordering the Charter  remedy in issue” (para. 35).  To determine the function and structure of a court or tribunal, “the language of the enabling legislation” may provide guidance (Dunedin, at para. 46).

B.  Part XVIII of the Criminal Code 

63                               Preliminary inquiries are governed by Part XVIII of the Code.  Many statutory provisions in Part XVIII demonstrate that a preliminary inquiry justice has been provided with the power to determine the admissibility of evidence (ss. 535, 537, 540 and 548).  In United States of America v. Shephard, [1977] 2 S.C.R. 1067, Ritchie J. held that a justice is “required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction” (p. 1080 (emphasis added)). 

64                               Section 542 of the Code is at the heart of the present appeal.  Under s. 542, a prosecutor is only permitted to introduce any “admission, confession or statement made at any time by the accused that by law is admissible against him” (emphasis added).  There is no dispute that s. 542 of the Code requires a preliminary inquiry justice to exclude confessions under exclusionary rules at common law.  Under the common law, confessions that are not voluntary are inadmissible.

C.  Relatively Focussed Discrete Inquiry Versus Much More Comprehensive Appraisal

65                               To determine whether to exclude involuntary confessions that offend the common law, McLachlin C.J. concludes, a preliminary inquiry justice is engaged in a “relatively focussed inquiry” (para. 48).  That “relatively focussed inquiry” is contrasted with the “much more comprehensive appraisal” a judge is said to have to undertake in determining whether to exclude evidence – including confessions – for Charter  purposes (para. 48).

66                               A “much more comprehensive appraisal” is not necessarily required to determine whether statements that violate the Charter  should be excluded.  This Court has held that generally, if an accused’s statement is obtained in violation of Charter  rights, self-incriminating evidence will be excluded under s. 24(2) without the need for much further inquiry:  R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Cook, [1998] 2 S.C.R. 597.  For example, in Stillman, Cory J. held, at para. 119:

If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair.  The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice.  This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.  [Emphasis added.]

67                               Indeed, at times, it is considerably more challenging to appreciate and apply the common law confessions rule than to determine whether self-incriminating evidence should be excluded pursuant to s. 24(2).  In R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, Iacobucci J. held that “the confessions rule has a broader scope than the Charter ” explaining, at para. 30:

For example, the protections of s. 10 only apply “on arrest or detention”.  By contrast, the confessions rule applies whenever a person in authority questions a suspect.  Second, the Charter  applies a different burden and standard of proof from that under the confessions rule.  Under the former, the burden is on the accused to show, on a balance of probabilities, a violation of constitutional rights.  Under the latter, the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary.  Finally, the remedies are different.  The Charter excludes evidence obtained in violation of its provisions under s. 24(2) only if admitting the evidence would bring the administration of justice into disrepute:  see R. v. Stillman, [1997] 1 S.C.R. 607, R. v. Collins, [1987] 1 S.C.R. 265, and the related jurisprudence.  By contrast, a violation of the confessions rule always warrants exclusion.

68                               As part of the common law confessions rule, courts must consider whether police used trickery to obtain a confession.  In Oickle, supra, this Court held, at para.  65, that the more specific objective of the analysis “is maintaining the integrity of the criminal justice system” (emphasis added), a concept introduced by Lamer J. (as he then was) in Rothman v. The Queen, [1981] 1 S.C.R. 640.  In Rothman, Lamer J. held that “[i]t is of the utmost importance to keep in mind that the inquiry is not concerned with reliability but with the authorities’ conduct as regards reliability” (p. 691 (emphasis added)), concluding that “[w]hat should be repressed vigorously is conduct on [the authorities’ part] that shocks the community” (p. 697).  Building on the principle, in Oickle, Iacobucci J. held that “the confessions rule . . . extends to protect a broader conception of voluntariness ‘that focuses on the protection of the accused’s rights and fairness in the criminal process’” (para. 69 (emphasis added)). 

69                               Even if “a much more comprehensive appraisal” is required, there will be overlap between the “administration of justice” test used to determine whether evidence should be excluded pursuant to s. 24(2)  of the Charter  and the factors listed above.  Certain of the factors used in the common law confessions rule – “integrity of the criminal justice system”, “the authorities’ conduct”, “shocks the community” and “fairness in the criminal process” – will touch on whether the administration of justice would be brought into disrepute.  With such overlap, the voir dire needed to exclude a confession at common law will provide virtually all the requisite information for exclusion under the Charter .

70                               Sometimes, it is difficult to separate the analysis required to determine whether to exclude a confession pursuant to the common law and the Charter  analysis.  In R. v. Grossi (1992), 133 A.R. 278, Porter Prov. Ct. J. explained the legal gymnastics he was required to perform to separate the two (at p. 281):

The first question to be decided then is whether the statement by the accused is admissible under the common law rules without reference to the Charter .  If it is not admissible under the common law I need go no further.  In the course of such consideration I would have to weed out the aspect of recent judgments which relate to Charter  issues, ascertain the state of the common law as it relates to confessions and only then if the statement be thereby admissible move on to any Charter  considerations.  That of course is no easy task due to the entanglement of the two aspects of the law as it relates to confessions.  The common law in this area itself was on shifting ground prior to the advent of the Charter  and the sand has perhaps shifted further since that time.

71                               Frequently, the type of questioning used to determine the voluntariness of confessions will help to engage the “comprehensive appraisal” McLachlin C.J. requires.  In 1955, G. A. Martin, Q.C., suggested the manner in which defence counsel should elicit evidence of confessions during preliminary inquiries for common law purposes (“Preliminary Hearings” in the Special Lectures of the Law Society of Upper Canada, 1955).  He stated, at pp. 8-9:

Ascertain from the police officer who is called, or call him yourself, whether the accused made a statement to the police and whether it was made in writing.  Have it produced and marked as an exhibit. . . .  Enquire fully into all the circumstances surrounding that statement:  who was present, when it was taken,  how long the accused was questioned, what answers he made, what officers had him in their custody from the time of his arrest until the time the statement was finally made, and so forth, so that you will be able to go into the trial fully prepared and with confidence that you know the basis upon which the Crown is prepared to tender that statement.  [Emphasis added.]

72                               Counsel at preliminary inquiries enquire fully into “all the circumstances” surrounding confessions.  They do so in part to satisfy the requirement that a judge must examine “all the evidence concerning the circumstances under which the statement was made” before determining whether a statement is voluntary (R. v. McIntosh (1999), 141 C.C.C. (3d) 97 (Ont. C.A.), at p. 113).  If a preliminary inquiry justice considers “all the circumstances” in determining whether a statement is voluntary for common law purposes, those circumstances would shed much light, if not complete light, on the “much more comprehensive appraisal” McLachlin C.J. envisages.

73                               In her reasons, McLachlin C.J. draws a distinction between excluding evidence for common law purposes and excluding evidence pursuant to s. 24(2)  of the Charter  (para. 48).  She explains that “[a]lthough these powers appear similar, only the latter involves an exercise of remedial authority – an authority with which a preliminary inquiry justice is not cloaked” (para. 48 (emphasis in original)). 

74                               There should be no such distinction between excluding evidence for common law purposes and excluding evidence for Charter  purposes.  In both instances, the evidence is excluded.  Characterizing one as remedial and the other as not, as McLachlin C.J. holds, does not advance the inquiry.  If a confession is crucial to the Crown’s case, and the confession is excluded pursuant to common law rules of admissibility, the preliminary inquiry justice will discharge the accused.  In many ways, a discharge at a preliminary inquiry is the “ultimate” remedy.  A discharge at a preliminary inquiry is just as “remedial” as excluding evidence for Charter  purposes at trial.

75                               The rationale for the common law exclusionary rule is much the same as the “remedial” rationale for s. 24(2)  of the Charter .  In Rothman, supra, Lamer J. discussed the true reasons for which confessions are excluded under the common law.  At p. 688, he cited an article by Freedman C.J.M. (S. Freedman, “Admissions and Confessions”, in R. E. Salhany and R. J. Carter, eds., Studies in Canadian Criminal Evidence (1972), 95), where he wrote, at p. 99:

It is justice then that we seek, and within its broad framework we may find the true reasons for the rule excluding induced confessions.  Undoubtedly, as already stated, the main reason for excluding them is the danger that they may be untrue.  But there are other reasons, stoutly disclaimed by some judges, openly professed by others, and silently acknowledged by still others – the last perhaps being an instance of an ‘inarticulate major premise’ playing its role in decision-making.  These reasons, all of them, are rooted in history.  They are touched with memories of torture and the rack, they are bound up with the cause of individual freedom, and they reflect a deep concern for the integrity of the judicial process.  [Emphasis added by Lamer J.]

76                               The common law exclusionary rule has a strong remedial component.  With its deep concern for the integrity of the judicial process, evidence is excluded under the common law because the judicial process would otherwise suffer.  Its remedial component is just as strong as the remedial component of s. 24(2)  of the Charter .

D.  Purpose of the Preliminary Inquiry

77                               I disagree with the implications McLachlin C.J. draws from the manner in which the purpose of the preliminary inquiry is characterized.  She explains that “the preliminary inquiry has assumed an ancillary role as a discovery mechanism . . .” (para. 31).  The primary purpose of the preliminary inquiry, it follows, is to screen unmeritorious charges.  From that, she concludes, to permit wide-ranging Charter  issues to be canvassed at the preliminary inquiry would be inconsistent with the preliminary inquiry’s “intended function as an expeditious charge-screening mechanism” (para. 48).  Ultimately, McLachlin C.J. holds, a preliminary inquiry is not an appropriate forum for excluding evidence obtained contrary to the Charter .

78                               Ancillary or not, the discovery mechanism still exists in preliminary inquiries.  In Skogman v. The Queen, [1984] 2 S.C.R. 93, the majority held that “the preliminary hearing has become a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present” (p. 105).  Similarly, in R. v. Barbeau, [1992] 2 S.C.R. 845, Cory J. held, at p. 854:

It cannot be denied that the preliminary hearing permits the accused to discover the extent of the case against him.  It is true that in Caccamo v. The Queen, [1976] 1 S.C.R. 786, this Court made it clear that the Crown has a discretion to present only that evidence which makes out a prima facie case.  Nonetheless the fact remains that the preliminary does permit an accused person to explore to some extent the Crown’s case.

79                               Despite repeated attempts to limit that purpose, the preliminary inquiry has retained its discovery function (Department of Justice Canada, Consultation Paper, Do we still need preliminary inquiries?  Options for changes to the Criminal Code  (1994), at p. 4). 

80                               The discovery mechanism engaged by preliminary inquiries often will help shed light on many issues that are not strictly limited to determining whether “there is sufficient evidence to put the accused on trial” (s. 548(1)(a)), the test for committal McLachlin C.J. holds is the preliminary inquiry’s intended function.

81                               I assume, without agreeing, that the test for committal is the intended function of the preliminary inquiry and that a “much more comprehensive appraisal” is required to determine whether to exclude confessions obtained contrary to the Charter .  Assuming that to be correct, I conclude below that the discovery mechanism engaged by the preliminary inquiry is adequate to the task.

82                               McLachlin C.J. correctly states that some Crown counsel only introduce sufficient evidence to satisfy the test for committal.  However, if the Crown only introduces evidence to satisfy a bare minimum standard, counsel for the accused may “fill in the blanks” by calling its own witnesses.  Section 537(1)(g) of the Code states that a preliminary inquiry justice may “receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them” (emphasis added).  Section 541(5) of the Code requires a preliminary inquiry justice to “hear each witness called by the accused who testifies to any matter relevant to the inquiry . . .”.  In Ward, supra, Cory J. held that the predecessor to s. 541 of the Code requires a preliminary inquiry justice to hear an accused’s witnesses even if evidence introduced by the Crown satisfies the test for committal. 

83                               In the same vein, in R. v. R. (L.) (1995), 100 C.C.C. (3d) 329 (Ont. C.A.), Arbour J.A. (as she then was) held that “the admissibility of evidence at the preliminary inquiry is determined by the concept of relevance” (p. 336), subject to applicable exclusionary rules.  She held that relevance is not limited to the test for committal, reasoning that “[i]f relevance was governed solely by the narrow test for committal, not much would be left of either the statutory right to cross-examine the Crown’s evidence, or the right to call defence evidence” (p. 336).

84                               Defence counsel have recognized the important function afforded by the right to call witnesses:

While it has been said that the Crown is only required to call witnesses sufficient to obtain a committal for trial . . . [s]ection 469 [now s. 541] . . .  provides the accused with an opportunity to call those witnesses that the Crown has chosen not to call for the preliminary inquiry but would likely call at trial.  This section facilitates discovery of the Crown’s case and should not be overlooked.

(E. L. Greenspan and M. Rosenberg, “The Preliminary Inquiry”, in V. M. Del Buono, ed., Criminal Procedure in Canada: Studies (1982), 263, at p. 305.)

85                               Accordingly, if Crown counsel chooses to call only sufficient evidence to meet the Shephard test, s. 541 of the Code could do much to highlight “all the circumstances” surrounding an offence.  By highlighting “all the circumstances” surrounding an offence, a preliminary inquiry justice will virtually be compelled, let alone able, to engage in the “much more comprehensive appraisal” that McLachlin C.J. states a justice must undertake to determine whether to exclude evidence pursuant to s. 24(2)  of the Charter .

86                               McLachlin C.J. places strong emphasis on the “preliminary screening function” and the “expeditious nature” of the preliminary inquiry (paras. 37 and 38).  To permit preliminary inquiry justices to exclude evidence under the Charter  would result in “additional cost and delay” (para. 39), which she concludes would be inconsistent with the limited purpose of preliminary inquiries.  Likewise, many interveners in the present appeal argued that to permit Charter  issues to be decided at the preliminary inquiry stage would cause preliminary inquiries to become a greater burden on the already heavily taxed criminal justice system.

87                               As a general proposition, preliminary inquiries do not occasion inordinate delay.  The great majority of criminal trials are not preceded by a preliminary inquiry (Department of Justice of Canada, Working Document prepared by D. Pomerant and G. Gilmour, A Survey of the Preliminary Inquiry in Canada (April 1993), at p. 7).  Preliminary inquiries are usually only reserved for serious offences (see generally s. 536 of the  Code).  One study prepared by the Department of Justice demonstrated that “[e]ighty percent of preliminaries took one day or less of court time, and only . . . two percent . . . occupied six or more court days” (D. G. Alford, et al., Some Statistics on the Preliminary Inquiry in Canada (1984), at p. vii).  In 1999, Ontario’s Criminal Justice Review Committee concluded that “[i]n our experience, most preliminary inquiries do not consume an inordinate amount of court time” (Ontario, Criminal Justice Review Committee, Report of the Criminal Justice Review Committee (1999), at p. 90).

88                               There is nothing to suggest that if justices at preliminary inquiries are given the power to exclude confessions obtained contrary to the Charter , additional cost and delay will be occasioned.  One study demonstrated that in Ontario, 23,993 charges were disposed of in some way by a preliminary inquiry.  Of those charges, 43.1 percent were committed for trial, 4.5 percent were discharged, and 35.7 percent were withdrawn (Pomerant and Gilmour, supra, at p. 37, fn. 127).  As one article highlights, “[t]here is significant screening even with the current low standard” (A. D. Gold and J. R. Presser, “Let’s Not Do Away with the Preliminaries:  A Case in Favour of Retaining the Preliminary Inquiry” (1996), 1 Can. Crim. L.R. 145, at p. 148).  If it was recognized that preliminary inquiry justices had the power to exclude evidence obtained contrary to the Charter , the screening function would assume more significance (Gold and Presser, supra, at p. 148).  A discharge at the preliminary inquiry stage that manages to avoid a jury trial saves an enormous amount of otherwise wasted time and resources.

89                               If preliminary inquiry justices do not have the power to exclude evidence pursuant to s. 24(2)  of the Charter , fewer discharges will result.  Accused people will be needlessly committed to trial on the strength of evidence that will be excluded at trial.  Conversely, if preliminary inquiry justices are given the power to exclude evidence, more accused people will be discharged.  If such discharges are proper, that can hardly be a bad thing.  However, if an accused is improperly discharged, the Crown can always prefer a direct indictment pursuant to s. 577 of the Code and proceed to trial regardless of the preliminary inquiry justice’s decision.

90                               Equally, the power to exclude evidence could be of some benefit to the Crown in certain cases.  By permitting a preliminary inquiry justice to determine the Charter  issue, the justice could refuse to grant the remedy the accused seeks.  By having the Charter  question determined and rejected, an accused would be more likely to plead guilty and avoid a trial.  As Gold and Presser, supra, state (albeit in the course of addressing a higher test for committal):  “[a] more stringent test of committal would . . . relieve pressure on the trial courts by screening out unmeritorious cases, and by creating a situation in which the guilty accused is more likely to plead, having seen the strength of the Crown’s case and that a judge thinks he or she is likely to be convicted” (p. 170 (emphasis added)).

91                               If the preliminary inquiry justice decided to exclude evidence pursuant to s. 24(2)  of the Charter , the decision would not bind the trial judge.  The exercise might be analogous to a pre-trial conference, where a judge expresses his or her preliminary views of the merits of the proceedings.  Practically speaking, though, the decision would weigh heavily in the Crown’s decision to prefer an indictment.  It is telling that the Crown rarely (if ever) prefers indictments after a preliminary inquiry justice excludes confessions obtained contrary to the common law and discharges an accused.  The non-binding effect of the preliminary inquiry justice’s decision to exclude a confession under the common law is not thought to be a reason to repeal the power or that the “perceived benefits of litigating s. 24(2) issues at the preliminary stage may prove more illusory than real” (para. 48), quoting language used by McLachlin C.J. in the context of discussing excluding evidence pursuant to s. 24(2).

92                               Under the present preliminary inquiry system, where preliminary inquiry justices are not thought to have the power to grant Charter  remedies, preliminary inquiries routinely engage Charter-related evidence.  In R. v. George (1991), 5 O.R. (3d) 144, the Ontario Court of Appeal held that “[i]t is now recognized that an accused is entitled to cross-examine Crown witnesses at a preliminary hearing relating to such matters as Charter defences which are not of concern to the judge conducting the hearing” (p. 148).  The Ontario Court of Appeal, in R. v. Dawson (1998), 123 C.C.C. (3d) 385, confirmed its conclusion seven years later, when it held that “[i]t is now commonplace to have examinations of witnesses at preliminary hearings on all aspects of potential Charter  violations” (p. 390 (emphasis added)).  In Dawson, the Ontario Court of Appeal held that at preliminary hearings, defence counsel may obtain leave to cross-examine police witnesses on affidavits filed in support of a wiretap authorization.

93                                      In the present appeal, the Attorney General for Alberta recognized that it is often advantageous to probe Charter  issues at the preliminary inquiry:

Inquiry into Charter  issues at a Preliminary Inquiry can fulfill a useful purpose even though the presiding judge cannot grant a remedy for a perceived breach of Charter  rights.  Examination and cross-examination related to the potential breach may be useful in approaching that issue at trial.  It may also be useful for the parties to assess the potential for a successful Charter  application at the trial level.  This can be done without argument on the balancing issues that arise if a Charter  breach is found.

94                               Gold and Presser, supra, comment that the preliminary inquiry exercise enables the defence to “better prepare [its Charter ] applications in advance, thus saving time in the trial court” (p. 154).    

95                               An obvious question arises:  if Charter  evidence is already routinely investigated at the preliminary inquiry, why not permit the preliminary inquiry justice to rule on the Charter  issue?  If it is “useful” to examine Charter  issues in the abstract at the preliminary inquiry stage, it would be more useful to actually have the matter decided at the preliminary inquiry stage.  Moreover, to allow a preliminary inquiry justice to rule on Charter  issues would permit both Crown and defence counsel to better prepare their Charter  arguments and save time at trial.

96                               It is not supportable by logic or efficiency to permit a preliminary inquiry justice to determine the admissibility of statements for common law purposes, but not for Charter  purposes, when it is recognized that preliminary inquiry justices are armed with all the facts.  Parliament could not have intended such waste.

E.  Whether an Accused has a Constitutional Right to a Preliminary Inquiry

97                               The Ontario Court of Appeal has concluded that an accused does not have a constitutional right to a preliminary inquiry (R. v. Arviv (1985), 19 C.C.C. (3d) 395,  leave to appeal refused, [1985] 1 S.C.R. v, and R. v. Ertel (1987), 58 C.R. (3d) 252, leave to appeal refused, [1987] 2 S.C.R. vii).  However, that question was not raised in this appeal and should be left to be decided in the appropriate case.  In the interim, it is sufficient to note that whether a constitutional right to a preliminary inquiry exists or not, there is a statutory right to one and these reasons relate only to the right of an accused where a preliminary hearing is in fact being held.

III.  The Supreme Court of Canada’s Decision in Mills

98                               Having canvassed the good reasons for which a preliminary inquiry justice should have the power to exclude confessions obtained contrary to the Charter , I now consider whether this Court’s jurisprudence prevents such a sound result.

99                               The starting point is Mills, supra.  In Mills, the question at issue was whether a preliminary inquiry justice could grant a stay of proceedings pursuant to s. 24(1)  of the Charter  where an accused’s s. 11(b) right to be tried within a reasonable time was infringed.  However, McIntyre J., for the majority, did not limit his analysis to s. 24(1) .  In the course of his opinion, he went on to consider whether a preliminary inquiry justice would have jurisdiction to exclude evidence pursuant to s. 24(2)  of the Charter .  He held, at pp. 954-55:

It is said that [a preliminary inquiry justice] should be a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2).  In my view, no jurisdiction is given to enable him to perform this function.  He can give, as I have said, no remedy.  Exclusion of evidence under s. 24(2) is a remedy, its application being limited to proceedings under s. 24(1).

100                           In a separate opinion, La Forest J. agreed that a preliminary inquiry justice cannot exclude evidence pursuant to s. 24(2).  He held that while the power to exclude evidence under s. 24(2) “may seem similar to the magistrate’s duty regarding admissibility of evidence”, what is involved in the s. 24(2) analysis is the “granting of a remedy” (p. 970) – a remedy that must be exercised “having regard to all the circumstances”, which, in La Forest J.’s view, “may again require more evidence than is presented at the preliminary hearing” (pp. 970-71).

101                           Once Mills was decided, this Court has continued to follow its dicta that a preliminary inquiry justice cannot exclude evidence pursuant to s. 24(2).  For example, in R. v. Seaboyer, [1991] 2 S.C.R. 577, McLachlin J. (as she then was) held, at pp. 637-38:

In Mills this Court found that a justice presiding over a preliminary inquiry does not have the jurisdiction to grant a remedy under s. 24  of the Charter  because a preliminary inquiry is not a “court of competent jurisdiction” under that section.  The majority held that the magistrate sitting on a preliminary inquiry is not a court of competent jurisdiction because the Criminal Code  gives the magistrate “no jurisdiction which would permit him to hear and determine the question of whether or not a Charter  right has been infringed or denied”. . . .  [Emphasis added.]

102                           In Seaboyer, the central question was whether a preliminary inquiry justice had jurisdiction to determine the constitutionality of legislation under s. 52  of the Constitution Act, 1982 .  As in Mills, the Court’s analysis of s. 24(2) was obiter.

IV.  Is the Obiter in Mills Binding?

103                           In the present appeal, it was urged that the obiter in Mills should be considered binding because the Court expressed an opinion on a matter that was fully argued.  The point emerges from decisions like Schwartz v. The Queen, [1977] 1 S.C.R. 673, where Martland J. felt he should deal with an obiter matter because it was “fully argued” before the Court and because it was “desirable that an expression of opinion on this point by this Court should be made” (p. 695).

104                           In fact, the s. 24(2) question was never fully argued in Mills.  The Schwartz principle does not apply.  The conclusion is explained below.

105                           In Mills, four courts issued reasons for decision:  the Ontario Provincial Court, the High Court of Justice, the Ontario Court of Appeal, and the Supreme Court of Canada.  The Provincial Court judge’s reasons for decision are replete with references to s. 24(1)  of the Charter  rather than s. 24(2).  His reasons for judgment ((1982), 2 C.R.R. 300) specifically state, at p. 309:  “[s]ection 2 [i.e. s. 24(2)  of the Charter ] is not applicable to this particular application” (emphasis added).  Likewise, the High Court of Justice’s reasons ((1983), 40 O.R. (2d) 112) do not mention s. 24(2).  Finally, the Ontario Court of Appeal’s short endorsement ((1983), 43 O.R. (2d) 631), states that the court preferred “not to express an opinion, in this case, on this question of jurisdiction” (pp. 631-32).  The various reasons for decision demonstrate that a preliminary inquiry justice’s jurisdiction to exclude evidence pursuant to s. 24(2) was simply not a live issue in the courts below.

106                           The question was not live at the Supreme Court of Canada, either.  A review of the parties’ written representations demonstrates that s. 24(2) was not argued by the parties, never mind “fully argued” in accordance with Schwartz.  The accused’s 46-page factum in Mills makes no reference to s. 24(2)  of the Charter .  The narrow issue, as framed by counsel for the accused, was whether a “judge or justice presiding at a preliminary inquiry a court of competent jurisdiction for the purposes of an application under section 24(1)  of the Charter  where the application alleges a breach of section 11(b) rights” (p. 12).  No mention is made of s. 542 of the Code, the statutory provision at the heart of the present appeal.

107                           The Crown’s factum in Mills was an even lengthier tome, running some 70 pages long.  It frames the narrow issue in identical terms to the accused’s, and fails to mention s. 542 of the Code.  The Crown’s factum refers to s. 24(2)  of the Charter  in a grand total of two paragraphs.  Ironically, in one paragraph, the Crown argued that a preliminary inquiry justice should have the jurisdiction to exclude evidence pursuant to s. 24(2)  of the Charter .  The paragraph states:

The Respondent [i.e. the Crown] points out that the position taken above [i.e. to the effect that a preliminary inquiry justice has no jurisdiction pursuant to s. 24(1)  of the Charter ] does not foreclose the availability of all s. 24 relief at the preliminary inquiry.  For example, a justice conducting a preliminary inquiry has the jurisdiction under Part XV of the Code to make rulings on the admissibility of evidence; consequently, he could under s. 24(2)  of the Charter  exclude evidence in the appropriate cases.  This is an example of how the Charter  enforcement provisions plug into the existing judicial formats and procedures.  [Respondent’s factum, p. 33, at para. 45]

108                           To summarize, in Mills, none of the courts below the Supreme Court of Canada considered whether a preliminary inquiry justice has jurisdiction to exclude evidence pursuant to s. 24(2)  of the Charter .  One court expressly stated that s. 24(2) was not at issue, while the Ontario Court of Appeal declined to consider the question.  Likewise, the parties’ written submissions at the Supreme Court of Canada fail to address the question.  The one specific reference to a preliminary inquiry justice’s jurisdiction to exclude evidence pursuant to s. 24(2)  of the Charter  is made by the Crown in one paragraph:  a paragraph that argues that a justice in fact does have jurisdiction to exclude evidence pursuant to s. 24(2).

109                           The obiter analysis in Mills was not fully argued at the Supreme Court of Canada.  The Court’s analysis should not be treated as an authoritative and binding statement of the law in accordance with Schwartz.  The Court’s analysis was solely obiter, a house of cards upon which future decisions were built.  Finally, the issue squarely before the Court in Mills, i.e., the power of a preliminary justice to stay proceedings, was different from the issue addressed in obiter, i.e., the power to exclude evidence.

110                           A stay is a final, binding decision, akin to an acquittal, subject only to appeal (see R. v. Jewitt, [1985] 2 S.C.R. 128).  In contrast, a decision to exclude evidence at the preliminary inquiry has effect only in that proceeding, and assuming the accused is committed for trial, does not bind the trial court nor does it bind the Crown from proceeding by indictment if there is no committal.  In short, nothing in Mills compelled the conclusion reached in obiter with respect to s. 24(2).

V.  Assuming the Court’s Obiter Analysis in Mills is Binding, Should it be Overruled?

111                           In this part of the reasons, it is assumed that the Court’s obiter analysis of s. 24(2)  of the Charter  in Mills represented a fully argued and authoritative principle of law.  On this assumption, I consider whether there are reasons to depart from the obiter rule.  Until now, the s. 24(2) analysis in Mills was never seriously challenged.

112                           In R. v. Bernard, [1988] 2 S.C.R. 833, Dickson C.J. explained the circumstances under which the Court should overrule a previous decision.  In Bernard, Dickson C.J. held that “[t]here must be compelling circumstances to justify departure from a prior decision” (p. 849), and set out a number of factors to consider.  A few years later, Lamer C.J. recognized that the factors in Bernard “were not held to be a comprehensive list nor was it claimed that they must all be present in a particular case to justify overruling a prior decision” (R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1353).

113                           In addition to the guidance provided in Bernard, it is significant that the seven-member Court in Mills was divided four to three on this portion of the judgment.  In the 15 years since Mills was decided, and for the reasons previously outlined, it is my opinion that, to the extent Mills holds that the provincial court and its members are not courts of competent jurisdiction for purposes of excluding certain evidence obtained contrary to s. 24(2)  of the Charter , it should be overruled.

A.  The Change is Incremental

114                           In a number of decisions, the Supreme Court of Canada has considered whether incremental changes should be made to the common law.  Much of the analysis is helpful to determine whether incremental changes should be made to Charter  jurisprudence.  In determining whether to change the common law, the Court has shown itself to be willing to do so, in part, where “the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances” (Watkins v. Olafson, [1989] 2 S.C.R. 750, at p. 760, per McLachlin J.).

115                           In the present appeal, the narrow change to the obiter in Mills is a slow and incremental one.  In many respects, to permit statements obtained contrary to the right to counsel to be excluded pursuant to s. 24(2)  of the Charter  is a mirror image of what preliminary inquiry justices are already required to do when they exclude an involuntary confession under the common law.  Indeed, because all aspects of all Charter  violations are already explored at the preliminary inquiry, an arguable case could be made for the proposition that a preliminary inquiry justice should be permitted to exclude evidence from all Charter  violations (and not just self-incriminating statements obtained contrary to the Charter ) pursuant to s. 24(2).  The narrow ambit of this decision simply extends “an existing principle to new circumstances”. 

B.  The Decision has been Attenuated by Subsequent Decisions

116                           In Bernard, supra, Dickson C.J. recalled that the Court has held that where a decision has been attenuated by subsequent decisions, it may be appropriate to overrule the earlier decision (pp. 855-56).  As well, academic criticism may be considered as Dickson C.J. did in Bernard.

117                           Mills has been subject to criticism.  In a case annotation published shortly after Mills was decided ((1986), 52 C.R. (3d) 1), Professor D. Stuart stated, at pp. 7-8:

What is troublesome, however, is the majority conclusion reached by McIntyre J. and La Forest J. that a justice at the preliminary inquiry cannot exclude evidence pursuant to s. 24(2) by reason of a Charter  violation in the obtaining of that evidence.  Although the justice’s function is restricted to determining whether there is sufficient evidence to warrant a committal for trial, this power has traditionally and consistently been interpreted as referring to legally admissible evidence.  The voluntariness of admissions and other evidentiary issues which can result in exclusion have always been viewed as part of the justice’s function.  While it may be justifiable to remove some Charter  issues from the scope of the justice’s consideration, those which relate directly and specifically to the admissibility of evidence seem appropriately to fit within the justice’s function.  This is particularly true when one remembers Estey J.’s admonition in Skogman . . . in which he stressed the importance of the justice’s role in ensuring that accused persons not be subjected to the rigours of the trial process and the resources of the state when available admissible evidence does not warrant it.  The explanation offered by McIntyre J., which links the application of s. 24(2) to “proceedings under s. 24(1)” . . ., is a tenuous thread with which to sew up this issue.  The notion of committing on inadmissible evidence is a strange one.

118                           Certain illogical implications stem from Mills.  For example, suppose two accused persons, A and B, are charged with the same indictable offence, after which a plain, serious and obvious Charter  violation has occurred.  A elects to forego a preliminary inquiry, choosing instead to be tried by a provincial court judge, who is required to apply Charter  remedies and may exclude evidence pursuant to s. 24(2)  of the Charter .  On the afternoon of the same day, B appears before the same provincial court judge for a preliminary inquiry hearing.  The judge is prohibited from ruling on Charter  violations, so the violations found in A’s morning trial must await trial in B’s case, where a different judge will presumably exclude evidence in the same way it was excluded for the other accused.  Nothing is achieved by the process, other than wasting judicial time and resources, and delaying the Charter  remedies to which the accused is entitled.  One judge commented on the anomaly, wondering whether a provincial court judge is required “to admit such evidence at the preliminary knowing full well that it will have to be excluded at trial” (Grossi, supra, at p. 281). 

119                           Finally, as previously explained, Mills has been attenuated by the tendency to have all aspects of potential Charter  violations explored at a preliminary inquiry, even where the Crown’s case satisfies the test for committal (R. (L.), supra; Dawson, supra).

C.  The Change Reflects a Better Understanding of the Charter 

120                           If this Court’s understanding of the Charter develops over time, changes should be made to rules that are inconsistent with that present understanding.  The analysis is closely related to the idea that where a decision has been attenuated by subsequent decisions, it may be appropriate to overrule the decision.

121                           In 1986, when Mills was decided, s. 24(2) was not yet well understood.  This Court’s first ruling on s. 24(2)  of the Charter  which was in its infancy occurred one year before Mills, in R. v. Therens, [1985] 1 S.C.R. 613.  Important cases on the meaning of s. 24(2) like R. v. Collins, [1987] 1 S.C.R. 265, had not yet been decided.  All of which may explain the Court’s apprehension in 1986 in moving too quickly to recognize provincial courts as courts of competent jurisdiction for purposes of applying Charter  remedies.

122                           Today, with close to 20 years of case law on the issue of whether evidence should be excluded pursuant to the Charter , the rules are much better understood.  Guided by this substantial case law, preliminary inquiry justices are well placed to decide whether to exclude evidence pursuant to the Charter  in a fair manner that corresponds to the law.

123                           Distilled to the narrow exception carved out in these reasons – self-incriminating statements obtained contrary to the Charter  – our understanding of s. 24(2) has substantially developed since 1986, when Mills was decided.  As previously mentioned, this Court has held that generally, if an accused’s statement is obtained in violation of Charter  rights, self-incriminating evidence will be excluded under s. 24(2) without the need for much further inquiry.  The obiter analysis of s. 24(2) in Mills should be modified to comply with our present understanding of the circumstances under which self-incriminating evidence is excluded pursuant to s. 24(2)  of the Charter .

VI.  Conclusion

124                           I conclude that a preliminary inquiry hearing, by virtue of its function and structure, is an appropriate forum for excluding statements obtained contrary to the Charter .  At preliminary inquiries, counsel routinely investigate Charter  issues not strictly related to the test for committal, largely because Parliament did not intend relevant questions to be limited to the test for committal.  Section 542 of the Code requires preliminary inquiry justices to be satisfied beyond a reasonable doubt that confessions are voluntary.  In determining whether a confession is voluntary, justices look at all the circumstances.  In so doing, preliminary inquiry justices become sufficiently informed to determine Charter  violations and to determine whether self-incriminating evidence should be excluded pursuant to s. 24(2)  of the Charter . 

125                           Consequently, I would allow the appeal.

Appeal dismissed, Iacobucci, Major, Binnie and Arbour JJ. dissenting.

Solicitors for the appellant:  Lewis, Day, St. John’s.

Solicitor for the respondent:  The Department of Justice, St. John’s.

Solicitor for the intervener the Attorney General of Canada:  The Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of Manitoba:  The Department of Justice, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia:  The Ministry of the Attorney General, Vancouver.

Solicitor for the intervener the Attorney General for Alberta:  The Department of Justice, Edmonton.