Is a preliminary inquiry judge entitled to exclude evidence under s. 24(2) of the Criminal Code?

The view that the right to exclude evidence under s. 24(2) should be an exception to that general rule was not overlooked in Mills v. R. It is expressly rejected by the majority. It is articulated in the minority judgment of Lamer J. at pp. 41-42 C.R. in these terms: I agree that a judge presiding at a preliminary inquiry is not a court of competent jurisdiction for the purpose of granting a remedy under s. 24(1). This finding is subject to one exception however. I am of the view that the preliminary inquiry judge is a court of competent jurisdiction for making a finding under s. 24(1) as regards a violation for the purpose of excluding evidence under s. 24(2). The purpose of a preliminary inquiry is to determine whether there is admissible evidence that is sufficient to put the accused on trial. That is the judge’s sole function. But in discharging this function the judge must address not only the probative value of evidence but also its admissibility in law.

My view of the opposing arguments is immaterial. The majority judgments in Mills v. R. are binding upon both myself and the learned provincial judge. In light of the breadth of the language used in the majority judgments, and the fact that they deal expressly with (and reject) an exception in the case of the exclusion of evidence and the effect of s. 52 of the Constitution Act, 1982, Mills v. R. cannot be distinguished.