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Scrapping prelims won’t fix trial delays, critics say
By Cristin Schmitz
March 10 2017 issue

Criminal law professor Lisa Silver, seen above at the University of Calgary, suggested that the main justice system players should collaborate in order to devise strategies for combatting delays. [Christina Ryan for the Lawyers Weekly]

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Mounting national pressure to reduce court delays by scrapping the preliminary inquiry is diverting attention away from more effective solutions, critics say.

In the wake of full Crown disclosure and more rigorous charge screening over the past 25 years, many provinces and judges have challenged the continuing utility of the preliminary inquiry, most recently in separate letters sent to Ottawa by Ontario Attorney General Yasir Naqvi, and by Manitoba Attorney General Heather Stefanson and her province’s three chief justices.

Citing the need for “bold changes to speed up and simplify the court process,” Naqvi last month called on federal Justice Minister Jody Wilson-Raybould to amend the Criminal Code to “substantially” limit the use of preliminary inquiries for all criminal cases, except murder and the serious indictable offences mentioned in s. 469 of the code, such as treason. For its part, Manitoba proposed last December to launch a four-year pilot project. It has asked Ottawa to amend s. 536 of the code to remove the ability to elect a preliminary inquiry from people charged with an indictable offence with a sentence of less than 10 years and, for those charged with higher-penalty offences, to replace the preliminary election process with an out-of-court discovery process presided over by an official, which can be ordered by a pre-trial judge at his or her “complete discretion.”

For her part, Wilson-Raybould said through a spokesperson she is keeping an open mind on the proposals and is “willing to work collaboratively with the provinces to reduce delays, including possible reforms to the use of preliminary inquiries.”

The recent publicity has triggered welcome debate within the profession about how to eliminate undue delay and the “culture of complacency” the Supreme Court deplored last year in its speedy trial blockbuster, R. v. Jordan, said Lisa Silver, a University of Calgary criminal law professor who has studied the preliminary hearing.

“To just point at one thing is not going to help,” she warned. “The government has to be looking at this in a long-term way, instead of a short-term way.”

Silver suggested that the main justice system players — such as Crowns, defence, government officials and the courts — should collaborate and consult in order to urgently devise multi-pronged strategies for combatting delays. In doing so, they should take a broad and holistic view of the criminal justice system’s problems and their causes (including the Criminal Code’s outdated general part) — rather than focusing on the preliminary hearing — which still has its uses.

“I’m not suggesting there shouldn’t be a discussion about what to do with the prelim, but it has to be in the context of everything,” Silver said.

Toronto defence counsel Anthony Moustacalis, the president of the Criminal Lawyers’ Association of Ontario, said there is no empirical proof that eliminating or restricting preliminary inquiries will reduce court delays. “If you look at Stats Canada [data] most preliminary hearings are one to two days. Out of 350,000 completed matters that Stats Canada shows,…approximately 9,000 go by way of preliminary hearing and out of those preliminary hearings it’s something like 1,000 that cause the case” to go over the 30-month ceiling set by the Supreme Court for superior trial courts, he said. “The other thing…that people forget is that preliminary hearings do assist in the narrowing of issues, and in the orderly presentation of superior court trials.”

Moustacalis suggested there are effective delay reduction measures that governments can and should implement right now. They include: filling the many long-standing vacancies on the superior trial courts; consistently and adequately funding the justice system; adopting technology to save time and improve efficiency, for example, enabling court dates to be set electronically; eliminating ill-conceived mandatory minimum penalties (MMPs) which generate fewer guilty pleas and more trials; and diverting minor cases from the criminal justice system.

“You need more money, and you need to get rid of cases that are clogging the system that are really just petty crimes that take up too much time and can be dealt with in a much better way,” Moustacalis argued.

He welcomes Ottawa’s ongoing review of the handling of minor justice offences, such as bail and probation breaches.

“They take up 20 per cent of the docket in the provincial courts across this country and they cost the system probably somewhere close to three-quarters of a billion dollars, and they are all cases that could be dealt with in a way other than prosecuting and getting convictions that result in anywhere from no jail to a few days in jail,” he said. “Divert them. Make them ticketable offences — treat them…more on the regulatory side.”

He said the criminal justice system has also failed to come to grips with the 80 per cent of accused he estimates suffer from mental health problems and/or drug and alcohol addiction. “What they should be doing…is eliminating charges on the prosecutorial side involving marginalized people with medical and drug addiction problems and you’ll have more than enough space [on the court docket],” he advised.

However Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal is convinced a substantial number of cases in his province would get to trial much faster if access to the preliminary were restricted as proposed by he and his counterparts on the Court of Appeal and provincial court and by Manitoba’s attorney general.

The chief justice said many cases that came to his court, post-Jordan, had spent 18 to 28 months in provincial court before they completed the preliminary process (Jordan sets a presumptive 18-month time limit from charge to the end of trial in provincial court, and 30 months for cases tried in superior court following a preliminary hearing.)
“We will, at least by half, improve the speed with which we’re dealing with things,” he estimated.

“We are not saying,” he stressed, that “there aren’t benefits to defence counsel with the preliminary inquiry. There are. But the question has to be asked: do those benefits still outweigh the price that we are paying in delay?”

Jordan instructs that there is a need to revisit practices, rules and procedures that inhibit the prompt adjudication of cases, he noted. “What we are talking about here…is the broader issue of access to justice because delay certainly impacts upon the accused — that’s critical. But we’re also talking about…victims in sexual assault cases — complainants who are having to testify twice. We are talking about family members. We’re talking about general witnesses whose memory and recollection starts to get foggy. We are talking about the physical forensic evidence. All of that is potentially compromised.”

Chief Justice Joyal said he doesn’t take lightly the primary charge-screening function of the preliminary hearing. This function may take on particular importance in politically or emotionally charged cases where there may be pressure to bring someone to trial. The preliminary certainly was critical for Susan Nelles, a nurse at Toronto’s Hospital for Sick Children accused of murdering four babies in her care, who was discharged for lack of evidence after a sensational preliminary hearing in 1981.

Chief Justice Joyal called Nelles an “isolated case.” He added, “If the Crown is overcharging, if the Crown is overreaching, or if there is a political aspect to something, there will be exposure. That will become apparent pretty quickly through the processes of not only the court, but also acquittals and trials which will come within a quicker period of time.”

Wilson-Raybould said through a Department of Justice spokesperson that “preliminary inquiry reform is a divisive issue and has been for years, including among the provinces.”

She noted the Liberal government “is committed to an evidence-based approach to ensuring a just and efficient criminal justice system. Currently, a committee made up of members of the judiciary, senior federal and provincial justice officials, as well as members of the private bar, is studying the prevalence of use of preliminary inquiries in Canada and their actual impact on the trial system. The Senate Committee on delays is expected to release its final report in March 2017 and may also comment on the issue.”

The Justice minister also highlighted Statistics Canada data from 2014-2015 indicating that of approximately 328,000 cases completed in criminal courts in Canada each year, preliminary inquiries are scheduled or held in only 9,179 (or 2.7 per cent). “I am listening and keeping an open mind on the subject,” she remarked by e-mail.

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