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Getting rid of some preliminary hearings could unclog courts: Manitoba judges

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WINNIPEG - Manitoba's top judges say they want to unclog the province's courts and get cases to trial sooner by possibly eliminating some preliminary hearings.

Glenn Joyal, chief justice of the Court of Queen's Bench, said it's ridiculous that a case that could go to trial in eight months takes four years. It can take up to two years before a preliminary hearing is complete, he said.

"That means before the matter gets its trial-by-jury in our court, some 18 months elapse where, in many instances, an accused person remains in custody, where witnesses' memories forget, where victims' families are left in a limbo not knowing what the result will be," Joyal said at a news conference Friday.

"Can you justify a system where a case that could conclude in eight months, concludes sometimes in a period of up to three to four years?

"I say no."

Manitoba's top three judges laid out a series of initiatives Friday to try to speed up the course of justice. The judges also took aim at the adversarial element in child protection cases. They argue they would rather see a more holistic approach that would involve greater support for families rather than simply ruling on who a child's guardian should be.

The judges have formed a committee to design pilot projects to reduce conflict in child protection cases and another to consider reforming or eliminating preliminary hearings.

The idea of doing away with most pre-trial inquiries isn't new. Former federal justice minister Vic Toews said he didn't see the value in them when he floated the idea behind closed doors in 2006. Toews now sits as a Manitoba judge. Last year, Alberta's justice minister called preliminary inquiries in criminal cases a "waste of courts’ time" and urged Ottawa to consider doing away with them with few exceptions.

Defence lawyers have argued the hearings are vital to help prevent miscarriages of justice or wrongful convictions.

But Ken Champagne, chief judge of the provincial court, said they don't serve the same purpose they used to because of increased disclosure and the high standard of police investigations before charges are laid.

Preliminary inquiries can tie up a courtroom for weeks at a time and have become mini-trials that have taken on a life of their own, he said.

Over the course of a year, Champagne said, some 2,500 preliminary inquiries were scheduled. Preliminary hearings were designed to test the Crown's evidence and determine if a case should go to trial, but in most cases that's not necessary anymore, he said.

"The test for committal to trial is a very, very low standard. In fact, the test for charging by police, and more importantly, the test for prosecution is a higher standard. So you ask yourself again, if that purpose doesn't really exist any more, why are we having preliminary inquiries?"

A report commissioned by Canada's chief justice and released last October said today's courts are too slow, too complicated and too costly. The report concluded that the status quo is no longer acceptable.

But moving away from an established process is going to take a cultural shift which won't be easy, Joyal said.

"At the end of the day, if we don't move, as we've seen over the last 30 years, no one will move."

Joyal said there may be some objections on the part of defence lawyers, but he suggested there is no harm in consultations or pilot projects.

"Let's see if the sky falls," he said. "We're saying times have changed."

In April, the same judges announced they were opening some Manitoba courtrooms to TV cameras. Chief Justice Richard Chartier of Manitoba's Court of Appeal said that pilot project is going well and will continue to evolve.

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