The national organization representing the country’s lawyers — including Crown prosecutors and defence counsel alike — is urging the federal justice minister to reject a call by Manitoba and Ontario to eliminate preliminary hearings.
In a four-page letter sent to federal Justice Minister Jody Wilson-Raybould, Saskatchewan Crown prosecutor Loreley Berra — the chairwoman of the Canadian Bar Association’s criminal justice section — said ditching preliminary hearings would not reduce court backlogs and could lead to even more cases thrown out because of undue delays.
"If preliminary inquiries were eliminated or severely curtailed, counsel would inevitably argue that superior court trials should be conducted within a shorter time frame (e.g. 18 months)," Berra wrote in the March 14 letter. "This would imperil more serious cases currently in the system."
Berra also said the delay issues brought up recently by the Supreme Court is not new, but "highlighted the need for a thorough, evidence-based approach to criminal justice law reform, rather than suggesting a need to simply ‘lop off’ important aspects of the criminal justice system with proven utility, like the preliminary inquiry."
Ian Carter, the criminal justice section’s vice-president, said the association’s position against scrapping preliminary inquiries is important because the organization "is made up of both Crown and defence lawyers.
"It is not simply a defence organization... we discuss all of the issues and, on this, we had concerns. We don’t see the benefit here."
Preliminary inquiries are held in cases involving indictable offences — serious crimes including murder, for example — in order for a judge to determine whether there is enough evidence to send the case to trial.
The bar association’s position is that there are other ways to reduce court delays, including appointing enough judges, providing more legal aid, eliminating mandatory sentencing and using alternatives to court to deal with minor charges.
Last summer, the Supreme Court set time limits for criminal matters to make their way through the justice systems across the country.
Provincial court matters must now be completed within 18 months after charges are laid. Superior court cases — Court of Queen’s Bench in Manitoba — have a 30-month limit. Cases that take longer are now presumed to have violated an accused person’s right to a trial in reasonable time unless the Crown can prove exceptional circumstances.
The bar association’s letter comes in response to a push from Manitoba’s three chief judges and provincial Justice Minister Heather Stefanson for permission to scrap preliminary hearings.
"The status quo will not improve the court backlogs experienced in Manitoba’s justice system," Stefanson told the Free Press in a statement.
"A way forward identified by our government and many stakeholders in the justice system, including the Supreme Court of Canada, is to reconsider the utility of preliminary inquiries in light of court delays. This specifically was identified by the Supreme Court in the Jordan ruling.
"Recognizing the need for major system changes, I, with Chief Justice Richard Chartier, Chief Justice Glenn Joyal, and Chief Judge Margaret Wiebe, suggested a balanced and responsible approach to the Attorney General of Canada. Our suggested approach is a pilot project which would replace preliminary inquiries with an out of court discovery process for more serious indictable offences.
"Our proposal would also reduce the burden that victims and their families face when testimony must be given in both a preliminary inquiry hearing and the subsequent trial."
Last month, Joyal told the Free Press the proposal is for a four-year pilot project to see if cutting preliminary hearings makes the system function more efficiently.
"A pilot project by definition is temporary... but one plus one is two. If you take away half the time that is being spent on cases now, there is time to reprioritize other matters," Joyal said. "If people don’t deserve to be in custody they deserve to know that earlier than later."
In the Globe and Mail Wednesday, Joyal said the bar association is taking a "one dimensional, absolutist" position on the issue, adding he sees up to 25 cases each month go to a preliminary hearing and then take another 18 to 24 months to get to trial.
"That means for me to be able to comply with the presumptive ceiling and timelines, I have six months to schedule a very, very serious case."
Last week, Wilson-Raybould told a Senate committee she is open to the suggestion to adjust the Criminal Code to eliminate preliminary inquiries, but said she wants more data and research to show what it would do.
"There isn’t consistency within all the jurisdictions in the country in terms of whether or not they should be eliminated," she said. "There is often rigorous discussion and debate about that. I will say, as I indicated in my direct conversation with minister Stefanson and (Ontario Justice Minister Yasir) Naqvi, I remain open to their suggestions."
The Senate’s legal affairs committee is studying the issue of justice system delays.
Wilson-Raybould said there are internal discussions in her department looking at the idea of eliminating the hearings as well, but she won’t be making any decisions until more research is done and until reports from the Senate committee and a working group of federal-provincial justice ministers are delivered.
Kevin Rollason is one of the more versatile reporters at the Winnipeg Free Press. Whether it is covering city hall, the law courts, or general reporting, Rollason can be counted on to not only answer the 5 Ws — Who, What, When, Where and Why — but to do it in an interesting and accessible way for readers.
Updated on Saturday, March 18, 2017 at 8:59 AM CDT: Edited