In just a few weeks, members of Parliament will begin studying a massive Liberal bill introduced earlier this year, Bill C-75, to reform our criminal justice system.
Although it makes a number of different proposals to help modernize and streamline the justice system, one of the main areas that it seeks to reform is preliminary inquiries.
Preliminary inquiries are held in order to determine if there’s sufficient evidence for a criminal matter to proceed to trial. They are not intended to make findings of guilt, but rather to ascertain and evaluate the strength of the Crown’s case against the accused.
At the end of the inquiry, the judge makes a ruling on whether there is enough evidence to commit the accused to trial.
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As the law currently stands, preliminary inquiries can be held in a wide range of circumstances. Generally speaking, they can be held in circumstances where an accused person elects trial by judge alone or trial by judge and jury.
In spite of the fact that they are widely available, however, they are rarely used.
A recent report from the Canadian Bar Association put the frequency of preliminary inquiries at less than five percent of criminal proceedings. Statistics Canada reported the same statistics at 2.8 percent in 2014–15. Preliminary inquiries are on a downward trend.
And the federal government wants to keep this trend going.
Bill C-75 aims to restrict the availability of preliminary inquiries. If it passes, they will only be available for offences committed by adults and punishable by life imprisonment. The bill also seeks to strengthen the judge’s powers to limit the range of issues that are explored in such inquiries, including the list of witnesses to be called.
Supporters of these amendments say that restricting preliminary inquiries will help to curb delays in the justice system.
There is no question that our criminal justice system is severely overburdened—and data indicates that when an accused person elects for a preliminary inquiry, the matter takes an average of 433 additional days to conclude.
This is on top of the fact that proceedings with preliminary inquiries require more nominal court appearances and a higher number of days in between them, which can also contribute to systemic delay and the squandering of precious judicial resources.
Even in spite of these statistics, though, there are serious reasons to doubt whether these amendments will actually have any positive impact whatsoever on courtroom delays.
The infrequency at which preliminary inquiries are requested tends to mean that restricting them will not have any tangible impact on judicial proceedings. In this way, the changes contemplated in Bill C-75 may do little more than codify the reality of what is already happening in our courtrooms today.
There is also some evidence to suggest that restricting these inquiries may actually have the opposite effect of what is intended by Parliament; it may actually contribute to delay.
This is because preliminary inquiries have proven useful for both Crown and defence counsel. Preliminary inquiries can be used to define issues, gain clarity, and contribute to overall trial efficiency. For example, engaging in a preliminary inquiry can help test witness testimony and determine whether or not a particular witness will even be required at trial. They are also undeniably useful as they allow counsel to gain valuable guidance and insight from a judge.
By limiting preliminary inquiries, we may be taking a powerful tool away from counsel.
But we also have to consider what we are taking away from the accused.
People who are accused of a criminal offence have a right to defend themselves, and to do so under the full ambit of the law. Procedural protections, like preliminary inquiries, should not be done away with so quickly. Instead, we must take under consideration al of the issues at stake—including the rights of an accused person and the important role that such inquiries may play.
Instead of limiting access to justice by eroding the preliminary inquiry process, the government should rely on other, more practical techniques in order to combat delay and improve trial efficiency.
For example, judicial vacancies should be filled promptly in order to ensure adequate resources in each and every courtroom. In the same vein, funding for legal aid programs should be increased and technology should be updated in order to create better access to justice in remote communities and to expedite nominal court proceedings.
After all, the answer to the issue of delay in our criminal justice system does not lie in a single answer. The causes of delay are multiple and varied, and a multifaceted approached should be adopted.
Limiting preliminary inquiries is unlikely to do little more than compromise the rights of accused people in this country. If our government wants to do something about delay, it should look to more comprehensive methods that do not limit access to justice.Sarah Leamon is a criminal defence lawyer. She also chairs the PACE Society board in Vancouver’s Downtown Eastside and holds a master of arts in women’s studies from UBC. Follow her on Twitter @SarahLeamonLaw and find her website here.
