A national legal organization is urging federal Justice Minister Jody Wilson-Raybould to spare the preliminary inquiry, a major part of some criminal trials that has come under attack by several provinces, top judges and even the Supreme Court.
The top court disrupted the criminal-justice system last July by setting time limits, from charge to the completion of trials, of 18 months in Provincial Court and 30 months in Superior Court. By November, two men, one in Alberta and one in Ontario, had been freed from first-degree murder charges over delay. Since then, governments, judges and the broader legal community have been seeking answers to the long-entrenched problem of slow justice, in which the wait for a preliminary inquiry may take up half the time or more allotted to the entire criminal proceedings.
Citing the "daily experience" in court of its nearly 40,000 members – who include prosecutors and criminal defence lawyers – the Canadian Bar Association said that preliminary inquiries save time and resources, rather than being a source of delay.
"Fears have been escalating about a landslide of serious charges being stayed and accused people being released with impunity," Loreley Berra, chair of the group's criminal justice system, says in a letter to Ms. Wilson-Raybould on Tuesday. "Any connection between courts [sic] delays and the preliminary inquiry is speculative at best."
It said there is no need to "simply 'lop off' important aspects of the criminal justice system with proven utility, like the preliminary inquiry."
But Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench, part of a group supporting a four-year experiment eliminating preliminaries in his province, said the CBA is taking a "one-dimensional, absolutist" position, and ignoring the reality of delay.
"It isn't speculative or conjectural. I'm telling you, my reality is very clear," Chief Justice Joyal told The Globe, which shared a copy of the letter with him. (The CBA made the letter available to The Globe.) Every month, he says, 20 to 25 cases make it through a preliminary inquiry and go on to trial – usually after delays of 18 to 24 months. "I can tell you as chief justice of a trial court … that means for me to be able to comply with the presumptive ceiling and time lines, I have six months to schedule a very, very serious case." And, he said, he must also find room for important civil cases such as medical malpractice and commercial disputes.
In its July ruling, known as R v. Jordan, the Supreme Court itself suggested a time-saving response would be for Parliament to reconsider the value of preliminary inquiries. The inquiry – done before a judge with defence lawyers, prosecution, complainants and other witnesses such as police – screens the evidence before trial to determine whether the case should go on. But the Supreme Court said another purpose, of disclosing the prosecution's case to the defence, has weakened because disclosure has been legally required since 1991.
Since the Jordan ruling, the Ontario government has urged Ms. Wilson-Raybould to eliminate all preliminary inquiries except those for murder, treason and other serious crimes. Chief justices of three levels of Manitoba courts, including Chief Justice Joyal, together with the province's Attorney-General Heather Stefanson, have asked Ms. Wilson-Raybould to permit a four-year experimental elimination of preliminary inquiries. They said that Indigenous people are especially harmed by delay caused by preliminary inquiries, because they are overrepresented among inmates denied bail and waiting for their trial in jail. Alberta's Justice Ministry also advocates the elimination of preliminary inquiries for the most serious offences.
The CBA says in its letter that recent research shows only 25 per cent of eligible cases opt for preliminary inquiries; that the proportion of cases with a preliminary inquiry is under 5 per cent of court caseloads in every part of Canada; that at most, 2 per cent of court appearances are used for preliminary inquiries; and that most take two days or less.
It takes special aim at Manitoba, saying that says these pretrial screening mechanisms are both infrequently used and highly effective in saving time. Less than 1 per cent of cases under the province's legal-aid plan had a preliminary inquiry (96 cases out of 12,397, from 2014-16) and of those, 72 did not proceed to trial, the Canadian Bar Association said in its letter. (Cases may not proceed to trial because there was not enough evidence or because either the Crown or defence, having assessed the relative strength of their case, made a plea bargain.) It also said it is unaware of any research establishing that preliminary inquiries are especially damaging to Indigenous people, adding that they benefit from the hearings in the same way others do.
A spokesman for Ms. Wilson-Raybould's office said she has not had time to read and respond to the letter. Last Friday, appearing before a Senate committee, she said she has an open mind, but needs to see substantive research first.
The CBA says in its letter that the elimination of preliminary inquiries could have the effect of prompting the Supreme Court to further reduce time limits to 18 months from 30 months in Superior Court, while still leaving the justice system the same difficult challenge of meeting the timelines. But Chief Justice Joyal said that would be speedier justice, and "if I can't get a trial done in 18 months in the Superior Court then I really ought to be looking in the mirror."