Manitoba defence lawyers criticize proposal to eliminate preliminary inquiries

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Manitoba will have more wrongful convictions if it proceeds with a proposed plan to eliminate preliminary inquiries during a four-year pilot project, defence lawyers warned federal Justice Minister Jody Wilson-Raybould on Friday.

A day earlier, the province's three chief justices and its Attorney-General made public their proposal to eliminate preliminary inquiries in an unusual joint effort to combat delay in the criminal justice system. On crimes punishable by prison terms of 10 years or more, the proposal would allow defence lawyers to question some witnesses at brief, out-of-court hearings. They have asked Ms. Wilson-Raybould to amend the Criminal Code to allow the pilot project to go ahead. They did not consult defence lawyers before drafting the proposal, Chief Justice Glenn Joyal of the Court of Queen's Bench told The Globe and Mail.

The request for a change to the Criminal Code comes in response to a Supreme Court ruling last July known as R v Jordan that set time limits for completing trials. The court suggested that Parliament reconsider the value of preliminary inquiries – pretrial hearings whose main purpose is to screen the prosecution's case to make sure it has enough evidence to go to trial.

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But the Criminal Defence Lawyers Association of Manitoba told Ms. Wilson-Raybould in a letter that it is shocked to have learned about the proposal from the media. It said there is no evidence preliminary inquiries are the cause of delay in criminal proceedings.

"It should not be lost in this discussion that Manitoba is a province with a lengthy history of wrongful convictions. Names such as Kyle Unger, James Driskell and Thomas Sophonow are well known in Canada. Removing procedural safeguards to protect accused persons in the name of expediency is the wrong message to send." The group quoted a retired judge, Patrick LeSage of Ontario, who led an inquiry into the Driskell conviction and who wrote in his report that overriding the right to a preliminary inquiry is an "extraordinary step only to be used in the rarest of cases."

Chief Justice Joyal, in the interview with The Globe, said the Supreme Court has ruled no constitutional right exists to a preliminary inquiry and that the hearings' potential to minimize wrongful convictions is overstated. "Oftentimes, you'll hear preliminary inquiries minimize the potential for miscarriages of justice. I certainly wouldn't want to say that can never be a factor, but when you look at some of the most significant miscarriages of justice, most were cases where there was a preliminary inquiry."

The defence lawyers said they believe the real cause of delay is a lack of judges to keep up with increases in the numbers of people charged with crimes. They said administration of justice offences – such as violations of the terms of bail or probation – more than quadrupled between 1998 and 2012. They also pointed to mandatory minimum sentences passed by the former Conservative government and limits placed on alternatives to jail such as conditional sentences, which had the effect of restricting plea negotiations between defence lawyers and prosecutors, and adding to court backlogs.

Ms. Wilson-Raybould said in an e-mail to The Globe on Thursday, in response to a query about the Manitoba proposal, that preliminary inquiries are a divisive issue and promised only to keep an open mind. A national committee with representatives of the judiciary, the federal government, the provinces and defence lawyers is currently studying the impact of preliminary inquiries on the trial system, she said.