Ontario prosecutors told they can skip preliminary inquiries to avoid delays

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Ontario is telling its prosecutors they can avoid preliminary inquiries and go straight to trial when delay is a problem, as it aims to save cases that might otherwise be thrown out of court.

The new approach is a response to a Supreme Court ruling last July that set strict time limits on legal proceedings, putting thousands of cases potentially at risk in Ontario alone. Ontario has 6,500 cases in provincial court above the 18-month ceiling set by the Supreme Court.

There are 23 homicide cases, 15 of attempted murder and 394 of sexual assault and other sexual offences that are past the 18-month presumptive time limit in Provincial Court, government records show.

Read more: With accused killers poised to walk free, Ottawa urged to take action on court delays

Globe editorial: Putting preliminary inquiries on trial, for the sake of justice?

Related: Victims of crime pay the real price for unreasonable delays

A memorandum dated Nov. 22 instructs prosecutors that they can ask the Attorney-General to skip a preliminary inquiry and go directly to trial (a practice known as a direct indictment), solely to avoid serious delay.

"In all cases in which prosecutors are concerned that a case may be stayed on the basis of unreasonable delay, prosecutors should consider the potential usefulness of requesting that the Attorney-General consent to the preferment of a direct indictment ordering the defendant(s) to stand trial in the Superior Court without a preliminary hearing," says the memo, signed by James Cornish, an assistant deputy attorney-general in the criminal-law division, and obtained by The Globe and Mail.

Preliminary inquiries test whether the prosecution has enough evidence to take a case to trial. They have been entrenched in the Criminal Code since it took effect in 1893. But the Criminal Code also gives governments the power to go straight to trial, at the Attorney-General's discretion; and defence lawyers have scant opportunity to object.

On Tuesday, Ontario Attorney-General Yasir Naqvi called publicly on federal Justice Minister Jody Wilson-Raybould to scrap most preliminary inquiries, except in the most serious cases, such as murder or treason. He said they add "many months" to cases and he painted them as an anachronism; their two main purposes – the pretrial screening out of weak cases and the disclosure of the prosecution's case to the defence – are now accomplished in other ways, he said.

Ontario is not alone. Manitoba raised the issue of limiting preliminary inquiries two years ago with Ottawa and the provinces. Alberta cut the number of preliminary inquiries by 17 per cent between 2013 and 2016, according to a spokesperson for the Attorney-General's department, after a 2013 government report called for their abolition to speed up the time to trial, and the province changed its protocols for going straight to trial.

The memorandum shows that Ontario is not simply sitting back and waiting for Ottawa to act.

An Ottawa lawyer, Michael Spratt, said he has a client accused of first-degree murder who, with three co-accused, were waiting in custody for a preliminary inquiry, scheduled for this summer. But, 10 months after the dates were set, the Crown informed Mr. Spratt the prosecution would be proceeding by direct indictment. A trial is now set to begin in March.

"I think that it is a dangerous precedent to allow the Crowns to sacrifice procedural protection for accused individuals to account for delay, much of which falls at the feet of the Attorney-General," he said in an interview.

Mr. Spratt added: "When the Crown seeks to cancel a preliminary inquiry months and months after it's set, those accused people have now sat waiting for a preliminary inquiry that will never happen, which strikes me as being very unfair and problematic."

He said he has participated in preliminary inquiries in which charges were reduced before being sent on to trial, or dropped altogether. "That not only protects the accused in these serious cases, so they're tried on the appropriate charge, but it also in many cases enhances the pace of a case, because resolutions can be arrived at more easily, and matters can be streamlined."

The government memo turns a negative light on preliminary inquiries, noting that the Supreme Court, in its ruling on delay, questioned the value of preliminary inquiries. The memo also points to criticism from the Ontario Court of Appeal, as it threw out a conviction in September in a fatal beating; the court said the Crown should have considered a direct indictment to avoid delay caused by a long preliminary inquiry.

The memo says it is a supplement to a 2005 memorandum, which said that the Attorney-General's power to send a case directly to trial with no preliminary inquiry is "an extraordinary one, and is infrequently used in Ontario." That earlier memo set several circumstances in which that route might be taken, including avoiding delay and protecting the health or safety of witnesses.

The new memo says that, in light of the Supreme Court ruling on delay, known as R. v Jordan, "significant concern regarding unreasonable delay can now, in and of itself," be enough to make a direct indictment request to the Attorney-General or Deputy Attorney-General. (The Criminal Code requires sign off at the top, an indication of the importance granted to preliminary inquiries.)

The memo tells prosecutors they should make their requests "as expeditiously as possible," and promises that they "will be reviewed on an expedited basis."