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Preliminary inquiries: A debate that needs better data

A debate about a public-policy issue may be more fun – and can last a lot longer – if it is done in the absence of data. That way, everyone can sound knowledgeable and intelligent. Arguments can be kept simple. And nobody can be shown to be wrong. Our political leaders can then make their decisions by claiming they are based on "the best available knowledge" and then move to another issue.

Such is the debate right now about restricting the availability of the preliminary inquiry in criminal trials. The recent proposals from at least two provinces to reduce the availability of preliminary inquiries would appear to be examples of "data-free" proposals.

The problem is that there are Canadian data on this topic which highlight the need for careful consideration of the evidence. Twelve years ago, the federal Department of Justice asked University of Ottawa professor Cheryl Webster to look into the issue of the preliminary inquiry. Statistics Canada provided useful national data to her. Notably, the results suggested that the preliminary inquiry might have valuable benefits in terms of weeding out charges and avoiding the recourse to the costly and resource-intensive superior court. Preliminary inquiries, in some provinces, were used instead of, rather than in addition to, trials.

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The report highlighted the fact that, in most provinces, very few (less than 1 per cent) of court appearances involved preliminary inquiries. When they were used, 89 per cent of preliminary inquiries in Ontario took only one or two court appearances. This alone makes one wonder why preliminary inquiries are seen as the Achilles heel of the court system, at least in terms of resolving the currently very serious problem of court delay. The fact that Ontario provincial courts completed 21-per-cent fewer adult criminal cases than they did five years ago suggests that the problem transcends the issue of preliminary inquiries. This fact is conveniently ignored.

The findings of that 2005 study were complex. The preliminary inquiry was used differently across provinces and it was used, in the various provinces, at quite different rates. That report concluded, based on data available then, that "any global or national changes made to the preliminary inquiry may have quite diverse effects across Canadian provinces/territories."

What is the situation, nationally, now? That's easy to answer. We don't know. The current data produced by Statistics Canada are not helpful. Earlier this week, it released its most recent report on adult courts in Canada. It told us almost nothing about preliminary inquiries other than providing an estimate of the frequency of their use and the number of cases with a preliminary inquiry that took 30 months or more to complete. On the most basic of findings – the possibility that they are used differently across provinces and territories – the report is silent.

Furthermore, data such as those provided by Statistics Canada in 2005 are no longer available. For explicable but stunningly short-sighted reasons, Statistics Canada has made it almost impossible to get a good picture of the use of the preliminary inquiry in Canada. It is not that the data to allow such an analysis are not collected. It is simply that our statistical agency did not have sufficient interest in supporting the kind of analysis that was done 12 years ago for the Department of Justice.

So here we are in 2017, knowing less than we did in 2005. But apparently the lack of will to ground criminal justice policy in empirical data is not an obstacle to change. However, for our political leaders and those working in the criminal justice system, perhaps this is a happy outcome: Those currently engaged on all sides of the debate can all claim that they are correct. They can make their arguments without even being forced to resort to the use of alternative facts, since the alternative – real up-to-date facts – don't exist.

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