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Preliminary inquiries: Let judges make the call

David Butt is a Toronto-based criminal lawyer.

With the Supreme Court of Canada having recently imposed hard-cap deadlines on criminal cases, beyond which they must be thrown out, the debate now consuming legal circles is whether we should save time by getting rid of something called the preliminary inquiry. Predictably, those for and against preliminary inquiries are pitching their respective versions of how the sky will fall if they don't get their way. And, like so many debates in professional and personal life, this one is unproductively adversarial because it embraces the false dichotomy of absolutism: get rid of preliminary inquires altogether, or do nothing. The real issue, however, is neither abolition nor retention of the preliminary inquiry, but rather its intelligently constrained use.

Preliminary inquiries are creatures of the Victorian era. Evolved from the ancient system of grand juries, they were designed as a means of courtroom vetting of criminal allegations to ensure there existed enough evidence to put an accused person on trial. They also gave an accused person early disclosure of the case against them before a trial. There is no doubting the importance of these objectives. But we no longer need a preliminary inquiry to achieve them.

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Police expertise and investigative best practices are light years beyond where they were in the 1800s, when preliminary inquiries began. Furthermore, Crown prosecutors across Canada routinely vet criminal charges, screening out the weak ones. And budget constraints on police and prosecutors help ensure that scarce resources are not squandered on hopeless cases. The result of these three developments is that preliminary inquiries have long since ceased to serve a meaningful screening role in any but the exceptional case.

Then, in 1991, the Supreme Court institutionalized the practice of what is called Crown disclosure: the accused person must promptly receive virtually the entire police investigative file, subject to few exceptions, such as the identity of confidential informants. So, every defence lawyer now routinely receives DVDs and downloads of everything even marginally relevant that was gathered by investigators. Thus the preliminary inquiry no longer serves a legitimate disclosure function.

Having outlived its initial purposes, does the preliminary inquiry retain any residual utility? Sometimes, yes. Some cases – typically more complex ones – can be resolved more quickly if the body of evidence, assembled in police-interview videos and documents, is mounted in real life on the stage that is the preliminary inquiry courtroom. There, with live witnesses interacting in real time with lawyers, both prosecution and defence can see how the case withstands courtroom scrutiny. These courtroom insights, harbingers of a trial to come, assist both sides in assessing whether to fight on, or negotiate a compromise plea bargain.

But if preliminary inquiries only sometimes help streamline justice processes, how do we separate the wheat from the chaff, and avoid those that are time-consuming exercises in redundancy? The answer is simple, but requires willingness to embrace change – not a lawyerly strong suit.

Right now, an accused person has a right to a preliminary inquiry in most serious cases. This right exists independently of the utility of the preliminary inquiry in any given case, which means it can become a right to squander limited justice resources. On the other hand, equally perversely, the prosecutor has the right in any case to unilaterally dispense with the preliminary inquiry, again regardless of its utility in that case. So we have, at present, a silly compromise – a defence right to waste court time, and a prosecutorial power to take away something useful.

The intelligent compromise is this: since they have limited residual utility, there should be no preliminary inquiries unless whoever wants one first convinces a judge it is necessary in the interests of justice, following which it cannot be taken away. Judges know best when their courtroom is used well or poorly. Given the chance, judges will manage courtroom time effectively. With intelligent use of preliminary inquiries as the touchstone, intransigent abolitionists and status quo preservationists alike can step off their soapboxes, dispense with their heated absolutist rhetoric and engage in the more productive efforts of demonstrating precisely what justice requires in each individual case.

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