Preliminary Hearings: Prohibition or Reform of Practice?

(This article was originally published March 04, 2017 by Marion Lane on The Effervescent Bubble.)

The media has been full in recent weeks of proposals to do away with preliminary hearings (called prelims for short) and so, reduce delay in the criminal courts. The 5:4 Supreme Court of Canada decision in R. v. Jordan in July set presumptive deadlines of 18 months for trials to be concluded in provincial courts, and 30 months in Superior Courts. Several high-profile cases have occurred where judges applying the new guidelines have stayed very serious charges because the time taken to get to trial was so long. When accused persons are not tried on the merits of their charges, the public is understandably upset.

The Ontario Attorney General is apparently encouraging more “direct indictments” whereby the crown refers serious matters directly for trial in the Superior Court (without a prior prelim in the lower court) and making demands to do away with most prelims. Manitoba’s three Chief Justices and its Attorney-General are proposing to eliminate all prelims. Minister of Justice Wilson-Raybould is saying that “Preliminary inquiry reform is a divisive issue…” and that committees in both the House of Commons and the Senate are looking at the issue.

What is a preliminary hearing? The Criminal Code provides that any person charged with an indictable offence (typically a serious charge to which a more elaborate procedure applies) has a choice: 1) trial by judge alone in the provincial court, 2) trial by judge alone in the Superior Court, or 3) trial by judge and jury in the Superior Court. If the accused elects trial in the Superior Court, he or she may request that a prelim be held. This means that a judge of the provincial court will conduct a hearing to decide if the crown has enough evidence for the defendant to be committed to stand trial. The “test for committal” is low: whether there is any evidence upon which a reasonable jury properly instructed could convict the accused of the charge or charges before the court. The prelim judge cannot assess the credibility of witnesses, nor can he or she hear any application for any potential Charter breach.

The limited jurisdiction of the prelim judge does not mean that prelims cannot be useful. Although the defendant will have received full written disclosure of the crown’s case well in advance, there may be much relevant information that defence counsel (and crown counsel for that matter) will not have. Neither will know, for example, how the complainant will appear as a witness and how he or she will respond to cross-examination. Neither will know information from the arresting officer or other crown witnesses that the defence might use to support a later application for exclusion of evidence under the Charter or otherwise. A prelim provides a chance to examine and cross-examine witnesses on essential points and get their responses on the record. Should they later testify differently at trial, the inconsistencies would go to their credibility. After hearing the evidence on a prelim, some judges offer the parties an opportunity to resolve the matter there and then without the need for any further trial. Resolutions at this stage are not uncommon.

It was also my experience, sitting as a judge in various courts in and around Toronto, that the use of prelims as a delay tactic has almost entirely disappeared. In the 1980s and early 1990s, defendants routinely elected prelims and then consented to committal at the prelim “without hearing any evidence.” The practice clogged court dockets and was then a primary cause of delay. In the 1990s, the Criminal Code was amended to allow higher penalties for certain offences (e.g.: sexual assault) where the crown could choose to proceed by the simpler summary conviction procedure. Thereafter, thousands of cases were downloaded to the provincial courts for trial and the defendant had no right to a prelim. Still later, court rules were put in place requiring a judicial pretrial where anyone seeking a prelim had to show precisely what witnesses he or she needed to hear and what issues were in play. If committal on the very low test were not contested, the crown might not need to call any of its case. Where multiple defendants were joined together and there may be little evidence relevant to one or two, the only evidence heard at the prelim would be with respect to those defendants. The prelim weeded out many problematic charges and focused the issues, both measures that would save time and resources down the road in the Superior Court.

The most intelligent piece I have read yet is the article by criminology professor Anthony Doob in the Globe and Mail on February 27th entitled “Preliminary inquiries: a debate that needs better data.” His essential point is that practice on prelims varies widely across the country and that what little data exists (reported in 2005) shows that prelims are often used instead of trials, and involve very few court appearances. He says that it is not clear why prelims “are seen as the Achilles heel of the court system” with respect to delay. He concludes that “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… (so that we know) less now than we did in 2005. … Those… 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.” Someone is finally calling for “evidence-based” policy development with respect to delay in the courts. It’s about time.

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