Ontario Attorney General Yasir Naqvi struck a poignant note this week by revealing an intensely personal perspective on justice.
Speaking to a Toronto luncheon, the attorney general recounted how his father, a free speech advocate, was once arrested and held in a Pakistani jail for nine months. The Naqvi family — who would later immigrate to Canada — felt helpless, abused and without recourse.
The lesson Naqvi wished to impart was crystal clear. A fair and equal justice system is a fragile structure. Only constant vigilance can prevent court processes from being eroded by expediency or political gain.
What a pity it was, then, that Naqvi proceeded to denigrate a cornerstone of Canadian criminal justice: the preliminary inquiry. By calling for its elimination in order to speed up the trial process, Naqvi seriously muddied his overall message.
Ending the right to a preliminary inquiry, a pretrial discovery hearing where Crown witnesses give evidence, is a tired idea that arises every time a tempest erupts over trial delays. It should come as no surprise it is being floated yet again in the wake of a Supreme Court of Canada ruling last July that imposed stricter time limits on criminal court proceedings.
There is pleasing simplicity to the idea that erasing a supposedly cumbersome procedure can help solve the problems that plague our courts. But if it is so sensible, why is it that preliminary inquiries never do end up being abolished?
The answer: wiser heads invariably prevail.
To begin with, preliminary inquiries are habitually misperceived. Far from being common, recent statistics show they are held in less than 3 per cent of all criminal cases.
Preliminary inquiries are also viewed by critics to be a needless dress rehearsal for an inevitable, forthcoming trial. In reality, they allow both the Crown and the defence to hear witnesses testify and assess the strength of the case prior to trial. Evidence may also emerge during the preliminary inquiry that police acted improperly or that a key witness is either unreliable or not credible.
This process of testing evidence prior to trial often paves the way for plea negotiations. Prosecutors may even withdraw charges and defendants, seeing the strength of the Crown’s case, may opt to plead guilty.
Judges presiding over preliminary inquiries have the power to rule that there is insufficient evidence for a case to proceed to trial. This doesn’t happen often, but when it does, it cuts short a horrendous ordeal for an accused person and prevents the wasting of significant resources on a full trial.
Opponents of the preliminary inquiry process often evoke the spectre of scheming defence lawyers who intentionally drag out cases in hopes of exhausting the court system. It is important to note that in the rarest of cases where this may happen, the Crown has the ability to bypass the preliminary inquiry stage altogether with permission from the Attorney General.
Naqvi is not wrong to decry court backlogs. Indeed, he is observant to see the ramifications that lie ahead after the Supreme Court of Canada’s decision last year in R. v. Jordan.
However, it is critical to understand that in setting a 30-month limit for Superior Court criminal cases, the Supreme Court specifically accounted for the time that is taken up by a typical preliminary inquiry. Eliminating them Celtabet would be a red herring. The Supreme Court would simply respond by reducing the outside limit further to reflect the change.
Criminal courts are not fast food restaurants. Their primary function is not to rush out convictions and sentences, with a side order of justice. However, there is good news for reformers such as Naqvi. Should he choose to engage in productive discussion with the defence bar and other justice system players, sound proposals can be found to speed up trials.
For example, some preliminary inquiries could potentially be held in boardrooms without need of a judge or courtroom, much as examinations for discovery are conducted in civil proceedings.
In addition, increased legal aid funding could reduce the number of unrepresented defendants who currently clog the courts. Another useful reform could see the introduction of pretrial charge screening by experienced Crown counsel; a procedure that has allowed provinces such as B.C. to weed out weak prosecutions and conserve precious court resources.
In its Jordan judgment, the Supreme Court called upon all justice system participants to work together to ensure timely justice. The task is feasible. However, it needs to begin with a recognition that the goal of reduced delays must be met without gutting vital checks and balances in the court process.
Daniel Brown is a criminal defence lawyer and a Toronto director with the Criminal Lawyers’ Association.
Daniel Brown is a criminal defence lawyer and a Toronto director with the Criminal Lawyers’ Association.
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