OTTAWA — The federal Liberals are under pressure to help the wheels of justice spin a little faster, with some provinces asking for the right to do away with preliminary inquiries as a way to tackle the backlogs in the courts.
“We’ve got a challenge that has been given to us by the Supreme Court of Canada,” Ontario Justice Minister Yasir Naqvi said in an interview.
“They have said there is complacency within the system, and bold reforms are needed.”
Naqvi and other provincial and territorial justice ministers are gathering Friday in Gatineau, Que., for an emergency meeting with their federal counterpart, Jody Wilson-Raybould, on tackling delays in the criminal courts.
While it is not a new problem, finding a solution has become urgent.
The Supreme Court issued a groundbreaking decision last summer, R. v. Jordan, that set out a new framework for determining whether a criminal trial has been unreasonably delayed, citing a “culture of complacency” for contributing to the problem.
The Charter of Rights and Freedoms says someone charged with an offence has the right to have their case tried within a reasonable amount of time. In a 5-4 decision, the high court defined that period as 18 months for provincial courts and 30 months for superior courts.
There is room for exceptions, and the ruling came with a transitional measure for cases already in the system, but the dissenting minority argued the new time limits could lead to thousands of prosecutions being tossed out.
In a letter to Montreal newspaper Le Devoir, Wilson-Raybould noted the provinces are responsible for the administration of justice, handing 99 per cent of criminal cases.
“While I am currently reviewing our criminal justice system, I cannot act alone to solve the issue of delays,” she wrote.
Some provinces, including Ontario and Manitoba, will urge the federal Liberals to change the Criminal Code to either curtail or eliminate the use of preliminary inquiries, which take place in certain serious cases to determine if there is enough evidence for a matter to go to trial.
“I think for the most part, the provinces recognize the status quo isn’t an option and we need those changes to take place,” Manitoba Justice Minister Heather Stefanson said.
That province wants to bring in a four-year pilot project to replace preliminary inquiries with an out-of-court discovery process, or, for less serious cases, do away with them altogether, but they need Ottawa to bring in legislation to let them do it.
The idea is a controversial one.
The Canadian Bar Association issued a letter to all 13 justice ministers Thursday to make the case against it.
“We believe that any evidence linking court delays to the preliminary inquiry is speculative at best,” Rene Basque, the CBA president, wrote.
“Even when preliminary inquiries do not result in early resolution of dismissal of a case, as they frequently do, our experience is that they significantly reduce the time needed in superior courts.”
According to Statistics Canada, preliminary inquiries took place in less than three per cent of cases in the adult criminal court system in 2014-15, and 81 per cent of those cases were completed within a 30-month period.
James Pickard, president of the Alberta Crown Attorneys’ Association, said he is in favour of cutting back on preliminary inquiries, but would like to see more data on how that would save time in the courts.
Pickard said the issue is complicated, but most of it boils down to the need for more resources.
“There is a shortage of judges. There is a shortage of clerks. There is a shortage of prosecutors. Legal aid could use more money,” he said.
Quebec agrees that reforming preliminary inquiries is part of the solution, but is also pressuring the federal government to appoint new judges.
“We need the federal government as a partner,” said Isabelle Marier-St-Onge, a spokeswoman for Quebec Justice Minister Stephanie Vallee.
Eric Gottardi, one of the defence lawyers in R. v. Jordan, said the problem goes far beyond empty seats.
“If they were all filled tomorrow, it’s not like the delay problem would disappear in the next three months,” he said.
The higher number of mandatory minimum sentences the previous Conservative government brought in contributed to the problem, he said, as it took away a lot of discretion from both judges and prosecutors to find ways to divert trials.
“I think in promising to take a more comprehensive look at the criminal justice system and sentencing in general, maybe (the federal Liberals) didn’t realize how big a problem it was and how far-reaching that would have to be,” Gottardi said.
“It is a huge job and that may in fact be slowing them down,” added Gottardi.
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Joanna Smith, The Canadian Press