A proposal to eliminate preliminary hearings in almost all criminal cases is not the answer to court backlogs says a Red Deer representative for criminal defence lawyers.
Under Bill C-75, introduced in Parliament in late March, preliminary inquiries, would be unavailable unless the criminal offence carries a maximum penalty of life in prison.
The government estimates the move would eliminate almost 90 per cent of the 9,100 preliminary hearings held in Canada each year. The move is meant to carve into a backlog of court cases that has been drawing increasing attention.
How slowly the wheels of justice turn has taken on a new urgency in the courts since a 2016 Supreme Court of Canada decision. The court set deadlines for when cases must go to trial or be resolved: 18 months to get from charges to trial in provincial court with no preliminary inquiry and 30 months for trials in superior court with some exceptions.
It is not uncommon for defence lawyers to make Jordan applications when they believe their client’s right to a timely trial has been violated.
Red Deer defence lawyer Jason Snider does not believe eliminating most preliminary hearings – which are used to determine if the Crown has enough evidence to go to trial – will do what the government hopes.
Preliminary inquiries routinely streamline the court process by determining relatively early in the court process that there is not enough evidence to go to trial and use up valuable court time on a weak case, said Snider, president of the Red Deer Criminal Defence Lawyers Association.
Snider called the proposal to ditch most preliminary inquiries a “false economy.”
Preliminary inquiries are a useful way to resolve cases without having them elevated to the Court of Queen’s Bench, which is already short of judges and has lengthy wait times for trials, he said.
“My experience with preliminary inquiries is that a third to half of the files I have that go through a preliminary inquiry are resolved without ever having had to go to trial.”
Most of the cases that wind up in the criminal justice system result in convictions of some kind. However, accused are routinely only found guilty of some of the charges laid against them.
“A lot of time it’s just a matter of what the appropriate level of criminal responsibility is and determining that,” said Snider, who is also a former Red Deer Crown prosecutor.
“Sometimes, that just requires a couple of witnesses for a preliminary inquiry not a full-blown trial.”
Snider offers an example from his own experience. A client was facing 14 different charges in relation to an incident where she fled from police.
At the preliminary inquiry, his client pleaded guilty to the flight-from-police charge and one other and the Crown prosecutor dropped the remaining counts.
If a preliminary inquiry was not an option, the case would have been set for trial in Court of Queen’s Bench, with a multi-day trial date set likely 18 months down the road. At trial, the matter would likely have been resolved within hours of the trial starting, leaving a block of wasted court days.
Pushing more cases into Court of Queen’s Bench, which is already short of judges, would likely have a ripple effect through the court system.
Unlike provincial court judges, who spend 90 per cent of their time on criminal cases, Court of Queen’s Bench justices deal with criminal matters only about a quarter of their time. Justices spend a lot of time dealing with family matters, civil cases, wills and estates.
Increasing justices’ criminal workload means it will take longer to get decisions in other cases, he said.
Editor note — An incomplete version of this story appeared in Friday’s Red Deer Advocate.