A case for retaining the preliminary inquiry
With the advent of the Charter, robust disclosure obligations under Stinchcombe, and more effective Crown screening, a debate about the continuing value of the preliminary inquiry has raged over the last few decades. Most recently, in R. v. Jordan, 2016 SCC 27, the court criticized the culture of delay in our justice system and called on all participants to make meaningful changes to reduce delay. In particular, Justice Moldaver suggested that “Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations” (para. 140).
In response, Bill C-75 proposes a number of changes to streamline the justice system. Not surprisingly, one of the proposed changes is to restrict preliminary inquiries to offences with a maximum sentence of life imprisonment.
But is this a step in the right direction? There is, in fact, a very strong case for retaining the preliminary inquiry.
First, the evidence shows that preliminary inquiries are not the problem when it comes to delay. Most cases are not even eligible for a preliminary inquiry. And even where it is available, most accused do not opt for a preliminary inquiry. In 2015-2016, only 2% of cases heard in provincial court had a preliminary inquiry.1 In other words, preliminary inquiries are a rare occurrence. And while there is no question that cases with a preliminary inquiry take longer, that does not mean that there is a higher risk of a stay of proceedings under s. 11(b) of the Charter. The existing Jordan ceilings include the time needed to conduct a preliminary inquiry.
Second, there are existing mechanisms for dealing with delay arising from preliminary inquiries. The Crown can elect direct indictment and avoid a preliminary inquiry altogether. Under the Criminal Code, the Crown can proceed on the basis of witness statements or documents (s. 540), the parties can be required to identify and focus the issues (ss. 536.3-536.5), and the justice is empowered to curtail cross-examination that is abusive, repetitive, or inappropriate (s. 537(1.1)).
Third, preliminary inquiries can be a valuable tool in mitigating delay. They allow both the Crown and the defence to preview and assess the strength of the case, promoting timely resolutions and efficiencies down the line. The Crown can stay cases with no reasonable prospect of success, defence counsel can encourage timely guilty pleas where warranted, the parties can determine which witnesses will be required at trial, and both Crown and defence can assess whether particular issues or applications should be pursued. Where Charter issues are explored at the preliminary inquiry, the preliminary inquiry may create a sufficient record, obviating the need to call those witnesses in a later voir dire.
Fourth, the discovery function of the preliminary inquiry remains important for the accused, despite the Crown’s robust disclosure obligations. The broad right of cross-examination at the preliminary inquiry provides discovery that goes far beyond that required by Stinchcombe. The preliminary inquiry also permits the defence to assess the credibility and reliability of key witnesses, discover inadvertent non-disclosure, and identify the existence of relevant third-party records.
Finally, the screening function of the preliminary inquiry should not be discounted. While the standard for committal is low, the preliminary inquiry still serves to ensure that extremely weak cases do not proceed to trial. In at least a small percentage of cases, the accused is spared the pain of a trial and a significant amount of resources are saved. It is true that Crown screening will ensure that most hopeless prosecutions are not pursued, but as we were reminded in R. v. Nur, 2015 SCC 15, prosecutorial discretion is no substitute for fair and impartial judicial oversight.
There is no question that changes need to be made to reduce delay. But restricting the preliminary inquiry in the way proposed under Bill C-75 will not reduce delay. It may do the opposite, while eroding the accused’s substantive and procedural rights.
1 Legislative Summary of Bill C-75 | ↩
Mila Shah is a criminal defence lawyer at Peck and Company Barristers.