By Jennifer Pritchett, Associate Editor

Before any decisions are made about abolishing – or limiting – the preliminary inquiry in Canada, there should be careful research and consideration of the issues, says Toronto criminal lawyer Melanie Webb.

“The preliminary inquiry is not like an optional car feature that’s there for convenience. This is a critical part of the judicial process,” she tells AdvocateDaily.com.

“Instead of proposing some radical change as a reaction to the Supreme Court of Canada’s decision in Jordan, this needs careful thought. Why not look at judicial systems in comparable jurisdictions, especially those where the preliminary inquiry might not still exist, to examine what sort of impact, if any, this has had on delay?”

Webb, principal of Melanie J. Webb, Barrister, points to a letter the Canadian Bar Association (CBA) sent to federal Minister of Justice Jody Wilson-Raybould to make an appeal for the preliminary inquiry. It's a response to letters by attorneys general in both Manitoba and Ontario who wrote to Wilson-Raybould calling for significant limitations on, or the elimination of, that part of the court process.

The calls follow the SCC decision, R. v. Jordan, in July 2016, when the high court set strict timelines for cases to be heard: 18 months in provincial court and 30 months in superior court or charges would be stayed.

Webb, who is secretary of the criminal justice section of the Ontario Bar Association, gives her own view of the issues and isn't speaking on behalf of the association.

The CBA – comprised of 40,000 members, including both criminal defence lawyers and prosecutors – says any connection between court delays and the preliminary hearing is “speculative at best.” In fact, it says rather than being a source of delay, the inquiries “save time and resources in Superior Courts."

The CBA notes that data from Manitoba’s Legal Aid Plan from 2014-2016 shows that “one percent of criminal cases taken by plan staff in that period resulted in an election for a preliminary inquiry (96 cases out of 12,397). Of those 96 cases, 72 did not proceed to trial after the preliminary inquiry took place.”

Webb says the numbers are telling as they highlight how few legal aid cases in Manitoba in recent years elected to have a preliminary inquiry, and most that do are resolved without a trial.

“It’s important to look at what the research says with regard to the statistics in Ontario and other provinces before making a decision that will have an impact across the nation," she says.

Webb says from her perspective, there are important reasons to keep the option of a preliminary hearing alive.

One of those benefits, she says, is it helps narrow the issues for the trial.

“This isn't just good for the defence, it’s also beneficial for the Crown — not to mention the administration of justice as a whole,” she says. “It can streamline things to run more smoothly and more predictably at trial. Both sides have an idea of what to expect, which means everything is more focused and less time is wasted.”

Sometimes, hearing the evidence at a preliminary hearing can prompt the parties to come to a palatable resolution, which avoids a trial, Webb says.

“Even if the accused is not discharged after the prelim., I’ve seen the Crown either decide not to pursue some or all of the charges as a result of a reassessment of their position,” she says.

Webb says if preliminary inquiries are virtually eradicated, the justice system will likely see fewer resolutions and more matters going to trial.

The prelim. can also bring new issues to light, which can result in further disclosure being made long before the trial, she says.

“This is not instantaneous. The Crown has to receive the disclosure from the police, vet it, provide it to the defence, and then the defence needs time to review it with their client and decide whether any further steps need to be taken,” she says. "One of the benefits of a preliminary inquiry is to deal with these issues before the parties get to trial – otherwise, dealing with them mid-trial has the potential to derail the case.”

Webb says a preliminary inquiry can also serve the important function of laying an evidentiary foundation for future pretrial motions such as Charter applications, applications to obtain third-party records, third-party suspect applications, etc., which can be brought in advance of the trial.

She also notes that the Law Society of Upper Canada sets out guidelines for determining whether a preliminary inquiry is available/appropriate.

"There are many factors that go into the decision about whether to have a preliminary inquiry, and a responsible lawyer will take all of those factors into account in considering the option and advising their client accordingly," she says. "We should trust that lawyers will continue to act responsibly in that regard."

Webb says there are other steps that can be taken to reduce delay.

She supports the suggestions the CBA made in its letter to the minister, including: "better disclosure management practices; more robust judicial case management procedures to ensure accurate time estimates; expanded use of charge screening protocols; the prompt filling of judicial vacancies; effective notice provisions to allow for prepared and well-argued pre-trial motions; adequate legal aid funding across Canada; eliminating protracted bail hearings; using technology to avoid unnecessary pre-trial court appearances; and developing further diversion processes to remove less serious and administration of justice offences from the docket."

Webb would also like to see a broad consultation with people who work in the legal system to find ways to reduce delay.

“I’m sure organizations such as the Criminal Lawyers’ Association in Ontario, and other groups representing the defence bar and prosecutors across Canada will have ideas,” she says. “This should be an ongoing dialogue, and it’s important to hear from the people on the front lines who deal with these issues on a day-to-day basis.

"The issue of delay and how to remedy this problem requires action, but it also requires forethought and consideration of long-term consequences,” adds Webb.