Editorial: Time to eliminate preliminary inquiries?

Should Canada’s justice system move towards eliminating preliminary inquiries in all but the most serious cases?

That’s one of the questions as Alberta is touting the increased use of direct indictments in order to bypass preliminary inquiries and proceed more quickly to trial. The province made the change a few months ago following a high-profile stay in a sex-assault case and now credits the move with significant decreases in court delays.

As with most things, the changes are controversial. Defence lawyers, for example, note the potential negative impacts on the rights of the accused and the fact that preliminary inquiries can help save time by narrowing the issues at trial. In addition, eliminating preliminary inquiries often merely punts a matter to a superior court and thereby crowds the docket there, D’Arcy DePoe, president of the Criminal Trial Lawyers’ Association, told Postmedia recently.

Given the results so far, the Alberta government is calling on the federal government to change the law to eliminate preliminary inquiries in all but the most serious cases. It argues they’re no longer necessary, particularly since the advent of more stringent disclosure requirements largely eliminates one of the key reasons for having them.

It’s an interesting proposal that probably has some merit. But should Ontario follow Alberta’s lead? This province already has a program, Justice on Target, that aims to improve court efficiency by, among other things, providing disclosure more quickly and eliminating unnecessary court appearances. The program has experienced difficulties but it has had some positive results despite concerns it could negatively affect the rights of the accused by inappropriately encouraging early guilty pleas.

What’s clear is that Ontario could implement the program more effectively, as is clear from Ontario Court Justice Melvyn Green’s July 9 ruling in R. v. Huha. In that case, David Huha waited 19 months for an assault trial related to a Dec. 1, 2011, incident at a Toronto bus station. As the ruling notes, the sequence of events indicated significant and ridiculous disarray at the Crown’s office. The prosecutorial mismanagement included sending defence counsel a DVD that had nothing to do with his client; failing to respond to the lawyer’s inquiries; later asserting that the DVD didn’t exist and then suggesting it wasn’t relevant when it finally turned up; changing positions on whether a Crown or judicial pretrial was necessary; and not showing up for a scheduled judicial pretrial because the Crown was on vacation.

Green, after taking the Crown to task for its gaffes, incomplete court briefs, and “dilatory disclosure,” ultimately stayed the proceedings. While this case may be an exception, it’s clear that more effectively implementing what we’re already doing should come before more drastic changes such as eliminating preliminary inquiries.

For more, see "Justice on Target missing its mark: report."

Glenn Kauth

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