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CBA stance on preliminary inquiries a sound viewpoint

The Canadian Bar Association’s position that preliminary inquiries aren’t a source of delay but rather save time and resources for the court system, is a sound and evidence-based viewpoint, says Toronto criminal lawyer Christopher Hicks.

“I endorse their statement that there is no hard evidence that preliminary inquiries are a major reason for court delays,” he tells

Hicks, partner with Hicks Adams LLP, weighs in on the hot-button issue as the Canadian Bar Association (CBA) appeals to the federal Justice Minister Jody Wilson-Raybould to save the preliminary hearing as some jurisdictions in Canada, including Ontario, contemplate removing that step in the court process as a time-saving measure in all but the most serious matters, reports the Globe and Mail.

The issue heated up after the July 2016 Supreme Court of Canada ruling, R. v. Jordan, imposed strict timelines for trials to be heard – 18 months for provincial court and 30 months for superior court.

By November, the courts had stayed murder charges against a man in Alberta and another in Ontario, citing delays in the process, reports the Globe. Since then, governments and the legal community have tried to come up with solutions for the longstanding problem of “slow justice,” and the wait for a preliminary hearing has become part of that discussion, says the article. 

Ontario’s attorney general has called on the federal justice minister to eliminate all preliminary inquiries except those for serious crimes such as murder, treason and others.

“Fears have been escalating about a landslide of serious charges being stayed and accused people being released with impunity,” the CBA's Loreley Berra, says in a letter to Wilson-Raybould. “Any connection between courts [sic] delays and the preliminary inquiry is speculative at best.”

The CBA, which has 40,000 members that include prosecutors and criminal defence lawyers, highlights in its letter that research shows that only one-quarter of all eligible cases opt for preliminary inquiries and the proportion of cases with a preliminary inquiry is less than five per cent of court caseloads in every part of Canada, reports the Globe. The group also says two per cent of court appearances, at most, are used for preliminary inquiries, and that the majority of hearings take two days or less, says the article. 

Hicks, who has been practising criminal law for more than 25 years, says preliminary inquiries play a valuable role in the criminal justice system.

“Experienced criminal lawyers know the merits of this stage of the legal process include an opportunity to cross-examine prosecution witnesses, especially important Crown witnesses, and determine their value for a possible trial,” he says. 

The fact is, Hicks says, witnesses simply do not always say what they are expected to say.

“While some prosecution witnesses may clearly be unnecessary at trial, the value of others may be diminished or augmented after cross-examination at the preliminary inquiry, and in this way, a trial can be streamlined and shortened,” he says. 

Hicks says prelims also help the accused’s counsel focus on the possible defences available to their clients, and eliminate others, in light of the testimony of prosecution witnesses.

“This process of clarification and elimination reduces the length of a jury trial.”

Hicks says the preliminary inquiry may also demonstrate to both the defence and prosecution that the charge is best resolved through a plea bargain, not a trial.

“It could be the prosecution evidence is formidable and that only desperate defences are even remotely available,” he says. “Because of that, the wise client may well instruct his counsel to seek a resolution of the allegations without the need for a trial.”

Perhaps most importantly, says Hicks, “the elimination of preliminary inquiries would impact the right of accused persons to make full answer and defence – a Charter right – to the allegations against them.”

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