Criminal Law

Preliminary hearing vital component of justice system

By Jennifer Pritchett, Associate Editor

Toronto criminal lawyer Joseph Neuberger is one of four lawyers involved in a murder case to tell the Globe and Mail that the Ontario attorney general's department made their clients choose between a preliminary hearing and the right to a timely trial.

Prosecutors "are under orders to prefer indictments and to limit preliminary inquiries or to get rid of them completely,” Neuberger tells the newspaper.

He represents one of the accused in the case, which returns to court again March 30.

In an interview with AdvocateDaily.com, Neuberger, partner with Neuberger & Partners LLP, says the case is a “stark example of a misguided and potentially dangerous policy by the attorney general that will only serve to erode due process and infringe other deeply entrenched principles of fundamental justice that are in place for the protection of all."

Neuberger says the preliminary hearing is a vital component of the criminal justice process that, when used efficiently, serves the ends of justice and helps protect against wrongful convictions.

"It's not the prosecutors, but the larger policy of the AG that will cause injustice, and damage a system that stands as a beacon of fairness in contrast to other countries," he says. "I seriously hope there will be careful and meaningful dialogue before preliminary hearings are curtailed, or worse, eliminated.

Neuberger and other lawyers expressed frustration to the Globe as pressures to speed up court proceedings mount following the Supreme Court of Canada's decision in R. v. Jordan in July 2016. The high court described a "culture of complacency" in the justice system and set new timelines for cases to be dealt with, says the article. Jordan says that matters before the Superior Court should be completed in 30 months and those in the provincial courts within 18 — otherwise, charges will be stayed.

Neuberger and the other three lawyers tell the newspaper the stakes are high in their case as their clients are accused of first-degree murder in connection with the 2014 shooting death of 31-year-old Tariq Mohammed at a restaurant in downtown Toronto. Each faces an automatic life sentence with no chance of parole for 25 years if convicted, says the article.

The lawyers say that partway through their four-week preliminary inquiry in January, one of the Crown prosecutors in the case insisted the accused provide written waivers of their right to timely justice or the prelim. would end and the case would go directly to trial, reports the Globe.

The attorney general's department declined to comment to the newspaper while the case is before the court.

While a 2005 government memorandum deemed bypassing a preliminary hearing and going directly to trial as exercising “an extraordinary power,” Ontario Attorney General Yasir Naqvi issued a memo in November 2016 giving the Crown wider latitude to ask the AG for a direct indictment, says the newspaper.

Since the memo was issued, there have been 11 direct indictments in Ontario, compared to one in 2015 and five in 2016 (by November), says the article.

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