Criminal Law

Dale testifies on Bill C-75 before parliamentary committee

By Staff

In recent testimony before a House of Commons Justice Committee, Toronto criminal lawyer Laurelly Dale said the elimination of preliminary hearings, as proposed by the federal government's Bill C-75, would obstruct the administration of justice. LISTEN @ 15:58

It's the second time this year that Dale, principal of Dale Law Professional Corporation, has been called to testify before a federal government parliamentary committee. The earlier testimony addressed Bill C-51, which would change sexual assault trial rules.

Bill C-75 was written as a response to the Supreme Court of Canada’s Jordan decision that struck down charges against an accused drug dealer because it took more than four years to bring his case to trial, violating his Charter rights.

The federal government has proposed several measures in Bill C-75, including eliminating preliminary hearings, except for those offences punishable by imprisonment for life, and strengthening the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry.

In her most recent appearance, Dale told the committee the "administration of justice would be obstructed by removing preliminary hearings. It is not a debate between Crown versus defence strategy."

Dale noted, in the first of her four main points, "The removal of preliminary inquiries will not save time. This will have the reverse effect and result in more delay in court.

"The objective of Jordan is to preserve the 11B Charter right to be tried within a reasonable time. It was not to use this case as a weapon that will harm the administration of justice. The claim that this will reduce court delays is false," she explained.

Dale said that only three per cent of cases utilize preliminary hearings and, "The majority of those cases that did proceed to prelim were resolved in provincial court."

She told the committee that two major studies have concluded that preliminary inquiries do not account for a large portion of the court's time and do not contribute substantially to the problem of court delay. To the contrary, "Preliminary hearings facilitate the resolution of potentially lengthy and expensive trials in the Superior Court," she said.

Dale said prelims in fact "facilitate the resolution of potentially lengthy and expensive trials in the Superior Court," and are often used instead of, rather than in addition to trials and serve to expedite the administration of justice. "It is far easier and quicker to obtain a two to four-day prelim as opposed to a one to two-week trial in the Superior Court. At the back of each player’s mind is 'Can we resolve this?'”

Further, she said the data used to support Bill C-75 has been "misinterpreted."

"Firstly, the data does not distinguish between preliminary hearings that were held for those facing life sentences versus those that were not. Second, this data does not capture the cause of delay, meaning whether it was Crown or defence."

Changes in policing and societal trends "dictate what we see as charges in court," Dale told the committee. "#MeToo has had a direct impact on the number of sexual assault charges in court. Testing the evidence in these cases is crucial. Preliminary hearings force the players to consider resolution for a very serious category of offence."

Dale said that Crown attorneys have told her prelims help them organize their files, and weak cases are exposed and charges are withdrawn. And sometimes an accused person might review their position after seeing the evidence in a prelim and plead guilty. Both scenarios save time and money by avoiding jury trials, she said.

But even when a case does proceed to a jury trial, the preliminary hearings "help formulate accurate trial estimates and deal with front-end applications, discovery issues and motions."

In the second plank of her testimony to the committee, Dale said the Crown and defence already have the tools that can be used to bypass the prelmin — and it does happen. She said she often waives a prelim for a variety of reasons, while Crowns prefer indictments. And she warned against assuming "that preliminary hearings are utilized by the defence as a delay tactic or to earn higher fees per file."

Dale told the committee in her third point that "Bill C-75 prioritizes false hope of efficiency over trial fairness," and s. 7 of the Charter "guarantees to those accused of a crime both substantive and procedural safeguards."

She said it's important to remember that prelims are only available to those facing indictable offences, lengthy prison sentences and significant consequences if convicted. "This extra step adds a layer of protection against wrongful convictions of the most serious crimes," Dale said.

"I was raised in north-western Ontario. My maternal grandmother was Metis. My office located in Kenora covers roughly 33 per cent geographic territory of Ontario. We participate in circuit court. Roughly each week we attend remote Aboriginal reservations by squishing into a ‘flying cigar’ plane, crossing our fingers in the hopes that we can land through fog and ice," she said.

"Aboriginal peoples are over-represented in our justice system. They represent 90 per cent of my criminal clients in the north. Overall they represent 4.1 per cent of the population but 27 per cent and 28 per cent of all admissions into correctional facilities."

Indigenous Canadians will be the ones to "suffer the consequences" with Bill-C-75, Dale said. "By adding further delays, they will spend longer (periods) in pre-trial custody. By removing a safeguard, they will be the most likely to be wrongfully convicted. Bill C-75 did not consider how this would impact the most over-represented group," she said.

Finally, Dale said that eliminating preliminary hearings ignores root causes of delay which in fact are "mandatory minimum sentences, disclosure practices, and self-represented litigants."

She predicted the move will ultimately result in lengthy and expensive Superior Court trials becoming the norm "causing a demand for resources that our system cannot fulfil. There is no data to support Bill C-75. My experience and the available data suggests that eliminating preliminary hearings will, in fact, cause significant delay."

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