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Plan to curtail prelims is fixing something not broken: Daviau

The federal government’s plan to curtail preliminary inquiries is an ill-advised attempt to speed up the justice system that may end up slowing it down, says Toronto criminal lawyer Lindsay Daviau.

“They’re trying to fix a system that’s not necessarily broken,” says Daviau, who practises with Rosen & Company Barristers.

The federal government argues that its plan to eliminate preliminary inquiries for all charges except those carrying a life sentence — part of its sweeping Bill C-75 criminal justice reform package — will free up court time.

But it will affect no more than three per cent of cases, Daviau says.

“You actually might see more of delay if you get rid of the preliminary inquiry,” she tells AdvocateDaily.com.

According to Statistics Canada figures, preliminary hearings were requested or held in only about three per cent of completed adult criminal cases in 2014-2015, a consistent trend over the past 10 years, the Toronto Star reports.

Preliminary inquiries — in which a provincial court judge decides whether there is enough evidence to set the matter down for trial before a judge or jury in Superior Court — have many benefits, Daviau says.

They significantly narrow and focus the issues, saving time once the matter comes to trial, she says. The Crown will often withdraw charges after the evidence is tested at a preliminary inquiry. “Take that away and you’re going to end up with more time in the courts,” she adds. 

Daviau has found that preliminary inquiries have helped focus issues in her matters.

For example, the last preliminary inquiry in which she participated was a second-degree murder case where the Crown initially refused to consider a manslaughter plea bargain. But after the preliminary inquiry, the Crown changed its position and offered the lesser charge. “Take away the preliminary inquiry and we’re having a trial,” she says.

Curtailing preliminary inquiries appears to be a reaction to the Supreme Court of Canada’s ruling in R. v. Jordan, which sets a limit of 18 months on the length of time it takes for a criminal case to get to trial in provincial court and a limit of 30 months in Superior Court, Daviau says.

“It seems like an effort to make it look like they’re doing something,” she adds. “I see it as the government not addressing the issues.”

Instead, the government should focus on more important causes of delay such as mandatory minimum sentences, Daviau says.

The government argues that the need for preliminary inquiries has been significantly reduced in recent years because the Crown is under increased obligation to provide full disclosure of its evidence to the defence.

But Daviau counters that such Crown disclosure comes mainly in the form of documents which are less revealing than live evidence tested at an inquiry.

“For example, in a sexual assault case, the complainant’s statement is one thing, but you put that person on the stand and it might be something completely different,” she says. “And that also results in a reassessing of the case and examining the reasonable prospect of conviction.” 

The government argues that eliminating preliminary inquiries will reduce the burden on some witnesses and victims, including sexual assault complainants who would otherwise have to testify twice.

Daviau counters that the right of the accused to test the evidence is just as important as protecting witnesses from testifying twice. “Maybe it’s uncomfortable and, yes, it’s an unfortunate side effect of our system, but it’s an adversarial system. I don’t know that the rights of the accused come second.”

Having witnesses testify at a preliminary inquiry assists the prosecution as well as the defence, she says. “The Crown gets to see that witness testify too, and the witness gains some experience from that.”

With preliminary inquiries severely curtailed, Superior Court trials will be bogged down with more motions and pre-trial testing of evidence as the parties try to sort out issues that could have been flagged earlier, she says.

It hardly seems worth it to justify a saving of no more than three per cent of court time, Daviau says. “It doesn’t seem to be enough of a problem, even if it is a problem, to justify the loss of the benefit.”

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