Preliminary Inquiries: Should They Stay or Should They Go? (a law student's perspective)
One of the most prevalent issues pertaining to the Canadian criminal justice system is court backlog. The 2016 Jordan decision exacerbated this problem because it created new and shorter time limits for cases to be tried.1 Provincial court cases now have 18 months to be tried, and superior court cases or provincial cases tried after preliminary inquiries have 30 months to be tried.2 This decision has led to charges for serious offences such as murder being stayed across the country.
Provinces have realized that thousands of cases are privy to the 18 and 30-month threshold and are responding by dropping cases. In Alberta, 200 cases were dropped in order to prevent future murder and other serious charges from being dropped.3 While the tactic of dropping numerous lesser charges achieves the goal of prosecuting fewer more serious charges, is this just? Will society accept this strategy on an ongoing basis?
With the courts racing against the clock to address with processing cases, some provinces are proposing ways to speed up court proceedings. The Manitoba Government announced that it is seeking for Ottawa to amend the Criminal Code so that the preliminary inquiry process can be removed.4 In its place, a four year long pilot project is being suggested, where an alternative out-of-court discovery process would be used when an accused faces a charge for an offence with a sentence of more than ten years.
The chief justices of Manitoba, the Court of Queen’s Bench, and Provincial Court co-signed Justice Minister Stefanson’s letter to federal Justice Minister Wilson-Raybould. The support of the chief justices sends a strong message that preliminary inquiries are not necessarily needed, but this may be a response to court backlogs. The timeliness of their support correlates with the resource- based and financial restrictions that courts face. Perhaps the chief justices’ opinions of preliminary inquiries would be different if the system was not bogged down with resource- based limitations and Jordan.
With the proposal of an out-of-court discovery process for charges that carry sentences of ten years of more, the majority of criminal charges would not be privy to the discovery process. According to the federal Department of Justice, 2.7% of charges have preliminary inquiries, which amounts to over 9,000 cases.5 It is very likely that there would be significantly fewer discovery process hearings.
Ontario and Quebec are also proposing the abolition of preliminary inquiries.6 Manitoba may be among the minority of provinces proposing policy changes that will eventually become the norm. Alternatively, it may be missing the mark on addressing the chronic problems that all departments of justice in Canada are struggling with.
There has been significant discussion about preliminary inquiries. The Manitoba Criminal Defence Lawyer Association has been vocal about its opposition to the elimination of preliminary inquiries. In a letter to the Minister of Justice and Attorney-General of Canada, the Association mentioned various concerns, including not being asked for their input on such a substantial change to the administration of justice.7 They cited various factors contributing to court backlog, including insufficient judicial resources, and mandatory minimum sentences.8 They also pointed out that preliminary inquiries are generally not very lengthy in Manitoba.9
The Association cited an excerpt of a 2016 Manitoba Court of Queen’s Bench decision (R. v. Catellier, 2016 MBQB 190 at paras 69-70), where the Honourable Madam Justice McKelvey wrote:
“The ancillary role of preliminary inquiry continues to serve as an opportunity to explore the Crown’s case, particularly by way of cross-examination. This has allowed the defence to secure a record of sworn evidence that can later be used at trial to challenge the credibility of a witness. The ancillary exploratory role remains as an operative and relevant element in accordance with much of the referenced case law, as well as procedural protection for an accused”.10
Justice McKelvey’s words suggests that there is still an important role for preliminary inquiries.
The disapproval of removing preliminary inquiries is nation wide. The Canadian Bar Association’s criminal justice section added its stance through a letter written to the federal Minister of Justice. It noted that preliminary inquiries actually speed up the court process by freeing up court time in superior courts.11 It was pointed out that without preliminary inquiries, superior court trials would be subject to the 18-month time frame.12 If the system is struggling to work with the 30 month time frame, reducing it by almost half would not be realistic. The letter referenced the lack of evidence to support the Manitoba Government’s claims that eliminating preliminary inquiries would reduce court backlog, increase access to justice, and address the lengthy amount of time that inmates spend in custody.13
The Canadian Bar Association also published a document titled “Top 10 Ways to Reduce Court Delays”.14 Many of its recommendations echo those presented by the Manitoba Criminal Defence Lawyer Association, and also mention providing adequate legal aid, prioritizing early resolution, modernizing courts with technology, and keeping preliminary inquiries.15 The list of ways to reduce delays contains various unique options that have yet to be fully tested and tried. Manitoba could work towards implementing these recommendations prior to any pilot projects.
It appears that the professional opinions of members of the legal field weigh in favour of keeping preliminary inquiries. The Manitoba Government’s strong interest in abolishing preliminary inquiries appears to lack consultation with various stakeholders. The process of amending the Criminal Code and abolishing preliminary inquiries could realistically take years to implement, and regardless, in my view, they should stay.
1 R v Jordan, 2016 SCC 27,  1 SCR 631.
2 Ibid. at para 5.
3 Sean Fine, “Courts Shaken by Search for Solutions to Delays”, The Globe and Mail (12 March 2017), online: <http://www.theglobeandmail.com/news/national/courts-shaken-by-search-for-solutions-todelays/article34275019/>.
4 Laura Glowacki, “Manitoba Looks to Get Rid of Preliminary Inquiries to Deal With Court Backlog”, CBC News (27 February, 2017), online: <http://www.cbc.ca/news/canada/manitoba/manitoba-preliminary-hearings-pilot-1.3998883>.
11 The Canadian Bar Association, “Eliminating Preliminary Inquiries Will Not Fix Judicial Delays” (15 March 2017), online: <http://www.cba.org/CMSPages/GetFile.aspx?guid=464776c2-346f-487a-a203-6895c8d5edd6>.
14 The Canadian Bar Association, “Top 10 Ways to Reduce Court Delays” (16 March 2017), online: <https://www.cba.org/Publications-Resources/Resources/Top-10-Way-to-reduce-court-delay>.