That old saw about hammers and nails also holds true for scissors: that is, when you think your only tool is a pair of scissors, it will look like cuts are the solution to every problem.
But often cuts, however justifiable they seem in the moment, can end up creating more problems down the road than they were supposed to solve.
AGs in two provinces are now suggesting an end to preliminary hearings as a way to solve problems of delays in criminal courts. The need to find a solution to court delays has been under the spotlight following last year’s Supreme Court decision in Jordan, with reports of criminal cases being stayed or thrown out because it has taken too long for the case to get to court.
Watching a suspected murderer or rapist walk free because it’s taken too long to go to trial is a hard thing for all concerned, from victims to those who live and breathe the justice system.
And yet cutting preliminary hearings will not rectify this situation. Preliminary hearings do not create delays, they help to prevent them. The mistake lies in thinking that a trial merely repeats the steps already taken in the preliminary hearing.
A preliminary inquiry actually allows the defence and the Crown to size up each other’s case and decide whether there’s enough evidence to proceed to trial. The vast majority of cases with a preliminary inquiry are resolved and do not proceed to trial. If they do proceed to trial, the preliminary inquiry helps to focus the arguments and eliminate mistakes, thus moving proceedings along more quickly.
Recent research published in the Canadian Journal of Criminology and Criminal Justice suggests that only 25 per cent of eligible cases opt for a preliminary inquiry. Further, at most two per cent of all court appearances are used for preliminary inquiries.
While the impulse to eliminate unnecessary delays in the court system is a noble one, the mistake is to see scissors – cuts – as the only tool to deal with the problem. Instead, there are a number of innovative ways for all the players to make matters move through the courts more quickly.
Prosecutors could be encouraged to use their discretion to resolve, divert or withdraw matters that shouldn’t take up court time. Most criminal cases do not end with a trial, so if trials are not set unnecessarily, no court time is wasted. Crown charge approval systems assist in weeding out weak cases early on.
Prosecutors and police could improve practices for preparing disclosure, so it gets to defence counsel at first appearance, and in a consistent, readable format. Police could be resourced to hire experienced counsel and support staff to vet disclosure before it goes to Crown counsel.
Judges could ensure a more robust pre-trial process, involving appearances before case management judges with focused submissions on the structure and anticipated nature of the trials and hearings, prompt provision of witness lists and detailed time estimates for examinations and submissions. This would help the judicial process run more smoothly and leave less room for delay down the road.
Defence counsel could use technology to manage routine intake appearances more efficiently. An online system for routine appearances could allow the accused or counsel to appear electronically or by phone, unless a judge is required to settle any dispute.
Governments could help by promptly filling judicial vacancies, assigning adequate resources to the criminal justice system and ensuring sufficient funding for legal aid services across Canada. Removing mandatory minimums, which constrain Crowns’ discretion in resolving cases, and expanding diversionary programs to remove minor charges from the system, are other ways of shifting priorities to early resolution.
There is simply no evidence to back up the claim that preliminary hearings cause delays in the system, and a great deal of evidence to the contrary. We would ask that governments critically evaluate the real reasons for delays in the system and then choose the tools best suited to fix the problem, rather than assume one quick cut will do the trick.
Ian M. Carter is the Vice-Chair of the CBA National Criminal Justice Section and a partner at Bayne Sellar Boxall.
The CBA has written to the federal Justice Minister in support of retaining preliminary hearings.