Manitoba's three chief justices and its Attorney-General are proposing to eliminate all preliminary inquiries during an unprecedented four-year experiment on fighting delay in the criminal-justice system.
In a rare collaboration, the four have written to federal Justice Minister Jody Wilson-Raybould asking for a change to the Criminal Code that would permit the experimental approach. Defence lawyers were not involved in developing the proposal, and are deeply opposed.
Judges are independent from the Attorney-General, who is a frequent and powerful litigant in their courts. But since a Supreme Court ruling last July set time limits on criminal proceedings, courts across Canada face the nightmarish possibility that people accused of serious crimes, including murder, will walk free. In Alberta and Ontario, two men have been freed from first-degree-murder charges because of delay. Lawyers in Manitoba have applied for at least 28 cases to be thrown out. And so the judges decided to act.
"I'm not squeamish about collaborating in efforts that will improve the administration of justice in any province for the benefit of everyone," Chief Justice Glenn Joyal of the Court of Queen's Bench told The Globe and Mail.
"We can't abdicate our role when we're in the midst of a crisis, which calls for some type of joint effort to do what we can," Chief Justice Joyal said.
Preliminary inquiries are pretrial hearings whose main purpose is to test whether the prosecution has enough evidence to proceed. They are a key part of what Chief Justice Joyal called Canada's legal architecture.
They have come under increasing scrutiny since the Supreme Court ruling in a case known as R v Jordan. Ontario Attorney-General Yasir Naqvi called on Ms. Wilson-Raybould this week to scrap most preliminary inquiries, and his government has given prosecutors wider latitude to seek a "direct indictment" – that is, to go directly to trial.
Chief Justice Joyal likened any proposal to limit or end preliminary inquiries to "the third rail of the criminal justice system," and said that was why his group did not consult defence lawyers: "You'll never get to begin, you'll never get a consensus, so at some point there has to be a proposal you can mould and refine and make acceptable more or less to everybody."
The proposal includes a limited alternative to preliminary inquiries: In crimes punishable by 10 years or more in prison, defence counsel could instead apply to a Court of Queen's Bench judge for permission to hold an out-of-court hearing called a "discovery." First, they would have to persuade the judge it is warranted. Defence lawyers could examine just the complainants, and "up to" one other prosecution witness. And only for one hour for each witness.
The process would give the defence a better picture of the Crown's case, but not determine whether the case could be thrown out at that point.
"It would be very circumscribed," Chief Justice Joyal said.
The group of judges (including Court of Appeal Chief Justice Richard Chartier and Provincial Court Chief Judge Margaret Wiebe) and Attorney-General Heather Stefanson sent Ms. Wilson-Raybould a letter and accompanying proposal on Dec. 21 and asked to meet with her. She has not responded yet.
Ms. Wilson-Raybould said in an e-mail to The Globe: "I am listening and keeping an open mind on the subject. Preliminary inquiry reform is a divisive issue and has been for years, including among the provinces."
She said a House of Commons subcommittee is studying the impact of preliminary inquiries on the trial system, and a Senate committee may comment on it when it reports next month. And she left the door open to the proposals from Manitoba and Ontario: "I am open and willing to work collaboratively with the provinces to reduce delays, including possible reforms to the use of preliminary inquiries."
A prominent criminal defence lawyer expressed outrage when told by The Globe and Mail about the proposal.
"It seems that the foundation principle, 'It is better that 10 guilty persons escape than that one innocent suffer,' has been abandoned," Jody Ostapiw, president of the Criminal Defence Lawyers Association of Manitoba, said in an e-mail. "In a province like Manitoba, with a history of wrongful conviction cases, it is shocking to learn this is the case. Eliminating or severely curtailing a procedural safeguard is not the answer."
She called the idea of ending preliminary inquiries a "knee-jerk response" to the Supreme Court ruling, and criticized the Manitoba proposal's one-hour limit for questioning witnesses.
The Supreme Court ruling set 18 months as the time frame from when a charge is laid until the completion of a trial in Provincial Court, and 30 months in Superior Court (or in Provincial Court after a preliminary inquiry).
The Manitoba group told the federal Justice Minister preliminary inquiries can add months or even years to the process. Even apart from the necessity to fight delay, they said a disproportionate number of Indigenous people are denied bail and endure long periods in jail waiting for a preliminary inquiry. They said Independent Liberal Senator Murray Sinclair, when he led Manitoba's Aboriginal Justice Inquiry in 1991, recommended the elimination of preliminaries and the option of out-of-court discoveries.
Ms. Stefanson said the Crown has been required since 1991 to disclose its case to the defence. "The role of preliminary inquiries, the necessity for them, has diminished," she said in an interview.
She called the co-operative effort between the three senior judges and herself a first for Manitoba, and "it could be unprecedented across the country. I think this is a great way to show we're on the same page in Manitoba. We're ready and willing to be part of the solution on court delays." She said that just last week, she had a "very productive conversation" on the issue with Ms. Wilson-Raybould, but declined to reveal more.
Chief Justice Joyal said the Jordan ruling is a chance to rethink how criminal justice works. "I'm not exercised by Jordan. I think it's an opportunity to revisit and re-examine some of the inertia in the system." He said that, too often, changes to preliminary inquiries are treated as a zero-sum game: gains in efficiency produce losses in the rights of the accused. The new approach would address that concern.
He also said the Supreme Court, in earlier cases, has said there is no right to a preliminary inquiry, and that, in Jordan, the court suggested preliminary inquiries may no longer be needed.
"People seem to forget that one paragraph," he said. "It's an invitation to revisit something that perhaps we too casually accepted as simply a fact of our criminal justice system."