Faced with accused killers and child abusers walking away from charges because of court delays, Ontario Attorney-General Yasir Naqvi is calling on federal Justice Minister Jody Wilson-Raybould to scrap a basic feature of the criminal-justice system – the preliminary inquiry – in all but the most serious crimes. He says it adds "many months" to legal proceedings, and is no longer useful.
Mr. Naqvi is also urging his federal counterpart to convene a special one-day session of attorneys-general to discuss how to respond to new rules on delay, a call endorsed by Quebec, Manitoba and Alberta.
The requests come as the Canadian justice system continues to be shaken up by a Supreme Court ruling last July known as R. v. Jordan that set strict time limits on criminal proceedings – 18 months in provincial court, and 30 months in superior court. Lawyers across Canada have asked for criminal proceedings to be dismissed in more than 800 cases because of unreasonable delay, a Globe and Mail review found.
Already, two men accused of first-degree murder – one in Mr. Naqvi's home community of Ottawa – have had their charges thrown out because of unreasonable delay. (Both decisions are under appeal.) Another case, also in Ottawa, involved a young father accused of child abuse when his infant son suffered two broken ankles. And Ontario has more than 6,500 criminal cases beyond the 18-month point in provincial court.
Mr. Naqvi likened the time limits to new rules for a hockey game that is midway through the third period; while the Supreme Court intended to add clarity and restore faith in the system, the ruling "may, in fact, be having the reverse effect thus far," he said in a speech in Toronto on Tuesday.
And in a letter to Ms. Wilson-Raybould sent the same day, he said, "The Jordan decision is having a profound impact on the criminal justice system across Canada. In recent months, a growing number of cases have been affected in provinces and territories across the country, including some of the most serious cases in the system."
In addition to his call for an end to most preliminary inquiries and a national meeting, he urged his federal counterpart to fill 11 vacancies on Ontario's Superior Court, three of them in Ottawa. Currently, Canada has a near-record 60 vacancies on federally appointed courts.
Ms. Wilson-Raybould said in an e-mail that said she has received Mr. Naqvi's letter and will respond "in due course."
"Our government is committed to ensuring our criminal justice system works efficiently and effectively. I have been working closely with my officials to engage with our Provincial and Territorial colleagues to address court delays and the effects of the Jordan decision."
Attorneys-general in Manitoba, Quebec and Alberta said they support the call for a national session on Jordan. Manitoba Justice Minister Heather Stefanson said in an e-mail that her province raised the issue of limiting the use of preliminary inquiries at a federal-provincial meeting last October.
"An exceptional situation demands exceptional measures," Quebec Justice Minister Stéphanie Vallée told The Globe. (In Gatineau, Que., on Wednesday, a man accused of killing three people will ask for a dismissal of charges due to unreasonable delay.) She said she would support some modifications to preliminary inquiries, but was not prepared Tuesday to provide details.
The preliminary inquiry is a pre-trial test of whether the prosecution has enough evidence to send an accused to trial. It has existed since the Criminal Code first took effect in 1893, and it goes back to the 13th century in Britain. Some say part of its original purpose was to save scarce judicial resources, by making sure only worthy cases reached trial. Another purpose has also been to disclose the prosecution's case to the defence. But in 1991, the Supreme Court made such disclosure mandatory.
As a result, in R. v. Jordan, the Supreme Court suggested preliminary inquiries were no longer necessary. "Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations," the court's majority wrote. Mr. Naqvi cited the court's suggestion, and said that more effective and efficient means are now being used to assess charges, "most notably a Crown screening standard that is higher than the preliminary inquiry test for committal." (The preliminary inquiry test is whether a reasonable jury, properly instructed, could find an accused guilty.)
Ontario, he said, has done a detailed analysis in recent months, and found that "the vast majority of preliminary inquiries result in the accused being committed to stand trial, yet this step in the process typically adds many months to the length of a criminal case." He did not present any numbers, but said he will be ready to share a summary of the findings with other attorneys-general soon.
Some members of the defence bar are aghast.
"Of course most cases pass the preliminary inquiry test but that's the wrong question," Toronto lawyer Frank Addario said in an e-mail. "Does the preliminary inquiry narrow the issues? Yes. Does it force prosecution and defence lawyers to be realistic about the weaknesses of their case? Yes. Do preliminaries lead to settlements before trial? Every lawyer will say yes. Does it reduce overall clogging in the system by reducing the number of court hours used overall? We don't know, because Ontario didn't analyze that. That should be the main criteria."
Ben Berger, an associate dean at York University's Osgoode Hall law school, said preliminary inquiries achieve other important goals than the ones set out by Mr. Naqvi, such as "narrowing the issues prior to trial, exposing the strength of the Crown's case in a way that can lead to plea agreements or other settlements, and, though uncommon, filtering out cases for which there simply is not sufficient evidence to proceed."
Currently, the Crown may opt to proceed directly to trial – known as a "direct indictment," or "preferring an indictment" – but only with the approval of the Attorney-General or deputy Attorney-General. A practice memorandum that guides Ontario prosecutors says a direct indictment is considered "extraordinary" and is used infrequently.