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Globe editorial: Putting preliminary inquiries on trial, for the sake of justice?

With each passing week, the crisis in Canada's criminal courts caused by the Supreme Court becomes more apparent.

The high court ruled last July that trials must be completed within a firm timeline: 18 months for cases in provincial court, and 30 months in superior court. Exceptions can be made, but in their absence the accused walks away free on the grounds that their Charter right to be tried in a "reasonable time" has been violated, and the victims of crime are left bereft of justice.

Last week, The Globe reported that defence lawyers for more than 800 accused persons – some of whom are charged with murder, attempted murder and child abuse – have applied to have those cases suspended because of the ruling known as R. v. Jordan.

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Read more: With accused killers poised to walk free, Ottawa urged to take action on court delays

Related: Ontario prosecutors told they can skip preliminary inquiries to avoid delays

Related: Victims of crime pay the real price for unreasonable delays

On Tuesday, Ontario Attorney-General Yasir Naqvi raised the temperature when he called on the federal government to allow courts to scrap the preliminary inquiry – a pretrial hearing before a judge that is used to test the evidence in a case and determine whether it is strong enough to go to full trial.

This would be a drastic move. But what choice does a beleaguered Attorney-General have? Preliminary inquiries eat up months in a criminal case, and Mr. Naqvi says he has the results of an analysis that show that, in most cases, they do little to affect the outcome, other than postpone it.

In Manitoba, the chief justice of the Court of Queen's Bench complained in 2014 that preliminary inquiries can take two years to complete, and proposed getting rid of them in many cases. Part of Glenn Joyal's argument was that Crown prosecutors have been required by law since 1991 to fully disclose all their evidence to the defence before trial, something that used to take place during a preliminary inquiry.

Defence lawyers see it differently. Eliminating a step that might force a Crown prosecutor to concede that the evidence against their client is weaker than advertised is not something they would naturally support.

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But the point is, something has got to give. The Supreme Court's ruling is not going to be that thing. It is up to the Crown to sort out this crisis, but it can't do it without input from the defence bar. Both may need to concede ground. Mr. Naqvi has started an important national conversation. For the sake of justice in this country, people need to start listening.

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