The federal government is expected to introduce legislation this week to curtail the use of preliminary inquiries in criminal proceedings, as part of an attempt to speed up Canada’s plodding justice system and avoid charges being dismissed because of delays.
The government will also attempt to cut down on the thousands of Canadians each year who clog up the courts over violations of their bail-release conditions, according to a source who was briefed on the proposed changes. In addition, it will seek to reduce the overrepresentation of Indigenous peoples and other racial minorities being denied bail and winding up in custody while awaiting trial, The Globe and Mail has learned.
The long-promised legislation comes in response to a Supreme Court ruling in the summer of 2016, which set new time limits for criminal proceedings. The court said criminal justice suffers from a culture of complacency and delay.
Lawyers representing accused people brought more than 1,000 applications for judicial “stays” of proceedings – which ends a case – in the first half-year after that ruling, in a case called Jordan. Judges tossed out several murder charges, though appeal courts have since ordered two of those cases to go to trial. Alberta set up a “triage” system to focus its resources on the most serious cases and, along with Quebec and Ontario, poured in millions of additional dollars adding judges, prosecutors and court staff. Nova Scotia experimented with speedy resolution of minor criminal charges.
Preliminary inquiries have been a staple of criminal justice since Canada’s first written Criminal Code took effect in 1892. They are pretrial hearings whose main purpose is to test whether there is enough evidence to proceed to trial.
Ontario Attorney-General Yasir Naqvi had urged the federal government to scrap preliminary hearings for all but serious offences such as murder and treason, and the source said the federal government will move in that direction.
A spokesman for federal Justice Minister Jody Wilson-Raybould declined to comment over the weekend.
Ontario was not alone in calling for the curtailment of preliminary inquiries. Alberta and Quebec also said they contribute to delay and called for changes. Manitoba, in an unprecedented collaboration of its three chief justices and its Justice Minister, had asked Ottawa for a Criminal Code amendment allowing it to launch a four-year experiment, scrapping all preliminary inquiries.
The proposals to reduce delays related to preliminary inquiries, administration of justice offences and bail came out of emergency talks nearly a year ago between Ms. Wilson-Raybould and the provincial and territorial attorneys-general in Quebec. The federal minister’s office said departmental officials worked over the summer to develop proposals for legislative action. The ministers convened again in Vancouver in September.
The Globe spoke to several attorneys-general in advance of the expected legislation. Each spoke without knowledge of its contents.
“I think we all agreed in light of the Jordan decision, there was a need to move promptly to make fairly bold reforms to ensure the criminal-justice system continues to function effectively,” Alberta Justice Minister Kathleen Ganley said. “If your system isn’t working efficiently, you’re beginning to see safety be compromised, because people are being let back out on the street who could otherwise have been convicted.”
In Alberta, lawyers made 167 applications for stays from late 2016 until March 18, 2018. Twelve have been granted, prosecutors stayed another 17 proactively and another 12 remain to be resolved. (Others were rejected by judges or withdrawn by the defence.) At least 200 more charges in Alberta, including some involving violence, were dropped because of a shortage of prosecutors, before an outcry prompted the province to hire dozens more. The Canadian Bar Association, representing 36,000 lawyers, says the provinces, which handle most of the country’s prosecutions, are being “opportunistic,” in using delay to weaken an important protection for accused people.
“The preliminary inquiry has been on some political hit lists for more than a decade,” said Eric Gottardi, a Vancouver criminal lawyer authorized to speak on the CBA’s behalf. (He spoke without advance knowledge of the government’s legislative response expected this week.)
“The idea that preliminary inquiries are contributing to delay problems in any of the provinces is a red herring. There’s just no evidence on that.”
In Jordan, the Supreme Court was asked to clarify the constitutional right of an accused person to a trial within a reasonable time. It set 18 months as the limit in Provincial Court, from the laying of a charge until the completion of a trial. It set a maximum of 30 months in Superior Court. Cases already underway followed somewhat more lax, “transitional” rules. But the 18 months are now up in Provincial Court, and cases reaching Superior Court today are also being judged under the stricter new standards.
In 2014-15, more than 9,000 preliminary inquiries were held, involving just under three per cent of the 328,000 criminal trials completed that year in Canada. In trials with preliminary inquiries, 1,747 ran longer than today’s Supreme Court deadline of 30 months for proceedings in Superior Court.
Mr. Naqvi, Ontario’s Attorney-General, said that, in cases in his province that have preliminary inquiries and go on to trial, the average time to complete proceedings is more than 30 months.
He also said that, long ago, preliminary inquiries were necessary to disclose the prosecution’s case to the defence before trial. But since 1991, when a Supreme Court ruling made disclosure of the state’s case mandatory, that justification for preliminary inquiries no longer exists, he said.
Last April, Ms. Wilson-Raybould promised legislative action in five areas, of which four are deeply contentious. Reducing the role played by preliminary inquiries was one. Another was eliminating some mandatory-minimum sentences for crimes involving drugs, guns and sexual offences against children, or giving judges discretion to opt out in exceptional cases.
She also promised changes to Canada’s bail system, without being specific. More people are in custody in provincial jails while awaiting trial than those who have been found guilty of an offence, government statistics show.
Administration of justice offences was another area of promised change. These offences involve a breach of a release condition set by a court, breach of probation, being unlawfully at large or failure to show up in court. More than one in five cases completed in criminal court in 2014-15 was an administration of justice offence, according to Statistics Canada.
A fifth area involved making more crimes “hybrid offences:” that is, punishable either as a less serious summary offence, or as an indictable offence. The hope is that dealing with more offences as summary offences would allow for more plea bargains and shorter trials. Ontario proposed stiffer maximum penalties than currently exist for summary offences, making it easier for prosecutors to choose the summary approach in a hybrid offence.
Quebec says the government has moved slowly on delay. “The bill was expected to be tabled during the parliamentary session last fall (the ministers’ meeting was even advanced to September to leave the federal minister more time to prepare the bill after the meeting),” Justice Minister Stéphanie Vallée said in an e-mail to The Globe.