The Value of Preliminary Inquiries

By: A. Scott Reid

There has been much talk in the media lately regarding concerns about delay arising from the Jordan decision from the Supreme Court of Canada last summer.  Amidst all the hysteria a shocking suggestion seems to be gaining traction amongst the various provincial Attorneys General – an abolition of the preliminary inquiry.

In Ontario, our current Attorney General, the Honourable Yasir Naqvi, has called for a complete abolition of preliminary hearings except for the most serious offences, those listed in s. 469 of the Criminal Code of Canada (murder, treason, etc.).  Minister Naqvi set out three reasons why, in his view, preliminary hearings are no longer required for the vast majority of indictable matters in a letter to his federal counterpart, Minister of Justice Jody Wilson-Raybould, on February 21, 2017.  Among the reasons for the abolition are the following:

1. The Crown screening standard – a reasonable prospect of conviction – is a higher standard than the preliminary inquiry standard to commit a defendant to trial – whether there is any admissible evidence upon which a reasonable jury, properly instructed, could convict beyond a reasonable doubt.

2. Increased use of judicial pre-trials (JPTs) serves to weed out weak cases.

3. Increased disclosure obligations on the police and Crown serve to effectively eliminate the utility of the discovery function of the preliminary inquiry.

With the greatest of respect to Minister Naqvi, he is wrong with respect to all three suggestions.  It must be remembered that the criminal justice system is inherently a people-driven process.  That is, there are actors in the criminal justice system, Crowns, defence counsel, and even judges, who do not act as they always should.  They make mistakes.

So let’s look at the three reasons Minister Naqvi provides for suggesting that preliminary hearings are no longer needed and examine whether his position is accurate or not.  (Spoiler Alert: it’s not.)

Crown Screening Is a Higher Standard than the Test for Committal

It will be obvious to anyone who practices criminal defence work that this is clearly an erroneous assumption.  Were this factually accurate, then no defendant would ever be discharged at a preliminary hearing.  Yet defence practitioners know that discharges happen.  Sometimes a defendant is discharged of all charges entirely.  While that is admittedly rare, it does happen.  Indeed, I have had full discharges for clients charged with Possession of Cocaine for the Purpose of Trafficking, as well as Robbery with a Firearm in just the past few years.

Clearly these cases made it past the Crown screening process.  The Crowns assigned to prosecute these cases felt there was a reasonable prospect of conviction.  They failed, or refused, to see the weaknesses in their case.  These sorts of stories play out every day in courts across the country.   Other times defendants are committed on some offences, but discharged on others, or committed on less serious charges that what he or she faced going into the preliminary hearing.  The reasons are varied and complex, but often the root cause of Crowns not screening out weak cases properly is an all too cozy relationship between the police and the Crowns themselves.

The prosecuting Crown almost always seeks “input” from the investigating police officers to guide and inform what is essentially a legal decision which is to be made by legally trained professionals, i.e., Crown lawyers.  Of course the police believe they’ve arrested the right person.  If they didn’t subjectively believe that, one would have to wonder why they arrested the person they did in the first place.  The problem arises when the police advocate to the Crown against withdrawing charges because they are convinced of the guilt of the defendant in spite of what the evidence shows.

All too often the prosecuting Crown is swayed by the protestations of the police and refuse to withdraw weak cases early in the process.  Sometimes Crowns fail to withdraw hopelessly weak cases because they too believe in the guilt of the defendant in spite of the evidence.  Other times they refuse to exercise their discretion properly because they misunderstand the force of the evidence, or wrongly believe evidence to be admissible when it clearly is not.

Until Crowns are untethered from police input and properly trained to assess the reasonable prospect of conviction in their cases, this will always remain a problem.  And as long as it remains a problem, the preliminary inquiry serves a valuable function in the criminal justice system.  The preliminary hearing stops the prosecution of these weak cases.  It gives a judge the power to overrule the Crown exercise of discretion.  It allows  a judge to look at the evidence and, in essence, say this case or this charge is too weak to proceed.  In either case, discharges at the preliminary inquiry save time and money down the road.  It speeds up the trial by focusing counsel on the issues that remain.

JPTs Allow Weak Cases to Be Weeded Out

If only this were true.  Anyone who has ever once attended a JPT will know that the judge has no jurisdiction to weed out any cases.  The Crown has an unfettered discretion to withdraw cases or to prosecute them.  Regardless of how much defence counsel explains the weaknesses of the Crown’s case to the judge and the Crown, as long as the Crown insists on continuing the prosecution there is nothing the judge can do.  Indeed, in almost fourteen years of practising exclusively criminal defence, I can only recall one instance where input from the judge convinced the prosecuting Crown to withdraw the charges against my client, which the Crown was considering in any event.

Furthermore, JPTs in the Ontario Court of Justice do not help weed out cases because they proceed on the basis of what is in the disclosure only.  Few and far between are the cases which appear so weak on paper that a judge can lean on a Crown to withdraw.  On the other hand, JPTs in the Superior Court of Justice proceed on the basis of the evidence adduced at the preliminary hearing.  Counsel has seen what the witnesses have said, they know if the witness has contradicted his or her written or video statements.  Much more is known about the case at the Superior Court JPT.

Getting rid of preliminary hearings will turn Superior Court JPTs into Ontario Court JPTs, where decisions about the nature and strength of the case are left to be decided on the basis of the paper disclosure and not much else.

Disclosure Obligations Render the Discovery Function of Preliminary Inquiries Moot

Here again we see the fallacy of Minister Naqvi’s unsupported assumptions.  Without question the highest value of the preliminary hearing is the discovery function.  After fourteen years, I cannot think of even one preliminary hearing where undisclosed evidence was not uncovered at a preliminary hearing.

Sometimes the undisclosed evidence was simply overlooked.  Sometimes it was intentionally withheld by the police.  Most often, until the preliminary hearing no one realized it was available or relevant, so no one thought to look for it.  Once it becomes apparent at the preliminary hearing that something is missing and relevant, it is promptly requested, obtained, and disclosed.

One can only imagine what would happen without the preliminary hearing.  Imagine being in the midst of a six-week jury trial only to discover in cross-examination of a Crown witness that there was relevant, important, disclosure which hadn’t been obtained.  What if the witnesses who had already testified could have been impeached with that evidence?  At that point the likely remedy is a mistrial, which leads to delay, which is exactly what Minister Naqvi claims to want to avoid.

As well, it is rare for the police to put all their observations into their police notes.  It is common for their evidence to develop during their testimony.  Better to know what is coming from a preliminary hearing than to be surprised in front of the jury.  The preliminary hearing cross-examination is also the best way to lay the groundwork for establishing Charter violations for an eventual challenge to the admissibility of evidence.  Very often what looks like a perfectly lawful arrest or search appears clearly improper after cross-examining the police officers at a preliminary hearing.

In a perfect world, disclosure would always be complete when it was received by defence counsel.  In a perfect world Crowns would properly exercise their discretion and withdraw weak cases without trying to extract something to save face.  In a perfect world JPTs would result in weak cases being screened down, or screened out.  But we don’t live in a perfect world.  In the real world in which the criminal justice system operates, the preliminary inquiry is a valuable tool for holding everyone in the system accountable.

When weak cases go to a preliminary hearing because Crowns refuse to see the writing on the wall, judicial resources are saved when matters are discharged, which frees up more time for other cases to proceed through the system.  Even when the case is strong enough to get past the preliminary inquiry hurdle, the holding of the preliminary hearing may convince the prosecuting Crown to see the weaknesses and resolve in the Superior Court, again saving time and resources which can be devoted to other cases.

We can only hope that Minister Naqvi listens to those who have direct, firsthand experience in the criminal courts of Ontario, rather than relying on myths and misconceptions about the role of preliminary hearings.