Manitoba looks to get rid of preliminary inquiries to deal with court backlog

Two justices, a judge and the attorney general of Manitoba want Ottawa to change the Criminal Code so the province can conduct a four-year experiment on the justice system and see if it helps reduce court backlogs.

In a letter dated Dec. 21, 2016, Justice Minister Heather Stefanson, chief justices Richard Chartier and Glenn Joyal along with chief Judge Margaret Wiebe ask for a meeting with federal Justice Minister Jody Wilson-Raybould to pitch their proposal to conduct a pilot project which would replace the existing preliminary hearing process and — for less serious charges — eliminate it.

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The experiment would see the Criminal Code amended to allow Manitoba to entirely remove the preliminary inquiry process for an accused charged with offences carrying a sentence of less than 10 years. For more serious offences, preliminary inquiries would be replaced with an out-of-court discovery process.

Typically out-of-court discovery processes take place in boardrooms, rather than in court; they are held under oath, transcribed by a stenographer and include both Crown and defence. Witnesses could be called upon to speak but no judge would be present to oversee the proceedings.

The vast majority of criminal charges laid carry sentences of less than 10 years and include charges of sexual assault, fraud and serious driving infractions.

Justice Minister Heather Stefanson said the parties have yet to meet with her federal counterpart but she is optimistic after speaking with Wilson-Raybould on the phone.

"Certainly we all recognize the need for some sort of reform to deal with court backlogs," she said. "We're confident and we're hopeful that we'll have that meeting."

Joyal said preliminary hearings are a source of "considerable delay" in Manitoba's court system. It is not uncommon for an accused to wait longer than a year, sometimes more than two years, for their day in court, he said.

The delays are a source of significant concern as serious charges are currently being stayed in Canada simply because they took too long to be prosecuted.

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In July, the Supreme Court of Canada laid out new rules which stipulate that provincial trials must be completed within 18 months of charges laid, but may be extended to 30 months if there is a preliminary inquiry.

"We are basically offering the minister of justice an opportunity to allow us to deal with the issue of delay," Joyal said. "There are many causes for delay but there's none more obvious and more identifiable [than preliminary inquiries]."

The Supreme Court ruled the preliminary inquiry is not a Charter right, he noted.

"The discovery that the defence council gets through a preliminary inquiry is a benefit … Those benefits are now coming at such a cost in the context of delay, that they are no longer worth the price."

The Justice added court delays have a disproportionate impact on those accused of crimes who are Indigenous.

Sometimes socioeconomic reasons keep accused from making bail, he said. 

"They're basically wasting away as they await their trial," said Joyal. "There's a particular more problem when it comes to our Aboriginal co-citizens."

'An atomic bomb to the system'

The association that represents defence lawyers in Manitoba said if implemented, the province's plan would be a disaster.

"It's going to be an atomic bomb to the system in our view," said Scott Newman, spokesperson for the Criminal Defence Lawyers Association of Manitoba. The organization wrote an open letter to the federal justice minister Friday asking she dismiss the pilot project idea.

Newman said in his experience, preliminary inquiries are a chance to question witnesses and ask questions police may not think to answer.

Often deals are struck or charges dropped during the pre-trial hearings, ultimately saving court time.

"It's a screening mechanism that lets you get rid of the cases that shouldn't go to trial," he said.

A recent example of a charge being dropped during a preliminary hearing includes the case of Jasmine Bushie. Charges of manslaughter and failure to provide the necessaries of life were dropped against the 22-year-old in December. In a lawsuit she later filed, she said she was not living with her family at the time of her infant stepsister's death.

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Newman is demanding the province and justices present data supporting their assertion preliminary inquiries are a cause of court delays.

"The idea that preliminary inquiries are the cause of delay is absolutely ridiculous and untrue," he said. "There's no evidence to suggest that whatsoever."

When Manitoba's Justice Minister was asked what evidence there is to support her argument that replacing preliminary inquiries would save time, she said that's why the province wants to conduct the pilot project in the first place.

"We want to see and develop that evidence," she said. "What we do know is the status quo is not an option."

Feds listening with open mind

The federal justice minister said in a written response she is "listening and keeping an open mind" on the subject of preliminary inquiry reform.

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"Certain provinces, such as Ontario and Quebec, are already testing new approaches to allow for the use of out-of-court discoveries instead of or alongside preliminary inquiries, without requiring Criminal Code amendments. They are to be applauded for these initiatives," Wilson-Raybould said.

She said the Liberal government is "committed to an evidence-based approach to ensuring a just and efficient criminal justice system."

Currently, a policy development committee which includes judges, senior federal and provincial justice officials as well as private lawyers, is looking into the prevalence and use of preliminary inquiries, she said.

In addition, a Senate committee examining court delays is expected to release a final report in March which may also touch on the issue.

Preliminary inquiries are only used in a very small fraction of criminal cases.

The federal justice department said between 2014 and 2015, the hearings were only called in 2.7 per cent of criminal cases, or 9,179 out of a total of 328,000 cases.