Ottawa defence lawyers criticize plan to limit preliminary hearings

Ottawa defence lawyers are criticizing a request from Ontario's attorney general to limit preliminary hearings in an effort to speed up the criminal justice system. 

In a letter to federal Justice Minister Jody Wilson-Raybould, Yasir Naqvi has called for "bold changes to speed up and simplify the criminal court process," in response to a ruling last year by the Supreme Court of Canada that has come to be known as the Jordan decision.

The decision set out new provisions for protecting the constitutionally guaranteed right for an accused to be tried within a reasonable time, including a 30-month time limit for Superior Court cases to come to trial.

It has already caused charges to be stayed in several cases locally — including one first-degree murder trial.

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In his letter, Naqvi, also the MPP for Ottawa Centre, called on Wilson-Raybould to reform the Criminal Code by "substantially limiting the use of preliminary inquiries for all criminal cases."

A preliminary inquiry is shorter than a trial and is held before a judge alone to determine if there is sufficient evidence that a conviction may be possible. If not, the accused is essentially acquitted.

The Crown presents evidence and calls witnesses who can be cross-examined by defence counsel.

​Preliminary inquiries should remain in place for cases of murder and treason, Naqvi said. He has asked Wilson-Raybould with a meeting with his federal, provincial and territorial counterparts, claiming that all Canadian jurisdictions are looking for ways to reduce criminal court delays.

'A major step backwards'

James Harbic, an Ottawa defence lawyer who has spent 39 years defending people charged with murder and other serious criminal offences, called Naqvi's request "a major step backwards" 

Preliminary inquiries are a fundamental right for an accused, said Harbic. He argued they allow defence counsel to question witnesses and test evidence, which could lead to the discovery of new evidence that could help a client.

"It's awfully scary when you [are] charged and the state is attempting to take away your liberty," said Harbic. "This will be one more way to minimize the ability to provide a proper and competent defence."

If the province is serious about speeding up the court system, it should hire more Crown attorneys in Ottawa to deal with the backlog of cases in the system, said Harbic.

Eliminating preliminary hearings would be nothing more than "window dressing," he added.

'Band-Aid solution'

In January, Naqvi revealed other measures intended to speed up the pace of justice in eastern Ontario, including hiring one Crown attorney who would be embedded within the Ottawa Police Service and another who would focus on reviewing cases for bail eligibility.

While lengthy trial delays are unacceptable, it's not preliminary hearings that are clogging up the system, said Paolo Giancaterino, a defence lawyer with Langevin, Morris and Smith in Ottawa.  

"If we are going to deal with the issue of delay, simply just getting rid of the preliminary hearing is just a Band-Aid solution," Giancaterino told CBC News.

"The bread and butter of the Ontario Court of Justice cases are domestic assaults or impaired trials, and they take up a significant amount of time and court resources." 

In an email, Anne London-Weinstein, president of the Defence Counsel Association of Ottawa, told CBC News there are other ways to improve the system, including hiring more judges and laying fewer charges.

Still a need?

However, many legal experts question whether there is still a need for preliminary hearings, said University of Ottawa law professor Sébastien Grammond.

That's due to a 1991 Supreme Court decision that makes it the Crown's duty to disclose all evidence so the accused can mount a full and complete defence. 

Disclosure happens before the preliminary inquiry, and Grammond said it prevents defence counsel from being hit with surprises during the trial that could harm the case against an accused. 

"It has rendered the preliminary inquiry largely redundant," Grammond said, adding he does believe the inquiries should always be kept as an option for serious cases.