Thank you.
Thank you to all the members of the committee for having me here again. It's always a pleasure and an honour to appear before you.
I'm going to be limiting my submissions this evening to the issue of preliminary inquiries. We know that Bill C-75 endeavours to make a number of wide, sweeping amendments to the Criminal Code, and most of those amendments are being made in an effort to hopefully modernize the justice system and to help curb delay and to conform with the presumptive ceilings as established by Jordan. I certainly applaud those efforts.
As the committee is also well aware, the purpose of preliminary inquiries is to evaluate and test the strength of the Crown's case, not to make any binding determinations with respect to guilt. They are currently available for all indictable offences.
Bill C-75 seeks to restrict the availability of these inquiries to offences committed by adults that are punishable by life imprisonment. It also seeks to strengthen the judge's powers with respect to limiting the range of issues that can be explored and the witnesses that can be called. It's important to note that the Criminal Code, under section 537, already allows a judge to have general powers to regulate the preliminary inquiry process, but of course this bill seeks to make those much stronger.
The guiding rationale behind this appears to be squarely in line with attempts to curb delay. Now, we know that when a person does decide to go ahead with a preliminary inquiry, the matter will take significantly longer to conclude and is likely to use more judicial resources. That is supported by statistics from Statistics Canada, as well as The Canadian Bar Association, and I've provided footnotes for those statistics in my brief, which has been provided to members of the committee in advance. It's also available online.
While it is true that it does take longer, the same studies have also revealed that very few people actually ever elect to undergo this process. The vast majority of people who are charged with criminal offices do not engage in a preliminary inquiry, and depending on the statistics that we're looking at, the frequency of these inquiries is between about 2.8% and 5% of all criminal matters, which is minute. There are also statistics to support that the prevalence of these inquiries is rapidly and steadily declining over the years. There are all kinds of explanations or theories about why that is, but more likely than not it's because of heightened disclosure requirements following the Stinchcombe decision.
That doesn't mean that preliminary inquiries are irrelevant. It doesn't mean that they should be done away with in the interests of curbing delay either. In fact, because they're so rarely used, the delay that we're seeing in our criminal justice system cannot be attributed, in my view, to preliminary inquiries; doing away with them will create perhaps some decrease in delay, but it could be negligible at best.
There's evidence to also suggest that doing away with preliminary inquiries can or may actually contribute to delay, because preliminary inquiries are very helpful at streamlining criminal proceedings, and when they are used, they're helpful to defence counsel, to Crown counsel, and to an accused person.
Preliminary inquiries are useful are the discovery of witnesses, both civilian witnesses and police witnesses, and that's extremely useful for defence counsel and for an accused person who doesn't have the benefit of interacting with these witnesses prior to trial and doing pretrial interviews.
They're also useful in uncovering potential charter issues that can be argued at trial. They're useful in eliminating weak charges and in fostering resolution discussions that are more meaningful. They're also extremely useful at ensuring that trial issues are focused and witnesses that perhaps don't need to be called aren't called at trial. For the Crown, a preliminary inquiry may reveal insurmountable weaknesses or challenges in their case that may ultimately lead them to either withdraw the charge or stay the charge or to engage again in more meaningful resolution discussions. For defence, it can reveal the gravity of the evidence against the accused person and it may elicit an early guilty plea, which can be taken as a mitigating circumstance in sentencing, which of course is to the benefit of your client.
They're also a very useful tool for people who are unrepresented. As my friend Ms. Hassan has mentioned, not all people can afford the benefit of a lawyer. The preliminary inquiry allows a person who's unrepresented to interact with the criminal justice system in a meaningful way without having any jeopardy with respect to their liberty. It allows them to familiarize themselves with evidentiary rules and procedures and it allows them to appreciate the evidence in the case against them and make an informed decision about what they should do—proceed to trial or perhaps enter a plea.
In my view, limiting preliminary inquiries in the way that has been suggested in Bill C-75 will have a disproportionate impact on these people who are more marginalized and who cannot afford the benefit of a lawyer.
We know that the allegation of a criminal offence is one of the most stigmatizing things that anybody can face. It can significantly limit them in terms of creating new barriers and also compounding already existing barriers. For that reason, accused people do have the right to defend themselves, and it's a charter-protected right to do so under the full ambit of the law.
Procedural protections like these are extremely important; in fact, they're essential. The decision in 2016 in R. v. Catellier was just one recent judgment that recognizes the importance of procedural fairness and the preliminary inquiry process. In that case, it was described as a procedural protection for an accused person.
As a criminal defence lawyer, I do, at the end of the day, have significant concerns about limiting such a valuable exploratory tool that has been made available to people who are accused of criminal activity in this country. I have particular concerns about doing so without the evidentiary basis for it.
Delay in the criminal justice system is, of course, in nobody's best interest. It's not in the interest of the community or the complainant. It's not in the interest of witnesses, and it's not in the interest of the accused person either. They do want to have a final resolution to the matter. If they're detained, they want to ensure they're spending the least time possible in pretrial custody. In order to curb delay and to better deal with this issue of delay and efficiency, I would respectfully suggest that instead of limiting inquiries in this manner, we should adopt a more practical, multi-faceted and nuanced approach to dealing with these issues, such as better practice management.
I've made a list of those suggestions on page 7 of my brief. Some of those, off the top of my head, would be ensuring that counsel is giving more appropriate estimates for trial time and ensuring adequate judicial resources, particularly in remote and growing communities, and so on. I think that these kinds of concrete approaches will ensure that we are combatting that issue of delay while also allowing accused people to have this right to a preliminary inquiry and to have the ability to defend themselves in a proper and adequate manner.
I thank you all for listening to my submission on this. I do look forward to your questions.