Good afternoon. I'm grateful for the opportunity to be before the committee today.
My name is Laurelly Dale. I am a criminal defence counsel of over 11 years. I share an office in downtown Toronto with the reputable John Rosen, and I also have an office in northwestern Ontario, in Kenora.
I am first and foremost an officer of the court. My views today are in response to your invitation to offer my opinion on a fragment of Bill C-75 that would eliminate preliminary hearings.
Extensive consultation with lawyers is necessary to shape our pending laws. As defence counsel, I am but one player in the larger administration of justice. I submit to you that there is a disconnect between reducing delay by eliminating preliminary inquiries. The administration of justice would be obstructed by this removal. It is not a debate between Crown versus defence strategies.
I am also a member of the Criminal Lawyers' Association, and I adopt and support their position on this. It's not my intent to reiterate their position. I'm here today to provide you four reasons justifying my position.
First, disposing of preliminary hearings will not save time. This will have the reverse effect, by causing further delay in court. We're well aware of the Supreme Court of Canada decision in Jordan declaring a specific presumptive ceiling of 30 months with or without a preliminary inquiry. The objective of Jordan is to preserve the section 11(b) charter right to be tried within a reasonable time. It was not to use this case as a weapon that will harm the administration of justice.
The claims that this will reduce court delays are false. Only 3% of cases utilize preliminary hearings. The majority of the cases that did proceed to preliminary hearing were resolved in provincial court. Two major studies have concluded that preliminary inquiries do not contribute substantially to the problem of court delay. Preliminary hearings facilitate the resolution of potentially lengthy and expensive trials in superior court. They are often used instead of rather than in addition to trials. They expedite the administration of justice. It is far easier and quicker to get a two- to four-day prelim, as opposed to a one- to two-week trial in superior court.
Recently I've had two matters proceed to prelim that ultimately saved the court from having two very expensive jury trials in the superior court. The first was a consent issue in a sex assault case. We proceeded to prelim. My client was able to truly appreciate the evidence against him in a way that watching video statements cannot. Midway through the day, my client reviewed his position and decided to plead guilty. The complainant left knowing that she would no longer be needed to testify in that matter. In the second, after day one of the prelim, the Crown was made aware of weaknesses in their case. The preliminary inquiry revealed a complete lack of evidence for the charges, resulting in a withdrawal.
None of those results could have been attained in the same time frame had we proceeded directly to the superior court. Preliminary inquiries help formulate accurate trial estimates and deal with front-end applications, discovery issues, and motions.
I ask you to look at the youth criminal justice system. This is an example of an existing system that doesn't have preliminary inquiries except in rare circumstances. There are still delays in the youth system.
I had a youth client who was charged with aggravated assault. The complainant was a child of eight months. The charges were very serious. The child suffered a cerebral hemorrhage that caused permanent damage.
Young offenders are not permitted a preliminary hearing except if charged with murder or as an adult or if proceeded with as an adult. This case is an example of one for which we needed a preliminary hearing. There were major causation issues. The Crown did not produce an expert report, but still wanted to proceed. There was limited medical evidence. In order to fully answer and defend the charge against him, my client required numerous third party records. The section 11(b) time was running out through no fault of the defence. We scheduled the trial not knowing how many experts there would be or if there would be charter issues. We received medical records through third party records application.
From those, we needed further child and family services records to begin the process of organizing our own expert. Evidence substantiating this could be obtained through the testimony of the mother's child, through the trial that would be adjourned mid-testimony to proceed with a third party records application. This is getting very much into the weeds, but it's establishing a real point that from there, transcripts would be ordered and another third party records application scheduled. We'd hear the schedule, wait 60 days to produce the records and another 90 to organize our expert. The trial would resume many months later. This would be our world if we eliminated preliminary hearings in the adult system. This is not how justice was intended to be administered.
The second justification is that both players, defence and Crown, already have tools that can be used to bypass the preliminary hearing. Deciding to have a preliminary hearing requires a case-by-case analysis. We must not assume that they are to be utilized by defence as a delay tactic or to earn higher fees per file. As defence counsel, I am often waiving preliminary hearings for a number of reasons. Sometimes it's because of the offence and jurisdiction, other times my client's in custody, or sometimes it's because of the strength of the Crown's case.
I was counsel involved in a large drug project in Toronto. Multiple accused were involved. We had a five-day prelim scheduled for November, and in a rare move the Crown preferred the indictment. This is a tool that they have. The authorization of the Attorney General is required; however, the Crown has used this tool to now force this matter to skip over prelim right into the superior courts.
The third justification is that Bill C-75 prioritizes false hope of efficiency over trial fairness. Section 7 of the charter guarantees both substantive and procedural safeguards to those accused of a crime. It is important to remember that preliminary inquiries are only available to those facing indictable offences, lengthy prison sentences and significant consequences if convicted. This extra step adds a layer of protection against wrongful convictions of the most serious crimes.
I was raised in northwestern Ontario. My paternal grandmother was Métis. My office in Kenora covers a substantial territory in the north. We participate in circuit court. Each week, roughly, we attend remote aboriginal reservations by squishing into cigar planes and crossing our fingers in the hopes that we land through the fog and ice sometimes. It is well known, sadly, that aboriginal peoples are overrepresented in our justice system. In my office located in Kenora, they represent over 90% of my criminal clients.
It is they who will suffer the consequences of this amendment. Adding further delays means they will spend longer in pretrial custody. Removing a safeguard means they will be the most likely to be wrongfully convicted. Bill C-75 did not consider how this would impact the most vulnerable group.
My fourth and last point is that eliminating preliminary hearings ignores the root causes of delay. I'm not here to provide you with an exhaustive list. However, substantive research has established that delay is caused by mandatory minimum jail sentences, disclosure practices, and self-represented litigants.
In conclusion, eliminating preliminary hearings will impede the administration of justice. Discretion is stripped away at the provincial level. Lengthy and expensive superior court trials will become the norm, causing a demand for resources that our system cannot fulfill. There is no data to support Bill C-75. My experience and the available data suggests that eliminating them will, in fact, cause significant delay.
Bill C-75 represents an illogical response to court delay. The public could lose confidence in our administration of justice if our accused are stripped of their ability to make full answer in defence, and court delays inevitably will still exist despite the elimination of preliminary hearings.
Subject to any questions, those are my submissions.