Evidence of meeting #107 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was inquiries.
A recording is available from Parliament.
4:30 p.m.
Criminal Lawyer, Abergel Goldstein and Partners, As an Individual
Quite right, and I don't want to waste my time or my client's time either.
4:30 p.m.
Parry Sound—Muskoka, CPC
Okay.
Mr. Fowler, in terms of how things happen in practice, there's a constant evolution of criminal justice and the proceedings. Are you finding that your conclusion is that defence counsel, through that evolution, have come to a position now where the preliminary inquiry is used in an expert way, not for dilatory tactics, and that's where the evolution of that practice has come?
4:30 p.m.
Canadian Council of Criminal Defence Lawyers
I would very much agree with that. I think they are used by defence counsel only when necessary. I think you made a very important point: Nobody wants to develop a reputation for wasting court time. It's so much of an issue now. Court time is so precious. Everybody talks about it from the moment a file comes in and you first appear in court.
Short of being dishonest to the court, the next worst reputation you could develop is for wasting court time. There's just absolutely no advantage to it. That culture has changed completely. Even if it really ever existed, it doesn't exist in people's minds anymore.
4:30 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much.
Thank you all very much for being here. I appreciate your presentations and your thoughtful comments on this.
Mr. Spratt, you spoke anecdotally, and that's what you folks can provide us with today. I recognize there doesn't seem to be a lot of data on this, but in your experience how often are preliminary inquiries waived after they've been set? Could you also comment on how long it takes when you do set one? If they're being waived close to the time that they're supposed to be scheduled, then that court time is being wasted.
4:30 p.m.
Criminal Lawyer, Abergel Goldstein and Partners, As an Individual
I haven't set a preliminary inquiry and then waived it at a later date in recent recollection. I'm sure I have at some point, but that's not a common occurrence. That's because court time is so precious. When we're talking about the root causes of delay—why does it take so long, in some cases, for matters to be heard?—part of the answer, I think, is disclosure, and part of the answer is the legal aid process, but most of it is getting court time. That's the longest delay.
I have clients in custody who I think should have a preliminary inquiry. It could focus the issue and it may be beneficial to them, but they still don't want to set up a preliminary inquiry because it will delay them. It's very rare that a preliminary inquiry will be set and then waived. Even when it is, at least in Ottawa we're double- and triple-booking our courtrooms, so if a preliminary inquiry is set and then waived, at least in this jurisdiction, there is a trial to fill in that time.
4:30 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
You talked a little about a discovery process for criminal proceedings not being available, or not having a mechanism to request one, although I suppose it happens informally. Do you see a way for our system to develop better case management practices and have discovery-type proceedings that happen outside court to save time?
4:30 p.m.
Criminal Lawyer, Abergel Goldstein and Partners, As an Individual
I think so, and especially with such a low standard for committal, I prefer the discovery process. It can be arranged much more quickly and be done much more flexibly. I don't have to stand up when I ask questions. I don't even have to wear a suit. There are lots of advantages to that discovery process, but I think if we're going to rely on it, it has to be a uniform, legislatively based process, because different jurisdictions have different rules, and I don't want to be dependent on the discretion of a Crown about whether they're going to agree or disagree to that process.
4:35 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Do you see that answering most of the concerns here today? It narrows the issues. You obviously have an ability to test some of the evidence. You get to determine whether there are disclosure issues that still need to be fulfilled and these sorts of things.
4:35 p.m.
Criminal Lawyer, Abergel Goldstein and Partners, As an Individual
It would satisfy a lot of my concerns. I don't think it would necessarily apply in all cases, because there still is that screening function. As a practitioner, even though that committal threshold is so low, I've done lots of cases where committal hasn't been ordered on all counts or at all. I wouldn't want to lose that, but in 90% to 95% of the cases that I think should go to a preliminary inquiry, I would be satisfied with a discovery procedure.
4:35 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
If you were to set a preliminary inquiry in Ottawa today, how long are we talking to get there?
4:35 p.m.
Criminal Lawyer, Abergel Goldstein and Partners, As an Individual
If we're looking at a day or two in custody, we might be looking at four to eight months, and out of custody we could be looking at over a year to get that court time.
The other thing about the discovery process is that we don't need judges. That can be done in the absence of judicial intervention for the most part.
4:35 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Mr. Fowler, you talked a little about case management issues. Do you see a way to have case management and discovery to get around the necessity of having a preliminary inquiry?
4:35 p.m.
Canadian Council of Criminal Defence Lawyers
I'm cautious about the discovery process because, from having sat in many different courtrooms on many different days, there's something about the formality of the process, the taking of the oath and the judge being present, that really instills in people's minds that they have to be truthful. We cannot underestimate it. The informality of a discovery process doesn't answer that fundamental issue, which is the pressure to tell the truth. It doesn't deliver the message that we're serious about this now.
In case management, there's such a variety of jurisdictions with their own different needs and resource availabilities. I think centralizing case management in the Criminal Code, other than the Criminal Code conferring that power on provinces and judges, is the answer. The chief judges in the particular provinces or territories are the best ones to be able to determine how best to use case management, given the resources they have and given the fluctuation in cases, the fluctuation in the number of judges, and all those things.
4:35 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Ms. Dale, I'm just curious: You talked about how preliminary inquiry leads to new information or each side seeing what evidence may be proffered at trial actually leads to resolutions more often. Can you give us some anecdotal information on how often matters resolve once a preliminary inquiry has taken place?
4:35 p.m.
Criminal Defense Counsel, Dale Law Professional Corporation, As an Individual
I can indicate that the last two out of three preliminary inquiries I've conducted in the past year have been resolved at the provincial court level. This is consistent with—and I know it's been referenced—the Webster and Bebbington study of 2013. It found, particularly in Ontario, that there were twice as many cases with preliminary inquiries that did resolve at that provincial level.
When I am scheduling preliminary inquiry.... We all have to go through the judicial pretrial process. We sort of have to fight for our time estimates and show why we need the preliminary inquiry, because they're not just granted upon request. A lot of various kinds of information and coordination need to happen before they are scheduled. At the back of everyone's mind, Crown and defence, is whether or not this will result in a resolution at the provincial level, rather than having to escalate to the higher level of court.
4:35 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
If I can just ask very quickly, when a matter is set for preliminary inquiry, how often does it happen that it gets waived or done away with by the person re-electing and pleading out, once it's been set?
4:40 p.m.
Criminal Defense Counsel, Dale Law Professional Corporation, As an Individual
Do you mean in terms of waiving the preliminary inquiry?
4:40 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Well, you would have no need for the preliminary inquiry, because six months down the road you don't need it anymore, because you have re-elected and the person has been pled out.
4:40 p.m.
Criminal Defense Counsel, Dale Law Professional Corporation, As an Individual
I would share my friend's comments. I can't recall recently doing that. It would be a very odd occurrence.
Generally, when a preliminary inquiry is scheduled, it's for a very focused purpose. Although it's referred to as a dress rehearsal of the trial, that's a bit of a generous description, because the Crown isn't required to provide all of their witnesses and evidence. Generally, the parties agree on which witnesses they want to hear from, and it's very focused.
