I think that goes without saying, actually.
I don't want to repeat what my colleagues have said. Again, we all agree that we all agree, which I think is important.
I do want to speak about my experience in Newfoundland, which I believe probably had less than a 3% Jordan issue, even when Jordan was an issue.
My concern, of course, is whether the decision itself has rectified many of the issues that led to Jordan in the first place, and I don't think there's any empirical data to suggest that. Particularly, I would suggest, from my neck of the woods, that a lot of the delay issues have mostly to do with disclosure, as opposed to the preliminary inquiry. That's particularly true in large CDSA cases and in a lot of cases that have a lot of forensic analysis and forensic disclosure, which are pretty commonplace these days. Oftentimes that's the reason that cases are being delayed.
In fact, I would submit that some of the other proposed amendments are going to have consequences in terms of delay. Again, I know we're here to talk about the preliminary inquiry, but if you look at peremptory challenges, I would submit that those are going to be causing delay, because they're going to lead to more challenge for cause applications. The other example that comes to my mind is police officers reading in evidence, which is going to lead to an extra step along the way of defence counsel bringing applications to cross-examine on that.
In terms of whether or not the system has already addressed Jordan issues, I can tell you that it is commonplace now in Newfoundland for all the issues to addressed on the record. Waivers are explicitly asked for. Reasons for postponements are explicitly put on the record, so that they're clear and articulated.
I would go beyond what my friend has said in terms of giving the preliminary inquiry judge more power. I would also suggest that one of the things that could be contemplated is raising the threshold for committal. A scintilla of evidence is actually pretty low. So many times the judge will say, “I can't weigh credibility issues. I can't decide those things.” If the threshold were higher and those issues could be dealt with, I think it would be a lot more effective and even go beyond being able to pare off the cases that don't go to trial. I know anecdotally we've all told you, but I can tell you that in the last two preliminary inquiries that I've had, in one of them the Crown pulled the charge after the prelim because the witnesses were clearly very inconsistent with their statements. With the other one, the strength of the case against my client was so obvious that we ended up making a deal.
I would think that the prelims are more effective in terms of streamlining cases.
Subject to any questions you might have, those would be my comments.