There is a real misconception that has to be dispelled here. Prelims and trials are two very different animals. We do different things in them, and prelims and disclosure have two very different functions. Prelims are a discovery process for the defence as much as they are a charge-screening process for the court and the Crown.
Take, for example, sexual assault cases. We know that police—and I talk about this in my brief as well—have been trained and are encouraged to assure complainants that they are safe in making their report, that this is a very good thing, and that they are going to be believed. In fact, the website of the Toronto Police Service on its sexual assault information page says that even if they don't lay a charge, that doesn't mean you weren't believed. Even if the accused is acquitted, that doesn't mean you weren't believed, and of course that is true.
They ask questions to support their investigation and to help validate the feelings of the complainant. We ask questions at a prelim for a very different reason, because we're going to be doing further investigation to prepare for trial. That's one of the things I was talking about with third party records. There are other ways that we investigate to ensure that we're prepared for trial so that the trier of fact, be it a judge or a jury, is in a position to get the best possible information to arrive at a verdict. The police and defence counsel have very different roles, which is why disclosure and the discovery function of the prelim are two very different things.
Depriving us of that discovery function can make it impossible to get all the appropriate and relevant facts before the court and can lead to wrongful convictions, such as Justice LeSage found in the Driskell case.