It doesn't make a lot of sense. It seems to me very arbitrary. I understand that the drafters of this legislation were probably trying to figure out how to cut this off and how to make it.... Maybe in the most serious cases, you do need a prelim, but that's not how prelims work and that's not the function that they serve in real-life criminal trials.
We, based on the issues, elect to have a prelim or not. Very often I'll take an indictable matter to a straight OCJ trial—OCJ being the Ontario Court of Justice—provincial-level trial, because there is no point to having a prelim. I just want to go. It's a simple matter. I want to get this done as quickly as possible and so does my client.
There may be something where the maximum sentence is currently somewhere in the range of five years, but the issues are such that you absolutely need a prelim. I talk about this a little bit in my brief, the issue of section 278, because I think one of the unintended consequences of this legislation is that you are going to have in matters that are serious, that are subject to the regime, the Mills 278 regime. I talk about this in my brief, but for anyone who hasn't had a chance to read my brief, it is third party records where there are, to put it as broadly as possible, sexual allegations involved. There's a special set of protections, and one of the most important sets of protections in the regime is that the complainant or witness is not compellable on a third party records application.
What that means is, if I want to establish the existence of records in order to be able to bring them to court and apply for access to them before the trial starts, I use the prelim to do that, because the complainant is there at the prelim. She is not compelled at the application. The prelim is where we build the record to bring the application. If that process is not available, suddenly we're in superior court, if it's a serious matter, and we're in superior court in front of a jury, potentially. The complainant is on the stand, and I'm asking him or her about records that I need in order for the court to do its job finding facts. I'm building the record to bring a third party records application. I then bring the application mid-trial. The complainant is entitled to retain counsel. The record holders, be they doctors or institutions, are entitled to retain counsel. We have a long adjournment to deal with this, maybe a mistrial, because we have a jury sitting there wondering what the hell is going on, and that's not conducive to a swift and effective justice system.
I'm going on longer, probably, than you wanted me to in answering this question, but it really shows how this particular legislation in the context of a criminal code, which has provisions like that, is going to create train wrecks.