Is Naqvi’s courts proposal bold or rash?

Ontario Attorney General Yasir Naqvi’s proposal to eliminate preliminary inquiries in most criminal trials sounds bolder than it is. But let’s give him points for trying.

Naqvi is struggling to reduce the time criminal trials take, after a 2016 Supreme Court decision set hard limits for completing such cases. In its R. v Jordan ruling, the top court said such trials must be timely: 18 months in provincial court and 30 months in Superior Court. Because that doesn’t always happen, charges have been stayed in a number of high-profile cases, including a first-degree murder case in Ottawa. To help reduce the backlog, Naqvi, MPP for Ottawa Centre, wants the federal justice minister to change the Criminal Code to eliminate preliminary hearings in all but the most serious criminal cases.

In reality, preliminary hearings only occur in a small number of criminal cases now. But they are useful in determining whether or not the Crown has enough evidence for a trial. These hearings can lead to charges being dropped or reduced.

Ottawa defence lawyer Anne London-Weinstein says the hearings are valuable for sniffing out evidence not automatically disclosed by the Crown, such as third-party documents like medical records. This can happen at trial too, she says, but disclosure that far down the line could lead to delays, making life harder for everyone.

Dispensing with this tool of the justice system, therefore, must be considered with great care.

Nevertheless, most cases clogging the court system don’t have preliminary inquiries. So the bigger problem — as London-Weinstein suggests — isn’t the hearings but the fact there are simply too many cases in a court system that can’t handle them.

Naqvi himself admits ditching preliminary hearings isn’t a panacea (this hasn’t stopped Manitoba’s attorney general from requesting this same measure). So he is also appointing more judges, and hiring new Crowns. He wants the federal government to fill the judge positions it’s in charge of quickly. But “it’s time that ... we do put some controversial, bold ideas on the table and discuss them so that we can really meaningfully change the way (the) criminal process is done,” Naqvi says.

Naqvi’s quite right that bold thinking is needed. It’s less clear that eliminating preliminary inquiries fits that definition. Still, he has started a conversation that isn’t simply about resources but about how the system itself works. That is a useful contribution.