Preliminary hearings under microscope

Lost benefits must be justified if reforms enacted, chief justice says

The idea of reducing or eliminating preliminary hearings is worthy of serious discussion, but any lost benefits must be justified, says Martel Popescul, chief justice of the Court of Queen’s Bench of Saskatchewan.

“The preliminary inquiry process has been the fabric of the criminal justice system for a long time, and before one throws something out, you have to study it carefully to determine whether or not there’s a reason for change.”

Preliminary hearing reform is a viable way of addressing delays in the court system, according to a statement issued by justice ministry spokesman Noel Busse.

The Saskatchewan government wants to limit preliminary hearings to offences for which a sentence of 14 years or more could be imposed.

Such a move could reduce the number of hearings conducted by 40 per cent and help speed up the criminal court process significantly, although exceptions could be allowed in cases where the Crown and defence consent to hold preliminary inquiries for lesser offences, according to the ministry.

Most cases in Saskatchewan finish within current time limits, and exceptional events are often the cause in the small number of cases that don’t, according to Busse’s statement.

The topic will be part of discussions between provincial and federal officials today and Friday when they discuss ways to address delays in the court system.

The formal purpose of a preliminary inquiry is to determine if there’s enough evidence upon which a properly instructed jury could possibly convict the defendant. In the vast majority of cases the accused is committed to stand trial, but the hearings have other benefits, Popescul noted.

They allow the Crown and defence to assess their cases based on evidence raised in a court setting; witnesses may come across as stronger or weaker than expected. Subsequent case management can lead to a resolution without a trial, he said.

“The bottom line is that while there are unquestionably benefits to the preliminary inquiry process, my view is it’s up to the various governments to study the current system and determine whether the changes that they’re contemplating should be made and if so, what those changes should be.”

Retired defence lawyer Bill Roe, who now teaches criminal procedure at the University of Saskatchewan, said the province has no control over whether the changes actually happen, since the federal government would have to amend the Criminal Code. “From my point of view, I would hate to see prelims limited,” Roe said.

It’s invaluable for the defence to see the Crown’s case, he said.

“It’s a screening mechanism,” Roe said. “It works both for and against the defence; it works both for and against the Crown.”