On September 24, I will be appearing before the Standing Committee on Justice and Human Rights to present my recommendations on revision of the amendments to the Criminal Code in Bill C-75 relating to preliminary inquiries. Here is an excerpt of that Brief:
Bill C-75 introduces a number of proposed changes to the Criminal Code. There are 300 pages of amendments covering a broad range of procedural, evidential, and substantive issues. Some of the amendments will significantly change the criminal justice system. None more than the proposed changes to the preliminary inquiry. This Brief will outline the weaknesses inherent in such change and a recommendation for a better, more robust and balanced approach.
The Proposed Amendment
Bill C-75, in accordance with the summary attached to the Bill, proposes to “restrict the availability of a preliminary inquiry to offences punishable by imprisonment for life and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry.” The amendments will abolish the preliminary inquiry for all but those offences attracting a maximum punishment of life imprisonment. Those offences range from murder to criminal negligence causing death.
For example, a preliminary inquiry may be heard on a break and enter into a dwelling housebut not for a break and enter into commercial premises.A preliminary inquiry will also not be permitted for an attempt break and enter into a dwelling house as the maximum punishment is 14 years imprisonment.
Although prior to the proposed amendments, a preliminary inquiry was upon request of the accused or prosecutor, with the new amendments, the judge hearing the inquiry will have broad discretion to regulate the inquiry. Under the proposed changes to s. 537(1)(i), the hearing judge may do so “in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry.” Specifically, under s. 537(1.01), the inquiry judge may “limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.” Through application of the new amendment to s. 540(1)(a), the inquiry judge may also restrict the defence’s cross examination of a witness called to testify by the prosecution.
Background to the Role of the Preliminary Inquiry in Our Criminal Justice System
For years the efficacy of the preliminary inquiry has been questioned, studied and discussed by lawyers, government officials, and the courts. Despite debate and amendments, the preliminary inquiry, at its core, exists as the legislative “shield” between the accused and the Crown, protecting, as Justice Estey explains in the 1984 majority decision of Skogman v The Queen,“the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” Despite this sentiment, both levels of government and the courts have questioned the efficacy of the preliminary inquiry seeing little value in the procedure and only costs to the efficient and effective administration of justice.
The preliminary inquiry discussion started benignly with the call for the abolition of the grand jury system; an English common law procedure requiring a panel of 24 jurors to evaluate the charges to determine if the case should proceed to an Indictment.Eventually, the grand jury system was abolished by attrition as individual provinces simply stopped using the practice. Ironically, the principle argument advanced in favour of eliminating the grand jury inquiry was the existence of the preliminary inquiry as the true procedural safeguard against the power of the state.
The main purpose of the preliminary inquiry is the committal function. To determine this, a preliminary inquiry justice considers whether or not there is sufficient evidence to commit the accused to trial pursuant to s. 548 of the Criminal Code.If the evidence is insufficient for committal, the accused will be discharged.
Although the test requires a fairly low evidential threshold, there are cogent illustrations of the impact of this discharge power. An example is found in the case of Susan Nelles, who was the pediatric nurse on duty when a number of babies died in the cardiac ward of the Hospital for Sick Kids in the early 1980s. She was ultimately charged with first-degree murder of four children by allegedly injecting them with lethal doses of the drug digoxin. The subsequent preliminary inquiry revealed a complete lack of evidence for the charge, resulting not only in her discharge but also in an inquiry into the deaths.In this way, a preliminary inquiry protects an accused from the pernicious power of the state and can also provide a forum safe from the vagaries of public opinion.
Nevertheless, according to Mr. Justice Estey in Skogman, the preliminary inquiry serves an additional purpose, derived through usage, of “a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present.”It is this ancillary purpose, grounded in the right of an accused to make full answer and defence, which garners the most criticism and provides support for abolition. This argument suggests that with the advent of the Charterand the stringent disclosure requirements of Stinchcombe,the preliminary inquiry is no longer a necessary discovery tool.This reassessment did indeed happen. In October of 2001, the then Liberal government proposed, as part of a miscellany of criminal law amendments, significant changes to the preliminary inquiry process in the omnibus Bill C-15. The then Justice Minister Anne McLellan, in her presentation to the House upon second reading of the Bill, described the revisions as criminal procedure reform, spearheaded by the provinces, in an effort to:
simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with charter requirements. We are trying to bring criminal procedure into the 21st century. This phase reflects our efforts to modernize our procedure without in any way reducing the measure of justice provided by the system.
Madame Justice Deschamps, in her majority decision in Regina vS.J.L.,considered these amendments. According to Justice Deschamps, the ancillary function of the preliminary as a discovery tool “has lost much of its relevance”due to enhanced disclosure requirements. Justice Deschamps pointed to the new procedures as clearly illustrating the trend “toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures.”
At the same time as this movement away from the preliminary inquiry as a disclosure mechanism, we see a rise of legal rules requiring the accused person to provide an evidential foundation for certain applications and defences before they can advance these issues at trial.
Why the Amendment Needs Revision
It is this last phrase - “better adapted to the needs of the parties, not the imposition of more inflexible procedures” – that requires further attention. Added to this sentiment is the need to ensure procedures do not impede full answer and defence to the detriment of the presumption of innocence, fair trial concerns, and the overall integrity of the justice system. Without fair and just procedures in place, the potential for miscarriages of justice increase.
The proposed amendments go further than the previous changes to create an inflexible process, which fails to account for the original reason for the preliminary inquiry as a protective mechanism and fails to respond to the new realities of courtroom evidentiary requirements. This double concern results in amendments that detract from the integrity of the justice system instead of promoting it.
For instance, the preliminary inquiry can be an indispensable tool to establish the required evidential foundation for threshold issues, such as admissibility of evidence, providing the basis for a legal defence or setting the stage for a Charterapplication.Thus, the notion that the preliminary inquiry lacks utility and interferes with the administration of justice fails to recognize the access to justice issues resulting from the inquiry’s demise. In order for the counsel to “appreciate the case made against” the accused, counsel has to have an opportunity to see it.
The concept that the preliminary inquiry weighs down the system and interferes with trial court efficiency is a misnomer. In fact, statistically, the preliminary inquiry works. In a timely 2013 article entitled Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations,University of Ottawa criminologist Cheryl Webster, who has done extensive researchon court reform for the federal government, and retired Department of Justice counsel Howard Bebbington, found value in the preliminary inquiry process as, based on an empirical study, it did positively impact scarce court resources. As referenced in the article, a preliminary inquiry can identify weakness in a case, which may assist in resolution of the file or identify and delineate trial issues thereby shortening the process. In the same way, a preliminary inquiry can also assist in the release of an in custody accused as a weaker case can result in a successful bail application. Additionally, the preliminary hearing can assist either the prosecution or the defence in preserving evidence for admission at trial.
Further, theview that the preliminary inquiry, as a committal and disclosure forum, can be adequately substituted by prosecutorial discretion and full disclosure fails to appreciate the importance of the inquiry as a forum providing the oversight of a fair and impartial member of the judiciary. Such judicial oversight is a cornerstone of our justice system. Moreover, in Regina v Nur,the then Chief Justice McLachlin cautions against substituting prosecutorial discretion for judicial decision making, particularly in the adversarial context. This would, in the words of the Chief Justice in Nur, “create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review.”Additionally, although Stinchcombehas set high disclosure expectations, disclosure is not a static concept but continues throughout the case. Disclosure requests are often informed by the preliminary inquiry process, which can actually result in trial efficiencies.
Finally, to delineate between offences based on punishment fails to acknowledge the deeply personal impact an indictable charge can have on the dignity and self-worth of an individual, particularly where there may be insufficient evidence for that matter to go to trial. The prosecution office does not have the resources to comb through the many files to determine whether evidential sufficiency nor do they have the appropriate oversight function to do so.
A more meaningful approach would include a real assessment of the advantages and disadvantages of the inquiry process. We must be open to looking at other ways to retain the safeguards presently built into the preliminary inquiry process. For instance, where committal is not in issue, we may find a useful court alternative in the civil discovery procedures, which permits a less formal and less costly forum for the questioning of parties after full disclosure of documents. With an informed and thoughtful discourse on the issue, a more flexible approach could, and should, be found to save the preliminary inquiry from this premature legislative demise.
That the proposed amendments be revised to consider the following:
1. To retain the preliminary inquiry process for those offences where committal is in issue;
2. For those cases where committal is not in issue, to utilize a modified civil form of discovery procedures, which would permit questioning to occur outside of the court process in a less costly and more efficient atmosphere.
This proposal will take less judicial resources, less time and relieve courts yet still provide the protection envisioned by the original committal process.
Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision.
Specifically, change within the criminal justice system cannot be done in the name of efficiency only. Efficiency is not what we want from our justice system. That is not what the Jordanand Codydecisions are all about. Cultural change involves a bundle of values not a bundle of paper being efficiently pushed about. The goal should be to enhance the criminal justice system while preserving the protections of those whose liberty is at risk.
See section 348(1)(d) of the Criminal Code.
See section 348(1)(e) of the Criminal Code.
See section 463(a) of the Criminal Code.
 2 SCR 93 at 105 [Skogman].
See Parliament of the Dominion of Canada, Sessional Papers, No 66 (1891)Volume17at 7-69.
See Ontario, Ministry of the Attorney General, Royal Commission of Inquiry into Certain Deaths at the Hospital for Sick Children and Related Matters, Report of the Royal Commission of Inquiry Into Certain Deaths at the Hospital for Sick Children and Related Matters, by the Honourable Mr. Justice Grange, (Toronto, 1983.
Supranote 4 at105.
 3 SCR 326.
See Re Regina and Arviv(1985), 19 CCC (3d) 395 (ONCA), G A Martin JA at para 31; R v O’Connor,  4 SCR 411,L'Heureux-Dubé J at paras 170 – 171.
“Criminal Law Amendment Act, 2001”, 2ndreading, House of Commons Debates, 37-1, No 54 (May 3, 2001) at 1620 (Hon Anne McLellan).
 1 SCR 426.
Ibid at para 23.
Ibidat para 24.
See e.g. R v Downey,  2 SCR 10 as it relates to the evidential burden on the accused to rebut presumptions; R v O’Connor,  4 SCR 411 as it relates to s. 276 applications; R v Davis,  3 SCR 759 as it relates to the air of reality test in raising honest but mistaken belief in consent; R v Ruzic,  1 SCR 68 as it relates to duress; Rv Cinous,  2 SCR 3 as it relates to self-defence; R v Pappas,  3 SCR 452 as it relates to provocation; R v Fontaine,  1 SCR 702 as it relates to mental disorder.
Supraat note 4.
Cheryl Marie Webster & Howard H. Bebbington, "Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations" (2013) 4:55 Can J Corrat 513-532.
2015 SCC 15.
Ibidat para 94.
See e.g. Rule 31 of the Ontario Rules of Civil ProcedureRRO, 1990, Reg 194 and Part 5 of the Alberta Rules of Court, AR 124/2010.
2016 SCC 27.
2017 SCC 31.