In the wake of the Supreme Court of Canada's decision in R. v. Jordan, there have been various suggestions on how to deal with the issue of delay in the Ontario courts. One such idea is that of Ontario Attorney General Yasir Navqi. It has been reported that the Attorney General recently wrote the Federal Justice Minister with a request to greatly limit the use of preliminary hearings in an attempt to speed up the justice system. For lay people and those who do not practice criminal law this begs the questions – what is a preliminary hearing and what value does it provide the criminal justice system and those facing charges?

The right to a preliminary hearing (or preliminary inquiry) and the procedure behind it arise out of Part XVIII of the Criminal Code. An accused can elect a preliminary inquiry but only in more serious cases where the charge(s) are proceeding by way of indictment. The main purpose of a preliminary inquiry is to determine whether there is enough evidence for an accused person to proceed to trial on those offences for which they have been charged.

The preliminary inquiry itself is held before a Provincial Court Judge and the Crown (prosecutor) calls witnesses to testify along with any other evidence they require. In this respect it is somewhat similar to a trial. However, rather than making a determination with respect to guilt or innocence, the Judge in a preliminary inquiry only has to determine whether there is sufficient evidence to proceed to a trial. The legal test is whether a properly instructed jury, acting reasonably, could return a verdict of guilt on the evidence presented. If the Judge is satisfied that there is sufficient evidence on any such charges then the accused is ordered to stand trial on those charges. If the Judge is not satisfied that the test has been met then the charges where there is insufficient evidence are dismissed. This legal test is a very easy test for the Crown to meet and as such most accused persons who elect a preliminary inquiry are ordered to stand trial.

Despite the fact that most preliminary inquiries end with an accused headed towards trial, there are a number of reasons the prelim has value and is a useful tool in the criminal justice system. For all parties involved (prosecutor and defence), it helps to narrow the issues for criminal cases and in some cases it gets rid of charges where there is insufficient evidence. From the perspective of criminal defence lawyers, a major value of the preliminary inquiry is that it provides those charged with serious offences a chance to fully discover the strength of the Crown's case. While it has been argued that disclosure requirements on the Crown provide any and all needed discovery of the case, this disclosure cannot replace actually hearing from Crown witnesses and seeing the evidence in court. The preliminary inquiry provides a full opportunity for the accused to see how reliable and credible the evidence is against them. It also provides tactical opportunities such as obtaining possible admissions from witnesses or deciding whether there are legitimate grounds to proceed with a Charter argument.

It is hard to see how limiting preliminary inquiries will significantly reduce any delay in the Ontario courts. One reason is that it appears they do not occur that often. A recent article in the Toronto Star dated March 20, 2017, quoted information from Stats Canada which outlined that preliminary inquiries were only requested or held in about 3 per cent of completed adult criminal cases in 2014-2015. That statistic would seem to indicate that preliminary inquires are at most a small part of the delay problem. Fully addressing the delay in Ontario courts is likely going to require numerous changes, as well as the provision of resources in the form of more judges, prosecutors and other court staff.

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