Bill C-75: A Calgary Criminal Lawyer's opinion about Preliminary Inquiry Reform
Bill C-75: A Calgary Criminal Lawyer's opinion about Preliminary Inquiry Reform
c-75: preliminary inquiries
On March 29th, 2018 the Federal Government introduced legislation to amend the Criminal Code of Canada. The proposed amendments -- expected to receive royal assent -- will have a significant impact on the practice of criminal law, the prosecution of cases, the options available to an accused to defend a charge and the administration of justice. The purpose of this post -- and others to follow -- is to address certain topics addressed by Bill C-75.
The first topic that I will address concerns Preliminary Inquiries.
It is the opinion of this Calgary defence lawyer that the reasons offered by the Federal Government for preliminary inquiry reform are not all that sensible. As I will explain, some of Government's rationale appears empty. For example, they admit that only about 3% of all criminal cases involve preliminary inquiries and that this number has been declining over the last decade. If that is so, why reform the procedure to the benefit of the State for the purpose of dealing with such a small percentage of cases? I will explain more about this shortly.
In addition to speaking about the value of preliminary inquiries, I will also address the issue of disclosure. Though I am not arguing that disclosure rules are often violated, it is my view that they are violated in a relatively high number of cases. In my view (certainly not the view of everybody), many players in the administration of justice (Crown and Court), view disclosure as more of an annoyance to the expedited completion of cases rather than a meaningful Charter right. In my view, though the principles underlying disclosure are powerful and high sounding, they are of little avail to those who legitimately complain about disclosure violations. In short, obtaining a meaningful disclosure remedy in Alberta seems to me to be nearly impossible. If this is true, why diminish the role of preliminary inquiry in our justice system? Preliminary inquiry is a useful tool for exposing disclosure issues.
Bill C-75 preliminary inquiry reform is definitely to the benefit of the State, not the accused. Whenever changes are made to the detriment of the lonely accused, trying to defend a case against a Government Juggernaut, I am sceptical about the change. It's too easy to denigrate the rights of those accused of crime, because the reality is, unless charged, most people don't think the protections apply to them and they don't care about rights for accused criminals. "Presumption of innocence" is a term used by left-wing bleeding hearts who must by their very nature be "soft on crime". Of course, this not what the presumption means at all.
This is what I call low hanging fruit politics. In the opinion of this Calgary criminal lawyer, low hanging fruit politics has been something that our Governments over the last decade have been all too willing to play. We should stop them now; for one day we will wake up to a Canada that bears no resemblance to the one that we have come to love. We stop them by resisting the many small changes that will create a massive difference in the future.
preliminary inquiry reform
In short, Bill C-75 will restrict the use of Preliminary Inquiries for Indictable offences.
The preliminary inquiry provisions of the Criminal Code of Canada came into force in 1893. Not surprisingly, these provisions have been substantially modified since their first introduction. Not surprisingly, almost every modification has been to the benefit of the prosecution. For example, in the last decade the Crown now has the power to present hearsay, paper testimony at preliminary inquiries. This option all but stifles the ability of the accused to cross-examine Crown witnesses prior to trial.
Perhaps the most significant event impacting the necessity for preliminary inquiries was the Supreme Court of Canada’s decision in R. v. Stinchcombe,  3 SCR 326. Stinchcombe established that the Crown has an obligation to disclose all material in its possession that is potentially relevant to the accused in making full answer and defence. As the Court stated,
[t]he fruits of the investigation which are in [the Crown’s] possession are not the property of the Crown for use in securing a conviction but property of the public to be used to ensure that justice is done.
The reason this is theoretically relevant to efficacy of preliminary inquiries is that with complete disclosure, the accused knows the case to meet. Preliminary inquiry is no longer necessary to understand the theory of the prosecutions case. Of course, all of this assumes full compliance with disclosure rules for every case. In my opinion, though the Crown is pretty good at complying with disclosure rules, we are not yet at full compliance. In fact, when disclosure issues arise, it is not unusual for some Crown's to strenuously resist. I have been involved in cases where Crown's have declined to present disclosure by claiming that the material is irrelevant. When that fails, some will blame defence counsel, claiming that the accused (or counsel) sat on their hands by delaying to making the request or that the defence should have know about the disclousre (even though the accused is not responsible for the dissemination of information). Though the Crown controls the process, I have born witness to some judges buying this argument. When this argument fails, I have been involved in cases where the Crown just shifts gears again, claiming the requested disclosure is barely relevant. The biggest problem is that once all of the arguments are exposed as hokum, I have been involved in cases where the Court has simply declined a meaningful remedy. My point, disclosure is not the white knight to preliminary inquiry reform. I will explain this more shortly.
To frame the discussion, though I think the Crown generally does a good job with disclosure, this is -- in the opinion of this criminal defence lawyer -- not always the case.
Disclosure not a white knight for reform
The Stinchcombe decision came packaged with a number of high sounding principles, including powerful language that a violation of the disclosure obligation constitutes “a very serious breach of legal ethics”. In Chaplin,  S.CJ. No. 89, Sopinka J. emphasized that
…great reliance must be placed on the integrity of the police and prosecution… to act in the utmost good faith. It is for this reason that departures from this onerous obligation are treated as very serious breaches of professional ethics.
In my experience, the Crown almost always meets its disclosure obligations. That said, it is my opinion that this is not always the case. Though disclosure is met the vast majority of the time, there are cases where I have serious concerns. Occasionally, I am left with the distinct impression that some prosecutors and jurists in Alberta believe disclosure is more of an annoyance than an obligation.
I say this because though the Crown almost always meets its general disclosure obligations, there remain a high number of cases where full compliance with the obligation is either questionable or arguably ignored. Perhaps Judge Brown said it best in R. v. Canadian Bonded Credits,  A.J. No. 1460:
It is astonishing to me that, the twelfth anniversary of the Stinchcombe decision having occurred at the beginning of this month, its principles still seem to be honoured in the breach.
Canadian Bonded Credits was decided in 2003. In my opinion, little has changed since that time. The Crown meets disclosure obligations most of the time, but not all of the time. And when it fails to meet them, the arguments justifying non-disclosure are rewound and replayed with almost perfect success from once case to the next.
Judge Brown astutely commented in R. v. Scheer, , A.J. No. 1473 (Alta. P.C.) that
there is sometimes a tendency to equate the size of the case with the size of the breach”. She recognized that this was in error. “We are governed by the rule of law”, she said, “and this means…every person charged with an offence, from shoplifting to murder, is entitled to due process.
In my experience, obtaining a reasonable disclosure remedy when there has been a breach is often easier said that done. In my opinion, a great many Crowns and Judges hold the view that when defence counsel complains of missing or late disclosure, they are engaged in a kind of questionable brinkmanship designed for no other purpose than to derail the criminal prosecution. I take great umbrage with this.
By way of example, as a judge implied in R. v. Mamouni,  A.J. 490: “One can imagine a situation where an accused continues to request disclosure that will not affect that right, simply to delay the action”.
Suffice it to say, with respect to this specific case (and others like it) I do not agree with the implication that defence is playing games.
It is noteworthy that in Mamouni, the defence uncovered missing disclosure during the course of cross-examining a half-dozen witnesses at trial. Issues concerned everything from identification, reasonable and probable grounds, continuity of exhibits and Mutual Treaty Assistance matters. This case was appealed and sadly, it appears to me that the Alberta Court of Appeal also took a dim view of defence counsel (see,  A.J. 1104). The Alberta Court of Appeal decided the disclosure was "barely relevant". In the end, almost no attention was paid to this comment by the trial judge,  A.J. 125 (emphasis added):
This Court has commented on the various disclosure that the Accused Persons argue that the Crown failed to provide. The potential prejudice that the Accused Person's might have suffered as a result of the Crown's failure to meet its disclosure obligations had been mollified in most cases, through, in part, the skilled cross-examination on their counsel's part. As well, once the Crown assigned new counsel, many of the issues that plagued this matter have been cured. The fact that these failures on the Crown's part early in these proceedings had to be cured should never have happened. Simply put, the Crown's counsel fumbled the ball.
My point is, if disclosure is a tool used to justify preliminary inquiry reform, perhaps we need to think differently; for in 2019 there remain cases where disclosure is honoured "in the breach" or not at all. If disclosure is "fumbled" by the Crown, preliminary inquiry could be a useful forum to correct the issues before the accused is exposed to the risk of conviction.
Additionally, though I do not accept that any accused should benefit from weak defence counsel who are incapable of uncovering disclosure fumbles by the Crown and prejudiced by skilled defence counsel whose cross-examination could “mollify” fumbles because of quality counsel has the aptitude and ability to discover what was potentially intended to be undiscovered (see Mamouni supra), the reality is, by removing preliminary inquiry options for many offences, the State will have all but eliminated an important discovery tool which could be used to uncover problems (or fumbles) prior to trial.
With all this in mind, I suggest that disclosure is not necessarily the white knight to the elimination or reduction in the available use of preliminary inquiries. In my opinion, disclosure and preliminary inquiry can work hand-in-hand. I have been involved in many preliminary inquiries where disclosure deficits were exposed and corrected prior to trial.
the artificial 14 year maximum trigger
The Government justifies eliminating the option of a preliminary inquiry for all indictable offences carrying a maximum punishment of less than 14 years. In my opinion, the “14 year” or greater penalty to trigger the option for a preliminary is both unprincipled and artificial.
To begin with, for most accused convicted of any crime carrying a maximum 14 years it would be unusual for them to receive the maximum penalty or even a jail sentence in the double digit range. Section 715 of the Criminal Code of Canada contains important principles of sentencing, including the maxim that jail should be avoided unless it is necessary and if it is necessary, imposed with restraint. The principle of restraint always works to mitigate -- not aggravate -- a custodial sentence.
Many offences with maximum penalties of less than 14 years can still attract substantial jail sentences, even closing paralleling those imposed for offences with a 14 year maximum penalty. This means that the maximum penalty trigger (14-years) is arguably not a rationale basis for eliminating preliminary inquires for offences with penal consequences less than a maximum of 14-years; for it is no relief for any accused susceptible to a jail penalty that doesn't max-out at 14 years to be deprived of an important discovery procedure that could help them defend the case. Put another way, that a particular crime does not carry a maximum 14 years does not mean that the discovery process is less valuable. It also does not mean that the person convicted of an offence with a maximum less than 14 years will not receive a jail sentence close to or greater than some offences with a maximum 14 years.
Additionally, some indictable offences are well suited for preliminary inquiries. For example, “Fraud under $5000” is often laboured by evidentiary nuances and complexities that lend well to pre-trial discovery beyond mere disclosure. Many offences with 10 year or more maximums have catastrophic consequences beyond mere jail for landed immigrants, permanent residents and refugees. Deprivation of the preliminary inquiry option for a presumptively innocence landed immigrant susceptible to a maximum less than 14 years is no relief.
Using the 14-year maximum as the trigger, the Government sends a message that person's susceptible to maximum penalties one-day less than 14 are less deserving of a procedure that might enhance their ability to make full answer and defence. They send this message likely knowing full well that even if the maximum is 14, the likelihood of any offender receiving the maximum penalty is remote. So this begs a question: is 1-day less than 14 an acceptable trade-off for an important discovery procedure? I say "no". Is a sentence that constitutes 1/10th of a person's life (say 7 years) so little that it is not worth a discovery process to ascertain (1) whether the accused should be subject to trial at all or (2) to determine whether the evidence is sufficient to justify proceeding to trial? I say that any loss of liberty is enough to preserve the option of a preliminary inquiry.
preliminary inquiry and resolution
It is important to recognize that defence lawyers often focus issues at Preliminary Inquiry. Indeed, most defence lawyers have no interest wasting their own resources listening to pointless evidence during any proceeding, including preliminary inquiry. Though it is true that defence may not, prior to the preliminary inquiry, give aways its defence position (as many Crown and judges would like them to do), the exercise of the right to silence should not be a basis to diminish the ability of an accused to take advantage of an important discovery process.
My point is, preliminaries are not usually full blown evidentiary hearings paralleling a trial. They are usually truncated evidentiary hearings, focussed on a few witnesses.
Prosecutors have great power, including the ability to truncate preliminary inquiries. To that end, they have the option to significantly control preliminary inquiry testimony by using "paper prelim" procedures set-out in section 540 fo the Criminal Code. The combination of focussing issues and reducing the scope of a preliminary by way of section 54o of the Criminal Code means that the preliminary inquiry process is not necessarily an evidentiarily robust procedure. In my experience, it is most often a truncated procedure.
Furthermore, it is worth recognizing that preliminary inquiry is often a useful tool to resolve the case prior to trial. To that end, it is not unusual that once certain pieces of evidence are concretized under oath, the case is understood to be clearly in the prosecution's favour. Sometimes the ability of the accused to merely hear some evidence prior to trial motivates plea bargaining. Preliminary inquiries are therefore very useful to assist the accused in learning about the case and bridging gaps in understanding how evidence imperils a defence.
Finally, assuming the Crown is acting in the finest tradition of its office (which it most often does), a preliminary inquiry can even be useful to the prosecutor to determine (1) whether charges should proceed, (2) the correctness of the charges and (3) resolution. Once evidence is heard under oath, it is not unusual for the prosecution to understand frailties in its own case. Disclosure is sometimes an impediment to understanding; for it's easy to write things down in a witness statement or to say things to police who do little or nothing to verify the truth of the statement. It's harder to testify under oath. The police often do little or nothing to expose their own case. The Crown often does little or nothing to expose its own case. Only defence counsel, who might understand more about the case routinely does this through the process of questioning witnesses. To assume disclosure is always correct, assumes the integrity of those who report the information. It assumes that the police and crown will have done their job to protect not only the alleged victims, but the accused who could also be a victim. In my experience, many police and crown are highly partisan to the alleged victim. Remember, for the purpose of criminal justice, the presumption of innocence is a first principle. This means that a person only becomes a "victim" once the burden of proof has been discharged. With the presumption of innocence, there is the recognition that the accused could be the real victim.
Preliminary inquiries may do a real service in terms of reducing victimization, not -- as the Government claims -- aggravating it.
preliminary inquiries used in 3% of completed cases
What I found peculiar about the Government’s C-75 overview in relation to Preliminary Inquiries is the statement that "[a]lthough preliminary inquiries are associated with a very small proportion of the total number of completed cases in Canadian criminal courts (approximately 3% of all completed cases, a proportion that has slowly decreased over the last 10 years)", they felt it necessary to reform the procedure to the disadvantage of the presumptively innocent accused. If it is true that preliminary inquiries are associated to only 3% of completed cases, why the need for this kind of reform? Do the numbers justify a reduction to the availability of this meaningful and important procedure? I say the answer is no.
Furthermore, I cannot logically square the Government’s position with respect to the time that preliminary inquiry adds to the overall delay in criminal cases. To that end, the Government stated:
In addition, charges involving a preliminary inquiry take longer to complete and take more time in court, especially for serious offences. In 2016/2017, the median number of days it took to complete a homicide charge was 488 days when there was a preliminary inquiry compared to a median of 36 days when there was no preliminary inquiry; the median number of appearances when there was a preliminary inquiry was 18 compared to a median of 3 appearances when there was no preliminary inquiry.
To reiterate the Governments claim: “488 days” to complete a homicide case compared to just “36 days” when there was no preliminary inquiry. This statistic is obviously flawed, arguably false and/or possibly misused. In my opinion, the Government is abusing this statistic to sell a rusted-old-jalopy.
To begin with, the Government's claim makes no sense. For example, in Alberta it would unusual to obtain full disclosure for a homicide case from the Crown in 36 days let alone complete the case. This fact alone means that the Government's statement is flawed.
Secondly, preliminary inquiries are usually shorter than trials. In homicide cases, where juries are often used, preliminary inquiries are much shorter than trials. In Calgary, Alberta, it generally takes at least a month to accomplish the simple feat of having a homicide case transferred from Provincial Court to Criminal Appearance Court at the Court of Queen’s Bench. If it takes a month to do the transfer, that means the homicide case must finish in just 6 days. That makes no sense. In fact, I suggest that even the most simple summary matter takes longer on average than 36 days to complete. Homicides almost always take much longer.
Thirdly, lead times at both the Provincial Court and the Court of Queen’s Bench are many months. This means that 36 days can't be right. My point is, for the Government to claim that Preliminary Inquiry somehow adds 452 days to the completion of a homicide appears simply wrong.
Doubtless, a preliminary inquiry adds time to the completion of the case. However, the Supreme Court of Canada in R. v. Jordan has set the guidelines for completion of criminal cases. Those guidelines are 18 months in provincial court and 30 months at the Court of Queen's Bench. this means that the State has 30 months to have a preliminary inquiry at provincial and a trial at the Superior Court.
My view is that the C-75 amendment to preliminary inquiries appears to be more closely associated to a political manoeuvre than a meaningful reform to improve criminal justice. Of course, the question with respect to improving anything is “for whom”? With that in mind, ask yourself this wicked-questionable-little-question: based on the Government’s own data, will eliminating preliminary inquiries meaningfully improve the justice system? If preliminary inquiries are only used in 3% of criminal cases, does this make sense? If skilled counsel can potentially mollify disclosure issues through cross-examination, doesn’t a preliminary inquiry potentially help to correct disclosure issues prior to trial? If preliminary inquiries assist in resolving cases (which I say they do), doesn’t this reduce the burden on trial courts? If preliminary inquiries are focussed to specific issues, don’t they potentially reduce the number of witnesses and the longterm stress those witnesses incur, especially if the procedure promotes reasonable plea-bargaining? If preliminary inquiry can help to focus trial issues or relieve trials altogether, are they really a drain on public resources?
By way of final comment, I appreciate that defence counsel may use preliminary inquiries for certain strategic or tactical ends. I want to emphasize that this does not mean defence counsel is being in any way unethical. Remember, the Government prosecutes each accused with the resources of the taxpayer behind it. These resources include a police department that is most often aligned against the accused. This includes Crowns -- lawyers of varying quality and life experience paid by the taxpayer to prosecute cases. This includes judges (of various temperament, experience and legal viewpoints) appointed by the Government to hear cases. This often includes the weight of public opinion levelled against the accused, who in exercising his or her right to remain silent is often maligned in the early stages of the prosecution by law enforcement, interest groups and others without the ability to respond.
Preliminary inquiry constitutes one of the balancing procedures. Arguably, the Government has once again introduced rules to shift the balance in its favour.
An accused in Canada usually has just one defence lawyer, who they rely on to resist the various pressures caused by the easy and soft-headed thought that just because a person is accused they must be guilty. If preliminary inquiries make up just 3% of completed cases, I am left to wonder why the Government has deemed it necessary to reform a procedure that was initially designed to protect the presumptively innocent. Perhaps it's just a low hanging fruit political manoeuvre? Perhaps it is to further balance away from the accused? Perhaps both?
These are just my thoughts.
David Chow is a full service Calgary criminal lawyer of choice. He is defends the full spectrum of criminal charges, including murder, manslaughter, multi-kilo level drug trafficking, importation and all driving offences. If you need an Alberta criminal lawyer call for a free consultation. David is a former Crown Prosecutor, a Calgary DUI lawyer and Calgary drug lawyer. Call 403.452.8018 for a free consultation with a criminal defence lawyer in Calgary.
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