Prelims provide important screening function

Mar 2, 2017 By Matthew Friedberg
It’s “sad and unfortunate” that Ontario gave the green light for prosecutors to ask for a preliminary hearing to be waived and go straight to trial if cases have faced long delays, says Toronto criminal lawyer Matthew Friedberg.

“Preliminary inquiries help lawyers prepare and formulate a case, as well as allow the Crown to weed out weak cases that shouldn’t be before the courts instead of just rolling the dice at trial,” he tells AdvocateDaily.com. “I think they provide an important screening function.”

Friedberg, partner with Caramanna Friedberg LLP, comments on the issue after the Globe and Mail reported prosecutors have been given permission to avoid preliminary inquiries as the government looks to save cases that might be tossed out because they fail to meet new timelines.

The direction is a result of the Supreme Court of Canada (SCC) decision, R. v. Jordan, which states that cases before provincial courts must be dealt with in 18 months and those before the Superior Court must be completed in 30 months.

In Ontario alone, there are some 6,500 cases in provincial court above the 18-month ceiling established in Jordan, reports the Globe. Of those, 23 homicide matters, 15 attempted murder charges and 394 cases of sexual assault and other sexual offences are already past the time limit, says the article.

The province issued a memorandum, dated Nov. 22, that instructs prosecutors to consider the “usefulness of requesting that the Attorney-General consent to the preferment of a direct indictment” in all cases in which they “are concerned that a case may be stayed on the basis of unreasonable delay,” says the newspaper.

But Friedberg says this isn’t the answer to dealing with the delays in the system. He believes that bypassing the preliminary hearing stage for some cases will have a negative impact on the accused.

“It allows a judge to assess a case — albeit on a lower evidentiary threshold — before the matter goes to trial,” he says. “They also help prevent wrongful convictions.

“Sometimes they encourage people to resolve their cases. Some accused persons plead guilty after the preliminary hearing. Without that hearing, those cases will proceed to trial.”

Instead of easing the bottleneck before the courts, getting rid of the preliminary hearing may have the reverse effect, Friedberg says.

”This may discourage the resolution of cases before they go to trial,” he says. “It may actually cause more of a backlog in the trial courts. I don’t think this will accomplish anything.”

Friedberg says it seems to be more window dressing than anything else so the government appears to be making efforts to streamline cases.