Evidence behind Ottawa's choice to cut preliminary inquiries remains elusive

Not long ago, Justice Minister Jody Wilson-Raybould seemed hesitant to embrace the idea of eliminating preliminary inquiries as a way to reduce court backlogs.

Now that the Liberal government wants to curtail their use, it appears she was won over by politics, rather than any new evidence it would help solve the problem.

"This bold reform will substantively contribute to the reduction of the delays in provinces," Wilson-Raybould said last week after introducing a massive new bill she described as meant to bring about a fairer and more streamlined criminal justice system.

Preliminary inquiries are typically used to decide whether there is enough evidence to go to trial. Bill C-75 proposes limiting their use to cases where an adult offender is facing the possibility of life imprisonment, such as for murder or kidnapping a change the Liberals insist will speed up the legal process.

The evidence to back up that claim remains unclear and elusive.

Need for evidence-based policy

Peter Sankoff, a law professor at the University of Alberta, said he does not feel too strongly about preliminary inquiries one way or the other.

"What I do have a strong attachment to is evidence-based policy and discussions or decisions that are made that make sense with the rationale for which they are initiated," Sankoff said.

"It seems to me that if we are going to take it away, we should provide a convincing rationale for doing so."

Ontario Attorney General Yasir Naqvi made waves last year when he called for an end to preliminary inquiries in all but the most serious of cases, such as murder and treason, to help accelerate the wheels of justice. Manitoba and Saskatchewan soon joined the cause.

The need to move things along had taken on increased urgency in 2016 with the Supreme Court's landmark Jordan decision, which imposed strict new trial timelines that amounted to 18 months for provincial courts and 30 months for superior courts. Any longer and theaccused could end up walking free.

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'This is a significant step forward of bold reforms,' says Justice Minister Jody Wilson Raybould.

Many Crown attorneyssay that preliminary inquiries have outlived their usefulness, thanks to broader disclosure rules. Those on the other side of the bar, however, say they help to narrow the issues, sometimes even eliminating the need for a trial.

"They're like X-rays before an operation," said Bill Trudell, chair of the Canadian Council of Criminal Defence Lawyers.

It wasn't entirely clear that preliminary inquiries deserved the blame in the first place. Statistics Canada says they occurred in less than three per cent of cases in the adult criminal court system in 2014-15, with 81 per cent of those cases wrapping up within 30 months.

Potential for more wrongful convictions

In a 2005 study, University of Ottawa criminology professor Cheryl Webster found preliminary inquiries were rare, and those that did occur ended promptly.

How they were used also varied widely across the country, her data suggested, raising fears that any Canada-wide reforms could end up having different and potentially negative impacts, depending on the jurisdiction.

"My worry at this point is that without at least examining national [empirical]data on this criminal procedure, we are making critical decisions on its continued use or abolition without being in a position to predict, in any reliable way, the actual impact of such decisions," Webster wrote in an email last year when the debate over Naqvi's proposal was raging.

When justice ministers gathered to discuss court delays last April, Naqvi presented research from Ontario suggesting the hearings added an average of 5.4 months to the time it took for a case to go to trial in 2016. The province will not release the actual data or methodology.

The ministers agreed to examine the issue, but two months later, Wilson-Raybould acknowledged she remained wary.

"I'm not convinced, but I am open to being convinced," she said in a June 2017 interview with The Canadian Press.

The Liberal government has not provided any new research to explain why she changed her mind, beyond saying that Bill C-75, if passed, could reduce the number of preliminary inquiries by 87 per cent.

Asked what research went into the policy, an official from the Justice Department suggested it was a matter of weighing competing interests, not data.

"It was a decision made by our minister based on balancing those interests between the varying narratives," said the official, who provided a technical briefing on Bill C-75 on the condition of anonymity.

I don't say this without carefully thinking about it: I think there will be more wrongful convictions.-BillTrudell, chair of the Canadian Council of Criminal Defence Lawyers

Ian McLeod, a spokesman for the Justice Department, did not cite any new statistics this week when asked for the research behind the decision to restrict preliminary inquiries.

Webster said the Justice Department contacted her about updating her analysis last year, but she declined after learning Statistics Canada no longer tracks the same level of data. She said she is not aware of any published academic study since her own.

Trudell said he is disappointed and concerned.

"I really think that this decision is not well thought out," he said. "I think it's a bit politically motivated by people who criticize the preliminary, but the effects are going to be demonstrative.

"I don't say this without carefully thinking about it: I think there will be more wrongful convictions."