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| Patrick Ducharme |
On September 19, 2019, the Federal government passed into law amendments affecting the availability of preliminary inquiries. The opportunity to have a preliminary inquiry is now significantly reduced. Only the most serious charges in our criminal law are punishable by fourteen years or more.
This is one dramatic aspect of the amendments in myriad areas covering the rules of procedure and substantive criminal law. The changes were outlined in Bill C- 75. C-75 became law on September 19, 2019. The amendments significantly reduced the availability of preliminary inquiries.
To understand the changes, it may be helpful to briefly summarize what was available prior to the amendments, in order to appreciate what has changed. Prior to these amendments an accused was entitled to a preliminary hearing if he was:
a. charged with an indictable offence and elected to be tried by a Judge alone or by a court composed of a Judge and jury in the Superior Court or did not select any mode of trial.
b. charged with an offence under section 469, a section that includes the offences of murder and treason.
c. required by a Provincial Judge exercising the court’s discretion to decide that a charge should be prosecuted by indictment which then permitted the accused to have a preliminary hearing. or,
d. required by Attorney-General that he be tried by a Judge and jury.4
Now, an accused has the right to a preliminary inquiry only if charged with an indictable offense(s) punishable by a maximum of fourteen years or more.
When legislation is rushed through Parliament, as this legislation was, the new law was approved by the government without any transitional provisions, most notably, the amendments did not provide specifically if they were to have a retrospective application.
This apparent oversight meant that the Ministry of the Attorney General was required to take a position on cases that were already in the system with preliminary inquiry dates either set or ongoing. The Federal government’s position was as of September 19, 2019, the Provincial Courts lacked any jurisdiction to conduct preliminary inquiries unless the accused was charged with an indictable offence punishable by a maximum of fourteen years or more.
The Criminal Lawyers Association took the position that preliminary inquiries already commenced could not be terminated, and, that a determination of this jurisdictional issue needed to be decided by a higher court than the Ontario Court of Justice. It needed to be decided by the Ontario Court of Appeal.
Would these amendments to the Criminal Code concerning the availability of the preliminary inquiry have any effect on the substantive rights that were available to an accused prior to the new legislation coming into force? The case of R. v.RS5 and three other cases decided this issue. The four cases under consideration were cases where the accused had previously elected to have a preliminary inquiry. The court decided to permit each accused to have a preliminary inquiry in accordance with their stated choice prior to the new legislation.
The court concluded that each accused had done exactly what was required under the law at the time to trigger the right to a preliminary inquiry and that the court therefore had a corresponding obligation to hold a preliminary inquiry. The court stated that to deprive each accused of a preliminary inquiry would be to affect their substantive rights. Each would be entitled to be discharged at the conclusion of the preliminary if the Crown could not meet its evidentiary burden pursuant to section 548 of the Criminal Code. The Federal government’s position on appeal was rejected.
Those charged before the changes became law but had not yet decided to proceed with a preliminary inquiry would not be entitled to one. All indictable charges after September 19, 2019 do not have the option of a preliminary inquiry unless the charge(s) are punishable by at least fourteen years in prison.
The 2019 Amendments were intended to speed up the process of getting to trial. They eliminated most preliminary hearings and restricted the evidence that may be presented at an inquiry. These were the methods chosen to affect this purpose.
In 2016 the Supreme Court of Canada decided R. v. Jordan.6 This was a case concerning undue delay under section 11 (b) of the Charter. The case jettisoned that courts’ previous analysis of how ‘delay cases’ were decided, replacing the old method with a system that the Supreme Court believed would be more predictable, less confusing, and less complex. The court established a presumptive ceiling beyond which delay from the charge to the actual or anticipated end of the trial would be presumed to be unreasonable, unless exceptional circumstances justified the delay.
That court decided that the presumptive ceiling would be eighteen months for cases tried in the Provincial Court and thirty months for cases in the Superior Court.
The 2019 Amendments took specific aim at preliminary inquiries as part of the reason why there was not only undo delay in bringing cases to trial under the presumptive ceilings, but worse, they lead to inordinate delays that put ongoing cases in jeopardy of court stays, ordered as a result of the prosecution breaching the presumptive ceiling for cases destined for the Superior Court.
Thus, the 2019 Amendments restrict the use of preliminary inquiries to cases involving adults charged with offences punishable by a maximum term of imprisonment of fourteen years or more. This includes, of course, offences that provide for a sentence of life imprisonment. The overall effect is that preliminary inquiries are eliminated for a host of offences for which preliminary inquiries were previously available. A list of the offences that still qualify for a preliminary inquiry are provided in Appendix A herein.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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