The purpose of a preliminary hearing is to determine whether there is some evidence on which a properly instructed jury could convict at trial. They are a right for any Defendant facing an indictable charge. When they were created, “prelims” provided the accused with the opportunity to learn the Crown’s case against them. Preliminary hearings are used by the defence to hear the evidence of the complainants, not only to test the evidence, but to ask questions about things that may not have been disclosed and are necessary to make full answer and defence.

In 2015/2016 of the 1,072,856 serious offences that went through the criminal justice system only 34,698 of them had a preliminary hearing. This is approximately 3% of the cases. While preliminaries occur in only three per cent of cases, some people claim they have a disproportionate impact. In R. v. Jordan (which we discuss here), the preliminary took a full year to complete, including nine days of court time. Cases that include a preliminary take an average of four times longer to complete than those that do not.

Bill C-75 is a Bill presented by the Liberal Party which passed its second reading on March 29, 2018. The Bill proposes that preliminary hearings be removed unless a defendant is facing the potential of imprisonment for life. This would limit preliminary hearings to only the most heinous of crimes such as murder.  The Liberal government, in proposing these changes, has claimed that the changes would reduce those hearings by 87 per cent and is confident that reform will reduce delays. Despite governmental claim that this Bill will reduce court delays, the reaction from criminal defense lawyers has been almost entirely negative.

The Canadian Bar Association (CBA) cautioned against the elimination or significant limitation of preliminary inquiries, arguing that they in fact “save time and resources in superior courts.”

Ian Carter – vice-president of the CBA’s criminal section – said the association took a “close look” at the issue and “didn’t see any evidence that suggests that [reducing preliminary inquiries] would reduce delays.”

“In some cases (it) had the potential to add to delays in the sense that preliminary inquiries can be used to cut off charges before they get to trial that probably shouldn’t have been laid in the first place, and they can focus issues between the parties so to make the ultimate trial shorter. … Plus you’re taking procedural rights from an accused person.”

Preliminary hearings are also useful because they help an accused determine the strength of the case against them and decide whether they wish to go to trial or to plead guilty to the charge or charges.

Bill C-75 seeks to eliminate preliminary hearings for all charges except those that have a mandatory life sentence, this includes a very small list of offences including murder, arson and committing an indictable offence for a criminal organization, but does not include many other very serious offences such as aggravated assault, assault causing bodily harm, or sexual assault which are also very serious offences with serious consequences.

Bill C-75 proposes many other changes which will significantly impact the criminal justice system in Canada. These other proposed changes will be explored in future blogs.

DeMelo Law is a criminal defence firm in London, Ontario. If you’ve been charged with a criminal offence, contact Cassandra or Kristen for a free consultation.