Guilt derived by ‘force,’ and the abolition of preliminary inquiries

“Progressive Conservative justice critic Reg Helwer said Swan could reduce the number of inmates on remand further by eliminating preliminary hearings and forcing more plea bargains. “Is it necessary to have a preliminary hearing in any case?” Helwer said.” — Jails looking less crowded, WFP article by Bruce Owen, Sept. 20, 2013

—————

I cannot tell you how many times a case has folded at or soon after prelim because the evidence was so weak. And better the weak cases get dumped after a 5 day prelim as opposed to a month long trial.” — Winnipeg criminal defence lawyer

Let’s start today by offering the simple answer to Mr. Helwer’s question.

Yes. Preliminary hearings are necessary.

As a newspaper reporter who covers courts, it chagrins me to some degree that I typed that.

But as a member of the public interested in seeing we have the fairest criminal justice system possible, however, I see why “prelims” (as they’re often dubbed), are 100 per cent necessary.

I won’t belabour my first point: prelims are viewed as a pain for the media because they’re largely — but not totally — off-limits for publication. When you want to tell people about what’s happening and why in their court system, sitting in a prelim is seldom the way to accomplish this. Whatever. It’s just a professional reality at the end of the day.

The justice system doesn’t exist for the media’s benefit.

As a member of the general Canadian citizenry, however, I’m heartened prelims exist. They’re a necessary fail-safe in serious cases where the stakes are high [such as homicides and major assaults of all various types].

It’s an unpopular sentiment, admittedly, but the fact is, the more procedural protections we can offer an accused person facing serious jeopardy to test their case, the better chance we’ll be able to weed out wrongful or unjust convictions. Nobody wants to see those.

Over the course of about 20 years in several common-law countries, preliminary inquiries or “committal hearings” have been the whipping boy for justice reformers, identified by them as a key source of court inefficiency and waste. In some jurisdictions, their use has been curtailed.

But looking at the Manitoba situation in particular, I can’t see how eliminating the prelim process would help speed up the course of criminal justice. In fact, I believe it would actually slow it down and simply clog superior courts with addition pre-trial motions and other legal procedural issues. (** See below for a good example of this **).

Contrary to what Mr. Helwer suggests, Taking away a suspect’s option of testing the Crown’s evidence won’t strong-arm them into pleading guilty, even if deals are proffered.

More importantly, who wants any part of a system where people are denied — however tacitly — their fundamental right to have their day in court if they so choose?

No judge would even accept a person’s plea if they caught a whiff that it was being forced in any way.

The often-heard complaints about preliminary inquiries seem to go like this, and it’s not an exhaustive list:

The bar the Crown must clear is low to move the case on to trial in superior court. All it needs to show is that evidence exists on which a reasonable jury, properly instructed, could find an accused person guilty. Some wonder why this step is needed at all, given that a trial proper appears to accomplish this task just nicely, thanks.

I won’t pretend to be a legal expert on the matter, but just this week, I was reminded of the importance of prelims in a case I’m prohibited yet from spilling the full details of.

In essence, a person accused of a very serious crime was not committed to stand trial for manslaughter. The Crown fought that provincial court judge’s decision to quash the charge and lost.

The judge’s reasons to not put the case forward to trial were complex and technical. And after thinking about it over many days now, it was the right decision to make, in my opinion.

Putting it in front of a jury, with respect, would likely result in a misapprehension of the law and could have resulted in a wrongful conviction. It’s very easy to opine that the accused skated on a technicality, but that’s simply not the case.

Score one for the preliminary hearing, in my books. More on this when it all resolves.

If I were to offer an honest complaint about preliminary hearings, I would say it revolves around a tactic used by the defence in domestic violence cases.

Basically: it’s not uncommon to see a case set down for a prelim just to see if the complainant will show up to testify. Many, many such cases fall apart at this stage because they don’t.

In the end, though, that’s not a fault of the process, but speaks to larger societal issues.

The defence has a job to do, just as the system itself does. Preliminary inquiries are an important part of that work.

———————

One example of how taking away an accused’s prelim will just trigger more pre-trial motions: Earlier this year, Manitoba Justice directly indicted Terrence Hanska to trial in the Court of Queen’s Bench on two attempted murder and other charges relating to separate incidents about two hours apart in May 2012. In response, Hanska is now battling to see the two incidents severed off into two separate trials. Reasons include how he believes allowing the Crown to lead evidence of the second incident would amount to “bad character evidence” and prejudice his fair-trial rights. He may have a point, may not. The point is: taking away a prelim for Hanska by directly indicting him likely won’t result in the case being heard any sooner. We’ll see.

Advertisements