Preliminary inquiries ‘grease the wheels of justice’ and serve key purpose
By Jennifer Pritchett, Associate Editor
The preliminary hearing process cannot be underestimated; its value is significant in assessing the evidence before wasting considerable court resources on a trial, says Toronto criminal lawyer Roots Gadhia.
“When people are called to the stand to testify, both the Crown and the defence are assessing that witness’s evidence — does it describe an offence, has the identification of the perpetrator been made out, does the physical evidence corroborate the words spoken?” she tells AdvocateDaily.com.
Gadhia, principal of R. Roots Gadhia Criminal Defence Law, says it’s important to note that sometimes what a witness says initially in a statement may not be what is said on the stand, and that can either reduce the number of charges that can go to trial or, in some cases, increase the charges.
“Either way, the wheels of justice are greased and move quickly once both sides see how the evidence performs,” she says. “It can mean the difference between the Crown assessing a reasonable prospect of conviction or a guilty plea.”
Gadhia comments as the future of the preliminary hearing has become a topic of hot debate in recent months, following the July 2016 Supreme Court of Canada decision, R. v. Jordan, which set new timelines for how long it takes to complete a trial after someone is charged — 18 months in provincial court and 30 months in Superior Court.
With concern mounting about how to meet these new benchmarks, Ontario’s attorney general asked the federal justice minister to restrict the use of preliminary hearings,
except for the most serious crimes, including murder, treason and others, reports the Globe and Mail.
This has sparked generous discussion in the legal community.
The Canadian Bar Association has appealed to the federal justice minister to save the preliminary hearing, arguing its use shouldn’t be restricted to save time in the judicial system, says the newspaper.
Gadhia says it’s wrong to focus on limiting an aspect of an accused person’s fundamental procedural rights as a way of saving time.
She says there are many ways the court system could become more efficient and points to the scheduling of court appearances as one area that could be improved.
“There was a time when the courts would operate on the schedule of defence counsel in that appearances would occur when lawyers were available to attend for their clients,” she says. “Now, every courthouse has implemented a system designed to assist only the Crown and the police.
“For example, an accused with a last name starting with a “B” is heard on Mondays in some courts. In other courts, if the individual is charged at 31 Division in Toronto, their matters are only heard on Tuesdays, and if they are later charged in 32 Division, their matters are heard on Wednesdays.”
Gadhia says that since defence counsel are not involved with setting their clients’ court dates, there are times when a lawyer may be required to appear at the same time in two different courthouses.
“As a result, most defence counsel have to pick and choose which appearance they can attend and the others are left to adjourn to another day,” she says.
In recently bringing forward a Rowbotham Application in Superior Court so that a client who was denied legal aid may be given financial means to afford a lawyer, Gadhia learned that the date on which she wanted to argue the application wasn’t available because they only hear such applications on Mondays.
“You can’t just file applications the way we used to. Now you have to file to make an appearance on one date so the trial co-ordinator can give you a date to argue,” she says. “When we asked why the trial co-ordinator couldn’t just give us a date, we were told that’s not how it works. The Crown and defence have to show up to court on a date to select a date when the application can be heard.”
Gadhia says there is a “cycle of wasted court time” and this is what contributes to the backlog.
“The use of preliminary hearings isn’t the problem,” she says.
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