Why re-open the debate on the preliminary inquiry? Some preliminary empirical observations.

• Author: Webster, Cheryl Marie
• Position: Canada

Introduction

The preliminary inquiry is a long-standing feature of the Canadian criminal justice system. It was introduced in 1851 and is preserved today in Part XVIII of the Criminal Code of Canada. It is a procedural safeguard available in the prosecution of the more serious (i.e., most indictable) offences. In essence, the preliminary inquiry is a pre-trial hearing before a justice (a justice of the peace or a Provincial Court judge) who determines whether there is sufficient evidence to put an accused to the jeopardy of a criminal trial (Criminal Code, s 548). To this end, witnesses are called by the prosecution to give evidence in support of the charge(s) laid against the accused. Defence counsel is entitled to cross-examine them as well as call its own witnesses. Traditionally, the value of this procedure was seen in its function to test the prosecution's case and weed out cases that were not strong enough to justify the time and expense of a trial in the superior criminal court. However, its function has evolved over the years to include, among others, a "discovery" function that allows both the prosecution and the defence to probe the strength of the case and assess the credibility of witnesses in preparation for trial (see, e.g., Paciocco 2003/4; Gold and Presser 1996).

Despite its enduring nature, the preliminary inquiry has not been without controversy. Within the context of the evolving nature of the criminal court system and criminal procedure, in particular, there has been much debate over the years as to the continuing value of this procedural option. Most recently, the period leading up to the 2004 Bill C-15A changes to the preliminary inquiry was replete with academic (Paciocco 2003/4; Roach 1999; Baar 1993), practitioner (Bloos and Plaxton 1999/2000; Gold and Presser 1996; Epp 1995/96), and media (De Villiers 2002; Paul 2002; White 2002) attention. Opinions about the preliminary inquiry were frequently polarized. On the one hand, provincial Attorneys General tended to advocate for its abolition, seeing it as a (costly) vestige of the past that no longer served any important purpose. On the other hand, defence counsel (often vehemently) argued for its preservation, perceiving it as a fundamental tool in ensuring that accused persons were properly and fully defended. In striking contrast to this former period, relatively little discussion or debate about reform of the preliminary inquiry has occurred--at least, publicly--over the last decade. A naive observer might be tempted to interpret this lack of attention as evidence of satisfaction with--or, at a minimum, acquiescence in--the status quo.

That is, until the federal, provincial, and territorial (FPT) ministers responsible for justice and public safety announced in their press release of 6 November 2012 that they had agreed to refer the issue of preliminary inquiry reform to senior officials for review. This decision followed discussions by the ministers about "the current need for preliminary inquiries given the Crown disclosure obligations and more effective Crown screening" (Public Safety Canada 2012; emphasis added). The language seemingly foreshadows yet another legislative reform of this criminal procedure. Indeed, current disclosure rules and charge screening by Crown Attorneys are two of the principal arguments frequently proposed to support the abolition of the preliminary inquiry (Paciocco 2003-2004; Roach 1999). One need only include concerns about court delay and costs (Epp 1995/96; Vancouver Sun 2006) to complete the usual case mounted against this procedural option.

The purpose of the present article is modest: to provide an empirical context in which to think about preliminary inquiry reform. By looking at various aspects of the preliminary inquiry as it actually operates across Canada, we hope to contribute to the (apparently) re-emerging debate surrounding the usefulness and effectiveness of this procedure. In writing this article, our purpose is not to take sides in the longstanding debate on the continuing role (if any) of the preliminary inquiry in Canadian criminal procedure. Rather, we are inspired by the tradition of evidence-based policy most clearly championed and exemplified by Professor Tony Doob as one of Canada's most influential leaders in the development and implementation of this essential requirement for responsible criminal justice policy decision-making. Continuing in this legacy, we hope to provide an initial empirical grounding for those who have concerns on either side of the discussion to more effectively guide debate and possibly reform.

Methodology

The data upon which the findings for this article are based were taken from a rich national data set purchased by the Department of Justice, Canada, from the Canadian Centre for Justice Statistics (CCJS) Adult Court Survey to examine criminal justice structural reform. The coverage is extensive in nature. The data set represents slightly more than 2.2 million cases (involving Criminal Code and other federal statute charges) or roughly 90% of the national adult criminal court caseload and includes 11 of 13 jurisdictions in Canada (only Nunavut and Manitoba did not report data to CCJS at the time). Extending over five years between 1998/99 and 2002/3, the data are also longitudinal in nature, permitting an examination of short-term trends over time.

Equally notable, the data set contains several unique characteristics that were specifically created for the purpose of examining criminal court procedures. While the standard way in which CCJS described a case in the early part of this century was in terms of its outcome (e.g., the most serious offence for which an individual is found guilty)--a definition which is clearly well suited for examining sentencing practices--the unit of analysis of this data set has been defined by the characteristics of the case at the beginning of the court process (e.g., the most serious offence with which an individual is charged). (2) Given our focus on the ways in which cases are processed, this definition is advantageous, as it is these initial descriptors of the case that largely determine the procedures available as the case moves through the system. It also avoids, to a great extent, apparent anomalies resulting from the traditional outcome-defined data, such as a guilty finding in Superior Court for a "theft under" offence, precisely because the other charge in the case--for example, robbery--was dropped.

Similarly, while there are undoubtedly advantages to the standard 30 offence categories for which CCJS presents its findings, this offence breakdown is not particularly useful for our current purposes. Specifically, it does not follow the structure of the Criminal Code, which determines the procedural options available to cases as they move through the courts. For instance, CCJS presents only one category of sexual assault (rendering it impossible to separate hybrid and straight indictable offences within this category) and only one category of theft (making it impossible, for example, to separate offences within the absolute jurisdiction...