Preliminary hearings too important to eliminate, says UNB law prof

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Preliminary hearings too important to eliminate, says UNB law prof

A University of New Brunswick law professor says current talk about getting rid of preliminary hearings in Canada's justice system is too hasty.

Senior Manitoba judges, as well as attorneys general in that province and Ontario say the move would help get rid of the serious backlog of criminal cases across the country, and make sure the right to a speedy trial is observed.

Last summer the Supreme Court of Canada ruled 18 to 30 months is a reasonable time from the laying of criminal charges to the conclusion of a trial.

But professor Nicole O'Byrne says getting rid of preliminary hearings would hurt the accused.

"From the defence perspective, the preliminary inquiry plays a really essential role," she said. "You need to know the charges against you in order to conduct your defence properly. Now in a preliminary inquiry, the crown is obligated to disclose all of its evidence and then actually show what the arguments are going to be." 

The Crown must provide full disclosure of evidence ahead of the trial, but O'Byrne said finding out what is going to be done with the evidence is also crucial.

"Often (it's) in banker's boxes of thousands of documents and hours of video and whatnot," she said. "It's one thing to have that, that the defence can have that information. It's another thing to see how the crown's going to put that together to make it's case. And that's what preliminary inquiries are for."

While she agrees with the need for a more reasonable amount of time for trials to take place, and to pare down the backlog, O'Byrne said the defence must be given every chance to build its case, since the Crown usually has far more resources.

"You open up more opportunities for wrongful convictions, and that's a problem given our history in this country," she said.

Complete overhaul needed

While she feels the criminal justice system needs a complete overhaul and reform, O'Byrne thinks dropping preliminary hearings is a one-sided solution.

"To just look at one part of the equation, and not do a fuller study, and to make evidence-based public policy decisions in this area, would be to allow a knee-jerk reaction," she said.

O'Byrne would like to see a lot more evidence before the idea of changing preliminary hearings goes forward.