How Bill C-75 will impact the preliminary inquiry: Reasonable Doubt

April 13, 2018
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From NOW's Reasonable Doubt column: Last week, the federal government announced Bill C-75, which is legislation that would change many sections of the Criminal Code. It would change how juries are selected, bail hearings are conducted, sentencing and the availability of preliminary inquiries. The reaction to Bill C-75 has been significant and mixed. The reaction from criminal defense lawyers has been almost entirely negative. In this article, I address the impact that Bill C-75 would have on the preliminary inquiry and why these changes are a poor solution to address the problem of lengthy waits for trials.

The purpose of a preliminary inquiry is to determine whether there is sufficient evidence for the Crown to proceed to trial. It is usually held long before the trial happens. For larger, more complex cases, it is an important opportunity for both the Crown and defense to better understand the strength and weaknesses of their case. Often a case won’t go beyond the preliminary inquiry. It will either become clear to the Crown that there is no reasonable prospect of obtaining a conviction or the evidence will cause the defendant to realize that the case against them is a strong one and they plead guilty.

Currently, a defendant has a right to a preliminary inquiry if the Crown has chosen to prosecute the offence by way of an Indictment (as opposed to proceeding summarily). There are some offences, such as murder, where the Crown is required to do this. As a general rule, the Crown will proceed by way of an Indictment where the case is more serious.

Bill C-75 proposes to eliminate the availability of the preliminary inquiry to only offences where there is a risk of life imprisonment. Examples of offences that carry this punishment include murder, committing an indictable offence for a criminal organization and arson. The list is relatively short, so this change would take away a defendant’s right to a preliminary inquiry in many offences where they would otherwise have one.

In their official announcement of this new legislation, the Liberal government wrote that "the elimination of the preliminary inquiry for certain offences may lead to speedier trials, thus protecting the right of the accused to be tried within a reasonable time." So their stated purpose is to speed up trial time (an issue that I wrote about previously in this column), but this simply isn't a good way to do so.

Read more: How Bill C-75 will impact the preliminary inquiry