Tuesday, February 21, 2017

Better to Be Fair Than Fast

Traditionally in Canada very serious criminal cases go to trial only after they have been reviewed by a judicial officer who hears from witnesses and decides there is enough evidence to make a trial necessary.  The idea is that someone ought not to be put on trial for a serious case like arson or manslaughter or kidnapping without having an independent judicial officer listen to at least some of the evidence.  It also allows the accused to challenge the case before trial and make sure all the evidence is tested.  This testing is called a preliminary inquiry.

The testing of the case done at a preliminary inquiry is limited.  The judicial officer does not have to be satisfied to beyond a reasonable doubt that the accused is guilty – rather the trial goes ahead if there is sufficient evidence put forward that a reasonable person could convict the accused.  It is a low standard but it is not no standard and sometimes cases end at the preliminary inquiry.
Recently the right to have a preliminary inquiry has been limited by the former Conservative government and some people are saying, in order to get faster trial times, we should get rid of the preliminary inquiry altogether.

To my mind the elimination of a preliminary inquiry is a false saving.  It is helpful to hear the evidence of the Crown witnesses (and, if they are not available for trial their evidence may be available for the Crown to use!  I have had that happen a few times so the preliminary inquiry does not only help the accused).  In Canada today people charged with criminal offences are provided with all the evidence against them but a written statement or even a videotaped statement does not replace hearing someone testify in Court and be cross-examined on what they say happened.   Even if the case goes ahead, once the evidence is taken at the preliminary inquiry reasonable lawyers can usually narrow down what the trial needs to be about and witnesses are not able to come up with new stories because their evidence has been taken down.  The witnesses have sworn that what they said at the preliminary inquiry is the truth and if they try to vary from that evidence at trial, the accused and the Crown will be going to question why it has changed.  Sometimes evidence changes for a good reason but usually changed evidence is weak evidence.

Preliminary inquires can speed up cases.  As an example, I had an arson case in which the Crown’s case depended on one witness.  The witness gave a story which was, on paper, plausible.  But she was so obviously unsure of what she was saying that the Crown decided not to go ahead with the arson trial – as a result much trial time was saved.  In Nunavut even if the judicial officer is of the view there is sufficient evidence to go ahead with a trial, if the case seems weak the Crown will often reconsider the charges.

It’s easy to try to limit the rights of people charged with criminal offences – people charged are often held in contempt by their community – but a fair process is the only process that is suitable for Nunavummiut.  It’s better to be right than to be fast!

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