Confusion around a key part of the federal government’s bill to revamp the criminal justice system risks causing chaos and delays in the court system when the bill comes into force later this month, lawyers say.

The problem is with how Bill C-75 limits the use of preliminary hearings, typically held before trials in Superior Court, in which witnesses testify under oath, allowing a lower court judge to determine if there is enough evidence to send the accused to trial.

The bill limits the preliminary hearings to individuals charged with offences that carry a maximum term of imprisonment of 14 years or longer, a move the federal government argued would help speed up the justice system.

But the bill is silent on whether the provisions apply retroactively to individuals charged with offences that would no longer qualify for a prelim, but who had scheduled their prelim before Sept. 19, when the bill comes into effect.

The federal Department of Justice’s position is that if the individual has scheduled their preliminary hearing before Sept. 19, they will still be entitled to it, even if it takes place after that date. The department told the Star in an email that provisions regarding retroactivity were not required because existing laws already address the issue.

But the position of the provincial Crown, which is responsible for prosecuting most criminal cases, is that those individuals will immediately lose their chance at a prelim after the 19th, even if one had already been scheduled, according to the Crown’s written argument in one ongoing criminal case obtained by the Star.

The president of the Criminal Lawyers’ Association, Michael Lacy, told the Star this issue risks causing further delays in an already slow criminal justice system, where cases will languish and risk being tossed for violating an accused person’s right to a trial within a reasonable time.

Lacy said that for reasons unclear to him, the Ontario government has chosen to litigate this issue in several ongoing criminal cases in the Ontario Court of Justice involving potential preliminary hearings. That runs the risk of lower court judges across the province delivering inconsistent rulings on whether provisions around preliminary hearings apply retroactively, he said.

Whichever side loses will undoubtedly appeal, and it could take months or years before a final declaration from the courts, he said.

Ontario Ministry’s Attorney General would not comment as to how it reached its position on C-75 when contacted by the Star.

“The federal government’s Bill C-75 does not contain transitional provisions in relation to preliminary inquiries. As a result, there is a legal issue regarding the interpretation of the new Criminal Code provisions,” said ministry spokesman Brian Gray.

A much simpler solution, Lacy said, is for the provincial government to ask the Ontario Court of Appeal for a ruling in a reference case — similar to what it did in the federal carbon tax case, when it asked the court for a ruling the tax was unconstitutional. (The government lost.)

“They didn’t hesitate to invoke the process then and wanted a clear declaration then from the Court of Appeal,” Lacy said. “In this case, rather than go to the highest court in Ontario, to allow all the parties to appear, to get a firm ruling on whether they’re wrong, they’re doing this lengthy, circuitous, costly route that does a disservice to the administration of justice.”

The ministry did not respond to the Star’s question as to why the government did not seek a ruling on the issue from the Court of Appeal.

“It would be inappropriate for the ministry to comment further as this issue is currently before the courts,” Gray said.

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Instead of spending time arguing in court whether the prelim provisions are retroactive, court time could be better spent just doing the actual preliminary hearings for these transitional cases, the CLA has said.

“What happens to all these cases in the meantime?” Lacy said. “This attorney general and this government are concerned with having cases tried on their merits, everyone’s talking about delays and efficiencies in the system...What a waste of judicial resources, what a waste of Crown resources, and what is this going to do to legal aid’s already restricted budget?”