On September 19, 2019, new federal legislation kicked in which eliminates access to a preliminary hearing for people charged with crimes that hold less than a 14-year maximum sentence. This change was presented as an attempt to address the 2016 Supreme Court ruling in R v Jordan, which placed time limits on prosecutions and resulted in hundreds of criminal cases being thrown out for unconstitutional delays.

Unfortunately, removal of preliminary hearings will likely have the opposite effect and the combination of recent amendments to the criminal code could prove disastrous.

The problem isn’t just a disadvantage to the accused, defence lawyer and legal expert Joseph Neuberger told The Post Millennial “this is very unfortunate because the preliminary inquiry, if run efficiently, can be exceptionally helpful to both the Crown and the defence in order to assess the case and bring out issues, including factual issues.”

Neuberger pointed out that the changes were primarily intended to change the trial process in favour of complainants in sexual assault trials. Indeed, a review of the debate on the bill reveals then Minister of Justice Jody Wilson-Raybould’s explanation of the intention behind the amendment:

The proposed measures would reduce the number of preliminary inquiries by approximately 87%, ensure they are still available for the more complex and serious offences, help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice, once at a preliminary inquiry and once at trial. For example, this measure would eliminate the need for a vulnerable witness in a sexual assault or child sexual assault trial from having to testify twice.

Neuberger said “I look at the Trudeau government like an activist group, where they don’t want to ‘re-victimize victims,’ and the reality is—that presupposes guilt.”

In 2016 the government embarked on a mission called “Transforming the Criminal Justice System” which heavily focused on how “victims” experience the justice system. While some witnesses are undisputedly victims, like those who have lost a family member to murder, the revamping of our legal system had a primary mandate to address presumed crimes where an alleged sexual assault complainant hasn’t even reported to police.

While testifying in a public courtroom may be stressful for any witness, Neuberger pointed out that we can’t “choose between witnesses and say, ‘You’re more worthy of protections and sheltering and reversing rules of law for you.’” Neuberger went on to recount a trial in which a police officer broke down in tears while testifying about a murder case which continued to traumatize the officer. Murder charges still have access to preliminary hearings under the new regulations. Neuberger said:

What we’ve decided to do is elevate people in the domestic context and in the sexual context, [granting] those complainants a special place in the criminal justice system, and we’re going to do everything possible to ensure convictions and that they don’t have to get asked questions and they don’t have to be subjected to sexual history issues. The government is bending over backwards and trying to brainwash courts that these people are deserving of far more protection than an accused, and far more protections than other people in other cases that are equally as traumatic, if not more.

Joseph Neuberger’s extensive experience of preliminary inquiries is that complainants in sexual assault cases can equally benefit from having the case properly assessed in advance of trial, sometimes sparing them from a lengthier and more vigorous cross-examination where the process is likely to be more gruelling and the prospect of conviction is extremely low.

He pointed out the variety of effective protections that fragile complainants are already offered, including closed-circuit TV, privacy screens, and the accompaniment of support workers.

Neuberger sees the new changes as a result of the government “kowtowing” to specific activist groups, saying “It is astonishing that we have allowed this type of erosion of our rights in this country simply because of certain advocacy groups.”

The idea that eliminating highly effective preliminary hearings will somehow speed up trials is a red herring. Combined with the new rules on evidence in sexual assault hearings we are likely to see more delays and more charges dropped for exceeding the time limits on prosecution.

It is not just the defence that benefits from a prelim, Neuberger pointed out that sometimes the accused enters into a plea bargain after seeing the strength of the case against them.

While the loss of preliminary inquiries has just taken effect and the results are yet unknown, one thing is certain: attempts to “modernize” the legal system should not presume that acquittals are a failure of the system and remember that prosecutors have a special duty to seek the truth rather than keeping a scorecard based on conviction rates.