Getting rid of preliminary hearings won't ease court backlog

Initial inquiries don’t happen often enough to affect court delays—and may even increase efficiency when they do happen, says legal expert.


If there is a quick fix to Alberta’s legal crunch—which has led in part to stayed charges in more than 200 cases so far this year—it won’t be eliminating preliminary hearings, said a University of Alberta legal expert.

“Even if you did eliminate preliminary inquiries, and it did save court time—which is questionable—it would be a drop in the bucket in terms of the overall situation with court delays,” said law professor Steven Penney. “It is far from a panacea.”

The notion of doing away with preliminary hearings has come to the forefront as legal experts rush to impede the surge of dismissed cases stemming from last summer’s Supreme Court of Canada ruling that wait times for criminal trials cannot exceed 18 months.

The ruling forced Crown attorneys to triage their caseload based on the severity of the crime and strength of the case, a measure that has undoubtedly allowed guilty parties to walk free.

Penney explained that preliminary inquiries serve as a cursory disclosure of the Crown’s case that allows the judge to decide whether to commit the accused to stand trial on every charge, and gives the defence a chance look at all the evidence against their client.

And though this may seem like a superfluous step that could be handled away from court, Penney said there is some evidence suggesting preliminary inquiries may increase the efficiency of the system.

“What tends to happen during preliminary hearings is issues are narrowed, so the trial will be shorter and more streamlined,” explained Penney. “What can also happen is the prosecution will realize it has a particularly weak case that is unlikely to succeed or that some of the charges are not likely to be proven, so they will sometimes drop the case or more commonly, negotiate a plea bargain.

“As the defence learns more about the Crown’s case, the Crown learns more about the weaknesses of its case—and that is an incentive for settlement.”

On top of that, Penney said, preliminary hearings are relatively infrequent because they are left for the more serious indictable offences tried in Alberta’s highest courts. The vast majority of criminal cases in the province are tried in provincial courts, which do not hold preliminary hearings.

“When you combine all of those things, you start to realize preliminary inquiries are a small piece of the overall puzzle of court delays,” said Penney.

He added that the basic efficiencies to be found will most likely result from making better use of technology in scheduling. But looking for bigger-picture improvements could mean asking whether the courts are really the best place for all criminal matters to be resolved, he noted.

“Maybe we should be looking at whether there are alternative measures or diversion programs that should be employed or developed to weed lesser crimes out of the formal criminal justice process to free up time for more serious cases,” said Penney. “These are things I think we will have to start exploring much more seriously.”