Unless you are away on holiday, and basking in the summer sun (at which point, you might not want to read the news), you’ve probably heard of the recent proposal to do away with the preliminary inquiry (“PI”) in all but the most serious of cases. As this is not a topic that most Albertans know a great deal about, but since many Albertans would be affected by a change of law in this area, we thought we’d provide some background and context to the question. Talk about some fun summer reading!
Why? Let’s start with why this is an issue right now.
This most recent go-around stems from a sexual assault case out of Airdrie. In that case, the accused was arrested and charged in September 2009. The matter did not come up for trial until October 2012. At that time, the defense applied for a judicial stay (i.e. that the issue be dropped), claiming that delay had violated the Accused’s right to be tried within a reasonable time (which is a Charter right – s.11(b)). The judge agreed. This effectively ended the prosecution. The accused cannot be tried again.
But what does this have to do with Preliminary Inquiries, I hear you ask? (Ok, not really, but I’m going to pretend.) After the Airdrie case, the Alberta government conducted a review to look at how to improve the delivery of justice in serious and violent criminal cases. In that review, (Injecting a Sense of Urgency ) there were 17 recommendations, including using direct indictments (i.e.: eliminating PIs) except in the most serious and complex of cases.
What? So what exactly is a Preliminary Inquiry (which, by the way, used to be called “the preliminary hearing”)?
A Preliminary Inquiry is a hearing that takes place to determine whether there is enough evidence to justify sending the case to trial (like the “Grand Jury” thing you see on TV in Law and Order – but that is American, so it is different). The PI is less formal that a trial, takes less time, and does not determine innocence or guilt or even whether or not the accused is probably guilty.
How? So how exactly does a PI work? Here is basically what happens:
- The preliminary inquiry (described in s.535 of the Criminal Code) occurs in Provincial Court, in front of a Provincial Court judge.
- The Crown prosecutor presents evidence and calls witnesses.
- The Defence does not present its case, but the Defence lawyer does have the right to cross-examine Crown witnesses.
- The Accused has the right to be present.
- If the judge decides that there is not enough evidence, the judge wills dismiss the case and discharge the Accused, who is then free to go.
- If there is enough evidence, the judge will order that the Accused stand trial in the Court of Queen’s Bench and a trial date is set.
Well that is probably a good start for today. Tomorrow, we’ll look at the PI in a bit more depth, including at the when, where and why. Stay tuned!