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Cutting prelims would 'wreak havoc' on fairness of system

Mar 10, 2017
Although Ontario’s attorney general has called for the federal government to curtail the use of preliminary inquiries in most criminal cases in order to shorten delays in the justice system, this would result in many accused not having the tools they need to go to trial, Toronto litigator Richard Shekter tells Sirius XM radio. 


Especially for more serious charges, says Shekter, partner with Shekter Dychtenberg LLP, a Bay Street litigation law firm, the preliminary hearing serves a number of invaluable purposes for defence counsel. 

The first thing that it does, he explains, is it allows the defence and the Crown to see first-hand who the witnesses in the case are, and to assess the relative strengths and weaknesses of the cases that are being presented or defended. 

"That often, in many instances, leads to a resolution by way of a plea bargain, which serves everyone’s purpose," he says. 

Secondly, Shekter explains, although the prosecution in Canada is required to provide the defence with full disclosure, which includes all documents, witness statements and evidence relevant to the matter so the defence can evaluate the strength of the case, ‘paper’ evidence, and videos often don’t tell the whole story. 

“I can’t tell you how many cases that I and my colleagues have had at the defence bar where if we didn’t have the opportunity to test the strengths and weaknesses of witnesses called by the Crown at the preliminary hearing, the result at the trial, which ultimately in many instances was an acquittal, would never have been achieved. As a result, someone who theoretically was innocent could have been found guilty,” he says.

 Although there are a variety of reasons for the current delays in the justice system, Shekter says the major factors are a lack of proper funding and staffing, including 60 judicial vacancies at the federal level. 

He says preliminary hearings have been refined substantially in the last number of years, and include strict rules about the type of evidence lawyers can call. 

“The fact remains that if you’re the one who’s charged with a criminal offence, you want to make sure that your lawyer has all of the tools available to him or her to ensure that you have an adequate defence" and that you understand the case against you and the evidence that the Crown is going to call, explains Shekter. 

Shekter says that if the proposal to eliminate preliminary inquiries goes ahead, it will “wreak havoc" on the system and subvert the fairness of the process. Such a proposal “undermines and understates" the importance of being able to see and evaluate the Crown’s witnesses and set your defences up, he says. 

The proposal is scary to members of the criminal defence bar, he says, "because we’re the final bulwark between our clients and the loss of their freedoms.” 

Shekter suggests to listeners that personalizing the issue is the best way of understanding its importance. “If you’re charged with an offence, would you want your lawyer to be representing you with one hand tied behind their backs because they couldn’t access the kind of witness' [cross-examinations] that they needed to set the defence up?" he asks. 

In many instances, adds Shekter, there’s a lot that defence lawyers can do to prepare for a criminal trial that would be hamstrung, but for the availability of a preliminary inquiry. 

“Without the kind of rigorous, intense scrutiny that a preliminary inquiry can provide, I think that there but for the grace of God could go anyone in society. It’s very important that we, as defence counsel, maintain a very vigorous posture [to, and opposition] about this.”

- With files from AdvocateDaily.com


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