Preliminary Inquiries: Gender Analysis

Preliminary Inquiries: Gender Analysis, Ottawa: Status of Women Canada, 1994, 32 pp.

33 Pages Posted: 2 May 2014

See all articles by Elizabeth A. Sheehy

Elizabeth A. Sheehy

University of Ottawa - Common Law Section

Date Written: 1994

Abstract

This paper sets out and assesses, from a feminist perspective, Department of Justice proposals, in Do We Still Need Preliminary Inquiries?, to abolish or substantially alter the preliminary inquiry for criminal offences.

The preliminary inquiry is a judicial process whose historical and legislated purpose is to ensure that there is sufficient evidence of an accused’s guilt with respect to an offence charged to justify sending the case on for trial. It is available only for specific, more serious criminal offences, and requires the Crown Attorney to establish a prima facie case, through the testimony of witnesses and other evidence, before the accused will be sent on for trial. The defence is entitled to cross-examine those witnesses, and to call their own witnesses as well. The Department of Justice is interested in reforming this process in order tor reduce court delays and conserve resources.

This paper addresses the reasons given by the Department of Justice for the law reform effort from a feminist perspective, and concludes that women have an interest in this reform process:

Women who have survived rape and/or wife assault and who are willing to act as primary witnesses in the criminal trials of their assailants will have an interest in changes to the preliminary inquiry that: reduce the number of times that cross-examination must be undergone; restrict the scope of cross-examination; hasten the ultimate resolution of the charges; put absolute limits on the defence’s access to mental health and counselling records; restrict contact with the offender; involve the primary witness in Crown decisions and plea negotiations arising from the preliminary; and increase the chances of ultimately securing a conviction at trial.

Women who are charged with offenses that include a preliminary inquiry as part of the trial process span a broad spectrum, since these offenses include such disparate offenses as theft involving property valued at more then one thousand dollars, many drug related offences, and manslaughter and murder. The interests of such women as they relate to preliminary inquires will be: ensuring that they are not put on trial when the evidence against them is inadequate, thus sparing the anxiety and cost of a criminal trial; ensuring that women are not tried when it is unjust to prosecute in light of all the circumstances surrounding the offence; using the preliminary inquiry to gain more information about the Crown’s case so as to prepare a defence; using the opportunity to cross-examine witnesses at the preliminary to discover weaknesses in the Crown’s case; hastening the ultimate resolution of the charges; and exploring the possibility of plea negotiations arising out of the preliminary inquiry.

The paper describes the five proposals set out by the Department of Justice and sets out the advantages and disadvantages of each. For some of the more favourable proposals, the paper recommends changes that would improve the proposal for women.

Specifically, the paper: Recommends against retaining the preliminary inquiry in its current form (option 1); Recommends that the best option available to women, among those forwarded by the Department of Justice, would be the institution of a paper committal process, combined with legally enforceable disclosure, which would require a justice to evaluate and provide written reasons as to the sufficiency of the evidence for trial (option 2(ii). This option would be more favourable to women accused if it were confined to sexual and wife assault cases, so that for all other offenses, the preliminary inquiry would be retained; Recommends against retaining the preliminary inquiry only to screen charges through a foreshortened preliminary process (option 2 i)) or when the accused can show special reasons to hold a full preliminary (option 2(iii)); Recommends against raising the standard for committal for trial at the preliminary inquiry, which would screen out more cases from the trial process (option 3); Recommends against retaining the preliminary inquiry only for treason and murder (option 4(i)); Recommends against re-classifying specific complex or minor offenses so that the Crown can proceed summarily and avoid the preliminary inquiry unless, in the case of offenses of violence against women, the maximum penalty for these offenses prosecuted summarily were raised from six months to just under five years imprisonment and mandatory, enforceable prosecutorial guidelines were enacted (option 4 (ii)); Recommends against implementing informal procedures for witness examination and cross-examination prior to trial to replace the preliminary, (option 5 (vi)) unless sexual and wife assault causes were specifically excluded from this process or other protective mechanisms were put in place; Recommends against abolition of the preliminary inquiry (option 6); Recommends that if any option pursued, that in the case of sexual and wife assault, one of the following options should be implemented: a) legislative exemptions from cross-examination at the preliminary inquiry for the primary witness; b0 paper committal process for these offenses; or c) legislative limits on the types of questions that defence counsel can ask at the preliminary inquiry of the primary witness; Recommends that whichever option for reform is pursued, it must include: a) legislation designating counseling records for women who have survived offenses of violence as absolutely privileged; b) enforceable prosecutorial guidelines that guide Crown discretion in the decision to prosecute; and c) enforceable prosecutorial guidelines that require Crown consultation with victim/witnesses as part of the plea bargaining process.

Keywords: preliminary inquiry, criminal, reform, feminist, women, Department of Justice, Canada

Suggested Citation

Sheehy, Elizabeth A., Preliminary Inquiries: Gender Analysis (1994). Preliminary Inquiries: Gender Analysis, Ottawa: Status of Women Canada, 1994, 32 pp. . Available at SSRN: https://ssrn.com/abstract=2431413

Elizabeth A. Sheehy (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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