Direct indictment requests bring debate over preliminary hearings
High-profile cases in Saskatoon involving direct indictments have brought up the highly debated issue of the use of preliminary hearings in the justice system. University of Saskatchewan law professor Glen Luther said it’s an argument he’s heard for decades.
“It’s pretty close to people’s hearts,” he said. “If we’re just going to abolish it, it’s very shortsighted.”
The main purpose of a preliminary hearing is for a judge to decide if there's enough evidence in a case to go trial. Direct indictments waive those hearings, sending the case directly to trial, and are requested by the Crown in cases involving more serious charges including murder, conspiracy or sexual assault. The application is granted by the attorney general and only involves cases going to Queen’s Bench Court. Trials that are heard in provincial court don’t include a preliminary hearing.
The province lays out 14 reasons when a direct indictment could be requested, which include if a witness who is required to testify is in danger or harm, or if their age or health are factors, if evidence could be destroyed, when there are logistical problems such as months of testimony, numerous witnesses or international implications, or if there’s reason to believe the case is being deliberately delayed.
Recent Saskatoon cases
The Crown has applied for the case of Alexa Emerson to go directly to trial. A decision was supposed to be heard last month, and again Wednesday morning. It’s now been rescheduled for Dec. 13. Emerson, also known as Amanda Totchek, pleaded not guilty to 83 charges in relation to suspicious packages sent throughout the city and bomb threats.
In May and July of 2016, four direct indictments were granted in the Project Forseti case, which includes drug and organized crime charges.
In September, a direct indictment was granted in the case of suspended teacher Rhett Lundgren, who is facing child pornography-related offences. In that case, Crown prosecutor Lana Morelli said outstanding issues in the case could not be resolved with a preliminary hearing.
Lundgren’s lawyer wouldn’t comment directly on the case but spoke in general terms.
“The main concern is that now sometimes we don’t have a chance to cross examine the witnesses before the trial,” Darren Kraushaar said.
Federal Crown prosecutor Doug Curliss said having a witness testify at a preliminary hearing is an advantage to both sides.
“Because you see how the witness will do when they testify in court,” he said.
Luther, the law professor, said defence lawyers have concerns over not receiving disclosure if a preliminary hearing is waived, and compared preliminary hearings to dress rehearsals.
In a “dress rehearsal the timing is bad, no one’s really quite sure what to say next, and so on, and once you go through it once, you get more practice.”
He said avoiding a preliminary hearing could mean a trial “goes off the rails,” a case goes to trial that could have been settled and instead of saving time, it could do the opposite.
“That's the same reason that gives concerns about overusing direct indictments, we get speedy justice but we don’t necessarily get good justice,” he said.
Counting direct indictments
The province just started tracking direct indictments and said there were 38 direct indictments granted between October 2016 and September 2017. Federal prosecutors in Saskatchewan were granted one in that time period, according to the Public Prosecution Service of Canada.
Curliss said lawyers have differing views on the issue, but eventually parliament will decide whether preliminary hearings continue to be a part of Canada’s justice system. He said while direct indictments are rare, the numbers are rising.
He pointed to the Supreme Court’s decision last year that states provincial court cases that don’t include a preliminary hearing must go to trial within 18 months of the accused being charged, and 30 months in cases that go to superior courts or are tried after a prelim.
Curliss called the timelines “tight” and said it may lead to pressure to grant more direct indictments.