As a retired judge of the provincial court, I read with interest the Aug. 3 Times Colonist editorial on the topic of the high cost of justice in Canada, something that flows from our archaic system of preliminary inquiries, followed by trials.
Not only is this system expensive, it results in an intolerable delay in the administration of justice and sometimes to an injustice, whether by acquittal or conviction.
When our prosecutors and magistrates were mostly without legal education, such a system made sense and they had limited sentencing jurisdiction.
In serious cases that warranted a severe penalty beyond the jurisdiction of the magistrates, upon conviction or plea, magistrates decided, after hearing the evidence, whether the prosecution had a sufficient case to warrant a trial in the superior courts, or should be discharged.
However, they did not render a verdict of “guilty” or “not guilty,” nor did they mete out punishment. That was the prerogative of the superior courts.
It is still, in essence, the purpose of such an inquiry. It means that the accused and all the witnesses have to attend court twice, if the provincial court judge decides that there is sufficient evidence to warrant a trial. The trial usually takes place some months after the committal for trial by the provincial court judge.
During the interval, both the accused and the witnesses have to face the anxiety of waiting for the trial.
At the trial, they have to give all the same evidence again, although the accused may testify or call witnesses to testify to contradict the prosecution witnesses.
Nowadays, both the prosecutors and the provincial court judges have the same legal education as superior court justices.
There is no logical reason why all trials cannot take place in the provincial courts, with, perhaps, the exception of jury trials, but I respectfully am of the opinion that the jury system no longer serves any useful purpose, either.
Instead, where perhaps the charge against the accused is so serious that it requires the input of more than the provincial court judge, consideration might be given to the introduction of a system of “judge and assessors,” modelled on the South African system.
There, the jury system has been abolished. In serious cases, such as the current Oscar Pistorius murder trial, the trial is presided over by a superior court justice, assisted by two assessors. One is, I believe, a retired magistrate and the other a practising member of the bar, selected by the judge. Majority verdicts are permissible.
We can introduce the same system in our provincial courts. I recently wrote to Peter MacKay, the federal minister of justice, and urged him to propose legislation abolishing preliminary inquiries, and to provide that the prosecutor should, at the outset, decide whether to bring a case for trial or sentencing in the superior court.
Otherwise, the case should be disposed of, whether by sentencing following a guilty plea, or by trial, whatever the proposed sentence.
Where the accused elects to be sentenced or tried in the provincial court, I suggested that the latter should have jurisdiction upon a guilty plea or conviction to impose whatever penalty is fit, without any restrictions.
MacKay sent me a polite but evasive reply, pointing out that 97 per cent of all criminal cases are concluded in the provincial court. If 97 per cent, why not 100 per cent?
Jakob de Villiers is a retired B.C. provincial court judge.
