WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-09-20

Court File No.: Lindsay 180697, 170665, 180637, 180987

Parties

Between:

Her Majesty the Queen

— AND —

Randy Fraser, Russell Vincent, Nicholas Huntley, Todd Thornbury & James Burton

Before the Court

Before: Justice S. W. Konyer

Heard on: September 6, 2019

Reasons for Judgment released on: September 20, 2019

Counsel

• Mr. D. Boulet — counsel for the Crown
• Mr. S. Proudlove — counsel for the accused Randy Fraser
• Mr. B. Jeffries — counsel for the accused Russell Vincent
• Mr. R. Gemmill — counsel for the accused Nicholas Huntley and James Burton
• Ms. S. Wiebe — counsel for the accused Todd Thornbury

REASONS FOR JUDGMENT

KONYER J.:

[1] Effective Date and Legislative Amendment

Effective September 19, 2019, as a result of Criminal Code amendments contained in Bill C-75, persons charged with indictable offences that are punishable by less than 14 years imprisonment are no longer entitled to request that a justice conduct a preliminary inquiry. As of September 19, 2019, s.535 of the Criminal Code provides:

If an accused who is charged with an indictable offence that is punishable by 14 years or more of imprisonment is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, found on the facts that are disclosed by the evidence taken in accordance with this part.

[2] Prior Law

The qualifying phrase "that is punishable by 14 years or more of imprisonment" was added to the section by Bill C-75 and came into force on September 19. Prior to that date, any person charged with an indictable offence was entitled to request a preliminary inquiry.

[3] The Central Issue

Each of the five respondents were charged prior to September 19. The Crown elected to proceed by indictment in each of their cases, and the offences charged are punishable by less than 14 years imprisonment. Each of the respondents elected to be tried by a court composed of a judge and jury, and each requested a preliminary inquiry. All of the elections and requests were made long before September 19, however, none of the preliminary inquiries were completed before this date. The Crown now argues that this court no longer has jurisdiction to conduct these preliminary inquiries because the amendments restricting the availability of preliminary inquiries apply retrospectively to each of these cases. The respondents dispute the Crown's claim that these amendments apply to their cases.

[4] Procedural Background

I am the justice assigned to hear the evidence on the preliminary inquiry into the charges against one of the respondents, Randy Fraser. The remaining parties all agreed to argue this application jointly and to be bound by my ruling, subject to their rights of appeal. Before turning to the legal issues on this application, it will be useful to set out the relevant procedural history of each case.

[5] Randy Fraser

Randy Fraser was charged with sexual assault and breach of probation on June 29, 2018. On August 16, 2018, the Crown elected to proceed by indictment. On November 13, 2018, following the usual intake process including a judicial pre-trial, Mr. Fraser elected to be tried by a judge and jury, and requested a preliminary inquiry. On the same date, his preliminary inquiry was scheduled for October 11, 2019 for the taking of evidence, with a date of September 5, 2019 for an application under s.276 of the Criminal Code relating to the scope of cross-examination of the complainant at the preliminary inquiry. On September 5, 2019, I heard and ruled on the s.276 application.

[6] Russell Vincent

Russell Vincent was charged with numerous offences including sexual assault on June 7, 2017. On June 15, 2017, the Crown elected to proceed by indictment. On November 29, 2018, Mr. Vincent elected to be tried by a judge and jury, and he requested a preliminary inquiry. On the same date, his preliminary inquiry was scheduled for November 29, 2019.

[7] Nicholas Huntley

Nicholas Huntley was charged with assault and sexual assault on June 12, 2018. On December 10, 2018, the Crown elected to proceed by indictment, Mr. Huntley elected to be tried by a judge and jury, and he requested a preliminary inquiry. On the same date, his preliminary inquiry was scheduled for December 10, 2019.

[8] Todd Thornbury and James Burton

Todd Thornbury and James Burton were jointly charged with sexual assault on August 21, 2018. On April 8, 2019, the Crown elected to proceed by indictment, both accused elected to be tried by a judge and jury, and they each requested a preliminary inquiry. On the same date, their preliminary inquiry was scheduled for February 26, 2020.

[9] The Legal Question: Prospective or Retrospective Application

The issue I need to decide on this application is whether the amendments restricting the availability of preliminary inquiries apply prospectively (that is only to cases where accused persons are put to their election after September 19) or retrospectively (to cases already in the system as of September 19 where a preliminary inquiry was requested but has not been completed). If the amendments apply retrospectively, as the Crown argues, then this court no longer has jurisdiction to conduct preliminary inquiries in the respondents' cases. If the amendments apply prospectively, however, then the court continues to have jurisdiction to conduct the preliminary inquiries as scheduled. Deciding whether the amendments apply prospectively or retrospectively is a matter of statutory interpretation.

[10] Guidance from the Legislation

Sullivan on the Construction of Statutes is the leading text on statutory interpretation in Canada. According to Sullivan, the primary source of guidance on the temporal application of legislative amendments is the amending legislation itself. Often, the legislation will contain "transitional provisions" that specify whether Parliament intended amendments to legislation to apply prospectively or retrospectively. While Bill C-75 contains transitional provisions relating to other amendments to the Criminal Code, no transitional provisions exist for the amendments restricting the availability of preliminary inquiries. Nor does the Bill contain any preamble to provide guidance on how Parliament intended these provisions to apply to cases already in the system at the time the amendments came into force. In short, the amending legislation provides no guidance.

[11] Legislative Record and Parliamentary Intent

In the absence of an explicit statement of intent in the legislation itself, it is sometimes possible to discern Parliament's intent from an examination of the legislative record. The Crown argues that a legislative intent in favour of retrospective application can be discerned from statements made by the sponsors of this bill in both the House of Commons and the Senate. According to these statements, Bill C-75 was designed to, among other things, "unclog the courts" and "reduce the burdens on witnesses and victims from having to testify twice". While these statements shed some light on what Parliament intended to accomplish through these amendments, they do not persuade me that Parliament specifically intended to affect cases already in the system. In my view, caution should be exercised in drawing inferences on specific issues like the temporal application of legislation from sweeping statements made in a partisan context. Nothing about these statements persuade me that they reflect a considered wish by Parliament to have the legislation apply retrospectively as opposed to prospectively.

[12] Principles of Statutory Interpretation

In the absence of clear guidance from the legislation or Parliament, I return to the principles of statutory interpretation. Where the legislation does not specify whether its provisions were intended to apply retrospectively or prospectively, it is necessary to refer to other sources of rules governing the temporal application of legislation. These include the federal Interpretation Act and the common law.

[13] Section 44 of the Interpretation Act

Section 44 of the Interpretation Act deals with the temporal application of new amendments to existing legislation. It provides, in part:

44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment" is substituted therefor,

(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(iii) in a proceeding in relation to matters that have happened before the repeal;

[14] The Dineley Principle

These provisions have been interpreted to mean that, generally speaking, amendments affecting substantive rights apply prospectively, while amendments that are purely procedural apply retrospectively. The Supreme Court of Canada summarized the governing principle this way in R. v. Dineley, 2012 SCC 58, at para. 10:

New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent to apply retrospectively…. However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases.

[15] Rule of Law and Fairness

It is clear that principles of certainty and fairness are part of the rationale for the presumption against retrospective application of amendments that affect substantive rights. As Sullivan puts it:

The most compelling concern underlying transitional law is the rule of law and the values served by the rule of law – certainty, predictability, stability, rationality, and formal equality. One of the great virtues of law is that it provides a stable framework within which people can carry on their activities.

In assessing the temporal application of legislation, another major consideration is fairness. It is unfair to establish rules, invite people to rely on them, then change them in mid-stream, especially if the change results in negative consequences.

[16] Certainty and Vested Rights

It can be seen that the Supreme Court followed this approach in Dineley, supra, at para. 10:

Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable.

[17] Procedural Amendments Affecting Substantive Rights

Thus, the issue of the temporal application of these amendments can be resolved by answering the following question: do the amendments affect substantive or vested rights? Just because amendments are procedural does not mean that they do not have an impact on substantive rights. Even procedural amendments "may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately": Dineley, supra, para. 11.

[18] The Dineley Example

Dineley itself provides an example of procedural amendments to the Criminal Code that were found to affect substantive rights. There, the Supreme Court considered whether changes to the manner of proof of blood-alcohol concentration in drinking and driving cases ought to apply prospectively or retrospectively. Although evidentiary matters are generally considered to be purely procedural in nature, the effect of these amendments to the procedure was to eliminate a defence that had previously been available. Therefore, substantive rights of persons charged before the amendments came into force were affected, and the court held that applying the amendments to those cases retrospectively would offend the principles of certainty and fairness discussed previously. Because the amendments were not merely procedural, they were presumed not to apply retrospectively.

[19] Crown's Arguments Regarding Substantive Rights

The Crown argues that the amendments restricting preliminary inquiries are different, and do not impact any substantive rights of the respondents. Preliminary inquiries are created by statute, and no accused has an absolute right under the constitution or at common law to a preliminary inquiry. Therefore, the Crown argues, preliminary inquiries do not confer any substantive rights on the respondents. I am not persuaded by these arguments. The procedure in question in Dineley was also the product of statute, not the result of a constitutional guarantee or common law right, and the court held that changes to the procedure nevertheless impacted a substantive right.

[20] The Screening Function of Preliminary Inquiries

The Crown also points out that the respondents all have a constitutionally-protected right to disclosure separate from the preliminary inquiry procedure. Preliminary inquiries, therefore, do not protect the right to disclosure or confer a right to discovery of the Crown's case. I agree that preliminary inquiries do not confer a right of discovery; rather, the discovery function is ancillary to the true purpose of the inquiry, which is to screen out weak cases where the evidence is incapable of supporting a conviction. The real question is whether the screening function of a preliminary inquiry confers a substantive right.

[21] The Right to Discharge

The Crown argues that it does not for two reasons. First, it says an accused person can obtain the same result at the close of the prosecution case at trial if the evidence is insufficient to sustain a conviction through an application for non-suit or a directed verdict of acquittal. In my view, however, this argument does not assist the Crown. If accused persons have the right to a directed verdict where the prosecution case cannot support a conviction, it follows that the screening function served by preliminary inquiries confers a similar right. Accused persons have the right to be discharged following a preliminary inquiry where the evidence against them is legally insufficient. In my view, this is a substantive right.

[22] Supreme Court Recognition of the Screening Function

The Supreme Court of Canada has made it clear that the judicial screening function performed by preliminary inquiries is an important safeguard of individual rights. In R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30, the court held that the screening function is designed to protect citizens against exposure to the risk of unwarranted trials.

The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial: Criminal Code, s.548(1); Caccamo v. The Queen, [1976] 1 S.C.R. 786. The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to "protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process": Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105.

[23] The Attorney General's Prerogative

The second argument advanced by the Crown is that preliminary inquiries do not confer a substantive right to be discharged where the evidence is insufficient because the Attorney General has the right to dispense with any preliminary inquiry by preferring an indictment: s. 577 of the Criminal Code. I cannot agree. Like any exercise of discretion by a quasi-judicial officer, the Attorney General's prerogative to prefer an indictment is one that must be exercised in good faith, in accordance with their duty to act as a minister of justice, and in accordance with the rule of law. It is not a carte blanche licence to prosecute accused persons who have been or would otherwise be lawfully discharged due to a lack of evidence. In my view, the Attorney General's authority to prefer an indictment does not detract from the screening function of the preliminary inquiry, or the right of an accused to be discharged if the evidence is deficient.

[24] Preliminary Inquiries Protect Substantive Rights

I find, therefore, that preliminary inquiries are not purely procedural in nature. Although it is a "pre-trial screening procedure", the preliminary inquiry protects accused persons from the risk and harm of an unwarranted public trial. The right not to be exposed to a public trial unless sufficient evidence is produced at a preliminary inquiry is, in my view, a substantive right. Since the impugned amendments affect this right, they are presumed not to apply retrospectively.

[25] Vested Rights

I also find that the respondents' right to a preliminary inquiry has vested. A right vests when the conditions precedent for exercising the right have all been satisfied: R. v. Puskas; R. v. Chatwell, [1998] 1 S.C.R. 1207, at para. 14-15. For the right to a preliminary inquiry to vest, the Crown must elect to proceed by indictment, the accused must elect a mode of trial other than by a provincial court judge, and the accused must request a preliminary inquiry. All of these conditions have been satisfied for each of the respondents. To borrow Professor Sullivan's language, the respondents were each invited to request a preliminary inquiry under the rules that existed when they made their elections. Having relied on the rules, it would be unfair to the respondents to change those rules mid-stream.

[26] Disposition

Accordingly, I find that the amendments restricting the availability of preliminary inquiries contained in Bill C-75 do not apply retrospectively. This court continues to have jurisdiction to conduct the preliminary inquiries in each of the respondents' cases. The Crown's application to vacate these preliminary inquiries is dismissed.

Released: September 20, 2019

Signed: "Justice S. W. Konyer"