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 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) FAILURE TO COMPLY WITH ORDER
Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Anthony Bruzzese
Before: Justice M.K. Wendl
Heard: July 7, 8, 9 & 10, 2020
Reasons for Judgment on Adjournment Application
Released: July 13, 2020
Counsel
M. Dolby — Counsel for the Crown
P. Valli — Counsel for the Defendant Anthony Bruzzese
Editor's Note
These reasons have been edited and certain portions have been removed, pending completion of the defendant's trial, to comply with a publication ban under s. 539 of the Criminal Code.
Judgment
Introduction
1Anthony Bruzzese is charged with attempted murder, aggravated assault, possession of a weapon for a dangerous purpose and possession of a prohibited weapon. The defendant elected trial by judge and jury and is in front of this Court for a preliminary hearing.
2At the end of the fourth day of the preliminary hearing, committal was evident on the record. However, defence counsel requested an adjournment of the proceedings and the scheduling of a further date to hear from another witness, M.P., solely for the purpose of discovery.
3For the following reasons, I am denying the adjournment application and scheduling of a further date.
Allegations
4[This paragraph has been removed pending conclusion of the trial, in compliance with a publication order imposed under s. 539 of the Criminal Code.]
5[This paragraph has been removed pending conclusion of the trial, in compliance with a publication order imposed under s. 539 of the Criminal Code.]
6[This paragraph has been removed pending conclusion of the trial, in compliance with a publication order imposed under s. 539 of the Criminal Code.]
Preliminary Hearing Proceedings
7Mr. Bruzzese's preliminary hearing was scheduled to begin on July 6, 2020 for five days. However, on the first day, July 6, the Guelph Courthouse could not be opened due to staffing concerns needed to properly implement COVID-19 protocol. These were alleviated and the preliminary hearing began on July 7, 2020.
8By the fourth day of the proceedings, the Crown had called 12 witnesses … [sentence removed pending conclusion of the trial, in compliance with a publication order imposed under s. 539 of the Criminal Code.]
9After the Crown closed their case, the defence called four other police witnesses and defence counsel was given significant latitude in the manner of examination-in-chief … [sentence removed pending conclusion of the trial, in compliance with a publication order imposed under s. 539 of the Criminal Code.]
10Furthermore, during the hearing, the Crown also called other officers … [sentence removed pending conclusion of the trial, in compliance with a publication order imposed under s. 539 of the Criminal Code.]
11Based on this evidence, committal is readily apparent. Defence counsel has conceded committal on 3 of the 4 charges. The only issue, from the viewpoint of the defence, is on the intent to commit murder. [Sentence removed pending conclusion of the trial, in compliance with a publication order imposed under s. 539 of the Criminal Code.] Again, M.P. is not a relevant witness on committal generally and, more particularly, not a relevant witness on Mr. Bruzzese's intent.
Bill C-75
12Bill C-75 introduced amendments which eliminated a preliminary hearing for matters which have a maximum sentence of ten years or less. In addition to that, it increased the power of the preliminary judge, through sections 537(1)(i) and 537(1.01), to limit the issues and witnesses to be heard with a view to making the hearing more efficient and effective. The purpose of these amendments, amongst others, is to free up court time in the provincial courts.
13This is of particular relevance now. Trial courts in the Ontario Court of Justice have been closed since the end of March 2020. The Ontario Court opened in a limited capacity on July 6 and in Guelph only on July 7. Usually, in Guelph we have two or three trial courts running per day. Now only one. In addition to that, courtroom proceedings are slowed due to COVID-19 safety precautions. Simply put, court time is at a premium.
14These new amendments also have for a purpose to allow the Preliminary Hearing Court to safeguard the rights of the accused to both a fair procedure and a trial within a reasonable time. As the Supreme Court stated in R v. Jordan"all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts". I hasten to point out that a preliminary hearing occasioned significant delay in Jordan and, in rendering their decision, the Supreme Court commented that Parliament should reconsider the value of preliminary hearings in light of extended disclosure obligations under Stinchcombe.
15Since my decision relies in large part on sections 537(1)(i) and 537(1.01) of the Criminal Code, I must decide whether those sections are retrospective or not. This matter was set down for preliminary hearing prior to Bill C-75 receiving royal assent. Moreover, the Court of Appeal in R v. R.S. determined the right to a preliminary hearing as abrogated under bill C-75 was not retrospective.
16The Supreme Court in R v. Dineley framed the analysis in the following manner:
… key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions "procedural" or "substantive", but in discerning whether they affect substantive rights.
17In R.S. the Court of Appeal found that while the right to a preliminary hearing is not in-and-of-itself a substantive right, the elimination of a preliminary hearing does eliminate a substantive right: the entitlement to be discharged if the Crown does not meet their evidentiary burden. Sections 537(1)(i) and 537(1.01) do not alter that burden, it does not allow the Court to commit when the evidence for committal is not there. It simply allows the Court to have more control over its process and promote efficiency. In the end, the preliminary management function under sections 537(1)(i) and 537(1.01) do not impinge in any way on the right to obtain a discharge at the hearing. Therefore, I find that they procedural in nature and retrospective.
18At this point, it has been over 22 months since the incident. The Superior Court, where this matter is to be tried has, along with our Court, lost many months of trial time, it is important that Mr. Bruzzese be committed to the Superior Court jurisdiction as quickly as possible to ensure that his trial is reached as quickly as possible.
19The proposed witness, M.P., has no bearing on committal, the purpose for calling her is exclusively for discovery. The fundamental purpose of the preliminary hearing is a screening function. There is no constitutional right to discovery at a preliminary hearing. As the Court of Appeal stated in R.S.:
The right to confront witnesses and call evidence at a hearing prior to the trial proper, such as a preliminary inquiry, has never been an essential component of the criminal process in Canada. Most indictable offences are prosecuted and properly defended without a preliminary inquiry.
20In my view, ensuring Mr. Bruzzese's right to a timely trial and keeping the current limited judicial resources open to hear other matters take priority over the discovery of M.P.
21One final thought, given the foregoing reasons and the limited judicial resources, it is incumbent on the Crown to begin using section 540(7) of the Criminal Code, a section that has been in force for over 15 years, but infrequently utilized, to streamline preliminary hearings. Again, judicial time is at a premium and the evidence of witnesses called, such as the officer who took pictures of the scene, could have easily been provided in a 540(7) application. Ultimately, had this approach been taken, at least one or two days may have been taken off the time required for this hearing.
Conclusion
22The adjournment request and the request for an additional hearing date is denied.
Released: July 13, 2020
Signed: Justice M.K. Wendl
Footnotes
1R v. Hossenmamode, [2013] O.J. No. 1127 at 16 (ONSC)
2Ibid.
3Section 537(1)(i) states: A justice acting under this Part may regulate the course of the inquiry in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry, that is consistent with this Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) or agreement made under section 536.5.
Section 537(1.01) states: For the purpose of paragraph (1)(i), the justice may, among other things, limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.
4Legislative Background: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament)
5Ibid.
6Charter Statement – Bill C-75: An Act to Amend the Criminal Code, Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts.
7R v. Jordan, 2016 SCC 27 , [2016] 1 SCR 631 at 116
8Ibid at 140
10R v. Dineley, 2012 SCC 58 , [2012] 3 S.C.R. 272 at 11
11R.S. supra at 49
12Ibid at 59
13R v. S.J.L., 2009 SCC 14 , [2009] 1 SCR 426 at 21
14R.S. supra at 66
