Her Majesty the Queen v. Windebank

[Indexed as: R. v. Windebank]

Ontario Reports Court of Appeal for Ontario MacPherson, Gillese and Nordheimer JJ.A. March 12, 2021 154 O.R. (3d) 573 | 2021 ONCA 157

Case Summary

Criminal law — Preliminary inquiry — Dangerous offenders — Accused charged with offences subject to maximum sentence of ten years — Crown giving notice of intention to seek dangerous offender designation if accused convicted — Accused applying for preliminary inquiry based on resulting increased jeopardy to indefinite detention — Application judge and reviewing judge finding entitlement to preliminary inquiry — Crown's appeal allowed — Entitlement to preliminary inquiry clearly required charge of indictable offence punishable by 14 years in prison — Court below conflated seriousness of offence with seriousness of offender — Court of Appeal finding that dangerous offender proceedings are separate from conviction proceedings — Criminal Code, R.S.C. 1985, c. C-46, s. 535.

The accused was charged with one count of assault causing bodily harm and one count of assault by choking. The complainant was the accused's fiancée, and the accused had a prior conviction for assaulting her. During pre-trial correspondence, the Crown advised the accused that in the event of a conviction it would seek an assessment for a dangerous offender designation under s. 752.1 of the Criminal Code. In response, the accused took the position that since he was now facing a period of indefinite detention, he was entitled to a preliminary inquiry. In an application by the accused for a preliminary inquiry, the Crown argued that under s. 535 of the Criminal Code, entitlement to a preliminary inquiry required that the accused be charged with an indictable offence punishable by 14 years or more of imprisonment. The offences with which the accused was charged carried a maximum term of ten years. The application judge determined that on a plain and literal reading of s. 535 the accused was not entitled to a preliminary inquiry, but concluded that the Crown's strict interpretation was inequitable. The application judge found that because the accused faced a jeopardy far greater than the ten-year maximum, he was entitled to a preliminary inquiry. The Crown applied for certiorari with mandamus and prohibition in aid. The review judge concluded that it was Parliament's plain intent that the availability of a preliminary hearing was ultimately to be determined by reference to the penal jeopardy faced by the accused. Accordingly, the review judge found that the application judge had correctly interpreted s. 535 and the Crown's application for judicial review was dismissed. The Crown appealed.

Held, the appeal should be allowed.

The courts below erred in their interpretation of s. 535. There was nothing ambiguous about the language used in the provision. The accused had not been charged with an indictable offence punishable by 14 years or more of imprisonment. The flaw in the decisions below and the accused's argument on appeal was that they confused the seriousness of the offence with the seriousness of the offender. The seriousness of the offence is reflected by the maximum sentence, which was ten years' imprisonment, in the accused's case. Proceedings by way of a dangerous offender designation were separate and apart from the proceedings leading to a conviction for the offence. If Parliament had intended that the entitlement to a preliminary inquiry was to take into account the prospect of dangerous offender proceedings, they could have said so. Section 535 had been amended in 2019 by Bill C-75, one of whose purposes was stated to be to restrict the availability of preliminary inquiries. The result of the interpretation adopted by the courts below was to increase the number of offences possibly giving rise to preliminary inquiries. Furthermore, the issue only arose in this case because the Crown, apparently as a matter of professional courtesy, advised the accused that it might seek an assessment, much earlier than it was required to do. Parliament could not have intended to confer a right to a preliminary inquiry while leaving the exercise of that right contingent on prosecutorial discretion. The orders below were set aside and the matter remitted for trial.

APPEAL by Crown from an order of Quigley J., reported at [2020] O.J. No. 5771, 2020 ONSC 8107, dismissing an application for judicial review of the order of Bhabha J., [2020] O.J. No. 5284, 2020 ONCJ 567.

Stacey D. Young and Jennifer Stanton, for appellant. Anil K. Kapoor, D. Sid Freeman and Dana Achtemichuk, for respondent.

The judgment of the court was delivered by

NORDHEIMER J.A.: —

[1] The Crown appeals from the order of the review judge, who dismissed an application for certiorari with mandamus and prohibition in aid, from the order of the application judge, who found that the respondent was entitled to a preliminary inquiry pursuant to s. 535 of the Criminal Code, R.S.C. 1985, c. C-46.

I. Background

[2] The respondent is charged with one count of assault causing bodily harm contrary to s. 267(b) of the Criminal Code and one count of assault by choking contrary to s. 267(c), both of which are punishable by a maximum term of imprisonment of ten years. The offences allegedly occurred on April 13, 2020.

[3] The complainant is the respondent's fiancée. The respondent has a prior conviction for assaulting the complainant. The couple had been together for about three years and six months. When the police attended on April 13, 2020, the complainant told them that, over the course of their relationship, the respondent assaulted her over 20 times, although she only called the police once. She had been away from the apartment for two weeks because the respondent beat her, but she returned the night before. Things were fine that day but then the respondent "lost it".

[4] The complainant told the police that the respondent started beating her. Someone from the building called 911 and told the police a woman was getting beaten up and the police needed to get there very quickly. When the police arrived, they heard a woman inside the apartment calling for help. They knocked, and then forced open the door when there was no response. Inside they found parts of the apartment covered in what appeared to be blood spatter. The complainant had bruising to her left eye, shoulder and a cut lip. The respondent was arrested.

[5] During pre-trial correspondence in this case, the appellant advised the respondent that, in the event of conviction, it would seek a s. 752.1 assessment. Such an assessment may be obtained if an offender is convicted of a serious personal injury offence, or an offence mentioned in para. 753.1(2)(a), and might be found to be a dangerous offender or a long term offender.

[6] In response, the respondent advised that, since he was now facing a potential period of indefinite detention, he was entitled to a preliminary inquiry. The respondent brought an application for a preliminary inquiry and provided a statement of issues and witnesses.

[7] The respondent's application was heard on October 14, 2020. It was the position of the respondent that the maximum possible penalty upon conviction was "converted to one of life by virtue of the Crown notice". The appellant took the position that the respondent was not charged with an offence punishable by 14 years or more imprisonment, and he was therefore not entitled to a preliminary inquiry pursuant to s. 535. Section 535 reads:

535. 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, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

II. The Decisions Below

Ontario Court of Justice

[8] The respondent's application was heard before a judge of the Ontario Court of Justice. The application judge began by reviewing the wording of s. 535 and concluded that "[o]n a plain and literal reading of the provision Mr. Windebank is not entitled to a preliminary inquiry" [at para. 27].

[9] The application judge then reviewed the background to the changes to the entitlement to a preliminary inquiry made in 2019 and the reasons for those changes. She concluded that the respondent faced a jeopardy "far greater" than the ten-year maximum provided for by the offences themselves and ought, therefore, to be entitled to a preliminary inquiry. The application judge said, at para. 38:

In my view it would indeed lead to unintended and absurd consequences if an individual in [the respondent's] circumstances was disentitled to have a preliminary inquiry, yet ultimately find himself to be in jeopardy of an indeterminate sentence, while another individual could automatically be entitled to a preliminary inquiry yet face far less serious penal consequences: fourteen years versus life imprisonment. At a minimum, the strict interpretation favoured by the Crown strikes me as inequitable.

Superior Court of Justice

[10] The appellant sought a review of the application judge's decision. That review was heard by a judge of the Superior Court of Justice. The review judge dismissed the application for review. The review judge first gave short endorsed reasons for his decision but then gave more fulsome reasons about a month later.

[11] In his reasons, the review judge set out the positions of the parties in some detail. He then began his analysis by reviewing the principles of statutory interpretation. The review judge concluded that, because the issue was principally a matter of statutory interpretation, the standard of review to be applied was correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at paras. 8, 10.

[12] The review judge proceeded to find that the appellant was incorrect to argue that there was any requirement for the application judge to "order" a preliminary inquiry. Rather, according to the review judge, the issue was whether the respondent was "entitled" to a preliminary inquiry on a proper interpretation of s. 535. The review judge agreed with the application judge that he was.

[13] The review judge considered the legislative background to the changes to s. 535 regarding the entitlement to a preliminary inquiry. He then considered the consequences of the appellant's notice that it would seek an assessment regarding a possible dangerous offender designation. The review judge said, at para. 63, that on the face of s. 753(4), the potentially indeterminate period of incarceration contemplated for dangerous offenders is "a 'sentence', which may result in an accused person, once convicted and if designated a [dangerous offender], facing the prospect of an indeterminate sentence, which may exceed 14 years and may be tantamount to a sentence of life imprisonment".

[14] The review judge ultimately concluded, at para. 65, that "it was Parliament's plain intent that the availability of a preliminary hearing was ultimately to be determined by reference to the penal jeopardy faced by the accused".

[15] The review judge rejected the "floodgates" concern. He found that the number of additional preliminary inquiries resulting from the conclusion that an accused is entitled to a preliminary inquiry, where a dangerous offender designation is contemplated, would be "very small".

[16] In terms of what he viewed as Parliament's intention when they amended s. 535, the review judge said, at para. 80:

While they did intend to restrict the availability of that procedure to the most serious levels of offences, Parliament cannot have intended to deny preliminary hearings to accused persons who are at risk of the maximum liberty jeopardy. It would defy logic and common sense, and be an internally inconsistent, inequitable and absurd outcome if that set of persons did not include accused persons who are at risk of a [dangerous offender] designation and the possibility of an indeterminate sentence, regardless of the sentence provided for in the specific offence charged.

[17] The review judge concluded that the application judge had correctly interpreted s. 535 and had properly determined that the respondent was entitled to a preliminary inquiry. He dismissed the application for review.

III. Law and Analysis

Legislative changes to preliminary inquiries

[18] On March 29, 2018, the federal government introduced Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25. The Bill was eventually passed and received Royal Assent on June 21, 2019.

[19] Bill C-75 had a number of purposes, one of which was stated to be to restrict the availability of preliminary inquiries. The point behind limiting the availability of preliminary inquiries was said to be to free up court time and resources in provincial courts, while, at the same time, reducing the burden on some witnesses and victims by preventing them from having to testify twice in cases where there was currently an entitlement to a preliminary inquiry.

[20] The Bill was partly in response to a 2017 report of the Standing Senate Committee on Legal and Constitutional Affairs that recommended taking steps to eliminate or limit the use of preliminary inquiries to reduce delays in criminal cases. A backgrounder to the Bill pointed out that, since coming into force on July 1, 1893, the preliminary inquiry provisions of the Criminal Code had only been substantially modified once, in 2001, to make the preliminary inquiry available on request rather than automatically.

[21] Another driving force behind the desire to reduce the number of preliminary inquiries was two decisions of the Supreme Court of Canada. One is R. v. Stinchcombe, [1991] 3 S.C.R. 326, which held that the Crown has a legal duty to disclose all relevant information to the defence. In reaching that conclusion, the court said that the fruits of an investigation are not the property of the Crown for use in securing a conviction but, rather, are the property of the public to be used to ensure that justice is done. The decision in Stinchcombe led many to suggest that the obligation to disclose placed on the Crown by the decision undermined the need for preliminary inquiries, which had often been used simply to obtain that disclosure: see, for example, R. v. L.-G. (S.J.), [2009] 1 S.C.R. 426, 2009 SCC 14, at para. 23.

[22] The other decision is R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27, where the court placed a presumptive ceiling beyond which delay -- from the charge to the actual or anticipated end of trial -- is presumed to be unreasonable under s. 11(b) of the Canadian Charter of Rights and Freedoms, unless exceptional circumstances justify it. The Jordan decision had the effect of emphasizing the need for prosecutions to move more expeditiously towards trial and completion. Preliminary inquiries were seen as a main source of delay in the prosecution of cases.

[23] In terms of Bill C-75 itself, it is of some importance to note that, when the changes to the entitlement to a preliminary inquiry were first introduced, the proposed changes would have restricted preliminary inquiries only to those offences where the offender faced a sentence of life imprisonment. That was the status of the Bill when it left the House of Commons and proceeded to the Senate.

[24] The Senate referred the Bill to the Standing Senate Committee on Legal and Constitutional Affairs, which recommended expanding the availability of preliminary inquiries to indictable offences punishable with maximum penalties below imprisonment for life: (1) at the joint request of the parties and with the approval of the justice after taking steps to mitigate any impact on witnesses, and (2) at the request of either party where the justice is satisfied it is in the best interests of the administration of justice and certain criteria with respect to witnesses are met. The Senate adopted these recommendations and returned the Bill to the House of Commons with these proposed amendments.

[25] The amendments proposed by the Senate Committee were not accepted in the House of Commons. The Minister of Justice recognized that the proposed amendments responded to concerns that preliminary inquiries should remain available for serious offences. However, he observed that "the expansion of their availability [under the Senate's proposal], combined with the new complex criteria, would lead . . . to further delays and unnecessary litigation": House of Commons Debates, 42-1, No. 435 (17 June 2019), at p. 29245 (Hon. David Lametti). Instead, the government recommended expanding the availability of preliminary inquiries to indictable offences punishable by imprisonment for 14 years or more. The 14-year threshold, the Minister of Justice observed, would "still provide certainty and [would] avoid the delays inherent in the [Senate's] amendment": at p. 29246. That amendment was adopted by the House of Commons and is reflected in the current wording of s. 535.

[26] Some brief background to the unfolding of the legislative process is worth mentioning. When the Bill was originally introduced in the House of Commons, then Minister of Justice, the Honourable Jody Wilson-Raybould said, in part:

The fourth area of reforms is to increase court efficiencies by limiting the availability of preliminary inquiries. Preliminary inquiries are an optional process used to determine whether there is enough evidence to send an accused to trial. Bill C-75 would limit their availability to accused adults charged with very serious offences punishable by life imprisonment, such as murder and kidnapping.

I recognize this represents a significant change. It is not a change we propose lightly. It is the product of an in-depth consultation process with my counterparts in the provinces and territories and with the courts, and it is based on the best available evidence. For instance, we know in 2015-2016, provincial court cases involving preliminary inquiries took more than four times longer to reach a decision than cases with no preliminary inquiry.

It is important to note that there is no constitutional right to a preliminary inquiry, and one is not necessary for a fair trial so long as the crown satisfies its disclosure requirements. In the Jordan decision, the Supreme Court of Canada asked Parliament to take a fresh look at current processes and reconsider the value of preliminary inquiries in light of the broad disclosure rules that exist today. The Standing Senate Committee on Legal and Constitutional Affairs also recommended that they be restricted or eliminated. 1

[27] Some days later, Mr. Bill Blair, then Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, added:

Recognizing the importance of certain types of trials, we would maintain preliminary hearings for those offences that are considered within our criminal justice system to be the most serious and to have the greatest consequences. They would carry a potential life sentence. We are maintaining preliminary hearings for those very serious cases, but frankly, the system has evolved and we are recognizing that evolution. 2

[28] As will be seen, one of the driving forces behind the amendments was to limit the availability of preliminary inquiries to the most serious offences. This rationale was repeated in the debates before the Senate. For example, the Honourable Murray Sinclair said:

Bill C-75 restricts preliminary inquiries for adult accused to offences punishable by life imprisonment, and permits the preliminary inquiry justice to limit the issues to be explored at a preliminary hearing and the number of witnesses to be heard. These changes are the culmination of a great deal of consideration by federal, provincial and territorial ministers of justice who unanimously agreed that the availability of preliminary inquiries needs to be restricted to more serious offences. 3

[29] Nevertheless, the Senate sought to expand the availability of preliminary inquiries to two other instances, as I have set out above, where the parties consented or a judge was satisfied that a preliminary inquiry was in the best interests of the administration of justice, provided steps were taken to reduce the impact on witnesses. In explaining the latter requirement, the Honourable Pierre J. Dalphond said:

Furthermore, in both cases, whether by consent or because the judge decides that holding a preliminary inquiry serves the best interests of the administration of justice, before authorizing said inquiry, the judge must ensure that steps have been taken to mitigate the impact of the inquiry on witnesses, particularly on the complainant. It will therefore be up to judges, when they find that holding a preliminary inquiry serves the best interests of the administration of justice, such as in sexual assault cases, to ensure that appropriate measures have been taken to mitigate the impact that testifying during the inquiry will have on the victim, specifically by limiting the duration of the victim's testimony or ordering that the victim give testimony from another room via video conference, for example, to avoid having to face the accused. 4

[30] The amendments proposed by the Senate were not accepted by the Government and were not ultimately included in the Act. As I have explained, however, they did lead to a change in the Bill from restricting preliminary inquiries to only those offences that carried a maximum sentence of life in prison to those offences that carried a maximum sentence of 14 years. The Minister of Justice, the Honourable David Lametti, explained the rejection of the Senate amendments and the change to 14 years, as follows:

The amendment responded to concerns that preliminary inquiries were not available for more and serious offences. However, the expansion of their availability, combined with the new complex criteria, would lead, in our view, to further delays and unnecessary litigation; for example, to interpret the proper application of the criteria.

Although this would expand the availability of preliminary inquiries for 86 more offences, the proposal is consistent with the 2017 FPT ministers of justice's consensus to restrict them to offences carrying the most serious terms of imprisonment. A 14-year threshold will still provide certainty and will avoid the delays inherent in the [Senate's] amendment. 5

[31] Once again, the focus was on restricting preliminary inquiries to the most serious offences. Parliament balanced the need for preliminary inquiries in cases involving the most serious offences with its objectives of reducing delays and preventing the re-traumatization of victims and witnesses. Throughout the debates surrounding the Bill, the focus was on delineating the offences that could give rise to the availability of preliminary inquiries, while reducing the number of those offences. The idea was to remove discretion, reduce complexity, and provide certainty. Of some note is the fact that, throughout the various debates, there is no mention of the circumstances of the offender nor, as the respondent contends, any attempt to delineate a class of accused persons who would be entitled to a preliminary inquiry. Nor, as discussed later in these reasons, is there any mention of the possible invocation of dangerous offender proceedings as a consideration in determining whether a preliminary inquiry is available.

Application of the principles of statutory interpretation to s. 535

[32] It is now well-established that the core principle of statutory interpretation is taken from Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[33] In commenting on this approach to statutory interpretation, Iacobucci J. said in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, "Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings".

[34] An often-used route to avoid the effect of the plain wording of a statute is to suggest that the words used are "ambiguous" thus allowing for a different interpretation to be adopted than the one that might be taken from the words themselves. A claim of ambiguity carries with it the implicit finding that the words used are not plain and obvious in their meaning. Thus, it may be open to adopt a different interpretation than might appear on the face of the language in order to resolve the ambiguity. In considering whether an ambiguity actually exists, however, it is important to remember the caution that Iacobucci J. expressed in Bell ExpressVu, at para. 30:

For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the "higher score", it is not appropriate to take as one's starting point the premise that differing interpretations reveal an ambiguity.

(Emphasis added)

[35] There is nothing ambiguous about the language used in s. 535. The words used are plain. An offender is entitled to a preliminary inquiry if "charged with an indictable offence that is punishable by 14 years or more of imprisonment". The respondent is not charged with any such offence.

[36] In my view, the flaw, both in the respondent's argument and in the decisions below, is that they confuse the seriousness of the offence with the seriousness of the offender, that is, their individual circumstances. Proceedings by way of a dangerous offender designation are separate and apart from the proceedings leading to a conviction for the offence. It is a proceeding that may only be invoked after a finding of guilt has been made on the offence charged. It requires a separate process where separate factual findings are made, and its determination turns on the nature of the offender, not the nature of the offence. While a specific offence may trigger the dangerous offender proceeding, its determination goes well beyond the originating offence: R. v. Wilson, 2020 ONCA 3, at para. 66.

[37] As s. 535 makes clear, it is the seriousness of the offence that dictates the entitlement to a preliminary inquiry. This conclusion is reinforced by the legislative history leading to the changes to s. 535, including the change from offences carrying a maximum sentence of life imprisonment to offences carrying a maximum sentence of 14 years. It is also reinforced by the various speeches made in Parliament regarding the purpose behind the amendments.

[38] It is suggested by the decisions below that, if Parliament had intended to exclude the impact of dangerous offender proceedings from the "penal jeopardy" that an accused was facing in determining their entitlement to a preliminary hearing, Parliament could have expressly said so. I suggest the opposite argument is true and more compelling, that is, that if Parliament had intended that the entitlement to a preliminary inquiry was to take into account the prospect of dangerous offender proceedings, they could have said so. But they did not.

[39] Rather, Parliament expressly coupled the entitlement to a preliminary inquiry to the maximum sentence for the offence charged, both in the original Bill and in the Act. Based on the principle of implied exclusion, Parliament's silence about the impact of dangerous offender designations on the "penal jeopardy" faced by an accused person provides grounds to infer that it was deliberately excluded as a consideration in determining the availability of preliminary inquiries: see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada, 2014), at § 8.90. The lack of an express exclusion, on the other hand, does not imply Parliament's intention to include it. That argument may apply when dealing with a series of express exclusions, but is not appropriate here: see Sullivan, at §§ 8.92-8.94.

[40] My conclusion on the proper interpretation of s. 535 finds further support in two other factors. One is that, in making the changes to s. 535, Parliament's intention was to reduce the number of offences that could give rise to preliminary inquiries. The result of the interpretation adopted by the courts below is to increase the number of offences that may give rise to preliminary inquiries. There was some debate in the decisions below as to how large an increase would result. In my view, it matters not what the size of the increase would be. The fact is that there would be an increase and that result is directly contrary to the intention that led to the amendments.

[41] The other factor is the practical realities that flow from the interpretation adopted below. The Crown is not required to give notice of its intention to seek an assessment for a dangerous offender designation until a finding of guilt is made: s. 752.01. Further, the application for a dangerous offender designation itself cannot be made until after the assessment is filed: s. 753(1).

[42] In this case, the issue only arose because the Crown, apparently as a matter of professional courtesy, advised the offender, much earlier than it was statutorily required to do, that it might seek an assessment, much earlier than it was statutorily required to do. If the interpretation adopted by the courts below was to hold sway, one of two outcomes would likely follow. One would be that the Crown would adopt, as a matter of policy, to not advise of its intention to possibly pursue a dangerous offender designation until the trial is completed and a finding of guilt made. The consequence of that approach would be that any entitlement to a preliminary inquiry would not arise until it was functionally irrelevant. As an alternative to adopting such a policy, in cases where the Crown was considering seeking a dangerous offender designation, it could simply direct an indictment which, as the respondent acknowledges, would eliminate any right to a preliminary inquiry.

[43] The other would be that a court might be faced with a request from the accused person that it order the Crown to advise of its intentions at the commencement of the prosecution. If such an order was made, it would be directly contrary to the express wording of s. 752.01. In response, the respondent submits that, if the prosecution was unwilling to respond to any such directive, then it would be appropriate for the matter to simply proceed as an offence in which the offender would be entitled to a preliminary inquiry. All parties acknowledge that such a result would increase the number of preliminary inquiries, although they do not agree by how much.

[44] As I noted earlier that debate does not change the result, which is to increase the number of preliminary inquiries -- a result directly contrary to the stated intention of Parliament. I also note that Parliament did not make any change to the notice requirement in s. 752.01, when it amended s. 535, something that one would have thought would have been done to avoid this predicament, if Parliament had intended that the dangerous offender process was to be included in the application of s. 535.

[45] On this point, respondent's counsel added a further suggestion that, if the Crown withheld giving notice, until the finding of guilt was made, in order to avoid the entitlement to a preliminary inquiry, that conduct might give rise to an abuse of process application by the accused. That possibility, however remote, only reinforces the difficulty with the interpretation urged by the respondent and adopted by the courts below: it is inconsistent with Parliament's intention to reduce the demands on court resources and reduce delays in the criminal justice system. It also appears to be inconsistent with the rejection by the Supreme Court of Canada of the argument that the obligation to only provide seven days' notice of an application for dangerous offender status violated the Canadian Charter of Rights and Freedoms. In rejecting that argument in R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J. said, at p. 371 S.C.R., "[i]t seems to me to be difficult to articulate precisely in what sense the liberty interests of the appellant were infringed by the absence of notice earlier than is statutorily provided for".

[46] In addition, even if neither of these results arises, we are still left with a situation where the offender's rights to a preliminary inquiry will be based on the timing of the prosecution's notice of its intention to seek an assessment for the purposes of the dangerous offender designation. Parliament could not have intended to confer a right to a preliminary inquiry while leaving the exercise of that right contingent on prosecutorial discretion. This is especially so, since the Minister of Justice's rationale, in rejecting the Senate's proposed amendments, was to remove discretion and its attendant litigation and delay, reduce complexity, and introduce certainty in the regime governing the availability of preliminary inquiries.

[47] The interpretation adopted by the courts below could also lead to situations where two offenders would be treated very differently. One offender might be given early notice, because the prosecution has the necessary evidence to reach that conclusion, whereas another offender might be left waiting until that necessary evidence accumulates. Those differing results could only be avoided if a rule was adopted that a preliminary inquiry was required in every case unless the Crown categorically rejected any possibility of a dangerous offender application being brought. Any such rule would interfere with prosecutorial discretion and would unfairly restrict the Crown's consideration of such applications, which may only crystallize when the evidence plays out in the trial of the offence charged. Absent such a rule, inequitable results will undoubtedly occur. Inequitable results can be considered as leading to a conclusion that the proposed interpretation is absurd, as that term is understood in the context of statutory interpretation: Rizzo & Rizzo Shoes Ltd. (Re) (1998), [1998] 1 S.C.R. 27, at para. 27.

Conclusion

[48] I would allow the appeal, set aside the orders below, and remit the matter for trial.

Appeal allowed.

Notes

1 House of Commons Debates, 42-1, No. 300 (May 24, 2018) at p. 19604 (Hon. Jody Wilson-Raybould).

2 House of Commons Debates, 42-1, No. 310 (June 7, 2018) at p. 20501 (Mr. Bill Blair).

3 Senate Debates, 42-1, No. 301 (June 12, 2019) at p. 8541 (Hon. Murray Sinclair).

4 Senate Debates, 42-1, No. 301 (June 12, 2019) at pp. 8545 (Hon. Pierre J. Dalphond).

5 House of Commons Debates, 42-1, No. 435 (June 17, 2019) at pp. 29245-46.