Court Information and Parties

Date: October 1, 2019

Information No.: 18-9011

Ontario Court of Justice

Her Majesty the Queen v. Jeobert Dumlao

Proceedings

Before: The Honourable Justice P.D. Griffiths

On: October 1, 2019, at Brampton, Ontario

Appearances

D. Ida – Counsel for the Crown

L. Riva – Counsel for Jeobert Dumlao

Ruling

GRIFFITHS, J. (Orally):

This is an application brought by the Crown to halt the proceedings of a preliminary inquiry before me in light of recent amendments to the Criminal Code which came into effect on September 19th, 2019.

Those amendments provide that, in part, a preliminary inquiry will only be held for offences punishable by 14 years' imprisonment or more. The matter before me does not fall into that category.

The Crown is arguing that the application of the amendment for which no transitional provisions were provided by the legislature is retrospective in effect.

The Crown argues that all preliminary hearings scheduled after September 19th cannot proceed, and that the Ontario Court of Justice has no jurisdiction to hear those matters in light of the amendments to the Criminal Code.

The respondent argues that the change in legislation is prospective in effect and only applies to those matters for which there has not been an election by the Crown to proceed by way of indictment and an election by the defence for a preliminary hearing followed by a trial in Superior Court.

This is an issue that, obviously, on October the 1st, is recently before the court. There have been a number of decisions of the Ontario Court of Justice holding that the respondent's position is correct and that the legislation should be treated prospectively.

If that is in fact the law, Mr. Dumlao is entitled to a preliminary hearing, having made his election last January for trial in the Superior Court, and this preliminary hearing date, having been set months before the change in the legislation.

Five decisions of the Ontario Court of Justice were gathered together and an application for certiorari was brought before Regional Senior Justice Thomas of the Ontario Court of Justice for determination.

Justice Thomas, last Friday, released his ruling in that matter, in which he found that the legislation is retrospective, and he quashed the preliminary hearings that were scheduled for the matters before him.

The respondent argues before me that the decision in R v. R.S., 2019 ONSC 5497, released on September 27th, 2019, is not binding on me because it was made in the course of a certiorari application.

I have been referred to two judgments of the Ontario Court of Justice, neither one of which is binding on me, but which I must consider carefully.

Both of those decisions are opaque in my view. They do not directly address the issue as to whether certiorari in some circumstances is in fact binding on a lesser court.

In the case of R v. Sansalone, 2013 ONCA 226, the Ontario Court of Appeal held unanimously at paragraph [11] that a certiorari decision on a determination of a question of law is binding on a lower court.

Determination of whether a matter is prospective or retrospective in my view is a matter of law, not fact, and not mixed fact and law. And accordingly, I find that I am bound by the decision of R v. R.S.

And I find that the legislation, the amendments are retrospective accordingly, and that I have no jurisdiction to hold a preliminary hearing at this time.

Justice Thomas helpfully gives some direction as well as to what we do now and I am going to ask that Mr. Dumlao be put to his election again under the new election provided for in the legislation for post-September 19th matters.

... END OF RULING ...