Ontario Court of Justice
Date: 2021 01 05 Court File No.: Niagara Region 998 SR 205329
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Jamar Stephens, Saeed Savalanpour, Shararee Wilson, Dalton Meikle, Cheneice Batticks, Kaitlan Miller.
Before: Justice J. De Filippis
Heard on: December 11, 2020 Reasons for Ruling released on: January 5, 2021 [1]
Counsel: Mr. A. Sabbadini and Ms. S. Ford.................................................. counsel for the Crown Ms. H. Bajwa................................................................................... counsel for Mr. Stephens Mr. C. Murphy.......................................................................... counsel for Mr. Savalanpour Ms. A. Khan......................................................................................... counsel for Mr. Wilson Ms. M. Bavaro...................................................................................... counsel for Mr. Meikle Mr. A. McArthur............................................................................... counsel for Ms. Batticks Mr. A. Karzai.......................................................................................... counsel for Ms. Miller
Introduction
1On June 21, 2019 Bill C-75 received Royal assent. The Bill amended parts of the Criminal Code, including Part XVIII, which regulates the conduct of preliminary inquiries. The amendments to Part XVIII came into force on September 19, 2019. The amendments removed from the provincial court the jurisdiction to conduct a preliminary inquiry on indictable charges that are punishable by less than 14 years’ imprisonment.
2The defendants are jointly charged in an Information containing 56 counts. Most of the defendants are charged with offences that are punishable by less than 14 years’ imprisonment as well as offences that are punishable by 14 years’ imprisonment or more. By virtue of their elections, or deemed elections, all defendants will proceed to trial in the Superior Court of Justice.
3A six-week preliminary inquiry is scheduled before me. This ruling concerns the first of two motions to be determined before that inquiry begins. The second is an application by the Crown to adduce evidence at the preliminary inquiry through the streamlined procedure set out in subsection 540(7). The nature and quantity of the evidence, whether it is tendered through the traditional process or pursuant to section 540 depends on the result of this ruling. This issue arises because the defendants assert that, notwithstanding amendments in Bill C-75, they are entitled to a preliminary inquiry with respect to all the indictable charges, without regard to the maximum punishment. The Crown disputes this assertion.
The Charges
4In September of 2019 the Niagara Regional Police Service began an investigation into a shooting that occurred on September 29th, 2019. Over a six-month period, the police gathered evidence from a variety of sources and arrested nine individuals for various offences under the Criminal Code and Controlled Drugs and Substances Act (CDSA). The police charged each person separately on an Information. These nine Informations were later consolidated by the Crown into four Informations. One of those, the “Red Rover Information” (after the name of the police investigation), includes the six defendants before me and is the subject of this ruling.
5The counts in the Information fall into three categories; charges for a shooting near the Karma nightclub in St. Catharines; firearm and other Code charges; and CDSA charges. The first and third category of offences are punishable by imprisonment of up to 14 years or more. The second category of offences are punishable by less than 14 years.
Jamar Stephens
6Mr. Stephens is charged with the following offences, which attract a possible punishment of 14 years’ imprisonment or more:
(1) Attempted murder, contrary to section 463; (2) Discharge firearm with intent to endanger life, contrary to subsection 244(2); (3) Reckless discharge of firearm, contrary to subsection 244.2(3); (4) Aggravated assault, contrary to subsection 268(2); (5) Possession of a controlled substance for the purpose of trafficking, contrary to CDSA subsection 5(2);
7The remainder of his charges attract a possible penalty of less than 14 years’ imprisonment:
(1) Unauthorized possession of a firearm, contrary to subsection 91(3); (2) Possession of a restricted firearm, contrary to subsection 92(3); (3) Possession of a firearm with ammunition, contrary to subsection 95(2); (4) Firearm with serial number removed, contrary to subsection 108(2)
Saeed Savalanpour
8Mr. Savalanpour is charged with the following offences, which attract a possible punishment of 14 years’ imprisonment or more:
(1) Discharge firearm with intent to endanger life, contrary to subsection 244(2); (2) Reckless discharge of firearm, contrary to subsection 244.2(3); (3) Aggravated assault, contrary to subsection 268(2); (4) Possession of a controlled substance for the purpose of trafficking, contrary to CDSA subsection 5(2);
9The remainder of his charges attract a potential penalty of less than 14 years’ imprisonment:
(1) Unauthorized possession of a firearm, contrary to subsection 91(3); (2) Possession of prohibited device or ammunition, contrary to subsection 92(3); (3) Possession of a firearm with ammunition, contrary to subsection 95(2); (4) Firearm with serial number removed, contrary to subsection 108(2); (5) Breach of prohibition order, contrary to section 117.01; (6) Possession of property (under), contrary to subsection 355(b); (7) Possession of property (over), contrary to subsection355(a);
Shararee Wilson
10Mr. Wilson faces one charge and it attracts a possible penalty of less than 14 years’ imprisonment; possession of a restricted firearm, contrary to subsection 92(3);
Dalton Meikle
11Mr. Meikle is charged with one offence that carries a penalty of up to 14 years’ imprisonment or more; possession of a controlled substance for the purpose of trafficking, contrary to CDSA subsection 5(2). He is also charged with the following offences punishable by less than 14 years’ imprisonment:
(1) Breach of prohibition order, contrary to section 117.01; (2) Possession of property (under), contrary to subsection 355(b); (3) Accessory after the fact, contrary to section 463
Cheneice Batticks
12Ms. Batticks faces one charge and it carries a possible penalty of up to 14 years’ imprisonment, or more; possession of a controlled substance for the purpose of trafficking, contrary to CDSA subsection 5(2).
Kaitlan Miller
13Ms. Miller is charged with one offence and it carries a penalty of up to 14 years’ imprisonment or more: possession of a controlled substance for the purpose of trafficking, contrary to CDSA subsection 5(2). She is also charged with the following offences that carry a possible sentence of up to 14 years’ imprisonment:
(1) Unauthorized possession of a firearm, contrary to subsection 91(3); (2) Possession of a restricted firearm, contrary to subsection 92(3); (3) Possession of a firearm with ammunition, contrary to subsection 95(2);
The Elections
14The defendants filed notices of election, as follows:
(1) Jamar Stephens – superior court trial by judge and jury (2) Saeed Savalanpour – provincial court trial (3) Shararee Wilson – provincial court trial (4) Dalton Meikle – provincial court trial (5) Cheneice Batticks – superior court trial by judge and jury (6) Kaitlan Miller – superior court trial by judge and jury
15Having regard to the election by three defendants to be tried in the Superior Court, by judge and jury, the other three defendants are deemed to have so elected, by operation of subsection 565(1) and section 567 of the Code. In other words, all defendants have elected, or are deemed to have elected, to be tried in the Superior Court of Justice with a preliminary inquiry in the Ontario Court of Justice.
The Amendments
16The statutory purpose of a preliminary inquiry is its screening function; to determine if the Crown has enough evidence to justify a trial. The common law recognized a secondary discovery purpose. This incidental function has diminished in importance because the Charter of Rights and Freedoms guarantees a constitutional right to disclosure to an accused. Prior to the amendments in question, a preliminary inquiry in the Ontario Court of Justice could be requested by an accused whenever s/he elected trial in the Superior Court of Justice.
17In R. v. R.S., 2019 ONCA 906, [2019] O.J. No. 5773, the Ontario Court of Appeal considered the effect of the amendments on requests for a preliminary inquiry:
- …under the repealed legislation, the right to elect trial in the Superior Court of Justice carried with it the automatic right to request a preliminary inquiry and, when a preliminary inquiry was requested, the court was obligated to hold a preliminary inquiry. Under the amended legislation, the ability to request a preliminary inquiry and the consequential requirement on the court to hold a preliminary inquiry does not flow automatically upon an election for trial in the Superior Court of Justice, but is available only where the accused faces charges carrying a maximum penalty of 14 years' imprisonment or more.
18The debates in the House of Commons and the Senate suggest that the purposes of Bill C-75 include freeing up judicial resources in the provincial courts and avoiding witnesses from testifying twice. Proponents of the Bill referenced the decision of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, where the Court noted that “Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations” (para. 140): House of Commons Debates, vol. 148 no. 300 (May 24, 2018) at p. 19630, time 15:25 (Hon. Jody Wilson-Raybould); Senate Debates, vol. 150 issue 264 (February 19, 2019) at pp. 7373-76, time 15:55 – 16:10 (Hon. Murray Sinclair)
19Section 535 of the Code now provides that;
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.
20Subsection 536(2) requires that a person charged with an indictable offence punishable by 14 years’ imprisonment or more be put to their election as to mode of trial and shall be informed of the option to request a preliminary inquiry. Subsection 536(4) makes clear that the right to request a preliminary inquiry in the Ontario Court of Justice is limited to cases in which the accused has elected trial in the Superior Court of Justice under subsection 536(2).
21Section 536(2.1) sets out the procedure with respect to individuals charged with offences punishable by less than 14 years’ imprisonment. Such persons have three choices; a trial in the Ontario Court of Justice, a trial by judge alone in the Superior Court of Justice, or a trial by judge and jury in the Superior Court of Justice. However, if they elect to have a trial in the Superior Court of Justice, there is no right to ask for a preliminary inquiry in the Ontario Court of Justice.
22As already noted, subsection 565(1) and section 567 govern cases involving two or more accused, in which one or more, but not all, elect to be tried by a judge and jury. In such cases, the other accused are deemed to have elected to have a trial by judge and jury. Section 536(4.2) adds that in such cases, if one of the accused requests a preliminary inquiry, it must be held with respect to all of them.
Position of the Parties
23Mr. Karzai argues that Ms. Miller is entitled to a preliminary inquiry for all her charges including the ones that attract a possible penalty of less than 14 years. This arises, it is said, because she has a right to request a preliminary inquiry for the CDSA charge (punishable by life imprisonment) and the scope of the inquiry established by section 535. Counsel submits that:
The plain reading of the provision is clear. If an accused has requested a preliminary inquiry, the justice shall inquire into the charge and any other indictable offence, in respect of the same transaction. Any attempt to reconcile the qualifying phrase, “founded on the facts disclosed by the evidence taken in accordance with this part” is simply moot. The Applicant submits that this phrase refers to the evidentiary provisions that govern preliminary inquiries under Part XVIII.
24Mr. Karzai notes that the order to stand trial or discharge under subsection 548(1) contains similar language that is found in s.535. The lack of the qualifying phrase, “founded on the facts disclosed by the evidence taken in accordance with this part” is indicative of the intended plain reading of, “the offence charged or any other indictable offence in respect of the same transaction” as outlined above.
25Subsection 548(1) provides as follows:
When all the evidence has been taken by the justice, he shall if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
26In support of his argument Mr. Karzai points out that it is alleged that Ms. Miller was found with a bag that contained the subject matter of the CDSA charge (punishable by life imprisonment) and the Criminal Code charges (punishable by less than 14 years’ imprisonment). Counsel asserts that, “[t]he offences are so intertwined that it is impossible to separate the two sets of allegations and therefore all of them should qualify for a preliminary hearing”.
27The other Defence counsel adopted the submissions made by Mr. Karzai. Mr. Murphy and Ms. Khan added that the duties set out in subsection 548(1) cannot be separated. Thus, for example, with respect to Ms. Miller, if I were to decide that there must be a discharge for the CDSA contraband, I must also discharge for the other contraband found in the same bag.
28All defendants also submit that, notwithstanding their entitlement to a preliminary inquiry for the charges that carry a penalty of less than 14 years, they have a right to ask questions about any offence with which they are charged (or any indictable offence that may arise from the same transaction). Again, the example offered by the allegations against Ms. Miller illustrates this submission.
29The Crown argues that jurisdiction is the critical issue; as a result of the amendments, the entitlement to a preliminary inquiry now attaches to the class of offence. A justice presiding at a preliminary inquiry only has jurisdiction over indictable offences punishable by 14 years’ imprisonment or more, as well as over any other indictable offence in respect of the same transaction that are disclosed during the hearing of the evidence into that offence. The Crown notes that under the amended legislation, only accused persons referred to in the amended subsection 536(2) come within subsection 536(4), and only those persons can reach section 535 and have a preliminary inquiry. Counsel adds that subsection 548(1) does not alter this by providing an indirect route to a preliminary inquiry for indictable offences punishable by less than 14 years. Moreover, this section does not grant a power to order a discharge for such offences. The Crown submits that the reference in that subsection to a discharge for other indictable offences arising from the same transaction simply means the power to do so when the Crown has asked for an order to stand trial for additional charges not included in the Information.
Analysis
30It has been brought to my attention that three of my colleagues have dealt with the issue before me in the present case.
31In R. v. Davis, 2019 ONCJ 600, [2019] O.J. No. 4988, the defendant Davis charged with sixteen offences, four of which carried a maximum punishment of 14 years’ imprisonment or more and twelve of which carried a maximum punishment of less than 14 years’ imprisonment. Justice Misener found that, under the amendments, a preliminary inquiry is restricted to offences that attract a possible penalty of 14 years’ imprisonment or more even where the charges are grouped on an Information with charges that attract a penalty of less than 14 years’ imprisonment. It was held that (bold is original):
Section 536(4) applies where a request is made for a preliminary inquiry. It provides:
If an accused referred to in subsection (2) elects to be tried [in the Superior Court of Justice] the justice shall... on the request of the accused or the prosecutor... hold a preliminary inquiry into the charge.
What is meant by "the charge"? On a plain reading"the charge" refers back to the charge faced by "the accused referred to in subsection 2" namely "an indictable offence punishable by 14 years or more."
Furthermore, there is no mention in Section 536(4) of an inquiry into the Information as a whole. Although this wording has not changed with the amendments, it takes on new significance where Parliament has eliminated the entitlement to a preliminary inquiry for indictable offences punishable by imprisonment for less than 14 years.
Thus, the wording of Section 536 supports an interpretation of the preliminary inquiry which restricts it to the 14+ offences.
32In Davis the Defence argued that the reference in section 535 to “any other indictable offence in respect of the same transaction” broadens the scope of the preliminary inquiry to include counts in the information that are punishable by less than 14 years’ imprisonment. In rejecting this argument, Justice Misener commented as follows:
The difficulty with that interpretation is that the section goes on to further qualify the other indictable offences. They must also be "founded on the facts that are disclosed by the evidence taken in accordance with this Part."
This means that the Justice may inquire into other offences which arise from the evidence that is called during the inquiry into "the offence" (which I have shown refers to the 14+ offence). In other words, the inquiry is into "the offence" and any other indictable offence that is revealed by the evidence adduced during the inquiry into the 14+ offence.
The function of the words "and any other indictable offence founded on the facts that are disclosed by the evidence taken in accordance with this Part" is to widen the scope of the inquiry in the same manner as it did before the amendments: the accused can be committed for trial on "the offence" which is the subject of the inquiry and any other offences in respect of the same transaction that are disclosed during the hearing of the evidence into "the offence".
33Justice Misener concluded that sections 535 and 536 mean preliminary inquiries are now limited to offences that attract a penalty of 14 years’ incarceration or more:
Both sections direct the justice to inquire into "the charge". Both sections refer to an accused "who is charged with an indictable offence that is punishable by 14 years imprisonment or more." While Section 535 broadens the inquiry, it extends only to other indictable offences in respect of the same transaction that are founded on the facts disclosed by the evidence adduced during the inquiry into the 14+ offence(s).
The entitlement to a preliminary inquiry no longer attaches to the procedure by which the prosecution proceeds. Under the newly amended preliminary inquiry provisions the entitlement to a preliminary inquiry is attached to the class of offence.
As before, an accused will not make a separate election on each count. Pursuant to Section 536, he will be required to elect on the Information. If that Information contains one or more 14+ offences, both he and the Crown will be entitled to request a preliminary inquiry. If that request is made, the inquiry will proceed in the usual manner but only on the 14+ counts. The <14 offences will go to trial in the Superior Court regardless of the outcome of that inquiry.
34Davis was followed in R. v. M.R. 2020 ONCJ 482. In R. v. M.R., Justice West was asked to rule on whether a justice sitting as a preliminary inquiry judge has jurisdiction to hear evidence and decide whether to commit an accused to trial after a preliminary hearing for offences on an Information for which the maximum sentence is less than 14 years, if those offences are charged on the same Information as offences for which the maximum penalty is 14 years’ incarceration or more. Justice West found that no such jurisdiction exists:
- Although s. 536(2) does not specifically address what occurs where an Information contains both 14+ and <14 offences, it is my view Parliament meant for preliminary inquiries to be restricted to charges where the maximum sentence was 14 years or more. This was the conclusion Justice Misener came to in R. v. Davis, at para. 6, and I agree with her conclusion and her reasoning.
35In R. v. A.B., 2019 ONCJ 601, [2019] O.J. No. 5357, Justice Renwick distinguished, Davis in the following way:
My own interpretation of the amendment is that all allegations that take place during the same transaction as an alleged 14+ offence may be the subject of a preliminary hearing. That would include offences already found on the Information and those that were not initially charged. This interpretation allows the preliminary hearing to remain focused upon the 14+ offence or offences, while only hearing other evidence in respect of non-14+ offences that are alleged to have taken place during the same transaction. This interpretation does not expand the scope of the preliminary hearing, but it does allow the Defendant the right to discover and test as much of the prosecution's case, which is consonant with Parliament's right to restrict preliminary hearings to the most serious of cases, as is appropriate in the circumstances.
This does not mean that the preliminary hearing should stray beyond allegations arising beyond the 14+ offences, but where there is overlap in terms of the same transaction and there are other non-14+ offences alleged, evidence may be taken and a ruling on committal of these other offences should also take place during the Defendant's preliminary inquiry.
36The Defence in the present case argue that the Code creates another route to jurisdiction over offences punishable by less than 14 years’ imprisonment. Justice Renwick came to this conclusion. Respectfully, I am unable to agree with him on the jurisdictional issue. In my opinion, Justices Misener and West correctly interpreted and applied the legislative amendments. In this regard, the Defence submissions with respect to section 548 do not alter my conclusion.
37My own view of this matter begins with what was stated by the Court of Appeal for Ontario in R.S., (at paragraph 13):
…under the amendments, the obligation or, put differently, the jurisdiction to conduct a preliminary inquiry depends not only on the election for trial in the Superior Court of Justice, but also on the requirement that the charge be punishable by 14 years’ imprisonment or more.
38The new provisions clearly state that I have no jurisdiction to conduct a preliminary inquiry into charges that carry a penalty of less than 14 years. If the punishment is 14 years or more, and a preliminary inquiry is requested, I must inquire into those charges and all other indictable offences arising from the same transaction. This result is no different if a person is charged in one Information with both category of offences. In such a case, my jurisdiction remains the same; to inquire into the charges punishable by imprisonment of up to 14 years or more, along with any other indictable offences arising from the same transaction. The latter phrase cannot include counts in the Information that carry a penalty of less than 14 years’ imprisonment. To read the relevant provisions otherwise, as urged upon me by the Defence, would nullify the letter and spirit of the amendments in question. The Defence argument is not strengthened because I have the power to order a discharge with respect to those other indictable offences arising from the same transaction. I agree with the Crown that this merely confirms that I have the authority to reject a Crown request for an order to stand trial for such offences.
39In coming to my conclusion, I accept this example offered by the Crown: It cannot disputed that if a person is charged in 50 one-count Informations, some of which carried a penalty of up to 14 years or more and others that are punishable by less than 14 years, that a preliminary inquiry could only be held for those Informations that allege an offence punishable by up to 14 years or more. The result must be the same if the 50 counts are contained in one Information. By analogy, it is instructive to note that subsection 591(2) provides that where an Indictment contains more than one count, each one is treated as a separate Indictment.
40The Defence argued that the conclusion I have now arrived at could lead to an unfair or strange result. I can best deal with his argument by returning to the allegations against Ms. Miller. She is charged with possessing contraband prohibited by the CDSA and the Criminal Code. She is entitled to a preliminary inquiry with respect to the former (because it is punishable for imprisonment for up to life) but not the latter (because the maximum sentence is less than 14 years). All the contraband in question was found by police in one bag. If I were to find that there was insufficient evidence to justify a trial for the CDSA contraband, I must order a discharge. However, because I have concluded I have no jurisdiction to deal with the other contraband, Ms. Miller would nevertheless face a trial in the Superior Court of Justice.
41This result might be seen as strange but it is not unfair. It simply reflects Parliament’s policy choice that offences carrying a penalty of less than 14 years’ imprisonment are no longer subject to the screening function at a preliminary inquiry. In this regard, I note that at the conclusion of the Crown case at trial, the defendant would still be entitled to bring a motion for a directed verdict of acquittal.
42There is a second issue. Does my conclusion that I have no jurisdiction to inquire into the charges that are punishable by less than 14 years’ imprisonment mean the Defence cannot ask questions about those offences? Several Defence lawyers submitted that they are entitled to ask questions about all counts. I disagree.
43In my opinion, the entitlement to ask questions about charges for which there is no right to a preliminary inquiry, depends on how closely linked the subject evidence is to the charges over which I have jurisdiction. Again, the allegations against Ms. Miller offers the best example of this. It would be impractical and unfair to restrict Defence counsel to questions about the CDSA contraband. It is impractical because this was found in the same bag as the other contraband. It is unfair because questions about anything in that bag is relevant to the CDSA charge. However, where the evidentiary link between the different offences is weak or non-existent, questions about those offences over which I have no jurisdiction will not be allowed on the grounds of relevance. In this regard, although not argued before me, it is my view that the discovery function of a preliminary inquiry, created at common law, does not assist the Defence submission. For example, it is well established that the Defence can explore Charter issues even though they are irrelevant to the statutory purpose of a preliminary inquiry. However, such discovery relates to charges over which I have jurisdiction. I would not permit such discovery with respect to charges over which I do not have jurisdiction, and which are not closely linked to those that are properly subject to the inquiry.
Result
44Parliament has removed the jurisdiction of the court to conduct a preliminary inquiry into indictable charges that are punishable by less than 14 years’ imprisonment. It appears that the legislative intention is to reduce volume and delay in the provincial courts and avoid witnesses having to testify twice in such cases. For the reasons I have explained, this means I do not have jurisdiction to conduct a preliminary inquiry on all the charges on the Red Rover Information, and the defendants are not entitlement to request one for all the charges.
45The preliminary inquiry in the present case will be restricted to those offences that attract a potential sentence of 14 years’ imprisonment or more. Questions about charges that carry a penalty of less than 14 years’ imprisonment will be permitted if the evidence in question is closely linked to those offences over which I have jurisdiction. In this regard, I repeat what I said at the beginning of these reasons: The counts in the Information fall into three categories; charges for a shooting near the Karma nightclub in St. Catharines; firearm and other Code charges; and CDSA charges. I do not have jurisdiction over the second category of offences because they attract a penalty of less than 14 years. The result is this:
- All defendants, except Mr. Wilson, are charged with offences that attract potential penalties of 14 years’ imprisonment or more and they are entitled to have a preliminary inquiry on those charges.
- Mr. Wilson is not entitled to a preliminary inquiry for the single charge he faces.
- All defendants, except Ms. Batticks, are charged with offences that attract potential penalties of less than 14 years’ imprisonment and they are not entitled to have a preliminary inquiry on those charges.
- Mr. Savalanpour and Mr. Stephens are entitled to have a preliminary inquiry on the Karma shooting offences. Mr. Meikle and Mr. Wilson do not have any charges that attract a penalty of 14 years’ or more, in relation to that event. As such, Mr. Meikle’s preliminary inquiry is restricted to his drug offences.
46I appreciate the assistance of all counsel in this matter.
Released: January 5, 2021 Signed: Justice J. De Filippis
1A publication ban, pursuant to section 539 of the Criminal Code was not requested by counsel and I have not imposed one because, except for the example offered by a general statement involving one defendant, it was not necessary to refer to evidence in deciding this ruling.
