Court File and Parties
COURT FILE NO.: CR-20-000020 DATE: 20210223
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – William Stengel Respondent
Counsel: Lyndsay K. Jeanes, for the Crown Michael Anne MacDonald, for the Respondent
HEARD: February 8, 2021 via Zoom
Reasons for Decision on Application
EDWARDS RSJ:
Overview
[1] On September 19, 2019, s. 535 of the Criminal Code of Canada (the “Code”) was amended to eliminate the availability of a preliminary inquiry on any charge where an accused was facing a maximum punishment of less than 14 years imprisonment. The Crown brings this application seeking a ruling that the decision of Carlton J. dated September 21, 2020 be quashed, and an order granted prohibiting the Ontario Court of Justice from setting and/or conducting a preliminary hearing in this case. In his decision, Carlton J. (“the application judge”) denied the Crown’s application to have the case remanded directly to the Superior Court of Justice without setting a preliminary hearing date.
The Facts
[2] Among the various charges that the Respondent faces in this application, he is charged with sexual assault (on a person under the age of 16 years) contrary to s. 271 (a) of the Code; sexual interference contrary to s. 151 of the Code; and invitation to sexual touching contrary to s. 152 of the Code (the Offences). All of the offences occurred between January 1, 2010 and December 31, 2012 and involved the same child complainant.
[3] As a result of discussions between counsel it became apparent that the Respondent intended to elect trial by Superior Court judge and jury and to have a preliminary hearing. There was a difference of views between counsel as to the application of the new provisions of Bill C-75 as they related to s. 535 of the Code. The judicial pre-trial judge in the Ontario Court of Justice (“OCJ”), directed that the Crown bring an application to the OCJ for judicial determination on the issue of its jurisdiction to set a preliminary inquiry in the particular circumstances of this case.
[4] On July 16, 2020, the Respondent filed a notice of election with the court, electing a trial in the Superior Court of Justice with a judge and jury and requested a preliminary inquiry.
[5] Given the Respondent’s election, the Applicant filed a Form 1 Application which sought an order that the only election available to the Respondent was that of either a trial in the OCJ or in the Superior Court without having a preliminary hearing. The Applicant requested that the application judge remit the matter to the Superior Court of Justice pursuant to s. 536(4.3) of the Code on the basis that the OCJ did not have any jurisdiction to hold a preliminary inquiry.
[6] On July 17, 2020, the Respondent filed a Form 2 Response in which the Respondent sought an order that his election was proper and that he was entitled to a preliminary hearing.
[7] The application was argued on August 6, 2020, and on September 21, 2020 Carlton J. released his Reasons and determined that the Respondent was entitled to a preliminary hearing.
Position of the Crown
[8] At the core of the Crown’s argument, is the fundamental proposition that the OCJ has no jurisdiction to schedule and hold a preliminary inquiry because the Respondent is not charged with an offence that is “punishable for 14 years or more”. In that regard, while acknowledging that an accused is always presumed innocent until he or she is found guilty, the fact remains that if the respondent is convicted he will be sentenced under the sentencing regime in place when he committed the three offences at issue in 2010 and 2012. Any sentence the Respondent may have imposed on him if found guilty can not exceed a maximum of 10 years in custody for each offence.
[9] In support of its position the Crown refers to s. 43 of the Interpretation Act, R.S.C. I-23, in support of its position that the sentencing maximums for the three offences at the time the Respondent committed the offences, were repealed and replaced with sentencing maximums which were higher than those in place at the time of the commission of the offence. As such, it is argued that s. 43 confirms that the repeal of the sentencing maximums in relation to offences committed in 2010 and 2012 do not affect any punishment incurred under the enactment so repealed.
Position of the Respondent
[10] The position of the Respondent is summarized very succinctly in his counsel’s 3 page factum, where it is argued that Carlton J.:
Rightly decided, as he had jurisdiction to decide, that the accused was entitled by the clear words of the Criminal Code, as it stands at this time, to a preliminary inquiry on the basis of the charge NOT on an assessment of the actual characteristics of the accused personally.
As stated by Carlton J. at para. 17 of his Reasons:
In my view, the issue was resolved based on the interpretation of the words in ss. 535 and 536(2) of “charged with an indictable offence that is punishable by 14 years or more of imprisonment” and not on the basis of any acquired right to a preliminary inquiry”.
[11] It is further argued in the Respondent’s factum as follows:
The only relief requested here is the “quashing” of an order made on the basis of “no jurisdiction” because the decision was in error and inconsistent with the decision in R. v. McNeil, [2020] O.J. No. 3461 of Mr. Justice Loignon. It is submitted the correctness or incorrectness of any decision made within jurisdiction is not subject to judicial review by extraordinary remedy but only on appeal at the end of the process.
Law and Analysis
[12] It is a well accepted principle that the OCJ is a statutory court. As such it either has jurisdiction to conduct a preliminary inquiry or it does not. Jurisdiction cannot be conferred by agreement nor by acquiescence. If a decision is made without jurisdiction it should be quashed.
[13] Section 535 of the Criminal Code, as amended, states:
PART XVIII – Procedure on Preliminary Inquiry
Jurisdiction
Inquiry by justice
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. (emphasis reflect the words added by the amendment per C75)
[14] It is unfortunate that Bill C-75 did not have a preamble that might have reflected the intention of Parliament. However, the debates in the House of Commons and the Senate do assist in understanding the intention of Parliament. It seems quite clear from a review of the debates that the amendments reflected in Bill C-75 emphasized the goals of freeing up court time and judicial resources in the provincial courts and reducing the burden on victims and witnesses who would otherwise have to testify twice.
[15] The Minister of Justice, spoke in part about the purposes of Bill C-75 in the House of Commons as follows:
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 considering the broad disclosure rules that exist today. The Standing Senate Committee on Legal and Constitutional Affairs also recommended that they be restricted or eliminated.
The proposed measures would reduce the number [of] preliminary of inquiries by approximately 87%, ensure they are still available for the more complex and serious offences, help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice, once at a preliminary inquiry and once at trial. For example, this measure would eliminate the need for a vulnerable witness in a sexual assault or child sexual assault trial from having to testify twice.
I am confident these reforms would not reduce trial fairness, that prosecutors would continue to take their disclosure obligations seriously, that our courts would continue to uphold the right to make full answer and defence, and that there would remain flexibility in existing processes, such as out-of-court discoveries, that have been implemented in some provinces already— for example, in Quebec and Ontario. (see- House of Commons Debates, vol. 148 no. 300 (May 24, 2018) at pp. 19630, time 15:25 (Hon. Jody Wilson-Raybould) [emphasis added]
[16] On second reading of Bill C-75 in the Senate, its sponsor, Senator Murray Sinclair said, in part:
Bill C-75 contains amendments that will restrict preliminary inquiries so that they will only be available for adults accused of serious offences that carry sentences of life imprisonment. Restricting them to such offences will reduce the number of preliminary inquiries held, while maintaining their availability for the most serious cases. In turn, this will free up court time and resources in provincial courts.
Further, the reforms included in Bill C-75 directly respond to recommendations on preliminary inquiries included in the Senate committee’s report on delays. Echoing the Supreme Court of Canada’s invitation in its Jordan decision for Parliament to “consider the value of preliminary inquiries in light of expanded disclosure obligations,” the Senate committee had recommended that that “the Minister of Justice take steps to eliminate preliminary inquiries or limit their use.”
It is also worth noting that in light of stringent Crown disclosure obligations, the Supreme Court of Canada, in the 2009 case R. v. S.J.L., ruled that there is no constitutional right to a preliminary inquiry.
The proposed measures will, first, reduce the number of preliminary inquiries held by approximately 87 per cent; second, ensure they are still available for more complex and serious offences; third, help unclog the courts; and fourth, reduce burdens on witnesses and victims from having to testify twice, once at the preliminary inquiry and once at trial.
I’m confident that these reforms will not reduce trial fairness, that prosecutors will continue to take their disclosure obligations seriously, that our courts will continue to uphold the right to make full answer and defence, and that there remains flexibility for existing processes such as out-of-court discoveries that have been implemented in some provinces already, such as Ontario and Quebec. (see- Senate Debates, vol. 150 issue 264 (February 19, 2019) at pp. 7373-76, time 15:55 – 16:10 (Hon. Murray Sinclair) [emphasis added]
[17] A review of the legislative history of Bill C-75 demonstrates that it was initially drafted to eliminate preliminary inquiries for all offences except those punishable by life in prison. Later, it was changed to its present form in which section 535 will still allow preliminary inquiries for offences punishable by 14 years in prison or more.
[18] Bill C-75 and specifically the amendments to section 535, has already been the subject of considerable litigation on the issue of retrospectivity. This issue was settled by the Court of Appeal in R. v. R.S., wherein the Court determined the following:
For the reasons that follow, I would hold that, as the Appellants had elected their mode of trial and requested preliminary inquiries before the amendments came into force on September 19, 2019, the amendments do not apply to the appellants. They are entitled to their prelim- inary inquiries. I further hold that accused persons who were before the courts prior to September 19, 2019, but had not elected their mode of trial and requested a preliminary inquiry, as of that date, had no right to a preliminary inquiry. Their entitlement to a preliminary inquiry is governed by the amendments, which limit that entitlement to offences that provide for a sentence of at least 14 years ' imprisonment. [Emphasis added] (see- R. v. R.S., [2019] O.J. 5773 (C.A.), 2019 ONCA 906)
[19] The only issue that this court must decide is whether the Respondent is entitled to a preliminary inquiry pursuant to section 535 of the Criminal Code, given that he is charged in relation to allegations where the maximum penalty prescribed by the law at the time that the offences were committed, is not 14 years or more in jail.
[20] Accused persons charged with Indictable electable offences are still entitled to elect their mode of trial. However, post Bill C-75, the right to elect trial in the Superior Court of Justice no longer carries with it the automatic right to request a preliminary inquiry. A preliminary inquiry is only available where an accused is charged with an offence carrying a maximum penalty of 14 years imprisonment or more.
[21] Section 535 sets out the jurisdiction of a preliminary inquiry justice when a preliminary inquiry is requested:
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. (emphasis reflect the words added by the amendment per C75)
[22] These provisions refer to “an accused who is charged with an indictable offence that is punishable by 14 years or more of imprisonment”. The ordinary meaning of the words directs the justice’s attention to the offence provision. It ties the availability of a preliminary inquiry to the seriousness of the offence, as reflected in the maximum penalty for the offence charged, not the individual circumstances of the accused-see R v M.(C.A), [1996] 1 SCR 500 at para 36, .
[23] On the facts of this case the position asserted by the Crown is that on a proper interpretation of section 535 as amended the OCJ has no jurisdiction to schedule and hold a preliminary inquiry. The explanation for this outcome is simple. It is because the Respondent is not charged with an offence that is “punishable by 14 years or more”.
[24] To assist in the proper interpretation of s. 535 of the Criminal Code s. 43 of the Interpretation Act comes into play. Section 43 of the Interpretation Act states that:
“Where an enactment is repealed in whole or in part, the repeal does not
a. (a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,
b. (b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,
c. (c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
d. (d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or
e. (e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),
and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.”
[25] Applying the provisions of s. 43 of the Interpretation Act to the facts of this case the sentencing maximums for the three offences at the time that the Respondent committed those offences was repealed and replaced with sentencing maximums which are higher than those in place at the time of the commission of the offence. In my view Section 43 of the Interpretation Act confirms that the repeal of the sentencing maximums in relation to offences committed in 2010 and 2012, does not affect any punishment incurred under the enactment so repealed.
[26] There can be no doubt that if the Respondent is convicted of the 3 offences at issue he will be sentenced under the sentencing regime in place when he committed the three offences in 2010 and 2012, i.e..a maximum of 10 years in custody on each offence. The fact that the maximum sentence has been repealed and replaced with a higher sentence does not, in law, mean that the accused will now be sentenced under the present-day sentencing regime.
[27] In Tran v. Canada (Public Safety and Emergency Preparedness), [2017] 2 S.C.R. 289, 2017 SCC 50 the Appellant was potentially subject to removal from Canada if he was convicted of an offence punishable by a maximum period of 10 years’ imprisonment or more. The Appellant was convicted of an offence under the CDSA that, at the time of its commission, had a maximum penalty of 7 years’ imprisonment. Before sentence was passed, the offence was amended to have a maximum period of imprisonment of 14 years.
[28] While the lower courts had concluded that the appellant was caught by the removal provision, the Supreme Court of Canada held that one could not separate the pre-condition of the maximum penalty for the offence from the individual accused/offender. By virtue of s.11(i) of the Charter, the appellant could be subject to no more than 7 years’ imprisonment and, thus, the removal provision did not apply. It is worth repeating what Cote J stated at para 35 of Tran:
Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual interpretation of S.36 (1) (a) supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years “ refers to the maximum sentence that the accused person could have received at the time of the commission of the offence.” (emphasis added)
[29] It is also worth observing that the new amendment to section 535 does not say “someone who is charged with an offence that was allegedly committed after the coming into force of this enactment.” Parliament is presumed to know the difference between when a person is “charged” and when “an offence is alleged to have taken place. See: R. v. Clarke, [2014] S.C.R. 612 at para. 17; R. v. Kalanj, [1989] 1 S.C.R. 1594 at paras. 12 and 19, .
[30] If this court was to accept the position asserted by the Respondent as reflected in the ruling of the application judge it would not reflect the clear parliamentary intent reflected in the speeches from the House of Commons and the Senate. It is clear from the Minister of Justice’s speech in the House of Commons that the amendments were meant to limit the availability of preliminary inquiries in order to increase court efficiencies, alleviate burdens on court resources and reduce burdens on vulnerable witnesses and victims from having to testify twice.
[31] An interpretation of section 535 that limits the availability of preliminary inquiries to accused individuals liable to a sentence of 14 years or more accords with the obvious ordinary meaning of the section. The Respondent is not charged with an offence for which he is liable to 14 years or more of imprisonment. As such the OCJ has no jurisdiction to schedule and hold a preliminary inquiry. Substituting the words of Cote J from para 37 of Tran, the maximum sentence that Mr Stengel could receive if he is convicted “is limited by the maximum sentence available at the time of the commission of the offence”-which would be 10 years. It is not a punishment of 14 years or more.
[32] Apart from the ruling of the application judge there has been little jurisprudence on this issue. In R. v. MacNeil, [2020] O.J. No. 3461, the Court determined that there is no indefinite entitlement to a preliminary inquiry and as the accused was not, himself, facing 14 years imprisonment, he was not entitled to a preliminary inquiry. At para. 15 of McNeil, J Loignon J held:
Given the historical nature of the charges before the Court, Mr. McNeil is facing a maximum sentence of 10 years. Counsel for the accused argues that a current charge under s. 271, where the Complainant is between 14 and 16 years of age, would result in a maximum sentence of 14 years and therefore her client ought to be entitled to a preliminary inquiry. While the right may exist for a current charge under s. 271, the reality is that Mr. McNeil is facing a charge of sexual assault, contrary to s. 271 as it was in 2006 and 2007, not as it is framed today. Because of this, he is facing a maximum sentence of 10 years imprisonment. Not facing a maximum sentence of 14 years imprisonment, Mr. McNeil does not meet the statutory criteria for a preliminary inquiry.
Accordingly, I determine that there is no entitlement and therefore no corresponding obligation for the Ontario Court of Justice to hold a preliminary inquiry.
[33] The Supreme Court of Nova Scotia in R. v. Boutilier, 2020 NSSC 275 has also dealt with the same issue as the one before this court. While Boutilier comes to a result consistent with the ruling of the application judge there was no argument about the proper application of section 43 of The Interpretation Act. I also note that the Tran decision from the Supreme Court was not brought to the attention of Coady J. Had section 43 and Tran been brought to the attention of Coady J it is possible that the Courts determination in Boutilier may have been different. For this reason, I choose not to follow Boutilier.
[34] The issue that this court has to decide was addressed in part by De Filippis J. in R v Stephens, 2021 ONCJ 4 where multiple accused were charged with a number of offences some of which were punishable with a sentence greater than 14 years and some were not. The defence sought an order that would have allowed a preliminary hearing on all charges regardless of whether the potential sentence was less than 14 years. After reviewing the limited caselaw on this issue De Filippis J began his analysis with what was stated by the Court of Appeal in R v R.S., 2019 ONCA 906, [2019] O.J. No 5773 at para 13 as follows:
…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.
[35] In the result De Filippis J. concluded that a preliminary inquiry was restricted to those offences that attract a penalty of 14 years or more. At para 41 of his reasons De Filippis concluded as follows:
The 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.
[36] The issue before Quigley J in R v Windebank, 2020 ONSC 8107, [2020] O.J.No.5771 was whether someone charged with an offence where the punishment was less than 14 years-but facing a potential designation as a dangerous offender, was nonetheless entitled to a preliminary hearing. In the result Quigley J decided that Parliament could not have intended to deny an accused the right to a preliminary inquiry where that accused potentially was facing the maximum liberty jeopardy. At the time of the release of these reasons I understand that Windebank is under appeal to the Court of Appeal. The comments of Quigley J are nonetheless helpful in my assessment of the issue before this court.
[37] At para 64 of his reasons in Windebank, Quigley J. in my view quite correctly noted that the determination of whether an accused is entitled to a preliminary inquiry is determined by reference to the penal jeopardy that the accused person is facing. On the facts of the case before me the Respondent does not face a legal jeopardy of 14 years or more of imprisonment. His maximum jeopardy can never be more than 10 years imprisonment and as such he is not entitled to a preliminary hearing.
[38] When this matter came before Carlton J, he did not have the benefit of any argument as it relates to S 43 of the Interpretation Act. He also did not have the benefit of having any argument as to the applicability of the Supreme Court’s decision in Tran. Both Stephens and Windebank were decided after the release of the decision by Carlton J. If those decisions had been available to Carlton J. it is entirely conceivable that his decision may have been different.
[39] In my view the decision of Carlton J must be quashed, and an Order made that prohibits the OCJ from conducting a preliminary hearing in this case. By applying S 43 of the Interpretation Act and following R.S. and Tran, the only conclusion I can make is that Mr Stengel is charged with an offence where his maximum jeopardy is a sentence of 10 years or less. As such the clear Parliamentary intent is one that leaves Mr Stengel with a number of options -none of which include the right to have a preliminary inquiry. The Crown’s application for prerogative relief is granted and the Order of Carlton J is quashed. This matter is remitted to the OCJ where Mr Stengel may either elect to have his trial in the OCJ or to have his trial remitted to the Superior Court of Justice.
Regional Senior Justice M.L. Edwards Released: February 23, 2021
