WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court of Appeal for Ontario
Date: November 18, 2019
Docket: C67487 & C67494
Judges: Doherty, Watt and Trotter JJ.A.
Between
Her Majesty the Queen Applicant (Respondent)
and
R.S., K.H., Mihai Stoica, Mahad Geele, and Nimene Nimene Respondent (Appellants)
Counsel
Alan D. Gold and Adam N. Weisberg, for the appellant, Nimene Nimene
Mark Halfyard, for the appellants, K.H., Mihai Stoica, and Mahad Geele
Matthew Asma, for the respondent
Michael Lacy, Daniel Brown and Kathryn Ginn, for the intervener, Criminal Lawyers' Association
Heard: October 28, 2019
On appeal from the judgment of Regional Senior Justice Bruce G. Thomas of the Superior Court of Justice, dated September 27, 2019, reported as R. v. R.S., 2019 ONSC 5497.
Doherty J.A.:
I. Introduction
[1] On June 21, 2019, Parliament enacted legislation which, among many other things, amended the provisions of the Criminal Code, R.S.C. 1985, c. C-46 relating to preliminary inquiries (the "amendments"): 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, 1st Sess., 42nd Parl., 2019, c. 25. The amendments came into force on September 19, 2019, substantially limiting the availability of preliminary inquiries. Prior to the amendments, anyone in Ontario who had elected trial in the Superior Court of Justice (judge and jury, or judge alone) could request and, upon request, was entitled to a preliminary inquiry. After the amendments, preliminary inquiries were available only for indictable offences punishable by 14 years' imprisonment or more. The amendments provide no transitional provision.
[2] On this appeal, the court must decide whether the amendments apply to charges that were before the Ontario Court of Justice when the amendments took effect. This question has sparked considerable litigation and several conflicting decisions. There are many cases presently in the Ontario Court of Justice awaiting a determination of the issue. Watt J.A. ordered this appeal expedited.
[3] In endeavouring to release reasons as quickly as possible, the court has benefitted from counsel's able submissions, the thorough and thoughtful reasons of Thomas R.S.J. of the Superior Court of Justice and Marion J. of the Ontario Court of Justice, as well as the careful reasons provided by many other judges who have addressed the issue: see R. v. Downey, 2019 ONCJ 669, aff'd 2019 ONSC 6167; R. v. Fraser et al., 2019 ONCJ 652; R. v. N.F., 2019 ONCJ 656; R. v. Kozak, 2019 ONCJ 657, rev'd 2019 ONSC 5979; R. v. Bernard-Carty, 2019 ONCJ 672; R. v. J.G. (2 October 2019), Perth (Ct. J.); R. v. A.S., 2019 ONCJ 655; R. v. Lamoureux (28 October 2019), Montreal 500-01-190244-191, (Ct. Q.).
[4] 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 preliminary inquiries. I would 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.
II. Background
[5] The four appellants are charged with sexual assault. The charges were laid in 2018 and are unrelated to each other. The appellants appeared in the Ontario Court of Justice on various occasions. Prior to September 19, 2019, they had all elected trial in the Superior Court of Justice and requested a preliminary inquiry. Their preliminary inquiries had not commenced as of September 19, 2019.
[6] The parties accept that, as of September 18, 2019, the day before the amendments came into effect, the appellants were all entitled to a preliminary inquiry into the sexual assault allegations. The parties also agree that, as sexual assault is not punishable by 14 years' imprisonment or more, if the amendments apply, none of the appellants are entitled to a preliminary inquiry as of September 19, 2019.
[7] Marion J. held that the amendments did not apply to accused who had elected and requested a preliminary inquiry before September 19, 2019: R. v. R.S., 2019 ONCJ 629. In his view, the amendments were procedural in nature but, as they affected the jurisdiction of the Ontario Court of Justice to conduct preliminary inquiries, they were presumptively prospective: see Royal Bank of Canada v. Concrete Clamps (1961) Ltd., [1971] S.C.R. 1038, at p. 1040. Nothing in the legislation rebutted that presumption. He concluded that the Ontario Court of Justice had jurisdiction after September 19, 2019, to conduct preliminary inquiries in those cases in which the accused had requested a preliminary inquiry before September 19, 2019. All four appellants met that criterion.
[8] The Crown sought prohibition with certiorari in aid in the Superior Court of Justice. Thomas R.S.J. characterized the amendments as purely procedural and as not affecting any substantive rights of the appellants. Consequently, the amendments presumptively applied to all cases in the system on September 19, 2019, regardless of whether the accused had elected trial in the Superior Court of Justice and requested a preliminary inquiry before September 19, 2019. Thomas R.S.J. interpreted the amendments as removing the jurisdiction of the Ontario Court of Justice to conduct preliminary inquiries in respect of any indictable offence that did not carry a penalty of 14 years' imprisonment or more. He prohibited the Ontario Court of Justice from holding a preliminary inquiry in respect of the charges against the appellants and remitted the matters back to the Ontario Court of Justice, directing that the appellants should be given the election provided for in the amended legislation: R. v. R.S., 2019 ONSC 5497.
[9] The appellants appeal to this court from that order.
III. The Legislation
[10] The amendments deal with three closely-connected procedural steps that occur in the Ontario Court of Justice in the course of the prosecution of indictable offences in respect of which accused have a choice as to their mode of trial.
[11] At the first step, the accused elect their mode of trial. They choose trial in the Ontario Court of Justice, trial by judge alone in the Superior Court of Justice, or trial by judge and jury in the Superior Court of Justice. The statutory authority for this election is found in s. 536(2) of the repealed provisions. There are two election provisions in the amendments. The first, s. 536(2), applies to offences carrying a penalty of 14 years' imprisonment or more. The second, s. 536(2.1), applies to offences punishable by less than 14 years' imprisonment. Section 536(2.1), unlike s. 536(2), says nothing about requesting a preliminary inquiry as part of the election. For ease of reference, the provisions referable to the election are set out side-by-side below. The important changes in the amendments are underlined:
| Repealed Provision | Amended Provisions |
|---|---|
| 536(2) If an accused is before a justice charged with an indictable offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words… | 536(2) If an accused is before a justice, charged with an indictable offence that is punishable by 14 years or more of imprisonment, other than an offence listed in section 469, the justice shall, after the information has been read to the accused, put the accused to an election in the following words… 536(2.1) If an accused is before a justice, charged with an indictable offence — other than an offence that is punishable by 14 years or more of imprisonment, an offence listed in section 469 that is not punishable by 14 years or more of imprisonment or an offence over which a provincial court judge has absolute jurisdiction under section 553 —, the justice shall, after the information has been read to the accused, put the accused to an election in the following words… |
[12] The second step affected by the amendments is a direct consequence of the election for trial in the Superior Court of Justice. Under the repealed provisions, that election entitled the accused to request a preliminary inquiry. If the request was made, s. 536(4) required the court to hold a preliminary inquiry. Under the amendments, the right to request a preliminary inquiry and the consequential obligation on the court to hold a preliminary inquiry is limited to cases in which the accused has elected trial in Superior Court of Justice and is facing charges punishable by 14 years' imprisonment or more. The relevant provisions are set out below:
| Repealed Provision | Amended Provisions |
|---|---|
| 536(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge. | 536(4) If an accused referred to in subsection (2) elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is punishable by 14 years or more of imprisonment, the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge. 536(4.12) If an accused referred to in subsection (2.1) elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a court composed of a judge and jury, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be. |
[13] The third step, the holding of the preliminary inquiry, is addressed in both the repealed and amended versions of s. 535. Under the repealed version, a justice was required to conduct an inquiry under Part XVIII of the Criminal Code if the accused had elected trial in the Superior Court of Justice and requested a preliminary inquiry. 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. The relevant provisions are set out below:
| Repealed Provision | Amended Provisions |
|---|---|
| 535 If an accused who is charged with an indictable offence 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. | 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. |
[14] In summary, under both the repealed and amended legislation, appellants charged with indictable electable offences are entitled to elect their mode of trial. That entitlement is unaffected by the amendments. However, 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. Consequently, accused, like the appellants, charged with an indictable offence punishable by less than 14 years' imprisonment may still elect their mode of trial under the amendments, but they can no longer request or obtain a preliminary inquiry.
IV. The Positions of the Parties
[15] Prosecutions before the courts as of September 19, 2019, potentially affected by the amendments fall into two categories. In one category are the accused who are charged with indictable electable offences and who have elected trial in the Superior Court of Justice and requested a preliminary inquiry prior to September 19, 2019, but have not had a preliminary inquiry. This category includes accused whose preliminary inquiries were underway but not completed as of September 19, 2019. I include in this category accused who have formally entered an election and requested a preliminary inquiry, as well as those who have made a clear, but informal election and request, as evinced by the transcript of proceedings or endorsements on the information. All of the appellants fall into this first category. The second category of cases consists of accused who were before the courts charged with an indictable electable offence as of September 19, 2019, but had not, prior to that date, made any election or requested a preliminary inquiry.
[16] The Crown draws no distinctions between the two categories. The Crown maintains that no accused who is charged with an offence that carries a maximum penalty of less than 14 years' imprisonment is entitled to a preliminary inquiry as of September 19, 2019, regardless of when the charges were laid, and regardless of whether the accused had elected and requested a preliminary inquiry before September 19, 2019. The Crown submits that the amendments do no more than alter one aspect of the procedure applicable to the prosecution of indictable electable offences. They speak to the method of conducting criminal litigation and, specifically, the preliminary inquiry component of that litigation. The amendments do not remove or alter any substantive right the appellants had as of the enactment of the amendments. The Crown further contends that, after the amendments came into force, the Ontario Court of Justice ceased, on a going forward basis only, to have any jurisdiction to conduct, or continue, a preliminary inquiry, except in respect of offences punishable by 14 years' imprisonment or more.
[17] The appellants, supported by the intervener in oral argument, draw a distinction between the two categories described above. They submit that the amendments do apply to accused persons who were before the court prior to September 19, 2019, but had not elected their mode of trial or requested a preliminary inquiry. The appellants accept that accused persons in this category had not, as of September 19, 2019, acquired a right to a preliminary inquiry. Whatever right this category of accused may potentially have had was contingent upon them having made an election and having requested a preliminary inquiry. If those steps had not been taken prior to September 19, 2019, they could not be taken after that date, as they were no longer statutorily available. The application of the amendments to this category of accused did not affect any acquired right and did not therefore attract the presumption against retrospective operation of legislation. For this category of accused, the legislation was purely procedural.
[18] The appellants submit, however, that the situation is very different for accused, like the appellants, who had elected their mode of trial and requested a preliminary inquiry before September 19, 2019. The appellants submit that their election and request created an obligation on the court to conduct a preliminary inquiry. By exercising their election rights and their right to request a preliminary inquiry, the appellants acquired a concrete, tangible statutory right to a preliminary inquiry.
[19] The appellants further contend that their statutory right to a preliminary inquiry is far more than purely procedural. That right affects the substantive rights that attach to, and flow from, the holding of a preliminary inquiry. The appellants contend that, as the legislation affects their substantive rights, there is a presumption against the retrospective application of the amendments, and further that nothing in the record rebuts that presumption.
[20] The position taken by the appellants and the intervenor is consistent with the position taken by the federal Crown and most other provincial Crowns.
V. Analysis
(i) Retroactive or Retrospective?
[21] Mr. Gold, arguing this point for all the appellants, submits that the application of the amendments to the appellants constitutes a retroactive, rather than retrospective, application of those provisions. He maintains that, if the amendments apply to the appellants, those amendments effectively reach back before the date on which the amendments became law to change the law as it existed when the appellants requested and became entitled to a preliminary inquiry under the then-existing legislation. Mr. Gold contends that if the amendments apply to the appellants, the legal validity of their request for, and their entitlement to a preliminary inquiry is not measured against the law as it existed when the request was made, but rather against a very different law that came into existence months later and was unknowable to the appellants at the time they chose their forum for trial. Mr. Gold argues that this is the very definition of a retroactive law.
[22] Mr. Gold submits that the application of the amendments to the appellants provides a powerful example of the unfairness worked by retroactive laws. That unfairness, he argues, justifies the strong presumption against retroactive laws. He maintains that there is nothing in the legislation which suggests a Parliamentary intention to apply the amendments retroactively: Ruth Sullivan, Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014) at pp. 771-774.
[23] Mr. Asma, for the Crown, submits that the application of the amendments to the appellants is retrospective, not retroactive. Retrospective laws apply only from the date of enactment but change the legal effects of facts or events that occurred prior to the enactment. Mr. Asma argues that the appellants' request for, and entitlement to, a preliminary inquiry remained valid up until September 19, 2019, when the amendments came into force. From that date forward, but only forward, the amendments give a different legal effect to the appellants' previous requests for, and entitlement to, a preliminary inquiry. After September 19, 2019, the legal effect of that request, that is the entitlement to a preliminary inquiry, remains operative only if the offence charged carries a potential penalty of 14 years' imprisonment or more.
[24] The distinction between a law that operates retroactively and one that operates retrospectively can be a fine one. Drawing the distinction is made even more difficult by the interchangeable use of the two words in many judgments: Sullivan, at pp. 761-62; see e.g. Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1977] 1 S.C.R. 271, at p. 279.
[25] I use the term "retroactive" in reference to the temporal operation of legislation in a narrow sense. Retroactive laws refer to legislation that deems the law to have been something different than it actually was as of a date that precedes the enactment of the law. Truly retroactive laws are rare and commonly target a specific situation with language aimed at addressing a very specific problem: see e.g. Air Canada v. British Columbia, [1989] 1 S.C.R. 1161.
[26] Retrospective laws operate only from the date of enactment, but change the legal effects, on a going forward basis, of events that occurred before the enactment. The difference between a retroactive law and a retrospective law is the difference between a law that declares all requests for a preliminary inquiry void as of a date six months before the enactment, and a law that declares requests for a preliminary inquiry made before the enactment enforceable up to the time of the enactment, but not after the enactment: see E. Driedger, "Statutes: Retroactive Retrospective Reflections" (1978), 56 Can. Bar. Rev. 264, at pp. 268-76. The Crown correctly characterizes the scope of the amendments as retrospective and not retroactive.
[27] At the end of the day, however, the characterization of the legislation as retrospective or retroactive does not significantly advance the resolution of the appeal. The real question is whether the legislation, whether it is described as retroactive or retrospective, interferes with acquired substantive rights. Legislation that interferes with acquired substantive rights is presumptively prospective only. If the application of the amendments to the appellants' prosecutions would interfere with the appellants' substantive rights, there is a rebuttable presumption against the application of the amendments to the appellants. That presumption exists regardless of whether the application of the law to the appellants is described as a retrospective or retroactive application and regardless of whether the amendments are characterized as substantive or procedural: see R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, per Deschamps J., at paras. 10-11, per Cromwell J., dissenting but not on this point, at paras. 44-54; Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256, at p. 265; Peel (Police) v. Ontario (Special Investigations Unit), 2012 ONCA 292, 110 O.R. (3d) 536, at paras. 71-77.
(ii) Do the amendments affect substantive rights?
(a) The arguments
[28] The appellants acknowledge that the amendments are, in essence, procedural in that they change the procedure applicable to the prosecution of some indictable electable offences. They do so by eliminating the preliminary inquiry from that process in respect of charges that are not punishable by 14 years' imprisonment or more.
[29] The appellants correctly point out that the characterization of the amendments as procedural does not decide the temporal scope of the application of those amendments. One must go beyond the characterization of legislation to a determination of the practical impact of that legislation on the individuals affected by it. Procedural legislation can alter or take away substantive rights. Procedural legislation that does so is subject to a rebuttable presumption in favour of prospective application only. That presumption finds statutory support in s. 43 (c) of the Interpretation Act, R.S.C. 1985, c. I-21.
[30] Crown counsel does not take issue with counsel for the appellants' formulation of the legal principles applicable to the determination of the temporal scope of the amendments. He does, however, argue that the amendments are purely procedural in the sense that they do not alter or affect any acquired or existing substantive right. Crown counsel says that the amendments alter the entitlement under the statute to a preliminary inquiry, one of several procedural steps potentially undertaken prior to trial in the prosecution of an indictable offence.
[31] Counsel stresses in his argument that there is not a constitutional right to a preliminary inquiry. Nor, he submits, can a preliminary inquiry be considered an essential, or even necessarily significant, component of the process. The vast majority of prosecutions for criminal offences in Canada do not involve preliminary inquiries. Crown counsel urges the court to draw a distinction between amendments that may result in a procedural disadvantage to an accused and amendments which interfere with acquired substantive rights. He submits that the amendments in issue on this appeal may produce the former, but certainly not the latter. There is no vested interest in a specific procedure, even if it operates more favourably for the accused than its replacement: Peel (Police), at para. 72.
[32] Lastly, Crown counsel submits that if he is correct and the amendments do not affect substantive rights, the appellants have offered no basis to rebut the presumption in favour of the retrospective application of the provisions to the appellants. He refers to ss. 44 (c) and (d) of the Interpretation Act.
[33] The competing arguments present two questions for resolution – (1) did the appellants have a right to a preliminary inquiry as of September 19, 2019, and (2) would the elimination of that right constitute an interference with an acquired or existing substantive right that the appellants had as of September 19, 2019?
(b) Did the appellants have a statutory right to a preliminary inquiry?
[34] I turn first to the question of whether the appellants had a statutory right to a preliminary inquiry as of September 19, 2019. Under the repealed legislation, the appellants had elected trial in the Superior Court of Justice, and, as they were entitled to do, requested a preliminary inquiry (ss. 536(2) and (4)). The appellants' request for a preliminary inquiry placed an obligation on the court, subject to the Crown preferring an indictment under s. 577, to hold a preliminary inquiry (s. 536(4)). That obligation was made explicit in s. 535 which provided, in part:
If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry … the justice shall, in accordance with this part, inquire into the charge …
[35] The appellants' right to a preliminary inquiry and the court's obligation to hold that preliminary inquiry as of September 19, 2019, were established realities. Neither was conditional or a mere possibility. The appellants had done all they were required to do under the law to trigger their right to a preliminary inquiry and the court's corresponding obligation to hold a preliminary inquiry. The appellants were simply waiting for the court's schedule to accommodate their right to a preliminary inquiry on the date that had been set by the court.
[36] The analysis in R. v. Puskas, [1998] 1 S.C.R. 1207 assists in determining whether it can properly be said that the appellants had an acquired right to a preliminary inquiry as of September 19, 2019. In Puskas, the accused had been acquitted at trial, but their acquittals had been set aside on appeal and new trials ordered. As of the date of the acquittals, the accused had a right of appeal to the Supreme Court of Canada from an order of the Court of Appeal setting aside an acquittal. However, the Criminal Code was amended before the Court of Appeal ordered new trials for the accused. The amendments removed the automatic right of appeal and replaced it with a right of appeal only if leave to appeal was granted by the Supreme Court of Canada.
[37] The accused argued that their right of appeal was substantive and vested when the charges were laid. Lamer C.J., for the court, disagreed, stating, at para. 14:
In our view, there are numerous reasons for deciding that the ability to appeal as of right to this Court is only 'acquired', 'accrued' or 'accruing' when the court of appeal renders its judgment. The first is a common-sense understanding of what it means to 'acquire' a right or have it 'accrue' to you. A right can only be said to have been 'acquired' when the right-holder can actually exercise it. The term 'accrue' is simply a passive way of stating the same concept (a person 'acquires' a right; a right 'accrues' to a person). Similarly, something can only be said to be 'accruing' if its eventual accrual is certain, and not conditional on future events. In other words, a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled. [Emphasis added; citation omitted]
[38] The right of the accused in Puskas to appeal from the order of the Court of Appeal remained inchoate until the Court of Appeal gave judgment. By the time the Court of Appeal made its order, the right of appeal had been repealed.
[39] The appellants, unlike the accused in Puskas, had fulfilled all of the conditions precedent to the exercise of their right to a preliminary inquiry before September 19, 2019. As of that date, they had acquired a right to a preliminary inquiry.
[40] Nor does the possibility that the Crown could prefer an indictment under s. 577 affect the appellants' right to a preliminary inquiry as of September 19, 2019. Section 577 makes the appellants' right to a preliminary inquiry less than absolute. However, the possibility that the Crown might initiate a new proceeding by way of preferred indictment is irrelevant to what rights the appellants had to a preliminary inquiry as of September 19, 2019. The possibility that the Crown might have, at some point in the future, preferred an indictment no more renders the appellants' right to a preliminary inquiry as of September 19, 2019, conditional than would the possibility that the Crown might withdraw the charges at some point after September 19, 2019. The classification of a right as acquired or existing is based on the facts as they stand when the new legislation comes into force, not on the possibility that some future event might alter the factual matrix and affect the exercise of that right.
[41] The Crown submits that this court's judgment in R. v. Hafeez (1996), 27 O.R. (3d) 799 (C.A.) stands in the way of the appellants' claim that they had acquired the right to a preliminary inquiry as of September 19, 2019. In Hafeez, the accused was charged with assault causing bodily harm. When the charge was laid, assault causing bodily harm was a purely indictable offence that gave an accused an election as to his mode of trial. While the charges against the accused were outstanding, the Criminal Code was amended to make assault causing bodily harm a hybrid offence, meaning the Crown could choose to proceed summarily or by indictment. The accused's election therefore depended on the Crown first choosing to proceed by indictment.
[42] The accused appeared several times, but was not put to his election. Eventually, the Crown chose to proceed summarily and the accused pled guilty. He subsequently appealed his sentence. At the appeal, the Crown argued that as the Crown had proceeded summarily, the appeal lay to the Superior Court of Justice and not to the Court of Appeal. The Court of Appeal agreed and quashed the appeal, holding that the amendments which made the offence punishable either by indictment or summarily were retrospective.
[43] The appellants are in a different position than the accused in Hafeez. Unlike the accused in Hafeez, the appellants had elected trial in the Superior Court of Justice and requested a preliminary inquiry. They had moved from the possibility of a preliminary inquiry to the statutory entitlement to a preliminary inquiry. Any right the accused in Hafeez had to a particular mode of trial or a preliminary inquiry was contingent upon him making an election and requesting a preliminary inquiry. He had done neither.
[44] The accused in Hafeez had, at best, the possibility of acquiring a right to a specific mode of trial and a preliminary inquiry. Those rights did not exist when the amendments came into force, but were contingent on his future decisions. The amendments permitting the Crown to choose between proceeding by indictment or summarily did not interfere with any right the accused in Hafeez had acquired as of the enactment of the amendments.
[45] The reasoning in Hafeez does, however, apply directly to accused who were charged before September 19, 2019, but had not elected or requested a preliminary inquiry by that date. Those accused, like the accused in Hafeez, had not acquired a right to a preliminary inquiry as of the date of the amendments. Applying the amendments to this group, just as in Hafeez, did not interfere with any acquired right. As indicated above, the appellants and the intervenor acknowledged that absent an election and request for a preliminary inquiry, there is no right to a preliminary inquiry. They accept that the application of the amendments to this group does not offend the presumption against interference with substantive rights.
[46] Hafeez is distinguishable on another ground. In Hafeez, any right the accused could have acquired, potential or actual, to a preliminary inquiry depended on the accused being prosecuted by indictment. Elections and preliminary inquiries play no part in summary conviction proceedings. The amendment giving the Crown the option to proceed by summary conviction gave the Crown a choice as to the mode of proceeding that had to be made, either expressly or by implication, before the accused could have even the possibility of electing his mode of trial and gaining a right to a preliminary inquiry.
(c) Are substantive rights affected?
[47] My conclusion that the appellants had acquired a tangible and existing statutory right to a preliminary inquiry as of September 19, 2019, leads to the second question: Is that right itself a substantive right or does it impinge upon, or negatively affect, the substantive rights of the appellants: see Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Dineley, per Deschamps J. at paras. 10-11, per Cromwell J., dissenting but not on this point, at paras. 55-59.
[48] I would not characterize the statutory right to a preliminary inquiry as a standalone substantive right. The preliminary inquiry is a process by which the accused may challenge the Crown's right to proceed to trial and gain information and insights that may assist in the preparation for trial: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at paras. 30-31; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at paras. 21-23. The preliminary inquiry is part of a broader criminal process applicable to some indictable offences. There is no vested right to a particular procedure. Changes to, or the elimination of, some part of the process cannot be equated with the removal of a substantive right.
[49] Although I would not describe the right to a preliminary inquiry as itself a substantive right, I am satisfied that the elimination of the preliminary inquiry does affect a substantive right of the appellants. That right lies in the appellants' entitlement to be discharged at a preliminary inquiry if the Crown cannot meet its evidentiary burden: Criminal Code, s. 548(1)(b); R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.
[50] The primary purpose of the preliminary inquiry is to screen out meritless allegations. A preliminary inquiry gives the accused the opportunity to have a judicial determination of whether the Crown can produce sufficient evidence to justify the case going forward to trial. The accused is entitled to have this determination made after an inquiry governed by Part XVIII, at which the accused has a full opportunity to challenge the evidence presented by the Crown. If the accused obtains a discharge, the prosecution comes to an end, except in those rare cases where the Attorney General initiates new proceedings by way of a preferred indictment. I have no difficulty in concluding that the right to challenge the evidentiary basis for the prosecution at an early stage in the process, and potentially bring the prosecution to an end, is a substantive right: see Downey (ONSC), at para. 73.
[51] It is often said that a preliminary inquiry is not a trial and the guilt of the accused is not an issue. Both are true. To acknowledge those realities is not, however, to diminish the significance of the preliminary inquiry to an accused. As observed by McLachlin C.J. in Hynes, at para. 30:
The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to 'protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. [citation omitted]
[52] An accused's right to obtain a timely judicial evaluation of the evidence offered by the Crown with a view to avoiding "a needless and, indeed, improper, exposure to public trial" is a significant and substantive right, having a meaningful and direct impact on an accused's liberty and security of the person interests. The impact on those interests is particularly strong in cases in which the accused has been denied bail or released on very stringent terms. Pre-trial detention orders and bail orders come to an end if an accused is discharged: see R. v. Jones (1996), 32 O.R. (3d) 365, 113 C.C.C. (3d) 225, at p. 234.
[53] The arguments skillfully put forward by the Crown in support of the submission that the removal of a right to a preliminary inquiry does not affect any substantive right are not, in the end, persuasive. I will briefly address those arguments.
[54] First, the Crown points to the Attorney General's power to prefer an indictment under s. 577. As indicated above, the right of the accused to seek and obtain a termination of the proceedings at the preliminary inquiry based on an insufficiency of the evidence is not diminished because s. 577 provides an extraordinary alternative means by which the Crown may bring the accused to trial. The Crown's power under s. 577 renders any order made at the preliminary inquiry potentially less than a final determination, although in reality, if an accused is discharged, it will be the end of the proceedings in the vast majority of cases. Section 577 does not, however, go so far as to render the accused's right to obtain an early termination of the prosecution meaningless or of little value.
[55] I do not find the well-settled law to the effect that there is no constitutional right to a preliminary inquiry of assistance on this point. There are many substantive rights that are not constitutional. It must be borne in mind that this appeal is concerned with interpretation of the temporal scope of what is acknowledged to be constitutional legislation. The question is whether the amendments operate retrospectively. If constitutional rights were potentially compromised by the legislation, the concern would not be with its temporal scope, but rather with the legislative competence to enact the legislation in any form.
[56] I do not accept the submission that the accused's ability to move for a directed verdict at trial, applying the same test for the sufficiency of the evidence applicable at the preliminary inquiry, detracts from the substantive nature of the right to seek a discharge at the preliminary inquiry. That right focuses on the Crown's ability to produce sufficient evidence to justify sending the matter on for trial. That assessment is made at a fixed and early stage of the proceeding. For accused, especially accused in custody, there is a very real difference between obtaining a discharge at a preliminary inquiry and obtaining a directed verdict several months later at a public trial. The opportunity to seek a directed verdict is not a substitute for a chance to be discharged at the preliminary inquiry. Both are important, but different rights-affecting procedures.
[57] Nor should the recognition of the right to obtain a discharge as a substantive right depend on how often discharges are granted. Discharges are not common, but they are not rare: D. Paciocco, "A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry" (2004), 48 C.L.Q. 151, at pp. 152-153, citing A.D. Gold and J.R. Presser, "Let's Not Do Away with Preliminaries: A Case in Favour of Retaining the Preliminary Inquiry" (1996), 1 Can. Crim. L. Rev. 145. Parliament has acknowledged that a discharge is the appropriate and just outcome in cases where the Crown cannot meet its evidentiary burden at that early stage of the process. In deciding whether the right to seek and obtain a discharge should be viewed as a substantive right, one must look to the cases in which a discharge would be the appropriate order. It cannot be that an accused who would be entitled to a discharge, had he not lost the right to a preliminary inquiry because of the amendments, has not had any substantive rights affected because, although he lost a meaningful opportunity to end the proceedings, most other accused would not have benefited from that opportunity. The characterization of the right to obtain a discharge as affecting an accused's liberty and security interests does not depend on how many accused would be successful in obtaining a discharge. For those accused who would obtain a discharge, the elimination of the preliminary inquiry significantly and negatively impacts on their liberty and security of the person.
[58] I would add that, while a complete discharge is uncommon, it is more common for accused to be discharged on some of the offences contained in a multi-count indictment, or to be discharged on the main charge, but committed for trial on an included offence. Even the inability to obtain these "partial" discharges can impact significantly on the accused's liberty and security interests. For example, a discharge on the more serious charges in an information may well lead to a re-evaluation of an accused's bail status: s. 523(2)(b). If the accused loses the opportunity to obtain that partial discharge because his right to a preliminary inquiry is gone, he loses the opportunity to have some of the restrictions on his liberty eliminated for the rest of the process.
(d) Is the presumption rebutted?
[59] For the reasons set out above, I am satisfied that the amendments, when applied to accused who have elected and requested a preliminary inquiry, do impinge upon the substantive right of those persons to obtain a discharge. In interpreting the legislation, the presumption is against giving the amendments that retrospective effect unless Parliament has clearly signalled otherwise.
[60] The Crown has not argued that, if the court finds that the amendments do affect substantive rights, the resulting presumption against retrospective application can be rebutted. There is no evidence of a parliamentary intention to apply the amendments retrospectively. Had Parliament intended to do so, it could have inserted the appropriate transitional provision. There is none.
[61] A review of the customary sources resorted to in interpreting legislation does not suggest any intention to apply the amendments retrospectively. While it is clear that the purpose of removing the preliminary inquiry from most proceedings was to reduce the delay, costs, and negative impact on witnesses and others associated with preliminary inquiries, the evidence does not suggest that a retrospective application of the amendments would reduce delay or costs. As is evident in the reasons of several Ontario judges, there is a strong argument that the retrospective application of the amendments would, in the short term, cause delay and add costs to the prosecution and defence of some charges: see R.S. (ONCJ), at paras. 77-79; N.F., at para. 7; Kozak (ONCJ), at para. 5; Downey (ONSC), at paras. 97-100.
[62] This is also not a case in which a retrospective application of the amendments is the only feasible or workable interpretation of them. I see no practical impediment to treating the appellants as being entitled to preliminary inquiries in those cases in which they have elected trial in the Superior Court of Justice and requested a preliminary inquiry prior to the enactment of the amendments. This is apparently what is happening in the rest of the country and even in federal prosecutions in Ontario.
(e) Are there other substantive rights affected?
[63] Although it is unnecessary for the resolution of this appeal given my finding that the appellants' right to seek and obtain a discharge at the end of a preliminary inquiry is a substantive right, I will address the appellants' argument that the retrospective application of the amendments also affects their substantive right to make full answer and defence.
[64] Traditionally, the preliminary inquiry has provided valuable assistance to an accused in making full answer and defence. The preliminary inquiry allows for discovery of the Crown's case, testing of that case, and permits counsel to lay the groundwork for arguments and defences that may be advanced at trial: see G.A. Martin, "Preliminary Hearings", Special Lectures of the Law Society of Upper Canada, 1955, at p. 1.
[65] The right to make full answer and defence is a trial right. There is no right to make full answer and defence at the preliminary inquiry. The right to make full answer and defence at trial, however, also entitles the accused to full and timely disclosure of the Crown's case. It does not entitle the accused to any particular procedure to achieve that end. Nor does it require a procedure that maximizes the ability of the accused to make full answer and defence: see R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 32-37.
[66] The right to confront witnesses and call evidence at a hearing prior to the trial proper, such as a preliminary inquiry, has never been an essential component of the criminal process in Canada. Most indictable offences are prosecuted and properly defended without a preliminary inquiry.
[67] The assessment of whether an accused has had an adequate opportunity to make full answer and defence, and specifically to adequately prepare for trial, is a fact-specific inquiry. It is not answered by determining whether a particular procedure was or was not available to an accused. The question is whether, in the circumstances, the accused, based on the procedures that were available to him, had an adequate opportunity to meet the charges and prepare the defence. Judges faced with arguments that an accused did not have that opportunity, have broad powers, both in their inherent jurisdiction as trial judges and under s. 24(1) of the Charter, to make remedial orders that will ensure that the accused has the opportunity to properly make full answer and defence. The elimination of the right to a preliminary inquiry does not affect the right to make full answer and defence. It does not in any way diminish the nature and substance of that right.
VI. Does the Doctrine of Stare Decisis Apply to Decisions Made on Prerogative Writ Applications?
[68] The appellants submit that, because the order of Thomas R.S.J. was given in a prerogative writ proceeding rather than on an appeal, Ontario Court of Justice judges are not bound by his ruling that the Ontario Court of Justice has no jurisdiction to conduct preliminary inquiries requested prior to September 19, 2019. As I understand this argument, the appellants contend that, because the scope of prerogative writ applications is tied to jurisdictional questions, as are the remedies available in those applications, any order made on a prerogative writ application cannot be binding on the Ontario Court of Justice, even if the jurisdictional determination involves a ruling on a pure question of law. On this analysis, a ruling on a question of law made in the context of a prerogative writ application is persuasive, but not binding on the Ontario Court of Justice. Exactly the same ruling made by the same judge, but in the context of an appeal in the Superior Court of Justice, is binding on the Ontario Court of Justice.
[69] Mr. Gold, but not Mr. Halfyard, goes a step further. He submits that, as a matter of logic, this court's decision in a prerogative writ matter is not binding on any other court in Ontario. Presumably, the same logic means that any decision of the Supreme Court of Canada in a prerogative writ matter is also not binding on any court in Canada.
[70] It may be that at some time in the past, the record available on a prerogative writ application and the record on an appeal were sufficiently different that one could properly distinguish, for stare decisis purposes, between rulings on questions of law made on prerogative writ applications and the same ruling made on appeal. I see no justification for that distinction now. This court and the Supreme Court of Canada have both accepted that stare decisis is applicable in the prerogative writ context: see R. v. Sansalone, 2013 ONCA 226, 303 O.A.C. 350, at para. 11; Bessette v. British Columbia (Attorney General), 2019 SCC 31, 376 C.C.C. (3d) 147, at para. 45.
[71] During argument, counsel submitted that Bessette is of limited value. He argued that the court merely accepted a concession made by the Attorney General. I do not read the reasons that narrowly. Bessette involved a prerogative writ application in respect of statutory provisions governing an individual's right to choose to have his trial in French or English. The superior court judge had declined to consider the merits of the application. In holding that the superior court judge should have considered the merits, the court pointed to the practical efficiencies of doing so. The court said, at para. 45:
Further, and crucially, the Attorney General acknowledged in oral submissions that a Supreme Court of British Columbia decision on the language of Offence Act trials would serve as binding precedent for the statutory courts hearing such trials in the province. Thus, had the Supreme Court judge decided the merits of Mr. Bessette's petition, his decision would have discouraged further interlocutory appeals on the same ground, rather than encouraging them. [Italics in original, underlining added; citations omitted.]
[72] I read the court as indicating that the Supreme Court of British Columbia should have heard the merits of the application because, in doing so, it could have determined the legal issue for the entire trial court and avoided the confusion and costs of repeated litigation. The court did not come to the conclusion that the superior court bound the trial court in the context of a prerogative writ application merely because the Attorney General conceded the point. Rather, the court observed that the Attorney General "acknowledged" the application of stare decisis in the context of prerogative writ applications. In other words, the Attorney General acknowledged what the court clearly regarded as the proper legal interpretation of the stare decisis doctrine as it relates to prerogative writ applications.
[73] More to the point, and setting aside what courts have said, there is no practical or policy reason for drawing the distinction urged by the appellants. The courts are hierarchical. The Superior Court of Justice is above the Ontario Court of Justice in the hierarchy. The doctrine of stare decisis compels courts who are subject to the supervisory authority of higher courts to apply the law as pronounced by those higher courts. That obligation exists to promote order, certainty and efficiency. The justification for the doctrine applies equally to decisions on questions of law made on prerogative writ applications as it does to decisions on questions of law made on appeals. The distinction urged by the appellants runs dead against the purposes of the doctrine of stare decisis.
[74] Several judges of the Ontario Court of Justice have held that they were bound by the decision of Thomas R.S.J.: see R. v. Dabrowski et al., 2019 ONCJ 677; R. v. Benoit (30 September 2019), Sudbury (Ct. J.); R. v. Clark et al., 2019 ONCJ 678; R. v. Dumlao, 2019 ONCJ 692; R. v. Rival (1 October 2019), Kitchener (Ct. J.); R. v. Iaboni et al., 2019 ONCJ 689; R. v. Rasidoff (2 October 2019), Barrie (Ct. J.); R. v. Mehring, 2019 ONCJ 691. They were correct to do so.
[75] The decision of Thomas R.S.J. on the jurisdictional issue presented to him involved the determination of a question of law. His determination of that question was binding on judges in the Ontario Court of Justice, just as this court's determination is binding on judges in the Superior Court of Justice and the Ontario Court of Justice.
VII. Conclusion
[76] I would allow the appeal, set aside the order of Thomas R.S.J., and remit the matters to the Ontario Court of Justice for preliminary inquiries in accordance with the appellants' elections and requests for preliminary inquiries made prior to September 19, 2019.
Released: November 18, 2019
"Doherty J.A."
"I agree David Watt J.A."
"I agree Gary T. Trotter J.A."
Footnotes
[1] R.S. is not a party to this appeal.
[2] The appellants reached out to the federal and provincial Crowns to inquire as to their positions on the retrospectivity of the preliminary inquiry amendments and included their responses as an appendix to their factum. According to this survey, all Attorneys General except those of Ontario and Manitoba take the position that preliminary inquiries requested prior to September 19, 2019, will proceed. The respondent does not challenge this information.
[3] The purposes of the amendments were to reduce the delays, costs, and negative impacts associated with preliminary inquiries: House of Commons Debates, 42nd Parl., 1st Sess., No. 300 (24 May 2018), at p. 19630 (Hon. Wilson-Raybould: "The fourth area of reforms is to increase court efficiencies by limiting the availability of preliminary inquiries…[to] help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice"); Senate Debates, 42nd Parl. 1st Sess., Vol. 150, No. 264 (19 February 2019), at pp. 7373-7376 (Hon. Murray Sinclair: "[The amendments] will free up court time and resources in provincial courts"). The temporal scope of the amendments was not discussed in either the House of Commons or the Senate, but was discussed in a Legislative Background document prepared by the Department of Justice following the passing of Bill C-75: Department of Justice Canada, Legislative Background: An Act to Amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament) (August 2019, modified September 6, 2019), at p. 24. According to a footnote in that document, preliminary inquiries requested before September 19, 2019, ought to proceed. As Thomas R.S.J. rightly found, this document, prepared by a Department of Justice employee after the enactment of Bill C-75 and without any attribution or supporting evidence, is of no assistance in interpreting the temporal scope of the amendments: Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2012 SCC 71, [2012] 3 S.C.R. 660, at paras. 97-99.
