Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210202 DOCKET: M52172 (C68874)

Fairburn A.C.J.O.

BETWEEN

Her Majesty the Queen Appellant

and

Jason Windebank Respondent

Counsel: Stacey D. Young and Jennifer Stanton, for the appellant Anil K. Kapoor and Dana C. Achtemichuk, for the respondent James Foy and Michelle Psutka, for the proposed intervener, the Criminal Lawyers’ Association of Ontario

Heard: February 1, 2021 via videoconference

Reasons for Decision

[1] The Crown appeal in R. v. Windebank (C68874) is scheduled to be heard on February 22, 2021. The respondent’s factum is due on February 10, 2021.

[2] This appeal raises an issue of statutory interpretation. Section 535 of the Criminal Code, R.S.C., 1985, c. C-46, sets out when an accused is entitled to a preliminary inquiry. Section 535 reads:

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 …. [Emphasis added.]

[3] The issue on appeal is whether s. 535 of the Criminal Code should be interpreted so as to entitle an accused to a preliminary inquiry in those circumstances where he or she is informed by the Crown, ahead of his or her election, that the Crown may pursue a dangerous offender finding in the face of a conviction. Owing to the potential indeterminate nature of the custodial term that could flow upon a dangerous offender finding, despite the fact that he is not “charged” with an offence that is punishable by 14 years of imprisonment or more, Mr. Windebank argues that he is entitled to a preliminary inquiry under s. 535 of the Criminal Code.

[4] This case rests on a narrow factual foundation. Mr. Windebank stands charged with one count of assault causing bodily harm contrary to s. 267(b) and one count of assault by choking contrary to s. 267(c) of the Criminal Code. When tried by indictment, these crimes are punishable by not more than ten years imprisonment. This brings squarely into focus whether an informal prosecutorial notice that a dangerous offender designation may be sought upon conviction, should entitle Mr. Windebank to a preliminary inquiry.

[5] Mr. Windebank has taken the position that s. 535 should be interpreted broadly, permitting him resort to a preliminary inquiry because of the potential jeopardy that he now knows he faces. He has found favour with that argument at two levels of court, first in the Ontario Court of Justice and then in response to the Crown’s attempt to seek relief by way of prerogative writs: 2020 ONCJ 567, [2020] O.J. No. 5284; 2020 ONSC 8107, [2020] O.J. No. 5771.

[6] The Criminal Lawyers’ Association of Ontario (“CLA”) seeks leave to intervene in this appeal that is only three weeks away. In the normal course, it is expected that intervener applications will be brought in a reasonable amount of time prior to the hearing of the appeal so that there is no disruption to the court or the parties. Indeed, the timing of any such application is a factor to be taken into account in determining whether a potential intervener should be granted that status.

[7] In this case, the scheduling of the appeal has been substantially accelerated in light of its subject matter. Therefore, I do not take the timing of this application into account in determining its proper disposition.

[8] The CLA wishes to make three arguments on appeal:

(a) If an accused faces a potential total sentence of 14 years or more, he or she should be entitled to a preliminary inquiry.

(b) Section 718.3(8) of the Criminal Code allows for the imposition of a term of imprisonment that is more than the maximum term of imprisonment provided for the offence in circumstances involving repeat intimate partner violence. In specific, s. 718.3(8)(c) allows for a maximum term of 10 years imprisonment to be increased to 14 years imprisonment in circumstances involving repetitive conduct as defined in that provision. The CLA argues that any accused who is given informal notice of the Crown’s intention to invoke s. 718.3(8)(c) at the sentencing stage of the proceedings, should a conviction flow, should also be entitled to a preliminary inquiry.

(c) “Except where impracticable”, the Crown should be required to provide the accused with pre-election notice as to whether a dangerous offender proceeding upon conviction will be pursued or an increased penalty will be requested pursuant to s. 718.3(8)(c) of the Criminal Code.

[9] The respondent on appeal consents to the CLA’s intervention on all proposed issues.

[10] The Crown consents to the CLA’s intervention on the first proposed argument: whether s. 535 of the Criminal Code extends to those situations where the accused faces a potential total sentence of 14 years or more. The Crown opposes the intervention on the other proposed arguments.

[11] In my view, the CLA’s first proposed position serves to add a useful and different perspective to the appeal, one that will not cause an injustice to the parties. The CLA’s first position is somewhat different from Mr. Windebank’s, in the sense that the CLA will argue that when determining whether the accused is “charged” with an offence that is punishable by 14 years or more, that calculation must be approached from the perspective of totality. To use Mr. Windebank’s situation as an example, the CLA’s position is that, because he is charged with two offences that are each punishable by up to 10 years, he is theoretically susceptible to a total sentence of 20 years imprisonment. Therefore, based upon the plain meaning of the provision, and consistent with its spirit, the CLA will argue that s. 535 of the Criminal Code affords a preliminary inquiry upon request in circumstances such as the one that Mr. Windebank finds himself in.

[12] The CLA’s second position is more problematic. The CLA has focussed in on s. 718.3(8)(c) of the Criminal Code. That provision reads as follows:

718.3(8) If an accused is convicted of an indictable offence in the commission of which violence was used, threatened or attempted against an intimate partner and the accused has been previously convicted of an offence in the commission of which violence was used, threatened or attempted against an intimate partner, the court may impose a term of imprisonment that is more than the maximum term of imprisonment provided for that offence, but not more than …

(c) 14 years, if the maximum term of imprisonment for the offence is 10 years or more but less than 14 years ….

[13] In their written materials, the CLA has argued that, because an accused “may face a sentence higher than the statutory maximum after conviction for the offence for which they are charged” in circumstances of consecutive convictions for intimate partner related crimes, the “accused should also be entitled to a preliminary inquiry”.

[14] To the extent that the CLA is asking this court to rule that the potential applicability of s. 718.3(8)(c) of the Criminal Code, at a potential sentencing stage of a proceedings, entitles an accused to a preliminary inquiry, the CLA is raising a new issue that has not been decided in the courts of first and second instance. This statutory provision was not even addressed in either of the decisions that form the backdrop for this appeal. To allow an intervener at this stage to request this court to make a definitive statement about the operation of s. 718.3(8)(c), such that it entitles an accused to a preliminary inquiry, is entirely outside the scope of this appeal.

[15] This case is about the interpretation of s. 535 of the Criminal Code in the face of an informal notice about potential dangerous offender proceedings that may occur following a potential conviction. While there is nothing to preclude the CLA from pointing to s. 718.3(8)(c) as an interpretative aid in advancing their argument as to the scope of s. 535, it would well exceed the bounds of this appeal to request this court to embark upon an exercise in determining whether the potential applicability of s. 718.3(8)(c) is a definitive gateway to a preliminary inquiry. In my view, to permit the CLA to advance this argument, would introduce a completely new issue into the appeal.

[16] This is equally true when it comes to the final proposed argument made by the CLA: the timing of Crown notice. The CLA contends that, except in “exceptional” cases, the Crown should be required to provide notice, prior to the accused’s election, of its intention to pursue a dangerous offender application or the application of s. 718.3(8)(c) of the Criminal Code. Again, to permit the CLA to raise this argument on appeal would inject a significant new and previously untested issue into the appeal.

[17] Prior to his election, Mr. Windebank was given informal notice of the Crown’s intention to seek a s. 752.1 remand for an assessment should he be convicted. That assessment acts as a precursor to bringing a dangerous or long-term offender application. The Crown was under no statutory obligation to provide that notice in this case. Indeed, Part XXIV of the Criminal Code only requires seven days notice before an application is brought: s. 754(1)(b). Of course, proceedings under Part XXIV of the Code typically occur post-conviction, a long time following the election having been made.

[18] The CLA advances a similar argument with respect to s. 718.3(8)(c) of the Criminal Code. The CLA wishes to advance the argument that there should be a near-mandatory pre-election notice obligation placed on the Crown in those circumstances where, in the event that the accused is convicted, the Crown intends to resort to s. 718.3(8)(c) of the Criminal Code at the sentencing proceeding.

[19] To allow the CLA to advance this position would inject a significant issue into the appeal. In my view, not only would it result in prejudice to the parties at this late stage, but it could result in prejudice to the administration of justice.

[20] As before, s. 754(1)(b) of the Criminal Code does not require pre-election notice. If this argument were permitted, not only would it raise a new issue, but it would serve to contradict the statutory notice provision in the context of dangerous offender proceedings. The argument raised by the CLA raises serious questions about the constitutionality of that notice provision, ones that could only be properly explored in the court of first instance, permitting the parties an opportunity to develop an evidentiary record addressing the issue. This court is without the benefit of that record or the considered views of the jurists from whom this appeal is taken.

[21] This case is about the interpretation of s. 535 of the Criminal Code. The record reflects litigation rooted in a discretionary notice having been given. To allow an intervener at this stage to argue that this court should create a requirement that notice be given in all but exceptional cases, would not only serve as an implicit attack on the statutory provision(s) involving post-election notice, [1] but would also risk deciding a critical issue without a proper factual record, including reference to the broad implications that could result form any such approach.

[22] Respectfully, the latter two proposed arguments advanced by the CLA are not a simple matter of bringing a unique perspective to bear on the appeal. The CLA has historically provided this court with important assistance, including in matters involving the new legislation relating to preliminary inquiries, 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: R. v. R.S., 2019 ONCA 906, [2019] O.J. No. 5773. The CLA’s intervention in this appeal is equally welcome. That intervention cannot, though, become a platform to add issues which have potentially far-reaching implications, upon which there has been no decision, and that are without a factual record to allow for a proper adjudication: Bedford v. Canada (Attorney General), 2011 ONCA 209, [2011] O.J. No. 1111, at paras. 9-10.

[23] Accordingly, the CLA’s intervention is granted on the following terms:

(a) The CLA is granted leave to intervene on the basis set out in these reasons;

(b) The CLA’s submissions will not repeat the submissions of the respondent, Mr. Windebank;

(c) The CLA will file a factum no later than February 10, 2021 of no more than 10 pages in length;

(d) The CLA will be granted 15 minutes to make oral argument at the hearing of the appeal; and

(e) In response to the CLA’s factum, the parties may each file a factum of no more than 5 pages in length, to be served and filed no later than February 17, 2021.

“Fairburn A.C.J.O.”

[1] See also: s. 727(1) of the Criminal Code.