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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20210630 Docket: C69323

Miller, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

S.S. Appellant

Counsel: Adam Weisberg and Samiyyah Ganga, for the appellant Rebecca Law, for the respondent

Heard: June 16, 2021 by video conference

On appeal from the order of Justice Antonio Skarica of the Superior Court of Justice, dated April 15, 2021 with reasons at 2021 ONSC 2995, allowing an application for certiorari with mandamus and prohibition in aid, from the order of Justice Gethin B. Edward of the Ontario Court of Justice dated February 12, 2021.

Nordheimer J.A.:

[1] S.S. appeals from the order of the review judge, who allowed an application for certiorari from the order of the application judge, who found that the appellant was entitled to a preliminary inquiry pursuant to s. 535 of the Criminal Code, R.S.C. 1985, c. C-46. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. I now provide those reasons.

Background

[2] The appellant is charged with one count of sexual assault on a person under the age of 16 contrary to s. 271 of the Criminal Code and one count of sexual interference contrary to s. 151. The offences are alleged to have occurred between January 1, 2009 and December 31, 2010.

[3] At the time that the offences were alleged to have occurred, the maximum penalty for both offences was 10 years. On July 17, 2015, the maximum penalty for the offence of sexual assault on a person under the age of 16 was increased to 14 years, if the Crown proceeds by way of indictment, which it had in this case. The maximum penalty for the offence of sexual interference was also increased to 14 years.

[4] On December 11, 2020, the appellant elected to be tried by a judge and jury in the Superior Court. He requested a preliminary inquiry. The Crown sought a ruling that the appellant was not entitled to a preliminary inquiry because, at the time the offences were alleged to have occurred, the maximum penalty for the offences was 10 years.

[5] The issue arises because, on September 19, 2019, s. 535 of the Criminal Code was amended to restrict the right to a preliminary inquiry to persons charged with an indictable offence that is punishable by imprisonment for 14 years or more. Section 535 now 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, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

The decisions below

Ontario Court of Justice

[6] The respondent’s application was heard before a judge of the Ontario Court of Justice. The application judge noted that, in the circumstances of this case, the appellant’s maximum jeopardy was 10 years because s. 11(i) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right “if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.”

[7] The application judge then said that, in his view, the Criminal Code must, wherever possible, provide certainty. He said:

In summary, a court, and more importantly, the accused should be able to rely on the plain wording of the [s]tatute as opposed to then engaging in some exercise to determine its applicability to the unique circumstances of the accused, or the potential ramifications of the Charter . [Italics added.]

[8] The application judge concluded that as the offences currently provide for a penalty of 14 years, the appellant was entitled to a preliminary inquiry.

Superior Court of Justice

[9] The respondent sought a review of the application judge’s decision. That review was heard by a judge of the Superior Court of Justice. The review judge allowed the application for review. After reviewing the amendments to the Criminal Code, and various decisions that have since addressed the issue of entitlement to a preliminary inquiry, the review judge concluded that the appellant was not entitled to a preliminary inquiry because the maximum penalty he faced was 10 years.

[10] The review judge also addressed another issue raised by the appellant. On the review, the appellant said that he had waived his right under s. 11(i) of the Charter and was, consequently, facing a penalty of 14 years.

[11] The review judge questioned whether an accused person could waive their right under s. 11(i). He noted that he had not been provided with any authority that would authorize that procedure. The review judge reviewed and relied on s. 43 of the Interpretation Act, R.S.C. 1985, c. I-21 which provides, in s. 43 (d), that the repeal of an enactment does not “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”. The review judge also relied on the decision in R. v. Stengel, 2021 ONSC 1413, which had dealt with the same issue. The judge in that case had concluded, relying in part on s. 43, that the accused person was not entitled to a preliminary inquiry.

[12] In the end result, the review judge concluded that the appellant could not use his purported waiver of s. 11 (i) as a mechanism to obtain a preliminary inquiry. The review judge said: “I would not give effect to this questionable procedure that has, as I have determined, no precedent.”

Analysis

[13] It is not necessary to once again review the history of the legislative changes that have been made to s. 535 respecting the right to a preliminary inquiry. They have been reviewed in a number of decisions, including recently in R. v. Windebank, 2021 ONCA 157, 154 O.R. (3d) 573, leave to appeal requested, [2021] S.C.C.A. No. 122.

[14] It is sufficient to say that limiting the right to preliminary inquiries was intended to free up court time and resources in provincial courts, while, at the same time, reducing the burden on some witnesses and victims by preventing them from having to testify twice in cases where there was, until then, an entitlement to a preliminary inquiry: see Windebank, at para. 19.

[15] The route that Parliament took to limit preliminary inquiries focussed on restricting them to the most serious offences. It chose to do so by limiting preliminary inquiries to persons who are charged with an offence “that is punishable by 14 years or more of imprisonment”. Parliament expressly coupled the entitlement to a preliminary inquiry to the maximum sentence for the offence charged.

[16] The appellant is not facing a punishment of 14 years or more in this case. In reaching that conclusion, I need not decide whether an accused person can waive their rights under s. 11(i) of the Charter. Even if they can, s. 43 (d) of the Interpretation Act would preclude a court from imposing a sentence of more than 10 years. This result is reinforced by s. 43(e), which provides that a legislative change does not affect any legal proceeding “in respect of any punishment, penalty or forfeiture referred to in paragraph (d)”.

[17] My conclusion in this regard is also consistent with the conclusion reached in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. In that case, the issue was the immigration consequences of a person convicted of an offence where the maximum penalty was, at the time of the commission of the offence, seven years. However, before conviction, the penalty was raised to 14 years with the result that a conviction for the offence would fall within the definition of serious criminality for immigration purposes. The immigration authorities began proceedings to remove the accused from Canada on the basis that he had been convicted of an offence involving “serious criminality” within the meaning of s. 36(1) (a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The accused sought judicial review of the decision to refer his case for an admissibility hearing under the IRPA. In the end result, the Supreme Court of Canada found that the immigration authorities could not rely on the serious criminality provision in part because the maximum sentence for the accused’s offence at the time he committed it was seven years. In reaching that conclusion, Côté J. said, at para. 35:

Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual reading of s. 36(1)(a) [of the IRPA ] 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].

[18] The appellant attempts to counter this interpretation by submitting that it looks at the circumstances of the offender rather than at the offence itself and thus offends the point made in Windebank, at para. 36: “In my view, the flaw, both in the respondent’s argument and in the decisions below, is that they confuse the seriousness of the offence with the seriousness of the offender, that is, their individual circumstances.”

[19] I do not agree. The situation here and the one in Windebank are not comparable. Here we are dealing with the maximum punishment that was stipulated for the offence at the time that the offence is said to have been committed. Thus, the issue in this case does not involve the personal characteristics of the appellant, in the sense that those personal characteristics might drive the appropriate sentence, such as the possible application of the dangerous offender provisions. Rather, it involves the penalty that can be imposed on the appellant, and anyone else in the same situation, arising from the timing of the offence, as the key for determining the seriousness of the offence for the purpose of s. 535. The personal characteristics of the appellant are not engaged in this analysis. The only connection to the appellant in his personal capacity is that it is the timing of his alleged actions leading to the offence that are of importance.

[20] Further on this point, in Tran, the court supported its conclusion that the timing of the offence determined the maximum sentence for the purpose of s. 36(1) (a) of the IRPA, in part, based on the presumption against retrospectivity, which applies independent of s. 11(i) of the Charter: at para 43. In words that are apt to the situation here, Côté J. said, at para. 43: “The purpose of this presumption is to protect acquired rights and to prevent a change in the law from ‘look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction’ (Driedger (1983), at p. 186).”

Conclusion

[21] It is for these reasons that the appeal was dismissed.

Released: June 30, 2021 “B.M.” “I.V.B. Nordheimer J.A.” “I agree. B.W. Miller J.A.” “I agree. David M. Paciocco J.A.”