Her Majesty the Queen v. R.S.

[Indexed as: R. v. S. (R.)]

Ontario Reports Ontario Court of Justice Marion J. September 11, 2019

147 O.R. (3d) 755 | 2019 ONCJ 629

Case Summary

Criminal law — Preliminary inquiry — Amendment to s. 535 of Criminal Code which eliminates availability of preliminary inquiry where accused faces maximum punishment of less than 14 years' imprisonment not applying retrospectively as it affects jurisdiction of court — Court having jurisdiction to conduct preliminary inquiry in cases where request for preliminary inquiry was made before amendment came into force — Criminal Code, R.S.C. 1985, c. C-46, s. 535.

Section 535 of the Criminal Code was amended to eliminate the availability of a preliminary inquiry where the accused faces a maximum punishment of less than 14 years' imprisonment. The amendment was to come into force on September 19, 2019. The amending legislation did not contain a transitional provision indicating Parliament's intention as to whether the amendment operated with immediate effect in cases presently before the court. The Crown brought an application with respect to five matters which were scheduled for a preliminary inquiry in September 2019 seeking to vacate the dates set for the preliminary inquiries on the basis that the amendment applies retrospectively and deprives the court of jurisdiction to conduct a preliminary inquiry on or after September 19, 2019.

Held, the application should be dismissed.

The amendment of s. 535 does not affect a vested or substantive right. However, it does affect the jurisdiction of the court. A statute that modifies a court's jurisdiction is not generally applicable to pending cases because jurisdiction is not a procedural matter. Therefore, the amendment of s. 535 could not be applied retrospectively. In any event, any presumption of retrospectivity was rebutted as Parliament could not have intended such a consequence. Pursuant to s. 44(d) of the Interpretation Act, R.S.C. 1985, c. I-21, s. 535 as amended cannot be adapted to proceedings the Court of Justice was required to conduct under the old version of s. 535 once an election for a preliminary inquiry had been made. Therefore, s. 535 does not apply to transitional cases where a request for a preliminary inquiry was made prior to September 19, 2019. Subsections 43(b) and (e) of the Interpretation Act permit the legal proceedings instituted by the accused's request for a preliminary inquiry to be continued as if there had been no repeal. Section 536(4) of the Code survives the amending of s. 535 for transitional cases.

Authorities Cited

Cases referred to:

R. v. Ali, [1980] 1 S.C.R. 221; R. v. Antoine, 41 O.R. (2d) 607; R. v. Dineley, [2012] 3 S.C.R. 272, 2012 SCC 58; R. v. Hafeez, 27 O.R. (3d) 799; R. v. Potma, 41 O.R. (2d) 43; Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., [1971] S.C.R. 1038; R. v. Bengy, 2015 ONCA 397; R. v. Danchella; R. v. Ertel; R. v. Graham; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. L. (S.J.), 2009 SCC 14, [2009] 1 S.C.R. 426; R. v. Lafferty, 2017 NWTTC 3; R. v. Loos, [1971] S.C.R. 165; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804; R. v. Wildman, [1984] 2 S.C.R. 311; Bolduc v. Quebec (Attorney General), [1982] 1 S.C.R. 573; Frank v. Canada (Attorney General), 2019 SCC 1; N. (J.) v. Durham (Regional Municipality) Police Service, 2012 ONCA 428; Peel (Regional Municipality) Police v. Ontario (Director, Special Investigations Unit), 2012 ONCA 292, 110 O.R. (3d) 536; Rothgiesser v. Rothgiesser, 46 O.R. (3d) 577.

Statutes Referred To

Criminal Code, R.S.C. 1985, c. C-46, ss. 237, 535 [as am.], 536 [as am.], (4) [as am.], (5), 548(1), 549 [as am.], 561 [as am.], 565 [as am.], 568 [as am.], 577 [as am.]

Interpretation Act, R.S.C. 1985, c. I-21 [as am.], ss. 34(1), 43, (b), (e), 44, (d)

Supreme Court Act, R.S.C. 1985, c. S-26, s. 39 [as am.]

Canadian Charter of Rights and Freedoms, s. 24(1)

Application

APPLICATION to quash the dates set for the preliminary inquiries and for other relief.

E. Costaris, for Crown.

D. Scott, for accused R.S.

Decision

[1] Introduction

Effective September 19, 2019, s. 535 of the Criminal Code, R.S.C. 1985, c. C-46 has been amended to eliminate the availability of a preliminary inquiry in any case where the accused faces a maximum punishment of less than 14 years imprisonment on each count in the information.

[2] The Amended Section

Section 535 of the Criminal Code, as newly amended, says:

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.

The underlined words are those added by the new amendment.

[3] Commencement and Corresponding Amendments

Section 536 of the Criminal Code which provides for an accused election as to mode of trial and request for a preliminary inquiry has been amended to correspond with s. 535. The amendment to ss. 535 and 536 come into force on September 19, 2019.

[4] Absence of Transitional Provision

The amending legislation does not contain a transitional provision indicating Parliament's intention as to whether the amended section operates with immediate effect in cases presently before the court. Furthermore, there is no mention in the preamble which is of any assistance in this regard.

[5] The Crown's Application

The provincial Crown has filed a Notice of Application with respect to five matters which are scheduled for a preliminary inquiry in September. This is the first preliminary inquiry in this jurisdiction affected by the amendment to s. 535. It is scheduled to be heard on September 19, 2019. There are an additional 20 to 25 preliminary inquiries scheduled which will be affected by the amending legislation. There are, as well, a number of matters where counsel are waiting for a decision to be made prior to taking the next step in the litigation. On occasion, the Crown since asserting its position as to the temporal application of the amending legislation, has deferred making its election and taken the position that an accused election and request for a preliminary inquiry cannot be made in view of the loss of jurisdiction effective September 19, 2019.

[6] Crown's Argument

The Crown argues that this amendment is purely procedural in nature, and based on the principles of statutory interpretation and the Interpretation Act, R.S.C. 1985, c. I-21, the amendment operates with "immediate effect -- that is retrospectively". It is submitted that, on or after September 19, 2019, this court will not have jurisdiction to conduct a preliminary inquiry in any indictable matters carrying a maximum punishment of imprisonment of less than 14 years, including those commenced prior to September 19, 2019. It is further argued that this will apply even when an accused has elected trial in the Superior Court and requested a preliminary inquiry notwithstanding that a hearing date may have been set. A justice would also lack the jurisdiction to complete an inquiry which has commenced before September 19 but not been concluded. Where an accused is charged with an indictable offence that is punishable by 14 years or more of imprisonment, this court's jurisdiction is unaffected.

[7] Procedural Approach

In order to provide for an orderly transition and prevent any loss of judicial time and resources, I have advised counsel to make written submissions within a protracted period of time and I have chosen not to hear oral argument. The judicial determination to be made, is strictly on a point of law, thus facilitating this approach. It is imperative that all those affected by the issues raised be provided without delay some clarity, as hearing dates are imminent.

[8] Timing of Ruling

I have opted to give my ruling in advance of September 19, 2019 in order to assuage the concerns of those involved in the scheduled hearings. It is unfair to witnesses, counsel and an accused to be advised on the day of an anticipated hearing that the case will not proceed. In this matter, the accused elected to have a trial by a superior court judge and requested a preliminary inquiry on August 23, 2018. The date set for that hearing is September 19, 2019.

[9] Court's Responsibility

The Crown submits, and I agree, that it is the responsibility of this court to interpret its own statutory powers and the limits thereof.

[10] Judicial Authority

I am the judge who will be presiding at this preliminary hearing. The amending Act has been given royal assent. It is now law but the amendments relating to preliminary inquiries will not come into force until September 19. This ruling is given in advance to ensure the least disruption to the administration of justice. There is no doubt that the amendments will come into effect on September 19 and my view as to the temporal application of s. 535 of the Criminal Code will not differ, as it is purely based on a matter of law.

[11] Jurisdictional Determination

A judge before whom a preliminary inquiry is to be held, has the authority to determine jurisdictional issues and a determination can be made without hearing any evidence.

[12] Section 536(5) of the Criminal Code

Section 536(5) of the Criminal Code contemplates that different elements of a preliminary inquiry may be conducted by different justices. It reads as follows:

536(5) Where a justice before whom a preliminary inquiry is being or is to be held has not commenced to take evidence, any justice having jurisdiction in the province where the offence with which the accused is charged is alleged to have been committed has jurisdiction for the purposes of subsection (4).

[13] Commencement of Preliminary Inquiry

I am of the view that, unless a judge hears evidence, he/she is not seized with conducting the preliminary inquiry. A judge may commence an inquiry only to rule on whether the court has jurisdiction to conduct the inquiry without having heard evidence and a different judge may subsequently conduct the inquiry.

Parliament's Intention

[14] Parliamentary Discourse

The discourse during parliamentary debates indicates that the amendments limiting the availability of preliminary inquiries were intended to help unclog the courts and reduce the burden on witnesses and victims from having to testify twice, once at a preliminary inquiry and a second time at a trial. Some inspiration can be assumed to have been taken from the Supreme Court of Canada's suggestion in R. v. Jordan, that "Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations".

[15] Statement of Bill C-75 Sponsor

An excerpt from the statement of the sponsor of Bill C-75 in the Senate outlines that the impetus for reform was delay in the criminal justice system. On second reading of Bill C-75, he stated as follows:

Senators, as many of you know, delays significantly impact all those involved in the criminal justice system, including accused persons, victims, witnesses and all those working within the system. Lengthy criminal trials negatively impact an accused person's right to be tried within a reasonable time under section 11(b) of the Charter of Rights and Freedoms and may result in stays of proceedings, which compound victimization, undermine public confidence in the justice system and may have impact on public safety.

The Supreme Court of Canada's recent decisions in Jordan in 2016 and Cody in 2017 have crystallized the seriousness of the issue and intensified pressure to reduce delays in the criminal justice system.

Moreover, the in-depth study of the Standing Senate Committee on Legal and Constitutional Affairs and their July 2017 report entitled Delaying Justice is Denying Justice concluded that the causes of delay are wide and varied and issued a call to the legal community, including judges and federal, provincial and territorial Ministers of Justice and Attorneys General to "take decisive and immediate steps to address the causes of delays and to modernize our justice system." It also called upon the Minister of Justice to show leadership in taking the necessary reformative action.

. . . 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. Senate Debates, vol. 150 issue 264 (February 19, 2019) at pp. 7373-76, time 15:55 -- 16:10 (Hon. Murray Sinclair).

(Emphasis added)

[16] Weight of Legislative Statements

I am conscious of the limited reliability and weight to be given to speeches and statements made by legislators as a means of identifying legislative objective.

[17] Judicial Initiatives

Many initiatives were initiated in the Ontario Court of Justice prior to the decision in Jordan to reduce time to trial. It is a constant point of emphasis and trial management strategies have been adopted to address this issue. I can quite reasonably conclude that one of the primary objectives of the legislation was to reduce delay to trial.

Transitional Law

[18] State of Transitional Law

"Currently transitional law in Canada is in a state of confusion. This area of law has always been difficult, in Canada and elsewhere. It is difficult because although legislation starts and stops operating at a precise, readily identifiable moment, the facts to which it applies and their operation in time are often not readily identifiable. This fundamental difficulty is not easy to overcome. In recent years, attempts to do so in Canada have led to such complex classifications and subtle distinctions that transitional law has become something of a morass".

[19] Terminology Inconsistency

The use of terminology has not been consistent in Canadian courts. "As a result, confusion over the meaning of 'retrospective' in a given context was -- and continues to be -- a major problem in Canadian transitional law." Historically, in common law jurisdictions the terms "retroactive" and "retrospective" were both used to describe legislation that changes the past effects of past situations.

[20] Distinction Between Retrospective and Immediate Application

There is also some lingering confusion as to whether retrospective applications and immediate applications are to be distinguished.

[21] Scope of This Decision

The disentanglement of the terms "retroactive", "retrospective" and "immediate" as used in the common law is beyond the scope of this decision.

[22] Definitions Adopted

For the sake of clarity, I have adopted the following definitions:

• Retroactive: New legislation is applied to change the past legal effect of past events or circumstances.
• Retrospective: New legislation is applied so as to change for the future the ongoing legal effect of past events or circumstances.
• Non-Retrospective (or prospective): New legislation is applied as to change the future legal effect of ongoing events or circumstances.

[23] Crown's Requested Remedies

Fortunately, the nature of the Crown's application is clearly set out and indicates the remedies sought which are as follows:

(51) If the issue is decided prior to September 19, 2019, the Attorney General requests that:

a. Dates set for a preliminary inquiry on or after September 19 should be vacated;

b. If the accused does not consent to be committed for trial and does not re-elect to be tried in this court, the matter should be adjourned to return to this court on or after September 19. On that date, the accused should be remanded to the Superior Court of Justice pursuant to section 536(4.3) to set a date for trial.

(52) If the issue is decided on or after September 19, the Attorney General requests that:

a. Dates set for a preliminary inquiry should be vacated;

b. If the accused does not re-elect to be tried in this court, the accused should be remanded to the Superior Court of Justice pursuant to section 536(4.3) to set a date for trial.

Issues

[24] Issues Raised

There are a number of issues raised by the Crown's application as to the temporal application of the amending legislation.

(1) Does the amendment to s. 535 affect a procedural or a vested or substantive right?

(2) Does the amendment to s. 535 affect the jurisdiction of the Ontario Court of Justice?

(3) Absent transitional provisions, does the Ontario Court of Justice retain the jurisdiction to proceed with preliminary inquiries on and after September 19, 2019 in cases where an accused is charged with an indictable offence that is punishable by less than 14 years imprisonment?

(4) How are matters, which were commenced prior to September 19, 2019, to be dealt with in light of my decision?

The Nature of Preliminary Inquiries

[25] Nature and Purpose of Preliminary Inquiries

I agree with the following submissions made by the Crown as to the nature and purpose of preliminary inquiries.

(a) A preliminary inquiry is a purely statutory procedure. The jurisdiction of any statutory body, like the provincial court, cannot be conferred by consent or agreement. A preliminary inquiry justice has only that jurisdiction and those powers conferred expressly by the Criminal Code or emanating by necessary implication therefrom;

(b) The law is clear that there is no constitutional right to have a preliminary inquiry;

(c) Nor is there an absolute statutory right to preliminary inquiry (under either the prior or the as-amended version of s. 535), even for an accused who had met the conditions precedent for having a preliminary inquiry. It was and is open to the Attorney General to prefer a direct indictment under s. 577, bypassing a preliminary inquiry even if the accused has requested one, and even halting a preliminary inquiry that is underway.

(d) The statutory purpose of a preliminary inquiry is its screening function. A preliminary inquiry is a means through which to determine whether the prosecution has sufficient evidence to take the accused to trial;

(e) A preliminary inquiry is not the forum in which the guilt of the accused or the appropriate sanction is determined. It is not a forum in which Charter remedies can be obtained;

(f) It has been recognized that in practice, a preliminary inquiry also has a limited discovery function, permitting the accused to learn some of the prosecution's evidence. However, the Supreme Court of Canada has been clear that this discovery function is merely incidental to the screening function. The prosecution has no obligation to call the entirety of its case at a preliminary inquiry, and rarely does. Moreover, the value of a preliminary inquiry for discovery purposes was greatly diminished by the enactment in s. 7 of the Charter of a constitutional right to disclosure, independent of the preliminary inquiry procedure.

[26] Significance of Preliminary Inquiries

The preliminary inquiry has not been eliminated by legislators evidently because it does have some importance in the prosecution of offences. The significance of certain aspects of a preliminary inquiry are, on occasion, understated:

(a) the discovery process often permits the identification of items of disclosure which were unknown to both Crown and defence counsel such as third party records. Although it unlikely would cause an adjournment at the inquiry stage, it would likely be disruptive at the trial stage. In addition, it provides an opportunity for counsel to ask questions and identify any Canadian Charter of Rights and Freedoms issues;

(b) the inquiry usually features the testimony of the most critical witnesses to the Crown's case. The complainant invariably testifies permitting a realistic assessment by both counsel as to the strength of their position at trial. This is usually of major significance in cases where credibility is an issue. If it is requested and granted, an "exit pre-trial" can be held to canvass the presiding justice's opinion; and

(c) the fundamental purpose of the preliminary inquiry is "to 'protect the accused from a needless and indeed improper exposure to a public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process'". This consideration is of great significance to an accused in view of the cost of extended litigation.

Principles and Presumptions

[27] Presumption Against Retrospectivity

There is a presumption against retrospectivity of legislation. The rationale for that presumption is provided in Sullivan on the Construction of Statutes.

Perhaps the most fundamental tenet of the rule of law is that those who are governed by the law must have knowledge of its rules before acting; otherwise, any compliance with the law on their part is purely accidental. Citizens must have knowledge of the law before acting so that they can adjust their conduct to avoid undesirable consequences and secure desirable ones. To ensure adequate notice, the rules enacted by the legislature must be published and adequately publicized -- ideally before commencement but at the latest upon commencement . . . Citizens cannot comply with, rely on or take advantage of law unless they know what it is before deciding how they will behave.

[28] Presumptions Against Retrospectivity and Retroactivity

There is also a presumption against retroactivity of legislation. Both presumptions, against retrospectivity and retroactivity, are applied where the legislation affects vested or substantive rights.

[29] Presumption of Retrospectivity for Procedural Legislation

There is also a presumption that procedural legislation is applied retrospectively.

[30] Presumed Retrospectivity of Procedural Law

The presumed retrospectivity of procedural law was summarized by the Ontario Court of Appeal in Peel Police v. Ontario (Special Investigations Unit) per Cronk J.A. as follows:

At common law, procedural legislation is presumed to apply immediately, to both pending and future facts. As [Sullivan on the Construction of Statutes] discusses . . . this "presumption of immediate application" has been characterized, variously, in these terms: (1) there is no vested right in procedure; (2) the effect of a procedural change is deemed beneficial for all; (3) procedural provisions are an exception to the presumption against retrospectivity; and (4) procedural provisions are ordinarily intended to have an immediate effect.

Fairness

[31] Principle of Fairness in Transitional Law

One of the principles underlying transitional law is fairness. "It is unfair to establish rules, invite people to rely on them, then change them mid-stream especially if the change results in negative consequences".

[32] Defence Counsel's Submission

Defence counsel submits that to deny an accused, who has made an election as to mode of trial and requested a preliminary inquiry, the right to that inquiry is unjust. The language in s. 536 is mandatory. Upon request, the court must conduct a preliminary inquiry. Unless an accused consents to committal, re-elects, or the Attorney General prefers an indictment, the accused is entitled to a determination of the sufficiency of the evidence before being committed to face a public trial.

[33] Court's Representations

The representations made by the court to those who have made their election and requested their preliminary inquiry was that a preliminary inquiry would be held upon request. There is no discretion to refuse to conduct a hearing. In this case, as in many other cases, the hearing date has been scheduled.

[34] Incomplete Proceedings

The situation is even more untenable for those who have commenced their hearing but are scheduled for continuation after September 19, 2019. It is argued that the justice will have no jurisdiction to continue and order committal or a discharge. In these cases, there will be an incomplete record of proceedings and substantial judicial resources will have been squandered.

[35] Commencement of Preliminary Inquiry

There is authority for the proposition that a preliminary inquiry has commenced upon the request being made.

[36] Unfairness of Mid-Stream Change

To change the procedure and deny access to a judicial determination of the sufficiency of evidence mid-stream is patently unfair.

Interpretation

[37] Rules of Interpretation

In R. v. Dineley, the Supreme Court of Canada listed several rules of interpretation:

• legislation with retrospective effect "must be exceptional";
• where legislative provisions "affect either vested or substantive rights", retrospectivity has been found to be undesirable;
• new legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislated intent that it is to apply retrospectively;
• procedural legislation designed to govern only the manner in which rights are asserted or enforced is presumed to affect both pending and future cases;
• only purely procedural provisions will have retrospective effect. If procedural provisions affect substantive rights they do not apply immediately; and
• where an amendment affects constitutional rights, the law should not apply retrospectively, because constitutional rights are "necessarily substantive".

[38] Relevant Sections of the Interpretation Act

The following sections of the Interpretation Act are also relevant.

[39] Section 43 of the Interpretation Act

Section 43 of the Interpretation Act preserves substantive rights that were accrued prior to an enactment:

43. Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

(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) 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.

[40] Section 44 of the Interpretation Act

The presumption of retrospectivity of procedural law is reflected in s. 44 of the Interpretation Act:

Repeal and Substitution

44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,

(a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person;

(b) every bond and security given by a person appointed under the former enactment remains in force, and all books, papers, forms and things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with the new enactment;

(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment,

(ii) in the enforcement of rights, existing or accruing under the former enactment, and

(iii) in a proceeding in relation to matters that have happened before the repeal;

(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;

(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;

(g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; and

(h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing, be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read as unrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment.

Is the Amendment to s. 535 Purely Procedural or Does It Affect a Vested or Substantive Right?

[41] Key Task in Determining Temporal Application

The key task in determining the temporal application of amendments lies not in labelling the provisions "procedural" or "substantive", but in discerning whether they affect substantive rights.

[42] Definition of Procedural Law

Sullivan on the Construction of Statutes provides this definition of procedural law:

§25.108 Procedural law is about the conduct of actions. It indicates how actions will be prosecuted, how proof will be made and how rights will be enforced in the context of a legal proceeding.

[43] Determining Whether a Provision is Procedural

Further direction is provided by Sullivan as to how to make the necessary distinction:

§25.113 Whether a provision is procedural must be determined in the circumstances of each case. A provision may be procedural as applied to one set of facts but substantive as applied to another. To be considered procedural in the circumstances of a case, a provision must be exclusively procedural; that is, its application to the facts in question must not interfere with any substantive rights or liabilities of the parties or produce other unjust results. This point is emphasized repeatedly in the cases.

§25.116 In determining whether a provision is "purely" procedural, the courts look to the substance of the provision and its practical impact on the parties. The important thing is not the label, but the effect. If the effect of a provision is to alter the legal significance of past facts, it is not purely procedural.

[44] General Rules from Case Law

There are numerous examples submitted by counsel to have been found to be purely procedural or substantive. I have taken note of the numerous examples in the jurisprudence. I am content that the general rules which emanate from the case law are accurately reflected in the dissenting reasons of Cromwell J. in Dineley:

From this review of the case law, we may conclude:

1. Substantive provisions "alter the character or legal effect of any transaction" (Howard Smith, at p. 420). This includes taking away a previously available defence (Upper Canada College; Howard Smith; Angus). The operation of such provisions is not affected by the fact that there is litigation in progress (Wildman).

2. Procedural provisions "gover[n] the methods by which facts are proven and legal consequences are established" (Sullivan, at p. 698). Their operation is generally dependent on the existence of litigation.

3. Rules of evidence are considered to be procedural in nature unless in effect they impact on substantive rights: Application under s.83.28 of the Criminal Code (Re), at para. 57.

4. Rules of evidence are concerned with "the establishment [or disproof] of . . . facts by proper legal means": Howard Smith, at p. 419, citing Phipson on Evidence, at p.1.

5. Provisions which make evidence admissible that was previously inadmissible or change the conditions under which evidence may be admitted are procedural. This is true even if the new provisions make admissible important incriminating evidence that was formerly excluded. Examples include provisions which: make a revolutionary change in the admissibility and effect of documentary evidence (Howard Smith); make a previously non-compellable witness compellable for the Crown (Wildman); and repeal the corroboration requirement for a child's unsworn evidence: E. (A.W.).

[45] No Substantive Right to Preliminary Inquiry

Defence counsel submits that the amending legislation affects a substantive right based on the advantages bestowed to an accused through the discovery process. I am not persuaded in this regard. There is no substantive right to a preliminary inquiry. Parliament can change procedural laws to the disadvantage of an accused provided it does not affect constitutional rights.

[46] R. v. Hafeez

In R. v. Hafeez, the accused was charged with assault causing bodily harm, an offence which granted him a right to elect a jury trial. Prior to the accused making any election, amendments were made making the offence a hybrid offence. The Crown elected summarily which carried a maximum penalty of 18 months imprisonment. This eliminated the accused's right to a jury trial. He plead guilty and was sentenced to 12 months' imprisonment and three years' probation. The accused appealed to the Court of Appeal. The Crown moved to quash his appeal on the basis that the procedural amendments to the Criminal Code operated retrospectively. The accused did benefit, in this case, by lesser punishment. The court stated at p. 802 O.R.: "at the time of the offence [was committed], the appellant had no substantive or vested right to have the charge heard and determined [according to] any particular procedure" (my emphasis).

[47] Vested Right in Procedure

Defence counsel submits that after election if a request for a preliminary inquiry is made, the court must accede to that request and conduct an inquiry. As a result, it is a vested right. A vested right is defined as "a right that so completely and definitely belongs to a person that it cannot be taken away or impaired without the person's consent". The court has repeatedly stated "there is no vested right in procedure" and the right to a preliminary inquiry is subject to the Attorney General's discretion under s. 577 of the Criminal Code to prefer an indictment.

[48] R. v. Dineley

In R. v. Dineley, the accused was charged with impaired driving and over 80. At trial, his counsel advised that he intended to tender a toxicology report in order to challenge the accuracy of the breathalyzer test results -- what is known as a Carter defence. An adjournment was granted but prior to the resumption of the trial, amendments to the Criminal Code were enacted, which effectively eliminated the Carter defence. The trial judge found the amendments to be substantive and therefore of prospective application thus accepting the Carter defence and entering an acquittal. The summary conviction appeal judge upheld that decision. The Ontario Court of Appeal reversed the decision finding the amendments to be evidentiary and therefore retrospective and ordered a new trial.

[49] Supreme Court's Observation

In Dineley, the Supreme Court highlighted that the retrospectivity of the amendments barring the Carter defence was a hotly contested issue and noted that "a large number of provincial and superior court judges have expressed conflicting opinions in this regard".

[50] Difficulty of Determination

It is likely an understatement to say that determining whether an amending enactment effects a substantive right or is purely procedural can be difficult. The Supreme Court split 4:3 on the issue with the majority ruling that the amendment affected the existence or content of a defence and thus a substantive right and should be applied prospectively. The minority characterized the change as a matter dealing with evidence which is generally regarded as procedural and would have applied the amendment retrospectively.

[51] Amendment to s. 535 Does Not Affect Vested or Substantive Right

In my opinion, the amendment to s. 535 does not affect a "vested" or substantive right.

[52] Amendment is Procedural but Affects Jurisdiction

The amendment is procedural in nature but it does affect the jurisdiction of this court.

Jurisdiction

[53] Definition of Jurisdiction

One of the definitions of "jurisdiction" given to the exercise of judicial function is "a court's power to decide a case or issue".

[54] Amendment Narrows Availability of Preliminary Inquiry

It is clear that the amended s. 535 narrows the availability of a preliminary inquiry and, thus, affects the jurisdiction of the court. It is, after all, the fundamental argument advanced by the Crown.

[55] Royal Bank of Canada v. Concrete Column Clamps

In the Royal Bank of Canada v. Concrete Column Clamps, the court had to grapple with an amendment to s. 39 of the Supreme Court Act, R.S.C. 1985, c. S-26, which transferred the power to grant leave to appeal to the Supreme Court of Canada from the Ontario Court of Appeal to the Supreme Court. Pigeon J. said for the court:

All the authorities we have been referred to in support of this contention merely tend to show that the principle that statutes do not operate retrospectively is not applicable to rules of procedure. However, it is well established that jurisdiction is not a procedural matter, and no reason has been shown for holding that it becomes a procedural matter when a transfer of power, rather than an increase or a decrease, is involved.

The change was found to be an addition to court's jurisdiction, and as such, within the rule against retrospective operation. Applying that principle, the application for leave to appeal was dismissed.

[56] Jurisdiction is Substantive Rather Than Procedural

Although the specific issue in Concrete Column Clamps dealt with the jurisdiction of an appeal court, both Sullivan on the Construction of Statutes (at para. 25:114) and Ewaschuk, Criminal Pleadings and Practice in Canada, 2nd ed. (at para. 3:4190) cite Concrete Column Clamps for the proposition that legislation related to jurisdiction is substantive rather than procedural.

[57] Loss of Jurisdiction

The Crown submits in its application that this court has lost "jurisdiction" to conduct a preliminary inquiry. There is no transfer of jurisdiction. Effectively, the Crown submits that the accused has lost his right to have access to the hearing he requested even though pursuant to the law prior to September 19, 2019, the court was obliged to conduct such a hearing.

[58] Principle Applies to Trial Courts

There is no apparent reason that the principle governing the operation of legislation changing the jurisdiction of an appellate court does not apply to legislative changes affecting the jurisdiction of a trial court.

[59] Statute Modifying Court's Jurisdiction

"A statute that modifies a court's jurisdiction is not generally applicable to pending cases because '. . . it is well established that jurisdiction is not a procedural matter . . .". This matter is equally valid for lower courts and courts sitting in review.

[60] R. v. Potma

Justice Eberle in R. v. Potma followed Concrete Column Clamps in deciding that the enactment of s. 24 of the Charter was an alteration of the jurisdiction of the court and thus, prospective. His Lordship stated:

As to whether or not s. 24 is a procedural provision, it seems to me that the answer is to be found in the decision of the Supreme Court of Canada in Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., [1971] S.C.R. 1038, 19 D.L.R. (3d) 621, and particularly at [p. 623 D.L.R.], p. 1040 S.C.R. That case dealt with legislation altering the rights of appeal to the Supreme Court of Canada, and held that an alteration of jurisdiction of a court is not a procedural matter. It seems to me that s. 24 is an alteration of the jurisdiction of the court and would therefore not be a procedural provision. When I say that I use the word "procedural" in the context of determining whether or not the section is to have a retroactive or prospective effect. On the basis of the case I have referred to, s. 24 must be considered to have a prospective effect. In any event, even if resort can be had to s. 24 on a retroactive basis, for procedural purposes, that would not help the applicant, for the rights he seeks to enforce are prospective ones.

[61] R. v. Antoine

R. v. Potma was followed by subsequent cases with respect to the retrospectivity of s. 24(1) of the Charter but it was not followed in R. v. Antoine. Martin J.A. did not, however, express disagreement that legislation affecting jurisdiction is substantive but he considered that s. 24(1) should be given a large and liberal interpretation and able to apply to cases that had started before the Charter came into force but where the Charter violation occurred after the Charter was in force. The Charter right being invoked in this case was under s. 11(b).

[62] Distinction from Hafeez

This is not a case where the mode of trial was changed by varying the nature of the offence from indictable to hybrid as in Hafeez. The court in that case deemed the matter to be strictly procedural. Mr. Hafeez had not made an election or requested a preliminary inquiry before the law was altered. In this case, R.S. has made an election and requested a preliminary inquiry which engages the court in a compulsory determination of the sufficiency of the evidence. The court may be relieved of that obligation by the Attorney General preferring an indictment, or in accordance with the accused's expressed consent to committal or re-election. The court's jurisdiction in this matter is invoked by the accused's request for a preliminary inquiry.

[63] Section 535 as Amended is Procedural but Affects Jurisdiction

Section 535 as amended is procedural in nature, however, it affects this court's jurisdiction and should not be applied retrospectively.

[64] Court's Jurisdiction Derived from Statute

The Ontario Court of Justice derives its jurisdiction from statute. As of September 19, the Criminal Code no longer provides for the conduct of a preliminary inquiry unless an accused is charged with an offence punishable by 14 years or more of imprisonment on one count on the information. Absent a transitional provision, does the court's jurisdiction survive the amendment of s. 535? Visually, at least, the court's jurisdiction is not readily apparent.

[65] Effect of Finding Regarding Jurisdiction

Does the finding that the amendment to s. 535 affect the court's jurisdiction and thus not to be applied retrospectively accomplish any more than recognize that the legal effect of the accused's request for a preliminary inquiry and the court's obligation to conduct it? Does it effectively carry forward the jurisdiction of the court in transitional cases after September 19, 2019?

[66] R. v. Ali

R. v. Ali, is helpful in this regard as it dealt with amending legislation without a transitional provision. The accused was charged with "over 80" and the Crown sought to rely on a breathalyzer certificate at trial. The legislation at issue was an amendment to s. 237 of the Criminal Code, R.S.C. 1970, c. C-34 increasing from one to two the number of breath samples required in the Certificate of Analysis to prove the offence of "over 80". At the same time s. 235 of the Criminal Code was amended to allow police to increase the number of breath samples they could obtain. Section 235 was found to affect substantive rights and therefore by presumption would apply prospectively. Section 237 was found to be procedural as dealing with an evidentiary matter and presumably would apply retrospectively, but the court held that the presumption of retrospectivity was rebutted otherwise it would have led to the Crown's inability to rely on the Certificate of Analysis in transitional cases. Effectively, two breath samples would have been required during a period of time when police were only authorized to obtain one sample. The court held that the two sections were closely connected and should be given prospective effect. In making this determination, the court confirmed that the retrospective operation of a procedural amendment was not absolute.

[67] Application of Interpretation Act

In rebutting the presumption of retrospectivity, the court relied on s. 35(b) and (e) [now s. 43(b) and (e)] of the Interpretation Act stating as follows:

We are in the situation where a procedural statute has been repealed and no new rule of procedure substituted for the old one "in relation to matters that have happened before the repeal". This is precisely a case for the application of s. 35 of the Interpretation Act, which, generally, abrogates the common law rule "that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed" . . .

Subparagraphs (b) and (e), together with the concluding part of this section, are particularly relevant here. The saving clause contained in the last paragraph permits legal proceedings to be instituted and continued as if there had been no repeal; I have no doubt that it covers the procedure to be followed in respect of such proceeding.

[68] Application of Old Version in Transitional Cases

The court concluded that s. 35 allowed the application of the old version of s. 237 in transitional cases.

[69] Application of Section 44(d)

The court also relied on s. 36(d) [now s. 44(d)] of the Interpretation Act and concluded that the new procedure could "not be adapted" and therefore amended s. 237 was not to be applied to transitional cases.

[70] Statutory Rule of Construction

The court stated as follows:

This statutory rule of construction is a modification of the common law rule; it imposes restrictions on what would otherwise be the retrospective operation, in the absence of any contrary intent, of procedural statutes. It prescribes that the retrospective operation of procedural enactments shall not be absolute, but will take place only to the extent that the new rules of procedure may be adapted to the proceedings taken in respect of the matter [that has occurred] before the new rules came into effect; this clearly means that the new procedure shall not apply retrospectively if or to the extent that it cannot be adapted.

[71] Rebutting Presumption of Retrospectivity

In Ali, the court also considered that the outcome of the amending legislation could not have been intended by Parliament and thus, the presumption of retrospectivity was rebutted.

[72] R. v. Wildman

Ali was followed in R. v. Wildman. The Supreme Court of Canada repeated that retrospective operation of procedural law is subject to a "limitation to the effect that the following of the new procedure must be feasible".

Parliament's Intention and the Impact of the Immediate Application Retrospectively of s. 535 as Amended

[73] Defence Counsel's Submission on Statutory Jurisdiction

It is submitted by defence counsel that the Ontario Court of Justice is a court of statutory jurisdiction. The venue of trial is determined by an election pursuant to s. 536 or a deemed election pursuant to s. 565 of the Criminal Code. There is no statutory power to order an accused to stand trial after a request for a preliminary inquiry has been made, except by a committal order pursuant to s. 548(1) or through a re-election initiated by the accused pursuant to s. 561, or the accused consents to committal pursuant to s. 549. The Criminal Code contains situations where the Crown can override an accused's election (s. 577 and s. 568). Parliament did not provide any transitional provision permitting the overriding of an accused's request for a preliminary inquiry and directing them to stand trial, yet it could have been done if that was what it intended. It is also argued that absent transitional provisions, there is no authority to move the matter forward by remanding the matter to Superior Court to set a trial date. In view of my decision, I will not have to rule on this issue.

[74] Pre-Trial Procedures

Prior to setting trial dates or preliminary inquiry dates, a pre-trial is conducted. Before canvassing issues and determining what admissions can be made, it is essential to determine if a preliminary inquiry will be conducted or a trial. A preliminary inquiry requires, as a general estimate, one third of the time to be allocated for the conduct of a trial.

[75] Requirement for New Pre-Trial

If all matters that have been scheduled for preliminary inquires proceed as trials in the Ontario Court of Justice, a new pre-trial will be required to ascertain the issues at trial and admissions, as well as estimate the length of the trial.

[76] Scheduling Difficulties

If the time allotted for the preliminary inquiry is used to commence the trial, it will have to be continued approximately ten to 12 months later, as in this jurisdiction there is no time available until July of 2020.

[77] Uncertainty and Inconsistency

Realistically speaking, until there is a binding decision on this issue, there will be wide-ranging uncertainty as to how to proceed and justices of the Ontario Court of Justice may take differing positions which in turn may cause delay and confusion and certainly not bolster public confidence.

[78] Significant Cost and Risk

There will likely be a significant cost in crucial court time and resources, including prosecutorial resources, Legal Aid resources and client's resources with a high risk of inconsistent outcome and an increase in delay to trial.

[79] Parliament's Intention

It is my view that Parliament could not have intended these consequences.

Findings

[80] Findings

Commencing on September 19, 2019, this court will no longer have jurisdiction to record a request and grant a preliminary inquiry for indictable offences where an accused faces a maximum of less than 14 years of imprisonment.

(1) Section 535 as amended affects the jurisdiction of the court and is a substantive change, and thus, cannot be applied retrospectively.

(2) In any event, any presumption of retrospectivity of s. 535 is rebutted as Parliament could not have intended such a consequence.

(3) Pursuant to s. 44(d) of the Interpretation Act, s. 535 as amended cannot be adapted to proceedings this court is required to conduct under the old version of s. 535 of the Criminal Code once an election for a preliminary inquiry has been made and therefore s. 535 as amended will not apply to the transitional cases where a request for a preliminary inquiry has been made prior to September 19, 2019.

(4) Section 43(b) and (e) of the Interpretation Act permit the legal proceedings instituted by the accused's request for a preliminary inquiry to be continued as if there had been no repeal. Section 536(4) survives the amending of s. 535 for the transitional cases.

[81] Court's Jurisdiction in Transitional Cases

This court has jurisdiction to conduct a preliminary inquiry in cases where a request for a preliminary inquiry has been made prior to September 19, 2019.

[82] Preservation of Rights

In affected cases, counsel may seek to make their formal election and have their request for a preliminary inquiry endorsed on the Information before September 19, 2019 in order to ensure that they have preserved their right to a preliminary inquiry. Defence counsel will have to decide how they wish to proceed to protect their client's interest while being mindful of the uncertainty in this area.

[83] Crown's Delayed Election

In applicable cases where the Crown has failed to elect but an accused insists on being put to their election there is some authority to permit an accused election to be made. In R. v. Lafferty, it was found that the Crown was delaying its election. Relying on s. 34(1) of the Interpretation Act, which deems hybrid offences to be indictable unless and until the Crown elects to proceed by summary conviction, the court allowed the accused to make his election.

[84] Disposition

For the reasons given, the Crown's application is dismissed.

Application dismissed.