Court Information

Ontario Court of Justice

Date: 2019-09-24

Court File No.: 18-11161

Parties

Between:

Her Majesty the Queen

— And —

Michael Kozak, Darren Hunter, Nelia Correia, Mir Abdul Aziz, Keith Clarke, Richard Mackay, Sean Morgan, Brandon Smith, Andre Dickens, Dale Graham, Jose Faria, Michael Aube and Mark Edwards

Judicial Information

Before: Justice Anthony F. Leitch

Heard on: September 20, 2019

Reasons for Judgment released on: September 24, 2019

Counsel

Andrew McLean — counsel for the Crown

Lauren M. Wilhelm — counsel for the accused Michael Kozak et al

Reasons for Judgment

Leitch J.:

Principles of Judicial Comity

[1] The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

R. v. Scarlett, [2013] OJ No 644, 2013 ONSC 562

[2] Justice Strathy (as he then was) succinctly stated the test that must be considered where a court of coordinate jurisdiction is asked to rule on an issue that has been decided in our courts. A court is not bound by principles of stare decisis to follow another coordinate judge's considered ruling but judicial comity demands serious consideration be given to that decision to determine if it is plainly wrong for the principles summarized in R. v. Scarlett, supra. Too many conflicting judgments by judges of coordinate jurisdiction spoil the broth of justice.

The Issue: Temporal Application of Section 535

[3] Two decisions of our court have now given careful consideration of the temporal application of section 535 of the Criminal Code of Canada. Amendments to this section came into force 90 days after Bill C-75 received Royal Assent, on September 19, 2019. The issue considered in these decisions was whether persons who had elected to proceed to trial in the Superior Court with a request for a preliminary inquiry became disentitled to the Ontario Court of Justice conducting that proceeding as scheduled and as requested. This court has carefully reviewed those decisions and applied the principles of judicial comity to determine if they were plainly wrongly decided. Only if they were plainly wrongly decided should a court go on to apply its own analysis, to attempt to right the plainly wrong decision of the court of coordinate jurisdiction. But first, what of the practical implications of the retrospective interpretation urged by the Crown?

Practical Implications of Retrospective Application

[4] The Crown seeks that dates set for preliminary hearings, either scheduled or ongoing, be vacated and the defendants affected be remanded directly to the Superior Court for trial or be given a right of re-election. If upon re-election they choose trial in the Ontario Court of Justice, new trials would be scheduled to replace or supplement the dates chosen for the already scheduled preliminary inquiry date or dates.

[5] Depending on the election, with retrospective application of the legislation, the Superior Court would face 400 new indictments overnight or the Ontario Court of Justice would face 400 new trials overnight, some many times longer than the time scheduled for the already booked preliminary inquiry. Hundreds of new judicial pre-trials would be held as most of those proceedings would require a re-examination of the time needed to complete the trials. Time to trial could be affected, some going to trial more quickly but most adding delay to their time to trial, as one day preliminary hearings turn into four or five day trials with pre-trial motions governed by a recently modified third party records and prior sexual history regime that incorporates a right to counsel for the complainant. It is facile to submit that the one day set for the preliminary hearing will become the 1st day of a four day trial. Justice requires more, it requires sensible scheduling that avoids the bifurcation of trials that are so important to the parties, to their liberty and/or their sense of security.

The Presumption Against Absurdity

[6] It is tempting to apply the presumption that Parliament does not intend absurd or unfair results given these realities, but the results fall short of absurdity and a level of unfairness as contemplated by the presumption. I also specifically decline to give significant weight to footnote 68 in the Federal Department of Justice backgrounder on Bill C-75 to divine the intent of parliament with respect to the temporal application of the amendments which restrict preliminary hearings to a reduced class of offences. It reads:

The temporal application of the preliminary hearing inquiry reforms is determined in accordance with the provisions in the Criminal Code, the amending Act, the federal Interpretation Act [R.S.C., 1985, C.I-21], as well as the applicable SCC case law. The changes have immediate effect upon coming into force. However, where a preliminary inquiry was requested prior to September 19, 2019, the applicable law is clear that an entitlement to a preliminary inquiry arises when a request is made to hold the hearing. In introducing these amendments, the intent was not to do away with a preliminary inquiry if it has already been requested or if such a hearing is ongoing when the new amendments come into force. [Emphasis added.]

[7] This is a statement of the executive not the legislature. If individual speeches of members of the House of Commons are to be treated with "limited reliability and weight" then statements of the executive, footnotes added to a backgrounder after the Bill received Royal assent to try to stamp out the failure to include any transitional provisions on the temporal affect of these provisions, are due even less weight in interpreting the collective will of Parliament. The use I make of this after the fact statement of the executive branch is only that it "tend(s) to confirm the objective we (the court) have identified", namely that the legislation was not intended to eliminate preliminary hearings requested prior to September 19, 2019.

Adoption of R. v. Fraser Reasoning

[8] I cannot find that the decision in R. v. Fraser, 2019 ONCJ 652, decided September 20, 2019 by Justice Konyer is wrong. In fact his reasoning is persuasive. I adopt his reasoning at paragraphs 24-26:

[24] I find, therefore, that preliminary inquiries are not purely procedural in nature. Although it is a "pre-trial screening procedure", the preliminary inquiry protects accused persons from the risk and harm of an unwarranted public trial. The right not to be exposed to a public trial unless sufficient evidence is produced at a preliminary inquiry is, in my view, a substantive right. Since the impugned amendments affect this right, they are presumed not to apply retrospectively.

[25] I also find that the respondents' right to a preliminary inquiry has vested. A right vests when the conditions precedent for exercising the right have all been satisfied: R. v. Puskas; R. v. Chatwell, [1998] 1 S.C.R. 1207, at para. 14-15. For the right to a preliminary inquiry to vest, the Crown must elect to proceed by indictment, the accused must elect a mode of trial other than by a provincial court judge, and the accused must request a preliminary inquiry. All of these conditions have been satisfied for each of the respondents. To borrow Professor Sullivan's language, the respondents were each invited to request a preliminary inquiry under the rules that existed when they made their elections. Having relied on the rules, it would be unfair to the respondents to change those rules mid-stream.

[26] Accordingly, I find that the amendments restricting the availability of preliminary inquiries contained in Bill C-75 do not apply retrospectively. This court continues to have jurisdiction to conduct the preliminary inquiries in each of the respondents' cases. The Crown's application to vacate these preliminary inquiries is dismissed.

Distinguishing R. v. Hafeez

[9] The Crown argued that R. v. Hafeez (1996), 27 O.R. (3d) 799 (Ont. C.A.), requires a finding of retrospectivity in the case at bar. By analogy they argue that a change to the legislation had removed the ability of the accused to have a preliminary hearing and the court found the changes to the Criminal Code were procedural and therefore retrospective. Hafeez held that, although at the time of the offence the charge of assault causing bodily harm was only prosecutable by indictment (thereby permitting an election that included a trial in the superior court with the benefit of a preliminary inquiry), by the time of trial the Crown could elect to proceed by summary conviction in the provincial court under the amended law. The Crown says that if that change was procedural so must this change be, as both remove from the accused the election to have a preliminary hearing.

[10] The court in R. v. Hafeez, supra importantly noted that the defendant had not elected his mode of trial on his 6 appearances in court before the law changed. They point out that, "if the appellant had been tried at that time (prior to the change in the law) he would have been entitled to elect trial by provincial court judge, by a judge without a jury, or by a judge and jury pursuant to s. 536(2) of the Criminal Code" (the latter two elections mandating a preliminary hearing under the statute at that time). It is not at all clear that the court would have ruled in the same manner had Mr. Hafeez made his election on one of those six appearances before the law changed. In my opinion they may well have found that the statutory right to a preliminary hearing attendant to either available election to the Superior Court vested upon his election. The decision I follow in R. v. Fraser, supra is therefore not inconsistent with R. v. Hafeez, supra. The Hafeez court did not remove a statutory right that had already vested and its reasons strongly suggest it would not have stripped him of the preliminary hearing if he had made that election before the law changed.

Jurisdiction as a Substantive Matter

[11] I also adopt the ratio decidendi of Justice Marion in R. v. R.S., (September 11), 2019 ONCJ 629. I find that his opinion that the amendments in question do not affect a vested or substantive right and that the amendment is procedural in nature are obiter dicta and that the persuasive reasoning in R. v. Fraser, supra is preferred. The heart of the R.S. decision is that the change to the law affects the jurisdiction of the Ontario Court of Justice. Jurisdiction is not a procedural matter, it is substantive. As the Supreme Court said in Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., [1971] S.C.R. 1038, at paragraph 5:

… 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 [Emphasis added.]

[12] The Ontario Court of Justice has lost the jurisdiction to conduct preliminary inquiries for a plethora of charges that carry maximum punishments of less than 14 years. Its jurisdiction has thereby decreased. Concrete Column Clamps dictates that the change is substantive. For this reason, as expressed by Justice Marion in R.S., I find that he correctly decided the issue before me and principles of comity dictate that I follow his well-reasoned decision.

Rejection of Crown's Arguments

[13] The Crown suggests the R.S. decision is wrongly decided thereby removing any barriers created by comity. Justice Marion should have gone on to examine the amendment's function and effect as the Supreme Court mandated in R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272 at paragraph 55. Labelling or classification is only the first step in determining whether a statute will have retrospective effect and he stopped at that step. They argue moving to an examination of the amendment's true function and effect reveals it is purely procedural.

[14] I reject the Crown's argument before me that he engaged in a labelling exercise in simply finding that jurisdiction is substantive. The true effect is a decrease in jurisdiction (R.S.), the removal of a statutory right that vested before the legislation changed (Fraser) and the removal of a substantive statutory right to be discharged when the Crown fails to present a scintilla of evidence on one of the essential ingredients of a criminal offence producing a discharge that can only be overridden by a considered exercise of authority by the Attorney General (Fraser).

Conclusion

[15] For these reasons I find that the Crown's application fails and these defendants are entitled to the preliminary hearings they have requested.

Justice Anthony F. Leitch

Footnotes

[i] I have also considered R. v. A.S. (Sept 23, 2019), 2019 ONCJ 655 and R. v. N.F. (September 23, 2019) 2019 ONCJ 656, decisions handed down after I had completed these reasons. It will be apparent from my reasons that I agree with N.F. and, with respect, find that Justice Downes was plainly wrong in A.S. I find that his interpretation of R. v. Hafeez, supra is incorrect for the reasons set out in paragraph 10 of this ruling.

[ii] In oral submissions the Crown offered that their estimate of the number of cases affected by the temporal application for the amendments to section 535 of the Criminal Code was 400 in the province of Ontario.

[iii] It is acknowledged that it is unrealistic to assume that all defendants would elect the Superior Court for their trial or the Ontario Court of Justice for their trial. It may be speculative to forecast what the split will be, but my educated guess is most will opt for trial in the Ontario Court of Justice given the added expense and uncertainty of the time to trial in the Superior Court. In any event defendants would be thrust into a rapid decision one way or the other without much knowledge of when they would see a trial date. Do they reelect after a JPT in the OCJ and an examination of when their trial would be there? Do they make inquiries of the Superior Court in the abstract of what their time to trial would be there before they reelect? It is certain their time to trial will be different than it would have been with prospective interpretation of the amendment.

[iv] Frank v. Canada (Attorney General), 2019 SCC 1 at para. 136

[v] Frank v. Canada (Attorney General), supra at para. 137

[vi] I leave for another day the effect of this finding on persons who have alleged offence dates that pre-date September 19, 2019 but have not been put to their election or filed a notice of election prior to this date.

[vii] Some of the defendants before me have filed a notice of election but have not been put to their election on the record and therefore have not had that election recorded on the information. It is patent that they too have satisfied the conditions outlined by Justice Konyer in this paragraph. I see no appreciable difference between defendants who have elected on the record before September 19, 2019 and those who have filed a notice of election with the court but have been unable to come before the court to make that election formally.