Court File and Parties

Court File No.: 19-15001991 Date: 2019-09-27 Ontario Court of Justice Toronto Region – Old City Hall

Between: Her Majesty the Queen — and — Alonzo Bernard-Carty

Before: Justice H. Pringle

Heard on: September 20, 2019

Decision rendered orally on: September 26, 2019

Written Reasons for Judgment released on: September 27, 2019

Counsel:

• Gary Valiquette, counsel for the Crown/applicant
• James Miglin, counsel for the Defendant/respondent

Judgment

PRINGLE J.:

Overview of the Application

[1] The defendant was arrested on an assortment of offences on March 18, 2019. He has requested a preliminary inquiry and elected trial in Superior Court. His preliminary inquiry is scheduled for October 1, 2019.

[2] When he made his election and scheduled a preliminary inquiry, he did so pursuant to ss. 535, 536(2), and 536(4) of the Criminal Code, which at the time read:

535. If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

536(2) If an accused is before a justice charged with an indictable offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor request one. How do you elect to be tried?

536(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on the request of the accused or prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.

[3] But Bill C-75, which received Royal Assent on June 1, 2019, fundamentally changed this landscape. On September 19, 2019, the law the defendant relied upon to make his election changed to this:

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.

Election before justice – 14 years or more of imprisonment

535(2) If an accused is before a justice, charged with an indictable offence that is punishable by 14 years or more of imprisonment, other than an offence listed in section 469, the justice shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

Election before justice – other indictable offences

535(2.1) If an accused is before a justice, charged with an indictable offence – other than an offence that is punishable by 14 years or more of imprisonment, an offence listed in section 469 that is not punishable by 14 years or more of imprisonment or an offence over which a provincial court judge has absolute jurisdiction under section 553 – the justice shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a provincial court judge without a jury; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. How do you elect to be tried?

[4] If this new legislation applies to his case, the defendant's election is caught within the parameters of s. 535(2.1), because none of his alleged offences attract a sentence of 14 years or more. The Crown now applies to have the October 1st preliminary hearing date vacated, and for the defendant to be made to re-elect pursuant to the options in s. 535(2.1).

[5] There is no clear legislative guidance on when these new amendments are to apply. That is the contested issue here. The Crown argued the new sections are retrospective, and must apply to all pending cases including the defendant's. The defence argued these amendments are prospective and cannot impact the defendant's case.

[6] Resolving this dispute begins at the presumption against retrospectivity. Following the structure set out in R. v. Bengy, 2015 ONCA 397 at para. 19, this court must assess whether the presumption applies to the new amendments, and, if it does, whether it has been rebutted.

The Presumption Against Retrospectivity

[7] New law which affects substantive rights has prospective application, absent legislative intent to the contrary. There is good reason for this. As the Supreme Court explained in R. v. Dineley, 2012 SCC 58 at para. 10:

Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional.

[8] Similarly, the Court of Appeal, in R. v. Bengy, adopted at para. 43 the following policy rationale behind the presumption, as described in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008):

Perhaps the most fundamental tenant 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 …. To ensure adequate notice, the rules enacted by the legislature must be published and adequately publicized … Citizens cannot comply with, rely on or take advantage of law unless they know what it is before deciding how they will behave.

[9] Determining whether the presumption against retrospectivity applies to changes in the law involves assessing if that change impacts substantive rights or not.

Procedural versus Substantive – What's the Difference?

[10] Courts assessing the temporal application of amended law often focused, prior to Dineley, on labeling the law as procedural or substantive. This is no doubt because both common law and ss. 43 and 44 of the Interpretation Act direct different presumptions, depending on whether a law is labeled one way or the other.

[11] Some insight into the meaning of these two terms is found in the Court of Appeal decision of R. v. Bickford (1989), 51 C.C.C. (3d) 181 (Ont. C.A.), which at pg. 186 adopted the following definitions of the two [from R. v. Wildman, [1984] 2 S.C.R. 311 at pp. 338-338]:

Law is commonly divided into substantive law, which defines rights, duties and liabilities, and adjective law, which defines the procedure, pleading and proof by which the substantive law in applied in practice.

The rules of procedure regulate the general conduct of litigation; the object of pleading is to ascertain for the guidance of the parties and the court the material facts in issue in each particular case; proof is the establishment of such facts by proper legal means to the satisfaction of the court…The first-mentioned term is, however, often used to include the other two.

Some rules of evidence must nevertheless be excluded for they are not merely procedural, they create rights and not merely expectations and, as such, are not only adjectival but of a substantive nature.

[emphasis added]

[12] Much appellate jurisprudence distinguishes the difference between procedural and substantive law on the basis of whether the law impacts a "vested" or "accrued" right. Again, this has its roots in both common law and s. 43 of the Interpretation Act. As Robins J.A. said in Bickford at p. 185, "no person can be said to have a vested right in procedure or a right in the manner of proof that may be used against him". The same cannot be said for substantive law.

[13] Some examples follow. In Bickford, removing the C.E.A. requirement for corroboration in certain cases was wholly procedural in nature. At pp. 185 and 186, the Court explained why:

Corroboration is a procedural or evidentiary matter going only to proof of the offence. An accused has no right to have the charge against him proved by corroborated evidence or to require corroboration as a precondition to his conviction. His right is to be tried according to law, that is, in accordance with the evidentiary rules and procedural requirements in effect at the time of trial….

In short, corroboration is a matter of evidence in which an accused can have no vested or accrued right that could not be affected retrospectively.

[14] In considering the latter sentence, the question of substantive versus procedural law is most simply answered if there is a vested or accrued right that could be affected if the law was applied retrospectively. If there is such a vested right, then the presumption against retrospectivity is triggered. Even a procedural law, if it affects a vested right, is not "purely" procedural and must, therefore, be applied prospectively: Bickford, at pg. 5.

[15] In Bickford, the respondent had no vested right to have criminal allegations from a child corroborated in the evidentiary record. Similarly, in Wildman, the accused had no vested right in the non-compellability of his spouse as a witness. Evidentiary routes available in a case may be changed, and changed to the accused's disadvantage at that, without impacting any vested right: CIBC v. Deloitte & Touche, 2014 ONCA 89 at para. 28.

[16] Jurisprudence suggests that evidentiary changes are generally procedural in nature. But this is not a hard and fast rule. Even evidentiary changes which "create rights and not merely expectations" will fall, instead, into the substantive category: Wildman at p. 338. In analyzing whether new law is to be applied prospectively or retrospectively, the focus should be on the presence or absence of vested rights, as per R. v. Dineley at para. 11:

…the key task in determining the temporal application of the Amendments … lies not in the labelling the provisions 'procedural or substantive', but in discerning whether they affect substantive rights.

What is a Substantive Right?

[17] While legislation that affects constitutional rights is "necessarily substantive" as per Dineley at para. 21, a right need not be constitutionally protected in order to be substantive. Substantive rights are not defined restrictively. An example from R. v. Chaudhary (1999), 139 C.C.C. (3d) 547 (Ont. S.C.J.), is found at para. 11 where LeSage J. determined legislative changes to 'faint hope' parole hearings were retrospective because:

This legislation does not change the applicant's right, that is the right to apply to have her period of parole ineligibility reduced. It does not lengthen her sentence. It does not increase her period of ineligibility. What it does do is simply change the manner in which she is required to establish the right to seek earlier parole. The applicant has not had her right to parole nor even her right to apply for parole changed by the amendments. Her pre-existing right was simply to ask how she achieves the right to apply and that, in my opinion, is procedural, not substantive. The new legislation, therefore, is retrospective…

[18] LeSage J., in using the term "right", did not restrict it to the concept of a constitutionally-protected right. Applying for a lessening of parole eligibility, the right to apply for parole, and the right to seek earlier parole were substantive rights that went unchanged by new law. Only the process underlying the ability to effect those rights was.

[19] In Dineley, the existence of a defence, that being the Carter defence, was linked to the presence of substantive rights. At para. 15, the Court adopted Laforest J. in Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 248 at pp. 265-266, where he said:

Normally, rules of procedure do not affect the content or existence of an action or defence (or right, obligation, or whatever else is the subject of the legislation), but only the manner of its enforcement or use …' … The fact that new legislation has an effect on the content or existence of a defence, as opposed to affecting only the manner in which it is presented, is an indication that substantive rights are affected.

[emphasis added]

Thus, as Deschamps J. held at para. 18, the "right to rely on a defence is a substantive right and that new legislation has to be interpreted so as not to deprive the accused of a defence that would have been open to him or her at the time of the impugned act". Amendments which removed the Carter defence, therefore, were to be applied prospectively.

[20] Similarly, at para. 50 of Bengy, the Court of Appeal held new self-defence provisions affected "the content and existence of [that] defence, as opposed to affecting only the manner in which it is presented": para. 50. Elements of the defence, once a prerequisite to the air of reality threshold, were now to be left for the jury as part of the ultimate issue. Mandatory components of the prior self-defence provisions became discretionary. The nature of such changes led the Court to conclude the amendments were substantive and therefore prospective.

When Does a Substantive Right Vest?

[21] As stated previously, "purely procedural" legislative changes can apply retrospectively because no person has a vested right in procedure. Only substantive rights are said to vest or accrue. Prospective application thus avoids legislative interference with a vested right. The Supreme Court in R. v. Puskas, [1998] 1 S.C.R. 1207, at para. 14, explained when a right can be said to have vested:

[There] is a common sense understanding of what it means to 'acquire' a right or have it 'accrue' to you. A right can only be said to have been 'acquired' when the right-holder can actually exercise it. The term 'accrue' is simply a passive way of stating the same concept…a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled.

[emphasis added]

[22] An example of right not yet vested or accrued is found in Fabrikant v. A.G. (Canada), 2014 QCCA 240. Another 'faint hope' challenge, the court found that even if substantive rights were engaged, these rights had not vested in the appellant's case before the law changed. More particularly, the appellant would not have acquired the right to the earlier, more beneficial, procedure until both 15 post-conviction years had passed and he had applied for a hearing.

[23] The result in Puskas was, similarly, that a right engaged had not accrued in the cases at bar. Previously, the Code had provided, in certain circumstances, for an appeal to the Supreme Court without first obtaining leave. This was repealed, an act which clearly impacted the substantive right to appeal. But the Court held the conditions precedent to appealing absent leave – being charged with an indictable offence, being acquitted of that offence, having that acquittal overturned on appeal followed by the order of a new trial – had not been satisfied and thus the right had not accrued. The appellants, therefore, had to seek leave.

If the Presumption Applies, Is It Rebutted?

[24] Where the presumption against retrospectivity applies to new law, the question then becomes whether the evidence has rebutted it. This is not a low threshold. There must be evidence of "clear legislative intent that [the statute] is to apply retrospectively": Bengy at para. 60 [emphasis added].

[25] From my interpretation of Bengy, clear legislative intent cannot be inferred from the practical impact of either prospective or retrospective application. At para. 66, the Court held:

Absent clear legislative intent, courts have no residual discretion to rewrite the law to accord with a subjective view of optimal fairness.

[26] In other words, as tempting as it may be to infer Parliamentary intent from the practical result that accords best with Bill C-75's goals of trial expediency and wise time management, I am not permitted to do so.

[27] In Bengy, after finding the amended self-defence sections impacted substantive rights and the presumption applied, the Court considered whether it had been rebutted. But there was no clear, explicit evidence that Parliament intended retrospective application. The only rational conclusion, therefore, was that Parliament did not intend retrospective application because:

67 …the presumption against retrospectivity is a long-standing doctrine. Parliament can be assumed to understand the impact of not explicitly dealing with the issue of retrospectivity in the legislation it passes. As there is nothing in the Citizen's Arrest and Self-defence Act suggesting a contrary intention, the presumption has not been rebutted and therefore applies.

Application to the Case at Bar

[28] With the above principles and jurisprudence as guidance, I have drawn the following conclusions.

[29] The Crown is correct that there is no constitutional right to a preliminary inquiry. The Crown is correct that there is no absolute right to a preliminary inquiry, given the state power to prefer indictments. I agree the function of a preliminary inquiry is a charge screening mechanism, and that it is also available at the directed verdict stage. The ancillary discovery function of a preliminary inquiry is, as per the views of Parliament, largely obviated by the Stinchcombe right to full disclosure.

[30] But it is a red herring to rely on these arguments as proof preliminary hearings are procedural in nature. The underlying purpose of a preliminary inquiry is to serve as a protection against wrongful convictions based on insufficient evidence: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623 at para. 30. It also serves an ancillary discovery purpose, to ensure disclosure of the case to meet. Both are clearly substantive rights, just as the appeal process, which protects against judicial error and wrongful convictions, is "clearly a substantive right, not merely a question of procedure": R. v. Puskas at para. 6.[1]

[31] Parliament may be right that these protections are duplicated post-Stinchcombe. But duplication cannot convert what was previously a substantive right into a procedural one. The Court in Dineley places focus on the nature of the rights impacted. Not whether the rights impacted can be found somewhere else. Not whether the rights impacted were absolute or constitutionally protected.

[32] By removing the right to a preliminary inquiry, does the new amendments impact substantive rights? In my view, they do. In R. v. Varcoe, 2007 ONCA 194, the Court of Appeal said at para. 21 that "[w]hile in recent times there has been discussion about the possibility of eliminating preliminary inquiries from the criminal justice process, today they remain an integral part thereof". I cannot reconcile removing an 'integral part' of the criminal justice system, put in place to protect fairness and prevent wrongful convictions, with the notion that this does not affect any substantive rights.

[33] In addition, the amendments fundamentally change a defendant's election rights. This retrospectivity application must, therefore also focus on the nature of the right to elect. After all, the Crown seeks to nullify the jurisdiction vested in this court and vitiate the defendant's election. Looking at the nature of his right to elect to have a preliminary inquiry, it was not merely an 'expectation', to borrow from Bickford and Wildman. It was a fundamental right conferred by law.

[34] I use the adjective "fundamental" deliberately, because this is how the Court of Appeal described the right to elect in R. v. Stark, 2017 ONCA 148. Stark considered counsel's failure to advise his client about election rights. The case had been screened and scheduled for provincial court trial. On the morning of trial, the Crown unexpectedly elected to proceed by indictment. Defence counsel then elected provincial court trial, without properly explaining the client's right to elect. The Court held:

20 If an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, then the accused has effectively been denied his right to choose his mode of trial under s. 536 of the Criminal Code. The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.

30 The appellant might have been dimly aware of the existence of preliminary inquiries from his wife's internet searches, but there is no evidence that the level of his conversancy was sufficient to have made up for trial counsel's manifest failures. Trial counsel admitted giving the appellant no cogent advice about his options concerning the mode of trial, nor did he take steps to get the appellant the time he needed to consider his election.

31 In my view, these facts are sufficient to fatally undermine the fairness of the trial. The appellant need not establish further prejudice by attempting to prove his assertion that he would have elected a Superior Court trial preceded by a preliminary inquiry. It is not this court's business to override an accused person's fundamental right to make the election by predicting retrospectively that his true choice would have been different.

[emphasis added]

[35] In addition, where an accused has the right of an election but is not put to his election, all proceedings that follow lack jurisdiction: R. v. Shia, 2015 ONCA 190 at para. 27; R. v. Varcoe, supra at paras. 15 and 22; R. v. Mitchell (1997), 121 C.C.C. (3d) 139 (Ont. C.A.) at paras. 28-30. Nullifying jurisdiction, vested in this court once an election was made, must impact substantive rights in this sense too. Here, I rely on the Supreme Court, in Royal Bank v. Concrete Column Clamps (1961) Ltd., [1971] S.C.R. 1038 at p. 1040:

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 decrease, is involved. [emphasis added]

At pp. 1041-1042, the Court added:

I need only refer to the firmly established principle, in terms of which the case has been presented, that in the absence of an explicit provision to the contrary, retrospective operation must not be given to legislation conferring a new jurisdiction on a court of appeal.

[36] I see no reason why law removing jurisdiction, rooted in the provincial court by virtue of an election, would be approached any differently. Jurisdiction of appellate courts are rooted in statute. Jurisdiction of the Ontario Court of Justice is rooted in statute. With great respect to those who think otherwise, I do not read Royal Bank as distinguishable in light of the Court of Appeal's decision in R. v. Hafeez (1996), 27 O.R. (3d) 799 (C.A.).

[37] However, I do not believe the two are necessarily inconsistent. In Hafeez, the Court found as fact that the change to the Crown's election options, at the specific time it occurred during the appellant's case, could not possibly affect the appellant's substantive rights because none had vested in his specific situation:

The accused retains the constitutional right to a jury trial where the Crown proceeds by way of indictment. While the accused had the constitutional 'right' to a jury trial at the time the offence was allegedly committed, this was only because the offence was punishable by five years or more. Once the prosecution elected to proceed by summary conviction the appellant was no longer exposed to this punishment. The appellant received the benefit of the lesser maximum punishment because the prosecution was able to elect to proceed by summary conviction. As counsel for the respondent pointed out, at the time the offence was committed the appellant had no substantive or vested right to have the charge heard and determined according to any particular procedure.

[emphasis added]

[38] Hafeez, as I read it, does not say that all law impacting upon jurisdiction and/or elections are never substantive, or are always procedural. It did not question, analyze, or overturn the principle set out in Royal Bank at p. 1042. It was a decision on the facts of that case, in my humble opinion, and nothing more. Again, as the Supreme Court said in Puskas, "[a] right can only be said to have been 'acquired' when the right-holder can actually exercise it".

[39] This is a fundamental factual difference between Hafeez and the case at bar. On September 19, 2019, the defendant did have a "substantive or vested right to have the charge heard and determined according to [a] particular procedure". He had exercised his statutory right to make an election. When he did, this court was mandated to inquire into the charges, pursuant to s. 536(4). All conditions precedent were satisfied. His rights had vested. The new legislation, if applied to his case, will affect substantive, vested rights.

[40] The presumption against retrospective application applies. The Court of Appeal for Ontario in Bengy at para. 60 stated this presumption can only be overcome by clear evidence of legislative intent to the contrary. There is no such evidence here. The presumption against retrospectivity has not been rebutted.

[41] It follows that I find these legislative amendments do not have retrospective application. The Crown's application must be dismissed.

[42] I am most grateful for the compelling written and oral submissions presented by both counsel. Both invested immense work into this application, during challenging periods in their respective schedules.

[43] I am also grateful for the earlier decisions of my judicial colleagues on this issue. While we may see this issue similarly or differently, there can be no dispute that their wisdom, insight and analysis have made my task an easier one.

Released: September 27, 2019

Signed: Justice H. Pringle

[1] See also Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., [1971] S.C.R. 1038 at p. 1040.