Court File and Parties

Ontario Court of Justice

Date: September 30, 2019

Court File No.: 18-8714, 19-10310, 19-10313

Between:

Her Majesty the Queen

— and —

Adam Dabrowski et al

Before: Justice K.G. McHugh

Heard: September 23, 2019

Reasons for Judgment Released: September 30, 2019

Counsel

Jason Miller — counsel for the Crown

Cassandra DeMelo — counsel for the defendant

Judgment

MCHUGH J.:

Introduction

[1] On September 19, 2019, new provisions came into effect limiting the availability of preliminary inquiries to cases where an accused person faces a maximum penalty of at least 14 years imprisonment. The amending legislation contains no transitional provisions regarding the changes to preliminary inquiries. The respondents herein face indictable offences the maximum penalties for which are less than 14 years.

[2] Thus, these cases require the court to consider whether the new s. 535 has retrospective application, thereby eliminating this court's jurisdiction to hold the preliminary inquiries that were duly requested by the defendants in accordance with the statutory provisions in place at the time of their election as to mode of trial.

[3] The Crown submits that the amendment applies retrospectively. They argue that the amendments are purely procedural, do not affect substantive rights, and therefore the presumption of retrospectivity applies as set out in the Interpretation Act, s. 44. In the Crown's view, the court should declare the prior request for a preliminary inquiry to be a nullity and remit the matter directly to the Superior Court of Justice in accordance with the accused's elections.

[4] Defence counsel argues that the Ontario Court of Justice has jurisdiction to conduct a preliminary inquiry that was validly requested prior to September 19, 2019. The defence submits that jurisdiction to hold the inquiry vests in the Ontario Court of Justice upon the request being made, as set out in s. 536(4), which mandates that the justice shall hold a preliminary inquiry upon request. They argue that the amendments have substantive effects and that it would be unfair and inefficient to nullify the valid requests and vacate preliminary hearings requested under the former legislation.

[5] These arguments are being made across the province, and several decisions from this bench have already been released. I have read all the following Ontario Court of Justice judgments:

1. R. v. N.F., 2019 ONCJ 656
2. R. v. Kozak, 2019 ONCJ 657
3. R. v. R.S., 2019 ONCJ 629
4. R. v. Fraser, 2019 ONCJ 652

[6] All these decisions determined that the provisions were not retrospective and dismissed the Crown's applications accordingly.

[7] I have also read the decision of Downes, J. in R. v. A.S., 2019 ONCJ 655, which came to the opposite conclusion.

[8] Finally, I have been provided the decision of Thomas, J. in R. v. R.S. released on Friday afternoon. This is a decision of the Superior Court on a certiorari application by the Crown seeking to quash the Ontario Court decision as noted above. Justice Thomas granted the Crown's application for the extraordinary remedy, thereby removing the respondent's ability to conduct a preliminary inquiry.

[9] Prior to the release of Thomas J.'s judgment, there could be little doubt but that I was free to consider the conflicting results in this court's decisions and choose to follow any of those I found persuasive in reaching a conclusion. Indeed, I had done so, and was prepared to deliver my Reasons before becoming aware of Justice Thomas' decision. However, I must now determine the legal impact of this Superior Court decision on my ability to decide the legal issue at hand.

The Principles of Stare Decisis

[10] Stare decisis is the principle "under which a court must follow earlier judicial decisions when the same points arise again in litigation". The shorthand stare decisis comes from a longer Latin phrase meaning "to stand by decisions and not to disturb settled matters". Stare decisis has also been described as one of the "basic tenets" of the Canadian legal system and an element of "fundamental justice". Canada (Minister of Citizenship and Immigration) v. Fast, 2001 FCA 373, at para. 2 (F.C.A.).

[11] Ewaschuk J. observed in R. v. Hummel, 36 C.C.C. (3d) 8 at paragraph 7, that "it [stare decisis] is the glue that holds together the various levels of Canadian courts and it is the principle that elevates the rule of law above the rule of individual judges."

[12] In what circumstances, then, have the relative jurisdictions of the provincial courts and the superior courts been judicially considered?

Summary Conviction Appeals

[13] There can be little controversy that this court, for example, must follow decisions of the Superior Court in summary conviction appeals. In R. v. Smith (Ont. H.C.), [1988] O.J. No. 1750, Justice Watt (as he then was) stated:

The decision of an "appeal court" binds the determination of an equivalent issue by a "summary conviction court", a trial court, under Part XXIV. In general terms, that is the manner in which the doctrine of precedent is applied within the judicial hierarchy of a province. It is, indeed, the very bedrock upon which the doctrine is constituted. It would require a clear and unequivocal statutory statement to the contrary to displace such a rule.

Concurrent Trial Jurisdiction

[14] That said, it is not accurate to conclude that every decision of a higher court binds the lower court. It appears that an exception exists where the decision of the higher court is in an instance where that court is acting in a co-ordinate or concurrent capacity, as opposed to an appellate or reviewing capacity. Another way of looking at that situation is that the doctrine is simply inapplicable in that context: see R. v. Unnah, [2007] O.J. No. 101 (Ont. C.J.). In Unnah, Justice Stone declined to consider himself bound to follow a judgment of the Ontario Superior Court where that court was a trial court exercising concurrent jurisdiction.

[15] Similarly, in R. v. Letourneau, 2008 ABPC 192, [2008] A.J. No. 752, the court held:

… when the Queen's Bench Justice is sitting as a trial Judge, the Justice is a court of concurrent jurisdiction and the rule of stare decisis does not apply to such decisions.

Concurrent Appellate or Review Jurisdiction

[16] In Ontario (Attorney General) v. Stephens, 2006 ONCJ 269, the Ontario Court was faced with conflicting decisions in relation to cases from the Provincial Offences Court. The Provincial Offences Act provides both for appeals from justices of the peace to Ontario Court judges under section 135 and relief akin to the prerogative remedies of certiorari, mandamus and prohibition under section 140. At paragraph 10 in Stephens the court stated:

Dealing with the stare decisis issue, I agree with Mr. Justice Wolski in R. v. Kovacs, that the Ontario Court of Justice when sitting on appeal of a decision of a Justice of the Peace under section 135 of the Provincial Offences Act is not required to follow Wilson. It was his view that the Superior Court sitting by way of a certiorari application was a court of concurrent jurisdiction with the Ontario Court of Justice under the Provincial Offences appeal procedures. In my view that is the correct analysis of the stare decisis principles as they relate to s. 135 appeals.

[17] Although Justice Brophy in Stephens ultimately followed the Superior Court judgment, he did so only after considering the arguments on their merits.

Extraordinary Remedy Applications

[18] Prerogative relief is a judicial review by the Superior Court of the jurisdiction of an "inferior" court or official. This judicial review is part of the inherent and discretionary jurisdiction of the Superior Court to supervise inferior courts, tribunals and other forms of statutory authority to ensure that they operate within the statutory jurisdiction assigned to them: David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 545 [Administrative Law].

[19] In R. v. Sarson, [1992] O.J. No. 1089 (Ont. Gen. Div.) at 8, Watt J. (as he then was) explains that this review is not an appeal on the merits. There must be "a loss, refusal or excess of jurisdiction" to warrant the granting of extraordinary remedies, ibid. at 17.

[20] The question I must answer is whether I am required as a matter of law to follow the decision of Justice Thomas in R.S. There is no doubt that it is persuasive and deserving of careful consideration, but is it binding? Given the antiquity of the remedy, it is perhaps surprising that there exists a dearth of jurisprudence on this specific issue. I have been able to unearth just two decisions on point.

[21] In R. v. Letourneau, supra., a decision of the Alberta Provincial Court, an issue arose regarding the nature of the Crown's disclosure obligations relating to police records. There were two Court of Queen's Bench trial decisions on the issue that were being considered by the court. In reviewing the principles of stare decisis the court said the following:

When a Queen's Bench Justice has issued a decision either as a Summary Conviction Appeal Justice or a reviewing Justice in an application for an extraordinary remedy, the Justice is fulfilling an appellate function. In such circumstances, the principle of stare decisis makes the decision of the Queen's Bench Justice binding upon a Provincial Court Judge.

[22] One might say that this excerpt from the decision is obiter as the court was actually dealing with a situation of concurrent trial jurisdiction. As well, of course, the decision is obviously not binding on me. Nonetheless, I take it into consideration.

[23] The second case is that of Justice McIsaac in Regional Municipality of York v. Martinez, [2014] O.J. 5277. In that case, His Honour was sitting in review of a decision of a justice of the peace who had quashed a Certificate of Offence pursuant to s. 9 of the Provincial Offences Act when the defendant was deemed not to dispute the charge. The Crown sought an order of mandamus requiring the justice of the peace to enter a conviction.

[24] In ruling that the justice of the peace was without jurisdiction to quash, the Superior Court stated:

it is evident to me that she did so in the face of not only compelling, but binding, authority to the contrary: see York (Regional Municipality) v. Billinger [2005] O.J. No. 2627 (S.C.J.).

If she was not aware of this authority, she should have been. She had absolutely no business or jurisdiction to quash this "perfectly good certificate of offence"

[25] Further, the Court then cited other examples of what it determined were instances in which the lower court had acted without jurisdiction and commented:

These inappropriate interventions have not only created a certain degree of chaos in the Provincial Offences Court, they also display a profound misunderstanding of the role of stare decisis in our legal system. Once the Superior Court has spoken on an issue, the lower courts are bound to follow those dictates whether they like them or not.

[26] Although the Court in Martinez cited no authority for the proposition that Superior Court decisions on prerogative remedy applications were binding on the Provincial Offences Court, its ruling in that case could not have been clearer. It purported to bind not just the justice of the peace in question on that very case, but to impose guidance and direction across the province. One could not mistake the Court's intention when it stated:

I trust this message will not have to be repeated in the future by either myself or any other judge of the Court. Enough is enough!

[27] In my view, that case cannot be distinguished on the basis that it dealt with provincial prosecutions as opposed to a criminal case. The reviewing court's mandate and powers are identical under the provincial legislation. Nor can it be legitimately argued that because the review was of a justice of the peace and not a judge, its impact on the Ontario Court is somehow lessened. Ontario Court judges often appear as a court of first instance in various prosecutions governed by the Provincial Offences Act, and when they do, their determinations relating to jurisdiction would be subject to the same extraordinary remedy processes.

[28] I find this decision supports the contention that Justice Thomas' decision in R.S. is binding upon me.

[29] The doctrine of stare decisis was framed as follows in the Supreme Court of Canada's decision in Carter v. Canada (A.G.), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44:

The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps.

[30] This statement of principle from the Supreme Court must be considered in these cases before me. Although the Superior Court was not exercising appellate jurisdiction in R.S., there is little doubt that its conclusions represent an incremental step in the ultimate resolution of the legal issue that divides the parties. Justice Thomas said as much, when he wrote:

I have no doubt that the Crown is in the right place seeking the appropriate remedies if they are to achieve their purpose. This issue needs to be litigated quickly and efficiently because there is a great deal at stake…

I am under no illusion that this decision will end the litigation, but it is important to move the argument forward to an appeal-ready position.

[31] It cannot be said that the Superior Court was merely exercising concurrent jurisdiction with this court. Its determination, legally and practically, rendered the Ontario Court in R.S. incapable of proceeding to conduct the preliminary inquiries in question. It decided that the Ontario Court had no power to act in the fashion that it had previously determined to be lawful. Its ratio was clear, and there is simply no basis upon which the cases before me can be distinguished. The decision in R.S. was also a necessary step in the legal process required to obtain, if so desired, a decision from the Ontario Court of Appeal which would undoubtedly bind this Court. This, it seems to me, is what the Supreme Court in Carter had in mind when it spoke of the "orderly development of the law".

[32] Following Justice Thomas' decision would also be in keeping with Justice Laskin's observations from the Court of Appeal in McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 76 O.R. (3d) 161, at para. 119, wherein he stated:

"The values underlying the principle of stare decisis are well known: consistency, certainty, predictability, and sound judicial administration."

[33] For these reasons, I conclude that I am bound to follow the decision of Justice Thomas in R.S. There are no Superior Court decisions of which I am aware that have come to a contrary conclusion on the issue of the retrospective application of these provisions. I am not presently at liberty to consider the various Ontario Court decisions on the issue to determine which of them I find persuasive, and therefore I decline to do so.

Disposition

[34] The Crown's applications are therefore allowed, to the extent that the defendants' requests for preliminary inquiries are found to be of no force and effect.

Released: September 30, 2019

Signed: Justice K.G. McHugh