Ontario Court of Justice

Date: 2019-10-01

Court File No.: Central East - Newmarket 4911-998-19-00081-00

Between:

Her Majesty the Queen

— AND —

Andre Davis

Before: Justice M.E. Misener

Ruling on the Scope of the Preliminary Inquiry

Bill C-75

Released on October 1, 2019

Counsel:

• B. Juriansz, for the Crown
• C. Rippell, for the Defendant

MISENER J.:

Overview

[1] Mr. Davis is charged in one information with sixteen Criminal Code and CDSA offences. Four of those counts are offences for which the maximum punishment is 14 years or more (14+ offences). The other twelve counts are offences for which the maximum punishment is less than 14 years (<14 offences). He has elected trial by judge and jury and he has requested a preliminary inquiry.

[2] There is no dispute that under the preliminary inquiry provisions amended by Bill C-75, he is entitled to a preliminary inquiry because he is an accused who is charged with at least one 14+ offence and he has requested one.

[3] The issue is the scope of that preliminary inquiry: is he entitled to a preliminary inquiry only in respect of the 14+ offences as the Crown submits, or, due to the presence of at least one 14+ offence, is he entitled to a preliminary inquiry into every count on that Information as the defence submits.

[4] The practical difference in the parties' positions is significant. If the preliminary inquiry is limited to the 14+ offence(s), the <14 offences proceed to the Superior Court without the hearing of any evidence in respect of them, and the preliminary inquiry concerns only the 14+ count(s).

[5] If there is an inquiry into every count on the Information, then the preliminary inquiry proceeds in the manner that it did before the amendments: the Justice must be satisfied that the test for committal in respect of each count is met before that count proceeds to trial in the Superior Court.

[6] For the following reasons, I find that the preliminary inquiry is restricted to the 14+ offences only.

The Language of the Statute

[7] The powers of a preliminary inquiry justice are statutory and must derive expressly from or by implication of the enabling legislation.

[8] The amended provisions set out a new procedure to be followed from the reading of the Information to the first appearance in Superior Court.

Overview of the Preliminary Inquiry Provisions

[9] There are two paths to the Superior Court set out in Section 536.

[10] An accused who is charged with at least one 14+ offence is read the election set out in Section 536(2) of the Criminal Code, which provides that he will have a preliminary inquiry only if he, or the Crown, requests one. If he elects trial in Superior Court and there is no request for a preliminary inquiry, the justice sets the date for his first appearance under Section 536(4.3).

[11] An accused who is not charged with any 14+ offences makes his election as to mode of trial pursuant to Section 536(2.1). He is not informed about a preliminary inquiry. If he elects trial in the Superior Court, the justice fixes his first appearance there under Section 536(4.3).

The Request for a Preliminary Inquiry

[12] Section 536(4) applies where a request is made for a preliminary inquiry. It provides:

If an accused referred to in subsection (2) elects to be tried [in the Superior Court of Justice] the justice shall… on the request of the accused or the prosecutor… hold a preliminary inquiry into the charge. (emphasis added)

[13] What is meant by "the charge"? On a plain reading, "the charge" refers back to the charge faced by "the accused referred to in subsection 2" namely "an indictable offence punishable by 14 years or more."

[14] Furthermore, there is no mention in Section 536(4) of an inquiry into the Information as a whole. Although this wording has not changed with the amendments, it takes on new significance where Parliament has eliminated the entitlement to a preliminary inquiry for indictable offences punishable by imprisonment for less than 14 years.

[15] Thus, the wording of Section 536 supports an interpretation of the preliminary inquiry which restricts it to the 14+ offences.

The Power to Conduct the Preliminary Inquiry

[16] Section 535 determines the scope of the preliminary inquiry. It provides:

If an accused who is charged with an indictable offence that is punishable by 14 years imprisonment or more is before a justice and a request has been made for a preliminary inquiry…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.

[17] The Justice is directed to inquire into:

(i) The charge: the charge clearly refers back to the beginning of the provision namely the indictable offence punishable by 14 years or more with which the accused is charged; and,

(ii) 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.

[18] The defence submits that the second area of inquiry, namely "any other indictable offence in respect of the same transaction" broadens the scope of the preliminary inquiry to include the other indictable offences set out in the Information. Therefore, the reasoning goes, once the 14+ offence triggers the preliminary inquiry, the proceeding is an inquiry into every count on the Information.

[19] The difficulty with that interpretation is that the section goes on to further qualify the other indictable offences. They must also be "founded on the facts that are disclosed by the evidence taken in accordance with this Part."

[20] This means that the Justice may inquire into other offences which arise from the evidence that is called during the inquiry into "the offence" (which I have shown refers to the 14+ offence). In other words, the inquiry is into "the offence" and any other indictable offence that is revealed by the evidence adduced during the inquiry into the 14+ offence.

[21] The function of the words "and any other indictable offence founded on the facts that are disclosed by the evidence taken in accordance with this Part" is to widen the scope of the inquiry in the same manner as it did before the amendments: the accused can be committed for trial on "the offence" which is the subject of the inquiry and any other offences in respect of the same transaction that are disclosed during the hearing of the evidence into "the offence".

[22] As a result, the wording of both Section 535 and Section 536 support the Crown's position that the preliminary inquiry is limited to an inquiry into the 14+ offence(s). Both sections direct the justice to inquire into "the charge". Both sections refer to an accused "who is charged with an indictable offence that is punishable by 14 years imprisonment or more." While Section 535 broadens the inquiry, it extends only to other indictable offences in respect of the same transaction that are founded on the facts disclosed by the evidence adduced during the inquiry into the 14+ offence(s).

The Principle of Strict Construction of Criminal Statutes

[23] The defence submit that I should be guided by the well-established rule of strict construction to the effect that criminal statutes should be interpreted in a manner most favourable to the accused. Applying this principle, it is submitted that the proper interpretation of Section 535 is that the scope of the inquiry includes the <14 offences because they are "other indictable offence(s) arising from the same transaction."

[24] The difficulty with this submission is that the Supreme Court of Canada has made it clear that the rule of strict construction has assumed a subsidiary role in the interpretation of statutes including the Criminal Code: R. v. Hasselwander, [1993] 2 S.C.R 398.

[25] The modern approach to statutory interpretation begins with Section 12 of the Interpretation Act, R.S.C., 1985, c. I-21 which provides that:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

In R. v. Hasselwander at page 413, Mr. Justice Cory resolved the conflict between the modern approach and the rule of strict construction as follows:

[T]he rule of strict construction becomes applicable only when attempts at the neutral interpretation suggested by s. 12 of the Interpretation Act still leave reasonable doubt as to the meaning or scope of the text of the statute. ...[T]his means that even with penal statutes, the real intention of the legislature must be sought, and the meaning compatible with its goals applied.

It is only where the language of a provision read in its entire context is ambiguous that the rule of strict construction becomes applicable. As I have indicated the defence submission ignores part of the language of the amended preliminary inquiry provisions. When read as a whole, the language is not ambiguous. Accordingly the rule of strict application does not apply.

Fairness

[26] The defence submits that the interpretation which restricts the scope of the preliminary inquiry to the 14+ offences is manifestly unfair. Such a preliminary inquiry deprives them of the discovery and screening functions in respect of counts in the information that are not punishable by 14+ years and yet the conduct of the preliminary inquiry makes them vulnerable to committal on other indictable offences disclosed by the evidence adduced during that proceeding.

[27] In fact, limiting the preliminary inquiry to the 14+ offence(s) is not unfair. The accused is in no better or worse position than other accused facing the same charges. Every accused charged with an offence punishable by less than 14 years is now deprived of the discovery and screening functions of the preliminary inquiry and every accused facing charges punishable by 14 years or more is vulnerable to committal on additional charges in respect of the same transaction arising from the evidence adduced at the preliminary inquiry if he requests one. In this regard the limitation on what additional offences the Court may inquire into is important: the scope is limited to offences that arise from the same transaction as the +14 offence(s). Thus the accused is protected from being committed to trial on offences which are unrelated to the subject-matter of the preliminary inquiry.

[28] Furthermore, there is nothing new about the strategic risk of requesting a preliminary inquiry: it has always been the case that an accused can emerge from a preliminary inquiry in a worse position than he would have been in had he gone directly to trial in the Superior Court.

The Intention of Parliament

[29] In Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, the Supreme Court of Canada endorsed the modern approach to statutory interpretation by which the words of the statute are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[30] In considering the amended preliminary inquiry provisions in R. v. R.S., 2019 ONSC 5497, Mr. Justice Thomas held at paragraph 62 as follows:

What is clear from the Minister of Justice's comments at the time of the passage of Bill C-75 is that the government believes the elimination of the majority of preliminary inquiries would modernize the justice system, speed up justice, protect victims, increase safety and enhance public confidence in the administration of justice.

[31] Limiting the preliminary inquiry to the 14+ offences meets these goals: It speeds up justice. It protects complainants. Mr Davis's information is a case in point: the length and complexity of his preliminary inquiry will be significantly reduced if it is limited to the four 14+ offences. The two complainants on the assault with a weapon counts will not be required to testify twice.

[32] The opposite interpretation leads to absurd results: some complainants would be subjected to examination and cross-examination at a preliminary inquiry only because the accused happened to be charged, in the same information, with one or more 14+ offences.

[33] Confining the preliminary inquiry to the 14+ offences is also consistent with the balanced approach which Parliament took in amending the preliminary inquiry provisions, reserving them to offences carrying the most serious penalties of imprisonment.

Practicalities

[34] The entitlement to a preliminary inquiry no longer attaches to the procedure by which the prosecution proceeds. Under the newly amended preliminary inquiry provisions the entitlement to a preliminary inquiry is attached to the class of offence.

[35] There is a natural tendency to resist change and to expect that it will be unwieldy and confusing. It need not be.

[36] As before, an accused will not make a separate election on each count. Pursuant to Section 536, he will be required to elect on the Information. If that Information contains one or more 14+ offences, both he and the Crown will be entitled to request a preliminary inquiry. If that request is made, the inquiry will proceed in the usual manner but only on the 14+ counts. The <14 offences will go to trial in the Superior Court regardless of the outcome of that inquiry.

[37] I see no bar to them remaining in this court until the preliminary inquiry is completed. At that point they can be sent to the Superior Court under the authority of Section 548(2.1) or Section 536(4.3).

Conclusion

[38] The newly amended provisions for the conduct of preliminary inquiries do not specifically address the procedure to deal with Informations where both +14 and <14 offences are charged. However, the words of Section 535, which defines the scope of the preliminary inquiry and Section 536(4), which directs the Justice to conduct it, read in their ordinary and grammatical sense, define the subject-matter of the inquiry as the 14+ offence(s). This interpretation of the scope of the preliminary inquiry is consistent with the intention of Parliament in making the amendments to the preliminary inquiry procedure.

[39] In restricting preliminary inquiries, Parliament sought to expedite proceedings, to protect vulnerable witnesses from being examined and cross-examined twice and to preserve the screening and disclosure functions of the preliminary inquiry for the most serious offences. All of those purposes are advanced by restricting the scope of preliminary inquiries only to offences punishable by 14 years or more.

[40] In respect of Mr. Davis the preliminary inquiry will proceed only on Counts 13, 14, 15 and 16 of the Information.

Released: October 1, 2019

Signed: "Justice M.E. Misener"