Court Information

Ontario Court of Justice

Date: October 2, 2019

Court File No.: TORONTO 18-55002741; 18-55003644

Parties

Between:

Her Majesty the Queen

— AND —

Nicolas Iaboni

Her Majesty the Queen

— AND —

Michael Owusu Bonsu

Judicial Information

Before: Justice P. Robertson

Heard on: September 18, 2019 and October 1, 2019

Ruling released on: October 2, 2019

Counsel

A. Bradstreet and S. Rothman — counsel for the Crown

R. Chartier — counsel for N. Iaboni

A. Weisberg — counsel for M. Owusu Bonsu

Judgment

Robertson, J.:

[1] On September 19, 2019, s. 535 of the Criminal Code was amended to restrict the accused from requesting a preliminary inquiry except in those cases where the accused is charged with an offence of which the maximum sentence of imprisonment is one of 14 years or more.

[2] The issue before me is whether the amending legislation applies retroactively, undoing the legal effect of the validly made election before September 19 by the accused, to have a preliminary inquiry.

[3] The crown submits that as of September 19, prior elections for a preliminary inquiry in all cases where the maximum penalty is less than 14 years are now a nullity, that this Court has no jurisdiction to conduct a preliminary inquiry in such cases, and that the accused must be remanded to the Superior Court of Justice, barring a re-election for trial in the Ontario Court of Justice.

[4] The defence submits the amending legislation affects substantive and vested rights, is not purely procedural and therefore does not apply retroactively. They agree the amending legislation applies retrospectively in the sense it affects all cases regardless of offence date, but the amending legislation does not invalidate the accused's election to have a preliminary inquiry made prior to the enactment. They submit the election survives the enactment of the amending legislation and remains valid and that this Court retains jurisdiction to conduct the preliminary inquiries. They note, the amending legislation contains no provision to undo an election validly made prior to September 19th.

[5] The Provincial Crown has filed Notices of Application seeking a declaration that the Ontario Court of Justice has lost jurisdiction to conduct preliminary inquiries except on those charges where the offence carries a maximum sentence of 14 years or more. This issue is being litigated across the Province.

[6] In the present case, I agreed to hear two such Applications together given the identical underlying facts. In both cases the accused is charged with indictable offences which carry a maximum sentence of imprisonment of less than 14 years. In each case the accused was put to his formal election before the effective date of the amending legislation and in each case the accused elected to have a preliminary inquiry and be tried in the Superior Court.

[7] Mr. Owusu-Bonsu's preliminary inquiry is scheduled to commence on October 3, tomorrow, Mr. Iaboni's on October 31. In both cases I am the Justice assigned to preside over the proceedings.

[8] Since the time I heard submissions in this case, several judgments from the Ontario Court of Justice have been rendered on identical factual situations. One of those cases has been the subject of an Application by the Crown for Certiorari. Judgment in that case, R. v. R.S. (and four others) 2019 ONSC 5497 was released last Friday afternoon.

[9] Justice Thomas granted the Crown's application for the extraordinary remedy, finding that the respondent accused does not have the option of a preliminary inquiry. He concluded that as of September 19, 2019, the Ontario Court of Justice does not have jurisdiction to conduct preliminary inquiries unless the offence has a potential penalty of 14 years or more.

[10] He further directs that the respondent should be returned to the Ontario Court of Justice and by put to the election now prescribed by s. 536 (2.1).

[11] Following the release of this decision, I was advised that defence counsel wished to make submissions to me on the issue as to whether I was bound by Justice Thomas' judgment.

[12] I heard further submissions from Mr. Weisberg, counsel for Mr. Owusu Bonsu. Those submissions were adopted by Mr. Chartier, counsel for Mr. Iaboni.

[13] Mr. Weisberg argues I am not bound by his Honour's ruling. He relies primarily on the case of R. v. Mansour, an unreported judgment of Justice Dorval (released April 30, 2018 Ottawa 16-A13065). This was a case involving a defence application for DRE rolling logs. It was an application made after the release of the judgment in R. v. Stipo, [2017] ONSC 5208, wherein Justice Schreck had dismissed a Crown application for certiorari to quash an order by a trial court for production of the logs. Justice Dorval was delivering judgment on Mansour before Stipo was appealed to the Court of Appeal. Her Honour at para. 14 found that Justice Schreck's decision was "not strictly binding on me". Mr. Weisberg also relies on the fact the crown in that case, "essentially conceded that Justice Schreck's decision in R. v. Stipo is not binding on this Court as it was given in the context of a certiorari, an extraordinary remedy that rests on issues of jurisdiction of the trial court."

[14] I unfortunately do not find that Mansour is of much assistance in determining the issue as to whether I am bound by the decision of Justice Thomas. In Mansour the Court accepted the crown's concession without much analysis. It is not a persuasive authority other than to show the position of the crown is variable.

[15] A prerogative relief is a judicial review by a Superior Court of a decision of a lower Court. It is a review not on the merits of the decision but on an alleged loss, refusal or excess of jurisdiction of the lower court; R. v. Sarson, [1992] O.J. 1089 (Ont. Gen. Div.).

[16] As outlined in the judgment of R. v. Dabrowski, [2019] ONCJ 677, which was released two days ago, there is scare jurisprudence on the issue of the binding authority of a ruling on a certiorari application. Justice McHugh unearthed two authorities. The first is a decision in Regional Municipality of York v. Martinez, [2014] O.J. 5277. I don't find this case of any assistance in resolving the issue before me as it cites no authority for the proposition that Superior Court decisions on prerogative remedy applications are binding on the lower court.

[17] The other case cited in Dabrowski is the case of R. v. Letourneau, 2008 ABPC 192, [2008] A.J. 752 (Alta. Prov. Ct.). This case provides an overview of the concept of stare decisis. Although not on the direct issue before that Court (it was dealing with the issue of concurrent jurisdiction), in reviewing the relevant jurisprudence the Court made the following comments at paras 27-29:

27 The Court of Queen's Bench in Alberta operates an appellate Court for the purpose of offences tried by summary conviction. A Judge of that Court can also review the decision of a Provincial Court Judge when the applicant seeks an extraordinary remedy. Where an offence is indictable, the appeal from a Provincial Court Judge's decision is directly to the Alberta Court of Appeal.

28 The Court of Queen's Bench also hears trials on criminal offences. A Provincial Court Judge could hear a trial related to many of those same offences where the accused choose to have a Provincial Court Judge hear their trial. In other words, the Provincial Court and the Court of Queen's Bench exercise coordinate jurisdiction in relation to the offences that both can try.

29 There can be no question that the decision of a Queen's Bench Justice relating to a summary conviction appeal is binding upon the Judges of the Provincial Court. Similarly, there can be no question that a decision of a Justice related to an extraordinary remedy is binding.

[18] The Court structure is the same in Ontario as it is in Alberta.

[19] This case, though not binding on me, cannot be distinguished from the case before me. Like the Court's conclusion in Dabrowski et al., I find this decision supports the contention that Justice Thomas' decision in R.S. is binding upon me.

[20] As stated by the Supreme Court in Carter v. Canada (A.G.), 2015 SCC 5, [2015] 1 S.C.R. 331 at para. 44:

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.

[21] Justice Thomas in R.S. was sitting in an appellate or reviewing capacity of a lower Court decision. His conclusion is clear – "As of September 19, 2019, the Ontario Court of Justice no longer has jurisdiction to conduct preliminary inquiries unless the offence has a potential penalty of 14 years or more."

[22] The accused in this Application were in no different a position than the accused in R.S.

[23] R. v. R.S. is part of the orderly development of the law in incremental steps.

[24] As my colleague Justice McHugh concluded, I am not presently at liberty to consider the various Ontario Court of Justice's decisions on the effect of Bill C-75 on the jurisdiction of this Court to conduct preliminary inquiries of accused who elected to have such before September 19th.

[25] I have been advised R.S. has been set down for a hearing before the Court of Appeal for October 28, 2019. The next incremental step in the orderly development of the law can't happen fast enough.

[26] Mr. Weisberg, I appreciated your request for adjournment of this decision pending the outcome of the appeal of R.S. Although I am hopeful for some clarity as soon as possible, there is no guarantee as to when the Court of Appeal will be able to render judgment.

[27] I appreciate that this judgment will have a direct and immediate effect on your client and your trial strategy for a proceeding scheduled to commence tomorrow. I will hear submissions on the next appropriate steps from the parties.

Released: October 2, 2019

Signed: Justice P. Robertson