Court File and Parties

Ontario Court of Justice

Date: October 2, 2019

Court File No.: Barrie 18-1072; 18-9240

Between:

Her Majesty the Queen

— and —

Niyazi Rasidoff

And Between:

Her Majesty the Queen

— and —

N.J.

Before: Justice R.E. Gattrell

Heard on: September 25, 2019

Reasons for Decision released on: October 2, 2019

Counsel

Lynne Saunders — counsel for the Crown

Yuliya Platonov — counsel for the accused Niyazi Rasidoff

John Raftery — counsel for the accused N.J.

Decision

GATTRELL J.:

Background

[1] The Crown applies to vacate the preliminary hearing of N.J. and seeks a ruling that Niyazi Rasidoff is not entitled to have one.

[2] N.J. has a preliminary hearing date of October 3, 2019; Mr. Rasidoff has yet to set a date but hopes to do so. Their cases are unrelated. They appear together as they are responding to identical Crown applications.

The Legislative Change

[3] On September 19, 2019, the law changed with respect to preliminary hearings. As of that date, the Criminal Code provisions only allow an accused to request a hearing where the offence carries with it the potential of imprisonment for 14 years or more. N.J. and Niyazi Rasidoff are both charged with sexual assault, an offence which attracts a maximum term of imprisonment of 10 years.

[4] N.J. and Rasidoff both elected to have a trial in the Superior Court. They made their elections prior to September 19, 2019. At the time, s.535 of the Criminal Code allowed them to request a preliminary hearing before a Provincial Court judge. They each made that request.

[5] The Crown says that the amendment removes the jurisdiction of the Ontario Court of Justice to conduct preliminary hearings in these matters.

[6] N.J. and Rasidoff submit that their requests were valid at the time they were made and remain so. They made their requests before the amendments came into effect. There is nothing in the amended provisions to indicate that previous requests will not be honoured; only that no further such requests can be made.

The Issue: Retrospective or Prospective Application

[7] If the amendments apply retrospectively or immediately, this court no longer has jurisdiction to conduct these preliminary hearings. If the new legislation applies prospectively, these cases are not caught by the amendments.

[8] The legislation is silent in this regard. There is no preamble or transitional provision to reveal what Parliament intended.

[9] Comments made in the House of Commons and the Senate offer no meaningful insight into Parliament's intent with respect to the immediate effect of the amendments.

[10] The issue can only be resolved through an exercise in statutory interpretation. If purely procedural in nature, and without impact on substantive rights, the amendments apply retrospectively. If they change the law with respect to substantive rights or if they change the law with respect to procedure, such that they nevertheless affect substantive rights, they must apply prospectively.

Prior Judicial Decisions

[11] Other judges have preceded me in considering this issue. At the application, I was provided with the recent decisions of the Ontario Court of Justice. I list them below with the dates of release noted:

• R. v. R.S., 2019 ONCJ 629 (September 11, 2019)
• R. v. Fraser, 2019 ONCJ 652 (September 20, 2019)
• R. v. A.S., 2019 ONCJ 655 (September 23, 2019)
• R. v. N.F., 2019 ONCJ 656 (September 23, 2019)
• R. v. Kozak, 2019 ONCJ 657 (September 24, 2019)

[12] In R. v. A.S., Justice Downes holds that the amendments are purely procedural and therefore apply retrospectively. The other decisions hold that the amendments operate prospectively, although they arrive at this result by a variety of paths.

The Superior Court Decision

[13] The Crown brought an application (of prohibition with certiorari in aid) in the Superior Court to review the decision in R. v. R.S. On September 27, 2019, the decision of the Superior Court was released: R. v. R.S., 2019 ONSC 5497.

[14] Justice Thomas concluded as follows:

The amendments to s.535 came into effect September 19, 2019. These amendments are procedural. These amendments do not affect a vested or substantive right. 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.

Procedural History

[15] At the conclusion of the application in the present case, the Court and the parties agreed that further communication could take place using email. With the release of the decision in R. v. R.S., 2019 ONSC 5497, I wanted to allow the parties the opportunity to make further submissions if they wished. I sent an email to the parties on September 29, 2019, asking the parties to let me know if they wished to make further submissions. I also indicated that, notwithstanding the tight timelines, I still wished to release a decision prior to N.J.'s scheduled preliminary hearing date of October 3, 2019.

[16] On September 30, 2019, I received brief written submissions from the Crown.

[17] Having had no response from defence counsel, on October 1, 2019, the court sent a further email indicating that if there was no response by the end of the business day, a decision would be released at noon on October 2, 2019. Mr. Raftery sent an email indicating that R. v. R.S. is scheduled to be argued in the Court of Appeal at the end of October and raised the possibility of reserving this decision to see the outcome of the appeal. I indicated that, if the Crown consented to such a postponement, I would reserve; otherwise, I would proceed as anticipated. The Crown does not consent. Accordingly, I am proceeding with my decision.

Application of Stare Decisis

[18] The Crown submits that this court is bound by the doctrine of stare decisis to follow the Superior Court decision in R. v. R.S. That doctrine posits a hierarchy of courts. The Superior Court is a higher level of court than the provincial court. A lower court is bound by the decision of a higher court when that higher court is sitting in review of a decision of the lower court.

[19] If R. v. R.S. is binding on this court, then I must grant the Crown's applications.

[20] This court would be bound by an appeal decision from a higher court. The question of whether this court is bound generally by a certiorari decision is not one that often arises. The reviewing court in a certiorari application deals with matters of jurisdiction. Typically, the issue will be whether the provincial court judge exceeded or failed to exercise his or her jurisdiction. The ambit of that jurisdiction is rarely at issue. Thus, the vast majority of such rulings are case-specific and have no bearing on other pending cases. However, in R. v. R.S., it is clear that the Superior Court decision has general application. It speaks to the jurisdiction of the provincial court in respect of all preliminary hearings.

[21] For a discussion of the application of stare decisis in relation to reviews by way of certiorari in the context of the present issue, see R. v. Dabrowski, 2019 ONCJ 677 (released September 30, 2019), at paragraphs 10-33. I agree with and adopt the reasoning of Justice McHugh in that decision wherein he finds that the Ontario Court of Justice is bound by the decision of Justice Thomas.

[22] Accordingly, I find that stare decisis applies and that I am bound to follow the Superior Court decision in R. v. R.S.

Alternative Position

[23] The above reasons are sufficient to dispose of the matter; however, to the extent that it may be relevant, I will state the position I would have arrived at in the absence of the intervening decision on review in R. v. R.S.

[24] I would have ruled that the amendments apply retrospectively, for substantially the same reasons expressed by Justice Downes in R. v. A.S., 2019 ONCJ 655.

[25] This is not to ignore the inconvenience that will be caused to parties or the disruptions to the court schedule. These things are self-evident. But such concerns cannot confer jurisdiction where none exists.

Disposition

[26] In the result, the preliminary hearing of N.J. will be vacated. Niyazi Rasidoff is not entitled to a preliminary hearing. These matters will proceed to the Superior Court for trial or the parties may re-elect and choose to have their trials in the Ontario Court of Justice.

Released: October 2, 2019

Signed: Justice R.E. Gattrell