Court File and Parties

Ontario Court of Justice

Date: 2019-10-08

Court File No.: Burlington 1211180 18 - 4496

Between:

Her Majesty the Queen

— and —

A.B.

Before: Justice G.P. Renwick

Heard on: 08 October 2019

Reasons for Judgment released on: 08 October 2019

Counsel

M. Carnegie — counsel for the Crown

V. David — counsel for the defendant A.B.

Reasons for Judgment

RENWICK J.: (Orally)

[1] I have been asked to address the scope of the preliminary inquiry following the recent legislative changes created by the passage of Bill C-75. The prosecution contends that the recent amendments preclude a preliminary hearing from taking evidence in respect of other counts on the Information which do not meet the threshold under s. 535 for consideration. That is to say, those allegations that do not involve the potential for punishment by imprisonment of 14 or more years ought not to be heard during the preliminary hearing.

[2] Counsel for the Defendant seeks to rely on the words "the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, found on the facts that are disclosed by the evidence taken in accordance with this Part."

[3] The prosecutor submits that if these words are given the interpretation suggested by the Defendant, the amendment created by Bill C-75 restricting the preliminary inquiry to those offences with a punishment of 14 or more years imprisonment ("14+ offences") would be moot.

[4] The Defendant argues that this wording clearly supports the taking of evidence where the allegations are a part of the same transaction that give rise to the 14+ offence or offences.

[5] I have read and considered the decision of my colleague, Justice Misener in R. v. Davis, released on 01 October 2019. While it is not binding, it is persuasive. I agree with the reasoning, subject to my decision, below.

[6] My own interpretation of the amendment is that all allegations that take place during the same transaction as an alleged 14+ offence may be the subject of a preliminary hearing. That would include offences already found on the Information and those that were not initially charged. This interpretation allows the preliminary hearing to remain focused upon the 14+ offence or offences, while only hearing other evidence in respect of non-14+ offences that are alleged to have taken place during the same transaction. This interpretation does not expand the scope of the preliminary hearing, but it does allow the Defendant the right to discover and test as much of the prosecution's case, which is consonant with Parliament's right to restrict preliminary hearings to the most serious of cases, as is appropriate in the circumstances.

[7] This does not mean that the preliminary hearing should stray beyond allegations arising beyond the 14+ offences, but where there is overlap in terms of the same transaction and there are other non-14+ offences alleged, evidence may be taken and a ruling on committal of these other offences should also take place during the Defendant's preliminary inquiry.

[8] I would also like to add that my decision is predicated upon the foundation that it is the Defendant's preliminary hearing. He or she is the one facing criminal charges and the possibility of a trial in the Superior Court. While Parliament can and should determine when a preliminary hearing should take place, the preliminary hearing justice should be given a complete evidentiary picture before deciding whether the Defendant ought to be committed to stand trial on the most serious of criminal charges. Permitting a Defendant the broadest right of cross-examination and discovery on other offences arising out of the same transaction should not be limited to the happenstance of which charges were considered or laid by the police.

Released: 08 October 2019

Justice G. Paul Renwick