WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2020-10-23

Court File No.: Central East Region: Oshawa Court 19-25390

Between:

Her Majesty the Queen

— and —

M.R., T.J. and J.M.

Before: Justice Peter C. West

Heard on: October 5, 2020

Reasons for Judgment released on: October 23, 2020

Counsel

Ms. M. Newhouse and Ms. K. Myge — counsel for the Crown

Mr. J. Rabinovitch — counsel for the accused M.R.

Mr. C. Rippell — counsel for the accused T.J.

Mr. B. Funston — counsel for the accused J.M.

WEST J.:

Introduction

[1] On June 21, 2019, Parliament enacted legislation that substantially limited the availability of preliminary inquiries in criminal proceedings of indictable offences. These provisions came into force on September 19, 2019. Prior to the amendments, any defendant who elected trial in the Superior Court of Justice could request a preliminary inquiry, but after the amendments defendants are able to request preliminary inquiries only for offences where the maximum penalty is 14 years imprisonment or more (14+ offences). There is nothing in the amendments addressing the procedure to be followed where an Information includes both 14+ offences and less than 14 years (<14 offences).

[2] The Crown brought an application for direction respecting a preliminary hearing scheduled to commence on November 4, 2020, for 5 days. The application seeking directions is in regard to the scope of the preliminary hearing pursuant to ss. 535, 536(2) and 536(4) of the Criminal Code of Canada (Criminal Code).

[3] Specifically, the Crown is seeking direction on whether an Ontario Court of Justice preliminary inquiry judge has "jurisdiction to hear evidence and decide whether to commit an accused to trial at a preliminary hearing for ineligible offences (s. 536(2.1), offences on the Information for which the maximum sentence is less than 14 years and which are charged in the same Information with eligible offences (s. 536(2) and (4)) 14+ offences.

[4] In this case two of the defendants, M.R. and T.J. elected trial in the Superior Court before a judge and jury and elected to have a preliminary hearing. J.M. did not elect and is governed by s. 536(4.2).

[5] The eligible offences for a defendant to request a preliminary inquiry in the Information are as follows:

• Possess child pornography for the purpose of publication (Count 1) – M.R. only
• Human trafficking (to be amended to Human trafficking under 18) (Count 2) – M.R. only
• Material benefit from Human trafficking under 18 (Count 3) – M.R. only
• Material benefit from 286.1 offence (Count 5) – M.R. only
• Procuring under 18 (Count 6) – M.R. only
• Trafficking – Cocaine (Count 8) – M.R. only
• Discharge firearm (Count 9) – M.R. only
• Gang sexual assault (Count 10) – M.R., J.M.
• Sexual exploitation x2 (Counts 11, 12) – M.R. only
• Possession for the purpose – Cocaine (Count 14) – M.R., T.J.
• Possession for the purpose – MDMA (Count 15) – M.R., T.J.
• Sexual assault causing bodily harm (Count 29) – J.M. only

[6] The ineligible offences in the Information are as follows:

• Obtain sexual services for consideration (to be amended to 'Communicating to obtain sexual services for consideration') (Count 4) – M.R. only
• Advertise sexual services (Count 7) – M.R. only
• Possess firearms while prohibited (Count 13) – M.R., T.J.
• Careless use of firearm (Count 16) – M.R., T.J.
• Weapons dangerous (Count 17) – M.R., T.J.
• Possess firearm, etc. (Counts 18-21) – M.R., T.J.
• Obstruct peace officer (Count 22) – T.J. only
• Fail to comply release order (Counts 23-27) – T.J. only
• Utter threats (Count 28) – J.M. only
• Forcible confinement (Count 30) – J.M. only

Position of the Parties

[7] The Crown took the position that the new provisions respecting preliminary inquiries do not permit the preliminary inquiry judge to decide committal on the <14 offences contained in the Information. These <14 offences are to be remitted to the Superior Court after the preliminary inquiry is completed, regardless of whether the 14+ offences are committed for trial or discharged completely or partially. The Crown relies on the decision of Justice Misener in R. v. Davis, [2019] O.J. No. 4988 (OCJ) to support their submission, as well as the new provisions set out in ss. 535 - 536 of the Criminal Code.

[8] Mr. Rabinovitch, for Mr. T.J., argued the new provisions permit a preliminary inquiry judge, where there is at least one 14+ offence on an Information, to consider every other count of that Information that arises out of the "same transaction," relying on the language contained in s. 535 of the Criminal Code. It was his position the preliminary inquiry judge should have the authority to discharge a defendant in respect of other indictable <14 offences on the same Information when finding the 14+ offence, arising out of the same transaction, does not meet the test for committal. He argued it would be absurd for the preliminary inquiry judge not to have that power and jurisdiction.

[9] Mr. Rippell, for Mr. M.R., submitted if a defendant is charged with a 14+ offence and requests a preliminary inquiry, the preliminary judge pursuant to s. 535 is to inquire into that charge and "any other indictable offence, in respect of the same transaction" (s. 535). In his submission, this means the preliminary inquiry judge where there is sufficient evidence could commit the defendant to stand trial on the 14+ offence and any other indictable offence, including <14 offences, in respect of the same transaction.

[10] Mr. Rippell agreed if an Information contains only <14 offences, after the amendments, there is no right to request a preliminary inquiry. However, if there are both 14+ and <14 offences on the same Information, which arise out of the same transaction, a preliminary inquiry judge should not only have jurisdiction to discharge a defendant after determining there is not sufficient evidence on the 14+ offence(s) but also on the <14 offence(s) arising out of the same transaction and contained in the Information. Mr. Rippell also pointed to s. 536(4.3), which indicates if a defendant does not request a preliminary inquiry under s. 536(4), the Ontario Court of Justice judge shall fix the date for trial or the date when the accused must appear in the Superior Court for the trial date to be fixed. It was his position that there is nothing in the amendments indicating <14 offences are to "tag" along with the 14+ offences at a preliminary inquiry where one is requested. He queried whether the <14 offences should therefore be sent immediately to the Superior Court when the election is made by the defendant. Ultimately, his position ended up being the same as Mr. Rabinovitch, if the <14 offences arise out of the same transaction as the 14+ offences then the preliminary inquiry judge should have jurisdiction over all offences on the Information to either order the defendant to stand trial or to discharge the defendant.

The Amended Sections

[11] The powers and jurisdiction of a preliminary inquiry judge are statutory and must derive expressly from or by necessary implication of the enabling provisions. The amended and new provisions under Part VIII, which deal with the Procedure on Preliminary Inquiry restrict a defendant's right to a preliminary inquiry to only offences where the maximum sentence is 14 years or more.

[12] Section 536 sets out two pathways to the Superior Court of Ontario for trial: The first pathway is where the Information contains at least one 14+ offence, where the defendant is read the election pursuant to s. 536(2), electing a trial before a judge alone or a judge and jury and further, is entitled to request a preliminary inquiry. If there is no request for a preliminary hearing the justice affixes a date for the first appearance under s. 536(4.3). The second pathway is where the defendant is charged with only <14 offence(s) and the election is read pursuant to s. 536(2.1). The defendant cannot request a preliminary inquiry as one is no longer available for <14 offences. If the election is in the Superior Court then the justice fixes the first appearance in accordance with s. 536(4.3). (See R. v. Davis, at paras. 9-11.)

[13] Although s. 536(2) does not specifically address what occurs where an Information contains both 14+ and <14 offences, it is my view Parliament meant for preliminary inquiries to be restricted to charges where the maximum sentence was 14 years or more. This was the conclusion Justice Misener came to in R. v. Davis, at para. 6, and I agree with her conclusion and her reasoning.

[14] Where a defendant has the right to request a preliminary hearing, s. 536(4) applies. It reads:

(4) If an accused referred to in subsection (2) elects to be tried by a judge without a jury or by a court composed of a judge and jury…the justice shall…on the request of the accused or the prosecutor…hold a preliminary inquiry into the charge.

[15] In R. v. Davis, at para. 13, Justice Misener asked, "What is meant by 'the charge'? I agree with her conclusion that on a plain reading of the provisions 'the charge' refers back to the 'charge' faced by the defendant in s. 536(2), namely, "an indictable offence punishable by 14 years or more." This is also the 'charge' referred to in s. 535. I adopt Justice Misener's conclusion respecting the operation of ss. 536(2) and (4) at paras. 14 and 15:

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.

[16] Section 535 makes it very clear a defendant who is charged with a 14+ offence and who makes a request for a preliminary inquiry, the justice shall hold a preliminary inquiry to 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] In this section the preliminary inquiry judge is directed to inquire into:

i. The charge, which clearly refers to an indictable offence punishable by 14 years or more;

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] Mr. Rabinovitch and Mr. Rippell argue the phrase, "any other indictable offence in respect of the same transaction" in s. 535 broadens the scope of the preliminary inquiry to include any other indictable offence set out in the Information, even if that offence is a <14 offence. Their submission is once a preliminary inquiry is triggered by a 14+ offence then the preliminary hearing is an inquiry to all offences arising from the same transaction as the 14+ offence. I agree with Justice Misener's observation that the other indictable offences must be "founded on the facts that are disclosed by the evidence taken in accordance with this Part," which means the preliminary inquiry judge may inquire only into other offences that arise from the evidence called into the offence that is punishable by 14 years or more. This view is further supported by Justice Doherty in R. v. R.S., 2019 ONCA 906, [2019] O.J. No. 5773 (C.A.), which addressed the effect of the amendments in respect of charges laid prior to September 19, 2019 (the day the amendments came into force), where

1. a defendant had commenced a preliminary inquiry that was still ongoing after that date, or

2. a defendant had scheduled a preliminary inquiry to commence after that date, or

3. a defendant had expressed an intention to elect trial in the Superior Court and requested a preliminary inquiry but had not yet set the dates.

[19] Ultimately the Court of Appeal overturned Regional Senior Justice Thomas' decision in R. v. R.S., 2019 ONSC 5497 that the entitlement to a preliminary inquiry only occurred in respect of 14+ offences, holding a preliminary inquiry judge would deal with both 14+ and <14 offences where the charges were laid prior to September 19, 2019 and one of the three circumstances listed above existed. Justice Doherty was clear, however,

…under the repealed legislation, the right to elect trial in the Superior Court of Justice carried with it the automatic right to request a preliminary inquiry and, when a preliminary inquiry was requested, the court was obligated to hold a preliminary inquiry. Under the amended legislation, the ability to request a preliminary inquiry and the consequential requirement on the court to hold a preliminary inquiry does not flow automatically upon an election for trial in the Superior Court of Justice, but is available only where the accused faces charges carrying a maximum penalty of 14 years' imprisonment or more. Consequently, accused, like the appellants, charged with an indictable offence punishable by less than 14 years' imprisonment may still elect their mode of trial under the amendments, but they can no longer request or obtain a preliminary inquiry. (Emphasis added)

[20] Mr. Rippell argued the rule of strict construction of criminal statutes, which held criminal statutes that are ambiguous should be interpreted in a manner most favourable to the accused. He submitted if this principle is applied to s. 535 the scope of the inquiry should include those <14 offences that are "other indictable offences arising from the same transaction" and contained in the same Information. Justice Misener in R. v. Davis, at paras. 24-25, pointed to the modern approach to statutory interpretation beginning with Section 12 of the Interpretation Act, R.S.C., 1985, c. I-21, which provides

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.

[21] She cited R. v. Hasselwander, [1993] 2 S.C.R. 398, at p. 413, where 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.

[22] I agree with Justice Misener that when the entire context of the preliminary amendments are read as a whole, the language is not ambiguous and accordingly, the rule of strict construction does not apply. Mr. Rabinovitch submitted that Justice Misener's ruling agreed with his submissions concerning s. 535. With the greatest of respect to Mr. Rabinovitch, Justice Misener does not agree with his reading of s. 535, in fact, at para. 6, she clearly indicated that for the reasons that follow, she found the preliminary hearing was restricted to the 14+ offences only. Further, as I have discussed above, she analyzed s. 535 and found a defendant can only request a preliminary inquiry in respect of a 14+ offence. As she indicates, "the entitlement to a preliminary inquiry is attached to the class of offence….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 preliminary inquiry." (R. v. Davis, paras. 34-36)

[23] Mr. Rippell argued that s. 536(4.3) somehow required the Ontario Court of Justice judge to order the <14 offence(s) be sent to the Superior Court immediately, as there is no entitlement to a preliminary inquiry on those offences. The difficulty with this submission is that all of the offences are on one Information. Mr. Rippell would have to bring a severance application if he wanted the <14 offences to be dealt with separately from the 14+ offences, otherwise, all offences are on one Information and I agree with Justice Misener's observation that there is no bar to <14 offences remaining in the Ontario Court of Justice until the preliminary inquiry is completed respecting the 14+ offences under the authority of ss. 548(2.1) or 536(4.3).

[24] Finally, the defence posited a situation where the preliminary inquiry judge found the 14+ offence(s) should be discharged because there was no evidence to justify committal, however the <14 offence(s), in respect of the same transaction, that were in the same Information would have to be sent to the Superior Court to fix a trial date. The defence argued it would be unfair for the preliminary inquiry judge to have the power and jurisdiction to commit a defendant on a 14+ offence and any other indictable offences (whether 14+ or <14) in respect of the same transaction but not have the power and jurisdiction to discharge a defendant on the <14 offences already included in the Information before the court arising out of the same transaction.

[25] In Justice Doherty's decision in R. v. R.S., at para. 48, he held: "The preliminary inquiry is part of a broader criminal process applicable to some indictable offences. There is no vested right to a particular procedure. Changes to, or the elimination of, some part of the process cannot be equated with the removal of a substantive right." Parliament is therefore entitled to change or amend the procedure respecting which offences a defendant is entitled to request a preliminary inquiry.

[26] It is significant in my view that s. 535 indicates that where a request has been made for a preliminary inquiry under s. 536(4), the preliminary inquiry judge, "in accordance with this Part," must 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." The only offences under "this Part" where a defendant is entitled to request a preliminary inquiry are 14+ offences. The "any other indictable offence, in respect of the same transaction" refers to offences disclosed by the evidence taken at a preliminary inquiry in respect of a 14+ offence. Part VIII is clear that a preliminary inquiry cannot be requested in respect of a <14 offence(s). Consequently, the preliminary inquiry judge, who obtains his/her authority and power from statute has no jurisdiction to discharge a defendant on a <14 offence contained in the same Information as a 14+ offence(s) because the preliminary inquiry is being held only in respect of a 14+ offence(s), pursuant to the provisions under Part VIII.

[27] I find therefore the preliminary inquiry scheduled for the three defendants is restricted to the eligible 14+ offences.

One Final Direction

[28] As I indicated at the end of submissions, there appear to be <14 offence(s) contained in the Information which relate to the 14+ offence(s) upon which the defendants have requested a preliminary inquiry. An example of this relates to the 14+ offence of sexual assault causing bodily harm and gang sexual assault faced by Mr. J.M. Mr. J.M. is also facing <14 offences of forcible confinement and uttering threats, which there will not be a preliminary inquiry. However, the probability of the complainant's evidence on the 14+ offence of sexual assault causing bodily harm touching evidence relating to the facts involved in the offences of forcible confinement and uttering threats is high. I expressed my view, if the complainant's evidence dealt with those offences the defence would be permitted to cross-examine on that evidence. Ms. Newhouse advised she would take no objection to this, although, even if she had raised an objection it is my view the only logical conclusion would be to allow cross-examination in areas of the evidence that are testified to by the witness.

[29] Similarly, the search warrant obtained by police, which led to the discovery of drugs and a 9mm handgun. The drug charges are 14+ offences but the gun charges are <14 offences. Clearly these offences are not part of the same transaction as they each involve different delicts, however, the discovery of the two different illegal items occurred, as a result of a search warrant issued to search an Airbnb associated with the defendants. Similarly, cross-examination concerning the execution of the search warrant will not be restricted to the discovery of the subject-matter of the 14+ possession for the purpose of trafficking drug charges. Again, Ms. Newhouse indicated she would not raise any objection.

[30] It is my view however that I have no power or jurisdiction to hold a preliminary inquiry on the <14 offences contained in the Information before me, nor do I have any power or jurisdiction to discharge the defendants on those offences. Those offences will be remitted to the Superior Court and will be dealt with by a Superior Court judge once those offences are before that court.

Released: October 23, 2020

Signed: Justice Peter C. West