WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2020-09-21

Court File No.: Bracebridge 2411-998-20-477-00

Between:

Her Majesty the Queen

— AND —

William Stengel

Before: Justice E.A. Carlton

Heard on: August 6, 2020

Reasons for Judgment released on: September 21, 2020

Counsel:

• Dan Thorpe, counsel for the Crown
• Michael Anne MacDonald, counsel for the accused William Stengel

Judgment

Carlton J.:

The Charges

[1] William Stengel is charged on an information sworn June 5, 2020 with, among other charges, Sexual Assault on a person under the age of 16, Sexual Interference and Invitation to Sexual Touching. The offences are alleged to have been committed during 2011 and 2012.

[2] The Crown has proceeded by indictment. Mr. Stengel has filed a "Notice of Election" requesting a preliminary hearing and then trial in the Superior Court.

[3] That election, or purported election, has caused the Crown to file an application seeking a declaration that this election is without jurisdiction and an order that the only election available to Mr. Stengel is that of trial either in the Ontario Court or in the Superior Court. The Crown submits that by virtue of the Bill C-75 amendments that Mr. Stengel has no right to a preliminary inquiry.

[4] The Court has the benefit of both oral and written submissions. I appreciate the efforts of both counsel to bring this matter before the court at an early opportunity so that it can be scheduled in an appropriate manner.

[5] In the reasons that follow I accept the position of Mr. Stengel that he does have the right to request a preliminary hearing and confirm the existing election as one available to him.

The Charges

[6] Mr. Stengel is charged with Sexual Assault on a person under the age of 16 contrary to section 271 of the Criminal Code, Sexual Interference contrary to section 151 of the Criminal Code and Invitation to Sexual Touching contrary to section 152 of the Criminal Code. Each offence sets out an alleged offence date having a range from January 1, 2012 to December 31, 2012. The complainant was under the age of 16 at the time of the alleged offences. Mr. Stengel does face other more recent charges on the information but none that would give him, as of now, the ability to request a preliminary inquiry.

[7] At the time the three offences were alleged to have been committed the maximum sentence for each of these offences was 10 years. On July 17, 2015, approximately 2 ½ years after the end of the alleged offending, the maximum sentence for each of these offences was increased to 14 years.

[8] Again, at the time the offences were alleged to have been committed, these offences were eligible for a preliminary hearing under the pre-September 19, 2019 version of sections 535 and 536(2) of the Criminal Code. These are indictable offences that are neither absolute jurisdiction offences nor s.469 offences requiring a jury trial and hence, an accused had the right to request a preliminary inquiry and then trial in the Superior Court.

[9] On September 19, 2019, Bill C-75 amended sections 535 and 536(2) of the Criminal Code to allow an accused to request a preliminary inquiry only when "charged with an indictable offence that is punishable by 14 years or more of imprisonment".

[10] It is the position of the applicant Crown that this recent amendment removes the ability of Mr. Stengel to request a preliminary inquiry. It submits the clear operation of section 11(i) of The Canadian Charter of Rights and Freedoms means that Mr. Stengel faces a maximum punishment on any one charge of 10 years in jail. The Crown therefore argues that Mr. Stengel is not "charged with an indictable offence that is punishable by 14 years or more of imprisonment".

[11] The Crown submits that such an interpretation is consistent with the decision by our Court of Appeal in R. v. R.S., 2019 ONCA 906, [2019] O.J. No. 5773 (C.A.). Further, the Crown submits that such an approach is consistent with the legislative intent and the proper application of the principles of statutory interpretation.

Preliminary Issue: Does Mr. Stengel Have an Acquired Right to a Preliminary Inquiry – the Application of R. v. R.S.

[12] As a preliminary issue, counsel for Mr. Stengel asserts that he has a right to a preliminary inquiry as the Criminal Code provided for a preliminary inquiry when these offences were alleged to have been committed.

[13] In my view, the Ontario Court of Appeal's decision in R. v. R.S. is a complete answer to this submission. The Court found that while there was no "standalone substantive right" to a preliminary inquiry (at para. 48), that those persons who had already elected their mode of trial and requested a preliminary hearing (or made that intention clear) as of September 19, 2019 had acquired a substantive right to a preliminary inquiry.

[14] Mr. Stengel was charged after the enactment of Bill C-75. He is in a position similar to those who were before the Court on September 19, 2019 but had not made a request or expressed an intention to have a preliminary inquiry.

[15] Thus, if the Crown position is correct and Mr. Stengel is not charged with "an indictable offence punishable by 14 years or more of imprisonment" then he is not able to request a preliminary inquiry. The fact Mr. Stengel would have had the ability to request a preliminary inquiry had he been before the Court prior to September 19, 2019 does not affect the application of the Bill C-75 provisions to Mr. Stengel.

[16] Conversely, if the Crown position is incorrect and Mr. Stengel is charged with "an indictable offence punishable by 14 years or more" then Mr. Stengel's request for a preliminary inquiry is a valid one.

[17] In my view, the issue is resolved based on the interpretation of the words in sections 535 and 536(2) of "charged with an indictable offence that is punishable by 14 years or more of imprisonment" and not on the basis of any acquired right to a preliminary inquiry.

The Interpretation of Sections 535 and 536(2) of the Criminal Code

(i) The Benefit of Lesser Punishment

[18] The current indictable offences of Sexual Assault on a person under the age of 16, Sexual Interference and Invitation to Sexual Touching all carry maximum penalties of 14 years and as such, are included in those offences for which a preliminary hearing can be requested in section 535 and 536(2) of the Criminal Code.

[19] Any person convicted of either offence would presumptively face the current penalty of 14 years, and hence, have the right to request a preliminary inquiry. As a matter of form, a Charter application would be required to assert the right in section 11(i) of the Charter that Mr. Stengel had a right "if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment".

[20] Both parties agree that, in the circumstances of this case, it is so clear that section 11(i) application would be successful that it is unlikely that an application would even need to be brought. Mr. Stengel would then face only a maximum sentence of 10 years based on the offence as it was in effect in 2011 and 2012 and not 14 years as each offence now reads.

[21] While I have some reservations about conducting an analysis that is dependent on the outcome of a future Charter application, I will accept that approach. I will now set out the two arguments relied on by the Crown to support its position that Mr. Stengel is not "charged with an indictable offence that is punishable by 14 years or more of imprisonment".

(ii) The Intent of Parliament

[22] The Crown supplied the text of a speech by the Minister of Justice in the House of Commons[1]. That speech was in support of an earlier version of Bill C-75 that limited preliminary inquiries to offences punishable by life imprisonment.

[23] The Crown submits that nonetheless this speech makes clear the intent of Parliament to limit the scope of preliminary inquiries and to thereby increase court efficiency and reduce burdens on witnesses and victims from having to testify twice.

[24] I accept in general that these intentions are apparent in the Bill C-75 amendments. It is clear that the amendments as enacted significantly restrict the ability to request a preliminary hearing.

[25] At the same time the Court should be careful not to rely on a broad overall intent of Parliament in resolving a highly specific interpretive issue.

[26] The interpretation sought by the Crown would see that anyone charged with these offences for alleged offence dates after July 17, 2015 would have the right to request a preliminary hearing. Further, anyone charged with these offences for alleged offence dates prior to July 17, 2015 who had come before the court prior to September 19, 2019 and requested a preliminary inquiry would also have had that right. It would be only those who are charged with these offences for alleged offence dates prior to July 17, 2015 but who had not come before the Court to make their election prior to September 19, 2019 that would not have the right to request a preliminary hearing.

[27] While one may impute to Parliament a broad intent to limit the right to request a preliminary inquiry it is unlikely that there was a deliberate intent to carve out this small and distinct group of those charged with these offences from having the right to request a preliminary inquiry.

(iii) Statutory Interpretation of Sections 535 and 536(2)

[28] I rely on the approach to statutory interpretation as set out by the Court of Appeal in R. v. L.B., [2011] O.J. No. 891 (C.A.) at para. 51 as follows:

Statutory interpretation is a multi-faceted exercise that looks to the language used in the relevant provisions, the statutory context in which those provisions appear and the object and purpose of the provisions in issue: Re Application under s. 83.28 of the Criminal Code, 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 34. Professor Driedger's "modern principle" has become the accepted approach to statutory interpretation:

There is only one principle or approach, namely, the words of an Act 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.

[29] The Crown submits that its position is "consistent with the obvious meaning of the wording" of sections 535 and 536(2). The Crown submits that "charged with an indictable offence punishable by 14 years or more of imprisonment" effectively means an offence for which this specific accused is liable to 14 years or more, not an offence for which the maximum sentence in the current form of the Criminal Code meets or exceeds 14 years.

[30] Further, the Crown submits that its recommended interpretation of sections 535 and 536(2) is consistent with other sections of the Criminal Code. The Crown asserts that when the Code speaks of an "offence punishable by" a specific punishment that the Code is not referring to all persons charged with that offence but with the particular circumstances of the specific accused. Thus, for Mr. Stengel, given the right to a lesser punishment, it is submitted that he is charged with an offence punishable by 10 years and not 14 years as in the current version of the three offences.

[31] The Crown refers to section 737 of the Code that sets the quantum of the victim fine surcharge based on whether the specific offender has been convicted of an "offence punishable by" indictment or by summary conviction. The surcharge is based on the circumstances being faced by the specific offender. Similarly, in what is now section 320.19(1) the penalties for impaired operation and related offences depend on whether the Crown has served notice of increased penalty on the particular offender such that there is a mandatory minimum sentence.

[32] I accept that such analogies may be made. Ultimately, sentencing is a very specific process and a wide range of orders can be made based on the specific presentation of the offender and the applications brought by the Crown including, for example, various ancillary orders. The sentencing process, if it occurs, is the last stage of the trial process. At that point the process has narrowed to the issues raised by the circumstances of the particular offence and the personal circumstances of the specific offender.

[33] Conversely, this application is addressed to one of the first procedural steps made in an indictable matter; the jurisdiction of the two levels of court. There needs to be an easily discernable way to determine whether or not a particular defendant is entitled to a preliminary inquiry. Sections 535 and 536(2) refer to an "indictable offence" that is punishable by 14 years or more. It does not refer to the maximum sentence faced by this specific accused before the Court.

[34] The Criminal Code is meant to be comprehensive and complete. When sections 535 and 536(2) refer to "an indictable offence punishable by 14 years or more of imprisonment", the goal of certainty is furthered when the scope of the right to a preliminary inquiry is determined within the four corners of the current Code rather than a potentially complex analysis of the offence dates and the prior penalties for the offence. On this analysis the right to a preliminary inquiry is premised on the current punishment for the "indictable offence" as currently enacted and not on the unique characteristics of the case against a specific defendant.

[35] This focus on the offence rather than the circumstances of the specific accused is consistent with the comment in R.S. (at para. 4) that the entitlement to a preliminary inquiry for those who had not made an election prior to September 19, 2019 "is governed by the amendments, which limit that entitlement to offences that provide for a sentence of at least 14 years' imprisonment" (emphasis added).

[36] I appreciate there may be historical indictable offences that are no longer found in the Criminal Code and in such cases resort would need be made to the wording of the offence at the time of the alleged offence to determine the maximum punishment. That is not the case here. Further, in making this finding I am not addressing the reverse issue, one in which the maximum penalty is now less than 14 years but was so at the time of the offence. Such a circumstance appears less likely to arise.

[37] Lastly, I note that it is not uncommon in cases brought well after the date of the allegations for the Crown to seek an amendment of the offence dates to accord with the evidence (see R. v. P.(M.B.), [1991] 1 S.C.R. 763). On the interpretation sought by the Crown, issues may arise if offence dates are amended from a period in which the maximum penalty was less than 14 years or more of imprisonment to one in which the penalty is 14 years or more. In such a case section 11(i) of the Charter may not apply and jurisdictional issues may arise.

[38] In my view, the interpretation of sections 535 and 536(2) that is most harmonious with the scheme and object of the Criminal Code is that the reference to being "charged with an indictable offence that is punishable by fourteen years or more of imprisonment" refers to those indictable offences in the Criminal Code that now carry that penalty. On such an interpretation, sections 535 and 536(2) allow anyone charged with the indictable offences of Sexual Assault on person under the age of 16, Sexual Interference and Invitation to Sexual Touching to request a preliminary hearing.

Order

[39] I therefore deny the application brought by the Crown. The election of Mr. Stengel is valid. A date for a preliminary hearing may be set in this case.

Released: September 21, 2020

Signed: Justice E.A. Carlton

Footnote

[1] House of Commons Debates, vol. 148 np. 200 (May 24, 2018) at pp. 19630, time 15:25 (Hon. Jody Wilson-Raybould).