Court Information

Court: Ontario Court of Justice

Date: November 20, 2020

Court File No.: Toronto Region 20-75002096

Parties

Between:

Her Majesty the Queen

— And —

Jason Windebank

Before: Justice Bhabha

Heard on: October 14, 2020

Reasons for Ruling released on: November 20, 2020

Counsel

Jennifer Stanton and Jennifer Armstrong — counsel for the Crown

D. Sid Freeman — counsel for Jason Windebank

Introduction

[1] The issue raised in this application is the defendant's entitlement to a preliminary hearing under s. 535 of the Criminal Code of Canada ("the Code"). As a result of amendments made to that provision in 2019, preliminary inquiries are now limited to those offences where the maximum sentence is fourteen years or more.

[2] Section 535 reads:

INQUIRY BY JUSTICE

If an accused who is charged with an indictable offence that is punishable by 14 years or more of imprisonment is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, 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. R.S., c. C-34, s. 463; R.S.C. 1985, c. 27 (1st Supp.), s. 96; 2002, c. 13, s. 24; 2019, c. 25, s. 238 (Emphasis added)

[3] Jason Windebank is charged with one count of assault causing bodily harm under s. 267(b) and one count of assault by choking under s. 267(c). The maximum sentence upon conviction of these offences, where the Crown has proceeded by Indictment, is ten years imprisonment.

[4] On a plain reading of the section, Mr. Windebank is not entitled to request a preliminary inquiry. However, in this case, the Crown has put Mr. Windebank on notice that, should he be convicted, the Crown intends to bring an application for an assessment under s. 752.1 of the Code (the "relevant D.O. notice").

[5] An assessment under s. 752.1 is the first step in the long and complex process of an application to have an offender designated a Dangerous Offender ("D.O."). Once the prosecutor has made the application, and the court is of the opinion that there are reasonable grounds to believe that the offender has been convicted of a serious personal injury offence, the court is required to remand the offender for a period not exceeding 60 days for the purpose of obtaining an assessment by an expert for use on an application to find the offender to be a dangerous offender under s. 753.1. The application for an assessment does not require the consent of the Attorney General.

[6] If the Crown is successful in having the defendant designated a D.O. or a Long Term Offender, the prospect of a sentence of more than 14 years is a very real one.

[7] Whether or not any defendant in Mr. Windebank's circumstances is entitled to a preliminary Inquiry appears to be a novel issue that has not been previously litigated. Neither Crown Counsel, nor counsel for Mr. Windebank were able to provide this Court with any caselaw directly on this issue.

[8] Mr. Windebank's trial is currently scheduled to take place over three days starting on Monday, November 30, 2020.

[9] Mr. Windebank has given formal notice that he elects to have a preliminary inquiry on that date instead of a trial. He does so on the basis that he is at risk of being subject to a sentence well in excess of fourteen years if: a) he is convicted of one or both of the offences with which he is charged, and b) the Crown is ultimately successful in having him designated as a D.O.

[10] The Crown takes the position that a plain reading of s. 535 of the Code disentitles the defendant from having a preliminary inquiry, full stop. Further, the Crown insists that the fact that the Crown has provided the defendant with the relevant D.O. notice and the potential sentence in the event of a D.O. designation, are considerations that are so remote at this stage, they cannot reasonably ground the application sought. The Crown submits that the trial should proceed on November 30 as scheduled.

[11] On October 14 the Court heard the defence application for an order that Mr. Windebank's preliminary hearing take place on the date scheduled for his trial.

[12] Given the approaching trial date, the parties were informed of the court's Ruling and advised that written Reasons would follow. These are the Reasons for Ruling that Mr. Windebank is entitled to a preliminary inquiry in the particular circumstances of this case.

[13] The Crown has since brought an application before the Superior Court of Justice for:

an order in the nature of Certiorari with Mandamus in aid quashing this Court's order that a preliminary inquiry be held,
a Writ of Prohibition to prohibit the hearing of the preliminary inquiry, and
a Writ of Procedendo requiring this Court to release Reasons for the Ruling that the defendant is entitled to a preliminary inquiry.

[14] The application is scheduled to be heard on Friday, November 27, 2020. The Crown has also filed a factum and other additional materials for the Superior Court's consideration of the issue.

[15] I, unfortunately, did not have the benefit of the Crown's facta or other materials that the Superior Court will have when I deliberated on the issue, although the Crown was afforded the opportunity to do so.

The Application for Summary Dismissal

[16] Mr. Windebank filed a "Notice of Election for a Preliminary Hearing Pursuant to s. 536" as part of the application for "a preliminary hearing on the Applicant's charges." The grounds stated refer to the Crown's "notice of its intention to bring an application to designate Mr. Windebank a Dangerous Offender should he be convicted. This changed the maximum possible punishment to one of life (see section 753(4))." The defence did not file a factum or any other materials in support of the application. Neither does the defence challenge the constitutional validity of the amendment to the Code.

[17] Counsel for Mr. Windebank, Ms. Freeman, submitted that since this is not a Charter application, there was no need for Form 1 and in any event, to the extent there was non-compliance with the rules of procedure, that should not be fatal to the application. She relies on R. v. Blom, [2002] O.J. 3199.

[18] Crown counsel, Ms. Stanton, sought summary dismissal of the Application for a Preliminary Hearing on the basis that it was impossible to respond to the Application. Ms. Stanton submitted firstly, that the defence had not provided any notice of the basis for the request for a Hearing, and secondly, that the fact that the Crown gave notice of their intention to request an assessment under s. 752 is very different from seeking an indeterminate sentence, and, as such it is an insufficient basis to ground the application. Ms. Stanton requested that the application be dismissed summarily.

[19] Counsel for Mr. Windebank advised that she had no further materials to put before the court. She submitted that the issue raised has not yet been litigated and that "it's novelty is matched by its simplicity". In essence, her submission is that because the Crown has given her client the relevant D.O. notice, Mr. Windebank's jeopardy is no longer limited to the ten year maximum sentence set out in the Code for assault causing bodily harm. He is now at risk of an indeterminate sentence. Therefore, like other defendants facing the possibility of a sentence of fourteen years or more, he should be entitled to a preliminary inquiry.

[20] The Court offered the Crown an adjournment, if necessary, to alleviate any prejudice from the absence of a defence factum, and to properly respond to the application as framed by the defence by providing the court with additional materials, if necessary. Crown counsel categorically declined, choosing instead to rely on the "Crown's Memorandum of the Law" filed with the Court.

[21] The sixteen page memorandum (26 pages with references) can be divided into three parts: part 1 deals with the principles of statutory interpretation; part 2 deals with the amendments to the Code limiting the availability of preliminary inquiries and the legislative intent of the provisions, and lastly, part 3, deals with some of the pertinent D.O. provisions in the Code, in particular s. 752.1.

[22] The Crown's application for summary dismissal was denied. Both counsel then made submissions on the merits.

Analysis

[23] The Court begins by making a few observations about the nature and availability of preliminary inquiries, and the limited powers and limited jurisdiction of this Court.

[24] Firstly, a preliminary inquiry is a statutory procedure directed by a statutory court. The Ontario Court of Justice, as a Provincial Court, has no power if it is not conferred by statute. Secondly, there is no constitutional right to a preliminary inquiry.[1] The Attorney General has the right to prefer an Indictment anytime before, during or even after discharge, subject to review for abuse of process.

[25] The narrow issue is whether s. 535 of the Code confers the necessary jurisdiction to this court in light of the relevant D.O. notice the Crown has given Mr. Windebank. If s. 535 is interpreted literally and in a factual vacuum, then it is clear that Mr. Windebank is not entitled to a preliminary inquiry and the Court lacks jurisdiction to order one. However, if the relevant D.O. notice is a factor that demands a more expansive interpretation of s. 535, in that case jurisdiction to hold a preliminary inquiry is conferred by the Code because Mr. Windebank's jeopardy is in fact potentially greater than the fourteen year sentence referenced in the amended provision.

[26] The Crown organized its submissions into three areas: 1) an overview of the principles of statutory interpretation, 2) a review of Parliament's intent in amending s. 535 of the Code, and 3) the D.O. regime in Part XXIV of the Code, and in particular, s. 752.1.

Statutory Interpretation

[27] As noted above, as a result of amendments made to s. 535 of Code in September of 2019, preliminary inquiries are limited to the most serious of offences that carry a maximum penalty of fourteen years or more. On a plain and literal reading of the provision Mr. Windebank is not entitled to a preliminary inquiry. There is no ambiguity in the provision. Notably, there is no reference to Part XXIV of the Code: the D.O. provisions.

[28] The Crown acknowledges, and I agree, that in order to understand and interpret any legislative provision one must understand the history and purpose behind it. As well, the approach to interpreting any legislation must be contextual and purposive. This approach is not limited to circumstances of ambiguity or confusion. A particular provision must be interpreted in harmony with the whole with a view to avoiding absurd consequences. None of this is contentious.

Parliament's Intent – a Purposive Approach

[29] Parliament's intent in amending s. 535 is not difficult to decipher. It is apparent from the comments of the Minister of Justice on the second reading of Bill-75 which is referenced in R. v. R.S.,[2] that Parliament responded to the Supreme Court of Canada's invitation in R. v. Jordan "to take a fresh look at current processes and reconsider the value of preliminary inquiries in light of the broad disclosure rules that exist today."[3] As stated by the Minister, the purpose behind the reforms was:

to increase court efficiencies by limiting the availability of preliminary inquiries. //…// Bill C-75 would limit their availability to accused adults charged with very serious offences punishable by life imprisonment, such as murder and kidnapping. The proposed measures would reduce the number of preliminary inquiries by 87%, ensure they are still available for the more complex and serious offences, help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice …

I am confident these reforms would not reduce trial fairness, that prosecutors would continue to take their disclosure obligations seriously, that our courts would continue to uphold the right to make full answer and defence, and that there would remain flexibility in existing processes… (Emphasis added)

[30] When the proposed amendments were initially being considered, the availability of preliminary inquiries was initially narrower and restricted to offences punishable by life sentences. After the second reading of the Bill, the scope of offences entitling accused persons to a preliminary inquiry was widened significantly to include offences of fourteen years or more. The Minister's speech referenced above reflects an earlier draft of the legislation and as a result, the statistic mentioned in the speech about the anticipated reduction in the number of preliminary inquiries can no longer be accurate. The percentage must be far lower than 87% given the wider scope of offences in s. 535 of the Code.

[31] Parliament had a dual purpose in making the amendments. The goal was to achieve certain efficiencies, but not at any cost. A balance was struck to ensure that those charged with serious offences would still be able to avail themselves of a preliminary inquiry. Parliament expressed that balance by reference to the potential of serious penal consequences: those individuals facing charges punishable by a maximum of fourteen years or more are still entitled to a preliminary inquiry.

[32] In my view, the fact that the Crown has given advance informal notice of its intent to commence the D.O. designation process fundamentally increases Mr. Windebank's potential penal consequences. He is no longer facing a potential sentence of a maximum of ten years. Instead, he is in jeopardy of an indeterminate sentence.

[33] The Crown makes the point that had Parliament meant to include penal consequences flowing from the D.O. provisions of the Code, the amendments would have referenced them. One of the obvious reasons why s. 535 of the Code makes no reference to the impact of a D.O. application is that in the normal course the D.O. process commences after a trial, once there has been a finding of guilt.

[34] The D.O. regime is a special, self-contained process unto itself and is referenced in a different part of the Code entirely: Part XXIV. It immediately follows the sentencing provisions in Part XXIII.

[35] Under the D.O. provisions the Crown is only required to give notice of a subsection 752.1(1) assessment to the Court at post conviction stage of the proceedings, not before. Section 752.01 of the Code deals with notice to the Court. It states:

PROSECUTOR'S DUTY TO ADVISE COURT

If a prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence, and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as possible after the finding of guilt and in any event before sentencing is imposed, whether the prosecutor intends to make an application under subsection 752.1(1). (Emphasis added)

[36] Ms. Stanton, who is one of the Crown counsel in the High Risk Assessment Group at the Crown Law Office-Criminal, and therefore a specialist in this area, advised that while pre-trial notice is not required, the practice in Toronto is to give advance notice to all accused persons of the Crown's intent to pursue a D.O. designation. This is a commendable practice; one that is eminently fair and transparent. Early notice allows individuals to know and appreciate the significant penal jeopardy they potentially face in the event of a conviction and to make informed decisions based on that information. It also avoids potentially absurd consequences.

Absurd Consequences

[37] The Crown relies on the well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. "Absurdity occurs if the interpretation leads to ridiculous or frivolous consequences, is extremely unreasonable or inequitable, is illogical or incoherent, is incompatible with other provisions or with the object of the enactment or defeats the purpose of the statute or renders some aspects of it pointless or futile. This is not reserved for cases of ambiguity but must always be considered when interpreting a statute.[4]

[38] In my view it would indeed lead to unintended and absurd consequences if an individual in Mr. Windebank's circumstances were disentitled to have a preliminary inquiry, yet ultimately find himself to be in jeopardy of an indeterminate sentence, while another individual could automatically be entitled to a preliminary inquiry yet face far less serious penal consequences: fourteen years versus life imprisonment. At a minimum, the strict interpretation favoured by the Crown strikes me as inequitable.

Undermining Parliament's Intention by Opening the Floodgates

[39] One of the submissions Crown counsel made was that a more expansive interpretation of s. 535 of the Code would undermine Parliament's intention to streamline processes and reduce the overall number of preliminary inquiries. It would in effect open the floodgates and lead to a significant increase in requests for hearings. Crown counsel in response to questions from the bench advised that there are currently approximately in excess of 80 D.O. applications in the Toronto region. She was unable to advise the Court of the total number of D.O. applications in the province, but given the population in the Toronto region, it would not be a stretch to assume that it accounts for the lion's share of D.O. applications in the province.

[40] In any event, it is impossible to put that statistic into perspective without knowing how many of those applications involve charges where the maximum is below the fourteen year threshold for entitlement to a preliminary inquiry. It is therefore difficult to give any force to this submission.

Uncertainty of Outcome

[41] Crown counsel made the submission that merely giving notice of an intention to pursue a s. 752.1 assessment is different from actually seeking an indefinite sentence; that the application is a process that entails numerous steps. For example, after the initial assessment, the Crown must obtain the consent of the Attorney General before a hearing can take place. Effectively, the submission is that a D.O. application entails many steps, and that the risk of increased jeopardy for Mr. Windebank is not guaranteed. I do not find this submission to be persuasive. The first step in the D.O. designation process is the application for an assessment. That step increases the risk of significant penal consequences such as an indeterminate sentence. The High Risk Offender Group are experts in this area and they therefore can be expected to bring applications they are confident will be approved by the Attorney General and have a good probability of the desired outcome. I also make the observation that in my experience the Attorney General almost always consents to the hearing.

[42] I also note there are many uncertainties in any criminal proceeding. A similar argument could be made about the uncertainty in the trial process or the unlikely probability of the imposition of the fourteen year sentence referenced in s. 535 of the Code. Parliament instead of premising the provision on the likelihood of real outcomes or the Crown's initial screening of the charges, chose instead to put the focus on the potential jeopardy an accused person is exposed to. There is no guarantee that the accused seeking a preliminary inquiry will be found guilty in the first place, and in the second place that he will then be sentenced to the maximum of fourteen years (or more). The charges could be stayed on Charter grounds, evidence might be lost, critical witnesses may be unavailable, and even if those hurdles were overcome by the Crown, the trier of fact or a jury may ultimately acquit. Secondly, even in the event of a conviction, it is highly uncommon for an individual found guilty of an offence to receive the maximum sentence. Yet, Parliament recognized that entitlement to a preliminary inquiry should be preserved for those offenders exposed to the risk of very serious penal consequences.

Conclusion

[43] When the Court considers the interplay between the following factors: the purposive approach to the amendment to s. 535 of the Code, the principles of statutory interpretation and the relevant D.O. notice the Crown has provided to the defendant, the conclusion I reach is that because of the very real and enhanced risk that Mr. Windebank may be sentenced under the D.O. regime, he no longer simply faces a maximum sentence of ten years imprisonment. His jeopardy is far greater and as a consequence he ought to be entitled to preliminary inquiry.

Released: November 20, 2020

Signed: Justice Bhabha