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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Ontario Court of Justice

Date: 2023 03 09 Court File No.: Windsor 22-11198

Between:

HIS MAJESTY THE KING

— AND —

C.S.

Before: Justice S. Pratt

Heard on: 1 February 2023

Reasons for Judgment released on: 9 March 2023

Counsel: Siobhan Dundon................................................................................ Counsel for the Crown Angelo Minardi.......................................................................... Counsel for the defendant

Pratt J.:

[1] C.S., hereinafter the Defendant, is charged with the following offences:

(1) Between 1 January 2014 and 31 December 2016, sexual interference on C.V.;

(2) Between 1 January 2014 and 31 December 2016, invitation to sexual touching on C.V.;

(3) Between 1 January 2014 and 31 December 2016, sexual assault on C.V.; and

(4) Between 1 January 2019 and 31 December 2020, make intimate images of C.V. available without her consent.

[2] The Crown has proceeded by indictment on all counts. The matter was the subject of a judicial pre-trial on 22 October 2022. At the time, the parties discussed setting a preliminary inquiry. Subsequently, the Crown advised counsel for the Defendant that in their view the Defendant was not eligible for a preliminary inquiry. The Defendant disagrees with this position. The Crown has sought direction from this Court.

Background

[3] The resolution of this issue involves the interplay of multiple pieces of legislation.

Preliminary Inquiries

[4] Historically, nearly every offence prosecuted by indictment triggered a decision by the defendant. He or she had the ability to elect how their case proceeded. They could seek trial in a provincial court, trial in a superior court with a jury, or trial in a superior court without a jury. If either superior court option was chosen, the defence or the Crown could request a preliminary inquiry.

[5] The law changed significantly on 19 September 2019. From that date forward, preliminary inquiries were only available if the underlying offence was punishable by 14 or more years in prison. A defendant can still choose where to have their trial, but preliminary inquires are only available on the most serious offences.

[6] It is uncontroversial that count 4 does not qualify for a preliminary inquiry as that offence carries a maximum punishment of five years in prison. This application deals only with counts 1-3.

[7] I pause my analysis to make an observation. This change to preliminary inquiries was part of a raft of amendments included in what was Bill C-75. In her speech introducing the legislation, then-Attorney General Jody Wilson-Raybould stated the following:

The fourth area of reforms is to increase court efficiencies by limiting the availability of preliminary inquiries…

The proposed measures would reduce the number preliminary of inquiries by approximately 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, once at a preliminary inquiry and once at trial.

Canada, Parliament, House of Commons Debates, 42nd Parl, 1st Sess, Vol 148, No 300 (24 May 2018).

[8] Senator Murray Sinclair, sponsor of the bill in the Senate of Canada, added this:

Bill C-75 contains amendments that will restrict preliminary inquiries so that they will only be available for adults accused of serious offences that carry sentences of life imprisonment. Restricting them to such offences will reduce the number of preliminary inquiries held, while maintaining their availability for the most serious cases. In turn, this will free up court time and resources in provincial courts.

Canada, Parliament, Debates of the Senate, 42nd Parl, 1st Sess, Vol 150, No 264 (19 February 2019).

[9] Senator Sinclair was referencing the earlier version of the bill, which limited preliminary inquiries only to offences punishable by life imprisonment.

[10] Further, as noted by Justice Nordheimer in R. v. Windebank, 2021 ONCA 157 at paragraph 19:

Bill C-75 had a number of purposes, one of which was stated to be to restrict the availability of preliminary inquiries. The point behind limiting the availability of preliminary inquiries was said to be to free up court time and resources in provincial courts, while, at the same time, reducing the burden on some witnesses and victims by preventing them from having to testify twice in cases where there was currently an entitlement to a preliminary inquiry.

[11] To the extent that severely limiting the use of preliminary inquires has addressed the desire to avoid witnesses testifying in multiple forums, the amendments could be said to have succeeded to a degree. To the extent that they have helped “increase court efficiencies” or “unclog the courts”, they can only be seen to have backfired completely. As a direct result of this amendment, the provincial courts, or at least the Ontario Court of Justice in my experience, are now busier and more backlogged than ever.

[12] As I noted, there was no change to a defendant’s ability to elect where their trial would take place. With the elimination of preliminary inquiries on most indictable matters, many defendants have not simply gone directly to the superior courts; they have elected to hold their trials in the provincial courts. The practical effect of this election is to transform what might have been a two-hour preliminary inquiry into a three-day trial. Further complicating this predicament is the nationwide court backlog created by the Covid-19 pandemic. Even the goal of avoiding witnesses testifying multiple times has been frustrated by trials being adjourned, sometimes for months, for multiple continuation dates. Instead of witnesses testifying one day at a preliminary inquiry and one day at a trial, they may now be on the witness stand, sporadically, for months before their testimony is complete. The preliminary inquiry amendments of Bill C-75 have hindered, rather than helped, the efficient operation of the provincial courts.

[13] I return to my analysis of the present case.

Maximum Sentences

[14] The date ranges specified in counts 1-3 are important. Again, each count alleges an offence committed between 1 January 2014 and 31 December 2016. That range straddles a significant intervening event.

[15] On 17 July 2015, Parliament amended sections 151(a), 152(a), and 271(a). On ss. 151 and 152, the maximum sentence was increased from ten years to 14 years. On s. 271, Parliament added a separate maximum sentence for sexual assaults involving a victim under the age of 16. That maximum is 14 years. Prior to that change, the maximum punishment for an offence under s. 271 had been ten years.

Section 11(i) of the Charter of Rights and Freedoms

[16] Section 11 of the Canadian Charter of Rights and Freedoms deals broadly with a person’s rights once charged with an offence. Section 11(i) is relevant to this analysis. It states:

11 Any person charged with an offence has the right

(i) 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.

[17] In the present case, the maximum punishment for which the Defendant could be liable on counts 1, 2, and 3 changed over the course of the date range specified in the information. On each count, it increased from ten to 14 years.

Analysis

[18] The Crown argues that since the maximum punishment the Defendant faces is ten years, he is not eligible for a preliminary inquiry. Regardless of the maximum sentences currently in place, s. 11 (i) requires that he receive the benefit of the sentencing law in place at the time the offences were committed. That law caps each offence at ten years’ imprisonment. He should therefore not receive a preliminary inquiry. For the reasons that follow, however, I do not think the analysis is that straightforward.

[19] Other cases have dealt with the issue of historical offences, s. 11 (i), and preliminary inquiries. In R. v. S.S., 2021 ONCA 479 for example, the defendant was charged with sexual assault and sexual interference. The offences were alleged to have taken place between 1 January 2009 and 31 December 2010. On 11 December 2020 the defendant elected trial in the Superior Court of Justice with a jury, and requested a preliminary inquiry. The Crown applied for a ruling that he was not entitled to a preliminary inquiry given that he only faced maximum sentences of ten years’ prison on each offence. The applications judge ruled that he did have the right to request a preliminary hearing as the maximum sentences at the time of the application were 14 years on each count. On an application for certiorari, the Superior Court of Justice disagreed. That ruling was upheld by the Court of Appeal for Ontario.

[20] The distinguishing feature in S.S. is that the entire date range of the alleged offences was prior to the sentencing amendment. That was the case in R. v. Stengel, [2021] O.J. No. 918 (S.C.J.) as well. There the date range was 1 January 2010 to 31 December 2012, long before the 2015 amendments. There does not appear to be any appellate or other guidance on situations where the date range straddles an amendment date.

[21] In my view, the issue comes down to the wording of s. 11(i) of the Charter of Rights and Freedoms. Again, that section states:

11 Any person charged with an offence has the right

(i) 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.

[22] The key phrase is “the time of commission”. It does not say the time of arrest or the time of charge. The relevant point in time is the moment the offence is committed. The reason for this is clear: when a person is considering committing a criminal act, they should have knowledge of the potential consequences of that act. Their exposure to punishment crystallizes when the offence is committed. It crystallizes, that is, unless the potential punishment decreases by the time of sentencing. Then, the section entitles them to the lesser punishment. As stated by Justice Martin in R. v. Poulin, 2019 SCC 47 at paragraph 4, the punishment at the time of commission represents a ceiling on potential sentences an offender might face.

[23] The use of date ranges in informations is not unusual. They are, however, better suited to some offences than to others. Date ranges make logical sense in continuing offences like conspiracy or fraud. In those cases, the criminality really does continue over a period of time. It would likely be arbitrary to choose one particular date over another to allege an offence like those.

[24] The offences before this Court are different. Sexual assault is generally not a continuing offence in the same sense that conspiracy or fraud can be. It happens at a discrete moment in time. Ranges are often used for offences like sexual assault when the exact day of the alleged assault cannot be pinpointed (sometimes owing to the allegation’s historical nature), or when there are several incidents over a period of time. There is nothing obviously wrong with that approach, but it does have the potential to create complications, as it has here.

[25] I posed a hypothetical situation to counsel in the argument of this application. What if the trial judge convicts the Defendant, but finds that the assaults of which he is guilty all took place after the sentencing amendments? I note that s. 11 (i) does not say “the time of alleged commission”. It is limited to the time of actual commission. The Supreme Court in Poulin, supra, likewise only considered the time of actual commission. If the date of commission is found beyond a reasonable doubt to have been post-amendments, there is no change in sentencing and s. 11 (i) is inapplicable. Surely, an offender convicted of offences post-amendment cannot rely on the Crown’s drafting to assert a s. 11 (i) claim. Should this Defendant find himself in this circumstance, found guilty of offences committed after 17 July 2015, he would be liable to maximum sentences of 14 years.

[26] The consequence of the turn of events I posed to counsel is that as it stands today, there is a possibility that the Defendant will be liable to maximum sentences of 14 years if convicted of the offences in counts 1, 2, or 3 before me. I find he is therefore entitled to request a preliminary inquiry in the Ontario Court of Justice.

[27] My view is that when a defendant is charged with committing offences that straddle a sentencing amendment date, and there is a reasonable possibility that they could be found guilty of criminal conduct that took place entirely after the amendment, they are potentially exposed to the higher maximum sentence. In that probably rare circumstance, they are entitled to request a preliminary inquiry.

Released: 9 March 2023 Signed: Justice S. G. Pratt