R. v. Archambault, 2024 SCC 35

Supreme Court of Canada

SUPREME COURT OF CANADA

Appeal Heard: February 14, 2024 — Judgment Rendered: November 1, 2024 — Docket: 40428

Parties

Between:

His Majesty The King Appellant

and

Agénor Archambault and Gilles Grenier Respondents

— and —

Attorney General of Canada, Attorney General of Ontario, Association québécoise des avocats et avocates de la défense, Association des avocats de la défense de Montréal-Laval-Longueuil, Criminal Lawyers' Association (Ontario) and Canadian Civil Liberties Association Interveners

Official English Translation: Reasons of Côté and Rowe JJ. and reasons of Kasirer J.

Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.

Reasons

Joint Reasons: (paras. 1 to 80) Côté and Rowe JJ.

Concurring Reasons: (paras. 81 to 98) Kasirer J. (Jamal J. concurring)

Concurring Reasons: (paras. 99 to 147) Martin J.

Dissenting Reasons: (paras. 148 to 304) Karakatsanis J. (Wagner C.J. and O'Bonsawin and Moreau JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Indexed as: R. v. Archambault

2024 SCC 35

File No.: 40428.

2024: February 14; 2024: November 1.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.

on appeal from the court of appeal for quebec

Headnote

Criminal law — Preliminary inquiry — Right to preliminary inquiry — Accused charged with historical sexual offences which carried maximum term of imprisonment of 10 years at time, but for which maximum penalty was later increased to 14 years — Amendment restricting availability of preliminary inquiries to accused persons charged with offences with maximum penalty of 14 years or more of imprisonment made to Criminal Code after charges laid — Whether accused have right to preliminary inquiry — Criminal Code, R.S.C. 1985, c. C‑46, s. 535.

Legislation — Interpretation — Legislative amendment — Temporal application — Temporal presumptions — Amendment made to Criminal Code restricting availability of preliminary inquiries to accused persons charged with offences with maximum penalty of 14 years or more of imprisonment — Whether amendment applies to accused persons against whom charges were laid prior to amendment — Whether amendment applies to accused persons who are charged with offences for which current maximum sentence is at least 14 years but who are not personally liable to 14 years or more of imprisonment — Criminal Code, R.S.C. 1985, c. C‑46, s. 535 — Interpretation Act, R.S.C. 1985, c. I‑21, ss. 43, 44.

In unrelated cases, A and G were accused of one or more historical sexual offences against a child, which at the time of their commission carried a maximum term of imprisonment of 10 years. After the dates of the alleged offences and before charges were laid, the maximum penalty for the impugned conduct was increased from 10 to 14 years' imprisonment. A and G first appeared in the Court of Québec in the summer of 2019. At first appearance, they reserved or postponed their right to elect their mode of trial to a later date. Then, in 2020, A and G each requested a preliminary inquiry. However, under an amendment to s. 535 of the Criminal Code that came into force on September 19, 2019, the availability of preliminary inquiries was now restricted to accused persons charged with offences with a maximum penalty of 14 years or more of imprisonment. In both matters, the Crown argued that the court lacked jurisdiction under the new s. 535 to hold a preliminary inquiry.

The Court of Québec held that the new s. 535 applied to A and G and that it lacked jurisdiction to preside over the preliminary inquiry. In its view, preliminary inquiries are of a purely procedural nature, and applying the new rule did not impact the substantive rights of A and G. A and G each challenged that interpretation. A Superior Court judge dismissed A's challenge, characterizing the right to a preliminary inquiry as purely procedural and concluding that the new s. 535 required the accused to be charged with an offence for which they could be personally punishable by 14 years' imprisonment or more. A different Superior Court judge dismissed G's challenge, holding that preliminary inquiries affected the substantive right to a discharge but that G's entitlement had not vested by the time the new s. 535 came into force — to get the benefit of the old rule, he should have both elected his mode of trial and asked for a preliminary inquiry before September 19, 2019.

The Court of Appeal allowed the appeals, setting aside the Superior Court decisions and remitting both matters to the Court of Québec for preliminary inquiries. It concluded that the respondents were not subject to the new limitation because their entitlement to a preliminary inquiry arose on the commission of the alleged offences and had therefore vested or accrued prior to the amendment.

Held (Wagner C.J. and Karakatsanis, O'Bonsawin and Moreau JJ. dissenting): The appeal should be dismissed.

Per Côté and Rowe JJ.: The right to a preliminary inquiry does not engage the principle of legality because the preliminary inquiry has no impact on the scope of criminal liability. However, the legislative amendment, whose purpose is to limit the preliminary inquiry to the most serious offences, is not purely procedural in nature — it affects the accused's substantive right under s. 548(1)(b) Cr. C. to be discharged of any charge if no sufficient case is made out to put the accused on trial. Given the presumption against interference with vested rights, the moment at which the right vests must be determined. The right to a preliminary inquiry crystallizes at the time charges are laid. Section 535 Cr. C. opens with the words "[i]f an accused who is charged with an indictable offence", confirming that charging is the condition precedent for entitlement. The making of a request for a preliminary inquiry is a necessary procedural step for exercising the right, but not a condition precedent to the existence of the right itself. Because the respondents were charged prior to September 19, 2019, the right vested in them before the legislative amendment came into force. On the interpretive question, the text, context and purpose of s. 535 Cr. C. demonstrate that an accused has the right to a preliminary inquiry if the alleged offence, or its equivalent, is punishable by 14 years or more of imprisonment. The word "punishable" relates to the seriousness of the offence, not the personal jeopardy of the accused. Parliament intended the right to be tied to the seriousness of the alleged offence, not to the degree of jeopardy faced by the accused. Accordingly, the respondents have the right to a preliminary inquiry both under the former law and under the new law.

Per Kasirer J. (Jamal J. concurring): Agreeing substantially with Karakatsanis J.'s analysis of vested rights, the respondents had a vested right to a preliminary inquiry in the circumstances because they reserved their election as to mode of trial prior to September 19, 2019, with the court's approval pursuant to the established practice in Quebec. Under that practice, reserving the election fulfils all conditions precedent to the exercise of the right to request a preliminary inquiry within the meaning of Puskas — the accused receives the court's assurance that they can make a request at a later date and, by the terms of s. 535 Cr. C., that request must be honoured.

Per Martin J.: The new s. 535 of the Criminal Code affects the accused's substantive rights. The question of temporal application is best resolved by the date of the offence. Accused persons alleged to have committed an offence that rendered them eligible for a preliminary inquiry before September 19, 2019 should retain that eligibility. The date of the offence is a principled choice consistent with the time ordinarily used as a reference point for changes to criminal law. It establishes a bright-line rule that operates fairly and consistently across the country, irrespective of regional differences in procedure. Where the alleged offence date is on or after September 19, 2019, the accused must personally face a maximum punishment of at least 14 years' imprisonment to be eligible.

Per Karakatsanis J. (Wagner C.J. and O'Bonsawin and Moreau JJ. dissenting): The question of temporal application requires asking whether the new rule would interfere with a substantive legal interest that vested before its coming into force. The new s. 535 is not purely procedural because it affects the accused's substantive interest in the possibility of a discharge at the preliminary inquiry. However, the right to a preliminary inquiry vests only when a request for a preliminary inquiry is made — this is the point at which all conditions precedent are fulfilled within the meaning of Puskas. As of September 19, 2019, neither respondent had made a request; a mere reserve of the election as to mode of trial does not constitute a "request" for a preliminary inquiry. The new rule therefore applies to the respondents. On the interpretive question, the 14-year threshold requires that the accused personally face a maximum of 14 years' imprisonment in respect of the offence with which they are charged.

Counsel

Frédérique Le Colletter, Régis Boisvert and Daphné Godin-Garito, for the appellant.

Mélina Le Blanc, Hugo T. Marquis and Michel Pelletier, for the respondent Agénor Archambault.

Gilles Grenier, on his own behalf.

John Provart, for the intervener the Attorney General of Canada.

Nicole Rivers and Raoof Zamanifar, for the intervener the Attorney General of Ontario.

Gabriel Babineau, Vincent R. Paquet and Elisabeth Beauchamp, for the interveners Association québécoise des avocats et avocates de la défense et Association des avocats de la défense de Montréal‑Laval‑Longueuil.

Adam Weisberg and Michelle Psutka, for the intervener the Criminal Lawyers' Association (Ontario).

Janani Shanmuganathan, for the intervener the Canadian Civil Liberties Association.

Joint Reasons

English version of the reasons delivered by

Côté and Rowe JJ. —

Table of Contents

Section	Paragraph
I. Overview	1
II. Factual Background and Judicial History	7
III. Legislative Background on the Preliminary Inquiry	11
IV. Analysis	22
A. The Legislative Amendment Does Not Eliminate the Right to a Preliminary Inquiry for Accused Persons Charged Before It Came Into Force	24
(1) Principles of Transitional Law Applicable in This Case	24
(2) The Abolition of the Preliminary Inquiry for Certain Offences Is Procedural in Nature but Affects a Substantive Right	33
(3) The Right to a Preliminary Inquiry Vests at the Time Charges Are Laid	43
B. An Accused Whose Alleged Offence, or Its Equivalent, Is Punishable by 14 Years or More of Imprisonment Has the Right to a Preliminary Inquiry	60
(1) Parliament Intended the Right to a Preliminary Inquiry To Be Tied to the Seriousness of the Offence	63
(2) An Accused's Right to the Benefit of the Lesser Punishment Does Not Affect the Determination of the Right to a Preliminary Inquiry	75
(3) Application to the Facts	79
V. Conclusion	81

I. Overview

1This appeal raises the question of the temporal application of a legislative amendment through which the right of accused persons to a preliminary inquiry, enshrined in s. 535 of the Criminal Code, R.S.C. 1985, c. C‑46 ("Cr. C."), is limited to the most serious cases, as well as the question of how the amended provision should be interpreted going forward. The appeal has become moot as regards the respondents, Agénor Archambault and Gilles Grenier, for whom preliminary inquiries were held in parallel with the appeal that has made its way to this Court. We are nevertheless of the view that it is in the public interest to address the above questions on the merits in order to clear up some continuing uncertainty over the state of the law (Borowski v. Canada (Attorney General), , [1989] 1 S.C.R. 342, at pp. 361‑62; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at paras. 49‑50; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 2; R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 17).

2We agree with our colleague Karakatsanis J. that the amendment made to s. 535 Cr. C. is procedural in nature but affects a substantive right, that is, an accused's right under s. 548(1)(b) Cr. C. to be discharged of any charge if, on the whole of the evidence adduced during the preliminary inquiry, no sufficient case is made out to put the accused on trial on the charge. With respect, the Court of Appeal erred in holding that the right to a preliminary inquiry is governed by the law in force at the time the offence was committed.

3However, unlike our colleague Karakatsanis J., we are of the view that the respondents, Mr. Grenier and Mr. Archambault, had a vested right to a preliminary inquiry. The right to a preliminary inquiry crystallizes at the time charges are laid.

4In the absence of a transitional provision, such an interpretation is the one most consistent with both the text of s. 535 Cr. C. and the presumption that Parliament does not intend to interfere with the vested rights or privileges of accused persons. This interpretation is also anchored in the notion that criminal trials do not all proceed in the same purely linear fashion and that they each have their own particular features. Indeed, when it comes to the order of the various stages of the proceedings, there are a multitude of possibilities. Finding that the right vests when charges are laid, a stage common to all cases, better acknowledges the flexibility of criminal procedure and the delays that may be caused by the Crown or the delays inherent in the justice system. Such an interpretation has the advantage of preserving fairness and legal certainty in addition to allowing for the uniform application of the new legislative provision across the country.

5Regardless of whether a right vested in Mr. Grenier and Mr. Archambault before the legislative amendment came into force, we are of the opinion that the respondents have such a right under the current version of s. 535 Cr. C. Parliament intended to preserve the preliminary inquiry for all accused persons whose alleged offence, or its equivalent, is punishable by 14 years or more of imprisonment, and not, as the Crown argues, only for accused persons who are personally liable to 14 years or more of imprisonment. This is the interpretation most consistent with the text of the amending provision and the compromise from which it resulted. The Crown's proposed interpretation of this provision, based on an abstract purpose — reducing the number of preliminary inquiries held across the country — is not supported either by the clear text of the new s. 535 Cr. C. or by the circumstances in which it was enacted.

6We would therefore dismiss the appeal.

II. Factual Background and Judicial History

7On the whole, we agree with the summary of the facts and judicial history provided by our colleague Karakatsanis J. However, we will make some additional points that help to circumscribe the issues.

8The Court of Appeal held that the right to a preliminary inquiry accrues at two different points in time. First, relying on the principle of legality, the Court of Appeal found that the right to a preliminary inquiry is "'accruing' from th[e] moment" the offence is committed (2022 QCCA 1170, 84 C.R. (7th) 174, at para. 11). In Healy J.A.'s view, the classification of offences (indictable, hybrid or summary conviction) and everything that flows from it (election as to mode of trial and preliminary inquiry) are part of the law on which individuals rely in adjusting their behaviour and in assuming risks at the time of committing an offence (paras. 16‑17).

9Second, the Court of Appeal found that the right to a preliminary inquiry is "vested or accrued at the date" of the first appearance (para. 11). Even when the accused does not request a preliminary inquiry, the first appearance confirms the vesting of the right. This interpretation is based on the importance of the legislative amendment to the rights or interests concerned, not on the characterization of the amendment as procedural or substantive in nature. As long as the accused has not elected trial before a provincial court judge, the accused's right to request a preliminary inquiry is preserved.

10Given its conclusion on this point, the Court of Appeal did not address the question of how the amended version of s. 535 Cr. C. should be interpreted.

III. Legislative Background on the Preliminary Inquiry

11An inheritance from English law, the preliminary inquiry was incorporated into Canadian criminal law in 1892, in the first Criminal Code, 1892, S.C. 1892, c. 29 (s. 577; see also D. Pomerant and G. Gilmour, A Survey of the Preliminary Inquiry in Canada (April 1993), at pp. 1‑24). The preliminary inquiry was originally designed as an instrument of the prosecution, for finding the perpetrator of a crime and obtaining evidence of their guilt; it later became "a shield for the defence", allowing the accused to ascertain what evidence the prosecution had against them and also "relieving [them] from the expense and odium of a trial" if, in the opinion of the justice of the peace or provincial court judge, that evidence was not sufficient to justify holding a trial (Skogman v. The Queen, , [1984] 2 S.C.R. 93, at p. 105, quoting P. Devlin, The Criminal Prosecution in England (1960), at p. 10).

12The preliminary inquiry therefore has two important aspects. Its primary purpose is "to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process" (Skogman, at p. 105). It is a "screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial" (R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 21, citing R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30 and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 14‑16). The preliminary inquiry also plays an "ancillary role as a discovery mechanism" (Hynes, at para. 31). In English law, the Crown's duty to disclose evidence at the preliminary inquiry has evolved in such a way as to make it a very effective discovery mechanism, which has not historically been the case in Canada (Law Reform Commission of Canada, Research Paper: Discovery in Criminal Cases (1974), at pp. 8‑9).

13While the preliminary inquiry allows an accused to learn more about the prosecution's evidence, the disclosure of evidence is primarily assured, in Canadian law, by the accused's constitutional right to make full answer and defence, a principle of fundamental justice enshrined in s. 7 of the Canadian Charter of Rights and Freedoms (R. v. Stinchcombe, , [1991] 3 S.C.R. 326; R. v. Egger, , [1993] 2 S.C.R. 451; R. v. O'Connor, , [1995] 4 S.C.R. 411; R. v. La, , [1997] 2 S.C.R. 680; R. v. Dixon, , [1998] 1 S.C.R. 244, at para. 22; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; McNeil, at paras. 17‑25; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35). This constitutional right to the disclosure of all relevant information is distinct from the right to a preliminary inquiry, which is what led this Court to state in S.J.L., at para. 23, that "the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance" since the enactment of the Charter. Parliament's choice to limit or abolish the preliminary inquiry for certain offences therefore does not violate the principles of fundamental justice, because the accused continues to be presumed innocent and retains the right to make full answer and defence (para. 21). There is no constitutional right to a preliminary inquiry.

14At the beginning of this century, Parliament considered ways to reduce the number, length and scope of preliminary inquiries in response to an increase in court delays and in light of the impact of this procedure on victims and other witnesses. However, a radical reform was ruled out (see R. v. M. (P.), 2007 QCCA 414, 222 C.C.C. (3d) 393, at paras. 68‑73). The solution favoured by Parliament, a more moderate one, was set out in the Criminal Law Amendment Act, 2001, S.C. 2002, c. 13. One purpose of that statute was "reforming and modernizing criminal procedure with respect to . . . procedural aspects of preliminary inquiries" (summary, subpara. (f)(i)). Its provisions, which came into force on June 1, 2004, amended the Cr. C. in order to, among other things, make the holding of a preliminary inquiry optional, allow parties to limit the scope of an inquiry or allow a pre‑hearing conference to be held, give the justice the power to regulate the course of the inquiry and authorize the justice to end any abusive examinations or cross‑examinations. Those amendments maintained the accused's "unconditional right" to a preliminary inquiry while streamlining the use of this procedure and making it optional (House of Commons Debates, vol. 136, No. 124, 2nd Sess., 36th Parl., September 28, 2000, at p. 8829; Debates of the Senate, vol. 139, No. 66, 1st Sess., 37th Parl., November 1, 2001, at p. 1612).

15Parliament's intent in making those legislative amendments was to enable parties to choose mechanisms better adapted to their needs; its intent was "not the imposition [on them] of more inflexible procedures" (S.J.L., at para. 24). To allow parties to decide whether a preliminary inquiry was appropriate in their circumstances, Parliament changed the wording of s. 535 Cr. C. as follows:

535. If an accused who is charged with an indictable offence 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.

(Criminal Law Amendment Act, 2001, s. 24)

16In a report released in June 2017, the Standing Senate Committee on Legal and Constitutional Affairs observed that the Criminal Law Amendment Act, 2001 had not succeeded in conclusively reducing the number and length of preliminary inquiries or in alleviating the burden on victims and witnesses. In its report, the Committee recommended eliminating preliminary inquiries or limiting them "to the most serious offences under the Criminal Code" in order to reduce delays in criminal cases (Delaying Justice Is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report) (2017), at p. 48).

17One year earlier, in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, Moldaver, Karakatsanis and Brown JJ., writing for the majority, had invited Parliament to undertake a review of criminal rules and procedures, particularly the preliminary inquiry (at para. 140):

For provincial legislatures and Parliament, this may mean taking a fresh look at rules, procedures, and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focusses on what is truly necessary to a fair trial. Legal Aid has a role to play in securing the participation of experienced defence counsel, particularly for long, complex trials. And Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations. Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced. [Emphasis added.]

18In response to the invitation extended by this Court in Jordan and the observations made by the Standing Senate Committee on Legal and Constitutional Affairs in its report, the government introduced a first version of Bill C‑75 in Parliament on March 29, 2018. The original version of the bill limited the availability of preliminary inquiries to adults charged with offences punishable by life imprisonment (Bill C‑75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess., 42nd Parl., 2018, s. 240 (first reading March 29, 2018); House of Commons Debates, vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, at p. 19604 (Hon. J. Wilson‑Raybould)).

19Given the concerns expressed by the legal community about that approach, and further to an amendment proposal made by the Senate, the wording of the bill was changed to expand access to preliminary inquiries by comparison with what had been set out in the original bill. A choice was made to preserve the right of accused persons to a preliminary inquiry for all of what were considered to be the most serious offences. In this context, Parliament decided to preserve access in the case of offences for which the maximum sentence was 14 years or more. We use the term "most serious offences" below to refer to such offences:

As introduced, Bill C‑75 proposed to restrict the availability of preliminary inquiries to indictable offences punishable by life imprisonment, roughly 70 offences. The other place agreed that these offences should automatically include a preliminary inquiry.

However, it also expanded their availability on a discretionary basis to all other indictable offences with a maximum penalty of less than life imprisonment, which would have been an additional 393 offences. As per the other place's amendment, preliminary inquiries would be available in two circumstances: first, where one or both parties requested one; and, second, a justice was satisfied that certain criteria were met, namely that appropriate measures were taken to mitigate the impacts on victims for both approaches and, where it was on the request of one party, that it was also in the best interest of the administration of justice.

The amendment responded to concerns that preliminary inquiries were not available for more and serious offences. However, the expansion of their availability, combined with the new complex criteria, would lead, in our view, to further delays and unnecessary litigation; for example, to interpret the proper application of the criteria.

Recognizing, however, that the other place's amendment was motivated by continuing concerns by the legal community and others, I proposed to not accept the other place's amendments 3 and 4 as drafted, but to revise the bill's original approach to make preliminary inquiries also available for offences with a maximum penalty of 14 years, for example, sexual assault with a weapon.

(House of Commons Debates, vol. 148, No. 435, 1st Sess., 42nd Parl., June 17, 2019, at p. 29245 (Hon. D. Lametti))

20That version of the bill was assented to on June 21, 2019, and stipulated that the new preliminary inquiry provisions would come into force 90 days later, on September 19, 2019 (see An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25 ("2019 Amendments"), s. 406). The wording of s. 535 Cr. C. as so amended provides only accused persons who are charged with an indictable offence punishable by 14 years or more of imprisonment with the right to a preliminary inquiry:

535 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.

21Overall, the purpose of the legislative amendment is to reduce the number and length of preliminary inquiries in order to address the increase in court delays in criminal cases and alleviate the burden on witnesses and victims, who have to testify twice when such a procedure is used (House of Commons Debates, May 24, 2018, at pp. 19602‑5 (Hon. J. Wilson‑Raybould); see also House of Commons Debates, June 17, 2019, at pp. 29245‑46 (Hon. D. Lametti)). To this end, Parliament has limited the right of accused persons to request a preliminary inquiry to the offences that are considered to be the most serious. In the context of this amendment, the category of the most serious offences is understood by Parliament as consisting of indictable offences punishable by a maximum term of imprisonment of 14 years or more.

IV. Analysis

22This appeal requires this Court to interpret a new legislative provision and to determine how it applies temporally. Both in matters of transitional law and in statutory interpretation generally, [translation] "the legislative intent is paramount" (P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at No. 457; see also R. v. Ali, , [1980] 1 S.C.R. 221, at p. 235). Our role is therefore limited to discerning the true legislative intent by reading the words of the provision in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the legislation (Rizzo & Rizzo Shoes Ltd. (Re), , [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26).

23Our analysis proceeds as follows. First, we discuss how the new s. 535 Cr. C. applies temporally. Second, we interpret the scope of s. 535 Cr. C. as amended. On the basis of our analysis, we conclude that the respondents, Mr. Grenier and Mr. Archambault, each have the right to a preliminary inquiry both under the former law, whose effects with respect to them survive the legislative amendment, and under the new law.

A. The Legislative Amendment Does Not Eliminate the Right to a Preliminary Inquiry for Accused Persons Charged Before It Came Into Force

(1) Principles of Transitional Law Applicable in This Case

24The starting point in analyzing the temporal application of new legislation is always the legislation itself. In the absence of a transitional provision, and where the lawmaker's intention to give the legislation a particular effect does not appear expressly or by necessary implication upon reading the legislation, as is the case here, recourse must be had specifically to the rules laid down in interpretation statutes and court decisions.

25The Crown argues that the Court of Appeal erred in finding that the right to a preliminary inquiry is governed by the law in force at the time the offence with which the accused is charged was committed. The effect that the new s. 535 Cr. C. must be given thus depends rather on the application of the presumption against interference with vested rights. According to the Crown, if there is a vested right to a preliminary inquiry, this right does not vest until a valid request for such an inquiry is made.

26In this case, assessing the merits of these arguments brings into play three well‑established principles of transitional law, which one must be careful not to conflate: (1) the principle of legality; (2) the presumption against interference with vested rights; and (3) the exception based on the immediate application of purely procedural provisions. On the basis of the first principle, the Court of Appeal held that the right to a preliminary inquiry is accruing from the moment the offence is committed. On the basis of the second principle, it held that this right is vested at the date of the first appearance. None of the parties argues that the third principle applies here, but this principle must still be considered in order to resolve the question of the temporal application of the new s. 535 Cr. C.

27The principle of legality is a "pillar of the criminal law" whose purpose is to preserve the law as it stood at the time an offence was committed (R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 59). The principle was helpfully summarized by Iacobucci and Arbour JJ. in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357: "As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at the time that the offence allegedly was committed" (para. 41). This rule finds expression in two forms, both of which are embodied in the Charter (Côté and Devinat, at Nos. 566‑67; G. Côté‐Harper, P. Rainville and J. Turgeon, Traité de droit pénal canadien (4th ed. rev. 1998), at pp. 99‑120). First, the new legislation cannot make criminal any act or omission that did not constitute an offence at the time it occurred; s. 11(g) guarantees to any person charged with an offence the right not to be found guilty under such legislation. Second, the new legislation cannot create more severe punishments for an offence committed before it came into force; s. 11(i) guarantees to any person charged with an offence the right to the benefit of the lesser punishment if the punishment has been varied between the time of commission of the offence and the time of sentencing. The rule of law and the fairness of criminal proceedings depend on this (R. v. Kelly, , [1992] 2 S.C.R. 170, at p. 203, per McLachlin J.; Poulin, at para. 59; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 22‑25).

28The presumption that Parliament does not intend to interfere with vested rights or privileges is one of the fundamental principles of transitional law. To ensure the certainty of the legal consequences attaching to facts and conduct predating a legislative amendment, "a statute should not be given a construction that would impair existing rights as regards person or property unless the language in which it is couched requires such a construction" (Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, , [1977] 1 S.C.R. 271, at pp. 282‑83, citing Spooner Oils Ltd. v. Turner Valley Gas Conservation, [1933] S.C.R. 629, at p. 638; see also Dikranian v. Quebec (Attorney General), 2005 SCC 73, [2005] 3 S.C.R. 530, at para. 33). Legislation that affects substantive rights can only apply prospectively to cases in which these rights have not yet vested (R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at para. 87).

29There is just one exception to this presumption, namely that "there is no vested right in procedure", though this is subject to "a limitation to the effect that the following of the new procedure must be feasible" (Wildman v. The Queen, , [1984] 2 S.C.R. 311, at p. 331). Purely procedural legislation, which is meant to govern the manner in which rights or privileges are asserted without affecting their substance, is presumed to apply immediately (R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at paras. 10‑11; see also Upper Canada College v. Smith (1920), 61 S.C.R. 413, at p. 418; Howard Smith Paper Mills v. The Queen, [1957] S.C.R. 403, at pp. 419‑20; Angus v. Sun Alliance Insurance Co., , [1988] 2 S.C.R. 256, at pp. 265‑67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at paras. 57 and 62). However, this exception is merely a presumption and must therefore yield to a contrary intention expressed by the lawmaker (Ali, at p. 235).

30The following provisions of the Interpretation Act, R.S.C. 1985, c. I‑21, codify the presumption against interference with vested rights and the exception based on the immediate application of purely procedural provisions:

43 Where an enactment is repealed in whole or in part, the repeal does not

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

44 Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,

(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(ii) in the enforcement of rights, existing or accruing under the former enactment,

31With respect, it is not helpful to address the principle of legality from the perspective of vested rights, as the Court of Appeal did in this case, nor is it appropriate to erase the distinction between non‑retroactivity and non‑interference with vested rights (see Venne v. Quebec (Commission de protection du territoire agricole), , [1989] 1 S.C.R. 880, at p. 906; Attorney General of Quebec v. Expropriation Tribunal, , [1986] 1 S.C.R. 732, at pp. 741 and 744; Gustavson Drilling, at pp. 279 and 282; Dikranian, at para. 31). Such an approach injects more uncertainty and confusion into transitional law than it resolves. We are dealing not with a provision that might change the legal rules applicable at the time the offence was committed, which would engage the principle of legality, but rather with a legislative amendment whose purpose is to limit the use of a criminal procedure for the future.

32We therefore propose simply to follow the structure of ss. 43 and 44 of the Interpretation Act. The first question to be considered in determining how new legislation applies temporally is whether the legislative amendment is purely procedural in nature. If the amendment in issue may affect a right or privilege that vested under the prior enactment, the time at which that right or privilege vested must be determined. It will be presumed to be preserved only for persons in whom it actually vested before the legislative amendment came into force.

(2) The Abolition of the Preliminary Inquiry for Certain Offences Is Procedural in Nature but Affects a Substantive Right

33The absence of any indication from Parliament as to the temporal application of a provision triggers the presumption that the legislative amendment does not affect vested rights or privileges. In this case, the amending statute contains several transitional provisions, but none of them concerns the sections relating to the preliminary inquiry regime. There is nothing in the new enactment that makes it possible to clearly discern Parliament's intent with respect to its temporal application. In such circumstances, it must be concluded that Parliament intended to rely on the presumptions, not to displace them.

34Mr. Grenier and Mr. Archambault are asking this Court to affirm, as the Court of Appeal did, that the right to a preliminary inquiry is governed by the substantive law in force at the time the offence was committed. Reaching this conclusion would end the analysis.

35However, with respect for the contrary view, we are of the opinion that the abolition of the preliminary inquiry for certain offences does not engage the principle of legality. This measure has no impact on the scope of criminal liability. The preliminary inquiry is not a legal rule on which an accused may rely in adjusting his behaviour or in deciding to accept the consequences of breaking it at the moment he commits an offence (Poulin, at para. 59). It "is not a trial but simply a preliminary review to determine whether there is sufficient evidence to proceed to trial" (Hynes, at para. 4; see also A. Stylios, J. Casgrain and M.‑É. O'Brien, Procédure pénale (2023), at para. 10‑3).

36It must therefore be asked whether the abolition of the preliminary inquiry in the case of accused persons charged with an indictable offence punishable by less than 14 years of imprisonment affects a substantive right or whether, the amendment being purely procedural in nature, the new enactment must apply immediately to all proceedings, whether commenced before or after it came into force. Provincial court and superior court judges across the country have expressed conflicting opinions on the matter. Importantly, the Crown does not argue that the legislative amendment is purely procedural in nature, but rather questions when the right to a preliminary inquiry vests.

37On this point, we agree for the most part with the analysis of our colleague Karakatsanis J. It is true that Parliament's choice to limit or abolish the right to a preliminary inquiry in the case of certain offences does not affect the accused's right to make full answer and defence, because there is no constitutional right to a preliminary inquiry (S.J.L., at para. 21). That being said, as Doherty J.A. established in R. v. R.S., 2019 ONCA 906, the limitation on the right to a preliminary inquiry affects the accused's right under s. 548(1)(b) Cr. C. to be discharged of any charge if, on the whole of the evidence adduced during the preliminary inquiry, no sufficient case is made out to put the accused on trial on the charge (para. 49; see also R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828). The purpose of the preliminary inquiry is in fact to "protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process" (Hynes, at para. 30, quoting Skogman, at p. 105). It may also happen that, following a preliminary inquiry, an accused will be committed for trial on offences distinct from the one initially charged, a situation that may lead to a review of the decision then in effect on the accused's interim release, pursuant to s. 523(2)(b) Cr. C.

38This is not a case in which the legislative amendment would affect only the manner of proceeding or of conducting litigation. Any limitation on the right to a preliminary inquiry therefore has a direct impact on the liberty and security of accused persons (R.S., at paras. 52 and 57‑58). The legislative amendment, whose purpose is to limit the preliminary inquiry to the most serious offences, cannot be considered a purely procedural amendment.

39We also agree with our colleague Karakatsanis J. that simply concluding that procedural legislation may affect vested or substantive rights is not sufficient to determine the temporal application of a legislative amendment where the vesting of these rights may be questioned. In Dineley, this Court cautioned against categorizing the nature of a legislative amendment in an overly rigid manner without considering its effects on "vested or substantive rights" (para. 10). The use of the word "or" in the expression "vested or substantive rights" cannot be interpreted as creating two distinct classes of rights, one that protects rights from any retrospective effect and the other providing protection only if the rights in question have vested. This would amount to nullifying the presumption against interference with vested rights. Therefore, with due respect for the approach adopted by our colleague Martin J., the fact that new procedural legislation may, through its effects, interfere with a substantive right does not end the analysis. The right or privilege in question must also have been vested at the time that legislation came into force.

40We would add that the fact that a legislative amendment affects "interests" of a constitutional nature is not in itself determinative of how the legislative amendment applies temporally (Martin J.'s reasons, at para. 110). That would be a considerable extension of the constitutional sphere, which would have the effect of unjustifiably broadening the scope of the presumption against interference with vested rights, especially given that the constitutionality of the amendment in issue is not being challenged. In Dineley, it was unnecessary for this Court to consider when the right had vested, because the legislative amendment had come into force during the trial. Holding that the presumption on vested rights applied and that it was impossible for proceedings commenced under the former enactment to be continued in conformity with the new enactment, as contemplated by Ali, was sufficient to dispose of the appeal.

41There is more. In a criminal context, the conclusion that new procedural legislation affects vested or substantive rights does not necessarily engage the principle of legality. Vested or substantive rights within the meaning of Dineley must not be confused with the substantive law in force at the time the offence was committed within the meaning of Poulin. A right may be vested or substantive without having any impact on the scope of criminal liability, that is, the nature or consequences of the commission of an offence. The reverse is also true. It is possible for an accused not to have a vested right to the rules in force at the time the offence was committed. With respect, the approach adopted by the Court of Appeal in this case creates such confusion.

42In light of our conclusion on this question, and in the absence of any indication that justifies concluding otherwise, the presumption that Parliament did not intend to interfere with vested rights or privileges in relation to preliminary inquiries applies. What must now be determined is when this right vests in order to decide whether Mr. Grenier and Mr. Archambault were entitled to the preliminary inquiries they obtained following an agreement with the Crown.

(3) The Right to a Preliminary Inquiry Vests at the Time Charges Are Laid

43The core issue in this appeal is when the right to a preliminary inquiry vests for the purposes of s. 43(c) of the Interpretation Act. If an amendment may affect a right existing under the former law, the right in question will be presumed to be preserved only for accused persons in whom it actually vested before the amendment came into force.

44The determination of what constitutes a vested right or privilege is a delicate matter. In Dikranian, this Court set out two conditions to be met by an individual claiming a vested right or privilege. First, the individual's legal situation must be "tangible and concrete rather than general and abstract" (para. 37). The mere possibility of availing oneself of a statute is not a basis for arguing that a vested right exists; "the right must be vested in a specific individual" (para. 39). Second, the individual's legal situation must be sufficiently tangible and constituted at the time the new legislation comes into force; in other words, the situation must have materialized to some degree (paras. 37 and 40).

45For the legal situation to be sufficiently constituted, the conditions precedent to the exercise of a right must have been fulfilled. Only then can the right be vested (R. v. Puskas, , [1998] 1 S.C.R. 1207, at para. 14). However, the right can still vest in time even if not all procedural steps required to exercise the right were taken before a legislative amendment came into force (see, e.g., Re Falconbridge Nickel Mines Ltd. and Minister of Revenue for Ontario (1981), 32 O.R. (2d) 240 (C.A.), at pp. 248‑50; see also Côté and Devinat, at No. 638; R. Sullivan, The Construction of Statutes (7th ed. 2022), at pp. 729‑30). The difficulty therefore lies in distinguishing, on the one hand, what are simply the necessary procedural steps for exercising the right from, on the other, the conditions precedent to the exercise of the right. Only the latter must be fulfilled for the right to vest.

46Mr. Grenier and Mr. Archambault, echoing in part the Court of Appeal's conclusions in this regard, argue principally that the right to a preliminary inquiry vests at the time the offence is committed and, in the alternative, that the right vests at the time of the first appearance. It is relevant to note that the Ontario Court of Appeal, unlike its Quebec counterpart, has found that the right to a preliminary inquiry does not vest until the date the accused requests such an inquiry (see R.S., at para. 4). In the present case, the Crown is asking this Court to adopt this latter approach and to reject the one favoured by the Court of Appeal of Quebec.

47The Crown correctly submits that a right or a privilege cannot vest at several different points in time. It is true that there is a notable difference in formulation between the French and English versions of s. 43(c) of the Interpretation Act. The French version refers first to "droits ou avantages acquis", and then to "obligations contractées" and "responsabilités encourues". The English version does not use specific language for rights and privileges, referring rather to "any right, privilege, obligation or liability acquired, accrued, accruing or incurred." In principle, the words "acquired, accrued, accruing" should have different meanings, because Parliament does not speak in vain (Attorney General of Quebec v. Carrières Ste‑Thérèse Ltée, [1985] 1 S.C.R. 831, at p. 838; Canada (Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 87; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 89). However, as Professor Ruth Sullivan noted, "the prolix style in which the provision is drafted (typical of the nineteenth and early twentieth centuries) blunts the force of this presumption" (p. 768). This Court therefore stated in Puskas that the words "acquired", "accrued" and "accruing" used in s. 43(c) of the Interpretation Act essentially refer to the same idea: ". . . something can only be said to be 'accruing' if its eventual accrual is certain, and not conditional on future events" (para. 14 (emphasis added)).

48Under the first step of the test laid down in Dikranian, the possibility that the accused's right to a preliminary inquiry vests at the time the offence is committed can be excluded. The time of the offence cannot be the point at which the right to a preliminary inquiry vests, since the accused's legal situation is not sufficiently tangible, concrete and distinctive at that time. It is not until the accused is charged that their legal situation becomes tangible, concrete and distinctive. At the time charges are laid, the criminal court process begins and the accused actually faces criminal jeopardy.

49We are also of the view that, under the second step of the test laid down in Dikranian, the accused's situation is sufficiently constituted at the time charges are laid. At that point, the vesting of the right is certain and not conditional on future events, because the accused will inevitably have to appear and choose to exercise or waive their right to a preliminary inquiry, or to reserve their election. All of the conditions precedent to the vesting of the right are also fulfilled at that time. In our opinion, the request that the accused must make to a justice is a necessary procedural step for exercising the right to a preliminary inquiry, but it has no effect on its crystallization. This can be confirmed simply by looking at the wording of s. 535 Cr. C., bearing in mind the purpose of the legislative amendments that came into force in 2004 and 2019.

50Section 535 Cr. C. opens with the phrase "[i]f an accused who is charged with an indictable offence", which sets the charging of the accused as the condition for entitlement to a preliminary inquiry. The Court of Appeal correctly noted that "[t]hese words point unmistakably to the moment of charging as the moment at which the entitlement to a preliminary inquiry . . . is fully vested in the accused" (para. 37). It is true that s. 535 Cr. C. states that an accused must be "charged with an indictable offence" ("inculpé d'un acte criminel"). In the case of a hybrid offence, the Crown may not yet have decided on the mode of prosecution at the time charges are laid. However, this is not a consideration that makes the right less certain or concrete. There is a fundamental distinction between a right that has vested but can be challenged and a right that has not vested because the conditions precedent to its crystallization have not been fulfilled. Therefore, neither the fact that the Crown may elect to proceed summarily or by direct indictment under s. 577 Cr. C. nor the possibility that the accused will elect to be tried in provincial court prevents the right to a preliminary inquiry from being acquired by the accused (R.S., at para. 40).

51The accused must make a request before a justice in order for a preliminary inquiry to be held, but the vesting of the accused's right is not conditional on the making of such a request. Section 535 Cr. C. is under the heading "Jurisdiction" and concerns the justice's duty to conduct a preliminary inquiry. This duty is separate from the accused's right to a preliminary inquiry. From a procedural standpoint, a preliminary inquiry is held only if a request to this effect is made by one of the parties (ss. 535, 536(2) and (4) and 536.1(2) and (3) Cr. C.); this is why the justice's duty to conduct an inquiry arises only if one is requested. In this context, the request for a preliminary inquiry triggers the justice's duty but is not a condition precedent to the existence of the right to a preliminary inquiry itself.

52In this regard, we cannot agree with our colleague Karakatsanis J.'s reading of Puskas. That case dealt with amendments to s. 691(2) Cr. C. that abolished appeals as of right to this Court for accused persons whose acquittal had been overturned by a court of appeal, where a new trial had been ordered. The right to appeal to this Court without leave was accompanied by a procedural requirement, namely the filing of a notice of appeal within the statutory time limits (see Supreme Court Act, R.S.C. 1985, c. S‑26, ss. 58 to 60). In Puskas, this Court did not include the filing of the notice of appeal in the set of conditions to be met for the vesting of the right in question (para. 15). In the same way, the making of a request for a preliminary inquiry is not a condition precedent to the existence of the right to a preliminary inquiry, but rather constitutes the exercise of the right itself.

53To conclude otherwise would be to give the 2004 legislative amendments a scope they were not intended to have. As this Court noted in S.J.L., the purpose of those amendments was to enable parties to choose a mechanism adapted to their needs, not to impose a condition to be met for their right to materialize. The right to a preliminary inquiry remained "unconditional" (House of Commons Debates, September 28, 2000, at pp. 8828‑29; Debates of the Senate, November 1, 2001, at p. 1612; see also D. M. Paciocco, "A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry" (2004), 48 Crim. L.Q. 151, at p. 162). The addition of procedural steps that had to be taken in order to exercise the right to a preliminary inquiry did not change the scope of this right, unlike the 2019 legislative amendment, whose purpose was precisely to limit the number of such inquiries. The effects of these two amendments must not be conflated.

54The Court of Appeal of Quebec properly noted that accused persons regularly reserve their election as to mode of trial at the first appearance in order to avoid making a premature decision on the exercise of their right to a preliminary inquiry (paras. 40‑43). This practice provides a concrete illustration of the fact that the right to a preliminary inquiry crystallizes as soon as criminal charges are laid. As our colleague Kasirer J. suggests, if an accused can in practice reserve the exercise of their right, this means that their legal situation is (1) tangible, concrete and distinctive and (2) sufficiently constituted, that is, not uncertain and not conditional on future events. As we explain, however, these conditions are already met the moment criminal charges are laid. As long as the accused has not waived the right to a preliminary inquiry by electing to be tried in provincial court and the Crown has not defeated this right by electing an incompatible mode of prosecution or by proceeding by direct indictment, the accused continues to have a right to a preliminary inquiry.

55In our view, there is no need in this case to decide on the appropriateness of reforming this practice. Parliament has already made the choice to limit the preliminary inquiry to the most serious cases in order to address the increase in court delays in criminal cases. Arguably, the making of informed decisions also helps to reduce delays, by comparison with the making of premature decisions that might entail higher costs. It must be kept in mind that, when an accused expresses his wish to re‑elect mode of trial, consent from the prosecutor must generally be obtained (s. 561(1)(a) Cr. C.; Jordan, at para. 62). In this context, and in light of the importance of this election by an accused, we would refrain from concluding that the practice of reserving elections is a dilatory mechanism.

56In addition to being supported by the new enactment, the interpretation we adopt has the advantage of preserving fairness and legal certainty. Criminal trials do not all proceed in a purely linear fashion, and they each have their own particular features. When it comes to the order of the various stages of the proceedings, there are a multitude of possibilities. The flexibility of criminal procedure and the possible delays that may occur are better acknowledged by finding that the right vests when charges are laid, a stage common to all cases. Such delays may be attributable to the Crown, for example where it is slow to elect the mode of prosecution, or to the delays inherent in the justice system. Nothing suggests that Parliament intended to subject the vesting of a right as important as that to a preliminary inquiry to such contingencies. The expectation of the accused crystallizes into a right to a preliminary inquiry once charges are laid, because the accused's freedom and security are then at risk.

57Such an interpretation also has the advantage of allowing for the uniform application of criminal procedure across the country, without affecting the particularities of the administration of justice in certain provinces. Such particularities are permitted by Parliament in matters of criminal procedure (see ss. 482 and 482.1 Cr. C.). We believe that it is important for justice to be administered in a manner adapted to local circumstances and, for this reason, we consider it inappropriate to adopt an interpretation of the new text of s. 535 Cr. C. that would exclude such a possibility outright. Nothing in the wording of this provision is inherently incompatible with the election being reserved and the preauthorization or not of prosecutions. To conclude that the right to a preliminary inquiry only vests when an accused makes such a request risks creating situations in which accused persons in different provinces, despite being charged on the same date, would not all be vested with the right to a preliminary inquiry.

58The respondents, Mr. Grenier and Mr. Archambault, were charged prior to September 19, 2019. We therefore conclude that they each had a vested right to a preliminary inquiry before the legislative amendment came into force. The former s. 535 Cr. C. continues to apply to them by operation of the presumption against interference with vested rights, and it is unnecessary to determine whether the offences they were charged with fall within the category of the most serious offences. The Crown chose to prioritize the holding of the trials for Mr. Grenier and Mr. Archambault within a reasonable time, as well as the right of the victims to finally be heard in court, by allowing a preliminary inquiry to be held in each of the two cases. With respect for the contrary view, we conclude that this choice was consistent in every respect with the temporal application of the legislative amendment.

B. An Accused Whose Alleged Offence, or Its Equivalent, Is Punishable by 14 Years or More of Imprisonment Has the Right to a Preliminary Inquiry

59Although our conclusion on the question of the temporal application of the new text of s. 535 Cr. C. is sufficient to dispose of this appeal, we shall now examine the interpretation this provision should receive.

60To date, appellate courts that have considered the matter have found that a preliminary inquiry is available only to accused persons who personally face a term of imprisonment of 14 years or more (see R. v. Sheppard, 2023 ABCA 381, 69 Alta. L.R. (7th) 1; R. v. S.S., 2021 ONCA 479, 493 C.R.R. (2d) 251; R. v. C.T.B., 2021 NSCA 58). In the same vein, the Crown submits that the legislative amendment to s. 535 Cr. C. has the effect of eliminating the right to a preliminary inquiry for accused persons charged with so‑called historical offences for which the term of imprisonment was not 14 years or more at the time the offence was committed.

61With respect, we are of the view that this interpretation is incorrect. The text, context and purpose of s. 535 Cr. C. demonstrate that an accused has the right to a preliminary inquiry if their alleged offence, or its equivalent, is punishable by 14 years or more of imprisonment. Section 535 Cr. C. must be interpreted in a manner consistent with the intent expressed by Parliament to increase the sentences applicable to certain offences, where necessary. The right to a preliminary inquiry is therefore not affected by the accused's right to the benefit of the lesser punishment.

(1) Parliament Intended the Right to a Preliminary Inquiry To Be Tied to the Seriousness of the Offence

62There is no ambiguity in the wording of s. 535 Cr. C. A preliminary inquiry can be held only "[i]f 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 [an] inquiry". Both the adjective "punishable" in English and its equivalent "passible" in the French version, which states "[l]orsqu'un prévenu inculpé d'un acte criminel passible d'un emprisonnement de quatorze ans ou plus", relate to the indictable offence and not to the sentence the accused may receive. In addition, the English version of the provision is enlightening in this regard, since the word "that" very clearly links the adjective "punishable" to the term "indictable offence". This phrasing refers to the seriousness of the alleged offence, and its logic is not directed at the accused personally. Parliament thus intended the right to a preliminary inquiry to be tied to the seriousness of the alleged offence, not to the degree of jeopardy faced by the accused. This is an objective criterion.

63The expression "acte criminel passible d'un emprisonnement maximal de" is used more than a hundred times in the French version of the Cr. C. to establish the maximum sentence that applies and thus to define the objective seriousness of offences. As this Court stated in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 96, the maximum sentence established by Parliament for an offence determines the objective seriousness of the offence (see also R. v. M. (C.A.), , [1996] 1 S.C.R. 500, at para. 36; H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (3rd ed. 2020), at p. 53; C. C. Ruby, Sentencing (10th ed. 2020), at §2.19). According to the presumption of consistent expression, the meaning of the words used in statutes remains consistent, because "the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes" (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 44, citing R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 217). There is therefore no reason, in interpreting the text of s. 535 Cr. C., to depart from the usual meaning of this expression, which refers to the objective seriousness of the offence.

64This interpretation is not only supported by the text of s. 535 Cr. C. but is also reinforced by an examination of the parliamentary debates that led to the amendment in issue. It must be kept in mind that Parliament has always understood the category of the "most serious offences" by reference to the maximum sentence specified for the offence, which, here again, is reflected in the provision as enacted. The first version of the amendment at issue would have maintained the right to a preliminary inquiry only for accused persons charged with offences punishable by life imprisonment. As a result of a public outcry and a compromise that followed, Parliament instead chose to preserve the right to a preliminary inquiry for "the most serious offences", meaning those punishable by a maximum term of imprisonment of 14 years or more. In doing so, Parliament presumably had in mind offences in the nature of those Mr. Grenier and Mr. Archambault were charged with, which today fall within the category of the most serious offences. Parliament made the choice to increase the maximum sentences for such offences "to convey its view of the gravity of a particular offence" (R. v. Bertrand Marchand, 2023 SCC 26, at para. 168).

65While it is not in dispute that Parliament intended to limit the right to a preliminary inquiry to the most serious offences, it strikes us as contradictory to adopt an approach based on the severity of the maximum sentence to which the accused is personally liable (or the jeopardy actually faced by the accused), as the Crown does in this case.

66In reality, the Crown's interpretation does not rest on the text or context of s. 535 Cr. C., but rather on the abstract purpose of reducing the number of offences for which a preliminary inquiry is available. With respect, such an interpretation disregards the new wording of the provision and the compromise from which it resulted. While the purpose of the amendment plays an important role in the interpretation of the new provision, it cannot serve as a basis for rewriting the provision so amended or for ignoring the clear meaning it conveys (see R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 26; R. v. McColman, 2023 SCC 8, at para. 36; Reference re Impact Assessment Act, 2023 SCC 23, at para. 193; see also Côté and Devinat, at No. 1366; Sullivan, at p. 293; M. Mancini, "The Purpose Error in the Modern Approach to Statutory Interpretation" (2022), 59 Alta. L. Rev. 919, at pp. 920‑22). In construing a legislative provision, "courts do not have to interpret — let alone implement — the objective underlying a legislative scheme or provision; what they must interpret is the text through which the legislature seeks to achieve [its] objective" (MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 39). It is clear that Parliament did not seek to achieve at any cost its purpose of reducing the number of offences for which a preliminary inquiry is available, but rather confined itself to a very specific compromise, which is reflected in the wording of the provision (Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 174; see also Mancini, at pp. 920‑21).

67The Crown relies in part on R. v. Windebank, 2021 ONCA 157, 154 O.R. (3d) 573, to argue that any interpretation of s. 535 Cr. C. that increased the number of offences for which a preliminary inquiry is available would be contrary to Parliament's purpose. In that case, the accused was charged with assault causing bodily harm and assault by choking, suffocation or strangulation, offences punishable by imprisonment for a term of 10 years (s. 267(b) and (c) Cr. C.). The Crown advised the accused that it intended to apply to have him remanded for an assessment under s. 752.1 Cr. C. if he was convicted. In response, the accused requested a preliminary inquiry, alleging that he was now at risk of indefinite detention (s. 753(4) Cr. C.). The Ontario Court of Appeal, per Nordheimer J.A., rightly rejected that argument on the ground that the language and legislative history of s. 535 Cr. C. point to an emphasis on the seriousness of the offence, not on the jeopardy faced by the accused:

There is nothing ambiguous about the language used in s. 535. The words used are plain. An offender is entitled to a preliminary inquiry if "charged with an indictable offence that is punishable by 14 years or more of imprisonment". The respondent is not charged with any such offence.

In my view, the flaw, both in the respondent's argument and in the decisions below, is that they confuse the seriousness of the offence with the seriousness of the offender, that is, their individual circumstances. Proceedings by way of a dangerous offender designation are separate and apart from the proceedings leading to a conviction for the offence. It is a proceeding that may only be invoked after a finding of guilt has been made on the offence charged. It requires a separate process where separate factual findings are made, and its determination turns on the nature of the offender, not the nature of the offence. While a specific offence may trigger the dangerous offender proceeding, its determination goes well beyond the originating offence: R. v. Wilson, [2020] O.J. No. 30, 2020 ONCA 3, 384 C.C.C. (3d) 355, at para. 66.

As s. 535 makes clear, it is the seriousness of the offence that dictates the entitlement to a preliminary inquiry. This conclusion is reinforced by the legislative history leading to the changes to s. 535, including the change from offences carrying a maximum sentence of life imprisonment to offences carrying a maximum sentence of 14 years. It is also reinforced by the various speeches made in Parliament regarding the purpose behind the amendments. [Underlining added; paras. 35‑37.]

68Clearly, and with respect for the distinction drawn by the Ontario Court of Appeal in S.S., the jeopardy actually faced by the accused as a result of the time when the offence was committed is part of the accused's individual circumstances and does not go to the seriousness of the alleged offence. An offence is not less serious today because it was committed before a certain date. In determining the right to a preliminary inquiry, Parliament did not intend to draw a distinction between charges of the same nature based on the date of commission of the offence. To conclude otherwise would only create more complexity and uncertainty, which would be contrary to Parliament's intent (Windebank, at para. 31).

69The objective seriousness of an offence is not confined to the maximum sentence for the offence at the time it was committed. On the contrary, the legislative amendments increasing maximum sentences "indicate Parliament's determination that . . . offences . . . are to be treated as more grave than they had been in the past" (Friesen, at para. 99; see also Bertrand Marchand, at para. 168). The jeopardy faced by an accused who is not personally liable to a maximum sentence of 14 years is similar to that faced by an accused who is personally liable to that maximum sentence. In applying the principles of sentencing, courts are required to impose sentences higher than those imposed prior to the increases, in accordance with the will of Parliament (Friesen, at para. 100; see, e.g., R. v. Fruitier, 2022 QCCA 1225, at paras. 32‑40). Parliament did not intend to exclude historical offences from the category of the most serious offences.

70Finally, like the appellate courts that have considered the matter (see S.S., at paras. 17‑20; C.T.B., at paras. 21 and 42‑43), the Crown supports its interpretation of the new s. 535 Cr. C. by drawing an analogy between this provision and the one in dispute in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. With respect, that analogy does not hold up. In Tran, the accused had committed an offence that was punishable by a maximum sentence of seven years at the time it was committed. After the accused was charged, but before he was convicted, a legislative amendment increased the maximum sentence for that offence to imprisonment for 14 years. Under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the accused was inadmissible to Canada on grounds of serious criminality for having been convicted in Canada of a federal offence punishable by a maximum term of imprisonment of at least 10 years. That provision, which has since been amended, was worded as follows:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

71On the basis of this wording, the parties were divided on the question of whether the maximum sentence should be assessed by reference to the Act of Parliament defining the offence or the maximum sentence that could be imposed on the person. In that particular context, this Court departed from the usual meaning of the words "punishable by a maximum term of imprisonment of at least 10 years". Such an interpretation was justified by the context of the provision, given the temporal marker (set at the time of conviction) and the disjunctive clauses (the maximum term of imprisonment and the actual term imposed), as well as by the purpose of the Immigration and Refugee Protection Act (Tran, at paras. 36‑40). The opposite interpretation would have led to the conclusion that one and the same conviction could both entitle a permanent resident to remain in the country at the time the conviction was entered and lead to their deportation later, without any indication from Parliament that such a retroactive effect was intended (paras. 43‑53). In light of all of these considerations, this Court held that the provision could refer only to the maximum sentence that could have been imposed on the accused at the time the offence was committed (para. 36).

72Uniformly transposing the interpretation of s. 36(1)(a) of the Immigration and Refugee Protection Act to s. 535 Cr. C. disregards the text, context and purpose of each of the two provisions. Statutory interpretation is meant to determine the intent reflected in a particular enactment and cannot be reduced to an artificial comparative exercise that does not take account of the context in which the words are used.

73Where the maximum sentence for an offence was increased to 14 years between the commission of the offence and the laying of charges, a preliminary inquiry can be held even if the accused is not personally facing a maximum sentence of 14 years. In such a case, it must be asked whether the seriousness of the alleged offence, as it is defined today, places it within the category of the most serious offences. The fact that the accused is charged and convicted on the basis of the criminal provisions in force at the time the offence was committed changes nothing in this regard.

(2) An Accused's Right to the Benefit of the Lesser Punishment Does Not Affect the Determination of the Right to a Preliminary Inquiry

74Although an accused may receive a reduced maximum sentence for a crime committed before the sentence was increased, the accused's right to the benefit of the lesser punishment does not defeat the right to a preliminary inquiry. To conclude otherwise would lead to an absurd result, in addition to penalizing the accused and disregarding the sequence of the various stages of a trial.

75In establishing an accused's right to a preliminary inquiry, s. 535 Cr. C. is closely linked to the right set out in s. 548(1)(b) Cr. C., that is, the right to be discharged of any charge if, on the whole of the evidence adduced during the preliminary inquiry, no sufficient case is made out to put the accused on trial on the charge. In this sense, it is a provision favourable to the accused. Section 535 Cr. C. cannot be interpreted narrowly in light of other provisions that are equally favourable to the accused, such as s. 11(i) of the Charter and ss. 43(d) and 44(e) of the Interpretation Act, which establish the accused's right to the benefit of the lesser punishment. Concluding that accused persons who enjoy such protection have no right to a preliminary inquiry leads to an absurdity, which results from the application of provisions whose purpose is precisely to preserve their interests.

76We are also unable to agree with the conclusion of our colleague Karakatsanis J. that Mr. Grenier and Mr. Archambault would not be penalized by such an interpretation. While an accused's right to the benefit of the lesser punishment guarantees a maximum sentence of 10 years' imprisonment because of the date of the alleged offence for which the statutory sentence has since been increased, the accused can be given a sentence heavier than the one that would have been imposed at the time, as we explained above (Friesen, at paras. 3, 5 and 107; Bertrand Marchand, at para. 31). There is therefore a significant difference between the situation of an accused charged with an offence punishable by imprisonment for a term of 10 years and that of an accused charged with a historical offence for which the statutory sentence has since been increased.

77We reiterate that Tran does not support the conclusion that the accused must be personally facing a maximum term of imprisonment of 14 years in order to have the right to a preliminary inquiry. Drawing an analogy with s. 36(1)(a) of the Immigration and Refugee Protection Act, as our colleague Karakatsanis J. does, overlooks the sequence of stages in criminal trials. The preliminary inquiry and sentencing occur at different times and are separated by the trial. The order in which these stages proceed plays an important role, because the preliminary inquiry takes place well before sentencing. To hold otherwise could lead to results that are absurd in practice, if not harmful. There are circumstances in which the justice cannot say with certainty that the accused will have the rights set out in s. 11(i) of the Charter. Adopting the reasoning proposed by our colleague would create the risk of denying a preliminary inquiry to an accused who should be entitled to one. The application of s. 11(i) of the Charter is a question of law, which a judge decides only at the sentencing stage.

(3) Application to the Facts

78It must be kept in mind that, since 2015, offences in the nature of those with which Mr. Grenier and Mr. Archambault were charged, or the equivalent offences, have been punishable by a maximum term of imprisonment of 14 years. Under s. 11(i) of the Charter, the respondents are entitled to the benefit of the lesser maximum punishment in effect at the time the alleged acts were committed, that is, a maximum of 10 years' imprisonment. The fact remains that the intent expressed by Parliament is to toughen the sentences applicable to the offences charged against Mr. Grenier and Mr. Archambault. Section 535 Cr. C. must be interpreted in a manner consistent with that intent.

79The offences with which Mr. Grenier and Mr. Archambault were charged fall within the category of the most serious offences, because if the acts in question were committed today, they would be punishable by a maximum term of imprisonment of 14 years. This is not in dispute. They therefore have the right, under the new s. 535 Cr. C., to request a preliminary inquiry.

V. Conclusion

80For these reasons, we would dismiss the appeal.

Concurring Reasons (Kasirer and Jamal JJ.)

English version of the reasons of Kasirer and Jamal JJ. delivered by

Kasirer J. —

81I have had the advantage of reading the reasons prepared by my colleagues, but, with respect, I do not share their views. In my opinion, given the respondents' particular circumstances, their right to request a preliminary inquiry vested prior to the coming into force of the new s. 535 of the Criminal Code, R.S.C. 1985, c. C‑46 ("Cr. C."), on September 19, 2019. This allowed for their preliminary inquiries to be held at a later date. I would therefore dismiss the Crown's appeal, but, again with respect, for reasons that differ from those of the Court of Appeal.

82In substance, I agree with Karakatsanis J.'s analysis of vested rights with regard to the temporal application of s. 535 Cr. C. In particular, I agree with the importance my colleague attaches to the request made by an accused for a preliminary inquiry. I also agree with her that local practices regarding the administration of justice can legitimately vary from one province or territory to another and that this is not necessarily incompatible with the uniform application of substantive criminal law in Canada in a context similar to that of this appeal. However, in light of the practice followed in Quebec and its effect on the respondents' right to request a preliminary inquiry, I am of the view that the respondents had vested rights in the circumstances. This conclusion should not be seen as a way of circumventing the effect of legislation duly passed by Parliament. Given that Parliament did not enact a transitional provision specifying how the new s. 535 Cr. C. was to apply to an existing situation, it is for the courts to interpret it to determine whether accused persons had vested rights at the time it came into force. There is no justification for excluding the Quebec practice from the analysis.

83The rule governing vested or acquired rights was stated as follows by this Court in R. v. Puskas, , [1998] 1 S.C.R. 1207: "A right can only be said to have been 'acquired' when the right‑holder can actually exercise it" (para. 14). As Lamer C.J. explained, "a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled" (ibid.; see also Dikranian v. Quebec (Attorney General), 2005 SCC 73, [2005] 3 S.C.R. 530, at para. 37; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 52).

84Both as it read at the time of each respondent's first appearance before the Court of Québec and in its amended form, s. 535 Cr. C. grants certain accused persons what the Superior Court judge in Mr. Grenier's case rightly called [translation] "the right to request a preliminary inquiry" (2021 QCCS 1876, at para. 32). Once a preliminary inquiry has been requested, the justice "shall" inquire into the charge (s. 535 Cr. C.).

85I agree with Karakatsanis J. that once an accused requests a preliminary inquiry, "all conditions precedent" to the exercise of the right are then fulfilled within the meaning of Puskas. Accordingly, where a request was made before the amendment to s. 535 Cr. C. came into force on September 19, 2019, but the inquiry was not held before that date, the right to an inquiry at a later date had vested. In my opinion, however, this is not the only situation in which all of the "conditions precedent" are fulfilled, such that the right to request a preliminary inquiry for the existing situation vests. In my respectful view, to conclude otherwise would undermine the judicially endorsed practice that allows an accused to reserve their right to elect the mode of trial at a later date, a practice that determined the outcome for the two respondents in this case.

86In Quebec, by all accounts, accused persons proceed [translation] "as is customary" in that province, that is, by "reserv[ing] their election . . . so that they [can] examine the evidence disclosed" (R. v. Chrétien‑Barrette, 2023 QCCQ 5857, at para. 27). It is also [translation] "customary for judges to agree to requests made by accused persons to reserve their election" as to the mode of trial, a practice recognized both by the courts and in legal scholarship (para. 29; see also Aucoin v. R., 2023 QCCS 3024, at paras. 41 and 43; A. Stylios, J. Casgrain and M.‑É. O'Brien, Procédure pénale (2023), at pp. 704‑5; author Nicolas Bellemare uses the term [translation] "postpone" to refer to the same practice: "Les procédures précédant le procès en matière criminelle", in Collection de droit de l'École du Barreau du Québec 2024‑2025, vol. 12, Droit pénal – Procédure et preuve (2024), 39, at pp. 70‑71). It is therefore not surprising in this case that the Crown and Mr. Archambault both point to this practice in their submissions to the Court, by referring to [translation] "reserv[ing] [the] election as to the mode of trial" (A.F., at para. 8) and [translation] "reservation of [the] election" (R.F. (Archambault), at paras. 68‑71), and do not dispute its existence. Healy J.A., writing for the unanimous panel of the Court of Appeal, made the same observation when noting that "[a]t the first appearance, at least in Quebec, the accused typically reserves the right of election to a future date" and that, in doing so, "the accused has effectively preserved the entitlement to request a preliminary inquiry" (2022 QCCA 1170, 84 C.R. (7th) 174, at paras. 40 and 43).

87This is what occurred in respect of the two respondents. When they first appeared before the Court of Québec, the accused each asked the court to reserve their election as to the mode of trial, and their request was granted (see 2021 QCCS 1966, at paras. 12 and 15; C.Q. reasons (Grenier), reproduced in A.R., vol. I, at pp. 7‑8; A.F., at para. 8). All of this happened before the amendments to s. 535 Cr. C. came into force, that is, before September 19, 2019. The respondents' understanding — which is generally shared by Quebec judges and lawyers — was that reserving the election as to the mode of trial had the effect of preserving the right to make a request for a preliminary inquiry at a later date, so that the right could be exercised in an informed manner (see, e.g., C.A. reasons, at para. 42; R.F. (Archambault), at para. 68). By agreeing to their requests, the Court of Québec was thus assuring them that they could request a preliminary inquiry at a later date.

88This understanding is clearly reflected in the record, including in the following exchange between a Court of Québec judge and counsel for Mr. Archambault:

[translation]

BRIGITTE MARTIN:

The time of the request for a preliminary inquiry. And what I wanted to add is that once the accused reserves their election, because that's what he did, in the case of Mr. Agénor [Archambault], not just Mr. Agénor, but in the majority of cases, what's done at the appearance stage is to appear and reserve the election. And the purpose of reserving the election is to make an informed decision . . .

THE COURT:

Ah, I understand all of that.

BRIGITTE MARTIN:

. . . to examine . . .

THE COURT:

Of course.

BRIGITTE MARTIN:

. . . to examine the evidence. And what I wanted to put to you is that once that election is reserved, the possibility of making an election that will lead to a preliminary inquiry is reserved for them.

So if the election is reserved, well at that point, it follows that . . .

THE COURT:

Well in fact, what you're arguing is a vested right. By reserving the election.

BRIGITTE MARTIN:

It's . . . you're ahead of me. It's a vested right.

THE COURT:

Exactly.

BRIGITTE MARTIN:

And that was Mr. Archambault's position, through what you were able to read in the arguments. But I still wanted to come back to this concept of reserving the right . . . [Emphasis added.]

(A.R., vol. I, at pp. 17‑18)

89To be clear, I am not quoting this exchange as evidence of what actually occurred earlier, when Mr. Archambault reserved his election as to the mode of trial. Moreover, there is no disputing the fact that such exchanges between a judge and counsel are not binding on the court and do not constitute evidence in the strict sense. However, this exchange is an indication, drawn from the record before us, that at the time, the parties, counsel and the judge concerned all understood that the reservation had been approved by the court in keeping with the established practice.

90It is true that the judge did not accept Mr. Archambault's argument, but this was because he was of the view that even an accused with a vested right lost their right to a preliminary inquiry when s. 535 Cr. C. came into force, given that the judge had held that the provision applied with immediate effect. Indeed, while the Court of Québec judge recognized that reserving the right to elect the mode of trial could result in a vested right to request a preliminary inquiry, he adopted an interpretation of s. 535 Cr. C. that denied Mr. Archambault the benefit of such an inquiry. According to the judge, who relied on R. v. Lamoureux, 2019 QCCQ 6616, the right to request a preliminary inquiry is purely procedural, such that the new s. 535 Cr. C. applied with immediate effect, an interpretation that Karakatsanis J. rightly rejects. That being so, the question of whether a vested right exists, in accordance with Puskas and on the basis of Mr. Archambault's decision to reserve his election, remains an open one. Although the question has become factually moot in this case, this does not alter the importance of answering it for the benefit of other individuals who might find themselves in the same situation as the respondents.

91According to this understanding of reserving the election as to the mode of trial, which is an understanding I adopt, the effect of a reservation authorized by the court is to preserve the accused's rights pursuant to the rule stated in Puskas. All of the conditions precedent to the holding of a preliminary inquiry are indeed fulfilled when the election is reserved: the accused receives the court's assurance that they can make a request at a later date and, by the terms of s. 535 Cr. C., that request must be honoured. The accused's legal situation is therefore tangible, concrete and sufficiently constituted at that time (P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at Nos. 619‑20, citing, among others, Dikranian, at paras. 37 et seq.). These criteria serve to distinguish the vested rights of the respondents in this case from what would be mere expectations. Reserving the right to elect the mode of trial is thus different from where the accused simply puts off their election without a judicial undertaking that entails the preservation of their rights. Moreover, the effectiveness of reserving the election as to the mode of trial does not turn on the fact that certain accused persons, having received this assurance from the court, were or were not represented by counsel at the time, which could create an injustice for a class of accused persons who nevertheless face the same potential deprivation of liberty.

92It remains true that, by assuring the accused that a request for a preliminary inquiry can be made at a later date, the fact of reserving the right to elect the mode of trial ensures that all of the conditions precedent are fulfilled within the meaning of Puskas. It may well be that other local practices have the same effect. It is equally possible that the Court of Appeal for Ontario was correct to find in R. v. R.S., 2019 ONCA 906, that the right to a preliminary inquiry cannot vest until the accused has made a request to that effect in that province. However, this does not take away from the fact that, in Quebec, this right vests each time a court agrees to reserve an accused's right to elect their mode of trial, in keeping with the standard practices. I wish to make clear that this must not be seen as a special rule for Quebec, but only as a reflection of the application of Puskas to a legitimate procedure used in part of the country.

93I would add that to conclude otherwise could lead to injustices and undermine public confidence in the administration of justice. The respondents relied on the assurance that they each obtained from the court on the basis of a well‑established local practice. The respondents relied — to their detriment — on the local practice of reserving their rights, with the court's approval. It is true that the respondents will not actually suffer any injustice, since the appeal is moot as far as they are concerned. However, I am mindful that other individuals — the numbers are of course uncertain — could find themselves in the same situation. In my opinion, public confidence in the administration of justice and in the rule of law might well be undermined if accused persons — especially those whose liberty is at stake — cannot rely on the assurances they receive from the very court that administers the proceedings brought against them. The Crown may be right in arguing that the amendment of s. 535 Cr. C. is a change that [translation] "should have been anticipated" and "caught no one by surprise" (A.F., at para. 88), but accused persons in Quebec who believed that their right was reserved will surely be caught by surprise if they later discover that this right has been taken away from them despite the assurances they received. Nonetheless, I would add that my interpretation of s. 535 Cr. C. and of its impact on vested rights is based on the application of Puskas and not solely on the observation that an injustice could result from a contrary interpretation. In other words, the question at the heart of this appeal remains the interpretation of what constitutes a vested right following the amendment to s. 535 Cr. C., a question that was settled in Puskas.

94However, I also hasten to note that, given Parliament's silence regarding the application of s. 535 Cr. C. to existing situations, interpreting the new legislation on the basis of presumptions would face a second difficulty. The fact is that authors warn the courts against interpreting new legislation in a manner that may cause injustice. Pierre‑André Côté has written that [translation] "the courts try to reserve protection from the application of the new legislation for those who would actually be prejudiced by its application, that is, those whose expectations based on the former legislation have had practical consequences, have led them to take specific actions, to compromise themselves, to change their situation" ("Le juge et les droits acquis en droit public canadien" (1989), 30 C. de D. 359, at p. 419).

95Here, the purpose of reducing the number of preliminary inquiries that Parliament seeks to advance should not have a disproportionately unjust impact on accused persons like Mr. Grenier and Mr. Archambault, given the absence of a transitional provision for existing situations. In a context analogous to that of this case, authors Côté and Devinat explain as follows:

[translation] However, denying the existence of vested rights and opting for the immediate application of the new legislation also has its share of disadvantages for individuals or, to state matters otherwise, involves individual costs that may be very high. The life of the law needs a degree of stability in order to develop: legal reform, if not carried out gradually, can entail serious prejudice for individuals. The perception of injustice in relation to affected individuals weighs heavily in the judicial determination of whether it is appropriate for the former legislation to survive.

(No. 614, quoting Ciecierski v. Fenning, 2005 MBCA 52, 258 D.L.R. (4th) 103, at para. 31, per Steel J.A. ("The presumption against interference with vested rights is not as weighty as the presumption against retroactivity and the question of unfairness is a critical component"); see also R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 25.13.)

96In this case, both of the accused reserved their right at the time of their respective first appearance before the Court of Québec, and thus before September 19, 2019, when the new s. 535 Cr. C. came into force. They were therefore governed by the former s. 535 Cr. C., which recognized their right to request a preliminary inquiry. In the circumstances, I am of the view that they could request a preliminary inquiry.

97Before concluding, I would add the following. It is apparent that this practice, which was followed in this case by the two respondents, may not be ideal in light of the time limits imposed by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. As the Crown noted before this Court, [translation] "it is a practice that is certainly a source of problems in that it results in significant delays. If you look at the number of times, for example, that these cases here were postponed pro forma without any decision having been made, without the judge putting the accused to an election, it can be seen here that there was a postponement, a postponement and no decision that was made in each instance" (transcript, at p. 18). Given its impact on court delays, it might be appropriate to rethink the wisdom of the practice of reserving the right to elect the mode of trial in the future.

98For these reasons, I would dismiss the appeal.

Concurring Reasons (Martin J.)

The following are the reasons delivered by

Martin J. —

I. Overview

99Parliament's decision to remain silent about when many provisions in former Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25 ("2019 Amendments"), apply has created considerable legal uncertainty across all levels of court (see R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at paras. 86-87). This is the second time this Court has been asked to provide clarity on the temporal application of amendments introduced by this Act. The first time, in Chouhan, a majority of this Court determined that the Act's changes to the jury selection process were procedural in nature and could therefore apply retrospectively (paras. 103, 109 and 124).

100However, in this case, my colleagues and I agree that the amendments at issue, which restrict preliminary inquiry eligibility only to offences attracting a maximum punishment of at least 14 years, are not purely procedural and instead can affect an accused's substantive legal interests. Accused persons no longer entitled to preliminary inquiries under the new s. 535 of the Criminal Code, R.S.C. 1985, c. C‑46 ("Cr. C."), have lost the opportunity to be discharged at the close of a preliminary inquiry should the evidence prove insufficient to order the accused to stand trial. This loss is significant as a discharge usually puts an early end to criminal liability for those charges. A discharge will also often mean that there will be no trial at all, or that the accused will be released from custody pending trial or relieved from restrictive pre‑trial release conditions (Karakatsanis J.'s reasons, at para. 158).

101In light of Parliament's failure to legislate on the timing of these amendments, the judicial task is to determine when the new s. 535 applies based on the principles and presumptions concerning the temporal application of legislation, as well as the values of fairness, rule of law and reasonable reliance they protect. This task must be approached with the interests of justice top of mind.

102The parties and the courts below proposed different points in time for the application of the new s. 535 of the Criminal Code:

• the date of the alleged offence (argued by the respondents Agénor Archambault and Gilles Grenier, and accepted by the Court of Appeal of Quebec);
• the date of the accused's first appearance (an alternative argument raised by Mr. Archambault and Mr. Grenier, and addressed by the Court of Appeal of Quebec); and
• the date the accused requests a preliminary inquiry (argued by the Crown, and adopted by my colleague Karakatsanis J.).

My colleagues Côté and Rowe JJ. prefer the date on which the charge is laid and Kasirer J. suggests that any vesting must take into account if and when the accused reserves their right to request a preliminary inquiry at a future date.

103To some extent, all of these possibilities represent reasonable alternatives and have their respective benefits and drawbacks. None of these possibilities offers a perfect answer. In my view, however, the date of the offence is the preferable option.

104The date of the offence best protects the accused's ability to have a preliminary inquiry, and in turn, potentially to be discharged, released from pre-trial custody, or relieved from onerous bail conditions. It is a principled choice that is consistent with the time ordinarily used as a reference point for legislative changes made to the availability of ancillary orders, constituent elements of offences, applicable maximum sentences, and legal defences to criminal charges (see R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 1-3; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 45; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at paras. 18-20). It reflects that the accused person's interests at stake are significant and carry great weight in the interpretative exercise. Further, it does not subject these interests to a determination of when, why, or how the Crown decides to prosecute a charge, or the many factors that may influence the timing of an accused's choice as to their mode of trial. It also establishes a bright-line rule that operates fairly and consistently across the country, irrespective of regional differences in procedure.

105Accordingly, I see no basis to interfere with the decision of the Court of Appeal of Quebec holding that the entitlement to the preliminary inquiry attaches to the offence date, and I would dismiss the appeal. Accused persons alleged to have committed an offence that rendered them eligible for a preliminary inquiry before September 19, 2019, the date on which the new s. 535 of the Criminal Code came into force, should retain that eligibility today. I agree with my colleague Karakatsanis J. that going forward, under s. 535, an accused is only eligible for a preliminary inquiry if they personally face a maximum punishment of 14 years or greater.

[Paras. 106-147 contain the full analysis of Martin J., addressing the new s. 535's impact on substantive rights, the proper interpretive approach for legislation affecting substantive rights, the two presumptions of temporal application, and the conclusion that the date of the offence is the governing reference point.]

147I would dismiss the appeal.

Dissenting Reasons (Karakatsanis, Wagner C.J., O'Bonsawin and Moreau JJ.)

The reasons of Wagner C.J. and Karakatsanis, O'Bonsawin and Moreau JJ. were delivered by

Karakatsanis J. —

I. Overview

148Faced with significant delays in criminal proceedings — threatening the right of accused persons to be tried within a reasonable time, and resulting in stays of criminal charges — Parliament sought to improve the efficiency of the justice system by eliminating preliminary inquiries for all but the most serious cases. This appeal raises two interpretative questions about the amendments. First, to which pre-existing criminal proceedings do they apply? Second, what is the scope of cases in which a preliminary inquiry remains available under the new rule?

149In 2019, s. 535 of the Criminal Code, R.S.C. 1985, c. C‑46 ("Cr. C."), was changed to restrict the availability of preliminary inquiries to accused persons charged with offences with a maximum penalty of 14 years or more of imprisonment. Before the amendment, there was no condition related to the maximum penalty for the offences. There is no explicit transitional provision governing the temporal application of this amendment. Both immediately before and after the 2019 amendment, a preliminary inquiry was only available upon request by either the accused or the Crown.

150Each respondent before this Court was accused of one or more historical sexual offences against a child. After the dates of the alleged offences and before charges were laid, the maximum penalty for the impugned conduct was increased from 10 to 14 years' imprisonment. Because the penalty for a criminal offence is presumed to be that in force when the offence was committed — and because of the guarantee under s. 11(i) of the Canadian Charter of Rights and Freedoms to the lesser punishment — they are each liable to a maximum of 10 years' imprisonment.

151The amendment of s. 535 came into effect a few months after the charges were laid and after the respondents first appeared in court. At each of their first appearances the respondents reserved their right to elect their mode of trial to a later date, meaning their election was postponed to a future appearance. Neither respondent requested a preliminary inquiry until months after the new s. 535 came into force. If the new rule applies to them, they must meet the condition that they be charged with an offence with a maximum penalty of 14 years or more of imprisonment.

152The Crown's position is that because the requests were not made before the new s. 535 came into force, the new rule applies. As the respondents were not charged with offences for which they could be personally liable to 14 years or more of imprisonment, the Crown says a preliminary inquiry was not available under that rule. In separate proceedings, the Court of Québec and the Superior Court agreed and concluded that Mr. Grenier and Mr. Archambault had no right to a preliminary inquiry.

153The Court of Appeal allowed the appeals, remitting the files to the Court of Québec for preliminary inquiries. It concluded that the respondents were not subject to the new limitation in s. 535 of the Criminal Code as amended because their entitlement to a preliminary inquiry arose on the commission of the alleged offences. Thus, they were entitled to request a preliminary inquiry under the provision as it read at that time, which did not restrict availability to those charged with offences punishable by 14 or more years' imprisonment. The Court of Appeal declined to consider whether they would have had the right to a preliminary inquiry under s. 535 as it now reads.

154The Crown appeals to this Court. My colleagues would dismiss the appeal. They conclude, for different reasons, that the new rule in s. 535 does not apply to the respondents. My colleague Justice Martin concludes, like the Court of Appeal, that the new rule does not apply because it came into force after the time of the alleged offences. My colleagues Justices Côté and Rowe conclude that the new rule does not apply because it came into force after the respondents had been charged with those offences. Finally, my colleague Justice Kasirer concludes that the new rule does not apply because it came into force after the respondents reserved their right to elect their mode of trial at first appearance.

155I am unable to agree with any of the positions advanced by my colleagues on the issue of temporal application. In my view, the correct interpretation of the new s. 535, firmly grounded in the applicable provisions of the Criminal Code, is that it applies to accused persons where no request for a preliminary inquiry was made prior to its coming into force.

[Paras. 156-304 contain the full analysis of Karakatsanis J., including the factual background, judicial history, the principles governing temporal application of legislation, the substantive threshold, the vesting threshold, the interpretation of s. 535 as to the 14-year requirement, and the application to the respondents.]

303The respondents had no right to preliminary inquiries. As no request had been made before the coming into force of the new s. 535, their proceedings were governed by the new limitation on the availability of preliminary inquiries. These respondents are not charged with an offence for which they are punishable by 14 years or more of imprisonment and do not meet the requirements for eligibility under the new rule. The Court of Appeal erred in remitting the respondents' files for preliminary inquiries.

304I would allow the appeal. As the appeal is moot, I would make no further order.

Appeal dismissed, Wagner C.J. and Karakatsanis, O'Bonsawin and Moreau JJ. dissenting.

Solicitors

Solicitor for the appellant: Director of Criminal and Penal Prosecutions, Longueuil.

Solicitors for the respondent Agénor Archambault: Mélina Le Blanc, Montréal; Hugo T. Marquis, Montréal; Michel Pelletier, Montréal.

Solicitor for the intervener the Attorney General of Canada: Department of Justice Canada, National Litigation Sector, Toronto.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Crown Law Office — Criminal, Toronto.

Solicitors for the interveners Association québécoise des avocats et avocates de la défense et de l'Association des avocats de la défense de Montréal-Laval-Longueuil: Bolduc Paquet, Montréal.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Weisberg Law Criminal Lawyers, Toronto; Fenton Law Barristers, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Shanmuganathan Law, Toronto.