Court File and Parties

COURT FILE NO.: CR-19-4685-MO CR-19-4686-MO CR-19-4687-MO CR-19-4688-MO CR-19-4689-MO

DATE: 2019-09-27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

R.S. K.H. M.S. M.G. N.N. Respondents

Counsel: Matthew Asma and Eric Costaris, for the Applicant/Crown Daniel W. Scott, for the Respondents

HEARD: September 25, 2019 in Windsor

In the Matter of an Application by Her Majesty the Queen for the Extraordinary Remedies of Prohibition and Certiorari

THOMAS, RSJ.:

Reasons for Judgment

The Application

[1] The applicant seeks an order granting prohibition with certiorari in aid, quashing the decision of the Honourable Mr. Justice R. Marion dated September 11, 2019. In addition, an order is sought preventing the Ontario Court of Justice from exercising jurisdiction that it has lost as a result of the amendments made by Bill C-75 to s. 535 of the Criminal Code, which limit the availability of preliminary inquiries.

Background

[2] This application involves five separate prosecutions currently before the Ontario Court of Justice. Each of the accused respondents is charged with indictable offences for which the potential sentence is less than 14 years imprisonment. Each respondent has previously elected trial in the Superior Court of Justice and requested a preliminary inquiry. Preliminary inquiry dates have been scheduled in the Ontario Court of Justice. In none of these cases has the inquiry commenced by the calling of evidence. The conduct of these preliminary inquiries has been suspended by operation of r. 43.03(5) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).

[3] The original application before Marion J. of the Ontario Court of Justice (the Application Judge) and this application for extraordinary remedies were occasioned by the amendments to the sections of the Criminal Code that govern the availability of preliminary inquiries in indictable matters.

[4] These particular amendments, along with others, were enacted by 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, which was previously Bill C-75. The amending legislation received Royal Assent on June 21, 2019. It provides that the amendments to the relevant sections come into force 90 days later on September 19, 2019.

[5] The amending Act lacks transitional provisions that address whether Parliament intended the amendments to operate with immediate effect on cases already before the court. The Act also lacks a preamble that states Parliament’s intentions.

[6] The new legislation limits preliminary inquiries to accused charged with indictable offences punishable by a sentence of 14 years imprisonment or more. The issue before me is whether these amendments capture those offences already before the Court prior to September 19, 2019 where all conditions precedent to the holding of the inquiry have been satisfied (by accused election and request).

[7] For the purposes of these reasons, I have reproduced below the relevant sections as they existed before and after September 19, 2019:

Criminal Code provisions before September 19, 2019

Criminal Code provisions as of September 19, 2019

Inquiry by justice 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.

Inquiry by justice 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.

Criminal Code provisions before September 19, 2019

Criminal Code provisions as of September 19, 2019

Request for preliminary inquiry 536(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.

Request for preliminary inquiry 536(4) If an accused referred to in subsection (2) elects to be tried by a judge without a jury or by a Court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) to have elected to be tried by a Court composed of a judge and jury, or if an accused is charged with an offence listed in section 469 that is punishable by 14 years or more of imprisonment the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of Court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.

[8] While, as mentioned, there are no transitional provisions for this portion of the amending legislation, we have the benefit of the Minister of Justice’s comments upon second reading of Bill C-75. The Minister commented as follows:[^1]

The fourth area of reforms is to increase court efficiencies by limiting the availability of preliminary inquiries. Preliminary inquiries are an optional process used to determine whether there is enough evidence to send an accused to trial. Bill C-75 would limit their availability to accused adults charged with very serious offences punishable by life imprisonment, such as murder and kidnapping.

…For instance, we know in 2015-2016, provincial court cases involving preliminary inquiries took more than four times longer to reach a decision than cases with no preliminary inquiry.

It is important to note that there is no constitutional right to a preliminary inquiry, and one is not necessary for a fair trial so long as the crown satisfies its disclosure requirements. In the Jordan decision, the Supreme Court of Canada asked Parliament to take a fresh look at current processes and reconsider the value of preliminary inquiries in light of the broad disclosure rules that exist today. …

The proposed measures would reduce the number preliminary of inquiries by approximately 87%, ensure they are still available for the more complex and serious offences, help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice, once at a preliminary inquiry and once at trial. …

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

[9] On August 28, 2019, the Crown brought its original applications in these matters before the Application Judge in the Ontario Court of Justice. Those applications sought an order vacating all dates set for preliminary inquiries on or after September 19, 2019 together with an order that, should the accused not re-elect trial in the Provincial Court, the accused be remanded to set a date for trial in the Superior Court of Justice pursuant to s. 536(4.3).

[10] Counsel for the accused filed responding material. The application proceeded by way of written submissions only. The decision that prompted this application was released on September 11, 2019.

[11] The Application Judge found that s. 535 as amended was procedural but, since it affected the jurisdiction of the Ontario Court of Justice, it could not operate retrospectively. (R. v. R.S., 2019 ONCJ 629, at para. 63).

[12] The Application Judge relied on Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., [1971 148 (SCC), [1971] S.C.R. 1038] (Concrete Column Clamps). The relevant passages of the case are set out below:

All the authorities we have been referred to in support of this contention merely tend to show that the principle that statutes do not operate retrospectively is not applicable to rules of procedure. However, it is well established that jurisdiction is not a procedural matter, and no reason has been shown for holding that it becomes a procedural matter when a transfer of power, rather than an increase or a decrease, is involved.

In Boyer v. The King, [1948 51 (SCC), [1949] S.C.R. 89, 7 C.R. 257, 94 C.C.C. 259, [1949] 4 D.L.R. 469.], Rinfret C.J. reviewed the cases on the absence of retrospective operation in legislative provisions dealing with the right of appeal. He quoted with special emphasis (page 98) the following statement of Anglin C.J., speaking for the Court in Singer v. The King [1931 13 (SCC), [1932] S.C.R. 70 at 72, 56 C.C.C. 381, [1932] 1 D.L.R. 279]:

…unless there is something making unmistakeable the intention of the Legislature that a retrospective construction should be put upon the legislation so that it may cover cases arising prior thereto, no clause, conferring a new jurisdiction on an appellate court to entertain an appeal, can be so construed. The matter is one of substance and of right.

… I need only refer to the firmly established principle, in terms of which the case has been presented, that in the absence of an explicit provision to the contrary, retrospective operation must not be given to legislation conferring a new jurisdiction on a court of appeal.

[13] In addition to the Application Judge’s reasoning on jurisdiction, he found that the new procedure could not be adapted to the steps already taken in the matters. (R. v. Ali, [1979 174 (SCC), [1980] 10 C.R. (3d) 136 (S.C.C.) p. 155-156]). Further, he found that Parliament could not have intended the negative effect retrospectivity would have on preliminary hearing matters already scheduled in the Ontario Court of Justice.

[14] At the point in time of these Reasons, there have been four other decisions released by the Ontario Court of Justice on the same issue. The following decisions support the conclusion that these amendments are not retrospective: R. v. Fraser, 2019 ONCJ 652, released September 20, 2019 by Justice S. W. Konyer; R. v. N.F., 2019 ONCJ 656, released September 23, 2019 by Justice S. Magotiaux; R. v. Kozak, 2019 ONCJ 657, released September 24, 2019 by Justice Anthony F. Leitch.

[15] The decision of R. v. A.S., 2019 ONCJ 655, released by Justice P. Downes on September 23, 2019 (A.S.), concludes that the amendments are purely procedural and therefore retrospective in effect.

Position of the Applicant (Crown)

[16] The Crown’s position is simply that the amendments relating to preliminary inquiries are strictly procedural and therefore operate retrospectively. There is no right to a preliminary inquiry and therefore the issue of vesting should never enter the analysis. The intention of Parliament cannot be determined from the evidence available.

[17] The Application Judge’s position that Parliament could not have intended this impact on the scheduling of the Provincial Court is irrelevant and in any event erroneous.

Position of the Respondents

[18] The respondents suggest that they have a vested and substantive right to a preliminary inquiry. The preliminary inquiry provides meaningful opportunities to the defence and affects trial fairness and full answer and defence. Their right to that step in the litigation vested upon their election to proceed in the Superior Court of Justice and upon their request for an inquiry.

[19] The respondents further argue that the extraordinary remedies sought in this application are unavailable. They argue that the Application Judge had the jurisdiction to decide the issue in the manner he did. If he is wrong, it is suggested, the matter should find its way to the Court of Appeal. Effectively, then, the respondents maintain that this is an interlocutory appeal dressed up as prerogative relief.

Prerogative Relief

[20] I will deal briefly with this threshold issue. I have no doubt that the Crown is in the right place seeking the appropriate remedies if they are to achieve their purpose. This issue needs to be litigated quickly and efficiently because there is a great deal at stake. It was the Crown’s submission that there are approximately 400 matters set for preliminary inquiry in the Ontario Court of Justice occupying 630 scheduled sitting days.

[21] I am under no illusion that this decision will end the litigation, but it is important to move the argument forward to an appeal-ready position.

[22] The jurisdictional issue captured by this application for certiorari is not whether the Application Judge could hear the original application to vacate his scheduled dates – that is not disputed – but rather what he decided. It is the Crown’s position that the Application Judge’s decision to continue to adjudicate over preliminary inquiries that no longer qualify for that procedure exceeds his jurisdiction. The order of prohibition is sought to compel the lower court to stop the proceedings until a ruling in the Superior Court is rendered.

[23] I recognize that these remedies should not be routinely available and that the expeditious result sought should be necessitated by the interests of justice (R. v. Arcand (2004), [2004 46648 (ON CA), 73 O.R. (3d) 758 (C.A.) at para. 13]).

Legislative Intent

[24] As previously mentioned, there are no transitional provisions speaking to whether Parliament intended that these amendments act retrospectively or prospectively. In addition, there is no preamble that assists in this regard.

[25] The comments of the Minister of Justice have been provided above. In addition, after the passage of the Bill, the Department of Justice released a “Legislative Background” document dated August 2019 and modified September 6, 2019. It attempts to interpret the amendments. Footnote 68 of that document reads as follows:[^2]

The temporal application of the preliminary inquiry reforms is determined in accordance with the provisions in the Criminal Code, the amending Act, the federal Interpretation Act, R.S.C., 1985, c. I-21, as well as the applicable SCC case law. The changes have immediate effect upon coming into force. However, where a preliminary inquiry was requested prior to September 19, 2019, the applicable law is clear that an entitlement to a preliminary inquiry arises when a request is made to hold the hearing. In introducing these amendments, the intent was not to do away with a preliminary inquiry if it has already been requested or if such a hearing is ongoing when the new amendments come into force.

[26] While the Minister’s comments were before the Application Judge, he did not have the benefit of the footnote from this Legislative Background document.

[27] In para. 16 of R.S., the Application Judge cautions himself on the limited weight to be given to statements from legislators as a means to determine legislative intent. He relies upon Frank v. Canada (Attorney General), [2019 SCC 1, at paras. 133-134].

[28] The respondents do not press here that significance should be placed on the extrinsic evidence of intent set out above.

[29] The Crown points to the comments of Rothstein J. at paras. 98 and 99 of Professional Institute of the Public Service of Canada v. Canada (A.G.) [2012 SCC 71, [2012], 3 S.C.R. 660 at paras. 98-99]:

[98] The appellants’ documents therefore reflect subsequent governments’ interpretations of previous Parliamentary work (United States of America v. Dynar, [1997 359 (SCC), [1997] 2 S.C.R. 462, at para. 45]). However, as Cory and Iacobucci JJ. wrote in the context of subsequent legislative history, “in matters of legal interpretation, it is the judgment of the courts and not the lawmakers that matters. It is for judges to determine what the intention of the enacting Parliament was” (para. 45). Accordingly, it is necessary to be cautious when relying on the many subsequent government documents to which the appellants have referred the Court.

[99] Further, Parliament, which created the Superannuation Accounts, is to be distinguished from the executive branch of government, which administers them. Although it is not impossible that governmental documents could assist in the interpretation of legislation, the words of subsequent government Ministers and bureaucrats offer minimal guidance in identifying Parliament’s intention concerning the Superannuation Accounts.

[30] Professor Sullivan suggests the materials are admissible if recent and reliable but that they must not be given “inappropriate weight” (Sullivan on the Construction of Statutes, 6th ed. (Lexis Nexis, 2014) at 23.53-58).

[31] The Minister of Justice’s comments in Parliament do not assist me on the issue of intent regarding retrospectivity. I am inclined to give little weight to the footnote from a federal employee at the Department of Justice that follows the enactment of the amendments. There is no attribution or supporting evidence for the position reached.

Statutory Interpretation

[32] In the absence of any assistance from the amending legislation itself, it is necessary to approach the task of statutory interpretation using the principles developed at common law and in the governing statute.

[33] In R. v. Thomas Lako and William McDonald, [2019 ONSC 5362], I considered the retrospective application of the amendments regarding jury selection.

[34] In paras. 16-19 of that decision, I set out my view of the applicable principles. These principles obviously apply to the issue of the amendment of s. 535 and, as a result, I am reproducing those paragraphs below:

[16] The relevant sections of the Interpretation Act, R.S.C., 1985, c. I-21, as set out below, provide some assistance:

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,

(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, and

(iii) in a proceeding in relation to matters that have happened before the repeal;

(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;

[17] Justice Cromwell (dissenting but not on this point) considered ss. 43 and 44 of the Interpretation Act in R. v. Dineley, [2012 SCC 58] (Dineley). Dineley considered the retrospective effect of legislative changes eliminating the Carter defence in drinking and driving cases:

[48] The significance of the distinction between substantive and procedural provisions for statutory interpretation is reflected in the Interpretation Act, R.S.C. 1985, c. I-21. On the one hand, proceedings commenced under a now-repealed provision are to continue under the procedures set out in the new provisions. On the other, the repeal of an enactment does not affect any right acquired under it. I will briefly describe the relevant provisions.

[49] The first is s. 44. It provides that where a former enactment is repealed and a new enactment is substituted for it, proceedings taken under the former enactment are to be continued in conformity with the new enactment. It further provides that “the procedure established by the new enactment shall be followed as far as it can be adapted thereto . . . in the enforcement of rights, existing or accruing under the former enactment, and . . . in a proceeding in relation to matters that have happened before the repeal”: s. 44(c) and (d)(ii) and (iii). As Professor Sullivan puts it, “[t]hese provisions call for the immediate application of new procedural law to all actions, including those that were pending when the legislation came into force”: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 698.

[50] The second provision is s. 43. It provides that the repeal of an enactment does not affect any “right, privilege, obligation or liability acquired, accrued, accruing or incurred” under it: s. 43(c). As Professor Sullivan puts it, the repeal does not destroy any right or liability arising under the repealed enactment, i.e. “the repealed law continues to apply to pre-repeal facts for most purposes as if it were still good law” (p. 708).

[51] Professor Sullivan sums up the cumulative effect of these two provisions as follows: “. . . the application of new substantive law is delayed by the survival of repealed law [but] the application of new procedural law is not” (p. 698).

[18] Justice Deschamps, writing for the majority in Dineley, considered at paras. 10 and 11 what she called the “hotly contested issue” of whether amendments apply retrospectively:

[10] There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., [1988 5 (SCC), [1988] 2 S.C.R. 256, at pp. 266-67]; Application under s. 83.28 of the Criminal Code (Re), [2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57]; Wildman v. The Queen, [1984 82 (SCC), [1984] 2 S.C.R. 311, at pp. 331-32]). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331).

[11] Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights.

[19] In the earlier decision of Peel Police v. Ontario (Special Investigations Unit), [2012 ONCA 292 at para. 72], Cronk J.A. added clarity to the common law position regarding procedural legislation:

[72] I begin with the procedural rights exception to the presumption against the retrospectivity of legislation. At common [page556] law, procedural legislation is presumed to apply immediately, to both pending and future facts. As Sullivan, supra, discusses, at p. 696, this "presumption of immediate application" has been characterized, variously, in these terms: (1) there is no vested right in procedure; (2) the effect of a procedural change is deemed beneficial for all; (3) procedural provisions are an exception to the presumption against retrospectivity; and (4) procedural provisions are ordinarily intended to have an immediate effect. Sullivan also notes, at p. 696, the following early formulation of the rule in Wright v. Hale (1860), 6 H. & N. 227, at p. 232 H. & N.:

[W]here the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.

[35] What can be gleaned from the above references is that substantive law concerns itself with “rights, duties and liabilities” (Dineley, para. 61). Procedural law is law concerning “procedure, pleading and proof” (Dineley, para. 61).

[36] There is a rebuttable presumption of presumed retrospectivity if the law is procedural. In paras. 10 and 11 of Dineley, reproduced above, Deschamps J. provides both a caution and an instruction.

[37] Cases where legislation has a retrospective effect must be exceptional. This legislation cannot affect a vested or substantive right, but if it governs only how rights are asserted there is a presumption of retrospective application. (Dineley, para. 10).

[38] I would suggest that it is clear the Supreme Court has directed a functional analysis of the law under scrutiny. The labelling as substantive or procedural must await a determination of what the amendment truly accomplishes.

[39] Dineley confirms that retrospectivity is not desirable if the legislation affects either “vested or substantive rights” (Dineley, para. 18). It follows then that the amendments to s. 535 should not be applied retrospectively if they affect vested rights or substantive rights, even if procedural in nature.

[40] What cannot be lost is the necessity that the amendment is affecting a “right”. That initial threshold is what I identified in para. 11 of Lako and McDonald. It similarly applies here. Any concern about vesting must await the recognition of a right. The cart cannot be put before the horse.

[41] I will return to this observation when I consider the decisions released after R.S.

Is There a Right to a Preliminary Inquiry?

[42] This issue was considered in detail by the Application Judge in paras. 25 and 26 of R.S. I will rely and expand upon the considerations he listed:

(a) A preliminary inquiry is a statutory procedure directed by a statutory court. The Provincial Court has no power if not conferred by statute. The consent of the parties cannot change the jurisdiction of a statutory court.

(b) There is no constitutional right to a preliminary inquiry (R. v. Ertel (1987), [1987 183 (ON CA), 35 C.C.C. (3d) 398 (Ont. C.A.)]).

(c) There is at best a conditional statutory right to a preliminary inquiry subject to a direct indictment (s. 577, Criminal Code). The indictment could be preferred any time before, during, and even after a discharge. That right of the Attorney General is only subject to review for abuse of process.

(d) A preliminary inquiry does not just benefit an accused. Nor does it change the complexion of the case the accused must meet. Justice Downes considered this point in paras. 15 and 16 of A.S.:

[15] It is axiomatic that a preliminary inquiry has the potential for advantages to an accused, from being discharged to setting the evidentiary groundwork for Charter or other relief at trial. It can also be fruitful for the Crown and, not infrequently, can increase an accused’s jeopardy if evidence at the preliminary inquiry warrants committal for trial on other charges. In my view, however, these are not features which transform a procedural mechanism into a substantive right. They are simply the incidental effects of what is, at bottom, one procedural step in the life of a criminal case. Legislation does not affect substantive rights simply because it has the potential to put one party at a disadvantage.

[16] In Dineley, the majority in [sic] held that, “The fact that new legislation has an effect on the content or existence of a defence, as opposed to affecting only the manner in which it is presented, is an indication that substantive rights are affected.” The new provisions do not alter the elements of the offences charged, do not take away a defence and do not affect any constitutional rights. The accused will still be able to elect the court in which they wish to be tried. They will retain the ability to challenge the sufficiency of the Crown’s case, using the same test as at a preliminary inquiry, by bringing a motion for a directed verdict at trial. The most fundamental right, to have guilt or innocence determined at a trial in which the accused is presumed to be innocent is, of course, unaffected.

(e) The preliminary inquiry does not determine guilt or innocence and the preliminary inquiry justice has no authority to grant remedies. (R. v. Hynes, [2001 SCC 82, [2001] 3 S.C.R. 623, at para. 33] (Hynes)).

(f) The statutory purpose is as a screening tool that considers the following question: does the Crown have sufficient evidence to put the accused to trial? (Hynes, paras. 30-31; s. 534 of the Criminal Code). However, the accused maintains the right to challenge the sufficiency of the evidence by the use of a motion for a directed verdict. (A.S., para. 16).

(g) The preliminary inquiry has the limited incidental function of discovery. The comments of Deschamps J. at paras. 22 and 23 of R. v. S.J.L., [2009 SCC 14, [2009] 1 S.C.R. 426], reflect on the diminished importance of the preliminary inquiry in discovering the Crown’s case:

[22] Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciate the Crown’s evidence (Skogman v. The Queen, [1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 105]), such incidental benefits do not give rise to a constitutional right to this proceeding: Re Regina and Arviv (1985), [1985 161 (ON CA), 51 O.R. (2d) 551 (C.A.)], leave to appeal refused, [1985] 1 S.C.R. v; Ertel and R. v. Sterling (1993), [1993 6775 (SK CA), 113 Sask. R. 81 (C.A.)].

[23] Moreover, since R. v. Stinchcombe, [1991 45 (SCC), [1991] 3 S.C.R. 326], R. v. Egger, [1993 98 (SCC), [1993] 2 S.C.R. 451], R. v. O’Connor, [1995 51 (SCC), [1995] 4 S.C.R. 411], R. v. La, [1997 309 (SCC), [1997] 2 S.C.R. 680], R. v. Dixon, [1998 805 (SCC), [1998] 1 S.C.R. 244], and R. v. Taillefer, [2003 SCC 70, [2003] 3 S.C.R. 307], an accused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry. But the Crown’s duty in this respect does not extend to producing a witness for discovery: R. v. Khela, [1995 46 (SCC), [1995] 4 S.C.R. 201, at para. 18]. Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance: Department of Justice of Canada, working document prepared by D. Pomerant and G. Gilmour, A Survey of the Preliminary Inquiry in Canada (April 1993), at pp. ix and 35‑36, and G. A. Martin and J. W. Irving, G. Arthur Martin: Essays on Aspects of Criminal Practice (1997), at p. 78.

[43] Further, the court in R. v. Jordan, [2016 SCC 27, at para. 140] said:

[140] … Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations.

[44] I have concluded that the preliminary inquiry is a statutory procedure. It is not a right. As such, there is little to be gained by reflecting on whether that statutory procedure has vested upon these respondents.

[45] In conclusion, I find that the amendment to s. 535 does not affect any “right, privilege, obligation or liability acquired, accrued, accruing or incurred” (Dineley, para. 50, Interpretation Act, s. 43(c)). The elements of the offence remain the same. The defences are still available. This is not like the amendments faced in Dineley (elimination of a defence), R. v. K.R.J., [2014 BCCA 382, 2014 B.C.C.A. 382] (increasing a sentence or restrictive collateral consequence), or R. v. Puskas, [1998 784 (SCC), [1998] 1 S.C.R. 1207] and Royal Bank of Canada v. Concrete Clamps (1961) Ltd., [1971 148 (SCC), [1971] S.C.R. 1038] (both cases removing rights of appeal).

Fairness

[46] In R.S., the Application Judge considers whether the respondents’ loss of a preliminary inquiry is unfair. He notes, “[i]t is unfair to establish rules, invite people to rely on them, then change them mid-stream especially if the change results in negative consequences.” (citing Sullivan at 25:9). He suggests that to change this procedure mid-stream is patently unfair. In the instance considered here, I disagree. It would be unfair to make a change of substance, a change that affects a right, liability or obligation, or a change that removes a defence or increases a penalty. It is not unfair to remove access to a conditional statutory procedure. There is no vested right in procedure. (Peel Police, para. 72). The jeopardy these respondents are facing must still be tested in a fair trial with the Crown’s burden in place on each of the essential elements.

[47] Despite his conclusions about fairness, at paras. 51 and 52 the Application Judge concludes that the amendment to s. 535 does not affect a vested or substantive right and that it is procedural. I agree with these conclusions. I will now move on to consider his concern about the impact on the jurisdiction of the Provincial Court.

Jurisdiction

[48] The Application Judge, at para. 63, determines that the procedural amendment to s. 535 affects the jurisdiction of the Court and as such cannot be applied retrospectively.

[49] For that position, he relies upon the decision in Concrete Column Clamps. Concrete Column Clamps is a 1971 Supreme Court decision on an application for leave to appeal. The application was determined by a panel of three judges, who denied leave to appeal. Concrete Column Clamps was not a judgment of the full Court made after receiving full oral and written submissions. For this reason, the Pigeon J.’s comments regarding jurisdiction are likely obiter dicta but must still be respected and followed. (Sellars v. The Queen, [1980 166 (SCC), [1980] 1 SCR 527]).

[50] As the quote produced below demonstrates, Pigeon J. relied in part upon the Court’s decisions in Boyer v. The King, [1948 51 (SCC), [1949] S.C.R. 89] and Singer v. The King, [1931 13 (SCC), [1932] S.C.R. 70]. In Boyer, the Court adopted Anglin C.J.C.’s statement in Singer:

… unless there is something making unmistakeable the intention of the Legislature that a retrospective construction should be put upon the legislation so that it may cover cases arising prior thereto, no clause, conferring a new jurisdiction on an appellate court to entertain an appeal, can be so construed. The matter is one of substance and of right.

[51] I suggest that the two sentences quoted above cannot be separated. Chief Justice Anglin was stating that conferring a new jurisdiction on an appellate court was a matter of substance and of right and could not operate to retroactively terminate a previous right of appeal.

[52] It may very well be too broad an interpretation of Boyer and Singer to suggest that this is a pronouncement that any change regarding jurisdiction cannot be retrospective. Having said that, Concrete Column Clamps is cited as the authority for that principle and was applied in all those cases captured by Justice Marion’s footnote 39.[^3]

[53] It should be noted that three of these cases dealt with changes to rights of appeal. In other words, three of these cases deal with the narrow issue decided in Boyer and Singer.

[54] Leaving aside the strength of Concrete Column Clamps as precedent, there is good reason to believe that the evolution of the law on this point has left the obiter dicta in Concrete Column Clamps behind.

[55] In Application under s. 83.28 of the Criminal Code, Re, [2004 SCC 42], the Supreme Court found that the change in jurisdiction to allow for a “judicial investigative hearing” was procedural and had immediate application. This change allowed witnesses to be examined in camera and required that interested parties be excluded.

[56] In R. v. Hafeez (1996), [1996 437 (ON CA), 27 O.R. (3d) 799 (C.A.)], the Court of Appeal dealt with the change of the offence of assault causing bodily harm from an indictable to a hybrid offence. The amendment allowed the Crown to elect summarily and remove the possibility of a jury trial. The Court found that this change should operate retrospectively as “at the time the offence was committed the appellant had no substantive or vested right to have the charge heard and determined according to any particular procedure.” (Hafeez, p. 4).

[57] Despite other decisions to the contrary, I do not believe that the result in Hafeez was affected by the fact that the accused had not elected his mode of trial (Kozak, para. 10), nor do I believe the ratio is limited to the fact the accused was now exposed to a lesser punishment (R. v. Subramaniam, [2019 BCSC 1601, para. 55]). The Court confirmed that there was no vested right to a procedure.

[58] Finally, as mentioned previously, Dineley directs a functional resolution of this issue. To resolve the issue of timing of legislative application by labelling it as a change in “jurisdiction” defies that direction. That result is no different than determining the amendment to be procedural or substantive without looking deeper at its function.

[59] With respect, that is the trap in which the Application Judge found himself. There is no acceptable link between his determination that the amendments to s. 535 are procedural and his reliance upon a change in jurisdiction as requiring prospective application. There is no consideration of the necessary functional analysis.

Ali

[60] The application judge relied on the Supreme Court’s decision in R. v. Ali, [1979 174 (SCC), [1980] 1 S.C.R. 221]. I do not see how Ali assists. In that decision, the Court considered an amendment that required two breath samples for a Certificate of Analysis in “over 80” drinking and driving prosecutions. Previously, only one sample had been necessary. The Court declined to give the change immediate application as it would have had the effect of limiting the Crown’s ability to prosecute the transitional cases. That could not have been the legislative intention. Further, in accordance with s. 36(d) (now 44(d)) of the Interpretation Act, the new procedure could not be adapted.

[61] In the instant case, no determination of legislative intent as to retrospectivity is apparent in the application of the s. 535 amendments. No consideration of adaptation is necessary as the preliminary inquiry procedure is abolished but for the most serious offences. The Crown’s ability to prosecute transitional cases is not affected.

Impact on Provincial Court Scheduling

[62] What is clear from the Minister of Justice’s comments at the time of the passage of Bill C-75 is that the government believed the elimination of the majority of preliminary inquiries would modernize the justice system, speed up justice, protect victims, increase public safety, and enhance public confidence in the administration of justice.

[63] The Application Judge found that the negative effect of retrospective application of the amendments to s. 535 on scheduling in the Ontario Court of Justice could not have been intended by Parliament. He suggests that a preliminary inquiry occupies about one-third of the court time necessary for a trial. He then presumes the matters set for trial in the Ontario Court of Justice will now become trials, working a devastating affect on court scheduling.

[64] With respect, this conclusion ignores the fact that these accused have already elected trial in the Superior Court of Justice. While it may be true that some will now choose to stay in the Provincial Court, it should be presumed that many will not. Retrospective effect will not have an unworkable impact on the Ontario Court of Justice.

Subsequent Decisions – Ontario Court of Justice

[65] I will briefly discuss the decisions that have followed the release of R.S. In Fraser and N.F., the justices disagreed with the Application Judge and found there to be a substantive and vested right to a preliminary inquiry. For the reasons set out above, I disagree.

[66] Paragraph 31 of N.F. exhibits the kind of reasoning with which I earlier expressed concern:

… Although I accept that the tool of a preliminary inquiry is a procedural matter, I cannot find that it has no substantive effect in the circumstances of this case, in light of my conclusions on the vested nature of the right, explained below.

[67] With respect, the conclusion works backwards from “vesting” to “substantive”. If there is no substantive right, vesting is irrelevant.

[68] The decision in Kozak adopts the reasoning in Fraser as to a vested substantive right but also agrees with the Application Judge on the importance of the change in jurisdiction of the Ontario Court of Justice.

[69] As might be apparent from any earlier comments, I agree with Downes J.’s position in A.S. that these procedural revisions must be applied retrospectively.

Conclusion

[70] The amendments to s. 535 came into effect September 19, 2019. These amendments are procedural. These amendments do not affect a vested or substantive right. As of September 19, 2019, the Ontario Court of Justice no longer has jurisdiction to conduct preliminary inquiries unless the offence has a potential penalty of 14 years or more.

[71] The Ruling of The Honourable Mr. Justice R. Marion dated September 11, 2019 is quashed. There is an order prohibiting the Ontario Court of Justice from conducting preliminary inquiries for these respondents.

[72] The respondents should be returned to the Ontario Court of Justice and provided with the election now prescribed by s. 536 (2.1). If the respondent elects to be tried by a Provincial Court judge, the matter should be set for trial consistent with the practices developed in the Ontario Court of Justice. If the respondent elects to be tried in the Superior Court of Justice, the respondent should be remanded to this Court pursuant to s. 536 (4.3) to set a date for trial.

[73] As to the other matters set for preliminary inquiry in the Ontario Court of Justice, a similar approach should be considered for those whose offences no longer qualify for a preliminary inquiry. Those accused should have an opportunity to elect/re-elect pursuant to s. 536 (2.1) and the cases should be moved forward as suggested above.

“Regional Senior Justice B. G. Thomas”

Regional Senior Justice B. G. Thomas

Released: September 27, 2019.

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R.S. K.H. M.S. M.G. N.N.

REASONS FOR JUDGMENT

Thomas, RSJ.

Released: September 27, 2019.

[^1] House of Commons Debates, vol. 148 no. 300 (May 24, 2018) at pp. 19630, time 15:25 (Hon. Jody Wilson-Raybould) https://www.ourcommons.ca/DocumentViewer/en/42-1/house/sitting-300/hansard#T1525

[^2] Department of Justice Canada, Legislative Background: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament) (August 2019, modified September 6, 2019) at p. 24, fn. 68 https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/c75/index.html

[^3] Loos v. The Queen, [1971 125 (SCC), [1971] S.C.R. 165]; Bastien v. Canada (1992), 53 F.T.R. 81 (T.D.); Picard v. Public Service Staff Relations Board, [1977 3036 (FCA), [1978] 2 F.C. 296 (C.A.)]; Garcia v. Minister of Employment and Immigration and Immigration Appeal Board, [1979 4141 (FCA), [1979] 2 F.C. 772 (C.A.)]; Corporation de Mont Tremblant v. Calve, [1979] Que. C.A. 482, Goodyear Employees Union Ltd. v. Keable, [1967] Que. Q.B. 49; Royal Trust Corp. of Canada v. Arthur Andersen Inc. (1994), 96 B.C.L.R. (2d) 135 (B.C.S.C.); Girard v. Compagnie de chemin de fer de la Baie des Ha Ha (1915), 47 Que. S.C. 325; Canadian National Railway Co. v. Lewis, [1930 309 (CA EXC), [1930] Ex. C.R. 145]; Re Skitch, [1931 728 (CA EXC), [1931] Ex. C.R. 12]. See, however: Duke Price Power Co. v. Claveau (1927), 43 Que. K.B. 181.