Her Majesty the Queen v. Kozak et al.

[Indexed as: R. v. Kozak]

Ontario Reports

Ontario Superior Court of Justice

Goodman J.

October 18, 2019

148 O.R. (3d) 396 | 2019 ONSC 5979

Case Summary

Criminal law — Preliminary inquiry — Jurisdiction — Accused in 13 prosecutions requested preliminary inquiry — Recent amendments to Criminal Code prohibited conduct or continuation of preliminary inquiry unless at least one offence was punishable by 14 years of imprisonment — None of the offences qualified, but Ontario Court of Justice held the amendments to be substantive and thus not retrospective — Superior Court of Justice came to the opposite conclusion and quashed the decision — Preliminary inquiry is a statutory procedure providing for no substantive rights — Criminal Code, R.S.C. 1985, c. C-46.

Statutes — Interpretation — Retrospective operation — Accused in 13 prosecutions requested preliminary inquiry — Recent amendments to Criminal Code prohibited conduct or continuation of preliminary inquiry unless at least one offence was punishable by 14 years of imprisonment — None of the offences qualified, but Ontario Court of Justice held the amendments to be substantive and thus not retrospective — Superior Court of Justice came to the opposite conclusion and quashed the decision — Preliminary inquiry is a statutory procedure providing for no substantive rights — Criminal Code, R.S.C. 1985, c. C-46.

The accused in 13 separate prosecutions requested a preliminary inquiry. Parliament had recently amended the Criminal Code to confer jurisdiction on a trial judge to conduct or continue a preliminary inquiry only where at least one of the offences before the judge was punishable by at least 14 years of imprisonment. None of the offences in the 13 prosecutions qualified. A justice of the Ontario Court of Justice held that the amendments were substantive and as such did not apply retrospectively. The Crown sought a writ of prohibition with an extraordinary remedy of certiorari to quash the judge's order.

Held, the application should be allowed.

Although the preliminary inquiry has a limited discovery function, that function is merely incidental to its explicit statutory screening function. The preliminary inquiry is a statutory procedure directed by a statutory court. There is no constitutional right to a preliminary inquiry. It does not determine guilt or innocence and the provincial court judge conducting it has no authority to grant remedies. Accordingly, the preliminary inquiry does not provide for substantive rights. As such, the impugned amendments were purely procedural and thus applied retrospectively. The Ontario Court of Justice had no jurisdiction to conduct a preliminary inquiry in any of the 13 prosecutions. The order under review was quashed.

R. v. S. (R.), [2019] O.J. No. 4872, 2019 ONSC 5497 (S.C.J.), apld

Other case referred to

Alyafi v. Canada (Minister of Citizenship and Immigration), [2014] F.C.J. No. 989, 2014 FC 952, 465 F.T.R. 114, 249 A.C.W.S. (3d) 742; Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, 2004 SCC 42, 240 D.L.R. (4th) 81, 322 N.R. 205, [2005] 2 W.W.R. 605, 199 B.C.A.C. 45, 33 B.C.L.R. (4th) 195, 184 C.C.C. (3d) 449, 21 C.R. (6th) 82, 121 C.R.R. (2d) 1, 61 W.C.B. (2d) 217, JCPQ 2004-85; Peel (Regional Municipality) Police v. Ontario (Director Special Investigations Unit) (2012), 110 O.R. (3d) 536, [2012] O.J. No. 2008, 2012 ONCA 292, 349 D.L.R. (4th) 621, 292 O.A.C. 103, 214 A.C.W.S. (3d) 986; R. v. Arcand (2004), 2004 CanLII 46648 (ON CA), 73 O.R. (3d) 758, [2004] O.J. No. 5017, 193 O.A.C. 16, 192 C.C.C. (3d) 57, 10 C.E.L.R. (3d) 161, 125 C.R.R. (2d) 144, 66 W.C.B. (2d) 684 (C.A.); R. v. Awashish, [2018] 3 S.C.R. 87, [2018] S.C.J. No. 45, 2018 SCC 45, 429 D.L.R. (4th) 692, 367 C.C.C. (3d) 377, 49 C.R. (7th) 250, 420 C.R.R. (2d) 242, 31 M.V.R. (7th) 1, 150 W.C.B. (2d) 159, EYB 2018-303369, 2018EXP-2909; R. v. Bengy, [2015] O.J. No. 2958, 2015 ONCA 397, 21 C.R. (7th) 104, 325 C.C.C. (3d) 22, 123 W.C.B. (2d) 444; R. v. Chouhan (2019), 148 O.R. (3d) 53, [2019] O.J. No. 4797, 2019 ONSC 5512 (S.C.J.); R. v. Deschamplain, [2004] 3 S.C.R. 601, [2004] S.C.J. No. 73, 2004 SCC 76, 252 D.L.R. (4th) 289, 347 N.R. 347, J.E. 2007-233, 211 O.A.C. 323, 196 C.C.C. (3d) 1, 65 W.C.B. (2d) 132, JCPQ 2005-1; R. v. Dineley (2012), 118 O.R. (3d) 799, [2012] 3 S.C.R. 272, [2012] S.C.J. No. 58, 2012 SCC 58, 353 D.L.R. (4th) 236, 436 N.R. 59, J.E. 2012-2080, 297 O.A.C. 50, 290 C.C.C. (3d) 190, 96 C.R. (6th) 359, 268 C.R.R. (2d) 339, 34 M.V.R. (6th) 1, 104 W.C.B. (2d) 439, 2012 CCAN para. 10,062, 2012EXP-3885; R. v. Ertel, 1987 CanLII 183 (ON CA), [1987] O.J. No. 516, 20 O.A.C. 257, 35 C.C.C. (3d) 398, 58 C.R. (3d) 252, 30 C.R.R. 209, 2 W.C.B. (2d) 302 (C.A.); R. v. Fraser, [2019] O.J. No. 4729, 2019 ONCJ 652; R. v. Hafeez (1996), 1996 CanLII 437 (ON CA), 27 O.R. (3d) 799, [1996] O.J. No. 478, 89 O.A.C. 196 (C.A.); R. v. Hynes, [2001] 3 S.C.R. 623, [2001] S.C.J. No. 80, 2001 SCC 82, 206 D.L.R. (4th) 483, 278 N.R. 299, J.E. 2002-10, 208 Nfld. & P.E.I.R. 181, 159 C.C.C. (3d) 359, 47 C.R. (5th) 278, 88 C.R.R. (2d) 222, 51 W.C.B. (2d) 453; R. v. Khela, 1995 CanLII 46 (SCC), [1995] 4 S.C.R. 201, [1995] S.C.J. No. 95, 129 D.L.R. (4th) 289, 188 N.R. 355, 102 C.C.C. (3d) 1, 43 C.R. (4th) 368, 32 C.R.R. (2d) 257, 28 W.C.B. (2d) 528; R. v. Kozak, [2019] O.J. No. 4787, 2019 ONCJ 657; R. v. L. (S.J.), [2009] 1 S.C.R. 426, [2009] S.C.J. No. 14, 2009 SCC 14, 305 D.L.R. (4th) 1, 386 N.R. 1, J.E. 2009-630, 242 C.C.C. (3d) 297, 64 C.R. (6th) 240, 203 C.R.R. (2d) 25, EYB 2009-156451, 2009 CCAN para. 10,028; R. v. Lako, [2019] O.J. No. 4666, 2019 ONSC 5362 (S.C.J.); R. v. MacMillan, [2019] O.J. No. 5038, 2019 ONSC 5616 (S.C.J.); R. v. Puskas, 1998 CanLII 784 (SCC), [1998] 1 S.C.R. 1207, [1998] S.C.J. No. 51, 161 D.L.R. (4th) 65, 227 N.R. 1, J.E. 98-1416, 110 O.A.C. 374, 125 C.C.C. (3d) 433, 16 C.R. (5th) 324, 38 W.C.B. (2d) 426, 1998 CCAN para. 10,024; R. v. S. (A.), [2019] O.J. No. 4786, 2019 ONCJ 655; R. v. Scarlett, [2013] O.J. No. 644, 2013 ONSC 562 (S.C.J.); R. v. Shewsh (2019), 147 O.R. (3d) 755, [2019] O.J. No. 4617, 2019 ONCJ 629; R. v. Spence (1919), 1919 CanLII 582 (ON CA), 45 O.L.R. 391, [1919] O.J. No. 155, 31 C.C.C. 365 (C.A.); R. v. Wildman, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, 12 D.L.R. (4th) 641, 55 N.R. 27, 5 O.A.C. 241, 14 C.C.C. (3d) 321, 13 W.C.B. 19; Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., 1971 CanLII 148 (SCC), [1971] S.C.R. 1038, [1971] S.C.J. No. 80, 19 D.L.R. (3d) 621

Statutes referred to

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

Canadian Charter of Rights and Freedoms

Criminal Code, R.S.C. 1985, c. C-46, Part XVIII, ss. 535, 536, (2.1), (4), (4.3), Part XXI, 675, 676

Interpretation Act, R.S.C. 1985, c. I-21, ss. 43, 44

Authorities referred to

Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014)

APPLICATION for a prohibition and certiorari to quash an order that certain statutory amendments were substantive and did not apply retrospectively.

A. McLean, for Crown.

L. Wilhelm, for respondents.

[1] GOODMAN J.: — This is an application brought by the Crown seeking a writ of prohibition with an extraordinary remedy of certiorari to quash the September 24, 2019 decision of Leitch J. of the Ontario Court of Justice [R. v. Kozak, [2019] O.J. No. 4787, 2019 ONCJ 657] as it pertains to the retrospective availability of preliminary hearings.

[2] In addition, the Crown seeks an order preventing the Ontario Court of Justice from exercising jurisdiction that it has lost as a result of the amendments arising from 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 (the "Act"), formerly referred to as Bill C-75. Amongst other provisions, this Act limits the availability of a preliminary inquiry for a whole host of offences.

[3] A number of prosecutions subsumed by the ruling and direction from the learned jurist in the Ontario Court of Justice have been included in this application. Ms. Wilhelm appears for the principal respondent, Michael Kozak, and is acting as agent for counsel representing J.F., D.H. and K.C., as well as counsel representing B.S. Ms. Reed, on behalf of A.S., M.E., D.G. and M.A. and as agent for counsel for A.D., along with Mr. Chrolavicius, representing S.M., both endorse this application and related submissions being advanced by Ms. Wilhelm. No one appearing for R.M. and N.C.

Background

[4] As mentioned, this application involves 13 separate prosecutions currently before the provincial court. Each of the respondents face various charges. All of the respondents elected to be tried in the Superior Court of Justice and thereby requested a preliminary inquiry.

[5] On September 19, 2019, amendments to ss. 535 and 536 of the Criminal Code, R.S.C. 1985, c. C-46, among others, took effect.

[6] More particularly, on September 19, 2019, ss. 535 and 536 of the Criminal Code conferred jurisdiction on the said justice to conduct or continue a preliminary inquiry only where at least one of the offences before the justice is an offence punishable by 14 years or more of imprisonment.

[7] All of the various respondents' charges before the Ontario Court of Justice are not punishable by a term of imprisonment of 14 years or more.

[8] On September 20, 2019, in the underlying case of R. v. Kozak, supra, Leitch J. held that the amended provisions related to a preliminary inquiry did not apply retrospectively for cases in which the accused had elected to be tried by the Superior Court of Justice with a preliminary hearing. Leitch J. held that s. 535 was a substantive amendment as it removed the right for a preliminary inquiry for a plethora of charges that affected the jurisdiction of the Ontario Court of Justice. In arriving at his decision that the amendments did not apply retrospectively, he considered the merits of the application before him and also applied the principles of judicial comity. The learned jurist determined that recent decisions from his colleagues in the Ontario Court of Justice, including R. v. Shewsh (2019), 147 O.R. (3d) 755, [2019] O.J. No. 4617, 2019 ONCJ 629 and R. v. Fraser, [2019] O.J. No. 4729, 2019 ONCJ 652 were persuasive, and not "plainly wrongly decided".

[9] There appears to be a host of differing opinions and rulings from various courts in Ontario and elsewhere in Canada on the issue of retrospectivity.

Issue

[10] The central issue for this application is whether the legislative amendments that pertain to preliminary inquires apply retrospectively. In other words, whether these amendments capture those offences already before the provincial court prior to September 19, 2019, where all conditions precedent to the holding of the inquiry have been satisfied.

Positions of the Parties

[11] Mr. McLean, on behalf of the applicant Crown, submits that the amendments relating to ss. 535 and 536 of the Criminal Code are strictly procedural. Upon the amendments taking effect on or after September 19, 2019, and since none of the particular respondents' charges before the Ontario Court of Justice are punishable by a term of imprisonment of 14 years or more, they apply immediately to all of the respondents' offences, and therefore operate retrospectively.

[12] The Crown submits that there is no substantive or vested right to a preliminary inquiry. As such, Leitch J. committed a jurisdictional error. He was required to remand the respondents to stand trial at the Superior Court of Justice, pursuant to s. 536(4.3) of the Criminal Code.

[13] The Crown also submits that the issue of retrospectivity has already been decided in its favour by several judges in the Superior Court of Justice. As such, it is entirely appropriate to follow along with the prevailing jurisprudence and the granting of prerogative relief under the principles of judicial comity.

[14] Ms. Wilhelm responds that this application must fail for two principle reasons: (1) The applicant has failed to identify a jurisdictional error on the part of Leitch J. that would allow this court to grant prerogative relief; and (2) Leitch J. did not err in concluding that the amendments were not retrospective.

[15] The respondents submit that they have a vested and/or a substantive right to a preliminary inquiry. The preliminary inquiry provides meaningful opportunities to the defence and affects trial fairness and the right to full answer and defence. The respondents argue that the elimination of preliminary hearings for certain offences is not a "purely procedural" change; It is a transformation that affects their substantive rights along with a change that modifies the provincial courts jurisdiction. As the amendments to the legislation affects the fundamental rights of an accused, it ought not be applied retrospectively, and this application must be dismissed.

[16] The respondents also submit that the amending Act lacks transitional provisions that address whether Parliament intended the amendments to operate with immediate effect on cases already before the court. Ms. Wilhelm suggests that in the absence of clear statutory intent to the contrary, the law presumes this change is prospective in its application. The learned jurist acted within his statutory jurisdiction in coming to the legal conclusion that s. 535, as amended, does not apply retrospectively and the Ontario Court of Justice maintains jurisdiction to conduct preliminary hearings in cases where elections requesting a preliminary inquiry have been made prior to September 19, 2019.

[17] While it is true that Thomas R.S.J. recently granted the Crown's application for prerogative relief in a similar case, the respondents respectfully submit that his judgment was "plainly wrong" and ought not to be followed.

Legal Principles

[18] Prerogative relief is discretionary. The reviewing court should intervene only when an adequate appellate remedy is not available, and where the circumstances necessitate granting immediate review: R. v. Arcand (2004), 2004 CanLII 46648 (ON CA), 73 O.R. (3d) 758, [2004] O.J. No. 5017 (C.A.), at para. 13; R. v. Deschamplain, [2004] 3 S.C.R. 601, [2004] O.J. No. 73, 2004 SCC 76, at paras. 12-19; R. v. Awashish, [2018] 3 S.C.R. 87, [2018] S.C.J. No. 45, 2018 SCC 45, at paras. 10-11, 23.

[19] It is a well-established principle of statutory interpretation that an enactment affecting only procedure, and not substantive rights, applies immediately (retrospectively) to all pending and future cases: Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, 2004 SCC 42, at paras. 56-57 and 62-63.

[20] In R. v. Dineley (2012), 118 O.R. (3d) 799, [2012] 3 S.C.R. 272, [2012] S.C.J. No. 58, 2012 SCC 58, Deschamps J., writing for the majority, stated, at paras. 10 and 11:

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 . . .

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.

[21] In determining whether the interpretive presumption applies, the court's task is not completed merely by labelling an amendment as substantive or procedural. Rather, the court must decide whether the amendment affects substantive rights. If the effect of an amendment is "to alter the legal significance of past facts, it is not purely procedural", and the interpretive presumption will be against, not for, retrospective application: Ruth Sullivan, Sullivan on the Construction of Statutes,6th ed. (LexisNexis, 2014), at 25.116; R. v. Wildman, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, at pp. 331-32 S.C.R.; Dineley, at paras. 11 and 55-66.

[22] In the case of Peel (Police) v. Ontario (Special Investigations Unit) (2012), 110 O.R. (3d) 536, [2012] O.J. No. 2008, 2012 ONCA 292, Cronk J.A. summarized the approach, at para 72:

I begin with the procedural rights exception to the presumption against the retrospectivity of legislation. At common law, procedural legislation is presumed to apply immediately, to both pending and future facts. As [Sullivan on the Construction of Statutes] discusses . . . 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 . . . the following early formulation of the rule in Wright v. Hale (1860), 6 H. & N. 227, at p. 232:

[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.

Judicial comity

[23] As judicial comity was raised by both parties, I refer briefly to some of the principles found in recent jurisprudence. In Alyafi v. Canada (Minister of Citizenship and Immigration), [2014] F.C.J. No. 989, 2014 FC 952, Martineau J. had the occasion to consider the issue, at para. 45:

[T]he principle of judicial comity aims therefore to prevent the creation of conflicting lines of jurisprudence and to encourage certainty in the law. Generally, a judge should follow a decision on the same question of one of his or her colleagues, unless the previous decision differs in the facts, a different question is asked, the decision is clearly wrong or the application of the decision would create an injustice. Judicial comity requires much humility and mutual respect. If the rule of law does not tolerate arbitrariness, judicial comity, its loyal companion, relies on reason and the good judgement of each person. Failing a final judgment from the highest court, respect for the other's opinion can speak volumes. In short, judicial comity is elegance incarnate in the person of the magistrate who respects the value of precedents.

[24] In R. v. Scarlett, [2013] O.J. No. 644, 2013 ONSC 562 (S.C.J.), Strathy J. (as he then was), explained the approach to be considered on the issue of judicial comity, at para. 43:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them; see Re Hansard Spruce Mills Ltd. 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para 31. Reasons to depart from a decision referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that is was plainly wrong.

Analysis

Jurisdiction of the Superior Court to grant prerogative relief

[25] An interesting threshold question raised by Ms. Wilhelm in her factum and followed up in oral submissions, raises a question as to whether this court has the jurisdiction to grant prerogative relief in this case.

[26] There is no issue that Leitch J. had jurisdiction to decide the question at first instance before him.

[27] Ms. Wilhelm submits that the impugned decision under review is really one of an error in law as it pertains to the judge's legal interpretation of a statute, thus, a question of law. Counsel says that the Crown attorney attempts to characterize the legal errors it alleges as errors of jurisdiction. Prerogative relief is not available on the basis of the alleged errors raised in this application. Specifically, the Crown asserts, at para. 59 of its factum, that Leitch J. made a jurisdictional error thus permitting prerogative review. However, the respondents argue that the errors alleged at paras. 60-61 of the Crown's factum are legal errors -- assertions that the learned jurist was wrong in his statutory interpretation of the amendments. The submissions in support of this assertion merely repeat the arguments made in the court below and do not demonstrate the alleged jurisdictional character of the errors.

[28] In support of the respondents' position, Ms. Wilhelm submits that the Supreme Court of Canada recently had occasion to address the issue of the availability of prerogative relief, specifically certiorari in criminal proceedings. In Awashish, the court was tasked with deciding the issue of whether certiorari was available to remedy an error of law on the face of the record or strictly limited to a jurisdictional error.

[29] The Supreme Court considered the arguments that certiorari should be available to remedy an error of law that immediately and finally disposes of a legal right, or alternatively, where an error of law engages an issue of overarching importance to the administration of justice and would not normally crystallize on appeal. Both arguments were rejected, with the court "[affirming that] certiorari in criminal proceedings is available to parties only for a jurisdictional error by a provincial court judge": Awashish, at para. 20.

[30] The Supreme Court went on to assess whether certiorari was available on the basis of the alleged errors before the court both of which had been characterized by the Crown as jurisdictional. At paras. 22-24, the court stated:

The Crown argues that in dealing with the McNeil application, Paradis J.C.Q. also made two jurisdictional errors. First, Paradis J.C.Q. erred by disregarding the decision by Lavoie J. granting the Crown's first certiorari application. Second, the substance of Paradis J.C.Q.'s order exceeded her jurisdiction as a court cannot order the Crown to look into the existence of records until the accused demonstrates that they exist, they are relevant, and that it is possible for the Crown to obtain them.

However, neither of these is a jurisdictional error. In the criminal context, jurisdictional errors occur where the court fails to observe a mandatory provision of a statute or where a court acts in breach of the principles of natural justice: see Skogman. Failure to give effect to res judicata is not a jurisdictional issue, it is a legal error. That said, I would question whether such an error occurred. Nothing in Lavoie J.'s order precluded Paradis J.C.Q. from ordering the Crown to inquire into the existence of the records. Indeed, Lavoie J. did not find that the records were irrelevant; she simply found that Ms. Awashish had not demonstrated their relevance. Further, an error as to whether the accused met his or her burden of proof on a disclosure application is not a jurisdictional error, but merely a legal error.

In the absence of jurisdictional error, the Crown's appeal must fail, as certiorari is unavailable. This leaves Paradis J C.Q.'s order standing. However, this Court's reasons should not be taken as endorsing Paradis J C.Q.'s order insofar as it is based on a legal error, which I discuss below. While not necessary for the disposition of this case, I will clarify the nature of such orders, as guidance for the future.

[31] Further, the Crown relies on the recent decision of R. v. S. (R.), [2019] O.J. No. 4872, 2019 ONSC 5497 (S.C.J.), in support of its position that prerogative relief is available for the case at bar. Ms. Wilhelm suggests that Thomas R.S.J. seemed to base his conclusion on the need for an expeditious resolution of the issue, rather than the actual character of the issue. In this regard, the applications judge made no reference to Awashish or other authorities as to the question of whether the alleged errors are in fact, jurisdictional in nature.

[32] It is true that this particular question does not appear to have been directly considered in S. (R.) or in other Ontario Superior Court rulings following S. (R.).

[33] While Ms. Wilhelm concedes that her threshold jurisdictional question is not her most robust point, I confess that the argument had some novel attraction.

[34] In response, Mr. McLean points out that it is too simplistic to accept the respondents' assertions. No doubt, Leitch J.'s ruling was a legal determination that gave rise to the statutory court asserting jurisdiction that it did not possess. Moreover, if this were truly a question of law, there is neither an interlocutory step that can be considered, nor any avenue or right for a Crown appeal on this discrete issue. The remedy and effect are purely jurisdictional matters.

[35] Mr. McLean adds that the judge in S. (R.) alluded to this question by reference to the case of R. v. Arcand, supra. The Crown also refers to R. v. Spence (1919), 1919 CanLII 582 (ON CA), 45 O.L.R. 391, [1919] O.J. No. 155, 31 C.C.C. 365 (C.A.), at p. 378 C.C.C.

[36] With very extraordinary or rare exception, it is settled law that there are no interlocutory appeals in criminal proceedings. If I accept the respondents' position that this matter falls squarely as a question of law, then it can only be reviewed in the context of an appeal after trial, and not by prerogative relief. On this point, it appears that Part XXI of the Criminal Code does not provide for appellate review.

[37] Indeed, the question arising in this case would -- (absent other grounds or an appeal under s. 675) -- in accordance with limitations found in s. 676 of the Criminal Code, disentitle the Crown to appellate relief.

[38] I agree with Mr. McLean's submissions. While Leitch J. ruled on a question pertaining to the interpretation of amendments to a statute, in effect, I find that it was a legal determination that applied statutory interpretation principles to address the court's own jurisdiction.

[39] Moreover, Thomas R.S.J. refers, albeit indirectly, to this threshold question, at paras. 22 and 23 of his reasons in S. (R.). I am equally satisfied that the Superior Court is properly positioned to consider this matter, as it is appropriately before this Court as a matter of a jurisdictional question.

The approach to retrospectivity

[40] The discussion of retrospectivity of the impugned legislative amendments has been addressed and decided by several jurists in the Ontario Court of Justice. Principally, the preponderance of these rulings has followed much along the same approach and conclusions offered by Leitch J. in the case before me.

[41] With the advent of these very recent legislative amendments, I am aware that several s. 96 judges in other provinces have also considered and ruled on this issue. The effect of which has rendered divergent results.

[42] The interpretive presumption in favour of retrospective application of purely procedural legislation finds expression in the Interpretation Act, R.S.C. 1985, c. I-21, by virtue of ss. 43 and 44. Section 43 of the Interpretation Act preserves substantive rights that were accrued under prior legislation. Section 44 of the Act provides immediate effect to procedural changes: see also R. v. Puskas, 1998 CanLII 784 (SCC), [1998] 1 S.C.R. 1207, [1998] S.C.J. No. 51.

[43] Earlier in these reasons, I had referenced some of the leading authorities on point. As mentioned, in S. (R.), Thomas R.S.J. had occasion to address this very issue. He stated, at para. 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."

[44] In S. (R.), it was correctly stated that the Supreme Court has directed a functional analysis of the law. In following Dineley, Thomas R.S.J. referred to the rebuttable presumption of presumed retrospectivity where the law is procedural: see R. v. Bengy, [2015] O.J. No. 2958, 2015 ONCA 397, at paras. 59-60.

Effect of the legislation: Substantive, procedural or a vested right?

[45] While a functional approach is the framework to be considered, the fundamental question raised by both parties is whether the impugned legislation provides for or affects a substantive or vested right, or is it purely procedural?

[46] There is no doubt that Dineley directs courts not to engage in a superficial labelling process in determining the character of legislation. I accept that Dineley suggests that the labelling of legislation as substantive or procedural must await a determination of what the amendment truly accomplishes. The case confirms that retrospectivity is not desirable if the legislation affects either "vested or substantive rights": at 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.

[47] In addressing this issue, both counsel reviewed the prevailing jurisprudence on this point as considered by various jurists.

[48] The Crown argues that Leitch J. was wrong to rely on the reasoning of Konyer J. in Fraser. That decision held that preliminary hearings are not "purely procedural" in nature as they affect substantive statutory rights, rights which vest at the time of election.

[49] The respondents say that there is no error committed by Leitch J. They argue that the existence of limitations does not negate rights themselves. Nor does the existence of additional rights protecting similar interests. In Fraser, Konyer J. observed that the existence of an application for non-suit at the trial stage does not change the substantive character of the statutory right described above. As he remarks: "If accused persons have the right to a directed verdict where the prosecution case cannot support a conviction, it follows that the screening function served by preliminary inquiries confers a similar right": at para. 21. It is also worth noting that there is a distinction between the ability to bring a motion for non-suit in the course of a public trial and the right to be discharged at a preliminary hearing and thus avoid stich a trial.

[50] For reasons that I will expand upon momentarily, I agree with the Crown that the discussion in Fraser regarding substantive rights and the vesting of rights based on an accused having undergone a prior election as to the mode of trial is incorrect.

[51] The Crown also asserts that Leitch J.'s consideration and analysis in applying Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd., 1971 CanLII 148 (SCC), [1971] S.C.R. 1038, [1971] S.C.J. No. 80 ("Concrete Clamps") was in error, as the case is no longer good law and that Leitch J. was wrong to apply it. Mr. McLean asserts that the case has been modified by the holding in Dineley that the exercise of determining whether a provision is procedural, or substantive is one of substance and not form.

[52] I acknowledge that Concrete Clamps has not been explicitly overruled by the Supreme Court. Nor has the Supreme Court revisited the decision in Dineley or in any other subsequent case.

[53] However, with respect, I am persuaded that Concrete Clamps may not represent the current state of the law. It may be that the court's statement is obiter; given that the ruling was determined by three judges of the Supreme Court on a leave to appeal endorsement.

[54] Nevertheless, despite Ms. Wilhelm's very able arguments, in my opinion, the case has been overtaken by reference to recent jurisprudence. Specifically, I adopt the analysis on this very issue found in S. (R.), at paras. 50-57. The learned jurist accurately disposes of the approach in Concrete Clamps with the guidance of recent authorities in both Application under s. 83.28 of the Criminal Code (Re) and R. v. Hafeez (1996), 1996 CanLII 437 (ON CA), 27 O.R. (3d) 799, [1996] O.J. No. 478 (C.A.). In the latter case, the Court of Appeal for Ontario states: ". . . 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".

[55] In S. (R.), the court referenced jurisprudence to the effect that the new provisions do not alter the elements of the offence(s) as charged; they do not take away a defence and do not affect any constitutional rights. The accused will retain the ability to challenge the sufficiency of the Crown's case. 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.

[56] I return again to S. (R.). In particular, para. 57 is instructive.

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.

[57] As mentioned, both the majority and the dissenting judges in Dineley agree that the key task lies not in labelling the provisions procedural or substantive. That is, the approach is not to ask merely whether the amendment touches a matter of jurisdiction, but rather, whether the amendment affects substantive rights. I accept Mr. McLean's submissions that there can be no vested rights accruing where none are held to exist due to procedural changes in legislation; even in a situation where there was a prior election by an accused as to the mode of trial.

[58] Another important question arises as to whether the respondents' loss of a preliminary inquiry by virtue of the recent legislative amendments is unfair. I agree with the comments in S. (R.), at paras. 46 and 47. In para. 46, Thomas R.S.J. states:

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.

[59] In S. (R.), the court also considered whether there was a fundamental (or substantive) right to a preliminary inquiry. Examples where amendments were held to affect substantive rights, and therefore not coming within the presumption of retrospective application for procedural enactments, include but are not limited to altering the existence or content of a previously available substantive defence. As examples, changes affecting constitutional rights, even where justified under s. 1; and increasing the potential sentence or restrictive collateral consequences of an offence.

[60] The respondents argue that the substantive character of the right finds further support by virtue of the various other ways in which preliminary hearings protect or impact other crucial substantive rights, such as the right to make full answer and defence. Preliminary hearings provide the opportunity to test the Crown's case, gather evidence that might otherwise not be available prior to trial, and lay the necessary evidentiary foundations for pre-trial applications, Canadian Charter of Rights and Freedoms issues or defences.

[61] Moreover, the respondents say that these collateral effects on substantive rights may be increasingly important in the face of other recent amendments to the Criminal Code and developments in the law of sexual assault, that have increased the evidentiary hoops accused parties must now navigate.

[62] Indeed, there has been much criticism levelled by those within and without the legal realm as to the benefit or disutility of the preliminary inquiry in the matrix of the criminal justice system in Canada. Many legal scholars, jurists, politicians and lay persons express a myriad of valid, albeit disparate concerns.

[63] The Crown recognizes that in practice, a preliminary inquiry also has a limited discovery function. In fact, Mr. McLean did not dispute some of the benefits of the preliminary inquiry as detailed by the respondents. He noted, however, that the Crown has no obligation to call the entirety of its case at a preliminary inquiry.

[64] An accused has a fundamental right under the Charter to the disclosure of all relevant information, that is distinct from the right to a preliminary inquiry. It appears that there is no constitutional duty on the Crown to produce a witness for discovery: R. v. Khela, 1995 CanLII 46 (SCC), [1995] 4 S.C.R. 201, [1995] S.C.J. No. 95, at para. 18.

[65] However, irrespective of the Crown's constitutional obligations of disclosure, I tend to agree with the respondents that the preliminary inquiry has the limited, albeit important function in the overall administration of justice to test the evidence; even if committal is not at issue. Quite often, a case is resolved or the issues for trial narrowed after the preliminary inquiry based on the strength of the Crown's case or other legal, Charter or evidentiary issues that may arise.

[66] I have little doubt that the preliminary inquiry serves as an important function in the resolution of cases or the effective management of issues for trial.

[67] However, it may matter little what opinion this court or the litigants hold in respect of the benefits of the preliminary inquiry. It is trite law that Parliament may enact changes to any statute, if such legislative amendments can surpass constitutional or Charter scrutiny. By enacting Bill C-75, it was Parliament's will to make changes to Part XVIII of the Criminal Code, as is the legislator's right.

[68] In my opinion, of even greater significance to this entire question is that the Supreme Court of Canada has already made it crystal clear that the discovery function (of the preliminary inquiry) is merely incidental to the screening function: R. v. Hynes, [2001] 3 S.C.R. 623, [2001] S.C.J. No. 80, 2001 SCC 82, at paras. 31-33; R. v. L. (S.J.), [2009] 1 S.C.R. 426, [2009] S.C.J. No. 14, 2009 SCC 14, at paras. 22-23. As such, whatever value, benefit or effect on other rights the preliminary inquiry may provide, it must be considered only in the context of its explicit statutory function.

[69] Perhaps I cannot express it any better than Downes J. in his ruling in the case of R. v. S. (A.), [2019] O.J. No. 4786, 2019 ONCJ 655, at paras. 15-16, (which is persuasive, and also referred to with approval in S. (R.), at para. 42):

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.

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.

[70] A preliminary inquiry is a statutory procedure directed by a statutory court. The provincial court has no power if not conferred by statute. There is no constitutional right to a preliminary inquiry: R. v. Ertel, 1987 CanLII 183 (ON CA), [1987] O.J. No. 516, 35 C.C.C. (3d) 398 (C.A.). The preliminary inquiry does not determine guilt or innocence and the provincial court judge has no authority to grant remedies: Hynes, at para. 33.

[71] These and other considerations support the applicant's position that the preliminary inquiry does not provide for substantive rights.

[72] Finally, at para. 6 of his ruling, Leitch J. cited a legislative background document, in which the Department of Justice describes the background of the legislation and interprets the amending Act. In a footnote, the Department of Justice advocates against immediate (retrospective) application of the amendments to cases where the accused requested a preliminary inquiry before September 19, 2019. I observe that the Department of Justice provides no basis for its claim to know Parliament's intent. As such, the backgrounder must be treated cautiously in any assessment of the temporal application of Bill C-75.

[73] In summary, I adopt Thomas R.S.J.'s analysis at paras. 44 and 45 of S. (R.), where, inter alia, he found that the amendment to s. 535 does not affect any "right, privilege, obligation or liability acquired, accrued, accruing or incurred". In effect, he held that the preliminary inquiry is a statutory procedure and not a right. As such he found the amendment to be purely procedural in nature and therefore it applied retrospectively.

[74] In R. v. MacMillan, [2019] O.J. No. 5038, 2019 ONSC 5616 (S.C.J.), Dambrot J. agreed with the decision rendered in Lako. At para. 9 of his reasons, he stated:

The Ontario judges say that the legislation is retrospective because it is procedural and does not affect the fair trial rights of the accused, particularly their right to be judged by an independent and impartial tribunal. The accused, and the New Brunswick and British Columbia judges, do not claim that the amendments affect the right of an accused to a fair and impartial jury. Rather, they instead say that the amendments affect the procedures that protected that right by altering the "balance" in the procedural provisions. The Ontario judges say that that is the wrong test. I agree with them. The applicant's approach would make most procedural amendments to the Criminal Code retrospective. But more importantly, I cannot possibly say that the Ontario judges are plainly wrong.

[75] In R. v. Chouhan (2019), 148 O.R. (3d) 53, [2019] O.J. No. 4797, 2019 ONSC 5512 (S.C.J.), McMahon J. also addressed the issue of retrospectivity, albeit amongst other constitutional issues raised before him. On the particular point of retrospective application as it pertains to legislative amendments arising from Bill C-75, his ruling is consistent with that rendered by Thomas R.S.J. in S (R.),and he adopts the analysis in R. v. Lako,[2019] O.J. No. 4666, 2019 ONSC 5362 (S.C.J.).

[76] While I am aware of the divergent jurisprudence on this issue from outside of this province, overall, I am not persuaded to depart from the prevailing rulings rendered by my learned judicial colleagues in Ontario.

[77] Of course, my decision and all of these related rulings will not end the litigation. I am advised that this issue is going before the Court of Appeal for Ontario, whose decision and direction in due course will be determinative.

[78] However, in the interim, there are many dozens of cases set for preliminary hearings in the provincial court in Hamilton and in the Central South Region, potentially occupying innumerable scheduled sitting days. Directions must be provided to the Ontario Court of Justice and to the litigants in order that these cases move along in the system.

Conclusion

[79] Leitch J. concluded that the preliminary inquiry affects or provides for a substantive right. With respect, I must disagree. A preliminary inquiry is purely procedural in nature.

[80] In addressing whether the recently-enacted legislation regarding the preliminary inquiry is retrospective, the reasons in S. (R.), and endorsed by several judicial colleagues in the Ontario Superior Court are persuasive. I do not find any juridical reason to depart from the decisions rendered in those cases.

[81] Accepting that the amendments are purely procedural, s. 44 of the Interpretation Act governs. The amended version of s. 535 applies to all matters before the court on or after September 19, 2019, even if the accused has previously made a request for a preliminary inquiry under s. 536(4) of the Code.

[82] As a result, as of September 19, 2019, the Ontario Court of Justice no longer has jurisdiction to conduct a preliminary inquiry unless one or more offences has a potential penalty of 14 years' imprisonment or more.

[83] Therefore, the Crown's application for perogatory relief is granted. Leitch J.'s order of September 24, 2019 is hereby quashed.

[84] There is an order prohibiting the Ontario Court of Justice from conducting preliminary inquires for these 13 respondents.

[85] I am advised that the Hamilton Crown attorney will consent to a re-election by any of the respondents. All of the respondents are to re-attend in the Ontario Court of Justice and be provided with an opportunity to make an election as prescribed now by s. 536(2.1) of the Criminal Code.

[86] If a respondent elects to be tried by a provincial court judge, the matter should be set for trial in the Ontario Court of Justice consistent with the practices developed in that court. If there is an election to be tried in this court, the respondent's matter should be adjourned accordingly to the Superior Court to set a date for trial. In either situation, all of these cases should be moving forward in the system.

[87] I wish to express my gratitude to both Mr. McLean and Ms. Wilhelm for their eloquent and focussed submissions along with their informative written materials filed for this application.

Application allowed.