REASONS FOR RULING (APPLICATION FOR WRITS OF PROHIBITION WITH CERTIORARI IN AID AND MANDAMUS)

COROZA J.

A. OVERVIEW

[1] On September 19, 2019, s. 535 of the Criminal Code of Canada, R.S.C., 1985, c. C-46, was amended by 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). The amendments eliminated the availability of a preliminary inquiry on any charge where the accused faces a maximum punishment of less than 14 years imprisonment.

[2] Cortez Downey, the respondent, is in custody. He is charged with several firearm offences.

[3] On June 5, 2019, the respondent elected to be tried by judge and jury. A request for a preliminary hearing was granted and scheduled for three days: September 18, September 19, and September 20, 2019. The respondent intends to argue that he should not be committed for trial.

[4] At the beginning of the preliminary hearing on September 18, 2019, the Crown withdrew one of the firearm offences (discharge of a firearm with intent under s. 244 of the Criminal Code) which carried a maximum punishment of 14 years imprisonment. The Crown’s intention to withdraw this count was communicated to counsel for the respondent in advance of September 18, 2019. By withdrawing the s. 244 count, the respondent only faces charges where the maximum punishment is less than 14 years imprisonment.

[5] The preliminary hearing commenced on September 18, 2019. The Crown called witnesses and they were cross-examined by defence counsel. The hearing was then adjourned to September 19, 2019. The preliminary hearing is not complete.

[6] On September 19, 2019, the Crown argued before the preliminary hearing judge (Boivin J.) that he no longer had jurisdiction to continue the preliminary inquiry because of the Bill C-75 amendments to the Criminal Code. Boivin J. disagreed and ruled that he had jurisdiction to continue the preliminary inquiry. He concluded that Parliament could not have intended that a preliminary inquiry would commence with a schedule that went past September 19, 2019, only to be aborted mid-stream (see R. v. Downey, 2019 ONCJ 669). Boivin J. noted, at p. 4:

The cost, delays, and wasted resources resulting from a mid-stream halt cannot have been intended. This is an inherently contradictory stance that would have to be entertained. It is difficult to imagine Parliament could uphold, without reason or explanation, such a stance.

In the case at bar, we would have to find that Parliament approved the commencement of proceeding knowing many would become a nullity while passing legislation to improve efficiency in the criminal court justice system, and to reduce delay.

[7] The Crown argues that Boivin J. committed a jurisdictional error. It seeks an order quashing the decision to continue the preliminary inquiry. In addition, the Crown seeks an order of prohibition against Boivin J. from continuing the preliminary inquiry, and an order of mandamus requiring Boivin J. to order the respondent to stand trial in the Superior Court of Justice.

[8] For the following reasons, the Crown applications are dismissed.

B. THE AMENDMENT

[9] As of September 19, 2019, s. 535 of the Criminal Code has been amended to read as follows:

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. [Emphasis added.]

[10] The underlined words are those added by the new amendment. The amendment is one of many to the Criminal Code as a result of Bill C-75.

[11] The amending Act lacks a transitional provision speaking to whether Parliament intended the amended version of s. 535 to operate with immediate effect on preliminary hearings already before the provincial courts and in progress.

C. THE DEBATE - RETROSPECTIVE vs. PROSPECTIVE APPLICATION

[12] The absence of any transitional provision in the amending legislation has caused uncertainty with respect to transitional cases in the Ontario Court of Justice. Indeed, there have been several reported decisions from that court on the issue of whether the amended s. 535 applies immediately to preliminary hearings that were scheduled before the amendment came into force (see Appendix A).

[13] There are at least two decisions of the Superior Court of Justice that hold that the amendments to the preliminary hearing provisions apply immediately to cases that were already before the court and to those initiated afterwards. I do not propose summarizing these cases. It is fair to say that the judgments have dealt with the issue exhaustively and there are well reasoned arguments on both sides of the debate.

[14] One of the decisions relied on by Boivin J. in his ruling is the decision of Marion J. in R. v. R.S., 2019 ONCJ 629. Marion J. found that s. 535, as amended, was a procedural provision, but since it affected the jurisdiction of the Ontario Court of Justice, it could not operate retrospectively: R.S., at para. 81.

[15] The Crown sought certiorari in the R.S. case. On September 27, 2019, Thomas R.S.J. granted the Crown's request for certiorari and, in so doing, found that the provisions of Bill C-75 restricting preliminary inquiries are procedural and apply retrospectively (see R. v. R.S., 2019 ONSC 5497, at paras. 69-70). I note that after the hearing of this application, Goodman J. released a decision that reaches the same conclusion as Thomas R.S.J. (see R. v. Kozak, 2019 ONSC 5979). The parties did not have the benefit of Goodman J.’s decision. I have reviewed his careful analysis whereby Goodman J. agrees with the view that the preliminary hearing does not provide for substantive rights. Goodman J. has held that the amendment is purely procedural and is to be applied retrospectively.

[16] According to Thomas R.S.J., the amendments to s. 535 do not affect a substantive right: R.S., at para. 70. He held that as of September 19, 2019, the Ontario Court of Justice no longer has jurisdiction to conduct preliminary inquiries, unless it is for an offence that has a potential penalty of 14 years or more: R.S., at para. 70. He concluded that the amendment to s. 535 does not affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred: R.S., at para. 45. In his view, the abolition of the preliminary hearing did not affect the elements of the offence that an accused was charged with, nor did it affect any defences that were available: R.S., at para. 45. He therefore quashed the order of Marion J. and granted an order prohibiting the Ontario Court of Justice from conducting preliminary inquiries for the respondents in that case: R.S., at para. 71.

D. POSITION OF THE PARTIES

1. The Crown’s Position

[17] The Crown argues that I should reach the same result as Thomas R.S.J. in R.S. Since s. 535 as amended is a procedural provision, the principles of statutory interpretation and the Interpretation Act, R.S.C., 1985, c. I-21 dictate that the amendment to s. 535 operates with immediate effect. Therefore, as of September 19, 2019, Boivin J. was required to remand the respondent to the Superior Court of Justice to stand trial as he had no jurisdiction to continue the preliminary inquiry on any charge where the maximum sentence is less than 14 years imprisonment. By ruling that he could continue with the hearing that he started on September 18, 2019, Boivin J. exceeded his jurisdiction.

[18] The request made by the Crown is that this court should prevent further hearings in excess of the Ontario Court of Justice's jurisdiction and that this court should require Boivin J. to remand the respondent, who elected to be tried by a court composed of a judge and jury, to stand trial at the Superior Court of Justice.

2. The Respondent's Position

[19] The respondent submits that jurisdiction has vested in this matter. The proceeding has validly commenced and Boivin J. maintains jurisdiction over this matter until he either orders the respondent to stand trial or discharges him in accordance with s. 548 of the Criminal Code.

[20] The respondent argues that jurisdiction over this matter cannot be removed because of the combined effect of ss. 43 and 44 of the Interpretation Act and the presumption against retrospectivity on vested rights. The respondent requests that I dismiss the applications and direct that the preliminary inquiry continue.

E. ANALYSIS

1. Prerogative Remedies

[21] Certiorari, prohibition and mandamus are all concerned with the erroneous exercise or wrongful refusal to exercise jurisdiction by a statutory court or tribunal (see Brian J. Gover & Victor V. Ramraj, The Criminal Lawyers’ Guide to Extraordinary Remedies (Aurora, Ontario: Canada Law Book, 2000) at p. 3).

[22] The parties do not dispute that prohibition with certiorari in aid and mandamus are available remedies to the Crown in order to review Boivin J.’s ruling. At para. 20 of R.S., Thomas R.S.J. recognizes that prerogative remedies should not be routinely available, and notes that the issue is not whether the application judge should have heard the original application, but whether the decision not to vacate the scheduled dates for the preliminary hearing was proper. Thomas R.S.J. concluded that the Crown was in the right place to adjudicate the jurisdictional issue presented: R.S., at para. 20.

[23] In this regard, I agree with Thomas R.S.J. Similar to R.S., the Crown is in the right place; an application for prohibition with certiorari in aid and mandamus are the appropriate means for undertaking a review of this nature.

2. Principles of Statutory Interpretation to Ongoing Situations

[24] The issue that is raised in this application is the temporal application of legislation to an ongoing situation.

[25] It is a principle of statutory interpretation that a statute has immediate effect when it applies to a legal situation that is ongoing at the time of the statute’s commencement (see Pierre-Andre Côté, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011) at p.161).

[26] Professor Ruth Sullivan writes that the temporal application of legislation is composed of a number of presumptions that hinge on some complex and not altogether clear concepts, notably, “retroactivity”, “retrospectivity” and vested rights. The main presumptions are the following:

[27] First, it is strongly presumed that the legislature does not intend laws it enacts to apply retroactively.

[28] Second, it is presumed that the legislature does not intend laws it enacts to apply retrospectively.

[29] Third, it is presumed that the legislature does not intend laws it enacts to interfere with vested rights.

[30] Fourth, the presumption against retrospective application does not apply to laws that are purely procedural.

[31] Fifth, there is no presumption against immediate application of legislation. However, there is a presumption against interfering with vested rights that must be considered (see Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at p. 342).

[32] If legislation deals with the exercise of a right rather than with its substance, then it is purely procedural. No one can acquire a vested right in rules of pure procedure (Côté, at p. 187). Thomas R.S.J. has summarized these principles thoroughly in R.S. and in R. v. Lako and McDonald, 2019 ONSC 5362.

[33] In R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, the Supreme Court of Canada listed several rules of interpretation that are relevant to the temporal application of legislation to ongoing situations. For ease of reference, I will set out several significant principles that emerge from that decision.

[34] First, legislation with retrospective effect must be exceptional. Legislation affecting substantive rights is presumed to have prospective effect unless there is clear legislative intent that the law is to apply retrospectively: Dineley, at para. 10.

[35] Second, where a provision affects either vested or substantive rights, retrospectivity is undesirable: Dineley, at para. 10.

[36] Third, legislation that is purely procedural governs the way rights are asserted and will apply to ongoing situations and future cases: Dineley, at para. 10.

[37] Fourth, where procedural provisions affect substantive rights in their application, they are not purely procedural and therefore do not apply retrospectively: Dineley, at para. 11.

[38] Fifth, affecting the existence or content of a defence means affecting a substantive right: Dineley, at para. 16.

3. The Presumption Against Retrospectivity

[39] In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, Côté J. described the underlying policy behind the presumption against retrospectivity. As I read her decision, at paras. 43-45, there are a number of policy considerations behind the presumption against retrospective application:

• The purpose of this presumption is to protect acquired rights and to prevent a change in the law from "look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction": para. 43;

• The presumption against retrospectivity engages the rule of law. It requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. It promotes a “stable, predictable and ordered society in which to conduct their affairs": para. 44; and

• The presumption against retrospectivity also bespeaks fairness: para. 45. Professor Ruth Sullivan notes that fairness overlaps with the rule of law and it is unfair to change a law after people have relied on it planning their affairs. Those who rely on law to their detriment are justifiably aggrieved (see Sullivan, Statutory Interpretation, at p. 350).

4. Section 43 and 44 of the Interpretation Act

[40] The respondent relies on the combined effect of ss. 43 and 44 of the Interpretation Act. He argues that a proper reading of the provisions supports his argument that Boivin J. has not lost jurisdiction to complete the preliminary hearing. Thomas R.S.J. considered these sections at para. 34 of R.S. As he noted, Cromwell J. in his dissenting reasons in Dineley also considered these provisions.

[41] The respondent argues that proceedings started under provisions that have been repealed will continue under the procedures set out in the new enactment (Interpretation Act, at s. 44). However, any right, obligation or liability that was acquired under the repealed provisions are not affected (Interpretation Act, at s. 43).

[42] I note that specifically, s. 44 of the Interpretation Act provides that the prior proceeding shall be conducted "in conformity with the new enactment in so far as it may be done consistently with the new enactment and new procedures shall be followed as far as it can be adapted thereto".

[43] I also note that s. 44(f) states that 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.

[44] In R. v. Ali, 1979 CanLII 174 (SCC), [1980] 1 S.C.R. 221, the Court described the effect of s. 44 (d) at para. 40:

This statutory rule of construction [s.36(d) now s.44(d)] is a modification of the common law rule; it imposes restrictions on what would otherwise be the retrospective operation, in the absence of any contrary intent, of procedural statutes. It prescribes that the retrospective operation of procedural enactments shall not be absolute, but will take place only to the extent that the new rules of procedure may be adapted to the proceedings taken in respect of the matter that has occurred before the new rules came into effect. [Emphasis added].

[45] Lamer C.J. made essentially the same observation regarding s. 44(d) in R. v. Wildman, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311:

This is an enactment of the common law rule that there is no vested right in procedure along with a limitation to the effect that the following of the new procedure must be feasible. Therefore, a new procedure applies to pending suits without breaching the "rule of interpretation to the effect that statutes ought, if possible, to be interpreted so as to respect vested rights". [Cites omitted and emphasis added].

[46] I accept the respondent’s argument that these two sections of the Interpretation Act work in tandem: see R. v. Puskas, 1998 CanLII 784 (SCC), [1998] 1 S.C.R. 1207 at para.6. Cromwell J. in Dineley referred to the following summary by Professor Sullivan in her treatise that sums up the cumulative effect of the two provisions: “….the application of new substantive law is delayed by the survival of repealed law [but] the application of new procedural law is not”: Dineley, at para. 51.

F. FINDINGS OF FACT

[47] By the time Boivin J. commenced the preliminary hearing on September 18, 2019, the respondent had been put to his election, elected a trial with a judge and jury, and requested a preliminary hearing. Pursuant to Part XVIII of the Criminal Code, Boivin J. was obligated to conduct a preliminary hearing. Accordingly, he commenced that hearing.

[48] The obligations of the parties and Boivin J. during the hearing also included the following:

• Counsel for the respondent was required to provide the court and the other party with a statement that identifies: (1) "the issues on which the requesting party wants evidence to be given at the inquiry"; and (2) "the witnesses that the requesting party wants to hear at the inquiry";

• Boivin J. was to receive evidence called by the Crown, and pursuant to s. 540(7) of the Criminal Code, could receive as evidence any information that would not otherwise be admissible that he considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded;

• Once the evidence of the Crown was taken, Boivin J. was to also hear any witnesses called by the respondent relevant to the inquiry; and

• Once all the evidence has been taken at the preliminary inquiry, he was obligated to make one of the determinations set out in s. 548 of the Criminal Code. If he was of the view that "there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction", he must order the respondent to stand trial (s. 548(1)(a) of the Criminal Code). On the other hand, if he is of the opinion that "on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction", he must discharge the accused (s. 548(1)(b) of the Criminal Code).

[49] The Crown does not dispute that the proceeding on September 18, 2019 was valid. As can be seen, the legal effect at the end of the hearing is whether the respondent is entitled to be discharged or is required to be committed for trial.

[50] I also find that on September 18, 2019, s. 537(1)(a) permitted Boivin J. to adjourn the inquiry from time to time, and that the adjournment to September 19, 2019 was proper.

G. DO THE AMENDMENTS HAVE IMMEDIATE APPLICATION TO an ONGOING PRELIMINARY INQUIRY?

[51] The respondent argues that jurisdiction vested in the Ontario Court of Justice once the preliminary inquiry was underway. He submits that the Crown has failed to demonstrate how the law could permit a preliminary inquiry justice to formally begin a proceeding with jurisdiction, but have that jurisdiction removed part way through. He argues that Parliament could not have intended such a result and that the new amendments should not have immediate application to this ongoing situation.

[52] The Crown argues that Parliament intended to increase efficiency and reduce the already clogged court system by eliminating preliminary inquiries for certain offences. This intention is reflected in the remarks of the Minister of Justice set out in R.S. at para. 8. The Crown argues that there is no right to a procedure, and that while the cancellation of the preliminary hearing may result in the respondent feeling short-changed, this does not mean the public would see this as unfair. After all, the Crown points out that it is legal unfairness that must be considered. Since there is no right to a preliminary hearing, there is nothing legally unfair about cancelling the preliminary hearing mid-stream.

[53] Whatever may be said about the nature of the preliminary hearing, vested rights, and statutory interpretation, it is my view that the resolution of this application can simply turn on the issue of whether Boivin J. has lost jurisdiction in the middle of a validly commenced proceeding because of the enactment of new legislation. As I will explain below, applying the new amendment immediately to this ongoing proceeding would lead to an absurd result and unfairness, and could not have been what Parliament intended when they introduced new legislation to amend s. 535. I cannot accept that a preliminary hearing judge who begins a valid hearing and properly adjourns the proceeding to the next day suddenly loses jurisdiction because of the coming into force of a new enactment. Although this reason, in and of itself, ought to be sufficient to dismiss the Crown’s application, I will go on to consider the other issues raised by the parties in their written and oral submissions.

[54] Professor Ruth Sullivan notes that generally speaking, if a legal situation was ongoing when legislation came into force, the application of the legislation is immediate and usually not problematic unless it interferes with a vested right (see Sullivan, Statutory Interpretation, at p. 351).

[55] Thomas R.S.J. in R.S. sets out, at para. 40, that the court must first identify whether the legislation affects a “right”, as any concern about vesting must await the recognition of a right. He concludes that the preliminary inquiry is a statutory procedure and is not a right: R.S., at para. 44. As such, the amendments do not affect a substantive right and any analysis into vesting is irrelevant: R.S., at para. 67.

[56] I acknowledge that Thomas R.S.J. has dealt with the issues carefully and thoughtfully in his reasons. However, with the greatest of respect, I do not agree.

1. Judicial Comity

[57] Before I explain why I disagree with my colleague, I will deal with the issue of precedent. The Crown acknowledges that R.S. is not binding on me but argues that I should follow Thomas R.S.J. because he is correct, and his decision is not plainly wrong. This submission raises the issue of judicial comity as we are both judges of coordinate jurisdiction.

[58] Boswell J. in R. v. Chan, 2019 ONSC 783, summarized the principles of judicial comity. He notes that the principle of judicial comity (or horizontal precedent) is grounded in the same rationale as stare decisis: Chan, at para. 36. Courts should stand by things already decided because it promotes consistency, certainty, and predictability in the law, and enhances the legitimacy and repute of the common law: Chan, at para. 35.

[59] I accept that I should extend mutual courtesy and recognition of a decision of a judge of my court. It has been said that there is a requirement that a prior applicable ruling of a court of coordinate jurisdiction should be followed unless it is "plainly wrong" (see R. v. Scarlett, 2013 ONSC 562, at para. 43, per Strathy J. (as he then was)).

[60] However, as Boswell J. points out in Chan, the Court of Appeal for Ontario has dealt with the issue of horizontal precedent in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (C.A.). In that case, Laskin J.A. held that instead of focusing on phrases such as "manifestly wrong", the approach should be to weigh the advantages and disadvantages of correcting an error, and the effect and future impact of either correcting it or maintaining it: David Polowin, at para. 127.

[61] There is no question that the principle of judicial comity is well-recognized by the judiciary in Canada. However, the principle is not absolute. There are a number of exceptions to the principle as set out by Strathy J. in Scarlett. However, I do not think that the list of exceptions mentioned by Strathy J. in that decision was meant to be exhaustive. I would add that it may not be appropriate to follow a prior case of coordinate jurisdiction where the case involves: (i) different facts, evidence or issues; or (ii) if there was the prospect of creating an injustice if the prior decision were followed (see Cervenakova v. Canada (Minister of Citizenship and Immigration), 2010 FC 1281, at para. 29).

[62] I have considered the principle of judicial comity in this case. In my view, there are compelling reasons why I should not simply follow Thomas R.S.J.’s decision in R.S.

[63] First, there is the existence of a different factual matrix between the two cases. In this case, the proceeding has started. In R.S., the preliminary hearings were scheduled and pending, but had not yet begun. The remedy sought in that case was to vacate the days scheduled for those hearings. In this case, the Crown wishes to abort an ongoing proceeding and argues that the justice has lost jurisdiction midway through a process that is already underway. Thomas R.S.J. did not deal explicitly with the scenario that is before me, as the preliminary hearing was not ongoing in that case.

[64] Second, although I recognize that judicial comity promotes the value of predictability and certainty, those values have limited application in this case, given that the issue is somewhat novel and the state of the law is developing. The presumptions dealing with the temporal application of legislation are difficult to apply (see Sullivan, Statutory Interpretation, at p. 342). The amendments only came into force on September 19, 2019 and the decision of Thomas R.S.J. is from September 27, 2019. I am also aware that R.S. is also listed to be heard in the Court of Appeal for Ontario on October 28, 2019. As a result, further authoritative guidance is hopefully imminent.

[65] Third and finally, as I will explain below, if I followed the reasoning in R.S. in the circumstances before me, it would prejudice the respondent and lead to an absurd result.

[66] Reasonable minds can differ. I see no long-term harm to the values of consistency, certainty, predictability and sound judicial administration if I part company with my colleague on issues that seem to be matters of first impression.

2. The Preliminary Hearing Protects the Accused

[67] I now turn to the core issue raised in this application. Thomas R.S.J. in R.S. concluded that the preliminary inquiry is a statutory procedure. He reasoned it was not a right and therefore the amendments to s. 535 did not affect any "right, privilege, obligation or liability acquired, accrued, accruing or incurred". The amendment is simply a change in procedure. Respectfully, I cannot agree.

[68] Cronk J.A. in Peel Police v. Ontario (Special Investigations Unit), 2012 ONCA 292, explained that courts have recognized that the determination of whether a provision is purely procedural requires examination of the substance of the provision and its practical impact on the parties: para. 73. She noted that it is the substance of the provision rather than the label assigned to it that is controlling: Peel Police, at para. 73.

[69] Therefore, the question is not simply whether the enactment is one that affects procedure, but whether it affects procedure exclusively and does not affect a substantive right.

[70] Cromwell J. in Dineley also emphasized that it is wrong to simply attempt to label an amendment as either procedural or substantive:

[55] A key point arising from the jurisprudence is that the courts do not classify a provision as substantive or procedural by looking simply at its form, but also at its function and effect. This applies to rules of evidence as much as it does to other procedural provisions. If a rule of evidence "either creates or impinges upon substantive or vested rights, its effects are not exclusively procedural and it will not have immediate effect". [Cites omitted and emphasis added].

3. Section 535 is Not Purely Procedural

[71] Applying the functional test of looking at the form, function and effect of the provision, I have concluded that s. 535 as amended does not amount to pure procedure (see Côté, at p. 191).

[72] Thomas R.S.J. concludes that the preliminary hearing is a statutory procedure and the amendments do not change the elements of these offences and no defence is removed: R.S., at para. 45.

[73] At its inception, the preliminary hearing was used as an investigatory tool by the Crown to gather evidence against an accused. However, it has evolved from an evidence-gathering procedure where the accused had no rights in the process, to a hearing that, at its core, protects the accused from prosecution where the Crown lacks sufficient evidence to move forward (see Steven Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada, 2nd ed. (Markham: LexisNexis, 2018), where the authors provide an exhaustive treatise on the history and function of the preliminary inquiry at pp. 527-555).

[74] In R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, the Supreme Court of Canada recognized that a preliminary hearing is not a trial. However, McLachlin C.J.C. (as she then was) described the important nature of the preliminary hearing:

30 The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial. The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount 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". The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring the accused to stand trial.

31 Over time, the preliminary inquiry has assumed an ancillary role as a discovery mechanism, providing the accused with an early opportunity to discover the Crown's case against him or her. Nonetheless, this discovery element remains incidental to the central mandate of the preliminary inquiry as clearly prescribed by the Criminal Code; that is, the determination of whether "there is sufficient evidence to put the accused on trial". [Cites omitted and emphasis added].

[75] It is beyond dispute that the preliminary hearing is a procedural step designed to protect the accused. Examining other provisions in Part XVIII of the Criminal Code reinforces this view.

[76] First, there are provisions that protect the accused within the preliminary hearing. For example, s. 541(2) requires the justice to give a warning to an accused not represented by counsel that he is not obliged to say anything. Section 541(4) requires the justice to ask any unrepresented accused if he or she wishes to call any witnesses.

[77] Second, if an accused wishes to call witnesses that can provide relevant evidence at the preliminary hearing, s. 541(5) requires the justice to hear those witnesses. I do recognize that this provision has been modified slightly by the amendments. It is subject to s.537(1.01) which permits a preliminary hearing judge to limit the issues at the preliminary hearing.

[78] Third, after the completion of the hearing, the preliminary hearing justice can vacate any order of detention. Clearly, the strength of the Crown’s case will impact on any consideration by a justice hearing such an application (see Gary T. Trotter, The Law of Bail in Canada, 3d ed. (Toronto: Thomson Carswell, 2010) at 8-62-8-62.1).

[79] Respectfully, I disagree with my colleague that the amendments do not affect the accused in a substantive manner. They do. The amendments remove a protection for an accused person charged with certain crimes where there is insufficient evidence to warrant a trial.

[80] Indeed, I view the amendment as having a substantive effect on the respondent. Prior to the amendment, he was permitted to request that a judge perform a screening of the evidence to test its sufficiency. This is a power afforded to the justice that is specifically designed to protect the accused. Again, provided he met the preconditions of being put to his election, electing a trial in the Superior Court of Justice, and requesting a preliminary inquiry, the justice was required to hold that hearing. The result of that hearing could have significant consequences for the accused: he could be discharged and not required to stand trial. Due to the amendment, those accused who were previously entitled to a preliminary inquiry and are no longer are lose the benefit of a judicial vetting of the adequacy of the evidence, the possibility of being discharged, and the need to face trial. In short, the amendments eliminate a substantive protection. This is not simply a matter of pure procedure.

[81] I agree with the following comments of Pringle J. in R. v. Bernard-Carty, 2019 ONCJ 672:

[30] But it is a red herring to rely on these arguments as proof preliminary hearings are procedural in nature. The underlying purpose of a preliminary inquiry is to serve as a protection against wrongful convictions based on insufficient evidence. It also serves an ancillary discovery purpose, to ensure disclosure of the case to meet. Both are clearly substantive rights, just as the appeal process, which protects against judicial error and wrongful convictions, is “clearly a substantive right, not merely a question of procedure”.

[31] Parliament may be right that these protections are duplicated post-Stinchcombe. But duplication cannot convert what was previously a substantive right into a procedural one. The Court in Dineley places focus on the nature of the rights impacted. Not whether the rights impacted can be found somewhere else. Not whether the right impacted were absolute or constitutionally protected.

[32] By removing the right to a preliminary inquiry, does the new amendments impact substantive rights? In my view, they do. In R. v. Varcoe, 2007 ONCA 194, the Court of Appeal said at para. 21 that “[w]hile in recent times there has been discussion about the possibility of eliminating preliminary inquiries from the criminal justice process, today they remain an integral part thereof”. I cannot reconcile removing an ‘integral part’ of the criminal justice system, put in place to protect fairness and prevent wrongful convictions, with the notion that this does not affect any substantive rights. [Cites omitted].

[82] At para. 42 of R.S., Thomas R.S.J. sets out that there is, at best, a conditional statutory right to a preliminary inquiry subject to a direct indictment. He also points out that the accused still maintains the power to bring a motion for a directed verdict at trial and that the Crown has the power to prefer an indictment to the Superior Court of Justice pursuant to s. 577 of the Criminal Code: R.S., at para. 42.

[83] I acknowledge these considerations (see also Downes J.’s comments at paras. 15-16 of R. v. A.S., 2019 ONCJ 655). However, I am not persuaded that the existence of these powers mitigates the effect that the amendments have in this case.

[84] First, the power to subject an accused to a direct indictment pursuant to s. 577 of the Criminal Code is exceptional, and for that reason, requires the Attorney General's consent. In my experience, that power is used sparingly. Moreover, it does not remove the fact that the respondent, on September 18, 2019, began a proceeding that permitted him to challenge the sufficiency of the evidence and request that a judge exercise his screening function to discharge him and spare him from unjustifiably standing trial.

[85] Second, while it is true that the motion for a directed verdict can be brought by an accused after the completion of the Crown’s case at trial, it seems that for an accused who may be in custody or on bail, the option of bringing such a motion many months down the road is of small comfort. It seems that an accused in that position would much rather have the issue resolved by a preliminary hearing judge. Surely, prolonging a prosecution that is so deficient that no reasonable jury properly instructed could return a guilty verdict is not in keeping with promoting efficiency in the criminal justice system.

[86] I am not persuaded that the potential for a directed verdict application at the end of the Crown’s case at trial mitigates the effect on an accused that the removal of the screening function provided by a preliminary inquiry provides.

[87] To be sure, the preliminary inquiry is not a trial. It is also well established that there is no constitutional right to a preliminary inquiry. It does not follow, however, that the preliminary inquiry is only a procedural step that does not affect a substantive right. Putting aside the ancillary purpose of discovery and knowing the case to meet, I am of the view that the removal of the right to a preliminary hearing and the ability to be discharged in a case where the Crown’s evidence is insufficient is not exclusively a matter of pure procedure.

4. Vested Rights and the Presumption Against Retrospectivity

[88] If, on September 18, 2019, the respondent had a right, obligation or liability that vested, then the presumption against retrospectivity applies. As I understand the jurisprudence, when this presumption applies, the court presumes that the legislature did not intend to interfere with vested rights that came into being before the legislation came into effect (see Dineley, at para. 45).

[89] In my view, the amendments, if applied retrospectively, would impair an existing right. As a consequence, the amendments should not be given retrospective effect. Amendments which are substantive, have substantive effects, or interfere with vested rights fall under the normal presumption against retrospectivity. LaForest J. pointed this out in Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256:

22 [..] This is the whole point of the presumption. The law is leery of retrospective legislation to begin with; the legislature will not lightly be presumed to have intended a provision to have retrospective effect when the provision substantially affects the vested rights of a party.

24 It is not necessary here to untangle the complex distinctions between substantive and procedural legislative provisions. The provision in this case is clearly substantive. In any case, whether the provision is deemed to be substantive or procedural, it is not one to which a presumption of retrospectivity can be applied. This would amount to a serious deprivation of an acquired right of the husband, and it should not lightly be assumed that this was the intention of the legislature. [Emphasis added].

[90] Cromwell J. said the following about vested rights in Dineley:

[52] The question is how to determine whether an enactment is substantive or procedural. A provision is substantive if it alters the legal effect of a transaction, or if it interferes with vested rights. While there have been many attempts to define what sorts of provisions interfere with substantive or vested rights, a good starting point is the statement of Duff J. in Upper Canada College, at p. 417, citing with approval Moon v. Durden (1848), 2 Exch. 22, 154 E.R. 389 (Eng. Exch.), per Rolfe B. (at p. 396) and per Parke B. (at p. 398): "... it would not only be widely inconvenient but 'a flagrant violation of natural justice' to deprive people of rights acquired by transactions perfectly valid and regular according to the law of the time" (emphasis added). The same point is captured by the idea that a provision affects substantive or vested rights if "an act legal at the time of doing it should be made unlawful by some new enactment": Midland Railway Co. v. Pye (1861), 10 C.B.N.S. 179, 142 E.R. 419 (Eng. C.P.), at p. 424, cited with approval by Duff J. in Upper Canada College, at p. 419. Yet another way of putting it is to ask whether, if applied, the provision "would impair existing rights and obligations": Yew Bon Tew v. Kenderaan Bas Mara (1982), [1983] 1 A.C. 553 (Malaysia P.C.), at p. 563, approved in Perrie v. Martin, 1986 CanLII 73 (SCC), [1986] 1 S.C.R. 41 (S.C.C.), at pp. 48-49. Most recently, the Court accepted that a vested right is one that results from a legal situation that is tangible, concrete and sufficiently constituted at the time of the enactment of the new provision: Dikranian, at para. 37. [Emphasis added].

[91] In the end, the central question to be answered is, if applied retrospectively, would the legislation impair existing rights and obligations? (see Peel Police, at para. 73, per Cronk J.A.).

[92] While I accept that the preliminary hearing is one procedural step in the life of a criminal case that will end up in the Superior Court of Justice, I do not accept that applying the amendment to s.535 to the respondent’s ongoing preliminary inquiry would not have a substantive effect in this case. I agree with the following observations by Magotiaux J. in R. v. N.F., 2019 ONCJ 656:

31 The right to request a preliminary inquiry is difficult to categorize as either procedural or substantive. It is a procedural vehicle defining the manner of proof of the Crown's case, but it also impacts the accused and conduct of the defence in significant ways. In R.S., the Court found the right to request a preliminary inquiry to be procedural only. 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. [Emphasis added].

[93] The provision as amended removes the opportunity for the respondent to be discharged by the preliminary hearing judge, and I agree with the respondent that applying the amendment immediately to the ongoing preliminary hearing that started on September 18, 2019 would prejudice existing rights and obligations.

[94] I also agree with the observations of Magotiaux J. in N.F. that where the individual's situation is tangible and concrete, and the legal situation has crystallized or has been "sufficiently constituted" by the time of the new enactment, the right may be seen to be vested: para. 34. Magotiaux J. observes that when all the conditions precedent are met, the right can be said to be acquired, but not before: N.F., at para. 34; see also Puskas, at para. 14-15.

[95] The conditions precedent mentioned by Magotiaux J. are met in this case. The respondent was put to his election and requested a preliminary inquiry. As he was obligated to do, Boivin J. commenced the preliminary inquiry. The right to have a judge determine whether there is enough evidence to commit him for trial has been acquired and the obligation of the court to hold the inquiry has been triggered pursuant to s. 536(4) of the Criminal Code (see N.F., at para. 38). The court is in the midst of holding that inquiry.

[96] At the end of the hearing, the justice is required to either discharge or commit the accused for trial. Whether there is sufficient evidence to put him on trial is a live issue. Applying the amendments retrospectively, or as counsel for the respondent colourfully put it, “pulling the rug out” from under the respondent in the middle of his preliminary hearing, does diminish the right to have a decision rendered by the justice as to whether there is sufficient evidence to proceed to trial. In these circumstances, it seems undeniable that on September 18, 2019, when the preliminary hearing began, the accused acquired or accrued a right. Once vested, that right cannot be taken away without a clear and unambiguous indication that this was Parliament’s intent. As noted, Bill C-75 contains no indication that this was what Parliament intended to be the effect of the amendment to s. 535 of the Criminal Code.

5. Retrospective Application Would Lead to Absurd Results

[97] As Côté J. noted in Tran, the presumption against retrospectivity also bespeaks fairness. Applying the amendment immediately to the ongoing preliminary hearing that would result in a sudden loss of jurisdiction in this case would lead to unfair and absurd results. Those results would negatively impact the proper and orderly administration of justice and undermine public confidence in the justice system.

[98] In the course of oral argument, two hypotheticals were put to the Crown to illustrate the point that immediate application to the ongoing preliminary inquiry would lead to absurd results.

[99] First, assume that the evidence to be called before Boivin J. was complete by 5:00 p.m. on September 18, 2019. Boivin J. decides to think about the issue of committal overnight and wishes to render a decision on September 19, 2019. On the facts of this hypothetical, there is no question that the proceeding was valid on September 18, 2019. However, the Crown argues that in these circumstances, Boivin J. could not render a decision on committal. In my view, such a turn of events would be absurd.

[100] Second, assume that on June 5, 2018, a preliminary hearing involving several accused on serious charges was scheduled for two weeks, concluding on September 18, 2019. Regrettably, as is sometimes the case, scheduling difficulties with the judge or counsel occur, or witnesses or counsel become ill, preventing it from finishing as scheduled. Assume further that it will run two days over the date to September 20, 2019. Again, the Crown argues that the preliminary inquiry would have to be terminated and no adjudication could take place. As in the first example above, that would result in an absurd outcome. I cannot accept that Parliament’s intended purpose of increasing efficiency in the court system would facilitate such a squandering of scarce resources (judicial, prosecutorial, and defence), only to have the entire hearing aborted because it could not be completed on schedule.

[101] It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (see Rizzo v. Rizzo Shoes, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 27).

[102] Although an interpretation that leads to absurd consequences should be rejected in favour of an interpretation that avoids absurdity, the court cannot do so if, because of the clarity of the language used by the legislature, there is no plausible alternative interpretation (see Beattie v. National Frontier Insurance Co. (2003), 2003 CanLII 2715 (ON CA), 68 O.R. (3d) 60 (C.A.), at para. 14).

[103] At para. 25 of R.S., Thomas R.S.J. notes that after the passage of Bill C-75, the Department of Justice released “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)”, dated August 2019 and modified on September 6, 2019. Footnote 68 of the document states that in introducing the amendments, the intent was not to do away with a preliminary inquiry if it has already been requested or if such a hearing was ongoing when the new amendments come into force. Thomas R.S.J. gives little weight to these comments because there is no attribution or supporting evidence for the position reached.

[104] Unlike Thomas R.S.J., I am inclined to give these comments more weight. It seems to me that this paper is analogous to interpretive guidelines or directives. To be clear, this paper is not legislation and is not binding. However, the justification for consulting the legislative background is because it offers persuasive opinion about the purpose and meaning of legislation. The Department of Justice is responsible for the administration of legislation and can be said to have developed an expertise that would lend some authority to its opinions (see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014) at p. 626).

[105] I agree with my colleague that the material must not be given inappropriate weight. However, that is not to say that it cannot be relied on to assist in determining the meaning of the legislation. In my view, footnote 68 contemplates the factual scenario before me and fortifies the view that Parliament did not intend for the legislation to be interpreted in a manner that would lead to an absurdity.

[106] I agree with Boivin J.'s conclusions that in the case at bar, the preliminary inquiry scheduled on June 5, 2019 should continue until its completion. I share his concerns outlined at pages 5 to 6 of his ruling that Parliament could not have intended that a preliminary inquiry would commence with a schedule that went past September 19, 2019, only to be aborted mid-stream. The cost, delays, and wasted resources resulting from a mid-stream halt could not have been intended. This is particularly true when considering that the accused is in custody.

[107] One of the purposes of the amendments identified in the jurisprudence is to maintain public confidence in the justice system. Since the amending legislation lacks a transitional provision, and the retrospectivity of this legislation is subject to debate, I also rely on the absurdity principle to reject an interpretation that leads to absurd, prejudicial, and negative consequences. Such consequences would undermine the public’s confidence in the justice system and are presumed to have been unintended by Parliament.

H. Conclusion

[108] I agree with the respondent that Boivin J. has not lost jurisdiction to continue with the preliminary hearing validly commenced on September 18, 2019. Boivin J. may continue the preliminary hearing as he is obligated to do, until such time where the respondent is either ordered to stand trial or discharged in accordance with s. 548 of the Criminal Code.

[109] I therefore dismiss the Crown’s applications.

[110] I thank counsel for their assistance on the determination of this matter.

Coroza J.

Released: October 23, 2019

Appendix A

Cases That Have Considered Retrospectivity of Bill C-75 Amendments

Date	Case Name	Issue	Ruling
Ontario Court of Justice
September 11, 2019	R. v. R.S., 2019 ONCJ 629	Preliminary Inquiry	The amendments do not apply retrospectively
September 19, 2019	R. v. Downey, 2019 ONCJ 669	Preliminary Inquiry	The amendments do not apply retrospectively
September 20, 2019	R. v. Fraser et al., 2019 ONCJ 652	Preliminary Inquiry	The amendments do not apply retrospectively
September 23, 2019	R. v. A.S., 2019 ONCJ 655	Preliminary Inquiry	The amendments do apply retrospectively
September 23, 2019	R. v. N.F., 2019 ONCJ 656	Preliminary Inquiry	The amendments do not apply retrospectively
September 24, 2019	R. v. Kozak et al., 2019 ONCJ 657	Preliminary Inquiry	The amendments do not apply retrospectively
September 27, 2019	R. v. Bernard-Carty, 2019 ONCJ 672	Preliminary Inquiry	The amendments do not apply retrospectively
September 30, 2019	R. v. Dabrowski, 2019 ONCJ 677	Preliminary Inquiry	The amendments do apply retrospectively
October 1, 2019	R. v. Clark, 2019 ONCJ 678	Preliminary Inquiry	The amendments do apply retrospectively
October 1, 2019	R. v. Dumlao, 2019 ONCJ 692	Preliminary Inquiry	The amendments do apply retrospectively
October 1, 2019	R. v. Davis, 2019 ONCJ 679	Preliminary Inquiry	The amendments do apply retrospectively
October 2, 2019	R. v. Iaboni, 2019 ONCJ 689	Preliminary Inquiry	The amendments do apply retrospectively
October 7, 2019	R. v. Mehring, 2019 ONCJ 691	Preliminary Inquiry	The amendments do apply retrospectively
Ontario Superior Court of Justice
September 27, 2019	R. v. R.S., 2019 ONSC 5497	Preliminary Inquiry	The amendments do apply retrospectively
October 18, 2019	R. v. Kozak 2019 ONSC 5979	Preliminary Inquiry	The amendments do apply retrospectively ***Goodman J. released this decision after oral argument in this case. In order to be fair to the parties I have not considered the decision.

R. v. Downey, 2019 ONSC 6167

Case Summary