COURT FILE NO.: CR-20-00000135-00MO 1 DATE: 2020-12-27

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant

• and -

JASON WINDEBANK Defendant/Respondent

COUNSEL: Jennifer Stanton, for the Crown/Applicant D. Sid Freeman, for the Defendant/Respondent

HEARD: November 27, 2020, at Toronto, Ontario, by Zoom Hearing

BEFORE: Michael G. Quigley J.

REASONS FOR DECISION

Re: Criminal Code s. 535

Overview

1On this Application for judicial review, Crown counsel seeks relief by way of prerogative writs quashing the decision of the Honourable Justice Bhabha of the Ontario Court of Justice (the “Pre-trial Judge”) in this matter, dated November 20, 2020. In particular, the Crown seeks the following relief:

(i) An Order in the nature of Certiorari, quashing the order of the Pre-trial Judge, ordering – notwithstanding the limitations imposed by s. 535 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”) enacted in 2019 under Bill C-75 – that in the particular circumstances of this case, the Respondent is entitled to a preliminary inquiry for the offences of assault causing bodily harm and assault (choke, suffocate or strangle) both of which attract maximum sentences of less than 10 years,

(ii) An Order in the nature of Mandamus, ordering that the Respondent be held to his election to proceed directly to trial at the Ontario Court of Justice, or at the Superior Court of Justice with a Judge alone, or at the Superior Court of Justice with a Judge and Jury, and without a Preliminary Hearing, as provided in s. 535 of the Code as amended by the enactment of Bill C-75, and

(iii) An order in the nature of a Writ of Prohibition to prohibit the hearing of the preliminary inquiry ordered to be held on November 30, 2020 and instead ordering that the Respondent’s trial commence on that day.¹

2Jason Windebank is charged with one count of assault causing bodily harm under s. 267(b) and one count of assault by choking under s. 267(c). Where the Crown has proceeded by indictment, as it has here, the maximum sentence that may be imposed for either of those offences upon conviction is ten years imprisonment.

3The sole issue raised in this application is the Respondent’s entitlement to a preliminary hearing under s. 535 of the Code. Given that the two assault offences charged against the Respondent are stipulated to command a maximum sentence of ten years, the Respondent in no longer entitled to a preliminary inquiry as a result of amendments made to that provision in 2019 by Bill C-75 (the “Amending Act”). Preliminary inquiries are now limited to accused persons charged with offences “punishable by fourteen years or more of imprisonment.” Section 535 reads:

Inquiry by Justice

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)

4The proceeding before the Pre-trial Judge arose after Crown counsel gave written notice to the Respondent that if he is convicted of these offences, the Crown will seek an order that the Respondent be assessed under s. 752.1 of the Code, instead of the stipulated range of sentence being applied. An assessment under this provision is the first step in the long and complex process of seeking to have an offender designated as a “dangerous offender” (“DO”) under Part XXIV of the Code.

5Proceedings under Part XXIV of the Code may give rise to a variety of outcomes. If the statutory requirements are met, a person may be designated as a DO or a Long-Term Offender. Amongst the possible sentencing outcomes that can arise where an offender is designated to be a DO is an indeterminate sentence of imprisonment pursuant s. 753(4) of the Code. In other words, a person convicted of offences punishable by less than 14 years, but who is then sought to be classified as a DO, as in this case, faces penal jeopardy beyond the ten-year sentence stipulated in ss. 267(b) and (c). That increased penal risk is present because persons who are found to be and designated as a DO may face an indeterminate sentence, which potentially amounts to the equivalent of a life sentence.

6The Respondent’s trial was scheduled to take place over three days starting on Monday, November 30, 2020. Although the charges laid are prima facie punishable by less than 14 years, because of his position on the extent of the jeopardy he faces, the Respondent gave formal notice through counsel that he elected instead to proceed first to a preliminary inquiry, and only thereafter to trial. He made that election on the basis that he is at risk of being subject to a sentence well in excess of 14 years if: (i) he is convicted of one or both of the offences with which he is charged, and (ii) the Crown is ultimately successful in having him designated as a DO.

7On October 14, 2020, the Pre-trial Judge heard the Respondent’s application to be permitted to have a preliminary hearing take place on the date otherwise scheduled for his trial, November 30, 2020. Crown counsel opposed that application.

8In the result, the Pre-trial Judge concluded that the language of s. 535 alone would not otherwise have permitted the Respondent to request a preliminary inquiry, but that the action of the Crown in giving notice of its intent to commence DO proceedings upon conviction did cause him to potentially be punishable by a sentence in excess of 14 years, should a DO proceeding be successful.

9Given the rapidly approaching trial date and a heavy load of existing commitments, the Pre-trial Judge informed the parties of the court’s ruling verbally and advised that written reasons would follow. When this application for judicial review was commenced, the Pre-trial Judge had not yet delivered her reasons. She did release them on November 20, but had previously notified counsel of the result in an informal exchange of e-mails in which the Honourable Justice stated as follows:

I have concluded that in light of the Crown’s informal notice [of] intention to pursue a Dangerous Offender designation, Mr. Windebank faces the potential of an indeterminate sentence. He should therefore be entitled to a Preliminary Hearing. As a result, the matter will proceed as a Preliminary Inquiry, not a trial.

10On this Application for Judicial Review, as she did before the Pre-trial Judge, the Crown takes the position that a plain reading of s. 535 of the Code disentitles the Respondent from having a preliminary inquiry. Further, the Crown insists the consequences and potential sentence in the event of a DO designation are considerations that are remote at this stage. Given that claimed uncertainty, the Crown argues the consequences cannot reasonably ground an entitlement in the Respondent to a preliminary inquiry, even though the notice does alert the Respondent that the Crown intends to commence DO proceedings should he be convicted at trial. The Crown argued that the trial should proceed on November 30, 2020, as scheduled.

11Counsel advised me that the question, whether any defendant in Mr. Windebank’s circumstances is entitled to a Preliminary Inquiry, appears to be a novel issue, one that has not been previously litigated in Canada. Neither Crown Counsel, nor counsel for Mr. Windebank, was able to provide the Pre-trial Judge or me with any case law directly on this issue.

12I heard this application for judicial review on Friday, November 27, 2020, two days before the trial was to commence. I promised counsel a relatively brief endorsement of my decision over the weekend, and delivered it to them by e-mail on Sunday, November 29. Having regard to the extent of the argument made and the importance of the issue, I promised counsel more fulsome reasons as soon as possible. These are those reasons. These reasons also include all of the paragraphs in my previous endorsement, subject to editing in preparing these reasons.

Background

13There is some disagreement between counsel in this case on particular facts. Before the Pre-trial Judge, the Respondent’s counsel claimed that significant disclosure remains outstanding in this case, and I will refer to that later in these reasons. In the paragraphs that follow, I have made note of where there are factual disagreements between the parties.

14On Monday, April 13, 2020, the accused Respondent and the complainant were in their residence on Sherbourne Street in Toronto. A dispute arose in which the alleged assaults against the complainant by the Respondent occurred. The fight was heard by an anonymous neighbor who ran across the street to a pay phone and called police.

15The individual who called 911 resided in the same housing complex as the Respondent and complainant. He or she called on April 13, 2020 just after 4:26 p.m. That individual stated that they believed a female was getting beaten up and that the police needed to get there very quickly. The caller advised 911 that a male and a female voice could be heard, and that the female was asking for someone to call 911.

16Officers arrived on scene and heard a female voice from inside unit 403 calling for help. Officers knocked on the door. There was no response, so they forced entry into the unit from the front door. The Respondent was placed under arrest. The officers observed the complainant to have physical signs of being assaulted, including bruising to her left eye, bruising to her left shoulder, and a cut lip. The Respondent was transported to 51 Division where he was held for a show cause hearing. Officers took photographs of the complainant’s injuries and the apartment, parts of which appeared to be covered with blood spatter.

17The complainant provided a statement to the police that was at least audio recorded, though the Applicant Crown claims it was videotaped. Both parties agree the complainant was given a K.G.B. caution prior to her statement being taken, which the defence notes was given at the apartment, not the police station. The complainant advised in her statement that the male involved is her fiancé, Jason Windebank. The Applicant here says the complainant indicated that the Respondent was using “meth”, but disclosure allegedly shows both Mr. Windebank and the complainant are meth users. In her statement, the complainant noted, “We've been up for so many days, I have no idea.”

18The complainant said the Respondent was absent for two weeks as a result of previous domestic “assaults” he had visited upon her but came back the night before the incident in question. The Respondent contradicts that assertion and states that there had been only one prior assault, not a series of assaults, and that it was the complainant who indicated in her statement that she was the one who had been away for two weeks. On that day, the Respondent “lost it” and started punching the complainant, allegedly for “taking his things.” The complainant denied having taken anything that belonged to him.

19In her statement, the complainant advised that the Respondent threw her against the wall, dragged her to the bedroom, started punching her in the head, put her “in a reverse choke hold” and then went to the bathroom and punched her in the head again. The complainant advised that she was screaming for help. An unknown party knocked on the door and the complainant reports that she yelled, “Call the cops.”

20The complainant told the police that the Respondent was punching her with closed fists, and that the Respondent had threatened to kill her that night and previously. She claimed to have been assaulted by the Respondent over twenty times in the past, but she acknowledged having called the police only once. The Respondent does have a lengthy criminal record, including one prior conviction for an assault in relation to the complainant.

21The Respondent says that the circumstances surrounding the statement are important here, to the extent that they may raise credibility or reliability issues relating to the complainant:

(i) The complainant's audio statement has a total run time of 6 minutes and 54 seconds. The first one-and-one-half minutes of the statement is taken up by the usual statement preliminaries. The statement is interrupted part way through from player timer 5:28 to 6:11 while the complainant appears to have a disagreement with someone in the hallway.

(ii) The officer recites a witness standard caution to the complainant. It sounds as if the officer was reading from a pre-printed form.

(iii) The complainant's statement is not taken under oath or affirmation.

(iv) When asked if she wants to give a statement, the complainant paused for approximately five seconds and then stated, “Yeah, I guess so. I don't know...! don't know what to do” There is a pause for another five seconds and then she says, “Yes?” The officer immediately launched into an interview.

(v) In relation to the choking allegation, it was the interviewing officer who appears to have labelled the motions of Mr. Windebank as a “reverse choke-hold” rather than describing the movements the complainant made with her body.

(vi) In relation to the choking allegation, the complainant indicated, “I couldn't breath [sic]. I was trying to catch my breath. I couldn't breath [sic]. That's my COPD. I've got really bad COPD because...”

(vii) No forensic testing was done to determine whether the substance observed by police was blood spatter, and if so, who it emanated from.

22Crown counsel states in paragraph 19(f) of her Factum that the notice given to the Respondent of the Crown's intention to pursue a DO designation was provisional. Defence counsel disputes this, citing the email at Tab 6A of the Application Record. The notice was given in the following words “If convicted the Crown will be seeking as assessment under s.752.1.” The Respondent says there was nothing provisional about the notice given.

23The pre-trial hearing was held virtually by Zoom on October 14, 2020, at College Park Courts in virtual Courtroom 504, to address the issue of whether the Respondent was eligible to have a preliminary inquiry in this matter. Counsel for the Applicant and Respondent made submissions and filed materials, including written submissions, case law and email correspondence.

24On November 12, 2020, the Pre-trial Judge provided counsel for the Applicant and Respondent the following email via her judicial secretary, which stated:

in light of the Crown’s informal notice intention to pursue a Dangerous Offender designation, Mr. Windebank faces the potential of an indeterminate sentence. He should therefore be entitled to a Preliminary Hearing. As a result, the matter will proceed as a Preliminary Inquiry, not a trial.

25The learned Pre-trial Judge also indicated in the same email:

I am unfortunately not in a position to provide you with a formal written Ruling in this matter as I hoped I would be. I will instead indicate the result and provide the formal Ruling on the record on Monday, November 30th.

26The Applicant inquired through her secretary if the she and the Respondent could receive Her Honour’s reasons in advance of November 30, 2020, the date the Respondent’s trial was scheduled to commence in the Ontario Court. The Pre-trial Judge responded through her secretary that she would provide it in advance if possible, but she could not give a target date. In the result, as noted, Her Honour did release her written reasons for her decision on November 20, 2020. By that time the Applicant had commenced this application for Judicial Review. The receipt of reasons since the commencement of this application now renders the initial fourth ground of judicial review moot.

Position of the parties

27The Applicant’s argument is multi-faceted, but can be summarized as follows:

(i) The learned trial judge did not have jurisdiction to “order” a preliminary inquiry in this case.

(ii) The Code contains no ambiguity on when a preliminary inquiry is available to an accused person. To have interpreted a penalty of 14 years or more to include circumstances where the Crown gives notice of intention to seek an assessment under s. 752.1 of the Code and pursue DO proceedings, is contrary to the rules of statutory interpretation.

(iii) Rules of statutory interpretation require that an Act be read in its entire context. Provisions must be read in their grammatical and ordinary sense and they must be read harmoniously within the scheme and object of the Act as well as the intention of Parliament.

(iv) The offences of assault causing bodily harm and assault (choking) attract sentences of with a maximum of less than ten years in custody.

(v) Under the Amending Act, an accused person may elect to have a preliminary inquiry at the Ontario Court of Justice and trial at the Superior Court of Justice only where the offence(s) that the accused faces attract a sentence of 14 years or more. Part XXIV of the Code is not addressed or mentioned in the Amending Act. A preliminary inquiry is not a constitutional right, and the intention of Parliament was to streamline and limit instances where an accused could avail themselves of a preliminary inquiry.

(vi) The Respondent was provided with provisional notice by the Applicant that it will seek an assessment under s. 752.1 of the Code, should he be convicted of a Specified Personal Injury Offence (“SPIO”). However, the Applicant argues that an application under ss. 753 or 753.1 of the Code for either a “dangerous offender” or “long-term offender” designation, can only proceed where

i. the Respondent has been convicted of an SPIO pursuant to s. 752.1 of the Code,

ii. the Applicant has successfully applied for an assessment under that same section,

iii. a forensic psychiatrist has found, from a psychiatric perspective, that the Respondent meets the requirements under s.753 and/or s.753.1 of the Code, and

iv. the Attorney General has consented to pursue a designation under s. 753 and/or s. 753.1 of the Code.

(vii) Since the designation of any accused as either a dangerous or long-term offender is subject to a judicial ruling, the simple notice the Applicant provided in this case does not mean the Respondent necessarily faces an indeterminant sentence.

28Part XXIV of the Code does not require that the Crown to provide notice of its intention to pursue an assessment under s. 752.1 until specific conditions exist. Further, the Crown does not need to provide notice of its intention to pursue an application under s. 753 of the Code until 7 days prior to the hearing pursuant to s.754(1)(b). However, even if not required, if the Crown gives notice of its intention to pursue a s. 752.1 assessment against an accused person, the effect of the decision under review is that it will enable the accused to opt to have a preliminary inquiry. The Applicant says that it cannot be the case that the ability of an accused to access a preliminary inquiry is dependent on the Crown’s exercise of prosecutorial discretion.

29The Respondent is of the view that the decision of the Pre-trial Judge was correct in law and that no jurisdictional error was made. The Respondent's position may be summarized as follows:

(i) It is not an accurate characterization of the Pre-trial Judge’s decision to assert that she “ordered” that the Respondent have a preliminary inquiry. She did not order anything. The Pre-trial Judge was asked to make a ruling, a determination, or reach a finding on whether Mr. Windebank was eligible to have a preliminary hearing. She ruled that he was:

I have concluded that in light of the Crown’s informal notice [of] intention to pursue a Dangerous Offender designation, Mr. Windebank faces the potential of an indeterminate sentence. He should therefore be entitled to a Preliminary Hearing. As a result, the matter will proceed as a Preliminary Inquiry, not a trial.

This is not an order that exceeded the jurisdiction of the Pre-trial Judge. She interpreted the provision in accordance with principles of statutory interpretation, and found that in the circumstances, the Respondent was entitled to be tried by a Judge and Jury after having a preliminary hearing. That is a finding of mixed fact and law. It did not exceed her jurisdiction.

(ii) Nowhere in the legislation is there a restriction on the means by which an accused person is placed in jeopardy of a punishment of 14 years or more. That jeopardy may come from any part of the Code, including the DO provisions in Part XXIV.

(iii) In interpreting the intention of Parliament in enacting the amendments to s. 535, it is inappropriate to focus solely on the admitted and well-documented intention of Parliament to streamline criminal proceedings. A correct application of the principles of statutory interpretation precludes that limited perspective. Defence counsel argues that the Pre-trial Judge correctly ruled that

Parliament had a dual purpose in making the amendments. The goal was to achieve certain efficiencies, but not at any cost. A balance was struck to ensure that those charged with serious offences would still be able to avail themselves of a preliminary inquiry.

The importance of this balance to Parliament is evident and was expressed by their amendment to the initial form of the legislation as proposed during Second Reading, to lower the eligibility bar from offences carrying a life sentence, to offences carrying sentences of 14 years or more.

(iv) The section plainly contemplates that anyone who is at risk of a sentence of 14 years or more should be is eligible for a preliminary hearing. This includes those who have been given notice that they are at risk of an indeterminate/life sentence by operation of the Dangerous Offender provisions of the Code.

(v) The Crown’s position that “..the notice the Applicant provided in this case does not mean the Respondent necessarily faces an indeterminate sentence” is an inadequate and unpersuasive response because the same is true for any accused charged with an offence that is punishable by a sentence of 14 years or more. The charge itself, just like the notice, does not mean that the accused will receive the most severe possible sentence.

(vi) The Crown’s position that, “[i]t cannot be the case that the ability for an accused to access a preliminary inquiry is dependent on prosecutorial discretion” cannot be correct. The ability to access a preliminary hearing for almost any charge is dependent on prosecutorial discretion in determining whether to proceed summarily or by indictment. Built into this discretion is the presumption that Counsel for the Crown will exercise their discretion as quasi Ministers of Justice and provide notice of intention to pursue DO Designations as early in the process as possible, even if that means well in advance of the minimum notice provision set out in the Code.

(vii) It would be an absurd outcome if persons in jeopardy of receiving the most serious punishment known under Canadian law were denied access to a preliminary hearing, while those in jeopardy of a much lower sentence were entitled to this protection.

30The 2019 decision of the Court of Appeal in R. v. R.S.,² considered the application of the amended version of s. 535 as it related to accused persons whose charges were already progressing through the judicial system, given that the Amending Act contained no transitional provisions, and also lacked a preamble to state Parliament’s intention. At para. 4, Doherty J.A. concludes as follows:

4 For the reasons that follow, I would hold that, as the appellants had elected their mode of trial and requested preliminary inquiries before the amendments came into force on September 19, 2019, the amendments do not apply to the appellants. They are entitled to their preliminary inquiries. I would further hold that accused persons who were before the courts prior to September 19, 2019, but had not elected their mode of trial and requested a preliminary inquiry, as of that date, had no right to a preliminary inquiry. Their entitlement to a preliminary inquiry is governed by the amendments, which limit that entitlement to offences that provide for a sentence of at least 14 years' imprisonment.

31However, the Court also describes the substantive rights of accused persons, like the Respondent, in paras. 49-52 of its reasons. Defence counsel argues that those substantive rights would be severely compromised in the circumstances of this case by the lack of a preliminary hearing. She asserts there has been highly inadequate disclosure in this case, through no fault of the Crown, particularly in light of the deficiencies around the taking of the statement and the high probability of a hearsay application by the Crown when the matter proceeds.

32Those deficiencies were described in the Respondent’s Statement of Issues at Tab D of the Application Record of the Applicant:

The complainant gave an audio-recorded statement at the scene, the substance of which is approximately five minutes in duration and is interrupted as the complainant speaks to an unknown party in the background. The details of that conversation are unknown as is the identity of the person with whom she spoke. Police allege the complainant, “is an admitted meth user”. The details as her substance abuse history are not disclosed. No information is disclosed about whether she was intoxicated at the time she gave her statement or at the time the events occurred that culminated in the charges against Mr. Windebank. No information is disclosed about other substances she may abuse. No information is disclosed about how her substance abuse impacts her memory or her ability to perceive generally. No information is disclosed about how her substance abuse impacted her memory or her ability to perceive the specific events before the court. The client indicated in her statement that she has a bad memory. No information is disclosed about the source or nature of her memory issues. No information is disclosed about the extent of her memory issues. The complainant asserted in her statement that she suffers from COPD. No information is disclosed about the extent to which her breathing is impaired by this condition. No information is disclosed about how emotion impacts her breathing in light of this condition even though, given the content of her statement, this is clearly an issue on the choking count. The complainant has a criminal history. No information has been provided about the most recent criminal history. In addition, no information has been provided about the details of any of the circumstances underlying the convictions.

33These claimed disclosure deficiencies take on added significance relative to the ability of the Respondent to make full answer and defence in circumstances like these where he is potentially in jeopardy of an indeterminate sentence. Yet, the restrictive interpretation advanced by Crown counsel would deny him the opportunity to pursue those matters in advance of trial because the offences charged are nominally punishable by less than 14 years, when the actual penal jeopardy is arguably the heaviest sentence known to Canadian law.

Analysis

34To permit a complete understanding of the matter, I have set out the positions of the parties at length in the preceding paragraphs. However, regardless of the numerous lines of attack and resistance by the Applicant and the Respondent, in my view the matter comes to be decided on the basis of the answers to two issues.

35The first is whether the Pre-trial Judge exceeded her jurisdiction by finding that the Respondent was entitled to a Preliminary Inquiry in all the circumstances. The second is whether the Pre-trial Judge correctly applied the relevant principles of statutory interpretation in reaching the conclusions she did, or whether she made an error of law in interpreting s. 535 of the Code in the manner she did, as alleged by the Crown. I address each of these questions in the paragraphs that follow, but first have summarized the interpretive principles that apply to the questions at hand.

(i) Interpretive principles

36At the commencement of this analysis I would briefly address the applicable standard of review. The Supreme Court of Canada set out the standard of review applicable in appeals from judges’ orders in Housen v. Nikolaisen.³ As stated at para. 8:

On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness: Kerans, supra, at p. 90.

37On questions of fact, the standard is palpable and overriding error. Finally, on questions of mixed fact and law, the Court stated that there is a spectrum, but where the facts are not in question and there appears to be an extricable legal principle as in this case, that is, the interpretation of s. 535 of the Code as amended, the standard of review is whether the Pre-trial Judge’s decision was correct.

38In considering whether the decision reached by the Pre-trial Judge meets that standard of correctness, I have reminded myself of the principles of statutory interpretation that apply in these circumstances. They are well known. First, a contextual analysis is required,⁴ since the words of an enactment take their colour from their surroundings. The goal is to determine what Parliament intended, having regard to the history, context, and purpose of the enactment.⁵

39The application of this analytical approach is not limited to circumstances of ambiguity or confusion, but must be conducted every time a court interprets a legislative provision, since the purpose, scheme, and context of an Act are the primary guiding principles to determine the intent of Parliament in enacting individual sections within the Act.

40In a case like this where the provision under consideration is part of a larger statutory scheme like the Code, an expansive contextual view should be taken, and the appropriate approach is to presume harmony, coherence, and consistency, both internally and between statutes dealing with the same subject matter. In Bell ExpressVu Limited at para. 30,⁶ Iacobucci J. set the test out in the following practical words:

It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning.”

Obviously in this case, there is sufficient ambiguity respecting the meaning and scope of the indictable offences that are “punishable by 14 years or more of imprisonment, to cause these two parties to spend good money in backing the alleged opposing views of the meaning of the phrase.

41Further, it is well-established principle that the legislature does not intend to produce absurd consequences. Absurdity occurs if the interpretation leads to ridiculous or frivolous consequences, is extremely unreasonable or inequitable, is illogical or incoherent, is incompatible with other provisions or with the object of the enactment, or defeats the purpose of the statute or renders some aspect of it pointless or futile.⁷ Ironically, both counsel argue that the others position does give rise to absurdity, or incoherence, or inconsistency.

42The interpretation of federal statutes in Canada is governed by the Interpretation Act.⁸ It deems every enactment to be remedial and it requires that statutes be interpreted with the objective of the statute in mind, adopting a fair, large, and liberal construction that ensures that the stated objective of the Act is achieved. As well, the preamble of an enactment is to be read as a part of the enactment intended to assist in explaining its purport and object.⁹ Unfortunately, there is no preamble present to assist in the interpretation of this particular amendment.

43There is no dispute here on the application of these principles, and the Pre-trial Judge herself referred to them. In reaching the decision she did relative to the meaning of the provision, the Pre-trial Judge stated her intent to follow those rules, and her belief that she had done so in her analysis of the position put forward by both parties.

44In her submissions before me, Crown counsel acknowledged that both parties agree on the interpretive rules that apply here and that the Pre-trial Judge did reference all the relevant principles. Crown counsel claims, however, that the Pre-trial Judge misapplied those rules. By doing so, in her submission, the Pre-trial Judge erred in law and exceeded her jurisdiction by reading into the legislation an intention that was absent in the enactment of the statutory scheme.

(ii) Did the Pre-trial Judge exceed her jurisdiction by finding that the Respondent was entitled to a Preliminary Inquiry?

45The core of Crown counsel’s argument seeking relief by way of certiorari was that (i) the Pre-trial Judge’s decisions that the Respondent “is entitled to a Preliminary Hearing” and (ii) “As a result, the matter will proceed as a Preliminary Inquiry, not a trial”, constitute “Orders” that exceeded the Pre-trial Judge’s jurisdiction as a Justice of the Ontario Court of Justice, a statutory court having no inherent jurisdiction.

46I disagree with this construction.

47Section 536(2) formerly read as follows:

If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

48Section 535 as amended reads as follows:

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

49From the perspective of its construction, it seems evident on its face that neither the preceding decision nor the provision as it now reads contemplates any need for any order to be made by any judge.

50If an accused person has made a request for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall inquire into the charge. The justice does not need to order that a preliminary inquiry be held, or to order that a hearing scheduled as a trial be converted into a preliminary inquiry: it follows by operation of law on the statutory wording once the request has been made by the accused, provided the conditions of entitlement are satisfied.

51Before it was amended, there were no conditions to entitlement. Since its amendment, the condition of entitlement is that accused is charged with an indictable offence that “is punishable by 14 years or more of imprisonment.” The question is not one of “ordering” a preliminary inquiry, but rather one of determining the meaning and scope of the newly enacted conditional language, applying proper principles of statutory construction, and determining whether the condition is satisfied.

52With the exception of jury trials and matters falling within the inherent jurisdiction of the Superior Court, Justices of the Ontario Court of Justice preside over virtually all criminal trials, for both adults and youths, and sentencing hearings in Ontario, conduct preliminary hearings, and preside on many bail hearings. Justices of the Ontario Court of Justice make decisions and findings of fact, and findings of law, every day, relative to the panoply of criminal matters that appear before them that fall within their jurisdiction. There is no issue that those matters fall within the scope of their statutory jurisdiction. I can see no distinction between the Pre-trial Judge making the finding of entitlement as she did in this case and any other factual or legal or mixed finding. The jurisdiction of the Justices of the Ontario Court to make such interpretive findings and determinations is plain.

53I reject the Crown’s contention that the language used in the email by the Pre-trial Judge should or can be construed as an “order” made beyond her jurisdiction rather than an advice as a simple finding, as a matter of law on the facts before her, that the Respondent was entitled to a preliminary inquiry based on her construction and interpretation of the condition in the amended provision, and her satisfaction that the accused’s pre-trial situation engaged that language.

54The finding itself may or may not be correct as a matter of law, which is a different question, but I find it was certainly within the Pre-trial Judge’s jurisdiction to hear from the parties as she did regarding whether or not the Respondent’s charges are “punishable by more than fourteen years” in light of the Crowns notice of intent to pursue DO proceedings, and accordingly, whether or not he was and is entitled to a preliminary inquiry. I would dismiss this ground for the relief sought.

(iii) Did the Pre-trial Judge correctly interpret s. 535 of the Code?

55Crown Counsel argues several other interpretive grounds in support of her contention that the Respondent is not entitled to a preliminary inquiry under s. 535 of the Code as it now reads. She states that the Pre-trial Judge misinterpreted the law and exceeded her jurisdiction by reading into the legislation a Parliamentary intention that Crown counsel claims does not exist.

56For the reasons that follow, I have rejected this position and find that the interpretation adopted by the Pre-trial Judge is legally correct given the unique facts before her.

57Both parties accept that Parliament’s intent in enacting the Bill C-75 amendments was to respond to the Supreme Court’s decision in R. v. Jordan¹¹ to look for new efficiencies in the criminal justice system, procedurally and legislatively. At para. 140, the majority invited meaningful legislative change:

140 For provincial legislatures and Parliament, this may mean taking a fresh look at rules, procedures, and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focusses on what is truly necessary to a fair trial…. And Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations. Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.

58In its multifaceted response to that invitation, Parliament has chosen to limit the availability of preliminary inquiries to only certain accused persons charged with certain particularly serious crimes.

59The legislative background documentation and Speeches in Parliament show that Parliament was seeking to do three things in the Bill C-75 enactments: (i) increase court efficiencies by limiting the availability of preliminary inquiries, (ii) free up court time, that is, help to unclog the provincial courts and free up additional resources, and (iii) to reduce burdens on witnesses and victims from having to testify twice.¹²

60Stated simply, it is the Crown’s position that in interpreting the words “punishable by a sentence of more than fourteen years imprisonment”, one may look only at the specific words of s. 535, and only at the maximum sentence stipulated in any particular charging provision, such as the assault charges levied here under ss. 267(b) and (c), which stipulate a maximum sentence of ten years.

61Specifically, in determining whether an accused person is entitled to a preliminary hearing, it is Crown counsel’s position that one should not look at or take contextual account of other sentencing provisions in the Code, such as those found in Part XXIV, because their application is too remote.

62Part XXIV of the Code certainly does deal with sentencing, but it is not specifically referenced in s. 535. Crown Counsel says the possibility of an indeterminate sentence is remote. In her submission, there is no certainty that Crown counsel will succeed in efforts to have this Respondent designated and punished as a DO. That is true, but is unresponsive to the point because it is equally uncertain that any conviction for offences punishable by up to 14 years, or up to 10 years for that matter, will result in the imposition of the maximum sentence set out in the offence itself. At least in my experience, that would be the exception rather than the norm.

63Neither, however, is there any doubt on the face of s. 753(4) that the potentially indeterminate period of incarceration contemplated for DOs is “a sentence.” It is a “sentence”, which may result in an accused person, once convicted and if designated a DO, facing the prospect of an indeterminate sentence, which may exceed 14 years and may be tantamount to a sentence of life imprisonment.

64The strength of the decision of the Pre-trial Judge is founded on several important elements. First, it is predicated on an interpretation that by wording s. 535 as it did, Parliament meant to have the question of an accused person’s entitlement to a preliminary inquiry determined by reference to the potential “penal” or “liberty jeopardy” that the accused person faces in being charged with the particular offences, in all of the circumstances.

65I find that this is the context within which Parliament agreed on the final words of the amended enactment. Certainly, the impugned amendment was first and foremost part of a concerted effort by Parliament post-Jordan to expedite court proceedings by limiting the availability of preliminary inquiries, to help unclog the provincial courts, and to free up additional resources. The Parliamentary speeches make this obvious, but it is also clear from the flavour of the language ultimately adopted, after revisions in committee and in the Senate, that it was Parliament’s plain intent that the availability of a preliminary hearing was ultimately to be determined by reference to the penal jeopardy faced by the accused.

66This interpretation of Parliament’s intent is also bolstered by the legislative history and progress of the Amending Act through Parliament. As initially proposed in Bill C-75, the enumerated offences that carried a right to a preliminary inquiry were only the most serious of offences, offences that carried potential sentences of life imprisonment. However, as the section was amended after Second Reading, as part of the political negotiating that forms part of the enactment of any legislation, the offences that permit an accused to elect to have a preliminary inquiry were expanded from those carrying a life sentence, to those carrying a sentence of 14 years or more.

67Inherent in that legislative decision is an expression by Parliament that it was not only in the most serious of offences that a preliminary inquiry would be made available to the accused. While still limited, it would be available in a somewhat broadened scope that would include offences punishable by 14 years or more of imprisonment.

68One of the arguments against the interpretation adopted by the Pre-trial Judge is the so called “floodgates” fear, that by reading the provision to include potential indeterminate sentences, the intent to streamline and expedite the criminal process will be compromised.

69I can find no persuasive support for this argument. In fact, Crown Counsel acknowledged it was a “bit of a red herring” as she put it. Statistics presented by the Crown in its materials and argued before the Pre-trial Judge and before me showed that the number of DO applications per year is relatively small and largely static on a national basis: in the range of 30-40 for each of the years 2013-2020, with 2017 being an outlier year where 55 DO proceedings were commenced.¹³ Further, many of those cases were already cases involving offences of the highest level of gravamen where the accused would already be entitled to a preliminary inquiry, given the predicate offences charged, regardless of the Crown seeking a DO designation.

70While it is not a scientific conclusion, this evidence would suggest that the number of additional preliminary hearings that would be generated by DO designations being sought in cases of offences which carry sentences of less than 14 years, or as in this case, ten years or less, must and will necessarily be very small.

71Given the principal intent in enacting the amendments, the Pre-trial Judge accepted, as do I, that courts should not adopt an interpretation that would contradict that intention of Parliament to increase court efficiencies by limiting the availability of preliminary inquiries, free up court time and additional resources, and to reduce burdens on justice system participants.. However, I find no error in the conclusion of the Pre-trial Judge, that a careful review of the data shows that the floodgates argument lacks merit. Based upon the data proffered, it is counterintuitive that there will any flood to be had in the very limited circumstances at play in this case. Interpreting s. 535 in the manner that the Pre-trial Judge did does not thwart Parliament’s intention, in my view.

72Crown counsel also made submissions that on a “plain reading” of s. 535, Mr. Windebank is not entitled to a preliminary hearing, but I find that is not what the section says, and that is not how it reads. What Parliament decided in the amended language of ss. 535 and 536 was that “[i]f an accused is charged with an indictable offence that is punishable by 14 years or more of imprisonment”, then they can elect to be tried by judge and jury after a preliminary inquiry.

73However, s. 535 does not say that an accused is entitled to an election only if the section setting out the offence charged indicates by its terms that the maximum possible punishment is 14 years or more. Absent such a facial limitation, it was clear to the Pre-trial Judge, as it is to me, (i) that the provision must be read within the broader context of the entirety of the legislation, and (ii) that looked at in that broader context, the word “punishable by” has a broader meaning. There were no words read in by the Pre-trial Judge in reaching this conclusion. The Pre-trial Judge simply interpreted the provision, as she was required to do, by applying the agreed principles of interpretation.

74The DO legislation in Part XXIV is obviously incorporated into and forms part of the Code. It does specifically provide for a sentencing regime, and the imposition of a sentence, but the sentence is intertwined with the concept of a designation, that is, where an offender has been judicially designated as a DO or a Long‑Term Offender (“LTO”).

75Crown counsel correctly observes that the sentence that may be imposed under Part XXIV is not actually a “life sentence” in the ordinary sense. It can be an ordinary determinate sentence, a fixed term sentence, or a Long-Term Supervision Order or an indeterminate sentence where the offender is designated as a LTO or a DO. The distinction is that the length of the sentence imposed under Part XXIV will essentially be determined by Correction Services of Canada, and in particular, the national Parole Board, as a result of ascertaining what risk, if any, a particular offender poses moving forward as the sentence is being served.

76Nevertheless, as I understood the statistics that were presented to me, the preponderance of offenders designated as DOs, while not sentenced to life with the possibility of parole at particular times, do actually serve a “life” sentence. The Corrections Canada statistics referenced above certainly support that inference. Indeed, the case law shows instances of offenders sentenced to life imprisonment for first or second-degree murder, who re-offended after being released on parole, and who were then convicted of subsequent SPIO offences, designated as a DO, and then confined in the penitentiary for the balance of their natural life.¹⁴

77As such, it is only logical that the potential consequences of a DO designation must be included within the words “punishable” by 14 or more years of imprisonment. Parliament did not limit the ability of an accused to elect trial by judge and jury following a preliminary inquiry solely on the basis of the punishment that is set out in the offence section: that is not the language that Parliament chose to adopt.

78Moreover, given that a remedial interpretation and construction is required having regard to the entire context and statutory scheme, I cannot accept the Crown’s argument that the Pre-trial Judge’s interpretation could only be possible if the DO legislation was specifically mentioned in the s. 535 amendments. There was no need to include that language permissively. On a contextual interpretation, I find it is already there. To the contrary, if Parliament had intended that these amendments be considered without reference to or ignoring the context provided by other provisions of the Code, then interpretive logic suggests they would have specifically excluded an interpretation that was not intended.

79The course of the legislative path shows that Parliament intended to limit preliminary hearings, and that only those persons who are at maximum or the most serious liberty jeopardy may elect to have a preliminary inquiry. But importantly, Parliament decided to back away from setting the bar at offences carrying a sentence of life imprisonment. Instead, it came down to set the bar at offences punishable by 14 or more years of imprisonment.

80Given that background, and even in the absence of any speeches on the point, I find that it would be unreasonable to adopt a construction that Parliament intended to deny the protection of preliminary inquiries to persons at risk of the maximum possible sentence. Preliminary inquiries provide important and substantive rights to accused persons, rights recognized and articulated by the Court of Appeal of this province in R. v. R.S. While they did intend to restrict the availability of that procedure to the most serious levels of offences, Parliament cannot have intended to deny preliminary hearings to accused persons who are at risk of the maximum liberty jeopardy. It would defy logic and common sense, and be an internally inconsistent, inequitable and absurd outcome if that set of persons did not include accused persons who are at risk of a DO designation and the possibility of an indeterminate sentence, regardless of the sentence provided for in the specific offence charged.

81To conclude my findings on this question, I have focused on two key and core paragraphs in the Pre-trial Judge’s Reasons for Ruling at paras. 31 and 32. In my view, they precisely and succinctly inform the reasons for her decision, a decision I find to have been legally correct and within her jurisdiction, that in the particular circumstances of this case the Respondent is entitled to a Preliminary Hearing. The Pre-trial Judge found as follows:

[31] Parliament had a dual purpose in making the amendments. The goal was to achieve certain efficiencies, but not at any cost. A balance was struck to ensure that those charged with serious offences would still be able to avail themselves of a preliminary inquiry. Parliament expressed that balance by reference to the potential of serious penal consequences: those individuals facing charges punishable by a maximum of fourteen years or more are still entitled to a preliminary inquiry.

[32] In my view, the fact that the Crown has given advance informal notice of its intent to commence the D.O. designation process fundamentally increases Mr. Windebank’s potential penal consequences. He is no longer facing a potential sentence of a maximum of ten years. Instead, he is in jeopardy of an indeterminate sentence.

82Having carefully considered all of the materials and arguments advanced by counsel on this application for judicial review, I find that the Pre-trial Judge correctly determined that in the particular circumstances of this case, the Respondent is entitled to a preliminary hearing and that the matter should proceed as a preliminary inquiry, not a trial. Moreover, I find that the Honourable Justice did not exceed her jurisdiction, either by that determination alone, nor that she misinterpreted and exceeded her jurisdiction in interpreting the meaning of the law as she did in this particular case.

83It follows that the Crown’s application for relief by way of the prerogative writs set out above at para. 2 is dismissed. I am grateful to counsel for their very thorough submissions on an important and novel question of law.

Michael G. Quigley J.

Michael G. Quigley J.

Released: December 30, 2020

COURT FILE NO.: CR-20-00000135-00MO 1 DATE: 2020-12-30

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant

• and –

JASON WINDEBANK Defendant/Respondent

REASONS FOR DECISION

Re: Criminal Code, s. 535

Michael G. Quigley J.

Footnotes

1. 1In its Notice of Application, Crown counsel initially sought an order in the nature of Procedendo requiring the Pre-trial Judge to release reasons for her ruling but abandoned that ground upon the release of the Pre-trial Judge’s reasons on November 20, 2020.
2. 22019 ONCA 906 (“R. v. R.S.”).
3. 32002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 10.
4. 4Interpretation Act, R.S.C. 1985, c. I-21, s. 43.
5. 5R. v. Kelly, 2017 ONCA 920, 138 O.R. (3d) 241, at paras. 30-38; R. v. Hughes, [1990] O.J. No. 3160 (S.C.J.), at para. 12; R. v. Ali, [1980] 1 S.C.R. 221, 108 D.L.R. (3d) 41, at para. 38.
6. 62002 SCC 42, [2002] 2 S.C.R. 559, at para. 30. See also R. v. Clarke, 2014 SCC 28.
7. 7R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.
8. 8R.S.C. 1985, c. I-21.
9. 9Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, at para. 27.
10. 10See the comparative language before and after amendment reprinted side by side as shown in R. v. R.S..
11. 11R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
12. 12Canada, House of Commons, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 300 (24 May 2018), at p. 19630 (Hon. Jody Wilson-Raybould); Canada, Senate, Debates of the Senate (Hansard), 42nd Parl., 1st Sess., Vol. 150, Iss. 264 (19 February 2019), at pp. 7373-76 (Hon. Murray Sinclair).
13. 13See also Corrections Canada statistical overview of DO designations in Canada, by province, historically since 1978 (total of 967). At the end of that 43-year period, there are a total of 826 remaining active indeterminate and determinate offenders of whom 655 are indeterminate and 171 are determinate offenders. By province, the largest populations of designated indeterminate offenders are in Ontario (271), British Columbia (116) and Quebec (92) with a total of 135 for the Prairie Provinces combined, and 41 in the remaining provinces and territories. Public Safety Canada, Corrections and Conditional Release – Statistical Overview 2019 (September 2020), at p. 118.
14. 14See for example, R. v. L. (R.F.), 2011 ONSC 1900.