R. v. Downey, 2019 ONCJ 669

CITATION: R. v. Downey , 2019 ONCJ 669 DATE: September 19, 2019 Information No. 3111-998-19-1624-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. CORTEZ DOWNEY R U L I N G O N A P P L I C A T I O N BEFORE THE HONOURABLE JUSTICE R.D. BOIVIN on September 19, 2019, at BRAMPTON, Ontario The Court has made an order under s. 539 of the Criminal Code prohibiting publication of the evidence taken at the preliminary inquiry in this case.

APPEARANCES : M. Thomaidis Counsel for the Crown A. Goldkind Counsel for Cortez Downey THURSDAY, SEPTEMBER 19, 2019 R U L I N G O N A P P L I C A T I O N BOIVIN, J. (Orally): I am prepared to give my ruling on the Crown application as to the retrospectivity (ph) of

Section 535 of the Criminal Code , as amended by Bill C-75. Effective today, September 19, 2019,

Section 535 of the Criminal Code has been amended. It eliminates the option of having a preliminary inquiry when the maximum punishment is under 14 years of imprisonment on any count. In the matter before me, the accused has elected to be tried by judge and jury, and a preliminary inquiry began yesterday, to wit: September 18, 2019. This preliminary inquiry had been set, according to my reading of the information, June the 5th, 2019, at which time it was scheduled for three days, to wit: from September 18th to September 20th, 2019. The accused is in custody on the charges, as I understand it, that are before me. The Crown, at the outset, withdrew the offence under

Section 244 of the Criminal Code , which is punishable by 14 years or more, leaving before me several offences, all of which bear a maximum sentence of under 14 years of imprisonment. I note, and to be fair to the Crown, that this withdrawal of the

Section 244 charge had been conveyed to defence counsel some time before today and it was not an "ambush," as it was put by the Crown. The Crown argues that as of today I no longer have the jurisdiction, maintaining that the legislation was retroactive and removes my capacity to oversee the preliminary inquiry's completion. I have decided to render my decision quickly and orally to avoid further delay that will be occasioned if I reserve and provide more elaborate written reasons. In my view, one of the primary objectives of the new provisions that have been introduced is to address and reduce delay.

I agree with my colleague, Justice Marion's ruling in R. v. R.S. , 2019 ONCJ 629 , rendered September 11, 2011. The intention of Parliament can be gleaned from the statement of the sponsor of Bill C-75, where delay in the criminal justice system was one of the reasons stated for the reform, and that reference is made to delays in criminal trials, negatively impacting

Section 11(

b) Charter rights. It also refers to the re- victimization of victims and safety threats as factors going into the decision to make the amendments in question. The statement of the sponsor of Bill C-75 refers to the Supreme Court of Canada decision of Jordan , known as the Jordan decision, and the Supreme Court of Canada's invitation therein to reevaluate the value of preliminary inquiries in light of the expanded disclosure obligations on the Crown.

The principle purpose of a preliminary inquiry is to protect the accused from needless expense and exposure, and in some cases detention, where the evidence justifying the charges is not present. This is also known as the screening function of the preliminary inquiry. It is also recognized that there is a collateral, secondary function to the preliminary inquiry, and that is that of discovery.

Section 535 narrows the availability of preliminary inquiries, and therefore the jurisdiction of the court, as it affects the court's power to decide a case. Legislation related to jurisdiction is substantive in nature and, in my view, does not apply retrospectively. Even if I assumed, as the Crown contends in its application, that

Section 535 is procedural in nature, I find that Parliament could not have intended the consequences that flow from applying the legislation retroactively. First of all, if it had so desired a retroactive application, or a retrospective application, it could have provided transitional provisions

permitting the overriding of the accused's request for a preliminary inquiry and directed the accused to stand trial. It did not do so. It could have, if that is what it had intended. Secondly, one of the primary objectives of

Section 535 is to reduce delay and protect the accused's 11(

b) Charter rights. The retroactive application of this legislation, in many ways, in my view, will likely cause additional delay in transitional cases, such as the one before me. The pretrial hearings and estimates of court time were based on preliminary inquiry time considerations, which are typically less than trial requirements. Using the existing preliminary inquiry dates based on inadequate time estimates will lead to continuations and further delay. This is with respect to other cases. Obviously, in the case before me, it would be inherent.

In the case at bar, the preliminary inquiry was scheduled June 5th, 2019, some three and a half months ago. The accused is in custody. In my view, Parliament could not have intended that a preliminary inquiry would commence with a schedule, which went past September 19th, only to be aborted mid-stream. 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 have been 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 proceedings knowing many would become a nullity while passing legislation to improve efficiency in the criminal court justice system, and to reduce delay. Again, even if I assume the legislation is procedural in nature, the principle of fairness would bear upon whether it is to be retrospective in nature. As stated in R. v.

R.S. , supra , "One of the principles underlying transitional law is fairness." Justice Marion quotes from Ruth Sullivan on the Construction of Statutes, fifth edition (Markham: LexisNexis, 2008, 25;9), where it states, "It is unfair to establish rules, invite people to rely on them, then change them mid-stream especially if the change results in negative consequences". This is a side note in response to the Crown's submission that the decision of R.S. , supra, is not a binding authority upon me. I recognize that that is the case.

However, I am relying on it as I share some of the reasons or reasoning therein, and I find it of persuasive value in regards to those sections that I am quoting and will quote further on. The accused, by virtue of the rules he relied upon, requested a preliminary inquiry, as was his right at the time. The same was scheduled, and it had even begun based on reliance on the state of the law at the time, and in so doing he designed the conduct of his defence accordingly.

If I allow the Crown's application, there will be a partial and incomplete record of the preliminary inquiry, and the purpose of this preliminary inquiry will have been thwarted and delay and waste is foreseeable as a result. The purpose of this already commenced preliminary inquiry, which the accused believed he was entitled to, was to obtain a ruling to whether the evidence is sufficient to justify a trial. In my view, if the preliminary is halted, it would be unfair, as it will obviously cause the accused to lose his right to have a judicial determination of the sufficiency of the evidence.

Further, the incomplete preliminary inquiry will have likely caused a delay in setting a trial date, in that it could have been scheduled significantly earlier. In short, the accused is in custody. He waited in custody for his preliminary inquiry, which he chose, and in my view, he would be clearly prejudiced by eliminating or suspending the preliminary inquiry he anticipated having, in reliance upon the law at the time. Further, I adapt the reasons of Justice Marion as it relates to

Section 44(

d) and 43(

b) and (

c) of the

Interpretation Act , and I refer to paragraphs 39 and 40 in his decision. I find that

Section 43 of the

Interpretation Act preserves substantive rights that were accrued prior to the enactment. And as such, the Act permits these commenced proceedings to be continued as if there had been no repeal. Hence, Section 536(4) survives the amendments of

Section 535 in the transitional case at bar. Further,

Section 44(

d) of the

Interpretation Act applies, in that

Section 535 cannot be adapted to the proceedings commenced herein, and therefore, this court is required to conduct the proceedings under the prior legislation. Again I refer to R.S. , supra, paragraphs 39 and 40 , and as well, paragraph 81, subparagraph 3 and 4. For all of the above reasons, I deny the application.

FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Kimberly Griffin, certify that this document is a true and accurate transcript of the recording of Regina v. Cortez Downey in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording(

s) No. 3111_303_20190919_093405__30_BOIVINR, which has been certified in Form 1. Electronic copy _______________ _________________________________ Date Signature of an Authorized Person Kimberly Griffin ACT ID: 4259281941 1 -855-443-2748 kgriffintranscripts@vptranscription.com