R. v. Bernard-Carty, 2019 ONCJ 672

ONTARIO COURT OF JUSTICE CITATION: R. v. Bernard-Carty , 2019 ONCJ 672 DATE: 2019 09 27 COURT FILE No.: 19-15001991 Toronto Region – Old City Hall BETWEEN: HER MAJESTY THE QUEEN — AND — ALONZO BERNARD-CARTY Before Justice H.

Pringle Heard on September 20, 2019; Decision rendered orally on September 26, 2019; Written Reasons for Judgment released on September 27, 2019 Gary Valiquette................................................................. counsel for the Crown/applicant James Miglin........................................................ counsel for the Defendant/respondent PRINGLE J.: Overview of the Application [ 1 ] Mr. Bernard-Carty was arrested on an assortment of offences on March 18, 2019. He has requested a preliminary inquiry and elected trial in Superior Court.

His preliminary inquiry is scheduled for October 1, 2019. [ 2 ] When he made his election and scheduled a preliminary inquiry, he did so pursuant to ss. 535 , 536(2) , and 536(4) of the Criminal Code , which at the time read: 535.

If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part. 536(2) If an accused is before a justice charged with an indictable offence, other than an offence listed in

section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under

section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words: You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury.

If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor request one. How do you elect to be tried?

536(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(

b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in

section 469, the justice shall, subject to

section 577, on the request of the accused or prosecutor made at that time or within the period fixed by rules of court made under

section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge. [ 3 ] But Bill C-75, which received Royal Assent on June 1, 2019, fundamentally changed this landscape. On September 19, 2019, the law Mr.

Bernard-Carty relied upon to make his election changed to this: 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.

Election before justice – 14 years or more of imprisonment 535(2) If an accused is before a justice, charged with an indictable offence that is punishable by 14 years or more of imprisonment , other than an offence listed in

section 469, the justice shall, after the information has been read to the accused, put the accused to an election in the following words: You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury.

If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried? Election before justice – other indictable offences 535(2.1) If an accused is before a justice, charged with an indictable offence – other than an offence that is punishable by 14 years or more of imprisonment , an offence listed in

section 469 that is not punishable by 14 years or more of imprisonment or an offence over which a provincial court judge has absolute jurisdiction under

section 553 – the justice shall, after the information has been read to the accused, put the accused to an election in the following words: You have the option to elect to be tried by a provincial court judge without a jury; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. How do you elect to be tried? [ 4 ] If this new legislation applies to his case, Mr.

Bernard-Carty’s election is caught within the parameters of s. 535(2.1), because none of his alleged offences attract a sentence of 14 years or more. The Crown now applies to have the October 1 st preliminary hearing date vacated, and for Mr. Bernard-Carty to be made to re-elect pursuant to the options in s. 535(2.1). [ 5 ] There is no clear legislative guidance on when these new amendments are to apply. That is the contested issue here. The Crown argued the new sections are retrospective, and must apply to all pending cases including Mr. Bernard-Carty’s.

The defence argued these amendments are prospective and cannot impact Mr. Bernard-Carty’s case. [ 6 ] Resolving this dispute begins at the presumption against retrospectivity. Following the structure set out in R. v. Bengy, 2015 ONCA 397 at para. 19 , this court must assess whether the presumption applies to the new amendments, and, if it does, whether it has been rebutted. The presumption against retrospectivity [ 7 ] New law which affects substantive rights has prospective application, absent legislative intent to the contrary. There is good reason for this. As the Supreme Court explained in R. v.

Dineley, 2012 SCC 58 at para. 10 : Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. [ 8 ] Similarly, the Court of Appeal, in R. v.

Bengy , adopted at para. 43 the following policy rationale behind the presumption, as described in Sullivan on the Construction of Statutes , 5 th ed. (Markham: LexisNexis, 2008: Carriere : Perhaps the most fundamental tenant of the rule of law is that those who are governed by the law must have knowledge of its rules before acting; otherwise, any compliance with the law on their

part is purely accidental …. To ensure adequate notice, the rules enacted by the legislature must be published and adequately publicized … Citizens cannot comply with, rely on or take advantage of law unless they know what it is before deciding how they will behave. [ 9 ] Determining whether the presumption against retrospectivity applies to changes in the law involves assessing if that change impacts substantive rights or not. Procedural versus substantive – what’s the difference? [ 10 ] Courts assessing the temporal application of amended law often focused, prior to Dineley , on labeling the law as procedural or substantive. This is no doubt because both common law and ss. 43 and 44 of the

Interpretation Act direct different presumptions,

depending on whether a law is labeled one way or the other. [11] Some insight into the meaning of these two terms is found in the Court of Appeal decision of R. v. Bickford (1989), (ON CA), 51 C.C.C. (3d) 181 (Ont. C.A.), which at pg. 186 adopted the following

definitions of the two [from R. v.Wildman v.

R., (SCC), [1984] 2 S.C.R. 311 at pp. 338-338]: Law is commonly divided into substantive law, which defines rights, duties and liabilities, and adjective law, which defines theprocedure, pleading and proof by which the substantive law in applied in practice.’ The rules of procedure regulate the general conduct of litigation; the object of pleading is to ascertain for the guidance of the parties andthe court the material facts in issue in each particular case; proof is the establishment of such facts by proper legal means to thesatisfaction of the court…The first-mentioned term is, however, often used to include the other two.

Some rules of evidence must nevertheless be excluded for they are not merely procedural, they create rights and not merely expectationsand, as such, are not only adjectival but of a substantive nature. [emphasis added] [12] Much appellate jurisprudence distinguishes the difference between procedural and substantive law on the basis of whether thelaw impacts a “vested” or accrued” right. Again, this has its roots in both common law and s. 43 of the

Interpretation Act. As Robins J.A.said in Bickford at p. 185, “no person can be said to have a vested right in procedure or a right in the manner of proof that may be usedagainst him”. The same cannot be said for substantive law. [13] Some examples follow. In Bickford, removing the C.E.A. requirement for corroboration in certain cases was wholly proceduralin nature. At pp. 185 and 186, the Court explained why: Corroboration is a procedural or evidentiary matter going only to proof of the offence.

An accused has no right to have the charge againsthim proved by corroborated evidence or to require corroboration as a precondition to his conviction. His right is to be tried according tolaw, that is, in accordance with the evidentiary rules and procedural requirements in effect at the time of trial….

In short, corroboration is a matter of evidence in which an accused can have no vested or accrued right that could not be affectedretrospectively. [14] In considering the latter sentence, the question of substantive versus procedural law is most simply answered if there is a vestedor accrued right that could be affected if the law was applied retrospectively. If there is such a vested right, then the presumptionagainst retrospectivity is triggered.

Even a procedural law, if it affects a vested right, is not “purely” procedural and must, therefore, beapplied prospectively: Bickford, at pg. 5. [15] In Bickford, the respondent had no vested right to have criminal allegations from a child corroborated in the evidentiary record.Similarly, in Wildman, the accused had no vested right in the non-compellability of his spouse as a witness. Evidentiary routes availablein a case may be changed, and changed to the accused’s disadvantage at that, without impacting any vested right: CIBC v.

Deloitte &Touche, 2014 ONCA 89 at para. 28. [16] Jurisprudence suggests that evidentiary changes are generally procedural in nature. But this is not a hard and fast rule. Evenevidentiary changes which “create rights and not merely expectations” will fall, instead, into the substantive category: Wildman at p. 338.In analyzing whether new law is to be applied prospectively or retrospectively, the focus should be on the presence or absence of vestedrights, as per R. v.

Dineley at para. 11: …the key task in determining the temporal application of the Amendments … lies not in the labelling the provisions ‘procedural orsubstantive’, but in discerning whether they affect substantive rights. What is a substantive right? [17] While legislation that affects constitutional rights is “necessarily substantive” as per Dineley at para. 21, a right need not beconstitutionally protected in order to be substantive. Substantive rights are not defined restrictively. An example from R. v. Chaudhary(1999), (ON SC), 139 C.C.C. (3d) 547 (Ont.

S.C.J.), is found at para. 11 where LeSage J. determined legislativechanges to ‘faint hope’ parole hearings were retrospective because: This legislation does not change the applicant’s right, that is the right to apply to have her period of parole ineligibility reduced. It doesnot lengthen her sentence. It does not increase her period of ineligibility. What it does do is simply change the manner in which she isrequired to establish the right to seek earlier parole. The applicant has not had her right to parole nor even her right to apply for parolechanged by the amendments.

Her pre-existing right was simply to ask how she achieves the right to apply and that, in my opinion, isprocedural, not substantive. The new legislation, therefore, is retrospective… [18] LeSage J., in using the term “right”, did not restrict it to the concept of a constitutionally-protected right. Applying for alessening of parole eligibility, the right to apply for parole, and the right to seek earlier parole were substantive rights that wentunchanged by new law.

Only the process underlying the ability to effect those rights was. [19] In Dineley, the existence of a defence, that being the Carter defence, was linked to the presence of substantive rights. At para.15, the Court adopted Laforest J. in Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 248 at pp. 265-266, where he said: Normally, rules of procedure do not affect the content or existence of an action or defence (or right, obligation, or whatever else is the

subject of the legislation), but only the manner of its enforcement or use …’ … The fact that new legislation has an effect on the contentor existence of a defence, as opposed to affecting only the manner in which it is presented, is an indication that substantive rights areaffected. [emphasis added] Thus, as Deschamps J. held at para. 18, the “right to rely on a defence is a substantive right and that new legislation has to be interpretedso as not to deprive the accused of a defence that would have been open to him or her at the time of the impugned act”.

Amendmentswhich removed the Carter defence, therefore, were to be applied prospectively. [20] Similarly, at para. 50 of Bengy, the Court of Appeal held new self-defence provisions affected “the content and existence of[that] defence, as opposed to affecting only the manner in which it is presented”: para. 50. Elements of the defence, once a prerequisite tothe air of reality threshold, were now to be left for the jury as part of the ultimate issue. Mandatory components of the prior self-defenceprovisions became discretionary.

The nature of such changes led the Court to conclude the amendments were substantive and thereforeprospective. When does a substantive right vest? [21] As stated previously, “purely procedural” legislative changes can apply retrospectively because no person has a vested right inprocedure. Only substantive rights are said to vest or accrue. Prospective application thus avoids legislative interference with a vestedright. The Supreme Court in R. v.

Puskas, (SCC), [1998] 1 S.C.R. 1207, at para. 14, explained when a right can be saidto have vested: [There] is a common sense understanding of what it means to ‘acquire’ a right or have it ‘accrue’ to you. A right can only be said to havebeen ‘acquired’ when the right-holder can actually exercise it. The term ‘accrue’ is simply a passive way of stating the same concept…aright cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled. [emphasis added] [22] An example of right not yet vested or accrued is found in Fabrikant v.

A.G. (Canada), 2014 QCCA 240. Another ‘faint hope’challenge, the court found that even if substantive rights were engaged, these rights had not vested in the appellant’s case before the lawchanged. More particularly, the appellant would not have acquired the right to the earlier, more beneficial, procedure until both 15 post-conviction years had passed and he had applied for a hearing. [23] The result in Puskas was, similarly, that a right engaged had not accrued in the cases at bar. Previously, the Code had provided,in certain circumstances, for an appeal to the Supreme Court without first obtaining leave.

This was repealed,

an act which clearlyimpacted the substantive right to appeal. But the Court held the conditions precedent to appealing absent leave – being charged with anindictable offence, being acquitted of that offence, having that acquittal overturned on appeal followed by the order of a new trial – hadnot been satisfied and thus the right had not accrued. The appellants, therefore, had to seek leave. If the presumption applies, is it rebutted? [24] Where the presumption against retrospectivity applies to new law, the question then becomes whether the evidence has rebuttedit. This is not a low threshold.

There must be evidence of “clear legislative intent that [the statute] is to apply retrospectively”: Bengy atpara. 60 [emphasis added]. [25] From my

interpretation of Bengy, clear legislative intent cannot be inferred from the practical impact of either prospective orretrospective application.

At para. 66, the Court held: Absent clear legislative intent, courts have no residual discretion to rewrite the law to accord with a subjective view of optimal fairness. [26] In other words, as tempting as it may be to infer Parliamentary intent from the practical result that accords best with Bill C-75’sgoals of trial expediency and wise time management, I am not permitted to do so. [27] In Bengy, after finding the amended self-defence sections impacted substantive rights and the presumption applied, the Courtconsidered whether it had been rebutted.

But there was no clear, explicit evidence that Parliament intended retrospective application. Theonly rational conclusion, therefore, was that Parliament did not intend retrospective application because: 67 …the presumption against retrospectivity is a long-standing doctrine. Parliament can be assumed to understand the impact of notexplicitly dealing with the issue of retrospectivity in the legislation it passes. As there is nothing in the Citizen’s Arrest and Self-defenceAct suggesting a contrary intention, the presumption has not been rebutted and therefore applies.

Application to the case at bar [28] With the above principles and jurisprudence as guidance, I have drawn the following conclusions. [29] The Crown is correct that there is no constitutional right to a preliminary inquiry. The Crown is correct that there is no absoluteright to a preliminary inquiry, given the state power to prefer indictments. I agree the function of a preliminary inquiry is a chargescreening mechanism, and that it is also available at the directed verdict stage.

The ancillary discovery function of a preliminary inquiryis, as per the views of Parliament, largely obviated by the Stinchcombe right to full disclosure. [30] But it is a red herring to rely on these arguments as proof preliminary hearings are procedural in nature. The underlyingpurpose of a preliminary inquiry is to serve as a protection against wrongful convictions based on insufficient evidence: R. v. Hynes,2001 SCC 82 , [2001] 3 S.C.R. 623 at para. 30. 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”: R. v. Puskas at para. 6.[1] [31] Parliament may be right that these protections are duplicated post-Stinchcombe. But duplication cannot convert what waspreviously a substantive right into a procedural one. The Court in Dineley places focus on the nature of the rights impacted. Not whetherthe rights impacted can be found somewhere else.

Not whether the rights 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 thepossibility of eliminating preliminary inquiries from the criminal justice process, today they remain an integral part thereof”.

I cannotreconcile 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. [33] In addition, the amendments fundamentally change a defendant’s election rights. This retrospectivity application must, thereforealso focus on the nature of the right to elect. After all, the Crown seeks to nullify the jurisdiction vested in this court and vitiate Mr.Bernard-Carty’s election.

Looking at the nature of his right to elect to have a preliminary inquiry, it was not merely an ‘expectation’, toborrow from Bickford and Wildman. It was a fundamental right conferred by law. [34] I use the adjective “fundamental” deliberately, because this is how the Court of Appeal described the right to elect in R. v. Stark,2017 ONCA 148. Stark considered counsel’s failure to advise his client about election rights. The case had been screened and scheduledfor provincial court trial. On the morning of trial, the Crown unexpectedly elected to proceed by indictment.

Defence counsel thenelected provincial court trial, without properly explaining the client’s right to elect. The Court held: 20 If an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, thenthe accused has effectively been denied his right to choose his mode of trial under s. 536 of the Criminal Code. The miscarriage ofjustice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establishfurther prejudice.

What the accused might or might not have done had he been aware of his options is not relevant. * * * 30 The appellant might have been dimly aware of the existence of preliminary inquiries from his wife’s internet searches, but there is noevidence that the level of his conversancy was sufficient to have made up for trial counsel’s manifest failures.

Trial counsel admittedgiving the appellant no cogent advice about his options concerning the mode of trial, nor did he take steps to get the appellant the timehe needed to consider his election. 31 In my view, these facts are sufficient to fatally undermine the fairness of the trial. The appellant need not establish further prejudiceby attempting to prove his assertion that he would have elected a Superior Court trial preceded by a preliminary inquiry.

It is not thiscourt’s business to override an accused person’s fundamental right to make the election by predicting retrospectively that his truechoice would have been different. [emphasis added] [35] In addition, where an accused has the right of an election but is not put to his election, all proceedings that follow lackjurisdiction: R. v. Shia, 2015 ONCA 190 at para. 27; R. v. Varcoe, supra at paras. 15 and 22; R. v. Mitchell (1997), (ON CA), 121 C.C.C. (3d) 139 (Ont. C.A.) at paras. 28-30. Nullifying jurisdiction, vested in this court once an election was made, mustimpact substantive rights in this sense too.

Here, I rely on the Supreme Court, in Royal Bank v. Concrete Column Clamps

(1961) Ltd., (SCC), [1971] S.C.R. 1038 at p. 1040: All the authorities we have been referred to in support of this contention merely tend to show that the principle that statutes do notoperate retrospectively is not applicable to rules of procedure.

However, it is well established that jurisdiction is not a proceduralmatter, and no reason has been shown for holding that it becomes a procedural matter when a transfer of power, rather than anincrease or decrease, is involved. [emphasis added] At pp. 1041-1042, the Court added: I need only refer to the firmly established principle, in terms of which the case has been presented, that in the absence of an explicitprovision to the contrary, retrospective operation must not be given to legislation conferring a new jurisdiction on a court of appeal. [36] I see no reason why law removing jurisdiction, rooted in the provincial court by virtue of an election, would be approached anydifferently.

Jurisdiction of appellate courts are rooted in statute. Jurisdiction of the Ontario Court of Justice is rooted in statute. Withgreat respect to those who think otherwise, I do not read Royal Bank as distinguishable in light of the Court of Appeal’s decision in R. v.Hafeez (1996), (ON CA), 27 O.R. (3d) 799 (C.A.). [37] However, I do not believe the two are necessarily inconsistent.

In Hafeez, the Court found as fact that the change to the Crown’selection options, at the specific time it occurred during the appellant’s case, could not possibly affect the appellant’s substantive rightsbecause none had vested in his specific situation: The accused retains the constitutional right to a jury trial where the Crown proceeds by way of indictment. While the accused had theconstitutional ‘right’ to a jury trial at the time the offence was allegedly committed, this was only because the offence was punishable byfive years or more. Once the prosecution elected to proceed by

summary conviction the appellant was no longer exposed to thispunishment. The appellant received the benefit of the lesser maximum punishment because the prosecution was able to elect to proceedby

summary conviction. As counsel for the respondent pointed out, at the time the offence was committed the appellant had nosubstantive or vested right to have the charge heard and determined according to any particular procedure.

[emphasis added] [38] Hafeez, as I read it, does not say that all law impacting upon jurisdiction and/or elections are never substantive, or are alwaysprocedural. It did not question, analyze, or overturn the principle set out in Royal Bank at p. 1042. It was a decision on the facts of thatcase, in my humble opinion, and nothing more. Again, as the Supreme Court said in Puskas, “[a] right can only be said to have been‘acquired’ when the right-holder can actually exercise it”. [39] This is a fundamental factual difference between Hafeez and the case at bar. On September 19, 2019, Mr.

Bernard-Carty didhave a “substantive or vested right to have the charge heard and determined according to [a] particular procedure”. He had exercised hisstatutory right to make an election. When he did, this court was mandated to inquire into the charges, pursuant to s. 536(4). Allconditions precedent were satisfied. His rights had vested. The new legislation, if applied to his case, will affect substantive, vestedrights. [40] The presumption against retrospective application applies.

The Court of Appeal for Ontario in Bengy at para. 60 stated thispresumption can only be overcome by clear evidence of legislative intent to the contrary. There is no such evidence here. Thepresumption against retrospectivity has not been rebutted. [41] It follows that I find these legislative amendments do not have retrospective application. The Crown’s application must bedismissed. [42] I am most grateful for the compelling written and oral submissions presented by both Mr. Miglin and Mr. Valiquette.

Bothcounsel invested immense work into this application, during challenging periods in their respective schedules. [43] I am also grateful for the earlier decisions of my judicial colleagues on this issue. While we may see this issue similarly ordifferently, there can be no dispute that their wisdom, insight and analysis have made my task an easier one. Released: September 27, 2019 Signed: Justice H. Pringle [1] See also Royal Bank of Canada v. Concrete Column Clamps

(1961) Ltd., (SCC), [1971] S.C.R. 1038 at p. 1040.