R. v. J.G., 2019 ONCJ 703

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. J.G. , 2019 ONCJ 703 COURT FILE No.: 190283 DATE: October 2, 2019 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — J.G. Before Justice J. O’Brien Heard on September 18, 2019 Reasons for Judgment released on October 2, 2019 Roberto Corbella..................................................................................................... for the Crown Kathleen Kealey............................................................................................. for the accused J.G. O’BRIEN, J.: Background and Facts

[ 1 ] J.G. is charged with assault x 6, sexual assault x 2, making a visual recording, and possessing a firearm while being prohibited. These offences are alleged to have occurred in 2012 and, therefore, the Provincial Crown was required to proceed by Indictment. On August 12, 2019, J.G., through counsel, advised this Court that he elected to be tried by a Judge and Jury in the Superior Court of Justice and requested a preliminary inquiry.

The matter was judicially pre-tried and scheduled to be heard on October 29, 2019 as a preliminary hearing. [ 2 ] On September 19, 2019 the amendments in Bill C-75 to sections 535 and 536 of the Criminal Code came into force. The purpose of these amendments is to limit the availability of preliminary hearings to cases in which an accused person faces a maximum penalty of 14 years or more. [ 3 ] The Provincial Crown takes the position that the amendments should be applied retrospectively (i.e. immediately to all proceedings regardless of whether the charges were laid prior to the amendments).

The maximum penalty J.G. faces is not fourteen years or more. If these amendments are found to apply retrospectively, J.G. will not have a preliminary hearing. [ 4 ] In anticipation of the amendments coming into force, the Crown brought this application seeking to vacate the preliminary hearing date and to have J.G. remanded to the Superior Court of Justice unless he re-elects to be tried by this Court. [ 5 ] This Application was argued on September 18, 2019. As it happens, J.G.’s election had not been recorded on the Information on August 12, 2019.

Neither party suggested that J.G. should not be formally put to his election in accordance with

section 536 as it then read. This was done and J.G. elected to be tried in the Superior Court of Justice and requested a preliminary hearing. The matter then proceeded to argument. Analysis [ 6 ] The issue I must decide on this Application is whether the amendments to sections 535 and 536 apply only to charges that arise after the amendments came into force or have immediate affect and govern pending cases. [ 7 ] Bill C-75 does not contain transitional provisions addressing this question. In other words, Parliament did not expressly state its intention regarding the temporal effect of the amendments.

To ascertain whether Parliament intended to restrict preliminary inquiries to accused persons facing 14 years or more immediately, I must impute its intent by interpreting the statutory provisions. A.

Statutory Provisions – before and after amendment [ 8 ] The relevant portions of both 535 and 536 as they read prior to September 19, 2019 are as follows: Inquiry by justice 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.

Election before Justice in certain cases 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 requests one. How do you elect to be tried? Request for preliminary inquiry

(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 the 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. [ 9 ] On September 19, 2019 the new provisions came into force. I have set them out below with the "new" portions underlined for ease of reference.

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 in certain cases 536

(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 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 ajury 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

(2.1) If an accused is before a justice, charged with an indictable offence – other than an offence that is punishable by14 years or more of imprisonment, an offence listed in

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

section 553 –, the justice shall, after the information has been read to the accused, put the accused to anelection in the following words: You have the option to elect to be tried by a provincial court judge without a jury; or you mav 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 triedby a court composed of a judge and jury. How do you elect to be tried? Request for preliminary inquiry

(4) If an accused referred to in subsection (2) 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)(

a) to have elected to be tried by a court composed of a judge and Jury, or if an accused is charged with an offence listed in

section 469 that is punishable by 14 years or more of imprisonment, the justice shall, subject to

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

section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge. Endorsement on the information — accused referred to in subsection (2)

(4.1) If an accused referred to in subsection (2) elects to be tried by a judge without a jury or by a court composed of a judge and jury ordoes not elect when put to the election or is deemed under paragraph 565(1)(

a) to have elected to be tried by a court composed of a judgeand jury, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing thenature of the election or deemed election of the accused or if the accused did not elect, as the case may be. B. Statutory

Interpretation and the Rules of Temporal Application [10] The common law rules of statutory

interpretation as they relate to temporal application of repealed, amended or new legislationare long standing. In R. v. Dineley, the Supreme Court of Canada summarized these rules as follows: There are a number of rules of

interpretation that can be helpful in identifying the situations to which new legislation applies…Morespecifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. Newlegislation that affects substantive rights will be presumed to have prospective effect unless it is possible to discern a clear legislativeintent that is to apply retrospectively (Angus v. Sun Alliance Insurance Co., (SCC), [1988] 2 S.C.R. 256, at pp. 266-27;Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] S.C.R. 248, at para 57; Wildman v.

The Queen, (SCC), [1984] 2 S.C.R. 311, at para 331-32). However, new procedural legislation designed to govern only the manner in which rightsare asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pendingand future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331). Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect

substantive rights. If they do, they are not purely procedural and do not apply immediately (P.-A. Cote, in collaboration with S. Beaulac and M. Devinant, The

Interpretation of Legislation in Canada (4 th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights. (emphasis added) [1] [ 11 ] The

Interpretation Act, R.S.C. , 1985, c. I-21 , provides statutory rules regarding when and how a change in legislation is to govern pending cases. Sections 43 and 44 largely codify the common law presumption against and for retrospectivity that apply to substantive and procedural legislative changes, respectively. In Dineley , the minority judgment summarized the affect of the statutory provisions. The significance of the distinction between substantive and procedural provisions for statutory

interpretation is reflected in the

Interpretation Act , R.S.C. 1985, c. I-21 . On the one hand, proceedings commenced under and now-repealed provision are to continue under the procedures set out in the new provisions. On the other, the repeal of an enactment does not affect any right acquired under it. The first is s. 44. It provides that where a former enactment is repealed and a new enactment is substituted for it, proceedings taken under the former enactment are to be continued in conformity with the new enactment.

It further provides that “the procedure established by the new enactment shall be followed as far as it can be adapted thereto . . . in the enforcement of rights, existing or accruing under the former enactment, and . . . in a proceeding in relation to matters that have happened before the repeal”: s. 44(

c) and ( d )(ii) and (iii). As Professor Sullivan puts it, “[t]hese provisions call for the immediate application of new procedural law to all actions, including those that were pending when the legislation came into force”: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 698. The second provision is s. 43 . It provides that the repeal of an enactment does not affect any “right, privilege, obligation or liability acquired, accrued, accruing or incurred” under it: s. 43 ( c ).

As Professor Sullivan puts it, the repeal does not destroy any right or liability arising under the repealed enactment, i.e. “the repealed law continues to apply to pre-repeal facts for most purposes as if it were still good law” (p. 708).

Professor Sullivan sums up the cumulative effect of these two provisions as follows: “. . . the application of new substantive law is delayed by the survival of repealed law [but] the application of new procedural law is not” (p. 698). [2] [ 12 ] In Dineley , the Supreme Court identified the “key task” in determining the temporal application of amendments is to discern whether they affect substantive rights or are purely procedural. Unfortunately, this task is often not an simple. Jurists often disagree on whether amendments affect vested or substantive rights or are purely procedural.

The decision in Dineley is a good example of this. In that case the Court split 4:3 on whether the legislation at issue was purely procedural or if it affected a substantive right. The majority and dissent agreed on the applicable rules of statutory

interpretation and that courts should employ a functional analysis rather than labelling the legislation as procedural or substantive based strictly on its form. [3] However, the Court could not agree on the outcome of applying the same analytical framework to the same amendment. [4] C: Are the Amendments Purely Procedural?

Position of the Parties [ 13 ] It is the Provincial Crown’s position that a preliminary inquiry is a purely statutory procedure and that an Ontario Court of Justice’s jurisdiction in respect of a preliminary inquiry is confined to that expressly conferred in the Criminal Code and emanating by necessary implication therefrom. They argue that as the amendments at issue affect only procedure the presumption of retrospectivity should apply. As of September 19, 2019, only accused persons facing a penalty of fourteen years or more can request a preliminary inquiry.

Further, this Court will no longer have jurisdiction to conduct a preliminary inquiry in any indictable matter carrying a maximum penalty of less than fourteen years. This loss of jurisdiction applies to cases in which the accused person has requested a preliminary inquiry, to cases in which preliminary hearing dates are scheduled and to cases in which preliminary inquiries are underway.

The Provincial Crown contends that J.G.’s election to be tried in the Superior Court with a preliminary hearing is a nullity and that he should be remanded to the Superior Court unless he re-elects trial in this Court. [ 14 ] The respondent argues that a preliminary inquiry is a substantive right and the presumption against retrospectivity applies. Preliminary inquiries perform an important screening function in that an accused person may be discharged thus saving him from the indignity and cost of a public trial.

As well, a preliminary inquiry serves a discovery function and can significantly affect an accused person’s ability to mount a defence at trial. The affect of sections 535 and 536 is that once an accused person requests a preliminary inquiry,

section 536 provides that the Court must hold a preliminary hearing subject only to the Attorney General preferring a direct indictment. Once J.G. made his election to be tried in the Superior Court and requested a preliminary inquiry, his right to a preliminary inquiry vested and the Court is obligated to conduct one. Procedural vs Substantive [ 15 ] In determining whether the presumption of retrospectivity applies, as the Crown suggests, I must determine whether the amendments are substantive, purely procedural, or whether they are procedural but affect substantive rights.

[ 16 ] In R. v. Wildman , the Supreme Court of Canada cited the following definition of substantive and procedural law: Law is commonly divided into substantive law, which defines rights, duties and liabilities; and adjective law, which defines the procedure, pleading and proof by which the substantive law is 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 and the court the material facts in issue in each particular case; proof is the establishment of such facts by proper legal means to the satisfaction of the court, and in this sense includes disproof. The first-mentioned term is, however, often used to include the other two.

Phipson on Evidence , 13th ed., 1982, at p. 1 [5] [ 17 ] Procedural law governs the conduction of actions – the methods by which facts are proven and legal consequences are established. [6] [ 18 ] It is my view that the amendments to sections 353 and 356 are procedural. A preliminary inquiry is a statutorily created hearing that may occur during the process of certain criminal offences proceeding to trial.

Sections 535 and 536 establish when an accused person may request a preliminary hearing and confer jurisdiction to the Ontario Court of Justice to conduct the hearing. [ 19 ] I further find that the amendments are purely procedural. The affect of the amendment is that an accused person can no longer have a preliminary hearing unless he faces a maximum penalty of at least fourteen years. Proceeding to trial without a preliminary hearing does not affect a substantive or vested right of an accused person. [ 20 ] Access to a preliminary hearing is not a substantive right.

The legal affect of a transaction will not be altered. In the criminal context this results if under the amended provisions conduct that was lawful is now unlawful. [7] The amendments to

section 535 and 536 do not alter the essential elements of the offences with which an accused person is charged nor any defences he might raise. A preliminary hearing has a limited discovery function.

It provides an accused person the opportunity to discover some evidence that may assist him in either challenging whether the Crown has proved the elements of the offence or in presenting a defence to the offence, but it does not alter the existence of a defence. [ 21 ] There is no constitutional right to a preliminary hearing. [8] The primary purpose of a preliminary hearing is to determine whether the prosecution has sufficient evidence to take the accused to trial. [9] It is not the forum in which an accused person’s criminal liability is determined. [ 22 ] An accused person does not have a “vested right” to a preliminary inquiry, regardless of whether they requested one prior to the amendments.

At most, the accused person had a right to a mode of proceeding prescribed at that time. No person has a vested right in any course of procedure , but only the right of prosecution or defence in the manner prescribed for the time being. An accused person has the “right” to be tried according to the law. The law prescribes certain rules and practices in respect of the admission of evidence and the Judge’s charge to the jury.

These are procedural requirements that are changed from time to time. [10] [ 23 ] The types of “vested rights” at issue when determining whether the presumption of retrospectivity applies arise from the provisions of the substantive laws as they read prior to the amendments.

Examples of rights that the Supreme Court of Canada have found to be “vested rights” in this context are: • A right to be exempt from paying interest on student loans for a period of time, [11] • A right arising under a lawful lease, [12] • A right to an Income Tax deduction. [13] [ 24 ] The fact that the amendments have the affect of restricting this Court’s jurisdiction to conduct preliminary inquiries does not affect my conclusion that the amendments are purely procedural. In Royal Bank of Canada v.

Concrete Column Clamps the Supreme Court held that jurisdiction is not a matter of procedure and therefore “retrospective operation must not be given to legislation conferring

a new jurisdiction on a court of appeal”. [14] I find that the Supreme Court was speaking specifically about the jurisdiction of courts of appeal and not jurisdiction of courts over procedural matters such as this Court’s jurisdiction to hear a preliminary hearing. The jurisprudence from the Supreme Court has long made clear that the “right of appeal” is a substantive right. [15] By definition, an appellate court’s jurisdiction concerns appeals, the right to which is a substantive right. [ 25 ] Support for this distinction is found by analogy in the Supreme Court’s decision in Application under s. 83.28 of the Criminal Code . The newly enacted

section 83.28 provided for a “judicial investigative hearing” in terrorism cases. The majority concluded that the provision was purely procedural, notwithstanding that its affect was to confer jurisdiction over a procedure that had not previously existed . [16] D. Does the Presumption of Retrospectivity Apply [ 26 ] Having concluded that the amendments are purely procedural, I must determine whether the presumption of retrospectivity applies. The presumption is simply that. It does not mandate a result. The overall question is one of Parliamentary intent.

In deciding that the presumption was rebutted based on the impact that a retrospective application of a purely procedural amendment would have had in pending cases in the case of R. v. Ali , the Supreme Court stated: It is not in dispute that the rule as to the retrospective operation of procedural statutes is not absolute; it is only a guide that is intended to assist in the determination of the true intent of Parliament, which is the main objective of statutory construction.

This presumption in favour of the retrospective operation of procedural enactments must therefore yield to the contrary intent of Parliament; a procedural statute shall not be construed retrospectively when Parliament has expressed its intention to the contrary. [17] [ 27 ] The presumption of retrospectivity is a manifestation arising out of the following overarching principle of statutory

interpretation. The courts ascertain legislative intent by reading legislative language in context and in its grammatical and ordinary sense, harmoniously with the scheme and purpose of the legislation at issue: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 , [2011] 2 S.C.R. 306 , at para. 27 . When the legislator’s words permit it, the courts will take the legislature not to have intended to work injustice or unfairness. [18] [ 28 ]

Section 44 of the

Interpretation Act also limits the general rule of immediate application of procedural amendments. It reads in part: 44 Where an enactment, in this

section called the “former enactment”, is repealed and another enactment, in this

section called the “new enactment”, is substituted therefor, (

c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment; (

d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto (iii) in a proceeding in relation to matters that have happened before the repeal; [ 29 ] This provision is a modification of the common law rule that a procedural amendment will be applied immediately to pending matters except where to do so is not feasible . [19] In Ali , the Supreme Court described the limitation to the presumption of retrospectivity for procedural amendments provided for in

section 44 (then

section 36). This statutory rule of construction is a modification of the common law rule . It imposes restrictions on what would otherwise be the retrospective operation, in the absence of any contrary intent, of procedural statutes. It prescribes that the retrospective operation of procedural enactments shall not be absolute, but will take place only to the extent that the new rules of procedure may be adapted to the proceedings taken in respect of the matter that has occurred before the new rules came into effect; this clearly means that the new procedure shall not apply retrospectively if or to the extent that it cannot be adapted. [20] Findings

[ 30 ] It is my view that I must consider the possible impact of retrospective application to all cases in which the person is charged with an indictable offence with a maximum penalty of less than 14 years (hereinafter referred to as “affected cases”) across Ontario. I am not confined to the facts of the case before me. The task is to impute Parliament’s intention regarding the amendments’ temporal application and to determine to what extent the amendments can be adapted to the affected cases. I cannot do that by confining the exercise to the facts of J.G.’s case alone. [ 31 ] Although sections 535 and 536 operate together they have distinct purposes.

Section 536 sets out the requirements and procedure for an accused person to be put to his election.

Section 535 provides the procedure after an accused person has elected to be tried in Superior Court and requested a preliminary hearing. I will consider them separately in this final step of my analysis. [ 32 ] If

section 536 were applied immediately, all accused who have not elected would be put to their election. They would not be able to request a preliminary hearing unless facing 14 years of more. It will be clear to all before the court what process will occur based on that election. Preliminary hearing dates will not have been set. The cases will proceed in a predictable orderly fashion. I find that the presumption of retrospectivity is not rebutted and that it is feasible for

section 536 as amended to apply to affected cases as of September 19, 2019. [ 33 ] Retrospective application of the amendments to

section 535 to affected cases in which the accused person has already elected trial in the Superior Court and requested a preliminary hearing would have adverse impacts. [ 34 ] Stopping a preliminary hearing that is underway but not completed by September 19, 2019, would result in an incomplete evidentiary record. If used at the subsequent trial an incomplete record would likely result in confusion. [ 35 ] The availability of a preliminary hearing would no doubt have influenced an accused person’s election to be tried in the Superior Court.

There are additional costs and delays to proceeding to trial in the Superior Court, which an accused may have chosen to avoid except for the procedural benefit of the preliminary hearing. There is no provision for an accused person to have the opportunity to re- elect without the consent of the crown. [21] As a possible work around to this issue, the Provincial Crown suggests that we go back in time and proceed as if the accused had not already elected and allow the accused to elect trial in the Ontario Court of Justice. Parliament has made no provision for this.

It is a policy decision taken to support the Provincial Crown’s argument for retrospective application. As is the Provincial Crown’s offer to consent to re-election in such cases. At the time of enacting the amendments, Parliament could not have known what position the Provincial Crowns would take. [ 36 ] Scheduling a preliminary hearing, with few exceptions is subject to the availability of the Court, the lawyers, and the witnesses.

An accused person who elected trial in the Superior Court of Justice with a preliminary hearing months before September 19, 2019, through no fault of his own, may have had their preliminary hearing dates scheduled following that date. Another accused person who elected on the same day as him may have had his preliminary hearing adjudicated prior to the amendments coming into force. If the amendments to

section 535 are applied retrospectively, the impact on these two persons would be arbitrary. [ 37 ] It is my view that Parliament would not have intended these adverse but foreseeable consequences and therefore did not intend for

section 535 as amended to apply to affected cases. My conclusion is buttressed by the limitations prescribed to retrospective application in

section 44 of the

Interpretation Act , in that

section 535 cannot be adapted to affected cases. [ 38 ] One of Parliament’s primary purposes for the amendments restricting the availability of preliminary hearings was to free up judicial resources in order to reduce the delay to trial. [22] This purpose forms the backdrop to the question of Parliamentary intent. There is the potential that there will be a short delay to achieving this goal as a result of affected cases proceeding to preliminary hearing. In the face of the adverse impacts from retrospective application of the amendments it does not change my conclusion as to Parliament’s intent.

Other Decisions [ 39 ] In coming to this decision, I have had the benefit of the Ontario Court of Justice decisions on this issue of R. v. N.R., R. v. Fraser, R. v. Kozac, R. v. A.S, and R. v. R.S . [ 40 ] After this application was heard, the Provincial Crown sought a Writ of Certiorari in the Superior Court of Justice in respect of

the R.S. decision. Regional Senior Justice Thomas disagreed with Justice Marion’s decision and granted a Prohibition Order with respect to the preliminary hearing at issue. [ 41 ] I was advised that it is the Provincial Crown’s submission that this decision is binding on the Ontario Court of Justice. The respondent takes a different view.

There is some authority to suggest that the doctrine of stare decisis would not apply in the context of prerogative remedies. [23] In the end, I do not have to decide whether stare decisis applies as I agree with Regional Senior Justice Thomas’ legal analysis and legal finding that the amendments are purely procedural. I do not agree with his findings of fact regarding the impact on the orderly proceeding on the Ontario Court of Justice should these amendments be given unqualified retrospective application. Applying the law to the facts as I find them leads me to a different conclusion - with respect to

section 535, the presumption of retrospectivity is rebutted and it cannot be adapted to affected cases. Conclusion [ 42 ] J.G. elected to be tried in the Superior Court and requested a preliminary hearing prior to the amendments coming into force (September 19, 2019 ). His is an affected case.

Section 535 should not apply retrospectively and therefore the preliminary will be heard in the Ontario Court of Justice on October 29, 2019 as scheduled. [ 43 ] For these reasons the application is dismissed. Released October 2, 2019 ____________________________________ Signed: Justice J. O’Brien [4] As a result of the amendment at issue an accused person could no longer rely on evidence of consumption to rebut the statutory presumption that breathalyzer readings are accurate. Presenting evidence of consumption to rebut the presumption of accuracy was referred to as the “Carter Defence”.

The majority concluded that the legislative change to procedure affected a substantive right – the availability of the “Carter Defence” - and therefore the legislation did not apply retrospectively. The minority found that the amendment only affected what evidence could be relied on in the conduct of a defence and not the existence of a defence it. The so called “Carter defence” was not a defence but a particular type of evidence adduced in order to raise a reasonable doubt.

Therefore, the amendment was purely procedural and should be applied immediately. [19] Wildman , at p. 13. [20] Ali , at para. 40 . [22] Senate Debates, vol. 150 issue 264 (February 19, 2019) at pp. 7373-76 (Hon. Murray Sinclair);