R. v. B.J.M., 2021 BCPC 151

Citation: R. v. B.J.M. 2021 BCPC 151 Date: 20210602 File No: 22451-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.J.M. PUBLICATION BAN Pursuant to s. 486.4 (2.2) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: L. Vizsolyi Counsel for the Defendant: M.T. Mulligan Place of Hearing: Colwood , B.C. Date of Hearing: May 17, 2021 Date of Judgment: June 2, 2021 The Issue

[ 1 ] B.J.M. is charged with sexual touching of a person under the age of 16 years, contrary to

section 151 of the Criminal Code . The offence is alleged to have occurred between July 15 and July 31, 2012. B.J.M. wishes to elect trial by a Supreme Court Justice, without a jury, and asserts a right to a preliminary inquiry under

section 536.1 of the Criminal Code . Ms. Vizsoly, for the Crown, submits that he is not entitled to a preliminary inquiry. The Statutes [ 2 ] Two statutory amendments are in issue. [ 3 ] In July, 2012, the maximum penalty for the offence alleged in this case was 10 years’ imprisonment. The maximum penalty was increased to 14 years’ imprisonment by an amendment to the Criminal Code which took effect on July 7, 2015. The increase in the maximum penalty cannot operate retrospectively; i.e. to offences alleged to have been committed prior to the effective date of the amendment:

Interpretation Act , R.S.C. 1985, c. I-21, s. 43 (d); Canadian Charter of Rights & Freedoms , s. 11(i). For that reason, the maximum sentence which could be imposed upon B.J.M., if he were convicted, would be 10 years imprisonment [ 4 ] In July, 2012, a person charged with an indictable offence who elected trial in a superior court had a right to a preliminary inquiry. Parliament amended

section 536.1 of the Criminal Code to allow an accused person to elect a preliminary inquiry if and only if he “… is charged with an indictable offence that is punishable by 14 years or more of imprisonment …”. That amendment took effect on September 19, 2019. The question on this application is whether the amendment to

section 536.1 should be given effect retrospectively; i.e. to deprive B.J.M. of a right which would have been available to him on the date of the alleged offence. The Jurisprudence [ 5 ] The Parliamentary debates and the legislative history were reviewed in R. v. Stengel , 2021 ONSC 1413 ; [2021] O.J. No. 918 . At paragraph 37, Justice Edwards said that: … the determination of whether an accused is entitled to a preliminary inquiry is determined by reference to the penal jeopardy that the accused person is facing.

On the facts of the case before me, the Respondent does not face a legal jeopardy of 14 years or more of imprisonment. His maximum jeopardy can never be more than 10 years imprisonment and as such he is not entitled to a preliminary hearing. [ 6 ] Justice Coady of the Nova Scotia Supreme Court reached the opposite conclusion in R. v. Boutilier , 2020 NSSC 275 ; [2020] N.S.J. No. 332 .

He concluded that the right to a preliminary inquiry is to be determined by the gravity of the offence, rather than the circumstances of the offender, and that the gravity of the offence should be assessed by reference to the maximum penalty for offences of that kind under the sentencing regime prevailing at the date of the election. Counsel advise that an appeal of his decision was argued before the Nova Scotia Court of Appeal on February 28, 2021, and that judgment has not yet been rendered on the appeal. [ 7 ] Mr.

Mulligan, for B.J.M., makes the point that B.J.M.’s jeopardy may exceed 14 years’ imprisonment because, if he is convicted, the Crown may apply, under

section 753 of the Criminal Code , to have him declared a dangerous offender. A similar submission was rejected by the Ontario Court of Appeal in R. v. Windebank , 2021 ONCA 157 ; [2021] O.J. No. 1251 . [ 8 ] In Stengel , Justice Edwards concluded that the determining factor is whether the individual accused in the case before the court is in jeopardy of a sentence longer than 14 years.

It is difficult to reconcile that conclusion with the following observations of Justice Nordheimer in Windebank @ paragraphs 36 - 37 : In my view, the flaw, both in the respondent's argument and in the decisions below, is that they confuse the seriousness of the offence with the seriousness of the offender, that is, their individual circumstances. * * * As s. 535 makes clear, it is the seriousness of the offence that dictates the entitlement to a preliminary inquiry.

This conclusion is reinforced by the legislative history leading to the changes to s. 535, including the change from offences carrying a maximum sentence of life imprisonment to offences carrying a maximum sentence of 14 years. It is also reinforced by the various speeches made in Parliament regarding the purpose behind the amendments. Those observations are congruent with the reasoning of Justice Coady in Boutlier . Discussion [ 9 ] The range of sentences which may be imposed upon B.J.M., if he is convicted, is a matter of substantive law.

The right, if any, to a preliminary inquiry is a matter of procedural law.

The traditional view has been that that: a. statutory provisions which alter or amend substantive rights or obligations are not to be given retrospective effect unless the language of the statute clearly evinces a legislative intention so to do; and b. statutory provisions which affect procedural rights only are to be given retrospective effect unless a contrary intention appears from the words of the statute. [ 10 ] More, particularly, amendments which are purely procedural are generally considered to apply to proceedings initiated before the effective date of the amendment. [ 11 ] In R. v.

Dinely , 2012 SCC 58 , [2012] 3 SCR 272 , the majority of the Court held that a nuanced approach is required. At paragraphs 10 – 12, Justice Deschamps said: There are a number of rules of

interpretation that can be helpful in identifying the situations to which new legislation applies. 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. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable.

New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively … However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases …. 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 …. 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. Moreover, a further factor may be relevant to the determination of whether the Amendments apply retrospectively. It is whether they require evidence that the accused had no reason to gather under the former legislation. [ 12 ] It does not appear to me that the amendment to

section 536.1 affects any of B.J.M.’s substantive rights or obligations. It does deprive him of a procedural tool which may, in some cases, be of value to the defence. In some cases, the charge against the accused is dismissed at the conclusion of the preliminary inquiry because the Crown has led insufficient evidence to support a conviction. In others, the preliminary inquiry provides enhanced pretrial disclosure of the Crown’s case. However, the restriction of those opportunities under the amended legislation is purely procedural.

The amendment made no change in the facts which the Crown must prove, in the nature of the evidence required to prove them or in the sanction which may be imposed. Applying the principle stated in Dinely , the amendment applies retrospectively. Disposition [ 13 ] B.J.M. is not entitled to a preliminary inquiry. June 2, 2021 _______________________________ T. Gouge, PCJ