2019 QCCQ 6028, 2019 QCCQ 6028

JM 2125 Translated from the original French R. c. Corneillier 2019 QCCQ 6028 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Criminal and Penal Division” No.: 500-01-188841-198 DATE: September 30, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE ROBERT MARCHI, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

SÉBASTIEN CORNEILLIER Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The issue in this case is whether a person who has been charged before September 19, 2019 of a criminal offence punishable by a maximum prison term of less than 14 years may, after September 19, 2019, elect to be tried by a “judge and jury” or before a “judge [sitting alone]” AND request a preliminary inquiry? [ 2 ] It should be noted that since September 19, 2019, an accused is entitled to have a preliminary inquiry only if the indictable offence with which he or she is charged is punishable by a sentence of 14 years or more.

That is the meaning of the amendments to ss. 535 and 536(2) of the Criminal Code (Cr. C.) with the coming into force of ss. 238 and 239(1) of the Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts [1] (the Act or Bill C-75). [ 3 ] Before, a person who was charged with an indictable offence could generally request a preliminary inquiry, subject to certain exceptions, and a justice would then have to inquire into the charge. This is no longer the case. [ 4 ] Sections 535 and 536(2), and now

(2.1) Cr. C., state: 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 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 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

(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 triedby a court composed of a judge and jury. How do you elect to be tried? (Emphasis added.) [5] In this case, on May 1, 2019, an information containing three counts was laid against the accused.

None of the indictableoffences listed therein are punishable by 14 years of more of imprisonment[2]. [6] On September 24, 2019, when his case was back on the Court’s docket at the [translation] “orientation-declaration” stage, theaccused elected his mode of trial[3] and requested a preliminary inquiry, to which the Crown objected, alleging that since September 19,2019, a person charged with an indictable office that is punishable by less than 14 years of imprisonment is no longer entitled to apreliminary inquiry. [7] To the question asked above and for the reasons below, the Court finds that, in the circumstances, the accused is no longerentitled to a preliminary inquiry.

ANALYSIS [8] At the outset, it is relevant to note that while the Act contains certain transitional provisions, it does not contain any relating tothe issue before us.

It is thus necessary to resort to the general principles and to the effect of the amendments.[4] [9] It is therefore necessary to decide whether the amendments limiting preliminary inquiries apply only to those who elect theirmode of trial after September 19, 2019, or, like in this case, also to those who were charged prior to September 19, 2019, but had notelected their mode of trial before that date. [10] To do so, the nature of the amendments brought by the Act should be analyzed in light of legislative intent and the generallyaccepted principles of

interpretation. [11] If anything about these amendments is clear, it is the legislator’s intent. Obviously, the legislator intended to further restrictaccess to preliminary inquiries and limit their scope. Indeed, in addition to eliminating the possibility for an accused to request apreliminary inquiry in some cases, which Parliament has done in recent years,[5] the Act also grants the justice presiding these inquiriesnew powers to restrict their scope, and even their duration (see, inter alia, the new ss. 537(1)(

i) and (j), 537(1.01), 549(1.1) Cr. C.[6] [12] That being so, it appears that, with these amendments, the legislator intended to respond to the remarks of the Supreme Court ofCanada in Jordan stating that “Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations”.[7] [13] Moreover, in R. v.

S.J.L., Deschamps J. wrote the following with respect to the true nature of the preliminary inquiry:[8] [21] It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown hassufficient evidence to commit the accused to trial: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 2001 CSC 82 623, at para. 30,and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 14-16. However, there is no constitutional right to a preliminary inquiry orto the outcome of such an inquiry: R. v. Ertel (1987), (ON CA), 35 C.C.C. (3d) 398 (Ont.

C.A.), leave to appealrefused, [1987] 2 S.C.R. vii; R. v. Moore (1986), (MB CA), 26 C.C.C. (3d) 474 (Man. C.A.). [14] She then went to write the following with respect to the current relevance of preliminary inquiries:[9] [23] Moreover, since R. v. Stinchcombe, [1991] 3 S.C.R. (SCC) 326, R. v. Egger, [1993] 2 S.C.R. (SCC) 451, R. v. O’Connor, [1995] 4 S.C.R. (SCC) 411, R. v. La, [1997] 2 S.C.R. (SCC) 680, R. v.Dixon, [1998] 1 S.C.R. (SCC) 244, and R. v.

Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 2003 CSC 70 307, anaccused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminaryinquiry. ... Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance: ... [15] The accused cannot therefore argue an “absolute” right to the holding of a preliminary inquiry.

The “right” is at most a relativeone that may also be eliminated by the intervention of the Attorney General through a direct indictment, “even if the accused has notbeen given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or apreliminary inquiry has been held and the accused has been discharged”.[10] [16] In light of the above, I find that the “right” of an accused to a preliminary inquiry in the given circumstances is not a“substantive right” within the meaning of Dineley, in which the Supreme Court of Canada concluded that the legislator had in factviolated a substantive right by adopting a new legislative measure affecting the content or existence of a defence.

That is not the casehere.[11] The legislative amendment applies retrospectively, and therefore, to the accused’s situation in this case, which is thereforegoverned by the new ss. 535, 536(2) and

(2.1) Cr. C. [17] It is true that there is a presumption that the legislator does not want to interfere retrospectively with “vested rights”. Somejudgments from Ontario are an excellent example of this.[12] In those cases, it was also for reasons of fairness that the courts agreed tohold preliminary inquiries scheduled after election and at the request of the accused. In R. v. Fraser, for example, the judge wrote: [25] I also find that the respondents’ right to a preliminary inquiry has vested. A right vests when the conditions precedent for exercisingthe right have all been satisfied: R. v. Puskas; R. v.

Chatwell, (SCC), [1998] 1 S.C.R. 1207, at para. 14-15. For theright to a preliminary inquiry to vest, the Crown must elect to proceed by indictment, the accused must elect a mode of trial other than by

a provincial court judge, and the accused must request a preliminary inquiry. All of these conditions have been satisfied for each of the respondents. To borrow Professor Sullivan’s language, the respondents’ were each invited to request a preliminary inquiry under the rules that existed when they made their elections. Having relied on the rules, it would be unfair to the respondents to change those rules mid-stream. [ 18 ] That being so, for a right to be considered vested, it must have been exercised. Simply put, it must have been acquired to be vested.

Indeed, a right cannot be considered vested merely because it exists and because the accused had the possibility of asserting it someday: [13] [34] A right is not considered vested just because there is a possibility of an accused person having the opportunity to assert it in the future. But where the individual’s situation is tangible and concrete, and the legal situation has crystallized or has been “sufficiently constituted” by the time of the new enactment, the right may be seen to be vested or acquired such that it is presumed Parliament did not intend to interfere without saying so expressly.

Put another way, when all the conditions precedent are met, the right can be said to be acquired, but not before. [ 19 ] FOR THESE REASONS , the Court concludes that the accused in this case does not have the right to a preliminary inquiry. The Court is therefore ready to set a trial date, if applicable. __________________________________ ROBERT MARCHI, J.C.Q. Mtre France Duhamel Director of criminal and penal prosecutions Crown prosecutor Mtre Nicolas Welt Counsel for the accused Date of hearing: September 27, 2019