Her Majesty the Queen - v. -, 2019 NBPC 13

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MIRAMICHI Citation: 2019NBPC13 Date: October 15, 2019 Docket: 15595013 Between: Her Majesty the Queen - and - Angus Parlee, Kenneth Gioia, and Keisha Rolfe Before: Judge Cameron Gunn Date of decision: October 15, 2019 Appearances: Alana Napke For Her Majesty the Queen Geoffrey Hutchin For Angus Parlee Maude Woods, Duty Counsel For Kenneth Gioia and Keisha Rolfe Gunn, P.C.J. INTRODUCTION 1.

An Act to Amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019 c. 25, (hereinafter C-75), which received royal assent on June 21, 2019, makes significant changes to the Criminal Code and other statutes. This judgement concerns amendments to ss. 535 and 536 of the Criminal Code which restrict the availability of preliminary inquires. 2. C-75 has four dates on which portions of the Bill come into force. The changes to ss. 535 and 536 came into force on September 19 th , 2019. 3.

The question to be decided in this case is when those changes become effective and to whom they apply. Specifically do the amendments apply only to cases that arise on or after September 19 th , 2019, or do they have application to cases where the accused was charged with an offence and the information alleging the offence was laid before September 19 th , 2019. 4. C-75 does not contain a transitional provision with respect to the amendments to the relevant sections. Such transitional provisions indicate whether Parliament intended that a particular amendment would apply to cases already before the courts. 1 5.

In order to determine the impact of the amendments, it is necessary to consider the change and the principles of statutory

interpretation. THE CHANGES 6. Sections 535 and 536 of the Criminal Code have been amended to restrict the availability of preliminary inquiries to only those accused charged with an indictable offence that is punishable by 14 years or more of imprisonment. This change includes a modification of the election that is put to an accused pursuant to s. 536 . As indicated above, the coming into force date for these changes was September 19 th , 2019. 7. These changes impact four cohorts of accused: a.

Accused whose charges were laid prior to September 19 th , 2019 and who elected, pursuant to s. 536 , trial by Judge alone or trial by Judge and Jury, requested a preliminary inquiry, and for whom the preliminary inquiry is in progress; b. Accused whose charges were laid prior to September 19 th , 2019 and who elected, pursuant to s. 536 , trial by Judge alone or trial by Judge and Jury, requested a preliminary inquiry, but for whom the preliminary inquiry has not yet commenced; c.

Accused whose charges were laid prior to September 19 th , 2019 and who would qualify for an election, but who have not yet elected; and

d. Accused whose charges were laid on or after September 19th, 2019. 8. Like Magotiaux, J. in R. v. N.F.1, I recognize that as a judge of a statutory court, I have "no power to make broad declarations or hear references as to general application of the law".2 I do, however, have the "authority, and obligation, to regulate and manage proceedings in accordance with the governing legislation"3. In doing so I am authorized and obligated to interpret legislation. 9. In this matter, the accused: a.

Were charged with offences that are electable but punishable by less than 14 years and which are alleged to have occurred before September 19th, 2019; b. Had an information alleging the violation laid in Provincial Court before September 19th 2019; c. Made an appearance in Provincial Court before September 19th, 2019; and 1 R. v. NF., 2019 ONCJ 656. 3 d. Have not made an election prior to September 19`11, 2019. 10.

The Crown has taken the position that anyone who has elected prior to September 19th, 2019 is entitled to continue in themanner to which they elected, including having a preliminary inquiry if they so chose. Anyone who has not elected, and who is affectedby the amendments, should be limited to the election now available according to the Crown. 11. None of the accused have taken a position on the temporal aspect of the amendments. THE APPLICABLE RULES OF STATUTORY

INTERPRETATION 12. Amendments to existing legislation almost always impact persons who are before the courts prior to the coming into force ofthe enactment. It is not surprising then that principles have emerged to assist courts in

interpretation of such statutes. These principles have not been universally lauded and, in fact, the transitional law has been described as "something of a morass."4 13. The Supreme Court of Canada has offered guidance on principles to apply in the

interpretation of new legislation drawn from prior decisions and authoritative texts.5 These are as follows: 2 R. v. N.F., at para. 10. 3 R. v. NF., at para. 10. 4 Sullivan on the Construction of Statutes, 6th ed. (Markham: Ont: Lexis Nexis Canada, 2014) 25:11. 5 See R. v. Dineley, 2012 SCC 58 , [2012] 3 S.C.R 272, at paras. 10 and 45-47. 4 a. New legislation that affects vested or 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;6 b.

New procedural legislation designed to govern only the manner in which rights are asserted or enforced is presumed to applyimmediately to both pending and future cases;' c. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately; sand d. The key task in determining the temporal application of the amendments is discerning whether they affect substantive rights.9 14. The

Interpretation Aetw , is also relevant and provides that proceedings commenced under a repealed provision are to continueunder the procedures set out in the amended provisions, but that the repeal of an enactment does not affect rights acquired under the former provision." In short, changes that effect substantive rights do not apply immediately, but procedural changes do.12 15. There is no clear indication of legislative intent with respect to when the changes take effect. As indicated above, there is notransitional provision in the legislation. The 6 Dineley, at para. 10. 7 Dineley, at para. 10.

8 Dineley , at para. 11 . 9 Dineley , at para. 11 . 10 R.S.C., 1985, C. 1-21 . 11 Dineley , at para. 48 , considering ss. 43 and 44. 12 Dineley , at para. 51 . Cromwell, J. was in dissent but not on this issue. Department of Justice released a "Legislative Background" to the Bill. Footnote 68 of that document reads as follows: The temporal application of the preliminary inquiry reforms is determined in accordance with the provisions in the Criminal Code , the amending Act, the federal

Interpretation Act , R.S.C., 1985, c. 1-21, as well as the applicable SCC case law. The changes have immediate effect upon coming into force. However, where a preliminary inquiry was requested prior to September 19, 2019, the applicable law is clear that an entitlement to a preliminary inquiry arises when a request is made to hold the hearing. In introducing these amendments, the intent was not to do away with a preliminary inquiry if it has already been requested or if such a hearing is ongoing when the new amendments come into force. 13 16. In Frank v.

Canada (Attorney General), Cote, J. (in dissent but not on this point) noted that intent drawn from debates and speeches in Parliament have limited value in determining legislative intent. It would seem apparent then that a footnote in background material prepared by a body other than the legislature has less so. 17. Given the absence of obvious legislative intent, the next step is to assess other jurisprudence. OTHER COURTS 18. Other courts are grappling with the question of the application of the amendments in C-75 (both these changes and others).

Courts are divided, both in results and analytical paths, with respect to the issue of the application of the changes to preliminary inquiries. To date, and briefly, the following decisions have been released: 13 Department of Justice Canada, Legislative Background:

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill b a. R. v. R.S., 2019 ONCJ 629 : held that s. 535 as amended was procedural but, since it affected the jurisdiction of the Ontario Court of Justice, it could not operate retrospectively; b. R. v. R.S., 2019 ONSC 5497 : quashed the decision of the Ontario Court of Justice as described above, and held the amendments are procedural and do not affect a vested or substantive right.

As a result, it was held that the Ontario Court of Justice no longer has jurisdiction to conduct preliminary inquiries unless the offence has a potential penalty of 14 years or more (an appeal of that decision is to be heard by the Ontario Court of Appeal on October 28 th , 2019); c. R. v. Fraser et al, 2019 ONCJ 652 : held that the amendments operate prospectively based on their affecting a substantive right and that the right to the preliminary inquiry had vested as conditions precedent had been met; d. R. v.

N.F., 2019 ONCJ 656 : held the right to request the preliminary inquiry and the obligation on the court to hold it had vested and to apply it respectively in the circumstances would be unfair and inconsistent with Parliament's intent; C-75 in the 42nd Parliament) (August 2019, modified September 6, 2019) at p. 24, fit. 68 https://www.justice.gc.ca/eng/rp-pricsj-sjejsp- sjpie75/index.html 7 e. R. v. Kozak, 2019 ONCJ 657 : held the preliminary inquiry was a substantive right and the change affected the jurisdiction of the Ontario Court of Justice and was a substantive change; f. R. v.

Mehring, 2019 ONCJ 691 : held that the Ontario Court of Justice was bound by the decision in R. v. KS., 2019 ONSC 5497 . HAS A SUBSTANTIVE OR VESTED RIGHT BEEN AFFECTED 19. The question is not simply whether the changes are procedural or substantive in nature. Procedural amendments "may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately"." 20. It is also not a simple matter to determine the nature of an amendment.

In Dineley Cromwell J. (again in dissent but not on this) provided guidance on the issue: 15 From this review of the case law, we may conclude:

1. Substantive provisions "alter the character or legal effect of any transaction" (Howard Smith, at p. 420). This includes taking away apreviously-available defence (Upper Canada College; Howard Smith; Angus). The operation of such provisions is not affected by thefact that there is litigation in progress (Wildman). 2. Procedural provisions "gover[n] the methods by which facts are proven and legal consequences are established" 14 Dineley, para. 11. 15 Dineley, at para. 66. 8 (Sullivan, at p. 698). Their operation is generally dependent on the existence of litigation. 3.

Rules of evidence are considered to be procedural in nature unless in effect they impact on substantive rights: Application under s.83.28 of the Criminal Code (Re), at para. 57. 4. Rules of evidence are concerned with "the establishment [or disproof] of ... facts by proper legal means": Howard Smith, at p. 419,citing Phipson on Evidence, at p.l. 5. Provisions which make evidence admissible that was previously inadmissible or change the conditions under which evidence may beadmitted are procedural. This is true even if the new provisions make admissible important incriminating evidence that was formerlyexcluded.

Examples include provisions which: make a revolutionary change in the admissibility and effect of documentary evidence(Howard Smith); make a previously non-compellable witness compellable for the Crown (Wildman); and repeal the corroborationrequirement for a child's unswom evidence: E. (A. W.). 21. Based upon the guidance in the jurisprudence it is crucial to understand the "character" of a preliminary inquiry or, more precisely, what it is and what it is not. The nature of preliminary inquiries was discussed by Marion, J. in R. v. R.S.16.

Despite being reversed on his ultimate conclusion This description of the preliminary inquiry was adopted byThomas, RSJ. I will reproduce much of what he relayed, though I will reorder and augment his conclusions a. the fundamental purpose of the preliminary inquiry is "to protect the accused from a needless and indeed improper exposure to a 16 R. v.

R.S., 2019 ONCJ 629, at para 25. 9 public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process."I8 b. the "discovery" aspect of the preliminary inquiry remains, at most, an incidental aspect of the preliminary inquiry;19 c. A preliminary inquiry is a statutory procedure and the jurisdiction and powers of the presiding judicial official are conferred expressly by the Criminal Code or emanating by necessary implication therefrom;2° d. There is no constitutional right to have a preliminary inquiry;21 e.

The Attorney General can prefer a direct indictment under s. 577, bypassing a preliminary inquiry even if the accused has requestedone, and even halting a preliminary inquiry that is underway; f. A preliminary inquiry is not the forum in which the guilt of the accused or the appropriate sanction is determined. It is not a forum in which Charter remedies can be obtained;22and 17 R. v. R.S., 2019 ONSC 5497 18 R. v. Skogn2an, (SCC), [1984] 2 S.C.R. 93 (S.C.C.) at 105; R. v. Hynes, 2001 SCC 82, at para 30; R. v. Russell, 2001SCC 53, atpara. 20. 19 R. v.

O'Connor, (SCC), [1995] 4 S.C.R. 411, at para. 172. 20 Hynes, at para. 28. 21 R. v. S.JL., 2009 SCC 14 , [2009] 1 S.C.R. 426 atpara. 21. 22 S.JL., at pans. 21-22. 10 g. Dispensing with the screening process does not result in a deprivation of fundamental justice, since the accused continues to be

g. Dispensing with the screening process does not result in a deprivation of fundamental justice, since the accused continues to be presumed innocent and retains the right to make full answer and defence.23 22. Parliament has chosen not to do away with the preliminary inquiry. Given the general legislative intent in C-75 to "unclog" thecourt system, it would have been more expeditious to simply eliminate these preliminary inquires. That Parliament did not suggest itacknowledges an ongoing function.

That function, as the Supreme Court of Canada has noted, is "to protect the accused from a needlessand indeed improper exposure to a public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process."24 23. While s. 577 allows the Attorney General to prefer or direct an indictment and bypass or disregard the screening function, such

an act can be judicially reviewed if the decision constituted an abuse of process.25 In addition, the screening mechanism is a powerfultool for the prosecution to screen its evidence and re-assess its approval of charges. An example in New Brunswick is the decision ofPublic Prosecution Services of the Office of the Attorney General (PPS) not to proceed against two correctional officers charged with manslaughter after LeBlanc, PCJ. declined to commit the accused to trial following a preliminary inquiry.26In their decision not toproceed, PPS specifically noted 23 S.J.L, at para. 21. 24 Skogman„ at p. 105. 25 K v.

Power, (SCC), [1994] 1 S.C.R. 601. 26 R. v. Bourgoin and Ross, April 2019, Court File No.: 33878801. 11 the testing of the evidence at the preliminary inquiry as playing a role in their reassessment of their charge approval standard.'? 24. Given the important screening function of the preliminary inquiry, potentially protecting an accused from an unwarranted trial, Ifind the preliminary inquiry is not purely procedural and effects a substantive right of the accused. 25. This is not an easy decision to render, as evidenced by the diversity of opinions from other courts.

I am comforted, however, inthis decision in that it does the least potential harm to the administration of justice and can be most easily be ameliorated. 26. Were Ito find that the amendments applied retrospectively, put the accused to the new election which disallows the preliminary inquiry, and it was later determined that I was incorrect, a loss of jurisdiction might be held to have occurred.28 This would inevitably invalidate the proceedings and necessitate a new elect on.29 27.

On the other hand, if I am wrong with respect to providing the accused with a preliminary inquiry the options to correct my errorare broader and the decision less impactful on the fair trial rights of the accused and the administration of justice generally. Dependingon the election made the following scenarios could occur: 27 Statement regarding Alvida Ross and Mathieu Bourgoin court cases, July 3, 2019, found online athttps://www2.gnb.cakontentignbieninews/news_release.2019.07.0407.html. 28 R. v. Trites, 2001 NBCA 5. 29 Trites, at para. 42. 12 a.

If the accused elects Provincial Court there has been no negative impact and no loss of jurisdiction as this option is available underboth elections; b. If the accused elects trial by Judge alone or trial by Judge and Jury but does not request a preliminary inquiry there has been nonegative impact and no loss of jurisdiction; c. If the accused elects trial by Judge alone or trial by Judge and Jury and does request a preliminary inquiry, and it is discoveredbefore or during the preliminary inquiry that I am in error, then: i.

The Crown can apply to the Provincial Court judge seized with the preliminary inquiry to vacate the date set for the preliminaryinquiry, and barring re-election by the accused, remand the accused to the Court of Queen's Bench for trial; or ii. Alternatively, the Crown can apply for judicial review and an order granting prohibition with certiorari in aid, quashing mydecision. They may also seek an order preventing whatever Judge is hearing the preliminary inquiry from exercising jurisdiction that ithas lost as a result of the amendments. 13

d. If the accused elects trial by Judge alone or trial by Judge and Jury, requests a preliminary inquiry, the inquiry is held but the accused is not committed, the Attorney General can exercise its discretion to prefer an indictment pursuant to s. 577. 28 Whatever the impact, I must make the determination of whether the amendments apply retrospectively, retroactively or prospectively on the basis of the principles of statutory

interpretation. Having done so, I find that the amendments restricting the availability of preliminary inquiries contained in C-75 do not apply retrospectively. In the case before the Court, I find that I continue to have jurisdiction to conduct a preliminary inquiry if one is requested. 29. I sought and received the consent of the parties to provide an oral

summary of these reasons. I am filing a full written judgment, proving a copy to the parties and noting that an oral

summary of this judgment has been read into t cord. Cameron Gunn, PCJ 14