HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 678

ONTARIO COURT OF JUSTICE CITATION : R. v.

Clark , 2019 ONCJ 678 DATE : October 1, 2019 BETWEEN: HER MAJESTY THE QUEEN — AND — JONATHAN CLARK and MARGARET FIGUARY AND BETWEEN: HER MAJESTY THE QUEEN — AND — MARK FRASER AND BETWEEN: HER MAJESTY THE QUEEN — AND — PAUL SOULARD Before Justice Leszczynski Heard on September 23, 2019 Reasons for Judgment released on October 1, 2019 DAVID ROWS....................................................................................... counsel for the Crown KEN MARLEY......... counsel for the defendants, Paul Soulard and Margaret Figuary SARAH DONOHUE....................................... counsel for the defendant, Jonathan Clark LUIGI PERZIA......................................................... counsel for the defendant Mark Fraser Leszczynski J.:

[1] The Crown brought an application returnable September 23, 2019 seeking that the preliminary hearing dates scheduled in theabove noted matters be vacated based on its position that the amendments in Bill C-75 ought to apply retrospectively. [2] It is important to note that all of these cases share the following characteristics: (1) the accused were charged with the offences before the Court prior to September 19, 2019; (2) the Crown elected to proceed by Indictment on the Informations before the Court prior to September 19, 2019; (3) all the charges on each information for each accused have a maximum punishment of less than 14 years imprisonment; and (4) each of the accused elected to be tried by the Superior Court of Justice and requested a preliminary inquiry, which wasscheduled and confirmed prior to September 19, 2019 to take place after September 19, 2019. [3] Mr.

Clark and Ms. Figuary’s preliminary hearing is presently scheduled to take on October 21, 2019. Mr. Soulard’spreliminary hearing is scheduled to take place on November 29, 2019. Mr.

Fraser’s preliminary hearing is scheduled to take place onOctober 4, 2019. [4] It is also important to note that regardless of whether I am the judge presently scheduled to preside over the scheduledpreliminary hearings, all parties have agreed that I could hear this application and they would be bound by my decision. [5] On September 19, 2019, amendments to sections 535 and 536 of the Criminal Code came into force terminating the availabilityof a preliminary inquiry in cases where an Information does not contain at least one charge that carries with it a maximum penalty of 14years or more.

Section 535 of the Criminal Code now states: 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 arequest 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, found on the facts that are disclosed in by theevidence taken in accordance with this part. [6] The Act to Amend does not contain a transitional provision that pertains to the application of s. 535.

As such, the retrospectivityof the Act to Amend with respect to s. 535 of the Criminal Code is a matter of statutory

interpretation. [7] In short, the Crown took the position that the amendments should be interpreted and applied retrospectively and consequently,this Court no longer retains the jurisdiction to preside over the accused’s scheduled preliminary hearings, primarily on the ground thatthe amendments are of a purely procedural nature and do not affect the accused’s substantive or vested rights. [8] The Defence, however, strongly opposed the application, taking the position that the amendments ought to apply prospectively– that is only to cases where the accused is put to their election after September 19, 2019, and thereby the Ontario Court of Justice retainsits jurisdiction to conduct preliminary hearings that were scheduled prior to September 19, 2019, based in part on the following list ofnon-exhaustive factors: (1) the amendments affect the accused’s substantive rights and ought not to be applied retrospectively;

(2) The accuseds’ rights to a preliminary hearing vested when they made their election and requested a preliminary hearing;

(3) The amendments alter the jurisdiction of the Ontario Court of Justice and are therefore substantive and should not be appliedretrospectively; [9] At the time this application was heard on September 23, 2019, there were a number of similar applications which had beenbrought by the Crown in various jurisdictions across the province and a handful of decisions released on the issue by various judges ofthe Ontario Court of Justice, some of which were inconsistent in their reasoning and in result and none of which were binding on thisCourt. [10] Subsequent to the hearing of this application, however, the Honourable Justice Thomas of the Superior Court of Justicerendered the authoritative case on the issue in the decision of R. v.

R.S., 2019 ONSC 5497, on September 27, 2019. This decision cameabout as a result of a certiorari application brought by the Crown in the Superior Court of Justice with respect to the decision of JusticeMarion of the Ontario Court of Justice in Windsor in the case of R. v. R.S., 2019 ONCJ 629 , [2019] O.J.

No. 4617, dealing withprecisely the same issue. [11] Ultimately, Justice Thomas quashed the ruling of Justice Marion dated September 11, 2019 and held that the amendments inBill C-75 which restrict preliminary inquiries are procedural and do apply retrospectively, as they do not affect the accused persons’vested or substantive rights.

Further, he found that as of September 19, 2019, the Ontario Court of Justice no longer has the jurisdictionto conduct preliminary inquiries unless one of the offences before the Court has a potential penalty of 14 years or more. [12] Although Justice Thomas’ decision was with respect to a certiorari application, he commented that a similar approach should befollowed with respect to the other matters set for preliminary inquiry in the Ontario Court of Justice where the offences charged nolonger qualify for a preliminary inquiry under the new legislation. [13] As such, consistent with the decision of Justice Thomas, the preliminary hearings presently scheduled on the dates set out abovefor the matters that are before the Court and are the subject of this application, are now effectively vacated.

These matters will return onthe previously scheduled date of October 2, 2019 at which time each of the accused will be provided with their election pursuant to s.536(2.1) of the Criminal Code. Released: October 1, 2019

Justice Leszczynski