HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 655

ONTARIO COURT OF JUSTICE R. v. A.S. , 2019 ONCJ 655 DATE: 2019 09 23 BETWEEN: HER MAJESTY THE QUEEN — AND — A.S. AND BETWEEN: HER MAJESTY THE QUEEN — AND — RONALD JOHN SHAW Before Justice P. Downes Heard on September 12, 2019 Reasons for Decision released on September 23, 2019 Mr. A. Pilla................................................................................................. counsel for the Crown Mr. C. Hurley............................................................................... counsel for the defendant A.S. Mr. J.

Kopman............................................................. counsel for the defendant Ronald Shaw NOTE: IN RELATION TO MR. A.S., THESE PROCEEDINGS ARE SUBJECT TO AN ORDER UNDER S. 486.4(1) OF THE CRIMINAL CODE . ANY INFORMATION THAT COULD IDENTIFY THE VICTIM OF ANY OFFENCE SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY . P. DOWNES J.: 1. INTRODUCTION [ 1 ] Ronald Shaw is charged with a number of offences including theft over $5,000, mischief over $5,000, and possession of property obtained by crime over $5,000. A.S. is charged with sexual assault.

They have both elected to have a preliminary inquiry. Mr. Shaw’s is scheduled for February 2020 while Mr. A.S.’s is to commence on November 8, 2019. [ 2 ] On September 19, 2019, amendments to sections 535 and 536 of the Criminal Code came into force ending the availability of a preliminary inquiry for charges such as those faced by these accused because they attract a maximum punishment of less than 14 years imprisonment. The Act contains transitional provisions for some amendments, but none that pertain to the application of s. 535 . [ 3 ] The Crown seeks a ruling that these amendments apply to Mr. A.S. and Mr.

Shaw and that, as a result, I should: 1. Vacate the preliminary inquiry dates for both accused; and 2. Remand both matters to the Superior Court of Justice to set a date for trial pursuant to s. 536(4.3), unless the accused re-elect to have a trial in the Ontario Court of Justice. [ 4 ] It is the Crown’s position that the principles of statutory

interpretation and the provisions of the

Interpretation Act mean that

these amendments should be given immediate effect to all cases currently before the court. Because the amendments are of a purely procedural nature and do not affect the accused’s substantive rights, they apply retrospectively. [ 5 ] Mr. A.S. and Mr. Shaw, on the other hand, say that these provisions affect their substantive statutory right to a preliminary inquiry, a right which “vested” when they made their election. They also argue that, since the amendments alter the jurisdiction of provincial courts, they are by definition not procedural.

Finally, they say that as a statutory court, there is no authority for the Ontario Court of Justice to rescind a validly made election and order them to stand trial in the Superior Court without their consent or the hearing of evidence at a preliminary inquiry. [ 6 ] Two decisions from this court have found that the amendments to the preliminary inquiry sections are prospective only. [1] The Superior Court of Justice has, of course, not yet considered the issue, although in one judgment has ruled that the jury selection provisions of Bill C-75 do apply retrospectively. [2] 2.

THE GOVERNING PRINCIPLES [ 7 ] Determining the temporal application of new legislation is a matter of statutory

interpretation, guided by principles from several sources. [3] These include the enacting legislation itself,

interpretation statutes and the common law. According to Sullivan , underlying these principles is fairness and the need for the law to provide a “a stable framework within which people can carry on their activities.” [4] [ 8 ] The rules of statutory

interpretation that are pertinent to determining the temporal effect of legislation were summarized by the Supreme Court of Canada in R. v. Dineley : 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. [5] [ 9 ] As Cromwell J., dissenting but not on this point, observed in Dineley , procedural provisions relate to the conduct of litigation, including how facts are proven and legal consequences are established. [6] [ 10 ] These principles are also reflected in subsections 44(

c) and (d) (iii) of the

Interpretation Act : 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 therefore,. . . (

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… As Professor Sullivan puts it, “These provisions call for the immediate application of new procedural law to all actions, including those that were pending when the legislation came into force.” [7] [ 11 ] The Crown submits that in the absence of any authoritative guidance in the enabling legislation, the parliamentary statements introducing Bill C-75 support the view that the provisions in issue should be applied retrospectively.

I am not persuaded that these comments shed much light on the issue. To the extent that they reveal anything about parliamentary intention, they refer to the desired long-term impact of the legislation, not necessarily to the immediate and short-term effects. On that point I agree with Konyer J.’s discussion in R. v. Fraser . [8] [ 12 ] During the hearing it was suggested that other provincial Attorneys General as well as the federal Department of Justice are not seeking to have these amendments apply retrospectively.

Be that as it may, I am not persuaded that, if that is the case, it is something I can properly rely on as a source of legislative intent. 3. DO THE AMENDMENTS AFFECT SUBSTANTIVE RIGHTS? [ 13 ] I turn then to the question posed in Dineley : does the removal of Mr. Shaw’s and Mr. A.S.’s ability to have a preliminary inquiry affect their substantive rights? Answering this question calls for an examination of the nature of a preliminary inquiry. [ 14 ] The primary purpose of a preliminary inquiry is as a screening function to determine whether the Crown has sufficient evidence to take the accused to trial.

The jurisprudence has established a number of characteristics of the preliminary inquiry: • A justice conducting a preliminary inquiry has no inherent power and is not a court of competent jurisdiction for the purposes of s. 24 of the Charter ; [9] • An accused’s request to have a preliminary inquiry can be overridden by the Attorney General by the preferring of an indictment pursuant to

section 577 of the Code ;

• There is no constitutional right to have a preliminary inquiry; [10] • Innocence is not at stake at a preliminary inquiry; • The preliminary hearing judge is not entitled to draw factual inferences or to assess the credibility or reliability of the evidence. Any reasonably available

interpretation of, or inference from, the evidence at the preliminary inquiry must be resolved in favour of the prosecution; [11] • It permits a limited discovery of the Crown’s case. That ancillary benefit has, however, been significantly diminished by the constitutional right to disclosure, enshrined in

section 7 of the Charter. [12] [ 15 ] It is axiomatic that a preliminary inquiry has the potential for advantages to an accused, from being discharged to setting the evidentiary groundwork for Charter or other relief at trial. It can also be fruitful for the Crown and, not infrequently, can increase an accused’s jeopardy if evidence at the preliminary inquiry warrants committal for trial on other charges. [13] In my view, however, these are not features which transform a procedural mechanism into a substantive right.

They are simply the incidental effects of what is, at bottom, one procedural step in the life of a criminal case.

Legislation does not affect substantive rights simply because it has the potential to put one party at a disadvantage. [14] [ 16 ] In Dineley , the majority in held that, “The fact that new legislation has an effect on the content or existence of a defence, as opposed to affecting only the manner in which it is presented , is an indication that substantive rights are affected.” [15] The new provisions do not alter the elements of the offences charged, do not take away a defence and do not affect any constitutional rights. The accused will still be able to elect the court in which they wish to be tried.

They will retain the ability to challenge the sufficiency of the Crown’s case, using the same test as at a preliminary inquiry, by bringing a motion for a directed verdict at trial. The most fundamental right, to have guilt or innocence determined at a trial in which the accused is presumed to be innocent is, of course, unaffected. [ 17 ] The Court of Appeal’s judgment in R. v. Hafeez [16] is particularly instructive. The court held that legislation changing assault causing bodily harm from a straight indictable offence to a hybrid offence was a procedural amendment that should be applied retrospectively.

The appellant had argued that he was deprived of his right to be tried in the superior court, to have a preliminary inquiry and to be tried by a jury, because of the Crown’s election to proceed summarily, an option which was not available to the Crown at the time he was charged.

The court rejected that argument: “At the time the offence was committed the appellant had no substantive or vested right to have the charge heard and determined according to any particular procedure.” [ 18 ] The amendments at issue in Hafeez removed the option of a preliminary inquiry by expanding the Crown’s available election for certain offences. The Bill C-75 amendments achieve the same result by contracting the defence’s election.

I am unable to draw a meaningful distinction between the legislative amendments in Hafeez and those in Bill C-75. [ 19 ] In my view there is no substantive right to have a preliminary inquiry, and no such rights are affected by the amendments to the preliminary inquiry provisions. 4.

VESTED RIGHTS [ 20 ] In Dineley , the majority held that “where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable.” [17] The majority says nothing more about the meaning of the term “vested rights.” Cromwell J., whose analysis of the governing principles was not a point of disagreement between the majority and the minority, described the “presumption that new legislation is not intended to interfere with ‘vested rights’ that came into being before the legislation came into effect.” [18] [ 21 ] Defence counsel submit that when the accused made their election to have a preliminary inquiry that decision “vested” the statutory right to have that preliminary inquiry proceed, regardless of the amendments. [ 22 ] Respectfully, I think this misconstrues the application of the vested rights doctrine.

As Sullivan points out, there is no vested right in procedure . [19] In my view that means there can be no vested right in the making of a decision as to what procedure should be undertaken. As Cromwell J. observed, the presumption that a legislative amendment does not operate retrospectively to interfere with a vested right does not apply with respect to purely procedural law.

Procedural law, he says, “is presumed to operate from the moment of its enactment, regardless of the timing of the facts underlying a particular case.” [20] The mere act of electing a preliminary inquiry cannot be divorced from effect of that election, which is only to determine what procedure will apply to the charges before the court. [21] [ 23 ] If these amendments are prospective simply because a retrospective application would change the legal situation faced by the accused at the time they came into force, then it is hard to rationalize the findings of retrospectivity in cases such as Bickford , Hafeez and Application under s. 83.28 . [22] 5.

JURISDICTIONAL CHANGE [ 24 ] In R. v. R.S. , Marion J. found that although the amendments were purely procedural, they nevertheless did not apply retrospectively because they “affect the jurisdiction of this court” by narrowing the availability of a preliminary inquiry. [23] The defence rely on the Supreme Court of Canada’s holding in Royal Bank of Canada v. Concrete Column Clamps [24] that, “jurisdiction is not a procedural matter.” [ 25 ] Again, I am unable to reconcile that finding with the holding in Hafeez and other authorities.

If the jurisdictional change brought about by the Hafeez amendments was not substantive, then I do see how the current ones are either. [ 26 ] That may be because Concrete Column Clamps and the cases it relies on refer only to amendments relating to appellate jurisdiction. As noted in R. v. A.S., [25] there is considerable subsequent authority from the Ontario Court of Appeal suggesting that changes in jurisdiction with respect to the availability of a trial by jury are purely procedural.

[ 27 ] The mere fact that the amendments have some impact on this court’s jurisdiction to conduct preliminary hearings in certain cases does not change their fundamental procedural nature and does not displace their presumptively retrospective application. 6. CONCLUSION [ 28 ] I am sympathetic to parties whose litigation strategy included a preliminary inquiry. But in my view, the essence of these amendments is to modify the procedure by which some criminal charges are tried. They are purely procedural and do not affect the substantive rights of the accused, vested or otherwise.

The presumption of retrospectivity has not been displaced. 7. ORDER [ 29 ] In my view, the retrospective application of the amendments renders Mr. A.S.’s and Mr. Shaw’s request for a preliminary null and of no legal effect. Their election as to the venue of their trial remains, but in accordance with the remedy sought by the Crown, they may re-elect to have a trial in this court.

Otherwise, the dates for their preliminary inquiries will be vacated and they will be remanded to the Superior Court of Justice on a date to be discussed with the parties. [ 30 ] I am grateful to counsel for the excellent quality of their submissions on this challenging issue. Signed: Justice P. Downes Released: September 23, 2019 [3] Sullivan on the Construction of Statutes , 6th ed. (Markham: Ont.: LexisNexis Canada, 2014).