HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 656

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE R. v. N.F. , 2019 ONCJ 656 DATE: 2019 09 23 Oshawa, Central East Region INFORMATION: 18-A36435 BETWEEN: HER MAJESTY THE QUEEN — AND — N. F.

Before Justice S. Magotiaux Heard on September 17, 2019 Reasons for Judgment released on September 23, 2019 Frederick Stephens............................................................................ counsel for the Crown Thomas F. Balka................................................................ counsel for the defendant N.F.

Magotiaux J.: [ 1 ] Professor Ruth Sullivan described transitional law in Canada as a “something of a morass”. [1] This case enters the morass. [ 2 ] On September 19, 2019, new provisions came into effect limiting the availability of preliminary inquiries to cases where an accused person faces a maximum penalty of at least 14 years imprisonment. [2] The amending legislation contains no transitional provisions regarding the changes to preliminary inquires. [ 3 ] This case, like many others, requires

interpretation of the temporal application of the new s. 535 of the Criminal Code . The Crown argues that the new s. 535 is retrospective; it applies immediately to all accused persons and eliminates this court’s jurisdiction to hold an inquiry where the accused person does not meet the minimum penalty threshold now identified in s. 535 (directing the holding of an inquiry) as well as in s. 536 (directing the form of election). [ 4 ] N.F. is charged with one count which has a maximum penalty of 10 years imprisonment.

On December 10, 2018, he elected to have a trial by judge and jury in the Superior Court of Justice and requested a preliminary inquiry. On the date that the election and request were made, a judicial pre-trial was held, and a one-day preliminary inquiry was set for September 23, 2019. [ 5 ] On September 17, 2019, I heard an application by the Crown to vacate the preliminary hearing date and, on a date after September 19, 2019, to remand N.F. directly to the Superior Court of Justice in the absence of a re-election as to mode of trial.

Despite a dispute over my authority to hear the application and impose such a remedy, particularly in advance of the date of the coming into force of the legislation, the parties made full written and oral argument on the substantive issue. [ 6 ] My conclusion is that this court has jurisdiction to conduct the preliminary inquiry scheduled to commence on September 23, 2019.

The Crown’s application to vacate is dismissed. [ 7 ] I find that the right to request a preliminary inquiry, and the resulting jurisdiction and statutory obligation of the Ontario Court of Justice to hold such an inquiry, are vested in this matter. The request was validly made and recorded in 2018 according to prevailing law and the hearing is scheduled to commence on September 23, 2019. It would be an extraordinary result if I applied the legislation retrospectively to undo what has been done and vacate court dates on the eve of a validly scheduled preliminary inquiry.

I conclude that retrospective application in the circumstances of this case would be inconsistent with the intent of Parliament, which was to reduce delay and promote efficiency in criminal proceedings. These reasons explain my conclusions. [ 8 ] In considering this complex and weighty issue, I have had the benefit of the one reported judgment on the temporal application of the amendment to s. 535 : R. v. R.S. . [3] R.S. provides a helpful and thorough review of the governing statutory provisions and common law principles.

I have reached the same result reached in R.S. , but for slightly different reasons. [ 9 ] I will first address my jurisdiction to hear and decide this application. Then I will set out the positions of the parties and review and apply the operative principles and provisions of statutory

interpretation. Initial Jurisdiction to Decide the Application [ 10 ] The Ontario Court of Justice is a statutory court. A justice of this court has no power to make broad declarations or hear references as to general application of the law. However, justices of this court do have the authority, and obligation, to regulate and manage proceedings in accordance with the governing legislation and the interests of justice, and to interpret the very provisions the court is called on to apply. [ 11 ] The remedy sought by the Crown is for the preliminary hearing date be vacated.

I find that I have jurisdiction to hear and decide this application in advance of the preliminary hearing and prior to September 19. I ground the jurisdiction to decide this application in the necessary authority to interpret the provision I am bound to apply, and in my trial management power. The trial

management powers of a justice of the Ontario Court of Justice apply at all stages of proceeding, including the setting and managing of preliminary inquiries. [4] [ 12 ] In order to consider whether to vacate the preliminary hearing and free up a full day of court time for other matters, and to fairly advise the involved parties as to what can be expected to occur on September 23, 2019, it is appropriate and necessary for me to address this application in advance. [ 13 ] I recognize that my authority is limited.

I am addressing the specific case before me and the facts here, not making a general statement of the scope of application of the new provisions. I acknowledge that, to some degree, a broader approach is required in order to interpret legislative intent. However, these reasons make no comment on the alternative scenarios addressed in the Crown’s materials, namely, the jurisdiction to continue a preliminary inquiry where evidence has already been taken, and the manner of proceeding where an information contains counts which carry a maximum of 14 years or more and other counts which do not.

Position of the Parties on the Application [ 14 ] The central question posed in this application is whether the new version of s. 535 in force on September 19, 2019 should be read retrospectively. Though simply stated, the question is not simple. [ 15 ] The Crown submits that the amendment to s. 535 applies retrospectively. The amendments are purely procedural and do not affect substantive rights, and therefore the presumption of retrospectivity applies and the provisions of the

Interpretation Act , [5] dictate that the amendment to s. 535 has immediate effect on all matters regardless of the stage of proceedings. The Ontario Court of Justice cannot hold a preliminary inquiry for N.F. on September 23, 2019 because he does not face a maximum penalty of 14 years imprisonment.

In the Crown’s view, the court should declare the prior request for a preliminary inquiry to be a nullity and remit the matter directly to the Superior Court of Justice. [ 16 ] Defence counsel argues that the Ontario Court of Justice has jurisdiction to conduct a preliminary inquiry that was validly requested prior to September 19, 2019. The defence submits that jurisdiction to hold the inquiry vests in the Ontario Court of Justice upon the request being made, as set out in s. 536(4), which indicates that the justice shall hold a preliminary inquiry upon request. The amendments have substantive effects.

There is no active presumption of retrospectivity and no expression of intent to have the provisions apply retrospectively. Defence counsel further submits that it would be unfair and inefficient to nullify the valid requests and vacate preliminary hearings requested under the former legislation. Statutory Provisions – Old and New [ 17 ] The focus of this application is on the impact of the changes to s. 535 on transitional cases. However, s. 535 (inquiry) works together with s. 536 (elections).

The relevant portions of both 535 and 536 as they read prior to September 19, 2019 are as follows: Inquiry by justice 535 If an accused who is charged with an indictable offence 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 in certain cases 536(2) If an accused is before a justice charged with an indictable offence, other than an offence listed in

section 469, and the offence is not one 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 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? … Request for preliminary inquiry

(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(

b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in

section 469, the justice shall, subject to

section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under

section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge. [ 18 ] On September 19, 2019 the new provisions came into force. [6] They are reproduced here with the “new” portions underlined for ease of reference. 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 in certain cases 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 14years 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 tried by a court composed of a judge and jury. How do you elect to be tried? … Request for preliminary inquiry

(4) If an accused referred to in subsection (2) elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(

a) to have elected to be tried by a court composed of a judge and jury, or if an accused is charged with an offence listed in

section 469 that is punishable by 14 years or more of imprisonment , the justice shall, subject to

section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under

section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge. Endorsement on the information — accused referred to in subsection (2)

(4.1) If an accused referred to in subsection (2) elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(

a) to have elected to be tried by a court composed of a judge and jury, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing [ 19 ] The amending legislation does not contain transitional provisions addressing these changes. There is no expression of Parliamentary intent regarding the temporal effect of the changes to the availability of preliminary inquiries. Principles of Statutory

Interpretation Parliamentary Intent

[ 20 ] It is not controversial that Parliament intended to restrict the availability of preliminary inquiries in order to help “unclog” the courts, increase efficiency, and reduce the burden on complainants and witnesses who are required to participate. [7] In Jordan , the Supreme Court of Canada expressly invited Parliament to consider such a course of action in order to reduce delay. [8] However, there is no express statement of Parliamentary intent as to the application of preliminary inquiry restriction on transitional cases. In the absence of transitional provisions, courts must consider principles of statutory

interpretation and the effect of the amendments on litigants to decide how new amendments were meant to apply. [9] Retrospectivity [ 21 ] This application is framed in the terms of retrospective application. Retrospective legislation applies new rules immediately to existing facts. New legislation applied retrospectively changes the ongoing effect of past events. [ 22 ] If the new s. 535 was intended to act retrospectively, it would mean that the power to hold an inquiry immediately applies only where accused persons have been charged with an offence with a maximum punishment of at least 14 years.

The court would have no jurisdiction to hold an inquiry for any person who is not subject to the 14 year penalty, regardless of when they made their election and request, or whether or when a preliminary hearing was scheduled. The new threshold requirement would be applied immediately to all cases, retrospectively changing the nature and effect of the accused’s previous choices. [ 23 ] As a matter of principle, the starting point is that retrospectivity is exceptional. People need to know what the law is when they are subject to legal proceedings.

Legislation should be presumed to operate prospectively unless there is a clear Parliamentary intent to the contrary. [10] [ 24 ] However, it is also a principle of statutory

interpretation that enactments characterized as exclusively procedural engage a presumption of retrospectivity. [11] Amendments which are substantive, have substantive effects, or interfere with vested rights fall under the normal presumption against retrospectivity. Dineley confirmed that “where legislative provisions affect either vested or substantive rights , retrospectivity has been found to be undesirable” [emphasis added]. [12] Procedural vs. Substantive Rights [ 25 ] The determination of whether something is procedural or substantive in nature should not become a rigid exercise in labelling.

Categorizing an amendment as procedural or substantive is difficult. Reasonable jurists differ. [13] Further, the categorization of amendments as either procedural or substantive engages a presumption but does not mandate a particular result with respect to temporal application.

The overall question is one of Parliamentary intent. [ 26 ] In general, a procedural provision is one that affects the manner of proof, pleadings or procedures by which substantive law is applied. [14] Substantive provisions affect rights, liabilities, and duties. [ 27 ] The parties dispute whether a preliminary hearing has substantive effects for the accused person. [ 28 ] The preliminary hearing is primarily a vehicle of screening. Its function is to determine whether there is sufficient evidence to warrant committing an accused person to trial.

In addition to the primary function of screening unmerited charges, the preliminary inquiry also provides a mechanism for discovery. [15] The discovery benefits of the preliminary inquiry are incidental and in large measure overtaken by the Crown’s robust obligations to ensure full disclosure. [16] There is no constitutional right engaged by the availability (or not) of a preliminary inquiry. [17] While it has been described as a “right to a preliminary inquiry” or a “right to request a preliminary inquiry”, [18] such a right is not absolute. [ 29 ] The Crown argues that accused persons may use a preliminary inquiry to test and discover the Crown’s case to gain a substantive advantage, but the availability of the inquiry is not a substantive right.

An accused person is not entitled to a continued procedural advantage or opportunity.

For example, changes to evidentiary rules can have profound impact on the ability to successfully defend a case, but appellate courts have long recognized Parliament’s authority to retroactively eliminate those advantages in cases which predate new legislative initiatives Evidentiary changes such as the removal of the need for corroboration of child witnesses and the competence and compellability of spouses, have applied retrospectively in pending cases despite drastic impact on the ultimate result for the accused. [19] Procedural avenues opened or closed do not change the essential elements of the offence and cannot be seen as affecting substantive rights.

Further, the choice to engage in a preliminary inquiry in any case can be overridden by the decision of the Attorney General to prefer a direct indictment, including during a preliminary inquiry or after discharge. [20] [ 30 ] The defence characterizes the right to request a preliminary inquiry as a substantive right. Counsel points to the significance of screening abusive and insufficient charges at the earliest opportunity, before public trial. He further notes that removing the ability to request a preliminary hearing has substantive effects on the right to know the case to meet.

Preliminary hearings are used to discover witnesses and lay foundations for future applications regarding access to evidence and Charter infringements. In some cases, the preliminary inquiry can have an impact on liberty interests; an accused person detained pre-trial will be released if discharged and can use the preliminary hearing to lay a foundation to seek release under s. 523(2)(

b) even where committed to stand trial. [ 31 ] The right to request a preliminary inquiry is difficult to categorize as either procedural or substantive. It is a procedural vehicle defining the manner of proof of the Crown’s case, but it also impacts the accused and conduct of the defence in significant ways.

In R.S. , the Court found the right to request a preliminary inquiry to be procedural only. [21] Although I accept that the tool of a preliminary inquiry is a procedural matter, I cannot find that it has no substantive effect in the circumstances of this case, in light of my conclusions on the vested nature of the right, explained below. [ 32 ] As emphasized in Sullivan on the Construction of Statutes , a provision may be procedural as applied to one set of facts but substantive as applied to another. [22] In making a final determination about the effects of legislative change, I must consider the impact of retrospective application in terms of practical effects, fairness, and interference with existing rights and obligations.

Even if the provision is characterized as strictly procedural, as explained by Marion J. in R.S. , the presumption of retrospectivity that is engaged for procedural provisions is rebutted where it is not possible or feasible to continue proceedings under the new provisions. [23]

Presumption that Parliament Does not Intend to Interfere with Vested Rights [ 33 ] Whether or not a right is vested, appears to be a consideration that is separate from the procedural/substantive debate. Although it is said that there is no vested right to procedure, the Supreme Court has also declined to apply a presumption of retrospectivity where the amendment impacted an “acquired right”, regardless of whether the provision was characterized as substantive or procedural. [24] In Peel Police v.

Ontario, Cronk J.A., speaking for the Court of Appeal for Ontario, explained that an intention to interfere with “vested rights and obligations” must be express. [25] A provision which interferes with or impairs existing rights and obligations cannot be categorized as exclusively procedural. [26] [ 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. [27] Put another way, when all the conditions precedent are met, the right can be said to be acquired, but not before. [28] [ 35 ] In Puskas , the Supreme Court of Canada considered the potential retrospective applicability of a legislative change in the appeal rights to that court. Mr. Puskas and Mr.

Chatwell had appeals pending before the Court of Appeal when the law changed. Where there used to be an appeal as of right to the Supreme Court of Canada, a leave requirement was added. After the legislative change, the Court of Appeal released decisions in both cases that would have, under the previous legislation, entitled them to an appeal as of right. The litigants argued that they should benefit from the “old” appeal as of right because their matters were in the system when the law changed. The Supreme Court of Canada disagreed.

The litigants had not met the conditions precedent to appeal to the Supreme Court prior to the change. [29] The Court of Appeal had not yet rendered a judgment which would entitle them to an appeal.

Section 43 of the

Interpretation Act therefore did not preserve their rights and proceedings, because the rights were not yet accrued when the change was made. [ 36 ] In this case, unlike in Puskas , all conditions precedent to the holding of a preliminary hearing were met in December 2018 when N.F. was put to his election in the words of the then-operative s. 535, elected trial by judge and jury in the Superior Court, requested a preliminary hearing, had his election and request noted on the information, and scheduled a preliminary inquiry in the Ontario Court of Justice. [ 37 ] The Crown argues that the new conditions precedent in s. 535, as amended, are not met; N.F. is not facing a maximum term of imprisonment of 14 years.

I think a broader reading is required. The reference to the maximum penalty in s. 535 (which requires the justice to hold the inquiry) essentially mirrors the language in s. 536(2) containing the election and request. [ 38 ] In my view, the time to consider whether the conditions precedent are met is the point at which the accused is put to the election, where a request for a preliminary inquiry becomes immediately available. The election and request were properly made pursuant to s. 536(2) in this case. N.F. was given his right to request the preliminary hearing and he exercised that right immediately.

In my view, the right was acquired and asserted, and the obligation of the court was immediately triggered pursuant to s. 536(4) to hold the inquiry. [ 39 ] I note that there was some reference in the materials to the position that the preliminary hearing commences immediately upon the request being made. The case law cited in R.S. on this point is, in my view, far from conclusive. [30] The provisions in

Part XVIII are ambiguous as to the point of commencement. I do not find it necessary to define the precise point that a preliminary inquiry begins. I prefer to frame the issue as a consideration of whether the rights and jurisdiction are vested. The language of vested and acquired rights is consistent with the language in statutory

interpretation principles and the provisions of the

Interpretation Act , which I address next.

Interpretation Act [ 40 ]

Section 43 and 44 of the

Interpretation Act assist in identifying the general manner of applying positions in absence of express transitional provisions. [ 41 ]

Section 43 applies to “repealed” provisions. In substance, the option to request a preliminary inquiry for indictable offences with less than 14 year maximum penalties can be said to have been removed or repealed.

Section 43 reads [emphasis added]: 43. Where an enactment is repealed in whole or in part, the repeal does not (

a) revive any enactment or anything not in force or existing at the time when the repeal takes effect, (

b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder, (

c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed , (

d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or (

e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (

c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d), And an investigation, legal proceeding or remedy as described in paragraph (

e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.

[42] In this case, the issue is whether the accused person has a “right or privilege” to the preliminary inquiry or whether the courthas an “obligation” to hold the inquiry such that s. 43 applies. There is debate about whether the “right to a preliminary inquiry” or the“right to request a preliminary inquiry” are substantive in effect or purely procedural.

As explained above, I find that the right to apreliminary inquiry has been acquired and the obligation and jurisdiction of the court to inquire as per the request is already live.Pursuant to s. 43, the preliminary inquiry should continue as if the broader right to request the preliminary hearing had not been removedor repealed. In Puskas, the Supreme Court commented that s. 43, where applicable, excludes the operation of s. 44, which wouldotherwise require that the matter continue consistently with the new provision.

Principled Approach [43] I have reviewed in some detail the statutory principles relied on by the parties and the jurisprudence elaborating on theprinciples. However, there is a risk of losing the forest for the trees.

It is important to take a principled approach to determining theimpact of legislative change.[31] Fairness and predictability are fundamental concerns in assessing the temporal application of newlaw.[32] [44] In this case, concerns of fairness and practical impact weigh heavily against retrospective application. [45] The sudden loss of jurisdiction in every case falling under the new threshold penalty would cause delay and confusion in thecourts, a result completely in conflict with the expressed Parliamentary desire to “increase court efficiencies” with the newprovisions.[33] I cannot interpret the amendment as having a meaning that defeats the very purpose of the amending act.[34] [46] Retrospective application would visit unfairness on accused persons, witnesses and complainants.

All participants may haveinvested time, money, and emotional energy in the proceedings. Some participants have been compelled to participate by way of remandsand subpoenas. Lawyers have prepared cases in accordance with expectations and agreements reached in judicial pretrials, and may havetaken steps such as focus hearings, and filing of statements of issues, to diligently advance the case.

It would negatively impact theproper and orderly administration of justice and undermine the public confidence in the system to vacate all scheduled preliminaryinquiries for the cases where the new threshold punishment is not met. It would mean that courts have been scheduling matters, requiringprocedural steps and compelling appearances, all for a proceeding that the court would never be able to conduct.

The resulting delay inthese individual matters would be significant. [47] I appreciate that court time would be freed in the short term if preliminary inquiries were vacated, and that the short noticerelates to the timing of this application, not the legislation itself. However, if the legislative changes were intended to come in agraduated fashion such that courts would not

schedule and then cancel preliminary inquiries, the powers and direction in that regardwould have been expressed directly by Parliament, in my view. Prior to September 19, 2019, the court had no power to refuse a requestfor a preliminary hearing and remit the matter straight to trial. The inefficiency of preparing for and scheduling the mass numbers ofpreliminary hearings that would now be vacated by a retrospective

interpretation would have been unavoidable. Again, I cannot see thatas consistent with the intent of the amending act. Conclusion [48] Applying the principles and provisions reviewed above, I find that the retrospective application of the provisions wouldinterfere with the vested rights and obligations of the parties and court and would unfairly change the legal effect of steps already takenin this proceeding.

In the absence of any express statement or transitional provision, I conclude that Parliament could not have intendedsuch a result. [49] N.F. made his election and requested a preliminary hearing on December 10, 2018. His request triggered the obligation of thiscourt to hold a preliminary hearing pursuant to s. 536(4) and s. 535. The right was vested at that time. The court’s jurisdiction was vestedat that time. I conclude that the amendment to s. 535 does not invalidate the request or remove the jurisdiction of this court to conduct thepreliminary hearing scheduled to commence September 23, 2019. Applying the

Interpretation Act, s. 43, I hold that the proceedingshould continue as scheduled. [50] I thank both counsel for their thorough preparation for this motion and the excellent materials filed with the court. Released: September 23, 2019 Signed: Justice Magotiaux [6]

An Act to amend the Criminal Code, ss. 238-239 and 406. The amendments to ss. 535-536 came into force between the date ofhearing and the release of these reasons. [10] Dineley, at para. 10; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 , [2004] 2 S.C.R. 248, at para.57; Angus Sun v. Alliance Insurance Co, (SCC), [1988] 2 S.C.R. 256, at p. 268; Sullivan (6th ed), at §25.