R. v. C.T.B., 2021 NSCA 58

Nova Scotia Court of Appeal Citation: R. v. C.T.B. , 2021 NSCA 58 Date: 20210721 Docket: CAC 500959 Registry: Halifax Between: Her Majesty the Queen Appellant v. C.T.B. Respondent Restriction on Publication: Pursuant to Sections 486.4 and 486.5 of the Criminal Code Judge: The Honourable Justice Elizabeth Van den Eynden Appeal Heard: February 18, 2021, in Halifax, Nova Scotia Subject: Criminal law;

interpretation of s. 535 of the Criminal Code ; entitlement to a preliminary inquiry.

Summary: By an amendment to s. 535 of the Criminal Code Parliament limited the availability of preliminary inquiries to offences punishable by 14 years or more in prison. CTB stands charged with several sexual assault related offences, including one under s. 271 where the complainant was under 16 years of age for which the maximum punishment is now 14 years’ imprisonment. However, CTB’s potential exposure is limited to 10 years’ imprisonment because the offence he is alleged to have committed was prior to the increase in maximum punishment.

Accordingly, a provincial court judge determined he had no right to a preliminary inquiry. CTB applied for judicial review and the Nova Scotia Supreme Court overturned that decision. On appeal, the Crown says the reviewing judge erred in his

interpretation of s. 535. and asks this Court to restore the decision of the Provincial Court. Issues: What is the correct statutory

interpretation of s. 535 of the Criminal Code ? Did Parliament intend that only an accused who faces jeopardy of 14 years or more of imprisonment is now entitled to a preliminary inquiry? Result: Appeal allowed. Decision of the reviewing court quashed as the reviewing judge erred in his

interpretation of s. 535. Parliament intentionally linked an accused’s entitlement to a preliminary inquiry to the maximum sentence (jeopardy) for the offence charged and the reviewing judge was incorrect to find otherwise. The words of s. 535 are clear and unambiguous. To request a preliminary inquiry an accused must be “charged with an indictable offence that is punishable by 14 years or more of imprisonment”. CTB has been charged with an indictable offence punishable by 10 years in prison and thus he has no right to a preliminary inquiry. This information sheet does not form part of the court’s judgment.

Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 14 pages. Nova Scotia Court of Appeal Citation: R. v. C.T. B. , 2021 NSCA 58 Date: 20210721 Docket: CAC 500959 Registry: Halifax Between: Her Majesty the Queen Appellant

v. C.T.B. Respondent Restriction on Publication: Pursuant to Sections 486.4 and 486.5 of the Criminal Code Judges: Beveridge, Van den Eynden and Derrick, JJ.A. Appeal Heard: February 18, 2021, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Van den Eynden, J.A.; Beveridge and Derrick, JJ.A. concurring Counsel: Mark Scott, Q.C., for the appellant Ian Hutchison, for the respondent Order restricting publication — sexual offences 486.4

(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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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). Mandatory order on application

(2) 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 victim of the right to make an application for the order; and

(

b) on application made by the victim, the prosecutor or any such witness, make the order. Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4 , on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Reasons for judgment: Overview [ 1 ] The issue on appeal is whether the respondent (CTB) is entitled to a preliminary inquiry. [ 2 ] By an amendment to s. 535 of the Criminal Code in 2019, Parliament limited the availability of preliminary inquiries to offences where the maximum period of imprisonment is 14 years or more. [ 3 ] CTB was charged with several sexual assault related offences, including sexual assault where the complainant was under the age of 16 years, pursuant to s. 271 of the Criminal Code . The punishment for a s. 271 offence has changed over time.

In 2015, Parliament increased the maximum punishment from 10 to 14 years’ imprisonment where the complainant is under 16 years. CTB is charged with a s. 271 offence alleged to have been committed when the maximum punishment was still 10 years’ imprisonment. In the event of conviction, his jeopardy is therefore limited to a maximum of 10 years’ imprisonment. [ 4 ] Because CTB’s exposure is less than 14 years’ imprisonment, a provincial court judge determined the respondent had no right to a preliminary inquiry.

CTB filed a judicial review application before the Nova Scotia Supreme Court and was successful in overturning that decision. The Crown appealed to this Court seeking to restore the decision of the provincial court judge. The question before us is the statutory

interpretation of s. 535 of the Criminal Code . [ 5 ] For the reasons that follow, I have determined the reviewing judge erred in law. CTB has no right to a preliminary inquiry. I would allow the appeal and quash the decision of the reviewing court. Background Criminal Code provisions [ 6 ] I begin with a review of the relevant Criminal Code provisions. This appeal turns on the

interpretation of s. 535. This

section was amended on September 19, 2019, and now provides: 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. [1] [Emphasis added] [ 7 ]

Section 535 was amended by an omnibus bill—C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , 1 st Sess., 42 nd Parl., 2019 (assented to 21 June 2019), S.C. 2019, c. 25.

One of the objectives of Bill C-75 was to restrict the availability of preliminary inquiries with the intended consequence of reducing delay/increasing the efficiency of courts and lessening the burden on some complainants and witnesses from having to testify twice (once at the preliminary inquiry and again at trial). [ 8 ] Prior to the September 19, 2019 amendment the section, now repealed, provided: 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. [2] [Emphasis added] [ 9 ] But for the 2019 amendments to the Criminal Code , CTB would have been entitled to a preliminary inquiry.

The Crown elected to proceed by indictment on all of the charges ( ss. 271 , 151, and 153). The respondent elected to be tried in the Supreme Court of Nova Scotia. However, the amendments to s. 535 and the related provision s. 536 expressly indicate that the right to request a preliminary inquiry and the attendant duty of the provincial court to hold a preliminary inquiry is now restricted to cases in which the accused has elected trial in a superior court (in this case the Nova Scotia Supreme Court) and faces an indictable charge punishable by 14 years’ imprisonment or more.

Without the latter, there is no jurisdiction to conduct a preliminary inquiry. [ 10 ] As noted, one of the charges against CTB included sexual assault of a complainant under the age of 16 years ( s. 271 ). In 2015,

Parliament increased the maximum punishment for this offence from 10 to 14 years’ imprisonment where the complainant is under 16 years. The

section provides: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; … [ 11 ] CTB is alleged to have committed this s. 271 offence prior to the increased maximum punishment. As I will later explain, it is settled law that if convicted, his jeopardy is constrained to a maximum of 10 years’ imprisonment. Nevertheless, CTB tried to persuade the Honourable Judge Daniel A.

MacRury of the Provincial Court of Nova Scotia, that he was entitled to a preliminary inquiry. He contended that his actual jeopardy should not be the focus, rather, the emphasis should be on the nature of the offence. He argued Parliament amended s. 535 of the Criminal Code to limit the availability of a preliminary inquiry to the most serious criminal offences in law. Because he stands charged of an offence which now carries a maximum penalty of 14 years, upon his election to be tried in the Supreme Court, he was entitled to have a preliminary inquiry upon request. That argument was rejected by Judge MacRury.

Decision of Provincial Court [ 12 ] In refusing the request for a preliminary inquiry, Judge MacRury fastened his decision to the undeniable fact that CTB’s potential jeopardy is limited to 10 years’ imprisonment. I turn to his succinct oral decision: I think both counsel and the courts are basically getting used to the new Code provisions as we go forward. It's certainly, I think, a challenge for all litigators and the judiciary as we move forward to deal with the new Code provisions. I thank both counsel for their thoughtful written arguments. Certainly, the Ontario Court of Appeal in R. v.

R.S . basically set out the

interpretation of 539, that prior to September 19th the accused would have been entitled to request a preliminary inquiry. Since September 19th the, an individual charged with the offence attracts 14 years' imprisonment, although in this case Mr. [CTB]'s offence only attracts 10 years' imprisonment. Certainly, in the circumstances, it's my view that, looking at 538, it basically says that if you're liable for 14 years you get a preliminary inquiry and, if you are not, you do not get a preliminary inquiry.

And the Ontario Court of Appeal made it very clear that if you had the right of preliminary inquiry before September 19th, if you haven't made that election, you do not have that right for 10-year offences. So in the circumstances, it's clear that Mr. [CTB] does not have a right to a preliminary inquiry because his liability is only 10 years, not 14 years.

So, in the circumstances, his election is ...He certainly has a right to elect Supreme Court with either a judge or a judge and jury or a Provincial Court but he does not have the right to a preliminary inquiry in this case. [ 13 ] The judge’s reference to R. v R.S. is a decision of the Ontario Court of Appeal ( 2019 ONCA 906 ) relating to the temporal (retrospective application) of the s. 535 amendments.

It determined that only accused persons who requested (or made known their intention to request) a preliminary inquiry before September 19, 2019, would be entitled to a preliminary inquiry under the previous wording of s. 535 . An accused who had not requested (or made known their intention to request) a preliminary inquiry before September 19, 2019 (as is the case with CTB) are subject to the current wording of s. 535 , which limits the availability of preliminary inquiries to persons charged with an offence for which the maximum punishment is 14 years’ imprisonment or more.

Decision under appeal [ 14 ] CTB requested a judicial review of Judge MacRury’s decision, claiming the judge was in error and failed to properly exercise his jurisdiction to

schedule the inquiry. CTB sought an order for certiorari, quashing the lower court decision and an order for mandamus in aid, compelling a preliminary inquiry be conducted by the Provincial Court. [ 15 ] The Honourable Justice Kevin Coady of the Supreme Court of Nova Scotia conducted the judicial review. His decision is reported ( 2020 NSSC 275 ). [ 16 ] Justice Coady concluded Judge MacRury erred in his

interpretation of s. 535 and rejected the Crown’s submission that: …. proper statutory

interpretation required a conclusion that s.535 [right to a preliminary inquiry] could only apply if the particular accused before the court was in jeopardy of a maximum sentence of 14 years’ imprisonment or more. This reflected Parliament’s intent to streamline the process, reduce delays and reduce the testimonial burden on victims of violent crimes. Any effects of legislative amendments that removed availability of a preliminary inquiry where it may have otherwise been available were known to, and intended by, Parliament. [ 17 ] He determined that CTB was entitled to a preliminary inquiry and granted the relief sought.

Section 11(

i) of the Charter played a prominent role in the judicial review submissions and in the reviewing judge’s reasons. That

section provides: 11. Any person charged with an offence has the right: … (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [ 18 ] In his written submissions to Justice Coady, CTB wrote: The question before the Court is whether

section 11(

i) of the Charter operates such that it limits the jurisdiction of the Provincial Court to inquire into a charge that would otherwise be eligible for inquiry.

[ 19 ] CTB argued that it was not Parliament’s intention for the availability of preliminary inquiries to be limited by s. 11(i). He argued that to interpret otherwise is inconsistent with the purpose of the amendments, which he asserted were to reserve the use of preliminary inquiries to offences that are deemed to be the most serious; irrespective of the applicable maximum term of imprisonment. He argued the Charter should be used in a way to enhance rights, not remove them. And he also contended that s. 11(

i) does not limit the availability of preliminary inquiries, as the words “having been convicted” would need to be included in ss. 535 and 536 if that was Parliament’s intention. [ 20 ] In response, the Crown argued that in interpreting s. 535 one must consider the actual individual before the court (the offender, not just the seriousness of the offence) and that s. 11(

i) protects CTB from ever being subject to a penalty greater than 10 years’ imprisonment. It said: [32]

Section 11(

i) of the Charter does not displace, but rather supports, the presumption that the Applicant is charged with offences as they read at the time they were allegedly committed.

Section 11 (

i) operates to ensure that, at sentencing, the Applicant is not subject to a greater punishment than existed at the time the offences occurred. Therefore, if the Applicant is found guilty of an offence for which the maximum penalty - if the offence had been committed after July 17, 2015 - is 14 years imprisonment … the Applicant is guaranteed to be subject to the lower maximum penalty that existed at the time the offence was committed - 10 years imprisonment. … Further, if the Applicant is found guilty and at the time of sentencing, Parliament has lowered the maximum penalty to something less than 10 years,

section 11(

i) will also operate to reduce the maximum penalty to which the Applicant may be liable to the lesser punishment.

Section 11(

i) protects the Applicant from ever being subject to penalty greater than 10 years imprisonment for these allegations. [ 21 ] The Crown referred the reviewing judge to the Supreme Court of Canada authority that established the court is obliged to consider the individual in this interpretative process and not limit the focus to the nature of the charge itself. See Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 , paras. 37-38 — a relevant authority which the reviewing judge did not mention in his decision. [ 22 ] In describing his interpretative task, Justice Coady said: [17] … it all boils down to whether

section 11(

i) of the Charter operates to interpret

section 535 of the Criminal Code in a way that denies Mr. [CTB] a preliminary inquiry which he would be entitled to on a literal reading of the amended

section 535 . [ 23 ] The reviewing judge answered that question in the final two paragraphs of his decision, as follows: [18] I am satisfied that the intention of the amended

section 535 was to address “14-year offences” and not individuals that will enjoy a benefit at sentencing as a result of

section 11(i). I believe this conclusion reflects a “fair, large and liberal

interpretation” of

section 535. I also believe it “assures the attainment of its objects”. I also conclude that this

interpretation is consistent with the principles of statutory

interpretation as espoused by Professor Driedger. [19] Consequently, I am of the respectful view that Judge MacRury erred in his

interpretation of

section 535. The standard of review of correctness requires me to grant Mr. [CTB] a preliminary inquiry. The relief sought is granted. [ 24 ] Although the reviewing judge earlier identified the principles that must guide his

interpretation of the statutory provision (his paras. 8 and 9), with respect, what is absent is any meaningful explanation of why he drew the conclusion he did. [ 25 ] In many ways, the submissions before this Court were similar to those made to Justice Coady, with a continued focus on s. 11(

i) of the Charter . However, as I will explain, there is no need to resort to s. 11(i). As a matter of law, independent of the Charter , given the date of the alleged offence CTB could only ever be at risk of the maximum punishment prescribed at the time of its commission. In this case, an offence that is punishable by 10 years’ imprisonment (not 14 years as required under s. 535 ). [ 26 ] At the end of her oral submissions before the reviewing judge, Crown counsel was live to the premise there was no need to resort to s. 11(

i) of the Charter. She said: I think those were -- actually, no, there was one other point I wanted to make. I think that 11 (

i) is almost a bit of a red herring. It’s not the guiding principle to assist us in statutory

interpretation here. It is assisting us in the principle that Poulin actually talks about where an individual is charged with an offence as it read at the time that they commit -- that they allegedly committed the offence. And that’s why we have -- we can still have a charge of rape, even though that doesn’t exist in the Criminal Code anymore, because an individual is tried -- charged with that offence as it existed.

And so when we’re looking at the actual wording of 535, an individual “who is charged with,” it is the Crown’s respectful submission that Mr. [CTB] is not actually charged with an offence that falls within the definition or the scope of 535 because there was no factual matrix that brought him within the parameters where he would have been punishable -- where the offences he committed were punishable by 14 years or more imprisonment, simply because of the timing of the legislative changes increasing the maximum penalty, as well as the age of the complainant at the actual time that the offences were occurring. [emphasis added] Issue [ 27 ] The notice of appeal set out the sole issue before us—whether the reviewing judge erred by concluding CTB has a right to a preliminary inquiry for offences committed before September 19, 2019 (but was charged with subsequent to September 19, 2019), which, at the time of their alleged commission, only attracted a maximum penalty of 10 years’ imprisonment.

Standard of Review [ 28 ] In my review of Justice Coady’s determinations, I must apply the standard of correctness. The issue before us involves the

interpretation of a statutory provision. That engages a question of law. Therefore, his analysis of s. 535 had to be correct, otherwise appellate intervention is warranted (See R. v. Carvery, 2012 NSCA 107 , at para. 31 , and R. v. Rouse, 2020 NSCA 8 , at para. 8 ).

Analysis [29] A preliminary inquiry is a statutory process conducted by a statutory court that can only exercise the power it is given. There isno constitutional right to a preliminary inquiry. Its purpose, recently reviewed by the Ontario Court of Appeal in R. v. R.S., is: [48] I would not characterize the statutory right to a preliminary inquiry as a standalone substantive right. The preliminary inquiry is aprocess by which the accused may challenge the Crown’s right to proceed to trial and gain information and insights that may assist in thepreparation for trial: (citations omitted).

The preliminary inquiry is part of a broader criminal process applicable to some indictableoffences. There is no vested right to a particular procedure. Changes to, or the elimination of, some part of the process cannot be equatedwith the removal of a substantive right. [30] The question to answer is what do the 2019 amendments to s. 535 of the Criminal Code mean? Did Parliament intend that onlyan accused who faces actual jeopardy of 14 years or more of imprisonment is now entitled to a preliminary inquiry?

Or did Parliamentintend, as Justice Coady found, that CTB is entitled to a preliminary inquiry notwithstanding his maximum jeopardy is 10 years’imprisonment? [31] To begin, a brief review of the governing principles of statutory

interpretation is helpful—they are well known anduncontroversial. In short, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense,harmoniously with the scheme and object of the Act, and the intention of Parliament (see Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27, at para. 21). [32] For convenience I restate the current version of s. 535: If an accused who is charged with an indictable offence that is punishable by 14 years or more of imprisonment is before a justiceand 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 theevidence taken in accordance with this Part. [Emphasis added] [33] On any plain reading of s. 535, the clear prerequisite to request a preliminary inquiry is for an accused to be “charged with anindictable offence punishable by 14 years or more of imprisonment.” [34] I said earlier that independent of any s. 11(

i) Charter considerations, as a matter of law, if convicted, CTB’s potential jeopardyis constrained to a maximum of 10 years’ imprisonment. It is a fundamental tenet of our criminal justice system that one’s conduct andthe legal consequences that flow from it must be adjudicated on the law in force at the time of commission. This is the general rule. InCTB’s case there is no doubt—he has been charged with an offence that is punishable by 10 years’ imprisonment—not 14 years ascontemplated by the amendments to s. 535. [35] In R. v.

Johnson, 2003 SCC 46, the Supreme Court of Canada held: 41 As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in placeat the time that the offence allegedly was committed.

The Charter aside, the four respondents convicted of offences committed prior tothe 1997 amendments are properly sentenced under the former regime. ... [36] More recently, Martin J., writing for the majority in Poulin, 2019 SCC 47, explained: 58 At common law, the general rule is that an accused must be tried and punished under the substantive law in force at the time theoffence was committed, rather than the law in force at any other time — such as at trial or sentencing (R. v. Kelly, (SCC), [1992] 2 S.C.R. 170 (S.C.C.), at p. 203, per McLachlin J.; Johnson, at para. 41; K.R.J., at para. 1; R. v.

Hooyer, 2016 ONCA 44,129 O.R. (3d) 81 (Ont. C.A.), at para. 42. I call this a "general rule" as it can sometimes be displaced by other interpretive rules orprinciples). Where the law changes after an offence is committed, the new criminal provisions are generally presumed not to applyretrospectively to the offence (R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272 (S.C.C.), at paras. 10, 35 and 45-46; Barry v. Alberta(Securities Commission), (SCC), [1989] 1 S.C.R. 301 (S.C.C.) ; Tran, at para. 43; R. v. Bengy, 2015 ONCA 397, 325C.C.C. (3d) 22 (Ont.

C.A.)). … 59 The rationale for this common law rule is the rule of law and, more specifically, the principle of legality. The principle of legalitydictates that persons who rely on the state of the law in conducting themselves, or who risk the liability associated with a law in breakingit, should not subsequently be held to different laws, particularly more stringent ones (K.R.J., at paras. 22-25). This principle is a pillar ofthe criminal law. In K.R.J., this Court recognized that it lies at the heart of s. 11(i) (paras. 2, 23-24, 27 and 37).

Section 11(

i) safeguardsthe principle of legality by "constitutionally enshrin[ing] the fundamental notion that criminal laws should generally not operateretrospectively" (K.R.J., at para. 22). … 60

Section 11(

i) of the Charter enshrines the common law rule that an offender should not be retrospectively subjected to a heavierpunishment than the one applicable at the time the person committed the offence (Whaling v. Canada (Attorney General), 2014 SCC 20,[2014] 1 S.C.R. 392 (S.C.C.), at para. 55; K.R.J., at para. 22). However, it does not stop there.

Section 11(

i) constitutionalizes anadditional protection. It stipulates that, where the law provides a more favourable punishment at the time of the offender's sentencingthan it did at the time of the offence, the offender is entitled to the benefit of this more favourable, current punishment.

This is so eventhough the offender actively risked a greater punishment in committing the offence. [Underlining added; italics in original] [37] Here, the provincial court judge clearly grasped the fact that the Charter aside, CTB’s potential maximum exposure for theoffence with which he has been charged is, and could only be at law, 10 years’ imprisonment. It was on that basis that he concluded CTBwas not entitled to a preliminary inquiry. To repeat, he held:

…looking at 538, it basically says that if you're liable for 14 years you get a preliminary inquiry and, if you are not, you do not get a preliminary inquiry. … So in the circumstances, it's clear that Mr. [CTB] does not have a right to a preliminary inquiry because his liability is only 10 years, not 14 years. So, in the circumstances, his election is ...He certainly has a right to elect Supreme Court with either a judge or a judge and jury or a Provincial Court but he does not have the right to a preliminary inquiry in this case. [ 38 ] With respect, the reviewing judge erred in his

interpretation of s. 535. The words themselves are clear and unambiguous. To request a preliminary inquiry an accused must be “charged with an indictable offence that is punishable by 14 years or more of imprisonment”. This is a clear and unequivocal requirement. As explained above, CTB has not been so charged. He has been charged with an indictable offence punishable by 10 years in prison. [ 39 ] The reviewing judge’s

interpretation of s. 535 is not in harmony with the scheme and object of the Act nor the intention of Parliament. It is clear that Parliament intentionally linked an accused’s entitlement to a preliminary inquiry to the maximum sentence (jeopardy) for the offence charged. Limiting access to an inquiry was done with the aim of freeing up court time and resources in provincial courts to reduce delays, while, also reducing the burden on some witnesses and victims of having to testify twice.

This was the “mischief”, so to speak, that the amendments sought to remedy. [ 40 ] These parliamentary objectives were recently recognized by the Ontario Court of Appeal in R. v. S.S ., 2021 ONCA 479 , at paras. 13-15 . And for a more detailed discussion on the history and intent of the s. 535 legislative amendments see R. v. Windebank , 2021 ONCA 157 (leave to appeal requested but not yet granted [2021] S.C.C.A. No. 122), paras. 18-31, and R. v. Stengel , 2021 ONSC 1413 , paras. 14-18 . [ 41 ] At the time this appeal was heard, the only case on point counsel could identify was R v. Stengel , 2020 ONCJ 491 .

In Stengel , Carlton, J. of the Ontario Court of Justice had arrived at the same conclusion as did Justice Coady. However, appellate Crown counsel contended Stengel had also been wrongly decided. [ 42 ] As it turns out, Stengel was reversed on appeal ( R. v. Stengel , 2021 ONSC 1413 ). The Ontario Superior Court of Justice considered but expressly declined to follow Justice Coady’s decision. Mr. Stengel was in the same position as CTB. Justice Edwards of the Ontario Superior Court of Justice reasoned: 31 An

interpretation of

section 535 that limits the availability of preliminary inquiries to accused individuals liable to a sentence of 14 years or more accords with the obvious ordinary meaning of the section. The Respondent is not charged with an offence for which he is liable to 14 years or more of imprisonment. As such the OCJ has no jurisdiction to

schedule and hold a preliminary inquiry. Substituting the words of Cote J from para 37 of Tran , the maximum sentence that Mr Stengel could receive if he is convicted "is limited by the maximum sentence available at the time of the commission of the offence"-which would be 10 years. It is not a punishment of 14 years or more. … 39 In my view the decision of Carlton J must be quashed, and an Order made that prohibits the OCJ from conducting a preliminary hearing in this case. By applying S 43 of the

Interpretation Act and following R.S . and Tran , the only conclusion I can make is that Mr Stengel is charged with an offence where his maximum jeopardy is a sentence of 10 years or less. As such the clear Parliamentary intent is one that leaves Mr Stengel with a number of options -none of which include the right to have a preliminary inquiry. The Crown's application for prerogative relief is granted and the Order of Carlton J is quashed.

This matter is remitted to the OCJ where Mr Stengel may either elect to have his trial in the OCJ or to have his trial remitted to the Superior Court of Justice. [ 43 ] And more recently, again in similar circumstances, the Ontario Court of Appeal in R. v. S.S . came to the same conclusion: 15 The route that Parliament took to limit preliminary inquiries focussed on restricting them to the most serious offences. It chose to do so by limiting preliminary inquiries to persons who are charged with an offence "that is punishable by 14 years or more of imprisonment".

Parliament expressly coupled the entitlement to a preliminary inquiry to the maximum sentence for the offence charged. … 18 The appellant attempts to counter this

interpretation by submitting that it looks at the circumstances of the offender rather than at the offence itself and thus offends the point made in Windebank , at para. 36 : "In my view, the flaw, both in the respondent's argument and in the decisions below, is that they confuse the seriousness of the offence with the seriousness of the offender, that is, their individual circumstances." 19 I do not agree. The situation here and the one in Windebank are not comparable. Here we are dealing with the maximum punishment that was stipulated for the offence at the time that the offence is said to have been committed.

Thus, the issue in this case does not involve the personal characteristics of the appellant, in the sense that those personal characteristics might drive the appropriate sentence, such as the possible application of the dangerous offender provisions. Rather, it involves the penalty that can be imposed on the appellant, and anyone else in the same situation, arising from the timing of the offence, as the key for determining the seriousness of the offence for the purpose of s. 535 . The personal characteristics of the appellant are not engaged in this analysis.

The only connection to the appellant in his personal capacity is that it is the timing of his alleged actions leading to the offence that are of importance. 20 Further on this point, in Tran , the court supported its conclusion that the timing of the offence determined the maximum sentence for the purpose of s. 36(1)(

a) of the IRPA , in part, based on the presumption against retrospectivity, which applies independent of s. 11(

i) of the Charter : at para 43. In words that are apt to the situation here, Côté J. said, at para. 43: "The purpose of this presumption is to protect acquired rights and to prevent a change in the law from 'look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction' (Driedger (1983), at p. 186)." [ 44 ] As an aside, I note that there have been several other decisions rendered by lower courts which also concluded, albeit for varying reasons, that an accused who only faces jeopardy of 10 years’ imprisonment is not entitled to a preliminary inquiry (for example,

see R. v. B.J.M. , 2021 BCPC 151 , and R. v. Giesbrecht , 2021 SKQB 18 ). [ 45 ] Sections 43 (

d) and (

e) of the

Interpretation Act , R.S.C., 1985, c. I-21 , were relied on by both the Ontario Superior Court of Justice and the Ontario Court of Appeal in R. v. S.S. and by the Ontario Superior Court of Justice in R. v. Stengel . Those sections provide as follows: 43 Where an enactment is repealed in whole or in part, the repeal does not … (

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. [ 46 ] Other than a passing reference by Crown counsel during oral submissions, s. 43 was not argued before us. However, it further reinforces what I have already concluded—CTB is not “charged with an indictable offence that is punishable by 14 years or more of imprisonment”. It directly follows that a preliminary inquiry is not available to him. Respectfully, the reviewing judge was in error when he determined otherwise.

Conclusion [ 47 ] I would allow the appeal and quash the decision of the reviewing court. Van den Eynden, J.A. Concurred in: Beveridge, J.A. Derrick, J.A.