R. v. Boutilier, 2020 NSSC 275

SUPREME COURT OF Nova Scotia Citation: R. v. Boutilier , 2020 NSSC 275 Date: 20201005 Docket: Halifax, No. 497164 Registry: Halifax Between: Craig Thomas Boutilier Applicant v. Her Majesty the Queen and The Honourable Judge Daniel A. MacRury Respondent JUDICIAL REVIEW DECISION Restriction on Publication By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner.

Judge: The Honourable Justice Kevin Coady Heard: August 6, 2020, in Halifax, Nova Scotia Written Decision: October 5, 2020 Counsel: Ian Hutchison and Jennifer MacDonald, Counsel for the Applicant Erika Koresawa, Counsel for the Respondent By the Court: [ 1 ] The Applicant, Thomas Craig Boutilier, stands charged with sexual offences pursuant to sections 271 , 151 , 152 and 153(1) of the Criminal Code of Canada . These offences are alleged to have occurred between January 1, 2005 and April 2, 2017. The Crown proceeded by way of Indictment. The complainant turned 16 years of age on April 3, 2013.

One count in the Indictment alleges sexual assault ( s. 271 ) subsequent to the complainant’s 16 th birthday. Another count alleges sexual assault ( s. 271 ) prior to the complainant’s 16 th birthday. The latter is at the heart of the issue before the Court. [ 2 ] When the alleged offences occurred, a conviction under

section 271 involving a complainant under the age of 16 years was subject to a maximum punishment of ten years’ imprisonment if prosecuted by way of Indictment. On July 17, 2015 Parliament raised the maximum punishment under

section 271 from ten years to 14 years when the complainant is under the age of 16 years and if prosecuted by way of Indictment. [ 3 ] On September 19, 2019 Parliament amended

section 535 of the Criminal Code to limit preliminary inquiries to offences for which the maximum punishment is 14 years’ imprisonment or more. Section 11(1) of the Canadian Charter of Rights and Freedoms states: Any person charged with an offence has the right 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. Consequently, if convicted, Mr. Boutilier’s jeopardy is limited to ten years’ imprisonment.

[4] On February 11, 2020 the Honourable Judge MacRury determined that Mr. Boutilier was not entitled to a preliminary inquiryand, as such, was ordered to go directly to trial in the Supreme Court of Nova Scotia. He found that Mr. Boutilier was not entitled to aPreliminary Inquiry because of the application of section 11(1) of the Charter which limited his jeopardy to a maximum term of tenyears. Judge MacRury’s reasons are as follows: 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 [sic], a individual charged with the offenceattracts 14 years’ imprisonment, although in this case Mr. Boutilier’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 apreliminary 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-yearoffences. So in the circumstances, it’s clear that Mr. Boutilier does not have a right to a preliminary inquiry because his liability is only10 years, not 14 years. So, in the circumstances, his election is … He certainly has a right to elect Supreme Court with either a judge orjudge and jury or a Provincial Court but he does not have the right to preliminary inquiry in this case.

So that is my ruling. [5] On March 4, 2020, Mr. Boutilier filed a Notice of Judicial Review challenging Judge MacRury’s

interpretation of

section 535of the Criminal Code of Canada. He requests an order in the nature of mandamus which would require “the Applicant’s case be returnedto the Provincial Court and that a Preliminary Inquiry take place.” Standard of Review [6] Prerogative writs are extraordinary remedies concerned with a lower court’s wrongful refusal or erroneous exercise ofjurisdiction. In R. v. MacDonald, 2007 NSSC 255, Justice Murphy stated, at para. 17: Mandamus is a discretionary remedy available to compel an inferior court to exercise jurisdiction when it improperly refuses to do so. (Kipp v.

Ontario (Attorney General), (SCC), [1965] S.C.R. 57) Mandamus may compel a body to act, but a court issuingthe remedy cannot require exercise of discretion in a particular way or dictate the result of a hearing. Mandamus generally responds to a refusal to exercise jurisdiction. Its cousin, certiorari, generally responds to an excess of jurisdiction. Both attract the same standard of review. [7] The Supreme Court of Canada in R. v. Russell, 2001 SCC 53, stated at para. 19: 19 The scope of review on certiorari is very limited.

While at certain times in its history the writ of certiorari afforded more extensivereview, today certiorari ‘runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term'jurisdiction' being given its narrow or technical sense’: Skogman v. The Queen, (SCC), [1984] 2 S.C.R. 93, at p. 99.Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunalcommitted an error of law or reached a conclusion different from that which the reviewing court would have reached.

Rather certioraripermits review ‘only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach ofthe principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction’. The Applicant argues that Judge MacRury’s

interpretation of

section 535 of the Criminal Code amounts to a refusal to exercisejurisdiction. [8] The issue before the Court involves a question of statutory

interpretation. Questions of statutory

interpretation are questions oflaw and, as such, are reviewable on a standard of correctness. In R. v. Carvery, 2012 NSCA 107, Justice Beveridge stated at para. 31: 31 Ordinarily appellate courts show great deference to sentencing decisions (R. v. L.M., 2008 SCC 31). But here, in deciding the issue ofcredit under s. 719 of the Criminal Code, the trial judge was engaged in an exercise of statutory

interpretation, which as a question of lawattracts a correctness standard of review (Housen v. Nikolaisen, 2002 SCC 33, at para. 8; R. v. MacDonald, 2012 NSCA 50, at para. 44). Most rules and principles of statutory

interpretation are judge-made; however,

section 12 of the

Interpretation Act (RSC-1985) providessome general guidance: Every enactment is deemed remedial and shall be given such fair, large and liberal construction and

interpretation as best assures theattainment of its objects. Remedial is an adjective and means an intention to correct something that is wrong or to improve a bad situation (Cambridge EnglishDictionary). [9] The Supreme Court of Canada has given clear direction that the starting point for statutory

interpretation is the “modern rule”as developed by Professor Driedger in his text Driedger on the Construction of Statutes”. In Re Pizzo & Pizzo Shoes Ltd. (SCC), [1998] 1 S.C.R. 27 Justice Iacobucci commented as follows, at para. 21: 21 Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

This preferred approach recognizes the important role that context must inevitably play when a Court construes the written words of a statute. Words, like people, take their color from their surroundings. Applicant’s Position [ 10 ] The Applicant’s view of the issue is as stated at paragraph 25 of his pretrial brief: The Applicant respectfully submits that the offence Mr. Boutilier is charged with carries a maximum penalty of 14 years, and that upon his election to be tried in the Supreme Court, Judge MacRury was obliged to

schedule the inquiry upon his request. The Applicant submits that Judge MacRury committed a jurisdictional error in wrongfully refusing to do so. Respondent’s Position [ 11 ] The Respondent’s view of the issue is as stated at paragraph 7 of its prehearing brief: The Respondent further submits that Judge MacRury correctly interpreted

section 535 and properly refused to exercise jurisdiction to hold a preliminary inquiry. Analysis [ 12 ] The critical question before the Court is whether section 11(1) of the Charter operates to limit the jurisdiction of the Provincial Court to conduct a preliminary inquiry on a charge that would otherwise be eligible for one. Mr. Boutilier argues that it was not Parliament’s intention for the availability of preliminary inquiries to be limited by section 11(1) . There does not appear to be any reported decisions that address this issue. [ 13 ] Mr.

Boutilier further argues that to interpret section 11(1) so as to limit access to a preliminary inquiry would be inconsistent with both the purpose of preliminary inquiries and the Charter . He also submits that Parliament’s intention was to reserve these inquiries for offences considered most serious – that is offences that attract a maximum sentence of 14 years’ imprisonment. He argues that Judge MacRury’s focus was erroneously on the offender and not the offence. [ 14 ] Mr.

Boutilier also submits that Judge MacRury erred in considering the Charter relief that would be available upon conviction under a Criminal Code provision concerned with the pretrial stage of the process. He argues that this approach offends the presumption of innocence. Specifically, that interpreting

section 535 as a precluding a preliminary inquiry, where an accused may be subject to a lesser punishment upon conviction, presumes the accused is guilty. I am not persuaded by this argument and will say nothing more on this point. [ 15 ] The primary purpose of a preliminary inquiry is to determine whether the Crown has sufficient evidence to warrant the accused to stand trial. There is also a level of discovery inherent in such a proceeding ( R. v. MacDonald, 2007 NSSC 255 ). However, access to these functions is not a substantive right enjoyed by an accused. In R. v.

RS, 2019, ONCA 906 , Justice Doherty comments as follows, at paragraphs 63-67: 63 Although it is unnecessary for the resolution of this appeal given my finding that the appellants' right to seek and obtain a discharge at the end of a preliminary inquiry is a substantive right, I will address the appellants' argument that the retrospective application of the amendments also affects their substantive right to make full answer and defence. 64 Traditionally, the preliminary inquiry has provided valuable assistance to an accused in making full answer and defence.

The preliminary inquiry allows for discovery of the Crown's case, testing of that case, and permits counsel to lay the groundwork for arguments and defences that may be advanced at trial: see G.A. Martin, "Preliminary Hearings", Special Lectures of the Law Society of Upper Canada, 1955, at p. 1. 65 The right to make full answer and defence is a trial right. There is no right to make full answer and defence at the preliminary inquiry. The right to make full answer and defence at trial, however, also entitles the accused to full and timely disclosure of the Crown's case.

It does not entitle the accused to any particular procedure to achieve that end. Nor does it require a procedure that maximizes the ability of the accused to make full answer and defence: see R. v. Bjelland , 2009 SCC 38 , [2009] 2 S.C.R. 651, at paras. 32-37 . 66 The right to confront witnesses and call evidence at a hearing prior to the trial proper, such as a preliminary inquiry, has never been an essential component of the criminal process in Canada.

Most indictable offences are prosecuted and properly defended without a preliminary inquiry. 67 The assessment of whether an accused has had an adequate opportunity to make full answer and defence, and specifically to adequately prepare for trial, is a fact-specific inquiry. It is not answered by determining whether a particular procedure was or was not available to an accused. The question is whether, in the circumstances, the accused, based on the procedures that were available to him, had an adequate opportunity to meet the charges and prepare the defence.

Judges faced with arguments that an accused did not have that opportunity, have broad powers, both in their inherent jurisdiction as trial judges and under s. 24(1) of the Charter , to make remedial orders that will ensure that the accused has the opportunity to properly make full answer and defence. The elimination of the right to a preliminary inquiry does not affect the right to make full answer and defence. It does not in any way diminish the nature and substance of that right.

The most serious criminal offences are those that attract a 14-year or greater maximum sentence of imprisonment. I am not persuaded that denying Mr. Boutilier a preliminary inquiry deprives him of a substantive right or impacts on his ability to make full answer and defence. [ 16 ] It is helpful to review the purpose of Bill C-75. It was an Omnibus Bill aimed at modernizing the criminal justice system, reducing delays and ensuring the safety of Canadians.

The Minister of Justice and Attorney General of Canada stated that, in limiting the availability of preliminary inquiries to only those persons charged with various serious offences, the legislation was meant to increase court efficiency and reduce burdens on witnesses and victims from having to testify twice. [ 17 ] The above considerations are germane to the statutory

interpretation issues before this Court; however, it all boils down to whether section 11(1) of the Charter operates to interpret

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

section 535 . [ 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(1). 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. Boutilier a preliminary inquiry. The relief sought is granted. Coady, J.