R. v. R.S., 2019 ONCA 906
BILL C-75 - PRELIMINARY INQUIRIES - AMENDMENTS
On September 19, 2019, Bill C-75 amended the provisions of the Criminal Code relating to preliminary inquiries. Prior to the amendments, anyone in Ontario who elected a trial in the Superior Court of Justice was entitled to request a preliminary inquiry. After the amendments, preliminary inquiries were only available for indictable offences punishable by 14 years’ imprisonment or more.
The issue on appeal is whether these amendments apply to charges and/or elections before the Ontario Court of Justice at the time the amendments took place.
The amendments do not apply to accused who elected their mode of trial and requested (formally or informally) preliminary inquiries before the amendments came into force on September 19, 2019.
Overview of Legislation
Under the new legislation, s. 536(2) applies to offences carrying a penalty of 14 years’ imprisonment or more, and s. 536(2.1) applies to offences punishable by less than 14 years’ imprisonment. The latter makes no reference to the availability of preliminary inquiries.
Prior to the amendments, where the accused elected trial in the Superior Court, the accused was automatically entitled to request and thereby entitled a preliminary inquiry by virtue of s. 536(4). Under the amendments, however, the accused’s ability to request a preliminary inquiry and subsequent obligation on the court to hold a prelim no longer flows from the election of trial in Superior Court. Now, rather, it is only available where the accused is facing charges punishment by 14 years of imprisonment.
Additionally, accused persons charged with indictable offences punishable by less than 14 years’ imprisonment are no longer able to request or obtain a preliminary inquiry.
Analysis
The real question on appeal is whether the amendments interferes with acquired substantive rights. If it does, the amendments are presumptively prospective. If the application of the amendments to the accused’s case would interfere with these substantive rights, there is a rebuttable presumption against the application of the amendments to the accused.
The amendments are procedural in nature. This characterization, however, does decide the outcome of this appeal. The court must determine the practical impact of the amendments on individuals affected by it. Procedural amendments that alter substantive rights are still subject to the rebuttable presumption in favour of prospective application.
As of September 19, 2019 did accused persons have a statutory right to a preliminary inquiry? Yes. Section 535 of the Criminal Code establishes that a justice shall inquire into the charge where the accused charged with an indictable offence requests such an inquiry. The appellants in this case had elected their mode of trial and requested a preliminary inquiry prior to the enactment date. In other words, they had fulfilled all the conditions precedent to exercise their substantive right to a preliminary inquiry.
The reasoning in R v Hafeez (1996), 27 OR (3d) 799 (CA), does apply to accused, however, who were charged before September 19, 2019 but had not elected or requested a preliminary inquiry by that date. Accused persons who had not elected a mode of trial and requested a prelim prior to the enactment date did not acquire a right to a preliminary inquiry, they merely had the possibility of such a right.
The ONCA finds that the elimination of the preliminary inquiry affects substantive rights. Although a prelim does not determine the guilt of an accused, it is of significant importance to the accused. The purpose of a prelim is to act as a screening mechanism of frivolous allegations and gives the accused the opportunity to have a judicial determination of whether the Crown can produce sufficient evidence.
These amendments, when applied to accused who have elected and requested a prelim, therefore, do affect substantive rights. This results in a presumption that the amendments are prospective, rather than retrospective, unless Parliament has clearly signalled otherwise. Bill C-75 is completely silent on the issue of transitioning. There is no evidence that Parliament intended to apply the amendments retrospectively.
Doherty JA, writing for the court, remits the matters to the Ontario Court of Justice for preliminary inquiries in accordance with accused’s elections and requests for preliminary inquiries made prior to September 19, 2019.