Sarah Bachar, Student, McGill Law Student
Julia Blais-Quintal, Lawyer
Philippe Morneau, Lawyer
Current attempts to limit the scope of preliminary inquiries
for criminal trials follow a familiar trend, stemming from discussions
questioning their contemporary importance and utility. Recently, the long-standing
position of preliminary inquiries in criminal procedure was called into
question by the Supreme Court of Canada, who stated, in their 2016 R v Jordan decision, that “Parliament
may wish to consider the value of preliminary inquiries in light of expanded
disclosure obligations.”[1] This
suggestion was manifested in the recent enactment of Bill C-75,[2] which
brought changes to preliminary inquiries on September 19, 2019.[3]
Between the years 1892 and 2004, preliminary inquiries were
held to fulfill important screening process for the prosecution’s case, as well
as important disclosure functions.[4]
This function evolved in 2004, when major amendments to the Criminal Code,
under Bill C-15A, sought to implement limitations on the scope of preliminary
inquiries.[5]
The goal of the 2004 amendments was to streamline and reduce the cases to go to
preliminary inquiry, and narrow the scope of preliminary inquiries. Notably,
the 2004 amendments transformed preliminary inquiries from being a mandatory
pre-trial process for indictable offences, into a process only available upon
request of a party.[6]
Before the Ontario Court of Appeal’s ruling in R v RS,[7]
decisions in Ontario and Quebec questioned the basis of preliminary hearings.
These inquiries serve as a screening process to test whether the accused should
stand trial, but the bar for committal is low. The point is to establish the
existence of even a “scintilla of evidence”, not the quality of evidence, and
therefore the hearing has little bearing on whether the accused will be found
guilty or innocent.[8] The
right to a preliminary inquiry is not protected by the Constitution and in the
past could be sidestepped by the Crown by filing a direct indictment.[9]
Before the Crown’s duty to disclose all material evidence was
recognized as a Charter-protected right by the Supreme Court[10],
defence lawyers relied on preliminary inquiries to figure out the Crown’s
theory and evidence. Now, failing to disclose evidence to the accused in a
comprehensive and timely manner is a breach of their constitutional rights and
subject to Charter remedies. The preliminary inquiry is therefore less
relevant for discovery though it continues to serve an exploratory function,[11] and
defendants still use them to test the credibility of witnesses.[12] Regardless of the potential benefit of the
preliminary inquiry to the accused’s defence, the Supreme Court has found the
pre-trial hearings to be a statutory right that can be written out of the law
altogether by Parliament.
Bill C-75
The recent enactment of Bill C-75, assented to on June 21,
2019, again marked a move towards an increasingly limited scope for preliminary
inquiries in criminal trials. Importantly, Bill C-75 has restricted preliminary
inquiries to offences punishable by imprisonment of 14 years or more, and has
added increased powers for judges at preliminary inquiries to limit the issues
and witnesses to be heard. Additionally, this bill has hybridized “most
indictable offences punishable by a maximum penalty of 10 years or less” [13],
and has increased the limitation period for summary offences to 12 months, as
well as the default maximum penalty of imprisonment of summary conviction
offences to just under two years.[14]
The purpose of the above amendments is to improve the
efficiency of criminal courts, by reducing the delays, costs and negative
impacts of lengthy court processes — issues that arose in R v Jordan. The implications of Bill C-75 amendments on those
already in the system are currently being contemplated by Canadian courts.
Transitional approaches
Bill C-75 has a short list of transitional provisions, none
of which address amendments to the Criminal Code[15]
that affect preliminary inquiries,[16]
so it is unclear whether Parliament intended for the changes to apply to
ongoing cases. Since the amendments came into force in September, courts have
had to determine whether those accused who had already requested a preliminary
inquiry maintained a right to one. The decisions across the country have not
been consistent. In R v Lamoureux,[17] a
Court of Quebec judge ruled there is no vested right to a preliminary inquiry.
In R v RS, the Ontario Court of
Appeal came to the opposite conclusion.[18]
1) Refusing the right to a preliminary
inquiry (Lamoureux)
In Lamoureux, Court of Quebec judge Dionisios
(Dennis) Galiatsatos refused to hold a preliminary inquiry for an accused
charged with two offences, one with a maximum sentence of 10 years in prison.
Lamoureux had made the request for a preliminary inquiry the day before the
amendments came into effect. It was the court which raised the question of the
effect of Bill C-75 amendments. What’s more, unlike in RS, the
Crown didn’t object to having a preliminary inquiry and actually called the
right to a preliminary inquiry a substantive one. In this case, despite the
agreement between defence and Crown lawyers, Galiatsatos JCQ qualified the
preliminary inquiry as a procedural and not substantive right, which means the
law is presumed to operate as soon as it comes into effect.
At issue was the presumption of retrospectivity for
procedural matters. Retrospectivity means that laws that change procedure have
new consequences as soon as they come into force, even if the process started
before the laws came into force. This is because Parliament has the power to
create new laws. When interpreting statute, judges have to consider that new
laws can restrict or modify a person’s power or privilege.[19]
Parliament can’t, however, affect any right that has been “acquired or
accrued”.[20]
For over a century, procedure has been considered to have a
presumption of retrospectivity by courts and legislators, which requires
criminal and civil courts to adapt proceedings when amendments are made.[21]
Where the law affects substantive or vested rights, for example, the right to
make a claim or invoke a defence, there is no presumption of retrospectivity.[22]
Reviewing
case law, Galiatsatos JCQ found rules of evidence to also be procedural, as
well as amendments that convert indictable offences into hybrid ones in which
prosecutors can pursue either a summary charge or indictment. Are the
amendments to preliminary inquiries (ss 535 and 536 of the Criminal Code) procedural or
substantive? The Court of Quebec judge looked at the nature of the preliminary inquiry,
the application of the Charter and the legislator’s intent. He found that these
inquiries, as discussed earlier, are supposed to filter out frivolous cases,
not replace or supplement the trial which is supposed to determine guilt or
innocence.[23]
The judge also reiterated that there is no right to a preliminary inquiry in
the Canadian Charter though defence lawyers may prefer having them.[24]
Finally, if it’s obviously against Parliament’s intention, judges won’t apply
procedural changes retrospectively—here the judge found the legislator intended
to limit the number of preliminary inquiries as part of an overhaul to the
criminal justice system.[25]
The judge found the preliminary inquiry to be procedural and therefore presumed
to apply retrospectively. Unlike Ontario’s provincial court in R v RS, Galiatsatos
JCQ described
Bill C-75 as an overhaul of a procedural mechanism not a change to jurisdiction.
2) Granting the right to a preliminary
inquiry (RS)
In R v RS, four
appellants had each requested preliminary inquiries for unrelated charges of
sexual assault, an offence that does not carry a punishment of 14 years in
prison. The Ontario Court of Justice found the Bill C-75 amendments on their
own to be procedural, but, because they affected the jurisdiction of the court
to hear the cases, it ruled the amendments had substantive effects.[26] The
Ontario Court of Justice, like other provincial courts, gets its jurisdiction
from statute including the Criminal Code, which gives these courts the
power to conduct preliminary inquiries.
According to the Court of Justice, by limiting the types of indictments
that can be heard at a preliminary inquiry the amendments modify the jurisdiction
of a court, which it reasoned was not simply a “procedural matter”.[27]
The court ruled the amendments did not apply to cases where the preliminary
inquiry had already been requested.
On appeal at the Superior Court of Justice this decision was
overturned before it was affirmed for different reasons by the Court of Appeal.
At the Ontario Superior Court of Justice, the judge reviewed the analysis of
jurisdiction by the provincial court, and found it was the wrong approach.[28] Instead,
the reasoning of the superior court judge was similar to that of the judge in Lamoureux.
It focused on statutory interpretation rules and a functional analysis of the
effects of the amendments. The superior court determined preliminary inquiries
to be procedural—a creation of statute and not affecting a substantive right.[29]
At the Court of Appeal, Doherty JA found that the accused
each acquired a statutory right to a preliminary inquiry, since they fulfilled
the requirements that existed before the amendments came into force (namely to
choose a trial at the Superior Court and request a preliminary inquiry).[30]
Federal and provincial Crown prosecutors—except in Ontario and Manitoba—agreed
with this position, as discussed earlier in Lamoureux.
Though Doherty JA came to a different conclusion, his
analysis was similar to Galiatsatos JCQ. At issue was the
difference between retrospective and retroactive law, and whether the
amendments affected substantive rights. Retroactive laws change the legal
effects of events that happened in the past, while retrospective laws change
the legal effects going forward, Doherty JA explained.[31]
More importantly though, according to the appeal judge, was the kind of right
being affected. The right to a preliminary inquiry was found to be an acquired
right, because the appellants had met the necessary conditions before the
amendments came into force.
In RS, the Ontario
Court of Appeal does acknowledge that there is no vested right to a particular
procedure, including a preliminary inquiry, but it finds there is still an
effect on the substantive rights of the accused when the inquiry is eliminated.
Preliminary inquiries can lead to charges being dropped if prosecutors cannot
produce sufficient evidence, which can end the process altogether. “I have no
difficulty in concluding that the right to challenge the evidentiary basis for
the prosecution at an early stage in the process, and potentially bring the
prosecution to an end, is a substantive right,” writes Doherty JA.[32]
In his decision, Doherty JA was not deterred by the fact
that preliminary inquiries are not constitutionally protected or by the Crown’s
power to ask for a directed verdict. He also acknowledges the authority of
Parliament to eliminate preliminary inquiries without denying accused their
right to make a full answer and defence at trial. The Court of Appeal’s
decision only applies to those who had requested a preliminary inquiry prior to
September 19. However, Doherty JA’s appreciation of the liberty interests at
stake deviates from the purely procedural characterization of preliminary
inquiries in lower courts.
Until Doherty JA’s decision, judges at the Ontario Court of
Justice had been following the Superior Court of Justice’s order, because
superior courts are hierarchically above provincial courts, and judges must
follow the doctrine of stare decisis.[33]
Since November, Ontario courts are bound by the Court of Appeal decision, which
is the only appellate court decision on the issue in Canada.[34]
Potential conclusion 1:
Based on contradictory Canadian court interpretation, it
will remain to be seen how Bill C-75 will be interpreted in the future, as it
seeks to embody the objectives envisioned in Jordan. Between 2016 and 2018, courts appeared to be addressing
delays by completing older cases, according to a recent Statistics
Canada report on efficiency in adult criminal courts (the study did not look at
youth courts).[35] Since
Jordan, more cases are being completed per year, and fewer case are at
risk of crossing the limits set out by the 2016 decision. This appears to
suggest that—even before Bill C-75—measures put in place have led to a greater
efficiency in the criminal court system.
Potential conclusion 2:
Based on contradictory Canadian court interpretation, it
will remain to be seen how Bill C-75 will be interpreted in the future, as it
seeks to embody the objectives envisioned in Jordan. The amendments to preliminary inquiries are only the latest
attempt to do away with the hearings altogether.
[2] An Act
to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and
to make consequential amendments to other Acts, SC 2019, c 25.
[3] Ibid. ss 238–241, 406.
[5] Criminal
Law Amendment Act, 2001, SC 2002, c 13.
[11] R v Rao
(2012), 288 CCC (3d) 507 (BCCA).
[17] 2019 QCCQ 6616 [Lamoureux].
[19] Interpretation Act, RSC 1985, c I-21 s
42.
[20] Ibid s 43(c).
[21] Ibid s 44(c); Lamoureux,
supra note 8 at para 37.
[23] Ibid at paras 55–64.
[24] Ibid at paras 66–74.
[25] Ibid at paras 75–87.
[34] According to a search of decisions reported on
CanlII.org.
[35] Statistics Canada, Measuring
efficiency in the Canadian adult criminal court system: Criminal court workload
and case processing indicators, by by Maisie Karam, Jennifer Lukassen,
Zoran Miladinovic, and Marnie Wallace, Catalogue No 82-002-X (Ottawa:
Statistics Canada, 5 March 2020), online: < https://www150.statcan.gc.ca/n1/pub/85-002-x/2020001/article/00004-eng.htm?fbclid=IwAR0Br_v3OOzhlmJQUyVk-8SH7faXJqN1kkRo1miGgu2vnNm-caBvzQv4KR4>.
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