How are courts responding to new limits on preliminary inquiries?

Sarah Bachar, Student, McGill Law Student

Julia Blais-Quintal, Lawyer

 

Michelle Pucci, Student, McGill Law Student

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]

The History of Preliminary Inquiries

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.

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^[1] R v Jordan, 2016 SCC 27 at para 140.

^[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.

[4] Stephen Gerard Coughlan, Criminal Procedure, 3^rd ed (Toronto: Irwin Law, 2016) at 292-293.

[5] Criminal Law Amendment Act, 2001, SC 2002, c 13.

[6] Supra note 4 at 293.

[7] R v RS, 2019 ONCA 906 [RS]

^[8] R v Lamoureux, 2019 QCCQ 6616 at para 59 [Lamoureux].

[9] R v SJL, [2009] 1 SCR 426 [SJL].

^[10] R v Stinchcombe, [1991] 3 SCR 326.

^[11] R v Rao (2012), 288 CCC (3d) 507 (BCCA).

^[12] SJL supra note 19 at para 22.

[13] Supra note 2.

[14] Supra note 2.

[15] Criminal Code, RSC 1985, c C-46.

[16] Supra note 2 ss 354–360.1.

^[17] 2019 QCCQ 6616 [Lamoureux].

^[18] R v RS, 2019 ONCA 906.

[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.

[22] Lamoureux, supra note 8 at para 40.

[23] Ibid at paras 55–64.

[24] Ibid at paras 66–74.

[25] Ibid at paras 75–87.

^[26] R v RS, 2019 ONCJ 629 at paras 51, 81.

[27] Ibid at paras 54, 59.

^[28] R v RS, 2019 ONSC 5497 at paras 58, 59.

[29] Ibid at paras 34, 35, 42, 45.

^[30] R v RS, 2019 ONCA 906 at para 39.

[31] Ibid at paras 25, 26.

^[32] R v RS, 2019 ONCA 906 at para 50.

[33] R v RS, 2019 ONCA 906 at para 74.

[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>.