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What Happened to Preliminary Hearings

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Joseph A Neuberger

Neuberger & Partners LLP, Toronto Criminal Lawyers

 

On September 19, 2019, 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, SC 2019, c 25 [Bill C-7], came into effect. Among other things, Bill C-75 eliminated the availability of preliminary inquiries for those charged with an indictable offence punishable by less than 14 years imprisonment. Before September 19, 2019, any accused charged with an indictable offence was entitled to a preliminary inquiry.

The impetus for this legislative change was the federal government’s desire to save complainants in sexual assault cases from having to testify more than once.  Sexual assault cases are often prosecuted by indictment previously yielding an accused the right to a preliminary hearing.  This change eliminated a very effective procedural process for those accused of sex assault.  The government wanted to in essence enhance the chances of convictions in these cases.

Bill C-75 did not, however, indicate whether this amendment would apply to those charged before it came into effect. Whether an accused charged with an indictable offence punishable by less than 14 years imprisonment before September 19, 2019, remained entitled to a preliminary inquiry was left to be interpreted by the courts.

The Ontario Court of Justice in R v Fraser, 2019 ONCJ 652 [Fraser], considered this issue shortly after Bill C-75 came into effect. In Fraser, the Court dealt with five accused who were charged with indictable offences punishable by less than 14 years imprisonment each before September 19, 2019. Each of the accused also requested preliminary inquiries before that date, but no preliminary inquiries had yet been completed.

The Court found that preliminary inquiries were substantive, rather than procedural, rights of an accused, and that the Bill C-75 amendments did not apply retrospectively. For an accused to have maintained his or her right to a preliminary inquiry, then, the Crown must have elected to proceed by indictment, elected a mode of trial other than by a provincial court judge, and requested a preliminary inquiry, all before September 19, 2019.

The Ontario Superior Court of Justice in R v R.S., 2019 ONSC 5497 [R.S.], however, took the opposite view. Similar to the circumstances in Fraser, the Courts in R.S. dealt with an application by the Crown involving five accused charged with indictable offences punishable by less than 1 year imprisonment before September 19, 2019, and who had requested preliminary inquiries prior to that date which had not yet been completed. The Court found that the amendments respecting preliminary inquiries in Bill C-75 were procedural, not substantive. As a result, the Court held that it no longer had jurisdiction to conduct preliminary inquiries for the accused, notwithstanding the fact that preliminary inquiries had already been requested.

On appeal from R.S., the Ontario Court of Appeal reversed the lower court judge’s decision and remitted the matter to the Ontario Court of Justice for the completion of the accused’s preliminary inquiries. The Court of Appeal reasoned that, provided that an accused was entitled to and requested a preliminary inquiry before September 19, 2019, said accused’s right to obtain a discharge at the end of the preliminary inquiry was a substantive right. The Court also stated that there was no evidence of a parliamentary intention to apply the Bill C-75 amendments retrospectively.

See also R v Crag, 2019 ONSC 6732, where the Ontario Superior Court of Justice considered and relied on the R.S. appeal decision in finding that Bill C-75 amendments respecting preemptory challenges also did not apply retrospectively.

In sum, the Ontario Court of Appeal in R.S. resolved the issue. An accused charged with an indictable offence punishable by less than 14 years imprisonment prior to September 19, 2019, is entitled to a preliminary inquiry, but only if the accused had made the appropriate election and request prior to that date.

For persons accused of indictable offences such as sexual assault, that are historical allegations, the procedures that were available at the time of the alleged offence apply.  Thus, if this allegation is prior to the 2019 amendments, a preliminary hearing is available.

The amendments are indeed controversial, and along with other recent amendments impacting jury selection and Bill C-51 with the expanded motion in sex assault cases for records in the possession of the accused, defending sexual assault cases has become a more complex and challenging task.

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