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-75], 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.

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 Court in R.S. dealt with an application by the Crown involving five accused charged with indictable offences punishable by less than 14 years 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 Craig, 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 peremptory challenges also did not apply retrospectively.

In sum, the Ontario Court of Appeal in R.S. has apparently 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.

About the Author: 

Lee is an associate with the Regina office.

About McKercher LLP:

McKercher LLP is one of Saskatchewan's largest, most established law firms, with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have helped our firm to rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2019/20). Integrity, experience, and capacity provide innovative solutions for our clients' diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.