Décision

[1]                Mr. Archambault appeals against a judgment of the Superior Court, District of Saint-Hyacinthe,[1] that dismissed an application for certiorari to quash a decision by the Court of Quebec[2] that it had no jurisdiction to conduct a preliminary inquiry as a result of an amendment to section 535 of the Criminal Code.

[2]                Mr. Grenier appeals against a judgment of the Superior Court, District of Quebec,[3] that dismissed an application for certiorari to quash a decision by the Court of Quebec[4] that it had no jurisdiction to conduct a preliminary inquiry as a result of an amendment to section 535 of the Criminal Code.

[3]                Both appeals were heard by the same panel and the reasons that follow address each of them.

[4]                For the reasons of Healy J.A., with which Vauclair and Hamilton JJ.A. agree, THE COURT:

[5]                GRANTS Mr. Archambault’s appeal;

[6]                REMITS File No 750-01-055927-196 to the Court of Quebec for a preliminary inquiry;

[7]                GRANTS Mr. Grenier’s appeal;

[8]                REMITS File No 200-01-229370-196 to the Court of Quebec for a preliminary inquiry.

[9]                The two appeals before the Court are unrelated but they raise the same issue, which is whether the amendment of section 535 of the Criminal Code[5] that came into force on 19 September 2019 deprived the appellants of the opportunity to request a preliminary inquiry. In both cases the Court of Quebec said that it did.[6] The Superior Court agreed with that conclusion.[7] These reasons join the two appeals from the decisions of the Superior Court.

[10]           The amendment of section 535 was included in an omnibus bill that modified many provisions in the Criminal Code with the intention to simplify and expedite the prosecution of criminal cases. Bill C-75 contained no transitional measures and as a result courts across Canada have been asked to decide a variety of issues concerning the temporal application of its provisions. The answers have been mixed, as the Supreme Court noted in Chouhan:

[86]  When Parliament abolished peremptory challenges in Bill C‑75, it indicated that the abolition would come into force on September 19, 2019. Regrettably, and contrary to Parliament’s own legislative drafting guidelines, the legislation did not include transitional provisions that set out whether and how the amendments would apply to criminal prosecutions pending in the system (Canada, Privy Council Office, Guide to Making Federal Acts and Regulations (2nd ed. 2001), at p. 91).

[87]  It thus fell to the courts to sort out the temporal application of the abolition of peremptory challenges. As is generally the case when Parliament fails to include transitional provisions in a legislative amendment, the temporal application of these amendments divided trial courts across the country. The debate centered on principles of statutory interpretation, namely the presumptions that procedural laws apply immediately in all cases, while laws that affect substantive rights can only apply prospectively to cases in which the relevant rights have not yet vested.[8]

[11]           The specific question in the present appeals is whether the temporal application of the amendment to section 535 is strictly prospective or also retrospective. Although the answers in various courts have been mixed, and sometimes irreconcilable, this question is raised in this court for the first time by these appeals. The Court’s answer is limited to the temporal effect of the amendment to section 535 and does not consider the effect of other amendments enacted by Bill C-75. That answer, in short is that the entitlement to a preliminary inquiry is determined with reference to the state of the law at the date of the commission of the alleged offence and that the entitlement, while “accruing” from that moment, is vested or accrued at the date on which the charge is first brought before a court.

The amendment

[12]           Before the amendment a person was entitled to a preliminary inquiry if he or she was charged with an indictable offence punishable on conviction by a maximum sentence of ten years or more. The amendment sought to reduce the incidence of preliminary inquiries by restricting them to offences punishable by fourteen years or more. As amended, section 535 is as follows:

If an accused who is charged with an indictable offence that is punishable by 14 years of more of imprisonment is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same translation, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

(amending words italicised)

[13]           The section stipulates three conditions: a preliminary inquiry may be held only in respect of an offence punishable by fourteen years or more; it entitles the accused to a preliminary inquiry only upon request but does not specify when such a request must be made; it presupposes that the accused has elected trial by judge and jury or judge alone. As a consequence of the amendment of section 535, the nature of the election is specified in a modification of section 536(2), where there is an entitlement to a preliminary inquiry, and in the addition of section 536(2.1), where there is not:

536(2)  If an accused is before a justice, charged with an indictable offence that is punishable by 14 years or more of imprisonment, other than an offence listed in section 469, the justice shall, after the information has been read to the accused, put the accused to an election in the following words… 

536(2.1) If an accused is before a justice, charged with an indictable offence — other than an offence that is punishable by 14 years or more of imprisonment, an offence listed in section 469 that is not punishable by 14 years or more of imprisonment or an offence over which a provincial court judge has absolute jurisdiction under section 553 —, the justice shall, after the information has been read to the accused, put the accused to an election in the following words…

(amending words italicised)

The appeals

[14]           The relevant context is the same in the present appeals on five points. First, the appellants were charged with indictable offences that carried maximum sentences of ten years at the time they were allegedly committed and were therefore entitled at that time to a preliminary inquiry. Second, the offences were amended before they were charged to allow a maximum of fourteen years. Third, the appellants appeared on the charges before the amendment of section 535 came into force on 19 September 2019. Fourth, the appellant Archambault elected mode of trial before 19 September 2019 and Grenier did the same after that date but both requested a preliminary inquiry only after 19 September 2019.[9] Fifth, both requests were denied in the Court of Quebec for lack of jurisdiction after the amendment and the Superior Court refused judicial review in each case.

The principles of interpretation

[15]           Legislative amendments in general have prospective application from the date they enter into force.[10] This interpretation is consistent with the principle of legality and the rule of law because it ensures that people are held accountable for compliance with laws of which they have had prior notice.[11] The principle in favour of prospective application thus precludes retrospective or retroactive application unless the legislature provides otherwise by clear language or necessary implication to convey its intention.[12] No evidence was adduced in the present cases to rebut the general presumption in favour of prospective application.

[16]           In Poulin Martin J. recently reiterated a corollary of this general principle:

[58]                        At common law, the general rule is that an accused must be tried and punished under the substantive law in force at the time the offence was committed, rather than the law in force at any other time — such as at trial or sentencing (R. v. Kelly, 1992 CanLII 62 (SCC), [1992] 2 S.C.R. 170, at p. 203, per McLachlin J.; Johnson, at para. 41; K.R.J., at para. 1; R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81, at para. 42. I call this a “general rule” as it can sometimes be displaced by other interpretive rules or principles). Where the law changes after an offence is committed, the new criminal provisions are generally presumed not to apply retrospectively to the offence (R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at paras. 10, 35 and 45‑46; Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC), [1989] 1 S.C.R. 301; Tran, at para. 43; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22). This explains why, in this case, the state was able to charge Mr. Poulin in 2014 for an offence that had been repealed from the Criminal Code in 1987. While the offence no longer existed when Mr. Poulin was charged, convicted and sentenced, it existed when he committed his offences of gross indecency between 1979 and 1983 (see also Interpretation Act, R.S.C. 1985, c. I‑21, s. 43).

[59]                        The rationale for this common law rule is the rule of law and, more specifically, the principle of legality. The principle of legality dictates that persons who rely on the state of the law in conducting themselves, or who risk the liability associated with a law in breaking it, should not subsequently be held to different laws, particularly more stringent ones (K.R.J., at paras. 22‑25). This principle is a pillar of the criminal law. In K.R.J., this Court recognized that it lies at the heart of s. 11(i) (paras. 2, 23‑24, 27 and 37). Section 11(i) safeguards the principle of legality by “constitutionally enshrin[ing] the fundamental notion that criminal laws should generally not operate retrospectively” (K.R.J., at para. 22). The principle of legality also finds expression, for instance, in s. 11(g) of the Charter, which protects a person against being convicted for an act which was not a crime when the person engaged in it. As explained in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1152:

[T]here can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive.  The rationale underlying this principle is clear.  It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid . . . .[13]

[17]           As will be seen below, there is no settled meaning to the phrase “the substantive law as it stood at the time the offence was committed.” Some aspects are clear, such as the ingredients of the offence, any relevant defences and the maximum sentence. In my view, to these must be added the classification of the offence as particularised in the charging document on which the accused is arraigned at the first appearance because this classification will determine clusters of consequences – procedural, substantive and mixed - with respect to the conduct and disposition of the prosecution.

[18]           Without the benefit of transitional measures, courts called upon to determine the temporal application of the amendment of section 535 have relied on various guides to the interpretation of amendments to ascertain Parliament’s intention in this respect. Their reliance on these guides has demonstrated that the array of seemingly applicable principles can yield inconsistent results. Among these is the settled principle that to discern legislative intent the words of a statutory provision should be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, the object of the statute and the intention of Parliament.[14] This is a daunting challenge in the interpretation of multitudinous amendments in an omnibus bill such as Bill C-75, which might be subordinated to the overarching objective of simplifying and expediting the administration of justice but resistant to a uniform interpretation. Such a bill also raises daunting challenges concerning the meaning that should be given to the “entire context.” Does that mean, for example, the entire context of the reforming statute and its purpose or does it extend to the entire context of the law that the amending statute seeks to reform?

[19]           Some assistance in determining the temporal application of amending legislation can be derived from sections 43 and 44 of the Interpretation Act, which provide as follows:

  Effect of repeal

43 Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or

(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.

Repeal and substitution

44 Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,

(a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person;

(b) every bond and security given by a person appointed under the former enactment remains in force, and all books, papers, forms and things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with the new enactment;

(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment,

(ii) in the enforcement of rights, existing or accruing under the former enactment, and

(iii) in a proceeding in relation to matters that have happened before the repeal;

(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;

(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;

(g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; and

(h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing, be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read as unrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment.[15]

[20]           These provisions lend some support to the proposition that the temporal application of an amendment should be limited, in the absence of clear indicia to the contrary, only to prospective effects if the amendment affects a vested, accrued or accruing right, interest or entitlement.[16] In short, sections 43 and 44 of the Interpretation Act typically do not resolve interpretative difficulties of the kind raised in the present appeals because they cannot assist interpretation without themselves being subjected to extensive exposition and interpretation.

[21]           The courts have been left to resolve problems of interpretation by incremental steps that are certainly helpful but not always clear or consistent.

[22]           For many years it was thought that the strength of the presumption of prospective application was mitigated in favour of retrospective application if a legislative amendment were characterised as procedural and not substantive in nature. At least since 2012, when the Supreme Court decided Dineley, this distinction has been qualified and is no longer advanced as a basis for easier exceptions to the general principle of prospective application on the simple ground that the amendment is procedural in nature. This is apparent in the opinion of Deschamps J.:

[10]   New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256, at pp. 266‑67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, at pp. 331‑32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331).

[11]   Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.‑A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, in discerning whether they affect substantive rights.[17]

[23]           This passage appears to preserve a formal and categorical distinction between “purely procedural” and, presumably, purely substantive for the purpose of determining the temporal application an amendment but it more importantly affirms that in the absence of purely Manichean categories another approach is necessary.

[24]            Cromwell J. dissented in Dineley but not on this point, as is explained at length in the following passages:

[48]                          The significance of the distinction between substantive and procedural provisions for statutory interpretation is reflected in the Interpretation Act, R.S.C. 1985, c. I-21. On the one hand, proceedings commenced under a now-repealed provision are to continue under the procedures set out in the new provisions. On the other, the repeal of an enactment does not affect any right acquired under it.  I will briefly describe the relevant provisions.

[49]                          The first is s. 44. It provides that where a former enactment is repealed and a new enactment is substituted for it, proceedings taken under the former enactment are to be continued in conformity with the new enactment.  It further provides that “the procedure established by the new enactment shall be followed as far as it can be adapted thereto . . . in the enforcement of rights, existing or accruing under the former enactment, and . . . in a proceeding in relation to matters that have happened before the repeal”: s. 44(c) and (d)(ii) and (iii).  As Professor Sullivan puts it, “[t]hese provisions call for the immediate application of new procedural law to all actions, including those that were pending when the legislation came into force”: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 698.

[50]                          The second provision is s. 43.  It provides that the repeal of an enactment does not affect any “right, privilege, obligation or liability acquired, accrued, accruing or incurred” under it: s. 43(c).  As Professor Sullivan puts it, the repeal does not destroy any right or liability arising under the repealed enactment, i.e. “the repealed law continues to apply to pre-repeal facts for most purposes as if it were still good law” (p. 708).

[51]                          Professor Sullivan sums up the cumulative effect of these two provisions as follows: “. . . the application of new substantive law is delayed by the survival of repealed law [but] the application of new procedural law is not” (p. 698).

[…]

[52]                          The question is how to determine whether an enactment is substantive or procedural.  A provision is substantive if it alters the legal effect of a transaction, or if it interferes with vested rights.  […] Most recently, the Court accepted that a vested right is one that results from a legal situation that is tangible, concrete and sufficiently constituted at the time of the enactment of the new provision:  Dikranian, at para. 37.

[…]                           

[54]                   Underlying the distinction between substantive rights and matters of procedure is the idea that a change in procedure does not deprive anyone of rights acquired by transactions perfectly valid and regular according to the law at the time they were undertaken. […]

[55]                          A key point arising from the jurisprudence is that the courts do not classify a provision as substantive or procedural by looking simply at its form, but also at its function and effect. […] 

[66]                          From this review of the case law, we may conclude:

1.            Substantive provisions “alter the character or legal effect of any transaction” (Howard Smith, at p. 420).  This includes taking away a previously-available defence (Upper Canada College; Howard Smith; Angus). The operation of such provisions is not affected by the fact that there is litigation in progress (Wildman).

2.            Procedural provisions “gover[n] the methods by which facts are proven and legal consequences are established” (Sullivan, at p. 698).  Their operation is generally dependent on the existence of litigation.

3.            Rules of evidence are considered to be procedural in nature unless in effect they impact on substantive rights: Application under s. 83.28 of the Criminal Code (Re), at para. 57.

4.            Rules of evidence are concerned with “the establishment [or disproof] of … facts by proper legal means”: Howard Smith, at p. 419, citing Phipson on Evidence, at p.1.

5.            Provisions which make evidence admissible that was previously inadmissible or change the conditions under which evidence may be admitted are procedural.  This is true even if the new provisions make admissible important incriminating evidence that was formerly excluded.  Examples include provisions which: make a revolutionary change in the admissibility and effect of documentary evidence (Howard Smith); make a previously non-compellable witness compellable for the Crown (Wildman); and repeal the corroboration requirement for a child’s unsworn evidence:  E. (A.W.).

[25]           A comparable view was expressed by Doherty J.A. in R.S., which raised the same issue that is before the Court in the present appeals with the exception in fact that the accused had elected mode of trial and requested a preliminary inquiry before the amendment of section 535 came into force on 19 September 2019:

[27]      At the end of the day, however, the characterization of the legislation as retrospective or retroactive does not significantly advance the resolution of the appeal. The real question is whether the legislation, whether it is described as retroactive or retrospective, interferes with acquired substantive rights. Legislation that interferes with acquired substantive rights is presumptively prospective only. If the application of the amendments to the appellants’ prosecutions would interfere with the appellants’ substantive rights, there is a rebuttable presumption against the application of the amendments to the appellants. That presumption exists regardless of whether the application of the law to the appellants is described as a retrospective or retroactive application and regardless of whether the amendments are characterized as substantive or procedural: see R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, per Deschamps J., at paras. 10-11, per Cromwell J., dissenting but not on this point, at paras. 44-54; Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256, at p. 265; Peel (Police) v. Ontario (Special Investigations Unit), 2012 ONCA 292, 110 O.R. (3d) 536, at paras. 71-77.[18]

[26]           The reasons in Dineley and R.S. establish that the temporal application of a legislative amendment does not depend on a formal and categorical distinction between procedural and substantive law but on a functional assessment whether the amendment affects an acquired right or interest. The effect of those decisions is to reduce the stark distinction between a procedural and substantive amendment to marginal utility and diminishing returns. As a result, sections 43 and 44 of the Interpretation Act have limited usefulness in resolving whether the amendment now before the Court affected such an interest. Without the assistance of transitional measures, a resolution of this question requires an evaluation of the interests at stake as a result of the amendment to determine whether an amendment applies only prospectively or also retrospectively. An example will illustrate the nature of this exercise.

[27]           Suppose an amendment of an offence that was previously indictable that reclassifies it as hybrid, with a maximum sentence of eighteen months on summary procedure. The possibility of a preliminary inquiry is preserved only if the prosecution elects to proceed by indictment. An election by the prosecution to proceed by summary procedure eliminates the possibility of a discharge at a preliminary inquiry. Except in the most egregious of cases, it is an election that is immune to review. For the defence the election by the prosecution eliminates the election as to mode of trial, eliminates the possibility of a discharge, and eliminates the opportunity to test the prosecution case under oath to amplify disclosure. It also extends the jeopardy of the accused to a maximum of eighteen months on sentence in the event of a finding of guilt.

[28]           It would be easy to characterise the nature and effect of these amendments as either procedural or substantive. It would be difficult, if not impossible, to find a workable distinction between procedural and substantive amendments in this example that could justify different approaches to their temporal application. Moreover, any attempt to find such a distinction could only result in obfuscation of what is at stake.

[29]           What is at stake must depend on whether the effect of an amendment is to create a negligible or significant risk to a party in the range of possible outcomes in a proceeding as a result of forced compliance with the amendment or voluntary reliance upon it. This requires judgment about the relative importance of an amendment in its nature and effect. If the effect of an amendment on a party or the parties is negligible or neutral in the conduct or outcome of proceedings, the scope for objection to retrospective effect is diminished. If the possible effect is significant, the argument for prospective application is correspondingly enhanced.

[30]           This approach is entirely reconcilable with jurisprudence that takes into account whether an amendment affects the acquired or vested interests of a party. That jurisprudence has suggested that an amendment with such an effect should be restricted to prospective application for the obvious reason that a party, or the parties, relied on the state of the law as it was before the amendment came into force. The risk of prejudice to one or both parties that is inherent in the disregard of that reliance only increases in direct proportion to the likelihood that retrospective or retroactive application of the amendment could alter the course and the outcome of proceedings.

[31]           In the present case only prospective application of the amended section 535 provides due recognition of the significance of the amendment, which is to deny an accused the possibility of a discharge instead of committal and the opportunity of enhanced disclosure under oath at a preliminary inquiry.

When was the appellants’ entitlement acquired or accruing?

[32]           In my view the appellants’ right to a preliminary inquiry requires the conclusion that the amendment of section 535 should only have prospective application from the moment they acquired it or it was accruing to them. When was that?

[33]           In Dikranian the Supreme Court concluded that a vested right results from a legal situation that is tangible, concrete and sufficiently constituted at the time of the enactment of the new provision.[19] This observation is consistent with the Court’s earlier view of a vested right in Puskas:

14     […] The first is a common-sense understanding of what it means to “acquire” a right or have it “accrue” to you.  A right can only be said to have been “acquired” when the right-holder can actually exercise it.  The term “accrue” is simply a passive way of stating the same concept (a person “acquires” a right; a right “accrues” to a person).  Similarly, something can only be said to be “accruing” if its eventual accrual is certain, and not conditional on future events (Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 1992 CanLII 2751 (SK CA), 95 D.L.R. (4th) 706 (Sask. C.A.), at p. 719).  In other words, a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled.[20]

[34]           Of direct relevance to this point is a distinction drawn by the Ontario Court of Appeal in R.S.:

[15]      Prosecutions before the courts as of September 19, 2019, potentially affected by the amendments fall into two categories. In one category are the accused who are charged with indictable electable offences and who have elected trial in the Superior Court of Justice and requested a preliminary inquiry prior to September 19, 2019, but have not had a preliminary inquiry. This category includes accused whose preliminary inquiries were underway but not completed as of September 19, 2019. I include in this category accused who have formally entered an election and requested a preliminary inquiry, as well as those who have made a clear, but informal election and request, as evinced by the transcript of proceedings or endorsements on the information. All of the appellants fall into this first category. The second category of cases consists of accused who were before the courts charged with an indictable electable offence as of September 19, 2019, but had not, prior to that date, made any election or requested a preliminary inquiry.

[16]      The Crown draws no distinctions between the two categories. The Crown maintains that no accused who is charged with an offence that carries a maximum penalty of less than 14 years’ imprisonment is entitled to a preliminary inquiry as of September 19, 2019, regardless of when the charges were laid, and regardless of whether the accused had elected and requested a preliminary inquiry before September 19, 2019. The Crown submits that the amendments do no more than alter one aspect of the procedure applicable to the prosecution of indictable electable offences. They speak to the method of conducting criminal litigation and, specifically, the preliminary inquiry component of that litigation. The amendments do not remove or alter any substantive right the appellants had as of the enactment of the amendments. The Crown further contends that, after the amendments came into force, the Ontario Court of Justice ceased, on a going forward basis only, to have any jurisdiction to conduct, or continue, a preliminary inquiry, except in respect of offences punishable by 14 years’ imprisonment or more.

[17]      The appellants, supported by the intervener in oral argument, draw a distinction between the two categories described above. They submit that the amendments do apply to accused persons who were before the court prior to September 19, 2019, but had not elected their mode of trial or requested a preliminary inquiry. The appellants accept that accused persons in this category had not, as of September 19, 2019, acquired a right to a preliminary inquiry. Whatever right this category of accused may potentially have had was contingent upon them having made an election and having requested a preliminary inquiry. If those steps had not been taken prior to September 19, 2019, they could not be taken after that date, as they were no longer statutorily available. The application of the amendments to this category of accused did not affect any acquired right and did not therefore attract the presumption against retrospective operation of legislation. For this category of accused, the legislation was purely procedural.

[18]       The appellants submit, however, that the situation is very different for accused, like the appellants, who had elected their mode of trial and requested a preliminary inquiry before September 19, 2019. The appellants submit that their election and request created an obligation on the court to conduct a preliminary inquiry. By exercising their election rights and their right to request a preliminary inquiry, the appellants acquired a concrete, tangible statutory right to a preliminary inquiry.

[35]           The two categories described in this passage distinguish between instances where the entitlement to a preliminary inquiry had accrued, or was accruing, and instances in which it had not.

[36]           There is no question that at the time of the alleged offences both of the appellants were entitled to a preliminary inquiry into an offence bearing a maximum sentence of ten years. There is equally no question that at the date of their first appearances and on 18 September 2019 that entitlement remained for the same reason. The only question is whether the entry into force of the amended section 535 on 19 September 2019 could deprive them of that entitlement.

When the entitlement to request a preliminary inquiry vested

[37]           In my view the appellants’ entitlement to request a preliminary inquiry was not removed because they requested it only after 19 September 2019; the entitlement was established both at the time of the alleged offence and at the time of their appearances in the Court of Quebec. This is clear in section 535 itself, which begins: “If an accused who is charged with an indictable offence….” These words point unmistakably to the moment of charging as the moment at which the entitlement to a preliminary inquiry, which arises upon the commission of the alleged offence, is fully vested in the accused. Even in the absence of a formal request for an inquiry, the entitlement to it was confirmed by their appearance in court in answer to the charge. The effect of that appearance was to confirm their right of election as to mode of trial and, with that election, their rights to the procedural incidents that accompany the election – including the opportunity to request a preliminary inquiry. The fact that they did not formalise their election or that request until after 19 September 2019 in no way diminishes their established, acquired, accruing or vested entitlement to make it or to have the inquiry. To suggest otherwise is to eviscerate the election of its content, which could not be done without imperilling a variety of entitlements, including their right to a jury trial.

[38]           Two points must be stressed. The first is that the relevant date for ascertaining the entitlement to request a preliminary inquiry is the date of the alleged offence and not date of the first appearance or the date of election as to mode of trial. For the reasons expressed above, this is due to the relative importance of the entitlement and not to the characterisation of an amendment as procedural or substantive.  In the present appeals this is only confirmed by the fact that the first appearances of the appellants occurred before the amendment came into force on 19 September 2019, which affirmed and preserved their rights upon election as to mode of trial even if no formal request was made for a preliminary inquiry at that date. Moreover, as the determinative date is the date of the alleged offence as charged, the resolution of these appeals would be the same even if the appellants had made their first appearance on the offences after 19 September 2019 because the entitlement to a preliminary inquiry was already inherent in the charges at the date of their alleged commission.

[39]           In short, the entitlement to a preliminary inquiry is established by the state of the law at the date of the commission of the alleged offence. It is contingent on the formulation of the charge or charges in the information on which they first appeared. It is not contingent on anything said or done later by the prosecution or defence, at the first appearance or subsequent election and request, either before or after the date that the amendment came into force. It is not contingent on the date of the charge, the date of the election or the date of the request for a preliminary inquiry. It follows that the amendment can only have prospective application to indictable offences with a maximum of less than fourteen years that were allegedly committed after 19 September 2019. It also follows that the entitlement would be equally valid and vested if the appellants had been charged and had appeared only after 19 September 2019. Accordingly, in my view, the distinction between the two categories identified in R.S. cannot hold.

[40]           There is one point that requires attention in conclusion to these reasons and it is the only point on which I disagree with the Ontario Court of Appeal in R.S.  That court decided that the amendment to section 535 could only have prospective application because the accused had made their election as to mode of trial before the amendment came into effect on 19 September. I do not agree with this limitation because the effect of the amendment was to remove the entitlement to a preliminary inquiry that was established by the charges against the accused and later confirmed by the formulation of the charge and the appellants’ first appearances. At the first appearance, at least in Quebec, the accused typically reserves the right of election to a future date. In the absence of an explicit reservation an election for judge and judge and jury is entered for the accused in anticipation formal election at a later date. Thus, with or without a formal reservation of an election, a provisional election for judge and jury preserves the entitlement of the accused to a preliminary inquiry, which means that this entitlement was acquired or vested by virtue of the charge and confirmed by the first appearance. In those circumstances the amendment can only have prospective application.

[41]           In principle an accused person must be arraigned before the commencement of trial but may be arraigned more than once and at stages before the commencement of trial. The first appearance of an accused person is also the first opportunity at which an arraignment can occur to assert jurisdiction over the accused, recite the charge and record a plea. The arraignment means that an accused person is called before a competent court, the charge is read aloud and the accused is asked to enter a plea. The arraignment confirms the jurisdiction of the court and assures that the accused is informed of the case to meet. It is thus an essential step in defining the jeopardy of the accused.

[42]           The law does not require a formal arraignment at the first appearance but the two are functionally the same. For practical purposes an arraignment at the first appearance is provisional because essential features of the case will only emerge as the case evolves further. At the first appearance in a criminal case it is exceedingly rare for the parties to proceed on the facts at a trial because nobody at that stage is prepared.

[43]           In Quebec the first appearance is a provisional arraignment in which the appearance of the accused is affirmed, the charge is noted and a plea of not guilty is recorded. The manner in which this is done is typically informal and occasionally sloppy. Where the charge is indictable, the defence will waive reading of the charge and defer election as to mode of trial until a later date. If the defence fails to make these stipulations they will be made under the direction of the court. In this arraignment the provisional election is recorded for trial by judge and jury or, if so stated by the defence, judge alone. This procedure preserves for the accused the most favourable election until such time, if at all, as the defence enters a different election. Despite its apparent informality, and occasional sloppiness, the significance of this form of arraignment is that, for as long as the defence has not elected trial before a judge of the provincial court, the accused has effectively preserved the entitlement to request a preliminary inquiry.

Conclusion

[44]           I propose that the two appeals be allowed and that each file be remitted to the Court of Quebec for a preliminary inquiry.

[1]  2021 QCCS 1966 (Charbonneau J.).

[2]  R. v. Archambault, Court of Quebec, Criminal and Penal Division, St. Hyacinthe, File No 750-01-055927-196, 21 December 2020.

[3]  2021 QCCS 1876 (Thibault J.).

[4]  R. v. Grenier, Court of Quebec, Criminal and Penal Division, File No 200-01-229370-196, 4 February 2020.

[5]  R.S.C. 1985, c. C-46, as amended by S.C. 2019, c. 25 (in force 19 September 2019).

[6]  R. v. Archambault, Court of Quebec, Criminal and Penal Division, St. Hyacinthe, File No 750-01-055927-196, 21 December 2020; R. v. Grenier, Court of Quebec, Criminal and Penal Division, File No 200-01-229370-196, 4 February 2020.

[7]  Archambault v. Délisle, 2021 QCCS 1966; Grenier v. Rousseau, 2021 QCCS 1876.

[8]  R. v. Chouhan, 2021 SCC 26.

[9]  Grenier elected trial by jury on 3 February 2020.

[10]  See Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, para. 43.

[11]  Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, para. 44.

[12]  British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, para. 71. See also Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, paras. 48-50.

[13]  R. v. Poulin, 2019 SCC 47 (emphasis added). See also R. v. Johnson, 2003 SCC 46.

[14]  See, e.g., Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, para. 26.

[15]  Interpretation Act, R.S.C. 1985, c. I-23.

[16]  See, e.g., R. v. Puskas, 1998 CanLII 784 (S.C.C.), [1998] 1 S.C.R. 1207.

[17]  R. v. Dineley, 2012 SCC 58.

[18]  R. v. R.S., 2019 ONCA 906.

[19]  Dikranian v. Quebec (Attorney General), 2005 SCC 73, para. 37.

[20]  R. v. Puskas, 1998 CanLII 784 (S.C.C.), [1998] 1 S.C.R. 1207.