



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.S., 2021 ONCA 479

DATE: 20210630

DOCKET: C69323

Miller, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.S.

Appellant

Adam Weisberg and Samiyyah Ganga, for the appellant

Rebecca Law, for the respondent

Heard: June 16, 2021 by video conference

On appeal from the order of Justice Antonio Skarica
    of the Superior Court of Justice, dated April 15, 2021 with reasons at 2021
    ONSC 2995, allowing an application for certiorari with mandamus and prohibition
    in aid, from the order of Justice Gethin B. Edward of the Ontario Court of
    Justice dated February 12, 2021.

Nordheimer J.A.:


[1]

S.S. appeals from the order of the review judge,
    who allowed an application for certiorari from the order of the application
    judge, who found that the appellant was entitled to a preliminary inquiry
    pursuant to s. 535 of the
Criminal Code
, R.S.C. 1985, c. C-46. At the
    conclusion of the hearing, we dismissed the appeal with reasons to follow. I
    now provide those reasons.

Background

[2]

The appellant is charged with one count of sexual
    assault on a person under the age of 16 contrary to s. 271 of the
Criminal

Code
and one count of sexual interference contrary to s. 151. The
    offences are alleged to have occurred between January 1, 2009 and December 31,
    2010.

[3]

At the time that the offences were alleged to
    have occurred, the maximum penalty for both offences was 10 years. On July 17,
    2015, the maximum penalty for the offence of sexual assault on a person under
    the age of 16 was increased to 14 years, if the Crown proceeds by way of
    indictment, which it had in this case. The maximum penalty for the offence of
    sexual interference was also increased to 14 years.

[4]

On December 11, 2020, the appellant elected to
    be tried by a judge and jury in the Superior Court. He requested a preliminary
    inquiry. The Crown sought a ruling that the appellant was not entitled to a
    preliminary inquiry because, at the time the offences were alleged to have
    occurred, the maximum penalty for the offences was 10 years.

[5]

The issue arises because, on September 19, 2019,
    s. 535 of the
Criminal Code
was amended to restrict the right to a preliminary
    inquiry to persons charged with an indictable offence that is punishable by imprisonment
    for 14 years or more. Section 535 now reads:

If an accused who is charged with an
    indictable offence that is punishable by 14 years or 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 transaction, founded on the facts that are disclosed by the evidence taken
    in accordance with this Part.

The decisions
    below

Ontario Court of Justice

[6]

The respondents application was heard before a
    judge of the Ontario Court of Justice. The application judge noted that, in the
    circumstances of this case, the appellants maximum jeopardy was 10 years
    because s. 11(i) of the
Canadian Charter of Rights and Freedoms

provides
    that any person charged with an offence has the right if the punishment for
    the offence has been varied between the time of commission and the time of sentencing,
    to the benefit of the lesser punishment.

[7]

The application judge then said that, in his
    view, the
Criminal

Code
must, wherever possible,
    provide certainty. He said:

In summary, a court, and more importantly, the
    accused should be able to rely on the plain wording of the [s]tatute as opposed
    to then engaging in some exercise to determine its applicability to the unique
    circumstances of the accused, or the potential ramifications of the
Charter
.
    [Italics added.]

[8]

The application judge concluded that as the offences
    currently provide for a penalty of 14 years, the appellant was entitled to a
    preliminary inquiry.

Superior Court of Justice

[9]

The respondent sought a review of the
    application judges decision. That review was heard by a judge of the Superior
    Court of Justice. The review judge allowed the application for review. After
    reviewing the amendments to the
Criminal Code
,

and various
    decisions that have since addressed the issue of entitlement to a preliminary
    inquiry, the review judge concluded that the appellant was not entitled to a
    preliminary inquiry because the maximum penalty he faced was 10 years.

[10]

The review judge also addressed another issue
    raised by the appellant. On the review, the appellant said that he had waived
    his right under s. 11(i) of the
Charter
and was, consequently, facing
    a penalty of 14 years.

[11]

The review judge questioned whether an accused
    person could waive their right under s. 11(i). He noted that he had not been
    provided with any authority that would authorize that procedure. The review
    judge reviewed and relied on s. 43 of the
Interpretation Act
, R.S.C.
    1985, c. I-21 which provides, in s. 43(d), that the repeal of an enactment does
    not 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. The review judge also relied on the decision
    in
R. v. Stengel
, 2021 ONSC 1413, which had dealt with the same issue.
    The judge in that case had concluded, relying in part on s. 43, that the
    accused person was not entitled to a preliminary inquiry.

[12]

In the end result, the review judge concluded
    that the appellant could not use his purported waiver of s. 11(i) as a
    mechanism to obtain a preliminary inquiry. The review judge said: I would not
    give effect to this questionable procedure that has, as I have determined, no
    precedent.

Analysis

[13]

It is not necessary to once again review the history
    of the legislative changes that have been made to s. 535 respecting the right
    to a preliminary inquiry. They have been reviewed in a number of decisions,
    including recently in
R. v. Windebank
, 2021 ONCA 157, 154 O.R. (3d)
    573, leave to appeal requested, [2021] S.C.C.A. No. 122.

[14]

It is sufficient to say that limiting the right
    to preliminary inquiries was intended to free up court time and resources in
    provincial courts, while, at the same time, reducing the burden on some
    witnesses and victims by preventing them from having to testify twice in cases where
    there was, until then, an entitlement to a preliminary inquiry: see
Windebank
,
    at para. 19.

[15]

The route that Parliament took to limit
    preliminary inquiries focussed on restricting them to the most serious
    offences. It chose to do so by limiting preliminary inquiries to persons who
    are charged with an offence that is punishable by 14 years or more of
    imprisonment. Parliament expressly coupled the entitlement to a preliminary
    inquiry to the maximum sentence for the offence charged.

[16]

The appellant is not facing a punishment of 14
    years or more in this case. In reaching that conclusion, I need not decide
    whether an accused person can waive their rights under s. 11(i) of the
Charter
.
    Even if they can, s. 43(d) of the
Interpretation

Act
would preclude a court from imposing a sentence of more than 10 years. This
    result is reinforced by s. 43(e), which provides that a legislative change does
    not affect any legal proceeding in respect of any punishment, penalty or
    forfeiture referred to in paragraph (d).

[17]

My conclusion in this regard is also consistent
    with the conclusion reached in
Tran v. Canada (Public Safety and Emergency
    Preparedness)
,
2017 SCC 50, [2017] 2 S.C.R. 289. In that case, the
    issue was the immigration consequences of a person convicted of an offence where
    the maximum penalty was, at the time of the commission of the offence, seven
    years. However, before conviction, the penalty was raised to 14 years with the
    result that a conviction for the offence would fall within the definition of
    serious criminality for immigration purposes. The immigration authorities began
    proceedings to remove the accused from Canada on the basis that he had been
    convicted of an offence involving serious criminality within the meaning of s.
    36(1)(a) of the
Immigration and Refugee Protection Act
, S.C. 2001, c.
    27 (
IRPA
). The accused sought judicial review of the decision to
    refer his case for an admissibility hearing under the
IRPA
. In the end
    result, the Supreme Court of Canada found that the immigration authorities
    could not rely on the serious criminality provision in part because the maximum
    sentence for the accuseds offence at the time he committed it was seven years.
    In reaching that conclusion, C
ô
t
é
J. said, at para. 35:

Turning to the interpretation of punishable
    by a maximum term, in my view, a contextual reading of s. 36(1)(a) [of
    the
IRPA
] supports only one conclusion: the phrase punishable by a maximum
    term of imprisonment of at least 10 years
refers to the maximum sentence
    that the accused person could have received at the time of the commission of
    the offence
. [Emphasis added].

[18]

The appellant attempts to counter this interpretation
    by submitting that it looks at the circumstances of the offender rather than at
    the offence itself and thus offends the point made in
Windebank
, at para. 36:
In my view, the flaw, both in the respondents argument and in the
    decisions below, is that they confuse the seriousness of the offence with the
    seriousness of the offender, that is, their individual circumstances.

[19]

I do not agree. The situation here and the one
    in
Windebank
are not
    comparable. Here we are dealing with the maximum punishment that was stipulated
    for the offence at the time that the offence is said to have been committed. Thus,
    the issue in this case does not involve the personal characteristics of the
    appellant, in the sense that those personal characteristics might drive the appropriate
    sentence, such as the possible application of the dangerous offender provisions.
    Rather, it involves the penalty that can be imposed on the appellant, and
    anyone else in the same situation, arising from the timing of the offence, as
    the key for determining the seriousness of the offence for the purpose of s.
    535. The personal characteristics of the appellant are not engaged in this
    analysis. The only connection to the appellant in his personal capacity is that
    it is the timing of his alleged actions leading to the offence that are of
    importance.

[20]

Further on this point, in
Tran
, the court supported its
    conclusion that the timing of the offence determined the maximum sentence for
    the purpose of s. 36(1)(a) of the
IRPA
, in part, based on the presumption against retrospectivity, which applies
    independent of s. 11(i) of the
Charter
: at para

43. In words that are apt to the situation here,
C
ô
t
é
J. said, at para. 43: The purpose of this
    presumption is to protect acquired rights and to prevent a change in the law
    from look[ing] to the past and attach[ing] new prejudicial consequences to a
    completed transaction (Driedger (1983), at p. 186).

Conclusion

[21]

It is for these
    reasons that the appeal was dismissed.

Released:
June
    30, 2021 B.M.

I.V.B. Nordheimer J.A.

I agree. B.W. Miller J.A.

I agree. David M. Paciocco J.A.


