



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Windebank, 2021 ONCA 118

DATE: 20210202

DOCKET: M52172 (C68874)

Fairburn A.C.J.O.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Windebank

Respondent

Stacey D. Young and Jennifer Stanton,
    for the appellant

Anil K. Kapoor and Dana C. Achtemichuk,
    for the respondent

James Foy and Michelle Psutka, for the
    proposed intervener, the Criminal Lawyers Association of Ontario

Heard: February 1, 2021 via videoconference

REASONS FOR DECISION


[1]

The Crown appeal in
R. v. Windebank

(C68874)
    is scheduled to be heard on February 22, 2021. The respondents factum is due
    on February 10, 2021.

[2]

This appeal raises an issue of statutory
    interpretation. Section 535 of the
Criminal Code
, R.S.C., 1985, c. C-46,

sets out
    when an accused is entitled to a preliminary inquiry. Section 535 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 .
    [Emphasis added.]

[3]

The issue on appeal is whether s. 535 of the
Criminal
    Code
should be interpreted so as to entitle an accused to a preliminary
    inquiry in those circumstances where he or she is informed by the Crown, ahead
    of his or her election, that the Crown may pursue a dangerous offender finding
    in the face of a conviction. Owing to the potential indeterminate nature of the
    custodial term that could flow upon a dangerous offender finding, despite the
    fact that he is not charged with an offence that is punishable by 14 years of
    imprisonment or more, Mr. Windebank argues that he is entitled to a preliminary
    inquiry under s. 535 of the
Criminal Code
.

[4]

This case rests on a narrow factual foundation.
    Mr. Windebank stands charged with one count of assault causing bodily harm
    contrary to s. 267(b) and one count of assault by choking contrary to s. 267(c)
    of the
Criminal Code
. When tried by indictment, these crimes are
    punishable by not more than ten years imprisonment. This brings squarely into
    focus whether an informal prosecutorial notice that a dangerous offender
    designation may be sought upon conviction, should entitle Mr. Windebank to a
    preliminary inquiry.

[5]

Mr. Windebank has taken the position that s. 535
    should be interpreted broadly, permitting him resort to a preliminary inquiry
    because of the potential jeopardy that he now knows he faces. He has found
    favour with that argument at two levels of court, first in the Ontario Court of
    Justice and then in response to the Crowns attempt to seek relief by way of
    prerogative writs: 2020 ONCJ 567, [2020] O.J. No. 5284; 2020 ONSC 8107, [2020]
    O.J. No. 5771.

[6]

The Criminal Lawyers Association of Ontario
    (CLA) seeks leave to intervene in this appeal that is only three weeks away.
    In the normal course, it is expected that intervener applications will be
    brought in a reasonable amount of time prior to the hearing of the appeal so
    that there is no disruption to the court or the parties. Indeed, the timing of
    any such application is a factor to be taken into account in determining
    whether a potential intervener should be granted that status.

[7]

In this case, the scheduling of the appeal has
    been substantially accelerated in light of its subject matter. Therefore, I do
    not take the timing of this application into account in determining its proper
    disposition.

[8]

The CLA wishes to make three arguments on
    appeal:

(a)     If
    an accused faces a
potential total
sentence of 14
    years or more, he or she should be entitled to a preliminary inquiry.

(b)     Section
    718.3(8) of the
Criminal Code
allows
    for the imposition of a term of imprisonment that is more than the maximum term
    of imprisonment provided for the offence in circumstances involving repeat
    intimate partner violence. In specific, s. 718.3(8)(c) allows for a maximum
    term of 10 years imprisonment to be increased to 14 years imprisonment in
    circumstances involving repetitive conduct as defined in that provision. The
    CLA argues that
any accused who is given
    informal notice of the Crowns intention to invoke s. 718.3(8)(c) at the
    sentencing stage of the proceedings, should a conviction flow, should also be
    entitled to a preliminary inquiry
.

(c)     Except
    where impracticable,
the Crown should be required to
    provide the accused with pre-election notice
as to whether a dangerous
    offender proceeding upon conviction will be pursued or an increased penalty
    will be requested pursuant to s. 718.3(8)(c) of the
Criminal Code
.

[9]

The respondent on appeal consents to the CLAs
    intervention on all proposed issues.

[10]

The Crown consents to the CLAs intervention on
    the first proposed argument: whether s. 535 of the Criminal Code extends to
    those situations where the accused faces a
potential
    total sentence
of 14 years or more. The Crown opposes the intervention
    on the other proposed arguments.

[11]

In my view, the CLAs first proposed position
    serves to add a useful and different perspective to the appeal, one that will
    not cause an injustice to the parties. The CLAs first position is somewhat different
    from Mr. Windebanks, in the sense that the CLA will argue that when
    determining whether the accused is charged with an offence that is punishable
    by 14 years or more, that calculation must be approached from the perspective
    of totality. To use Mr. Windebanks situation as an example, the CLAs position
    is that, because he is charged with two offences that are each punishable by up
    to 10 years, he is theoretically susceptible to a total sentence of 20 years
    imprisonment. Therefore, based upon the plain meaning of the provision, and
    consistent with its spirit, the CLA will argue that s. 535 of the
Criminal
    Code
affords a preliminary inquiry
    upon request in circumstances such as the one that Mr. Windebank finds himself
    in
.

[12]

The CLAs second position is more problematic.
    The CLA has focussed in on s. 718.3(8)(c) of the
Criminal Code
. That
    provision reads as follows:

718.3(8) If an accused is convicted of an
    indictable offence in the commission of which violence was used, threatened or
    attempted against an intimate partner and the accused has been previously
    convicted of an offence in the commission of which violence was used,
    threatened or attempted against an intimate partner, the court may impose a
    term of imprisonment that is more than the maximum term of imprisonment
    provided for that offence, but not more than

(c)    14 years, if the maximum term of imprisonment for the offence
    is 10 years or more but less than 14 years .

[13]

In their written materials, the CLA has argued
    that, because an accused may face a sentence higher than the statutory maximum
    after conviction for the offence for which they are charged in circumstances
    of consecutive convictions for intimate partner related crimes, the accused
    should also be entitled to a preliminary inquiry.

[14]

To the extent that the CLA is asking this court
    to rule that the potential applicability of s. 718.3(8)(c) of the
Criminal
    Code
, at a potential sentencing stage of a proceedings,

entitles an
    accused to a preliminary inquiry, the CLA is raising a new issue that has not
    been decided in the courts of first and second instance. This statutory
    provision was not even addressed in either of the decisions that form the
    backdrop for this appeal. To allow an intervener at this stage to request this
    court to make a definitive statement about the operation of s. 718.3(8)(c),
    such that it entitles an accused to a preliminary inquiry, is entirely outside
    the scope of this appeal.

[15]

This case is about the interpretation of s. 535
    of the
Criminal Code

in the face of an informal notice about
    potential dangerous offender proceedings that may occur following a potential
    conviction. While there is nothing to preclude the CLA from pointing to s.
    718.3(8)(c) as an interpretative aid in advancing their argument as to the
    scope of s. 535, it would well exceed the bounds of this appeal to request this
    court to embark upon an exercise in determining whether the potential
    applicability of s. 718.3(8)(c) is a definitive gateway to a preliminary
    inquiry. In my view, to permit the CLA to advance this argument, would introduce
    a completely new issue into the appeal.

[16]

This is equally true when it comes to the final proposed
    argument made by the CLA: the timing of Crown notice. The CLA contends that,
    except in exceptional cases, the Crown should be required to provide notice,
    prior to the accuseds election, of its intention to pursue a dangerous
    offender application or the application of s. 718.3(8)(c) of the
Criminal
    Code
.
Again, to permit the CLA to raise this argument on appeal
    would inject a significant new and previously untested issue into the appeal.

[17]

Prior to his election, Mr. Windebank was given informal
    notice of the Crowns intention to seek a s. 752.1 remand for an assessment
    should he be convicted. That assessment acts as a precursor to bringing a
    dangerous or long-term offender application. The Crown was under no statutory
    obligation to provide that notice in this case. Indeed, Part XXIV of the
Criminal
    Code

only requires seven days notice before an application is
    brought: s. 754(1)(b). Of course, proceedings under Part XXIV of the
Code

typically occur post-conviction, a long time following the election having
    been made.

[18]

The CLA advances a similar argument with respect
    to s. 718.3(8)(c) of the
Criminal Code
. The CLA wishes to advance the
    argument that there should be a near-mandatory pre-election notice obligation
    placed on the Crown in those circumstances where, in the event that the accused
    is convicted, the Crown intends to resort to s. 718.3(8)(c) of the
Criminal
    Code
at the sentencing proceeding.

[19]

To allow the CLA to advance this position would
    inject a significant issue into the appeal. In my view, not only would it
    result in prejudice to the parties at this late stage, but it could result in
    prejudice to the administration of justice.

[20]

As before, s. 754(1)(b) of the
Criminal Code
does not require pre-election notice. If this argument were permitted, not only
    would it raise a new issue, but it would serve to contradict the statutory
    notice provision in the context of dangerous offender proceedings. The argument
    raised by the CLA raises serious questions about the constitutionality of that
    notice provision, ones that could only be properly explored in the court of
    first instance, permitting the parties an opportunity to develop an evidentiary
    record addressing the issue. This court is without the benefit of that record
    or the considered views of the jurists from whom this appeal is taken.

[21]

This case is about the interpretation of s. 535
    of the
Criminal Code
. The record reflects litigation rooted in a
    discretionary notice having been given. To allow an intervener at this stage to
    argue that this court should create a requirement that notice be given in all
    but exceptional cases, would not only serve as an implicit attack on the
    statutory provision(s) involving post-election notice,
0F
[1]
but would also risk deciding a critical issue without a proper
    factual record, including reference to the broad implications that could result
    form any such approach.

[22]

Respectfully, the latter two proposed arguments
    advanced by the CLA are not a simple matter of bringing a unique perspective to
    bear on the appeal. The CLA has historically provided this court with important
    assistance, including in matters involving the new legislation relating to
    preliminary inquiries, 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
, 1st Sess., 42nd Parl., 2019, c. 25:
R. v.
    R.S.
, 2019 ONCA 906, [2019] O.J. No. 5773. The CLAs intervention in this
    appeal is equally welcome. That intervention cannot, though, become a platform
    to add issues which have potentially far-reaching implications, upon which
    there has been no decision, and that are without a factual record to allow for
    a proper adjudication:
Bedford v. Canada (Attorney General)
, 2011 ONCA
    209, [2011] O.J. No. 1111, at paras. 9-10.

[23]

Accordingly, the CLAs intervention is granted
    on the following terms:

(a)
The CLA is granted leave to intervene
    on the basis   set out in these reasons;

(b) The CLAs submissions will not repeat the submissions of the
    respondent, Mr. Windebank;

(c)   The CLA will file a factum no later than February 10, 2021 of
    no more than 10 pages in length;

(d)   The CLA will be granted 15 minutes to make oral argument at
    the hearing of the appeal; and

(e)   In response to the CLAs factum, the parties may each file a
    factum of no more than 5 pages in length, to be served and filed no later than
    February 17, 2021.

Fairburn
    A.C.J.O.





[1]
See also: s. 727(1) of the
Criminal Code
.


