



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Windebank, 2021 ONCA 157

DATE: 20210312

DOCKET: C68874

MacPherson, Gillese and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Windebank

Respondent

Stacey D. Young and Jennifer Stanton, for the appellant

Anil K. Kapoor, D. Sid Freeman and Dana Achtemichuk, for the
    respondent

Heard: February 22, 2021 by video conference

On appeal from the order of Justice Michael G. Quigley of the Superior
    Court of Justice, dated November 29, 2020, with reasons reported at 2020 ONSC
    8107, dismissing an application for certiorari with mandamus and prohibition in
    aid, from the order of Justice Feroza Bhabha of the Ontario Court of Justice
    dated November 20, 2020, with reasons reported at 2020 ONCJ 567.

Nordheimer
    J.A.:

[1]

The Crown appeals from the order of the review judge, who dismissed an
    application for certiorari with mandamus and prohibition in aid, from the order
    of the application judge, who found that the respondent was entitled to a preliminary
    inquiry pursuant to s. 535 of the
Criminal

Code
, R.S.C.
    1985, c. C-46.

I: Background

[2]

The respondent is charged with one count of assault causing bodily harm
    contrary to s. 267(b) of the
Criminal

Code
and one
    count of assault by choking contrary to s. 267(c), both of which are punishable
    by a maximum term of imprisonment of 10 years. The offences allegedly occurred
    on April 13, 2020.

[3]

The complainant is the respondents fiancée. The respondent has a prior
    conviction for assaulting the complainant. The couple had been together for
    about three years and six months. When the police attended on April 13, 2020,
    the complainant told them that, over the course of their relationship, the respondent
    assaulted her over twenty times, although she only called the police once. She
    had been away from the apartment for two weeks because the respondent beat her,
    but she returned the night before. Things were fine that day but then the
    respondent lost it.

[4]

The complainant told the police that the respondent started beating her.
    Someone from the building called 911 and told the police a woman was getting
    beaten up and the police needed to get there very quickly. When the police
    arrived, they heard a woman inside the apartment calling for help. They knocked,
    and then forced open the door when there was no response. Inside they found
    parts of the apartment covered in what appeared to be blood spatter. The
    complainant had bruising to her left eye, shoulder and a cut lip. The
    respondent was arrested.

[5]

During pre-trial correspondence in this case, the appellant advised the
    respondent that, in the event of conviction, it would seek a s. 752.1
    assessment. Such an assessment may be obtained if an offender is convicted of a
    serious personal injury offence, or an offence mentioned in para. 753.1(2)(a), and
    might be found to be a dangerous offender or a long term offender.

[6]

In response, the respondent advised that, since he was now facing a
    potential period of indefinite detention, he was entitled to a preliminary
    inquiry. The respondent brought an application for a preliminary inquiry and
    provided a statement of issues and witnesses.

[7]

The respondents application was heard on October 14, 2020. It was the
    position of the respondent that the maximum possible penalty upon conviction
    was converted to one of life by virtue of the Crown notice. The appellant
    took the position that the respondent was not charged with an offence
    punishable by 14 years or more imprisonment, and he was therefore not entitled
    to a preliminary inquiry pursuant to s. 535. 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,
    founded on the facts that are disclosed by the evidence taken in accordance
    with this Part.

II: The decisions below

Ontario Court of Justice

[8]

The respondents application was heard before a judge of the Ontario
    Court of Justice. The application judge began by reviewing the wording of s.
    535 and concluded that [o]n a plain and literal reading of the provision Mr.
    Windebank is not entitled to a preliminary inquiry.

[9]

The application judge then reviewed the background to the changes to the
    entitlement to a preliminary inquiry made in 2019 and the reasons for those
    changes. She concluded that the respondent faced a jeopardy far greater than
    the 10-year maximum provided for by the offences themselves and ought,
    therefore, to be entitled to a preliminary inquiry. The application judge said,
    at para. 38:

In my view it would indeed lead to unintended and absurd
    consequences if an individual in [the respondents] circumstances was
    disentitled to have a preliminary inquiry, yet ultimately find himself to be in
    jeopardy of an indeterminate sentence, while another individual could
    automatically be entitled to a preliminary inquiry yet face far less serious
    penal consequences: fourteen years versus life imprisonment. At a minimum, the
    strict interpretation favoured by the Crown strikes me as inequitable.

Superior Court of Justice

[10]

The
    appellant sought a review of the application judges decision. That review was
    heard by a judge of the Superior Court of Justice. The review judge dismissed
    the application for review. The review judge first gave short endorsed reasons for
    his decision but then gave more fulsome reasons about a month later.

[11]

In
    his reasons, the review judge set out the positions of the parties in some
    detail. He then began his analysis by reviewing the principles of statutory
    interpretation. The review judge concluded that, because the issue was
    principally a matter of statutory interpretation, the standard of review to be
    applied was correctness:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at paras. 8, 10.

[12]

The
    review judge proceeded to find that the appellant was incorrect to argue that
    there was any requirement for the application judge to order a preliminary
    inquiry. Rather, according to the review judge, the issue was whether the
    respondent was entitled to a preliminary inquiry on a proper interpretation
    of s. 535. The review judge agreed with the application judge that he was.

[13]

The
    review judge considered the legislative background to the changes to s. 535
    regarding the entitlement to a preliminary inquiry. He then considered the consequences
    of the appellants notice that it would seek an assessment regarding a possible
    dangerous offender designation. The review judge said, at para. 63, that on the
    face of s. 753(4), the potentially indeterminate period of incarceration
    contemplated for dangerous offenders is a sentence, which may result in an
    accused person, once convicted and if designated a [dangerous offender], facing
    the prospect of an indeterminate sentence, which may exceed 14 years and may be
    tantamount to a sentence of life imprisonment.

[14]

The
    review judge ultimately concluded, at para. 65, that it was Parliaments plain
    intent that the availability of a preliminary hearing was ultimately to be
    determined by reference to the penal jeopardy faced by the accused.

[15]

The
    review judge rejected the floodgates concern. He found that the number of
    additional preliminary inquiries resulting from the conclusion that an accused
    is entitled to a preliminary inquiry, where a dangerous offender designation is
    contemplated, would be very small.

[16]

In
    terms of what he viewed as Parliaments intention when they amended s. 535,
    the review judge said, at para. 80:

While they did intend to restrict the availability of that
    procedure to the most serious levels of offences, Parliament cannot have
    intended to deny preliminary hearings to accused persons who are at risk of the
    maximum liberty jeopardy. It would defy logic and common sense, and be an internally
    inconsistent, inequitable and absurd outcome if that set of persons did not
    include accused persons who are at risk of a [dangerous offender] designation
    and the possibility of an indeterminate sentence, regardless of the sentence
    provided for in the specific offence charged.

[17]

The
    review judge concluded that the application judge had correctly interpreted s.
    535 and had properly determined that the respondent was entitled to a
    preliminary inquiry. He dismissed the application for review.

III: Law and analysis

Legislative changes to preliminary inquiries

[18]

On
    March 29, 2018, the federal government introduced 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
, S.C. 2019, c. 25. The Bill
    was eventually passed and received Royal Assent on June 21, 2019.

[19]

Bill
    C-75 had a number of purposes, one of which was stated to be to restrict the
    availability of preliminary inquiries. The point behind limiting the
    availability of preliminary inquiries was said to be 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 currently an entitlement to a preliminary inquiry.

[20]

The
    Bill was partly in response to a 2017 report of the Standing Senate Committee
    on Legal and Constitutional Affairs that recommended taking steps to eliminate
    or limit the use of preliminary inquiries to reduce delays in criminal cases. A
    backgrounder to the Bill pointed out that, since coming into force on July 1,
    1893, the preliminary inquiry provisions of the
Criminal

Code
had only been substantially modified once, in 2001, to make the preliminary
    inquiry available on request rather than automatically.

[21]

Another
    driving force behind the desire to reduce the number of preliminary inquiries was
    two decisions of the Supreme Court of Canada. One is
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326, which held that the Crown has a legal duty to disclose all
    relevant information to the defence. In reaching that conclusion, the court
    said that the fruits of an investigation are not the property of the Crown for
    use in securing a conviction but, rather, are the property of the public to be
    used to ensure that justice is done. The decision in
Stinchcombe
led
    many to suggest that the obligation to disclose placed on the Crown by the
    decision undermined the need for preliminary inquiries, which had often been
    used simply to obtain that disclosure: see, for example,
R. v. S.J.L.
,
2009 SCC 14, [2009] 1 S.C.R. 426, at para. 23.

[22]

The
    other decision is
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, where
    the court placed a presumptive ceiling beyond which delay  from the charge to
    the actual or anticipated end of trial  is presumed to be unreasonable under
    s. 11(b) of the
Canadian Charter of Rights and Freedoms
, unless
    exceptional circumstances justify it. The
Jordan
decision had the
    effect of emphasizing the need for prosecutions to move more expeditiously
    towards trial and completion. Preliminary inquiries were seen as a main source
    of delay in the prosecution of cases.

[23]

In
    terms of Bill C-75 itself, it is of some importance to note that, when the
    changes to the entitlement to a preliminary inquiry were first introduced, the proposed
    changes would have restricted preliminary inquiries only to those offences
    where the offender faced a sentence of life imprisonment. That was the status
    of the Bill when it left the House of Commons and proceeded to the Senate.

[24]

The
    Senate referred the Bill to the Standing Senate Committee on Legal and
    Constitutional Affairs, which recommended expanding the availability of
    preliminary inquiries to indictable offences punishable with maximum penalties
    below imprisonment for life: (1) at the joint request of the parties and with
    the approval of the justice after taking steps to mitigate any impact on
    witnesses, and (2) at the request of either party where the justice is
    satisfied it is in the best interests of the administration of justice and
    certain criteria with respect to witnesses are met. The Senate adopted these
    recommendations and returned the Bill to the House of Commons with these proposed
    amendments.

[25]

The
    amendments proposed by the Senate Committee were not accepted in the House of
    Commons. The Minister of Justice recognized that the proposed amendments responded
    to concerns that preliminary inquiries should remain available for serious
    offences. However, he observed that the expansion of their availability [under
    the Senates proposal], combined with the new complex criteria, would leadto further
    delays and unnecessary litigation:
House of Commons Debates
, 42-1,
    No. 435 (17 June 2019), at p. 29245 (Hon. David Lametti). Instead, the
    government recommended expanding the availability of preliminary inquiries to
    indictable offences punishable by imprisonment for 14 years or more. The
    14-year threshold, the Minister of Justice observed, would still provide
    certainty and [would] avoid the delays inherent in the [Senates] amendment:
    at p. 29246. That amendment was adopted by the House of Commons and is
    reflected in the current wording of s. 535.

[26]

Some
    brief background to the unfolding of the legislative process is worth mentioning.
    When the Bill was originally introduced in the House of Commons, then Minister
    of Justice, the Honourable Jody Wilson-Raybould said, in part:

The fourth area of reforms is to increase court efficiencies by
    limiting the availability of preliminary inquiries. Preliminary inquiries are
    an optional process used to determine whether there is enough evidence to send
    an accused to trial. Bill C-75 would limit their availability to accused adults
    charged with very serious offences punishable by life imprisonment, such as
    murder and kidnapping.

I recognize this represents a significant change. It is not a
    change we propose lightly. It is the product of an in-depth consultation
    process with my counterparts in the provinces and territories and with the
    courts, and it is based on the best available evidence. For instance, we know
    in 2015-2016, provincial court cases involving preliminary inquiries took more
    than four times longer to reach a decision than cases with no preliminary
    inquiry.

It is important to note that there is no constitutional right
    to a preliminary inquiry, and one is not necessary for a fair trial so long as
    the crown satisfies its disclosure requirements. In the
Jordan
decision, the Supreme Court of Canada asked Parliament to take a fresh look at
    current processes and reconsider the value of preliminary inquiries in light of
    the broad disclosure rules that exist today. The Standing Senate Committee on
    Legal and Constitutional Affairs also recommended that they be restricted or
    eliminated.
[1]

[27]

Some
    days later, Mr. Bill Blair, then Parliamentary Secretary to the Minister of
    Justice and Attorney General of Canada, added:

Recognizing the importance of certain types of trials, we would
    maintain preliminary hearings for those offences that are considered within our
    criminal justice system to be the most serious and to have the greatest
    consequences. They would carry a potential life sentence. We are maintaining
    preliminary hearings for those very serious cases, but frankly, the system has
    evolved and we are recognizing that evolution.
[2]

[28]

As
    will be seen, one of the driving forces behind the amendments was to limit the
    availability of preliminary inquiries to the most serious offences. This
    rationale was repeated in the debates before the Senate. For example, the
    Honourable Murray Sinclair said:

Bill C-75 restricts preliminary inquiries for adult accused to
    offences punishable by life imprisonment, and permits the preliminary inquiry
    justice to limit the issues to be explored at a preliminary hearing and the
    number of witnesses to be heard. These changes are the culmination of a great
    deal of consideration by federal, provincial and territorial ministers of
    justice who unanimously agreed that the availability of preliminary inquiries
    needs to be restricted to more serious offences.
[3]

[29]

Nevertheless,
    the Senate sought to expand the availability of preliminary inquiries to two
    other instances, as I have set out above, where the parties consented or a
    judge was satisfied that a preliminary inquiry was in the best interests of the
    administration of justice, provided steps were taken to reduce the impact on
    witnesses. In explaining the latter requirement, the Honourable Pierre J.
    Dalphond said:

Furthermore, in both cases, whether by consent or because the
    judge decides that holding a preliminary inquiry serves the best interests of
    the administration of justice, before authorizing said inquiry, the judge must
    ensure that steps have been taken to mitigate the impact of the inquiry on
    witnesses, particularly on the complainant. It will therefore be up to judges,
    when they find that holding a preliminary inquiry serves the best interests of
    the administration of justice, such as in sexual assault cases, to ensure that
    appropriate measures have been taken to mitigate the impact that testifying
    during the inquiry will have on the victim, specifically by limiting the
    duration of the victims testimony or ordering that the victim give testimony
    from another room via video conference, for example, to avoid having to face
    the accused.
[4]

[30]

The
    amendments proposed by the Senate were not accepted by the Government and were
    not ultimately included in the
Act
. As I have explained, however, they
    did lead to a change in the Bill from restricting preliminary inquiries to only
    those offences that carried a maximum sentence of life in prison to those
    offences that carried a maximum sentence of 14 years. The Minister of Justice,
    the Honourable David Lametti, explained the rejection of the Senate amendments
    and the change to 14 years, as follows:

The amendment responded to concerns that preliminary inquiries
    were not available for more serious offences. However, the expansion of their
    availability, combined with the new complex criteria, would lead, in our view,
    to further delays and unnecessary litigation; for example, to interpret the
    proper application of the criteria.



Although this would expand the availability of preliminary
    inquiries for 86 more offences, the proposal is consistent with the 2017 FPT
    ministers of justice's consensus to restrict them to offences carrying the most
    serious terms of imprisonment. A 14-year threshold will still provide certainty
    and will avoid the delays inherent in the [Senates] amendment.
[5]

[31]

Once
    again, the focus was on restricting preliminary inquiries to the most serious
    offences. Parliament balanced the need for preliminary inquiries in cases
    involving the most serious offences with its objectives of reducing delays and preventing
    the re-traumatization of victims and witnesses. Throughout the debates
    surrounding the Bill, the focus was on delineating the offences that could give
    rise to the availability of preliminary inquiries, while reducing the number of
    those offences. The idea was to remove discretion, reduce complexity, and
    provide certainty. Of some note is the fact that, throughout the various
    debates, there is no mention of the circumstances of the offender nor, as the
    respondent contends, any attempt to delineate a class of accused persons who
    would be entitled to a preliminary inquiry. Nor, as discussed later in these
    reasons, is there any mention of the possible invocation of dangerous offender
    proceedings as a consideration in determining whether a preliminary inquiry is
    available.

Application of the principles of statutory interpretation
    to s. 535

[32]

It
    is now well-established that the core principle of statutory interpretation is taken
    from Elmer Driedger's definitive formulation, found at p. 87 of his
Construction
    of Statutes
, 2nd ed. (Toronto: Butterworths, 1983):

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament

[33]

In
    commenting on this approach to statutory interpretation, Iacobucci J. said in
Bell
    ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at
    para. 26, Driedger's modern approach has been repeatedly cited by this Court
    as the preferred approach to statutory interpretation across a wide range of
    interpretive settings.

[34]

An
    often-used route to avoid the effect of the plain wording of a statute is to
    suggest that the words used are ambiguous thus allowing for a different
    interpretation to be adopted than the one that might be taken from the words
    themselves. A claim of ambiguity carries with it the implicit finding that the
    words used are not plain and obvious in their meaning. Thus, it may be open to
    adopt a different interpretation than might appear on the face of the language
    in order to resolve the ambiguity. In considering whether an ambiguity actually
    exists, however, it is important to remember the caution that Iacobucci J. expressed
    in
Bell ExpressVu
, at para. 30:

For this reason, ambiguity cannot reside in the mere fact that
    several courts  or, for that matter, several doctrinal writers  have come to
    differing conclusions on the interpretation of a given provision. Just as it
    would be improper for one to engage in a preliminary tallying of the number of
    decisions supporting competing interpretations and then apply that which
    receives the "higher score",
it is not appropriate to take as
    one's starting point the premise that differing interpretations reveal an ambiguity
.
    [Emphasis added].

[35]

There
    is nothing ambiguous about the language used in s. 535. The words used are
    plain. An offender is entitled to a preliminary inquiry if charged with an
    indictable offence that is punishable by 14 years or more of imprisonment. The
    respondent is not charged with any such offence.

[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. Proceedings by way of
    a dangerous offender designation are separate and apart from the proceedings
    leading to a conviction for the offence. It is a proceeding that may only be
    invoked
after
a finding of guilt has been made on the offence charged.
    It requires a separate process where separate factual findings are made, and its
    determination turns on the nature of the offender, not the nature of the
    offence. While a specific offence may trigger the dangerous offender
    proceeding, its determination goes well beyond the originating offence:
R.
    v. Wilson
, 2020 ONCA 3, 384 C.C.C. (3d) 355, at para. 66.

[37]

As
    s. 535 makes clear, it is the seriousness of the offence that dictates the
    entitlement to a preliminary inquiry. This conclusion is reinforced by the legislative
    history leading to the changes to s. 535, including the change from offences
    carrying a maximum sentence of life imprisonment to offences carrying a maximum
    sentence of 14 years. It is also reinforced by the various speeches made in
    Parliament regarding the purpose behind the amendments.

[38]

It
    is suggested by the decisions below that, if Parliament had intended to exclude
    the impact of dangerous offender proceedings from the penal jeopardy that an
    accused was facing in determining their entitlement to a preliminary hearing,
    Parliament could have expressly said so. I suggest the opposite argument is
    true and more compelling, that is, that if Parliament had intended that the
    entitlement to a preliminary inquiry was to take into account the prospect of dangerous
    offender proceedings, they could have said so. But they did not.

[39]

Rather,
    Parliament expressly coupled the entitlement to a preliminary inquiry to the maximum
    sentence for the offence charged, both in the original Bill and in the
Act
.
    Based on the principle of implied exclusion, Parliaments silence about the
    impact of dangerous offender designations on the penal jeopardy faced by an
    accused person provides grounds to infer that it was deliberately excluded as a
    consideration in determining the availability of preliminary inquiries: see
    Ruth Sullivan,
Sullivan on the Construction of Statutes
, 6
th
ed (Toronto: LexisNexis Canada, 2014), at § 8.90. The lack of an express
    exclusion, on the other hand, does not imply Parliaments intention to include it.
    That argument may apply when dealing with a series of express exclusions, but is
    not appropriate here: see Sullivan, at §§ 8.92-8.94.

[40]

My
    conclusion on the proper interpretation of s. 535 finds further support in two
    other factors. One is that, in making the changes to s. 535, Parliaments
    intention was to reduce the number of offences that could give rise to preliminary
    inquiries. The result of the interpretation adopted by the courts below is to
    increase the number of offences that may give rise to preliminary inquiries. There
    was some debate in the decisions below as to how large an increase would result.
    In my view, it matters not what the size of the increase would be. The fact is
    that there would be an increase and that result is directly contrary to the intention
    that led to the amendments.

[41]

The
    other factor is the practical realities that flow from the interpretation adopted
    below. The Crown is not required to give notice of its intention to seek an
    assessment for a dangerous offender designation until a finding of guilt is
    made: s. 752.01. Further, the application for a dangerous offender designation
    itself cannot be made until after the assessment is filed: s. 753(1).

[42]

In
    this case, the issue only arose because the Crown, apparently as a matter of
    professional courtesy, advised the offender, much earlier than it was
    statutorily required to do, that it might seek an assessment, much earlier than
    it was statutorily required to do. If the interpretation adopted by the courts
    below was to hold sway, one of two outcomes would likely follow. One would be that
    the Crown would adopt, as a matter of policy, to not advise of its intention to
    possibly pursue a dangerous offender designation until the trial is completed
    and a finding of guilt made. The consequence of that approach would be that any
    entitlement to a preliminary inquiry would not arise until it was functionally
    irrelevant. As an alternative to adopting such a policy, in cases where the
    Crown was considering seeking a dangerous offender designation, it could simply
    direct an indictment which, as the respondent acknowledges, would eliminate any
    right to a preliminary inquiry.

[43]

The
    other would be that a court might be faced with a request from the accused
    person that it order the Crown to advise of its intentions at the commencement
    of the prosecution. If such an order was made, it would be directly contrary to
    the express wording of s. 752.01. In response, the respondent submits that, if
    the prosecution was unwilling to respond to any such directive, then it would
    be appropriate for the matter to simply proceed as an offence in which the
    offender would be entitled to a preliminary inquiry. All parties acknowledge
    that such a result would increase the number of preliminary inquiries, although
    they do not agree by how much.

[44]

As
    I noted earlier that debate does not change the result, which is to increase
    the number of preliminary inquiries  a result directly contrary to the stated
    intention of Parliament. I also note that Parliament did not make any change to
    the notice requirement in s. 752.01, when it amended s. 535, something that one
    would have thought would have been done to avoid this predicament, if
    Parliament had intended that the dangerous offender process was to be included
    in the application of s. 535.

[45]

On
    this point, respondents counsel added a further suggestion that, if the Crown
    withheld giving notice, until the finding of guilt was made, in order to avoid the
    entitlement to a preliminary inquiry, that conduct might give rise to an abuse
    of process application by the accused. That possibility, however remote, only
    reinforces the difficulty with the interpretation urged by the respondent and
    adopted by the courts below: it is inconsistent with Parliaments intention to
    reduce the demands on court resources and reduce delays in the criminal justice
    system. It also appears to be inconsistent with the rejection by the Supreme
    Court of Canada of the argument that the obligation to only provide seven days
    notice of an application for dangerous offender status violated the
Canadian
    Charter of Rights and Freedoms
. In rejecting that argument in
R. v.
    Lyons
, [1987] 2 S.C.R. 309, La Forest J. said, at p. 371, [i]t seems to
    me to be difficult to articulate precisely in what sense the liberty interests
    of the appellant were infringed by the absence of notice earlier than is
    statutorily provided for.

[46]

In
    addition, even if neither of these results arises, we are still left with a
    situation where the offenders rights to a preliminary inquiry will be based on
    the timing of the prosecutions notice of its intention to seek an assessment
    for the purposes of the dangerous offender designation. Parliament could not
    have intended to confer a right to a preliminary inquiry while leaving the
    exercise of that right contingent on prosecutorial discretion. This is
    especially so, since the Minister of Justices rationale, in rejecting the
    Senates proposed amendments, was to remove discretion and its attendant
    litigation and delay, reduce complexity, and introduce certainty in the regime
    governing the availability of preliminary inquiries.

[47]

The
    interpretation adopted by the courts below could also lead to situations where
    two offenders would be treated very differently. One offender might be given
    early notice, because the prosecution has the necessary evidence to reach that
    conclusion, whereas another offender might be left waiting until that necessary
    evidence accumulates. Those differing results could only be avoided if a rule
    was adopted that a preliminary inquiry was required in every case unless the
    Crown categorically rejected any possibility of a dangerous offender
    application being brought. Any such rule would interfere with prosecutorial
    discretion and would unfairly restrict the Crowns consideration of such
    applications, which may only crystallize when the evidence plays out in the
    trial of the offence charged. Absent such a rule, inequitable results will
    undoubtedly occur. Inequitable results can be considered as leading to a
    conclusion that the proposed interpretation is absurd, as that term is understood
    in the context of statutory interpretation:
Re Rizzo & Rizzo Shoes Ltd.
,
    [1998] 1 S.C.R. 27, at para. 27.

Conclusion

[48]

I would allow the appeal, set aside the
    orders below, and remit the matter for trial.

Released: March 12, 2021 J.C.M.

I.V.B. Nordheimer
    J.A.

I agree. J.C.
    MacPherson J.A.

I. agree. E.E. Gillese
    J.A.





[1]

House of Commons Debates
, 42-1, No.
    300  (May 24, 2018) at p. 19604 (Hon. Jody Wilson-Raybould).



[2]

House of Commons Debates
, 42-1, No.
    310 (June 7, 2018) at p. 20501 (Mr. Bill Blair).



[3]

Senate Debates
, 42-1, No. 301 (June
    12, 2019) at p. 8541 (Hon. Murray Sinclair).



[4]

Senate Debates
, 42-1, No. 301 (June
    12, 2019) at pp. 8545 (Hon. Pierre J. Dalphond).



[5]

House of Commons Debates
, 42-1, No.
    435 (June 17, 2019) at pp. 29245-46


