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Charter s.11(i) - Lesser Punishment
MORE CASES
Part 2
. R. v. Archambault [LEADING CASE]
In R. v. Archambault (SCC, 2024) the Supreme Court of Canada (from two judges, the largest single judgment in the majority) dismissed a Crown criminal appeal, here where it "raises the question of the temporal application of a legislative amendment" (here regarding entitlement to a preliminary inquiry).
Here the court considers the temporal application issue:[22] This appeal requires this Court to interpret a new legislative provision and to determine how it applies temporally. Both in matters of transitional law and in statutory interpretation generally, [translation] “the legislative intent is paramount” (P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at No. 457; see also R. v. Ali, 1979 CanLII 174 (SCC), [1980] 1 S.C.R. 221, at p. 235). Our role is therefore limited to discerning the true legislative intent by reading the words of the provision in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the legislation (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26).
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(1) Principles of Transitional Law Applicable in This Case
[24] The starting point in analyzing the temporal application of new legislation is always the legislation itself. In the absence of a transitional provision, and where the lawmaker’s intention to give the legislation a particular effect does not appear expressly or by necessary implication upon reading the legislation, as is the case here, recourse must be had specifically to the rules laid down in interpretation statutes and court decisions.
[25] The Crown argues that the Court of Appeal erred in finding that the right to a preliminary inquiry is governed by the law in force at the time the offence with which the accused is charged was committed. The effect that the new s. 535 Cr. C. must be given thus depends rather on the application of the presumption against interference with vested rights. According to the Crown, if there is a vested right to a preliminary inquiry, this right does not vest until a valid request for such an inquiry is made.
[26] In this case, assessing the merits of these arguments brings into play three well‑established principles of transitional law, which one must be careful not to conflate: (1) the principle of legality; (2) the presumption against interference with vested rights; and (3) the exception based on the immediate application of purely procedural provisions. On the basis of the first principle, the Court of Appeal held that the right to a preliminary inquiry is accruing from the moment the offence is committed. On the basis of the second principle, it held that this right is vested at the date of the first appearance. None of the parties argues that the third principle applies here, but this principle must still be considered in order to resolve the question of the temporal application of the new s. 535 Cr. C.
[27] The principle of legality is a “pillar of the criminal law” whose purpose is to preserve the law as it stood at the time an offence was committed (R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 59). The principle was helpfully summarized by Iacobucci and Arbour JJ. in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357: “As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at the time that the offence allegedly was committed” (para. 41). This rule finds expression in two forms, both of which are embodied in the Charter (Côté and Devinat, at Nos. 566‑67; G. Côté‑Harper, P. Rainville and J. Turgeon, Traité de droit pénal canadien (4th ed. rev. 1998), at pp. 99‑120). First, the new legislation cannot make criminal any act or omission that did not constitute an offence at the time it occurred; s. 11(g) guarantees to any person charged with an offence the right not to be found guilty under such legislation. Second, the new legislation cannot create more severe punishments for an offence committed before it came into force; s. 11(i) guarantees to any person charged with an offence the right to the benefit of the lesser punishment if the punishment has been varied between the time of commission of the offence and the time of sentencing. The rule of law and the fairness of criminal proceedings depend on this (R. v. Kelly, 1992 CanLII 62 (SCC), [1992] 2 S.C.R. 170, at p. 203, per McLachlin J.; Poulin, at para. 59; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 22‑25).
[28] The presumption that Parliament does not intend to interfere with vested rights or privileges is one of the fundamental principles of transitional law. To ensure the certainty of the legal consequences attaching to facts and conduct predating a legislative amendment, “a statute should not be given a construction that would impair existing rights as regards person or property unless the language in which it is couched requires such a construction” (Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, 1975 CanLII 4 (SCC), [1977] 1 S.C.R. 271, at pp. 282‑83, citing Spooner Oils Ltd. v. Turner Valley Gas Conservation, 1933 CanLII 86 (SCC), [1933] S.C.R. 629, at p. 638; see also Dikranian v. Quebec (Attorney General), 2005 SCC 73, [2005] 3 S.C.R. 530, at para. 33). Legislation that affects substantive rights can only apply prospectively to cases in which these rights have not yet vested (R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at para. 87).
[29] There is just one exception to this presumption, namely that “there is no vested right in procedure”, though this is subject to “a limitation to the effect that the following of the new procedure must be feasible” (Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, at p. 331). Purely procedural legislation, which is meant to govern the manner in which rights or privileges are asserted without affecting their substance, is presumed to apply immediately (R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at paras. 10‑11; see also Upper Canada College v. Smith (1920), 1920 CanLII 8 (SCC), 61 S.C.R. 413, at p. 418; Howard Smith Paper Mills v. The Queen, 1957 CanLII 11 (SCC), [1957] S.C.R. 403, at pp. 419‑20; Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256, at pp. 265‑67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at paras. 57 and 62). However, this exception is merely a presumption and must therefore yield to a contrary intention expressed by the lawmaker (Ali, at p. 235).
[30] The following provisions of the Interpretation Act, R.S.C. 1985, c. I‑21, codify the presumption against interference with vested rights and the exception based on the immediate application of purely procedural provisions:43 Where an enactment is repealed in whole or in part, the repeal does not
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(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
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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,
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(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
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(ii) in the enforcement of rights, existing or accruing under the former enactment, [31] With respect, it is not helpful to address the principle of legality from the perspective of vested rights, as the Court of Appeal did in this case, nor is it appropriate to erase the distinction between non‑retroactivity and non‑interference with vested rights (see Venne v. Quebec (Commission de protection du territoire agricole), 1989 CanLII 84 (SCC), [1989] 1 S.C.R. 880, at p. 906; Attorney General of Quebec v. Expropriation Tribunal, 1986 CanLII 13 (SCC), [1986] 1 S.C.R. 732, at pp. 741 and 744; Gustavson Drilling, at pp. 279 and 282; Dikranian, at para. 31). Such an approach injects more uncertainty and confusion into transitional law than it resolves. We are dealing not with a provision that might change the legal rules applicable at the time the offence was committed, which would engage the principle of legality, but rather with a legislative amendment whose purpose is to limit the use of a criminal procedure for the future.
[32] We therefore propose simply to follow the structure of ss. 43 and 44 of the Interpretation Act. The first question to be considered in determining how new legislation applies temporally is whether the legislative amendment is purely procedural in nature. If the amendment in issue may affect a right or privilege that vested under the prior enactment, the time at which that right or privilege vested must be determined. It will be presumed to be preserved only for persons in whom it actually vested before the legislative amendment came into force. Next the court goes on to consider whether the legislative amendments are 'procedural' only, and whether the rights are 'vested':(2) The Abolition of the Preliminary Inquiry for Certain Offences Is Procedural in Nature but Affects a Substantive Right
[33] The absence of any indication from Parliament as to the temporal application of a provision triggers the presumption that the legislative amendment does not affect vested rights or privileges. In this case, the amending statute contains several transitional provisions, but none of them concerns the sections relating to the preliminary inquiry regime. There is nothing in the new enactment that makes it possible to clearly discern Parliament’s intent with respect to its temporal application. In such circumstances, it must be concluded that Parliament intended to rely on the presumptions, not to displace them.
[34] Mr. Grenier and Mr. Archambault are asking this Court to affirm, as the Court of Appeal did, that the right to a preliminary inquiry is governed by the substantive law in force at the time the offence was committed. Reaching this conclusion would end the analysis.
[35] However, with respect for the contrary view, we are of the opinion that the abolition of the preliminary inquiry for certain offences does not engage the principle of legality. This measure has no impact on the scope of criminal liability. The preliminary inquiry is not a legal rule on which an accused may rely in adjusting his behaviour or in deciding to accept the consequences of breaking it at the moment he commits an offence (Poulin, at para. 59). It “is not a trial but simply a preliminary review to determine whether there is sufficient evidence to proceed to trial” (Hynes, at para. 4; see also A. Stylios, J. Casgrain and M.‑É. O’Brien, Procédure pénale (2023), at para. 10‑3).
[36] It must therefore be asked whether the abolition of the preliminary inquiry in the case of accused persons charged with an indictable offence punishable by less than 14 years of imprisonment affects a substantive right or whether, the amendment being purely procedural in nature, the new enactment must apply immediately to all proceedings, whether commenced before or after it came into force. Provincial court and superior court judges across the country have expressed conflicting opinions on the matter. Importantly, the Crown does not argue that the legislative amendment is purely procedural in nature, but rather questions when the right to a preliminary inquiry vests.
[37] On this point, we agree for the most part with the analysis of our colleague Karakatsanis J. It is true that Parliament’s choice to limit or abolish the right to a preliminary inquiry in the case of certain offences does not affect the accused’s right to make full answer and defence, because there is no constitutional right to a preliminary inquiry (S.J.L., at para. 21). That being said, as Doherty J.A. established in R. v. R.S., 2019 ONCA 906, the limitation on the right to a preliminary inquiry affects the accused’s right under s. 548(1)(b) Cr. C. to be discharged of any charge if, on the whole of the evidence adduced during the preliminary inquiry, no sufficient case is made out to put the accused on trial on the charge (para. 49; see also R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828). The purpose of the preliminary inquiry is in fact to “protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process” (Hynes, at para. 30, quoting Skogman, at p. 105). It may also happen that, following a preliminary inquiry, an accused will be committed for trial on offences distinct from the one initially charged, a situation that may lead to a review of the decision then in effect on the accused’s interim release, pursuant to s. 523(2)(b) Cr. C.
[38] This is not a case in which the legislative amendment would affect only the manner of proceeding or of conducting litigation. Any limitation on the right to a preliminary inquiry therefore has a direct impact on the liberty and security of accused persons (R.S., at paras. 52 and 57‑58). The legislative amendment, whose purpose is to limit the preliminary inquiry to the most serious offences, cannot be considered a purely procedural amendment.
[39] We also agree with our colleague Karakatsanis J. that simply concluding that procedural legislation may affect vested or substantive rights is not sufficient to determine the temporal application of a legislative amendment where the vesting of these rights may be questioned. In Dineley, this Court cautioned against categorizing the nature of a legislative amendment in an overly rigid manner without considering its effects on “vested or substantive rights” (para. 10). The use of the word “or” in the expression “vested or substantive rights” cannot be interpreted as creating two distinct classes of rights, one that protects rights from any retrospective effect and the other providing protection only if the rights in question have vested. This would amount to nullifying the presumption against interference with vested rights. Therefore, with due respect for the approach adopted by our colleague Martin J., the fact that new procedural legislation may, through its effects, interfere with a substantive right does not end the analysis. The right or privilege in question must also have been vested at the time that legislation came into force.
[40] We would add that the fact that a legislative amendment affects “interests” of a constitutional nature is not in itself determinative of how the legislative amendment applies temporally (Martin J.’s reasons, at para. 110). That would be a considerable extension of the constitutional sphere, which would have the effect of unjustifiably broadening the scope of the presumption against interference with vested rights, especially given that the constitutionality of the amendment in issue is not being challenged. In Dineley, it was unnecessary for this Court to consider when the right had vested, because the legislative amendment had come into force during the trial. Holding that the presumption on vested rights applied and that it was impossible for proceedings commenced under the former enactment to be continued in conformity with the new enactment, as contemplated by Ali, was sufficient to dispose of the appeal.
[41] There is more. In a criminal context, the conclusion that new procedural legislation affects vested or substantive rights does not necessarily engage the principle of legality. Vested or substantive rights within the meaning of Dineley must not be confused with the substantive law in force at the time the offence was committed within the meaning of Poulin. A right may be vested or substantive without having any impact on the scope of criminal liability, that is, the nature or consequences of the commission of an offence. The reverse is also true. It is possible for an accused not to have a vested right to the rules in force at the time the offence was committed. With respect, the approach adopted by the Court of Appeal in this case creates such confusion.
[42] In light of our conclusion on this question, and in the absence of any indication that justifies concluding otherwise, the presumption that Parliament did not intend to interfere with vested rights or privileges in relation to preliminary inquiries applies. What must now be determined is when this right vests in order to decide whether Mr. Grenier and Mr. Archambault were entitled to the preliminary inquiries they obtained following an agreement with the Crown.
(3) The Right to a Preliminary Inquiry Vests at the Time Charges Are Laid
[43] The core issue in this appeal is when the right to a preliminary inquiry vests for the purposes of s. 43(c) of the Interpretation Act. If an amendment may affect a right existing under the former law, the right in question will be presumed to be preserved only for accused persons in whom it actually vested before the amendment came into force.
[44] The determination of what constitutes a vested right or privilege is a delicate matter. In Dikranian, this Court set out two conditions to be met by an individual claiming a vested right or privilege. First, the individual’s legal situation must be “tangible and concrete rather than general and abstract” (para. 37). The mere possibility of availing oneself of a statute is not a basis for arguing that a vested right exists; “the right must be vested in a specific individual” (para. 39). Second, the individual’s legal situation must be sufficiently tangible and constituted at the time the new legislation comes into force; in other words, the situation must have materialized to some degree (paras. 37 and 40).
[45] For the legal situation to be sufficiently constituted, the conditions precedent to the exercise of a right must have been fulfilled. Only then can the right be vested (R. v. Puskas, 1998 CanLII 784 (SCC), [1998] 1 S.C.R. 1207, at para. 14). However, the right can still vest in time even if not all procedural steps required to exercise the right were taken before a legislative amendment came into force (see, e.g., Re Falconbridge Nickel Mines Ltd. and Minister of Revenue for Ontario (1981), 1981 CanLII 1641 (ON CA), 32 O.R. (2d) 240 (C.A.), at pp. 248‑50; see also Côté and Devinat, at No. 638; R. Sullivan, The Construction of Statutes (7th ed. 2022), at pp. 729‑30). The difficulty therefore lies in distinguishing, on the one hand, what are simply the necessary procedural steps for exercising the right from, on the other, the conditions precedent to the exercise of the right. Only the latter must be fulfilled for the right to vest.
[46] Mr. Grenier and Mr. Archambault, echoing in part the Court of Appeal’s conclusions in this regard, argue principally that the right to a preliminary inquiry vests at the time the offence is committed and, in the alternative, that the right vests at the time of the first appearance. It is relevant to note that the Ontario Court of Appeal, unlike its Quebec counterpart, has found that the right to a preliminary inquiry does not vest until the date the accused requests such an inquiry (see R.S., at para. 4). In the present case, the Crown is asking this Court to adopt this latter approach and to reject the one favoured by the Court of Appeal of Quebec.
[47] The Crown correctly submits that a right or a privilege cannot vest at several different points in time. It is true that there is a notable difference in formulation between the French and English versions of s. 43(c) of the Interpretation Act. The French version refers first to “droits ou avantages acquis”, and then to “obligations contractées” and “responsabilités encourues”. The English version does not use specific language for rights and privileges, referring rather to “any right, privilege, obligation or liability acquired, accrued, accruing or incurred.” In principle, the words “acquired, accrued, accruing” should have different meanings, because Parliament does not speak in vain (Attorney General of Quebec v. Carrières Ste‑Thérèse Ltée, 1985 CanLII 35 (SCC), [1985] 1 S.C.R. 831, at p. 838; Canada (Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 87; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 89). However, as Professor Ruth Sullivan noted, “the prolix style in which the provision is drafted (typical of the nineteenth and early twentieth centuries) blunts the force of this presumption” (p. 768). This Court therefore stated in Puskas that the words “acquired”, “accrued” and “accruing” used in s. 43(c) of the Interpretation Act essentially refer to the same idea: “. . . something can only be said to be ‘accruing’ if its eventual accrual is certain, and not conditional on future events” (para. 14 (emphasis added)).
[48] Under the first step of the test laid down in Dikranian, the possibility that the accused’s right to a preliminary inquiry vests at the time the offence is committed can be excluded. The time of the offence cannot be the point at which the right to a preliminary inquiry vests, since the accused’s legal situation is not sufficiently tangible, concrete and distinctive at that time. It is not until the accused is charged that their legal situation becomes tangible, concrete and distinctive. At the time charges are laid, the criminal court process begins and the accused actually faces criminal jeopardy.
[49] We are also of the view that, under the second step of the test laid down in Dikranian, the accused’s situation is sufficiently constituted at the time charges are laid. At that point, the vesting of the right is certain and not conditional on future events, because the accused will inevitably have to appear and choose to exercise or waive their right to a preliminary inquiry, or to reserve their election. All of the conditions precedent to the vesting of the right are also fulfilled at that time. In our opinion, the request that the accused must make to a justice is a necessary procedural step for exercising the right to a preliminary inquiry, but it has no effect on its crystallization. This can be confirmed simply by looking at the wording of s. 535 Cr. C., bearing in mind the purpose of the legislative amendments that came into force in 2004 and 2019.
[50] Section 535 Cr. C. opens with the phrase “[i]f an accused who is charged with an indictable offence”, which sets the charging of the accused as the condition for entitlement to a preliminary inquiry. The Court of Appeal correctly noted that “[t]hese words point unmistakably to the moment of charging as the moment at which the entitlement to a preliminary inquiry . . . is fully vested in the accused” (para. 37). It is true that s. 535 Cr. C. states that an accused must be “charged with an indictable offence” (“inculpé d’un acte criminel”). In the case of a hybrid offence, the Crown may not yet have decided on the mode of prosecution at the time charges are laid. However, this is not a consideration that makes the right less certain or concrete. There is a fundamental distinction between a right that has vested but can be challenged and a right that has not vested because the conditions precedent to its crystallization have not been fulfilled. Therefore, neither the fact that the Crown may elect to proceed summarily or by direct indictment under s. 577 Cr. C. nor the possibility that the accused will elect to be tried in provincial court prevents the right to a preliminary inquiry from being acquired by the accused (R.S., at para. 40).
[51] The accused must make a request before a justice in order for a preliminary inquiry to be held, but the vesting of the accused’s right is not conditional on the making of such a request. Section 535 Cr. C. is under the heading “Jurisdiction” and concerns the justice’s duty to conduct a preliminary inquiry. This duty is separate from the accused’s right to a preliminary inquiry. From a procedural standpoint, a preliminary inquiry is held only if a request to this effect is made by one of the parties (ss. 535, 536(2) and (4) and 536.1(2) and (3) Cr. C.); this is why the justice’s duty to conduct an inquiry arises only if one is requested. In this context, the request for a preliminary inquiry triggers the justice’s duty but is not a condition precedent to the existence of the right to a preliminary inquiry itself.
[52] In this regard, we cannot agree with our colleague Karakatsanis J.’s reading of Puskas. That case dealt with amendments to s. 691(2) Cr. C. that abolished appeals as of right to this Court for accused persons whose acquittal had been overturned by a court of appeal, where a new trial had been ordered. The right to appeal to this Court without leave was accompanied by a procedural requirement, namely the filing of a notice of appeal within the statutory time limits (see Supreme Court Act, R.S.C. 1985, c. S‑26, ss. 58 to 60). In Puskas, this Court did not include the filing of the notice of appeal in the set of conditions to be met for the vesting of the right in question (para. 15). In the same way, the making of a request for a preliminary inquiry is not a condition precedent to the existence of the right to a preliminary inquiry, but rather constitutes the exercise of the right itself.
[53] To conclude otherwise would be to give the 2004 legislative amendments a scope they were not intended to have. As this Court noted in S.J.L., the purpose of those amendments was to enable parties to choose a mechanism adapted to their needs, not to impose a condition to be met for their right to materialize. The right to a preliminary inquiry remained “unconditional” (House of Commons Debates, September 28, 2000, at pp. 8828‑29; Debates of the Senate, November 1, 2001, at p. 1612; see also D. M. Paciocco, “A Voyage of Discovery: Examining the Precarious Condition of the Preliminary Inquiry” (2004), 48 Crim. L.Q. 151, at p. 162). The addition of procedural steps that had to be taken in order to exercise the right to a preliminary inquiry did not change the scope of this right, unlike the 2019 legislative amendment, whose purpose was precisely to limit the number of such inquiries. The effects of these two amendments must not be conflated.
[54] The Court of Appeal of Quebec properly noted that accused persons regularly reserve their election as to mode of trial at the first appearance in order to avoid making a premature decision on the exercise of their right to a preliminary inquiry (paras. 40‑43). This practice provides a concrete illustration of the fact that the right to a preliminary inquiry crystallizes as soon as criminal charges are laid. As our colleague Kasirer J. suggests, if an accused can in practice reserve the exercise of their right, this means that their legal situation is (1) tangible, concrete and distinctive and (2) sufficiently constituted, that is, not uncertain and not conditional on future events. As we explain, however, these conditions are already met the moment criminal charges are laid. As long as the accused has not waived the right to a preliminary inquiry by electing to be tried in provincial court and the Crown has not defeated this right by electing an incompatible mode of prosecution or by proceeding by direct indictment, the accused continues to have a right to a preliminary inquiry.
[55] In our view, there is no need in this case to decide on the appropriateness of reforming this practice. Parliament has already made the choice to limit the preliminary inquiry to the most serious cases in order to address the increase in court delays in criminal cases. Arguably, the making of informed decisions also helps to reduce delays, by comparison with the making of premature decisions that might entail higher costs. It must be kept in mind that, when an accused expresses his wish to re‑elect mode of trial, consent from the prosecutor must generally be obtained (s. 561(1)(a) Cr. C.; Jordan, at para. 62). In this context, and in light of the importance of this election by an accused, we would refrain from concluding that the practice of reserving elections is a dilatory mechanism.
[56] In addition to being supported by the new enactment, the interpretation we adopt has the advantage of preserving fairness and legal certainty. Criminal trials do not all proceed in a purely linear fashion, and they each have their own particular features. When it comes to the order of the various stages of the proceedings, there are a multitude of possibilities. The flexibility of criminal procedure and the possible delays that may occur are better acknowledged by finding that the right vests when charges are laid, a stage common to all cases. Such delays may be attributable to the Crown, for example where it is slow to elect the mode of prosecution, or to the delays inherent in the justice system. Nothing suggests that Parliament intended to subject the vesting of a right as important as that to a preliminary inquiry to such contingencies. The expectation of the accused crystallizes into a right to a preliminary inquiry once charges are laid, because the accused’s freedom and security are then at risk.
[57] Such an interpretation also has the advantage of allowing for the uniform application of criminal procedure across the country, without affecting the particularities of the administration of justice in certain provinces. Such particularities are permitted by Parliament in matters of criminal procedure (see ss. 482 and 482.1 Cr. C.). We believe that it is important for justice to be administered in a manner adapted to local circumstances and, for this reason, we consider it inappropriate to adopt an interpretation of the new text of s. 535 Cr. C. that would exclude such a possibility outright. Nothing in the wording of this provision is inherently incompatible with the election being reserved and the preauthorization or not of prosecutions. To conclude that the right to a preliminary inquiry only vests when an accused makes such a request risks creating situations in which accused persons in different provinces, despite being charged on the same date, would not all be vested with the right to a preliminary inquiry.
[58] The respondents, Mr. Grenier and Mr. Archambault, were charged prior to September 19, 2019. We therefore conclude that they each had a vested right to a preliminary inquiry before the legislative amendment came into force. The former s. 535 Cr. C. continues to apply to them by operation of the presumption against interference with vested rights, and it is unnecessary to determine whether the offences they were charged with fall within the category of the most serious offences. The Crown chose to prioritize the holding of the trials for Mr. Grenier and Mr. Archambault within a reasonable time, as well as the right of the victims to finally be heard in court, by allowing a preliminary inquiry to be held in each of the two cases. With respect for the contrary view, we conclude that this choice was consistent in every respect with the temporal application of the legislative amendment. . Inlakhana v. Canada (Attorney General)
In Inlakhana v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered the Charter s.11(i) 'lesser punishment' right ["if found guilty of the offence and 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"] in an appeal. Here, a prisoner was able to apply Charter 11(i) to her case when parole eligibility stiffened between the commission of her offence and the sentencing. She sought to sue [for "false and unlawful imprisonment, negligence and Charter-related infringements"] for any administrative 'excess incarceration' [SS: my term] - that is, periods that she would have been paroled if the more favourable law had been applied seamlessly.
This appeal challenged the trial court's partial summary judgment award to the government respondent (the appellant first-initiated the summary judgment motion) "releasing the respondent from liability arising from a failure to act expeditiously after the declaration was made":[1] Souphin Inlakhana was serving a penitentiary sentence of 6 years, 4 months and 27 days. At the time of the commission of the offences for which she was sentenced, the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) provided for accelerated parole for non-violent offenders serving their first penitentiary sentence. There is no dispute that under this legislation Ms. Inlakhana would have been considered for early parole after one sixth of her sentence, but for the fact that the relevant provisions of the CCRA were repealed on March 28, 2011, about six months before she was convicted and sentenced.
[2] Several inmates at Grand Valley Institution for Women, including Ms. Inlakhana, succeeded in establishing that their s. 11(i) Charter rights had been breached by denying them accelerated parole review. Since the offences for which they were sentenced were committed before the accelerated parole process was abolished, they were entitled to the benefit of lesser punishment: Lewis et al. v. The Attorney General of Canada, 2014 ONSC 6394, aff’d 2015 ONCA 379, leave to appeal refused, [2015] S.C.C.A. No. 325. Therefore, the effect of the decision was that Ms. Inlakhana was eligible for accelerated parole review.
[3] Immediately upon being notified of that decision, the Correctional Service of Canada (“CSC”) started to implement the process for determining Ms. Inlakhana’s parole eligibility. She ultimately received parole 43 days after the constitutional declaration was made.
[4] The appellants, Ms. Inlakhana and the Family Law Act claimants, commenced an action seeking damages for, among other things, false and unlawful imprisonment, negligence and Charter-related infringements. There were two aspects to the claim. The first had to do with the fact that Ms. Inlakhana spent much longer in custody as a result of the unconstitutional retroactive denial of the accelerated parole review system under the CCRA. The second had to do with what the appellants describe as a 43-day delay in processing Ms. Inlakhana’s release from custody on parole after the constitutional declaration was made.
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[12] Second, the appellants argue that the motion judge erred in dismissing the Charter claim, specifically that Ms. Inlakhana had been denied her s. 7 right to liberty "contrary to the principles of fundamental justice". The appellants contend that the motion judge erred when she suggested that the CSC and Parole Board were mandated to follow a process. They suggest that the following passage from the reasons reflects error:The [Parole Board] is statutorily required to review all information with respect to an offender in order to determine whether there are grounds to believe that she is likely to commit an offence with violence before the expiration of the sentence: CCRA s. 101(a). I agree that [Ms. Inlakhana’s] release was virtually a "sure thing" but nevertheless, a statutorily mandated process was in place. As a result, it cannot be said that her detention for an additional 43 days was contrary to the principles of fundamental justice. [13] The appellants suggest that the trial judge erred when she said that there was a statutorily mandated process in place to review information before determining whether Ms. Inlakhana should get parole. We disagree.
[14] Conditional release is governed under the CCRA. In particular, as mentioned earlier, s. 101(a) explicitly requires the Parole Board to take into consideration all manner of enumerated factors and information in “achieving the purpose of conditional release”. While Ms. Inlakhana’s release may have been, as the motion judge put it, “virtually a ‘sure thing’”, the decision about early release was that of the Parole Board and the Parole Board alone. While the information provided to the Board may have informed what it was likely to do, parole could not be granted until all the necessary information was provided to the Board and the Board was able to exercise its discretion in accordance with that information.
[15] We see no error in the motion judge's reasons.
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