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Criminal - Preliminary Inquiry. R. v. Archambault
In R. v. Archambault (SCC, 2024) the Supreme Court of Canada (these extracts from Cote and Rowe writing together, 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).
The court summarizes both aspects of the case, those of temporal application and preliminary hearings rights-vesting:[1] This appeal raises the question of the temporal application of a legislative amendment through which the right of accused persons to a preliminary inquiry, enshrined in s. 535 of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), is limited to the most serious cases, as well as the question of how the amended provision should be interpreted going forward. The appeal has become moot as regards the respondents, Agénor Archambault and Gilles Grenier, for whom preliminary inquiries were held in parallel with the appeal that has made its way to this Court. We are nevertheless of the view that it is in the public interest to address the above questions on the merits in order to clear up some continuing uncertainty over the state of the law (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at pp. 361‑62; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at paras. 49‑50; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 2; R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 17).
[2] We agree with our colleague Karakatsanis J. that the amendment made to s. 535 Cr. C. is procedural in nature but affects a substantive right, that is, an 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. With respect, the Court of Appeal erred in holding that the right to a preliminary inquiry is governed by the law in force at the time the offence was committed.
[3] However, unlike our colleague Karakatsanis J., we are of the view that the respondents, Mr. Grenier and Mr. Archambault, had a vested right to a preliminary inquiry. The right to a preliminary inquiry crystallizes at the time charges are laid.
[4] In the absence of a transitional provision, such an interpretation is the one most consistent with both the text of s. 535 Cr. C. and the presumption that Parliament does not intend to interfere with the vested rights or privileges of accused persons. This interpretation is also anchored in the notion that criminal trials do not all proceed in the same purely linear fashion and that they each have their own particular features. Indeed, when it comes to the order of the various stages of the proceedings, there are a multitude of possibilities. Finding that the right vests when charges are laid, a stage common to all cases, better acknowledges the flexibility of criminal procedure and the delays that may be caused by the Crown or the delays inherent in the justice system. Such an interpretation has the advantage of preserving fairness and legal certainty in addition to allowing for the uniform application of the new legislative provision across the country.
[5] Regardless of whether a right vested in Mr. Grenier and Mr. Archambault before the legislative amendment came into force, we are of the opinion that the respondents have such a right under the current version of s. 535 Cr. C. Parliament intended to preserve the preliminary inquiry for all accused persons whose alleged offence, or its equivalent, is punishable by 14 years or more of imprisonment, and not, as the Crown argues, only for accused persons who are personally liable to 14 years or more of imprisonment. This is the interpretation most consistent with the text of the amending provision and the compromise from which it resulted. The Crown’s proposed interpretation of this provision, based on an abstract purpose — reducing the number of preliminary inquiries held across the country — is not supported either by the clear text of the new s. 535 Cr. C. or by the circumstances in which it was enacted. . R. v. Archambault
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 legislative history of the preliminary inquiry, including the 2018 Bill C-75 amendments:III. Legislative Background on the Preliminary Inquiry
[11] An inheritance from English law, the preliminary inquiry was incorporated into Canadian criminal law in 1892, in the first Criminal Code, 1892, S.C. 1892, c. 29 (s. 577; see also D. Pomerant and G. Gilmour, A Survey of the Preliminary Inquiry in Canada (April 1993), at pp. 1‑24). The preliminary inquiry was originally designed as an instrument of the prosecution, for finding the perpetrator of a crime and obtaining evidence of their guilt; it later became “a shield for the defence”, allowing the accused to ascertain what evidence the prosecution had against them and also “relieving [them] from the expense and odium of a trial” if, in the opinion of the justice of the peace or provincial court judge, that evidence was not sufficient to justify holding a trial (Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 105, quoting P. Devlin, The Criminal Prosecution in England (1960), at p. 10).
[12] The preliminary inquiry therefore has two important aspects. Its primary purpose is “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” (Skogman, at p. 105). It is a “screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial” (R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 21, citing R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 30 and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 14‑16). The preliminary inquiry also plays an “ancillary role as a discovery mechanism” (Hynes, at para. 31). In English law, the Crown’s duty to disclose evidence at the preliminary inquiry has evolved in such a way as to make it a very effective discovery mechanism, which has not historically been the case in Canada (Law Reform Commission of Canada, Research Paper: Discovery in Criminal Cases (1974), at pp. 8‑9).
[13] While the preliminary inquiry allows an accused to learn more about the prosecution’s evidence, the disclosure of evidence is primarily assured, in Canadian law, by the accused’s constitutional right to make full answer and defence, a principle of fundamental justice enshrined in s. 7 of the Canadian Charter of Rights and Freedoms (R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680; R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 22; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; McNeil, at paras. 17‑25; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35). This constitutional right to the disclosure of all relevant information is distinct from the right to a preliminary inquiry, which is what led this Court to state in S.J.L., at para. 23, that “the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance” since the enactment of the Charter. Parliament’s choice to limit or abolish the preliminary inquiry for certain offences therefore does not violate the principles of fundamental justice, because the accused continues to be presumed innocent and retains the right to make full answer and defence (para. 21). There is no constitutional right to a preliminary inquiry.
[14] At the beginning of this century, Parliament considered ways to reduce the number, length and scope of preliminary inquiries in response to an increase in court delays and in light of the impact of this procedure on victims and other witnesses. However, a radical reform was ruled out (see R. v. M. (P.), 2007 QCCA 414, 222 C.C.C. (3d) 393, at paras. 68‑73). The solution favoured by Parliament, a more moderate one, was set out in the Criminal Law Amendment Act, 2001, S.C. 2002, c. 13. One purpose of that statute was “reforming and modernizing criminal procedure with respect to . . . procedural aspects of preliminary inquiries” (summary, subpara. (f)(i)). Its provisions, which came into force on June 1, 2004, amended the Cr. C. in order to, among other things, make the holding of a preliminary inquiry optional, allow parties to limit the scope of an inquiry or allow a pre‑hearing conference to be held, give the justice the power to regulate the course of the inquiry and authorize the justice to end any abusive examinations or cross‑examinations. Those amendments maintained the accused’s “unconditional right” to a preliminary inquiry while streamlining the use of this procedure and making it optional (House of Commons Debates, vol. 136, No. 124, 2nd Sess., 36th Parl., September 28, 2000, at p. 8829; Debates of the Senate, vol. 139, No. 66, 1st Sess., 37th Parl., November 1, 2001, at p. 1612).
[15] Parliament’s intent in making those legislative amendments was to enable parties to choose mechanisms better adapted to their needs; its intent was “not the imposition [on them] of more inflexible procedures” (S.J.L., at para. 24). To allow parties to decide whether a preliminary inquiry was appropriate in their circumstances, Parliament changed the wording of s. 535 Cr. C. as follows:535. If an accused who is charged with an indictable offence 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.
(Criminal Law Amendment Act, 2001, s. 24) [16] In a report released in June 2017, the Standing Senate Committee on Legal and Constitutional Affairs observed that the Criminal Law Amendment Act, 2001 had not succeeded in conclusively reducing the number and length of preliminary inquiries or in alleviating the burden on victims and witnesses. In its report, the Committee recommended eliminating preliminary inquiries or limiting them “to the most serious offences under the Criminal Code” in order to reduce delays in criminal cases (Delaying Justice Is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report) (2017), at p. 48).
[17] One year earlier, in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, Moldaver, Karakatsanis and Brown JJ., writing for the majority, had invited Parliament to undertake a review of criminal rules and procedures, particularly the preliminary inquiry (at para. 140):For provincial legislatures and Parliament, this may mean taking a fresh look at rules, procedures, and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focusses on what is truly necessary to a fair trial. Legal Aid has a role to play in securing the participation of experienced defence counsel, particularly for long, complex trials. And Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations. Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced. [Emphasis added.] [18] In response to the invitation extended by this Court in Jordan and the observations made by the Standing Senate Committee on Legal and Constitutional Affairs in its report, the government introduced a first version of Bill C‑75 in Parliament on March 29, 2018. The original version of the bill limited the availability of preliminary inquiries to adults charged with offences punishable by life imprisonment (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., 2018, s. 240 (first reading March 29, 2018); House of Commons Debates, vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, at p. 19604 (Hon. J. Wilson‑Raybould)).
[19] Given the concerns expressed by the legal community about that approach, and further to an amendment proposal made by the Senate, the wording of the bill was changed to expand access to preliminary inquiries by comparison with what had been set out in the original bill. A choice was made to preserve the right of accused persons to a preliminary inquiry for all of what were considered to be the most serious offences. In this context, Parliament decided to preserve access in the case of offences for which the maximum sentence was 14 years or more. We use the term “most serious offences” below to refer to such offences:As introduced, Bill C‑75 proposed to restrict the availability of preliminary inquiries to indictable offences punishable by life imprisonment, roughly 70 offences. The other place agreed that these offences should automatically include a preliminary inquiry.
However, it also expanded their availability on a discretionary basis to all other indictable offences with a maximum penalty of less than life imprisonment, which would have been an additional 393 offences. As per the other place’s amendment, preliminary inquiries would be available in two circumstances: first, where one or both parties requested one; and, second, a justice was satisfied that certain criteria were met, namely that appropriate measures were taken to mitigate the impacts on victims for both approaches and, where it was on the request of one party, that it was also in the best interest of the administration of justice.
The amendment responded to concerns that preliminary inquiries were not available for more and 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.
Recognizing, however, that the other place’s amendment was motivated by continuing concerns by the legal community and others, I proposed to not accept the other place’s amendments 3 and 4 as drafted, but to revise the bill’s original approach to make preliminary inquiries also available for offences with a maximum penalty of 14 years, for example, sexual assault with a weapon.
(House of Commons Debates, vol. 148, No. 435, 1st Sess., 42nd Parl., June 17, 2019, at p. 29245 (Hon. D. Lametti)) [20] That version of the bill was assented to on June 21, 2019, and stipulated that the new preliminary inquiry provisions would come into force 90 days later, on September 19, 2019 (see 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 (“2019 Amendments”), s. 406). The wording of s. 535 Cr. C. as so amended provides only accused persons who are charged with an indictable offence punishable by 14 years or more of imprisonment with the right to a preliminary inquiry:535 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. [21] Overall, the purpose of the legislative amendment is to reduce the number and length of preliminary inquiries in order to address the increase in court delays in criminal cases and alleviate the burden on witnesses and victims, who have to testify twice when such a procedure is used (House of Commons Debates, May 24, 2018, at pp. 19602‑5 (Hon. J. Wilson‑Raybould); see also House of Commons Debates, June 17, 2019, at pp. 29245‑46 (Hon. D. Lametti)). To this end, Parliament has limited the right of accused persons to request a preliminary inquiry to the offences that are considered to be the most serious. In the context of this amendment, the category of the most serious offences is understood by Parliament as consisting of indictable offences punishable by a maximum term of imprisonment of 14 years or more. . R. v. Archambault
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 reviews the current state of the law of 'preliminary inquiries', particularly their availability to a defendant in relation to the maximum sentence duration of the offence:[8] The Court of Appeal held that the right to a preliminary inquiry accrues at two different points in time. First, relying on the principle of legality, the Court of Appeal found that the right to a preliminary inquiry is “‘accruing’ from th[e] moment” the offence is committed (2022 QCCA 1170, 84 C.R. (7th) 174, at para. 11). In Healy J.A.’s view, the classification of offences (indictable, hybrid or summary conviction) and everything that flows from it (election as to mode of trial and preliminary inquiry) are part of the law on which individuals rely in adjusting their behaviour and in assuming risks at the time of committing an offence (paras. 16‑17).
[9] Second, the Court of Appeal found that the right to a preliminary inquiry is “vested or accrued at the date” of the first appearance (para. 11). Even when the accused does not request a preliminary inquiry, the first appearance confirms the vesting of the right. This interpretation is based on the importance of the legislative amendment to the rights or interests concerned, not on the characterization of the amendment as procedural or substantive in nature. As long as the accused has not elected trial before a provincial court judge, the accused’s right to request a preliminary inquiry is preserved.
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B. An Accused Whose Alleged Offence, or Its Equivalent, Is Punishable by 14 Years or More of Imprisonment Has the Right to a Preliminary Inquiry
[59] Although our conclusion on the question of the temporal application of the new text of s. 535 Cr. C. is sufficient to dispose of this appeal, we shall now examine the interpretation this provision should receive.
[60] To date, appellate courts that have considered the matter have found that a preliminary inquiry is available only to accused persons who personally face a term of imprisonment of 14 years or more (see R. v. Sheppard, 2023 ABCA 381, 69 Alta. L.R. (7th) 1; R. v. S.S., 2021 ONCA 479, 493 C.R.R. (2d) 251; R. v. C.T.B., 2021 NSCA 58). In the same vein, the Crown submits that the legislative amendment to s. 535 Cr. C. has the effect of eliminating the right to a preliminary inquiry for accused persons charged with so‑called historical offences for which the term of imprisonment was not 14 years or more at the time the offence was committed.
[61] With respect, we are of the view that this interpretation is incorrect. The text, context and purpose of s. 535 Cr. C. demonstrate that an accused has the right to a preliminary inquiry if their alleged offence, or its equivalent, is punishable by 14 years or more of imprisonment. Section 535 Cr. C. must be interpreted in a manner consistent with the intent expressed by Parliament to increase the sentences applicable to certain offences, where necessary. The right to a preliminary inquiry is therefore not affected by the accused’s right to the benefit of the lesser punishment.
(1) Parliament Intended the Right to a Preliminary Inquiry To Be Tied to the Seriousness of the Offence
[62] There is no ambiguity in the wording of s. 535 Cr. C. A preliminary inquiry can be held only “[i]f 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 [an] inquiry”. Both the adjective “punishable” in English and its equivalent “passible” in the French version, which states “[l]orsqu’un prévenu inculpé d’un acte criminel passible d’un emprisonnement de quatorze ans ou plus”, relate to the indictable offence and not to the sentence the accused may receive. In addition, the English version of the provision is enlightening in this regard, since the word “that” very clearly links the adjective “punishable” to the term “indictable offence”. This phrasing refers to the seriousness of the alleged offence, and its logic is not directed at the accused personally. Parliament thus intended the right to a preliminary inquiry to be tied to the seriousness of the alleged offence, not to the degree of jeopardy faced by the accused. This is an objective criterion.
[63] The expression “acte criminel passible d’un emprisonnement maximal de” is used more than a hundred times in the French version of the Cr. C. to establish the maximum sentence that applies and thus to define the objective seriousness of offences. As this Court stated in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 96, the maximum sentence established by Parliament for an offence determines the objective seriousness of the offence (see also R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 36; H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (3rd ed. 2020), at p. 53; C. C. Ruby, Sentencing (10th ed. 2020), at §2.19). According to the presumption of consistent expression, the meaning of the words used in statutes remains consistent, because “the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes” (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 44, citing R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 217). There is therefore no reason, in interpreting the text of s. 535 Cr. C., to depart from the usual meaning of this expression, which refers to the objective seriousness of the offence.
[64] This interpretation is not only supported by the text of s. 535 Cr. C. but is also reinforced by an examination of the parliamentary debates that led to the amendment in issue. It must be kept in mind that Parliament has always understood the category of the “most serious offences” by reference to the maximum sentence specified for the offence, which, here again, is reflected in the provision as enacted. The first version of the amendment at issue would have maintained the right to a preliminary inquiry only for accused persons charged with offences punishable by life imprisonment. As a result of a public outcry and a compromise that followed, Parliament instead chose to preserve the right to a preliminary inquiry for “the most serious offences”, meaning those punishable by a maximum term of imprisonment of 14 years or more. In doing so, Parliament presumably had in mind offences in the nature of those Mr. Grenier and Mr. Archambault were charged with, which today fall within the category of the most serious offences. Parliament made the choice to increase the maximum sentences for such offences “to convey its view of the gravity of a particular offence” (R. v. Bertrand Marchand, 2023 SCC 26, at para. 168).
[65] While it is not in dispute that Parliament intended to limit the right to a preliminary inquiry to the most serious offences, it strikes us as contradictory to adopt an approach based on the severity of the maximum sentence to which the accused is personally liable (or the jeopardy actually faced by the accused), as the Crown does in this case.
[66] In reality, the Crown’s interpretation does not rest on the text or context of s. 535 Cr. C., but rather on the abstract purpose of reducing the number of offences for which a preliminary inquiry is available. With respect, such an interpretation disregards the new wording of the provision and the compromise from which it resulted. While the purpose of the amendment plays an important role in the interpretation of the new provision, it cannot serve as a basis for rewriting the provision so amended or for ignoring the clear meaning it conveys (see R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 26; R. v. McColman, 2023 SCC 8, at para. 36; Reference re Impact Assessment Act, 2023 SCC 23, at para. 193; see also Côté and Devinat, at No. 1366; Sullivan, at p. 293; M. Mancini, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022), 59 Alta. L. Rev. 919, at pp. 920‑22). In construing a legislative provision, “courts do not have to interpret — let alone implement — the objective underlying a legislative scheme or provision; what they must interpret is the text through which the legislature seeks to achieve [its] objective” (MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 39). It is clear that Parliament did not seek to achieve at any cost its purpose of reducing the number of offences for which a preliminary inquiry is available, but rather confined itself to a very specific compromise, which is reflected in the wording of the provision (Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 174; see also Mancini, at pp. 920‑21).
[67] The Crown relies in part on R. v. Windebank, 2021 ONCA 157, 154 O.R. (3d) 573, to argue that any interpretation of s. 535 Cr. C. that increased the number of offences for which a preliminary inquiry is available would be contrary to Parliament’s purpose. In that case, the accused was charged with assault causing bodily harm and assault by choking, suffocation or strangulation, offences punishable by imprisonment for a term of 10 years (s. 267(b) and (c) Cr. C.). The Crown advised the accused that it intended to apply to have him remanded for an assessment under s. 752.1 Cr. C. if he was convicted. In response, the accused requested a preliminary inquiry, alleging that he was now at risk of indefinite detention (s. 753(4) Cr. C.). The Ontario Court of Appeal, per Nordheimer J.A., rightly rejected that argument on the ground that the language and legislative history of s. 535 Cr. C. point to an emphasis on the seriousness of the offence, not on the jeopardy faced by the accused: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.
In my view, the flaw, both in the respondent’s 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] O.J. No. 30, 2020 ONCA 3, 384 C.C.C. (3d) 355, at para. 66.
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. [Underlining added; paras. 35‑37.] [68] Clearly, and with respect for the distinction drawn by the Ontario Court of Appeal in S.S., the jeopardy actually faced by the accused as a result of the time when the offence was committed is part of the accused’s individual circumstances and does not go to the seriousness of the alleged offence. An offence is not less serious today because it was committed before a certain date. In determining the right to a preliminary inquiry, Parliament did not intend to draw a distinction between charges of the same nature based on the date of commission of the offence. To conclude otherwise would only create more complexity and uncertainty, which would be contrary to Parliament’s intent (Windebank, at para. 31).
[69] The objective seriousness of an offence is not confined to the maximum sentence for the offence at the time it was committed. On the contrary, the legislative amendments increasing maximum sentences “indicate Parliament’s determination that . . . offences . . . are to be treated as more grave than they had been in the past” (Friesen, at para. 99; see also Bertrand Marchand, at para. 168). The jeopardy faced by an accused who is not personally liable to a maximum sentence of 14 years is similar to that faced by an accused who is personally liable to that maximum sentence. In applying the principles of sentencing, courts are required to impose sentences higher than those imposed prior to the increases, in accordance with the will of Parliament (Friesen, at para. 100; see, e.g., R. v. Fruitier, 2022 QCCA 1225, at paras. 32‑40). Parliament did not intend to exclude historical offences from the category of the most serious offences.
[70] Finally, like the appellate courts that have considered the matter (see S.S., at paras. 17‑20; C.T.B., at paras. 21 and 42‑43), the Crown supports its interpretation of the new s. 535 Cr. C. by drawing an analogy between this provision and the one in dispute in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. With respect, that analogy does not hold up. In Tran, the accused had committed an offence that was punishable by a maximum sentence of seven years at the time it was committed. After the accused was charged, but before he was convicted, a legislative amendment increased the maximum sentence for that offence to imprisonment for 14 years. Under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the accused was inadmissible to Canada on grounds of serious criminality for having been convicted in Canada of a federal offence punishable by a maximum term of imprisonment of at least 10 years. That provision, which has since been amended, was worded as follows:36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; [71] On the basis of this wording, the parties were divided on the question of whether the maximum sentence should be assessed by reference to the Act of Parliament defining the offence or the maximum sentence that could be imposed on the person. In that particular context, this Court departed from the usual meaning of the words “punishable by a maximum term of imprisonment of at least 10 years”. Such an interpretation was justified by the context of the provision, given the temporal marker (set at the time of conviction) and the disjunctive clauses (the maximum term of imprisonment and the actual term imposed), as well as by the purpose of the Immigration and Refugee Protection Act (Tran, at paras. 36‑40). The opposite interpretation would have led to the conclusion that one and the same conviction could both entitle a permanent resident to remain in the country at the time the conviction was entered and lead to their deportation later, without any indication from Parliament that such a retroactive effect was intended (paras. 43‑53). In light of all of these considerations, this Court held that the provision could refer only to the maximum sentence that could have been imposed on the accused at the time the offence was committed (para. 36).
[72] Uniformly transposing the interpretation of s. 36(1)(a) of the Immigration and Refugee Protection Act to s. 535 Cr. C. disregards the text, context and purpose of each of the two provisions. Statutory interpretation is meant to determine the intent reflected in a particular enactment and cannot be reduced to an artificial comparative exercise that does not take account of the context in which the words are used.
[73] Where the maximum sentence for an offence was increased to 14 years between the commission of the offence and the laying of charges, a preliminary inquiry can be held even if the accused is not personally facing a maximum sentence of 14 years. In such a case, it must be asked whether the seriousness of the alleged offence, as it is defined today, places it within the category of the most serious offences. The fact that the accused is charged and convicted on the basis of the criminal provisions in force at the time the offence was committed changes nothing in this regard.
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