COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Noel, 2019 ONCA 860

DATE: 20191101

DOCKET: C65221

Huscroft, Paciocco and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Marlon Noel

Appellant

Leo Salloum, for the appellant

Marie Comiskey, for the respondent

Heard: September 26, 2019

On appeal from the conviction entered on
    February 21, 2018 by Justice Jocelyn Speyer of the Superior Court of Justice,
    sitting without a jury.

REASONS FOR DECISION

[1]

Mr. Daniel Noel (Mr. Noel) appeals his drug
    related convictions. For reasons that follow, we allow his appeal, set aside
    his convictions, and substitute verdicts of acquittal.

[2]

The material facts are these.

[3]

On December 21, 2015, Durham Regional Police
    obtained a warrant to search a residence where Mr. Noel lived with his partner,
    Ms. Stacey Long, and his brother, Mr. Prince Noel. All three residents were
    suspected of small-scale cocaine trafficking in the Oshawa area. The warrant, which
    was based on confidential information and surveillance, authorized a search for
    cocaine, other controlled substances, and related evidence of drug trafficking.

[4]

The police, armed with the search warrant,
    executed a dynamic entry into the residence at 10:28 p.m. Shortly thereafter,
    Mr. Noel was arrested by Officer Aiello at gunpoint in a bedroom containing his
    belongings and identification. He was taken to the floor and handcuffed. His
    partner, Ms. Long, and his brother, Mr. Prince Noel, were also arrested.

[5]

Officer Aiello did not advise Mr. Noel of his
    right to counsel. As previously arranged by the police entry team, Mr. Noel was
    brought to a central location in the house where, within five minutes of the
    polices entry into the residence, another officer, Officer Gill, read him his
    rights to counsel. He asked to speak to a lawyer, but no steps were taken to
    facilitate his right to counsel.

[6]

The search of the bedroom in which he had been
    arrested led to the discovery of $5,670 Canadian, $71 USD, 73 grams of cocaine,
    55 grams of marijuana, and a digital scale.

[7]

At 11:04 p.m., Mr. Noel was transported to the
    station. At Mr. Noels trial, Officer Gill testified that as he was leading Mr.
    Noel to the transport vehicle, Mr. Noel claimed ownership of the drugs and that
    his brother was not involved.

[8]

Mr. Noel arrived at the station at 11:10 p.m. On
    his arrival, no one took charge of facilitating his right to counsel.

[9]

At 12:48 a.m., Officer Capener placed two calls
    to duty counsel on behalf of two of the persons arrested at the residence and
    left messages requesting that duty counsel return the calls. Officer Capener testified
    that these calls were placed for Mr. Noel and Ms. Long, but the trial judge had
    concerns about the accuracy of his evidence as to who the calls were placed
    for.

[10]

At 1:25 a.m., cell staff advised Officer
    Westcott that Mr. Noels brother received a call from duty counsel, but that
    Mr. Noel had not. Officer Westcott called the duty counsel office and left a
    message for someone to call Mr. Noel. The evidence did not establish whether
    duty counsel ever called back.

[11]

During trial, Mr. Noel alleged several
Charter
breaches. He attacked the validity of the search warrant, contended that
    the dynamic entry violated s. 8, argued that his arrest was arbitrary contrary
    to s. 9, and claimed violations of both the informational and implementational
    components of his s. 10(b) right to counsel.

[12]

The trial judge rejected all the alleged
    violations, except one. She found that Mr. Noels right to consult counsel without
    delay was violated, an implementational breach. However, she denied Mr. Noel
    the exclusionary remedy he sought under s. 24(2) and admitted the evidence.

[13]

Ultimately, the trial judge found Officer Gills
    testimony about Mr. Noels self-incriminating statement to be unreliable but
    convicted Mr. Noel on the balance of the evidence.

[14]

Mr. Noel appeals his convictions. He urges that
    the trial judge erred in failing to find that the dynamic entry violated s. 8,
    in finding the arrest not to be arbitrary contrary to s. 9, and in finding that
    there was no s. 10(b) informational breach. He also argues that the trial judge
    committed errors of principle in her exclusionary ruling relating to the s.
    10(b) implementational breach that she did find. He asks us to reconsider the s.
    24(2) remedy, to exclude the evidence, and to set aside his convictions.

[15]

Mr. Noel argues, in the alternative, that the
    conviction was unreasonable even if all the evidence was properly admitted, because
    the evidence could not support a finding that Mr. Noel knew the secreted
    narcotics were in his room.

[16]

We reject this latter ground of appeal. If the
    evidence discovered during the search were to be admitted, the convictions
    would not be unreasonable. The evidence discovered during the search of the
    bedroom linked to Mr. Noel gave solid support for the trial judges decision to
    convict.

[17]

However, we conclude that the trial judge
    committed errors of principle in her s. 24(2)
Charter
ruling. These errors
    were material to her findings relating to the seriousness, and impact, of the
    s. 10(b) implementational breach, which arose from the delay in facilitating
    Mr. Noels right to counsel.

[18]

Specifically, the trial judge found the
    seriousness of the breach to have been attenuated somewhat in this case,
    because the police complied with their obligation to hold off questioning the
    arrestee until after contact with counsel was facilitated. This passage
    contains two errors.

[19]

First, had the police attempted to use Mr. Noel
    as a source of self-incriminating evidence before he had a reasonable
    opportunity to speak to counsel, that would have been yet another s. 10(b)
    breach. The seriousness of the breach the trial judge did find cannot be
    attenuated by the fact that the police did not commit an additional breach of
    Mr. Noels rights.

[20]

Second, there is no evidence that Mr. Noel ever
    succeeded in speaking to counsel. The evidence was that at 1:25 a.m.,
    approximately three hours after his arrest, Officer Westcott left a message
    with duty counsel on Mr. Noels behalf, but there was no evidence that anyone
    followed up to ensure contact occurred. It is true that the onus is on Mr. Noel
    to establish the s. 10(b) breach, and that he did not lead affirmative evidence
    that he never managed to speak to counsel. That does not change the fact,
    though, that there is no affirmative proof that he did. It was not appropriate
    for the trial judge to proceed on the assumption that Mr. Noel did ultimately
    speak to counsel. It was also not appropriate for the trial judge to conclude
    that the seriousness of the breach was mitigated by that assumed consultation.

[21]

In addition, the trial judge erred in evaluating
    the impact of the breach. She said:

I have heard no evidence about the impact of
    the breach on the protected interest of the accused. He did not testify on this
    application about any impact. It is his onus to demonstrate that a breach
    occurred and that the evidence should be excluded. While the evidence is that
    his right to confer with counsel was delayed, and there is necessarily an
    impact on his constitutionally protected interests as a result,
there is no evidence that it was denied, or that the delay
    impacted adversely on his ability to have a meaningful conversation with
    counsel. On balance, I conclude that this factor is quite neutral
in the
    s. 24(2) analysis. [Emphasis added.]

[22]

With respect, this passage reflects a misunderstanding
    of the relevant
Charter
protected interest. That interest is the right
    is to consult counsel without delay. The loss of this right is in no way
    neutralized because the right to consult counsel is delayed, as opposed to denied.
    Nor is the impact of delayed access to counsel neutralized where an accused
    fails to demonstrate that the delay caused them to be unable to have a late but
    meaningful conversation with counsel. It would be inconsistent with solicitor-client
    privilege to expect a detainee to lead evidence about the quality of their
    solicitor-client conversation. More importantly, this inquiry misses the mark.

[23]

The right to consult counsel without delay exists
    because those who are arrested or detained are apt to require
immediate
legal advice that they cannot access without
    help, because of their detention:
R. v. Bartle
, [1994] 3 S.C.R. 173,
    at p. 191;
R v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41:
R. v. Rover
, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34.

[24]

For example, an arrest and the search of ones home
    can raise urgent legal issues about the lawfulness of the arrest and the
    obligation to submit, as well as the validity of the search warrant and the
    scope of authority that the search warrant gives to the police. Such
    information could be useful in preventing an unjustified search, before it
    happens:
R. v. Debot
, [1989] 2 S.C.R. 1140, at p. 1144.

[25]

Detention also raises questions of immediate importance
    relating to the detainees rights during detention, including the right against
    self-incrimination:
Bartle
, at p. 191;
R. v. T.G.H
, 2014 ONCA
    460, 120 O.R. (3d) 581, at para. 4.

[26]

Beyond this, the right to counsel is also
    important in providing reassurance and advice, on such questions as how long the
    detention is apt to last, and what can or should be done to regain liberty:
Debot
,
    at p. 1144;
Suberu
, at para. 41. As Doherty J.A. said in
R. v.
    Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for
    detained persons. Through that lifeline, detained persons obtain, not only
    legal advice and guidance about the procedures to which they will be subjected,
    but also the sense that they are not entirely at the mercy of the police while
    detained. The psychological value of access to counsel without delay should not
    be underestimated.

[27]

Mr. Noel was not required to offer direct
    evidence about why he required access to counsel without delay. He asked to
    speak to counsel promptly but that right was denied. In assessing the impact of
    such breaches, it is not appropriate for courts to plumb the content and
    significance of the conversations a detainee would have had, if his right to
    consult counsel without delay had been respected, or to treat such breaches as quite
    neutral in the absence of such evidence. The impact of the loss of the right
    to consult counsel without delay can be evaluated based on the interests it is
    meant to protect along with the length of the delay.

[28]

Given these errors in principle, the trial
    judges determination that the admission of the evidence would not bring the
    administration of justice into disrepute does not require deference, nor do her
    assessments of the seriousness and impact of the breach. In considering these matters
    afresh, we come to a different conclusion.

[29]

The s. 10(b) violation found by the trial judge
    was serious. Three hours passed between the time of the arrest and the first
    confirmed attempt by the police to secure counsel for Mr. Noel. When Mr. Noel
    arrived at the station at 11:10 p.m., entirely under the control of the police,
    no one took charge of ensuring that he could speak to counsel as he had
    requested. Instead, he was placed in a cell and left there.

[30]

Rather, it was about an hour and a half later
    that Officer Capener called duty counsel on behalf of only two of the three
    detainees, keeping insufficient records to confirm who those detainees were.

[31]

It was not until 1:25 a.m., now about two and a
    half hours after Mr. Noels arrival at the station, that Officer Wescott left a
    message with duty counsel, specifically on Mr. Noels behalf. There is then no
    confirmation that counsel actually spoke to Mr. Noel.

[32]

From the beginning, the police appear to have
    had a somewhat cavalier attitude about a fundamental, important, and
    long-settled
Charter
right to consult counsel without delay. Indeed,
    the trial judge characterized the police conduct in this regard as
    demonstrating carelessness  a characterization with which the Crown does not
    take issue.

[33]

Moreover, the impact of the breach was significant,
    not neutral. Mr. Noel remained in custody without the benefit of counsel for at
    least three hours, unable to receive the direction, reassurance, and advice
    that counsel could provide.

[34]

We are mindful of the impact of excluding
    necessary, reliable evidence in this serious prosecution on the repute of the
    administration of justice. However, this was a clear violation of a
    well-established rule. The law around s. 10(b) is clear and long-settled. It is
    not difficult for the police to understand their obligations and carry them
    out. Furthermore, it is troubling that the police in this case could not
    provide any reasonable explanation for the delay, nor could they even say
    whether Mr. Noel did, in fact, speak to counsel. As noted by Brown J. in
R.
    v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44:  exclusion
    has been found to be warranted for clear violations of well-established rules
    governing state conduct.

[35]

We conclude that it would damage the long-term
    interests of the administration of justice to admit the evidence and thus be
    seen to condone the carelessness and disorganization exhibited by the police
    with respect to Mr. Noels right to consult counsel without delay. Given the collection
    of facts in this case, we conclude that the evidence must be excluded,
    notwithstanding that doing so undermines the Crowns case against Mr. Noel.

[36]

Given this conclusion, we choose not to resolve
    Mr. Noels grounds of appeal relating to s. 8, s. 9, and the informational
    branch of s. 10(b). In doing so, we should not be taken as expressing agreement
    with the trial judges rulings. It is simply unnecessary to grapple with these
    issues given the significance of the s. 10(b) implementational error.

[37]

We therefore allow the appeal, set aside the
    convictions against Mr. Noel, and substitute verdicts of acquittal.

Grant
    Huscroft J.A.

David M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pineda, 2019 ONCA 935

DATE: 20191127

DOCKET: C62380

Watt, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chris Denny Pineda

Appellant

Naomi M. Lutes, for the appellant

Caitlin Sharawy, for the respondent

Heard: September 12, 2019

On appeal from the conviction entered on May 22, 2013 by
    Justice Steve A. Coroza of the Ontario Court of Justice.

REASONS FOR DECISION

Background

[1]

The appellant seeks to set aside his guilty pleas on the basis that they
    were uninformed. Had he known the immigration consequences of his guilty pleas,
    he maintains that he would have instead proceeded to trial. For the reasons set
    out below, we allow the appeal, set aside the guilty pleas, and order a new
    trial on all counts of the information.

[2]

The appellant, an American national, came to Canada at age three and
    thereafter became a permanent resident. His four dependent children all reside
    in Canada, as do his mother and developmentally challenged brother. He conducted
    his business in Canada and considered himself Canadian. However, he never applied
    for, or received, Canadian citizenship.

[3]

On November 1, 2012, the appellant was charged with three firearm-related
    offences under the
Criminal Code
and one possession offence under the
Controlled
    Drugs and Substances Act
. He plead guilty to three of the offences  careless
    storage of a firearm, unlawful possession of a loaded prohibited firearm, and
    possession of cocaine  and a fourth charge was withdrawn. Pursuant to a joint
    submission he received a global sentence of 15 months incarceration less time
    spent in pre-trial custody, followed by 36 months probation. As a result of
    these convictions and sentences, he was stripped of his status as a permanent
    resident and ordered deported to the United States, with no right of appeal. He
    now resides in the U.S. and is not permitted re-entry into Canada where his
    children continue to reside.

[4]

The appellant now seeks to introduce fresh evidence to establish that his
    guilty pleas were uninformed because he was unaware of the serious immigration
    consequences of them.

Analysis

[5]

To be valid, a guilty plea must be voluntary and unequivocal. It must
    also be informed, in the sense that the accused must be aware of the
    allegations made against him, and of the effect and legally relevant
    collateral consequences of that plea:
R. v. Wong
, 2018 SCC 25, [2018]
    1 S.C.R. 696,

at paras. 3-4. Legally relevant collateral consequences
    include immigration consequences. To set aside a presumptively valid plea, the appellant
    must establish that: (i) he was unaware of a legally relevant consequence of
    the plea, assessed objectively; and (ii) he has suffered prejudice, in the
    sense that he would have acted differently had he been properly made aware of
    the consequences:
Wong
, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33.

[6]

In the fresh evidence, the appellant states that although he was advised
    by his lawyer that there might be immigration consequences to his guilty pleas,
    and that he should seek the advice of an immigration lawyer, he did not
    understand that deportation would be within the range of possible consequences.
    He had thought he might be subject to questioning by an immigration official,
    or subject to an immigration hold. He did not consult an immigration lawyer. Trial
    counsel, in his affidavit, did not contradict this evidence. Trial counsel agreed
    that although he had a conversation with the appellant and alerted him that
    there might be immigration consequences, he likely did not discuss any specific
    immigration consequences with the appellant. Trial counsels evidence, at its
    highest, was that the word deportation may have come up.

[7]

There was no plea comprehension inquiry conducted in court. The
    appellants counsel advised the trial judge that the plea inquiry had been
    conducted with the appellant in advance. The trial judge was not made aware of
    the appellants immigration status or that immigration consequences could flow
    to the appellant as a result of his convictions.

[8]

The respondent concedes that the fresh evidence should be admitted. We
    are satisfied that the fresh evidence meets the
Palmer
criteria, as
    modified to assess the validity of a guilty plea, and ought to be admitted:
R.
    v. Sangs
, 2017 ONCA 683, at para. 7.

[9]

It is the respondents position that, at a minimum, the appellant was
    wilfully blind as to the immigration consequences arising from his plea. The
    respondent argues that the appellant should not be permitted to rely upon his
    wilful blindness in support of the claim that his pleas were involuntary:
R.
    v. Girn
, 2019 ONCA 202 at 62-3, 79.

[10]

Based on the record before us, however, it seems clear that the
    appellant did not know the serious jeopardy he was in. While his lawyer told
    him that there may be serious immigration consequences arising from his guilty pleas,
    his lawyer admits that he did not get into the specifics. Rather, he told the
    appellant that he should seek the advice of an immigration lawyer. Knowing that
    the in-custody appellant had not done so, and did not know the specifics
    about the consequences of a guilty plea, the lawyer assisted the appellant with
    entering his plea.

[11]

The consequences were, of course, grave. Not only was the appellant
    deportable after the plea because of his permanent resident status, but the
    length of sentence meant that he would not have a right of appeal from such an order.

[12]

On the basis of the fresh evidence, we are satisfied that the appellant had
    not been informed by his counsel and was not otherwise aware of the potentially
    serious immigration consequences arising from his guilty pleas, specifically
    that he could be deported without a right of appeal.

[13]

With respect to prejudice, we accept that the appellant would have elected
    to stand trial if he had been aware of the immigration consequences of his pleas.
    In his reasons for sentence, the sentencing judge noted the Crowns case was
    circumstantial, there were triable issues including issues with respect to
    whether or not the Crown could prove beyond a reasonable doubt that he was in
    fact in possession of the item thats been exhibited. The consequences of
    deportation were devastating to the appellants relationship with his dependent
    children. The appellant states that had he known he would be facing deportation
    without a right of appeal, he would have taken all available steps in an effort
    to stay in Canada and keep his family together. One of those steps would have
    been pleading not guilty in the face of what he characterized as a weak Crown
    case.

DISPOSITION

[14]

We admit the fresh evidence, set aside the pleas of guilty and
    consequent convictions, and order a new trial on all counts in the information.

David Watt J.A.

B.W. Miller J.A.

Fairburn J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.S., 2019 ONCA 906

DATE: 20191118

DOCKET: C67487 & C67494

Doherty, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Respondent)

and

R.S.,
K.H.
,
Mihai Stoica
,
Mahad
    Geele
, and
Nimene Nimene

Respondent (
Appellants
)

Alan D. Gold and Adam N. Weisberg, for the appellant,
    Nimene Nimene

Mark Halfyard, for the appellants, K.H., Mihai Stoica,
    and Mahad Geele

Matthew Asma, for the respondent

Michael Lacy, Daniel Brown and Kathryn Ginn, for the
    intervener, Criminal Lawyers Association

Heard: October 28, 2019

On appeal from the
    judgment of Regional Senior Justice Bruce G. Thomas of the Superior Court of
    Justice, dated September 27, 2019, reported as
R. v. R.S.
, 2019 ONSC
    5497.

Doherty J.A.:

I

introduction

[1]

On June 21, 2019, Parliament enacted legislation which, among many other
    things, amended the provisions of the
Criminal Code
, R.S.C. 1985, c.
    C-46

relating to preliminary inquiries (the amendments): Bill C-75,
An
    Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts
    and to make consequential amendments to other Acts
, 1st Sess., 42nd Parl.,
    2019, c. 25.

The amendments came into force on September 19, 2019, substantially
    limiting the availability of preliminary inquiries. Prior to the amendments, anyone
    in Ontario who had elected trial in the Superior Court of Justice (judge and
    jury, or judge alone) could request and, upon request, was entitled to a
    preliminary inquiry. After the amendments, preliminary inquiries were available
    only for indictable offences punishable by 14 years imprisonment or more. The
    amendments provide no transitional provision.

[2]

On this appeal, the court must decide whether the amendments apply to
    charges that were before the Ontario Court of Justice when the amendments took
    effect. This question has sparked considerable litigation and several
    conflicting decisions. There are many cases presently in the Ontario Court of
    Justice awaiting a determination of the issue. Watt J.A. ordered this appeal
    expedited.

[3]

In endeavouring to release reasons as quickly as possible, the court has
    benefitted from counsels able submissions, the thorough and thoughtful reasons
    of Thomas R.S.J. of the Superior Court of Justice and Marion J. of the Ontario
    Court of Justice, as well as the careful reasons provided by many other judges who
    have addressed the issue: see
R. v. Downey
, 2019 ONCJ 669, affd 2019
    ONSC 6167;
R. v. Fraser et al.
, 2019 ONCJ 652;
R. v. N.F.
, 2019
    ONCJ 656;
R. v. Kozak
, 2019 ONCJ 657, revd 2019 ONSC 5979;
R. v.
    Bernard-Carty
, 2019 ONCJ 672;
R. v. J.G.
(2 October 2019), Perth
    (Ct. J.);
R. v. A.S.
, 2019 ONCJ 655;
R. v. Lamoureux
(28 October
    2019), Montreal 500-01-190244-191, (Ct. Q.).

[4]

For the reasons that follow, I would hold that, as the appellants had
    elected their mode of trial and requested preliminary inquiries before the
    amendments came into force on September 19, 2019, the amendments do not apply
    to the appellants. They are entitled to their preliminary inquiries. I would
    further hold that accused persons who were before the courts prior to September
    19, 2019, but had not elected their mode of trial and requested a preliminary
    inquiry, as of that date, had no right to a preliminary inquiry. Their
    entitlement to a preliminary inquiry is governed by the amendments, which limit
    that entitlement to offences that provide for a sentence of at least 14 years
    imprisonment.

II

background

[5]

The four appellants are charged with sexual assault. The charges were
    laid in 2018 and are unrelated to each other. The appellants appeared in the
    Ontario Court of Justice on various occasions. Prior to September 19, 2019,
    they had all elected trial in the Superior Court of Justice and requested a
    preliminary inquiry. Their preliminary inquiries had not commenced as of
    September 19, 2019.

[6]

The parties accept that, as of September 18, 2019, the day before the
    amendments came into effect, the appellants were all entitled to a preliminary
    inquiry into the sexual assault allegations. The parties also agree that, as
    sexual assault is not punishable by 14 years imprisonment or more, if the
    amendments apply, none of the appellants are entitled to a preliminary inquiry
    as of September 19, 2019.

[7]

Marion J. held that the amendments did not apply to accused who had
    elected and requested a preliminary inquiry before September 19, 2019:
R.
    v. R.S.
, 2019 ONCJ 629. In his view, the amendments were procedural in
    nature but, as they affected the jurisdiction of the Ontario Court of Justice
    to conduct preliminary inquiries, they were presumptively prospective: see
Royal
    Bank of Canada v. Concrete Clamps (1961) Ltd.
, [1971] S.C.R. 1038, at p. 1040.
    Nothing in the legislation rebutted that presumption. He concluded that the
    Ontario Court of Justice had jurisdiction after September 19, 2019, to conduct
    preliminary inquiries in those cases in which the accused had requested a
    preliminary inquiry before September 19, 2019. All four appellants met that
    criterion.

[8]

The Crown sought prohibition with
certiorari
in aid in the
    Superior Court of Justice. Thomas R.S.J. characterized the amendments as purely
    procedural and as not affecting any substantive rights of the appellants.
    Consequently, the amendments presumptively applied to all cases in the system on
    September 19, 2019, regardless of whether the accused had elected trial in the
    Superior Court of Justice and requested a preliminary inquiry before September
    19, 2019. Thomas R.S.J. interpreted the amendments as removing the jurisdiction
    of the Ontario Court of Justice to conduct preliminary inquiries in respect of any
    indictable offence that did not carry a penalty of 14 years imprisonment or
    more. He prohibited the Ontario Court of Justice from holding a preliminary
    inquiry in respect of the charges against the appellants and remitted the
    matters back to the Ontario Court of Justice, directing that the appellants
    should be given the election provided for in the amended legislation:
R. v.
    R.S.
, 2019 ONSC 5497.

[9]

The appellants appeal to this court from that order.
[1]

III

the legislation

[10]

The amendments deal with three closely-connected procedural steps that
    occur in the Ontario Court of Justice in the course of the prosecution of
    indictable offences in respect of which accused have a choice as to their mode
    of trial.

[11]

At the first step, the accused elect their mode of trial. They choose
    trial in the Ontario Court of Justice, trial by judge alone in the Superior
    Court of Justice, or trial by judge and jury in the Superior Court of Justice.
    The statutory authority for this election is found in s. 536(2) of the repealed
    provisions. There are two election provisions in the amendments. The first, s.
    536(2), applies to offences carrying a penalty of 14 years imprisonment or
    more. The second, s. 536(2.1), applies to offences punishable by less than 14
    years imprisonment. Section 536(2.1), unlike s. 536(2), says nothing about
    requesting a preliminary inquiry as part of the election. For ease of
    reference, the provisions referable to the election are set out side-by-side
    below. The important changes in the amendments are underlined:

Repealed Provision

Amended Provisions

536(2)

If
          an accused is before a justice charged with an indictable offence, other than
          an offence listed in section 469, and the offence is not one over which a
          provincial court judge has absolute jurisdiction under section 553, the
          justice shall, after the information has been read to the accused, put the
          accused to an election in the following words

536(2)

If
          an accused is before a justice, charged with an indictable offence
that is
          punishable by 14 years or more of imprisonment
, other than an
          offence listed in section 469, the justice shall, after the
          information has been read to the accused, put the accused to an election in
          the following words

536(2.1)

If
          an accused is before a justice, charged with an indictable offence
other
          than an offence that is punishable by 14 years or more of
          imprisonment
, an offence listed in section 469 that is not
          punishable by 14 years or more of imprisonment or an offence over
          which a provincial court judge has absolute jurisdiction under
          section 553 , the justice shall, after the information has been
          read to the accused, put the accused to an election in the following words

[12]

The second step affected by the amendments is a direct consequence of the
    election for trial in the Superior Court of Justice. Under the repealed
    provisions, that election entitled the accused to request a preliminary
    inquiry. If the request was made, s. 536(4) required the court to hold a
    preliminary inquiry. Under the amendments, the right to request a preliminary
    inquiry and the consequential obligation on the court to hold a preliminary
    inquiry is limited to cases in which the accused has elected trial in Superior
    Court of Justice and is facing charges punishable by 14 years imprisonment or
    more. The relevant provisions are set out below:

Repealed Provision

Amended Provisions

536(4)

If an accused
          elects to be tried by a judge without a jury or by a court composed of a
          judge and jury or does not elect when put to the election or is deemed under
          paragraph 565(1)(b) to have elected to be tried by a court composed of a
          judge and jury or is charged with an offence listed in section 469, the
          justice shall, subject to section 577, on the request of the accused or the
          prosecutor made at that time or within the period fixed by rules of court
          made under section 482 or 482.1 or, if there are no such rules, by the
          justice, hold a preliminary inquiry into the charge
.

536(4)

If an accused
referred to in subsection (2)
elects to be tried
          by a judge without a jury or by a court composed of a judge and jury or does
          not elect when put to the election or is deemed under paragraph 565(1)(a)
          to have elected to be tried by a court composed of a judge and jury, or if an
          accused is charged with an offence listed in section 469
that is
          punishable by 14 years or more of imprisonment
, the justice
          shall, subject to section 577, on the request of the accused or the
          prosecutor made at that time or within the period fixed by rules of court
          made under section 482 or 482.1 or, if there are
          no such rules, by the justice, hold a preliminary inquiry into the charge.

536(4.12)

If an accused
referred to in subsection (2.1)
elects to be tried by a judge without a jury or by a court composed of a
          judge and jury or does not elect when put to the election or is deemed under
          paragraph 565(1)(a) to have elected to be tried by a court
          composed of a judge and jury, the justice shall endorse on the information
          and, if the accused is in custody, on the warrant of remand, a statement
          showing the nature of the election or deemed election of the accused or that
          the accused did not elect, as the case may be.

[13]

The third step, the holding of the preliminary inquiry, is addressed in
    both the repealed and amended versions of s. 535. Under the repealed version, a
    justice was required to conduct an inquiry under Part XVIII of the
Criminal
    Code
if the accused had elected trial in the Superior Court of Justice and
    requested a preliminary inquiry. Under the amendments, the obligation or, put
    differently, the jurisdiction to conduct a preliminary inquiry depends not only
    on the election for trial in the Superior Court of Justice, but also on the
    requirement that the charge be punishable by 14 years imprisonment or more.
    The relevant provisions are set out below:

Repealed Provision

Amended Provisions

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.

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.

[14]

In summary, under both the repealed and amended legislation, appellants charged
    with indictable electable offences are entitled to elect their mode of trial.
    That entitlement is unaffected by the amendments. However, under the repealed
    legislation, the right to elect trial in the Superior Court of Justice carried
    with it the automatic right to request a preliminary inquiry and, when a
    preliminary inquiry was requested, the court was obligated to hold a
    preliminary inquiry. Under the amended legislation, the ability to request a
    preliminary inquiry and the consequential requirement on the court to hold a
    preliminary inquiry does not flow automatically upon an election for trial in
    the Superior Court of Justice, but is available only where the accused faces charges
    carrying a maximum penalty of 14 years imprisonment or more. Consequently, accused,
    like the appellants, charged with an indictable offence punishable by less than
    14 years imprisonment may still elect their mode of trial under the amendments,
    but they can no longer request or obtain a preliminary inquiry.

IV

the positions of the parties

[15]

Prosecutions before the courts as of September 19, 2019, potentially affected
    by the amendments fall into two categories. In one category are the accused who
    are charged with indictable electable offences and who have elected trial in
    the Superior Court of Justice and requested a preliminary inquiry prior to September
    19, 2019, but have not had a preliminary inquiry. This category includes
    accused whose preliminary inquiries were underway but not completed as of
    September 19, 2019. I include in this category accused who have formally entered
    an election and requested a preliminary inquiry, as well as those who have made
    a clear, but informal election and request, as evinced by the transcript of
    proceedings or endorsements on the information. All of the appellants fall into
    this first category. The second category of cases consists of accused who were
    before the courts charged with an indictable electable offence as of September
    19, 2019, but had not, prior to that date, made any election or requested a
    preliminary inquiry.

[16]

The Crown draws no distinctions between the two categories. The Crown
    maintains that no accused who is charged with an offence that carries a maximum
    penalty of less than 14 years imprisonment is entitled to a preliminary
    inquiry as of September 19, 2019, regardless of when the charges were laid, and
    regardless of whether the accused had elected and requested a preliminary
    inquiry before September 19, 2019. The Crown submits that the amendments do no
    more than alter one aspect of the procedure applicable to the prosecution of
    indictable electable offences. They speak to the method of conducting criminal
    litigation and, specifically, the preliminary inquiry component of that
    litigation. The amendments do not remove or alter any substantive right the
    appellants had as of the enactment of the amendments. The Crown further contends
    that, after the amendments came into force, the Ontario Court of Justice ceased,
    on a going forward basis only, to have any jurisdiction to conduct, or continue,
    a preliminary inquiry, except in respect of offences punishable by 14 years
    imprisonment or more.

[17]

The appellants, supported by the intervener in oral argument, draw a
    distinction between the two categories described above. They submit that the
    amendments do apply to accused persons who were before the court prior to
    September 19, 2019, but had not elected their mode of trial or requested a
    preliminary inquiry. The appellants accept that accused persons in this
    category had not, as of September 19, 2019, acquired a right to a preliminary
    inquiry. Whatever right this category of accused may potentially have had was
    contingent upon them having made an election and having requested a preliminary
    inquiry. If those steps had not been taken prior to September 19, 2019, they
    could not be taken after that date, as they were no longer statutorily
    available. The application of the amendments to this category of accused did
    not affect any acquired right and did not therefore attract the presumption
    against retrospective operation of legislation. For this category of accused,
    the legislation was purely procedural.

[18]

The appellants submit, however, that the situation is very different
    for accused, like the appellants, who had elected their mode of trial and
    requested a preliminary inquiry before September 19, 2019. The appellants
    submit that their election and request created an obligation on the court to
    conduct a preliminary inquiry. By exercising their election rights and their
    right to request a preliminary inquiry, the appellants acquired a concrete,
    tangible statutory right to a preliminary inquiry.

[19]

The appellants further contend that their statutory right to a
    preliminary inquiry is far more than purely procedural. That right affects the substantive
    rights that attach to, and flow from, the holding of a preliminary inquiry. The
    appellants contend that, as the legislation affects their substantive rights,
    there is a presumption against the retrospective application of the amendments,
    and further that nothing in the record rebuts that presumption.

[20]

The position taken by the appellants and the intervenor is consistent
    with the position taken by the federal Crown and most other provincial Crowns.
[2]

V

analysis

(i)

Retroactive or Retrospective?

[21]

Mr. Gold, arguing this point for all the appellants, submits that the
    application of the amendments to the appellants constitutes a retroactive,
    rather than retrospective, application of those provisions. He maintains that,
    if the amendments apply to the appellants, those amendments effectively reach
    back before the date on which the amendments became law to change the law as it
    existed when the appellants requested and became entitled to a preliminary
    inquiry under the then-existing legislation. Mr. Gold contends that if the
    amendments apply to the appellants, the legal validity of their request for,
    and their entitlement to a preliminary inquiry is not measured against the law
    as it existed when the request was made, but rather against a very different law
    that came into existence months later and was unknowable to the appellants at
    the time they chose their forum for trial. Mr. Gold argues that this is the
    very definition of a retroactive law.

[22]

Mr. Gold submits that the application of the amendments to the
    appellants provides a powerful example of the unfairness worked by retroactive
    laws. That unfairness, he argues, justifies the strong presumption against retroactive
    laws. He maintains that there is nothing in the legislation which suggests a
    Parliamentary intention to apply the amendments retroactively: Ruth Sullivan,
Construction
    of Statutes
, 6th ed. (Markham: LexisNexis, 2014) at pp. 771-774.

[23]

Mr. Asma, for the Crown, submits that the application of the amendments
    to the appellants is retrospective, not retroactive. Retrospective laws apply only
    from the date of enactment but change the legal effects of facts or events that
    occurred prior to the enactment. Mr. Asma argues that the appellants request
    for, and entitlement to, a preliminary inquiry remained valid up until
    September 19, 2019, when the amendments came into force. From that date
    forward, but only forward, the amendments give a different legal effect to the
    appellants previous requests for, and entitlement to, a preliminary inquiry.
    After September 19, 2019, the legal effect of that request, that is the
    entitlement to a preliminary inquiry, remains operative only if the offence
    charged carries a potential penalty of 14 years imprisonment or more.

[24]

The distinction between a law that operates retroactively and one that
    operates retrospectively can be a fine one. Drawing the distinction is made
    even more difficult by the interchangeable use of the two words in many
    judgments: Sullivan, at pp. 761-62; see e.g.
Gustavson Drilling (1964) Ltd.
    v. Canada (Minister of National Revenue)
, [1977] 1 S.C.R. 271, at p. 279.

[25]

I use the term retroactive in reference to the temporal operation of legislation
    in a narrow sense. Retroactive laws refer to legislation that deems the law to
    have been something different than it actually was as of a date that precedes
    the enactment of the law. Truly retroactive laws are rare and commonly target a
    specific situation with language aimed at addressing a very specific problem: see
    e.g.
Air Canada v. British Columbia
, [1989] 1 S.C.R. 1161.

[26]

Retrospective laws operate only from the date of enactment, but change
    the legal effects, on a going forward basis, of events that occurred before the
    enactment. The difference between a retroactive law and a retrospective law is
    the difference between a law that declares all requests for a preliminary
    inquiry void as of a date six months before the enactment, and a law that
    declares requests for a preliminary inquiry made before the enactment enforceable
    up to the time of the enactment, but not after the enactment: see E. Driedger,
    Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar. Rev.
    264, at pp. 268-76. The Crown correctly characterizes the scope of the amendments
    as retrospective and not retroactive.

[27]

At the end of the day, however, the characterization of the legislation
    as retrospective or retroactive does not significantly advance the resolution
    of the appeal. The real question is whether the legislation, whether it is
    described as retroactive or retrospective, interferes with acquired substantive
    rights. Legislation that interferes with acquired substantive rights is
    presumptively prospective only. If the application of the amendments to the
    appellants prosecutions would interfere with the appellants substantive
    rights, there is a rebuttable presumption against the application of the
    amendments to the appellants. That presumption exists regardless of whether the
    application of the law to the appellants is described as a retrospective or
    retroactive application and regardless of whether the amendments are
    characterized as substantive or procedural: see
R. v. Dineley
, 2012
    SCC 58, [2012] 3 S.C.R. 272,
per
Deschamps J., at paras. 10-11,
per
Cromwell J., dissenting but not on this point, at paras. 44-54;
Angus v.
    Sun Alliance Insurance Co.
, [1988] 2 S.C.R. 256, at p. 265;
Peel
    (Police) v. Ontario (Special Investigations Unit)
, 2012 ONCA 292, 110 O.R.
    (3d) 536, at paras. 71-77.

(ii)

Do the amendments affect substantive rights?

(a)

The arguments

[28]

The appellants acknowledge that the amendments are, in essence, procedural
    in that they change the procedure applicable to the prosecution of some
    indictable electable offences. They do so by eliminating the preliminary
    inquiry from that process in respect of charges that are not punishable by 14
    years imprisonment or more.

[29]

The appellants correctly point out that the characterization of the
    amendments as procedural does not decide the temporal scope of the application
    of those amendments. One must go beyond the characterization of legislation to
    a determination of the practical impact of that legislation on the individuals
    affected by it. Procedural legislation can alter or take away substantive rights.
    Procedural legislation that does so is subject to a rebuttable presumption in
    favour of prospective application only. That presumption finds statutory support
    in s. 43(c) of the
Interpretation Act
, R.S.C. 1985, c. I-21.

[30]

Crown counsel does not take issue with counsel for the appellants
    formulation of the legal principles applicable to the determination of the
    temporal scope of the amendments. He does, however, argue that the amendments
    are purely procedural in the sense that they do not alter or affect any acquired
    or existing substantive right. Crown counsel says that the amendments alter the
    entitlement under the statute to a preliminary inquiry, one of several
    procedural steps potentially undertaken prior to trial in the prosecution of an
    indictable offence.

[31]

Counsel stresses in his argument that there is not a constitutional
    right to a preliminary inquiry. Nor, he submits, can a preliminary inquiry be
    considered an essential, or even necessarily significant, component of the
    process. The vast majority of prosecutions for criminal offences in Canada do
    not involve preliminary inquiries. Crown counsel urges the court to draw a distinction
    between amendments that may result in a procedural disadvantage to an accused
    and amendments which interfere with acquired substantive rights. He submits that
    the amendments in issue on this appeal may produce the former, but certainly not
    the latter. There is no vested interest in a specific procedure, even if it
    operates more favourably for the accused than its replacement:
Peel (Police)
,
    at para. 72.

[32]

Lastly, Crown counsel submits that if he is correct and the amendments do
    not affect substantive rights, the appellants have offered no basis to rebut
    the presumption in favour of the retrospective application of the provisions to
    the appellants. He refers to ss. 44(c) and (d) of the
Interpretation Act
.

[33]

The competing arguments present two questions for resolution  (1) did
    the appellants have a right to a preliminary inquiry as of September 19, 2019,
    and (2) would the elimination of that right constitute an interference with an
    acquired or existing substantive right that the appellants had as of September
    19, 2019?

(b)

Did the appellants have a statutory right to a preliminary inquiry?

[34]

I turn first to the question of whether the appellants had a statutory
    right to a preliminary inquiry as of September 19, 2019. Under the repealed
    legislation, the appellants had elected trial in the Superior Court of Justice,
    and, as they were entitled to do, requested a preliminary inquiry (ss. 536(2)
    and (4)). The appellants request for a preliminary inquiry placed an
    obligation on the court, subject to the Crown preferring an indictment under s.
    577, to hold a preliminary inquiry (s. 536(4)). That obligation was made
    explicit in s. 535 which provided, in part:

If an accused who is charged with an indictable offence is
    before a justice and a request has been made for a preliminary inquiry  the
    justice shall, in accordance with this part, inquire into the charge

[35]

The appellants right to a preliminary inquiry and the courts
    obligation to hold that preliminary inquiry as of September 19, 2019, were
    established realities. Neither was conditional or a mere possibility. The
    appellants had done all they were required to do under the law to trigger their
    right to a preliminary inquiry and the courts corresponding obligation to hold
    a preliminary inquiry. The appellants were simply waiting for the courts
    schedule to accommodate their right to a preliminary inquiry on the date that
    had been set by the court.

[36]

The analysis in
R. v. Puskas
, [1998] 1 S.C.R. 1207 assists in
    determining whether it can properly be said that the appellants had an acquired
    right to a preliminary inquiry as of September 19, 2019. In
Puskas
,
    the accused had been acquitted at trial, but their acquittals had been set
    aside on appeal and new trials ordered. As of the date of the acquittals, the
    accused had a right of appeal to the Supreme Court of Canada from an order of
    the Court of Appeal setting aside an acquittal. However, the
Criminal Code
was amended before the Court of Appeal ordered new trials for the accused. The
    amendments removed the automatic right of appeal and replaced it with a right
    of appeal only if leave to appeal was granted by the Supreme Court of Canada.

[37]

The accused argued that their right of appeal was substantive and vested
    when the charges were laid. Lamer C.J., for the court, disagreed, stating, at
    para. 14:

In our view, there are numerous reasons for deciding that the
    ability to appeal as of right to this Court is only acquired, accrued or
    accruing when the court of appeal renders its judgment. The first is a common-sense
    understanding of what it means to acquire a right or have it accrue to you.
A right can only be said to have been acquired when the
    right-holder can actually exercise it
. The term accrue is simply a
    passive way of stating the same concept (a person acquires a right; a right
    accrues to a person). Similarly, something can only be said to be accruing
    if its eventual accrual is certain, and not conditional on future events.
In other words, a right cannot accrue, be acquired, or be
    accruing until all conditions precedent to the exercise of the right have been
    fulfilled
. [Emphasis added; citation omitted]

[38]

The right of the accused in
Puskas
to appeal
from the order of the Court of Appeal remained
    inchoate until the Court of Appeal gave judgment. By the time the Court of
    Appeal made its order, the right of appeal had been repealed.

[39]

The appellants, unlike the accused in
Puskas
, had fulfilled all
    of the conditions precedent to the exercise of their right to a preliminary
    inquiry before September 19, 2019. As of that date, they had acquired a right to
    a preliminary inquiry.

[40]

Nor does the possibility that the Crown could prefer an indictment under
    s. 577 affect the appellants right to a preliminary inquiry as of September
    19, 2019. Section 577 makes the appellants right to a preliminary inquiry less
    than absolute. However, the possibility that the Crown might initiate a new
    proceeding by way of preferred indictment is irrelevant to what rights the
    appellants had to a preliminary inquiry as of September 19, 2019. The
    possibility that the Crown might have, at some point in the future, preferred
    an indictment no more renders the appellants right to a preliminary inquiry as
    of September 19, 2019, conditional than would the possibility that the Crown
    might withdraw the charges at some point after September 19, 2019. The
    classification of a right as acquired or existing is based on the facts as they
    stand when the new legislation comes into force, not on the possibility that
    some future event might alter the factual matrix and affect the exercise of
    that right.

[41]

The Crown submits that this courts judgment in
R. v.
Hafeez
(1996), 27 O.R. (3d) 799 (C.A.) stands in
    the way of the appellants claim that they had acquired the right to a
    preliminary inquiry as of September 19, 2019. In
Hafeez
, the accused
    was charged with assault causing bodily harm. When the charge was laid, assault
    causing bodily harm was a purely indictable offence that gave an accused an
    election as to his mode of trial. While the charges against the accused were
    outstanding, the
Criminal Code
was amended to make assault causing
    bodily harm a hybrid offence, meaning the Crown could choose to proceed
    summarily or by indictment. The accuseds election therefore depended on the
    Crown first choosing to proceed by indictment.

[42]

The accused appeared several times, but was not put to his election.
    Eventually, the Crown chose to proceed summarily and the accused pled guilty.
    He subsequently appealed his sentence. At the appeal, the Crown argued that as
    the Crown had proceeded summarily, the appeal lay to the Superior Court of
    Justice and not to the Court of Appeal. The Court of Appeal agreed and quashed
    the appeal, holding that the amendments which made the offence punishable either
    by indictment or summarily were retrospective.

[43]

The appellants are in a different position than the accused in
Hafeez
.
Unlike the accused in
Hafeez
, the appellants
had elected trial in the
    Superior Court of Justice and requested a preliminary inquiry. They had moved
    from the
possibility
of a preliminary inquiry to the statutory
entitlement
to a preliminary inquiry. Any right the accused in
Hafeez
had to a
    particular mode of trial or a preliminary inquiry was contingent upon him making
    an election and requesting a preliminary inquiry. He had done neither.

[44]

The accused in
Hafeez
had,
    at best, the possibility of acquiring a right to a specific mode of trial and a
preliminary inquiry. Those rights did not exist when the amendments
    came into force, but were contingent on his future decisions. The amendments
    permitting the Crown to choose between proceeding by indictment or summarily
    did not interfere with any right the accused in
Hafeez
had acquired as
    of the enactment of the amendments.

[45]

The reasoning in
Hafeez
does, however, apply directly to
    accused who were charged before September 19, 2019, but had not elected or
    requested a preliminary inquiry by that date. Those accused, like the accused
    in
Hafeez
, had not acquired a right to a preliminary inquiry as of the
    date of the amendments. Applying the amendments to this group, just as in
Hafeez
,
    did not interfere with any acquired right. As indicated above, the appellants
    and the intervenor acknowledged that absent an election and request for a
    preliminary inquiry, there is no right to a preliminary inquiry. They accept
    that the application of the amendments to this group does not offend the
    presumption against interference with substantive rights.

[46]

Hafeez
is distinguishable
    on another ground
. In
Hafeez
, any right the accused could
    have acquired, potential or actual, to a preliminary inquiry depended on the
    accused being prosecuted by indictment. Elections and preliminary inquiries
    play no part in summary conviction proceedings. The amendment giving the Crown
    the option to proceed by summary conviction gave the Crown a choice as to the
    mode of proceeding that had to be made, either expressly or by implication,
    before the accused could have even the possibility of electing his mode of
    trial and gaining a right to a preliminary inquiry.

(c)

Are substantive rights affected?

[47]

My conclusion that the appellants had acquired a tangible and existing
    statutory right to a preliminary inquiry as of September 19, 2019, leads to the
    second question: Is that right itself a substantive right or does it impinge
    upon, or negatively affect, the substantive rights of the appellants: see
Application
    under s. 83.28 of the Criminal Code (Re)
, 2004 SCC 42, [2004] 2 S.C.R.
    248, at para. 57;
Dineley
,
per
Deschamps J. at paras. 10-11,
per
Cromwell J., dissenting but not on this point, at paras. 55-59.

[48]

I would not characterize the statutory right to a preliminary inquiry as
    a standalone substantive right. The preliminary inquiry is a process by which
    the accused may challenge the Crowns right to proceed to trial and gain
    information and insights that may assist in the preparation for trial:
R.
    v. Hynes
, 2001 SCC 82, [2001] 3 S.C.R. 623, at paras. 30-31;
R. v.
    S.J.L.
, 2009 SCC 14, [2009] 1 S.C.R. 426, at paras. 21-23. The preliminary
    inquiry is part of a broader criminal process applicable to some indictable
    offences. There is no vested right to a particular procedure. Changes to, or
    the elimination of, some part of the process cannot be equated with the removal
    of a substantive right.

[49]

Although I would not describe the right to a preliminary inquiry as
    itself a substantive right, I am satisfied that the elimination of the
    preliminary inquiry does affect a substantive right of the appellants. That
    right lies in the appellants entitlement to be discharged at a preliminary
    inquiry if the Crown cannot meet its evidentiary burden:
Criminal Code
,

s. 548(1)(b);
R. v. Arcuri
, 2001 SCC 54, [2001] 2 S.C.R. 828.

[50]

The primary purpose of the preliminary inquiry is to screen out
    meritless allegations. A preliminary inquiry gives the accused the opportunity
    to have a judicial determination of whether the Crown can produce sufficient evidence
    to justify the case going forward to trial. The accused is entitled to have
    this determination made after an inquiry governed by Part XVIII, at which the
    accused has a full opportunity to challenge the evidence presented by the Crown.
    If the accused obtains a discharge, the prosecution comes to an end, except in those
    rare cases where the Attorney General initiates new proceedings by way of a
    preferred indictment. I have no difficulty in concluding that the right to
    challenge the evidentiary basis for the prosecution at an early stage in the process,
    and potentially bring the prosecution to an end, is a substantive right: see
Downey
    (ONSC)
, at para. 73.

[51]

It is often said that a preliminary inquiry is not a trial and the guilt
    of the accused is not an issue. Both are true. To acknowledge those realities
    is not, however, to diminish the significance of the preliminary inquiry to an
    accused. As observed by McLachlin C.J. in
Hynes
, at para. 30:

The preliminary inquiry is not a trial. It is rather a pre-trial
    screening procedure aimed at filtering out weak cases that do not merit trial.
    Its paramount 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. [citation
    omitted]

[52]

An accuseds right to obtain a timely judicial evaluation of the
    evidence offered by the Crown with a view to avoiding a needless and, indeed,
    improper, exposure to public trial is a significant and substantive right,
    having a meaningful and direct impact on an accuseds liberty and security of
    the person interests. The impact on those interests is particularly strong in
    cases in which the accused has been denied bail or released on very stringent
    terms. Pre-trial detention orders and bail orders come to an end if an accused
    is discharged: see
R. v. Jones
(1996), 32 O.R. (3d) 365, 113 C.C.C. (3d)
    225, at p. 234.

[53]

The arguments skillfully put forward by the Crown in support of the
    submission that the removal of a right to a preliminary inquiry does not affect
    any substantive right are not, in the end, persuasive. I will briefly address
    those arguments.

[54]

First, the Crown points to the Attorney Generals power to prefer an
    indictment under s. 577. As indicated above, the right of the accused to seek
    and obtain a termination of the proceedings at the preliminary inquiry based on
    an insufficiency of the evidence is not diminished because s. 577 provides an
    extraordinary alternative means by which the Crown may bring the accused to
    trial. The Crowns power under s. 577 renders any order made at the preliminary
    inquiry potentially less than a final determination, although in reality, if an
    accused is discharged, it will be the end of the proceedings in the vast
    majority of cases. Section 577 does not, however, go so far as to render the
    accuseds right to obtain an early termination of the prosecution meaningless
    or of little value.

[55]

I do not find the well-settled law to the effect that there is no
    constitutional right to a preliminary inquiry of assistance on this point.
    There are many substantive rights that are not constitutional. It must be borne
    in mind that this appeal is concerned with interpretation of the temporal scope
    of what is acknowledged to be constitutional legislation. The question is
    whether the amendments operate retrospectively. If constitutional rights were potentially
    compromised by the legislation, the concern would not be with its temporal
    scope, but rather with the legislative competence to enact the legislation in
    any form.

[56]

I do not accept the submission that the accuseds ability to move for a
    directed verdict at trial, applying the same test for the sufficiency of the evidence
    applicable at the preliminary inquiry, detracts from the substantive nature of
    the right to seek a discharge at the preliminary inquiry. That right focuses on
    the Crowns ability to produce sufficient evidence to justify sending the
    matter on for trial. That assessment is made at a fixed and early stage of the
    proceeding. For accused, especially accused in custody, there is a very real
    difference between obtaining a discharge at a preliminary inquiry and obtaining
    a directed verdict several months later at a public trial. The opportunity to
    seek a directed verdict is not a substitute for a chance to be discharged at
    the preliminary inquiry. Both are important, but different rights-affecting
    procedures.

[57]

Nor should the recognition of the right to obtain a discharge as a
    substantive right depend on how often discharges are granted. Discharges are
    not common, but they are not rare: D. Paciocco, A Voyage of Discovery:
    Examining the Precarious Condition of the Preliminary Inquiry (2004), 48
    C.L.Q. 151, at pp. 152-153, citing A.D. Gold and J.R. Presser, Lets Not Do
    Away with Preliminaries: A Case in Favour of Retaining the Preliminary Inquiry
    (1996), 1 Can. Crim. L. Rev. 145. Parliament has acknowledged that a discharge
    is the appropriate and just outcome in cases where the Crown cannot meet its
    evidentiary burden at that early stage of the process. In deciding whether the
    right to seek and obtain a discharge should be viewed as a substantive right,
    one must look to the cases in which a discharge would be the appropriate order.
    It cannot be that an accused who would be entitled to a discharge, had he not
    lost the right to a preliminary inquiry because of the amendments, has not had any
    substantive rights affected because, although he lost a meaningful opportunity
    to end the proceedings, most other accused would not have benefited from that
    opportunity. The characterization of the right to obtain a discharge as affecting
    an accuseds liberty and security interests does not depend on how many accused
    would be successful in obtaining a discharge. For those accused who would
    obtain a discharge, the elimination of the preliminary inquiry significantly
    and negatively impacts on their liberty and security of the person.

[58]

I would add that, while a complete discharge is uncommon, it is more
    common for accused to be discharged on some of the offences contained in a
    multi-count indictment, or to be discharged on the main charge, but committed
    for trial on an included offence. Even the inability to obtain these partial
    discharges can impact significantly on the accuseds liberty and security
    interests. For example, a discharge on the more serious charges in an
    information may well lead to a re-evaluation of an accuseds bail status: s.
    523(2)(b). If the accused loses the opportunity to obtain that partial
    discharge because his right to a preliminary inquiry is gone, he loses the
    opportunity to have some of the restrictions on his liberty eliminated for the
    rest of the process.

(d)

Is the presumption rebutted?

[59]

For the reasons set out above, I am satisfied that the amendments, when applied
    to accused who have elected and requested a preliminary inquiry, do impinge
    upon the substantive right of those persons to obtain a discharge. In
    interpreting the legislation, the presumption is against giving the amendments
    that retrospective effect unless Parliament has clearly signalled otherwise.

[60]

The Crown has not argued that, if the court finds that the amendments do
    affect substantive rights, the resulting presumption against retrospective
    application can be rebutted. There is no evidence of a parliamentary intention to
    apply the amendments retrospectively. Had Parliament intended to do so, it
    could have inserted the appropriate transitional provision. There is none.

[61]

A review of the customary sources resorted to in interpreting
    legislation does not suggest any intention to apply the amendments
    retrospectively.
[3]
While it is clear that the purpose of removing the preliminary inquiry from
    most proceedings was to reduce the delay, costs, and negative impact on witnesses
    and others associated with preliminary inquiries, the evidence does not suggest
    that a retrospective application of the amendments would reduce delay or costs.
    As is evident in the reasons of several Ontario judges, there is a strong
    argument that the retrospective application of the amendments would, in the
    short term, cause delay and add costs to the prosecution and defence of some
    charges: see
R.S. (ONCJ)
, at paras. 77-79;
N.F.
,

at para.
    7;
Kozak (ONCJ)
, at para. 5;
Downey (ONSC)
,

at paras.
    97-100.

[62]

This is also not a case in which a retrospective application of the
    amendments is the only feasible or workable interpretation of them. I see no
    practical impediment to treating the appellants as being entitled to
    preliminary inquiries in those cases in which they have elected trial in the
    Superior Court of Justice and requested a preliminary inquiry prior to the
    enactment of the amendments. This is apparently what is happening in the rest
    of the country and even in federal prosecutions in Ontario.

(e)

Are there other substantive rights affected?

[63]

Although it is unnecessary for the resolution of this appeal given my
    finding that the appellants right to seek and obtain a discharge at the end of
    a preliminary inquiry is a substantive right, I will address the appellants
    argument that the retrospective application of the amendments also affects
    their substantive right to make full answer and defence.

[64]

Traditionally, the preliminary inquiry has provided valuable assistance
    to an accused in making full answer and defence. The preliminary inquiry allows
    for discovery of the Crowns case, testing of that case, and permits counsel to
    lay the groundwork for arguments and defences that may be advanced at trial: see
    G.A. Martin, Preliminary Hearings, Special Lectures of the Law Society of
    Upper Canada, 1955, at p. 1.

[65]

The right to make full answer and defence is a trial right. There is no
    right to make full answer and defence at the preliminary inquiry. The right to
    make full answer and defence at trial, however, also entitles the accused to
    full and timely disclosure of the Crowns case. It does not entitle the accused
    to any particular procedure to achieve that end. Nor does it require a procedure
    that maximizes the ability of the accused to make full answer and defence: see
R.
    v. Bjelland
, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 32-37.

[66]

The right to confront witnesses and call evidence at a hearing prior to
    the trial proper, such as a preliminary inquiry, has never been an essential
    component of the criminal process in Canada. Most indictable offences are
    prosecuted and properly defended without a preliminary inquiry.

[67]

The assessment of whether an accused has had an adequate opportunity to
    make full answer and defence, and specifically to adequately prepare for trial,
    is a fact-specific inquiry. It is not answered by determining whether a
    particular procedure was or was not available to an accused. The question is
    whether, in the circumstances, the accused, based on the procedures that were
    available to him, had an adequate opportunity to meet the charges and prepare
    the defence. Judges faced with arguments that an accused did not have that
    opportunity, have broad powers, both in their inherent jurisdiction as trial
    judges and under s. 24(1) of the
Charter
, to make remedial orders that
    will ensure that the accused has the opportunity to properly make full answer
    and defence. The elimination of the right to a preliminary inquiry does not
    affect the right to make full answer and defence. It does not in any way diminish
    the nature and substance of that right.

VI

does the DOCTRINE of
stare
    decisis
apply to decisions made on prerogative writ applications?

[68]

The appellants submit that, because the order of Thomas R.S.J. was given
    in a prerogative writ proceeding rather than on an appeal, Ontario Court of Justice
    judges are not bound by his ruling that the Ontario Court of Justice has no
    jurisdiction to conduct preliminary inquiries requested prior to September 19,
    2019. As I understand this argument, the appellants contend that, because the
    scope of prerogative writ applications is tied to jurisdictional questions, as
    are the remedies available in those applications, any order made on a
    prerogative writ application cannot be binding on the Ontario Court of Justice,
    even if the jurisdictional determination involves a ruling on a pure question
    of law. On this analysis, a ruling on a question of law made in the context of
    a prerogative writ application is persuasive, but not binding on the Ontario
    Court of Justice. Exactly the same ruling made by the same judge, but in the context
    of an appeal in the Superior Court of Justice, is binding on the Ontario Court
    of Justice.

[69]

Mr. Gold, but not Mr. Halfyard, goes a step further. He submits that, as
    a matter of logic, this courts decision in a prerogative writ matter is not
    binding on any other court in Ontario. Presumably, the same logic means that
    any decision of the Supreme Court of Canada in a prerogative writ matter is also
    not binding on any court in Canada.

[70]

It may be that at some time in the past, the record available on a prerogative
    writ application and the record on an appeal were sufficiently different that
    one could properly distinguish, for
stare decisis
purposes, between
    rulings on questions of law made on prerogative writ applications and the same
    ruling made on appeal. I see no justification for that distinction now. This
    court and the Supreme Court of Canada have both accepted that
stare decisis
is applicable in the prerogative writ context: see
R. v. Sansalone
,
    2013 ONCA 226, 303 O.A.C. 350, at para. 11;
Bessette v. British Columbia
    (Attorney General)
, 2019 SCC 31, 376 C.C.C. (3d) 147, at para. 45.

[71]

During argument, counsel submitted that
Bessette
is of limited
    value. He argued that the court merely accepted a concession made by the
    Attorney General. I do not read the reasons that narrowly.
Bessette
involved a prerogative writ application in respect of statutory provisions governing
    an individuals right to choose to have his trial in French or English. The superior
    court judge had declined to consider the merits of the application. In holding
    that the superior court judge should have considered the merits, the court
    pointed to the practical efficiencies of doing so. The court said, at para. 45:

Further, and crucially, the Attorney General acknowledged in
    oral submissions that
a Supreme Court of British Columbia
    decision on the language of
Offence Act
trials would serve as binding precedent
    for the statutory courts hearing such trials in the province.
Thus, had
    the Supreme Court judge decided the merits of Mr. Bessettes petition, his
    decision would have
discouraged
further interlocutory appeals on the
    same ground, rather than encouraging them. [Italics in original, underlining
    added; citations omitted.]

[72]

I read the court as indicating that the Supreme Court of British
    Columbia should have heard the merits of the application because, in doing so,
    it could have determined the legal issue for the entire trial court and avoided
    the confusion and costs of repeated litigation. The court did not come to the
    conclusion that the superior court bound the trial court in the context of a
    prerogative writ application merely because the Attorney General conceded the
    point. Rather, the court observed that the Attorney General acknowledged the
    application of
stare decisis
in the context of prerogative writ
    applications. In other words, the Attorney General acknowledged what the court clearly
    regarded as the proper legal interpretation of the
stare decisis
doctrine as it relates to prerogative writ applications.

[73]

More to the point, and setting aside what courts have said, there is no
    practical or policy reason for drawing the distinction urged by the appellants.
    The courts are hierarchical. The Superior Court of Justice is above the Ontario
    Court of Justice in the hierarchy. The doctrine of
stare decisis
compels
    courts who are subject to the supervisory authority of higher courts to apply
    the law as pronounced by those higher courts. That obligation exists to promote
    order, certainty and efficiency. The justification for the doctrine applies
    equally to decisions on questions of law made on prerogative writ applications
    as it does to decisions on questions of law made on appeals. The distinction
    urged by the appellants runs dead against the purposes of the doctrine of
stare
    decisis
.

[74]

Several judges
    of the Ontario Court of Justice have held that they were bound by the decision
    of Thomas R.S.J.: see
R. v. Dabrowski et al.
, 2019 ONCJ 677;
R. v. Benoit
(30 September 2019), Sudbury (Ct. J.);
R. v. Clark et al.
, 2019 ONCJ
    678;
R. v. Dumlao
, 2019 ONCJ 692;
R. v. Rival
(1 October 2019),
    Kitchener (Ct. J.);
R. v. Iaboni et al.
, 2019 ONCJ 689;
R. v.
    Rasidoff
(2 October 2019), Barrie (Ct. J.);
R. v. Mehring
, 2019 ONCJ
    691. They were correct to do so.

[75]

The decision of Thomas R.S.J. on the jurisdictional issue presented to
    him involved the determination of a question of law. His determination of that
    question was binding on judges in the Ontario Court of Justice, just as this
    courts determination is binding on judges in the Superior Court of Justice and
    the Ontario Court of Justice.

VII

conclusion

[76]

I would allow the appeal, set aside the order of Thomas R.S.J., and
    remit the matters to the Ontario Court of Justice for preliminary inquiries in
    accordance with the appellants elections and requests for preliminary
    inquiries made prior to September 19, 2019.

Released: DD NOV 18 2019

Doherty J.A.

I agree David Watt
    J.A.

I agree Gary T.
    Trotter J.A.

[1]

R.S. is not a party to this appeal.

[2]

The appellants reached out to the federal and provincial
    Crowns to inquire as to their positions on the retrospectivity of the
    preliminary inquiry amendments and included their responses as an appendix to
    their factum. According to this survey, all Attorneys General except those of
    Ontario and Manitoba take the position that preliminary inquiries requested
    prior to September 19, 2019, will proceed. The respondent does not challenge
    this information.

[3]
The purposes of the amendments were to reduce the delays, costs, and negative
    impacts associated with preliminary inquiries: House of Commons Debates, 42nd
    Parl., 1st Sess., No. 300 (24 May 2018), at p. 19630 (Hon. Wilson-Raybould:
    The fourth area of reforms is to increase court efficiencies by limiting the
    availability of preliminary inquiries[to] help unclog the courts, and reduce
    burdens on witnesses and victims from having to testify twice); Senate
    Debates, 42nd Parl. 1st Sess., Vol. 150, No. 264 (19 February 2019), at pp.
    7373-7376 (Hon. Murray Sinclair: [The amendments] will free up court time and
    resources in provincial courts). The temporal scope of the amendments was not discussed
    in either the House of Commons or the Senate, but was discussed in a
    Legislative Background document prepared by the Department of Justice following
    the passing of Bill C-75: Department of Justice Canada,
Legislative
    Background: An Act to Amend the Criminal Code, the Youth Criminal Justice Act
    and other Acts and to make consequential amendments to other Acts, as enacted
    (Bill C-75 in the 42nd Parliament)
(August 2019, modified September 6,
    2019), at p. 24. According to a footnote in that document, preliminary
    inquiries requested before September 19, 2019, ought to proceed. As Thomas
    R.S.J. rightly found, this document, prepared by a Department of Justice
    employee after the enactment of Bill C-75 and without any attribution or
    supporting evidence, is of no assistance in interpreting the temporal scope of
    the amendments:
Professional Institute of the Public Service of Canada v.
    Canada (Attorney General)
, 2012 SCC 71, [2012] 3 S.C.R. 660, at paras.
    97-99.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ramos, 2019 ONCA 874

DATE: 20191105

DOCKET: C59754

van Rensburg, Hourigan and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luis Ramos

Appellant

Luis Ramos, acting in person

Jason A. Morische, for the respondent

Jill Presser,
amicus curiae

Heard: November 5, 2019

On appeal from the conviction entered on
    March 25, 2014 and the sentence imposed on November 20, 2014 by Justice Nancy
    J. Spies of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The Crown acknowledges, after review of the transcripts and the outside
    interpreters assessment of the audio recordings of the trial proceedings, that
    there were numerous and significant errors in the interpretation of the
    appellants evidence in this case. The appeal against conviction is allowed on
    this basis with the consent of the Crown. The conviction is set aside, and a
    new trial ordered.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rock, 2019 ONCA 867

DATE: 20191104

DOCKET: C61730

Fairburn, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Rock

Appellant

Robert Sheppard, for the appellant

Sean Horgan, for the respondent

Heard: October 31, 2019

On appeal from the conviction entered on
    September 3, 2015 by Justice Duncan Grace of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

This is an appeal from a conviction for one
    count of possession of child pornography.

[2]

The prosecution rested on the contents of a
    seized DVD. There is no dispute that the DVD contained child pornography or
    that the appellant was in possession of the DVD.

[3]

The sole question is whether the trial judge
    erred in his review of the information to obtain (ITO), giving rise to the
    search warrant used to seize the DVD.

[4]

Information was excised from the ITO. The
    appellant argues that the excised information had the potential to taint the
    issuing justice.

[5]

We disagree.

[6]

The information was excised in a manner consistent
    within the principles set out in the case law, including
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421 and
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d)
    421. The excisions were recommended by the trial Crown to keep the proceedings
    on track.

[7]

The question is whether, after excision, there
    remained sufficient reasonable grounds such that a warrant could issue.

[8]

We are entirely satisfied, against the factual
    backdrop of this case, that the test for issuance was met. Although the
    specific information as it related to ordering the DVD was dated, there was
    ample additional information that provided a context such that the strength of
    the grounds were not undermined.

[9]

We see no error in the reviewing judges
    analysis and defer to his conclusion.

[10]

The appeal is dismissed.

[11]

The parties agree that pp. 165 to 174 of
    the Appeal Book contain some photographs, including ones that could identify
    children. Those pages are returned to the parties to ensure that all identifying
    features are removed, after which the pages will be returned to the court file.