Preliminary Inquiries And Bill C-75: Does Bill C-75 Apply Retrospectively?

On September 19, 2019, 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, SC 2019, c 25 [Bill C-75], came into effect. Among other things, Bill C-75 eliminated the availability of preliminary inquiries for those charged with an indictable offence punishable by less than 14 years imprisonment. Before September 19, 2019, any accused charged with an indictable offence was entitled to a preliminary inquiry.

Bill C-75 did not, however, indicate whether this amendment would apply to those charged before it came into effect. Whether an accused charged with an indictable offence punishable by less than 14 years imprisonment before September 19, 2019, remained entitled to a preliminary inquiry was left to be interpreted by the courts.

The Ontario Court of Justice in R v Fraser, 2019 ONCJ 652 [Fraser], considered this issue shortly after Bill C-75 came into effect. In Fraser, the Court dealt with five accused who were charged with indictable offences punishable by less than 14 years imprisonment each before September 19, 2019. Each of the accused also requested preliminary inquiries before that date, but no preliminary inquiries had yet been completed.

The Court found that preliminary inquiries were substantive, rather than procedural, rights of an accused, and that the Bill C-75 amendments did not apply retrospectively. For an accused to have maintained his or her right to a preliminary inquiry, then, the Crown must have elected to proceed by indictment, elected a mode of trial other than by a provincial court judge, and requested a preliminary inquiry, all before September 19, 2019.

The Ontario Superior Court of Justice in R v R.S., 2019 ONSC 5497 [R.S.], however, took the opposite view. Similar to the circumstances in Fraser, the Court in R.S. dealt with an application by the Crown involving five accused charged with indictable offences punishable by less than 14 years imprisonment before September 19, 2019, and who had requested preliminary inquiries prior to that date which had not yet...