The Defence Toolkit – October 17, 2020

This week’s top three summaries: R v RP, 2020 ONCA 637: duty to resolve #inconsistencies and W(D), R v Gamble, 2020 SKPC 34: s.9 #detention, and R v Boutilier, 2020 NSSC 275: right to #preliminary hearing

R v RP, 2020 ONCA 637

[October 10, 2020] Historical Sexual Assault - Assessment of Motive to Fabricate, Duty to Resolve Major Inconsistencies in Complainant Evidence, The Second Prong of the W(D) test [Reasons by Harvison Young J.A., with Watt and Caroza JJ.A. concurring]

AUTHOR’S NOTE: Historical child sexual assault matters are some of the most difficult to deal with in the criminal justice system.  Judges are faced with compelling stories of human tragedy that are difficult to disbelieve and they usually have no physical evidence to assist them.  It is consequently important for them to apply the principles established in law for assessing the reliability and credibility of witness accounts. Here the ONCA found that the trial judge failed to adequately assess the alleged motive to fabricate, failed to resolve major inconsistencies in the evidence of the complainant and failed to apply the second prong in the W(D) assessment of the evidence of the accused.

Facts of the Case

[5] The complainant alleged that she had been home alone with the appellant. She went into the guest room, which was across the hall from the master bedroom, and asked the appellant a question. She laid down on the bed in the guest room. The appellant tried to take off the complainant’s pants and open her legs and then got on top of her. She told him to stop but he persisted. He attempted to penetrate her but did not succeed. The complainant told the police the appellant used a condom.

[7] The complainant’s evidence at trial was that when she disclosed the incident to her guidance counsellor, she had already decided that she would leave home even if the Children’s Aid Society (“CAS”) did not become involved. She acknowledged that she was aware that the sexual assault allegation would have an impact on where she could live, in that she thought she would “move to CAS”. She also acknowledged that, at the age of 14, it was not a real possibility for her to leave home on her own.

[9] The mother testified about the complainant’s behavioural problems at school and at home. She said the problems began when C.H. was very young and long before the appellant had moved in and they were married. She said the complainant had a motive to lie, because the complainant did not like the appellant and did not want him living in their home. She denied that the complainant told her about the incident shortly after it occurred, saying that the first she heard about it was when the police contacted her in 2016.

[10] The mother did say that when the complainant was somewhere around nine to eleven years old, the complainant told her that the appellant had asked her if she had ever had sex; that the appellant had been very upset when confronted about this accusation; and that she had decided that she did not believe her daughter. She also stated that if she had been told that the appellant had sexually assaulted C.H., she would have reported it to the police.

[11] In convicting the appellant, the trial judge found the mother was not credible. He accepted the complainant’s testimony about the assault, finding her credible. In finding C.H. to be credible, he emphasized her sister’s testimony, particularly her evidence that the complainant had been very emotional and had stuck to her story despite being warned about lying.

Motive to Fabricate

It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence.

[17] Here, the trial judge found that that the complainant’s testimony “contradict[ed] this alleged motive for fabricating a story”. The trial judge highlighted C.H.’s testimony that, on the day she disclosed the incident to the guidance counsellor, she had already decided that she was going to leave home, even if CAS did not get involved.

[18] It is not clear, however, that this reasoning meaningfully addresses or resolves the recent fabrication argument. The complainant’s testimony that she would leave home, even without CAS involvement, does not necessarily negate a motive to fabricate. It is just as likely that the complainant made the allegation to bolster the chances of CAS becoming involved, as CAS had with her older sister (for unrelated reasons). As the complainant acknowledged, it would have been hard for her to leave home at 14 years old without support.

[20] One particularly relevant but unaddressed inconsistency on this issue was that the sister testified that she had spoken to the complainant about going into the care of CAS, both in terms of her own experience, and also as an option for the complainant....

Material Inconsistencies

[21] As this court has outlined in R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 14:

A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses. [Citations omitted.]

[22] It would be an error of law to suggest presumptions about a child’s timing and manner of disclosure. A child’s sense of timing may be different from that of adults. However, it is also the case that the credibility and reliability of a child’s evidence, like that of any witness, still require careful assessment and scrutiny by the trier of fact: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134; R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55. To suggest otherwise would undermine the presumption of innocence and the requirement that guilt be proven beyond a reasonable doubt.

[23] In my view, the trial judge did not adequately address the major inconsistencies in the evidence.

[24] I will only review the main inconsistencies. These relate to the question of when, how, and to whom the complainant disclosed, and to the details given by the complainant of the assault.

(a) How, when and to whom the complainant disclosed the alleged assault

[25] There was different testimony regarding when and how the complainant disclosed the assault. The complainant said she first disclosed the assault to a different sister (one who did not testify) and to their mother about a month or two months after the incident. The sister who testified said the complainant disclosed the assault to her within a week after the incident occurred. The mother’s evidence was that she knew nothing of the alleged assault until after her daughter disclosed to the guidance counsellor in 2016, about four years after the alleged incident.

[26] C.H. initially said the sister who testified encouraged her to tell her mom. Later, she said that she did not speak to this sister before disclosing the incident to her mother. On the other hand, the sister testified that she was sure that the complainant disclosed the allegation to her before she disclosed to her mother. It was during this conversation the sister warned the complainant that she should not lie about such serious matters.

[27] The sister also testified that there had been a three-way telephone call between the complainant and her two sisters about the assault just after the complainant had disclosed to them. The sister said that in this three-way telephone call, they were “just elaborating on everything and how [they] were going to tell mom”. The complainant did not recall any such call having taken place.

(b) The details of the alleged assault

[28] With respect to the details of the alleged assault, the complainant testified at the preliminary inquiry that she saw the appellant go into the master bedroom across the hall from the guest bedroom, look through a dresser drawer, go into a bathroom, and then return to the guest room. At trial, in direct examination, C.H. testified she saw the appellant go into her mother’s bedroom, enter the washroom in her mother’s bedroom, and then leave the room, with no mention of rummaging through the dresser drawer. When C.H. spoke to police she made no mention of the appellant going to her mother’s room at all to retrieve anything. C.H. claimed both versions of events were true and testified for the first time in cross examination at trial that the appellant went to both the dresser drawer and the washroom. Her mother testified that it would not have been possible to see the dresser from the guest bedroom. Her sister testified that the master bedroom was directly across the hall from the guest room, but the master bedroom’s door itself was not directly across from the door to the guest room but was at an angle.

[29] The trial judge did not address these inconsistencies, except to the extent that he stated that the sister’s evidence about the location of the guest bedroom confirmed the complainant’s evidence. With respect to the timing of the disclosure to the sister (whether it was within a week or one or two months later), the trial judge referred to it as a “discrepancy” but did not address it further.

[32] As the examples above illustrate, however, the trial judge did not grapple with the inconsistencies in and as between the testimony of the complainant and her sister. These were material here, both because there were a number of them, and also because the only issue in the case was that of credibility.

[33] Some of the inconsistencies were more significant than others. For example, the differences about when the complainant told her sisters may not have been very significant, given that the complainant was only about 10 years old at the time of the incident. Another discrepancy, however, was whether there was a three-way conversation between the sisters after the complainant’s initial disclosure to them. The sister who testified clearly recalled a three-way conversation while the complainant did not. Although it would have been open to the trial judge to assess this inconsistency as not serious, it is arguably more significant than the timing of the disclosure because one might expect that even a 10-year-old would remember the fact that such an important conversation (in which the sisters strongly encouraged her to disclose) took place.

[34] In my view, the most significant inconsistency is between the complainant and her sister as to whether the complainant had disclosed to her mother before disclosing to the sister who testified. Even if the previously mentioned inconsistencies may be given latitude because of the complainant’s age, it seems harder to resolve this inconsistency. There was evidence that the complainant’s relationship with her mother was fraught and she was scared to tell her mother. In my view, it is surprising that the complainant would not remember a conversation with her sister who told her the allegations would have serious consequences if she was lying and would not remember whether she disclosed to her mother before disclosing to the sister who testified.

[35] In summary, it was open to the trial judge to resolve these and other inconsistencies raised by the defence. Had he explicitly done so, his conclusions would have attracted significant deference from this court. In this case, however, there was an absence of scrutiny or resolution of these inconsistencies, as well as a failure to explain why he did not consider them to be material.

(3) Use of the complainant’s prior consistent statement

[40] Here, as I have mentioned, the central purpose in calling the sister as a witness was to rebut the defence of recent fabrication. The trial judge found that the sister’s statement supported the complainant’s credibility, because the complainant had stuck to her story despite the sister’s cautions about lying. This use of C.H.’s prior consistent statement went well beyond rebutting the defence of recent fabrication. In essence, the trial judge concluded that the fact that the complainant continued to make the same statements, despite the cautions of her sister, reflected positively on her credibility. I do not see how that is different from relying on the assertion that any statement that is repeated is more likely to be true – the very inference prohibited by the rule against prior consistent statements....

The Principles of W(D)

[43] The principles of W.(D.) are well known but are worth repeating:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[44] There is no dispute that these principles apply not only to cases where the accused testifies, but also to cases where “there is other defence evidence called contradicting the Crown’s case and/or conflicting evidence favourable to the defence in the Crown’s case”: R. v. B.D., 2011 ONCA 51, 226 C.C.C. (3d) 197, at para. 105. Trial judges do not need to rigidly recite the three steps in the W.(D.) instruction. It is not a magical incantation. Rather, as Molloy J. summarized in R. v. Nyznik, 2017 ONSC 4392, 350 C.C.C. (3d) 335, at para. 14:

What is critical is for the judge to avoid turning the fact-finding exercise into a choice as to which is the more credible version of the events. This cannot be a credibility contest, with a conviction if the complainant wins the contest and an acquittal if the defendant does.

[45] The appellant argues that the trial judge in this case did not refer to and did not apply the principles in W.(D.). In particular, he argues the trial judge did not consider whether the mother’s evidence raised a reasonable doubt, despite the fact that he did not find her to be credible. The Crown responds that it is implicit in the trial judge’s reasons that he did not accept the defence evidence and he was satisfied that it did not raise a reasonable doubt. Though the trial judge did not specifically mention W.(D.), trial judges are presumed to know the law.

[46] In my view, this is a case in which the defence evidence, seen in the context of all the evidence, could have raised a reasonable doubt, despite the fact that the trial judge rejected it. Much of the mother’s evidence, particularly that which related to C.H.’s behavioural issues, the conflict between the complainant and the appellant, and the existence of a motive to fabricate, was consistent with other evidence heard at the trial. In these circumstances, the trial judge was obliged to expressly consider whether the defence evidence raised a reasonable doubt. The reasons do not show that he did so.

Disposition

[49] The trial judge in this case fell into a number of related and overlapping errors related to the assessment of credibility. While any one of these errors on its own might not have warranted a new trial, viewed as a whole, the guilty verdict cannot stand. I would therefore allow the conviction appeal, set aside the conviction, and order a new trial.

R v Gamble, 2020 SKPC 34

[July 10, 2020] Charter s.9 - Arbitrary Detention, Charter s.10(b) - Immediate Provision of Rights and Waiver [H.M. Harradence, J.]

AUTHOR’S NOTE: This decision provides a good overview of the principles applying to a determination of the moment of detention and whether it is arbitrary. Also, the case provide a good overview of the importance of immediately provision of s.10(b) rights to counsel. 

Facts of the Case

[1] On July 17, 2019, Prince Albert City Police responded to an alarm call at A.J.’s Confectionary, located at 1202 Branion Drive, on the east side of Prince Albert. The accused was seen peddling his bicycle at a faster than normal pace in the vicinity of the Confectionary. Police stopped him, arrested him and searched him. Two guns were located, one in the waist of his pants and the other in a backpack he was wearing. Also in the backpack was a quantity of crystal meth, some cash, a scale, ammunition and what the police say is a score sheet of drug transactions, along with two cell phones. As a result of these seizures, the accused is charged with 20 offences.

[4] A police dispatcher received an alarm call reporting a glass break at the A.J.’s Confectionary. Sgt. Bighetty attended the Confectionary. He is a dog handler, with 14 years’ police experience. He attended the location contemporaneously with Cst. Torgunrud. Sgt. Bighetty testified that he was dispatched at 12:59 a.m. and arrived at the Confectionary at 1:02 a.m. On route, Sgt. Bighetty saw a lone male on a bicycle approximately one block from the store. This male stood out to Sgt. Bighetty because he was peddling faster than normal, and he was the only person that was observed in the area. As a result, the Sergeant alerted other officers by radio who were on route to the scene.

[5] In cross-examination Sgt. Bighetty confirmed that he did not tell the other officers what to do but only provided them with his observations. Sgt. Bighetty testified that he did not see the male at the Confectionary and when he first saw the male, he was approximately one block from the store. Sgt. Bighetty says he and Cst. Torgunrud inspected the Confectionary. It is not a large building. There was no sign of any damage and no evidence of any crime. He estimated that within a couple minutes of their arrival, the scene was cleared. Cst. Torgunrud radioed the other officers to inform them. In cross-examination Sgt. Bighetty agreed police receive quite a few false alarm calls but calls from confectionaries are generally more real than false.

[8] Cst. Mesenchuk travelled to the Confectionary along the same route as Sgt. Bighetty east on 15th Street, south on 6th Avenue East, east on Branion Drive. Within two minutes of receiving the dispatch call, he heard Sgt. Bighetty’ s observations about the male on the bicycle. He testified that within ten seconds, he saw the male. He was in the 900 block of Branion Drive. Cst. Mesenchuk immediately made the decision to stop the cyclist. He drove his police car on to the wrong side of the road and parked it immediately in front of the male on the bike with his emergency lights activated. Cst. Mesenchuk says he got out of his police car and said to the male, “City Police, I want to talk to you, come talk to me”.

[11] At this point events occurred very quickly, according to Cst. Mesenchuk. He approached the male and told him he was investigating an alarm call. He asked the male where he was going and why he was taking off. He asked the male his name. The male gave him the name of Brian Gamble and 1994 as his year of birth. When these particulars were searched in the database by the dispatcher at Prince Albert City Police, they came back negative all around. Cst. Mesenchuk immediately concluded that the male had given him a false name. Throughout this encounter Cst. Mesenchuk testified that his suspicion was growing that the male was involved in the call. The male was headed away from the Confectionary, he would not stop, he provided what Cst. Mesenchuk believed to be a false name and he was fidgety. Cst. Mesenchuk testified that he did not hear Cst. Torgunrud clear the scene and effectively end the investigation of the alarm call until after the accused had been arrested and searched.

[12] Based on his suspicions, Cst. Mesenchuk made the decision to detain the male. This was within one minute of the male stopping his bike. Cst. Mesenchuk proceeded to do a pat down search. He suspected that the male was concealing a machete on his right hip under his shirt. He proceeded to investigate by lifting the male’s shirt. Cst. Mesenchuk observed the butt end of a firearm. He said to Cst. Benitez “foxtrot”, which indicated a firearm.

[15] At cells the accused was lodged. During this process, Cst. Mesenchuk says he discussed with the accused whether he wished to call a lawyer right away or whether he wished to wait until all the charges were known. He explained to the accused that there were many charges that would be laid against him. Cst. Mesenchuk says the accused agreed to wait. As a result, the accused did not speak to a lawyer until 3:45 a.m., approximately two and half hours after his detention. During this time Cst. Mesenchuk was consulting with a senior firearms officer from Saskatoon to determine the exact nature of the charges. There was no attempt made by the police to obtain a statement during this time and once the accused had spoken with counsel, he declined to provide a statement.

[16] When Cst. Mesenchuk was asked in cross-examination about the accused’s agreement to delay his access to counsel, he confirmed that there was no notation in his notebook about the accused’s consent to delay his lawyer call. Cst. Mesenchuk was asked generally when the City Police decide to delay a lawyer call. He responded by indicating that it will depend on factors such as whether further investigation is needed or whether it is a busy night in cells.

Determining the Moment of Detention

[17] As indicated by Crown Counsel, a consideration of any detention must focus on the principles in R v Ratt, 2020 SKCA 19.  Relying on R v Le, 2019 SCC 34, Justice Ryan Froslie indicates two stages of a s. 9 analysis: 1) Was there a detention; 2) Was the detention arbitrary.  (R v Ratt, at para 23.)  The threshold question of whether the accused was detained requires a consideration of two elements to be proven – a command by the police to stop and a submission or acquiescence to that command.  (R v Ratt, at para 37.)  The critical second component of the detention is rooted in the Supreme Court jurisprudence in R v Grant, 2009 SCC 32, at para 28:

[28] The general principle that determines detention for Charter purposes was set out in Therens: a person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist”

[18] Both counsel agree that the accused was detained.  The timing of the detention is disputed.  Defence counsel suggests that a detention occurred immediately when Cst. Mesenchuk drove on to the opposite side of the street and exited his police vehicle requesting the accused stop.  (Defence counsel’s brief at para 15.)  Crown counsel says that the detention did not occur until after the arrival of Cst. Benitez – at no time prior to this had the accused submitted or acquiesced to the police command to stop.  (Crown counsel’s brief at para 37.)

[19] The command component of the detention analysis is satisfied when Cst. Mesenchuk exits his police vehicle and requests to speak with the accused.  The following factors are significant to me in determining the second component, whether the accused submitted or acquiesced to the police command:  1) Cst. Mesenchuk pulled his police vehicle onto the wrong side of the road, in front of the accused, with his emergency lights activated; 2) Cst. Mesenchuk heard the sirens of other rapidly approaching police vehicles; and 3) The accused stopped peddling in a straight line away from the police, slowed his peddling and began to make S curves in the middle of the road.  This context satisfies me of a reluctant acceptance by the accused to his detention.  In these circumstances, I am satisfied that the detention of the accused crystalized the moment Cst. Mesenchuk exited his vehicle and spoke to the accused.  Given the actions of the police, I am satisfied that a reasonable person in the position of the accused would accept that he was not free to leave or to decline to answer questions.  (R v Grant, at para 41; R v Suberu, 2009 SCC 33; and R v Le, at para 31.)

Charter s.9 - Arbitrary Detention

[20] At the time of the accused’s detention there was no nexus connecting him to any criminal activity.  As stated by Cst. Mesenchuk, he decided to stop the accused just in case he was involved in the incident at the Confectionary

[23] The Crown argues that there was a basis for Cst. Mesenchuk to detain this accused for investigative purposes. I disagree.  There is no constellation of factors upon which to draw a reasonable inference that this accused was in any way connected to the alarm call or any criminal activity at the time of his detention.  I find that Cst. Mesenchuk’ s actions do not satisfy the test of reasonable grounds to suspect that the accused was implicated in criminal activity.  (R v Mann, 2004 SCC 52, at para 34.)  The detention of the accused was not authorized by law.  It was arbitrary.  (R v Le, at para 124.)

[The search was incident to arbitrary detention - therefore unauthorised by law]

Charter s.10(b) - Immediate Access to Counsel

[26] Throughout his evidence Cst. Mesenchuk demonstrated a lack of understanding of the right to counsel.  Firstly, when the accused was initially detained, he was not provided with his right to counsel until several minutes later, after he had been searched and arrested by Cst. Benitez.    This failure demonstrates a lack of understanding of the accused rights when detained for investigative purposes ( R v Suberu, at para 40-42).  Secondly, when the accused was lodged in cells, Cst. Mesenchuk alleges an agreement to hold off obtaining legal advice until the police have had an opportunity to assemble the various charges.  In this context, this delay illustrates a lack of appreciation for the immediacy component of s. 10(b).

[27] The Supreme Court in Suberu, at para 42, recognizes the concept of immediate access to legal advice leaves little room for misunderstanding.  (Crown brief at para 46.)  The Saskatchewan Court of Appeal has emphasized this point in two recent decisions: R v Moyles, 2019 SKCA 72, at para 80; R v Lichtenwald, 2020 SKCA 70, at paras 68-69.

[28] Cst. Mesenchuk’ s failure to make any notation about the agreement between he and the accused illustrates a lack of appreciation of the importance of the accused’s access to a lawyer.  It further creates a vacuum around this agreement, leaving an absence of any evidence to suggest an unequivocal waiver of the accused’s right to legal advice without delay. (R. v Clarkson, 1986 CanLII 61 (SCC), [1986] 1 SCR 383, at para 18.)  I am satisfied that the accused’s s. 10(b) rights were violated.

Section 24(2) Analysis

Seriousness of the Violation

[34] Cst. Mesenchuk’ s evidence is the focus of this analysis. In relation to the detention, the Crown argues that the officer’s actions can be reasonably explained as a misjudgment in the face of a rapidly developing situation (Crown brief at para 72). I find this misjudgment to be significant. It is apparent that Cst. Mesenchuk did not hear Cst. Torgunrud’ s initial radio broadcast that the scene was cleared and there was no crime committed. According to Sgt. Bighetty, the Confectionary was not large, and it did not take long to clear the scene. I also note that Sgt. Bighetty did not instruct or suggest to Cst. Mesenchuk that the individual on the bicycle be stopped. I am satisfied that Cst. Mesenchuk reacted to the situation without considering his actions and their effect. His exuberance resulted from his limited experience and training, and his reaction to a dynamic event. The effect, in my view, was that his conduct fell below the standard of care expected of a police officer. On the continuum of culpability, I assess the detention of the accused as negligent police conduct. In my view, this negligence is of such a significant degree that it favors exclusion of the evidence.

[36] These breaches are troublesome. They are aggravated by the fact that according to Cst. Mesenchuk, while the accused sat in his cell without the benefit of legal advice, he was discussing the case with a senior firearms officer from Saskatoon. Further aggravation is found, in my view, in Cst. Mesenchuk’ s cross-examination where he agreed that lawyer calls can be delayed by the Prince Albert City Police if they are busy or if further investigation is required. The breaches of s. 10(b) in this context are serious and strongly favor exclusion of the evidence.

Impact of the Violation on the Rights of the Accused

[37] The Charter-protected interests triggered in this circumstance are the accused’s right to refuse to answer police questions and walk away (R v Grant, at para 21) and the right to counsel without delay.  (R v Suberu, at para 3; R v Moyles, at para 80; and R v Lichtenwald, at para 68, particularly in quoting Justice Doherty in R v McGuffie, 2016 ONCA 365, “… the psychological value of access to counsel without delay should not be underestimated.”)

[38] I find that both interests were compromised by the actions of the police in this case.  The arbitrary detention took place as a result of an alarm call which very quickly was determined not to be a crime.  Not only is there no clear nexus between the accused and ongoing criminal activity, there is no evidence of any criminal activity.

Final Balancing

[43] The final s. 24(2) balancing is incapable of mathematical calculation or explanation (R v Grant, at para 86).  It involves stepping back and considering the Grant factors in the context of the particular evidence.  The serious and dangerous alleged conduct of the accused is a factor.  In my view, this factor is outweighed by the failure of the police to observe bright line rules in relation to the accused’s detention and the provision of legal rights without delay.  The multiple breaches of Charter-protected rights in this case elevate the negative effect on the administration of justice that would result from admitting the seized evidence.  The ends must not justify the means (R v Le, at para 160).      

[44] The material seized, including the two firearms and the crystal meth, will be excluded from evidence at this trial in accordance with s. 24(2) of the Charter.

R v Boutilier, 2020 NSSC 275

[October 5, 2020] Mandamus - Denial of right to Preliminary Hearing on the Basis of Accused's Future Access to Lesser Punishment under s. 11(1) of the Charter [Justice Kevin Coady]

AUTHOR’S NOTE: This is a good little case to file away for the future when a judge attempts to take away your client's statutory rights based on his access to a future Charter remedy.  Herein a judge in the provincial court took away someone's rights to a prelim on the basis that they would only be punishable by a 10 year sentence for sexual assault due to their Charter entitlement to a lesser punishment due to the change in the maximum sentence for sexual assault. The matter was overturned on a mandamus appeal.

Facts

[2] When the alleged offences occurred, a conviction under section 271 involving a complainant under the age of 16 years was subject to a maximum punishment of ten years’ imprisonment if prosecuted by way of Indictment. On July 17, 2015 Parliament raised the maximum punishment under section 271 from ten years to 14 years when the complainant is under the age of 16 years and if prosecuted by way of Indictment.

[3] On September 19, 2019 Parliament amended section 535 of the Criminal Code to limit preliminary inquiries to offences for which the maximum punishment is 14 years’ imprisonment or more. Section 11(1) of the Canadian Charter of Rights and Freedoms states:

Any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing to the benefit of the lesser punishment.

Consequently, if convicted, Mr. Boutilier’s jeopardy is limited to ten years’ imprisonment.

[4] On February 11, 2020 the Honourable Judge MacRury determined that Mr. Boutilier was not entitled to a preliminary inquiry and, as such, was ordered to go directly to trial in the Supreme Court of Nova Scotia. He found that Mr. Boutilier was not entitled to a Preliminary Inquiry because of the application of section 11(1) of the Charter which limited his jeopardy to a maximum term of ten years. Judge MacRury’s reasons are as follows:

Standard of Review

Mandamus is a discretionary remedy available to compel an inferior court to exercise jurisdiction when it improperly refuses to do so.  (Kipp v. Ontario (Attorney General), 1964 CanLII 20 (SCC), [1965] S.C.R. 57) Mandamus may compel a body to act, but a court issuing the remedy cannot require exercise of discretion in a particular way or dictate the result of a hearing.

Mandamus generally responds to a refusal to exercise jurisdiction.  Its cousin, certiorari, generally responds to an excess of jurisdiction.  Both attract the same standard of review.

[7] The Supreme Court of Canada in R. v. Russell, 2001 SCC 53, stated at para. 19:

19  The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari ‘runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term 'jurisdiction' being given its narrow or technical sense’: Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review ‘only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction’.

The Applicant argues that Judge MacRury’s interpretation of section 535 of the Criminal Code amounts to a refusal to exercise jurisdiction.

[8] ... Most rules and principles of statutory interpretation are judge-made; however, section 12 of the Interpretation Act (RSC-1985) provides some general guidance:

Every enactment is deemed remedial and shall be given such fair, large and liberal construction and interpretation as best assures the attainment of its objects.

Remedial is an adjective and means an intention to correct something that is wrong or to improve a bad situation (Cambridge English Dictionary).

[9] The Supreme Court of Canada has given clear direction that the starting point for statutory interpretation is the “modern rule” as developed by Professor Driedger in his text Driedger on the Construction of Statutes”.  In Re Pizzo & Pizzo Shoes Ltd. 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 Justice Iacobucci commented as follows, at para. 21:

21  Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

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

This preferred approach recognizes the important role that context must inevitably play when a Court construes the written words of a statute.  Words, like people, take their color from their surroundings.

Analysis

[12] The critical question before the Court is whether section 11(1) of the Charter operates to limit the jurisdiction of the Provincial Court to conduct a preliminary inquiry on a charge that would otherwise be eligible for one. Mr. Boutilier argues that it was not Parliament’s intention for the availability of preliminary inquiries to be limited by section 11(1). There does not appear to be any reported decisions that address this issue.

[17] The above considerations are germane to the statutory interpretation issues before this Court; however, it all boils down to whether section 11(1) of the Charter operates to interpret section 535 of the Criminal Code in a way that denies Mr. Boutilier a preliminary inquiry which he would be entitled to on a literal reading of the amended section 535.

[18] I am satisfied that the intention of the amended section 535 was to address “14-year offences” and not individuals that will enjoy a benefit at sentencing as a result of section 11(1). I believe this conclusion reflects a “fair, large and liberal interpretation” of section 535. I also believe it “assures the attainment of its objects”. I also conclude that this interpretation is consistent with the principles of statutory interpretation as espoused by Professor Driedger.

[19] Consequently, I am of the respectful view that Judge MacRury erred in his interpretation of section 535. The standard of review of correctness requires me to grant Mr. Boutilier a preliminary inquiry. The relief sought is granted.