This week’s top four summaries: R v Rafilovich, 2019 SCC 51, R v RS, 2019 ONCA 904R v Levaillant, 2019 ABQB 837, and R v SB, 2019 ABQB 836.

R v Rafilovich (SCC)

[November 8/19] s. 462.34(4) Application to Use Funds Seized by Police to Pay a Criminal Defence Lawyer - 2019 SCC 51 [Majority reasons by Martin J. (Abella, Karakatsanis, Gascon, Brown and Rowe JJ. concurring) - Dissent by Moldaver J. (Wagner C.J. and Côté J. concurring)]

AUTHOR’S NOTE: How does a defence lawyer get paid when legal aid won't cover the client and police have a perfectly good $42,000 seized from the client's car?  You make a s.462.34 application to get paid with the seized funds.  However, by directing you to do so prior to this case, your client was taking a significant risk - if they were found guilty of possession of proceeds at the end of a trial, they could get a fine in the amount of the funds you have been paid.  Now, thanks to the SCC, they do not have to take that risk.


[1]                              Do the proceeds of crime provisions of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”), require courts to give with one hand, only to take away with the other? The appellant, Yulik Rafilovich, applied for and was returned funds that the state had initially seized from him as potential proceeds of crime, because he needed the funds to pay for his legal defence to charges related to drug trafficking. After he pled guilty, the Crown asked the sentencing judge to impose a fine on Mr. Rafilovich under the forfeiture provisions of the Code, on the basis that by using his returned funds for his defence, he had thereby benefitted from the proceeds of crime. In my view, Parliament did not intend these provisions to operate in such an inconsistent manner.

[8]                              In my view, the application of the principles of statutory interpretation leads to the conclusion that, generally speaking, sentencing judges should not impose a fine instead of forfeiture in relation to funds that have been judicially returned for the payment of reasonable legal fees associated with an accused’s criminal defence. This approach is most faithful to Parliament’s intent.

[9]                              The statutory discretion afforded to sentencing judges to impose a fine must be exercised in accordance with the purposes of the provisions in the proceeds of crime regime (R. v. Lavigne, 2006 SCC 10 (CanLII), [2006] 1 S.C.R. 392, at para. 28). Those purposes can be found by examining the Code to discern Parliament’s intent about how the legal expenses return provision and the fine instead of forfeiture provision should operate together. By enacting the return provision, Parliament not only foresaw the possibility that seized funds may be needed to mount a defence, but explicitly allowed individuals to spend returned funds for this purpose.  While it is true that the proceeds of crime regime as a whole seeks to ensure that crime does not pay or benefit the offender, the legal expenses return provision pursues secondary purposes, namely: (1) providing access to counsel and (2) giving meaningful weight to the presumption of innocence. Underlying both of these objectives is a desire to ensure fairness to the accused in criminal prosecutions. Clawing back reasonable legal fees as a fine instead of forfeiture would, in most cases, undermine these equally valid purposes. 

[10]                           At the same time, where it turns out that the offender did not have a real financial need or the funds were not used to alleviate that need, it would be appropriate for a judge to impose a fine instead of forfeiture, as this would align with Parliament’s intent. For example, this might occur where there is wrongdoing in the return of funds application, such as the misrepresentation of the accused’s financial position. It might also occur where there is wrongdoing in the administration of the return order, such as funds not being applied in the manner contemplated, expenditures for purposes outside the scope of the return order, or fees in excess of judicially-authorized limits. Further, it might occur where the accused experiences an unexpected change in circumstances after the funds have been returned but before sentencing, such that recourse to returned funds is no longer necessary after the accused became aware of the changed circumstances. These are examples of the kinds of situations that undermine the basis of the return order such that Parliament would have intended to recover the returned monies by way of a fine.

Facts of the Case

[12]                          The appellant, Mr. Rafilovich, was arrested for possession of cocaine for the purpose of trafficking twice in fourteen months. The police searched Mr. Rafilovich’s car and two apartments, and seized, among other things, a fake Social Insurance Number identification card, about $47,000 worth of cocaine, and about $42,000 in cash. The cash was seized by the Crown as potential proceeds of crime.

[18]                          ....the Court of Appeal imposed a fine instead of forfeiture of $41,976.39, equal to the amount of the seized and returned funds. It further ordered that, in the event that Mr. Rafilovich did not pay the fine and did not have a reasonable excuse, he would be sentenced to an additional 12 months of imprisonment over and above the 14 months that remained in his prison sentence. Mr. Rafilovich now appeals to this Court by leave.

The Statutory Scheme Explained

[22]                          Under the scheme of the proceeds of crime regime in the Code, the issue before this Court only arises in limited circumstances when five pre-conditions are met.

[23]                          First, the accused is charged with a “designated offence”, as defined under s. 462.3(1).

[24]                          Second, property is seized. Parliament has allowed the state to take property from an accused on the basis of reasonable and probable grounds that the property may eventually be proven to be proceeds of crime (ss. 462.32(1) and 462.33(1)). This seizure occurs at a time when the accused is presumed innocent and, in law, remains the legal owner of the seized property unless and until the property is forfeited at sentencing. The seizure of property from persons still presumed to be innocent was quite extraordinary at the time the proceeds of crime regime was enacted in 1988 (G. J. Rose, “Non-Part XII.2 Warrants and Proceeds of Crime” (1996), 38 Crim. L.Q. 206, at pp. 210-11).

[25]                          Third, the accused makes an application for the return of the seized property to pay for reasonable legal fees under s. 462.34(4) to (6).  For our purposes, the relevant portions of the section read:

(4) On an application made to a judge under paragraph (1)(a) in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3), revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit,

(c) for the purpose of

(ii) meeting the reasonable business and legal expenses of a person referred to in subparagraph ….

if the judge is satisfied that the applicant has no other assets or means available for the purposes set out in this paragraph and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property.

[26]                          In these return provisions, Parliament has allowed for tight judicial control over if, when, and how seized property may be returned to pay for reasonable legal expenses.  Seized property can only be returned “if the judge is satisfied that the applicant has no other assets or means available” to pay for legal expenses (s. 462.34(4)(c)(ii)). These return provisions and process, as well as Parliament’s purpose in enacting them, will be explored in further detail in a subsequent section.

[27]                           Fourth, the Crown proves that certain property meets the statutory definition of proceeds of crime under ss. 462.37(1) or 462.37(2).  Only property determined to be “proceeds of crime” at the end of the process, whether at sentencing or a forfeiture hearing, is subject to forfeiture or a fine instead of forfeiture.

[28]                          Fifth, some or all of the property proven to be proceeds of crime at sentencing is no longer available for forfeiture to the Crown. In such cases, the sentencing judge may order a “fine instead of forfeiture” according to s. 462.37(3) and (4). The imposition of a fine is a discretionary decision and s. 462.37(3) sets out a non-exhaustive list of circumstances when a fine may be imposed instead of forfeiture, including where property “has been transferred to a third party” (s. 462.37(3)(b)).  Subsection 462.37(3) reads:

(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property

(a) cannot, on the exercise of due diligence, be located;

(b) has been transferred to a third party;

(c) is located outside Canada;

(d) has been substantially diminished in value or rendered worthless; or

(e) has been commingled with other property that cannot be divided without difficulty.

When imposed, the fine must be equal to the amount proven to be proceeds of crime. An offender who fails to pay the fine is liable to an additional term of imprisonment (s. 462.37(4)).

The Return Proceeds of Reasonable Legal Expenses

[35]                          Through the return provision, Parliament created a distinct and special process that allows an accused to reclaim seized property for specific purposes listed in s. 462.34(4), which include reasonable legal expenses.  Parliament prescribed a particular application procedure, which involves two hearings before a judge; required applicants to show that they had no other assets or means; prohibited the return of the funds where a third party appeared to be the lawful owner or lawfully entitled to possession of the property; allowed a judge to decide what amount should be returned; ensured that any return is effected by judicial order that can specify amounts, number of counsel, etc.; and provided for a subsequent review of these amounts to ensure they were in fact reasonable. 

[36]                           Often, a proposed budget is submitted to the court in camera (as in R. v. Davidson, 2016 ONSC 7440, at para. 21 (CanLII)), but where this is not done, the judge may fix the allowable hours and incidental fees (R. v. Alves, 2015 ONSC 4489 (CanLII), at paras. 46-51). Further, s. 462.34(5) requires the judge to “take into account the legal aid tariff of the province” and, under s. 462.34(5.2), the legal fees may be taxed (that is, reviewed or audited). The judge’s inquiry into the financial situation of the accused “must be more than cursory” and “[a] significant and in-depth review of the facts is required” (R. v. Borean, 2007 NBQB 335 (CanLII), 321 N.B.R. (2d) 309, at para. 8). The seized funds will then be returned in accordance with the terms of the judicial order.

[37]                          The wording of the relevant provisions and the elaborate and detailed nature of the return provision indicates that Parliament clearly and deliberately sought to address an accused’s need for legal counsel, but only in limited and narrow circumstances: (1) where the accused has “no other assets or means” and, therefore, access to the funds is truly necessary; and (2) where “no other person appears to be the lawful owner of or lawfully entitled to possession of the property” (s. 462.34(4)). The return provision is thus intended to provide a safety net for those accused persons who are in financial need.

[43]                          The Minister’s statements indicate that ensuring an accused’s ability to access legal counsel is a main objective of the legal expenses return provision. While seizing funds helps protect the state’s contingent interest in the property, Parliament has signalled that this contingent interest should take a back seat where it imperils an accused’s ability to access counsel.

[47]                          As Justice Doherty put it, the return provision “recognizes that the state should not be allowed to beggar a person who will often need to retain the assistance of counsel in order to defend himself or herself against state action directed at depriving that person of their property and liberty” (Wilson, at p. 659). The return provision was intended to respect the principle of fairness in criminal prosecutions:  an individual should not be left unable to hire legal representation because the state seized the funds with which they could have paid counsel.

The Importance of the Right to Obtain Counsel with These Funds

[56]                          When an accused person cannot access legal counsel, the presumption of innocence suffers. This is because, in facilitating the accused’s right to make full answer and defence, defence counsel help to ensure that the case remains the Crown’s to prove. It is difficult for lay persons accused of criminal offences to effectively navigate “the increased complexity of criminal cases” that this Court has described as affecting “most cases” in our criminal justice system (R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631, at paras. 53 and 83). 

[57]                          Nor is the importance of the presumption of innocence, “spent” once an accused person is found guilty (at para. 71).  The criminal justice system does not, and should not, retroactively dilute the presumption of innocence after an accused is found guilty, nor does it attach preconditions or penalties to reliance on the presumption. Imposing retroactive penalties on accused persons who rely on the presumption of innocence can have no effect but to undermine the presumption and the protections it affords to accused persons. For example, the presumption of innocence underlies the concept of bail (R. v. Antic, 2017 SCC 27 (CanLII), [2017] 1 S.C.R. 509, at para. 1).  The time spent free on bail is not added back at sentencing; to the contrary, restrictive bail conditions can be a mitigating factor at sentencing.

[59]                           Further, imposing a fine on judicially returned funds raises concerns of notice and reliance that are rooted in the principle of fairness to the accused in criminal prosecutions. It can be expected that accused people will rely on a court order authorized by a specific statutory scheme. Those accused persons cannot reasonably know that doing so will lead to additional punishment. Yet “[t]he rule of law requires that laws provide in advance what can and cannot be done” (R. v. Mabior, 2012 SCC 47 (CanLII), [2012] 2 S.C.R. 584, at para. 14; R. v. Levkovic, 2013 SCC 25 (CanLII), [2013] 2 S.C.R. 204, at para. 3). The general imposition of a fine instead of forfeiture on judicially-returned funds would not respect principles of fair notice, further undermining Parliament’s intent to create a fair procedure that enables access to counsel and ensures the presumption of innocence.

[60]                          My colleague minimizes these concerns by stating that while the “choice” to retain counsel in the face of having a fine imposed on the judicially returned funds “may not be an easy one, our criminal justice system does not promise an experience free of difficult choices” (para. 142). With respect, there is a difference between a difficult choice and no real choice at all. The “choice” faced by an accused person in this instance is a Hobson’s choice — an apparently free choice in which there is effectively only one option. In this case, that option is to go without legal representation. This Court has cautioned against creating a Hobson’s choice like this in the criminal law context (R. v. Taylor, 2014 SCC 50 (CanLII), [2014] 2 S.C.R. 495, at para. 40).

[65]                           Instead of a temporary loan, Parliament balanced the multiple objectives by tightly controlling the extent of any benefit. The Code requires applicants to show that they have no other means to pay a lawyer before a judge returns funds for that purpose. “Other means” has been interpreted broadly to include support entitlements or other sources of financial assistance (R. v. Keating (1997), 1997 CanLII 14379 (NS CA), 159 N.S.R. (2d) 357 (C.A.), at para. 28), help from family members (R. v. Hobeika, 2014 ONSC 5453, at para. 24 (CanLII); R. v. Kizir, 2014 ONSC 1676 (CanLII), 304 C.R.R. (2d) 287, at paras. 16-18), as well as the accused’s access to credit, so long as that credit is capable of being serviced (R. v. Ro, [2006] O.J. No. 3347 (Sup. Ct.), at paras. 35-39). Even if an accused has no other means, funds cannot be returned unless the judge is satisfied that “no other person appears to be the lawful owner of or lawfully entitled to possession of the property”. As well, accused persons often cannot receive legal aid because the seized property is attributed to them and effectively disqualifies them from receiving assistance, even though they cannot actually access their seized property.[5]This occurred with Mr. Rafilovich.  The legal expenses return provision, therefore, achieves a balance by providing a safety valve for a narrow category of accused persons in need while still depriving offenders from accessing the proceeds of crime in most other cases.

[68]                          It is undeniable that because Mr. Rafilovich used the returned funds to finance his legal defence, there is less money available to be forfeited to the Crown.  But this by-product of accused persons exercising their rights is not unusual. A fundamental purpose of the criminal justice system is to provide a fair process to achieve just results, not to extract maximum retribution at any cost.

Fine After Conviction?

[71]                          In this case, the Crown’s argument focussed on the notion that the property judicially returned to the accused for legal expenses had “been transferred to a third party” — Mr. Rafilovich’s lawyer — and thus fell within s. 462.37(3)(b). Even if the judicial return of funds to pay legal fees constitutes a “transfer” to a third party, judges retain a discretion to nevertheless decline to order the fine where it would be contrary to the objectives of the return provision. In my view, the judicially authorized payment of reasonable legal fees is not the kind of “transfer” that Parliament intended to capture in this subsection.

[72]                          The key distinguishing feature here is judicial authorization. The returned funds are never held or transferred by the accused person: they are sent directly from the state – with judicial permission – to a designated person for permitted purposes under strict judicial supervision. The accused’s lawyer is not some unknown person receiving the funds by way of an entirely uncontrolled, private transaction, as was the case in Lavigne. Rather, they have been specifically authorized by a judge through a return order to be paid at a stipulated hourly rate for specified services in aid of the accused’s defence. As the Newfoundland and Labrador Court of Appeal held in Appleby, it is inappropriate “to treat the transfer of funds upon the order of a judge, specifically authorized to so order for a purpose and in the limited circumstances expressly authorized by the statute, as being activities of the same character as” funds that are transferred privately to third parties with no judicial oversight (para. 53).

[76]                          The circumstances under which it is possible to impose a fine instead of forfeiture on funds returned for reasonable legal expenses must be anchored to Parliament’s intent, and sentencing judges must consider whether the offender’s use of funds advanced or undermined the purposes of the return provision. If it turns out that the financial need was not real, or the funds were not used to alleviate that need, the imposition of a fine instead of forfeiture might be appropriate. I can foresee three situations where this could occur, although there may be others. 

[77]                          The first is some kind of wrongdoing in the return of funds application, such as the misrepresentation of the accused’s financial position. The second is wrongdoing by the offender in the administration of the return order, such as funds not being applied in the manner contemplated, expenditures for purposes outside the scope of the return order, or fees in excess of judicially-authorized limits. The third is where the accused experiences an unexpected change in financial circumstances after the funds have been returned but before sentencing, such that recourse to returned funds is no longer necessary after the accused became aware of the changed circumstances. Indeed, counsel for Mr. Rafilovich conceded that judicial discretion to impose a fine should be exercised “if there had been an unforeseen enrichment in between the period of the making of the [return] order and the conclusion of the trial, [such as] the person wins the lottery” (Transcript, p. 24, lines 16-19).


[87]                          I would, therefore, allow the appeal and set aside the Court of Appeal’s variance of the sentencing judge’s order adding a fine instead of forfeiture and 12 months imprisonment in default of payment of this fine. The appellant did not seek costs and none are ordered.

R v RS (ONCA) 

[November 18/19] Amendments to Preliminary Hearing Availability do not have Retrospective Effect - 2019 ONCA 906 [Reasons by Doherty J.A. with David Watt J.A. and Gary T. Trotter J.A. Concurring]

AUTHOR’S NOTE: A great deal of litigation resulting from the lack of transitional provisions in the amendments to the Criminal code that removed the ability of many accused persons to have a preliminary hearing has come to an end in Ontario.  The answer simply is that if you elected before September 19, 2019 to have preliminary hearing, you get have one still.  

Reading the tea leaves of this outcome for similar interpretation of peremptory challenge rules is difficult.  The driving force to finding of a substantive right here was the preliminary hearings could end a prosecution.  That logic does not apply to peremptory challenges.


[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.

[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.

Retrospective Application of Legislation

[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 (CanLII), [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 CanLII 5 (SCC), [1988] 2 S.C.R. 256, at p. 265; Peel (Police) v. Ontario (Special Investigations Unit), 2012 ONCA 292 (CanLII), 110 O.R. (3d) 536, at paras. 71-77.

Do the Amendments Affect Substantive Rights?

[36]      The analysis in R. v. Puskas, 1998 CanLII 784 (SCC), [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....

[37]      The accused [in Puskas] 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]

[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]      .... 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.

Is the Right to a Preliminary Hearing Actually Substantive?

[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 Crown’s right to proceed to trial and gain information and insights that may assist in the preparation for trial: R. v. Hynes, 2001 SCC 82 (CanLII), [2001] 3 S.C.R. 623, at paras. 30-31; R. v. S.J.L., 2009 SCC 14 (CanLII), [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 (CanLII), [2001] 2 S.C.R. 828.

[50]      ....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.

[52]      An accused’s 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 accused’s 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), 1996 CanLII 12421 (ON CA), 32 O.R. (3d) 365, 113 C.C.C. (3d) 225, at p. 234.

[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.

[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.


[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.

R v Levaillant & R v SB (ABQB)

[October 30/19] – Peremptory Challenges are Substantive Rights - the Amendments Removing them Are NOT retrospective – 2019 ABQB 837  [Peter Michalyshyn J.], 2019 ABQB 836 [L.R.A. Ackerl J.]

AUTHOR’S NOTE: Two decisions with the same conclusion.  The right to peremptory challenges is a substantive right which cannot be removed retrospectively (without explicit legislative intent).  Consequently, in AB the prevailing winds suggest everyone who has elected trial by jury prior to the amendments coming into force will continue to have peremptory challenges as before.  Hopefully, these decisions will assist in placing the substantive right within a constitutionally-protected category that can be used to mount a successful Charter challenge to the amendments.

Pertinent Quotes - R v Levaillant

[11]           With now at least a dozen English-language decisions in circulation, the positions for and against the substantive versus procedural effect of the Bill C-75 peremptory challenge amendments have been thoroughly and well canvassed.  The positions I find most persuasive can be summarized as follows:

a.      Coming out of Raymond, Ferguson J’s comprehensive historical and legal review leading to the conclusion amongst other things that the amendment in question – though on its face may appear to deny a merely procedural right, clearly affects substantive rights.  Joining others who have done so, Ferguson J relies on Dineley, at para 11, that:

Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights.

b.      I am persuaded particularly by the reasons of Saunders J in Subramaniam at para 47 et seq on the question of vested rights.  Conversely, I am respectfully not much persuaded by those who argue that a jury election giving rise to the right of peremptory challenges is no more than the expression of an ‘expectation of a right’ – as if a right to elect to be tried in a certain fashion with the rights that accrue at the time of election – is really of little moment.

c.      As noted in both Raymond and Subramaniam, and as argued by counsel before me, in Parliament’s own Charter statement there is a recognition that “The elimination of peremptory challenges from the Criminal Code may engage the fair trial rights of the accused as protected by sections 11(d) and 11(f) of the Charter”.


f.      Finally, I agree it is significant that the right to peremptory challenges is not just limited, but eliminated, altering to an accused’s detriment – if not the Crown’s – what Danyliuk J in Dorian refers to as the cumulative balance in the jury selection process which itself is part of the Charter right for a fair, independent and impartial jury;

[21]           In the case before me, the condition precedent to the acquisition of the right to peremptory challenges was the accused’s election to be tried by a judge and jury.

[34]           For the reasons given, the application is granted, and both the Crown and the Defendant are entitled to peremptory challenges.

Pertinent Quotes - R v SB

[2]            Defence has filed an application to determine whether s 269 of Bill C-75, an act to amend the Criminal Code, RSC 1985, c C-46, the Youth Criminal Justice Act, SC 2002, c 1 and other Acts to make consequential amendments to other Acts, SC 2019 c 25 operates retrospectively or prospectively. This amendment has altered jury selection process by removing peremptory challenges, making the Judge the trier in challenge for cause applications and permitting Judges to stand aside jurors in order to maintain public confidence in the administration of justice. For purposes of this ruling, in speaking of elimination of peremptory challenges, I also reference the Court’s increased power to stand aside potential jurors.

[10]        In R v Dineley, 2012 SCC 58 (CanLII) at paras 10-11, the Supreme Court provided guidance for determining the operational date of new legislation. While discussing the distinction between procedural and substantive provisions, the Court pointedly concludes the real issue is whether new legislation, regardless of characterization, affects substantive rights:

There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Hart, 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256 (S.C.C.), at pp. 266-67; Application Under s. 83.28 of the Criminal Code, Re, 2004 SCC 42 (CanLII), [2004] 2 S.C.R. 248 (S.C.C.), at para. 57; R. v. Wildman, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311 (S.C.C.), at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application Under s. 83.28 of the Criminal Code, Re, at paras. 57 and 62; Wildman, at p. 331).

Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions "procedural" or "substantive", but in discerning whether they affect substantive rights.

[13]        Undoubtedly, there is a presumption against retrospectivity of legislation, absent existence of a clear intent the legislation was intended to have such effect. The case of Tran v Canada 2017 SCC 50 (CanLII), [2017] 2 SCR 289, re-affirmed the importance of the presumption against retrospectivity at paras 48-49:

The presumption is a tool for discerning the intended temporal scope of legislation. In the absence of an indication that Parliament has considered retrospectivity and the potential for it to have unfair effects, the presumption must be that Parliament did not intend them:

The absence of a general requirement of legislative prospectivity exists despite the fact that retrospective and retroactive legislation can overturn settled expectations and is sometimes perceived as unjust: see E. Edinger, "Retrospectivity in Law" (1995), 29 U.B.C. L. Rev. 5, at p. 13. Those who perceive it as such can perhaps take comfort in the rules of statutory interpretation that require the legislature to indicate clearly any desired retroactive or retrospective effects. Such rules ensure that the legislature has turned its mind to such effects and "determined that the benefits of retroactivity (or retrospectivity) outweigh the potential for disruption or unfairness": Landgraf v. USI Film Products, 511 U.S. 244(1994), at p. 268.

[Emphasis added.]

[14]        In this case, the parties agree Bill C-75 (and in particular s 269) does not contain any express intent it would operate retrospectively. The emphatic, clear, and recent language in Tran, demands application.

[16]        The presumption against retrospectivity clearly signals that, in the circumstances of Bill C-75, the elimination of peremptory challenges and the reciprocal increased power of the judge to stand aside jurors is not retrospective.

[20]        It is important to recognize the specific jury trial rights guaranteed by ss 11(d) and 11(f) of the Charter. In R v Kokopenace, 2015 SCC 28 (CanLII) at para 57, Moldaver J. stated an impartial and representative jury was a right guaranteed by ss 11(d) and 11(f) of the Charter:

Although both provisions incorporate the same definition of representativeness, the broader role it plays in s. 11(f) creates an important point of distinction: while a problem with representativeness will not necessarily violate s. 11(d), the same cannot be said about s. 11(f). Because representativeness is a key characteristic of the jury, its absence will automatically undermine the s. 11(f) right to a trial by jury. As this Court held in Sherratt, at p. 525:

The perceived importance of the jury and the [s. 11(f)] Charter right to a jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place.

[Emphasis added]

[23]        These comments from the Supreme Court of Canada suggest peremptory challenges contribute to the Charter protected rights of a representative and impartial jury. By definition, they affect those rights. Given that elimination of peremptory challenges and the addition of judicial powers affect the right to an impartial and representative jury as guaranteed by Charter ss 11(d) and 11(f), there is no doubt substantive rights are affected.

[30]        The removal of peremptory challenges (in addition to judicial powers to remove perspective jurors) affects an Accused’s Charter rights to a representative and impartial jury. The substantive rights of an Accused are thereby impacted. Additionally, the strong presumption against retrospectivity is not displaced by the language of Bill C-75. Rather, that language supports a deliberate intention to have s 269 of this legislation operate prospectively. Under the circumstances, I conclude s 269 of Bill C-75 does not operate retrospectively.