Archambault c. R., 2022 QCCA 1170

[9]         The two appeals before the Court are unrelated but they raise the same issue, which is whether the amendment of section 535 of the Criminal Code[5]that came into force on 19 September 2019 deprived the appellants of the opportunity to request a preliminary inquiry. In both cases the Court of Quebec said that it did.[6] The Superior Court agreed with that conclusion.[7] These reasons join the two appeals from the decisions of the Superior Court.

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[11]      The specific question in the present appeals is whether the temporal application of the amendment to section 535 is strictly prospective or also retrospective. Although the answers in various courts have been mixed, and sometimes irreconcilable, this question is raised in this court for the first time by these appeals. The Court’s answer is limited to the temporal effect of the amendment to section 535 and does not consider the effect of other amendments enacted by Bill C-75. That answer, in short is that the entitlement to a preliminary inquiry is determined with reference to the state of the law at the date of the commission of the alleged offence and that the entitlement, while “accruing” from that moment, is vested or accrued at the date on which the charge is first brought before a court.

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Two points must be stressed.

The first is that the relevant date for ascertaining the entitlement to request a preliminary inquiry is the date of the alleged offence and not date of the first appearance or the date of election as to mode of trial.

Moreover, as the determinative date is the date of the alleged offence as charged, the resolution of these appeals would be the same even if the appellants had made their first appearance on the offences after 19 September 2019 because the entitlement to a preliminary inquiry was already inherent in the charges at the date of their alleged commission.

[38]      Two points must be stressed. The first is that the relevant date for ascertaining the entitlement to request a preliminary inquiry is the date of the alleged offence and not date of the first appearance or the date of election as to mode of trial. For the reasons expressed above, this is due to the relative importance of the entitlement and not to the characterisation of an amendment as procedural or substantive.  In the present appeals this is only confirmed by the fact that the first appearances of the appellants occurred before the amendment came into force on 19 September 2019, which affirmed and preserved their rights upon election as to mode of trial even if no formal request was made for a preliminary inquiry at that date. Moreover, as the determinative date is the date of the alleged offence as charged, the resolution of these appeals would be the same even if the appellants had made their first appearance on the offences after 19 September 2019 because the entitlement to a preliminary inquiry was already inherent in the charges at the date of their alleged commission.