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.
[39] In short, the entitlement to a preliminary inquiry is established by the state of the law at the date of the commission of the alleged offence. It is contingent on the formulation of the charge or charges in the information on which they first appeared. It is not contingent on anything said or done later by the prosecution or defence, at the first appearance or subsequent election and request, either before or after the date that the amendment came into force. It is not contingent on the date of the charge, the date of the election or the date of the request for a preliminary inquiry. It follows that the amendment can only have prospective application to indictable offences with a maximum of less than fourteen years that were allegedly committed after 19 September 2019. It also follows that the entitlement would be equally valid and vested if the appellants had been charged and had appeared only after 19 September 2019. Accordingly, in my view, the distinction between the two categories identified in R.S. cannot hold.
[40] There is one point that requires attention in conclusion to these reasons and it is the only point on which I disagree with the Ontario Court of Appeal in R.S. That court decided that the amendment to section 535 could only have prospective application because the accused had made their election as to mode of trial before the amendment came into effect on 19 September. I do not agree with this limitation because the effect of the amendment was to remove the entitlement to a preliminary inquiry that was established by the charges against the accused and later confirmed by the formulation of the charge and the appellants’ first appearances. At the first appearance, at least in Quebec, the accused typically reserves the right of election to a future date. In the absence of an explicit reservation an election for judge and judge and jury is entered for the accused in anticipation formal election at a later date. Thus, with or without a formal reservation of an election, a provisional election for judge and jury preserves the entitlement of the accused to a preliminary inquiry, which means that this entitlement was acquired or vested by virtue of the charge and confirmed by the first appearance. In those circumstances the amendment can only have prospective application.
[41] In principle an accused person must be arraigned before the commencement of trial but may be arraigned more than once and at stages before the commencement of trial. The first appearance of an accused person is also the first opportunity at which an arraignment can occur to assert jurisdiction over the accused, recite the charge and record a plea. The arraignment means that an accused person is called before a competent court, the charge is read aloud and the accused is asked to enter a plea. The arraignment confirms the jurisdiction of the court and assures that the accused is informed of the case to meet. It is thus an essential step in defining the jeopardy of the accused.
[42] The law does not require a formal arraignment at the first appearance but the two are functionally the same. For practical purposes an arraignment at the first appearance is provisional because essential features of the case will only emerge as the case evolves further. At the first appearance in a criminal case it is exceedingly rare for the parties to proceed on the facts at a trial because nobody at that stage is prepared.
[43] In Quebec the first appearance is a provisional arraignment in which the appearance of the accused is affirmed, the charge is noted and a plea of not guilty is recorded. The manner in which this is done is typically informal and occasionally sloppy. Where the charge is indictable, the defence will waive reading of the charge and defer election as to mode of trial until a later date. If the defence fails to make these stipulations they will be made under the direction of the court. In this arraignment the provisional election is recorded for trial by judge and jury or, if so stated by the defence, judge alone. This procedure preserves for the accused the most favourable election until such time, if at all, as the defence enters a different election. Despite its apparent informality, and occasional sloppiness, the significance of this form of arraignment is that, for as long as the defence has not elected trial before a judge of the provincial court, the accused has effectively preserved the entitlement to request a preliminary inquiry.
