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Ontario appeal court rules on how changes to legal process should be applied in the province

The Ontario Court of Appeal is seen in Toronto on Monday, April 8, 2019. THE CANADIAN PRESS/Colin Perkel.
The Ontario Court of Appeal is seen in Toronto on Monday, April 8, 2019. THE CANADIAN PRESS/Colin Perkel. Colin Perkel / The Canadian Press

TORONTO – Ontario’s top court has ruled on how changes to the criminal prosecution process that were brought in as part of broader legal reforms should be applied in the province.

The Court of Appeal for Ontario says amendments that affect who is entitled to a preliminary inquiry should not apply to those who requested one before the changes took effect in September.

Preliminary inquiries are used to determined if there is enough evidence to proceed to a trial. Prior to the reforms, anyone who faced a trial in Superior Court was entitled to one if they so chose.

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But a new federal law, Bill C-75, made it so that only those charged with indictable offences punishable by at least 14 years in prison could request a preliminary inquiry.

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The amendment was challenged by four people charged with sexual assault in separate cases in Ontario in 2018, and who had all requested a preliminary inquiry before the changes came into effect.

In a decision released this week, the Appeal Court said that because the four had already chosen that option, their rights to preliminary inquiries – and the court’s obligation to grant them were “established realities.”

“The appellants had done all they were required to do under the law to trigger their right to a preliminary inquiry and the court’s corresponding obligation to hold a preliminary inquiry. The appellants were simply waiting for the court’s schedule to accommodate their right to a preliminary inquiry on the date that had been set by the court,” the three-judge panel said in a unanimous ruling.

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Depriving the four of preliminary inquiries under these circumstances would affect one of their substantive rights, the panel said: “the appellants’ entitlement to be discharged at a preliminary inquiry if the Crown cannot meet its evidentiary burden.”

The Appeal Court said, however, that those who were charged before the changes took effect but had not yet decided whether to proceed with a preliminary inquiry are not entitled to one.

The panel said it strove to release its decision as quickly as possible, given that it will affect a number of cases currently before the courts.

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“This question has sparked considerable litigation and several conflicting decisions. There are many cases presently in the Ontario Court of Justice awaiting a determination of the issue,” it wrote.

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It noted its findings are in line with what’s being done in the rest of Canada and in federal prosecutions in Ontario.

The Criminal Lawyers’ Association, which intervened in the case, welcomed the ruling.

“It’s unfortunate that the government of Ontario chose to ignore the legal opinion shared by almost every other Attorney General in Canada when they attempted to deny preliminary inquiries to those who were entitled to them,” lawyer Daniel Brown, the association’s vice-president, said in an email.

“Hundreds of cases in the justice system have been impacted and (that) has delayed justice to both victims and defendants involved in those proceedings. Some of these cases may now be in jeopardy of being tossed for unreasonable delay.”