R. v. ARCHAMBAULT, 2024 SCC 35, NOVEMBER 1, 2024. 

FACTS: The accused were charged with various sexual offences alleged to have been committed between 1958 and 1960 (Mr. Archambault) and between 2003 and 2007 (Mr. Grenier). At the time that these offences were alleged to have been committed the maximum penalty which could be imposed was 10 years of imprisonment. Prior to the charges being laid, the maximum penalty was increased to 14 years. 

After the charges were laid, section 535 of the Criminal Code was amended to restrict the right to have a preliminary inquiry to offences that are “punishable by 14 years or more of imprisonment” (the amendment came into force on September 19, 2019). Before the amendment, there was no condition related to the maximum penalty for offences for which a preliminary inquiry could be requested.

At their initial appearances (prior to September 19, 2019), the accused reserved their right to elect their mode of trial.  Subsequently (in 2020), they elected to be tried in the Supreme Court and requested that a preliminary inquiry be conducted.

The Court of Quebec and the Superior Court of Quebec held that the accused did not have a right to a preliminary inquiry because at the time they requested a preliminary inquiry they were not charged with an offence for which a period of 14 years or more of imprisonment could be imposed (“Because the penalty for a criminal offence is presumed to be that in force when the offence was committed — and because of the guarantee under s. 11(i) of the Canadian Charter of Rights and Freedoms to the lesser punishment — they are each liable to a maximum of 10 years’ imprisonment” [see paragraph 150]). 

An appeal was taken to the Quebec Court of Appeal.  The appeal was allowed and the charges were remitted to the Court of Quebec for preliminary inquiries to be held.

The Quebec Court of Appeal concluded that the amendment to section 535 of the Criminal Code did not apply because the accuseds’ right to a preliminary inquiry arose on the date of the commission of the alleged offences.

The Appeal to the Supreme Court of Canda:

The Crown was granted leave to appeal to the Supreme Court of Canada (though the appeal was moot because both accused had preliminary inquiries, the Supreme Court decided to hear the appeal). The issues raised were described as follows (at paragraph 175):

1. Are accused persons subject to the new rule, limiting eligibility for a preliminary inquiry, where no request for a preliminary inquiry was made before the coming into force of the new s. 535?

2. Are preliminary inquiries available under the new s. 535 where an accused has been charged with an indictable offence for which they are not personally liable to imprisonment for 14 years or more, even though the offence, if committed today, would carry maximum liability of 14 years’ imprisonment?

HELD: The appeal was dismissed.  A number of opinions were filed.

Côté and Rowe JJ:

These justices held the accused had a right to a preliminary inquiry under both the former and present legislation (see paragraph 23).

Impact of the Amendment:

They held that the amendment made to section 535 “is procedural in nature but affects a substantive right, that is, an accused’s right under s. 548(1)(b) Cr. C. to be discharged of any charge if, on the whole of the evidence adduced during the preliminary inquiry, no sufficient case is made out to put the accused on trial on the charge. With respect, the Court of Appeal erred in holding that the right to a preliminary inquiry is governed by the law in force at the time the offence was committed…[W]e are of the view that the respondents, Mr. Grenier and Mr. Archambault, had a vested right to a preliminary inquiry. The right to a preliminary inquiry crystallizes at the time charges are laid” (at paragraphs 2 and 3).

Application of the Present Provision:

In addition, these justices held that the accused had a right to a preliminary inquiry because the offences they are charged with had a maximum penalty of 14 years.  They reached this conclusion even though the increase of the maximum penalty to 14 years did not apply to these accused (at paragraph 5):

Regardless of whether a right vested in Mr. Grenier and Mr. Archambault before the legislative amendment came into force, we are of the opinion that the respondents have such a right under the current version of s. 535 Cr. C. Parliament intended to preserve the preliminary inquiry for all accused persons whose alleged offence, or its equivalent, is punishable by 14 years or more of imprisonment, and not, as the Crown argues, only for accused persons who are personally liable to 14 years or more of imprisonment. This is the interpretation most consistent with the text of the amending provision and the compromise from which it resulted. The Crown’s proposed interpretation of this provision, based on an abstract purpose — reducing the number of preliminary inquiries held across the country — is not supported either by the clear text of the new s. 535 Cr. C. or by the circumstances in which it was enacted.

Accordingly, “an accused has the right to a preliminary inquiry if their alleged offence, or its equivalent, is punishable by 14 years or more of imprisonment. Section 535 Cr. C. must be interpreted in a manner consistent with the intent expressed by Parliament to increase the sentences applicable to certain offences, where necessary. The right to a preliminary inquiry is therefore not affected by the accused’s right to the benefit of the lesser punishment” (at paragraph 61).

Kasirer and Jamal JJ:

These justices concluded that the accused had a right to a preliminary inquiry because they reserved their election prior to the amendment coming into force.  They held that when an accused person has requested that a preliminary inquiry be held “before the amendment to s. 535 Cr. C. came into force on September 19, 2019, but the inquiry was not held before that date, the right to an inquiry at a later date [has] vested” (at paragraph 85).

Application of the Present Provision:

These justices did not comment on the present application of section 535 to offences in which the maximum penalty was increased to 14 years or more after the offence was allegedly committed.

 Martin J.:

Justice Martin concluded that the date of the offence is the key to determining the application of the amended section 535 (at paragraph 135):

[B]ecause the new s. 535 of the Criminal Code affects the accused’s substantive rights, and in turn because it must apply prospectively only, the date of the offence should govern its temporal application.  

Impact of the Amendment:

Justice Martin held that “the entitlement to the preliminary inquiry attaches to the offence date…Accused persons alleged to have committed an offence that rendered them eligible for a preliminary inquiry before September 19, 2019, the date on which the new s. 535 of the Criminal Code came into force, should retain that eligibility today. I agree with my colleague Karakatsanis J. that going forward, under s. 535, an accused is only eligible for a preliminary inquiry if they personally face a maximum punishment of 14 years or greater” (at paragraph 105).

Application of the Present Provision:

As regards the application of the amended provision, Justice Martin held that it restricts the right of a preliminary inquiry to those who face the possibility of a period of 14 years or more of imprisonment being imposed (at paragraph 144):

Where the alleged offence date is prior to September 19, 2019, an accused who would have been eligible for a preliminary inquiry but for the amendments remains eligible, regardless of the applicable maximum punishment. As mentioned above, where the alleged offence date is on or after September 19, 2019, the accused must personally be facing a maximum punishment of at least 14 years’ imprisonment in order to be eligible for a preliminary inquiry under the new regime.

Wagner C.J. and Karakatsanis, O’Bonsawin and Moreau JJ.:

These justices held that the amendment applies unless the request for the preliminary inquiry was made prior to its enactment: “[T]he new s. 535…applies to accused persons where no request for a preliminary inquiry was made prior to its coming into force” (at paragraph 155).    

Application of the Present Provision:

On this issue, these justices held that the accused must “actually face” the possibility of being sentenced to a period of 14 years or more of imprisonment to have the right to have a preliminary inquiry [which these accused did not] (at paragraph 160):

[A] preliminary inquiry is only available to an accused person where either: a request was made before the coming into force of the amendment on September 19, 2019; or the accused actually faces criminal liability of 14 years’ imprisonment or more in respect of an indictable offence with which they are charged. The respondents had no right to a preliminary inquiry because they do not meet either criterion.

These justices answered the questions raised by the appeal in the following manner (at paragraph 175):

1. Are accused persons subject to the new rule, limiting eligibility for a preliminary inquiry, where no request for a preliminary inquiry was made before the coming into force of the new s. 535?

I would answer yes. Accused persons are subject to the new limitation if a request for a preliminary inquiry was not made before its coming into force.

2. Are preliminary inquiries available under the new s. 535 where an accused has been charged with an indictable offence for which they are not personally liable to imprisonment for 14 years or more, even though the offence, if committed today, would carry maximum liability of 14 years’ imprisonment?

I would answer no. Under the amended provision, only those who are charged with an offence for which they actually face imprisonment of 14 years or more are entitled to a preliminary inquiry on request.

A Table:

The Issue:	Côté and Rowe JJ:	Kasirer and Jamal JJ:	Martin J.:	Wagner C.J. and Karakatsanis, O’Bonsawin and Moreau JJ.:
Are accused persons subject to the new rule, limiting eligibility for a preliminary inquiry, where no request for a preliminary inquiry was made before the coming into force of the new s. 535?	No. The right to a preliminary inquiry depends on the law applicable on the date that charges are laid.	No. The right to a preliminary inquiry depends on the law applicable when an accused person elects or reserves their right to elect their mode of trial	No. The right to a preliminary inquiry depends on the law applicable at the date of the offence.	Yes. Accused persons are subject to the new limitation if a request for a preliminary inquiry was not made before its coming into force.
Are preliminary inquiries available under the new s. 535 where an accused has been charged with an indictable offence for which they are not personally liable to imprisonment for 14 years or more, even though the offence, if committed today, would carry maximum liability of 14 years’ imprisonment?	Yes.	Did not render an opinion.	No.	No.

A Summary:

It appears that when these various judgments are combined that the Supreme Court of Canda has answered the questions raised in the following manner:

1. Are accused persons subject to the new rule, limiting eligibility for a preliminary inquiry, where no request for a preliminary inquiry was made before the coming into force of the new s. 535?

No.

2. Are preliminary inquiries available under the new s. 535 where an accused has been charged with an indictable offence for which they are not personally liable to imprisonment for 14 years or more, even though the offence, if committed today, would carry maximum liability of 14 years’ imprisonment?

No.