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In September 2019, federal legislation (Bill C-75) came into force limiting the availability of preliminary inquiries for a person accused of committing a criminal offence. A preliminary inquiry is a pre-trial hearing before a judge. The state must demonstrate there is sufficient evidence to justify a trial of the accused on the charges laid. If sufficient evidence is unavailable, the state cannot continue the prosecution against the person and the accused is ‘discharged’ of the offence. This is important to ensure an innocent person does not face a needless and unnecessary trial.

A second purpose of a preliminary inquiry is for the accused discover relevant evidence about the case against them, for example by asking questions to witnesses or receiving undisclosed evidence. The discovery function is particularly important if an accused person’s Charter rights have been violated by the police. An accused person can ask questions to witnesses and the evidence obtained can be used in a Charter application to determine if their rights were violated.

The issue in R. v. Archambault is whether people charged with offences that are alleged to have been committed prior to Bill C-75 are eligible for preliminary inquiries under the prior eligibility requirements. Prior to Bill C-75, a preliminary inquiry was available in any case prosecuted by indictment where the accused was permitted to elect a trial in the Superior Court. Practically, this meant that a preliminary inquiry was available for many serious charges. Bill C-75 limited preliminary inquiries to offences that carry a maximum penalty of at least 14 years in prison, which sharply reduced the charges eligible for a preliminary inquiry.

Provincial appellate courts have disagreed about when individuals charged with offences prior to Bill C-75 coming into force can receive a preliminary inquiry. The Court of Appeal for Ontario, for example, held that an accused only obtained a right to a preliminary hearing if they were charged with an offence that was alleged to have been committed prior to Bill C-75, and if they appeared in court and requested a preliminary hearing before the legislation came into force.

In contrast, in Archambault v. R, 2022 QCCA 1170, the Quebec Court of Appeal held the right to a preliminary hearing existed at the moment the offence was allegedly committed, not when an request was formally made in court. That right cannot be removed by legislation. The Quebec Court of Appeal’s approach would mean many more accused would be eligible to obtain preliminary inquiries according to the eligibility requirements in place prior to Bill C-75.

The CCLA anticipates raising the following arguments before the Supreme Court of Canada:

  • Preliminary inquiries serve an important protective function for accused persons. Offences that allegedly occurred before Bill C-75 came into force (September 2019) are the type of case where the discovery function of the preliminary hearing is vitally important. Cases that involve charges laid many years after the offence was allegedly committed present unique challenges. Evidence can become lost or difficult to uncover. Memories fade, accounts become vague, and witnesses may be hard to locate.
  • It is not clear that Parliament intended to have the legislation reach backwards in time, stripping people of a substantive protection they were entitled to at the time the offence was allegedly committed. There is no evidence anywhere that suggests Parliament wanted this legislation to apply for offence committed before September 2019, and in light of its clear and profound impact on the accused, there is good reason to interpret the amendments as only applying to future offences.
  • Preliminary inquiries provide substantive protection to the accused and present the accused with an opportunity to have the charges against them dismissed through a discharge at the end of the proceedings.

The CCLA is grateful to Janani Shanmuganathan and Owen Goddard of Goddard & Shanmuganathan LLP for their excellent pro bono representation in this case.

About the Canadian Civil Liberties Association

The CCLA is an independent, non-profit organization with supporters from across the country. Founded in 1964, the CCLA is a national human rights organization committed to defending the rights, dignity, safety, and freedoms of all people in Canada.

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