R. v. Hynes

R. v. Hynes
Collection
Supreme Court Judgments
Date
2001-12-06
Neutral citation
2001 SCC 82
Report
[2001] 3 SCR 623
Case number
27443
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Newfoundland and Labrador
Subjects
Constitutional law
Notes
SCC Case Information: 27443
Decision Content
R. v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82
Dwayne W. Hynes Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Manitoba,
the Attorney General of British Columbia
and the Attorney General for Alberta Interveners
Indexed as: R. v. Hynes
Neutral citation: 2001 SCC 82.
File No.: 27443.
2001: February 13; 2001: December 6.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for newfoundland
Constitutional law -- Charter of Rights -- Court of competent jurisdiction -- Preliminary inquiry -- Exclusion of evidence -- Whether preliminary inquiry justice is court of competent jurisdiction to exclude evidence -- Canadian Charter of Rights and Freedoms, s. 24(2) .
The accused stands charged with three offences under the Criminal Code arising from a motor vehicle accident. The judge presiding over the preliminary hearing into the charges held voir dires to determine the admissibility of statements made by the accused to the police while he was under arrest. The accused argued that these statements were obtained by the police in a fashion infringing his rights under ss. 7 , 10 (a), 10 (b) and 11 (a) of the Canadian Charter of Rights and Freedoms . After completion of the Crown’s evidence on each of the voir dires, the accused sought a declaration that the presiding judge constituted a “court of competent jurisdiction” under s. 24 of the Charter . The judge refused on the ground that, sitting in his capacity as a preliminary inquiry justice, he was not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2) . The Trial Division dismissed the accused’s application to direct the preliminary inquiry judge to conduct the inquiry under s. 24 . The Court of Appeal upheld that decision.
Held (Iacobucci, Major, Binnie and Arbour JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and L’Heureux-Dubé, Gonthier, Bastarache and LeBel JJ.: A justice presiding at a preliminary inquiry is not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2) of the Charter .
A “court of competent jurisdiction” is one that possesses jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction to grant the remedy. The test for the third element is whether the court or tribunal is suited to grant the remedy sought under s. 24 in light of its function and structure. The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial. In support of this function, Parliament equipped the preliminary inquiry with a structure that shares broad similarities with that of the trial court. The preliminary inquiry is not a trial, however, and this distinction is reflected in the powers and procedure. Preliminary inquiry justices should not be allowed general powers to exclude evidence for Charter breaches. First, recognizing a remedial jurisdiction in preliminary inquiry justices has the potential to transform the role Parliament intended this process to perform in the criminal justice system. Instead of performing a preliminary screening function, the preliminary inquiry might become a forum for trying Charter breaches and awarding remedies. Second, assigning this new role to preliminary inquiry justices might undermine the expeditious nature of the preliminary inquiry. Third, trial courts are better situated than preliminary inquiries to engage in s. 24(2) determinations. Finally, Charter litigation at the preliminary stage may ultimately serve no other practical purpose than to increase the costs and delays associated with this process. If the accused is discharged as the result of excluded evidence under s. 24(2) , the Crown may still prefer a direct indictment against the accused and proceed to trial regardless. There is no statutory right of appeal from the ruling of a preliminary inquiry justice. The Crown’s power to proceed by preferred indictment cannot be accepted as a proper substitute for a statutory appeal mechanism. Parliament intended Charter issues to be resolved in a forum equipped with established and well-understood avenues of appeal. The trial court is the obvious choice for this task.
Under the current rule, the preliminary inquiry justice may consider the admissibility of the accused’s statement based on voluntariness, but not Charter violations. Although these powers appear similar, only the latter involves an exercise of remedial authority – an authority with which a preliminary inquiry justice is not cloaked. Further, the common law confessions rule always results in the exclusion of offending evidence. As such, it involves a relatively discrete inquiry. By contrast, the s. 24(2) inquiry transcends the immediate facts of the Charter breach and embraces a much more comprehensive appraisal of the impact of the evidence on the fairness of the trial and the repute of the justice system. These issues are best reserved for the trial judge, who is likely to have a more complete picture of the evidence and its significance in the context of the case and is thus better situated to decide such questions.
Per Iacobucci, Major, Binnie and Arbour JJ. (dissenting): A preliminary inquiry hearing, by virtue of its function and structure, is an appropriate forum for excluding statements obtained contrary to the Charter . Many statutory provisions in Part XVIII of the Criminal Code demonstrate that a preliminary inquiry justice has been provided with the power to determine the admissibility of evidence, including s. 542 , which requires a preliminary inquiry justice to exclude confessions under exclusionary rules at common law. A “much more comprehensive appraisal” is not necessarily required to determine whether statements that violate the Charter should be excluded. Generally, if an accused’s statement is obtained in violation of Charter rights, self-incriminating evidence will be excluded under s. 24(2) without the need for much further inquiry. Even if a much more comprehensive appraisal is required, there will be overlap between the “administration of justice” test used to determine whether evidence should be excluded pursuant to s. 24(2) of the Charter and the factors used in the common law confessions rule. With such overlap, the voir dire needed to exclude a confession at common law will provide virtually all the requisite information for exclusion under the Charter . Moreover, the rationale for the common law exclusionary rule is much the same as the “remedial” rationale for s. 24(2) of the Charter .
If the test for committal is the intended function of the preliminary inquiry and if a “much more comprehensive appraisal” is required to determine whether to exclude confessions obtained contrary to the Charter , the discovery mechanism engaged by the preliminary inquiry is adequate to the task. A preliminary inquiry justice is required to hear an accused’s witnesses even if evidence introduced by the Crown satisfies the test for committal. Defence counsel have a statutory right to cross-examine the Crown’s evidence and to call witnesses. Moreover, there is nothing to suggest that if justices at preliminary inquiries are given the power to exclude confessions obtained contrary to the Charter , additional cost and delay will be occasioned. A discharge at the preliminary inquiry stage that manages to avoid a jury trial saves an enormous amount of otherwise wasted time and resources. If preliminary inquiry justices do not have power to exclude evidence pursuant to s. 24(2) of the Charter , fewer discharges will result. Conversely, if preliminary inquiry justices are given the power to exclude evidence, more accused people will be discharged. If an accused is improperly discharged, the Crown can always prefer a direct indictment pursuant to s. 577 of the Code and proceed to trial regardless of the preliminary inquiry justice’s decision. The justice could also refuse to grant the remedy the accused seeks. By having the Charter question determined and rejected, an accused would be more likely to plead guilty and avoid a trial. If the preliminary inquiry justice decided to exclude evidence pursuant to the Charter , the decision would not bind the trial judge. Under the present preliminary inquiry system, where preliminary inquiry justices are not thought to have the power to grant Charter remedies, preliminary inquiries routinely engage Charter -related evidence. The preliminary inquiry justice should be permitted to rule on Charter issues. It is not supportable by logic or efficiency to permit a preliminary inquiry justice to determine the admissibility of statements for common law purposes but not for Charter purposes when it is recognized that preliminary inquiry justices are armed with all the facts. Parliament could not have intended such waste.
This Court’s obiter analysis in Mills, if binding, should be overruled to the extent that it holds that the provincial court and its members are not courts of competent jurisdiction for purposes of excluding certain evidence obtained contrary to s. 24(2) of the Charter . This change is incremental and Mills has been attenuated by subsequent decisions. The change suggested reflects a better understanding of the Charter . Guided by the substantial case law, preliminary inquiry justices are well placed to decide whether to exclude evidence pursuant to the Charter in a fair manner that corresponds to the law.
Cases Cited
By McLachlin C.J.
Applied: R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; followed: Mills v. The Queen, [1986] 1 S.C.R. 863; referred to: R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. B. (K.G.), [1993] 1 S.C.R. 740; Caccamo v. The Queen, [1976] 1 S.C.R. 786; Skogman v. The Queen, [1984] 2 S.C.R. 93; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Chew, [1968] 2 C.C.C. 127; R. v. Girimonte (1997), 121 C.C.C. (3d) 33; R. v. Richards (1997), 115 C.C.C. (3d) 377; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Patterson v. The Queen, [1970] S.C.R. 409; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Garofoli, [1990] 2 S.C.R. 1421; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Power, [1994] 1 S.C.R. 601; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38.
By Major J. (dissenting)
R. v. Pearson (1957), 117 C.C.C. 249; R. v. Ferrero (1981), 59 C.C.C. (2d) 93; R. v. Ward (1976), 31 C.C.C. (2d) 466, aff’d Ont. C.A., February 15, 1977; Mills v. The Queen, [1986] 1 S.C.R. 863, aff’g (1983), 43 O.R. (2d) 631, aff’g (1983), 40 O.R. (2d) 112, aff’g (1982), 2 C.R.R. 300; R. v. 974649 Ontario Inc., [2001] S.C.R. 575, 2001 SCC 81; United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Cook, [1998] 2 S.C.R. 597; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Grossi (1992), 133 A.R. 278; R. v. McIntosh (1999), 141 C.C.C. (3d) 97; Skogman v. The Queen, [1984] 2 S.C.R. 93; R. v. Barbeau, [1992] 2 S.C.R. 845; R. v. R. (L.) (1995), 100 C.C.C. (3d) 329; R. v. George (1991), 5 O.R. (3d) 144; R. v. Dawson (1998), 123 C.C.C. (3d) 385; R. v. Arviv (1985), 19 C.C.C. (3d) 395, leave to appeal refused, [1985] 1 S.C.R. v; R. v. Ertel (1987), 58 C.R. (3d) 252, leave to appeal refused, [1987] 2 S.C.R. vii; R. v. Seaboyer, [1991] 2 S.C.R. 577; Schwartz v. The Queen, [1977] 1 S.C.R. 673; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Chaulk, [1990] 3 S.C.R. 1303; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 10 (a), (b), 11 (a), (b), 24 .
Criminal Code, R.S.C. 1985, c. C-46, ss. 2 “justice”, 220 [repl. 1995, c. 39, s. 141], 252(1)(b) [repl. 1994, c. 44, s. 12], 255(3) [rep. & sub. c. 27 (1st Supp.), s. 36 ], 535 [idem, s. 96 ], 536, 537(1)(g), (i) [am. 1997, c. 18, s. 64], 540, 541, 541(5) [am. 1994, c. 44, s. 54], 542(1), 548(1) [rep. & sub. c. 27 (1st Supp.), s. 101 ], 577 [idem, s. 115 ].
Authors Cited
Alford, David G., et al. Some Statistics on the Preliminary Inquiry in Canada. Ottawa: Department of Justice, 1984.
Canada. Department of Justice. Consultation Paper. Do we still need preliminary inquiries? Options for changes to the Criminal Code. Ottawa: Department of Justice Canada, 1994.
Freedman, Samuel. “Admissions and Confessions”. In Roger E. Salhany and Robert J. Carter, eds., Studies in Canadian Criminal Evidence. Toronto: Butterworths, 1972, 95.
Gold, Alan D., and Jill R. Presser. “Let’s Not Do Away with the Preliminaries: A Case in Favour of Retaining the Preliminary Inquiry” (1996), 1 Can. Crim. L.R. 145.
Greenspan, Edward L., and Marc Rosenberg. “The Preliminary Inquiry”. In Vincent M. Del Buono, ed., Criminal Procedure in Canada: Studies. Toronto: Butterworths, 1982, 263.
Martin, G. Arthur. “Preliminary Hearings”. In Special Lectures of the Law Society of Upper Canada, 1955. Toronto: Richard de Boo, 1955, 1.
Martin, John C. Martin’s Annual Criminal Code 2002. Aurora, Ont.: Canada Law Book, 2002.
Ontario. Criminal Justice Review Committee. Report of the Criminal Justice Review Committee. Toronto: The Committee, 1999.
Ontario. Royal Commission Inquiry into Civil Rights. Report of the Royal Commission Inquiry into Civil Rights, vol. 2, Report No. 1. Toronto: Queen’s Printer, 1968.
Pomerant, David, and Glenn Gilmour. Working Document. A Survey of the Preliminary Inquiry in Canada. Ottawa: Department of Justice Canada, 1993.
Stuart, Don. Annotation on Mills v. R. (1986), 52 C.R. (3d) 1.
APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 177 Nfld. & P.E.I.R. 232, 26 C.R. (5th) 1, [1999] N.J. No. 210 (QL), dismissing the accused’s appeal from an order of O’Regan J. Appeal dismissed, Iacobucci, Major, Binnie and Arbour JJ. dissenting.
David C. Day, Q.C., for the appellant.
Thomas G. Mills, for the respondent.
S. R. Fainstein, Q.C., and Peter De Freitas, for the intervener the Attorney General of Canada.
Robert Kelly, for the intervener the Attorney General for Ontario.
Darrin R. Davis, for the intervener the Attorney General of Manitoba.
Alexander Budlovsky, for the intervener the Attorney General of British Columbia.
Written submissions only by James A. Bowron for the intervener the Attorney General for Alberta.
The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Bastarache and LeBel JJ. was delivered by
The Chief Justice –
I. Introduction
1 The issue in this case is whether a justice presiding at a preliminary inquiry has the power to exclude statements obtained in violation of the accused’s Charter rights in assessing whether sufficient evidence exists to warrant committing the accused to trial.
2 The appellant stands charged with three offences under the Criminal Code, R.S.C. 1985, c. C-46 , arising from a motor vehicle accident: causing death by criminal negligence (s. 220 ); failure to stop at an accident scene (s. 252(1) (b)); and impaired driving (s. 255(3) ). The judge presiding over the preliminary hearing into the charges held voir dires to determine the admissibility of statements made by the appellant to the police while he was under arrest. The appellant argued that these statements were obtained by the police in a fashion infringing his rights under ss. 7 (right to life, liberty and security of the person), 10(a) (right to be promptly informed of reasons for arrest or detention), 10(b) (right to retain and instruct counsel without delay upon arrest or detention), and 11(a) (right to be informed of specific offence) of the Canadian Charter of Rights and Freedoms .
3 After completion of the Crown’s evidence on each of the voir dires, the appellant sought a declaration that the presiding judge constituted a “court of competent jurisdiction” under s. 24(1) of the Charter and could therefore rule on whether the police, in obtaining the statements of the accused, violated his rights or freedoms and, if so, whether this evidence should be excluded pursuant to s. 24(2) . The judge refused on the ground that, sitting in his capacity as a preliminary inquiry justice, he was not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2) . The question before us is whether he erred in doing so.
4 I conclude that the preliminary inquiry justice did not err in refusing to exclude the evidence for breach of the Charter . The preliminary hearing is not a trial but simply a preliminary review to determine whether there is sufficient evidence to proceed to trial. Whether admitting evidence obtained as a result of a Charter breach would bring the administration of justice into disrepute is best determined at the time of trial, when all the relevant circumstances can be weighed by the judge, as mandated by s. 24(2) . The accused’s ability to apply for the exclusion of evidence under s. 24(2) at trial adequately safeguards his rights under the Charter .
II. Constitutional and Statutory Provisions
5 Criminal Code, R.S.C. 1985, c. C-46
535. Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part, inquire into that charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.
. . .
537. (1) A justice acting under this Part may
. . .
(g) receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them;
. . .
(i) regulate the course of the inquiry in any way that appears to him to be desirable and that is not inconsistent with this Act;
. . .
542. (1) Nothing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him.
. . .
548. (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
Canadian Charter of Rights and Freedoms
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
III. Judgments
6 In an oral decision, Power Prov. Ct. J., the judge presiding over the preliminary inquiry, dismissed the appellant’s application for a declaration that a preliminary inquiry judge or justice is a “court of competent jurisdiction” under s. 24(1) for the purpose of excluding Charter -offending evidence under s. 24(2) . In his view, the decisions of this Court in Mills v. The Queen, [1986] 1 S.C.R. 863, R. v. Smith, [1989] 2 S.C.R. 1120, and R. v. Seaboyer, [1991] 2 S.C.R. 577, compelled the conclusion that a preliminary inquiry justice is not a court of competent jurisdiction for this purpose.
7 The appellant brought an application before the Newfoundland Trial Division in the nature of certiorari and mandamus to direct the preliminary inquiry judge to conduct the inquiry under s. 24 . O’Regan J., in an oral judgment, dismissed this application on the ground that the authorities did not support it. The Court of Appeal, Green J.A. dissenting, dismissed a further appeal from this order: (1999), 177 Nfld. & P.E.I.R. 232.
8 Gushue J.A. wrote the main reasons for the majority of the Court of Appeal. He reviewed the current authorities and concluded that they supported the view that a justice on a preliminary hearing is not a court of competent jurisdiction for the purpose of excluding evidence. He noted that the current state of the law seemed incongruous, given the sections of the Criminal Code that define the authority of a justice sitting on a preliminary inquiry (at para. 18):
The justice is granted the statutory authority to inquire into the charges that are “disclosed by the evidence” (s. 535), to use his or her discretion to receive evidence tendered by the prosecutor or the accused (s. 537(1)) and, with particular reference to admissions, confessions or statements made by an accused, a prosecutor is expressly granted the right to adduce such evidence if it is “by law admissible against him” (the accused). Thus, in reaching his decision as to whether there exists sufficient evidence to require the accused to stand trial (s. 548(1)), it would appear that the justice must assess all of the admissible evidence placed before him. [Emphasis in original.]
9 Gushue J.A. noted the further anomaly that a preliminary inquiry justice can exclude statements because they are not voluntary, but cannot exclude them on the ground that they were obtained in violation of the Charter . As a result, a justice on a preliminary inquiry may be required to commit the accused for trial on statements that will be ruled inadmissible at trial, even where no case against the accused would exist without this evidence.
10 Finally, Gushue J.A. speculated that the exclusion of evidence may not even constitute a Charter remedy. Rather than granting a remedy under s. 24(2) , the justice is merely electing not to rely on the impugned evidence for the purpose of committal. Nevertheless, Gushue J.A. considered himself bound by the authority of this Court to hold that a preliminary inquiry justice has no power to exclude evidence on Charter grounds.
11 Marshall J.A. concurred with Gushue J.A. However, he disagreed with Gushue J.A.’s view that the result was anomalous. To the contrary, he considered it entirely congruent and compatible with both the Criminal Code and the Charter . In Marshall J.A.’s opinion, s. 24(2) operates to exclude evidence only after “a comprehensive vetting of ‘all the circumstances’” (para. 100). This can best be done at trial, where the judge has the fullest account of the relevant evidence. By contrast, empowering preliminary inquiry justices to make this determination “risks inculpatory evidence being ruled inadmissible on a less than full appreciation of the facts. Such happenings would be calculated to expose the justice system to disrepute, and endanger a concomitant diminution of confidence in the judiciary’s capacity to protect the public, and in the integrity of the Charter and other laws of the state” (para. 100).
12 Green J.A., dissenting, agreed with Gushue J.A. that not permitting a preliminary inquiry justice to exclude evidence on Charter grounds was anomalous and incongruous and that excluding evidence should not be viewed as the grant of a Charter remedy. Unlike Gushue J.A., however, Green J.A. did not consider this Court’s previous decisions with respect to the exclusion of inadmissible evidence by a justice at a preliminary inquiry as binding. The cases relied upon had not definitively resolved the issue and the obiter comments in these cases did not represent the fully considered opinion of the Court.
13 From a practical perspective, Green J.A. was of the view that preliminary inquiries offered sufficient context for the decision to exclude evidence for Charter breaches. While this may result in the Crown leading more evidence than it otherwise would, this disadvantage is more than offset by the importance of not subjecting an accused to the expense, inconvenience and publicity of a trial where there is insufficient admissible evidence. Moreover, he felt that the “only means of effective enforcement of the right to have Charter -offending evidence excluded for the purpose of resisting committal to trial is the exercise of the jurisdiction at the preliminary” (para. 69). Green J.A. accordingly held that the preliminary inquiry justice is a court of competent jurisdiction to exclude evidence under s. 24(2) of the Charter .
IV. Issue
14 Is a justice presiding at a preliminary inquiry a court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter to exclude evidence under s. 24(2) ?
V. Discussion
15 With the enactment of s. 24 of the Charter , Parliament provided a mechanism for enforcing the rights and freedoms guaranteed by the Charter . Section 24(1) provides that anyone whose rights and freedoms under the Charter are infringed or denied may apply to a “court of competent jurisdiction” for an appropriate and just remedy. Section 24(2) complements this general remedial provision with more specific direction in cases where evidence is obtained in violation of Charter rights. It directs courts to exclude such evidence if, “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. Since this remedy can issue only in “proceedings under subsection (1)”, it is similarly available only from a “court of competent jurisdiction”.
16 Consequently, this appeal turns on the question of whether a preliminary inquiry justice is a court of competent jurisdiction under s. 24(1) for the purpose of excluding evidence under s. 24(2) . This issue is not novel. The Court has considered the definition of “court of competent jurisdiction” on a number of occasions. It has also addressed the power of preliminary inquiry justices to grant Charter remedies – including the exclusion of evidence under s. 24(2) – in several of these decisions. I propose to consider the existing jurisprudence, and then to apply the test for identifying a court of competent jurisdiction that emerges from these decisions.
A. Prior Jurisprudence
17 The test for identifying a court of competent jurisdiction under s. 24(1) originated in Mills, supra. The issue before the Court in Mills was whether a judge or justice presiding at a preliminary inquiry was a court of competent jurisdiction for the purpose of determining whether an accused’s s. 11 (b) right to be tried within a reasonable time was infringed and, if so, to stay the proceedings as a remedy. Lamer J. (as he then was), with the agreement of the Court on this point, defined a “court of competent jurisdiction” as one that has: (1) jurisdiction over the person; (2) jurisdiction over the subject matter; and (3) jurisdiction to grant the remedy (p. 890). Applying this test, the Court unanimously held that a preliminary inquiry justice is not a court of competent jurisdiction for the purposes of granting a stay under s. 24(1) .
18 This holding sufficed to dispose of the appeal. However, the Court proceeded to consider the issue on appeal in the present case: the power of a preliminary inquiry justice to exclude evidence obtained in violation of Charter rights under s. 24(2) . The majority of the Court, per McIntyre J., held that a preliminary inquiry justice is not a court of competent jurisdiction for this purpose. McIntyre J. emphasized that the role of the preliminary inquiry justice is confined to assessing the sufficiency of the Crown’s case and consequently committing or discharging the accused. This limited screening function, in his view, did not provide a sufficient jurisdictional foundation to permit a preliminary inquiry justice to embark on Charter questions or to grant Charter remedies, including the exclusion of evidence (at pp. 954-55):
He has no jurisdiction to acquit or convict, nor to impose a penalty, nor to give a remedy. He is given no jurisdiction which would permit him to hear and determine the question of whether or not a Charter right has been infringed or denied. He is, therefore, not a court of competent jurisdiction under s. 24(1) of the Charter . It is said that he should be a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2) . In my view, no jurisdiction is given to enable him to perform this function. He can give, as I have said, no remedy. Exclusion of evidence under s. 24(2) is a remedy, its application being limited to proceedings under s. 24(1) . [Emphasis added.]
19 La Forest J., in a separate opinion, concurred with this view. He added that the preliminary inquiry is not designed to engage in the balancing of factors demanded by the s. 24(2) remedy (at pp. 970-71):
... I agree with McIntyre J. that the preliminary hearing magistrate has no jurisdiction to exclude evidence under s. 24(2) of the Charter . While this power may seem similar to the magistrate’s duty regarding admissibility of evidence, what is involved is the granting of a remedy under s. 24(2) . That remedy, it should be observed, is to be exercised “having regard to all the circumstances”. Those circumstances may again require more evidence than is presented at the preliminary hearing. This evidence can be presented at trial.
20 Three dissenting justices took the view that s. 24 did permit a preliminary inquiry justice to exclude evidence on Charter grounds.
21 In Seaboyer, supra, the Court affirmed the majority view in Mills that a preliminary inquiry judge has no power to exclude evidence on Charter grounds under s. 24(2) , again emphasizing the specialized function of the preliminary inquiry and the limits of its process (at pp. 638-39):
I see no reason to depart from the statement of McIntyre J. in Mills that the Criminal Code does not permit a preliminary inquiry judge to determine whether a Charter right has been infringed or denied. Both statutory interpretation and policy support this view. The Criminal Code restricts the task of the preliminary inquiry judge to determining if there is a sufficient case to warrant prosecution. While evidentiary rulings may be made in the course of discharging this function, they have no effect on the outcome of the trial or the accused’s guilt or innocence. To discharge the function of determining if there is sufficient evidence to warrant committal it is sufficient to accept the rules of evidence as they stand; the rights of the accused do not require more at this stage. As for policy, there is much to be said for leaving Charter challenges in so far as possible to the trial judge. The trial judge is likely to have a more complete picture of the evidence and its significance in the context of the case and is thus better situated to decide such questions. Moreover, permitting constitutional challenges before the preliminary court judge is likely, as in this case, to produce interlocutory appeals on narrow issues which may take years to complete, during which time the trial judge is delayed. All these reasons suggest constitutional questions are best left to the trial judge. [Emphasis added.]
22 Mills and Seaboyer thus rejected the argument that a preliminary inquiry justice is a court of competent jurisdiction under s. 24(1) for the purposes of excluding evidence under s. 24(2) . This conclusion was, strictly speaking, obiter in both cases; nevertheless it stands as an authoritative legal statement of the existing general rule. This, however, does not mean that the law is inevitably frozen. New cases may bring considerations to light which favour revising the rule or recognizing exceptions to it. Underlying principles or rules may have evolved, suggesting the rule should be adjusted. Uncertainties may have arisen or the rule become unduly technical. Any or all of these considerations may support reconsideration of an established general rule: see R. v. Bernard, [1988] 2 S.C.R. 833, per Dickson C.J. (in dissent but not on this point); R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. B. (K.G.), [1993] 1 S.C.R. 740.
23 It is in this spirit that I approach the appellant’s submission that the Court should revisit the general rule that a preliminary inquiry justice is not a “court of competent jurisdiction” for the purpose of excluding evidence under s. 24(2) of the Charter . This case brings before the Court a question hitherto not specifically explored – whether the general power of a preliminary inquiry justice to exclude confessions extends to exclusion on Charter grounds. It comes over a decade after Mills, during which time the test for “court of competent jurisdiction” under s. 24(2) has evolved into what is described in the companion case, R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 (“Dunedin”), as the functional and structural approach. And it concerns a submission that strict application of the Mills rule to preliminary inquiry justices results in technical distinctions between what evidence the justice can and cannot exclude. Against this background, I turn to the issue before the Court.
B. Application of the Functional and Structural Test
24 The issue before the Court is whether a preliminary inquiry justice is a “court of competent jurisdiction” under s. 24(2) for the purpose of excluding evidence, in particular confessions, on grounds that they were obtained in breach of the Charter and that their admission would bring the administration of justice into disrepute.
25 In Dunedin, the Court elaborated on the “functional and structural” approach to identifying a court of competent jurisdiction. For the purposes of this appeal, it suffices to set out the key elements of this approach.
26 The starting point is the tripartite Mills test. A “court of competent jurisdiction” is one that possesses jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction to grant the remedy. Dunedin provides guidance on the third and final element of this test. It clarifies that whether a court or tribunal possesses the power to grant the remedy sought is first and foremost a matter of discerning legislative intent. The question in all cases is whether Parliament or the legislature intended to empower the court or tribunal to make rulings on Charter violations that arise incidentally to their proceedings, and to grant the remedy sought as a remedy for such violations.
27 Absent express empowerment, this determination requires consideration of the function performed by the court or tribunal and the structure, powers and processes conferred on it by Parliament or the legislature. This approach rests on the theory that where Parliament or a legislature confers on a court or tribunal a function that engages Charter issues, and equips it with procedures and processes capable of fairly and justly resolving these incidental Charter issues, then it must be presumed that the legislature intended the court or tribunal to exercise this power. Distilled to a single statement, the test of power to grant the remedy sought can be stated as follows: is the court or tribunal suited to grant the remedy sought under s. 24 in light of its function and structure?
28 In the present appeal, the jurisdiction of the preliminary inquiry justice over the parties and the subject matter is uncontested. The sole issue in dispute is whether he also had the necessary power to grant the remedy sought (i.e. the exclusion of evidence obtained as a result of a Charter breach). The powers of a preliminary inquiry justice are entirely statutory, and therefore the power to grant the remedy sought must derive expressly or impliedly from its enabling legislation, namely Part XVIII of the Criminal Code . Parliament did not expressly empower preliminary inquiry justices under the Code to exclude evidence obtained in violation of the Charter . The question is whether Parliament conferred this remedial power by implication.
29 It is true that in this case, as in Dunedin, the relevant legislation predates the Charter . Nonetheless, Parliament’s intention must be assessed in light of the new regime of rights and remedies ushered in with the Charter ’s enactment. It is only in this manner that the purpose of the Charter – as well as the mandates of the courts and tribunals in existence at its inception – can be meaningfully realized: Dunedin, at paras. 37-43. The question remains whether the function and structure that Parliament bestowed upon the preliminary inquiry, and its silence on this issue following the Charter ’s enactment, lead to the inference that Parliament intended the presiding justice to exclude evidence on Charter grounds.
30 The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial: Criminal Code, s. 548(1) ; Caccamo v. The Queen, [1976] 1 S.C.R. 786. The preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. Its paramount purpose is to “protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process”: Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 105. The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring the accused to stand trial. (The trial judge cannot, with due respect to the contrary suggestion of Gushue and Green JJ.A., simply “choose not to” rely on offered evidence without first making a positive ruling against its admissibility.)
31 Over time, the preliminary inquiry has assumed an ancillary role as a discovery mechanism, providing the accused with an early opportunity to discover the Crown’s case against him or her: Skogman, supra, at pp. 105-6. Nonetheless, this discovery element remains incidental to the central mandate of the preliminary inquiry as clearly prescribed by the Criminal Code ; that is, the determination of whether “there is sufficient evidence to put the accused on trial” (s. 548(1) (a)).
32 In support of this function, Parliament equipped the preliminary inquiry with a structure that shares broad similarities with that of the trial court. It is conducted like a trial with regard to the presentation of evidence. Further, the preliminary inquiry is a court of record, and evidence is taken under oath in the presence of the accused. The accused has the right to cross-examine witnesses and respond to the Crown’s case. The preliminary inquiry justice, in assessing the sufficiency of the Crown’s case, may rule on the admissibility of evidence. Section 542(1) of the Code expressly includes statements made by the accused in the evidence that the Crown may call at a preliminary inquiry. The traditional rules