Background
Agénor Archambault and Gilles Grenier were each charged with historical sexual offences against a child. At the time those offences were committed, the applicable maximum sentence was 10 years’ imprisonment. Parliament subsequently increased the maximum to 14 years, and charges were laid after that increase took effect. Both accused first appeared in the Court of Québec in the summer of 2019, where they reserved their right to elect their mode of trial — a standard Quebec practice permitting accused persons to examine disclosed evidence before committing to a trial forum. In 2020, each requested a preliminary inquiry.
Their requests collided with a significant legislative change. On September 19, 2019, an amendment to section 535 of the Criminal Code came into force restricting the availability of preliminary inquiries to accused persons charged with offences carrying a maximum sentence of 14 years or more. The Crown argued the amendment barred preliminary inquiries for both accused. The Court of Québec agreed, and the Superior Court upheld that conclusion, though for differing reasons. The Quebec Court of Appeal reversed, holding that A and G had vested rights to preliminary inquiries and remitting the files for those inquiries to proceed.
The Crown appealed to the Supreme Court of Canada, raising two questions: first, whether the 2019 amendment applied at all to A and G; and second, if the new section 535 did apply, whether an accused must personally face a maximum of 14 years (as opposed to the offence simply carrying that maximum today) to qualify for a preliminary inquiry.
The Court’s Holding
The Supreme Court dismissed the appeal 5–4, though the majority fractured across three sets of reasons. Côté and Rowe JJ., writing jointly, held that the right to a preliminary inquiry vests at the time charges are laid. Because charges against both accused were laid before September 19, 2019, the former section 535 continued to govern their proceedings. Côté and Rowe JJ. also addressed the interpretive question, concluding that under the new section 535 a preliminary inquiry is available whenever the offence — judged by its current maximum — is punishable by 14 years or more, regardless of whether the accused personally faces that maximum due to the benefit of the lesser punishment.
Kasirer and Jamal JJ. concurred in dismissing the appeal on narrower grounds, accepting that the right vests when an accused makes a request for a preliminary inquiry, but holding that in Quebec — where courts routinely authorize accused persons to reserve their election — the act of reserving the election with judicial authorization itself satisfies the conditions for vesting. Because the Court of Québec had authorized A and G to reserve their elections before the amendment came into force, their rights had vested and the old section 535 applied. Martin J. wrote separately to argue that the date of the alleged offence should govern: any accused whose offence pre-dated September 19, 2019, and who would have been eligible for a preliminary inquiry under the former law, retains that eligibility today.
The four dissenters (Wagner C.J. and Karakatsanis, O’Bonsawin and Moreau JJ.) would have allowed the appeal. They reasoned that the right to a preliminary inquiry vests only when the accused actually makes a formal request — a step neither A nor G took before the amendment came into force. The dissent also concluded that under the new section 535, an accused must personally be liable to a maximum of 14 years’ imprisonment, not merely charged with an offence for which that maximum now exists.
Key Takeaways
- The 2019 amendment to section 535 of the Criminal Code restricting preliminary inquiries to the most serious offences does not automatically apply to accused persons whose cases were already in the system before September 19, 2019 — but the precise vesting point that triggers the old law’s protection divided the Court three ways (date of offence, date charges are laid, or date the election is reserved).
- The elimination of the preliminary inquiry for certain categories of offences is not purely procedural: it affects a substantive legal interest (the possibility of discharge at the close of the inquiry), and therefore the presumption against retroactive interference with vested rights is engaged.
- The majority of the Court rejected the Crown’s narrower reading of the new section 535; at least five justices agreed that the provision’s reference to an offence “punishable by 14 years or more” focuses on the objective seriousness of the offence, not solely on the maximum sentence the individual accused personally faces.
- Quebec’s regional practice of judicially authorizing accused persons to reserve their election played a decisive role in the concurring reasons of Kasirer and Jamal JJ., illustrating that legitimate provincial variation in criminal procedure can influence the analysis of vested rights.
Why It Matters
This decision resolves a live question affecting a significant backlog of pre-2019 cases — particularly sexual offence prosecutions involving historical conduct — where accused persons sought preliminary inquiries after Parliament had narrowed access to them. Defence counsel and prosecutors across Canada now have guidance, however fractured, on which accused retain the right to a preliminary inquiry: at minimum, anyone who was charged before September 19, 2019, and in most views anyone whose alleged offence pre-dates the amendment, is not subject to the new restriction.
The case also sets important markers for how courts should analyze the temporal application of Criminal Code amendments more broadly. The majority’s collective insistence that the preliminary inquiry affects substantive rights — and that the presumption against retroactivity therefore applies — reinforces the principle that procedural reforms with real consequences for accused liberty cannot simply be applied across the board to pending cases. Future legislative reforms to criminal procedure will need to include clear transitional provisions to avoid similar uncertainty.