COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Rouleau J.A. and Maranger J. (ad hoc)
BETWEEN
His Majesty the King
Respondent
and
George Diakoloukas
Appellant
Anil K. Kapoor and John C. Ball, for the appellant
Brent Kettles, David Friesen and Michael S. Dunn, for the respondent
Heard: October 22-23, 2025
On appeal from the convictions entered by Justice Tory Colvin of the Ontario Court of Justice, on January 3, 2023.
I. Overview
1This is an appeal from conviction on one count of possession of child sexual abuse and exploitation material (“CSAEM”).2
2During the execution of a search warrant at the appellant’s home, where he lived with his parents, two cell phones were seized. Those phones, and a Dropbox account in the appellant’s possession, were found to contain over 6,000 unique, accessible images of CSAEM.
3The trial was held along with a blended voir dire dealing with claims under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. The trial judge rejected each of the Charter claims and found the appellant guilty.
4In his appeal from conviction, the appellant argues that the trial judge erred by:
(a) failing to set aside the search warrant on the basis that there were insufficient grounds to justify its issuance;
(b) failing to find that the police breached the appellant’s s. 8 Charter rights by seizing a phone from the front porch area of the home where the warrant was executed; and
(c) failing to find that the appellant’s s. 10(b) Charter rights were breached when the police detained and questioned him during the execution of the search warrant without advising him of his right to counsel.
5As I will explain, none of these grounds of appeal can succeed.
6The appellant also argues that his ss. 7, 8 and 9 Charter rights were breached after he was sentenced. With some qualifications, the Crown agrees. The breaches arose when the appellant was transported from the Brampton courthouse, after he was sentenced, to Maplehurst Correctional Complex, where he was strip searched and detained for close to two hours. This happened even though this court had already issued an order releasing the appellant on bail pending appeal. Given that the respondent concedes the breaches, the central question on appeal is one of remedy. The appellant asks for a stay of his conviction, whereas the Crown says that a declaration will suffice.
7The same argument was advanced in two other appeals that were heard at the same time as this one: R. v. McKenzie, 2026 ONCA 411, and R. v. Z.C., 2026 ONCA 412. Counsel for the three appellants took a common position on the issue, all seeking a stay of proceedings. They divided the arguments among themselves.
8In these reasons, I will first address the grounds that are individual to this appellant. I will then address the arguments made in common by all three appellants related to the appropriate remedy for the post-sentencing Charter claims.
II. Factual background
A. Obtaining the search warrant
9Authorities in New Zealand became aware of a web address providing access to many hundreds of files of CSAEM, which were stored and made available through a cloud storage company named Mega. Mega cooperated with the authorities and conducted traces to identify those users who possessed CSAEM files from the subject web address. The subscriber information was provided to the New Zealand authorities who, in turn, sorted the information by country. The Canadian subscriber information was then provided to the Royal Canadian Mounted Police, who in turn provided the information to local police agencies.
10The investigation leading to the search warrant at the heart of this appeal began when a member of the Internet Child Exploitation Unit of the Peel Regional Police received the subscriber information. That officer prepared an Information to Obtain a search warrant (“ITO”). I will refer to this officer as the “affiant”.
11In the ITO, the affiant explained that Mega is a cloud storage computing company offering user-controlled, end-to-end encryption. The affiant further explained that Mega conducted traces to try to determine which users had accessed and imported files from the web address to their own accounts, focussing on two folders contained within that link. The traces revealed the Internet Protocol (“IP”) addresses for those who imported all or some of the files associated with those two folders. Mega was able to provide the authorities with the subscriber information, including IP addresses associated with accounts possessing at least one known CSAEM file.
12The user account that formed the basis of the ITO in this case was registered to the email address snkeys78@yahoo.com. The Mega trace showed that the user obtained a CSAEM video that contained an over three-minute video of a one-year-old female baby being sexually tortured. The trace revealed that the movie had been transferred to the user’s Mega account at a specific point in time. A later trace showed that the movie no longer existed in the user’s account.
13The affiant obtained a production order for the subscriber information of the Internet account associated with snkeys78@yahoo.com. He learned that it belonged to “K Diakoloukas” at the residential address that was later searched. The appellant’s father’s first initial is K. It was ultimately determined that the 42-year-old appellant, George Diakoloukas, lived at that address with his parents. Although the police were unable to determine which of the three residents used the Mega account, they discovered a police report from a few years prior that linked the appellant to an upload of CSAEM with a different email address: duraboy78@gmail.com.
14A warrant was obtained to search the house where the appellant and his parents resided for, among other things, computers capable of accessing the Internet and cell phones, as well as any data storage devices.
B. Execution of the search warrant and arrest
15When the police approached the home with the search warrant, the appellant was standing on the front porch smoking a cigarette and looking at a phone in his hand. A police officer advised the appellant of the search warrant. The appellant then put the phone on a table on the porch. It was seized by one of the officers, whom I will refer to as the “seizing officer”. A separate search warrant was later obtained to search the contents of that phone.
16The officer in charge of the investigation knocked on the front door of the residence. The appellant’s mother answered the door and was informed that the police had a search warrant. The officer in charge asked if the mother and father, who was also present, could sit somewhere so that the officer could explain what was happening. The parents then sat in the kitchen with the officer in charge. Without touching him, the police escorted the appellant to the kitchen so that he too could hear what was happening. The appellant and his parents were advised that the police had a search warrant to investigate CSAEM. They were told that they were not obliged to say anything, but if they did say something, it may be given in evidence. They were provided with a copy of the search warrant and told that they were not under arrest and were free to move about the house or leave the house if they wished to. They were also told that they could contact a lawyer if they wished to. The police offered to give them the toll-free number for legal aid counsel. The three indicated that they understood.
17Shortly after the search commenced, an officer found another phone in the basement and brought it to the kitchen. The officer in charge asked the family who owned the phone and reminded them that they were not required to answer. The appellant said it was an old phone of his. The officer then asked if he was willing to provide the passcode for it. The appellant’s mother told the appellant to provide it. The officer in charge reminded him that it was a voluntary choice he would be exercising, and he did not have to provide the passcode. The appellant then gave the code to the police who opened the phone and briefly searched it. An officer found a video that he believed to be CSAEM. He showed that video to the officer in charge, who agreed it was CSAEM.
18While the police were looking into the phone, the family decided to call a lawyer from the kitchen where they were still seated. An officer told them that the kitchen was not private as there were police around and that she would get the officer in charge to explain the situation to the lawyer. The officer in charge then spoke to the lawyer and told him that while no one had yet been arrested, if grounds were developed to do so, an arrest would be made. The officer in charge then went to speak with the officer who had been looking into the phone.
19The two officers went through the phone together and the officer in charge was again shown the CSAEM video that had been discovered on the phone. The phone’s Google Photos application was registered under the appellant’s name and the Yahoo account was listed as snkeys78@yahoo.com, the same email address that was connected to the traced Mega account. Accordingly, the officer in charge arrested the appellant for possession of CSAEM. The appellant was then cautioned and provided with his right to counsel. Once at the police station, he spoke to his lawyer.
20Ultimately, the phone seized from the porch was found to contain almost 2,500 unique, accessible images of CSAEM. The phone seized from the basement was found to contain over 1,000 such images. A Dropbox account contained almost 2,500 unique, accessible CSAEM images.
C. The trial judge’s ruling
21The appellant argued that there were insufficient grounds to believe that he was in possession of CSAEM and, therefore, the search warrant should not have issued. The trial judge rejected that argument. He carefully reviewed the grounds in the ITO and concluded that they were sufficient to believe that a search of electronic devices found in the home would result in the discovery of evidence of CSAEM possession.
22The appellant also argued that the police breached his s. 8 Charter rights when, upon their arrival, they seized the cell phone he was holding while standing on the porch. The officer who approached the appellant on the porch testified that he did not “think the warrant would cover the seizure and examination of the device, because it wasn’t within the four walls of the address.” Therefore, he explained that he seized the phone pursuant to the warrantless plain view seizure power, as statutorily embedded in s. 489(2) of the Criminal Code, R.S.C. 1985, c. C-46. That provision authorizes a peace officer, who is lawfully present in a place, to seize something that the officer has reasonable grounds to believe will afford evidence of a crime. The trial judge accepted that the lawful authority to seize the phone on the porch came from s. 489(2) of the Criminal Code.
23Finally, the appellant argued that he was detained from the moment that he was approached by the officer while standing on the porch. Accordingly, says the appellant, he should have been given his s. 10(b) Charter rights to counsel.
24The trial judge concluded otherwise, finding that the appellant and his family were not detained. The trial judge also found that the appellant volunteered that the phone from the basement was his and that it was his mother who encouraged him to provide the passcode. There was no breach of ss. 8, 9 or 10(b) of the Charter.
III. Analysis
25The appellant raises three grounds of appeal. He maintains that the trial judge erred in:
(a) failing to set aside the search warrant on the basis that there were insufficient grounds to justify its issuance;
(b) failing to find that the police breached his s. 8 Charter rights by seizing the phone from the front porch area of the home; and
(c) failing to find that his s. 10(b) Charter rights were breached when the police detained and questioned him during the execution of the search warrant without advising him of his right to counsel.
26The appellant argues that if any of these grounds succeed, this court should exclude the evidence found on the phones seized from the porch and the basement pursuant to s. 24(2) of the Charter. The appellant argues that this should lead to an acquittal and, if not, a new trial.
27If these grounds fail, the appellant maintains that this court should set aside his conviction and enter a stay of proceedings because of the failures around abiding by this court’s bail pending appeal release order. The appellants in Z.C. and McKenzie also raised this argument in their own appeals.
28I will first address the grounds specific to this appeal and explain why they cannot succeed. I will then move on to address the issue that crosses all three appeals.
A. Issues specific to this appeal
1. There were sufficient grounds to justify the issuance of the search warrant
29The appellant submits that the core allegation in the ITO was that he accessed CSAEM once, on January 5, 2019. That was over 20 months before the search warrant issued, and the file was no longer stored in his Mega account when the ITO was sworn.
30The appellant maintains that any suggestion that a person who accesses CSAEM on one occasion is likely to always possess CSAEM on their devices is inappropriate “profiling”. The appellant leans on R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 78-81, to suggest that it is wrong to make unsubstantiated assumptions about the propensities of those suspected of CSAEM-related offences. This case is said to be like Morelli, in the sense that the ITO in Morelli did not provide a basis to believe that all CSAEM offenders will hoard and store CSAEM. Rather, there must be specific evidence to substantiate that claim. In this case, the appellant says there is no such evidence.
31The appellant argues that since the ITO simply showed that he had accessed the CSAEM 20 months earlier, there was no evidence that the CSAEM would be found at the location searched and, therefore, the ITO was “wholly inadequate”.
32I do not accept the appellant’s position. There is no error revealed in the trial judge’s reasoning.
33The trial judge was not reviewing the ITO afresh and we are not doing so on appeal. The scope of the trial judge’s review was narrow, as is ours. The trial judge had to proceed on the assumption that the search warrant was valid. The question for the trial judge was whether the ITO contained sufficiently reliable information, that might reasonably be believed, upon which the authorizing judge could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54. Like the authorizing judge, the trial judge was permitted to draw reasonable inferences from a review of the ITO as a whole.
34On appeal, we owe deference to the trial judge’s findings. In the absence of an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court should not interfere. None of these categories of review have been made out in this case.
35I do not accept the appellant’s suggestion that the ITO discloses mere speculation about stale evidence of accessing CSAEM, rather than evidence about possessing CSAEM. This argument really amounts to an attack on the trial judge’s findings of fact.
36The trial judge was alive to the fact that merely accessing a CSAEM image on a website will not necessarily constitute “possession” of that image. Indeed, he specifically adverted to Morelli, at para. 31, which distinguishes accessing from possession. With that in mind, the trial judge found that the ITO in this case demonstrated that the perpetrator stored, and not just accessed, the CSAEM file in the Mega account and therefore had “control” of the file.
37Respectfully, the appellant’s argument is not supported by Morelli, which arose from a different factual scenario. The difficulty in Morelli was that the search warrant issued on the basis of two web addresses found in the “Favourites” menu of an Internet browser. In Morelli, Fish J. found at para. 86 that the mere fact of “suspiciously labelled links in the ‘Favourites’ menu [did] not suffice to characterize a person as [a] habitual [CSAEM] offender of the type that seeks out and hoards illegal images”.
38This case is different. The principal allegation here was not that “an unknown computer user” at the residential address named had possibly accessed CSAEM at a prior point in time. Rather, it was that a computer user at that address had knowingly transferred CSAEM to store it in their own encrypted cloud computing account. The affiant explained why there were reasonable grounds to believe that the file was not mistakenly imported and the individual who transferred it knew it was CSAEM. That belief rested on the fact that, once inside the web address containing the CSAEM, the user had to navigate folders and open them to determine what to transfer. As the ITO demonstrated, many of those folders contained highly descriptive names that could not be mistaken for anything other than CSAEM. I will not recount those names here.
39The police obtained a production order for the IP address used by the “snkeys” Mega account to access the CSAEM. It was discovered that the IP address was registered to the appellant’s father. The police then focussed in on the residence where the father lived with his wife (the appellant’s mother) and the appellant. As the police did not know which of the three was the target of the investigation into possession of CSAEM, the affiant was careful to provide information in relation to all three. As for the appellant, the ITO notes that he had no criminal record, but was once named in a police report as having uploaded CSAEM to a Dropbox account “with email address DURABOY78@GMAIL.COM”.
40The ITO then meticulously recounted information on each of the three adults living at the residence. The affiant noted that once inside the residence, the police would attempt to “link someone to the Mega account in question” and find an association to the “snkeys” email address. He also noted his reasonable grounds to believe that the search would result in evidence respecting the possession of CSAEM.
41The affiant explained why he reasonably believed that whoever transferred the CSAEM file to the “snkeys” Mega account still had it in their possession, along with other similar material, even though the traced file was no longer stored in the account by the time the ITO was sworn. The affiant’s reasonable grounds to believe were based partly on his experience as an Internet Child Exploitation investigator. He reasoned that CSAEM may be hard to come by on the Internet because it is illegal and, therefore, the Mega account user likely saved the material on a data storage device “kept safely in their residence with other similar material”. Furthermore, even if the account holder subsequently made efforts to delete the material after storing it on a hard drive or other device, equal efforts could be made to successfully recover the deleted files.
42I see no error in the trial judge’s conclusion that the search warrant could have issued. It could have.
43Based upon his experience in investigating these matters, the affiant said that collectors of CSAEM often save copies of these files onto their own devices, which they keep in their residence. That evidence was rooted in the officer’s professional experience and provided support for his belief that devices containing CSAEM would likely be found at the residence: R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 115.
44Respectfully, I disagree with the appellant’s submission that it was not open to the trial judge to rely upon the affiant’s first-hand experience and opinions about the practices of individuals who possess CSAEM. Although the appellant challenges the extent of the affiant’s experience, in my view, this argument must fail on the face of the record. The officer was a member of the Internet Child Exploitation Unit and had extensive training in digital technology and file sharing. And he had prepared between 15 and 20 ITOs in CSAEM cases prior to this one. In light of his prior work, I do not share the characterization of the affiant as “inexperienced.”
45And the officer’s experience in these types of investigations did not stand alone. As the ITO explained, the purpose of the search was to “attempt to link someone to the Mega account” and “find an association to the suspect email address”. The affiant then set out how computers and other devices used to access the Mega account or the suspect email address would store evidence of that access. In the circumstances, such data would provide evidence that the user of the device had control over the Mega account and, therefore, had possessed the CSAEM that was once stored in that account.
46Of course, there was also evidence that the appellant, who lived at the residence, was linked to a CSAEM upload on a prior occasion. This was entirely appropriate information to consider when developing reasonable grounds to believe that a search of devices in the home would afford evidence of the crime.
47As for the appellant’s argument that too much time had passed to permit for reasonable grounds, I do not agree. The question the issuing justice and trial judge had to answer was whether there was evidence of possession to be found at the location searched. I agree with the respondent that this would include evidence of control over the Mega account which had stored the traced CSAEM file.
48In sum, the issue is whether the ITO provided reasonable grounds to believe, credibly based probability, that evidence of CSAEM possession would be found in the residence at the time that the warrant was executed. There were more than sufficient grounds to arrive at that conclusion.
2. The seizure of the phone from the porch was s. 8 compliant
49Recall that the appellant was standing on the porch with a phone in his hand when the police approached with the search warrant. The appellant put the phone down on a table and it was seized by an officer.
50Prior to trial, the seizing officer produced a will-say statement clarifying what he understood to be his power to seize the phone. He relied upon the plain view seizure powers in ss. 489(2)(b) and (c) of the Criminal Code. Those provisions allow a peace officer who is “lawfully present in a place pursuant to a warrant or otherwise in the execution of duties” to seize anything believed on reasonable grounds to, among other things, “afford evidence in respect of an offence against this or any other Act of Parliament.”
51The appellant maintains that the seizing officer had no objective basis to believe that the phone he was holding while standing on the porch would yield any evidence about the commission of any offence.
52This argument cannot succeed.
53The seizing officer’s evidence was clear and, most importantly, accepted by the trial judge. As the officer approached the appellant, he knew the phone was relevant to the search and was satisfied he had reasonable grounds to seize it pursuant to s. 489(2). As he explained, had the phone just been “two feet on the other side of that wall”, it could have been seized pursuant to the search warrant. He was right. Assuming, without deciding, that the phone on the porch could not have been seized pursuant to the warrant, this was a demonstrably justified plain view seizure.
54Although the appellant is critical of the fact that the seizing officer did not make note of his use of s. 489(2) when seizing the phone, nothing turns on this point. The evidence clearly supports the fact that this was a lawful, constitutionally compliant seizure.
55I see no error in the trial judge’s approach to this issue.
3. The appellant was not detained
56The appellant contends that he was psychologically detained from the moment the police approached him on the porch. Accordingly, he maintains that he should have been immediately provided with his right to counsel.
57Although the appellant accepts that he was not physically detained, he contends that the circumstances surrounding the search meant that he was psychologically detained. As he puts it, it is “incompatible with human experience” that a person would feel free to move around a home or leave a home when there are multiple armed officers searching it. On top of that, the appellant points out that the search took place after 6:00 p.m. in October 2020, during the COVID-19 pandemic. Therefore, it would have been dark and cold outside and there would have been nowhere for the appellant to go had he wanted to leave the house. The appellant argues that he was psychologically detained and therefore should have been afforded his right to counsel. He leans on two decisions from this court to support his position: R. v. Scopel-Cessel, 2022 ONCA 316, 162 O.R. (3d) 81; R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265.
58When the factual context is properly understood, I see no error in the trial judge’s conclusion that the appellant was not detained.
a. Psychological detention
59Not every encounter with the police gives rise to a detention: R. v. Suberu, 2009 SCC 33, [2009] S.C.R. 460, at para. 3. Rather, a detention within the meaning of s. 9 of the Charter occurs where the police suspend “an individual’s liberty interest by virtue of a significant physical or psychological restraint”: Suberu, at para. 21.
60When it comes to psychological detention, the inquiry is an objective one, asking how a reasonable person in the accused’s circumstances would perceive the police conduct: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 30-31, 44. There are three factors to be considered and balanced, as summarized in R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at para. 22:
(1) The circumstances as they would be perceived by the individual;
(2) The police conduct in question; and
(3) Where relevant, the characteristics or circumstances of the individual.
61The standard of review is one of correctness because whether a detention exists is a question of law: Grant, at para. 43; Lafrance, at para. 23; and R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 23. Although the trial judge’s findings of fact are owed deference, the analysis and conclusion arising from those facts are subject to a standard of correctness.
b. A reasonable person would not perceive they were psychologically detained
62As is clear from the ITO and the officers’ evidence in this case, the appellant was not named as the subject of the search. Instead, the ITO named a “person or persons unknown” at the residential address.
63Although the appellant was directed from the porch to the kitchen where his parents were seated, he was not physically touched by the police. He was directed to the kitchen so that the officer in charge could explain the search and provide the appellant and his parents with a copy of the warrant. It is entirely appropriate for the police, when executing a search warrant, to gather the occupants of the home in one place to explain what is happening, to ensure officer safety, to protect the evidence and to maintain the integrity of the search scene: McSweeney, at para. 38.
64The trial judge accepted as a fact that the appellant and his parents were told by the officer in charge that the police were investigating an offence involving possession of CSAEM. They were each cautioned individually. The police told them what was being investigated and that they were not obliged to say anything unless they wished to, but that whatever they did say could be used in evidence. They were each asked if they understood and they each indicated that they did.
65They were each informed that they were not under arrest. And they were specifically told that no one was being detained. Indeed, as accepted by the trial judge, the officer in charge, who was communicating with the family, told them that “they were free to move about the house and if they wanted to leave the residence they could.” Notably, each had a motor vehicle they could have driven away in. The officer in charge went “further and informed [them] that if they wished to call a lawyer they could, whether it was a specific lawyer or even Legal Aid”. They were told about the toll-free number. All three advised the officer that they “understood” and they “declined a lawyer” at that moment.
66When an officer came up from the basement with the second cell phone, the officer in charge testified that he asked “everybody at the kitchen table who the phone might belong to.” Before they answered, he informed them that “it’s voluntary and that they didn’t have to provide [him] with an answer.” When the appellant said it was his phone, the officer asked if he would be prepared to provide the passcode. His mother encouraged him to do so, at which point the officer again reminded him that this was “voluntary” and that he did not have to provide it.
67The officer in charge was never challenged on his suggestion that he was speaking in a cordial tone of voice. When asked what he would have done had the occupants wanted to leave the residence, the officer answered: “[l]et them leave.” If he wanted to contact one of them in the future, he was confident that would not present a problem.
68One hour into the search, the officer in charge left the kitchen to look at the phone seized from the basement. He viewed a video on the phone, which he determined to be CSAEM. While he was away from the kitchen, the family called a lawyer but were interrupted by another officer who told them the kitchen was not a private space. The officer in charge was summoned to the kitchen to speak with the lawyer. He told the lawyer that no one had yet been arrested but that the appellant would be arrested “should something be discovered, which will provide reasonable grounds”. The officer in charge then returned to ascertain how the search of the phone seized from the basement was going. Shortly after, the police found a Google account in the name of “George Diakoloukas” on the phone, with an email address of duraboy78@gmail.com. On this basis, the officer in charge formed the grounds to arrest the appellant for possession of CSAEM.
69The appellant and his parents did not testify at the voir dire.
70While the appellant maintains that this court’s decisions in Scopel-Cessel and McSweeney, both cases where psychological detentions were found, are similar to this one, I disagree. The trial judge distinguished those cases, and they are indeed distinguishable.
71In Scopel-Cessel, there was a search warrant executed at the accused’s home at 6:02 a.m. While the accused was told that he was not detained, he was not told that he was free to leave. And it was “unrealistic” for him to do so “in the particular circumstances of [that] case” because he was in his pyjamas at 6:00 a.m. on a cold January morning: at para. 45. While the search warrant was being executed at his home, he and his wife were in the kitchen. He had to ask the police if it was alright to make a coffee. In these circumstances, this court concluded that the appellant was psychologically detained, which meant that he should have been provided with his right to counsel pursuant to s. 10(b) of the Charter.
72In McSweeney, there was a search warrant executed at 6:03 a.m., when the accused was in the shower and his children were still in bed. The accused was singled out for a “focussed investigation” and asked targeted, accusatory and incriminating questions while segregated “under guard” in a room away from his family and with no access to a telephone. The questions would have caused any “reasonable person in the position of the appellant to conclude that they were a suspect, perhaps the prime suspect, in a police investigation into [CSAEM] in their own home”: at para. 45. Mr. McSweeney’s wife had to ask permission to use the phone in the kitchen and permission to get the children ready for school, all of which spoke to the “perception that she was not free to do so without permission”: at para. 46. In all of these circumstances, Mr. McSweeney was found to be psychologically detained.
73It is easy to see how in both Scopel-Cessel and McSweeney, after applying the objective test, this court arrived at the conclusion that the appellants were psychologically detained and, therefore, that their s. 10(b) Charter rights had been triggered and infringed. This case is different.
74In this case, the home occupants were specifically told that they were free to leave after the officer in charge imparted the initial information. As the trial judge found, the initial time in the kitchen was acceptable, before the officer in charge “cautioned” the occupants and told them that they were “not detained”, “could speak to their lawyer”, and were free to leave. They each confirmed that they understood what they had been told. It was after 6:00 p.m. No one was in their pyjamas. Each had a motor vehicle that they could have left in.
75I see no error in the trial judge’s conclusion that, in all of these circumstances, the 42-year-old appellant was not psychologically detained. Nor do I see error in his conclusion that the appellant volunteered the information about his phone. The appellant was told what the police were searching for. He was told he could leave. He was told he did not have to answer any questions. He was told that anything he said, if he chose to say anything, could be used in evidence against him. When asked about the passcode for the phone, he was again reminded that he was not obliged to answer.
76It is against that backdrop that the trial judge found that the appellant was not detained. And it is against that backdrop that the trial judge found that after being reminded that he need say nothing, the appellant “volunteered the [phone] from the basement was his” and gave the passcode “[a]t the behest of his mother”.
77Undoubtedly, in retrospect, the appellant regrets having spoken to the police, but regret does not make for a Charter breach.
78I see no error in the trial judge’s finding that the appellant was not detained and, therefore, his s. 10(b) Charter rights had not been triggered.
B. Post-sentence Charter issues crossing all three appeals
1. Overview
79As noted, this appeal was heard alongside two others that raise the same post-sentence Charter issues: R. v. Z.C. and R. v. McKenzie. The appellant, Z.C. and Mr. McKenzie were each transported from the Brampton courthouse, where they were sentenced, to Maplehurst Correctional Complex, even though this court had already issued release orders. All that remained to be done before release was to have them sign the order. At Maplehurst, the appellant and Z.C. and Mr. McKenzie were strip searched.
80Although the appellant maintains that his rights under ss. 7, 8 and 9 of the Charter were infringed, the thrust of his constitutional argument rests in ss. 8 and 9. He contends that the failure to release him from the Brampton courthouse resulted in an arbitrary detention contrary to s. 9 of the Charter. He also argues that the strip search at Maplehurst should have never happened and was conducted in an unreasonable manner, giving rise to a breach of s. 8 of the Charter.
81The respondent acknowledges the ss. 8 and 9 Charter breaches, although it takes issue with the appellant’s characterization of the s. 8 breach. Accordingly, the central question is one of remedy. The appellant argues that the appropriate remedy is to stay the proceedings. In the alternative, he seeks a sentence reduction. The respondent, on the other hand, says that a declaration will suffice.
82I will start by outlining the bail pending appeal process at this court. I will then set out why I would admit the fresh evidence and why I accept the appellant’s argument that his ss. 8 and 9 Charter rights were breached. I will conclude by explaining why a sentence reduction is the appropriate remedy.
2. Factual context
a. The general process for release on bail pending appeal
83In April 2020, problems arising from the COVID-19 pandemic triggered an overhaul of this court’s bail pending appeal process.
84Before the pandemic, when this court ordered bail pending appeal, the order was sent to the Ontario Court of Justice. That court would then issue a release order that the sureties would sign in person before a justice of the peace.3 The completed release order would then be sent to the courthouse or institution holding the appellant and he would be released from there. The cumbersome nature of that process became clear in the early days of the pandemic and required streamlining.
85As a result, an “all-in-one” bail pending appeal template was created, alongside a new practice direction. The revised bail pending appeal process remains intact to this day, with only minor changes.
86In essence, a bail pending appeal release requires the following steps:
(1) Bail application brought
- An application for bail pending appeal is generally brought on three clear days’ notice: Criminal Appeal Rules, r. 22(4). A judge may hear the application in writing if it is on consent. The application must be accompanied by an “all-in-one” draft release order: Criminal Appeal Rules, r. 22(6)(i); General Practice Direction Regarding All Proceedings in the Court of Appeal, at paras. 147-49.
(2) Release order signed and entered by the court
If bail is granted (either on consent or otherwise), a “Release Order of the Court of Appeal for Ontario” will be signed and entered by the court.
The order will have the court’s seal on the first page. It will begin with recitals. The recitals to the release order in this case (and the other appeals) specify that the appellant’s release shall occur “immediately” upon completion of Appendix A:
IT IS ORDERED THAT, upon the completion of Appendix A to this release order, the person having custody of the appellant shall immediately release the appellant if not otherwise detained [Emphasis added.]
Appendix A contains all relevant information for the sureties, including the conditions that they are agreeing to, their financial obligations, their role and responsibilities, their promises, and what will happen if the appellant fails to comply. Appendix A also specifies that the appellant agrees to comply with the financial obligations and conditions and that he understands that he does not have to accept them, but if he does not, he will be detained.
The release order specifies that “[u]pon the signature of the appellant, the release order will be complete”.
(3) Release order signed and witnessed
(a) Sureties
Once the release order is signed and entered by this court, the motions clerk sends the order to counsel for the appellant to facilitate the signing of Appendix A by each surety and to witness their signatures.
If the surety signs, thereby acknowledging the entirety of the order, counsel witnesses the signature and confirms that they have verified the surety’s identity.
Counsel returns the signed order back to this court, following which the judge or motions clerk signs and dates the last page, which reflects that the “release order contains the signatures of the surety(ies) (if applicable) and the court.”
(b) Appellant
- The motions clerk then sends the signed order to the place where the appellant is detained. Someone at that location must facilitate the appellant signing his part of Appendix A and witness the appellant’s signature. This is the last thing that must occur before the appellant is to be released, assuming that he is not otherwise detained.
87Bail applications may be heard on the same day as sentencing, with advance communication to the court and opposing counsel: Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario, s. 7.2.2.3. If the Crown consents to bail pending appeal, the application will often be placed before the motion judge in advance of sentencing. This permits the motion judge to consider the merits of the consent application while awaiting information about the sentence imposed.
88Even when applications proceed on consent, there is, of course, no guarantee that an order for release on bail pending appeal will be made and no guarantee that, even if the order is made, the appellant will be released that same day. Although the goal is efficiency, unavoidable delays can develop anywhere along the chain.
b. What happened in this case
89In this case, the appellant was on track to be released from the Brampton courthouse on the day of his sentencing, until a misunderstanding arose and he was sent to Maplehurst.
90The appellant was found guilty on January 3, 2023, and was sentenced on May 10, 2023, at the Brampton courthouse. Prior to his sentencing, he filed an application for bail pending appeal. On April 3, 2023, the Crown informed the defence that it would be consenting to the application. All that awaited was the sentence imposed.
91The sentencing went ahead on May 10, 2023. By 10:28 a.m., sentencing was complete and, because a custodial term had been imposed, the appellant was taken to the cells under the Brampton courthouse. At 10:40 a.m., appellate counsel informed this court’s motions clerk about the sentence imposed and the motions clerk informed the motion judge.
92At the direction of the motion judge, the motions clerk signed and entered the release order and sent it to appellate counsel at 1:50 p.m. Counsel then witnessed the surety’s signature on Appendix A and returned the release order to the motions clerk.
93At around 3:20 p.m., the motions clerk sent the release order by email to the Brampton courthouse cells. At this point, all that remained to be done for the order to be complete was for the appellant to sign and for someone in the Brampton cells to witness his signature.
94Just prior to 4:00 p.m., counsel called the Brampton cells for an update. A special constable confirmed that the release order had been received and that he was “working on it”. He said he was awaiting the warrant of committal.
95Just before 5:00 p.m., counsel again called the cells for an update. For the first time, she was advised that the appellant would not be released from the Brampton courthouse cells. Instead, he was to be taken to Maplehurst and released from there. She was told that this was because the order required someone from “the institution” to witness the appellant’s signature and the special constable understood that Maplehurst was “the institution”. I will soon explain how this confusion arose.
96Counsel was then transferred to a supervisor in the Brampton courthouse cells, who informed her that he was in communication with a lawyer at the Ministry of the Attorney General, Court Services Division. He provided her with that lawyer’s name and email address. He said that he was being told that the release had to take place from Maplehurst. Counsel then wrote to the Ministry lawyer, offering assistance to ensure her client was released from the Brampton cells.
97At around 5:10 p.m., counsel received the first of a few calls from the supervisor in the cells, saying that the Ministry lawyer and the Maplehurst Records Department were both “adamant” that the appellant go to Maplehurst before release.
98Counsel then wrote to both the trial and appellate Crowns asking for help. She also sent another email to the Ministry lawyer.
99The record is not entirely clear, but sometime after 5:45 p.m., the appellant was transported from the Brampton courthouse to Maplehurst in a little cubicle in a prisoner van. He is claustrophobic.
100At 5:45 p.m., counsel called Maplehurst for the first time. She spoke to someone in the Records Department. She was told that there was no release order attached to the warrant of committal and, therefore, no basis to release the appellant. Although counsel sent the release order by email to the Maplehurst Records Department, she received a call back saying that the institution could not operate on a release order forwarded by counsel. Accordingly, just prior to 6:00 p.m., counsel wrote to the Brampton cells and asked them to send the order from their email address to Maplehurst.
101A short time later, the Ministry lawyer wrote to counsel saying: “Unfortunately Court of Appeal bails are prepared and sent directly to the Detention Centre to be processed. I have spoken with Maplehurst they are expecting the paperwork and will process the matter right away.” Finally, at 6:22 p.m., counsel obtained confirmation from Maplehurst that the release order had been received through proper channels.
102At 6:37 p.m., counsel inquired by email whether Maplehurst would be admitting the appellant to the facility or if he could simply be released upon arrival. She was informed by return email that the appellant would “go through the admissions.”
103Once at Maplehurst, the appellant was photographed and asked a series of questions. He says he was asked if he was suicidal and when he said no, he maintains that the officer said he “should be” because “pieces of shit like [him] shouldn’t live.” Other officers are said to have laughed during this interaction. Correctional Officer N. Gill, who processed the appellant, denies making that remark. He explained in an affidavit that his normal process is to warn inmates convicted of sexual offences against children that there is a “risk they will be attacked by other inmates if the nature of their charges becomes widely known.” Accordingly, he says that he recommends that they “opt to be housed in a [protective custody] range for their safety.” The appellant said that he wished to be placed on that range.
104The appellant was then strip searched. The appellant was confused because he thought he was supposed to be on bail. He told the searching officer he had received bail, but was strip searched anyway. After the strip search, the appellant changed into an orange jumpsuit. He was given food and transferred to various rooms but was not placed on a range. At some point, correctional officers came and got him to sign his release papers. He then changed into his regular clothes. The appellant maintains that a male officer watched him get changed back into his own clothing. He said that he was released at 7:47 p.m., although the institutional record shows him being released shortly after 8:00 p.m.
c. The evidence from Brampton and Maplehurst
105The fresh evidence in this case includes evidence from a police officer who works at the Brampton courthouse and a Deputy Superintendent of Maplehurst.
i. Sergeant Joel Genoe, Peel Regional Police
106Peel Regional Police Sergeant Joel Genoe, who has worked at the Brampton courthouse since June 2020, provided an affidavit and was cross-examined on it. He assists with the day-to-day operations of the cells, including the arrival, departure and management of inmates attending court. Although Sgt. Genoe was not involved with the appellant (or Z.C. or Mr. McKenzie), he undertook a review of their cases and the entire bail pending appeal process at the Brampton courthouse.
107On January 18, 2024, within days of becoming aware of the issue raised in this and the other appeals, Sgt. Genoe wrote to the motions clerk at this court, asking who typically acts as the witness to an appellant’s signature in Appendix A. The motions clerk responded right away:
If an appellant is sentenced on the same day as his motion for bail pending his appeal, then 9 out of 10 times they usually are not transferred to an institution by the time the bail pending appeal Order is issued. In that case, we expect an officer in the holding cell of the courthouse [to] facilitate the signing of the appellant’s appendix and witness the signature.
If the order is issued later in the day and there may be a chance that the appellant will get transferred to the institution before or during the time that the Order is issued, then we send the Order to both the courthouse and the institution to cover all bases. That way, whoever has custody of the appellant can facilitate the signing of the appendix.
108Sgt. Genoe then followed up to ask if the procedure had changed at some point. The motions clerk responded as follows:
The process for Court of Appeal bail orders [has] changed since 2020. All Court of Appeal orders are completed in-house now, and no longer [require] a Justice of the Peace or a bail recognizance.
109Having received that information, Sgt. Genoe acted immediately. That very day, the motions clerk sent Sgt. Genoe an email asking that he assist with a same-day release, which he did.
110Sgt. Genoe took immediate steps to update the bail pending appeal materials at the Brampton courthouse. The Prisoner Escort Office Manual was changed to accommodate same-day releases. Sgt. Genoe circulated the updated manual to the special constable supervisors and office staff, and made it clear that appellants do not have to be sent to Maplehurst for release on bail pending appeal.
111Sgt. Genoe spent some time in his affidavit and cross-examination explaining what happened in all three appeals now before this court. Although there are some nuanced differences between them, the commonalities are striking. In each case, the following salient facts are clear:
(i) Sgt. Genoe accepts that, in hindsight, the appellant (and Z.C. and Mr. McKenzie) should have been released from the Brampton courthouse.
(ii) In each case, they were not released from there because the Prisoner Escort Bureau received direction from Maplehurst that the inmates had to be transferred there for processing and release.
(iii) Prior to his January 2024 email exchange with the motions clerk, Sgt. Genoe was not aware that this court’s bail procedures had changed in April 2020.
(iv) Confusion was said to have resulted from the standard email used by this court to send release orders to the Brampton courthouse. That email stated that the appellant’s signature had to be witnessed by someone at the “institution”:
This is a release order from the Court of Appeal. It contains all required signatures except for the appellant’s signature. It is not complete yet. The appellant needs to sign the second-to-last page of the order and the appellant’s signature needs to be witnessed by someone who works in the institution.4 [Emphasis added.]
112The email also contained a “sample of how to fill out” Appendix A. Unfortunately, the “sample” Appendix A included in the email was completed by an appellant who was detained at “Maplehurst Correctional Complex”.5 The witness to that inmate’s signature in the sample provided was, therefore, a “Correctional Officer” at Maplehurst. To Sgt. Genoe, the reference in the email to the witness being someone who works at the “institution”, combined with the example given, indicated that the release had to be from Maplehurst.
ii. Deputy Superintendent Scott Gale, Maplehurst
113Deputy Superintendent Scott Gale works at Maplehurst, a busy institution detaining around 1,200 to 1,300 inmates at a time. This includes inmates on remand and immigration holds, those serving reformatory sentences, and those awaiting transfer to a federal penitentiary. Inmates are brought to and from court by various police services, including the Peel Regional Police.
114Inmates are brought to Maplehurst from the Brampton courthouse at the end of each sitting day, if they are not released from the courthouse. Warrants of remand and committal accompany the inmates, who are escorted to the Admitting and Discharge Department.
115After a frisk search and body scan, the inmates are taken to the admitting desk, after which they are strip searched.
116All strip searches are done in accordance with Ministry policy and Maplehurst’s standing orders. The strip search area has several strip search bays, which consist of chest-high concrete walls on three sides. A correctional officer is designated as the primary searcher. A second is available as backup but is only called upon if necessary. Except in limited circumstances, the searching officer is of the same gender as the inmate. The officer stands on the open side of the bay while the inmate undresses. The only person who can see the inmate fully undressed is that officer. Assuming that the inmate is not in possession of any contraband, he will then be seen by the health care staff and asked medical screening questions. He will then be assigned to a location within the institution.
117Typically, an inmate arrives at Maplehurst without his bail documents. These documents are sent by email to Maplehurst’s Records Department. The records clerks at Maplehurst monitor the email inbox and, when a release order is received from this court, they alert correctional staff who will see that the order gets signed by the inmate.
118A manager then reviews the release order and ensures it is complete. Even after Appendix A is complete, prior to releasing the inmate, the Records Department must verify that there is no other reason to hold the inmate.
119Deputy Superintendent Gale acknowledged that the Maplehurst Records Department had incorrectly advised those working in the cells at the Brampton courthouse that inmates could only be released from Maplehurst. He was unable to account for why that had been done.
120He also acknowledged the existence of Maplehurst’s Standing Order on searches, which permits those who are going to be released on bail in short order to avoid a strip search:
An inmate returning from Court as indicated above whose fine or bail is to be paid or posted very shortly after arrival may be exempted from the strip search procedure. These inmates will be frisk searched and kept apart from inmates who will be admitted to the living units. If the fine or bail is not paid or posted, the inmate will be strip-searched in the normal way. [Emphasis added.]
3. Analysis
a. The fresh evidence should be admitted and the new issues decided
121The parties do not dispute that the fresh evidence is admissible. Nor do I.
122There was no way that the appellant could have advanced the Charter issues at trial since they arose only after he was sentenced.
123The evidentiary record on appeal is complete. It includes evidence filed by the respondent in response to the appellant’s record. The extensive factual record places this court in a good position to fully, effectively and fairly assess the Charter claims.
124In addition, I note that the respondent accepts that the interests of justice would be best served by determining the Charter issues on appeal. This is a reasonable and appropriate concession, particularly because this court is the only forum where the breaches can be raised and a remedy granted: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 42-43, leave to appeal refused, [2016] S.C.C.A. No. 432. In my view, whatever problems there may have been in assembling a perfect record, they are outweighed by the legitimate interest in advancing the issues on appeal: R. v. J.D., 2018 ONCA 947, 367 C.C.C. (3d) 403, at para. 7.
b. The scope of the s. 9 breach
125The appellant argues that he should have been released from the Brampton courthouse. He emphasizes that this court’s release order clearly states that “upon completion of Appendix A to this release order, the person having custody of the appellant shall immediately release the appellant if not otherwise detained”. He maintains that once the authorities are in receipt of this court’s release order, they must take steps to complete the order by effecting the execution of Appendix A. Failing to do so would frustrate this court’s order that the individual be released on bail once his signature on Appendix A has been witnessed (unless, of course, he is otherwise detained). The respondent agrees.
126The parties are right. Custodial authorities cannot take a lackadaisical approach to a detainee’s release on bail pending appeal. Once this court has issued a release order, and the only thing standing between the individual’s detention and liberty is the execution of Appendix A, the authorities must act to facilitate that execution and give effect to the order.
127At the same time, it is only right to acknowledge that custodial authorities, whether working in courthouse cells or in jails, are contending at any given time with numerous pressures, ones that include ensuring the safety and security of others in their respective institutions and courthouses. Accordingly, it would place an impossible and sometimes dangerous burden on the authorities if this court were to require that Appendix A be executed immediately in all cases. Indeed, during oral submissions for these appeals, the parties acknowledged that reasonableness should guide this process.
128To this end, once in receipt of the release order, the custodial authorities must act in a reasonably prompt manner to ensure that Appendix A is executed and the detained individual is released, assuming he is not held for another reason. What is reasonably prompt in any given case will be informed by the objective circumstances at work, including the contextual factors confronting the courthouse or institution where the individual is detained at the point that release has been ordered.
129Section 9 of the Charter provides a right not to be arbitrarily detained or imprisoned: Grant, at para. 54. There is no dispute in this case that, at some point, the appellant (and Z.C. and Mr. McKenzie) became arbitrarily detained.
130What is unusual about this case (and the related cases) is that the detention started lawfully, following sentencing. Unlike most s. 9 jurisprudence, therefore, there was nothing arbitrary or unlawful about the appellant (and Z.C. and Mr. McKenzie) being detained in the first place. The question is when the lawful detention(s) became arbitrary.
131The respondent fairly concedes that this court’s order was not complied with in a reasonably prompt fashion, because of a series of mistakes and misunderstandings about the appropriate location of release. Without those mistakes and misunderstandings, the appellant would have been released from the Brampton cells. Accordingly, the respondent maintains that the appellant (and Z.C. and Mr. McKenzie) were arbitrarily detained from the moment they were transported to Maplehurst. I agree. Accordingly, in this case, the arbitrary detention started at 5:45 p.m., when the appellant entered the van to be transported to Maplehurst.
c. The scope of the s. 8 breach
132The appellant was subjected to a strip search upon his arrival at Maplehurst. The records indicate he was “admitted” to Maplehurst at 6:21 p.m., and so he arrived at or before that time. This makes sense given that it takes about 25 minutes to drive between the Brampton courthouse and Maplehurst.
133It goes almost without saying that a predicate requirement for a lawful search incident to detention is that the individual is lawfully detained. If not lawfully detained, there is no justifiable reason to search. Here, as I have already explained, the appellant’s detention became arbitrary as soon as he was placed on the transport to Maplehurst. In other words, before the strip search took place, the detention was already in breach of s. 9 of the Charter and therefore unlawful. Thus, the strip search was also not authorized by law and was in breach of s. 8 of the Charter.
134In terms of the seriousness of the s. 8 breach, the appellant notes that not only should he never have been transported to Maplehurst, which would have avoided the strip search, but the strip search could also have been avoided if Maplehurst, which was on notice of this court’s release order, had followed its own policy on searches. As previously reviewed, according to Maplehurst’s Standing Orders, if bail is to be received “shortly”, the inmate may be exempted from being strip searched, in which case he will be kept apart from the general population. Here, says the appellant, the strip search was “gratuitous, mean-spirited, and designed to (and did) humiliate [him].”
135The respondent accepts that the strip search was unlawful, since the lawfulness of the strip search depended on the lawfulness of the detention. However, the respondent does not accept the characterization of the s. 8 breach. The respondent says that it is possible that the officers who received the appellant in the Admitting and Discharge Department were unaware of the impending bail and so would not have known to exempt him from the strip search. The Maplehurst Records Department acknowledged receipt of the appellant’s release order at 6:22 p.m., which was at almost exactly the same time that he was admitted.
136In my view, the respondent’s submission overlooks the timeline of events. This timeline shows an unacceptable breakdown in communication at Maplehurst, one that had the effect of a strip search being done in circumstances where Maplehurst’s own exemption policy should have been triggered.
137I accept that the Admitting and Discharge Department did not know that the appellant’s release order had been received in the Records Department at the time he was strip searched. There is nothing in the record to suggest that is so. However, the problem is that while the Records Department may not have received the release order through an official channel until almost the same time that the appellant was arriving at Maplehurst, it had known for a long time that this court had issued a release order. I say this for several reasons.
138First, there is no dispute that, long before the appellant was sent from the Brampton cells to Maplehurst, there was communication between the two about the fact of this court’s release order. Nor is there dispute that, with knowledge of this court’s release order, Maplehurst instructed the Brampton cells that the appellant’s release could only take place from Maplehurst. Indeed, Deputy Superintendent Gale accepts that Maplehurst incorrectly advised the Brampton cells that the appellant (and Z.C. and Mr. McKenzie) had to be transferred to Maplehurst prior to their release. Accordingly, long before the appellant even arrived at Maplehurst, the Maplehurst Records Department knew that this court had ordered the appellant’s release.
139Second, while the appellant was still in the Brampton cells, the Ministry lawyer was informed that this court had issued a release order. She gave instructions that he had to be sent to Maplehurst for release. Prior to his strip search, that lawyer confirmed with the appellant’s counsel that she had communicated with Maplehurst, that they were aware of the situation and expecting the paperwork.
140Third, counsel had forwarded a copy of the release order to the Records Department at least 30 minutes before the appellant was admitted to Maplehurst. Two minutes after receiving the release order from counsel, the Records Department informed her that it would have to be resent through official channels. It is entirely understandable that Maplehurst will not act on a release order provided by counsel. However, at a minimum, this interaction put the Records Department on notice that the release order was forthcoming.
141Quite simply, the record is replete with facts showing that the Records Department knew that this court had issued an order for the appellant’s release. The Records Department is tasked with processing court orders and so it can reasonably be expected that records staff recognize the importance of complying with them. Yet, the Records Department failed to alert the Admitting and Discharge Department of the fact that the appellant was the subject of a release order. Had the Records Department done that, as acknowledged by Deputy Superintendent Gale, it would have made sense to activate the exception to the strip search policy. None of that was done because of the inexplicable breakdown in communication between the Records Department and the Admitting and Discharge Department.
142In addition, I see no reason to doubt the appellant when he says that he told an officer in the Admitting and Discharge Department that he had been granted bail. It makes sense that the appellant, who knew that this court ordered his release on bail pending appeal, would be concerned with why he was still detained and why he was about to be strip searched. An individual in those circumstances may well speak up and raise the fact of his bail. Although I accept that a correctional officer cannot act on the “say so” of an inmate, a simple call to the Records Department could have verified that this court had indeed ordered his release, subject to the completion of Appendix A. All that remained to be done was for someone at Maplehurst to witness the appellant’s signature of that appendix.
143In my view, the clear breakdown in communication at Maplehurst, resulting in the appellant being deprived of the exception to the strip search protocol, aggravates the seriousness of the s. 8 Charter breach.
144The appellant also submits that the strip search was conducted in an unreasonable manner. In addition, the appellant says that he was subjected to a second strip search when he was required to change back into his clothes in front of a correctional officer before he was discharged.
145Respectfully, I would not accede to these arguments.
146The Supreme Court of Canada has provided guidelines on the conduct of strip searches: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 101. For instance, the search must be done: (1) by a person of the same gender; (2) with as few people as possible present; (3) in a private area that only allows for those engaged in the search to observe; (4) as quickly as possible, ensuring that the person being searched is not left completely undressed at any one time; (5) without physical contact with the genital or anal areas; and (6) with proper note keeping. Of course, minor deviations from the Golden guidelines will not necessarily result in a s. 8 violation: R. v. Lee, 2018 ONCA 1067, 424 C.R.R. (2d) 173, at para. 15.
147Here, the appellant says the search was conducted in a bay or stall with three walls and a seating area. He says that the only other person in the stall with him was a male officer, although he could see people walking by in his peripheral vision who would have been able to see him. He says that the searching officer did not touch him in conducting the strip search.
148According to Deputy Superintendent Gale, the configuration of the bays or stalls is such that only the searching officer can see the inmate while completely undressed. This is consistent with the Maplehurst Standing Orders, which mandate that only the searching officer be able to observe the inmate while undressed. I accept that the layout of the search bays at Maplehurst, a bench and three chest-high walls, provides privacy during a search, particularly with respect to the inmate’s genitals or anal region. I see no reason to question the evidence of the Maplehurst correctional officers on this point. They are subject to strict search protocols and I see nothing in the record that would suggest that those protocols were not followed in this case.
149The appellant also objects to the manner of notetaking in this case. He argues that the lack of proper record-keeping contributes to the unreasonableness of the search. I disagree.
150The only record of the strip search in this case (and the others) is the note in the “strip search logs” indicating that a strip search took place. That log does not indicate which officer conducted the search or at what time it occurred. Although the respondent accepts that there would be better accountability if Maplehurst kept a log of who conducted what searches, the respondent says that the overall purpose of record-keeping in this context was met. I agree.
151The adequacy of any record-keeping in the context of a strip search will be context specific. In Golden, the requirement for record-keeping arose from the need to memorialize the “reasons for and the manner in which the strip search was conducted”: at para. 101. When the strip search takes place in the context of an arrest, the memorialization of those reasons and the manner of search is critical. In contrast, in the context of a search prior to entering a custodial setting, the why and how are clear. Although it would be preferable to record the identity of the searching officer, the failure to do so is, at most, a “minor deviation” from the Golden guidelines: R. v. Davis, 2020 ONCA 748, 475 C.R.R. (2d) 248, at para. 22.
152In short, I am not persuaded that the manner of the strip search aggravates the seriousness of the s. 8 breach.
153As for the appellant changing back into his own personal clothing in front of an officer prior to discharge, this was not a strip search. The correctional officer was not searching for anything and not instructing the appellant on what to do.
154Of course, my disagreement with some of the appellant’s submissions does not diminish the seriousness of the unlawful strip search in this case. All strip searches constitute a “significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them”: Golden, at para. 83. I accept this to be so.
d. Remedy
155I now turn my attention to the appropriate remedy for the breaches of ss. 8 and 9 that occurred in this case.
156The appellant seeks to have his conviction set aside and a stay of proceedings entered pursuant to ss. 686(2) and (8) of the Criminal Code: R. v. Bouvette, 2025 SCC 18, 503 D.L.R. (4th) 579, at para. 59; R. v. Rees, 2025 ONCA 812, 454 C.C.C. (3d) 143, at paras. 172-76; and R. v. Hinse, [1995] 4 S.C.R. 597, at pp. 619-20. He claims that a stay is the appropriate remedy given the seriousness of the state conduct in issue and the fact that it was so subversive of this court’s release order. In essence, the appellant argues that to allow the conviction to stand and require the sentence to be served would undermine the integrity of the judicial process. If this court does not grant a stay, the appellant seeks a sentence reduction.
157The respondent acknowledges that the Charter breaches are serious but says that, properly applied, the law calls for declaratory relief. Should this court conclude that a declaration is not a sufficient remedy, the respondent submits that a sentence reduction is appropriate.
158As I will explain, a stay of proceedings is not appropriate. Instead, I would grant a sentence reduction.
i. A stay of proceedings is not warranted
159The parties made their submissions based on the framework for a stay of proceedings in response to an abuse of process. In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, Moldaver J. broke down abuses of process into two categories:
(1) Where the state conduct compromises the fairness of an accused’s trial (main category); and
(2) Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (residual category). [Emphasis added.]
160The parties agree, as do I, that only the second, residual category is implicated in this case. The appellant’s claim of abuse of process rests on “an accumulation of infringements” of procedural Charter rights, namely ss. 8 and 9: R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581, at para. 69. It is therefore appropriate to apply the framework for abuse of process in the residual category: Brunelle, at para. 71. The court must begin by assessing the Charter breaches under their own frameworks, as was done earlier in this judgment, before determining “whether all of the infringements, considered together, amount to conduct that is vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system”: Brunelle, at para. 75.
161The test for determining whether a stay of proceedings should be imposed is the same for both categories. That test is set out as follows in Babos, at para. 32:
(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits [Emphasis added; citations removed.]
162When it comes to the residual category, the prejudice component of the test focusses on whether the state conduct is “offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: Babos, at para. 35. Of course, this part of the test must be adapted for this situation, given that the trial and sentencing are complete. Here, the question is whether maintaining the conviction and having the appellant serve the sentence would amount to judicial condonation of the Charter breaches. Answering that question requires a forward-looking approach, one that does not seek to remedy past wrongs but rather seeks to protect the justice system going forward.
163As for whether there are lesser remedies to a stay of proceedings, again, the residual category trains its focus not on providing “redress to an accused for a wrong that has been done to him or her in the past”, but on “whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward”: Babos, at para. 39. A stay of proceedings is not only the most “drastic” remedy known to criminal law, but it should only result in “exceptional” circumstances, in the “clearest of cases” and on “very rare occasions”: Babos, at paras. 31, 44.
164Only if necessary does the court move to the third prong of the test, the balancing. Balancing occurs when there is uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed. If the residual category alone is in play, the balancing stage takes on particular importance: Babos, at para. 41. When engaged in this balancing, the court will look to various factors, including the seriousness of the impugned state conduct, whether there is a systemic or ongoing problem, the accused’s circumstances, “the charges he or she faces, and the interests of society in having the charges disposed of on the merits”: Babos, at para. 41.
165Undoubtedly, those who seek a stay of proceedings under the residual category have an “onerous burden”: Babos, at para. 44.
166Applying the test for a stay of proceedings under the residual category, I conclude that a stay is not available because there is an alternative, less drastic remedy capable of redressing the prejudice to the integrity of the justice system.
167As I have explained, the appellant was subjected to serious breaches of his ss. 8 and 9 Charter rights. Not only was this court’s release order held in abeyance long past what was reasonably required to complete Appendix A, but the appellant was strip searched at Maplehurst when the Records Department was long on notice that the release order existed.
168Court orders are not suggestions. They are orders and must be complied with. Few things are more central to sustaining the rule of law than the need for all, especially justice system participants, to respect and follow court orders.
169That said, in my view there is a less drastic remedy capable of redressing the prejudice in this case.
170I do not accept that allowing the appellant’s conviction to stand “would lend judicial condonation to the impugned conduct” going forward: Babos, at para. 38. I say this in part because of how the state misconduct came to be in this case. Here too, the relevant circumstances are strikingly similar in the cases of Z.C. and Mr. McKenzie.
171In my view, up to the time that the appellant was transported to Maplehurst, the state conduct clearly arose from a misunderstanding, caused in part by the wording of the email sent by this court’s motions clerk and the example of a completed Appendix A provided in that email. To this end, I note that immediately after these cases were brought to this court’s attention, the standard email accompanying release orders was changed to remove reference to Maplehurst and “the institution” when the appellant is detained at a courthouse.
172In hindsight, one can easily see how the confusion arose. What is clear is that those working in the Brampton cells on the day in question tried their best to comply with this court’s order. Despite confusion and a misunderstanding over the place of release, the supervisor in the Brampton cells showed impressive diligence in an effort to secure the appellant’s timely release. The repeated discussions with Maplehurst, with the Ministry lawyer and with counsel to the appellant demonstrate the careful and genuine attempts made by the Peel Regional Police to implement the release order.
173The record also reflects the considerable efforts made by the appellant’s counsel on behalf of her client. With persistence and professionalism, she communicated with officers in the Brampton cells, Crown lawyers, the Ministry lawyer, and the Maplehurst Records Departments. Her diligence in the face of the appellant’s ongoing detention was indeed impressive.
174As for Maplehurst’s Records Department, it perpetuated the misunderstanding that the appellant had to be transported to Maplehurst and, within the institution, a breakdown in communication led to an unnecessary strip search. That said, I see nothing in the record to suggest that anyone at Maplehurst acted with malice or bad faith. Nor is there any indication of an intention to flout this court’s release order. Although the Admitting and Discharge Department should have been told about the release order, which would have avoided the strip search, the appellant was released less than two hours after Maplehurst received the order. Within that time period, the appellant had to execute Appendix A and the institution had to verify that he was not being held on any other matters. And this was all occurring at a busy time at the institution, when inmates come back from court. In my view, although the appellant should not have been sent to Maplehurst and although the appellant should have benefited from the exception to the strip search protocol, nothing about the timing of his release once at Maplehurst suggest that the authorities there did not act in a reasonably prompt manner.
175Furthermore, there is no indication that the problems relating to transfers from Brampton to Maplehurst persisted after they were uncovered. In Brampton, the situation was rectified without delay. Indeed, once Sgt. Genoe became aware of the issue, he immediately sought clarification from this court and took steps to ensure same-day releases could be effected from the Brampton courthouse. One such release was done on the very day that Sgt. Genoe reached out to this court to seek clarification. The relevant manual was updated and circulated with specific reference to the expectations surrounding this court’s release orders.
176While Deputy Superintendent Gale did not have information about whether Maplehurst had perfected its lines of communication at the time he was cross-examined, he undertook to take immediate steps to look into the issue.
177In my view, although it may serve to redress past harm to the appellant, setting aside the conviction and staying the proceedings would do nothing to prevent prejudice to the administration of justice. To the contrary, it would harm the justice system to enter a stay, in light of the absence of malice or bad faith and given the immediate steps taken to redress the problem going forward.
ii. A sentence reduction is appropriate
178Having concluded that a stay is not necessary to achieve the forward-looking purpose of the Babos framework under the residual category, I now consider which lesser remedy best responds to the breaches of the appellant’s ss. 8 and 9 Charter rights.
179Indeed, the fact that the abuse of process claim in this case rested on an accumulation of Charter violations means that the appellant does “not need to establish an abuse of process to obtain a Charter remedy”: R. v. Varennes, 2025 SCC 22, 504 D.L.R. (4th) 583, at para. 85. Although the test for a stay under the residual category has not been made out, the ss. 8 and 9 breaches that occurred in this case still require a remedy under s. 24(1) of the Charter. I pause here to note that an “appropriate and just” remedy under s. 24(1) accounts not just for the integrity of the justice system as a whole, but also for the harm suffered by the claimant personally as a result of the breaches. In other words, although Babos makes clear that a stay under the residual category is not aimed at compensating the claimant’s loss, such compensation may well be a relevant factor in selecting a lesser remedy: Babos, at para. 39; Varennes, at para. 76. The only remaining question is whether that remedy should be a declaration or a sentence reduction.
180In my view, a sentence reduction is more appropriate. Although the breaches largely arose out of misunderstandings, the problem was compounded by Maplehurst’s casual approach after learning that this court had granted bail hours before. Such an approach by an institution tasked with ensuring lawful detentions and lawful releases from those detentions cannot be condoned. Maplehurst was long on notice that there was a release order in this case and specifically instructed Brampton to send the appellant to Maplehurst for release. Charged with knowledge of the release order, and having received at least a copy of the release order from counsel prior to the appellant’s arrival at Maplehurst, the institution failed to implement its own policy when it needlessly strip searched the appellant upon arrival. While there was no bad faith exercised by those responsible for conducting the search, as it appears that they were not aware of the release order, the fact remains that the Maplehurst Records Department did know about it. Finally, this was not an isolated incident, as nearly identical state misconduct befell Z.C. and Mr. McKenzie.
181While the appellant asks that his sentence be converted to a conditional sentence, in my view, such a conversion would overshoot the mark in terms of a remedy commensurate to what occurred. He committed a very serious crime. In my view, a more appropriate remedy is to reduce the sentence by one month, leaving eleven months to serve.
IV. Conclusion
182I would dismiss the conviction appeal. I would admit the fresh evidence, set aside the sentence of 12 months’ custody and substitute an 11-month custodial term. All other aspects of the sentence remain unchanged.
Released: June 12, 2026 JMF
“Fairburn A.C.J.O.”
“I agree. Paul Rouleau J.A.”
“I agree. Robert Maranger J. (ad hoc)”
This is a release order from the Court of Appeal. It is not complete yet. The appellant needs to sign the second-to-last page of the order and the appellant’s signature needs to be witnessed by someone in charge of the appellant’s custody. Once the appellant and the witness have signed and completed the second-to-last page of the order, the appellant is to be released immediately unless otherwise detained. Specifically, the plan is for the appellant to be released from the courthouse.
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
- In 2024, Parliament replaced the term “child pornography” with “child sexual abuse and exploitation material” (CSAEM) in the Criminal Code: An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material), S.C. 2024, c. 23. Although the appellant was convicted prior to this amendment, I will use the new terminology in these reasons.
- Prior to amendments to the Criminal Code in 2019, these release orders were referred to as “recognizances”: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25.
- The language used in the standard email attaching the release order was changed immediately after the problem in these appeals came to light. For anticipated same-day releases, the relevant part now reads:
- This sample is no longer attached when it is anticipated that the appellant will be released from the courthouse.