R. v. Patel, 2025 ONCJ 173

R. v. Patel, 2025 ONCJ 173

Date: March 31, 2025
Court File No.: 4814 998 23 40001100 Toronto Region
Court: Ontario Court of Justice
Parties: His Majesty the King — and — Simitkumar Patel
Judge: Justice David Porter
Counsel:

• For the Crown: C. Valarezo
• For the Defendant: S. DiGiuseppe / J. Proskos

Introduction and Charges

1The Defendant, Simitkumar Patel (“Mr. Patel”) is charged with four offences alleged to have been committed between February 6, 2023 and March 9, 2023:

(i) By means of a telecommunication, communicate with a person, who was or was believed to be under the age of sixteen years, for the purpose of facilitating the commission of an offence under s.151, contrary to s.172.1(1)(b) of the Criminal Code;

(ii) Did without lawful excuse, make child pornography, contrary to section 163.1(2) of the Criminal Code;

(iii) Did make available sexually explicit material to a person, who was or believed to be under the age of sixteen years, for the purpose of facilitating the commission of an offence under s.151 of the Criminal Code with respect to that person, contrary to section 171.1(1)(b) of the Criminal Code; and

(iv) Did, without lawful excuse, possess child pornography, contrary to section 163.1(4) of the Criminal Code.

2Counsel on behalf of Mr. Patel brought an application seeking declarations that the Applicant’s sections 7, 9, 10(a), 10(b), and s.11(e) rights under the Charter of Rights and Freedoms (“the Charter”) have been violated and seeking a stay of proceedings under section 24(1) of the Charter.

Background Facts

3The charges arose as a result of an undercover sting operation in which Detective Constable (“DC”) Guy Kama posed online as a 13-year-old female named “Amelie” (sometimes referred to as “Emily”). The Crown alleges that Mr. Patel engaged in discussions with Amelie first on a website “chatiw.com” and then on Snapchat for the purpose of facilitating the commission of sexual offences.

4The Crown alleges that Mr. Patel made an arrangement to meet with Amelie on Thursday, March 9, 2023 at the York Mills Centre for the purpose of engaging in sexual activity with Amelie. Members of the Child Exploitation Unit of the Toronto police attended at the proposed meeting and arrested Mr. Patel at 9:35 a.m. on March 9, 2023.

5It is not disputed by the Crown that, as the police did not arrange for Mr. Patel to appear in court until 5 p.m. on March 10, the police breached Mr. Patel’s rights under s.503 of the Criminal Code, and that as a result Mr. Patel was arbitrarily detained, and his s.9 Charter rights were infringed. The Crown does not accept the defence claim that other Charter rights were also infringed and, in any event, the Crown submits that this is not the clearest of cases in which a stay of proceedings is an appropriate remedy for the s.9 Charter breach.

The Alleged s.10(b) Violation

6The audio record of the arrest filed in evidence records that DC Kama stated to Mr. Patel at 9:35 a.m. on March 9, 2023: “You’re under arrest for making arrangements to commit sexual assault on a child. Okay? You are also under arrest for making child pornography and possessing child pornography. I’m going to read you your rights to counsel now.”

7DC Kama then read to Mr. Patel his rights to counsel, stating as follows:

“It’s my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you’re charged with an offence, you may apply to the Ontario Legal Aid plan for assistance. 1-800-265-0451 is a number that will put you in contact with the legal aid duty counsel lawyer for free advice right now. Do you understand what I just said?
Mr. Patel: Yes
DC Kama: Okay. Do you wish to call a lawyer now?
Mr. Patel: You mean the free counsellor?
DC Kama: Yes
Mr. Patel: Yes. Sure. Sure.”

8DC Kama made no response to Mr. Patel’s affirmation that he wanted to speak to Duty Counsel now. He did nothing to attempt to facilitate Mr Patel’s request to speak to Duty Counsel at 9:35 a.m.

9DC Kama made no further inquiries but stated next,

“DC Kama: So when we get to the station, you’re going to be transported to a police station. Once you get there, you’ll have access to the telephone where you will be able to speak to legal duty counsel, do you understand that part?
Mr. Patel: Yes”.

10In his evidence, DC Kama stated that he carried a special cell phone to use to facilitate a call to counsel if the accused demands it when they are given their rights to counsel. He testified that if Mr. Patel had demanded speaking to a lawyer immediately at the York Mills Centre after being told of his rights to counsel, he would have made it happen. He testified that there was nothing to prevent him from facilitating that call.

11He testified that he would caution the accused that the privacy available for the call may not have been ideal, that there is better privacy at the station, but if Mr. Patel had insisted, he would use the cell phone he had to make it happen. He stated that he would not deny the accused’s request to call Duty Counsel if an accused is insistent.

12He acknowledged that Mr. Patel could have been placed in the back of a scout car with the special cell phone to call counsel. DC Kama testified that he did not facilitate a call to Duty Counsel for Mr. Patel, using the back seat of the scout car for privacy (with the officers out of the car) because Mr. Patel “agreed” with the plan of going to 32 Division and calling Duty Counsel from there.

13I reject this evidence. I do not believe DC Kama when he testified that he would have facilitated a call to counsel prior to booking if Mr. Patel had insisted on it. In fact, he had told Mr. Patel as part of his rights to counsel, that there was a number he could call for free legal advice from duty counsel “right now”. When he asked Mr. Patel if he wanted to call a lawyer “now”, Mr. Patel clarified “you mean the free counsellor?” and when that was confirmed Mr. Patel said “Yes”.

14This was a clear request that was simply ignored by DC Kama. DC Kama’s conduct in ignoring Mr. Patel’s clear request to call Duty Counsel “now” is inconsistent with his evidence that he would have facilitated a call using his special cell phone carried for that purpose if it had been requested.

15He acknowledged that he had an opportunity to act upon the request by facilitating a call from the scout car at the York Mills Centre, or subsequently in the over 20 minutes he was at 32 Division waiting for Mr. Patel to be admitted into the booking hall. He did neither. I do not believe him when he said he would have facilitated a call if Mr. Patel had insisted. In my opinion, he gave misleading evidence to the court on this issue in an attempt to justify his conduct in this case.

16After advising Mr. Patel of his rights to counsel, DC Kama then repeated the charges for which Mr. Patel had been arrested and cautioned him as follows:

DC Kama: “You are not obliged to say anything in answer to the charge, but whatever you say may be given in evidence. Do you understand that?
Mr. Patel: Yes
DC Kama: So that means you don’t have to talk to me. You don’t have to talk to anybody, okay? If you understand, I’m going to, I have called for a uniform car to come and transport you to 32 Division here in Toronto. I’m going to stop this recording and when the officer gets here, we’ll walk you to the car. Do you understand?
Mr. Patel: Okay”
Mr. Patel: Yes

17Police Constable (PC) Brooks was the transport officer assigned to transport Mr. Patel to 32 Division. Mr. Patel was given a pat-down search, and placed in the back of PC Brooks’ scout car and driven to 32 Division between 9:49 and 10:02 a.m.

18PC Brooks drove Mr. Patel to 32 Division where the door to the sallyport was closed. She arrived at 32 Division at 10:02 a.m. and waited until 10:13 a.m. to be admitted into the sallyport, where she waited for Mr. Patel to be admitted into the booking hall at 10:33 a.m.

19PC Brooks had a work cell phone. She stepped out of the squad car and used it to call the booking sergeant at about 10:09 a.m. to advise they were waiting outside the sallyport. She acknowledged that the audio in the in-car camera in the scout car could be turned off and she could have given her phone to Mr. Patel to use to call duty counsel but, in her 5 years of experience, she had never seen that done. She testified that, in her experience, the common practice is to book an accused into the station and provide privacy after booking for the accused to call counsel.

20DC Kama and his partner PC Purchas can be seen on PC Brooks’ in-car camera arriving at 32 Division at 10:11 a.m. Mr. Patel remained handcuffed to the rear in the back seat of PC Brooks’ scout car throughout the transport and until he entered the booking hall at 10:33 a.m. DC Kama made no effort to facilitate a call to duty counsel by Mr. Patel during the time between 10:11 a.m. and when they entered the booking hall at 10:33 a.m.

21The booking process started at 10:33, ended at 10:55, and Mr. Patel was lodged in a cell at 32 Division. He was removed from his cell and spoke to Duty Counsel at 11:33 a.m., approximately 2 hours after his arrest.

22DC Kama acknowledged that Mr. Patel was co-operative at all times during and after the arrest and during the booking process. He did not resist arrest. Mr. Patel was frisk-searched when he was arrested, and had no weapon, and gave the officers no reason to be concerned about his mental health. A criminal records check confirmed he had no criminal record.

The Law on s. 10(b) Facilitation of Rights to Counsel

23The duty on the police to facilitate access to counsel immediately upon arrest or detention as a component of Charter s.10(b) rights, was summarized by Abella J. in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at paras. 24-26, and 28:

“[24] The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[25] This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use the telephone for that purpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, 1972 SCC 17, [1972] S.C.R. 926, at pp. 952-53).

[26] Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross, 1989 SCC 134, [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, 1994 SCC 65, [1994] 3 S.C.R. 236, at p. 269).

[28] But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity”. [Emphasis in original]

24In the leading Charter case of R. v. Strachan, 1988 SCC 25, Dickson C.J.C. considered a claim to a breach of s.10(b) of the Charter where, during the execution of a search warrant, at his apartment, the accused, upon arrest, attempted to call his lawyer from his apartment. The police did not permit this as they wanted to have “matters under control” by conducting the search, and locating 2 registered firearms, and identifying 2 unknown people in the apartment. After the search was concluded, the accused was taken to a police station and called his lawyer from there.

25In considering when the accused should have been permitted to call his lawyer, Dickson C.J.C. stated at para. 34:

“Thus I would say that the violation of s. 10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began from that point.”

26A recent decision to the same effect is the decision of Davies J. in R. v. Regan-Tafreshi, 2023 ONSC 4792, at paras. 248-252.

27In R. v. Rover, 2018 ONCA 745, at paras. 24-28, Doherty J.A. summarized the obligation of the police to facilitate access to advice from counsel under s.10(b) of the Charter:

“[24] Section 10(b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right" (emphasis added).

[25] Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at paras. 38, 42; R. v. Bartle, 1994 SCC 64, [1994] 3 S.C.R. 173, at pp. 191-92.

[26] The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence. For example, in R. v. Strachan, 1988 SCC 25, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see, e.g., R. v. Learning, 2010 ONSC 3816, at paras. 71-75.

[27] These cases have, however, emphasized that concerns of a general or nonspecific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see, e.g., R. v. Patterson, 2006 BCCA 24, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, at para. 78.

[28] Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.”

28Recently, in considering an alleged breach of s. 10(b) of the Charter, Dawe J.A. stated in R. v. Samuels, 2024 ONCA 786 at para. 24:

“When access to counsel is delayed, as it was here, the burden is on the Crown to show that a given delay was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para.24; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350 at para.73.”

29In my opinion, on the particular facts of this case, the Crown has not satisfied its onus to prove that the delay in the facilitation of access to counsel was reasonable.

30DC Kama acknowledged in his evidence that he had a cell phone available which could have been used to facilitate a telephone call to counsel by Mr. Patel as early as immediately upon his arrest at the York Mills Centre. Mr. Patel was frisk-searched upon arrest, had no criminal record, and no weapons. He was placed in handcuffs when he was arrested, which were not removed until he was paraded before the Sergeant at 32 Division at about 10:33 a.m.

31Even after advising that he had access to free legal advice from duty counsel “right now”, and even after Mr. Patel said that he wanted to speak to duty counsel when asked if he wanted to speak to a lawyer “now” at about 9:35 a.m., no efforts were made by DC Kama to explore options such as placing a call to Duty Counsel on his police cell phone and giving Mr. Patel privacy to take the call inside the rear of the closed scout car, before leaving for 32 Division. DC Kama acknowledged that this was reasonably practicable, albeit with less robust privacy than would be available at the police station, but testified he would have facilitated it if Mr. Patel had insisted on it.

32I find that in stating that he wanted to call counsel “now” Mr. Patel asked to call counsel immediately, and that a private call using the privacy of PC Brooks’ scout car (with the ICC audio off) was reasonably practicable, but this was simply ignored by DC Kama, although DC Kama acknowledged in his evidence that he had the ability to make that call happen as early as after Mr. Patel’s arrest at the York Mills Centre. I find that on the particular facts of this case Mr Patel was not given access to a phone that was available for a private call to counsel at the first reasonable opportunity: R. v. Taylor, supra, at para.28.

33Similarly, no consideration was given to facilitating a call to Duty Counsel between 10:02 and 10:33 a.m. when Mr. Patel was waiting in the scout car before being taken in for booking. It was clear from PC Brooks’ evidence that no thought was given to facilitating access to counsel before booking because it was not the usual routine of the Toronto Police Service. No fact-specific inquiry was done by the police to consider facilitating earlier access to counsel for Mr. Patel, an accused without a criminal record, arrested for a non-violent offence who had been searched to protect officer safety and where DC Kama had a special cell phone available to facilitate a private call to counsel.

34There was no evidence that DC Kama considered facilitating a call from the back of the scout car, with officers observing at a distance to ensure privacy. As PC Brooks acknowledged, the audio in the in-car camera in the police scout car in which Mr. Patel sat from 10:02 to 10:33 a.m. could have been turned off to provide privacy. This was simply not considered by the officers. I find that the delay was not justified by officer safety, public safety, or preservation of evidence concerns: See R. v. Regan-Tafreshi, supra, at paras. 248-252 (ONSC).

35The Crown has not met its onus of establishing that the delay was reasonable. I therefore find a breach of Mr. Patel’s s.10(b) rights to counsel.

The Interview of Mr. Patel

36At 1:27 p.m. on March 9, DC Kama and his partner PC Purchas conducted an interview of Mr. Patel at 32 Division. The entire interview was recorded on video, and a transcript included in the Application Record.

37After saying he did not need to have the charges repeated, Mr. Patel said “I don’t want to talk about it, talk about anything.”

38The interview then proceeded with questioning by DC Kama as follows at p. 5 and following:

“OFFICER: I would like you here to have a conversation with you, but you're not obliged to take part of [sic] that conversation. I just want it to be clear.
PATEL: Yeah.
OFFICER: Okay? Uh, I will explain a little bit about ourselves. We work in the Child Exploitation section of the Toronto Police. The focus of our job is to identify and rescue children. And sometimes through the course of what we do, we come into contact with people that we end up arresting, okay, which is the case today. However, our main focus is to help and rescue children. And that’s why we wanna talk to you today. And considering the aspect of our job, I believe it will be neglectful of me to simply throw you in a cell and disappear and never talk to you or try to talk to you at any point, okay? I don’t need you to admit to anything. I don’t need you to admit to making or possessing child pornography, because that's evidence and we're looking at that from[sic] another factor.
PATEL: Sure.
OFFICER: But what I'm interested in is getting to know you …
PATEL: Okay.
OFFICER: … and finding background questions in order to determine whether or not we, at the end, believe you -, you're a risk to the community, a risk to children.
PATEL: Okay.
OFFICER: Okay. So that’s -, I'm gonna start with the simple things, like, uh, background, like your -, I understand based on the information on the driver's licence, you live in Whitby. How long have you lived there?”

39After asking a series of innocuous questions about Mr. Patel’s background, and asking if Mr. Patel knew what child pornography and luring were, DC Kama stated at pp. 12-13:

“OFFICER: “Uh, so I did tell you earlier that our, our main focus is, is to rescue children, to protect children, and to make sure they're safe. And that's why, and that’s why we wanna talk to you. Uh, uh, we wanna determine whether you’re a higher risk to the community or lower risk to the community. And the purpose of this conversation is not to get evidence from you, not to trick you into giving us evidence, because we already have the evidence, okay? We’ve, to talk to you, we’ve already talked to, uh, Emily (ph), okay? And we've already gotten what we need from, from her, okay? So now we wanna talk to you to determine like who you are. Is this something that you do all the time? Do you meet underage …
PATEL: I don't know if I should say it, but I have never met anybody online before.
OFFICER: Okay.
PATEL: This was my first attempt to meet somebody online.
OFFICER: Okay. But do you try to meet you-, young girls online?
PATEL: I never met anybody online in my 10 years of married life.”

40The officer quickly began to ask questions about the offence of luring for which Mr. Patel was arrested, whether Emily had agreed to meet, that the meeting was for “sexual kind of things”, and what website he used to start speaking to her.

41When at one point Mr. Patel said that he did not want to discuss what he and Emily discussed, the following exchange occurred at p. 32:

“OFFICER: Okay. So remember that I told you we - , that we were not here to get evidence from you, because we already have it, right? We do have copies of the chats that we got from Emily's phone. So if, if I was to put some to you. Do you remember sending this picture?
PATEL: Yes
OFFICER: Okay.
PATEL: Yes.
OFFICER: Did she ask you to send this picture?
PATEL: No. But we talked about a few things, so maybe that’s why I send the picture.”

42At one point, at pp. 39-40, Mr. Patel asked if “Amelie”, the name DC Kama used as a fictitious child in the chats, was a real person. PC Purchas lied and assured him she was a real person.

43PC Purchas made it clear in the interview that, in light of the fact that Mr. Patel had condoms when arrested, he did not believe Mr. Patel when he said that he had decided it was wrong to have sex with Amelie, and decided not to do so, prior to arriving to meet her.

44Mr. Patel’s demeanour on the video shows he became extremely upset and, as he confirmed in his evidence, he was almost crying. He said at p. 47:

“As you guys said, you are not trying to get evidence here. You already have the evidence.”

45DC Kama testified that his purpose in the interview was 2-fold – to speak to the accused to “build a better case” and also to understand the accused to be able to conduct better investigations in the future.

46He stated that he believed too often accused are arrested and no effort is made to speak with them. He felt it would be neglecting his duty to not speak to the accused, and that this is a personal duty he imposes on himself. He denied that by telling the accused that the interview was “not to get evidence” he had subverted the previous caution because Mr. Patel had understood his rights.

47He admitted that he considered Mr. Patel to have “opened the door” by saying, after being told that the interview was not to obtain evidence, that this was his first attempt to meet someone online. DC Kama stated that he then seized the opportunity to get information on the offence, and continued to do so throughout the rest of the interview. He acknowledged that he asked numerous questions about the offence, including Mr. Patel’s purpose in meeting Amelie, an essential element of the offence of luring.

48DC Kama acknowledged that at no time did he or DC Purchas ever advise Mr. Patel that the stated purpose of the interview had changed and they were now getting evidence in relation to the offences with which he was charged.

49I find that DC Kama’s purpose in conducting the interview was principally to build a stronger case by getting admissions to prove the elements of the offence of luring. To do this he lied to Mr. Patel to reassure him that he was not obtaining evidence as the police had their evidence. In my opinion this was a deliberate subversion of Mr. Patel’s right to remain silent. The effect of this lie was to mislead Mr. Patel, to negate the effect of the caution and to undermine his previously asserted right to remain silent. It struck at the very heart of Mr. Patel’s fundamental rights guaranteed by s.7 of the Charter.

50I do not believe DC Kama when he claimed in his testimony to this court that his other purpose was to learn more from Mr. Patel to assist him in his other investigations into other people. I find this was a false claim to try to justify what I find was the deliberate execution of a trick to undermine the caution given, and Mr. Patel’s exercise of his right to remain silent. I find that DC Kama mislead Mr. Patel about the true purpose of the interview which was, as DC Kama conceded, to “build a better case”.

51DC Kama admitted in cross-examination that he knew that anything of evidentiary value in the statement would be used as evidence. The fact that DC Kama was questioning Mr. Patel to obtain evidence, and that he intended this, is confirmed by the fact that he expressly referred to the interview of Mr. Patel in the information to obtain a search warrant for Mr. Patel’s phone, and residence, the day after the interview.

Other Features of the March 9 Interview

52DC Kama admitted in his evidence that he misled Mr. Patel in the interview that Amelie was a real child.

53At the beginning of the interview, shortly before telling Mr. Patel that the purpose of the interview was to determine whether he was a risk to children in the community, he contrasted conducting this interview with the other option of throwing Mr. Patel into a cell, disappearing and never talking to him. DC Kama stated:

“However, our main focus is to help and rescue children. And that’s why we want to talk to you today. And considering the aspect of our job, I believe it will be neglectful of me to simply throw you in a cell and disappear and never talk to you or try to talk to you at any point okay?”

54I find that the implicit assertion in DC Kama’s statement, followed by the claim that the purpose of the interview was not to get evidence, but to assess Mr. Patel’s risk to children, was that answering DC Kama’s questions would assist Mr. Patel in being released.

55I accept Mr. Patel’s evidence that he only spoke to the police because they told him it was not evidence, but rather information to assess his risk to the public. He had no knowledge of the criminal justice system, and believed that DC Kama could release him that day if he answered their questions and showed that he was not a risk to the public.

56He testified he had spoken to duty counsel before the interview and had decided he would not answer any police questions until he had further legal advice from duty counsel or his lawyer. When the interview strayed into areas specific to his interaction with Amelie, Mr. Patel challenged why he was being asked that, only to be reassured by DC Kama that the questions were not being asked to get evidence, but only to determine his risk to the public. Mr. Patel testified that based on this assurance he answered their questions as he inferred that, if it was to assess his risk to the public, he could be released if the officers were persuaded that he did not present a risk.

57Mr. Patel was challenged in cross-examination on his evidence that he had not heard about a bail hearing to determine if he could be released until he was told that by DC Kama at the end of his interview. The booking video showed that the Sergeant said in the course of booking, while speaking to both Mr. Patel and DC Kama earlier that day at 10:54 a.m.:

“Okay so sir, you’re going to be held in our custody pending further investigation and then your bail hearing, so you could put him into cell five. Keep your mask.”

58Mr. Patel testified that he had forgotten this reference to the bail hearing when he testified, but in any event the Sergeant did not say who made the decision on release, and when DC Kama told him his questions were to determine his risk to children he believed DC Kama could effect his release based on his answers.

59I accept Mr. Patel’s evidence that he believed that DC Kama was in a position to decide whether he could be released that day.

60I find that Mr. Patel was intentionally misled by DC Kama, that he only answered questions because he was misled that the answers would not be used as evidence, and were to assess his risk to children, and that if he had not been misled, he would not have spoken to the police.

The Alleged Breach of s.7 of the Charter in the Conduct of the Interview of Mr. Patel

61The right to remain silent protected by section 7 of the Charter is the right of a person in custody to make an informed choice as to whether to speak to the authorities: R. v. Hebert, 1990 SCC 118, [1990] 2 S.C.R. 151, at pp. 176-178.

62Section 7 of the Charter ensures that the state cannot use its superior power over a detained person to effectively deprive a detained person of the choice. As McLachlin J. stated in R. v. Hebert, supra at pp.180-181:

“The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state. On this view, the scope of the right must extend to exclude tricks which would effectively deprive the suspect of this choice. To permit the authorities to trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make a statement is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be in accordance with the purpose of the Charter.”

63The Supreme Court in R. v. Whittle, 1994 SCC 55, [1994] 2 S.C.R. 914 at p.932 summarized the Charter guarantee of the right of a detainee to choose whether to speak to the police as follows:

“The preoccupation of the common law and Charter cases in preserving for the suspect the right to choose has been in relation to state action. Did the action of the police authorities deprive the suspect of making an effective choice by reason of coercion, trickery, or misinformation or the lack of information?”

64As the Supreme Court has noted, even where a person is a suspect, not yet arrested and detained, police conduct that deceives the person that a statement made is not evidence that can be used against them is a breach of s.7 and renders a statement given by the person inadmissible in evidence.

65In R. v. Tessier, 2022 SCC 35, at para. 86, Kasirer J. notes that where there is evidence that an accused’s statement may be involuntary because he did not know that it may be used in evidence a detailed inquiry is appropriate.

66He states at para. 87:

“In these circumstances, it is appropriate for the trier of fact to undertake a contextual inquiry to determine whether an unfairness arose that vitiates voluntariness by denying the right to silence. This might arise where there is evidence that police trickery, for example circumstances in which the absence of a caution is the result of a wilful failure to give a caution, or a deliberate tactic to manipulate the suspect into thinking they have nothing at stake..... Impropriety on the part of the police, usually in the form of obscuring the jeopardy faced by the suspect to encourage cooperation, may unfairly deny a suspect their right to silence. But even if it does not rise to that level, deceiving the interviewee into thinking that, as a mere witness they are in no jeopardy and that their statements will not be used in evidence against them could preclude admissibility at the end of the day. “The ability to make a meaningful choice remains pertinent where trickery is involved” write Lederman, Fuerst and Stewart “and exclusion is mandated where there is a reasonable doubt as to the confession’s voluntariness in this regard”.”

67As noted by Hill J. in R. v. Van Wyck, 1999 Carswell Ont. 4822 at para.149:

“Custody imports a relationship of dependency-the prisoner cannot walk away-the prisoner relies upon his or her jailers for not only the basic necessities of life, but also for civilized recognition of individual dignity associated with respecting a lawful refusal to cooperate in the creation of self-incriminatory evidence. Accordingly, it has been said that a person in custody is “in a position of disadvantage relative to the state” because he or she “may be at risk of incriminating him or herself: R. v. Bartle, supra at 300, per Lamer C.J.C.”

68Accordingly, s. 7 of the Charter protects an accused in custody from an unfair use of the state’s superior power to unfairly subvert an accused’s constitutional right to choose not to make a statement to the police.

69As summarized by Hill J. in R. v. Van Wyck, supra at para.154:

“The loss of equilibrium [between the accused and the state] is described in Hebert ....:
“... The state is not entitled to use its superior power to override the suspect’s will and negate his or her choice.
The scope of the right [to silence] must extend to exclude tricks that would effectively deprive the suspect of this choice.
Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not?
Drawing the balance where I have suggested the Charter draws it permits the courts to correct abuses of power against the individual...
Police persuasion, short of denying the suspect the right to choose ... does not breach the right to silence.
The violation of the suspect’s rights occurs only when the Crown acts to subvert the suspect’s constitutional right to choose not to make a statement to the authorities.
When the police use subterfuge to interrogate an accused after he had advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect’s constitutional right to silence: the suspect’s rights are breached because he has been deprived of his choice.
This right of choice comprehends the notion that the... actions of the authorities have not unfairly frustrated his or her decision on the question of whether to make a statement to the authorities.”

70In R. v. Van Wyck, supra, the police interviewers told accused that they had a few questions for the bail package. This created the risk that the prisoner might be led to respond to police inquiries out of a desire to cooperate and to provide information in the hope of securing his release. As Hill J. noted at paragraph 159 of that case:

“The introduction of the topic of bail, without a clear line of demarcation, in the sense of notice of the commencement of interrogation to elicit incriminatory facts was, in the circumstances, little more than an unfair gimmick or subterfuge designed to undermine the right to make an informed choice about answering a series of police questions”.

71As noted earlier, I find in this case that the police lied to Mr. Patel about the purpose of their questions when they told him that it was not to obtain evidence. I find that this was a deliberate trick that subverted his right to silence. I accept Mr. Patel’s evidence that, based on the police assertion that the purpose of the questions was to determine his risk to the public, he believed, based on these assurances, that the answers to be given were to determine his eligibility for release from custody that day. The false statement that the interview was not conducted to obtain evidence amounted to an unfair use of the superior power of the state to completely subvert Mr. Patel’s constitutional right to choose not to make a statement to the authorities and amounted to a serious breach of his section 7 right to remain silent.

The Alleged Failure to Advise of Rights to Counsel in an Expanded Investigation

72When he conducted the interview DC Kama was in possession of his chats with Mr. Patel in which DC Kama was posing as a 13-year old girl. In the course of the chats, Mr. Patel claimed to have had oral sex with a 15-year old girl before. If this had occurred, it would be the offence of sexual interference with an unknown girl, for which Mr. Patel was neither arrested or cautioned.

73DC Kama acknowledged that in interviewing Mr. Patel he wanted to learn whether Mr. Patel was committing sexual offences with other children. At p. 27 of the interview, he asked Mr. Patel if he had ever touched a child for a sexual purpose. He admitted that in this question he was asking him if he had committed sexual interference, an offence under s.151 of the Criminal Code. He also asked Mr. Patel whether he had committed luring with other children. He did not tell Mr. Patel that he was being investigated for other criminal offences in addition to the offences involving Amelie.

74When he testified further in reply, DC Kama testified that, although he asked Mr. Patel if he had ever had sex with a child, and while having sex with a child would be a crime, he was not investigating a separate sexual interference offence, but rather was only interested to see how quickly he answered the question, and how “strongly” as an indication of whether he was lying or not.

75He testified that, even though Mr. Patel had said in his chats that he had performed oral sex on a 15-year old girl, DC Kama claimed he had no evidentiary basis to suspect that Mr. Patel had had sex with a child. While he claimed he was not investigating Mr. Patel for a separate sexual interference charge he admitted that one step in such an investigation would be to ask a person if he had ever done that.

76I find that DC Kama’s evidence that he was not investigating Mr. Patel for a separate sexual interference offence is not credible. His statement that he wanted to see how fast he answered as a test of credibility does not make sense when there is no evidence that DC Kama had independent evidence that Mr. Patel had in fact had sex with a 15-year old as he had claimed in his chat.

77I find that in light of Mr. Patel’s statement in the chat that he had had oral sex with a 15-year old, made in the context of the highly sexual nature of Mr. Patel’s statements in the chats to “Amelie”, DC Kama was engaged in an investigation of a separate sexual interference offence by asking Mr. Patel if he had ever touched a child for a sexual purpose.

78DC Kama acknowledged that in the interview of Mr. Patel he also asked him about other luring offences.

79The evidence is clear that he did not provide rights to counsel or a caution in relation to these separate offences at any time.

The Law on s.10(a) and 10(b) when there are several bases for the detention or the purpose of detention and interrogation expands

80The law is clear that, when an accused is detained in relation to a specific offence, and the police subsequently expand their investigation to have an additional purpose, the original offence being investigated, and another separate offence, the police have an obligation under s.10(a) of the Charter to inform the accused of the expanded investigative intention.

81As the Supreme Court of Canada noted in R. v. Borden, 1994 SCC 63, at para. 43:

“Once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dual investigative intention. Therefore, I find that the right of the respondent under s.10(a) of the Charter to be informed of the reasons for his detention was violated in this case.”

82Furthermore, it is clear that an accused is entitled to know the entire basis for his detention, and potential jeopardy, to be able to meaningfully exercise his s.10(b) right to counsel.

83The circumstances in which police are required to re-state the right to counsel when the basis for detention is expanded is comprehensively addressed by Doherty J.A. in R. v. Sawatsky, 1997 Ont. C.A., at paras 29-31, 34-36:

“Knowledge of the purpose of the detention is so important to the informed exercise of the right to counsel that the police are constitutionally required by s. 10(a) of the Charter to promptly inform a detained person of the reasons for her detention. Where there is more than one reason for a detention, they must all be disclosed: R. v. Borden, supra, at p. 165 S.C.R., p. 419 C.C.C.

The link between a detained person's need to understand the extent of her jeopardy, that is, the nature and extent of her risk of self-incrimination, and the effective exercise of the right to counsel, provides the key to the determination of when the police will be required to reiterate the right to counsel in the course of an ongoing detention. If the risk of self-incrimination changes, the right to counsel must be restated so that a detainee can decide in the face of the new risk whether to exercise her right to counsel. The risk may change either because the reason for the detention changes or the focus of the police inquiry changes. Referring to the latter situation, McLachlin J. in R. v. Evans, supra, at p. 893 S.C.R., pp. 306-07 C.C.C. wrote:

I do, however, affirm that, in order to comply with the first of the three duties set out above [the police duty to inform the detainee of the right to counsel] the police must restate the accused's right to counsel where there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning. (Emphasis added)

In this passage, McLachlin J. observes that the focus of the police investigation may change either because the offence changes to a significantly more serious one, even though the circumstances under investigation remain the same (e.g., R. v. Black, supra), or because the investigation turns to a different and unrelated offence (e.g., R. v. Chartrand, supra). Either change triggers the obligation to restate the detainee's s. 10(b) rights

Crown counsel submits that Constable Chartier's questions never got beyond the “exploratory” stage and that most, if not all, of the information pertaining to the Kingston fire was volunteered spontaneously by the appellant. Relying on R. v. Evans, supra, counsel submits that as the questioning did not go beyond the “exploratory” stage, there was no need to readvise the appellant of her s. 10(b) rights in relation to the Kingston fire.

The trial judge made no finding of fact on this issue. The distinction between exploratory questions preceding an investigation and questions which are part of an investigation can be difficult to make. In many situations, there is no clear demarcation. Exploration flows seamlessly into investigation.

Considering the purpose underlying s. 10(b) and its fundamental importance in maintaining the fairness of the criminal investigatory process, I think it is appropriate to decide close cases in favour of the reiteration of the s. 10(b) rights. The police should be encouraged to readvise detainees of the right to counsel when the focus of an investigation begins to shift or broaden. The administration of criminal justice is better served by a restatement of the detainee’s s. 10(b) rights which is a little early than one which is too late to serve its intended purpose. Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee's right to counsel and connect that right to the new allegations.”

84In this case, prior to Mr. Patel’s interview, the police were in possession of Mr. Patel’s chats with DC Kama, posing as a 13-year old girl, containing content of a highly sexual nature. Mr. Patel had stated in the chat that he had had oral sex with a 15-year old. He appeared to be arranging a meeting with “Amelie” on March 9 for the purpose of engaging in sexual relations. In the chats, Mr. Patel had expressed an interest in oral sex with teenage girls. DC Kama told Mr. Patel in the interview that he wanted to determine the extent of the risk Mr. Patel posed to children. In this context, he asked him if he had lured other children or had touched a child for a sexual purpose.

85In my opinion, this questioning went beyond exploratory questions preceding an investigation, and were questions that were part of a more general investigation of Mr. Patel in relation to other possible sexual offences in relation to other children on other occasions, in addition to the offences in relation to “Amelie” in relation to which he had been arrested and cautioned.

86Accordingly, the police were obliged to re-state Mr. Patel’s right to counsel in relation to these additional offences being investigated, which they failed to do. By failing to do this, they violated Mr. Patel’s rights under s.10(b) of the Charter.

Denial of Access to the Telephone

87Mr. Patel raised during his booking that he wanted to call his family.

88He asked the Staff Sergeant as follows:

“Mr. Patel: How do I talk to someone if I need to?
DC Kama: You will have reasonable use of the telephone
Sgt. Sager: We’re gonna put you in touch with duty counsel. We have a number that we call for duty counsel
Mr. Patel: Like what if I want to talk to a family member?
Sgt. Sager: A family member? Right now it’s only going to be…
Mr. Patel: After I talk to the Duty Counsel, then I’m going to be able to talk to them?
Sgt. Sager: You will probably only be able to talk to a lawyer right now.
Mr. Patel: Okay
Sgt. Sager: It’ll be up to the detective to decide who else. I know nothing about your case, so I can’t tell you.”
Mr. Patel: Okay. Sure. No worries.”

89During the interview, DC Kama made it clear that he was “the Detective” referred to, as he told Mr. Patel that he was Detective Constable Kama “the officer-in-charge of this case.” (Transcript, p. 3)

90At the end of the interview shortly after 2:33 p.m., the following exchange occurred at p. 61 between DC Kama and Mr. Patel:

“OFFICER: Okay? And we’ll walk you back to the cell. So court now is virtual. Its not in person. So you’ll be in front of a screen and that’s how you go to court okay?
PATEL: Okay. So right here?
OFFICER: Not here, in a different room.
PATEL: Okay.
OFFICER: Okay. So let's go back to the cells.
PATEL: Oh, the -, I go back to the cell and then we’re gonna come back.
OFFICER: And then from there, yes.
PATEL: So how long this going to take?
OFFICER: Oh, I can't really give you a, a time, but it’s will be late.
PATEL: So when would I get my phone back to just contact my family member?
OFFICER: The phone was seized. You can, okay. The phone was seized. I explained that to you. We have to, we have to go to the court.
PATEL: But then my family will be worried, right? Because I haven’t talked to them since morning, right?
OFFICER: Okay. Well, you can have, uh, reasonable use of the telephone, I’m sure here. And you'll be able to tell them, you know your phone number by, by heart.
PATEL: Yeah.
OFFICER: Okay. So I’m sure they can make, uh, I’m sure they can make that happen.
PATEL: Uh, when would that be?
OFFICER: I, I can’t tell you. I can only ask, okay?
PATEL: Okay.
OFFICER: I can't tell you when, but I can ask.
PATEL: Okay.”

91DC Kama was the officer in the above exchange. He conceded in his evidence that in this exchange Mr. Patel asked to call his family. He acknowledged that as the officer-in-charge of the investigation he was responsible to decide on a prisoner’s request to use the phone, at least while he was on duty and at the station. I find that he lied to Mr. Patel when he said that “I can only ask” if Mr. Patel could call his family. He was the officer who could determine if and when Mr. Patel could call his family, having been told by Mr. Patel that they would be worried as he had not spoken to them since that morning.

92DC Kama admitted he delayed the decision on letting Mr. Patel call that day until it was decided that the Toronto Police Service (“TPS”) would not execute a search warrant that day. He agreed he was not prepared to give him access to the phone to call his family that day.

93He testified that on March 9 he did not have enough manpower to execute a search warrant at Mr. Patel’s house. He stated that he had no grounds to execute a search warrant at night.

94He testified that because Mr. Patel had not called his family he had no concern that evidence might be destroyed.

95He testified when he left 32 Division at the end of his shift on March 9, he did not leave instructions for Mr. Patel to be refused access to the phone to call his family.

96He testified that he took a chance that Mr. Patel might call and ask his family to destroy evidence on his computer, and if Mr. Patel had used the phone that night, he knew that his family might destroy evidence, and that nothing would be found when the search warrant was executed. He stated that he would not deny access to the phone for just this reason. He stated he just took a chance by not denying access to the phone to Mr. Patel. He stated that he ensured Mr. Patel had access to the phone and that he knew his home number to call.

97I do not accept his evidence that he ensured Mr. Patel could use the phone and just took a chance that he did not.

98I find that in telling Mr. Patel that someone else had to decide if and when he could use the phone to call his family, and “I can only ask”, DC Kama was lying to Mr. Patel. The Staff Sgt. had confirmed that the Detective (ie: DC Kama, the officer-in-charge) made that decision.

99There is no evidence that DC Kama ever “asked” anyone at 32 Division for Mr. Patel to have access to the phone because it was DC Kama who made that decision.

100DC Kama misled Mr. Patel because he knew he had not yet obtained the search warrant for Mr. Patel’s house so he misled him into thinking some officer may decide to let him call his home, and that DC Kama would ask.

101In fact, DC Kama admitted in cross-examination that if the booker had called him when he was at the station to get permission for Mr. Patel to call his family, he would have said to delay or deny it because he had not obtained the search warrant on March 9.

102I do not believe DC Kama when he testified to the court that he ensured Mr. Patel had access to the phone to call his family and was prepared to take a chance that he would not make the call, and took the chance that if Mr. Patel did call, the evidence may have disappeared when he executed the search warrant the next day. I find on the evidence that, in fact, DC Kama had determined that Mr. Patel would not be permitted to call his family that day.

103I find that DC Kama deliberately deflected Mr. Patel’s stated wish to call his family and, as a result, as confirmed in the evidence of Mr. Patel’s brother, Parthkumar Patel, and the evidence of Monali Patel, Mr. Patel’s wife, Mr. Patel’s wife, parents and sibling worried that he had come to harm when he failed to return home on March 9. They worried that he may be dead, as it was so unusual for him to not return home, or call to explain his delay in getting home from work. I accept Monali Patel’s evidence that family members cried during this time fearing that Mr. Patel was dead.

104Mr. Patel’s brother flew from Kelowna to Toronto to assist Mr. Patel’s family to cope with his unexplained failure to return home on March 9. He contacted numerous hospitals to see if his brother was there. Family members contacted GO transit to try to determine if he had travelled on the GO train as was his practice to and from work. They checked to see if his bank accounts had been used. Mrs. Patel contacted a work colleague of Mr. Patel and learned that he had not been at work that day which increased her fear and anxiety.

105Mrs. Patel sought assistance from Durham Regional Police who met with her but provided no information about Mr. Patel’s whereabouts, even though they advised in an email to Mrs. Patel at 4:05 a.m. on March 10 that they had informed Toronto Police of their efforts to locate Mr. Patel.

106I find that Mr. Patel’s wife and family experienced significant distress over the period from March 9 in the early evening until the morning of March 10 as a result of receiving no information from the police that Mr. Patel was in custody, notwithstanding the fact that they had reached out to Durham Police for assistance in finding Mr. Patel.

107Mr. Patel was not taken to court on March 9 and accordingly it was only on March 10 between 9:30 and 10 a.m., about 24 hours after Mr. Patel’s arrest, that the family learned from Duty Counsel assisting on Mr. Patel’s bail, that he had been in TPS custody for the whole time they had been anxiously searching for him.

108Mrs. Patel testified she was shocked to hear from duty counsel that her husband was arrested and had been in custody all the time they were searching for him. She testified they had contacted the police and, if he had been arrested, she assumed they would have told her in response to their complaint that he was missing. She testified that she expected that, by contacting the police, the family would have been told if Mr. Patel was in custody. She testified that if they had been told this as a result of their inquiries, the family would not have suffered so much.

109Neither the Durham Regional Police, who had been contacted to try to find Mr. Patel, or the TPS, ever contacted the family to advise Mr. Patel was in custody of the TPS.

Failure to Get Mr. Patel to Court on March 9

110DC Kama finished the interview of Mr. Patel at 2:33 p.m. As confirmed in the interview, his attendance for his bail hearing was virtual, so there was no need to transport him anywhere.

111DC Kama testified that before the interview, between arriving at 32 Division and starting the interview at about 1:27 p.m. he was working to prepare the case for submission to court, assisted by Edit Tamas. This involved preparing the synopsis, bail papers, list of officers involved in the investigation, etc. He testified that the time of arrest was incorrectly entered into Versadex as 10:40 a.m. rather than 9:35 a.m. in error.

112He testified that Edit Tamas worked on the submission while he interviewed Mr. Patel until about 2:30 p.m. The McNeil checklist was started at 10:48 a.m. and the video evidence log at 12:07 p.m. DC Kama testified that he discussed with his supervisor his need for a search warrant and that they lacked the manpower to execute a search warrant on March 9 because it was after 2 p.m., the end of the shift of the persons in his unit.

113The McNeil Checklist part of the case to be sent to court was entered in Versadex at 15:04:42. The entire bail package including the prosecution summary, show cause, and details for the information to be sworn was printed at 15:04:39. DC Kama testified that that was the time it was submitted to charge processing, triggering the ability of the case to be placed before the court.

114DC Kama testified that to trigger an accused going to court, the court package is entered into Versadex, and it is “pushed” to charge processing. He testified that he called charge processing on March 9 when he forwarded the court package to charge processing. He testified that once he submitted the case to charge processing his duty to get the case to court for a bail hearing as soon as possible, and in any event within 24 hours, is fulfilled.

115He acknowledged that, as the officer-in-charge, it was his responsibility under s.503 of the Criminal Code to get Mr. Patel to court for a bail hearing, “without unreasonable delay”, and in any event within 24 hours of arrest.

116He acknowledged that after he submitted the case and told the court officers it was ready to go, he did nothing to ensure Mr. Patel got into court on March 9. He made no further inquiries to ensure Mr. Patel was appearing in court that day, or to determine if Mr. Patel had, in fact, appeared in court on March 9.

117Mr. Patel did not attend court at all, by video or in person, on March 9. His first attendance in bail court did not occur until 5:00 p.m. on March 10.

118DC Kama did not start drafting the search warrant application until 6:00 a.m. on March 10. He submitted it at 9:30, the search warrant was granted at 11:11 a.m., and the TPS operations centre was notified at 11:42 and Durham Regional Police at 11:48 because it would be executed in Durham.

119In correspondence to Duty Counsel at 9:22 a.m. on March 10, Ms. Valarezo, the Crown bail vettor, stated:

“The Crown is requesting a 2 day adjournment pursuant to s.516(1) to allow the police time to obtain and execute a search warrant in the accused’s home. They have RPG to believe that Mr. Patel has CP at home.”

120Shortly after she spoke to Duty Counsel about being a surety for Mr. Patel, Mrs. Patel sent her identification and photo, and a surety declaration, to Duty Counsel at about 10:15 a.m. on March 10.

121The search warrant was executed at Mr. Patel’s house in Durham at 1:34 p.m. on Friday, March 10. Mrs. Patel facilitated the execution of the search warrant. She was distraught and broke down.

122The search of the house was completed at 2:04 p.m. and the search team left the house at that time.

123DC Kama did not contact the Crown at 2:04 p.m. to advise that the search had been completed, and that the request for a 2-day hold was no longer needed.

124He did not call the Crown at all.

125At 4:22 p.m., he got a call from defence counsel acting for Mr. Patel who asked him to call the Crown and advise that the search warrant had been executed.

126He emailed the Crown at 4:32 p.m. and advised that the search warrant had been executed. He acknowledged that he could have called sooner, and in his evidence on July 25 could not recall the reason for the delay.

127When he testified on November 1 in reply, DC Kama’s evidence on this issue changed. He claimed to now remember that he had driven back to 42 Division and, as was his usual practice, he updated Versadex with a supplementary report to record that the search warrant had been executed and that the 2-day hold was no longer required. He testified that he assumed this information would have been available to the Crown at bail court.

128He acknowledged that he could have informed the Crown earlier that the 2-day hold was no longer needed, but he did not do so.

129Mr. Patel’s bail was not addressed in court until Friday, March 10 when he first appeared in bail court at 5:00 p.m. Mr. DeMarco had been retained to assist Mr. Patel.

130In the court attendance at 5:00 p.m., the Justice of the Peace stated to counsel:

“He may want to leave, but we can’t deal with his matter today. I can suggest that his matter be given priority on Monday to the extent that it can be, insofar as we are not able to reach his matter today.”

131As Mrs. Patel was not accepted by the Crown as a surety for Mr. Patel’s release, the bail hearing was not held, and the case was adjourned to Monday March 13, 2023 when he was released on a consent release with 2 sureties – Mr. Patel’s mother and his mother-in-law.

The Law: s. 503 Criminal Code

132Section 503 of the Criminal Code states:

“(1) Subject to the other provisions of this section, a peace officer who arrests a person with or without a warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law: (a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and (b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.”

133The Ontario Court of Appeal has confirmed the importance of the right guaranteed in s. 503 as an important right fundamental to the liberty of the subject.

134In R. v. Poirier, 2016 ONCA 582, Weiler J.A. stated for the Court at paras. 57 and 61:

“[57] Section 503 reflects an important fundamental right in our society, namely, the liberty of the subject, which is not to be taken away except in accordance with the law: R. v. Simpson, 1994 NLCA 4528, [1994] N.J. No. 69, 88 C.C.C. (3d) 377 (C.A.), at pp. 386-87 C.C.C., rev’d on other grounds 1995 SCC 120, [1995] 1 S.C.R. 449. In holding that the accused's detention was arbitrary in R. v. Truchanek, 1984 BC SC 5683, [1984] B.C.J. No. 3200, 39 C.R. (3d) 137 (Co. Ct.), Hogarth Co. Ct. J. stated, at pp. 170-71 C.R.:

“[E]ven if the detention was but for hours, even if the detention was to obtain evidence of the commission of a serious crime, the deliberate illegal refusal to present [the accused] according to law was in my view a matter of vital importance for the people of this community, as it opens up to the police the idea that any one of us who has the misfortune to be arrested could be held for any length of time in order to extract a confession, to locate evidence and, for that matter, for any other purpose at their whim.”

First, s. 503 requires that the appellant be brought before a justice of the peace “without unreasonable delay”, not just within 24 hours. Instead, 24 hours represents the outer limit: R. v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241, at p. 256 S.C.R. ...”

135Where the police fail to bring an accused before a justice of the peace without delay there is an arbitrary detention, and a breach of s. 9 of the Charter, whether the failure to comply was deliberate or simply neglectful: R. v. Poirier, supra, at para 89; R. v. Raios, 2018 ONSC 6867, per Faieta, J. at para. 22.

136The fact that the police intended to seek an order under section 516 to adjourn the bail hearing for two days, in order to execute the search warrant, is no justification for failing to present Mr. Patel to a justice of the peace to ensure that any further detention was subject to court supervision.

137As the Court of Appeal noted in R. v. Poirier, supra, at para 58:

“Compliance with s. 503 is not simply a matter of form. Nor does it matter that the appellant may not likely have been released by a justice of the peace while the bed pan vigil was being conducted. If the police had complied with section 503, the manner in which the appellant continued to be detained would have been subject to court supervision. The appellant’s detention would have changed from being a detention pursuant to the execution of a general warrant to a court monitored detention that ensured the ongoing protection of the appellant’s Charter rights.”

138In R. v. Mendez, 2014 ONSC 498, Forestell J. has summarized the requirement of s.503 of the Criminal Code and its statutory purpose at paras. 104-109:

“[104] Section 503(1) requires the arresting officer to bring an arrested person, who is not released under any other provision of the Criminal Code, before a justice without unreasonable delay to be dealt with according to law. The outer limit for this delay is 24 hours: R. v. Simpson (1994), 1994 NLCA 4528, 117 Nfld. & P.E.I.R. 110 (C.A.), rev’d on other grounds, 1995 SCC 120, [1995] 1 S.C.R. 449; R. v. Koszulap (1974), 1974 ONCA 1461, 20 C.C.C. (2d) 193 (Ont. C.A.).

[105] An inquiry into the seriousness of the infringing conduct begins with an examination of the purposes underlying s. 503. A review of the jurisprudence reveals two interrelated purposes: Judicial review of detention and the transfer of control of accused from the police to the courts.

[106] As Nordheimer J. noted in R. v. Brown, [2007] O.J. No. 2830 (S.C.), at para. 9, aff’d 2009 ONCA 633, 247 C.C.C. (3d) 11:

The clear spirit and intent… [of ss. 503 and 516 are] to ensure that a person who is arrested has the ability, at the earliest possible opportunity, to have a judicial officer review their detention and determine if the continuation of that detention is warranted. There can be no debate that any person who is arrested is entitled to prompt and early determination as to the legitimacy and necessity of their detention. This is normally accomplished through a formal bail hearing.

[107] Nordheimer J. also noted, at para. 10, that this purpose is bolstered by the Charter in ss. 11(e) (constitutional right to bail) and 10(c) (right to have detention determined by way of Habeas Corpus).

[108] Similarly, the Newfoundland Court of Appeal stated in R. v. Simpson, at para. 39, that:

It is the duty of the arresting officer to ensure that the person is not detained any longer than is absolutely necessary and that, if he or she is not authorized by law to bring about the release, the person is brought before a justice of the peace who may determine whether the detention should continue or not…

[109] Section 503 has a second purpose: to transfer control of the accused from police to the courts and the prosecution....”

139The importance of this right in the protection of individual liberty is clearly established in the jurisprudence. As Forestell J. notes at paras. 111-112 of R. v. Mendez, supra,

“[111] While the ability of the police to continue to investigate is not curtailed by a judicial remand, the remand introduces a level of judicial supervision over the detention. The importance of the provision has been recognized by Canadian courts. In R. v. Simpson, at para. 36, Goodridge C.J.N. stated,

Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation.

[112] In the context of discussing the predecessor to s. 503, Martin J.A. wrote in R. v. Koszulap, at para. 32:

[T]he administration of criminal justice in this country is predicated upon the due observance of fundamental safeguards. It is the duty of the courts, at all levels, to be vigilant in making sure that these safeguards are not overlooked or ignored.”

140Sitting in the Superior Court in Toronto, Forestell J. noted the systemic nature of the problem of the failure of the police to comply with s.503 of the Criminal Code for a decade in 2014: R. v. Mendez, supra, at para. 114.

141Band J. in R. v. Noor, 2022 ONCJ 140 at para. 50 agreed with the conclusion in R. v. Mendez, supra, that non-compliance with s. 503 has been systemic in Toronto for, as he found, for “close to 20 years”.

142In R. v. Raios, 2018 ONSC 6867, at para. 33, Faieta J. noted in a case in Toronto that “the Crown did not dispute the Defendant’s assertion that the breach of s.503 of the Criminal Code is a “systemic” problem”.

143On the facts of this case, the seriousness of the failure to comply with section 503 of the Criminal Code was greatly exacerbated by the police refusal to take any steps to inform Mr. Patel’s family that he was safe and in custody. Mr. Patel alerted police on several occasions to the fact that his family would be worried about him. Rather than telling him clearly that he would not be permitted to call, and giving him an opportunity to request that the police themselves contact his family, he was misled into thinking that a call would likely be permitted at some undetermined time in the future, which in fact never occurred as long as he was at 32 Division.

144Instead of ensuring that Mr. Patel appeared in bail court without unreasonable delay on March 9, the police chose to obtain a statement from him, induced by a violation of his right to remain silent by misleading him as to the purpose of the statement. Engaging in this Charter breach wasted valuable time in which Mr. Patel was entitled to be taken to bail court without unreasonable delay.

145I find that if this had occurred, the inevitable involvement of duty counsel, and a canvassing of possible sureties, inevitably would have resulted in Mr. Patel’s wife and family learning of his detention on March 9, and the significant suffering and anxiety which they experienced would have been avoided. The agreed statement of facts filed in evidence states that once a list of persons detained at police stations is sent to Duty Counsel, they call into the Division to speak to the person detained. I conclude this would have happened on March 9, and Mrs. Patel likely would have been contacted as a potential surety that day if Mr. Patel had been on the bail court list for March 9.

146Similarly, the sense of isolation, helplessness, lack of control, and vulnerability to the effect of misleading statements by the police to Mr. Patel, ignoring his request for food which he could eat, which greatly contributed to his distress, all would have been greatly reduced by proper compliance with section 503 of the Criminal Code.

147An essential purpose of section 503 is to ensure that the continued detention of an accused be subject to judicial supervision, and not the unsupervised decision of the police to keep him in custody. The effect of the failure to comply with section 503, meant that a judicial officer had no opportunity to consider the reasonableness of a request to keep Mr. Patel in custody to facilitate the execution of a search warrant which the police had taken no steps to obtain on March 9. A judicial officer may well have denied the section s. 516 application, in the circumstances, or required the police to act with diligence in seeking and executing the search warrant in a timely way, so as not to delay Mr. Patel’s release beyond the end of court on March 10.

148Instead, the important purpose of judicial supervision of Mr. Patel’s continued detention did not occur because the police achieved their purpose of having him detained until the search warrant had been executed by simply breaching section 503 with the result that his continued detention was an arbitrary detention, in breach of section 9 of the Charter, rather than the result of the proper consideration of the section 516 application by a judicial officer.

149On the evidence before me, I find that the failure by the police to cause Mr. Patel to appear in bail court, from 32 Division, was the result of unacceptable negligence by the police in failing to ensure compliance with the obligation imposed by section 503 of the Criminal Code to take Mr. Patel before a justice without unreasonable delay.

150Mr. Patel was arrested at 9:35 a.m. On the evidence before me, there was no justification for failing to produce Mr. Patel by video before a justice of the peace on March 9.

151The breach of Mr. Patel’s s. 503 rights and his resulting arbitrary detention contrary to s.9 of the Charter, is rendered more serious by the fact that much of the delay in getting him to court was caused by his interview conducted in breach of his s. 7 Charter rights by a trick which I find would shock the conscience of the community, namely, lying to him that the statements made were not evidence when the police intended to and did use them as evidence.

152In R. v. Truong, 2025 ONCA 69 at para. 48, Zarnett J.A. found that a Charter breach by the police in implementing rights to counsel was made more serious by the fact that it was caused by their delay in deciding whether to lay additional charges from a Charter-infringing search.

153Similarly, in this case the police used valuable time after the arrest from 1:27 p.m. until 2:30 p.m., to conduct an interview in violation of Mr. Patel’s s.7 Charter rights. Mr. Patel told the police at the beginning of the interview “I don’t want to talk about it - talk about anything”. They then spent over an hour conducting an interview obtained by a subversion of Mr. Patel’s s.7 right to silence. This was Charter-infringing conduct which makes the arbitrary detention occasioned by the breach of s. 503 more serious.

154I also find that DC Kama was negligent in failing to take any meaningful steps to ensure that Mr. Patel was in bail court on March 9. In his evidence, he filed the bail materials on Versadex, and simply assumed that Mr. Patel would appear in court that day as required, without taking any particular steps to confirm that this occurred. I find that DC Kama had no interest in ensuring that this appearance occurred, as he knew he intended to obtain a search warrant for Mr. Patel’s residence and he had done nothing to commence that search warrant process on March 9. He was unmotivated to ensure that Mr. Patel attended court as required, knowing that he intended to seek an adjournment of the bail hearing pursuant to section 516 to facilitate the execution of the search warrant before Mr. Patel was released.

155In my opinion, these circumstances contributed to his negligent inattention to ensuring that Mr. Patel’s bail hearing was addressed before the justice of the peace on March 9.

156The fact that the police intended to seek an order under section 516 to adjourn the bail hearing for two days, in order to execute the search warrant, is no justification for failing to present Mr. Patel to a justice of the peace to ensure that any further detention was subject to court supervision.

157In the case at bar, the combination of the police refusal to permit Mr. Patel to telephone his family, combined with the breach of section 503, and the fact that Mr. Patel’s matter was not in bail court until March 10, had the collateral effect of causing substantial suffering to Mr. Patel’s wife and family, as they had no notice of his detention by the police until they were contacted by duty counsel on March 10, when Mr. Patel’s matter was first placed on the bail court list for that day.

158This was the first time that Mrs. Patel became aware of her husband’s detention. If the matter had been placed on the bail court list, and Mr. Patel had appeared in bail court on March 9 as was required, I infer based on the evidence I have heard, that duty counsel would have contacted her on March 9 and apprised her of his detention. This would have saved her and her family the anxiety they experienced that night with no information on Mr. Patel’s whereabouts.

159Mr. Patel would also have had an opportunity to ask the court that he be permitted to telephone his wife. He was only able to raise this concern with the court at 5 p.m. on March 10 as he was never in court on March 9, or earlier than 5 p.m. on March 10.

160In my view, the impact of the application of the criminal law on the family members of accused persons is a matter of legitimate concern for courts required to apply the law.

161In R. v. Habib, 2024 ONCA 830, Tulloch C.J. has recently discussed the importance of considering the impact of actual incarceration on the family of an accused person in determining an appropriate sentence. He stated at para. 46:

“While defendants and not the courts are to be blamed for the adverse consequences that those family members may suffer (R. v. Gauthier (1994), 64 Q.A.C. 306 (C.A.), at para. 30), those family members are still innocent. They do not deserve to suffer for the defendant’s crimes. And as explained in Spencer, the restraint principle, which Parliament has directed courts to apply, requires courts to prevent and mitigate these adverse consequences as much as possible. See at para. 47; see also Criminal Code, ss. 718.2(d)-(e); Proulx, at paras. 16-17. This benefits society because families are its foundational fabric. See R. v. Clayton (1982), 1982 ONCA 3860, 69 C.C.C. (2d) 81 (Ont. C.A.), at p. 83. Our society depends on families to raise and nurture children, transmit knowledge, skills, and values from generation to generation, and provide love, care, emotional, economic, and social support to their members. See Moge v. Moge, 1992 SCC 25, [1992] 3 S.C.R. 813, at p. 848. Courts thus try to minimize the impact of sentencing on defendants’ families because, as Spencer recognized, interfering with this foundational social institution, even for just reasons, can endanger community safety and society’s well-being. See at para. 47.”

162In my opinion, the serious emotional consequences experienced by Mr. Patel’s family as a result of the combination of the police refusal to permit any steps to be taken to advise Mr. Patel’s family he was in custody (after Mr. Patel told the police they would worry as a result of his unexplained absence), and the failure to get him to court on March 9 increases the seriousness of the s.503 breach, and the Charter s. 9 breach, on the facts of this case.

DC Kama’s Failure to Act Diligently to Obtain the Search Warrant in a Timely Way

163On the facts of this case, I find that the seriousness of the breach of Mr Patel’s s.9 Charter rights was increased by the casual approach DC Kama took to obtaining the search warrant for the search of Mr. Patel’s house, which he used to justify the request for a two-day adjournment of the bail hearing on March 10, under section 516.

164Assuming the police needed the information obtained from Mr. Patel to obtain the search warrant, DC Kama concluded his interview of Mr. Patel, on which he relied in seeking the search warrant, at approximately 2:30 p.m. on March 9. He submitted the bail materials into Versadex at 3:04 p.m. on March 9.

165He knew that the police wanted to obtain a search warrant for Mr. Patel’s house, and his phone, and that, for the police, it was important that the search be conducted before Mr. Patel had access to his computer or other materials at his house.

166Nevertheless, DC Kama did nothing further on March 9 to seek to obtain a search warrant and only began to draft the information to obtain the search warrant at 6 a.m. on March 10. This was the case even though the arrest on March 9 was orchestrated as part of a sting operation, and much of the detail included in the information to obtain the search warrant was already in the police possession in the chats the police had before March 9.

167DC Kama completed drafting the information to obtain the search warrant by 9:30 a.m. on March 10, and the search warrant was granted slightly more than 1.5 hours later at 11:11 a.m.

168DC Kama suggested in his evidence that it was not feasible after 4 p.m. on March 9 to obtain a telewarrant permitting the police to search Mr. Patel’s residence either that evening or early the next day because the search warrant would not be considered “urgent”. I do not accept this evidence. I see nothing in the requirements for telewarrants in s. 487.1 of the Criminal Code that would have precluded its use.

169In fact, the Application Record shows that he used the telewarrant procedure the next day at 10:13 a.m. to submit the search warrant application. The information to obtain notes that, as a result of a Regional Senior Justice of the Peace directive, all search warrants are to be submitted electronically. Had he acted diligently in preparing the information to obtain the search warrant and utilized the telewarrant provisions in the Criminal Code, there is no reason why a search warrant could not have been obtained in the evening of March 9 permitting the search of Mr. Patel’s residence early in the morning on March 10. When the search was conducted, it was completed in half an hour.

170If DC Kama had acted diligently, he could have completed the search by mid-morning on March 10, and he could have advised the Crown that there was no need to seek a 2-day adjournment of the bail hearing that morning.

171Regrettably, this did not occur and, as previously noted, having completed the search of Mr. Patel’s house at 2:04 p.m. on March 10, DC Kama took no steps to advise the Crown that the search had been completed until he was contacted by defence counsel at 4:22 p.m., and all he did then was email the Crown at 4:32 p.m. to advise that the search had been completed.

172As a result of DC Kama’s dilatory approach, there was no need for the Crown to seek an order under section 516, and the bail hearing was adjourned until Monday March 13 without a s.516 application being considered by the court.

173In R. v. Donnelly, 2016 ONCA 988 at para.79, Watt J.A. stated, with respect to the police failure to inform the Crown that a search warrant had been executed before a s. 516 order was sought by the Crown, that there is no s. 7 Charter disclosure requirement by the police to provide “error-free up to the moment disclosure of the progress of the investigation” to the prosecutor under R. v. Stinchcombe, referring to it as a ”standard of perfection”.

174However, while holding that such an error did not amount to “particularly egregious conduct”, Watt J.A. also stated that “conveyance of inaccurate information to prosecutors conducting bail hearings “cannot be condoned: R. v. Donnelly, supra, at para.172.

175Significantly, in the case at bar a s.516 order never was obtained to support Mr. Patel’s detention until March 13. The application never proceeded because, due to the failure to have Mr. Patel in bail court on March 9 and the police delays in obtaining and executing the search warrant on March 10, on Friday, March 10 at 5:00 p.m., in the absence of Crown consent to Mrs. Patel as a surety, the court determined that the bail hearing could not be held that day, and the matter was adjourned to Monday, March 13.

176In the circumstances of this case, I find that, while the failure of DC Kama to obtain a search warrant with reasonable diligence, or diligently advise the Crown in a timely way that the basis for the s. 516 application had been satisfied by the execution of the search warrant, may not themselves constitute independent Charter breaches, they are aggravating circumstances in relation to the clear arbitrary detention caused by the breach of s. 503.

177They are reflective of the ongoing disregard for Mr. Patel’s rights by DC Kama, and which, in fact, resulted in his ongoing detention until March 13 (without a s. 516 order), which may have been avoided had the police complied with their obligation under s. 503 and the matter of his bail had been addressed in court on March 9.

The Circumstances of Mr. Patel’s Detention from March 9 to March 13

178Mr. Patel testified that during the booking process he asked about getting his cell phone, and whether he would be able to call his family, as he wished to let them know where he was and to receive their emotional support.

179He testified that after he was lodged in the cells, a police officer walked past his cell and he asked if he would be permitted to call his family. The officer said that he would go and check to see if that could be done. He continued to be concerned that his family would be worried as they did not know where he was. He repeated his request to call his family to DC Kama after the interview and was told “Maybe later - I’ll let you know”.

180He testified that although he was told during booking that he would be given a privacy shield, he did not know what that was and it was never explained to him. The cell video shows that a privacy shield was in his cell, but he did not know what it was or its purpose, and he avoided sitting on the toilet to relieve himself as it was extremely dirty and he knew that he was being videoed in the cell.

181After he was placed in the cell, before his interview by DC Kama, he was offered a chicken sandwich and a juice, but declined the chicken sandwich as he practices Hinduism and is prohibited from eating meat or even bread that has been in contact with meat.

182He testified that he told the police officer who offered him the chicken sandwich “I can’t eat it for religious reasons”. He told the officer that he was only allowed vegetarian food because he follows Hinduism and that if they had any options that he could eat that would be good.

183He testified that the officer said he would check, but no vegetarian food was offered to him later that day.

184Mr. Patel testified that, later that day, at supper time, he was offered a patty and when he inquired of the guard whether it had meat in it, she replied “everything we have has meat.” Mr. Patel asked if she could bring something vegetarian and she said she would check but she did not get any vegetarian food for him. He accepted the juice that was offered and had no food.

185In summary, on Thursday, March 9, according to Mr. Patel, he had no food to eat, was not taken to court in person or by video and was not given an opportunity to speak to his family by phone. No officer ever explained why he was not permitted to call his family. Mr. Patel testified that if he had been told that he could not do it he would have stopped asking. He testified that he asked at least five or six times to call his family on March 9.

186He testified that at one point that night he became panicked and started screaming at the video camera facing him to let him talk to his family. He felt his heart pounding and felt nauseated. He testified that he believed this was similar to a panic attack. He testified that there was no response by any police to his yelling at the camera (which did not record audio).

187He testified that he did not sleep at all that night as he was concerned that his family did not know where he was. He testified that if the police had at least called his family that would have made him feel better as his family would know where he was, and could seek legal help for him.

188He experienced his cell as very cold with no mattress or pillow or blankets or anything other than a metal bed to sleep on.

189On Friday, March 10, the same officer who had brought him a chicken sandwich on March 9 offered him a chicken sandwich to eat, and when Mr. Patel reminded him that he is not allowed to eat non-vegetarian food the officer said that they did not have anything other than this, so Mr. Patel accepted juice and that was all he had to eat.

190He testified that he had no food to eat that day. He was permitted to speak to duty counsel before he attended court by audio on Friday. He did not attend court until about 5 p.m. at which point he had counsel retained by his family. His appearance was by audio from 32 Division.

191Mr. Patel testified that, as his request to the police had never resulted in permission to speak to his family by phone, to try to get permission to speak to his family by phone he asked the justice of the peace in bail court if he could phone his wife. He testified that he became extremely emotional and was crying when he learned that he was going to have to stay in jail for another two days. He wanted to speak to his family as he was not familiar with the rules around court processes and wanted to see whether they could go to the court on Saturday to deal with his release.

192Mr. Patel testified that even though the officer told the court that Mr. Patel would be permitted to call his family, once court ended, the officer said he had to check with the lead officer and only then could he let Mr. Patel know whether he could talk to his family or not. He was not allowed to call his family from 32 Division.

193This was confirmed in the video of his exit from 32 Division in which, when he asked about calling his wife, he was told he could use the phone at the detention centre.

194Mr. Patel testified that at no point while he was at 32 Division did he receive any food that he could eat, and no officer ever expressed any concern to him over the fact that he was not eating.

Crown Evidence on Practices at 32 Division

195An agreed statement of facts was filed indicating that while Mr. Patel was held at 32 Division on March 9 and 10, 2023, he interacted with 7 bookers and court officers. With the exception of Officers Tarantino and Sager, no bookers or court officers had notes or an independent recollection of interactions with Mr. Patel.

196Officer Tarantino had a note at 15:17 on March 9 that Mr. Patel refused a meal.

197Retired Sergeant Sager testified that he was a road sergeant in March 2023 and on March 9, 2023 he was the officer-in-charge seen on the booking video responsible for booking in prisoners.

198When he testified, he had not seen the booking video and testified that he had no independent recollection of Mr. Patel. His evidence was limited to the general practices at 32 Division and did not address any interaction he had with Mr. Patel.

199He testified there was no general TPS policy to permit any calls by detainees other than to a lawyer, or to family to contact a lawyer.

200With respect to vegetarian meals, he could not say for sure whether there were vegetarian meals available at 32 Division in March 2023.

201District Special Constable Khatera Waziri testified that she was in training in the booking hall as a booker at 32 Division in March 2023. She had no notes or independent recollection of Mr. Patel or of any interactions with him. As a booker, one of her jobs was to give meals to detainees. She testified that in March 2023 vegetarian patties were available in a freezer, and if a detainee said they were a vegetarian, she would give them a vegetarian patty.

202Court Officer Roberto Sciammarella was a court officer at 32 Division. In March 2023, had no recollection of any dealings with Mr. Patel. He testified that vegetarian patties were available at 32 Division in March 2023.

Circumstances at the Toronto South Detention Centre

203Mr. Patel was transported to the Toronto South Detention Centre on Friday night, March 10. He told the admissions lady that he followed a vegetarian diet and asked for vegetarian food as he had not had anything to eat for two days. The admissions person was creating a profile for him.

204Mr. Patel testified that the admissions lady told him not to mention his charges to the other inmates as they might attack or kill him because they may have children of their own. This made him feel very scared.

205After he was placed in a cell, he was offered food but it was non-vegetarian.

206He was then taken to an area in front of the booking station and was strip-searched. He was asked to strip naked and he was given jail clothes to change into. He testified that there were inmates and a male and female officer in the area walking by who were able to see him when the strip search occurred.

207He testified that this was an area where inmates who were being released changed out of their jail clothes and into their own clothes before being released. He testified he was taken to the same area to change before he was released on Monday, March 13.

208He testified that the officer conducting the strip search was very rude to him so he did not ask that officer to be able to use the phone.

209He waited for another officer to walk by and then he asked that different officer to use the phone and he was told that he could definitely call his family but not for more than two minutes and Mr. Patel was taken to the phone and he called his wife and brother. After two or three minutes, the officer came by and told him his time was over and he had to hang up.

210Mr. Patel was then taken to the cell where he was to stay and found that it was extremely dirty. There was food all over the floor with ants, and there was only one bed so he had to sleep on a mattress on the ground next to the toilet as it was the only place to lie down.

211Mr. Patel testified that he was fearful of his roommate who tried to engage him in conversation, stating to Mr. Patel that he was wondering who was going to die while he was in custody. He felt anxious around his cellmate as he had been told by the admissions lady that his cellmate was homosexual and he needed to be extra careful around him. Mr. Patel inferred from this comment that perhaps the man had been charged with sexual assault and that made him worried for his safety the whole time he was in custody with this individual. He candidly acknowledged that his cell mate did not sexually assault him or touch him while he was in custody.

212Mr. Patel received no offer of food while he was in his cell on Friday night.

213On Saturday, they brought him breakfast with eggs in it, which he is not permitted to eat, but there was milk in a separate pouch so he accepted that and drank it as he had with the juice at the police station. He was provided no solid food that he could eat on Saturday, March 11.

214He was permitted to use the shower on Saturday and was permitted to make another two-minute call to his family in which he spoke to his wife and his brother. He told his wife and brother that he had not been eating food because the only food offered was non-vegetarian. His brother indicated in the call that he was going to get in touch with his lawyer to see if his lawyer could do anything about that.

215When the guards brought him non-vegetarian food on Saturday, he told them that he was not permitted to eat non-vegetarian food by his religion and asked if they had a vegetarian option they could bring him. He told the guards that he had not had anything to eat other than drinks. The response he received was that they did not have anything that says he was only restricted to vegetarian food. He was told that they did not have this recorded saying he needed only vegetarian food and they would go and check.

216He did not get any vegetarian food.

217Mr. Patel testified he had a panic attack on Saturday night after midnight in his cell. In this panic attack and a previous one on Thursday night, he had shortness of breath and palpitations.

218The first time he received a vegetarian meal in custody was at lunch on Sunday, consisting of lentil curry with a rice bowl and two pieces of brown bread. He received 2 vegetarian meals on Sunday – one at lunch and one at dinner.

219Mr. Patel testified that prior to receiving the food he had not been able to sleep because of his hunger from an empty stomach. He testified that having made requests for vegetarian food that he could eat and not receiving it, he concluded that they did not want to feed him and this made him sad.

220On Monday, March 13, he was released with the consent of the Crown with bail conditions. The release order was made around noon, and he was released from the South Detention Centre at 8 p.m.

221He testified that while waiting between noon and 8:00 p.m. he asked one of the guards after 4:00 p.m. when he would be released and he was told that they did not know what time but he would definitely go home today. Mr. Patel testified that by that point he was not believing anything the guards or anyone else told him because he had been told many different things on many occasions which had not happened.

222The Crown called no evidence from any employee at the Toronto South Detention Centre to testify concerning Mr. Patel’s detention there from March 10-13, 2023.

Mr. Patel’s Mental State after Release

223After his release, Mr. Patel continued to experience panic attacks when he thought about his time in jail with nothing to eat and having no contact with a family member. He testified that reliving the experience that he had in jail would trigger the panic attack. If he saw a police car, it made him fearful. The symptoms lasted for at least the first three months after his release.

224Initially after his release, he had a very hard time sleeping but by the time of this application, it was only when he first went to bed that he had trouble sleeping but once he started to sleep, he was able to sleep through the night. He testified that his sleep was getting better.

225He has had flashbacks about his experiences in custody, the first being the strip search by the officer he found intimidating, and the second was his incarceration in the cell with the cellmate that made him worried about his safety.

226Mr. Patel acknowledged that when he was released, he felt regretful and ashamed about his actions and it was very emotional for him facing his family. He testified that the panic attacks, nightmares, and flashbacks which he experienced related to his time in custody over the days he was in custody as distinguished from his anxiety about his future based on the charges he is facing.

227He testified that he was fearful after his release whenever anyone came to the door, and if he saw police when he was out of the house, he was fearful that they were following him.

228Monali Patel, Mr. Patel’s wife (“Mrs. Patel”) testified concerning Mr. Patel’s emotional state after his release. I was impressed with Mrs. Patel as a witness.

229She confirmed the indicia of anxiety and distress Mr. Patel exhibited upon his release. She testified that upon his release he was very quiet and spoke little, even to the children with whom he usually was talkative. At times, he cried and said he had been very scared in jail, afraid his cell-mate would harm him, and had been unable to sleep in jail.

230She testified that he cried for a period of about 1 month after his release.

231Mrs. Patel testified that upon his release Mr. Patel had trouble sleeping. He cried from time to time and said he still felt scared when he thought about his time in jail. He did not resume activities he had previously enjoyed. This continued for a long time. He stopped talking to people. He did not play with the children as he had done before. Initially, he was reluctant to go outside. He would not go out alone. When they walked outside, he was fearful that even normal people were watching or following him. He also told her he was sorry that all of these things happened.

232I find Mr. Patel to be a generally credible and reliable witness. His recollection of his interactions with the police at 32 Division, and the guards at the Toronto South Detention Centre are detailed. His evidence that he was extremely distraught in his court appearance of March 10 is generally supported by the court transcript. His state of emotional upset is confirmed by his statement to the court “I can’t stay here till Monday”, and “I need to speak to my family” and his later request to be able to speak by telephone to his wife.

233His explanation to this court of why he did not ask for medical assistance when asked by the justice of the peace on March 10 was compelling evidence of the emotional impact of his circumstances of incarceration on him.

234He indicated that he did not believe any assistance would be provided since every other request he had made for food he could eat, and a telephone call to his family, had been ignored so he did not believe any meaningful assistance would be provided to him in his detention.

235Even when the bail court was told by an officer at 32 Division that Mr. Patel can “ask us to get a phone call after this is done”, and the justice of the peace stated “Whatever the process is, he can phone whoever he wants, if that’s his family that he wants to access, okay”, Mr. Patel was not permitted at 32 Division to make a call. This only occurred after he was taken to the South Detention Centre later that evening.

236His evidence concerning the failure of the police at 32 Division, and the guards at the Toronto South Detention Centre, to give him food which he could eat was attacked by the Crown as having been a fabrication made to enhance his claim of a Charter breach.

237The Crown’s allegation of recent fabrication is refuted by the fact that Mr. Patel, as confirmed by his brother, was asked in his telephone conversation of Saturday evening if he had been eating and sleeping well, and Mr. Patel responded that he had not received food that he could eat.

238Mrs. Patel testified that as a result of being told this, in the telephone call with Mr. Patel on Saturday evening, she called the lawyer they had retained at Mr. DeMarco’s office, Navin Sookram, and asked him to do something about the fact that Mr. Patel was not getting food he could eat.

239The fact that Mr. Patel began to receive vegetarian food on Sunday is consistent with Mrs. Patel’s evidence that she asked the lawyer to contact the detention centre to try to remedy the fact that he was not being provided vegetarian food.

240The Crown suggested in cross-examination that Mr. Patel did not eat as a choice he made, not because he was denied vegetarian food.

241Mr. Patel denied this. I find the suggestion that he willingly did not eat for 3 days as part of a plan to enhance his Charter claim unreasonable and I accept his denial as truthful.

242Importantly, Mr. Patel was candid with the court in acknowledging matters not supportive of his claim. He candidly acknowledged that when he first saw his family upon his release he felt “regretful and ashamed” about his actions for which he is charged and that this made seeing his family extremely emotional for him.

243He was similarly candid in acknowledging that after his release the challenges he faced interacting with people were significantly impacted by the shame he felt about his conduct. He testified that in the months after his release he had trouble interacting with pretty much everybody in the family because he was feeling very “regretful” and ashamed of things that happened and the things that he had done. He also acknowledged fairly that his current pessimism about his life in general, and whether he will be able to get a job, are the result of facing the charges he is facing.

244Mr. Patel’s evidence that he had been denied access to the phone to call his family by the police at 32 Division is consistent with the evidence, confirmed in the transcript of his attendance in court on March 10, that he asked the justice of the peace for permission to call his family. His evidence to this court that he made this request to the bail court as his previous requests to the police had been ignored was reasonable, made sense, and I accept it.

245In summary, Mr. Patel candidly acknowledged in his evidence matters which did not specifically advance his claim of severe psychological harm caused by state action. He was measured and balanced in his evidence.

246No witnesses who actually interacted with Mr. Patel at 32 Division or had any independent recollection of interacting with Mr. Patel were called by the Crown. I do not find the evidence called concerning general practices at 32 Division to be probative on the issue of whether Mr. Patel was offered vegetarian food when he advised the person distributing food that he could not eat meat.

247Significantly, notwithstanding having many months to find witnesses to respond to Mr. Patel’s allegations concerning his incarceration at the Toronto South Detention Centre, the Crown called no evidence from any Toronto South Detention Centre witnesses.

248On a balance of probabilities, I accept Mr. Patel’s evidence as generally accurate as a description of the circumstances of his incarceration while in custody at 32 Division and the Toronto South Detention Centre, and of the impact of these circumstances on him after his release.

The Expert Evidence of Dr. Jonathan Rootenberg

249Dr. Rootenberg is an experienced forensic psychiatrist who conducted an assessment of Mr. Patel on April 3, 2024 focusing on what psychological impact, if any, his period of detention in police custody at the Toronto South Detention Centre had on him. His expert report dated June 11, 2024 was admitted in evidence, and his assessment and findings were summarized in his testimony before the court.

250As part of the materials provided for the assessment, Dr. Rootenberg had received the Toronto Police Service synopsis in relation to the charges laid against Mr. Patel.

251The scope of Dr. Rootenberg’s assessment was limited to the psychological impact, if any, of Mr. Patel’s detention and incarceration prior to his release and did not involve Dr. Rootenberg’s inquiry of Mr. Patel of his response to the evidence summarized in the synopsis. Accordingly, Dr. Rootenberg was not in a position to comment on the impact of the charges themselves on Mr. Patel’s mental state, and his opinion was restricted to the impact of the circumstances of detention upon Mr. Patel.

252Based on his assessment, Dr. Rootenberg concluded that the circumstances of Mr. Patel’s incarceration resulted in Mr. Patel meeting the diagnostic criteria for posttraumatic stress disorder in remission at the time of his assessment on April 3, 2024.

253In Dr. Rootenberg’s assessment, Mr. Patel experienced his incarceration between March 9 and 13, 2023 as a traumatic event. It was traumatic for him because he experienced a marked fear that something significant would happen to him while he was in custody. In particular, the combination of his inability to speak to family members for two days, the humiliation he experienced from the strip search conducted at the Toronto South Detention Centre, and the fear he experienced concerning his cellmate, all contributed to his experience of his incarceration as traumatic.

254In particular, the warning he received from staff at the detention centre about the cellmate and to “be careful around him” made him fearful and vigilant. As well, the fact that the cellmate related to Mr. Patel that while he had been in custody previously, his father had died, and the cellmate did not know who might die this time, possibly his boyfriend, made him fearful of suffering harm from his cellmate.

255In Dr. Rootenberg’s opinion, it was the exposure to the constellation of the set of circumstances facing Mr. Patel that he perceived as very threatening that was traumatic. In Dr. Rootenberg’s opinion, it was not necessary that Mr. Patel be actually touched in a sexual way for his exposure to the cellmate, in the circumstances as he understood them, to be perceived as very threatening and therefore traumatic.

256Mr. Patel was made fearful by being advised by jail staff to not discuss his charges because if anyone found out about the charges he may be attacked physically.

257He was also warned by staff at the jail to be careful around his cellmate which contributed to his fear.

258In Dr. Rootenberg’s opinion, it was the totality of the circumstances of being placed in a cell with this particular person, who he perceived as very threatening, having no control or agency over his circumstances, experiencing fear, lack of sleep, being cut off from communication with his family, all in the context of not receiving vegetarian food for several days, which were circumstances contributing to Mr. Patel experiencing his incarceration as traumatic. He noted that many people become markedly fearful about someone actually attacking them.

259As Dr. Rootenberg summarized in cross-examination:

“Again, this is from his recollection and his perception of the event; that this was a traumatic event for him, being placed in cuffs, put in-put in jail, not knowing when he would be out, not contacting family members, being in a cell with a person he was very afraid of. That’s what I’m referring to in terms of directly experiencing traumatic events .......
Keep in mind that it is the perception of trauma that is relevant here. For him, it is being put in a jail cell and worrying about being harmed by somebody else in that cell is a traumatic event; losing one’s freedom for a period that’s indeterminate as far as he was concerned, that’s what he directly experienced. It was a traumatic incident for him.”

260Dr. Rootenberg did not find anything in Mr. Patel’s psychiatric history which made him particularly vulnerable to Post-Traumatic Stress Disorder (PTSD) over and above the vulnerability of the average person. He noted that, as far as he was aware, Mr. Patel had no history of any traumatic incidents prior to his incarceration. He testified that there is not a direct link between a prior depressive episode when Mr. Patel left medical school in the Caribbean, and post-traumatic stress disorder. It did not make Mr. Patel more predisposed to perceive events as traumatic when they are not, in Dr. Rootenberg’s opinion.

261In Dr. Rootenberg’s report, he noted there are four diagnostic clusters in DSM-5 in relation to a diagnosis of post-traumatic stress disorder namely re-experiencing phenomena, avoidance behaviours, negative cognitions and mood and marked alterations in arousal.

262Based on his assessment, Dr. Rootenberg found that Mr. Patel was experiencing recurrent involuntary intrusive distressing memories and dreams, and flashback phenomena, which are relevant for the diagnosis of posttraumatic stress disorder. Dr. Rootenberg understood that Mr. Patel experienced all of those for more than one month after his release. Even one year later, at the time of his assessment, Mr. Patel was still experiencing dreams and flashbacks about the event.

263He understood that for more than a month Mr. Patel wanted to avoid leaving the family home where he felt safe. He was fearful of being followed, particularly if he saw police officers.

264He also found that, based on the information from Mr. Patel and Mrs. Patel, Mr. Patel experienced the avoidance of stimuli linked to the traumatic events for more than one month. He also had negative alterations in cognitions and mood, persistent and exaggerated negative beliefs or expectations for more than one month. The criterion of hypervigilance appears to have been present for several months at least and the problems of concentration and sleep disturbance continued for more than one month, and the sleep disturbance was present even one year following the incident.

265In the conclusion of his report, Dr. Rootenberg stated at p.13 that:

“In my clinical psychiatric opinion, based on my clinical assessment and the collateral information received as part of this assessment, Mr. Patel’s interaction with police officers and with correctional officers at TSDC from March 9-13, 2023 had a markedly detrimental effect on his mental health, in that it triggered the following symptoms, namely reexperiencing phenomena, some avoidance behaviours, negative cognitions and mood and marked alterations in arousal.”

266Mr. Patel’s symptoms relevant to this diagnosis included nightmares experienced several times per week at the time of the assessment of being placed in handcuffs and being placed in a jail cell, waking up at night thinking he is actually back in jail, and re-experiencing pleading to police to allow him to call family members.

267Mr. Patel also avoided going out of the family home for a prolonged period of time following the incident, showed a marked decreased interest in activities that he previously had engaged in such as playing with his children, as well as an exaggerated belief that the world is a dangerous place and one cannot know who to actually trust. These were relevant persistent negative changes in cognition or mood he experienced.

268He also experienced hypervigilance, resulting in significant concern by Mr. Patel every time the doorbell rang that the police were there to check up on him.

269Dr. Rootenberg diagnosed posttraumatic stress disorder, rather than acute stress disorder, based on the duration of Mr. Patel’s symptoms for several months after his release. Collateral information from Mrs. Patel was that Mr. Patel had anxiety symptoms which were quite prominent for several months after his release. As related by Mrs. Patel, for several months following his release, Mr. Patel was anxious, experienced sleep-related difficulties and was afraid to leave the house by himself. He believed that someone was also always following him and was very anxious about his surroundings.

270As previously indicated, Dr. Rootenberg’s focus in his assessment was on the psychological effect, if any, of the circumstances of Mr. Patel’s incarceration between March 9 and 13, 2023. He did not speak to Mr. Patel about the allegations he was facing. Dr. Rootenberg candidly acknowledged that it was possible that some of the symptoms he attributed to Mr. Patel’s experience of his incarceration could also be the result of Mr. Patel being charged with a serious offence. He had not discussed the allegations with Mr. Patel. Accordingly, he testified that he could not comment on the psychological impact of being charged on Mr. Patel.

271The Crown did not pursue with Dr. Rootenberg the effect of this limitation on the validity of the conclusions stated in his report. Apart from his acknowledgement that the symptoms were possibly affected by Mr. Patel’s psychological response to being charged, there was no further evidence on this issue in the record before me.

272In conclusion, I accept the Dr. Rootenberg is a highly skilled forensic psychiatrist who conducted a focused assessment of the psychological impact, if any, of the circumstances of Mr. Patel’s incarceration on him.

273I am also satisfied that the factual basis for the assessment was, with minor exceptions, proven in reliable evidence before me by Mr. Patel and Mrs. Patel. In short, the factual foundation for Dr. Rootenberg’s opinion was substantially proven before me in the evidence of Mr. and Mrs. Patel which I have accepted.

274Dr. Rootenberg has opined that in his opinion the psychological impact of the circumstances of Mr. Patel’s incarceration amounted to post-traumatic stress disorder for the reasons outlined in his report. However, he also acknowledged that it is possible that some of those symptoms are contributed to, or caused by, the simple fact of being charged with a serious offence which he did not explore with Mr. Patel. It was not put to Dr. Rootenberg in cross-examination that this limitation invalidated the conclusions in his report.

275In considering the weight to give to Dr. Rootenberg’s opinion, it is important to note that Dr. Rootenberg’s assessment, and the symptoms relied upon, are grounded in the particular circumstances of his incarceration related by Mr. Patel such as his fear of his cellmate, his isolation due to his inability to speak to his family, and the warnings he received from staff at the Toronto South Detention Centre about the risk of violence from other in inmates to Mr. Patel if they became aware of his charges. All of these specific factors are directly related to the circumstances of his incarceration, and not the simple fact of being charged.

276Mr. Patel candidly acknowledged that the distress he experienced upon his release included feelings of shame for his actions. I find that his feeling of shame for his conduct reflected in the chats undoubtedly contributed to his distress in custody and after his release.

277What was not explored further in evidence was the impact of this on Dr. Rootenberg’s assessment that the specific circumstances of Mr. Patel’s incarceration themselves resulted in his PTSD. It was not put to Dr. Rootenberg that in light of his acknowledgement that it was possible that any shame Mr. Patel felt may have caused his distress, that this negated the conclusion he made about the specific impact of the circumstances of his incarceration on Mr. Patel.

278Considering the totality of the evidence, and the limitation acknowledged by Dr. Rootenberg on his assessment, I find that it has been established on a balance of probabilities that the circumstances of Mr. Patel’s incarceration referred to by Dr. Rootenberg were a substantial contributing cause of his PTSD which may have possibly been exacerbated by his distress at his conduct and the fact of being charged itself. The factors referred to by Dr. Rootenberg as causing Mr. Patel’s PTSD were specific to the circumstances of his incarceration.

279I accept Dr. Rootenberg’s opinion on this issue. The possibility of additional or other causes from being charged itself, which was not assessed by Dr. Rootenberg does not, in my opinion, render his conclusion invalid but rather only goes so far as to make reasonable a conclusion that, overall, Mr. Patel’s distress was likely exacerbated by the fact of being charged and his own sense of shame, but that his PTSD had, as a substantial contributing cause, the circumstances of his detention summarized in Dr. Rootenberg’s report.

The Alleged Section 7 Breach For State-Imposed Psychological Stress

280The test for a s.7 Charter breach as a result of a state-imposed psychological injury is summarized in R. v. Donnelly, 2016 ONCA 988 by Watt J.A. at paras 107-109:

“[107] Security of the person protects both the physical and psychological integrity of the individual: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 55; R. v. Morgentaler, 1988 SCC 90, [1988] 1 S.C.R. 30, at pp. 56 and 173; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64 & 71. For a restriction of security of the person to be established, the state action in issue must have a serious and profound effect on a person’s psychological integrity: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 SCC 653, [1999] 3 S.C.R. 46, at paras. 59-60.

[108] The descriptive “serious state-imposed psychological stress” fixes two requirements that must be met before the security of the person interest protected by s. 7 becomes engaged. First, the psychological harm must be state imposed, that is to say, the harm must result from actions of the state. And second, the psychological harm or prejudice must be serious. It follows that not every form of psychological prejudice or harm will constitute a violation of s. 7: Blencoe, at para. 56-57. In other words, there is something qualitative about the type of state interference that ascends to the level of a s. 7 infringement: G. (J.), at para. 59; Blencoe, at paras. 56-57. Nervous shock or psychiatric illness are not necessarily required, but something greater than “ordinary stress or anxiety” is: G. (J.), at paras. 59-60.

[109] A final point. The effects of the state interference are to be assessed objectively. We gauge their impact on the psychological integrity of a person of reasonable sensibility, not one of exceptional stability or of peculiar vulnerability: G. (J.), at paras. 59-60.”

281I have concluded, based on Dr. Rootenberg’s opinion, that Mr. Patel’s PTSD, as found by Dr. Rootenberg, had as a substantial contributing cause, the circumstances of his incarceration involving a breach of his rights under s.503, and therefore his arbitrary detention, which included denial of vegetarian food for 3 days, a strip search at the TSDC in an area where he could be seen by staff and other prisoners, his fear of his cellmate, and his sense of isolation and vulnerability as a result of having no contact with his family, as a result of the s. 503 breach, and the denial of his request to call his family.

282To determine if this amounts to serious state-imposed psychological stress, the state’s conduct must be assessed objectively and an assessment made of its impact on a person of reasonable sensibility, and not a person of peculiar vulnerability.

283A person of reasonable sensibility, in my opinion, is not a person experienced in the criminal justice system hardened to an acceptance of the reality of the treatment of persons in detention frequently criticized in court judgements in this province.

284It would include a person with no experience in the criminal justice system but cognizant that we live in a society governed by the Charter, and the rule of law, in which the Charter is intended to guarantee to accused persons treatment that respects the dignity and humanity of all persons, regardless of the seriousness of the offence charged.

285In my opinion, the particular circumstances of Mr. Patel’s detention including a denial of food, an intrusive strip search in a location that lacked privacy, where requests to contact family were not granted, or answered honestly, contributing to a sense of vulnerability and isolation, where he was arbitrarily detained as a result of not being taken to court as required by s. 503 of the Criminal Code, being kept in a cell with an inmate acting in a bizarre manner which caused him fear, are, in total, circumstances which caused him significant psychological stress, and objectively would have a significant impact on a person of reasonable sensibility, especially one not previously hardened to the realities of incarceration by previous criminal law experience.

286In my opinion, it is therefore serious state-imposed psychological stress which would interfere with the psychological integrity of a person of reasonable sensibilities and which ascends to the level of a s.7 infringement. It is therefore a breach of s.7 of the Charter.

287In the alternative, even if the totality of the circumstances do not meet the requirements of a s.7 Charter breach, in my opinion, they are, at the very least, aggravating circumstances relevant to the seriousness of the s.9 Charter breach and the arbitrary detention of Mr. Patel, which increases the seriousness of the breach of his s.9 Charter rights.

Relevant Law on a s.24(1) Remedy

288The Applicant seeks a stay of proceedings under the residual category of abuse of process, summarized by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, at paras. 30-32:

“A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

Nonetheless, this Court has recognized that there are rare occasions – the “clearest of cases” – when a stay of proceedings for an abuse of process will be warranted (R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

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” (Regan, at para. 54);

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” (ibid., at para. 57).”

289Moldaver J. described the test for abuse of process under the residual category as follows at para. 35 of R. v. Babos, supra:

“By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that 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. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.”

290As Moldaver J. states for the Court in R. v. Babos, supra, at para. 39:

“At the second stage of the test, the question is whether any other remedy short of a stay of proceedings is capable of redressing the prejudice, .... Where the residual category is invoked, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed toward that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.”

291It is clear that the balancing process required at the third stage of the test for a stay for abuse of process is of particular importance when the residual category of abuse of process is invoked.

292As the Court notes in R. v. Babos, supra, at para. 41:

“However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.”

293The Court notes further in footnote 5:

“At this stage, whether the impugned conduct is a systemic and ongoing problem or lies purely in the past may also become relevant. Where the conduct is ongoing and systemic, it may be more difficult for the court to dissociate itself from it with anything less than a stay.”

294Under the residual category of abuse of process, section 7 of the Charter requires the consideration of both the impact of breaches of specific procedural guarantees provided by the Charter, and other state conduct that underm