ONTARIO COURT OF JUSTICE
DATE: 2025-04-07
COURT FILE No.: Sudbury 24-40103608
BETWEEN:
HIS MAJESTY THE KING
— AND —
PIERRE GAUTHIER
Before Justice G. Jenner
Heard on April 4, 2025
Decision released on April 7, 2025
Sandra Town ...................................................................................... on behalf of the Crown
Mira Ross ................................................................................... on behalf of Pierre Gauthier
Alexander Toffoli .............................................................................................. Amicus Curiae
Rabinder (‘Rob’) Sidhu .................... on behalf of the Ministry of the Solicitor General
REASONS FOR JUDGMENT RE: SECTION 527 ORDER
I. Introduction
1What should occur when a person detained in prison is ordered to be brought to court but refuses to attend? Is the jail entitled to respect a prisoner’s refusal to attend? Can and should the court, as the Crown has requested here, specifically authorize and order a jail to use physical force to remove the prisoner from their cell? Is such an express authorization necessary to allow for and require the use of force?
2This procedural impasse has plagued Mr. Gauthier’s matter and others locally. These reasons navigate these questions and examine the interpretation of s. 527 of the Criminal Code, which provides for the conveyance of prisoners to court.
II. Procedural History
3Pierre Gauthier was detained in custody at the Sudbury Jail pending criminal charges and an allegation that he breached a conditional sentence order. He failed to attend his first court appearance on November 20, 2024, and a bench warrant was issued. He was arrested and appeared in bail court on December 13, 2024. Since that appearance, Mr. Gauthier has refused to be brought to court on December 16, 17, 18, 19, and 23, 2024, and January 22, 2025.
4The Crown applied for an order pursuant to s. 527 of the Criminal Code to have Mr. Gauthier brought to court, specifically requiring the Superintendent of the Sudbury Jail (the Superintendent) to deliver him to the Greater Sudbury Police Services (GSPS) for that purpose.
5Section 527 reads, in part, as follows:
Procedure to Procure Attendance of a Prisoner
527. PROCURING ATTENDANCE
(1) A judge of a superior court of criminal jurisdiction may order in writing that a person who is confined in a prison be brought before the court, judge, justice or provincial court judge before whom the prisoner is required to attend, from day to day as may be necessary, if
(a) the applicant for the order sets out the facts of the case in an affidavit and produces the warrant, if any; and
(b) the judge is satisfied that the ends of justice require that an order be made.
Provincial court judge’s order
(2) A provincial court judge has the same powers for the purposes of subsection (1) or (7) as a judge has under that subsection where the person whose attendance is required is within the province in which the provincial court judge has jurisdiction.
Conveyance of prisoner
(3) An order that is made under subsection (1) or (2) shall be addressed to the person who has custody of the prisoner, and on receipt thereof that person shall
(a) deliver the prisoner to any person who is named in the order to receive him; or
(b) bring the prisoner before the court, judge, justice or provincial court judge, as the case may be, on payment of his reasonable charges in respect thereof.
Detention of prisoner required as witness
(4) Where a prisoner is required as a witness, the judge or provincial court judge shall direct, in the order, the manner in which the prisoner shall be kept in custody and returned to the prison from which he is brought.
Detention in other cases
(5) Where the appearance of a prisoner is required for the purposes of paragraph (1)(a) or (b), the judge or provincial court judge shall give appropriate directions in the order with respect to the manner in which the prisoner is
(a) to be kept in custody, if he is ordered to stand trial; or
(b) to be returned, if he is discharged on a preliminary inquiry or if he is acquitted of the charge against him.
6Given Mr. Gauthier’s serial refusal to attend, the Crown sought a provision in the order authorizing the use of reasonable force to compel Mr. Gauthier’s attendance. Such orders have been colloquially referred to as “extraction orders.”
7Mr. Gauthier’s case is not unique. In R. v. Eshquib, 2024 ONCJ 574, Mr. Eshquib was in custody at the Sudbury Jail and refused to appear in court. The Crown requested an order pursuant to s. 527 and asked the court to include wording authorizing the use of reasonable force to compel his attendance. In that case, I received evidence from a Staff Sergeant at the Sudbury Jail that the jail’s practice is to ask a prisoner twice if they are willing to attend court. If they refuse twice, the prisoner is not forced to attend. The evidence established that, absent a specific clause authorizing the use of force, the jail staff will not use physical means to remove a prisoner from their cell to attend court.1
8In Eshquib, I was concerned that the issues raised implicated the Charter-protected liberty and security of the person interests of the accused and other prisoners in similar circumstances. They also implicated the duties of Correctional services. I appointed amicus to advocate on behalf of the liberty and security of the person interests of the accused and determined that the Superintendent should be permitted to participate. After amicus was appointed, Mr. Eshquib appeared in court voluntarily, rendering the legal issues moot. I declined to address them as a result. That said, when the identical issue arose with Mr. Gauthier, I made a new amicus appointment, and renewed my invitation for the Superintendent to participate. The matter was adjourned to April 4, 2025, for the legal issues to be argued.
9On April 4, 2025, Mr. Gauthier agreed to be brought to court. Counsel also attended on his behalf. Mr. Gauthier resolved his matters. That resolution will see him serve a further sentence of seven days’ custody. It is unlikely he will need to be brought to court by way of s. 527 in that timeframe.
10Given Mr. Gauthier’s attendance, I heard submissions from the parties on the question of mootness. I reserved my decision on that question, and heard submissions on the interpretive questions with respect to s. 527. The Crown, counsel for Mr. Gauthier, amicus, and the Ministry of the Solicitor General (SOLGEN) as the ministry responsible for Correctional services and the Superintendent, participated.
III. Issues
11A preliminary issue is: should the court apply the doctrine of mootness and decline to issue a decision on the Crown’s application?
12The ultimate issue is whether the court should include language explicitly authorizing the use of force when making a s. 527 order to bring a prisoner to court.
IV. Mootness
13A proceeding is moot where the court is no longer required to determine a legal dispute or live controversy between the parties. A court will generally decline to decide such a case, which raises only hypothetical or abstract questions: Borowski v. Canada, [1989] 1 S.C.R. 342, at p. 353. There is no dispute that the Crown’s s. 527 application in respect of Mr. Gauthier became moot when he attended court on April 4, 2025, and resolved his matters.
14A court, however, retains the discretion to decide the merits of a moot question, having mind to the rationales behind the mootness doctrine: (i) that the adversarial process is fundamental to our legal system; (ii) judicial economy; and (iii) sensitivity to the judicial role within the political framework: Borowski, at pp. 358-361. The Crown and amicus encouraged the court to exercise its discretion to address the merits of the issue, even though doing so would have no direct bearing on Mr. Gauthier’s matters. SOLGEN and Mr. Gauthier took no position in this regard.
15Having mind to the rationales for the mootness doctrine, I am prepared to render a decision on the issue despite its mootness for the following reasons.
16First, the court’s appointment of amicus to advance arguments concerned with a prisoner’s interests, while not a perfect facsimile for a prisoner’s own advocacy, goes a long way towards preserving the important function of the adversarial system. SOLGEN’s participation brings a further perspective to the matter and enhances the court’s ability to assess the issues. Moreover, the controversy leading to this hearing will only arise without a prisoner’s direct participation. The controversy is generated by a prisoner’s refusal to participate. A preferable alternative whereby the issue is argued by all parties with a direct stake in the outcome is illusory.
17Second, judicial economy is served by allowing this hearing to proceed. The issue became moot on the morning of the hearing. Court time and resources had been set aside and could not be repurposed for other matters. All participants were present. The Crown, SOLGEN, and amicus had filed detailed written submissions which the court had reviewed. Moreover, “the expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration”: Borowski, at p. 360. As the progressions of both this and the Eshquib matter demonstrate, it is challenging for the interpretation of s. 527 to be considered with the proper participants in place before the issue becomes moot. Both the Crown and amicus stated that prisoner attendance is a particular local concern. If the court does not address the question until a prisoner refuses for a sufficiently lengthy period, various stakeholders will be left without clarity and guidance. Other proceedings may be derailed and delayed. There is a cost in the continued uncertainty of the law which ought to be avoided.
18I must be sensitive to my adjudicative role and the risk that pronouncing judgment in the absence of a concrete dispute intrudes upon the legislative branch. The legal question in this case, however, is the proper interpretation of a routinely engaged provision. There appears, at first impression, to be a real risk the provision is being misinterpreted by the Sudbury Jail, with real consequences with respect to the proper administration of justice. The court’s performance of its interpretive role will tend to support rather than undermine the legislative function.
V. INTERPRETATION OF SECTION 527
5.1 Positions
19SOLGEN takes the position that correctional staff are compelled by any standard order under s. 527 to facilitate the attendance of a prisoner at court and that s. 527 must be read in conjunction with s. 25 of the Criminal Code, which authorizes the use of ‘as much force as is necessary’ to execute the court’s order. The salient subsections read as follows:
Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(b) as a peace officer or public officer,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
When not protected
(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.
20The Crown agrees with SOLGEN but maintains that its request for a s. 527 order explicitly authorizing reasonable and necessary force is appropriate. In the alternative, the Crown asks that I endorse an alternative approach: the issuance of a warrant pursuant to s. 512(1) of the Criminal Code, with an assistance order pursuant to s. 487.02 of the Criminal Code with a “reasonable use of force” provision.
21Amicus agrees that s. 527 can be used to compel attendance by force, and argues that subsection (4) authorizes a provincial court judge to direct the manner in which the prisoner shall be kept in custody and returned to the prison from which they are brought. This may include reasonable and necessary force. But, amicus suggests, the court should be hesitant to mandate use of force in the implementation of their orders on the basis that use of force, particularly in extracting prisoners from cells, can have unpredictable and harmful outcomes.
22Counsel for Mr. Gauthier limited their comments to a submission that a s. 527 order stipulating use of force was inappropriate in Mr. Gauthier’s case.
5.2 Analysis
23I must be guided by the modern approach to statutory interpretation: the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. I must also heed s. 12 of the Interpretation Act, RSC 1985, c. I-21, which stipulates that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”
24I find that the words, context, scheme, and object of the provision all support the interpretation that a s. 527 order requiring that a confined person be brought to court compels the custodian, in this case the Superintendent, to deliver that person, and s. 25(1) of the Criminal Code governs the degree of force which may be employed to meet that end. I find that no further express language is required to authorize necessary force.
25Prisoners are not chattel. But they are persons whose liberty is restricted by operation of law. They are detained, typically by virtue of a warrant of committal when sentenced, or where judicial interim release has not been granted, by a warrant of remand. The words Parliament employed in s. 527 recognize and reinforce the plain reality that prisoners forfeit control over their movement from place to place. Section 527 falls under Part XVI of the Criminal Code, titled “Compelling Appearance of Accused Before a Justice and Interim Release” [Emphasis added]. Within the confines of the provision itself, prisoners are to be “brought”, not invited. They are “required”, not permitted, to attend. And the custodian is to “deliver the prisoner”, not merely accompany them. This does not support an interpretation that permits the confined person a choice regarding whether to attend court.
26This interpretation is reinforced when considering s. 527(7). Section 527(7) addresses the specific circumstance in which a confined person may be transferred to police custody not to attend court but to assist a peace officer in some fashion. Subsection (7) specifically requires the prisoner’s consent in writing. Parliament does not speak in vain or use surplusage: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, Lamer C.J. at para. 28. For the consent language in subsection (7) to have a meaningful function, it cannot be the case that a prisoner’s consent is implied in the case of an order under s. 527(1) to have the prisoner brought to court.
27Nor does the operation of s. 527 depend on the consent of Correctional services. I agree with SOLGEN’s submission that s. 527 compels Correctional services. Section 527(3) stipulates that the order is addressed to the person who has custody of the prisoner. Use of the imperative “shall” provides that the custodian must “deliver the person to any person who is named in the order to receive him” (typically the relevant police service): Interpretation Act, s. 11.
28I note that in R. v. Roussel et al, (1989), 54 C.C.C. (3d), the Quebec Superior Court held a contempt hearing when the warden of a provincial detention centre failed to bring certain prisoners to court following the issuance of a remand warrant. The court observed that as “the order that the prisoners be brought to the court [was] addressed to the keeper of the detention centre where the prisoners were, the [warden] must take appropriate steps in order to comply with it.” The court also cautioned that non-compliance might lead to being held criminally liable for contempt of court: para. 35. While Roussel was examining a remand warrant rather than a s. 527 order, I see no reason why the same reasoning would not apply.
29It may seem axiomatic, but these two realities—that the confined person’s consent is immaterial, and that the custodian is compelled to act—give rise to the need in certain circumstances for the application of force. That need is recognized for this context and more broadly in s. 25(1) of the Criminal Code.
30Section 25(1) of the Criminal Code stipulates that everyone who is required to do anything in the administration or enforcement of the law, if they act on reasonable grounds, is justified in doing what they are authorized to do and “in using as much force as is necessary for that purpose.” Subsections (3) to (5) place limits on the use of force that is intended or is likely to cause death or grievous bodily harm. Section 527 clearly requires Correctional services to deliver a person and engages the authorization in s. 25(1) to use as much force as is necessary, subject to the limits in s. 25(3)-(5). In this regard, s. 527 is no different than the other powers authorized by the Criminal Code which require peace officers to assume control over a person’s liberty. Section 527 functions as part of a network of provisions that govern a person’s arrest, detention, transfer, and release.
31This interpretation of ss. 527 and 25 also accords with the purpose of the scheme. As the Supreme Court noted in R. v. Jordan, 2016 SCC 27, the public, including victims of crime, have an interest in seeing matters come to a timely conclusion: paras. 22-26. Prisoners are frequently required to attend court for their own appearances. At certain of those appearances, their attendance is critical and mandatory. Prisoners are also frequently required as material witnesses in other matters. Section 527 is the mechanism Parliament installed to meet these needs. The criminal justice system cannot be held hostage by a necessary participant who, despite being detained, refuses to attend. The mischief to the proper functioning of our legal system is not limited to serial non-attendances. A single non-attendance can impact other justice system participants and precipitate harmful delays. An interpretation of s. 527(1) which relies on the consent of the prisoner, correctional staff, or both, would frustrate the object of the provision, and should be rejected: Rizzo & Rizzo Shoes, at para. 27.
32I am mindful that Regulation 778 under the Ministry of Correctional Services Act, R.S.O. 1990, Chapter M.22, stipulates as follows at s. 7:
(1) No employee shall use force against an inmate unless force is required in order to,
(a) enforce discipline and maintain order within the institution;
(b) defend the employee or another employee or inmate from assault;
(c) control a rebellious or disturbed inmate; or
(d) conduct a search.
33I am not persuaded that this regulation runs contrary to the use of necessary force as contemplated by s. 25 of the Criminal Code to bring a confined person before the court. The Regulation receives its authority from s. 60 (a) and (e) of the Ministry of Correctional Services Act, which allow for regulations respecting the operation, management, and inspection of correctional institutions, and respecting the treatment, training, employment, discipline, control, grievances, and privileges of inmates. In my view, s. 7 governs the use of force which may be required for correctional staff to fulfill their obligations under the Ministry of Correctional Services Act. It is not intended to supersede or displace federally mandated duties and powers under the Criminal Code. In any event, I note that a confined person required to attend court pursuant to a s. 527 order, but who refuses to comply with that direction, would appear to be captured by s. 7(a), if not also s. 7(c) of the Regulation.
34I have been provided the case of R. v. Jackson, 2013 ONCJ 361, in which the accused, a prisoner of the Toronto jail, was acquitted of assaulting a correctional officer engaged in extracting the accused from his cell. The officer provided evidence that he was asked to be part of an extraction team, and that he was neither aware of the reasons why the accused was being transported to court nor of the existence of a remand warrant. He simply assumed there was one. The court concluded the Crown had failed to lead evidence that there was a legal basis for the officer to use force against the accused. This led the court to find that the accused was entitled to use force to resist. I do not read Jackson as standing for the proposition that s. 25 of the Criminal Code, in conjunction with s. 527, does not authorize the use of force when necessary. It simply stands as a reminder that in a criminal trial in which the lawfulness of force is at issue, the Crown has an evidentiary onus.
35It also bears emphasizing that s. 25 does not provide peace officers with carte blanche. The force used must, of course, be necessary. Unnecessary or excessive force will not only constitute a breach of a confined person’s s. 7 Charter right to life, liberty, and security of person, but may lead to criminal charges in respect of the officer: see, for example, R. v. Nasogaluak, 2010 SCC 6; R. v. Feeney et al.
36Because a standard s. 527 order requiring a confined person to be brought to court compels the custodian to deliver that person, and s. 25(1) of the Criminal Code governs the degree of force which may be employed to meet that end, there is no need for the issuing judge to stipulate an “extraction clause” or other specific authorization as to force. Indeed, if the court were to include language that on the surface appears unobjectionable—for example “reasonable force”—anything short of a verbatim inclusion of s. 25 would convey an incomplete or inconsistent set of instructions and would risk confusing the issue for the custodian. While inclusion of the exact language in s. 25 would not run that risk, and may be within the court’s jurisdiction to include, such language is unnecessary. Correctional staff have a responsibility to know the law governing their duties, of which s. 25 is a critical piece.
37I am mindful that s. 527(4) and (5) provide that the court shall direct the manner in which the prisoner shall be kept in custody and returned to the prison from which he is brought. I do not view these provisions as authorizing or requiring a court to give instructions with respect to use of force. I do not propose to list an exhaustive set of circumstances in which the court may give directions pursuant to these subsections, but note that they appeared targeted to issues such as where the prisoner will be kept while required for court purposes. If, for example, the prisoner is required as a witness over the course of several days, at a location far from a jail, the court may need to make provision for their manner of detention. Subsections (4) and (5) were not, in my view, intended to grant judges authority to stipulate use of force that is different than that set out in s. 25.
38In any event, a judge issuing a s. 527 order is poorly positioned to anticipate the circumstances that will exist when the order is executed. It is for the judge to order the prisoner be procured. It is for the custodian of the prisoner to carry out the order. It is likewise the custodian’s responsibility to know the law, including s. 25, and to act in accordance with it. It is the custodian’s responsibility to assess what, if any force is necessary to comply with their duty and the law.
VI. Conclusion
39If the issue were not moot, I would be prepared to issue a s. 527 order to compel the Superintendent to deliver the prisoner to the GSPS to be brought to court, without explicit language with respect to the use of force. Language with respect to the use of force is unnecessary because s. 527 requires that the Superintendent comply with such an order irrespective of the prisoner’s consent and s. 25 of the Criminal Code governs the degree of force, if any, to be employed by the custodian in complying with the terms of such an order. That lawful force may be necessary in a given case is not an excuse for failure to action the order.
40Given this outcome, it is unnecessary to consider the alternative relief sought by the Crown under ss. 512(1) and 487.02 of the Criminal Code.
Released: April 7, 2025
Signed: Justice G. Jenner