ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
RAJUBHAI PATEL
Before Justice E.A. Carlton
Heard on August 18, 2025 & February 13, 2026
Reasons for Judgment released on March 20, 2026
A. St. Jean counsel for the Crown
R. Patel counsel for the accused Rajubhai Patel
CARLTON J.:
1Rajhubai Patel has pled not guilty to Impaired Operation of a Conveyance and to “80+” with the offences alleged to have occurred on August 19, 2024.
2Mr. Patel was also charged with Take Motor Vehicle Without Consent. That charge was withdrawn by the Crown prior to the arraignment.
3The core of the driving is not at issue. The Crown called a civilian, Timothy Gibson, who witnessed and videorecorded evidence of Mr. Patel’s driving. Further evidence came from the two officers involved in Mr. Patel’s arrest, Provincial Constable Harman Singh and Provincial Constable Randy Kruithof.
4Ultimately, Mr. Patel concedes that if a stay of proceeding is not entered based on the Charter application, that the evidence makes out the two offences.
5Mr. Patel has brought a Charter application seeking a stay of proceedings under section 24(1) of the Charter. The application relies on alleged infringements of sections 8, 9, 10(b) and 14 of the Canadian Charter of Rights and Freedoms. Both Mr. Patel and his cousin Mr. Sunny Patel testified at the trial and on this application.
The Evidence Supporting the Allegations
6Mr. Gibson testified that he followed the vehicle that was later determined to have been driven by Mr. Singh in Gravenhurst on the early evening of August 19, 2024. The operation of Mr. Singh’s vehicle, a small SUV, was also captured in a dashcam video in Mr. Gibson’s vehicle. The weather was clear and the roads were dry.
7Mr. Gibson was stopped opposite Mr. Singh’s vehicle at a four-way stop. Mr. Singh’s vehicle was signalling a left turn but instead the vehicle entered the intersection and stopped. The vehicle then did make the turn and began swerving into the oncoming lane and back to its own shoulder. Mr. Gibson called police because “there’s kids all over there” and he “didn’t want it on our conscience if he flew off down the road and killed somebody”.
8The video was played in court. It shows Mr. Patel making a left turn onto James Street in Gravenhurst and overturning such that the vehicle narrowly misses oncoming traffic stopped at the stop sign. At a minimum, the video shows the vehicle crossing the centre line on three occasions and each time travelling a considerable distance with at least the driver’s side tires well into the oncoming lane. An oncoming vehicle is seen moving partway onto the shoulder to avoid a collision. The passenger side tires go onto the lawns of houses fronting the street or onto the shoulder at least three times. At one point the vehicle passes a pedestrian who is walking close to the roadway against traffic beside the lane being used by Mr. Patel. The road makes a left turn and Mr. Patel’s vehicle continues straight onto a residential property and comes to a rest.
9Mr. Gibson observed the vehicle to drive off the roadway to his right, drive through a fence and then come to rest. He believed the vehicle was trying to back up but was not able to do so. Mr. Gibson observed another civilian, who identified himself as an off-duty officer, take the keys from the vehicle. Mr. Gibson identified Mr. Singh as the driver and described him as “severely inebriated … I think at that point he was out of the vehicle, kind of like on the ground and like couldn’t even get up”. “You could see in his eyes like he was on another planet”. He testified that Mr. Patel was either in bare feet or wearing flip-flops.
10Officers Singh and Kruithof arrived at 1849 hours. P.C. Singh was quite new to his role as a police officer. P.C. Singh speaks Hindi. Mr. Patel’s first language is Gujarati but both P.C. Singh and Mr. Patel testified that they were able to converse in Hindi. P.C. Singh found Mr. Patel sitting on the ground beside his vehicle. Mr. Patel was unable stand up. Once on his feet he leaned against the vehicle. There was a strong odour of alcohol on his breath, his eyes were bloodshot red, and he had slurred speech. There was a bottle of alcohol in the driver’s door pocket. Mr. Patel was arrested for impaired operation and had to be physically escorted back to the police cruiser.
11Mr. Patel was read a breath demand. Mr. Patel was advised of his rights to counsel and declined speaking to a lawyer. He was taken to the Bracebridge O.P.P. detachment. P.C. Kruithof, who was teamed with P.C. Singh and was present for the arrest, was the qualified breath technician. His evidence and the documentary evidence discloses that Mr. Singh’s blood alcohol concentration was 236 and 229 mg of alcohol, truncated in the Certificate of a Qualified Technician to 230 and 220 mg of alcohol, in 100 mL of blood at 1933 and 1955 hours respectively.
12It is clear that this evidence proves impairment by alcohol of the ability to operate a motor vehicle to the criminal standard of beyond a reasonable doubt. The breath readings are “conclusive proof” of the blood alcohol concentration (see s.320.31(1) of the Criminal Code) within two hours of operation and prove to the criminal standard the “80+” charge. Unless the proceedings are stayed under section 24(1) of the Charter, findings of guilt would issue on both counts with a conditional stay entered on one count.
13These findings are not contested by Mr. Patel. It is clear that the test in Stellato has been met. Given the other issues in the case, it is also relevant that this was not merely “any impairment” of the ability to drive but severe impairment of the ability to drive coupled with marked effects of the alcohol on the presentation of Mr. Patel. These findings are relevant to the reliability of Mr. Singh’s evidence on the Charter application.
The Charter Application
14Mr. Patel was held for a bail hearing heard the next day on August 20, 2024. The Crown was not seeking a detention order, but Mr. Patel was not released on that day. He was remanded to August 21, 2024 and was transported to the Central North Correctional Centre overnight. Mr. Patel was released on August 21, 2024 on a release order with a surety.
15The application seeks a stay of proceeding under section 24(1) of the Charter as a result of the following alleged infringements of Mr. Patel’s rights:
Breach of section 9 of the Charter based on the decision to hold Mr. Patel for a bail hearing rather than release him under section 498 or section 501 of the Criminal Code.
Breach of section 10(b) of the Charter due to the failure by police to advise Mr. Patel that he would be held for a bail hearing.
Breach of section 8 of the Charter based on Mr. Patel being remanded from bail court and being held at the Central North Correctional Centre where he was strip-searched on arrival.
Breach of section 14 of the Charter based on the failure by the state to provide an interpreter at his bail hearing on August 20, 2024.
16Mr. Patel does not seek a remedy of excluding evidence under section 24(2) of the Charter.
17Mr. Patel does seek a stay of proceedings under section 24(1) of the Charter. A stay of proceedings will be granted only in the “clearest of cases”. The applicant has an “onerous burden and such cases will be “exceptional” and “very rare” (see R. v. Babos, 2014 SCC 16 at paras. 31 and 44). There must be an "affront to fair play and decency … disproportionate to the societal interest in the effective prosecution of criminal cases" for a stay of proceedings to be warranted (see R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659 as endorsed in Babos at para. 44).
18The principal route to a stay is where state action has deprived the applicant of a fair trial. This is not suggested in this case. The second or residual category is where the state conduct “risks undermining the integrity of the judicial process” (see R. v. Babos, at para. 31).
19Under the residual category:
… 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 (at Babos, para. 35).
20For a residual case, the first question is “whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system” (at para. 38). The second question is “whether any other remedy short of a stay is capable of redressing the prejudice”. In a residual case, the remedy must be directed towards the harm of the prejudice to the integrity of the justice system: “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” (at para. 39).
21If the remedy is uncertain, a balancing of interests takes place at the third stage (at para. 32). For a residual case:
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 (see Babos at para. 41).
The Section 9 Application
22The first arm of the defence application is the assertion that the decision to hold Mr. Patel for bail was an infringement of his right “not to arbitrarily detained or imprisoned” under section 9 of the Charter.
23The application asserts that there were no grounds to hold Mr. Patel for a bail hearing and that police, having made an arrest were obliged to release Mr. Patel on either a form of release by a police officer in section 498(1) of either a summons, appearance notice or undertaking.
24These provisions must be applied with the “Principle of Restraint” set out in section 493.1 of the Criminal Code which reads as follows:
In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.
25A person will only be held for a section 515 hearing if, under section 498(1.1) of the Criminal Code, the
… the peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
26The principal basis for the police decision to hold Mr. Patel for bail relies on s.498(1.1)(b), given that the police officers testified that they believed that if they released Mr. Patel from custody he would fail to attend in court in order to be dealt with according to law, usually referred to as the “primary grounds”.
27Given the “ladder” principle set out in s.493.1, it is appropriate to assess the decision to hold Mr. Patel for bail against the conditions available in a section 501 Undertaking which is the most onerous form of release available prior to a section 515 hearing. There must be a reasonable belief that the conditions available in a section 501 undertaking would not adequately address the s.498(1.1) concerns. Under section 501(3) conditions in an undertaking can include depositing a passport with the peace officer (subsection (f)), a promise to pay of up to $500 (subsection (i)), and a cash deposit of up to $500.00 if the party is not ordinarily resident in the province or does not reside within 200 km of the place in which they are in custody (subsection (j)).
28The evidence on this issue includes the evidence of the two officers, from Mr. Patel, from Mr. Sunny Patel, and transcripts filed of the proceedings in the breath room and the show cause hearing.
29I will set out the evidence that supports and detracts from the position taken by police. While there is much in common between the police and the defence evidence there are some key differences. In general, I found the two police witnesses to have given credible and reliable evidence. This was one of Officer Singh’s first cases and he appeared to me to have a strong recall of events. Officer Kruithof also gave credible and reliable evidence and was candid when he was not able to describe events arising from the fact the Officer Singh was speaking to either Mr. Patel or Mr. Sunny Patel in Hindi.
30I found in general terms Mr. Patel and Mr. Sunny Patel to have given credible evidence. I have real issues with the reliability of the evidence of Mr. Patel. The substantive evidence in this case clearly shows that he was severely impaired by the consumption of alcohol. This has a notable impact on the weight I give to his recollection of what he said to the officers. Where there is a difference in the accounts, I accept the police evidence.
31I find the evidence relied on by Officers Singh and Kruithof to hold Mr. Patel for bail was the following:
When asked for his name Mr. Patel stated “Raju Raju” and did not give his full name. Mr. Patel’s name was obtained from Mr. Sunny Patel during a phone call with Mr. Sunny Patel on the way to the detachment.
Mr. Patel told police that he lived in Ontario and that he had a driver’s license.
Mr. Patel could not recall his date of birth.
Mr. Patel stated during the breath tests that he had lived in Ontario for one year prior although the ultimate question to Mr. Patel was “when did you shift” which the officer intended to mean when did he come to Canada.
Police learned from Mr. Sunny Patel that Mr. Patel lives in Alberta and was in Gravenhurst for a week to visit his wife who works for Mr. Sunny Patel.
Officer Singh believed that Mr. Patel was not a permanent resident of Canada given the recency of his entry into Canada. No passport or related documents for Mr. Patel was viewed by police.
Mr. Sunny Patel did not want “anything that deals with Raju” and had given the police information to support the charge of Take Motor Vehicle Without Consent.
I accept Officer Singh’s evidence that Mr. Patel had not provided him with a specific address as given in the following evidence:
So, asked him multiple times, what was his address, where was he living. He was not able to answer me questions, like, properly. There was a time he was telling me he’s living in Gravenhurst. There was a time he’s telling me he’s not living in Gravenhurst, he’s just here to see his wife. And I was just trying to figure it out, if he’s actually living in Gravenhurst, if he’s actually living in Alberta, how long he’s been here for. I had no idea of his background.
- Officer Singh summarized his belief as follows:
So at that point I had a male accused who doesn’t live here, who was giving me a wrong name, wrong ... or no date of birth at all, who was not a resident of Ontario and I was not sure if he was a resident in Canada.
So, after discussing this with my sergeant, I formed the grounds to keep him for bail, because I was not sure that the person would go back to Alberta and would not come to, or not come to Ontario, or if he would leave the country and would not return in order to get his charges dealt with. That was my main concern for not releasing him on conditions, but just to hold him for his bail.
- Officer Kruithof summarized his belief as follows:
Our main concern was if the, if Mr. Patel would be attending court after discussions on the fact of some of the comments he had made: the fact that he had not told us his name upfront, the fact that he had told us he had been in Gravenhurst for a year, which we later learned was a week, that he had, was planning to leave the province after visiting his spouse, and that he wasn’t a permanent resident of Canada.
- Other than seeing an image of Mr. Patel’s Alberta drivers license, the officer did not see any documents or have any information about Mr. Patel’s citizenship or his status in Canada other than his belief that Mr. Patel was from India. No original documents of any kind were produced.
32It is clear from the breath room transcript that the officers were considering a release at that time. Both officers testified that the final decision to hold Mr. Patel for bail was made sometime after they had gone to Gravenhurst to meet with Mr. Sunny Patel. They made the final decision in consultation with their Sergeant although it was agreed that this officer had no notes of the meeting and nothing to add to the evidence.
33I find the evidence available to Officers Singh and Kruithof that detracted from the existence of reasonable grounds to believe that no form of release under section 498 and 501 was available is the following:
Mr. Patel gave the officer his phone to speak to Mr. Sunny Patel when Mr. Sunny Patel called him on the way to the detachment.
After the breath testing, Mr. Patel allowed the officer to look at his phone and to see an image of his Alberta driver’s license.
During the breath testing process Mr. Patel told the officers that he would stay at Mr. Sunny Patel’s until his court date one month later.
Mr. Patel’s wife lived and worked in Gravenhurst for Mr. Sunny Patel. That fact was only raised by Mr. Sunny Patel and not by Mr. Patel.
Mr. Patel was in general polite and cooperative with police.
34I accept Mr. Patel’s evidence of his movements within Canada prior to the offence. I do not accept Mr. Patel’s evidence that he told police his full name or that Mr. Patel made it clear that he could live with his wife who lived in the same building as Mr. Sunny Patel. I also accept the applicant’s submission that Officer Singh could have asked Mr. Patel further questions about his residency but did not do so. It appears that the Officer did not believe he could obtain consistent or reliable information from Mr. Patel and so did not make further enquiries.
35In R. v. Al-Adhami, 2020 ONSC 6421, Justice Harris sets out the history of section 9 jurisprudence up to 2020. He notes at paragraph 63 that earlier cases did not equate a finding of arbitrariness to an absence of reasonable grounds but instead a test of whether the detention was “capricious, despotic or unjustifiable” (see R. v. Cayer, [1988] O.J. No. 1188 (C.A.)). Given the competing evidence on the primary ground, it is clear that the police conduct here would not meet such an exacting test.
36I accept that the current and broader test focuses on the lawfulness of the actions of the officer in making a decision to arrest or detain a person. Police only have authority to act according to law. When police act outside of their authority their conduct is arbitrary and gives rise to an infringement of section 9 of the Charter (see R. v. Grant, 2009 SCC 32 at para. 54).
37That test for the existence of reasonable grounds has been discussed by the Supreme Court in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 and by the Court of Appeal in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.), R. v. Assante, 2025 ONCA 387, and Shanthakumar Estate v. Canada Border Services Agency, 2025 ONCA 422
38Amongst others, I note the following propositions established by these cases:
Reasonable and probable grounds is both subjective (must be held by the arresting officer) and objective (a reasonable person placed in the position of the officer would find there to be reasonable grounds). (Shepherd, para 17)
Reasonable and probable grounds is not an “onerous test”. (Bush, para. 46-47).
All of the evidence must be assessed cumulatively in determining whether reasonable and probable grounds exist. In assessing the existence of reasonable grounds the “court must look to the totality of circumstances and not consider each fact in isolation” (Bush, para 55-56, Assante at para. 30 and Shanthakumar at para. 42).
The test for reasonable grounds deals with “probabilities” and “requires that the factors relied upon have enough probative value to establish the probability that the suspect is implicated in criminal activity” (Assante at para. 30).
39This caselaw on arbitrary detention typically arises in the context of the grounds for an arrest. Some language in the legal test set out above for the sufficiency of an arrest needs to be modified to address whether or not there is the presence of reasonable belief that a party should not be released by virtue of under section 498(1.1) of the Criminal Code.
40That noted, the core elements remain. There must be a subjective belief that the test for the exercise of authority to continue the detention and to hold a party for bail court in section 498 (1.1) has been met. That belief must be objectively reasonable based on a cumulative assessment of all the information available and accepted by the officer. It is not an “onerous test” to meet but there must be sufficient substantive content to the belief such that the threshold of reasonableness has been met and that the decision amounts to a reasonable exercise of authority.
41In applying this test, I will first note that there is no evidence that the decision to hold Mr. Patel for a bail hearing was the application of some policy whose content is different than section 498(1.1) of the Criminal Code (see R. v. Rashid, 2010 ONCA 591 at para. 7; and R. v. Provo, 2015 ONCJ 311 at para 56). There is no suggestion in the evidence that the uncertainty about Mr. Patel’s residency status in Canada or his connection to another province, on their own, caused him to be held for a bail hearing as a matter of policy. As I have found, police were giving serious consideration to a release at the time of the breath testing; in Officer Kruithof’s words “release was on the table”. Police went back to Gravenhurst and spoke with Mr. Sunny Patel in part to gather information to assess on the primary ground.
42The leading case provided by the applicant is the decision of the Superior Court in Al-Adhami. In that case the Court held that the evidence in the bail package was misstated and that “no reasonable officer would have held him for bail” (at para. 10). There is no suggestion in this case that the officers did not have grounds to charge Mr. Patel or that they misstated or exaggerated the allegations against Mr. Patel. While the record does not disclose why Mr. Patel was charged with taking Mr. Sunny Patel’s vehicle without consent, there is no suggestion that there were no grounds for this charge or that there was any improper motive in using the charge to prevent Mr. Sunny Patel from acting as a surety.
43When I apply the test for the existence of reasonable grounds, I am satisfied that there were reasonable grounds to believe that Mr. Patel would not attend court if release was made on the conditions set out in a s.501 Criminal Code undertaking.
44Police were not obliged to accept Mr. Patel’s statement that he would come to court if released given at a time when his blood alcohol concentration was almost three times the legal limit. Mr. Patel had not given what the police believed were truthful answers about his name, where he lived, and how long he had been in Gravenhurst. Police had no objective evidence of Mr. Patel’s status and circumstances beyond Mr. Patel being in possession of an Alberta driver’s license. Officer Singh testified that he had “no confidence” in the assurances given by Mr. Patel. Police enquiries had not led to a concrete understanding of Mr. Patel’s circumstances. While it is almost always the case that police could have made further enquiries, the officers here did seek out information and considered the possibility of release for several hours before coming to their decision.
45It is the nature of a test of reasonableness that different outcomes are possible. It was reasonably open for police to release Mr. Patel on an Appearance Notice or Undertaking with conditions and a promise to pay or a cash deposit of up to $500.00. I find that the applicant has not shown that the decision to take the contrary position and bring Mr. Patel to bail court to be unreasonable or contrary to their obligation in section 498(1.1) of the Criminal Code. I fully accept that the officers subjectively believed that their decision was grounded in law and further, find that their decision was objectively reasonable.
46The officers were not recommending detention for Mr. Patel but seeking either a surety release or a release with a cash deposit. Officer Kruithof testified that in their bail package they were seeking terms, including that Mr. Patel not operate a motor vehicle, that are not permitted in a section 501 Criminal Code undertaking. This belief, not unreasonable on the facts of this case, also gives rise to a belief that detention was not available pursuant to section 498(1.1)(a)(iii)). The fact that the Crown did not seek this term does not mean that a belief that such a term should be made was unreasonable.
47Officer Kruithof’s evidence on whether he considered a recognizance with a promise to pay or a cash deposit was somewhat unclear. This is the strongest aspect of the defence submission. Officer Kruithof testified that he has used such a release since this incident but could not say whether this was an option on the form he used in August 2024. This power was available in August 2024. Officer Kruithof testified that he deferred the issue of a cash bail to the Justice of the Peace, and this was not considered by him. Ultimately, I do not find this to be an infringement of the Principle of Restraint in s.493.1 of the Criminal Code. It is clear that the officer’s overall assessment was that a s.501 undertaking would not adequately meet his assessment of the necessary conditions in a release nor satisfy his concerns on the primary ground. I find that subjective assessment to be reasonable.
48In assessing the reasonableness of the officer’s decision, it is noteworthy that the independent review by a Crown Attorney did not contradict the position taken by the officers. This was not a case in which the Crown immediately agreed to a release on an Undertaking. The bail screening form noted that there were “primary ground concerns” based on “accused visiting from Alberta” and “temporary work visa – citizen of India”. The source of this additional information was not explored at trial. The Crown indicated that it would consent to release on a “$2,000.00 cash bail or a “surety recog, $2,000.00, and conditions” (although the handwriting is somewhat unclear whether the second figure is $1,000.00). The duty counsel described the Crown position as “generous”. Mr. Patel was ultimately released on a surety release order with a promise to pay of $2,000.00. I note that section 501 of the Criminal Code has a maximum promise to pay of $500.00 and does not allow for a surety as was imposed in Mr. Patel’s release order.
49I do not find that Mr. Singh’s right to be free from arbitrary detention in section 9 of the Charter to have been infringed.
The Section 10(b) Application
50No issue is taken with compliance with sections 10(a) and 10(b) of the Charter at the time of Mr. Patel’s arrest. Mr. Patel was advised of his arrest and his right to contact counsel, and Mr. Patel waived his right to speak to counsel. Police then elicited evidence from Mr. Patel through a lawful breath demand.
51The application asserts that police had an additional obligation to advise Mr. Patel of his right to contact counsel when the decision was made to hold Mr. Patel for bail. This submission has some support in the caselaw.
52Respectfully, I do not find that section 10(a) or (b) of the Charter requires police to advise a party who has been arrested and detained that they are going to be held for a bail hearing.
53The rights in section 10 of the Charter apply on “arrest and detention” and must be given “promptly”. There was compliance with this requirement in Mr. Patel’s case.
54The situations in which police are required to again advise a party already under arrest and detention and who has already been advised of his or her rights to counsel are limited. There must be a change in circumstances requiring police to advise the detainee again of their right to retain and instruct counsel.
55Subsequent to the Superior Court decision in R. v. Jutras, [2007] O.J. No. 2396 relied on by the applicant, the Supreme Court released its decision in R. v. Sinclair, 2010 SCC 35. The Court made this statement about the circumstances in which police are obligated to re-advise a detainee of their right to retain and instruct counsel:
Section 10(b) should be interpreted in a way that fully respects its purpose of supporting the detainee's s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation.
The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate (at paras. 47-48).
56The Court ties the need for a consultation to the purposes of section 10(b) which is provide a detainee with information such that the detainee is able to make an informed decision whether or not to speak to or cooperate with police (see Sinclair paras. 24-27)
57This interpretation is reinforced by the recent decision of the Court of Appeal in R. v. Thompson, [2025] O.J. No. 3104 (C.A.). The issue in the case was whether police were obligated to re-advise a detainee of their right to retain and instruct counsel before conducting an investigative strip search. Justice Pomerance stated the following (at para. 32):
In Sinclair and its companion cases, the Supreme Court held that as a general rule, s. 10(b) entitles a detainee to one opportunity to consult counsel. But like most rules, this one has exceptions. The majority acknowledged that the purpose of s. 10(b) may require a right to reconsult counsel, either because new non-routine procedures are being employed by police, or because there is reason to believe that the original consultation did not achieve its intended purpose. The majority identified three categories that will normally trigger a right to reconsult:
New procedures involving the detainee;
A change in the jeopardy facing the detainee; or
Reason to question the detainee's understanding of their s. 10(b) right.
58The Court restates the purpose of section 10(b) set out by the Supreme Court in Sinclair (at paras. 42-47). The Court finds that an investigative strip search is, due to its uniquely invasive nature, is a non-routine police power for which the detainee should have the ability to speak to counsel to obtain legal advice. As such, the requirement for a detainee to be re-advised of his or her right to retain and instruct counsel is connected to the purposes of section 10(b) of the Charter (at paras. 58-71).
59The police made a decision to hold Mr. Patel for bail some time after they had spoken to Mr. Sunny Patel and then later returned to the detachment. Officer Singh had some recollection that he told Mr. Patel that he was going to be held for bail at the time of fingerprinting at around 5:00 a.m. but ultimately could not testify that such a conversation had occurred. It is clear that Mr. Patel was not re-advised of his right to retain and instruct counsel by the arresting officers.
60There was no material change in the jeopardy of Mr. Patel. There was no new procedure being used to investigate his case. It is the case that police later gathered evidence to support a charge of Take Motor Vehicle without Consent but there were no subsequent attempts to elicit evidence from Mr. Patel on this charge. There was no basis for police to question Mr. Patel’s understanding of his section 10(b) rights. I do not find that either Sinclair or Thompson support the proposition that police have an obligation to re-advise a detainee of their right to retain and instruct counsel if a decision is made to hold that party for a bail hearing. Such an interpretation is contrary to the text of section 10(b) and not supported by appellate decisions. A bail hearing is a judicial process and not part of the investigation by the police.
61I add that Mr. Patel did speak with counsel with an interpreter early in the morning on August 20, 2024. Counsel for Mr. Patel suggested the circumstances were consistent with the counsel being from the duty counsel hotline as opposed to contact with the counsel in bail court. If that is accurate, Mr. Patel did have timely access to duty counsel close in time to his bail hearing
The Section 8 Application
62No issue is taken with the right of the correctional authorities to carry out a strip search of Mr. Patel on his arrival at the institution (see Clarke, Heroux and Pilipa v. The Queen (2003), 2003 64244 (ON SC), 184 C.C.C. (3d) 39 (Ont. C.A.)). The decision-making and actions of the correctional authorities is not contested.
63I accept that the strip search at the institution could be what is sometimes described as a “cascading breach”. In such cases, while there is no additional action that gives rise to a breach, the initial breach sets in motion events that amount to a further breach of the rights of the applicant.
64I accept that an improper decision to hold a party for bail can lead to a strip search flowing from the decision. This is the position of Mr. Patel, and it has support in the caselaw.
65There remains the issue of remoteness or connection between the decision to hold for bail and the ultimate strip search. Police made the decision to hold Mr. Patel for bail but also recommend release at the bail hearing. The decision to remand Mr. Patel is the result of a judicial process independent of police. Certainly, had I found a section 9 breach in the decision to hold Mr. Patel for bail, but for that breach there could not have been a subsequent strip search. At the same time, there was the intervening event of the bail hearing itself where Mr. Patel was represented by duty counsel before an independent judicial officer.
66Given my findings on the section 9 issue, I need not resolve whether the strip search itself is a separate breach of Mr. Patel’s rights. I have found that there were grounds to hold Mr. Patel for a bail hearing. While there is a section 14 Charter issue at that bail hearing, there is no suggestion that a breach otherwise arises from the bail hearing or the defence request that the matter be adjourned to the next day. The search at the institution was an administrative search not connected to any breach of the rights of Mr. Patel.
[Section 14](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec14_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
67Section 14 of the Charter guarantees that a “party or witness in any proceedings who does not understand the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter”.
68Mr. Patel speaks Gujarati and does not understand English. He was able to understand and converse with Officer Singh in the Hindi language.
69There was no interpreter for the bail court proceedings on August 20, 2024. From the transcript it appears that one was sought during the court day. When the matter was first addressed the presiding Justice of the Peace stated that he would was “not going to endeavour to do a release on someone who doesn’t understand English”.
70The second time the matter was addressed there was some discussion about a police officer who speaks Hindi coming in early while on nights to act as an interpreter but duty counsel advised that he didn’t want police to “wake up the officer on nights unnecessarily”. The proposed surety was then Mr. Sunny Patel who was the owner of the vehicle said to have been taken without consent and duty counsel advised that a different surety was coming from Brantford and would not be present until the next morning. The duty counsel states that he will try to have Mr. Sunny Patel to act as an interpreter “to allay this gentleman’s anxiety, rather than wake up a police officer who’s obviously on the night shift”. At that point the request to have this officer attend is cancelled and the Justice of the Peace asks the court office to have an interpreter for the next day.
71The matter is addressed one further time. Mr. Patel is remanded to the next day. Mr. Sunny Patel acted as a non-accredited interpreter. Through Mr. Sunny Patel, Mr. Patel confirmed he understood the charges. Mr. Patel asked for an interpreter. He made comments about being cold and Mr. Sunny Patel asks if he can provide food for Mr. Patel. Mr. Patel is told that he will return the next day and that duty counsel will speak to him about a plan for release.
72The content of this right is set out in the Supreme Court decision in R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951. The right to an interpreter is central to the interests of a defendant to fully participate in the proceedings and to make full answer and defence. It applies at every proceeding in which the vital interests of a defendant are at issue. A bail hearing is such a proceeding.
73No authority is provided for the proposition that the administrative arm of the court is to have an interpreter available in every language at every court location the day that a request is made or, further, that any derogation from this standard gives rise to a stay of proceedings. It is clear that good faith attempts were made by court services and by the police to have some translation services available. It was duty counsel who asked that attempts to have a police officer come in to provide non-accredited translation be called off. The state cannot be held accountable for this defence position. It seems clear that an interpreter was available the next day when Mr. Patel was released. There is no evidence that the unavailability of translators is a systemic issue.
74I do not find in these circumstances that Mr. Patel has established a breach of his section 14 right to an interpreter.
75I do appreciate the submission that the participants in the bail hearing could have made different decisions, and it was possible that some way could have been found to address what resulted in a consent release on August 21, 2024. The only evidence of what did occur is what is set out in the transcript of proceedings. It is not alleged that, apart from the interpreter issue, that the actions of the police or the Crown at the bail hearing amount to a separate Charter breach. The proceedings started with duty counsel describing the position of the Crown as having taken a “very compassionate position with respect to a consent release”. Mr. Patel’s experience in bail court is one example of the sometimes difficult realities of a court where the parties are dealing with fresh matters with imperfect information and resources but those circumstances on their own do not constitute an independent breach of the rights of Mr. Patel.
Section 24(1) Application for a Stay of Proceedings
76Given my findings that there has been no breach of the Charter there is no requirement that I consider section 24(1) of the Charter.
77I accept that, at the first stage of the residual category, jurists have concluded that an unreasonable decision to hold a party for bail can result in a trial that would offend society's sense of fair play and decency and harm the integrity of the justice system. I also accept that other jurists have found that there is no alternative remedy other than a stay.
78Given my findings, I will only state that on the section 9 application, had a breach been found and the matter had proceeded to the “balancing stage”, that a stay would only be possible if I were to have found that there were no grounds at all to hold Mr. Patel for bail, as opposed to a finding that while some grounds existed they did not cumulatively amount to reasonable grounds. The balancing stage set out in Babos requires the court to balance the “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”.
79The conduct of Mr. Patel was serious. His driving, captured on video, while having a blood alcohol concentration nearly three times the legal limit, posed a tangible and considerable danger to members of the public. In my view, to find the circumstances here to be one of the “clearest of cases” would require the impugned conduct of police to have no grounds at all for detention for bail (as in Al-Adhami) as opposed to simply an improper assessment of whether reasonable grounds existed in order for the "affront to fair play and decency” to be disproportionate to the societal interest in the effective prosecution of criminal cases.
Conclusion
80For these reasons I dismiss the Charter application.
81I find Mr. Patel guilty of both offences before the Court. A conditional stay will be entered on one of the charges as sought by the Crown.
Released: March 20, 2026
Signed: Justice E.A. Carlton