ONTARIO COURT OF JUSTICE DATE: 2024 07 02 COURT FILE No.: Hamilton 4711 998 22 47101503
BETWEEN:
HIS MAJESTY THE KING
— AND —
COREY PARNELL
Before: Justice Davin M.K. Garg
Heard on: May 13 and June 10, 2024 Reasons for Judgment released on: July 2, 2024
Counsel: Victoria McDougall & Matthew Moser.......................................... counsel for the Crown Adrianne DiSimoni............................................ counsel for the defendant Corey Parnell
Overview
1Corey Parnell faces charges that are common to the provincial courts: dangerous driving and flight from police. The legal issues raised by the charges are less common. The first issue concerns the alleged offences: even if Mr. Parnell drove dangerously and fled from police following a routine traffic stop, he argues that his actions are non-culpable because they were induced by the police officer’s conduct during the stop. The second issue concerns events in court: Mr. Parnell seeks a stay of proceedings because he was not released from custody on a valid release order after the Crown withdrew separate charges that had been keeping him in custody.
2For the reasons that follow, I find Mr. Parnell guilty of dangerous driving and flight from police. Mr. Parnell did not flee out of necessity or because of a reasonable excuse. The Crown has disproven the defences and proven his guilt beyond a reasonable doubt. I also find that Mr. Parnell spent two unwarranted days in pre-trial custody. The Crown’s anticipated application to cancel the release order under s. 524 of the Criminal Code did not encumber its validity. But I decline to stay the proceedings.
The charges of dangerous driving and flight from police
3This was a two-witness case. The Crown called Cst. Scott Rieder. Mr. Parnell testified in his own defence. I find that their accounts largely align on the material issues until the moments before Mr. Parnell took flight.
Factual analysis
4On Friday, June 10, 2022, around 11:30 p.m., Mr. Parnell was driving a motor vehicle eastbound on Main Street East in the City of Hamilton. He turned left onto Melrose Avenue. There are three blocks between Main and King Street East on this stretch of Melrose with stop signs at each intersection. There is no dispute that Mr. Parnell failed to properly obey one of the stop signs, although Cst. Rieder and Mr. Parnell disagree on which one. Mr. Parnell acknowledges that he neglected to see one of the stop signs and did not stop until he had already entered the intersection. There is also no dispute that Mr. Parnell quickly stopped outside a residence on Melrose for his passenger to alight before he continued towards King.
5Mr. Parnell turned left onto King and was travelling westbound. Cst. Rieder soon activated his rooftop lights to stop Mr. Parnell for the stop sign violation. The traffic stop occurred around 11:33 p.m. The exact location of the traffic stop is not important; Mr. Parnell did not dispute that it might have occurred near Sherman Avenue. Mr. Parnell stopped promptly on the south side of King. [1] He properly identified himself when Cst. Rieder approached his vehicle and asked for his license.
6Mr. Parnell was extremely nervous during the encounter that followed the traffic stop. He avoided eye contact and was visibly shaking. Cst. Rieder could not understand why Mr. Parnell was so nervous given that he had been stopped for a relatively minor traffic infraction. It led Cst. Rieder to ask Mr. Parnell whether there was anything illegal in the vehicle. Mr. Parnell either did not answer the question or gave a terse response.
7Cst. Rieder saw a satchel near Mr. Parnell’s feet. Cst. Rieder asked if Mr. Parnell had anything in the satchel. Mr. Parnell says that he responded by picking up the satchel, opening it, and showing it to Cst. Rieder. He saw Cst. Rieder move his hand towards the firearm that was holstered on his waist. Mr. Parnell put his vehicle into drive and took off. He drove at a high rate of speed on King. Cst. Rieder estimated that Mr. Parnell drove almost double the speed limit. Mr. Parnell drove through a solid red light at the Holton Avenue intersection. Mr. Parnell admits that he was not paying attention to his speed. He kept driving and left Cst. Rieder’s sight, who was still standing on the sidewalk with his driver’s license in his hand. Cst. Rieder radioed his dispatch. He did not give chase because it would have compromised public safety.
What caused Mr. Parnell to flee?
8This takes me to the primary factual issue in this case: what caused Mr. Parnell to flee? The defence argues that Mr. Parnell fled because he feared for his safety when he saw Cst. Rieder reach towards his firearm. The Crown argues that I should reject Mr. Parnell’s evidence and find that Cst. Rieder never made a move towards his firearm.
9I have serious reservations about Mr. Parnell’s testimony on this issue. There are aspects of it that do not accord with his evidence. I will return to my concerns later in these reasons. At this stage, suffice it to say that I cannot reject the possibility that Cst. Rieder motioned towards his firearm. It is a reasonable inference on the whole of the evidence that Cst. Rieder moved his hand towards his holster, perhaps subconsciously. To be clear, I am not making a negative credibility finding against Cst. Rieder on this issue. While he disagreed with the suggestion that he made such a move, he left open the possibility when he testified, “… I do not recall motioning or doing anything with my firearm. I know for a fact that I did not pull out my firearm. I don’t recall motioning towards my firearm either”.
10Defence counsel painted a compelling web of factors to support the inference that Cst. Rieder could have placed his hand near his holster. Cst. Rieder had serious concerns for officer safety. Mr. Parnell was acting nervously—the most nervous that Cst. Rieder had ever seen a person act during a seemingly routine traffic stop. Before stopping the vehicle, Cst. Rieder had seen the entries on Mr. Parnell’s criminal record. Cst. Rieder acknowledged that he would approach a traffic stop differently for a person with Mr. Parnell’s criminal record than a person without a record. While Mr. Parnell was generally cooperative, he was failing to answer Cst. Rieder’s queries about what was in his vehicle and satchel. Cst. Rieder was also alone during a nighttime patrol.
11While I accept that Cst. Rieder might have motioned towards his holster, this finding does not determine Mr. Parnell’s motives for taking flight. Based on my concerns with Mr. Parnell’s evidence, I reject his testimony that he took flight because he thought that Cst. Rieder might take out his firearm. I do not know why Mr. Parnell took flight; I can only say that it was not out of fear for being shot or assaulted: see e.g., R. v. McCool, 2024 ONCA 457 at para. 51; R. v. Akey, 2020 ONCJ 575 at para. 73. I also reject Mr. Parnell’s suggestion that Cst. Rieder went so far as to grip his firearm or manipulate the holster.
Reasons to reject Mr. Parnell’s stated basis for his flight
12I reject Mr. Parnell’s stated basis for his flight because I do not accept that he feared Cst. Rieder to the extent that he claimed in his testimony. I reach this finding for two main reasons.
13First, Mr. Parnell’s conduct during the traffic stop belies his claim that he feared Cst. Rieder. According to Mr. Parnell, when Cst. Rieder asked him about the contents of the satchel, rather than staying silent or telling him what was inside, he reached down towards the satchel, picked it up, unzipped it, and showed the officer what was inside. The following answers from his examination in-chief are pertinent to this issue: [2]
A. … he observed the bag on the floor. And he said, do you got anything illegal in the car? And I told him no. Then he said, “What’s in the bag?” And when I lifted up the bag, I opened the bag to show him what was in it …
A. … when he asked what was in the bag, I grabbed the bag from the floor and I opened it, and when I opened it, I had a bag of change in there. And when he observed it, he grabbed his firearm. And said, “What’s in the bag?”
A. I picked up the bag regularly, I unzipped it, and I opened it. …
Q. And how fast did you reach for the bag?
A. At regular speed.
14Mr. Parnell confirmed this position in cross-examination:
Q. … He asks you, “What’s in the bag?” Right? At this point the flashlight is still on you. Would you agree?
A. Yeah.
Q. Ok. You say, “Just coins”. And then you reach down for the bag.
A. I actually didn’t say anything. I just reached for the bag to show him what was the contents of the bag.
Q. Alright. So, you’re nervous.
A. Yeah.
Q. The officer stopped you, right? He asked you what’s in the bag. You say nothing and reach for it. Right, that’s your evidence?
A. Yes.
Q. … that’s an alarming move, right? You would agree with me?
A. I could agree with that, yes.
15Mr. Parnell’s decision to reach for his satchel without telling the officer what he was doing undermines his claimed degree of fear for the officer. Relying on my common sense and acquired knowledge about human behaviour, Mr. Parnell did not act like someone who greatly feared Cst. Rieder: see R. v. Kruk, 2024 SCC 7 at para. 72. The defence argument that Mr. Parnell would have been less fearful when he reached for his satchel as compared to when he saw Cst. Rieder motion towards his firearm unrealistically parses the narrative. Mr. Parnell was clear in his testimony that he was extremely fearful of Cst. Rieder from the outset of the encounter. This fear was the supposed basis for his extreme nervousness that was observable from the outset. Having rejected Mr. Parnell’s testimony on the fear that he felt, I reject that he fled out of fear when he supposedly saw Cst. Rieder motion towards his firearm.
16Second, aspects of Mr. Parnell’s testimony cause me to conclude that he overstated his evidence. In particular, I find as fact that Cst. Rieder must have been close behind Mr. Parnell on Main Street and then especially Melrose Avenue. In response to one question during cross-examination, Cst. Rieder responded, “… I noted the vehicle turned left north bound because I was behind it, yes”. Cst. Rieder was able to observe the stop sign violation on Melrose followed by Mr. Parnell stopping for 10 to 15 seconds to let out his passenger. Cst. Rieder specifically observed the make, colour, year, and license plate of Mr. Parnell’s vehicle well before the traffic stop. He made these observations even though it was dark at the time. During Cst. Rieder’s testimony, I did not take his proximity to Mr. Parnell’s vehicle to be controversial—indeed defence counsel suggested that Cst. Rieder was positioned to conduct the traffic stop much earlier than he did.
17Yet Mr. Parnell adamantly testified that Cst. Rieder was not behind him on Melrose. Mr. Parnell was clear: he was not simply saying that he did not notice a police cruiser; rather, he was positively asserting that there was in fact no police cruiser behind him. In his words: “At no point on Melrose was there a police cruiser behind me”. On Mr. Parnell’s account, the cruiser was unequivocally not behind him unless its headlights had been deactivated.
18Mr. Parnell’s testimony on this issue leads me to question his reliability and credibility as a witness. He overstated his evidence regarding the absence of a police cruiser. I find that he also overstated his reasons for fleeing from the police. I thus reject his stated reasons for the flight and put no weight on them.
Relevant defences
19Defence counsel argued that Mr. Parnell had a reasonable excuse on the charge of flight from police. The defence also raised the defence of necessity but did not press it forcefully during submissions. I will address both.
Reasonable excuse
20Section 320.17 of the Criminal Code contains an out-clause to culpability through the avenue of a reasonable excuse. A claim of reasonable excuse to a charge of flight from police is not a denial of the essential elements of the offence: R. v. Armstrong, 2011 ONCA 709 at para. 9. Rather, reasonable excuse provides a defence that would not otherwise be available to the accused. [3] For the sake of analyzing this case, I will follow the conclusion reached by Petersen J. that: (a) the accused bears an evidential burden of raising an air of reality to the reasonable excuse; and (b) if an air of reality exists, then the Crown bears the burden of disproving it beyond a reasonable doubt: R. v. Refaeh, 2024 ONSC 755 at paras. 17, 20, 55, 60, 65-66. [4] The Crown did not argue otherwise.
21Assuming that the evidence gives an air of reality to reasonable excuse, the Crown has disproven it beyond a reasonable doubt.
22The reasonable excuse rested on me accepting Mr. Parnell’s reasons for taking flight. On my findings of fact, Mr. Parnell took off for some unknown reason in circumstances where Cst. Rieder might have motioned towards the area of his firearm. This scenario cannot form the basis for a reasonable excuse. It is unreasonable for drivers to put the public at risk by jetting off the moment that tensions rise during an encounter with the police. This encounter occurred in a busy stretch of Downtown Hamilton. This is not a situation where Mr. Parnell was unaware that he had been stopped by the police or thought he was being accosted by some random member of the public. Cst. Rieder was in uniform, stopped Mr. Parnell by activating his emergency lights, conveyed the purpose for the traffic stop, and dealt with Mr. Parnell in a calm and civil manner. [5] Cst. Rieder’s conduct was a far cry from the conduct of the officers in the cases relied on by the defence. In R. v. McMullen, 2014 ONCJ 14, a very large officer approached the accused in an aggressive manner while brandishing a firearm in a pointed position at the window of his vehicle. And in R. v. Mohamed, 2013 ONCJ 700, there was a heated exchange during which the officer hit the driver’s side window with his baton and caused it to shatter.
23I caution myself against weighing Mr. Parnell’s decision-making to a nicety. I appreciate that tense situations can provoke irrational conduct. I factor in Mr. Parnell’s prior negative experiences with the police, which I accept were unpleasant and traumatic. [6] His perception of the police could have heightened his concern that the officer would quickly turn to the use of undue force. Bearing these factors in mind, I am nonetheless satisfied beyond a reasonable doubt that Mr. Parnell’s response was disproportionate and unreasonable.
Necessity
24Necessity is a common law defence that operates to excuse criminal behaviour. The excuse applies when a person’s commission of a crime arose from a genuine emergency. There are three elements to the defence of necessity: (1) the accused was facing an urgent situation involving “clear and imminent” peril; (2) there was “no reasonable legal alternative” to the accused breaking the law; and (3) there was “proportionality between the harm inflicted and the harm avoided” by the accused: R. v. Guillemette, 2022 ONCA 436 at paras. 31-32; R. v. Latimer, 2001 SCC 1 at paras. 28-31.
25Assuming that the evidence gives an air of reality to the necessity defence, my findings when analyzing the issue of reasonable excuse establish that the Crown has disproven necessity beyond a reasonable doubt. All three elements have been disproven. Mr. Parnell was not facing clear and imminent peril (I reject that Cst. Rieder was handling his firearm or its holster); Mr. Parnell had reasonable legal alternatives (he could have stayed put); and his decision to take flight was not proportionate to the harm that he posed to public safety.
Has the Crown proven the charges beyond a reasonable doubt?
26Mr. Parnell is presumed innocent of all charges. The Crown bears the onus of proving each and every element of the offences charged beyond a reasonable doubt. Mr. Parnell carries no onus to prove or disprove anything. It is not enough for me to believe that Mr. Parnell is probably or likely guilty of the offences. In that situation, I would need to acquit. While the Crown is not required to prove its case to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than the balance of probabilities. Reasonable doubt can arise from the evidence or from the absence of evidence.
Flight from police
27On the offence of flight from police, the Crown must prove beyond a reasonable doubt that Mr. Parnell knew he was being pursued by the police and intended to evade the pursuit: Armstrong at para. 11.
28The defence conceded that the offence would be made out if I rejected the application of reasonable excuse. There is no dispute that Cst. Rieder had pursued Mr. Parnell and demanded that he stop by activating his rooftop emergency lights. Upon stopping, Mr. Parnell knew that he was not free to leave. He took off for the very purpose of evading the police.
29The only question is whether the offence remains available in circumstances where the accused had initially stopped as directed. In a sense there was no active pursuit after Mr. Parnell had pulled over. But the case law makes clear that a driver who pulls over in response to an officer’s direction and then speeds away before the interaction is complete is rightfully guilty of this offence. The driver cannot reasonably think that their conduct would not result in a pursuit: R. v. Athwal, 2016 ONCJ 89 at para. 111; R. v. Jensen, 2015 ONSC 1040 at para. 30. In effect, the passages in s. 320.17 of “while being pursued” and “who fails … to stop the motor vehicle” are interpreted broadly to give effect to the legislative purpose while respecting the statutory text. In this context, the pursuit remains ongoing until the driver is free to leave, and the obligation to stop includes the obligation to stay stopped.
Dangerous driving
30The Ontario Court of Appeal in R. v. Ibrahim, 2019 ONCA 631 clarified how the W.(D.) [7] principles apply to the offence of dangerous driving. With a modified objective standard of fault, exculpatory testimony from the accused does not lead inexorably to an acquittal. But I must consider this evidence. The accused’s perceptions of the situation might contribute to a reasonable doubt on whether the modified objective standard is met: Ibrahim at paras. 47-48; R. v. Beatty, 2008 SCC 5 at para. 43. I self-instruct as follows (Ibrahim at para. 63):
(1) If I accept Mr. Parnell’s evidence and, on the basis of it, I have a reasonable doubt about whether the Crown has satisfied any of the elements required to prove dangerous driving, then I will find Mr. Parnell not guilty.
(2) Even if I do not accept Mr. Parnell’s evidence, if, after considering it alone or in conjunction with the other evidence, I have a reasonable doubt about whether the Crown has proven the elements of the offence, then I will find Mr. Parnell not guilty.
31As explained above, I reject Mr. Parnell’s explanation for why he drove the way that he did. I therefore do not have a reasonable doubt from accepting his evidence. Nor does Mr. Parnell’s evidence leave me in reasonable doubt when considering it in conjunction with all the evidence. I will elaborate.
32The actus reus of dangerous driving is captured by the language of s. 249 of the Criminal Code. The manner of driving must be dangerous to the public having regard to all the circumstances in which it occurred. Turning to the mens rea, the Crown must prove that the manner of driving amounted to a marked departure from the standard of care that a reasonable person would have observed in the circumstances facing the accused. This fault component focuses on the conduct of the accused and is intended to distinguish driving that is sufficiently egregious to warrant criminalization from other forms of bad driving: R. v. Laverdure, 2018 ONCA 614 at paras. 20, 23; Beatty at paras. 36-43, 47-49.
33Starting with the actus reus, the manner of driving was dangerous in the circumstances. Mr. Parnell took off from a traffic stop and rapidly accelerated. Even if the evidence was not precise on the exact number of cars and pedestrians that were present, the driving occurred in a busy part of the city on a Friday night. There are businesses, residences, and crosswalks in the area. Pedestrians were present. I accept that Mr. Parnell was traveling significantly above the speed limit and much faster than the normal flow of traffic. As Mr. Parnell approached the red light at the Holton Avenue intersection, he proceeded straight through without slowing down. I accept that Cst. Rieder did not see any brake lights.
34As for the mens rea, Mr. Parnell’s conduct constituted a marked departure from the standard of care that a reasonable person would have observed in his circumstances. First, Mr. Parnell’s decision to drive at an elevated rate of speed was not limited to a brief moment in time. There are multiple blocks between when Mr. Parnell took off at Sherman and when King Street begins to veer, which is where Cst. Rieder lost sight of him. Second, Mr. Parnell went through a solid red light without any regard for whether his actions would put others at risk. I accept that Mr. Parnell had not given himself time to slow down if a person or vehicle had entered that intersection on their right-of-way. The absence of a collision does not attenuate Mr. Parnell’s fault in the same way that a collision would not have decided his fault. Third, I rejected that Mr. Parnell drove in this manner because he feared Cst. Rieder. But I do accept that he was intentionally trying to flee from him. This motive overwhelmed Mr. Parnell’s thought-process and decision-making and made him an even greater risk on the road. Mr. Parnell himself admitted that he was not looking at his speedometer. Mr. Parnell was unconcerned about controlling his speed because his primary goal was to get away. The intentionality of his driving conduct is relevant to the fault assessment and contributes to my conclusion that Mr. Parnell’s conduct amounted to a marked departure from the standard of care.
Conclusion
35I find Mr. Parnell guilty of both counts on the information: flight from police under s. 320.17 and dangerous driving under s. 320.13(1) of the Criminal Code.
The application under section 9 of the Charter
36Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned”. An unlawful restraint on liberty is necessarily arbitrary: R. v. Grant, 2009 SCC 32 at paras. 54-55. The defence argues that Mr. Parnell’s s. 9 rights were violated when he was unlawfully restrained for two days of pre-trial custody.
Relevant facts
37A detailed overview of the procedural history is necessary to situate this Charter application. On June 21, 2022, Mr. Parnell was arrested for the present charges and released on an undertaking. Three days later, he was arrested for two new charges. He was released that same day on a release order. The global release order listed the new and present charges. On April 11, 2023, Mr. Parnell was arrested for possessing a Schedule I substance for the purposes of trafficking along with a proceeds offence. I will refer to these two offences as the federal charges.
38Mr. Parnell appeared in bail court on April 12, 2023. The federal Crown opposed Mr. Parnell’s release. The provincial Crown stated, “there would be a 524 application for two Criminal Code informations”, which referred to Mr. Parnell’s outstanding release order. The Justice of the Peace in bail court noted the s. 524 application and the Crown’s opposition to bail. The warrant of remand, which was filed as Exhibit 4, includes the remark, “Pending s. 524”. Nothing of this nature was noted on the information before me or the associated release order. Mr. Parnell never ended up running a bail hearing on the federal charges and thus remained in custody.
39Mr. Parnell’s case proceeded through the system until May 2023. He was set to appear in court on May 18, but his counsel brought the matter forward to May 10. On that date the federal Crown withdrew the federal charges. The Justice of the Peace asked why the matter had been brought forward instead of waiting until the next scheduled court appearance to withdraw the charges. Defence counsel responded:
Ms. DiSimoni: I believe with respect to that, Your Worship, it was our position that there was consideration of his release as these would be withdrawn. I’d ask if …
The Court: As far as I know Mr. Parnell is still in jail, right?
Ms. DiSimoni: He’s still in custody …
The Court: Right.
Ms. DiSimoni: Now that these Federal charges have been withdrawn, it was the intention that we would seek an update from the Provincial office to see if they are still in a position of maintaining being opposed to bail or being opposed to his release, rather, as he is on a release with the remaining older charges before the court, older informations.
40The provincial Crown responded to defence counsel’s query:
I don’t see any correspondence in regard to the Provincial matter, Your Worship. The last note I have is from April the 12 th . I see nothing that there was any discussions regarding – at least nothing in SCOPE – that there was any discussion in regards to the possibilities, so I don’t know who counsel has been in contact with so probably she will have to follow up with that Crown to provide an update, Your Worship. There is nothing on SCOPE, sorry.
41When the Justice of the Peace indicated that Mr. Parnell remained in custody and would next appear on May 18, defence counsel responded:
That’s correct, Your Worship, so most likely I will proceed with another bring forward once I confirm correspondence with the Provincial office.
42Defence counsel had not advised the provincial Crown—whether that was the Crown in court or the bail vettor—that Mr. Parnell’s matters would be brought forward on May 10. Defence counsel did not canvass the provincial Crown’s position on Mr. Parnell’s releasability in advance of the federal charges being withdrawn. [8]
43That same day, following the court appearance where the federal charges had been withdrawn, defence counsel emailed the provincial Crown to provide an update on the case and to seek a revised bail position. Defence counsel sent the first email at 3:17 p.m. Some communication ensued. At 4:27 p.m., the Crown confirmed that Mr. Parnell could be released on the provincial charges. Defence counsel thanked the Crown for their assistance and asked whether there was anything she could do to get Mr. Parnell released without bringing the matter forward.
44Defence counsel did bring the matter forward to May 12, 2023. The provincial Crown made the following comments:
… We were not seeking to revoke Mr. Parnell’s release on our own, being the Province, and so with the PPSC withdrawing their charges the 524 application as we understood it was never brought, so we also are of the understanding that there’s no basis that he be held in custody.
So the Provincial Crown was deferring to the PPSC on the new charges, they were CDSA charges and we are not seeking to revoke his prior release on our own, being the Province, so we never brought a 524 application. PPSC has now withdrawn their charges and it is also our understanding as Ms. DiSimoni indicated hers is as well that Mr. Parnell should no longer be held in custody. [emphasis added]
45Defence counsel agreed with the Crown’s summary and added that “Mr. Parnell was held wrongfully for an additional two days as he should have been released when those matters were withdrawn on the 10 th ”. The provincial Crown summarized its position on Mr. Parnell’s releasability: “There is no 524 application brought. His previous release order should still stand”.
46Mr. Parnell was released from custody that day. He was out of custody during his trial before me.
Statutory provisions
47The relevant statutory provisions read as follows:
495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
495.1 Despite any other provision in this Act, if a peace officer has reasonable grounds to believe that an accused has contravened or is about to contravene a summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused, or has committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order, the peace officer may arrest the accused without a warrant for the purpose of taking them before a judge or justice to be dealt with under section 524.
515 (1) Subject to this section, when an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, make a release order in respect of that offence, without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made.
516 (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.
524 (1) When an accused is taken before a justice in any of the circumstances described in subsection (2), the justice shall
(a) if the accused was released from custody under an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court so that the judge may hear the matter; or
(b) in any other case, hear the matter.
(2) The circumstances referred to in subsection (1) are the following:
(a) the accused has been arrested for the contravention of or having been about to contravene, a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section; or
(b) the accused has been arrested for having committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section.
(3) The judge or justice who hears the matter shall cancel a summons, appearance notice, undertaking or release order in respect of the accused if the judge or justice finds that
(a) the accused has contravened or had been about to contravene the summons, appearance notice, undertaking or release order; or
(b) there are reasonable grounds to believe that the accused has committed an indictable offence while being subject to the summons, appearance notice, undertaking or release order.
(4) If the judge or justice cancels the summons, appearance notice, undertaking or release order, the judge or justice shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why their detention in custody is not justified under subsection 515(10).
(8) The provisions of sections 516 to 519 apply with any modifications that the circumstances require in respect of any proceedings under this section, except that subsection 518(2) does not apply in respect of an accused who is charged with an offence mentioned in section 469.
Legal analysis
48Section 524 of the Criminal Code is commonly invoked in our courts. The provision allows the court to cancel an outstanding release order when the accused has been arrested for having committed new offences. [9] The accused need not be charged with the new offences for s. 524 to apply. Nevertheless, the outstanding release order will typically be cancelled because new charges, and any allegations in support, provide reasonable grounds to believe that the accused has committed an indictable offence while subject to the release order (s. 524(3)(b)). The s. 524 hearing is usually heard at the same time as a bail hearing, but there is no statutory requirement to proceed in this manner. The Crown can move under s. 524(2) in the absence of a bail hearing so long as the accused is validly before the court. How the accused was arrested is immaterial: R. v. Ramage, 2011 ONSC 3092 at paras. 44-45. But the outstanding release order can only be cancelled following a hearing, however brief or informal it might be: see R. v. Moir, 2016 BCSC 2685 at paras. 33-36. If a justice cancels the outstanding release order, then the accused is given an opportunity to show why their detention is not justified.
The issue
49The issue is whether the Crown’s indication in bail court of its intention to bring an application under s. 524 had any bearing on the validity of the outstanding release order. The Crown argues that the pending s. 524 application, as noted on the warrant of remand, encumbered the release order and rendered it inactive until the s. 524 application was heard. The Crown adds that Mr. Parnell could have sought to have the application adjudicated at any time. The defence argues that the s. 524 application was never heard nor granted, and thus the release order remained active.
50I agree with the defence. Mr. Parnell’s release order remained in effect. Mr. Parnell ought to have been released on that order when the federal charges were withdrawn unless the Crown moved to cancel the release order or adjourn the proceedings under s. 516(1). The Crown did neither. The prior indication of a pending s. 524 application carried no legal consequence.
51Section 524 outlines when the Crown can seek to cancel an outstanding release order. Clauses (a) and (b) of s. 524(2) both provide that a justice shall hear the cancellation application when “the prosecutor seeks to have [the release order] cancelled” [emphasis added]. I cannot accept that s. 524(2) is invoked merely because the Crown previously indicated their intention to bring the application. Such a broad interpretation would conflict with the text, context, and purpose of the legislative provisions: see R. v. McColman, 2023 SCC 8 at para. 35.
Textual analysis
52For s. 524 to apply, the Crown must seek to cancel the release order. The provision is written in the present tense. An expression of future intent is not enough. The text cannot support an interpretation whereby a declaration to seek cancellation of the release order at some point in the future puts the Crown in a perpetual state of seeking the cancellation. “Seeking”, in this context, requires the Crown to take concrete steps to initiate and carry out the s. 524 hearing.
Contextual analysis
53Section 524 is found in Part XVI of the Criminal Code. The principle of restraint that is codified in s. 493.1 applies. Section 524 must be interpreted in a way that protects an accused’s vital liberty interests. Delaying an accused’s release based on an opaque reading of s. 524 interferes with the predominant principle that an accused shall be released at the earliest reasonable opportunity.
54The Crown’s position, taken to its logical conclusion, appears to be that Mr. Parnell ought to have stayed in custody for an indeterminate period. His release order was encumbered, and it was incumbent on Mr. Parnell to seek a s. 524 hearing. This position conflicts with the principle of restraint. Furthermore, putting the onus on the accused to run the s. 524 hearing conflicts with the surrounding legislative text. Section 524(2) explicitly puts the onus on the Crown to seek the cancellation. By contrast, s. 524(4) provides an example of where the onus explicitly rests on the accused. [10]
Purposive analysis
55Section 524 primarily serves to protect public safety and the public interest by ensuring that an accused is not released from custody on a release order that has become inadequate following a new arrest. Section 524 also streamlines court orders and thereby reduces confusion. Even when an accused will be released, cancelling previous release orders under s. 524 allows any necessary conditions to be placed in one order going forward.
56I fail to see how keeping an accused in custody merely because the Crown might eventually seek cancellation of a prior release order serves a valid purpose of s. 524.
Other considerations
57My interpretation of s. 524 is also supported by Nakatsuru J.’s decision (while sitting in the Ontario Court of Justice) in R. v. Judd, 2016 ONCJ 781. Horizontal stare decisis applies as Judd is a decision on a question of law from a court of coordinate jurisdiction: R. v. Sullivan, 2022 SCC 19 at para. 65.
58The Crown before me resurrects the arguments from Judd. In that case, the Crown argued that an indication of intent to bring a s. 524 application “encumbered” the release order, which meant that the accused could not be released until the application was decided. I agree with Nakatsuru J.’s conclusion that this argument “relies upon a fictional mechanism that does not exist in law”: Judd at para. 17. An accused can only be deprived of their liberty through the operation of legislative provisions. The Criminal Code does not speak of “encumbered” release orders. Remarks on a warrant of remand are not determinative.
59Nakatsuru J. also examined the interplay between bail cancellation and the arrest power previously located in s. 524(2). This arrest power is now located in s. 495.1. In essence, the provision enables a peace officer to arrest a person without a warrant when the officer has reasonable grounds to believe that the circumstances are met in the current rendition of s. 524(2).
60My interpretation of s. 524 does not turn on the specific arrest power that was used by the police. An arrest under s. 495.1 does not commence the s. 524 hearing any more than an arrest under the general s. 495 authority. Regardless of the arrest power invoked by the police, a prerequisite to a justice hearing the cancellation application is for the Crown to seek to have the release order cancelled pursuant to s. 524(2).
61The provincial Crown had options available to prevent Mr. Parnell’s immediate release when the federal Crown withdrew the federal charges. The Crown could have brought the cancellation application right away under s. 524(2). The withdrawal of the federal charges did not change the fact that Mr. Parnell had been arrested for having committed an indictable offence while subject to a release order, nor did the withdrawal foreclose the availability of reasonable grounds to believe that Mr. Parnell had committed an indictable offence while subject to the release order. If the Crown was not ready to proceed, it could have sought an adjournment under s. 516(1). The Crown could have even sought a public interest warrant under s. 512(1) for Mr. Parnell’s arrest following his release from custody: see R. v. Verdon, 2010 ONSC 4125 at paras. 5, 9, 15. The Crown did none of these things. Mr. Parnell’s release order remained in full force.
Conclusion on the Charter application
62I conclude that the prolonged deprivation of Mr. Parnell’s liberty was unlawful. I have reservations about whether this infringement is properly brought as a Charter claim. Failings by the Crown or court system are usually framed as an abuse of process: see e.g., R. v. Osborne, 2024 ONCA 467 (the Crown made improper suggestions to the jury); R. v. Simonelli, 2021 ONSC 354 (the court system failed to hold a bail hearing within a reasonable time); R. v. Thim, 2015 BCSC 1677 (the court system failed to provide interpreters). I would not expect to see a Charter claim under s. 9 if a justice detained an accused in custody and a reviewing court later found the detention unlawful. Same thing if a court sentenced an accused to an illegal custodial sentence. In both instances the accused would have been unlawfully imprisoned but not on account of state conduct.
63Nevertheless, I am prepared to rule in line with how the parties litigated this case. I conclude that Mr. Parnell’s rights under s. 9 of the Charter were violated when he spent two unlawful days in pre-trial custody. The subsequent remedy analysis will take me through the abuse of process framework in any event.
Remedy for the Charter breach
64The defence asks me to remedy the Charter violation by staying the proceedings. I decline to do so.
Stay of proceedings
65Although the Charter violation creates no threat to trial fairness, the defence argues that a stay of proceedings is appropriate because the conduct by the state and court system undermines the integrity of the justice system. This path to a stay of proceedings is described as the “residual” category: R. v. Babos, 2014 SCC 16 at para. 31. Three requirements must be met to grant a stay (Babos at paras. 32, 35, 39-41):
There must be prejudice to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”. The question is whether the impugned conduct is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system.
There must be no alternative remedy capable of adequately dissociating the justice system from the impugned conduct going forward.
The interests in favour of a stay, such as denouncing misconduct and preserving the integrity of the justice system, must outweigh “the interest that society has in having a final decision on the merits”. Balancing is always required when analyzing residual category cases: Babos at para. 41. The court must consider such factors 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 nature of the charges, and the interests of society in having the charges disposed of on the merits.
66The Ontario Court of Appeal in R. v. Zarinchang, 2010 ONCA 286 at para. 60 explained the importance of the balancing exercise when dealing with the residual category:
In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion.
67It took mistakes by multiple actors across the justice system for Mr. Parnell to unlawfully remain in custody. I cannot fault the provincial Crown for not knowing how to respond when the matter was dropped onto their docket on May 10, 2023. The matter was brought forward to that date without their knowledge. But defence counsel alerted the Crown in court to the possibility that Mr. Parnell was releasable following the withdrawal of the federal charges. This alert should have prompted the Crown to inquire into the legality of Mr. Parnell’s ongoing stay in custody. The Crown could have asked to hold the matter down and downloaded these inquiries to a colleague who was working out of court, such as the bail vettor. Reviewing the notes in the Crown’s internal SCOPE database cannot be the complete solution when confronted with this type of issue.
68The court must assume responsibility as well. The courts play a central role in guarding against unlawful infringements on individual liberty. The Justice of the Peace specifically asked why the matter was brought forward to withdraw the federal charges. Defence counsel’s response ought to have prompted the court to consider the lawfulness of Mr. Parnell’s ongoing imprisonment. This did not occur. At a minimum, the court could have adjourned the matter to the following day but held the warrant of remand until the end of the day in case the parties came to agree that Mr. Parnell ought to be released. The warrant could have been released at the end of the day if no new details were put before the court. This approach would have balanced the need to safeguard individual liberty with the time and resource pressures on the court. I am aware of the crushing lists that encumber our bail and case management courts. Every matter that is called cannot be analyzed from every conceivable angle. But this matter called for a modicum of extra attention.
69I am also troubled by how the court and the Crown seemed content to let Mr. Parnell stay in custody while requiring defence counsel to determine the lawfulness of that imprisonment and then take steps to have Mr. Parnell released. But for the persistent efforts of defence counsel, Mr. Parnell’s stay in custody would have extended well past the unwarranted two days.
70Nevertheless, I conclude that a stay of proceedings would be inappropriate in this case. The impugned conduct and its associated consequences on Mr. Parnell are not so offensive to societal notions of decency that continuing this trial would harm the integrity of the justice system. The interests in favour of a stay are not outweighed by the societal interest in having a decision on the merits.
Continuing the proceedings would not harm the integrity of the justice system
71The integrity of the justice system must consider the role of defence counsel within it. The justice system is a human system. It depends on all actors in that system working together to advance the interests of the various stakeholders. To obtain the windfall of a stay, it is not enough to demonstrate how the Crown and court system fell short. In this case, defence counsel must share responsibility for how things unfolded. This contextual analysis is necessary to understanding my conclusion that continuing the proceedings would not harm the integrity of the justice system.
72Mr. Parnell would have been released upon withdrawal of the federal charges if defence counsel had simply communicated with the provincial Crown in advance of court. There is no good explanation for why this communication did not occur. Defence counsel knew that she was bringing the matter forward; it was not brought forward on the same day that the matter was heard. I take it that defence counsel also knew that the federal charges would be withdrawn. Based on her comments to the Justice of the Peace, it seems that the matter was specifically brought forward so that Mr. Parnell could be released from custody at an earlier date. The record shows that it only took a few emails spread over the span of one hour and ten minutes for the provincial Crown to confirm that Mr. Parnell was releasable once the federal charges were withdrawn. If defence counsel had initiated this conversation before the court appearance on May 10, 2023, then this entire problem would have been avoided.
73The defence argued that Mr. Parnell’s release ought to have been a “routine administrative task”. This might be true. But it does not displace my opinion that everyone—including defence counsel—plays a role in accomplishing the routine. During the court appearance, defence counsel did not insist that Mr. Parnell be released but asked whether the provincial Crown was able to re-consider its position on his releasability. These comments suggest that the obligation to release Mr. Parnell was not as obvious as is now being claimed. Furthermore, defence counsel had not obtained a judge’s order to ensure that Mr. Parnell would be present at the court appearance to facilitate his release and allow the court to remind him of his bail conditions. And defence counsel never asked to hold the matter down for the provincial Crown to determine whether Mr. Parnell could be released. It is conceivable that a court was still running at 4:27 p.m. when the provincial Crown confirmed via email that Mr. Parnell was releasable.
74The pressures on counsel are not lost on me. It is easy for me to detail in a judgment the steps that counsel could have taken. It is harder to take these steps in a busy court that pushes counsel along. But the context that I have outlined is relevant to my conclusion that continuing this trial would not seriously harm the integrity of the justice system.
An alternative remedy adequately dissociates the justice system
75I find that an alternative remedy can adequately dissociate the justice system from the impugned conduct going forward. For example, sentence reduction has repeatedly been recognized as a just and appropriate s. 24(1) remedy: see R. v. Nasogaluak, 2010 SCC 6 at para. 60. The purpose of a sentence reduction is not to undo the impugned conduct. The remedy is focused on restoring public confidence in the justice system, but it is acceptable if it provides an incidental benefit to the accused: R. v. Brown, 2024 ONCA 453 at para. 66.
76I find that a sentence reduction would demonstrate this court’s concern with the process that led to Mr. Parnell unlawfully spending two days in pre-trial custody. The sentence reduction would send a message to the public and the justice system of the need to prevent this situation from reoccurring. The sentence would not be reduced to merely offset the two days already spent in custody.
Balancing favours a decision on the merits
77A stay of proceedings is the most drastic remedy that a criminal court can order. It is only granted in the clearest of cases. A stay in this case would be disproportionate when balanced against all the circumstances. I have outlined some of those circumstances above. Other relevant factors include:
- The seriousness of the impugned conduct is attenuated by the involvement of two distinct prosecuting agencies. In a case with only one prosecuting agency, I would expect them to know the status of an accused’s releasability after withdrawing their own charges. In this case, the provincial Crown was caught unaware when the matter was brought forward into court without notice and the federal charges were withdrawn.
- There is no suggestion of a systemic or ongoing problem. My conclusion on remedy might be different if a similar scenario presents itself in the future: see Brown at para. 80.
- Society has a significant interest in seeing the charges dealt with on their merits. Dangerous driving and flight from police are both serious charges. Mr. Parnell was alleged to have driven a motor vehicle in a manner that put public safety at risk. He was alleged to have taken flight from a traffic stop, rapidly accelerated to almost double the speed limit, and sped through a red light without any regard to the other vehicles and pedestrians sharing the roadway. It is a miracle that no one was seriously injured or killed.
Alternative remedy
78I will hear submissions on how to fashion an alternative remedy to staying the proceedings.
Disposition
79I find a breach of Mr. Parnell’s rights under s. 9 of the Charter. I find Mr. Parnell guilty of both counts on the information. I decline to stay the proceedings.
Released: July 2, 2024 Signed: Justice Davin M.K. Garg
[1] King is a one-way street travelling westbound. [2] What follows is derived from my notes and listening to the courtroom audio. It may differ from an eventual transcript. [3] It is more convenient to start with the issue of reasonable excuse even though that analysis ordinarily waits until the Crown has proven its case (see R. v. Zora, 2020 SCC 14 at para. 37). The defence did not truly contest whether the Crown had proven its case on the flight charge. [4] There is another line of authority holding that the accused must prove the reasonable excuse on a balance of probabilities: R. v. Fuglerud, 2012 ONSC 6535 at para. 13; R. v. Goleski, 2014 BCCA 80 at paras. 80-81, aff’d 2015 SCC 6; R. v. Charles, 2021 ONCJ 4673 at para. 27. [5] I accept Cst. Rieder’s evidence on these points. [6] Neither counsel argued that Mr. Parnell’s race, ethnicity, or cultural background ought to play any role in my analysis. Mr. Parnell appears to be a white male. [7] R. v. W.(D.), [1991] 1 SCR 742. [8] During submissions before me, the defence agreed that I could rely on the assertions in the Crown’s Response at paragraphs 20-21 as evidence on this application. [9] A “release order” covers what is sometimes referred to as a “bail order” or what was previously known as a “recognizance” under former legislation. Section 524 can also be used to cancel other forms of release. [10] Under s. 524(4), if a release order is cancelled, then the accused will be detained unless they show why their detention is not justified.