COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Donnelly, 2016 ONCA 988

DATE: 20161229

DOCKET: C59680

Watt, Epstein and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Brandon Donnelly[^1]

Respondent

John McInnes and Katherine Beaudoin, for the appellant

David M. Humphrey and Jill D. Makepeace, for the respondent

Frank Addario and Megan Savard, for the intervener Criminal Lawyers’ Association

Christine Mainville and Benjamin Snow, for the intervener Canadian Civil Liberties Association

Heard: March 22-23, 2016

On an appeal from the sentence imposed by Justice Ian V. B. Nordheimer of the Superior Court of Justice on November 6, 2014, with reasons reported at 2014 ONSC 6472, 322 C.R.R. (2d) 56.

Watt J.A.:

[1] Brandon Donnelly edited films. He worked at Azov Films, a company run by Brian Way. Azov Films distributed films worldwide.

[2] Some of the films Donnelly edited showed naked pre-teen and teenaged boys engaged in sexualized “play” activities.

[3] Donnelly and Brian Way got charged with making child pornography for the purpose of publication, amongst other child pornography offences.

[4] Making child pornography for the purpose of publication is an offence that, on conviction, is punishable by a minimum sentence of imprisonment for a term of one year.

[5] Donnelly pleaded guilty to making child pornography for the purpose of publication. But he did not go to jail. Not for one year. Not at all. The trial judge imposed a sentence of imprisonment on Donnelly, but ordered that he serve the sentence in the community. Such a sentence was statute-barred by s. 742.1(b) of the Criminal Code, given the mandatory minimum sentence, but, in the trial judge’s view, an appropriate remedy in light of Charter breaches.

[6] The Crown appeals.

[7] These reasons explain why I have concluded that the trial judge made some mistakes and what I would do now to correct them.

The Background Facts

[8] A brief overview of Donnelly’s involvement in the offence charged and what happened after his arrest until he was released from custody days later will provide the background necessary for an understanding of the arguments advanced on appeal and how I would respond to them.

Film Production

[9] Donnelly received raw film footage from several countries. Some of the raw footage from the Ukraine and Romania showed naked pre-teen and teenaged boys. Although none of the films depicted sexual acts, they included scenes that exposed the penis and anal region of boys. It was admitted that the films were made for a sexual purpose – made for and marketed to adult men who are sexually attracted to boys. The films sold on Azov Films’ website featured 44 different boys.

[10] Donnelly’s task was to make a cohesive film from the raw footage. The finished product did not need a plot. Or a script. Or a story. Donnelly added title pages. Sometimes music. Copyright notices. The company logo. He produced trailers. He knew that the films he edited were posted for sale on the internet.

[11] Donnelly made 74 films that were child pornography.

The Arrests and Searches

[12] On May 1, 2011, police executed search warrants at Azov’s offices, Brian Way’s home, some post office boxes and Way’s vehicle. Investigators thought that Way may have been using encryption technology and may have had remote access to material the police were authorized to seize. The search warrants were executed by a group of about 30 officers over the course of four days. By 9:00 p.m. on May 1, 2011, police had succeeded in disconnecting the company’s server from the internet.

[13] Donnelly and Brian Way were arrested separately on May 1, 2011.

[14] Donnelly was arrested at his parents’ home where he lived. His father told arresting officers that Brandon required medication daily – Prozac – for obsessive compulsive disorder (OCD) and anxiety. Brandon took four pills before leaving home with the police. His father gave the police Brandon’s current prescription in a smaller expired container to take with them.

[15] Police took Donnelly to 22 Division for booking. The booking officer was told about Brandon’s medication needs and his prescription was put in a bag before he was lodged in a holding cell at the Division.

The Transfer to 23 Division

[16] On May 2, 2011, Donnelly and several other prisoners were taken to 23 Division to be fingerprinted and photographed. The men were handcuffed in the prisoner transport van.

[17] Donnelly claimed that a uniformed officer at 23 Division described him as a “sick fuck”, a “pedophile” and a “faggot”. The officer taking his fingerprints, according to Donnelly, used unnecessary force in doing so. What occurred at 23 Division caused Donnelly significant stress and made him fearful about what would happen to him in custody.

[18] The police denied any misconduct at 23 Division.

The Court Transport

[19] Donnelly and Way were segregated from the other prisoners in the prisoner van that took them to the courthouse from 23 Division later on May 2, 2011. Donnelly could hear prisoners in another compartment of the van talking about the charges he and Way were facing. When they arrived at the courthouse, Donnelly claimed that a guard there asked him whether he had been “hurt”. Another guard offered the rejoinder “no, not yet”. While being moved to the holding cells at the courthouse, a small and aggressive guard tripped Donnelly and said “watch where you’re going.”

[20] Donnelly spoke to his counsel in the holding cells. His counsel noted that Donnelly appeared depressed.

The First Appearance

[21] Donnelly appeared with his counsel in bail court on the afternoon of May 2, 2011. Donnelly was depressed and felt fearful in the company of other prisoners who knew the charges he faced. He had not been provided with any of his medication since his arrest.

[22] A police officer, who was unaware of the actual state of the investigation, in particular, of what progress had been made in execution of the various search warrants, spoke to the Crown assigned to the bail court.

[23] The officer advised the Crown to ask for the bail hearing to be adjourned for three days. Police needed to ensure that evidence was not destroyed by individuals who could gain remote access to the company’s computer system. The reality was that by 9:00 p.m. the previous night the server had been disconnected from the internet.

[24] Defence counsel had no disclosure and no real ability to challenge any allegations the Crown might make. The Crown had indicated that it would be seeking a detention order on the secondary and tertiary grounds. It was late in the afternoon and unlikely that a bail hearing could be accommodated in any event. Defence counsel, a very experienced criminal lawyer, realized that the Crown’s request for an adjournment would inevitably succeed. In the circumstances, he consented to the adjournment request, but persuaded the presiding justice to endorse the warrant of committal that Donnelly be housed in protective custody and receive medical attention.

[25] The justice adjourned the bail hearing to May 5, 2011.

Toronto West Detention Centre

[26] Donnelly was transported from the courthouse to Toronto West Detention Centre (TWDC) in a prisoner van. He was seated in a separate compartment from other prisoners, but could hear them talking about the charges he faced.

[27] During processing at TWDC, Donnelly claimed that an aggressive guard called Donnelly “sick”. Another “announced” his charges to others in the immediate area and told Donnelly that he (Donnelly) would “enjoy” jail. Donnelly was then escorted to the medical office, but was not given his medication.

[28] From the medical office, Donnelly was taken to his cell. He said that en route, a guard struck him hard on the back of his head. Another told him that he would be hurt, beaten up while he was in jail. There was no water in Donnelly’s cell. Donnelly said that the mattress, bedding and hygiene products were taken from his cell, as were his clothes, leaving him with only his boxer shorts.

[29] The next day, May 3, 2011, Donnelly’s parents visited him at TWDC. They became concerned about his treatment and his obvious fear. They spoke with a supervisor about Donnelly’s report that he had not been provided with his medication. At his parent’s request, Donnelly’s therapist called the jail to emphasize his need for Prozac and repeat Donnelly’s parents’ concern that he might be suicidal. Donnelly was placed on suicide watch and his jail clothing replaced by a gown. His cell had no running water and he was beginning to feel the effects of dehydration. Evidence from the correctional authorities suggested that Donnelly was provided with his medication sometime on May 3, 2011, however he testified that he did not receive it until the next day.

[30] The following day, Donnelly was permitted to have his first shower since his arrest three days earlier. He was taken off suicide watch and returned to his cell with functioning water. His lawyer and therapist visited. He was depressed and, according to the therapist, reported suicidal ideation.

Release on Bail

[31] On May 5, 2011, Donnelly was transported to the courthouse in a prisoner van. He was handcuffed to another prisoner. The Crown consented to his release. Later that day he was released from custody.

The Stay Application

[32] Donnelly sought a stay of proceedings when he appeared for trial in the Superior Court of Justice. He alleged that his rights under ss. 7, 8, 9 and 10 of the Charter had been infringed.

[33] In connection with s. 9 of the Charter, Donnelly contended, and the trial judge found, that he had lost three days of liberty because the Crown had obtained an adjournment of his bail hearing on the basis of flawed information provided by the police. Although the Crown was unaware of the inaccuracy of the information, the result was an arbitrary detention that was exacerbated by Donnelly’s OCD and the failure of authorities to provide him with his medication in a timely way.

[34] The s. 7 complaints and findings focused on the treatment of Donnelly while he was in the custody of police and correctional officers. Verbal and physical abuse. Assaults. Delayed provision of medication. And general mistreatment of a prisoner who suffered significantly more because of his OCD.

[35] The trial judge declined to enter a stay of proceedings despite his findings that state actors had infringed Donnelly’s rights under ss. 9 and 7 of the Charter: see R. v. Donnelly, 2013 ONSC 7798.

The Plea of Guilty

[36] About six months after dismissal of his application to stay proceedings for constitutional infringement, Donnelly pleaded guilty to a single count of making child pornography for the purpose of publication. The trial judge entered a finding of guilt and recorded a conviction.

The Sentencing Proceedings

[37] The trial Crown sought a sentence of seven years in the penitentiary. Defence counsel sought a conditional sentence of imprisonment of not more than two years less one day.

[38] The trial judge, mindful of the minimum sentence of imprisonment for a term of one year, considered that a fit sentence for Donnelly would be a term of imprisonment for 21 months without any consideration of the impact of the Charter infringements on the length of the sentence or on the manner in which the sentence should be served. Without account being taken of the Charter infringements, the sentencing judge concluded that a reduction of the sentence to the minimum jail term of one year would not provide an effective remedy, as it would ignore Donnelly’s mental health concerns and the risk of his committing suicide while in custody.

[39] The trial judge concluded that this was one of the exceptional cases that required the mandatory minimum term of imprisonment to be overridden in order to provide Donnelly with an effective remedy under s. 24(1) for breaches of his Charter rights. A conditional sentence of 21 months was imposed.

The Issues on Appeal

[40] The Crown alleges that three errors made by the trial judge led him to impose a sentence that is at once unfit and outside the dispositions available for the offence of which Donnelly was convicted. Two errors relate to the findings of constitutional infringement that provided the gateway to the remedial authority of s. 24(1) of the Charter. The third has to do with the use of s. 24(1) as an authority to impose a sentence outside the range of punishment available for the offence of which Donnelly was convicted.

[41] For discussion purposes, I would paraphrase the three issues as alleged errors on the part of the trial judge as follows:

i. in finding Donnelly was arbitrarily detained in breach of s. 9 of the Charter when his bail hearing was adjourned for three days on the basis of faulty information provided by the prosecutor;

ii. in finding the security of Donnelly’s person was infringed by the manner in which he was treated by those in charge of his custody from his arrest until his release on bail; and

iii. in invoking s. 24(1) of the Charter to impose a sentence outside the available range of punishment as an appropriate and just remedy for the infringements of Donnelly’s Charter rights.

The Applicable Standards of Review

[42] A deferential standard of review applies to a trial judge’s imposition of sentence. An appellate court may only intervene where the sentencing judge has erred in principle, failed to consider a relevant factor, erred in his or her consideration of an aggravating or mitigating factor, and such error had an impact on the sentence imposed, or where an unfit sentence has been imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 43-44, 52; R. v. Lloyd 2016 SCC 13, [2016] 1 S.C.R. 130 at para. 52; R. v. Grant, 2016 ONCA 639, at para. 162.

[43] In relation to Charter breaches, appellate intervention is only warranted where the trial judge has committed palpable and overriding error about the facts that underlie the breach, or where the trial judge’s identification and application of the correct legal principles raises a question of law, assessed on a correctness standard: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 129; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

[44] And connection with to decisions pursuant to s. 24(1) of the Charter, a deferential standard of review has arisen from recognition of it as a broad discretionary remedy. Deference is owed unless the trial judge has misdirected himself or herself in law, committed a reviewable error of fact or rendered a decision so clearly wrong as to amount to an injustice: R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at paras. 17-19 & 30; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 48; R. v. Badgerow, 2014 ONCA 272, [2014] 119 O.R. (3d) 399, at para. 187, leave to appeal refused, [2014] S.C.C.A. No. 254.

Issue #1: The Infringement of s. 9

[45] The initial Charter infringement found by the trial judge arises out of Donnelly’s detention and custody because his bail hearing did not proceed until May 5, 2011, three days after his first appearance on May 2, 2011.

[46] A few brief references to the underlying circumstances will assist in understanding the trial judge’s finding and the nature of the alleged flaw in his reasoning.

The Additional Background

[47] The principal investigative technique used to build the case against Donnelly and Brian Way was the execution of search warrants.

[48] Seven search warrants were issued in relation to this investigation and authorized searches at several places associated with Way and Azov Films. On May 1, 2011, the same day Donnelly and Way were arrested, a search warrant was executed at the Azov Films business premises. The warrants expired on May 4, 2011. None entitled the police to search Donnelly’s home or any other place with which he was associated.

[49] The principal evidence sought by the police under the search warrants was housed in the computer system of Azov Films, the business at which Donnelly worked. It is notorious that the contents of such systems can be accessed, manipulated and eradicated remotely. No evidence. No case.

[50] It is commonplace that in the vast majority of criminal prosecutions in this province, disclosure to the defence of the case for the Crown does not occur at first appearance. It is all the more so where the principal investigative procedure to gather evidence – execution of search warrants – has not been completed.

[51] On first appearance on May 2, 2011, the prosecutor sought an adjournment of the bail hearing for three days. A police officer, who was not one of the principal investigators, had asked her to do so. The basis of the officer’s request was so that police could ensure that evidence was not destroyed (by remote access) until the warrants could be fully executed. The prosecutor also indicated that she wanted to seek a detention order on the secondary and tertiary grounds.

[52] As it happened, by 9:00 p.m. on May 1, 2011, police had control of the computer system of Azov Films. They had disconnected the server from the internet. Remote access, hence manipulation and destruction of the contents of the system, was no longer possible.

[53] It is not suggested that either the prosecutor or the officer who provided information to her about the need to guard against destruction of evidence intended to mislead anyone, including defence counsel and the presiding justice.

[54] Donnelly’s case was not reached until late in the afternoon of May 2, 2011. Defence counsel recognized that insufficient time remained in the court day to complete a contested release hearing. The prosecutor’s request for an adjournment for the stated purposes – to prevent destruction of the evidence and to show cause why detention was justified – would likely succeed, in any event. Defence counsel consented to the adjournment until May 5, 2011.

The Decision of the Trial Judge

[55] The trial judge acknowledged that on the surface, the concern expressed by the prosecutor, on the basis of the information provided by the police, was legitimate. But this facial legitimacy was undermined by two factors:

i. the police already had control of the computer systems and had disconnected it from the internet, thus making manipulation and destruction impossible; and

ii. the police had made no effort at all to determine whether Donnelly had any computers in his home and thus, whether he had remote access to the company’s computer system.

[56] The trial judge was not persuaded that defence counsel’s consent to the adjournment was fatal to the s. 9 Charter claim. Defence counsel was entitled to take at face value the information relayed by the prosecutor to justify the adjournment request. These requests are based on a high level of trust and good faith among counsel and must be handled expeditiously. Had the true state of affairs been disclosed, a “consent release should have been forthcoming”.

[57] The trial judge expressed his conclusion in these terms:

When it comes to the question of bail for an accused person, police and prosecutors must be especially vigilant to ensure that only those persons whose continued detention is essential to the proper administration of justice are detained. Great care must be taken to ensure that any information provided to the court relating to the accused person, and any reasons underlying a request for that continued detention, even for a short period, are as complete and accurate as possible. Neither the immediacy of the matter coming forward, or the complexity of the investigation, or the volume of material, or the number of persons arrested, or any other like matters, can excuse non-compliance with the overarching need to be full, fair and frank with defence counsel and the court.

In this case, the prosecutor, through no fault of her own, put forward reasons for the continued detention of the applicant for three more days that were fundamentally flawed. As a consequence, the applicant lost three days of liberty – a deprivation of liberty that was particularly problematic for the applicant given his OCD. In my view, the deprivation constituted a breach of the applicant’s right under s. 9 of the Charter not to be arbitrarily detained or imprisoned.

The Arguments on Appeal

[58] The Crown says that the adjournment granted by the justice was a facially valid order under s. 516(1) of the Criminal Code. It was not vitiated by fraud, duress or any other flawing circumstance. As a lawful order, adjourning the bail hearing for a time permitted by the Criminal Code, even without Donnelly’s consent, the ensuing detention cannot be arbitrary.

[59] The Crown contends that the finding of infringement was grounded on two findings:

i. that the faulty information caused Donnelly’s detention; and

ii. that the police had a constitutional duty to provide perfectly accurate and up-to-date information to the prosecutor and thus, defence counsel.

But, the Crown continues, both findings are flawed.

[60] According to the Crown, the prosecutor would have sought an adjournment even if she had received the correct information about Donnelly’s inability to manipulate or destroy evidence. The prosecutor’s position on release was driven by the size of the seizure – the largest in Canada – and the seriousness of the offence. Whether destruction or manipulation was possible, the search warrants had not expired on the date of the first appearance. They remained valid and executable until May 4, 2011. Further, the prosecutor would inevitably want to make further inquiries about Donnelly and the alleged offence, particularly his role in it, before embarking on a show cause hearing or consenting to his release.

[61] The Crown argues that the consent of defence counsel to the adjournment puts paid to the claim of arbitrary detention. The consent was a considered decision made by experienced counsel aware of the realities of the situation. The largest seizure of its kind in Canada. An ongoing investigation. Continuing execution of search warrants. The difficulty of getting Donnelly released late in the day.

[62] Further, the Crown submits, the suggestion of perfect fidelity between the current state of the investigation and the information provided to the prosecutor sets an unworkable standard, one impossible of achievement in an unfolding investigation. Failure to achieve it does not vitiate the consent of defence counsel or warrant a finding that s. 9 of the Charter has been breached.

[63] Donnelly supports the conclusion of the trial judge. He says that an appropriate analogy in this case is the obligation settled upon the author of an Information to Obtain (ITO) and the effect of false or misleading information on the validity of the search authority. A facially valid order can be set aside, a search or seizure found unreasonable, because of the failure to make full, fair and frank disclosure of all material facts or because of the inclusion of false or misleading information. The standard should be no less stringent where the liberty of one accused of crime is at stake.

[64] Donnelly adds that reliance upon demonstrably false information to justify or extend detention is unconstitutional and results in an infringement of s. 9 of the Charter. Since the tech officers had “pulled the plug” on the internet at 9:00 p.m. the previous day, any purported risk of destruction of evidence was eliminated less than eight hours after Donnelly’s arrest, well before the adjournment request.

[65] Both parties submit that, while it was not the approach taken before the trial judge, the arbitrary detention issue arising from the adjournment of the bail hearing might also be framed as a s. 11(e) Charter breach. Accordingly, our review of the bail adjournment issues will also be assessed through the lens of s. 11(e) which guarantees a right “not to be denied reasonable bail without just cause”.

The Governing Principles

[66] Three brief points should be made about the s. 9 Charter guarantee against arbitrary detention or imprisonment.

[67] First, s. 9 is a manifestation of the general principle, articulated in s. 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice. This is one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88.

[68] Similarly, the basic entitlement in s. 11(e) of the Charter to be granted reasonable bail, unless there is just cause to do otherwise, embodies the principle that liberty and the presumption of innocence are at the heart of a free and democratic society and that interim detention must be truly justified having regard to all the relevant circumstances: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 27-30, 70; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at paras. 13, 22, 47-50; R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at paras. 37-39.

[69] Second, a lawful detention is not arbitrary within s. 9 of the Charter unless the law authorizing the detention is itself arbitrary. On the other hand, a detention notauthorized by lawisarbitrary and violates s. 9 of the Charter: Grant, at para. 54; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20.

[70] Third, a discretionary statutory authority may be arbitrary where the statute provides no criteria, express or implied, to govern its exercise. A discretion to detain persons will be arbitrary if there are no criteria, express or implied, which govern its exercise: R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621, at p. 633; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at pp. 669-700. A detention governed by unstructured discretion is arbitrary: Pearson, at p. 700.

[71] The analogy advanced by Donnelly about the effect of false or misleading information in an ITO, or I would add, an affidavit filed in support of an application for a Part VI authorization, warrants brief reference to the principles that govern the disclosure obligations of the authors of those supportive documents and the effect of false or misleading information on the validity of the search authority.

[72] Applications for search warrants and authorizations to intercept private communications under Part VI are ex parte proceedings. As a result, the author of the supportive document must make full, fair and frank disclosure of all material facts so that the authorizing judge or justice can assess whether the contents satisfy the conditions precedent to issuance of the search authority: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 998, at para. 46.

[73] Without more, inclusion of false or misleading information in the ITO or supportive affidavit does not vitiate the search authority. The reviewing judge excludes the erroneous information and then determines whether there remains reliable information that might reasonably be believed on the basis of which the search authority could have issued: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16; Araujo, at para. 54.

The Principles Applied

[74] As I will explain, in my respectful view, the trial judge erred in concluding that the three day consent adjournment of the bail hearing amounted to an arbitrary detention in breach of s. 9 of the Charter.

[75] In my approach to this issue, I have in mind that to decide whether a Charter claimant has established entitlement to a remedy requires proof on a balance of probabilities of the foundational facts that ground the claim and, further, that those facts amount to an infringement of the claimant’s right or freedom guaranteed under the Charter. An appellate court may intervene only where the trial judge has committed palpable and overriding error in relation to the facts that underlie the breach, or where the trial judge’s identification and application of the correct legal principles raises a question of law, assessed on a correctness standard.

[76] Section 516(1) of the Criminal Code permits a justice, before or at any time during the course of a judicial interim release hearing, on application by the prosecutor or accused, to adjourn the proceedings and remand the accused in custody in prison. Where the adjournment exceeds three clear days, the consent of the accused is required. It necessarily follows that an adjournment that is not more than three clear days – as was the adjournment in this case – does not require any consent on the part of the accused.

[77] Ex facie the order of the justice adjourning the judicial interim release hearing from May 2, 2011 to May 5, 2011 – a period that did not exceed three clear days – was a valid order under s. 516(1) of the Criminal Code. Donnelly’s detention pursuant to that order was a detention authorized by law, thus not arbitrary under s. 9 of the Charter.

[78] Nor does the fact that the adjournment was granted in part on the basis of inaccurate information transform what was not an arbitrary detention into one that was arbitrary. I have reached this conclusion for several reasons.

[79] First, the conclusion of the trial judge begins from a faulty premise – the obligation to provide error-free, up-to-moment disclosure of the progress of the investigation to the prosecutor. This posits a disclosure standard of perfection that would outstrip the legitimate requirements of R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

[80] Second, to the extent that the trial judge found that the inaccurate information invalidated the consent of defence counsel to the adjournment, it was unmindful of the irrelevance of consent to the validity of the adjournment. The adjournment request did not seek an adjournment for more than three clear days. The adjournment sought and granted was for two clear days: Interpretation Act, R.S.C. 1985, c. I-21, s. 27(1).[^2] No consent was required. A Crown’s request for adjournment pursuant to s. 516 is not an absolute right, but rather must be made on a good faith basis and informed by the requirement for a just cause analysis pursuant to s. 515, such that an accused otherwise entitled to release will not be arbitrarily detained. Here, for reasons that will be set out more fully below, even absent a concern for destruction of evidence, the adjournment request cannot be said to be without foundation.

[81] Third, to the extent that the finding of infringement is rooted in an analogy to the effect of inclusion of erroneous information in an ITO or affidavit submitted in support of a search warrant or Part VI authorization, the analogy is inapt.

[82] The obligation to make full, fair and frank disclosure of all material facts in an ITO or Part VI affidavit is a function of the ex parte nature of the procedure involved in obtaining the search authority. Judicial interim release hearings are not ex parte proceedings. Further, the inclusion of erroneous information in the ITO or Part VI affidavit does not, without more, vitiate the enabling order or make the search conducted under its auspices constitutionally flawed.

[83] Moreover, the trial judge’s conclusion that the adjournment violated Donnelly’s Charter rights is premised on finding that, absent the erroneous concern about the destruction of evidence, the Crown would not have sought the adjournment. However, the Crown did not seek the adjournment solely because of the risk of destruction of evidence. The primary reason articulated in making the request was “so that the police can continue their investigation”. That encompassed not only the ongoing execution of search warrants, but also the size of the seizures in relation to serious child pornography charges, further delineation of Donnelly’s role and his suitability for release.

[84] There remained legitimate reasons to pre-empt a judicial interim release hearing for a short period of time. Indeed, during the initial appearance on May 2, the Crown advised the court Donnelly’s detention was being sought on the secondary and tertiary grounds. The Crown dealing with the matter on May 5 initially advised defence counsel that they would not consent to release. It was only after speaking to an investigating officer, receiving information about Donnelly’s role as an editor, receiving a report from his therapist about his OCD and how the therapist felt he was faring in custody, that the Crown consented to release later that day.

[85] In the result, I am satisfied that the trial judge erred in holding that the adjournment of the judicial interim release hearing from May 2, 2011 until May 5, 2011 infringed s. 9 of the Charter. Nor, could an infringement of s. 11(e) of the Charter be established on the record in this case. It follows from the lack of infringement that s. 24(1) could not be engaged on this basis.

Issue #2: The Section 7 Infringement

[86] The trial judge also found an infringement of the security of the person component of s. 7 of the Charter. In general terms, the infringement related to the manner in which Donnelly was treated by state agents while in custody after arrest but prior to release. The conduct included what occurred at the police station, during transport to court, at court and at TWDC.

[87] Little need be added to the circumstances already recited but some detail is necessary because the Crown alleges palpable and overriding errors in some of the factual findings made by the trial judge.

The Additional Background

[88] Donnelly claimed that a police officer used excessive force when he was fingerprinted and photographed at 23 Division. The fingerprint officer denied the allegations. The trial judge found that no such conduct took place.

[89] The jail records for the period of May 2 to May 5, 2011 disclosed that Donnelly received his medication – Prozac – on May 3, 2011. During his incarceration at TWDC, Donnelly received all his meals including drinks. He suffered no visible injuries, including bruises, while in custody.

[90] On prior occasions, Donnelly had occasionally missed a dose of his medication for OCD. Donnelly testified that memory problems were not associated with his OCD.

The Reasons of the Trial Judge

[91] Donnelly alleged a breach of his s. 7 right to security of the person on the basis of several events that occurred while he was in the custody of various state actors. The trial judge summarized those events as including:

Many of the applicant’s complaints regarding the manner in which he was treated between May 1 and May 5 involve the time that he was held in custody. The applicant recounts a number of events that occurred during that time. These events include the following:

(i) He was not given his medication either on May 2 or May 3;

(ii) He was verbally abused on a number of different occasions by various police officers, court officers and prison guards including implied threats and derogatory terms;

(iii) He was struck in the back of the head on one occasion by a prison guard;

(iv) He was intentionally tripped on one occasion by a court officer while in the cell area at the Finch Avenue Courthouse;

(v) The nature of the charges that he faced was announced by prison guards to other inmates in the detention facility;

(vi) He was kept in a cell overnight at the detention facility dressed only in his boxer shorts with nothing to keep warm and no mattress to sleep on;

(vii) He was provided with minimal drink and food;

(viii) He was never provided with hygiene products and only at the very end of his stay was he permitted to have a shower.

[92] The trial judge considered the standard to be met by Donnelly to establish a breach of s. 7 required him (Donnelly) to demonstrate that the conduct of the state actors caused him significant psychological injury. The judge then examined the several claims advanced by Donnelly, finding some established and others not proven.

[93] The trial judge was satisfied that both the police and correctional officers failed to provide Donnelly with his medication – Prozac – for 48 hours, despite having the medication in their possession. The judge acknowledged that Donnelly did not request his medication (although others did on his behalf); that it was corrections’ policy not to administer medication brought into the jail by inmates; and that Donnelly suffered no physical harm as a result of the delay in receiving his medication. The trial judge concluded that the delay in providing the medication exacerbated Donnelly’s inherent anxiety and caused him reasonably to believe that the authorities were intentionally withholding his medication.

[94] The trial judge rejected Donnelly’s complaint that he had been subject to abuse, in particular, held up to ridicule by officers at 23 Division. The judge had no doubt that Donnelly was subjected to derogatory remarks during his transfer from 22 Division to 23 Division, from 23 Division to the courthouse and at the courthouse. He considered that “common sense and experience strongly support the likelihood that such comments would have been made by some [correctional] officers” because “not all officers conduct themselves with the degree of professionalism that we would hope for and, frankly, have the right to expect”.

[95] The trial judge also found that Donnelly had been tripped by a court officer while he was being walked through the cells and that he had been struck on the back of the head by a guard at TWDC. He found that neither event was something Donnelly would misinterpret or be confused about because of his OCD or simply make up. Besides, “experience demonstrates repeatedly that these types of events occur”.

[96] The trial judge rejected the allegation that other inmates knew of the offences with which Donnelly was charged because correctional authorities “announced” the charges in their presence. He also found nothing improper about the provision of food, drink, hygiene products and shower access to Donnelly, who made no complaint about the lack of working water fountains in two of his cells.

[97] The trial judge further found that Donnelly had been left in his boxer shorts during his first night at TWDC. In making this finding, the trial judge relied on two items of evidence that he said corroborated Donnelly’s complaint:

One is that this is an event that the applicant told his father about, somewhat reticently, when he spoke to his parents the next day. The other is that there was no evidence that, prior to being put in a segregation cell, inmates are strip searched and then provided with clothing and a mattress “some short time later”. I believe that that short time became a much longer time in the case of the applicant and I believe that this likely occurred as a juvenile way for the guards to express their displeasure regarding the applicant. Both of these facts provide some corroboration for the applicant’s evidence respecting this event.

[98] The trial judge expressed his conclusion on the s. 7 issue in these terms:

In the end result, I am satisfied that during the time that he was held in custody, the applicant was verbally abused, he was physically abused and he was generally mistreated. The impact of this mistreatment was especially acute for the applicant given his OCD. There is no justification for this conduct. The fact that persons are in custody does not bestow on the authorities responsible for their care, the right to abuse or mistreat inmates simply because they are offended by the nature of the allegations found in the charges that the inmate faces. The requirement that prisoners are to be provided with humane treatment is a longstanding principle that has international application.

I conclude therefore that the applicant’s rights under s. 7 of the Charter were breached by the conduct to which he was subject during the time that he was held in custody.

The Arguments on Appeal

[99] The Crown says that the trial judge’s finding of a s. 7 infringement based upon the treatment of Donnelly while in the custody of state agents is flawed in two significant respects. His findings of fact were clearly wrong, unsupported by the evidence and plainly unreasonable. They are diffuse with palpable and overriding errors and reviewable on that basis. What is more, according to the Crown, the trial judge applied the wrong legal test in deciding that the alleged misconduct amounted to a breach of s. 7. The proper standard requires proof that the conduct of the state had a serious and profound effect on a person’s psychological integrity with the effects being assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.

[100] According to the Crown, the trial judge did not engage in any meaningful assessment of Donnelly’s sincerity in making his findings of fact. He paid no heed to the implications of his rejection of critical aspects of Donnelly’s testimony and was oblivious to the possibility of testimonial insincerity despite the frequent inconsistency between Donnelly’s testimony and the objectively discernable evidence and signs pointing to concoction and hyperbole.

[101] The Crown contends that the trial judge’s reasons for accepting Donnelly’s evidence reflect error. The reasons for accepting his testimony about physical assaults are speculative and illogical. In connection with the finding relating to the boxer shorts, the acceptance was based on spurious corroboration including a prior consistent statement to his father. The finding that Donnelly reasonably believed that the authorities were intentionally withholding his medication is at odds with the evidence of a specific inquiry about medication shortly after his admission to TWDC. The trial judge made no finding about the actual derogatory comments alleged to have been made en route between police stations and to the courthouse, thus could not realistically determine that they offended s. 7.

[102] The Crown says that the trial judge erred in the test he applied in determining whether the misconduct of state actors offended s. 7 of the Charter. The trial judge took the standard as “significant psychological injury”, a benchmark that is much less demanding than what s. 7 requires. Donnelly’s s. 7 protected security of the person interest only became engaged if the impugned state action would have had a serious and profound effect on the psychological integrity of a person of reasonable sensibility. The evidence here was incapable of crossing this threshold.

[103] Donnelly begs to differ. The real issue before the trial judge was whether the alleged incidents occurred, not whether, if established, they constituted a breach of s. 7. It was in this manner that the trial Crown approached the case and those concessions framed the obligations of the trial judge. The trial judge applied the proper test although he neither articulated it nor he was required to do so in light of the argument advanced at trial.

[104] In addition, Donnelly continues, the trial judge did not err in accepting his testimony. He was entitled, as he did, to accept some, none or all the evidence of any witness who testified, including Donnelly. His conclusions were based on proper considerations, an assessment of the evidence as a whole and were reasonable. The trial judge did not give Donnelly any free pass on reliability and was alert to the prospect and consequences of fabrication. Nothing displaces the deference that is the trial judge’s due on findings of fact. That deference compels rejection of the Crown’s thinly-disguised attempt to recalibrate the findings of fact in the guise of legal error.

The Governing Principles

[105] As much as it is unnecessary to restate the standard of review applicable to findings of fact and inferences from findings of fact, it is essential to consider what must be established, on a balance of probabilities, to amount to an infringement of the security of the person component in s. 7 of the Charter.

[106] To begin, it is not every qualification or compromise of a person`s security that comes within the reach of s. 7 of the Charter. The qualification or compromise must be significant enough to warrant constitutional protection. To suggest that any qualification or compromise of security of the person engages s. 7 risks trivializing the protections of the Charter: Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143, at p. 151.

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

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

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

The Principles Applied

[110] As I will explain, I conclude that the trial judge erred in finding the security of Donnelly’s person was infringed by the manner in which he was treated by those in charge of his custody from his arrest until his release on bail. In my respectful view, both the findings of fact made by the trial judge and his determination that what occurred amounted to a breach of s. 7 are flawed by error.

[111] To take first, the findings of fact.

[112] The trial judge settled on four events of state misconduct to ground his finding of constitutional infringement:

i. delay in providing prescribed medication;

ii. derogatory comments during transport;

iii. physical abuse by correctional officers, a trip and punch to the head; and

iv. leaving Donnelly partially clad after a strip search when he was placed on suicide watch.

[113] In connection with the delay in providing prescribed medication, recall that the bottle in which the pills were provided displayed an expired date. As the evidence before the trial judge established, jail authorities, quite understandably, do not dispense medication brought by inmates. Rather they confirm the currency of the prescription, obtain fresh product from a pharmacy and dispense it according to the prescription.

[114] Correctional authorities were well aware that Donnelly was taking prescribed medication. He was seen by a nurse on the evening of his admission to TWDC. He made no complaint about missing his regular dosage of medication, as he had from time to time in the past. He received his medication the following day. On this evidence, the trial judge found that Donnelly reasonably concluded that he was denied his medication intentionally by correctional authorities. Such a conclusion is at best speculative.

[115] The trial judge said he had no doubt that Donnelly was subjected to derogatory remarks during his transport between police divisions and while at the courthouse, but made no express finding about the nature of the remarks made. He buttressed this finding by reference to “common sense and experience” and what he termed “a regrettable reality”. It is at best debatable whether either of these propositions fall within the scope of judicial notice or any other surrogate for viva voce evidence. This finding is seriously flawed.

[116] The trial judge accepted Donnelly’s evidence in relation to two physical events while he was in custody – that he was tripped by a guard at the courthouse and struck in the back of the head by another guard at TWDC. The trial judge said the events were not “of a type that the applicant would misinterpret” nor ones he might be confused about as a result of his OCD and related symptoms. In the trial judge’s view, he had no reason to conclude Donnelly “simply made them up” and “experience demonstrates repeatedly that these type of events occur”. Again, it is debatable whether the latter assertion is properly the subject of judicial notice or any surrogate for viva voce evidence. Relying on it in the absence of an evidentiary basis is problematic. The trial judge’s finding is flawed in this respect.

[117] The trial judge also found that Donnelly was kept in his boxer shorts with neither blanket nor mattress for a period during his first night at TWDC. The trial judge appears to have found confirmation of this fact from a complaint that Donnelly made to his father during a jail visit on May 3, 2011. This prior consistent statement cannot be pressed into service as confirmation of the same allegations made by the same source. Further, the finding that “this likely occurred as a juvenile way for the guards to express their displeasure” is bereft of evidentiary support.

[118] Setting to one side the flawed factual findings made by the trial judge, the more serious error is the standard he applied to determine whether the misconduct amounted to an infringement of s. 7.

[119] The trial judge accepted as a basic premise that significant psychological injury amounts to a breach of a person’s s. 7 rights in the same fashion that physical injury does.

[120] As we have previously seen, it is not every state interference with an individual’s psychological integrity that engages s. 7. Where, as here, the psychological integrity of a person is at issue, security of the person is restricted to “serious state-imposed psychological stress”. The state conduct must have a serious and profound effect on a person’s psychological integrity. These effects are to be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.

[121] The trial judge’s finding of infringement eschews any objective assessment in favour of a consideration of the effects on this respondent, a person with enhanced susceptibility to anxiety and stress as a result of OCD. Even if the findings of fact made by the trial judge remain intact, those findings simply do not support a finding of s. 7 infringement when the proper standard is applied.

Issue #3: Section 24(1) as a Basis to Impose a Sentence outside Statutory Limits

[122] The final issue[^3] requires no additional reference to the circumstances of Donnelly or the offence he committed. What is essential to an understanding of this issue is a brief reference to the positions advanced by the parties at trial and the reasons of the trial judge for imposing a sentence outside the limits provided by the Criminal Code.

The Positions of the Parties at Trial

[123] At the sentencing hearing, the trial Crown sought a sentence of imprisonment for a term of seven years.

[124] Trial counsel for Donnelly asked the trial judge to impose a conditional sentence of imprisonment for a term of not more than two years less one day. Counsel did not challenge the constitutional validity of the mandatory minimum sentence of imprisonment or seek a constitutional exemption from that minimum sentence. Instead, relying on the trial judge’s findings of constitutional infringement, Donnelly invoked s. 24(1) of the Charter to claim, as an appropriate and just remedy for those infringements, a conditional sentence of imprisonment that was otherwise statutorily unavailable because of the combined effect of ss. 163.1(2) and 742.1(b) of the Criminal Code.

The Reasons of the Trial Judge

[125] The trial judge approached sentencing in two steps. The first step involved a determination of a fit sentence without consideration of the Charter breaches and invocation of s. 24(1) of the Charter to relieve against the mandatory minimum term of imprisonment. The trial judge concluded this step of his analysis in these terms:

In my view, given all of the factors that I have mentioned, a penitentiary term of imprisonment is not only unwarranted, it could also not be justified on a proper application of the principles of sentencing. Such a sentence would not be proportionate to Mr. Donnelly’s role in this matter. Rather, the appropriate sentence would be from a mid-reformatory term to a maximum reformatory term. It is only the fact that Mr. Donnelly worked for Mr. Way for three years, and that he edited seventy-four such films during that time, that increases the appropriate sentence above the mandatory minimum. I have concluded, therefore, that the appropriate sentence for Mr. Donnelly would be twenty-one months before any consideration of the Charter breaches and the other personal issues surrounding Mr. Donnelly.

[126] The trial judge then turned to consider how he could provide an “effective remedy” for the Charter infringements and other issues, in particular the fragile mental state of Donnelly and the risk of him committing suicide while in custody. He concluded:

It does not, therefore, constitute an effective remedy to simply reduce Mr. Donnelly’s period of incarceration, as would otherwise be the usual remedy for such breaches. To do so, in the case of Mr. Donnelly, is to really provide him with no remedy at all. Indeed, not only would such a result not be an effective remedy, it actually amounts to an aggravation of the breaches, only this time with the potential for fatal results.

I have therefore, concluded that this is one of those exceptional cases that requires, in order to provide Mr. Donnelly with an effective remedy under s. 24(1) for the breaches of his Charter rights, to override the mandatory minimum term of imprisonment and, instead, impose a sentence that permits Mr. Donnelly to serve his sentence in the community. While I am aware that the reference in Nasogaluak was to “sentence reduction”, I do not see any reason in principle why the form of sentence cannot be altered, as opposed to reduced, as an equally effective remedy. Indeed, to some extent, permitting the sentence to be served in a different manner, rather than imposing a reduction in the sentence, is more faithful to Parliament’s objective of requiring a minimum length of sentence.

I am therefore satisfied that, in the exceptional circumstances of this case, the appropriate penalty to be imposed is a conditional sentence of twenty-one months.

The Arguments on Appeal

[127] The Crown says the decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, makes it clear that if the circumstances of a Charter breach are relevant to an offender and the offence committed, conventional sentencing principles permit their consideration in determining a fit sentence without the need to resort to the remedial authority of s. 24(1) of the Charter. Where the Charter infringements are unrelated to the offence and offender, they are irrelevant to a determination of a fit sentence and their remedy lies elsewhere.

[128] The Nasogaluak court made it clear that, at least as a general rule, it is neither necessary nor useful to invoke s. 24(1) to achieve an appropriate reduction of sentence to take cognizance of any harm flowing from the unconstitutional conduct of state agents. A sentencing judge, acting within the boundaries of the statutory sentencing scheme, must exercise that discretion in compliance with the statutory minimums and other provisions which restrict or prohibit certain forms of sentence for the offence of which an offender has been convicted.

[129] It follows, the Crown says, that sentence reductions outside statutory limits do not generally constitute an “appropriate” remedy within s. 24(1) of the Charter, absent a challenge to the constitutionality of the statutory limit.

[130] But, the Crown acknowledges, the Nasogaluak court added a caveat. The Court did not foreclose the possibility of a sentence reduction outside statutory limits as the sole effective remedy for misconduct by state agents in relation to the offence and the offender. However, sentence reductions outside statutory limits are at once exceptional, available only in cases of particularly egregious misconduct by state agents, and for conduct of those agents in relation to both the offence and the offender.

[131] Here, the Crown continues, the trial judge erred in concluding that Nasogaluak decided that s. 24(1) could be used to impose a sentence outside statutory limits in “exceptional cases”. To the contrary, a careful reading of Nasogaluak makes it clear that the Court expressly left this possibility open for future consideration. Indeed, to invoke s. 24(1) as a basis upon which to impose a sentence outside statutory limits would conflict with the Court’s earlier decision in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96;be inconsistent with the rule of law and the principle of legality; and amount of an inappropriate interference with Parliamentary sovereignty.

[132] In addition, the Crown says that even if it could be said that Nasogaluak decided that s. 24(1) could be invoked to impose a sentence outside statutory limits in “exceptional cases”, this is not an “exceptional case”. To qualify, the sentence reduction outside statutory limits must be the sole effective remedy for some particular egregious form of misconduct in relation to the offence and the offender. Here, the trial judge recognized that reduction of the sentence to the statutory minimum would adequately remedy the breaches. Instead, the trial judge considered this an exceptional case because of Donnelly’s fragile mental state and heightened risk of suicide. This was not linked to the Charter breaches and impermissible under Nasogaluak.

[133] The Crown submits that the trial judge invoked s. 24(1) to override two constitutionally sound statutory provisions – the minimum sentence for the offence charged and the prohibition against conditional sentence orders for convictions carrying a minimum punishment – on the basis that it would generate unconstitutional effects when applied to Donnelly. The effect was to grant Donnelly a constitutional exemption, a remedy that was off-limits under Ferguson.

[134] In addition, the Crown argues, the trial judge made speculative findings about the fact and certainty of physical abuse if Donnelly was incarcerated and considered the suicide risk – which the trial judge calculated to be at once substantial and likely to succeed because of the inability of correctional authorities to curtail it – to reach a conclusion that this case was “exceptional”. In the end, imposition of a sentence outside statutory limits was not the sole effective remedy for some particularly egregious forms of misconduct by state agents in relation to Donnelly and his offence.

[135] Donnelly begins with a reminder that state misconduct is a relevant factor for a sentencing judge to consider in determining a fit sentence, even if that misconduct does not amount to a Charter infringement. It is equally so, of course, where the state misconduct does breach an accused’s Charter rights or freedoms. Relief from a mandatory minimum sentence is a remedy that may be appropriate and just for unconstitutional state action. It is not, as the Crown suggests, nor does it amount to, a constitutional exemption by another name.

[136] Donnelly rejects the Crown’s submission that the use of s. 24(1) to impose a sentence outside statutory limits for unconstitutional state conduct violates the rule of law and the principle of legality and interferes with Parliamentary sovereignty. This is simply a case in which an exceptional remedy was required and properly granted.

[137] Donnelly acknowledges that some of the stresses considered by the trial judge as relevant to a determination of whether this was an exceptional case were unrelated to the Charter breach. That said, those other stresses did not sever the link between the Charter breaches and the harm that requires an appropriate and just remedy under s. 24(1). The trial judge’s findings were not speculative, rather firmly grounded in the evidence and deserving of deference here. The impact of the Charter breaches was more severe on Donnelly as a result of his serious pre-existing mental health issues. This is an exceptional case, the remedy appropriate and just.

[138] The Criminal Lawyers’ Association (CLA) is an intervener in this appeal and the related appeal in Gowdy. The CLA argues that sentence reduction is an appropriate and just remedy where a Charter breach is relevant to sentencing or not otherwise remediable, even where the remedy leads to a sentence below the mandatory minimum.

[139] The CLA says that where the relief sought would differ from the mandatory minimum or some other statutorily-imposed punishment, and in the absence of a s. 52(1) Charter challenge, a court should first decide whether a fit sentence for the offence and offender, absent any state misconduct, falls within the range of legal sentences, taking into account Parliament’s statutory expression of intent about the need for denunciation and deterrence.

[140] The CLA submits that where the “fit sentence” is within the range of legal remedies, the sentencing court should then consider the effect of the state misconduct and decide whether a sentence reduction – quantitative or qualitative – is an appropriate and just remedy for the state misconduct that occurred.

[141] The CLA contends that sentence relief under s. 24(1) is legal and appropriate even where the remedy leads to a sentence “below” a mandatory minimum. These reductions are rational and just, do not create objectionable uncertainty and do not amount to impermissible constitutional exemptions. They also respect Parliamentary sovereignty and the rule of law.

[142] The Canadian Civil Liberties Association (CCLA) is also an intervener in this appeal and in the related appeal in Gowdy.

[143] The CCLA says we should embrace this opportunity to recognize a readily available and versatile s. 24(1) sentence reduction remedy where it is particularly responsive to Charter breaches relevant to sentencing or particularly necessary where no remedy would otherwise be granted.

[144] According to the CCLA, there should be no limitations on the type of breach that may justify a sentence reduction as an “appropriate and just” remedy under s. 24(1). Nor should the reductions be limited to rare or particularly egregious breaches. Sentence reductions should not be restricted by either mandatory minimum sentences or the principle of proportionality. Such reductions will fill a constitutional void, enhance remedial parity and proportionality and integrate seamlessly with the trial process.

The Governing Principles

[145] It is helpful to begin with a reminder of some general principles that inform the remedial authority for which the s. 24(1) of the Charter provides. Section 24(1) provides that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

[146] First, the words “appropriate and just in the circumstances” direct the judge to exercise a discretion based upon the judge’s perception of the nature of the right and of the infringement, the facts of the case and the application of the relevant legal principles. It is difficult to imagine language which could equip a court with a wider and less fettered discretion. No binding formula can be composed for general application. And appellate courts are disentitled to cut down this wide discretion: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 965; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 52.

[147] Second, the words “appropriate and just” elude precise and lack exhaustive definition. The language “appropriate and just in the circumstances” bespeaks flexibility and invites contextual considerations. An appropriate and just remedy in the circumstances of a Charter breach is a remedy that meaningfully vindicates the rights and freedoms of the claimants and employs means that are legitimate within the framework of our constitutional democracy. The remedy must be a judicial remedy that not only vindicates the affected right, but also invokes the function and powers of a court: Doucet-Boudreau, at paras. 55-57.

[148] Third, as is self-evident, s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter. It follows from the broad language in which s. 24 is cast, as well as the myriad roles it may play in cases, that it should be allowed to evolve to meet the challenges and circumstances of those cases. Remedies must be approached in a flexible way and be responsive to the needs of individual cases: Doucet-Boudreau, at para. 59. The section must be interpreted in a manner that provides a full, effective and meaningful remedy for Charter violations: R. v. 974649 Ontario Inc,2001 SCC 81, [2001] 3 S.C.R. 575, at para. 19.

[149] Finally, by way of general principle, s. 24(1) provides a case-by-case remedy for unconstitutional conduct of state agents operating under lawful schemes the constitutionality of which is not challenged. The acts of state agents acting under these regimes are not the necessary result or “effect” of the law, rather of the agent’s application of a discretion conferred by the law in an unconstitutional manner: Ferguson, at paras. 35, 60-61.

[150] The authorities have elucidated several principles to be applied when the specific remedy sought for a Charter infringement under s. 24(1) is some amelioration of the sentence that might otherwise be fit for the offence and offender.

[151] First, the sentencing regime put in place by Part XXIII of the Criminal Code allows some scope for sentencing judges to consider not only the conduct of the convicted offender, but also the conduct, whether acts or omissions, of state actors. In order for state conduct to be cognizable in this way, however, that conduct, or more accurately misconduct, must relate to the circumstances of the offence or offender. In these situations, the state misconduct need not amount to a breach of the Charter and the sentencing judge need not invoke s. 24(1) in order to properly take it into account in determining a fit sentence: Nasogaluak, at para. 3. Even where the state misconduct amounts to a Charter breach, the statutory or common law sentencing regime can afford an appropriate remedy without the need to summon the remedial panoply in s. 24(1): Nasogaluak, at paras. 2-3.

[152] Second, where the state misconduct does not relate to the circumstances of the offence or of the offender, an accused must seek his or her remedy elsewhere. The sentencing regime can be of no service because the misconduct falls beyond its reach. In addition, reduction of sentence cannot be an “appropriate” remedy under s. 24(1), assuming the misconduct amounted to a Charter breach, where the facts that underpin the breach lack any connection to the circumstances of the offence or of the offender: Nasogaluak, at para. 4.

[153] Third, as a general rule, invocation of s. 24(1) of the Charter is neither necessary nor useful to achieve an appropriate reduction of sentence to account for any harm flowing from unconstitutional acts of state agents after the offence charged. Sentencing judges must exercise their discretion within the parameters of the Criminal Code complying with statutory minimums and other provisions which prohibit certain sentencing dispositions in respect of the offence: Nasogaluak, at para. 5.

[154] In a similar way, the restraints just mentioned apply where the remedial power of the court under the Charter is invoked. Sentence reductions outside statutory limits do not generally constitute an “appropriate” remedy within s. 24(1) unless the constitutionality of the relevant statutory limit itself is challenged: Nasogaluak, at para. 6.

[155] A brief reminder about the underlying circumstances in Nasogaluak, and the end result of the proceedings provides a helpful context in which to consider the claims of infringement advanced and the remedies sought in this case.

[156] Nasogaluak was charged with impaired operation of a motor vehicle and flight from police. He was apprehended after a high speed pursuit. Nasogaluak resisted police efforts to arrest him and take him into custody. During the arrest, he was punched in the head three times, in the back twice and pinned face down on the pavement. He suffered broken ribs and a punctured lung that required emergency surgery.

[157] Nasogaluak pleaded guilty to both charges. The trial judge found an infringement of s. 7 occurred as a result of the police conduct during the process of arrest. Invoking s. 24(1) of the Charter, the trial judge granted Nasogaluak a conditional discharge, a punishment available on the flight from police finding of guilt but not on the impaired operation finding because of the minimum punishment provided in such cases. The Alberta Court of Appeal set aside the conditional discharge granted on the impaired operation count and substituted the minimum fine to be levied on conviction.

[158] In the Supreme Court of Canada, one of the issues considered was the availability of sentence reduction as a s. 24(1) Charter remedy and the limitations, if any, that circumscribed a judge’s discretion to reduce a sentence as a Charter remedy. In the end, the court upheld the sentence reduction as a remedy available within the enabling scheme of Part XXIII, and stated as a general rule that the reduction could not extend beyond the limits imposed by the Criminal Code on the available sentencing alternatives: Nasogaluak, at paras. 55, 63.

[159] However, the Nasogaluak court said that exceptional cases may arise and the remedial power of s. 24(1) is expansive. The court suggested that it would not foreclose the possibility that in some exceptional cases, a sentence reduction outside statutory limits may be the sole effective remedy for some particularly egregious form of misconduct in relation to the offence and the offender: Nasogaluak, at para. 64. However, it was not necessary for the court to address the availability of such a remedy in that case, having resolved the infringement with a remedy within statutory limits. Significantly, the court did not explain how this suggestion in Nasogaluakshould be reconciled with its earlier decision in Ferguson, which foreclosed the possibility of constitutional exemptions from mandatory minimum sentences as an appropriate remedy for a Charter infringement, in that case in relation to s. 12.

The Principles Applied

[160] As I will explain, I am satisfied that in the circumstances of his case, the trial judge erred in invoking s. 24(1) of the Charter to impose a sentence outside statutory limits for the offence of which Donnelly was convicted.

[161] I begin with the self-evident. This is an appeal from sentence. Appellate courts accord sentencing judges a wide berth in their determination of what constitutes a fit sentence for an offender and the offence of which she or he has been found guilty. Sentencing decisions are entitled to deference unless it is demonstrated that the trial judge made an error in law or an error in principle that has an impact on the sentence or imposed a sentence that is demonstrably unfit.

[162] In my view, the trial judge erred in principle in invoking s. 24(1) of the Charter to impose a sentence outside the sentencing options available to him for the offence to which Donnelly pled guilty and of which he was convicted.

[163] As I have already explained, in my view, the trial judge erred in finding infringements of ss. 9 and 7 of the Charter. The underlying facts found by the trial judge are based in part upon palpable and overriding errors and, in any event, simply do not rise to the level of constitutional infringement.

[164] Second, in the absence of an established Charter infringement, the trial judge could not invoke s. 24(1) as a source for a remedy. No infringement. No s. 24(1) remedy.

[165] Third, in any event, the Nasogaluak court explained that s. 24(1) need not be invoked to provide a sentencing remedy for unconstitutional conduct by state actors relating to the offence or offender. An effective remedy may be fashioned within the confines of Part XXIII of the Criminal Code.

[166] As the Nasogaluak court makes clear, in appropriate cases, the statutory sentencing scheme in Part XXIII permits sentencing judges to consider not only the conduct of the offender, but also that of state actors whose conduct relates to the circumstances of the offence or the offender. For state conduct to be considered under Part XXIII, it need not amount to a Charter infringement. And so it was that the trial judge was entitled to take the conduct of state actors in relation to Donnelly into account under Part XXIII in determining a fit sentence.

[167] However, in exercising his discretion under the sentencing scheme for which Part XXIII provides, a trial judge must exercise that discretion within the parameters of the Criminal Code. The sentence imposed must comply with the statutory minimums (absent a successful constitutional challenge to them) and other provisions, for example, s. 742.1(b), which prohibits conditional sentences of imprisonment for those convicted of offences which carry a minimum term of imprisonment.

[168] It follows in this case, that the trial judge’s discretion under the statutory sentencing scheme of Part XXIII could not authorize imposition of a conditional sentence of imprisonment. Section 742.1(b) forecloses the conditional sentence of imprisonment option where the offence is punishable by a minimum term of imprisonment. Section 163.1(2) enacts a minimum sentence of imprisonment for a term of one year for making child pornography for the purpose of publication.

[169] Nor would the result be any different if we were to assume in Donnelly’s favour that:

i. the breach of s. 9 or s. 11(e); and

ii. the breach of s. 7.

had been established on the balance of probabilities, thus providing him with access to the remedial expanse of s. 24(1).

[170] And if we were to assume that Nasogaluak actually decided, rather than left open, that s. 24(1) may authorize imposition of a sentence outside statutory limits, even in the absence of a constitutional challenge to the limit, Donnelly’s case would fail. And it would fail for two reasons.

[171] First, while s. 24(1) of the Charter provides a broad discretionary remedy, the trial judge misdirected himself by failing to apply the “exceptional” limitation set out by the Supreme Court of Canada in Nasogaluak to the potential use of s. 24(1) as a remedy permitting “in some exceptional cases, sentence reduction outside statutory limits”. Even a most generous reading of Nasogaluak would confine an outside-limits sentencing remedy to exceptional cases where the Charter infringement involves some particularly egregious misconduct by state agents in relation to the offence and the offender: Nasogaluak, at para. 64. This is a very high standard, and one not met here.

[172] If the conduct in Nasogaluak – an amalgam of repeated assaults, significant bodily harm and official concealment – falls short of this threshold, what occurred here must likewise fail. Clearly, derogatory comments or physical abuse, if they occur, cannot be condoned. Nor can conveyance of inaccurate information to prosecutors conducting bail hearings. That said, the conduct complained of here simply cannot wear the mantle of “particularly egregious misconduct”, and thus cannot sustain the outside limits sentence imposed by the trial judge.

[173] Second, the Nasogaluak decision contemplates sentence reduction outside statutory limits as an exceptional remedy only where it “may be the sole effective remedy” (emphasis added) for the state misconduct that is to be remediated. As a result, the trial judge erred in law by imposing a conditional sentence, which was clearly outside statutory limits given that it was prohibited by the Criminal Code, in a situation in which the trial judge himself recognized that a reduction in sentence to a minimum one year sentence would be an effective remedy to reflect the Charter violations he had found. It was really Donnelly’s fragile mental state and risk of suicide that made the case exceptional in the trial judge’s view and resulted in his finding that a conditional sentence was the only effective remedy.

Conclusion

[174] It follows from what I have said that the sentence imposed by the trial judge cannot stand. A sentence of imprisonment was required. The trial judge identified a 21 month sentence as fit before considering the Charter breaches. I agree that sentence falls within the range given Donnelly’s level of involvement, albeit towards the lower end of that range.

[175] Donnelly has completed a 21 month conditional sentence. The sentence included a curfew for the full term of the sentence. In the circumstances, I see no penological principle or state interest that would be vindicated or furthered by his re-incarceration: see R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at paras. 10-12, 21.

[176] I would grant leave to appeal, allow the appeal, set aside the sentence imposed at trial and substitute a sentence of 21 months in prison. In the circumstances, I would stay the operation of that sentence and direct that no warrant of arrest or committal issue.

Released: December 29, 2016 (“D.W.”)

“David Watt J.A.”

“I agree. Gloria Epstein J.A.”

“I agree. M. Tulloch J.A.”

[^1]: This appeal was heard together with R. v. Gowdy, 2016 ONCA 989, for which reasons are issued concurrently.

[^2]: Section 27(1) states that ‘[w]here there is a reference to a number of clear days or “at least” a number of days between two events, in calculating that number of days the days on which the events happen are excluded”.

[^3]: In the absence of a Charter infringement, it is not strictly necessary to consider this issue. I have done so, however, in case my findings on Charter infringements are in error and in light of the thorough and helpful argument on the issue by all counsel.