WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: October 28, 2025

Court File No.: 20-627

Location: Chatham, Ontario

Parties

Between:

His Majesty the King

— and —

J.E.

Before: Justice Shannon L. Pollock

Heard on: July 9, 2025, August 25, 2025, and October 1, 2025

Reasons Released: October 28, 2025

Counsel

Melanie Nancekievill — Counsel for the Respondent

Simon Kim — Counsel for the Applicant

Ruling on Charter Application for Stay of Proceedings

Introduction

[1] This matter is before me for a retrial in relation to allegations of sexual assault and sexual interference. The complainant is his stepdaughter. The Applicant was convicted on this matter after a trial in the Ontario Court of Justice. That conviction was successfully appealed. The Applicant seeks to have the charges stayed due to him being overheld in custody for a period of sixteen (16) hours after the Court of Appeal issued an Order for his release.

[2] The Applicant was released on bail pending appeal on June 30, 2022. The Applicant's appeal was argued in September of 2024. He surrendered himself into custody at Joyceville the morning of his appeal. Judgment was reserved and the Applicant was re-released on bail pending reasons. On October 29, 2024, appellate counsel was notified that the Court would be releasing its judgment on October 31, 2024. The Applicant was required to report back to Joyceville penitentiary that morning. The Court of Appeal overturned the Applicant's convictions and sent the matter back for retrial. There was an Order re-releasing the Applicant on bail pending the retrial. The Order was sent to Joyceville Institution at 4:39 pm on October 31, 2024. The Applicant was not released. He was transferred to Quinte Detention Centre, a provincial institution. He was released from there the next morning at 9:54 am.

[3] It is not in issue that the overholding of the Applicant was a breach of his Charter rights under the Charter. The issue I must decide is whether there is an appropriate remedy in the circumstances. The Applicant seeks a stay. The Respondent opposes that relief.

The Charter Breaches

[4] There are several sections of the Charter that offer protection for the kind of breach that occurred to the Applicant's rights in these circumstances. Freedom against unlawful imprisonment is a basic, fundamental right in our Society.

[5] Section 7 of the Charter states that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[6] Section 9 states that everyone has the right not to be arbitrarily detained or imprisoned.

[7] Section 10(a) of the Charter states that everyone has the right on arrest or detention to be informed promptly of the reasons therefore.

[8] Section 11(e) states that any person charged with an offence has the right not to be denied reasonable bail without just cause.

[9] Arguably, each of these Charter rights was breached by the overholding of the Applicant in custody when there was a Court Order for his release.

[10] The issue is not whether the Applicant's Charter rights were breached. They very clearly were. The issue becomes what, if anything, should be done about the breach of his rights.

Section 24(1) – Stay of Proceedings

[11] Section 24(1) of the Charter states that anyone whose Charter rights or freedoms have been infringed or denied may apply to the Court to obtain a just and appropriate remedy.

[12] The Applicant submits that a stay should be granted. The Respondent opposes the granting of such relief.

[13] A stay can only be granted "in the clearest of cases". There is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings: R. v. Jewitt at paragraph 25.

[14] There are two (2) types of state conduct that may warrant a stay: conduct that compromises the fairness of the trial, considered the main category; and conduct that risks undermining the integrity of the judicial process, referred to as the residual category. The test is the same for both. The circumstances of this case fall under the residual category. There are three (3) requirements: 1) 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; 2) there must be no alternative remedy capable of redressing the prejudice; and 3) where there is still uncertainty over whether a stay is warranted after the first two (2) steps, the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits: R. v. Babos, 2014 SCC 16 at paragraphs 31 to 32.

[15] The question for the residual category at the first stage is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. It requires asking whether the state conduct was so troublesome that having a trial will leave the impression that the justice system condones conduct that is offensive to society's sense of fair play and decency: R. v. Babos, 2014 SCC 16 at paragraph 35.

[16] At stage two (2), in a residual category case, remedies must be directed towards the harm to the integrity of the justice system. The goal is not to provide redress to an accused for a wrong done to them and is whether an alternate remedy will adequately dissociate the justice system from the impugned state conduct going forward: R. v. Babos, 2014 SCC 16 at paragraph 39.

[17] The balancing at stage three (3) has added significance when the residual category is invoked. The court must consider things such as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces and the interests of society in having the charges disposed of on the merits. The more egregious the state conduct, the greater the need for the court to dissociate itself from it: R. v. Babos, 2014 SCC 16 at paragraphs 40 and 41.

The Evidence

[18] The Applicant and his wife testified on the Application. Affidavits were filed from the Applicant's wife, a partner at the law firm representing him and the Regional Manager of Sentence Management for the Correctional Service of Canada. Evidence was also given by persons working for the sentencing management team who were involved in the Applicant's matter.

[19] The Applicant's wife, who is also the mother of the complainant, stated that she was advised by counsel of the successful appeal shortly after 10:30 a.m. on October 31, 2024. In her affidavit, she indicates that counsel's office remained in contact with her and the Applicant's other sureties in the ensuing hours in preparing an Application for an Order for bail pending re-trial. The Crown consented and an Order was made.

[20] The affidavit of the Applicant's wife indicates that after the release Order was sent to the institution, she had a conversation with the Applicant and became aware he was being transferred. She testified that she had made the Applicant aware earlier in the day that he was to be released. She testified that she had spoken to correctional officers in the afternoon when she was asked why she and the Applicant's father were in the parking lot of the institution. She stated that she and the Applicant's father were approached by correctional officers while they were waiting in the parking lot and told to leave since the Applicant would not be released. She estimates that this occurred between 4:30 and 5:00 p.m. She contacted counsel who she says spoke directly to the correctional officers.

[21] There were some difficulties with the reliability of the Applicant's wife's evidence. She had a belief that the September 9 release order was just a bail change. However, the other evidence was that September 9 was an occasion when it was the Applicant's brother who was involved in his attendance at the institution and release from there. That may be why she was confused about what occurred.

[22] The Applicant gave evidence that he had surrendered himself on the day the appeal was heard and been released a few hours later without issue. On October 31, 2024, he surrendered himself again to await the Court of Appeal's decision. He testified that towards the end of the day a correctional officer came into cells to get him out. He said there was a female in plain clothes and other correctional officers standing there. He testified he signed paperwork and then went back to his cell. He then spoke with his wife and told her he had signed paperwork and was getting released. This is consistent with his wife's testimony on this issue.

[23] The Applicant testified that, as he was gathering his belongings, another guard came and said he was being transferred to Quinte. When he asked, they let him call his wife. He was transferred and released the next morning. Other than the issue of being held when he should have been released, he had no difficulties while in custody overnight.

[24] Amy Burtch, who was acting as a chief of sentence management at the time, gave evidence on the Application. She stated that the sentence management team works 8:00 a.m. to 4:00 p.m. Monday to Friday. These are the standardized hours for all institutions. The Applicant's case was assigned to an officer who Ms. Burtch was overseeing at the time. Her recollection is that the Court of Appeal judgment came in just before 3:00 p.m. via email. As a result, she worked together with Angie Tebo, who had the Applicant on her caseload, to make sure the information matched the warrant of committal. Ms. Burtch contacted Quinte Detention Centre to ensure they would accept the Applicant. She did this as he was no longer serving a federal sentence, given the Court's decision. Once everything was completely reviewed, the Applicant was added to the release list. The evidence of Ms. Burtch was that at around 3:45 p.m. she confirmed that the Applicant could be escorted to Quinte. She signed off from work at just after 4:00 p.m. She testified that there is a general email account for the region and one for the specific institution. The evidence disclosed that the Court of Appeal documents were sent to both.

[25] Ms. Burtch testified that she received a phone call on her work cell phone around 4:41 p.m. from the acting chief of Joyceville, Kristina King, who indicated that correctional managers at Joyceville had contacted her as there was some indication regarding bail. Ms. Burtch confirmed she had only received the one (1) document and asked if she needed to log back in. She was told she did not. Ms. Burtch testified that the bail order was not signed by the Applicant on October 31st. She could not think of any other occasion when an incident such as this had happened. She testified that if anyone had logged back in after the Order was received via email and seen the Order for release it would have been actioned even though it was received after hours.

[26] Kristina King who was working as an acting chief of sentence management for Correctional Service of Canada testified. She stated that she received a phone call from correctional manager, Alex McCormick, around 4:33 or 4:34 p.m. on October 31st, 2024. Alex McCormick was making an enquiry about the Applicant and what was going on. Given that Ms. King had not worked on site on the afternoon of the 31st, she was unfamiliar with what they were speaking of. As a result of the call, Ms. King logged onto her computer. She testified that she saw nothing authorizing the Applicant's release. She testified to calling Amy Burtch who explained that the only thing the institution had received was the Court of Appeal's decision to order a new trial. She advised Ms. Burtch it was not necessary to log back in and look as she had just done so.

[27] Ms. King testified that the email accounts are not monitored after 4:00 p.m. when those in the department are finished working for the day unless something is brought to their attention. There is a correctional manager who is monitoring a line that family and lawyers can contact twenty-four (24) hours per day. If an issue arises, like it did in this case, then the sentencing department personnel can be reached after hours.

[28] Angie Tebo, a sentence management officer with the Correctional Service of Canada, also testified on the Application. It was Ms. Tebo's evidence that she processed the Court of Appeal decisions when they came in on October 31, 2024. She said this occurred around 3:00 p.m. She stated that once the sentence was quashed that meant the Applicant was no longer viable in their offender management system.

Analysis

[29] The Applicant submits that, after engaging in an analysis on the first two (2) stages of the test, I should reach the conclusion that a stay is the appropriate remedy. In the alternative, they submit that, after engaging in a balancing of interests at the third stage, they have met their onus.

[30] The Respondent takes the position that this was an inadvertent or technical breach and that there are other remedies available, including a reduction in sentence and/or denunciation of the conduct which resulted in a breach of the Applicant's rights. They submit that, should I determine that I must engage in a stage three (3) analysis, on balance, this is not an appropriate case for a stay.

[31] The Applicant turned himself in at Joyceville Institution the morning of October 31, 2024, as the Court of Appeal was going to be releasing their decision. He had done this on a prior occasion. On that occasion, he had been granted bail pending the outcome of the decision. The sentencing team for Correctional Service of Canada are assigned caseloads. The caseloads involve hundreds of inmates. The Applicant became part of Angie Tebo's caseload in May of 2023. The Applicant would have been part of Ms. Tebo's caseload when he previously turned himself in and was released as part of the appeal process.

[32] When the Court's decision on the appeal was received by the institution at approximately 3:00 p.m., it was determined he was no longer serving a sentence as a federal offender. As a result, he was processed and a decision made that he needed to be transferred out. No one did any follow-up on whether his release had been granted as it had been in the past.

[33] The Applicant was held in custody despite there being a Court Order for his release, without being advised of the reason and despite the fact that multiple people communicated with corrections staff about his release. His Charter rights were breached.

[34] The breach commenced when the bail document was sent over to the institution after 4:30 p.m., which was approximately forty (40) minutes after the workday for the sentencing management team ended. There is no one monitoring the email account which receives Court documents after 4:00 p.m. Further, efforts by the Applicant, his family members and his lawyer's office to alert institution personnel that a release order was in place, had no result. It is clear the Applicant was not going to be released without the sentencing department personnel seeing an Order. Responsible personnel logging in after hours to check on this issue missed the email coming in by a matter of minutes. After that, there was no further follow-up until parties returned to work the next morning at 8:00 a.m.

[35] On the one hand, there is no evidence before me that this was a usual event. For one, the institution involved is not a remand facility which deals with and processes bail orders daily. The evidence revealed that the situation, that being the receipt of an Order after the conclusion of the sentencing team's workday, is not one which occurs regularly. In addition, the sentencing personnel are available to be reached after hours and ensure that action is taken on any release order received. Here, they did that very thing however the timing and lack of follow-through is what resulted in the Order not being seen.

[36] On the other hand, if I accept the evidence of the Applicant, there was a huge error made when he signed an Order for his release and then was transferred to another institution. It is difficult to accept this, given the time that the Order was sent over via email and the fact that the parties responsible for executing the release were not working at that time. In other words, there was no one working at the time who would have processed it when it was received. There is no evidence the Release Order was sent by the Court of Appeal at the time the Applicant said he signed it. I do not accept the Applicant's evidence that he signed a Release Order while still at Joyceville. He may have signed something. His memory may be flawed. At the very least, there were errors made by several parties involved that culminated in a significant consequence.

[37] A huge part of the problem is the fact that no one on the sentencing team who are responsible for implementing these orders are working after 4:00 p.m. While they are reachable after hours, no one is monitoring the email account where Orders are sent. The evidence is that the hours for this department are the same across the province. That is a systemic problem.

[38] In addition, staff who were alerted by the Applicant, his family and his counsel should have followed up before transferring the Applicant out of their institution. Each person along the chain could have and should have taken another step to communicate with the others so that the staff on the sentencing team responsible for acting knew that there was an Order in place.

[39] More could have been done to ensure that this did not occur. The parties responsible needed to communicate with each other. By all accounts, the Order for bail pending retrial was not sent with the initial documentation quashing the conviction and ordering a new trial. I question why the institution did not follow up with the Court of Appeal to determine if any other documentation was coming, given the result and the fact that the Applicant had been released from the institution due to his appeal process on two (2) prior occasions. It is concerning that multiple correctional officers were told by the Applicant, his family and counsel that he was to be released and that did not result in anyone bringing it to the sentencing management team until the correctional manager reached out just after 4:30 p.m. Then there was no attempt to reach out to the issuing Court for clarification nor any further checking the system for the Order.

[40] I have no evidence before me on why these steps were not taken. What I do know is that, because of these failures, the Applicant spent approximately sixteen (16) additional hours in custody. That should never happen. Corrections needs to ensure that there are proper policies and procedures in place to make certain that an individual in their custody who has been granted bail is released immediately.

[41] That being said, on a stage one (1) analysis, while the conduct is offensive, for the reasons discussed, I have uncertainty about whether it is so troublesome that allowing the matter to proceed to trial would leave the impression that this conduct is being condoned. Receiving an Order from the Court after regular working hours is not a common occurrence. Further, the parties did take some steps after hours when it was brought to their attention. However, there were staff along the way who did not take reasonable steps to ensure this did not happen and the department hours of operation and practices resulted in the Applicant spending sixteen (16) hours in custody as a result.

[42] When looking to stage two (2), I am unable to conclude whether a stay is the only appropriate remedy. While denouncing this conduct may send a message to the institution, I am hesitant to conclude that it would have that result. This breach occurred when a prior Court Order was not acted upon.

[43] After engaging in an analysis under the first two (2) stages of the test, I am left with doubt over whether a stay is warranted. As a result, I must conduct a balancing of the interests in favour of granting a stay against the interest that society has in having a final decision on the merits of this matter.

[44] From one standpoint, the consequences of the breach were serious for the Applicant. He lost his freedom for a period of sixteen (16) hours. However, as soon as the error was discovered the following morning, the Applicant was released. While the hours of operation for the sentencing team are such that this situation was bound to happen, I have no evidence before me that it has, in fact, occurred previously. Those whose conduct resulted in the breach had no ill intent. In fact, several parties (Alex McCormick, Kristina King and Amy Burtch) became involved after hours when someone raised the issue. While being overheld, the Applicant suffered no additional harm or hardship. The charges are ones involving allegations of sexual abuse against a stepdaughter.

[45] On balancing all of these factors, I have concluded that a stay should not be granted. However, if this were to happen again, another Court may reach a different conclusion than I have. This cannot occur on another occasion. That may make this a systemic problem for which a stay would likely be granted. Correctional Service of Canada needs to take steps to ensure that there are policies and protocols in place so that an individual who has been granted bail is released immediately. They are required to make sure there are safeguards in place so that Court Orders are complied with without delay.

[46] The Application is dismissed.

Released: October 28, 2025

Signed: Justice Shannon L. Pollock