COURT FILE NO.: CR-19-1691 DATE: 2022 04 20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Katherine Beaudoin, for the Crown

– and –

BADAL KAUSHAL Applicant Harry G. Black, for the Applicant

HEARD: March 7, 8, 9, 10,11,14,15, 18, 2022

REASONS FOR JUDGMENT ON ABUSE OF PROCESS STAY APPLICATION J.M. Woollcombe J.

Introduction

[1] The applicant, Badal Kaushal, is a sergeant with the Peel Regional Police (“PRP”) He is charged with three counts of assault and one count of assault with a weapon, all alleged to have taken place during the course of his duties in 2017. He applies to stay the proceedings as a remedy for alleged violations of his ss. 7 and 10(b) Charter rights. He submits that the prosecution is an abuse of process.

[2] The applicant’s trial is scheduled to proceed on April 25-28, 2022. I heard this application as case management judge.

[3] Following concerns about Sgt. Kaushal being raised by members of his platoon, an Internal Affairs investigation was commenced and he was suspended from duty. The investigation was into conduct alleged to be both criminal and in violation of the Police Services Act (“PSA”). After some investigation had been conducted, but before an Investigative Report was drafted, the PRP “took criminal off the table”. The applicant was advised that he was required to provide a PSA compelled statement, which he did. He was reinstated and told of the decision to transfer him to a different division. It is clear that after Sgt Kaushal provided his compelled statement, the Investigative Report was going to conclude that the only substantiated allegation was minor, and involved him conducting an improper CPIC inquiry. All other allegations were to be found unsubstantiated.

[4] When the applicant went to clear out his locker, in preparation for leaving the division, he found a book in his mailbox. Believing that it had been put there to mock and humiliate him, he launched a workplace harassment complaint.

[5] The detective assigned to the Internal Affairs investigations subsequently completed his Investigative Report. Consistent with what had been anticipated when the applicant was reinstated, he found that all allegations, except the one relating to the CPIC inquiry, were unsubstantiated. The Investigation Report went up the police chain of command. Along the way, it was twice amended by the investigator’s detective sergeant, such that both the excessive use of force and the sexual harassment complaints were found to be substantiated.

[6] Upon his review of the second version of the Report, which substantiated the excessive use of force, the superintendent concluded that it revealed criminal conduct by the applicant. As a result, he immediately directed the commencement of a new and independent investigation by different officers. At the conclusion of the second investigation, the applicant was charged with the criminal offences that are before the court.

Positions of the parties

[7] The applicant submits that the police decision to re-launch the criminal investigation was only because of his workplace harassment complaint, which he says violates his s. 15 Charter rights. Further, he submits that this prosecution is abusive. He submits that it is abusive for the police to resile from their undertaking not to prosecute him, said to have been made when they “took criminal off the table”. He says he was compelled to provide a PSA statement relating to the very incidents for which he now faces criminal charges. This is said to be a violation of his right to silence and privilege against self-incrimination. Finally, it is submitted that during his police interview following his arrest, the police breached his s. 10(b) Charter rights and solicitor-client privilege because, while not audio-recorded, his meeting with counsel at the police station was video-recorded after he was told that the recording device was being turned off.

[8] The Crown submits that there is no evidence linking the renewed criminal investigation to the applicant’s workplace harassment complaint. The Crown says that the PRP reasonably decided that the results of the first investigator were wrong, and that a criminal investigation was warranted despite criminal having been “taken off the table”, albeit improperly. The renewed investigation was conducted independently, by new investigators, with no use of the compelled statement or the Investigative Report. The Crown says that there is no abuse of process in the decision to proceed with criminal charges. In respect of the videotaped interview of the applicant speaking with counsel, the Crown submits that there was no violation of s. 10(b) or of solicitor-client privilege.

Evidence and Factual findings

[9] I do not propose to review all of the evidence adduced on the application. I will, however, summarize the evidence that is relevant to my legal conclusions.

Background to the suspension and investigation

[10] In 2017, when the allegations are said to have taken place, the applicant worked as a uniform sergeant for PRP in D platoon of 21 Division. He had been promoted to this position and worked, along with the other sergeants, under Insp. Gonsalves. One of the other sergeants on the platoon was Sgt. Blashuk, who had worked there since March 2015.

[11] The applicant testified that over the course of his career as a police officer, which began in 1999, he had been subjected to many instances of racial discrimination. He provided specific examples of this, including other officers referring to him using racial slurs, giving him an inappropriate and racist nickname, and otherwise mocking him because of his background. These experiences made him feel hurt and like he did not belong. He said he was young and said nothing. I accept the applicant’s unchallenged evidence on this issue.

[12] The applicant described a specific incident that he said occurred in the fall of 2017 involving Sgt. Blashuk and him. He said that he went into the sergeants’ office and saw in his mail slot a book entitled “Top 50 Indian Luminaries Around the World”. He said he turned around and looked at Sgt. Blashuk and Sgt. Pipher. The applicant testified that he said, “What the fuck is wrong with you guys? Who would put this book here?” He said that Sgt. Blashuk smirked. Sgt. Kaushal made no formal complaint about this incident at the time.

[13] Under cross-examination, the applicant agreed that he had accused the other officers of putting the book there even though he had no idea whether they had done so. He also agreed that from early on, he had the impression that Sgt. Blashuk did not like him. At one point he said that as a result, he did not engage with Sgt. Blashuk and kept his distance from him. Later, he appeared to contradict this and said that he had tried to engage with Sgt. Blashuk, but had been ignored.

[14] Sgt. Blashuk denied the entire incident described by the applicant.

[15] I need not decide whether this exchange happened as the applicant alleges. I mention it for two reasons. First, it provides an indication of the poor relationship between the applicant and Sgt. Blashuk. Second, it is important because it was when the applicant found this same book in his mail slot on June 11, 2018, and again perceived it to be ridiculing him, that he made the workplace harassment complaint that is said by the defence to have caused the renewed criminal investigation of him.

[16] The defence position seems to be that Sgt. Blashuk did not like the applicant, set out to antagonize him, and then instigated the initial investigation of him . Sgt. Blashuk agreed that when Sgt. Kaushal came on the platoon as a new supervisor, his perception was that the applicant had been quite forward with some of the constables and so he had suggested to Sgt. Kaushal that he should stop “trying so hard”. At the same time, Sgt. Blashuk denied the various specific allegations of negative interactions with the applicant and denied the various things he was alleged to have said over the period that they worked together.

[17] Sgt. Blashuk testified that in the fall of 2017, he learned from constables on the platoon that some of them were uncomfortable doing calls with the applicant and about how they felt they were treated by him. He said these comments were unsolicited and were from officers he supervised. He provided an example of information an officer gave him during her performance review.

[18] The applicant was on a medical leave in February and March, 2018. His platoon was informed on March 18, 2018 that he was returning to work on March 27, 2018. Sgt. Blashuk testified that he was not happy that the applicant was returning to work and that neither were some of the constables. Officers continued to bring concerns to him. As a result, Sgt. Blashuk spoke to Insp. Gonsalves as he believed he was required to report the concerns of the constables on his platoon up the chain of command.

[19] On March 27, 2018, Insp. Andrews approached Sgt. Blashuk to discuss the concerns about the applicant’s return to work that had been conveyed to Sgt. Blashuk. On March 27, 2018, two female officers, Cst. Warren and Cst. Micallef, spoke to Insp. Andrews about the applicant having made inappropriate comments to them. They also raised their concerns about the applicant’s his use of force, which they had seen working with him.

[20] I can easily conclude that Sgt. Blashuk and the applicant did not get along well and did not like each other. It is clear that Sgt. Blashuk received troubling information about Sgt. Kaushal from constables in his platoon. As he was obligated to, he shared this with Insp. Gonsalves and then Insp. Andrews, who pursued the concerns by speaking personally with Csts. Warren and Micallef. Det. Blashuk’s involvement was, primarily and appropriately, as a conduit of relevant information, after which the matter, including whether there would be an Internal Affairs investigation, was out of his hands. His opinions had no bearing on what happened to the applicant in terms of suspension or the subsequent investigation.

Sgt. Kaushal’s suspension and the investigation

[21] On March 28, 2018, as a result of the information learned by Insp. Andrews, Police Chief Evans issued a Notice of Suspension (Exhibit 2) to Sgt. Kaushal. That day, the applicant was served with the Notice of Suspension and with two Notices of Investigation (Exhibits 1(a) and 1(b)). They set out that the Internal Affairs Bureau was conducting an investigation of him concerning: (1) “allegations of excessive use of force constituting the allegation of assault, that constitute an offence under the Criminal Code”; and (2) inappropriate conduct and comments made to subordinates, that may constitute an offence under the Police Services Act.

[22] Det. Bruce, an officer for 34 years who at the time was in working as a detective in Internal Affairs, was assigned to conduct this investigation. On March 28, 2018, he spoke briefly with the applicant, who was surprised by the allegations. The applicant suggested to him that the allegations flowed from politics on the platoon and that Sgt. Blashuk put other police officers up to complaining about him. The applicant felt that Sgt. Blashuk was influencing others on the shift against him.

[23] Det. Bruce was provided with an Allegation of Workplace Harassment and Misconduct document (Exhibit 10), prepared by Insp. Andrews, relating the applicant. While much of its content before me has been redacted, it sets out that Insp. Andrews met with Csts. Warren and Micallef, who had conveyed to him concerns of theirs and others on the about the applicant. Both constables told Insp. Andrews about the applicant having used what they said was excessive force and each provided an example. They advised that other officers on the platoon could give other examples about the applicant having used an unreasonable level of force.

Det. Bruce’s investigation

[24] Det. Bruce understood it was his responsibility to investigate and decide whether the matters he was investigating were substantiated. On March 29, 2018, Det. Bruce conducted audio recorded interviews of Csts. Warren and Micallef. In the days that followed, he conducted further interviews.

[25] Det. Bruce was told about an incident on July 23, 2017, in which Cst. Guhman and Cst. Lo had responded to a domestic call at which the applicant was also present. Cst. Guhman described how he had the accused up against the wall so that he could place handcuffs on him and how “out of nowhere” the applicant kicked the accused in the lower back area twice. Cst. Lo, who described the same incident, also alleged that the applicant had kicked the accused person twice in the back. Det. Bruce agreed that these statements gave him reasonable grounds to arrest the applicant for assault.

[26] Det. Bruce also interviewed Csts. Lumsden and Britton, who told him about another assault by the applicant alleged to have occurred on May 21, 2017. This was said to have occurred when the applicant believed that one of the women they were dealing with had taken his cell phone. The officers went to the door and the applicant used explicit language demanding his phone back. The women said that they had not taken the phone. Cst. Lumsden said that the applicant pushed one of them to the ground and had his Taser out. At some point, when one of the women was on the ground, he kicked her in the side. Cst. Britton also described the applicant screaming profanity at one of the women on the ground. Again, Det. Bruce agreed that he had reasonable grounds to arrest the applicant for assault.

[27] The evidence about the communications between Det. Bruce and his immediate Supervisor, Det. Sgt. Cloutier, is troubling.

[28] As a matter of practice, the investigator is responsible for keeping his supervising detective sergeant apprised of what is uncovered in the investigation. Det. Bruce said that he updated Det. Sgt. Cloutier with things he learned that he thought were important. Det. Sgt. Cloutier said that she expected to be told about important things. This all makes sense. Yet, when it comes to specifics and details of their communications, their evidence lacks any precision, and their documentation of their communications, in terms of notes, was completely absent.

[29] Det. Bruce said that he mostly updated Det. Sgt. Cloutier in one-on-one meetings. He had no notes of when their discussions were and no recollection about what he told her. While he said that he also provided updates during the Internal Affairs Thursday morning weekly meetings, both officers described these updates as being more about how many interviews had been conducted and what was outstanding, rather than the substance of what had been said in the interviews.

[30] The bottom line from Det. Bruce’s evidence was that he said he advised Det. Sgt. Cloutier of what was going on and told her important things if he thought she needed to be aware of them. When it came to any specific information, including about the assaults that the applicant was alleged to have committed, Det. Bruce was vague and evasive, repeatedly saying that he cannot recall what he told her or when. For instance, he insisted both that he “would have” told Det. Sgt. Cloutier about the interviews he conducted of Csts. Guhman and Lo, which he testified gave him reasonable grounds to believe that the applicant had committed an assault and that he did tell her shortly after. Yet, he could not say what he told her, or when, or if he ever even mentioned this at a Thursday morning meeting. His evidence was similar about what he did after the interviews of Csts. Britton and Lumsden. He “would have” told Det. Sgt Cloutier about the interviews, but did not recall and had no notes of what he said or when.

[31] Det. Sgt. Cloutier was equally vague and evasive as to details about the investigation that she learned from Det. Bruce. She agreed that it was her duty to supervise Det. Bruce, but said that she let him conduct the investigation. She did not expect to be told everything, but would have expected to be told important things, including if Det. Bruce uncovered evidence of assaults by the applicant on civilians. Det. Sgt. Cloutier has no notes of anything respecting Det. Bruce’s investigation from April 4 to June 27, 2018. Her evidence seemed to come down to her having received verbal updates from Det. Bruce, which she took at face value, but the details of which she cannot recall.

[32] While Det. Sgt. Cloutier reported to Supt. Higgs (who was the ranking inspector and next up from her in the Internal Affairs chain of command), neither one of them have any notes or any recall as to what they discussed about Det. Bruce’s investigation from its commencement to early May 2018. Supt. Higgs testified that he expected the detective sergeants to have an understanding of investigations as they developed. He said that if an investigator uncovered evidence that the applicant is alleged to have assaulted two civilians, he would expect the detective sergeant to be told. He also expected that he would be told at any “milestone or crucial point”. It was Supt. Higgs’ evidence that he was unaware of what Det. Bruce had been told in the interviews with Csts. Guhman and Lo and that Det. Sgt. Cloutier never conveyed this information to him. He said that he had no recollection of being told that any interviewed officers reported seeing the applicant commit assaults.

[33] In terms of the Thursday morning meetings at Internal Affairs, a subject about which there was a significant amount of evidence, my conclusions are as follows. The Internal Affairs office had a meeting every Thursday morning that was attended by the 10 detectives and the 2 detective sergeants, including Det. Sgt. Cloutier. It was also attended by then Supt. Higgs (as inspector) and legal counsel. If Supt. Mumby (the person to whom then Insp. Higgs reported) was available, he also attended. Each detective provided updates in terms of quantifiable information on their investigations. It is unknown what, if any, further discussions ever took place about the Sgt. Kaushal investigation.

[34] What is clear is that the weekly reports (in Exhibit 47) that were sent by Supt. Higgs to Supt. Mumby have nothing of a substantive nature about the allegations against Sgt. Kaushal, or the progress of the investigation, before May 4, 2018. They do not assist the inquiry into what Supt. Higgs and Supt. Mumby knew about the details of Det. Bruce’s investigation.

The early May decision to “take criminal off the table”

[35] The weekly report of May 4, 2018 in respect of the Sgt. Kaushal investigation included “Compelled to be scheduled”. This signifies that he was going to be required, under the PSA, to provide a statement to the investigator. For this to occur, a decision had to have been made that he was no longer subject to a criminal investigation.

[36] By May 7, 2018, Det. Bruce had conducted 22 officer interviews. These included interviews of Csts. Ghuman and Lo about the July 23, 2017 allegations and of Csts. Lumsden and Britton about the May 21, 2017 allegations. He had checked to see whether use of force reports were filed for these incidents and whether the duty inspector had been made aware of the incidents. The material he gathered, including the audio interviews, which were transcribed, was put into IAPro, a data management system used in the Internal Affairs investigations. He believed he had evidence of assaults.

[37] Yet, on May 7, 2018, Det. Bruce called the Police Association to advise that criminal charges in relation to the investigation of the applicant were “off the table” and to schedule his “compelled” PSA statement. There are significant contradictions in the evidence as to how the conclusion had been reached that criminal charges were “taken off the table”. As with the supervision of Det. Bruce’s initial investigation, there is an inexplicable absence of notes, documentation or memory of the relevant officers as to how or why this decision was made.

[38] There is no question that having directed that there be a criminal investigation, it was for the Chief or her designate to then decide that it would not be pursued.

[39] Det. Bruce’s evidence suggests that he did not really appreciate or understand the significance of a decision to conduct a compelled statement. He testified that when he called the Association to advise that criminal was being “taken off the table”, that did not mean that the applicant was not longer in criminal jeopardy. Rather, he understood that he had been told by Supt. Higgs to deal with the PSA investigation and that all he meant by the call was that he was not dealing with the criminal charges. As he explained things, he was conducting the investigation, became aware of the alleged assaults, mentioned this to Supt. Higgs and was told by him not to look into the criminal charges but to focus on the PSA investigation. Pressed as to why he would not agree that his call to the Association signalled that the criminal investigation was over, Det. Bruce was adamant that all he meant was that he was not looking into the criminal charges. He was unequivocal that all he was told by Supt. Higgs was that he should deal with the PSA charges, and not that it was Supt. Higgs or Supt. Mumby who directed him to take criminal charges “off the table”. Det. Bruce has no notes of his conversation with Supt. Higgs about this. Nor does Supt. Higgs.

[40] Det. Bruce’s evidence on this issue was both cagey and surprising, in that he purported not to have even understood the significance of “taking criminal off the table”. As an experienced Internal Affairs police officer, he must have known that scheduling a compelled interview because the criminal charges were “off the table” meant that a decision had been made that criminal charges would not be pursued. Yet, he was insistent that it only meant that he was not pursuing them. At the same time, and just as baffling, is that he was completely unable or unwilling to explain why or how the decision to take them “off the table” was reached.

[41] According to Det. Sgt. Cloutier’s evidence under the Crown’s cross-examination, Det. Bruce told her that he did not think he was going to substantiate the criminal charges and that he wanted to take a compelled statement. She said that, because she needed to know what to do with the criminal charges, she passed this information on to Supt. Higgs, advising him that Det. Bruce was not going to substantiate the criminal charges, and asking for direction that criminal be “taken off the table”. She said that she was told he would get back to her. She was later told by either Supt. Higgs or Supt. Mumby that criminal could be taken off the table and that a compelled statement could be scheduled. At a high level, this evidence as to the process is precisely what would have been expected.

[42] The difficulty is that this evidence does not sit well with what she said when cross-examined by the defence. At that time, when asked whether Det. Bruce had told her what he had learned in his investigation before the discussion about taking criminal “off the table”, she had no recollection and no notes. All she knew was that he had told her that he did not substantiate any allegation of excessive force. She has no notes or recollection of what she knew, or was told, as to why this was Det. Bruce’s conclusion. She agrees that it was her duty to satisfy herself that Det. Bruce’s decision was correct, but that she took no steps to do so. Eventually, she conceded that “maybe” she should have looked into it further. Ultimately, she acknowledged having made a mistake in not asking questions before simply agreeing with Det. Bruce’s conclusions. I conclude that Det. Sgt. Cloutier has no idea why the criminal charges were being “taken off the table” or how that decision was reached, and chose to make no inquiries.

[43] The evidence of Supt. Higgs and Supt. Mumby respecting how the decision was made by the Chief to “take criminal off the table” is just as troubling.

[44] Supt. Higgs testified that he had an obligation to know what Det. Bruce had uncovered. However, he has no recollection of ever being told by Det. Sgt. Cloutier about the kicks that Det. Bruce had learned about. Asked how he could not have been informed of this before having discussions about taking criminal “off the table”, he acknowledged that this was “an oversight.” I find this to be a serious understatement of the obvious. Beyond reading Insp. Andrews’ initial memo, Insp. Higgs appears to have known nothing about Det. Bruce’s investigation and to have asked no one who reported to him anything, insisting, instead, that it been incumbent on the investigator to fill him in on what had been discovered.

[45] Supt. Higgs also has no notes and no idea as to what he briefed Supt. Mumby about, or what discussion they had about “taking criminal off the table”. He would not say that he wasn’t told what Det. Bruce had learned, just that he has no recollection or notes of the specifics of what he knew. He did say, however, that he was directed by Supt. Mumby that “criminal was off the table” and that the compelled interview could take place.

[46] The contrast between Supt. Higgs’ evidence and Supt. Mumby’s raises further concerns. Supt. Mumby said that he met regularly with Supt. Higgs over the relevant time period and that Supt. Higgs never told him that the investigation had revealed any evidence of assaults having taken place. Asked how criminal came “off the table”, he said that he was advised by Supt. Higgs that Det. Bruce had done an investigation and found nothing of a criminal nature, and so he wanted to revoke Sgt. Kaushal’s suspension and bring him back to work.

[47] One difficulty with this evidence is that it appears to conflate the decision to rescind the revocation, after the applicant’s compelled statement, with the decision to “take criminal off the table”, which was made in early May. In my view, Supt. Mumby, who agreed that he should have been the person who advised the Chief respecting whether to take criminal “off the table” in early May, was at pains to distance himself from any knowledge of this decision or involvement in it, despite this clearly falling within his sphere of responsibility. In the end, Supt. Mumby was unable to provide any evidence about who took criminal “off the table”, going so far as to say that he had no idea how the Chief made this decision. When it was suggested that Supt. Higgs would never have approved criminal being “off the table” without his approval, Supt. Mumby was adamant that he was never notified of this and did not even learn that criminal had been taken “off the table” until June, when there was discussion about revoking the applicant’s suspension and bringing him back to work.

[48] Supt. Mumby’s evidence is, of course, in conflict with Supt. Higgs, who said he had Supt. Mumby’s approval to “take criminal off the table”, though I note that neither one has any notes about this important decision. But it is all the more surprising that Supt. Mumby claims to have had no knowledge of this, given the weekly reports of the Internal Affairs Thursday meetings, that he testified to having read. In fact, he received no less than five updates about the fact that criminal was being taken “off the table”: the May 4, 2018 weekly report included that the applicant’s “compelled to be scheduled”; the May 11, 2018 weekly report included: “compelled is scheduled for May 24”; the May 18, 2018 weekly report included” “compelled is scheduled for May 24”; the June 1, 2018 weekly report included: “Sgt. Kaushal attended for his compelled interview on May 24. Investigative report being drafted”; and the June 8, 2018 weekly report also indicated that “Sgt. Kaushal attended for his compelled interview on May 24”. Yet, Supt. Mumby testified to having no memory of ever reading about the compelled interview.

[49] It is astounding that Supt. Mumby claims to have had no knowledge that criminal was being taken “off the table” before June when the decision was made to revoke the applicant’s suspension and bring him back to work. This is not credible for at least three reasons. First, there is direct evidence that he was told in weekly reports that were sent to him and that he says he read, that the compelled interview was being scheduled and had been conducted. I cannot accept that he just failed to notice this. Second, his evidence defies common sense. Supt. Higgs did not have the authority to “take criminal off the table”. He needed direction from Supt. Mumby, who needed approval from the Chief. The only way the Chief would ever have approved this decision was after having been briefed by Supt. Mumby, which I find she must have been, as there is no suggestion that Det. Bruce, Det. Sgt. Cloutier or Supt. Higgs acted without authority and direction, which could only have come from Supt. Mumby. Finally, Supt. Higgs himself testified that he was told by Supt. Mumby that criminal could come “off the table”.

[50] Generally, I am extremely concerned by both the paucity of officers’ notes and their absent memories respecting the important decision to terminate the criminal investigation of the applicant. The request to “take criminal off the table” had to be made up the chain of command, all the way to the Chief, and the decision then had to be communicated back down that same chain of command. There is a gaping hole in the evidence as to how or why this decision was made. There has been a refusal by everyone involved to really take responsibility for their role in the decision. I find that there was a fundamental abdication of responsibility by all of the supervisors, from Det. Sgt. Cloutier to Supt. Higgs to Supt. Mumby. No one asked the relevant questions. No one engaged in understanding or analysing the reasons for the recommendation of Det. Bruce. The opaque and poorly documented process that led to the making of this very important decision is inexplicable and unacceptable.

[51] It was the applicant’s evidence that between his suspension from work, and being told that he was to provide a compelled statement on May 7, 2018, his life was shattered. He said that he felt paralysed and distraught. He could not sleep or eat properly and relapsed to drinking to numb the pain. He said he felt resentment towards what he believed was the cause of the suspension.

[52] On May 7, 2018, when he was told that criminal was “off the table”, he testified to feeling very relieved. While he was anxious about providing the compelled statement, he was less nervous than he had been.

Sgt. Kaushal’s compelled interview

[53] On May 24, 2018, Dets. Bruce and Lambert interviewed the applicant, with counsel present. A transcript of that interview has been filed as Exhibit 4.

[54] Immediately after the statement was taken. Dets. Bruce and Lambert briefed Supt. Higgs and Det. Sgt Cloutier about it. Det. Bruce said that he provided an overview of what the applicant had said about the various incidents. While he has no notes about the briefing, Det. Bruce said that at that point, he did not believe that the applicant should be charged with anything other than a PSA infraction for making a CPIC inquiry he should not have. He testified that neither Insp. Higgs nor Det. Sgt. Cloutier disagreed with his view at that time. While Det Sgt. Cloutier had no recollection of this meeting and no notes of it, her evidence was largely consistent with Det. Bruce’s.

[55] Supt. Higgs’ notes of this meeting reflect that he was told that the applicant’s use of force was “well-explained”.

[56] Once again, there seems to have been a failure, by any of the supervising officers, to understand what had been alleged against the applicant and what had been learned in the investigation. Perhaps for this reason, at this point, the view of all of the supervising officers seems to have been that Det. Bruce’s Investigative Report, which was not yet written, would find that the excessive force allegations under the PSA were not substantiated and that the only substantiated allegation was respecting the CPIC inquiry. Supt. Higgs testified that he briefed Supt. Mumby of this, which Supt. Mumby seemed to recall.

[57] By June 8, 2018, Supt. Higgs’ notes reflect that Supt. Mumby advised him that the applicant’s suspension was being revoked and he was being reinstated, effective June 11, 2018, and transferred to 11 Division. Supt. Mumby said that this decision was based on his understanding from Supt. Higgs that there was nothing of a criminal nature substantiated.

Preparation of the first Investigative Report

[58] Det. Bruce transcribed the applicant’s interview and then set to work to prepare his Investigative Report, writing in on June 20, 22, 25, 26 and 27, 2018. That day, he received an inquiry from Det. Sgt. Cloutier asking if he could have it completed for the next day. He did not recall this or why she would have been concerned about having it done for the next day. Det. Sgt. Cloutier had little explanation for why she wanted the report completed on these time lines, suggesting only that it had to be completed with 120 days, but recognizing that they were only at day 90.

[59] Much was made by the defence of Det. Sgt. Cloutier’s June request for the completed report. The defence suggestion is that by this point, the PRP had made a decision that, because of Sgt. Kaushal’s workplace harassment complaint of June 14, 2018, he would be criminally prosecuted and that they needed a report to be written to justify this. Det. Sgt. Cloutier was clear that her interest in having the Investigative Report completed was not because there had been any decision made that the applicant was going to be prosecuted and that she needed a report written that would provide a basis for this. In my view, there is absolutely no evidence from which to infer that her request had any connection whatsoever to Det. Kaushal’s workplace harassment complaint.

[60] Whatever the reason for the June 27, 2018 request for the report by Det. Sgt. Cloutier, there is no evidence that she made any further request of Det. Bruce, whose Investigative Report, Exhibit 5(b), was not completed and submitted to her until July 11, 2018. His conclusions, set out at the end of the report included:

• the allegation that the applicant exhibited sexual advances or made unwelcome sexual remarks towards Constable Warren is unsubstantiated;
• the allegation that the applicant used profane, abusive or insulting language to a member of the public of used unnecessary force against a prisoner or another person is unsubstantiated;
• the allegation that the applicant pressured members of his platoon to follow him and allow him to follow them on social media is unsubstantiated;
• the allegation that the applicant queried his uncle on CPIC amounts to discreditable conduct. Sergeant Kaushal readily admits to committing the offence under the PSA. This allegation is substantiated.

Reviews of Det. Bruce’s Investigative Report

[61] The evidence about what happened during Det. Sgt Cloutier’s review of the Report is not consistent.

[62] Det. Bruce’s notes on July 25, 2018 indicate “changes to Kaushal report”. According to Det. Bruce, after he submitted his Investigative Report to Det. Sgt. Cloutier on July 11, 2018, they had a conversation about it. While he could not recall exactly what she had said, his evidence was that she had a different point of view on the use of force allegations and unwanted comments allegations. She believed that they should be substantiated, provided him with her reasons for that belief, discussed it with him, and he agreed with her.

[63] How the report came to be changed was not made clear by Det. Bruce. Under cross-examination by Mr. Black, he said that he changed his initial report and substantiated the excessive use of force allegation (as in Exhibit 7(b)). He testified that he later realized that he had forgotten to also substantiate the sexual misconduct allegations, and so he did so in the third version of the report in September (Exhibit 8). Under cross-examination by the Crown, Det. Bruce initially denied that it was Det. Sgt. Cloutier who made the changes substantiating the excessive force, and said he had. He then changed his evidence, and said that he was sure they had discussed the change, but had no recollection of ever making the change himself and re-sending it to Det. Sgt. Cloutier.

[64] After receiving the Investigative Report, Det. Sgt. Cloutier reviewed it on July 11, 12 and 24, 2018. It was during this review that she first read the officers’ statements. She found the evidence of the officers was compelling and corroborative and believed that it substantiated the assault allegations. After weighing and analyzing the allegations for the first time, she was concerned.

[65] She spoke to Det. Bruce about her concerns. She has no notes of that discussion. She also had a conversation with Supt. Higgs, in which she told him that she thought the conduct was criminal and substantiated, even though Det. Bruce had not reached that conclusion. She had no notes of this conversation and could not say when it had been. Supt. Higgs’ testified that he recalled having a conversation with Det. Sgt. Cloutier on July 26, 2018, while she was reviewing Det. Bruce’s report. He also had no notes of this conversation, but testified that she had told him she had concerns about the conclusions, and that she realised there might be a criminal element to the allegations. Supt. Higgs said that Det. Sgt. Cloutier told him that she was still reviewing the Investigative Report and was not yet ready to give it to him for his review.

[66] Supt. Higgs testified that it is rare for an Investigative Report to be changed or sent back, which explains why he recalls his conversation with Det. Sgt. Cloutier. He said they discussed how she might address her concerns in the days following, when he was going on vacation (from July 27 to August 12, 2018).

[67] Det. Sgt Cloutier said that, because she interpreted the evidence in the Investigative Report differently from Det. Bruce, she changed the Report to reflect that the excessive force allegations were substantiated. She sent it to Supt. Mumby (because Supt. Higgs was on vacation) on July 27, 2018 (Exhibit 7a and 7b). I find the evidence of Det. Sgt. Cloutier and Supt. Higgs as to how the Investigative Report came to be changed by Det. Sgt. Cloutier to be largely similar and believable, and reject Det. Bruce’s evidence that he made the change. Nothing really turns on this in any event.

[68] Supt. Mumby testified that on July 31, 2018, he reviewed the Investigative Report. He said that he had serious concerns that “leapt off the page” at him. It was his evidence that, up to that point, he had not had any concerns about the investigation and that no one had described it to him as involving criminal conduct. That day, he set out in his notes what his concerns were. He spoke to Acting Chief McCord and then to counsel for the PRP, Ms. Wilmot.

The “Noble/ Mavity investigation”

[69] Supt. Mumby’s view was that the allegations against the applicant needed to be re-investigated. He was in charge of this fresh investigation (the “Noble/Mavity investigation”), but created a chain of command in which investigators would report to Det. Sgt. Baxter, in Internal Affairs.

[70] Almost immediately, Insp. Noble, who at the time was a staff sergeant outside Internal Affairs, was directed to begin this re-investigation. On August 2, 2018, Insp. Noble was asked to try to locate a Mr. Aja, the alleged victim of the July 23, 2017 assault allegation against the applicant. He learned that Mr. Aja had been deported in May 2018. On August 13, 2018, Insp. Noble was assigned to investigate five additional occurrences to determine if there had been excessive force used by the applicant. He was to be assisted by Det. Mavity. They were to focus on whether any allegations warranted criminal charges.

[71] The evidence is clear that Insp. Noble and Det. Mavity were selected by Supt. Mumby. Supt. Mumby knew Insp. Noble to be very experienced and very ethical. He knew Det. Mavity was a detective in the homicide bureau and of very high calibre. Their work was to review the investigation conducted by Det. Bruce, although they were not provided with his Investigative Report or the applicant’s compelled statement. They were told that if they formed reasonable grounds to believe that there were criminal offences, they were to seek Crown advice.

[72] The Noble/Mavity investigation was conducted over the weeks that followed. Without doubt, these officers took investigative steps that had not been taken by Det. Bruce, and obtained evidence he had not obtained. At the same time, the nature of the allegations and the critical evidence supporting the incidents on May 21 and July 23, 2017 remained largely the same identified by Det. Bruce.

[73] As a result of the Noble/Mavity investigation, the investigators formed reasonable grounds to believe that criminal assaults had been committed. On September 6, 2018, Supt. Higgs requested a meeting for Crown advice from the Crown Law Office Criminal (Exhibit 27). That meeting took place on September 11, 2018. After that, Insp. Noble met with Supt. Mumby.

[74] The PSA s. 76(3) requires that when a complaint about a police officer is to be investigated, the Chief shall promptly give notice of the substance of the complainant to the officer, unless doing so might prejudice the investigation. In this case, the applicant was not notified that the criminal charges were being re-investigated. He testified that no one told him of the re-investigation when he provided a statement on his workplace discrimination complaint on August 23, 2018. He did not become aware of the investigation until he was told he was to be suspended from duty for a second time. He testified that this news made him feel like he was drowning and could not catch his breath. He described feeling debilitated and paralysed.

[75] On September 12, 2018, the applicant was re-suspended. Supt. Mumby explained that the Noble/Mavity investigation was finishing and there were grounds for an arrest. Effectively, he said that the applicant had been given the benefit of the doubt and not re-suspended during this investigation. On November 16, 2018, the applicant was arrested and charged with the outstanding offences.

Sgt. Kaushal’s post-arrest interview

[76] Following his arrest, the applicant attended at Internal Affairs with counsel. After speaking with counsel, he was interviewed by Det. Mavity, Det Sgt. Noble and Acting Det. Sgt. Seward. In the course of that interview, the applicant repeatedly said that he did not wish to make a statement. When it came to a discussion about the dynamics on the shift, he said, “I want to talk to you guys about the dynamics of who followed who and how things were occurring on that shift”, but that counsel had advised against it. During the discussion that followed, the applicant asked to speak with counsel again because he was being asked about things not related to the criminal charges and wanted advice before speaking about the shift. While Det. Mavity and Det Sgt. Noble were of the view that there had been no change in the applicant’s jeopardy, they decided to permit the applicant to have a further consultation with counsel.

[77] Counsel was at the division and was permitted into the interview room with the applicant for a discussion that lasted just over four minutes. There was no audio of that meeting captured by anyone outside the interview room or ever recorded. Nor was there anyone who watched the meeting from another room. However, the meeting was videotaped, while counsel and the applicant were in the room alone, believing that the video recorder had been turned off. This is the subject of the applicant’s concern about a breach of s. 10(b) of the Charter and a breach of solicitor client privilege. I will address the relevant facts more fully in my legal analysis of this issue.

The applicant’s reinstatement and workplace harassment complaint

[78] I will now set out the chronology of facts related to the applicant’s workplace harassment complaint. I do so in some detail because of the applicant’s position that this was a “sham” investigation, that his complaint was never taken seriously by the PRP and that it was the reason for the fact he was criminally charged. As set out below, I do not accept the defence position that this complaint was the reason for the Noble/Mavity investigation or the reason he was charged.

[79] While under his initial suspension, the applicant was required to sign into 22 Division each day. On June 8, 2018, when he was signing in, he was told by Superintendent Blom that his suspension was being rescinded and that he was being transferred to 11 Division. He needed to clear out his belongings. When he went into the sergeants’ office for his mail, he saw in his mail box the same book he had seen previously there entitled: “Top 50 Indian Luminaries Around the World”. Infuriated and angry, he wondered “when this type of behaviour was going to stop”. He felt that the book was taunting and mocking him, and like people were “trying to bring him down when he just wanted to give back to the community”. He felt he needed to stand up for the “right thing”. He took the book, cleared out his locker and went home. He needed to think about whether to complain about this or let it go. After reflecting, he sent an email to Supt. Higgs.

[80] That email, dated June 14, 2018, is contained in Exhibits 14 and 18. The applicant requested that the behaviour of leaving this book be looked into as workplace harassment and discrimination. He advised that he had put the book in a bag in case it needed to be processed by FIS (Forensic Identification Services). The applicant did not return to work after this. He was placed on a stress leave for 30 days, after which he was diagnosed with PTSD and severe depression.

[81] On June 14, 2018, about two hours after receiving the applicant’s complaint, Supt. Higgs responded to him, assuring him that the details he had provided would be presented to the Human Rights Complaint Intake Committee for their consideration and direction. Supt. Higgs forwarded his response to the applicant on to Supt. Mumby, seeking direction.

[82] The next morning, Supt. Mumby asked Supt. Higgs to ensure that all pertinent information be provided to the Chair of the Intake Committee for review. This happened, and on June 15, 2018, Linda McDowell forwarded the applicant’s complaint to members of the Intake Committee. The Committee met on June 20, 2018 and directed that an investigator be assigned. I view the PRP initial response to the complaint as fair and appropriate.

[83] On June 20, 2018, Supt. Higgs asked Det. Sgts. Cloutier and Baxter to assign an investigator to facilitate the FIS processing of the book. Supt. Higgs acknowledged being aware of the well-established PRP policy not to use fingerprints of employees for discipline purposes. He was asked why, given this, there was any discussion at all about the issue of whether there were fingerprints on the book. Supt. Higgs explained that the police were not sure whether there would be any ability to use prints, if they were found, but thought the first step should be to determine whether there were prints at all. At the same time, they were preparing to do a canvass of the Division to determine who had left the book in the applicant’s slot.

[84] On June 20, 2018, Det. Sgt. Cloutier assigned Internal Affairs investigator Det. Seward to retrieve the book and deliver it to FIS for processing. Det. Seward acknowledged not being on the roster of investigators contemplated in the PRP Directive on Workplace Discrimination and Harassment (Exhibit 33) and so not having received specialized training in conducting these investigations.

[85] On July 24, 2018, Det. Seward advised Det. Sgt. Cloutier that FIS had identified on the book four fingerprints suitable for analysis. He further reported that there was no video of the sergeants’ office to review and that there was no ability to determine when the book had been placed in the mail slot. He raised the challenge of potential privacy concerns were employee records to be used for a fingerprint comparison.

[86] Det. Sgt Cloutier forwarded this information to Supt. Higgs for direction. On July 25, 2018, Supt. Higgs forwarded this information to Deputy Chief Jarvis, the head of the Intake Committee, copying Supt. Mumby (Exhibit 23). Supt. Higgs explained that he sought Deputy Jarvis’s direction because he was on the Intake Committee and the Committee’s expertise was needed.

[87] On August 2, 2018, Supt. Mumby and Ms. Wilmot advised that there would be no comparison of fingerprints on the book with any PRP employees. Det. Higgs directed Det. Sgt. Cloutier that the applicant was to be interviewed to determine whether there was any specific person he suspected. Failing identification of a specific person, Supt. Higgs said that he would send an email to all staff sergeants and sergeants asking it they had any information about the movement of the book.

[88] Dets. Seward and Harloff interviewed Sgt. Kaushal on August 23, 2018. The transcript is Exhibit 34. In the interview, the applicant described that the June 2018 incident had been the second time he had found the book in his mailbox, the first having occurred in October or November 2017. When asked about the first occasion, the applicant said that at the time, he had a conversation with Sgt. Pipher, but did not allege that he had ever had a conversation about the book with, or in the presence of, Sgt. Blashuk. He said that when he saw the book in his mail slot in the fall of 2017, he made no complaint about it and put it on the computer desk in the sergeants’ office. He explained that he perceived this as his heritage being mocked. He was told that there were prints on the book, but that, for privacy reasons, they could not be used to identify who had touched the book. This obviously frustrated the applicant. He was asked if he had any differences with anyone on 21D shift and identified Det. Blashuk. The applicant suspected that the book had been placed in his mail slot by someone on his shift and that it could have been someone involved in his PSA investigation.

[89] Sgt. Kaushal testified that his impression was that Det. Seward was making an honest effort at investigating his complaint. He was not friends with Det. Seward and had no issues with their relationship. The applicant did not ask Det. Seward to provide him with an update after, and agreed that he could have.

[90] While Det. Seward drafted a questionnaire to be sent out about the book, prior to that happening, at the 21 Division briefing on September 10, 2018, the plan for the questionnaire was shared. Sgt. Blashuk immediately identified himself as the person who put the book in the mail slot. As a result, Det. Seward and Det. Sgt. Baxter interviewed him on September 10, 2018.

[91] Under cross-examination by the defence, Det. Seward was asked about his relationship with Sgt. Blashuk. He described them as having a friendly relationship. They had worked together before 2018 both at 22 Division at the start of Det. Seward’s career and in the Criminal Investigation Bureau (“CIB”) between about 2006 and 2008. In the mid 2000s, they took a golf trip together, along with a group of 10 to 15 people from 22 Division. Det. Seward also knew Sgt. Blashuk’s wife, Lori Blashuk, who was an investigator in Internal Affairs at the time, albeit on a different team. Det. Seward had never been to the Blashuk’s home nor had either of them at his home. He had never been out or socialized with them, other than at work functions. Det. Seward did not see himself in a position of conflict when he was asked to conduct this interview. On the basis of the evidence, I agree that he was not in a conflict of interest.

[92] Counsel for the applicant suggested to Det. Seward that during the interview, there was some laughing. There is no question that the audiotaped recording (Exhibit 35) has brief laughter audible during the introductions, at the beginning. Det. Seward offered a possible explanation for this, although he did not really know the cause of the laughter. I am not persuaded that this brief laughter affords any evidence that the officers failed to take the interview, or its subject matter, seriously. Both interviewers asked appropriately serious questions and Sgt. Blashuk responded with an appropriate degree of solemnity.

[93] In terms of content of the interview, Sgt. Blashuk told investigators that he had seen the book in the applicant’s mail slot in the fall of 2017 and believed that it belonged to him. During the period when the applicant was not at work (because of his medical leave or suspension), Sgt. Blashuk was tidying up and came across the book. He placed it in the applicant’s slot because, having seen it there before, he believed it was his. Sgt. Blashuk said he did not do this with any racist intent.

[94] After the interview of Sgt. Blashuk, Det. Seward prepared an Executive Summary of his investigation.

[95] Det. Seward testified that it was not his role to determine whether Sgt. Blashuk was being truthful or not. Nor was it for him to determine if this was workplace harassment. Pressed by counsel for the applicant as to why he had not gone back to seek the applicant’s response to Sgt. Blashuk’s statement, he explained that this was not normal practice and that he was not asked to do so by the Committee. He was assigned to determine how and why the book was placed in the applicant’s mail slot and to ask about Sgt. Blashuk’s intent. He knew that the facts he gathered would be passed to the Committee to resolve the complaint.

[96] On September 12, 2018, a representative of the Police Association sent an email to Det. Seward asking, on Sgt. Kaushal’s behalf, for an update on the investigation. Det. Seward immediately forwarded this to Supt. Higgs. Supt. Higgs responded to the Association representative on September 13, 2018 and said that the investigation was complete, that the Report was being finalized and that as soon as it had been reviewed by the committee, the applicant would be provided with the outcome by Tamara Wilson, the Manager of Labour Relations in the Human Resources Department of PRP.

[97] While undated, the Executive Summary was completed on October 3, 2018. According to Supt. Higgs, the structure for review of complaints is that Reports are prepared by the assigned detective, reviewed by the detective sergeant, the inspector, Supt. Mumby and sent to the Chief. The Chief decides how to resolve the complaint. Once she approves it, the Report goes to Deputy Chief Jarvis as Chair of the Workplace Harassment Committee. The role of the Committee is to review the circumstances and, whether it is validated or not, to liaise with the investigator and complainant to bring the complaint to a close.

[98] On October 15, 2018, the Chief’s administrative assistant sent an email to Supt. Mumby indicating that the Chief had signed off on the Report. This was forwarded to Supt. Higgs, who then forwarded it to Det. Sgts. Cloutier and Baxter, as well as Det. Seward and Tamara Wilson. He asked Det. Seward to liaise with Ms. Wilson to coordinate the communication of the investigative findings. Supt. Higgs said that after that, the Report went to Human Resources and would only come back to Internal Affairs if they needed something reinvestigated or changed. It never came back to him.

[99] When the applicant was advised of the results of the investigation by the Police Association representative, he said that they were both shocked. A Memo from Tamara Wilson to the applicant, dated November 9, 2018, sets out the results of his Workplace Harassment complaint (Exhibit 30). The applicant says that this was emailed to him but that he never received the Investigative Report or Investigative Summary. He was angry when he read the Memo because he knew it was a lie because Sgt. Blashuk was aware of how upset he had been when he first saw the book in his mail slot.

[100] The applicant testified that he believes that the only reason the PRP changed its position respecting the criminal investigation was because of his harassment complaint. Challenged that there was no basis for this view, he said that it was his “interpretation of the events”.

Analysis

The test for a stay of proceedings

[101] The applicant seeks a stay of the proceedings on the basis of an abuse of process. A stay of proceedings is “the most drastic remedy a criminal court can order”. It halts the prosecution and frustrates the truth-seeking function of a trial. Victims are deprived of their day in court: R. v. Ke, 2021 ONCA 179 at para. 74; R. v. Babos, 2014 SCC 16 at para. 30; R. v. Regan, 2002 SCC 12 at para. 53.

[102] While it is “rare” to grant a stay for abuse of process, there are two categories of cases where a stay may be warranted. The first category are cases in which state conduct compromises the fairness of an accused’s trial. The second, or residual category, are cases where state conduct creates no threat to trial fairness, but risks undermining the integrity of the judicial process: Babos, at para. 31. This case falls into the residual category.

[103] The test for a stay is the same for both categories, with three requirements:

1. There must be prejudice to the accused's right to a fair trial or 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 steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits".

[104] In the residual category of cases:

…the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system.

[105] In Babos at para. 36, Moldaver J., writing for the majority, repeated what was said in Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (S.C.C.) about the residual category of cases:

36 For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well — society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para. 91]

[106] Moldaver J. went on to explain at paras. 37-38 that:

37 Two points of interest arise from this description. First, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example (see, e.g., R. v. Keyowski, [1988] 1 S.C.R. 657 (S.C.C.)), as does using the criminal courts to collect a civil debt (see, e.g., R. v. Waugh (1985), 68 N.S.R. (2d) 247 (N.S. C.A.).

38 Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.

[107] Moldaver J. also emphasized the importance of balancing at the third stage of the test. When the residual category of cases is invoked, balancing takes on added importance because there are two competing ways to protect the integrity of the system: staying the proceedings or having a trial on the merits despite the impugned conduct. The nature and seriousness of the state conduct must be carefully weighed as the more serious the state conduct, the greater the need to dissociate the administration of justice from it: Babos, at para. 41.

[108] I turn now to the state conduct that is said here to risk undermining the integrity of the judicial process.

The decision of PRP to charge the applicant, a decision alleged to be because of his workplace discrimination complaint

[109] The applicant submits that there is powerful circumstantial evidence that the PRP made the decision to re-investigate, and then to charge him criminally, only because of his workplace discrimination complaint made on June 14, 2018. As I understand the defence position, it is that members of the PRP were angry and concerned about the workplace discrimination claim, and so sought to silence or discredit the applicant by charging him criminally.

[110] The defence suggests that Supt. Mumby led the PRP to change course. It is submitted that Supt. Mumby knew the extent of the allegations uncovered by Det. Bruce in June 2018 when the applicant was reinstated. The defence disputes that he first learned about the allegations on July 31, 2018, as he testified. The applicant argues that because of his human rights complaint, Supt. Mumby enlisted all of the other officers to blame Det. Bruce for not having properly shared his findings up the chain of command. This allowed Supt. Mumby to justify the re-investigation on the basis that no one, including him, had really appreciated the scope of Det. Bruce’s findings, either when they took criminal “off the table”, or when they later decided to reinstate him. In a related argument, the defence submits that the harassment investigation that was conducted by Det. Seward was a “sham” and that PRP never took the applicant’s allegations seriously.

[111] With respect, there is no direct evidence that the PRP decision to re-investigate the criminal allegations had any connection to the applicant’s workplace harassment claim. Nor do I accept that an inference can reasonably be drawn, in all of the circumstances, that Supt. Mumby had been prepared to deliberately turn a blind eye to what he knew was criminal conduct until the workplace harassment complaint was made, at which point he decided to follow the retaliatory response alleged, and to have the applicant criminally charged. In reaching this conclusion, I rely on the following:

[112] First, Supt. Mumby’s response to the workplace harassment complaint reveals not that he was angry or annoyed but, rather, that he, and indeed the PRP, responded appropriately and did what was required of them. There is no basis to conclude, as the applicant suggests, that this investigation was a “sham” and that the PRP police focus had turned to criminally charging the applicant. In support of this conclusion, I note:

• Supt. Higgs advised Supt. Mumby of the complaint immediately upon receiving it. Supt. Mumby, in turn, ensured that the Human Rights Complaints Intake Committee was advised, which they were on June 15, 2018. Supt. Higgs immediately had an Internal Affairs detective assigned. While Det. Seward was not on the roster of human rights investigators, and so never had specialized training in the area, I do not see this as significant. There is no suggestion that his investigation differed in any way from what a trained investigator would have done. These preliminary steps were responsive and entirely appropriate;
• The issue of determining whether there were fingerprints on the book, and whether, if there were, they could be compared with the fingerprints that PRP had on file for its members, in order to determine who had handled the book, was not clear cut. The applicant had indirectly raised this possibility in his complaint. It took time and legal advice to resolve this issue. I see nothing unreasonable in the steps or pace taken;
• The decision to interview the applicant was a reasonable one. The interview was fairly and properly conducted, as the applicant himself acknowledged. It further revealed the serious approach to the investigation taken by Det. Seward and Internal Affairs;
• Once Sgt. Blashuk self-identified as the person who had put the book in the applicant’s mail slot, immediate arrangements were made for him to be interviewed. I see no conflict of interest in Det. Seward interviewing Sgt. Blashuk. While they had a friendly relationship, they were not socially close. Det. Seward testified that he appreciated the potential for conflicts of interest to arise when interviewing people he knew, and had, in the past, excused himself from interviews when he perceived a conflict. Nothing suggests he was in a conflict in this case;
• While there is some laughter during the initial introduction portion of the interview of Sgt. Blashuk, this causes me no concern about the serious approach that was taken by the officers to the substantive parts of the interview that followed. The applicant acknowledged that that there was nothing about the interview that made him believe Det. Seward’s investigation was not genuine;
• While the applicant takes issue with the Executive Summary of the investigation, authored by Det. Seward, and accepted by the Chief, it was not, ultimately, a matter over which Internal Affairs, including Supt. Mumby, had authority. Det. Seward was the investigator who reported up his chain of command in Internal Affairs. But it was the Workplace Harassment Committee, chaired by Deputy Chief Jarvis, that was responsible for validating the report, or not, and for determining whether to bring it to a close and what further steps, if any, were to be taken;
• I acknowledge that PRP Directive on Workplace Discrimination and Harassment sets out that investigations are to be conducted expeditiously and shall normally be completed within 60 days. If it is not completed in 60 days, a written report regarding the status of the investigation is to be issued. In this case, the 60 day mark was August 13, 2018, by which point the investigation was not compete. No interim report was issued. However, it was no mystery to the applicant that the PRP investigation was taking longer than the 60 days. He was not interviewed until August 23, 2018. It is noteworthy that there were also no inquiries made by the applicant as to the status of the investigation or its projected completion, not by the applicant at his interview on August 23, 2018, and not thereafter. In fact, as soon as an inquiry was made by the Police Association representative on the applicant’s behalf on September 12, 2018, he was immediately advised that the investigation was complete, that the report was being prepared and that he would be informed of the outcome. I do not, in these circumstances find anything untoward about the speed or manner of the investigation;
• While I appreciate that the applicant does not accept the explanation of Sgt. Blashuk for having put the book in his mail slot, and is not satisfied with the results of the investigation, any complaint he may have lies with the Human Rights Committee, the experts on these complaints and the body responsible for their resolution, and not with Internal Affairs, the unit responsible for his criminal charges.

[113] The evidence discloses that the applicant’s workplace harassment complaint was taken appropriately seriously by the PRP. A proper, fair and efficient investigation was conducted to determine how and why the book, which had so offended and upset the applicant, ended up in his mail slot. Manifestly, this was not the “sham” investigation alleged by the applicant.

[114] Second, and more importantly, while the July 31, 2018 decision by Supt. Mumby that the criminal charges should be re-investigated occurred, chronologically, after the workplace harassment complaint, there is nothing, individually or cumulatively, that supports a conclusion that it was the workplace discrimination complaint that led Supt. Mumby to direct the new investigation of the criminal allegations. Nor is there any basis to say the complaint is the reason for the charges. For the reasons I have set out, I do not accept Supt. Mumby’s denial of having known, before the applicant was reinstated in June, that the criminal allegations had been taken “off the table”. However, rejection of this aspect of Supt. Mumby’s evidence does not lead me to reject the balance of his evidence.

[115] I accept that Supt. Mumby’s belief was, at all times, that Det. Bruce’s investigation had not uncovered any evidence of criminal conduct or of the excessive use of force. The failure of Supt. Higgs to properly brief Supt. Mumby about the Det. Bruce investigation is very concerning. It is likely because Supt. Higgs had not been properly briefed by Det. Sgt. Cloutier who, in turn, had not appreciated from Det. Bruce what he had found. To be clear, I do not attribute the blame for this to Det. Bruce, as all of his superiors appear to do. Nor is it necessary to make specific findings as to who is to blame. I think there is ample fault to be shared, both by all those responsible for sharing information up the chain of command, and by those up the chain, who should have asked many more questions of those providing information. Each of these supervising officers was duty-bound to ask basic probing questions, and failed to do so. Had this been done, in my view, there would have been an appropriate refusal of Det. Bruce’s request to “take criminal off the table” and there would have been a proper first investigation into the criminal allegations.

[116] Ultimately, I need not decide, precisely, what details Supt. Higgs and Det. Sgt. Cloutier knew before Det. Bruce submitted his report on July 11, 2018. Whatever they knew, I am satisfied of Supt. Mumby’s genuine surprise when he read the Investigative Report submitted by Det. Sgt. Cloutier to him. While he knew criminal had been taken “off the table” and that the PSA allegations were likely to be found unsubstantiated, he never understood that there were officers who reported having witnessed criminal assaults. Upon learning this, for the first time when he reviewed the Investigative Report, he immediately recognized the problems with it.

[117] That Supt. Mumby was surprised and concerned by what he read is evident by the fact that he took immediate actions, as I have already outlined, including contacting the Deputy Chief and PRP legal counsel. In my view, these actions reflect the serious concerns he had when he first came to appreciate that the applicant had been absolved of what appeared to him to have been criminal conduct. His decision to direct and oversee the integrity of the independent Noble/Mavity investigation further supports a conclusion that he was not merely retaliating against the applicant for his workplace harassment complaint. He was ensuring that a thorough investigation was conducted into these serious allegations.

[118] The Noble/Mavity investigation was conducted independently, thoroughly and fairly. For instance, there was no evidence from either Insp. Noble or Det. Mavity to suggest that they were subjected to any improper influence or interference by anyone, including Supts. Mumby or Higgs or anyone else. The meetings they had with Supt. Mumby and Higgs were to update them and did not seem out of the ordinary to the investigators. Further, it is significant that the investigators were not provided with the applicant’s compelled statement and there is no evidence that they had any knowledge of its contents. They were not given Det. Bruce’s Investigative Report. Moreover, they were told that when their investigation was complete, they were to seek Crown advice before any charges were laid. All of these factors point strongly toward an independent investigation, and away from the applicant’s suggestion that PRP senior officer wanted the applicant charged criminally because of his complaint.

[119] In conclusion, the record does not support the defence allegation that Supt. Mumby’s decision to direct the Noble/Mavity investigation was because of the applicant’s workplace harassment complaint. Nor does it support a finding of any ulterior motive or impropriety in the conduct of the investigation or decision to charge the applicant.

The decision of PRP to resile from the decision not to pursue criminal charges

[120] The applicant submits that even if I am not persuaded that PRP only re-investigated the criminal charges because of the workplace harassment complaint, the prosecution is still an abuse of process because the PRP resiled from their undertaking not to pursue criminal charges and because the taking of the applicant’s compelled PSA statement violated his right to remain silent and his privilege against self-incrimination.

[121] In his decision in R. v Vander Wier, 2013 ONSC 6254, [2013] O.J. No. 6254 (S.C.J.), Hourigan J., as he then was, considered similar factual circumstances and legal arguments to those made in this case. In Vander Wier, the accused police officer also alleged that it was an abuse of process for him to face a trial on allegations that he had been cleared of multiple times, particularly when there had been no new investigation [1]. Hourigan J. dismissed the accused’s stay application, for compelling reasons upon which I rely, recognizing that his decision was written before the Supreme Court of Canada’s decision in Babos.

[122] A decision of the Crown to prosecute, when there has been a prior decision not to prosecute, could lead to a conclusion that the state conduct is offensive to societal notions of fair play and decency, such that proceeding with a trial would harm the integrity of the justice system. However, this is not always the case. Deciding this question turns on the particular facts of the case. In this case, the following factors point strongly against a finding of an abuse of process:

• As I have already explained, I find no connection between the decision to re-investigate the applicant and his workplace harassment complainant. Nor do I conclude that the decision to pursue criminal charges arises from any bad faith on the part of PRP. The initial PRP Internal Affairs decision not to charge the applicant was due to the fact that the investigation was not adequately overseen or supervised. But that does not lead, logically, to a conclusion that the decision to re-investigate was for improper considerations or ulterior motives. It was not;
• The fact that the police changed their minds about proceeding with criminal charges does not make the decision to do so abusive. Police have the discretion to reconsider their position about whether to pursue a charge, particularly if the initial decision was “unwise”. Doing so, “is not in and of itself an affront to the community’s sense of fair play”: R. v. J.W., [2004] O.J. No. 3591 (C.A.) at paras 10-13; Vander Wier, at para 23;
• The fact that the applicant was relieved at being told, in June 2018, that he was not going to be criminally charged, and was later deeply distressed when the police changed their minds, does not necessarily lead to a finding of abuse of process. Being “lulled into a false sense of security” by believing that the criminal charges were not being pursued, when they later were, is not a sufficient basis for a stay on the basis of an abuse of process: R. v. C.(D.A.), [1996] B.C.J. 583 (C.A.) at para. 7; Vander Wier at para. 24;
• This is not a case in which there was a quid pro quo in the initial PRP decision to take criminal “off the table”. The applicant did not take any steps in reliance on an agreement that he would not be prosecuted. He did not, for example, act on the PRP decision in any material way, such as by entering a guilty plea on the basis of it: R. v. Burton, 2000 149 C.C.C. (3d) 521 (Nfld.Sup.Ct). Nor did he take specific action in a regulatory context on the basis of representations that if he did so, there would be no prosecution: Re. Abitibi Paper Company Limited and The Queen (1979), 47 C.C.C. (2d) 487. He did nothing apart from what was statutorily required of him when advised of the PRP decision: Vander Wier at para. 17;
• In terms of prejudice to the applicant from the police changing their minds, it is important to differentiate between prejudice to the applicant’s ability to make full answer and defence (which is not alleged here and which does not exist) and prejudice that results from the fact that he has been charged. The applicant testified about his severe reaction to being advised in September 2018 that he was being re-investigated and suspended for a second time. He felt upset that the PRP had told him that they looked into his conduct, made a decision, and that things then changed as a result of his workplace harassment complaint. As I have already explained, while the applicant makes this connection, the evidence does not support it. In my view, the applicant’s feelings of stress, frustration and humiliation flow much less from the decision to re-investigate and charge him, and more from the fact that he has been charged at all. Without doubt, his depression and stress increased when he was notified that he was being suspended for the first investigation on March 28, 2018. There is no evidence that the decision in June not to proceed with a criminal investigation dramatically changed his situation. In fact, he continued to suffer over the period that followed, experiencing stress that was likely exacerbated by finding the book in his mail slot again and his perception that he had been the victim of workplace harassment. The applicant was unaware of the re-investigation into the criminal charges until September 11, 2018, when he was advised of the new investigation and his second suspension. He was charged a month later. While I accept that he found the re-investigation and charges very upsetting, I see this prejudice as resulting from the fact of being charged, as opposed to the fact that the PRP had made the decision to re-investigate the matter, a decision he was unaware of until September 11, 2018: R. v. Regan, 2002 SCC 12 at para. 94; Vander Wier at para. 26.

[123] The applicant’s most compelling argument in support of a finding of abuse of process from the police decision to re-investigate is that having taken criminal “off the table”, the PRP used the PSA to compel him to provide a statement about the very allegations for which he now faces criminal charges, and that in so doing, his right to remain silence and privilege against self-incrimination were violated.

[124] It is well established in Canadian law that s. 7 of the Charter protects, as a fundamental principle of justice, the principle against self-incrimination. As was explained in R. v. White, [1999] S.C.J. No 28 at para. 41, this organizing principle of criminal law is that:

…an accused is not required to respond to an allegation of wrongdoing made by the state until the state has succeeded in making out a prima facie case against him or her. It is a basic tenet of our system of justice that the Crown must establish a "case to meet" before there can be any expectation that the accused should respond: P. ( M.B. ), supra, at pp. 577-79, per Lamer C.J., S. ( R.J. ), supra , at paras. 82 and 83, per Iacobucci J.

[125] The principle is “closely connected to the right to silence of a person in jeopardy in the criminal process”, a right also protected under s. 7. The principle against self-incrimination is embodied in several specific procedural protections in the Charter, with s. 7 providing residual protection: R. v. A.(R.T.), [2002] O.J. No. 443 at paras. 14-15. The principle against self-incrimination demands different things at different times, with context being critical.

[126] It is well-settled that, as a result of s. 7, statements made to the police under compulsion are inadmissible at the criminal trial of the declarant: White, paras. 32; 34-72. So, for example, a statement made under compulsion of s. 61 of the Motor Vehicle Act cannot be used to incriminate the declarant in subsequent criminal proceedings. Indeed, a statutorily compelled statement cannot be used for any purpose in the declarant’s criminal trial, including to establish whether an officer had reasonable and probable grounds for the arrest: R. v. Soules, 2011 ONCA 429; R. v. Roberts, 2018 ONCA 411 at paras. 37-39.

[127] In my view, the applicant’s claim of a s. 7 violation from the fact that he was compelled to provide a statement under the PSA, and then criminally charged, must fail. The protections afforded by the principle against self incrimination and the right to silence preclude the use, for any purpose, of the applicant’s compelled statement. For the following reasons, the fact of the compelled statement having been taken does not support a conclusion of abuse of process:

• First, there is no suggestion that the PSA statement was taken in order to advance the criminal investigation. As I have said, the PRP at the time, albeit improperly, took the statement believing that the criminal allegations were not substantiated;
• Second, there is no evidence that the compelled statement has been used in furtherance of any aspect of the investigation. There is no argument advanced that as a result of it any derivative evidence was obtained;
• Third, the evidence is incontrovertible that the statement was not reviewed by anyone involved in the Noble/Mavity investigation. Nor is there any evidence that it was reviewed or relied upon by the Crown when the decision was made to charge the applicant;
• Fourth, there is no suggestion that the compelled statement, or anything derived from it, will be used at the upcoming trial;
• Fifth, I do not accept the defence position that if the prosecution is allowed to conduct this trial, police in the future will never be able to accept that providing a compelled PSA statement means that criminal charges will not be pursued. Counsel submits that if it happened here, police will be concerned that there can be reneging on agreements in the future. With respect, this argument is not persuasive for at least four reasons. First, there is no merit to any suggestion that the PRP took criminal “off the table” so as obtain a statement for a subsequent criminal proceeding. Had there been evidence of this, I would have viewed the situation very differently. Second, officers are compelled under legislation to provide statements. The protection against self-incrimination shields any declarant who provides such a statement from having it used against him or her. That protection attaches in this case and in any other case were similar circumstances to occur. Third, I would anticipate that the circumstances that arose here would and should be extremely infrequent. There is no suggestion that this has ever happened before. It was the result of a failure of Internal Affairs to properly investigate allegations and to properly supervise the investigation that did take place. It should not happen again. Fourth, given that every case must be assessed on its facts, I find this in terrorum argument or little assistance in deciding this case on its merits;
• Finally, while counsel submits that the prosecuting Crown has seen his compelled statement and so has had an unfair preview of what he may say at trial, were he to testify, I reject that this is a basis for a finding of abuse of process. As I have indicated, the Crown is absolutely foreclosed from making any use whatsoever of the compelled statement. At trial, it will be as though it had never been given. This removes any potential for the proceedings to be unfair.

[128] In conclusion, the decision of the PRP to resile from an initial decision not to pursue criminal charges, and to later re-investigate and then pursue criminal charges, was not unreasonable. Certainly, I cannot conclude from it that the state has engaged in conduct that is offensive to society’s sense of fair play and decency. Proceeding to trial will not, in my opinion, harm the integrity of the justice system.

The videotaping of the meeting between counsel and the applicant at the police station

[129] The applicant advances two arguments about the video recording by PRP of his conversation with counsel at the police division. This conversation took place during a break in his police interview following his arrest. First, he asserts that this violated his s. 10(b) right to counsel. Second, he asserts that it violated his solicitor-client privileged communication. Alone or in combination with his other arguments, these violations are said to support a stay.

[130] Section 10(b) affords every person, on arrest or detention, the right to retain and instruct counsel without delay. The purpose of the right is to ensure that a suspect is able to make a meaningful choice about whether to speak with investigators that is both free and informed: R. v. Sinclair, 2020 SCC 35 at paras. 24-25. It is well established that the right includes both an informational and an implementational component. The right is to consult with counsel to obtain information and advice immediately following detention, but “not as providing ongoing legal assistance during the course of the interview that follows, regardless of the circumstances”: Sinclair, at paras. 31, 33-42.

[131] Normally, the Charter affords a detainee the right to a single consultation with counsel. However, if an investigation takes a new and more serious turn as events unfold, such that there may be a change in jeopardy, there is an obligation to provide a detainee with a further opportunity to consult with counsel: Sinclair at paras. 43-51.

[132] There is no issue that the applicant was afforded the right to speak to counsel on arrest or detention. During his interview, he asked to speak with counsel again. It is acknowledged that there was no change in jeopardy during the interview and thus no obligation on the police to facilitate the opportunity for a further consultation with counsel. Nevertheless, Insp. Noble and Det. Mavity decided to provide the applicant with a further opportunity to speak with counsel.

[133] It has long been recognized that consultation in private is a vital component of the right to counsel protected in s. 10(b) of the Charter: R. v. Playford, [1987] O.J. No. 1107 (C.A) at paras. 31, 40; R. v. McKane (1987), 35 C.C.C. (3d) 481 (Ont.C.A.); R. v. Cairns, [2004] O.J. No. 210 (C.A.) at para. 9; R. v. Pileggi, 2021 ONCA 4 at para. 77. The videotaping of a detainee speaking with counsel may violate s. 10(b) of the Charter, even of the police could not and did not overhear the actual conversation. It falls to the detainee to establish, on a balance of probabilities, that there has been a Charter violation: Cairns at para. 10.

[134] Deciding whether there has been a breach of s. 10(b) because there was an absence of privacy in consulting with counsel requires consideration of the totality of the circumstances: R. v. Burley, [2004] O.J. No. 319 (C.A.) at para. 24. There may be a breach where a detainee establishes that he believed in the circumstances that he could not retain or instruct counsel in private, and that such a belief was reasonably held in the circumstances. If a detainee believes that he or she is not being afforded an opportunity to consult with counsel privately, there is an obligation on that person to make that concern known: Cairns, at para 10; R. v. Burley at para. 25; R. v. Hume, 2013 ONCJ 380 at paras. 31-32.

[135] Solicitor-client privilege describes the privilege between a client and his or her lawyer. At the heart of the privilege is the concern that people must be able to speak candidly with their lawyers so as to enable their interests to be fully represented. While not absolute, the scope of solicitor-client privilege is as close to absolute as possible to ensure public confidence. That said, not all communications between a lawyer and client are privileged. To be privileged, the communication must arise where the client seeks lawful legal advice: R. v. McLure, 2001 SCC 14 at paras. 2, 34-37.

[136] In this case, the applicant does not say that his ability to speak to counsel was impaired because he believed he was not able to speak to counsel privately. Indeed, it was his evidence that he was unaware that, when he spoke to counsel, he was being videotaped. Accordingly, it cannot be the case that his ability to consult with counsel privately was impaired in any manner: R. v. Bhuller, 2013 ONCJ 326 at para. 15; Hume at paras. 33-35.

[137] That said, the applicant submits that there was a serious breach of privacy because the police captured on video the 4 minutes and 4 seconds that he was in the interview room with counsel for their further discussion during his interview.

[138] The PRP Directive that was in force at the time, as set out in Exhibit 40, requires that when an accused person has requested to consult with counsel, prior to the consultation, the officer must: (i) advise the accused that during the consultation they will be video recorded with no audio and press the “Audio Mute” button on the touch screen panel” or (ii) remove the accused to a non-recorded room affording privacy and explain the event on the recording when both exiting and re-entering.

[139] In this case, the video of the statement and the transcript reveal that having granted the applicant a further opportunity to speak with counsel, and after escorting counsel into the interview room, Det. Noble said “We’ve turned everything off, we’re locking the door and it’s all shut down”. Counsel asked, “what?” and the audio recording seems to have Det. Noble responding, “We will knock on the door when everything is off. Everything is still running right now”. There follows 4 minutes and 4 seconds with counsel and the applicant in the room, alone. There is no audio recording. The video recording before me has been redacted and Mr. Black insisted that I not see what took place when he and the applicant were alone in the room. As a result, I have not viewed it and it has been sealed.

[140] The evidence is that the investigators turned off the audio and waited down the hall for the applicant and counsel to speak. No one was in the monitor room watching this consultation. Insp. Noble believed that the video equipment had the capacity to be turned off and that he thought it had been. It was Det. Mavity who operated the system. Det. Mavity testified that he knew that the police were not able to turn off the video. He acknowledged both not having complied with the Directive, in that he did not advise that the meeting would be videotaped. He acknowledged his errors.

[141] The problem with the police having captured the consultation with counsel on video was first brought to their attention through a letter dated December 4, 2018 (Exhibit 43) from Crown counsel, after he had commenced reviewing the disclosure and discovered that the video had been left on and captured depictions of the consultation between the applicant and counsel, though nothing audible. The officers were asked to take a number of steps to protect solicitor client privilege and the privacy that attaches to these communications. They included: having a copy made of the interview with the portions of the consultation with counsel redacted; gathering and sealing the original and all copies of the videotaped interview; identifying all people who had access to the videotaped interview and gathering their notes and determining if any of them have the ability to read lips; and confirming that no evidence was derived from this footage.

[142] Insp. Noble confirmed that he had taken all these steps as directed. Det. Mavity said that to the best of his knowledge, no one had ever reviewed the video. He himself never watched it. He also confirmed that he had removed the video from IAPro. The IAPro document (Exhibit 44) reveals that there was access of these documents by Katy Leung, who is a civilian employed at Internal Affairs, on November 29 and 30 and December 5, 2018, prior to the files being deleted on December 5, 2018 by Det. Mavity.

[143] I do not accept that there was any deliberate attempt by Det. Mavity or Insp. Noble to conceal from the applicant or counsel that the consultation would be videotaped. I accept Det. Mavity’s evidence that he was aware that this would happen, and that he thought the applicant would also be aware of it, even if, as the applicant testified and I accept, he was not. I also accept the applicant’s submission that the police did not comply with the PRP Directive that they were required to follow with all detainees.

[144] I am not persuaded by the applicant that there was any breach of his s. 10(b) Charter right. He had an opportunity to consult with counsel prior to the interview. While not required, he was provided a further opportunity to consult with counsel during the interview. That consultation was private in that no one could overhear anything that was said. While the interaction was captured on videotape, the applicant was unaware of this at the time and he was not impaired at all in his ability to consult with counsel. No officers watched the video at the time and there is not a shred of evidence that any officer has watched it since.

[145] Once apprised of what had happened, both the police and the Crown took immediate steps to ensure that this video was not seen by anyone and that it was sealed. It has never been viewed by any of the police involved in this case. No evidence was obtained as a result of it. I accept that it is possible that the video was viewed by Ms. Leung, who likely is the person who transcribed the interview, although there is no evidence as to whether she watched the interview or merely listened to it. The IAPro document sheds no light on this.

[146] I acknowledge that there are cases relied upon by the defence in which courts have found violations of s. 10(b) and stayed proceedings for somewhat similar situations. However, I find that they are all distinguishable. For instance, in R. v. Comeau, [2001] O.J. No. 3036 (S.C.J.), the police told the accused that the video-recording device was being turned off while he spoke on the phone with counsel. But it turned out that his entire conversation with counsel had been audio-recorded on the tape. The Crown conceded a s. 10(b) breach and the issue to be decided was remedy. Mossip J. had little confidence in the evidence about who had seen the videotape, and heard the conversation, that had been recorded. In those circumstances, she found that there was a serious s. 10(b) breach and a breach of the accused’s solicitor-client privilege and stayed the charges on the basis that the community’s sense of decency and fair play would be undermined were the accused to stand trial. Similarly, in R. v. McKane (1987), 35 C.C.C. (3d) 481 (Ont.C.A.), upon which the applicant relies, the police were able to overhear the accused’s telephone call with counsel, resulting in the concession of a s. 10(b) breach. See, similarly: R. v. Champion, 2007 ONCJ 500 at paras. 40-43; R. v. Granda, 2018 ONCJ 260 at paras. 46-52.

[147] All of these cases are examples of the words spoken during a consultation with counsel being overheard by police or captured on a recording that was then preserved. I see these as qualitatively and fundamentally different from this case, in which there is no evidence that any words spoken between the applicant and counsel were ever heard or recorded by anyone.

[148] Even though no verbal communication was heard or recorded, I accept that the actions and gestures by the applicant would have been caught on the video-recording. I also accept that such gestures, if they were made, arose in the context of a conversation that was subject to solicitor client privilege. But I do not think this means that there has been a s. 7 violation, just because the applicant and counsel were not advised that the video-recording would be left on. No authority has been offered by the defence to support a conclusion that when the sound is off, and gestures are unexpectedly caught on a videotape, which is seen by no one, and then sealed, is a violation of s. 10(b) of the Charter or of solicitor-client privilege. I cannot accept the defence position that it is.

[149] Without doubt, the investigators should have complied with their Directive. However, as I have indicated, there is no evidence that whatever non-verbal communications took place on that video has ever been seen by anyone, including the investigators or the prosecuting Crown. The Crown has taken significant efforts to ensure that whatever non-verbal communications took place over that 4 minutes and 4 seconds are never viewed by anyone. In the absence if any evidence that the inadvertent failure to comply with the Directive had any effect on the discussion between counsel and the applicant, or that anyone other than those discussed observed what happened in the interview room live or on the video, I conclude that Det. Mavity and Insp. Noble’s breach or the PRP Directive in this case was insignificant. In all the circumstances, I decline to find a s.10(b) breach and decline to find that there was any breach of solicitor-client privilege warranting a stay of proceedings.

Steps two and three of the Babos test

[150] I can deal with the second and third steps of the Babos analysis in relatively short order. I say that because the foregoing analysis demonstrates that I am not persuaded that any prejudice to the integrity of the justice system will be perpetuated by the applicant going to trial in this case. Accordingly, the first step of the test for a stay fails.

[151] In terms of the second step, the only remedy sought by the defence is a stay of proceeding. I am not sure, had I found the first step was met, that any lesser remedy would be appropriate. This question really does not arise, however, in view of my finding that there will be no prejudice to the fair trial rights of the applicant, or to the administration of justice, by a trial.

[152] For the sake of completeness, I have considered whether, had there been any uncertainty about whether a stay was warranted after steps one and two, the balancing of interests would favour the granting of a stay over the interest of society in a trial on its merits.

[153] In my view, that balance clearly favours a trial. The applicant faces very serious allegations of assault, said to have been committed by him in the course of his duties. These are alleged to be against civilians and in front of fellow officers. These allegations of gratuitous violence, on two separate occasions, are very serious. Societal mistrust of police is high. There is a pressing need to ensure that allegations of this sort are fairly adjudicated in a public trial on their merits.

[154] I appreciate the unfairness the applicant perceives in having been told, improperly, that the police were not pursuing criminal charges, only to have them change their position three months later. The unsupportable first decision is truly unfortunate, as the Det. Bruce investigation gave rise to reasonable grounds to believe criminal offences had been committed. The PRP must ensure that there is better oversight and accountability and that this sort of situation is never repeated. Correctly, in my view, a decision was made to re-visit the conclusions of the first investigation and the improper findings that had been made. In these circumstances, it would be an affront to the administration of justice, and would shock the conscience of the community, if the applicant’s charges were stayed.

Conclusion

[155] The application for a stay of proceedings is dismissed.

J.W. Woollcombe J.

Released: April 20, 2022

COURT FILE NO.: CR-19-1691 DATE: 2022 04 20

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – BADAL KAUSHAL REASONS FOR JUDGMENT Woollcombe J.

Released: April 20, 2022

[1] In this case, while I accept the Crown’s position that the Noble/ Mavity investigation did produce additional evidence not obtained by Det. Bruce, the central aspects of the investigation were, in fact, obtained through the officers’ statements made to Det. Bruce. While more through, the Noble/Mavity investigation cannot fairly be characterised as a new and different investigation.