Court File and Parties

Court File No.: 156-23 Date: 2024/05/03 Ontario Superior Court of Justice

Between: His Majesty The King And: Yiu Sun Wong

Counsel: A. A. Campbell for the Crown A. A. Kapoor and N. Khan for the Applicant

Heard: January 21, 22, 23, March 14, 27, 2024

Before: M.A. Cook J.

Voir Dire Ruling re Stay Application

[1] Yiu Sun Wong (the “Applicant”) stands charged with fraud over five thousand dollars contrary to s. 380(1)(a) of the Criminal Code, RSC 1985, c C-46 (the “Code”) for transactions alleged to have occurred between December 1, 2020 and April 30, 2021 involving the Municipality of Strathroy-Caradoc.

[2] This is a voir dire hearing to hear evidence and consider the Applicant’s request for a stay of proceedings based on multiple alleged Charter infringements arising during his arrest and the 72 hours he was detained in police custody before being brought before a justice of the peace in Ontario.

[3] The Applicant submits that the state misconduct, including multiple breaches of the Code and resulting breaches of his s. 7 and 9 Charter rights, constitute an abuse of process warranting a stay of proceedings under both the primary and the residual category. In the alternative, the Applicant seeks the exclusion of two statements made by him to the authorities during his post-arrest detention.

[4] The Crown acknowledges that the police made a series of errors with respect to the arrest and detention of the Applicant, but denies that those errors gave rise to any Charter breach or abuse of process in this case that could warrant a stay of proceedings.

Evidence on the Application

[5] A voir dire was held on January 22 and 23, March 14 and 27, 2024.

[6] The Applicant filed an extensive Application Record and Supplementary Application Record in support of his application. The Crown did not file a Responding Record. The record was supplemented by the viva voce testimony of two police officers of the Strathroy-Caradoc Police Service (“SCPS”).

[7] While the Court received extensive evidence on the voir dire, very few facts are in dispute. The record and police witness testimony provide an accurate account of what happened. What follows is a summary of the evidence as I accept it.

The Fraud

[8] The fraud at issue involves email spoofing, or, in other words, a situation where a perpetrator uses forged emails to trick a target into believing the message came from a trusted sender. The aim is to manipulate the target into sending money or providing some other benefit to the fraudster.

[9] In late January 2021, an employee of the Municipality of Strathroy-Caradoc (the “Municipality”) received an email from someone who she believed was an authorized representative of Omega Contractors Inc., a supplier to the Municipality to whom the Municipality owed money. The email stated that Omega had changed their banking information. The Municipality was provided with a void cheque for an account at TD Canada Trust, with a request that the funds owed be transferred to the new account. The Municipality updated its records to reflect what it understood was Omega’s new banking information.

[10] Between February 4 and March 26, 2021, the Municipality made payments to Omega totalling just over $1.1 million by transferring funds to the new TD Canada Trust account.

[11] By April 2021, the Municipality realized that it had fallen victim to fraud and that it had not actually paid Omega the amount owing to it. Omega filed a fraud report with SCPS. The lead SCPS investigator was Detective Constable Wright (“DC Wright”).

[12] As a result of the investigation, the Crown alleges that the Applicant opened the TD Canada Trust account to which the Municipality sent payments intended for Omega, and then transferred those funds to an unknown third party by way of electronic fund transfers to several bitcoin “Wallet Addresses” using a Coinsquare account.

[13] The Crown has no evidence to suggest the Applicant was involved in the creation of the fake emails or that he was aware of any fraudulent plan to deposit the money into his account. The identity of those responsible for creating the fake emails sent to the Municipality are unknown. The Crown alleges that the Applicant is a party to the offence as a money mule who knew or ought to have known that the money deposited into his account did not belong to him.

The Investigation

[14] Between April and August 2021, SCPS obtained several production orders for the bank account at TD Canada Trust that received funds from the Municipality. SCPS identified the Applicant as the owner of the TD Canada Trust and Coinsquare accounts, and discovered he lived in Vancouver. SCPS worked with the Vancouver Police Department (“VPD”) to gather information about the Applicant and conduct physical surveillance of his residence.

[15] On October 21, 2021, DC Wright prepared a general report summarizing the SCPS investigation and setting out the plan to compel the Applicant’s attendance before the Ontario Court of Justice to answer charges. The report indicated that DC Wright planned to obtain a Canada-wide warrant for the Applicant’s arrest. DC Wright would travel to Vancouver during the week of November 16, 2021 to execute a s. 487 search warrant and arrest the Applicant.

[16] DC Wright testified that his intention was to arrest the Applicant and release him on an undertaking while in Vancouver. He acknowledged that he had no grounds to detain the Applicant. By that time, SCPS knew that the Applicant was an elderly man with no criminal record, no known ties to organized crime, and was not considered dangerous. SCPS did not believe the Applicant to be “on the move” and believed him to be just “a normal person who was living his life” in Vancouver.

[17] SCPS did not consider issuing a summons to the Applicant. Rather, the plan was to arrest him. The decision to send DC Wright to Vancouver to arrest the Applicant was driven by the twin goals of gathering the best available evidence and showing the Municipality of Strathroy that SCPC was pulling out all the stops to bring those responsible for the fraud to justice. As SCPS Sgt. Cartwright advised VPD by email:

I just spoke to our Chief. Because of the optics of this investigation (It is our town that was defrauded the 1.2 mil), the Chief would like to send [DC Wright] out to be there for the operation. I know that you and I spoke about the possibility that executing the 487 [search warrant] may be fruitless as [the Applicant] is likely a mule, however, our Chief would like us to carry out the task and at least attempt to gather the best evidence.

[18] Between October 25 and 26, 2021, DC Wright and DC Todd Singbeil of the VPD exchanged email correspondence regarding the planned arrest. DC Wright confirmed his intention to obtain a ‘Canada-wide warrant’ to arrest the Applicant in Vancouver, take his fingerprints and release him in Vancouver pursuant to an Ontario undertaking. DC Wright wrote:

The Crown is satisfied in releasing WONG after the interview and finger printing via a Ontario Undertaking as the offences occurred in Ontario. The reason why the Crown is not requesting that WONG be brought back to Ontario at this time is because WONG has no criminal record.

[19] On October 26, 2021, DC Wright obtained a warrant to search the Applicant’s computers located within the Applicant’s residence at 2218 Scarborough Avenue, Vancouver, BC.

[20] On October 27, 2021, SCPS obtained a warrant for the Applicant’s arrest signed by Justice of the Peace P. Bessegato pursuant to s. 507(1)(b) of the Code (the “Ontario arrest warrant”). In support of the Ontario arrest warrant, SCPS submitted an Information to Obtain, a draft undertaking to release and the Information sworn by SCPS Sgt. Cartwright. JP Bessegato endorsed the Ontario arrest warrant to authorize the Applicant’s release upon the issuance of an appearance notice or undertaking.

[21] That same day, DC Wright wrote to members of VPD indicating that SCPS was reconsidering whether the Applicant could be released by way of an undertaking, despite the advice previously received from the Crown. DC Wright wrote:

I am waiting to hear back from my Crown to ensure the correct way to release WONG is by a Ontario Undertaking. This was the recommendation by the Crown yesterday but we at SCPS do not believe that is correct.

[22] Over the following days, confusion arose among members of the SCPS and VPD about whether and how the Ontario arrest warrant should be endorsed in British Columbia, or whether SCPS ought to seek a Canada-wide arrest warrant under s. 703 of the Code. Ultimately, it was decided that DC Singbeil of the VPD would file the necessary application in the BC Provincial Court to have the Ontario arrest warrant endorsed for execution in British Columbia in accordance with s. 528 of the Code.

[23] Additional confusion arose about the plan for the Applicant’s release following the planned arrest.

[24] On November 3, 2021, DC Singbeil sent an email to DC Wright and Sgt. Cartwright advising that “they told me that once the suspect is arrested, we can get a remand for up to six days specifically for transport back to the other province. We can make that request at the bail hearing.”

[25] There is no evidence as to who told DC Singbeil about the availability of a six-day remand for the Applicant. What is clear is that, after November 3, 2021, SCPS and VPD all proceeded on the basis that the Applicant would be arrested and detained for a hearing in British Columbia, in which the Crown would seek an order remanding the Applicant for six days. DC Wright testified that he understood the six-day remand referenced in DC Singbeil’s email was “something that is needed to make sure the process is properly completed, especially if we need to transport [the Applicant] back to Ontario.” Sgt. Cartwright testified that he didn’t know what the six-day remand was for.

[26] On November 8, 2021, Sgt. Cartwright emailed members of VPD to update them on the plan: SCPS would have a bail package ready to incorporate into the material to be used in the Vancouver bail hearing. Sgt. Cartwright confirmed that they would be requesting a six-day remand and stated “I think that will give us jurisdiction to escort [the Applicant] back to Ontario.”

[27] On November 10, 2021, the Ontario arrest warrant was endorsed for execution in British Columbia by Judicial Justice Fukushima of the British Columbia Provincial Court. Also on November 10, 2021, SCPS wrote to the British Columbia Minister of Public Safety requesting that DC Wright and Sgt. Cartwright be appointed as Special Constables pursuant to s. 9 of the BC Police Act, SBC 1998, c. 53 and authorize their participation in the takedown of the Applicant.

[28] With everything in place, DC Wright and Sgt. Cartwright flew to Vancouver.

November 17, 2021 - The Arrest

[29] At approximately 8:30 am (local Vancouver time) on November 17, 2021, DC Wright and Sgt. Cartwright went to the Applicant’s residence, accompanied by eight officers of the VPD, to execute the search warrant and arrest the Applicant. VPD arranged for four cars, a van and the VPD property crime van to attend on scene.

[30] The Applicant was inside the basement suite of the residence when he was identified by VPD Officer De Silva. DC Wright placed the Applicant under arrest, inside the residence, at 8:41 am. DC Wright provided the Applicant with his rights to counsel and cautioned him in the Applicant’s preferred language of Cantonese. The Applicant indicated he understood his rights and that he wished to speak with a lawyer.

[31] The Applicant was transported to a VPD police station at approximately 8:45am. He was still wearing his pyjamas. At approximately 9:49am, the Applicant was given an opportunity to speak to legal counsel.

[32] At approximately 10:20am, DC Wright re-arrested the Applicant. After providing the Applicant his rights to counsel and a caution, DC Wright conducted an interview. The interview was facilitated by VPD PC Cheng, who was fluent in English and Cantonese and could help with translation. The interview was completed at approximately 12:04pm.

[33] After the interview, the Applicant was transported to the BC provincial courthouse and detained for the planned bail hearing.

[34] DC Wright testified that his involvement in the matter concluded at approximately 1:00pm, approximately 4.5 hours after the Applicant’s arrest. There is no evidence about how DC Wright or Sgt. Cartwright spent the balance of their day on November 17, 2021.

Bail Hearing before BC Provincial Court

[35] On the evening of November 17, 2021, the Applicant was taken before Judicial Justice Toy of the BC Provincial Court. The Crown applied for a six-day remand under s. 503(3)(b)(1) of the Criminal Code.

[36] During the hearing, JJ Toy asked Crown counsel whether she had “received indication from either the Ontario - - London, Ontario police or London, Ontario Crown counsel they are, in fact, intending to attend to arrest – execute this warrant?” In response, Crown counsel advised that “DC Wright in Ontario confirms they will be returning the accused to London.”

[37] Crown counsel did not tell the JJ Toy that DC Wright and Sgt. Cartwright were in Vancouver, or that DC Wright had executed the endorsed Ontario arrest warrant at 8:41am.

[38] JJ Toy stated that he was satisfied that “all of the legal requirements under s. 503(b)(1) of the Criminal Code are satisfied” and remanded the Applicant into custody for six days.

[39] After the BC bail hearing concluded, the Applicant was transported, still in his pyjamas, to a Vancouver detention centre.

November 18, 2021

[40] On November 18, 2021, DC Wright and Sgt. Cartwright took a day off. They went to Gastown for lunch and visited Granville Island.

November 19, 2021 - Transport

[41] Approximately 48 hours after the Applicant’s arrest, SCPS picked the Applicant up from the Vancouver detention centre and made their way to the Vancouver International Airport. They travelled by commercial flight from Vancouver to Toronto, and then from Toronto to London. The Applicant was handcuffed throughout his transport. He was still in his pyjamas.

[42] The Applicant and the SCPS officers arrived in London, Ontario shortly before midnight. Another SCPS officer transported the Applicant to SCPS headquarters in St. Thomas, where the Applicant was detained overnight.

November 20, 2021 – Interrogation and Bail Hearing

[43] At approximately 9:30am (local time) on November 20, 2021, the Applicant was interrogated at SCPS headquarters by OPP Officer K. O’Neil in relation to a separate investigation. The interview had been arranged by DC Wright. The interview concluded at approximately 11:30 am.

[44] At 11:45am, 72 hours after his arrest, the Applicant attended virtual bail court in London, Ontario before Justice of the Peace K. Jackson.

[45] DC Wright prepared a bail hearing report for use in bail court. DC Wright’s report indicated that SCPS was opposed to bail due to perceived flight risk, but it also recommended release with conditions. When questioned about the inconsistent recommendation, DC Wright testified that, as a matter of general practice, SCPS officers prepare bail reports which oppose bail but present potential terms of release:

A. When we’re submitting a bail hearing package, we look at both sides. We looked at – we understand if the judge – ‘cause, ultimately the judge, or the justice of the peace, are going to do what they feel is best for this case. So as a result, we will generally click off boxes 1 and 2 and put our reasoning in for boxes 1 and 2. And then the judge or justice of the peace will decide on which they feel it fit and suitable for that person.

Q. And just to be clear, this document goes to the Crown?

A. Correct.

Q. And this informs the Crown’s view on the position of the police…

A. Yes.

Q. In relation to any particular accused’s release?

A. Yes.

Q. And did I hear you correctly, and if I didn’t please correct me.

A. Yes,

Q. That as a matter of course, your service clicks off both “Bail opposed” and “Release”?

A. It seems to be a common practice for our police service. Yes. As in we’re understanding. We’d respect and we appreciate both sides to how the procedure will go moving forward. Yes.

Q. … Would you ever have a situation where you’ve arrested somebody, no interest in detaining them. And you click only release with conditions?

A. The same. No. Because if – I can’t think it would be any different. If we’re holding someone for court in the morning, we will say why we believe they should be held. We also – basically, if we’re clicking off release with conditions, we’re respecting the court’s decision to release this person, but if they do can you please consider these conditions upon release.

Q. Okay. I appreciate you are respecting the court’s positions, but I just want to understand how we’re to read this in relation to the police recommendation. Like is it the police’s recommendation just that Mr. Wong is – what was he, 72 years old – should be detained in jail?

A. I believe it was my recommendation that he be held in jail as long – until we could figure out the next course of action. Whether or not that meant releasing him with conditions through recognizance of bail or being held until his next court date.

Q. All right. At it – and am I right that that’s how I should read this form? That you wanted [the Applicant] in jail until trial?

A. I, I was okay either way. I was okay with, I was at – I was okay with either way. But our goal was to bring him back from British Columbia and then have him released so he could attend court at a later date. I did not believe he should be held in jail until today or whenever his court date did appear.

[46] JP Jackson remanded the Applicant into custody until November 22, 2021 for a further show-cause hearing. The Applicant was transported from SPCS headquarters to the Elgin-Middlesex Detention Centre.

November 22, 2021 – Release

[47] On November 22, 2021, the Applicant was released on a consent release with a surety pledge of $75,000.00 and a cash deposit of $9,000.00.

Analysis

Position of the Parties

[48] The Applicant submits that the conduct of the authorities resulted in serious breaches of statutory duty and the Applicant’s rights under s. 7 and 9 of the Charter. In particular, the Applicant asserts that:

(a) the issuance of the Ontario arrest warrant and its subsequent endorsement in British Columbia were unlawful because there was insufficient evidence placed before the Justice of the Peace to reasonably satisfy the statutory requirement that an arrest was necessary to secure the attendance of the Applicant;

(b) the Applicant was arrested inside his residence in the absence of a Feeney warrant, in breach of the requirements of s. 529 of the Code;

(c) the six-day remand was not authorized by law and the resulting delay in his attendance before the Ontario Court of Justice breached s. 503(1) of the Code and ss. 7 and 9 of the Charter; and

(d) the circumstances of the Applicant’s arrest and detention, including being removed from his home in his pyjamas, being subjected to two interrogations, being transported from BC to Ontario in pyjamas and handcuffs, and being held in police detention facilities for most of his time in custody, were dehumanizing.

[49] The Applicant submits that the state conduct was the product of a profound ignorance of the law and a cavalier disregard for the statutory duty of restraint under s. 493.1 of the Code. The Applicant submits that, when taken together, the conduct at issue constitutes an abuse of process that threatens the fairness of his trial and the integrity of the justice system.

[50] The Respondent concedes that there were procedural issues in relation to the Applicant’s arrest and detention, but denies that the conduct breached the Applicants’ rights under s. 7 or s. 9 of the Charter, and further denies that the conduct amounts to an abuse of process warranting a stay of proceedings.

[51] I will first consider whether the Applicant has established the alleged misconduct, and then go on to consider whether any misconduct proven warrants the extraordinary remedy of a stay of proceedings.

Breach of ss. 7 and 9 Charter Rights

[52] Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and a right not to be deprived thereof except in accordance with the principles of fundamental justice.

[53] Section 9 of the Charter provides:

Everyone has the right not to be arbitrarily detained or imprisoned.

[54] These two sections are closely related. Section 9 of the Charter “is a manifestation of the general principle, articulated in s. 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice. This is one of the most fundamental norms of the rule of law.”: R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336 at para. 67.

The Arrest Warrant and BC Endorsement

[55] The Applicant submits that the Ontario arrest warrant signed by Justice of the Peace P. Bessegato was unlawful because the evidence before the Justice of the Peace did not disclose reasonable grounds to believe that it was necessary in the public interest to issue a warrant for the Applicant’s arrest.

[56] In R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91, at para. 64, the Supreme Court affirmed that Part XVI of the Code creates a “ladder of increasingly coercive measures” to compel appearance by a defendant before a court. The default process for compelling attendance is the issuance of a summons. A justice receiving an information laid under s. 504 by a peace officer is required to issue a summons unless he or she is satisfied, on the allegations or evidence of the informant, that there are reasonable grounds to believe it is necessary in the public interest to issue a warrant for arrest.

[57] I am not persuaded that the s. 504 information and related materials before JP Bessogato were incapable of satisfying her that there was reason to believe that it was necessary in the public interest to issue a warrant for the Applicant’s arrest. The charges of fraud over $5000 and fraudulent concealment are serious offences. The Applicant lived in British Columbia. The alleged fraud was sophisticated and involved a very substantial amount of money, suggesting that Applicant may have resources to flee. A search warrant had issued, demonstrating an interest in preserving evidence in the case.

[58] There is no evidence before me to suggest that JP Bessegato did not direct her mind to the requirements of s. 507(1)(b) of the Code, or take steps to satisfy herself that reasonable grounds existed to believe that it was necessary in the public interest to arrest the Applicant. In the absence of such evidence, the Ontario arrest warrant is presumed to have been duly authorized by JP Bessegato in accordance with the law: R. v. Molina, 2008 ONCA 212, 90 O.R. (3d) 223 at para. 14.

[59] Similarly, I find that the process by which the Ontario arrest warrant was endorsed in British Columbia did not infringe any rights held by the Applicant.

[60] The Applicant submits that the British Columbia judicial justice considering the Ontario arrest warrant for endorsement had an obligation to review the Ontario arrest warrant and satisfy himself that the arrest was necessary. The Applicant’s submission is not supported by the plain language of s. 528 of the Code. Section 528 of the Code provides:

Endorsing warrant

528 (1) Where a warrant for the arrest or committal of an accused, in any form set out in Part XXVIII in relation thereto, cannot be executed in accordance with section 514 or 703, a justice within whose jurisdiction the accused is or is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement, which may be in Form 28, on the warrant.

[61] Section 528(1) of the Code is prescriptive. Subject to being satisfied as to the proof of the signature of JP Bessegato, the judicial justice in British Columbia was required by s. 528 to endorse the warrant as a “purely ministerial act”: R. v. Haley, (1986), 27 C.C.C. (3d) 454 (ON CA) at pp. 464-465. It did not involve the exercise of judicial discretion. Section 528 did not require, nor did it permit, the judicial justice to engage in any review or reconsideration of the Ontario arrest warrant. To find otherwise would place the judicial justice in British Columbia in the untenable position of sitting in review of a justice in a different province.

[62] In summary, I find that the Ontario warrant and its endorsement in British Columbia were regular and did not constitute a breach of any provision of the Code, or an infringement of the Applicant’s Charter rights.

Execution of the Warrant

[63] While the Ontario arrest warrant was valid and duly endorsed for execution in British Columbia in accordance with s. 528 of the Code, I find that the manner in which the warrant was executed, and the circumstances of the Applicant’s subsequent detention, give rise to multiple serious concerns in relation to the Applicant’s Charter rights.

No Feeney Warrant

[64] DC Wright arrested the Applicant in his residence without the Feeney warrant required by s. 529 of the Code. The Form 7.1 Authorization to Enter a Dwelling House contemplated by s. 529 was left unendorsed when JP Bessegato signed the Ontario arrest warrant.

[65] No explanation was offered by the Crown for the failure to obtain a Feeney warrant. The need for a Feeney warrant ought to have been patently obvious to SCPS. DC Wright’s entire plan, which was developed after extended surveillance, centred around executing a search warrant and arresting the Applicant at his home. DC Wright testified that he expected that the Applicant would be in his home when he went to execute the arrest warrant.

[66] It is concerning to the court that the Applicant’s arrest was made without a Feeney warrant given the careful planning that took place over a period of weeks. There were four other officers assigned to the arrest team led by DC Wright, and another five officers involved in executing the search warrant. Despite officers from two police services being briefed on the plan, none appear to have directed their mind to the need for a Feeney warrant, or noticed that they did not have one, before arresting the Applicant in his home.

[67] The Crown submits that the constitutional and statutory requirement for a Feeney warrant was limited by the fact that police were executing a valid search warrant at the residence. I was provided no authority for that proposition. However in R. v. Stairs, 2020 ONCA 678, the Court of Appeal held that, once police are lawfully inside a residence, it makes little sense to require them to leave to obtain a s. 529 authorization, only to effect an arrest that they could clearly make if the arrest was made anywhere other than a private dwelling.

[68] I rely on the reasoning in Stairs to find that the SCPS failure to obtain a Feeney warrant was a technical breach of s. 529 of the Code, but it did not render the Applicant’s arrest unlawful. Members of SCPS and VPD were lawfully present in the Applicant’s home because they were executing a valid search warrant. The Applicant was in the basement when he was identified. It would make little sense to require police to stop what they are doing and obtain prior judicial authorization before arresting the Applicant within the premises. As the Court of Appeal noted in Stairs, doing so may have potentially aggravated, not assuaged, the very privacy concerns underpinning the Feeney warrant requirement.

[69] While the failure to obtain a Feeney warrant was not fatal to the lawful arrest of the Applicant, it remains inexplicable in the circumstances of this carefully planned arrest. The only inference available on the record is that the SCPS either did not know or care that they required a Feeney warrant to arrest the Applicant within his home.

Post-Arrest Detention

[70] The Applicant claims that his 72-hour post-arrest detention was arbitrary and infringed on his ss. 7 and 9 Charter rights.

[71] The Code provisions relevant to this aspect of the application are ss. 493.1 and s. 503, which provide:

Principle of restraint

493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

Taking before justice

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and

(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.

Remand in custody for return to jurisdiction where offence alleged to have been committed

(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested

(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or

(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may

(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or

(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.

[72] DC Wright executed the endorsed Ontario arrest warrant at 8:41am (local Vancouver time) on November 17, 2021. Given that the Ontario arrest warrant had been endorsed in advance of the arrest, DC Wright and Sgt. Cartwright were authorized to transport the Applicant back to Ontario forthwith after the arrest with no further order of the court: R. v. Charles, 2012 SKCA 34, 289 C.C.C. (3d) 168 at para. 21. Section 528(2) of the Code states:

Effect of endorsement

528 (2) An endorsement that is made on a warrant pursuant to subsection (1) is sufficient authority to the peace officers to whom it was originally directed, and to all peace officers within the territorial jurisdiction of the justice by whom it is endorsed, to execute the warrant and to take the accused before the justice who issued the warrant or before any other justice for the same territorial division. (emphasis added)

[73] The express terms of the Ontario arrest warrant ordered the arresting officers, “in His Majesty’s name, to immediately arrest the accused and to bring them before Ontario Court of Justice.”

[74] Instead of transporting the Applicant back to Ontario with diligence following the arrest, the plan - agreed to in advance by SCPS and VPD - involved applying to the British Columbia Provincial Court for a remand order to be made under s. 503(3)(b)(i) of the Code.

[75] Section 503(3)(b)(i) of the Code had no application in this case. Section 503(3)(b)(i) provides an extraordinary procedure available in circumstances where an individual is arrested without a warrant for an indictable offence alleged to have been committed in another jurisdiction. The procedure permits a limited remand of an accused to allow the outstanding warrant from another jurisdiction to be endorsed and executed.

[76] The Crown urges me to find that it was open to the police to utilize s. 503(3)(b)(i) of the Code because the arresting officers had reasonable and probable grounds to effect a warrantless arrest. I reject this submission. It is well settled law that an inquiry into the actions of police focusses on the actual choice made by them, not an alternate, hypothetical choice that was theoretically available: R. v. Charley, (1993), 22 CR (4th) 297 (Ont. C.A.). DC Wright intended to, and did, execute the endorsed Ontario arrest warrant. It is not open to the Crown to now suggest that the police conduct ought to be reviewed on the basis of a warrantless arrest in an effort to normalize the bail hearing and resulting six-day remand.

[77] The Crown submits that the decision of JJ Toy to grant the six-day remand enjoys a presumption of regularity and should not be disturbed. While I agree that JJ Toy’s decision enjoys a presumption of regularity, the evidentiary record clearly rebuts it: Molina, para. 20. JJ Toy took jurisdiction over the Applicant and made the remand order on an obvious misapprehension that the Ontario arrest warrant had not been executed. That misapprehension was not corrected by the Crown counsel during the bail hearing. The relevant exchange is as follows:

THE COURT: Okay, thank you. Mr. Dalrymple, why is this man in custody and what is the position regarding his detention this evening?

CROWN CNL. DALRYMPLE: The accused has been arrested on a warrant from London, Ontario. The – the allegation is that the accused committed fraud over $5,000. The Crown is applying under s. 503(b)(i) of the Criminal Code for a six-day remand…Therefore, we are asking that the accused return to courtroom 101 at 9:30 on Wednesday, November 24th of 2021. We expect that London authorities will have retrieved him and returned him to their jurisdiction by that time. The police have confirmed the identity of the accused and confirmed he is the person named on the warrant. Subject to the questions of the court, those are our submissions.

THE COURT: Just one question. Have you, as the Crown, received indication from either the Ontario – London, Ontario police or London, Ontario Crown counsel, they are in fact indenting to attend to arrest – execute the warrant?

CROWN CNSL. DALRYMPLE: Yes, Detective Wright in Ontario confirms they will be returning the accused to London.

THE COURT: All right. Mr. Wong, I am satisfied that all of the legal requirements under s. 503(b)(i) of the Criminal Code are satisfied. Namely that you are the person that is named in a warrant for your arrest out of Ontario. That warrant has been endorsed here in British Columbia authorizing your arrest here in British Columbia and that the authorities in Ontario do intend to travel to Vancouver, British Columbia to execute this warrant and return you to Ontario in order to face the charges in that jurisdiction. [emphasis added]

[78] Based on the transcript of bail hearing, I find that JJ Justice Toy would not have taken jurisdiction over the Applicant nor ordered an extraordinary six-day remand had he been apprised by the Crown that the Ontario arrest warrant had been executed at 8:41am Vancouver time, and that DC Wright was not only in Vancouver but had been the arresting officer.

[79] There was no basis for the Crown to apply to the BC Provincial Court for a remand order under s. 503(3)(b)(i) of the Code. The resulting detention, not authorized by the Code, breached the Applicant’s s. 7 and 9 Charter rights, as well as the express terms of the Ontario arrest warrant.

[80] Having executed the endorsed Ontario arrest warrant, s. 503(1) of the Code required the arresting officers to bring the Applicant before the Ontario Court of Justice within 24 hours of his arrest, or, if a justice was not available within the 24-hour period, as soon as possible thereafter.

[81] Section 503(1) is arguably the most important procedural provision of the Code. In R. v Poirier, 2016 ONCA 582, 131 O.R. (3d) 433 at paras. 57-58, the Court of Appeal described the importance of the procedural protections afforded by s. 503(1):

[57] Section 503 reflects an important fundamental right in our society, namely, the liberty of the subject, which is not to be taken away except in accordance with the law. In holding that the accused's detention was arbitrary in R. v. Truchanek, Hogarth Co. Ct. J. stated, at pp. 170-71:

[E]ven if the detention was but for hours, even if the detention was to obtain evidence of the commission of a serious crime, the deliberate illegal refusal to present [the accused] according to law was in my view a matter of vital importance for the people of this community, as it opens up to the police the idea that any one of us who has the misfortune to be arrested could be held for any length of time in order to extract a confession, to locate evidence and, for that matter, for any other purpose at their whim.

[58] Compliance with s. 503 is not simply a matter of form. Nor does it matter that the appellant may not likely have been released by a justice of the peace while the bedpan vigil search was being conducted. If the police had complied with s. 503, the manner in which the appellant continued to be detained would have been subject to court supervision. The appellant's detention would have changed from being a detention pursuant to the execution of the general warrant to a court-monitored detention that ensured the ongoing protection of the appellant's Charter rights. [Citations omitted.]

[82] In this case, the 24-hour period prescribed by s. 503(1) expired at 11:41am on November 18, 2021.

[83] The Applicant was not brought before the Ontario Court of Justice until 11:40 am on November 20, 2021, a period of 72 hours from the time of his arrest.

[84] The Crown urges that that it is unrealistic to expect SCPS to transport the Applicant from Vancouver to London to have the Applicant appear before a justice of the Ontario Court of Justice within 24 hours of the arrest. The difficulty the Crown faces with this submission is that the SCPS officers made no attempt to comply with s. 503(1) once they decided to pursue the six-day remand from JJ Toy. There is simply no evidence about what was or was not feasible.

[85] DC Wright and Sgt. Cartwright had had done everything they needed to do in Vancouver by not later than 1:00pm (Vancouver time) on November 17th, 2021. After transporting the Applicant to VPD station at 9:49am, DC Wright elected to interrogate the Applicant for almost two hours, from 10:20am – 12:04pm. Even with the interrogation, DC Wright was clear by 1:00pm, or 3:00 local time in London, Ontario.

[86] There is no evidence of what DC Wright or Sgt. Cartwright did in the afternoon of November 17, 2021 while the Applicant was held in custody pending his unnecessary appearance in BC Provincial Court. Then on November 18th, DC Wright and Sgt. Cartwright took the day off, and enjoyed some sightseeing in Vancouver.

[87] Unfortunately, the overwhelming impression I am left with from these officers’ testimony is that it never crossed their minds to expedite the Applicant’s transport to Ontario because they had the luxury of a six-day remand order and pre-arranged flights home. The officers felt at liberty to take a day off. DC Wright arranged for the Applicant to be interviewed in Ontario in relation to an OPP investigation on the morning of November 20, 2021, in priority to having the Applicant appear before the Ontario Court of Justice. The officers’ conduct reflects a cavalier disregard for the Applicant’s liberty rights and a lack of understanding of their statutory duties.

[88] I recognize that an unlawful detention is not automatically an arbitrary one for the purposes of s. 9 of the Charter: see, for example, R. v. Tam (1995), 100 C.C.C. (3d) 196 (B.C.C.A.). However, the fact that the Applicant was detained for an unnecessary and unauthorized bail hearing in British Columbia, and the fact that officers of SCPS then made use of the unwarranted six-day remand for activities wholly unrelated to the pressing business of bringing the Applicant before the Ontario Court of Justice, makes it fair and accurate to characterize the detention as arbitrary. The detention lacked correspondence to the authority granted to the officers by the endorsed Ontario arrest warrant. Whether intentional or through mere neglect, I find that the Applicant he was detained arbitrarily in breach of his s. 9 Charter rights.

[89] Similarly, I find that being detained for 72 hours before being brought before a justice of the Ontario Court of Justice amounts to a serious deprivation of the right to liberty in breach of the Applicant’s s. 7 right: R. v. Dawson, 2016 ONSC 3461 at paras 36-37.

Ontario Bail Hearing

[90] Delay was not the only consequence of the six-day remand. Because the Applicant had been remanded into custody by JJ Toy in British Columbia, SCPS no longer had discretion to release the Applicant on an undertaking, whether in British Columbia or once back in Ontario.

[91] Based on DC Wright’s plan and his testimony, I find that SCPS would have released the Applicant on an undertaking if they have retained authority to do so. Instead, the decision to seek the six-day remand order forced a bail hearing in Ontario.

[92] The Crown points to the onerous conditions attaching to the Applicant’s bail, including a cash deposit and a surety pledge, to justify the detention in this case. I view the onerous bail terms, which were made on consent of the Applicant rather than after an adjudication, to be a product of the police misconduct. The bail order ultimately cannot justify the means, particularly in circumstances where DC Wright filed a bail report opposing bail despite his personal view that there were no grounds to detain the Applicant.

[93] It is impossible to reconcile what happened with the Applicant in this case, including the preparation of the bail report, with the officers’ statutory obligations of restraint and the unequivocal guidance provided by the Supreme Court in Penunsi, at paras 73-74 and R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, at paras 6, 26.

Has the Applicant Demonstrated an Abuse of Process for which a Stay of Proceedings Ought to be Entered?

[94] The Supreme Court of Canada addressed the extraordinary, discretionary remedy of a stay of proceedings in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at paras. 30-33:

30 A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

31 Nonetheless, this Court has recognized that there are rare occasions - the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted. These cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused's trial (the “main” category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of 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".

33 The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids “schizophrenia” in the law. But while the framework is the same for both categories, the test may - and often will - play out differently depending on whether the “main” or “residual” category is invoked. [Citations omitted.]

[95] While counsel have argued that the fairness of the Applicant’s trial has been compromised by the two statements taken from the Applicant during his unlawful detention, the main thrust of the Applicant’s position is that this case is about the residual category.

[96] The residual category was described by Justice L’Heureux-Dube in R. v. O’Connor, [1995] 4 S.C.R. 411 at para. 73 as one needed to “address the panopoly of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree as it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”.

[97] A stay of proceedings is a prospective remedy aimed at protecting the integrity of the judicial process from future misconduct. It goes to the legitimacy of the prosecutorial process. As the Supreme Court of Justice noted in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at para. 91:

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 from of misconduct will continue.

Stage 1: 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.

[98] Canadians have a legitimate expectation that the police will know and comply with the law, especially the Charter: R. v. Zacharias, 2023 SCC 30 at para. 43.

[99] The lack of understanding of the law of arrest and detention on the part of police within SCPS and VPD led directly to a flagrant and lengthy breach of the accused’s rights under ss. 7 and 9 of the Charter. The conduct of the authorities, considered cumulatively, demonstrates a pattern of police misconduct highly prejudicial to the integrity of the justice system.

[100] From the time the SCPS and VDP settled on a plan to seek a six-day remand in the British Columbia Provincial Court, the police showed a cavalier and indifferent attitude of the Applicant’s constitutional rights and of their statutory obligations under ss. 493.1 and 503(1) of the Code.

[101] I have no doubt that SCPS officers were acting in good faith when they attempted to sort out how to compel the Applicant to appear before the Ontario Court of Justice to answer the charge of fraud. However, the Applicant and every other member of the community has a reasonable expectation that police will evaluate options through the lens of restraint and act in accordance with the law in the proper discharge of their duties.

[102] Section 493.1 had been in force for more than two years at the time of the Applicant’s arrest. In R. v. Dugas, 2022 BCSC 1947, at para. 67, Thompson J. aptly described s. 493.1 of the Code as an "exhortation to police officers" requiring them to give primary consideration to the release of accused persons at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances with reference to s. 498(1.1) considerations.

[103] The record before me is devoid of anything to suggest that the SCPS officers involved in this case directed their minds, at any time, to their obligations under s. 493.1 of the Code. There is no mention of s. 493.1 in any officers’ notes or correspondence. DC Wright created the plan, arrested the Applicant and was, in my view, the officer most responsible for the Applicant under s. 493.1. His initial plan, informed by advice from Ontario Crown counsel, was to release the Applicant in British Columbia on an undertaking. In his testimony, DC Wright repeatedly confirmed his view that there were no grounds to detain the Applicant.

[104] DC Wright’s original release plan was sound. It was derailed by other officers, within SCPS and from VPD, who challenged him on his ability to release the Applicant in British Columbia. There is no evidence that DC Wright evaluated whether a six-day remand was necessary or appropriate when assessed through a lens of restraint. There is no evidence that DC Wright raised concerns with VPD or other officers of SCPS about how onerous the revised plan would be for the Applicant. Instead, DC Wright went along with what others suggested. He left for British Columbia without understanding the legal basis for seeking a six-day remand and without considering the implications of one for the Applicant’s liberty interests.

[105] Once the six-day remand was in hand, neither DC Wright nor Sgt. Cartwright gave a moment’s thought to taking a day and a half off while the Applicant sat in the Vancouver detention centre, in his pyjamas.

[106] The SCPS’ approach to preparing bail reports is a startling illustration of what I find to be a systemic lack of appreciation of what is required of police officers under s. 498.1 of the Code. The bail report tendered by DC Wright not only failed to reflect any principle of restraint, it did not even reflect DC Wright’s well-informed view that there were no grounds to detain the Applicant. The SCPS bail report practice represents a complete abdication of the officers’ duty under s. 493.1. I have little doubt such practice will continue without denunciation and intervention from the Court.

[107] The effect of the police conduct on the Applicant was significant. The Applicant was a 72-year-old man without a record. He was arrested in his home, detained for 72 hours, transported across the country wearing pyjamas and handcuffs, and subjected to a bail hearing without the benefit of an honest bail report from the arresting officer. He was then released to make his way home to Vancouver from St. Thomas.

[108] I find that there would be a loss of public confidence in the legal and judicial process if the prosecution in this case were to continue. The conduct in this case cannot be described as merely “unwise, unnecessary, inappropriate or improper”: R. v. Currado, 2023 ONCA 274, 426 C.C.C. (3d) 6, at para 17. The conduct in this case was wrong, excessive, and reflected a stark and troubling lack of consideration of the liberty interests of an accused presumed to be innocent. The conduct in this case, were it to continue, “will continue to trouble the parties and the community as a whole in the future”: Tobiass, at para 91.

Stage 2: Alternative remedies capable of redressing the injustice

[109] At the second stage of the test, the question is whether any other remedy short of a stay can redress the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category).

[110] Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Procedural remedies, such as ordering a new trial or excluding evidence are more likely to address the prejudice of ongoing trial unfairness.

[111] The Applicant has raised trial fairness as a concern, but acknowledges that a remedy short of stay would provide redress. In particular, the Applicant seeks as an alternative remedy an order excluding the statements made by him during his unlawful detention. An exclusion order would remedy any trial fairness concerns arising from the conduct at issue, such that a stay of proceedings would not be an appropriate remedy to concerns arising under the primary category.

[112] That leaves the residual category. I have found that the police misconduct constitutes a serious prejudice to the integrity of the justice system. The question is whether an alternative remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned police conduct going forward.

[113] I find that there is no just remedy short of a stay of proceedings that can adequately address the failure of the police to discharge their statutory obligations to the Applicant under ss. 503(1) and s. 493.1 in this case. Excluding evidence of the statements made to police or reducing the Applicant’s sentence could provide the Applicant an effective remedy for the breaches of his Charter rights, but no remedy short of a stay can address the systemic failure of the police service to know, understand and apply the law of arrest and detention. I find this to be particularly so in circumstances where the police set upon a course of action contrary to the legal advice received by them.

Stage 3: Balancing

[114] After considering stages one and two, I must balance the interests at the third stage of the analysis. The balancing stage has special importance in cases involving the residual category because the court is being asked to decide whether the integrity of the justice system is better protected by staying the proceedings or by having a trial. Balancing involves consideration of the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he faces, and the interests of society in having the charges disposed of on the merits.

[115] I have found the failure by SCPS to understand and discharge their statutory duties, and particularly those under ss. 493.1 and 503 of the Code, resulted in the wrongful and very lengthy detention of the Applicant. That conduct is likely to continue unless the Court strongly dissociates itself from it.

[116] The countervailing interest is the substantial social interest of having this fraud matter tried on its merits. In Babos, the Supreme Court considered the severity of the offence to be an appropriate factor to consider when deciding to grant a stay at stage three balancing analysis. The alleged offences in that case involved 22 charges concerning firearms, illegal drugs, and organized crime. The seriousness of the charges was a significant factor relied upon by the majority of the Supreme Court in declining to enter a stay of proceedings.

[117] This is a fraud case. The fraud was sophisticated and resulted in the loss of more than $1 million to the taxpayers of Strathroy Caradoc. However, the Crown concedes that it has no evidence suggesting that the Applicant orchestrated the fraud at issue or has connections to those who did; the case against the Applicant is about whether he had the requisite mens rea to establish criminal liability as a party to the fraudulent scheme of an unknown principal. These facts do not place the offence at the serious end of the spectrum.

[118] The Applicant’s personal circumstances do not strongly support a pressing need to have a trial on the merits. Assuming that the allegations are true, the Applicant is a 72-year-old man with no criminal record who was persuaded by an unknown actor to move money through a bank account. The Applicant knew or ought to have known that the money moving through his account was not his and did not belong to the person requesting his assistance. He ought to have declined involvement, or stopped facilitating the transfers once he became alert to the real situation.

[119] In the balance, I find that the social interest in having the case determined on its merits must yield to the pressing long-term interest served in demanding that the police serving our communities know, understand and assume responsibility for their mandatory obligations under ss. 498.1 and 503(1) of the Code, and the Charter.

Conclusion

[120] I conclude that the proceedings against the Applicant have been tainted by state conduct to such a degree that the only appropriate remedy is to enter a stay of proceedings.

“Justice M.A. Cook”

May 3, 2024 Justice M.A. Cook