Court File and Parties

Court File No.: CR-24-768-00
Date: 2025-01-07
Ontario Superior Court of Justice

Between:
His Majesty the King (Respondent)
and
R.B. (Applicant)

Applicant Counsel: Austin Corbett
Respondent Counsel: Matthew McLean

Heard: December 18, 19, 20 and 23, 2024

Justice: C. Petersen

Decision on Pre-Trial Application

Overview

The Applicant is facing charges of historical sexual assault and physical assault of his ex-wife. His trial is scheduled to commence on February 10, 2025, with jury selection scheduled to take place on January 10, 2025.
This Decision relates to a pre-trial application brought by the Defence. The Applicant seeks an Order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, staying this proceeding as a remedy for alleged breaches of his constitutional rights guaranteed by ss. 7, 9 and 11(b) of the Charter. If the requested stay is denied, the Applicant seeks an Order excluding certain evidence from his trial pursuant to s. 24(2) of the Charter. The latter request is made based on an alleged breach of his right to be secure against unreasonable search and seizure, as guaranteed by s. 8 of the Charter.
The Crown argues that the Applicant lacks standing to advance the s. 8 argument because the evidence in question came into the possession of police investigators in circumstances that did not amount to a search or seizure. In the alternative, the Crown submits that the Applicant’s expectation of privacy with respect to the disputed evidence is not objectively reasonable.
With respect to s. 11(b) of the Charter, the Information in this case was sworn on May 5, 2022, and the trial is scheduled to finish on February 14, 2025, which amounts to a period of 33 months and 9 days. The Crown argues that some of the delay in moving this case to trial was caused solely by the Defence. The Crown submits that the net delay between the date of the Applicant’s arrest and the scheduled end of the trial falls below the 30-month presumptive ceiling set out in R. v. Jordan, 2016 SCC 27. The Defence disagrees with the Crown’s calculation of the net delay.
The Crown initially took the position that there were no breaches of ss. 7 or 9 of the Charter in this case. However, after hearing three days of testimony from the military police officers who conducted the investigation into the complainant’s allegations, the Crown properly conceded three separate breaches of the Applicant’s s. 7 right not to be deprived of his liberty and security of his person except in accordance with the principles of fundamental justice. The Defence argues that there were more than three breaches of s. 7 during the investigation. I outline my findings with respect to the s. 7 issues below.
The Crown takes the position that, despite the admitted s. 7 breaches, this is not the “clearest of cases” in which a stay of proceedings is warranted.
The Crown continues to contest the alleged breaches of ss. 8, 9 and 11(b) of the Charter. I make no findings with respect to those rights infringements because, as set out below, I have concluded that a stay of this proceeding is required to remedy the multiple breaches of s. 7 of the Charter. It is therefore unnecessary for me to consider the Applicant’s other constitutional claims.

Undisputed Facts

The Applicant is currently a member of the Canadian Armed Forces (“CAF”). The complainant is currently a reserve member of the CAF. They met before either of them enlisted in the military. They dated for some time, lived together, and then married. They resided in Ontario at the beginning of their relationship and later moved to Alberta, after the Applicant joined the military in 2013. They are now separated.
The Applicant and complainant are the parents of three children. They were embroiled in a high-conflict custody battle in a family court proceeding in Alberta in 2021-2022. The military police investigation into the criminal charges before this court occurred concurrently with the family court proceeding.
In early April 2021, while the Applicant was deployed overseas, the complainant contacted Cpl. Rowley at the military police detachment in Edmonton and reported allegations of intimate partner violence committed by the Applicant throughout their relationship, both prior to and during their marriage. A few days later, the file was transferred to the Western Region office of the Canadian Forces National Investigation Service (“CFNIS”). CFNIS is the equivalent of a Major Crimes Unit within a civilian police force. Capt. Cindy Coté determined that the case satisfied the benchmark for CFNIS involvement because it included allegations of offences that were sexual in nature. She therefore decided that CFNIS would assume responsibility for the investigation.
On April 14, 2021, Capt. Coté assigned the file to a team of investigators in her office, consisting of (then) MCpl. Justin Brady as the primary investigator, (then) Sgt. Alex Petruk as the secondary investigator and Sgt. Glenda Gauthier as the General Manager. These individuals testified during the application hearing. I also heard testimony from RCMP Constable John Robinson, who was at that time a Petty officer 2nd class (“PO2”) in the CAF. He was posted to the CFNIS Western Region as an intern in July 2021 and had some involvement in the file.
The following is an overview of key dates and developments in the CFNIS investigation. It is not a comprehensive summary of all steps taken.
On April 14, 2021, the complainant emails Cpl. Rowley an outline of her allegations. She writes about being physically and mentally abused by her husband and says that he twice threatened to kill her. She states that he “never strangled or raped me.” She says, “A lot of times, I would drink a bunch of wine just to let my guard down and do whatever he wanted. To me that’s not rape, I willingly drank the wine in order to do it.” She describes incidents when he grabbed her arms hard, pushed her to the floor or onto furniture, shoved her, hit her, and slapped her. She says the physical assaults were “routine” and says they were part of a cycle of rage and abuse that was always followed by apologies.
On April 14, 2021, Sgt. Petruk interviews the complainant. MCpl. Brady monitors the interview, which is video recorded. Due to some unexplained problem, the first 20-30 minutes of the video recording are lost. That portion of the interview is only partially recorded in the monitor’s notes.
During her interview with Sgt. Petruk, the complainant makes allegations that the Applicant engaged in controlling and coercive behaviour, verbal abuse, numerous physical assaults (pushing, shoving, grabbing, slapping, whipping with a hard object), and two death threats. She says the Applicant never punched or strangled her. She accuses him of multiple infidelities with other women. She mentions that he lied to her about not having a sexually transmitted illness before having sex with her, which resulted in her being infected with herpes. She says he wanted sex all the time. She states that, when she was doing dishes or laundry, he would grab her “right in the crotch” over her clothes, while pestering her for sex. She says that happened on a regular basis throughout their marriage. She would drink wine “to put down her wall, knowing that it would lead to sex.” She would “have some drinks and do it just to appease him.” She states that the Applicant never raped her. She says she consented to all the sexual encounters they had, and she was always willing to have sexual intercourse with him, but she often had sex with him just to shut him up.
The complainant alleges that the reported incidents occurred in various cities in Ontario, Alberta, Africa, and the United Kingdom. Her allegations span more than 13 years. The alleged Ontario offences are historical in nature, dating from as early as 2007, before the Applicant and complainant joined the CAF. All the Alberta offences are alleged to have occurred during the Applicant’s military career.
The complainant shows Sgt. Petruk some messages from the Applicant on her cell phone. The messages could be construed as admissions of physical abuse.
On April 19, 2021, Sgt. Gauthier interviews the complainant using the Ontario Domestic Assault Risk Assessment (“ODARA”) actuarial tool. This interview is audio recorded, but not video recorded.
On May 3, 2021, the complainant forwards to Sgt. Petruk an email that she has just received from the Applicant, with a document attached. The attachment is an unsigned “Healing and Separation Agreement” apparently drafted by the Applicant. It includes statements that can be construed as admissions of intimate partner violence and unwanted sexual touching. This is the document that the Applicant seeks to have excluded from evidence if his trial proceeds.
On May 18, 2021, CFNIS obtains judicial authorization to search the complainant’s cell phone (with the complainant’s consent). A forensic copy of the complainant’s cell phone is then made by CFNIS.
In May 2021, CFNIS consults with the Alberta Crown’s office about the complainants’ Alberta allegations. The Crown’s office recommends no charges for sexual assault.
On June 29, 2021, the Applicant returns from his deployment overseas and is arrested by CFNIS officers upon his arrival at the Edmonton airport. He is charged with two counts of assault dating from 2016.
The Applicant is released on an undertaking with strict conditions designed to ensure the complainant’s safety. His cell phone is seized and is searched pursuant to a warrant.
In July 2021, Sgt. Petruk is promoted to Warrant Officer (“WO”). At that point, he outranks Sgt. Gauthier, who is still the Case Manager for the investigation. This means that Sgt. Gauthier is responsible for overseeing his actions as the secondary investigator on the file, but he is also charged with reviewing some of her actions as Case Manager, for example with respect to the ultimate disclosure package that is prepared for the Crown’s office.
On August 19, 2021, WO Petruk attends at the complainant’s residence to obtain her consent for the release of her health records. This is done to try to obtain corroboration of her allegation about the transmission of an STI. During that meeting, the complainant informs WO Petruk about ongoing family court litigation between her and the Applicant.
In August or early September 2021, MCpl. Brady consults with the Ontario Crown’s office about the complainant’s Ontario allegations.
In September 2021, the complaint contacts CFNIS and alleges that the Applicant has breached his conditions of release. The alleged breach involves gifts that the Applicant gave to his children, which contained messages that the complainant interpreted as indirect communications with her. MCpl. Brady is away on a course at that time, so Sgt. Gauthier meets with the complainant with PO2 Robinson on September 13, 2021. They interview the complainant and her children in the complainant’s home. The interview is audio recorded.
Sgt. Gauthier contacts the RCMP in St. Albert, Alberta and notifies them of what she believes to be a breach of conditions by the Applicant. On September 28, 2021, the RCMP notify Sgt. Gauthier that they are not going to charge the Applicant with a breach of conditions.
On November 4, 2021, the Ministry of National Defence announces that, pursuant to recommendations made by retired Supreme Court Justice Louise Arbour, all criminal offences of a sexual nature alleged to have been perpetrated by a CAF member will be referred by military police to civilian authorities.
The next day, on November 5, 2021, the Applicant enters into a Peace Bond and the Alberta Crown withdraws the charges against him.
On November 15, 2021, Sgt. Gauthier, MCpl. Brady, and WO Petruk meet with the complainant to discuss the Minister’s announcement and to explain that a further statement will be required from her if the CFNIS is going to proceed with charges against the Applicant in Ontario. This meeting is neither video nor audio recorded. MCpl. Brady takes notes.
During the November 15, 2021 meeting, the complainant is upset about the withdrawal of the Alberta charges and is frustrated by the family court proceeding. She expresses concern that the family court judge is believing the Applicant and not believing her. After discussing the family court proceeding, she indicates a willingness to do a follow-up interview about the Ontario allegations. She requests a copy of the WhatsApp messages that she exchanged with the Applicant. She explains that she lost the messages because she changed her cell phone.
The CFNIS investigators do not know why the complainant wants the WhatsApp messages, whether it is to prepare for the follow-up interview or to use them in the family court proceeding (or both). Instead of simply providing her with a copy of the messages, WO Petruk gives her the entire forensic copy of her previous cell phone. A forensic copy of a phone includes data that would not be accessible to the cell phone’s user, such as metadata attached to files (indicating the date of creation or date of amendment of files) and deleted messages.
Sgt. Gauthier conducts the follow-up interview of the complainant on December 15, 2021. MCpl. Brady monitors the interview. It is video-recorded and also audio-recorded as a back-up, because the investigators know that the CFNIS video equipment is outdated and unreliable. The video recording fails and cannot be recovered.
In early 2022, the CFNIS engage in further consultations with the Ontario Crown.
On May 5, 2022, the Applicant is arrested by CFNIS investigators at his place of work. He is charged with four counts of sexual assault and one count of assault, dating from 2007 to 2011. The charged offences are all alleged to have occurred in Ontario, at a time when both the Applicant and the complainant were civilians. (The indictment has since been amended to consolidate the allegations into a single charge of assault and a single charge of sexual assault, both covering numerous alleged incidents.)
The Applicant is released on an undertaking with conditions designed to ensure the complainant’s safety.

Breaches of Section 7 of the Charter