Court File and Parties

Court File No.: CR-25-90000042 Date: 2025-10-20 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent – and – Christopher Musclow & Kurtis Letts, Appellant

– and –

Attorney General of Ontario, Intervener

Counsel:

• Victoria Rivers, for the Crown
• Liam Thompson, for Christopher Musclow
• Michael S. Dunn and Eunwoo Lee, for the Intervener

Heard: May 26, 27, 28 and June 27, 2025

Reasons for Judgment on Charter Application

R.F. Goldstein J.

Background

[1] On February 27, 2024, correctional officers at the Toronto South Detention Centre searched Cell A2B. Christopher Musclow and Kurtis Letts shared that cell. The officers found drugs and a home-made weapon. Mr. Musclow was charged with an institutional disciplinary offence. He was found guilty and punished. He was sentenced to 10 days in the Behavioural Care Unit ("BCU"), followed by 30 days in the Behavioural Care Step Down Unit ("BCDU").

[2] In this court Mr. Musclow faces two counts of possession of a controlled substance for the purpose of trafficking. His counsel argues that:

• The prosecution should be stayed as it offends the rule against double jeopardy;
• The search violated s. 8 of the Charter of Rights as it was conducted without pre-authorization;
• Questioning by correctional officers of Mr. Musclow violated s. 10(b) of the Charter of Rights; and,
• If the prosecution is not stayed, then the evidence seized from Mr. Musclow's cell should be excluded under s. 24(2) of the Charter of Rights.

[3] I disagree. On September 25, 2026, I dismissed the application with reasons to follow. I said at the time:

For reasons to be released in due course, I make the following findings:

• I do not agree that the prosecution of inmate disciplinary offences and criminal offences engages s. 11(h) of the Charter. Even if I am wrong, double jeopardy does not apply in this case, as there is no identification as between the inmate disciplinary offence and the criminal offences in this case.

• There was no violation of s. 8 of the Charter. The search of Mr. Musclow's jail cell was properly authorized. There was a record upon which a reviewing judge was able to make a finding. There is no requirement that a correctional official with delegated powers, such as Deputy Superintendent Milosevic, must give reasons for authorizing a search of a jail cell.

• I find that there was no violation of s. 10(b) when Correctional Officer Villanueva spoke to Mr. Musclow.

• There is need to address s. 24(2) of the Charter, although if there were violations they were minor ones.

[4] The application is therefore dismissed. What follows are my reasons.

Detailed Background

[5] In February 2024 Christopher Musclow and Kurtis Letts shared cell A2B at the Toronto South Detention Centre ("TSDC"). They were both in pre-trial detention. "Ayesha Abassi Law" sent Letts a letter. On February 20, 2024, Correctional Officer Gruca was a member of the Institutional Security Team ("IST"). CO Gruca conducted a routine x-ray of the letter. The letter contained anomalies. Deputy Superintendent Milosevic directed that CO Gruca open the letter. CO Gruca needed permission as the letter was from a lawyer and therefore presumptively covered by solicitor-client privilege. The letter contained substances that appeared to be drugs. CO Gruca generated an Occurrence Report that same day, February 20, 2024. He described what he did and what was found. On February 26, 2024, DS Milosevic authorized a search of cell A2B, the cell of Mr. Musclow and Letts. The IST carried out the search the next day.

[6] The IST discovered the following things in the cell:

(a) a plastic bag with a white substance inside of it on the inmate table;

(b) orange pills in a paper cup on the inmate table;

(c) another envelope addressed to Letts from Abbassi, but on Mr. Musclow's bed;

(d) a brown folded paper containing smaller pieces of paper and powder on Lett's bed;

(e) a pencil with a sharp piece of metal appended to it on the floor of the cell;

(f) a white envelope from the floor of the cell with ripped paper inside of it;

(g) strips of a coffee whitener package and empty plastic wrapping inside a book on Mr. Musclow's bed;

(h) another piece of paper inside a different book on Mr. Musclow's bed;

(i) an empty potato chip bag with a clay like substance underneath Mr. Musclow's mattress;

(j) a second envelope addressed to Letts from Abbasi in a property bag believed to belong to the Applicant; and

(k) an institutional sock on top of a blanket on the floor inside of which was a nitrile glove with 11 pieces of paper containing powder and a plastic bag with powder.

[7] Health Canada subsequently tested the contents of the nitrile glove. The glove contained 0.81 grams of Buprenorphine. The paper flaps contained 0.5 grams of MDMA, or ecstasy.

[8] While the IST searched the cell, CO Villanueva conducted a "debrief" with Mr. Musclow. CO Villanueva cautioned Mr. Musclow. The purpose of the "debrief" was to gather information related to the security of the institution. The Crown does not seek to introduce any statements from this "debrief".

[9] On February 27, CO Gruca generated a Misconduct Report. The allegation was that Mr. Musclow had contravened s. 29(f) of the Regulation under the Minister of Correctional Services Act, R.S.O. 1990, c. M.22. He served a Misconduct Notice on Mr. Musclow. He noted that the IST had seized "contraband in the form of a white powder substance" and "a homemade weapon described as a pencil with a razor blade attached to it." On February 29th Staff Sergeant Obanjo, who was assigned to investigate, met with Mr. Musclow and offered him the opportunity to make a statement. Mr. Musclow declined and denied knowledge of the contraband found in his cell. The same day he had a further interview. Mr. Musclow did not wish to make a statement at that time either. He stated that since he might be criminally charged, his lawyer had told him that he could not comment.

[10] Staff Sergeant Onabajo found Mr. Musclow guilty of institutional misconduct. As noted, the penalty was 10 days in the BCU and 30 days in the BCSDU.

[11] In his evidence, DS Milosevic testified that the BCU is what was previously known as segregation but modified in light of court decisions. It is no longer solitary confinement. Inmates have their own cell but have access to a day area with a television, soft seating, access to a yard, and programming. Inmates in the BCU are supposed to have two hours out of their cells for socializing, and two hours for programming. Depending on security classification, inmates go either to an indirect supervision unit or a direct supervision unit. Inmates with a higher security classification go to an indirect supervision unit. An indirect supervision unit is one where the correctional officers do not mingle with the inmates. The correctional officers supervise from behind a barrier. A direct supervision unit is one where the inmates mingle with the inmates. The correctional officers supervise the inmates directly. Inmates in an indirect supervision unit have fewer privileges than inmates in a direct supervision unit. The goal is to incentivize prisoners to want to go to an indirect supervision unit. As it turned out, Mr. Musclow only spent 3 days in the BCU and then went to a BCDU. Despite a mandate for more time out of his cell, it appears from the documentary evidence that Mr. Musclow did not get the required yard time and socialization time while in the BCU or the BCDU.

[12] The police charged Mr. Musclow with possession of schedule 1 substances for the purpose of trafficking separate and apart from the inmate misconduct penalties. The indictment currently before the court charges Mr. Musclow with:

• Possession of methylenedioxyamphetamine (MDMA), commonly known as ecstasy, for the purpose of trafficking. MDMA is a Schedule I drug under the Controlled Drugs and Substances Act, SC 1996, c 19.

• Possession of buprenorphine for the purpose of trafficking. Buprenorphine is a prescribed medication used to treat opioid use disorder and pain. It is a Schedule I drug under the Controlled Drugs and Substances Act.

[13] The Crown initially charged Letts but has since withdrawn the charges. The Crown is proceeding only against Mr. Musclow. The Crown is not seeking to use any statements that Mr. Musclow made to any correctional officers at the trial.

Issues

[14] Mr. Thompson, on behalf of Mr. Musclow, makes four arguments:

• First, that the charges should be stayed as the prosecution offends Mr. Musclow's right against double jeopardy;
• Second, that Mr. Musclow's right against unreasonable searches was violated because the search was not properly authorized;
• Third, that Mr. Musclow's right to counsel as guaranteed by s. 10(b) of the Charter was violated when correctional officers interviewed him without providing him a right to counsel; and,
• Fourth, if the prosecution is not stayed, then the evidence should be excluded at Mr. Musclow's trial.

Analysis

a) Does the prosecution offend the rule against double jeopardy?

[15] Mr. Thompson, for Mr. Musclow, makes the following argument: Mr. Musclow was convicted in a custodial disciplinary proceeding. The proceeding resulted in a true penal consequence: 10 days in the BCU, and 30 days in the BCDU. A stay in the BCU or the BCDU entails a loss of liberty within the Toronto South Detention Centre (although not a loss of earned remission in Mr. Musclow's case, as he was facing charges rather than serving a sentence). The penal consequences engage s. 11 of the Charter. Mr. Musclow faces charges in this court that are identical to the Toronto South inmate disciplinary offences. Mr. Thompson argues that, as a result, applying the Supreme Court of Canada's very recent case of John Howard Society v. Attorney General of Saskatchewan, 2025 SCC 6, 500 D.L.R. (4th) 385 ("John Howard Society"), the s. 11(h) Charter guarantee against double jeopardy applies.

[16] In John Howard Society, the relevant Saskatchewan legislation required that inmate disciplinary offences need only be proven on a balance of probabilities. A consequence to the inmate could be a time in segregation. The majority of the court found that the loss of liberty constituted a punishment of sufficient magnitude that it constituted a true penal consequence: R. v. Wigglesworth, [1987] 2 S.C.R. 541. By the same logic, Mr. Thompson argues, s. 11 is engaged here because Mr. Musclow suffered a loss of liberty. As a result, the Charter's guarantees found in s. 11 generally – rights to a person charged with an offence – apply broadly. Those rights include the right against double jeopardy found in s. 11(h) of the Charter. Any further prosecution would violate that right. As a result, this court should stay the two drug charges Musclow currently faces.

[17] I cannot agree. John Howard Society does not go so far as to apply the right against double jeopardy to inmate disciplinary offences. In other words, s. 11(h) is not violated where a criminal prosecution follows an inmate disciplinary proceeding. Even if I am wrong in that regard, the application cannot succeed because the inmate discipline offence has different elements than the criminal offences before the court.

[18] The John Howard Society ("JHS") is an organization that advocates for and supports prisoners. JHS challenged the constitutionality of s. 68 of the Saskatchewan Correctional Services Regulations. Sections 50 and following of the Saskatchewan Regulations set out a code of procedure for disciplinary offences. If a discipline panel finds that an inmate has committed a "major disciplinary offence" it may impose a sentence. Disciplinary offences are listed in the Regulations and include offences such as possession of contraband or the manufacture and possession of alcohol. Hearings for major disciplinary offences must be "full and fair" and recorded. Inmates have several rights, including the right to be present, the right to present information, and a limited right to call witnesses. Section 68 of the Regulations – the section that was challenged in John Howard Society – requires that the panel be satisfied on a balance of probabilities that the inmate committed the disciplinary offence. The majority of the Court found that the balance of probabilities standard violated the presumption of innocence and that the standard of beyond a reasonable doubt should apply to inmate disciplinary offences.

[19] John Howard Society overturned the Supreme Court's previous ruling in R. v. Shubley, [1990] 1 S.C.R. 3. In Shubley, the Supreme Court determined that prison disciplinary proceedings are not criminal in nature. The disciplinary measures did not involve the imposition of true penal consequences. The majority of the Supreme Court in John Howard Society agreed to consider the issue afresh: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3. Chief Justice Wagner, writing for the majority, found that the legal foundations of the original finding in Shubley had been eroded by developments in the law. Wagner C.J. agreed that it was appropriate to reconsider Shubley.

[20] Wagner C.J. then turned to whether s. 11 of the Charter was engaged. Drawing on Wigglesworth, he reiterated that s. 11 can be invoked where proceedings are either "criminal in nature" or may lead to "true penal consequences." Proceedings that are "criminal in nature" are analogous to a criminal case. These proceedings include a charge, an arrest, and a criminal record. The "true penal consequence" test is "always" satisfied when there is the possibility of imprisonment. The punishment of disciplinary segregation and the loss of earned remission constitute true penal consequences. They are therefore "punishment" for the purposes of s. 11 of the Charter. After reviewing the history of disciplinary segregation, the Chief Justice stated at para. 66:

This history reveals that disciplinary segregation has always been understood as a uniquely severe form of punishment for inmates. While the conditions of disciplinary segregation have evolved over time, this form of punishment by its very nature has the effect of significantly curtailing an inmate's freedom of movement while severely limiting access to human interaction.

[21] Wagner C.J. also found that loss of earned remission (which does not apply here) is a true penal consequence.

[22] Section 11(d) of the Charter requires that where a person faces true penal consequences the presumption of innocence applies. That means the prosecution must prove offences beyond a reasonable doubt. Since s. 68 of the Saskatchewan Regulations permitted a finding of guilt based on a balance of probabilities, the majority found that the section offended the presumption of innocence. Wagner C.J. found that even if s. 11(d) did not apply, s. 7 of the Charter would. At para. 76, the Chief Justice stated that he would "leave for another day" whether s. 11 of the Charter applies to minor disciplinary offences. Wagner then found that the violation was not saved by s. 1 of the Charter.

[23] The dissent would have found s. 68 of the Saskatchewan Regulations to be constitutional. The dissent argued that Shubley was still good law and that the disciplinary proceedings did not result in true penal consequences. There was some mention of s. 11(h) of the Charter and double jeopardy in both the minority and dissenting judgments, but no significant discussion.

[24] In my view, s. 11(h) of the Charter does not apply generally to inmate disciplinary proceedings. I say that for three reasons: first, the interpretation of John Howard Society does not engage double jeopardy principles; second, in this particular case the CDSA offences and the inmate disciplinary offence have different elements; and third, the application of s. 11(h) to inmate disciplinary proceedings would lead to absurd results that John Howard Society does not require.

The interpretation of John Howard Society does not engage double jeopardy principles

[25] Section 11(h) of the Charter states:

11 Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again…

[26] The proper approach to the interpretation of the Charter is a purposive one. A purposive approach is simply one that examines and considers the underlying purpose of the right: R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 at para. 117. As Dickson C.J.C. stated at para. 118 of Big M Drug Mart:

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought, by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this court's decision in L.S.U.C. v. Skapinker illustrates, be placed in its proper linguistic, philosophic and historical contexts.

[27] The original interpretation of s. 11(h) is found in Wigglesworth. Wigglesworth remains good law: John Howard Society at para. 49.

[28] Wigglesworth was an RCMP officer. He questioned a man under arrest at an RCMP detachment. He did not like the answers the man gave. Wigglesworth slapped the man's face three or four times until he got the answer he wanted. Wigglesworth was charged with assault. He was also charged with a service offence under the Royal Canadian Mounted Police Act (RSC, 1985, c. R-10). An RCMP inspector found him guilty of the service offence. The Royal Canadian Mounted Police Act included a punishment of up to one year imprisonment. The inspector fined him $300.00. Wigglesworth then appeared before a provincial judge to answer the criminal charge of assault. The judge found that proceeding with the charge would violate s. 11(h) – the double jeopardy provision – because the service proceedings and the criminal proceedings were both penal in nature involving a possible jail sentence. The provincial judge then stayed the criminal assault charge. The Saskatchewan Court of Queen's Bench allowed the Crown's appeal. The Court of Appeal upheld it on the grounds that the RCMP service offence was purely "disciplinary".

[29] Wilson J., for the Court, examined the meaning of "charged with an offence" found in s. 11 of the Charter. She considered whether the section applied to non-criminal proceedings. Wilson J. was of the view that s. 11 of the Charter applied to "persons prosecuted by the state for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences, either federally or provincially enacted.": See para. 25. Wilson J. was also concerned for the future development of the law. She stated at para. 29 of Wigglesworth:

Unless the section is restricted to criminal or penal matters there may be serious difficulty in giving the section a reasonably consistent application. The particular content of the various rights set out in s. 11 may well vary according to the type of proceeding if a broader definition is given to the opening words of the section. It is beyond question that those rights are accorded to those charged with criminal offences, to those who face the prosecutorial power of the state and who may well suffer a deprivation of liberty as a result of the exercise of that power. The content of those rights ought not to suffer from a lack of predictability or a lack of clarity because of a universal application of the section. As is obvious from a study of the various rights enumerated in the section, they are crucial fundamental rights whose meaning ought to be made crystal clear to the authorities who prosecute the offences falling within the section. For this reason it is, in my view, preferable to restrict s. 11 to the most serious offences known to our law, i.e., criminal and penal matters, and to leave other "offences" subject to the more flexible criteria of "fundamental justice" in s. 7.

[30] Wilson J. acknowledged at para. 30, however, that it may be difficult in some circumstances to tell whether a specific proceeding is caught by s. 11 of the Charter. She noted that proceedings of a public nature, "intended to promote public order and welfare within a public sphere of activity" fall within s. 11. She distinguished "private, domestic, or disciplinary matters which are regulatory, protective, or corrective and which are primarily intended to maintain discipline, professional integrity, and professional standards or to regulate conduct within a limited private sphere of activity.": see para 32. Some matters involving proceedings other than pure criminal or quasi-criminal charges, however, may be subject to s. 11 not because of the nature of the proceeding but because of the magnitude of the consequences. Such matters would involve a true penal consequence. She quoted Professor Stuart's comment about the Court of Appeal's decision and stated at para. 33:

In "Annotation to R. v. Wigglesworth" [citation omitted], Professor Stuart states:

... other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s. 11(h).

I would agree with this comment but with two caveats. First, the possibility of a fine may be fully consonant with the maintenance of discipline and order within a limited private sphere of activity and thus may not attract the application of s. 11. It is my view that if a body or an official has an unlimited power to fine, and if it does not afford the rights enumerated under s. 11, it cannot impose fines designed to redress the harm done to society at large. Instead, it is restricted to the power to impose fines in order to achieve the particular private purpose… other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s. 11(h). I would agree with this comment but with two caveats. First, the possibility of a fine may be fully consonant with the maintenance of discipline and order within a limited private sphere of activity and thus may not attract the application of s. 11. It is my view that if a body or an official has an unlimited power to fine, and if it does not afford the rights enumerated under s. 11, it cannot impose fines designed to redress the harm done to society at large. Instead, it is restricted to the power to impose fines in order to achieve the particular private purpose.

[31] Ultimately, the Supreme Court found that the prosecution of Wigglesworth did not offend the rule against double jeopardy, even though a conviction under the Code of Discipline was a true penal consequence, because the two proceedings were totally separate, had different forums, and the internal service offence proceeding was entirely different from the criminal proceeding.

[32] In my view, the key takeaway from Wigglesworth that applies here is that a set of facts can give rise to different outcomes without giving rise to a double jeopardy situation.

[33] Turning back to John Howard Society, Wagner C.J. found at para. 31 that "the key question in the case is whether disciplinary segregation and loss of earned remission constitute forms of "imprisonment" under the true penal consequences test." He answered "yes", which overturned Shubley. A legal precedent can be overturned because it rests on eroded legal foundations or because it has become unworkable. Wagner C.J. did not address the question of unworkability. Rather, he decided to re-visit Shubley because the foundations of that case had eroded due to significant legal change: John Howard Society at paras. 32, 33; R. v. Edwards, 2024 SCC 15, 492 D.L.R. (4th) 1. The Chief Justice found that Shubley rested on a formalistic interpretation that has been overtaken by a functional interpretation: John Howard Society at paras. 34, 38. He argued that the majority in Shubley rested the decision on a distinction between a sentence of imprisonment and conditions of imprisonment, a formalistic approach that has been overtaken in subsequent decisions. When considered functionally, and considering that there can be deprivations of liberty even for those who are incarcerated, the Chief Justice found that approach in Shubley no longer accords with the "true penal consequences" test set out in Wigglesworth.

[34] In my respectful view, however, it does not inevitably follow that s. 11 applies indiscriminately every time there are parallel criminal and disciplinary offences, and both have true penal consequences. Recall, Wilson J. noted in Wigglesworth: "The particular content of the various rights set out in s. 11 may well vary according to the type of proceeding…" As well, Wagner C.J. was careful to warn against over-reach when he warned at para. 77 of John Howard Society:

Finally, I would note that this holding does not mean that s. 11 necessarily applies anytime a person faces a deprivation of liberty by the state as severe as that resulting from a sentence of imprisonment. Section 11 applies only when a person is "charged with an offence" that carries the risk that such consequences will be imposed. This mitigates any concern that, if a functional understanding of imprisonment is embraced for the purposes of the Wigglesworth true penal consequence test, s. 11 will become too broad in scope and will apply to all proceedings or circumstances involving severe deprivations of liberty by the state.

[35] Again, I note that the court in John Howard Society was careful to state that Wigglesworth remains good law.

[36] The authorities suggest a relatively narrow scope for the application of the double jeopardy principle. Indeed, "double jeopardy" is not a specific rule but rather a concept that has its application in specific rules.

[37] In R. v. Van Rassell, [1990] 1 S.C.R. 225, McLachlin J. (as she then was), explained at para. 16 that the double jeopardy concept "is a principle of general application which is expressed in the form of more specific rules, such as the plea of autrefois acquit, issue estoppel, and the rule stated in Kienapple" – Kienapple being the rule that bars multiple convictions for the same wrongful act: R. v. Kienapple, [1975] S.C.R. 729. Accordingly, each of the defences put forward by Van Rassel had to be considered separately: para. 16.

[38] Van Rassel was an RCMP officer. He was working on an investigation with the American Drug Enforcement Administration. He allegedly provided information from the DEA to the target in exchange for a bribe. He was charged, tried, and acquitted in the United States with soliciting and accepting bribes. He was also charged in Canada with breach of trust. The trial judge stayed the Canadian charges, relying on issue estoppel, autrefois acquit, and Kienapple. The Court of Appeal allowed the Crown's appeal.

[39] McLachlin J., examined each defence. She found that issue estoppel, autrefois acquit and the rule in Kienapple did not apply: paras. 34, 39, 42. What is important for this case is that McLachlin J. also considered whether s. 11(h) applied generally. Relying on Wigglesworth, she noted that double jeopardy can only apply where the two offences with which the accused is charged are the same. She then found that double jeopardy did not apply: para 44. The Crown could then continue to prosecute Van Rassel: para 45.

[40] Other cases have considered the principles in Van Rassel. I will mention two. In United States of America v. Lane, 2017 ONCA 396, 138 O.R. (2d) 167, leave to appeal refused, [2017] S.C.C.A. No. 390, at para. 57, the Ontario Court of Appeal noted that the Court in Van Rassel looked not at the accused's conduct, but rather to distinctions between the essential elements of the two different sets of charges. In Canada (Attorney General) on behalf of the United States of America v. Tyndall, 2021 ABCA 95, 29 Alta. L.R. (7th) 40, leave to appeal refused, [2021] S.C.C.A. No. 174, police received information from the United States about child luring involving a girl in Pennsylvania. Relying on the American information, police executed warrants at the accused's home. They found more child luring information. He was charged, pleaded guilty, and was sentenced for offences in relation to the possession of child pornography and child luring. The United States sought extradition. The Court of Appeal found that the victim in the United States was different from the Canadian victims. The Court upheld the extradition order.

[41] In this case, Mr. Musclow has not pointed to issue estoppel or the rule in Kienapple. Nor has he pointed to autrefois acquit. Those manifestations of the double jeopardy principle do not apply here, for obvious reasons. But what of s. 11(h) on a standalone basis? In Van Rassel McLachlin J. stated at para. 44:

In the present case the American and Canadian offences are different because they are based on duties of a different nature. Even though the American and Canadian offences are purely criminal in nature, the alleged conduct of the accused has a double aspect: first, wrongdoing as a Canadian official with a special duty to the Canadian public, under s. 111 [now s. 122] of the Criminal Code, and second, wrongdoing as an American official or member of the American public temporarily subject to American law. The accused must now account for his conduct to the Canadian public as well as to the American public, as the offences relate to different duties.

[42] In other words, even though both proceedings involved true criminal prosecutions, with factual overlap, it did not necessarily follow that s. 11(h) applied.

[43] In Mr. Musclow's case, both proceedings may result in true penal consequences, but the purposes of each proceeding engage entirely different interests, different victims, and different purposes. The inmate disciplinary proceeding involves the maintenance of order and discipline in the jail. The penalty is designed to promote a safe environment for staff and other inmates by deterring the possession of contraband. The inmate disciplinary proceedings apply only within the institution. In contrast, the drug prosecution engages wider community concerns of general deterrence, rehabilitation, and denunciation. Moreover, there is a moral dimension to the drug offences that does not exist in the inmate disciplinary context. The ends served by the criminal law include public peace, order, security, health, and morality: R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 116, 207, 212, and 241. Or, to put it in Van Rassel terms, the inmate disciplinary offence involves the inmate's obligation within the correctional institution to refrain from doing things that would upset order, discipline, and safety (such as possession of contraband). The criminal offence involves a person's obligation to refrain from committing crimes that endanger public health and have a moral aspect, such as drug trafficking.

[44] Finally, the inmate disciplinary offences and the drug offences are simply not the same, which I turn to next.

There is no identification between the disciplinary offence and the drug offences

[45] Even if s. 11(h) would prevent a subsequent criminal prosecution following an inmate disciplinary proceeding, it would not yield a stay in this case. That is because the elements of the inmate disciplinary offence and the drug offences are different.

[46] Section 29 of the Regulation under the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 states:

29. An inmate commits a misconduct if the inmate,

(f) has contraband in their possession or attempts to or participates in an attempt to bring contraband in or take contraband out of the institution.

[47] The Regulation defines "contraband" as: "unauthorized property in the possession of an inmate."

[48] CO Gruca's misconduct report described two types of contraband: the white powdered substance and the homemade weapon, or shank. The misconduct did not allege that Mr. Musclow had either the powder or the shank in his possession for the purpose of trafficking. As well, the powder in the misconduct is not particularized. In contrast, the indictment only charges Mr. Musclow with two counts of possession of a schedule I substance for the purpose of trafficking. The substances are particularized in the indictment. The indictment does not charge Mr. Musclow with possession of a weapon.

[49] In other words, Mr. Musclow's misconduct punished him for possession of a weapon – something that he is not charged with in this court – as well as simple possession of unspecified contraband. Mr. Musclow's misconduct did not punish him for possession of contraband for the purpose of trafficking – something that he is charged with in this court.

[50] In my view, the requirements of Kienapple regarding the identification of offences simply do not apply here. The elements of the offences are different. Accordingly, s. 11(h) of the Charter does not apply.

Indiscriminate application of s. 11 would lead to absurd consequences

[51] Finally, indiscriminate application of s. 11 is an overreach that could lead to absurd consequences. I turn to that next.

[52] The application of s. 11(h) to inmate disciplinary proceedings could lead to absurd results: A principle of statutory interpretation is that the interpretation of legislation should not lead to an absurd result: Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 at para. 27.

[53] The interpretation urged by Mr. Musclow could lead to the kind of absurd consequences noted in Rizzo. To take the most obvious example: one morning correctional officers unlock a cell and find a live inmate and a dead inmate. The dead inmate had been healthy the night before when the cell was locked. The dead inmate has been stabbed multiple times. He has bled to death. The live inmate has the dead inmate's blood on his hands and clothing. The correctional officers find a shank in the cell. They call the police. The police charge the live inmate with murder. The correctional officers also charge the inmate with a prison disciplinary offence. He is swiftly dealt with by the inmate disciplinary system. He is found guilty of the disciplinary offence. He is sentenced to a period of de facto segregation for 30 days and kept away from other prisoners permanently. The criminal justice system works more slowly but when the murder charge reaches the Superior Court the defence asks for a stay of proceedings based on a violation of s. 11(h) of the Charter, as the inmate has already been disciplined within the prison system for stabbing his cellmate to death.

[54] Respectfully, it would be an absurd result if the imposition of 30 days in a form of segregation led to the stay of a murder charge, even if a 30 day stay in segregation was itself a Charter violation. That, however, is the implication if s. 11(h) were to apply to prison disciplinary proceedings without any consideration of the collateral consequences.

[55] Policy reasons also militate against an absurdity. I appreciate that policy cannot overcome Charter guarantees. That is the effect of R. v. Oakes, [1986] 1 S.C.R. 103, where the Supreme Court held, in the s. 1 context, that even where a government objective is pressing and substantial, legislation may still violate a Charter right.

[56] As noted, the purpose of inmate disciplinary legislation is to maintain order and discipline in custodial institutions to create a safe environment conducive to the protection of the public and the rehabilitation of offenders. On many occasions inmates have committed criminal offences. Many more will in the future. Some of these offences – such as drug trafficking – are very serious. Those offences, by their very nature, will constitute inmate disciplinary offences. To apply s. 11(h) in the manner suggested would lead to the very unfortunate result that correctional authorities would likely have to choose between preventing harm to other inmates by separating the dangerous ones or preventing the Crown from prosecuting serious offences. That is obviously not a desirable outcome. The law should be interpreted to avoid it.

b) Was Mr. Musclow's right against unreasonable searches pursuant to s. 8 of the Charter of Rights violated?

[57] Mr. Thompson argues that the search of Mr. Musclow's cell was characterized by what he calls an anemic authorization process. He does not argue that full reasonable and probable grounds are required (in that respect, he wisely resiled from this initial position taken in his factum). He argues, however, that more procedural fairness is required. The written record of decision is insufficient, which makes the decision essentially unreviewable. Relying on the decision in Vavilov v. Canada, 2019 SCC 65, [2019] 4 S.C.R. 653, Mr. Thompson argues that there is a duty to provide reasons for the authorization. As he puts it in his factum:

The statutory scheme, while not requiring the institution to go so far as seeking a formal judicial authorization, does specifically contemplate some form of prior authorization. The decision to intrude on someone's privacy is obviously important to the individual affected given both the intrusion itself and the possibility of a true penal consequence of imprisonment. While the choice of the procedure of the decision maker here obviously tends towards the summary, this factor must be assessed in light of the recent development in the law which recognizes disciplinary segregation is a true penal consequence which attract a criminal standard of proof at the fact-finding stage.

[58] Respectfully, I cannot agree. The argument conflates procedures required for administrative decision-makers with those who authorize searches. It also fails to account for the much-reduced expectation of privacy in a jail cell. Finally, it does not consider the fact that there is a record upon which a reviewing court can determine the lawfulness of the search.

[59] Section 8 of the Charter protects against unreasonable search and seizure. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner of the search is reasonable.

[60] Whether a person has a reasonable expectation of privacy must be assessed in the totality of the circumstances. In R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, the Supreme Court set out four lines of inquiry at para. 11:

• What was the subject matter of the alleged search?
• Did the claimant have a direct interest in the subject matter?
• Did the claimant have a subjective expectation of privacy in the subject matter?
• If so, was the claimant's subjective expectation of privacy reasonable?

[61] The subject matter of the search was Mr. Musclow's jail cell, where he obviously had a direct interest. Undoubtedly, as an inmate, Mr. Musclow's subjective expectation of privacy would have been low. A very low expectation of privacy would be objectively reasonable. If he did have a high expectation of privacy, it would have been unreasonable.

[62] To be fair, Mr. Musclow does not claim a high expectation of privacy. It is obvious that an inmate has a reduced expectation of privacy in a custodial setting: R. v. Singh, 2016 ONSC 1144, 350 C.R.R. (2d) 302; R. v. Siniscalchi, 2010 BCCA 354, 257 C.C.C. (3d) 329. In Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, at p. 3, LaForest J. stated:

Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices.

[63] In R. v. Everingham, 2014 ONCA 743, 122 O.R. (3d) 641, the Ontario Review Board ordered an inmate in a secure psychiatric facility refrain from computer use unless hospital staff had permission to monitor the content and messaging. The Court of Appeal, relying on Weatherall, held at para. 33 that the "nature and extent of the Charter interests of an inmate of a correctional facility are necessarily informed by the inmate's institutional setting." Given the setting and the nature of the potential threat to public safety, there could be very little or no expectation of privacy regarding his computer use.

[64] In R. v. Major, 186 C.C.C. (3d) 513 (ONCA), an inmate's wife and daughter were scheduled for a weekend family visit at one of the trailers at Collins Bay penitentiary. The institutional preventive security officer learned that the inmate's wife would be bringing in marijuana and heroin. The security officer investigated. He obtained legal advice about the legality of a search of the family visit trailer. The warden and deputy warden authorized a search of the trailer pursuant to the Corrections and Conditional Release Act, (SC 1992, c. 20). Correctional officers and police officers searched the cell and found drugs. The authorities did not obtain a search warrant, believing it was unnecessary at a penitentiary. Rosenberg J.A. concluded that no warrant was necessary, given the reduced expectation of privacy in a penitentiary setting – notwithstanding that the circumstances of the family visit trailer gave rise to a subjective expectation of privacy. The objective expectation of privacy was diminished.

[65] Thus, Mr. Musclow had a reasonable expectation of privacy in his jail cell. It was, however, an extremely limited expectation of privacy. Undoubtedly that informs the defence concession that the correctional authorities did not require a warrant – or a showing of reasonable and probable grounds – in order to search. That said, the burden of justifying a warrantless search shifts to the Crown – even in a situation of reduced expectation of privacy: R. v. Caslake, [1998] 1 S.C.R. 51 at paras. 10-11.

[66] Turning back to the three part inquiry – whether the search was authorized by law, the law itself was reasonable, and the manner of the search was reasonable – the heart of the defence argument is that the search was not authorized by law. The defence cannot know the basis upon which DS Milosevic granted the warrant. The defence argues that there is no record of a decision, which is required for a proper review. The defence relies on Vavilov. That case concerned a decision of the Registrar of Canadian Citizenship to refuse to register Vavilov. The decision was judicially reviewed in the Federal Court. The key issue before the Supreme Court was whether the Registrar was required to give reasons to comply with the duty of procedural fairness in administrative law.

[67] With respect, the reliance on Vavilov is misplaced. That case concerned powers exercised under statute but reviewed under administrative law principles. The defence has not cited any authorities suggesting that these principles apply in a criminal law context, where the foundation authority is Hunter v. Southam, [1984] 2 S.C.R. 145. That is likely because the proper authority is not Vavilov but R. v. Garofoli, [1990] 2 S.C.R. 1421. The well-known standard for the review of the issuance of a search warrant is that there must be evidence upon which a justice could have issued the warrant: Garofoli at p. 32. Watt J.A. summarized the proper approach in R. v. Sadikov, 2014 ONCA 73, 305 C.C.C. (3d) 421, at para. 82:

The authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is also entitled to draw reasonable inferences from the contents of the ITO.

[68] In the everyday world of criminal law, police officers submit an information to obtain a warrant to a justice of the peace. The justice either issues or does not issue the warrant. The justice may issue an endorsement providing reasons for the decision, but is not required to do so. Usually the officers receive the signed warrant or a decision that the warrant has not been signed. A justice does not need to issue reasons because the reviewing court is not interested in the reasoning process behind the authorization. The reviewing court is concerned with whether there was a basis for the issuance of the warrant. In other words, a justice may well get it right for the wrong reasons, but it does not matter. What matters is that there was a basis upon which the warrant could have been issued.

[69] In this case, DS Milosevic relied on s. 23.1(1) (a) of the Ministry of Correctional Services Act, which states:

23.1 (1) The superintendent of a correctional institution may authorize a search, to be carried out in the prescribed manner, of,

(a) the correctional institution or any part of the correctional institution

[70] Under s. 3 of the Regulation the power to authorize a search was delegated to DS Milosevic from the Superintendent.

[71] There was a basis upon which DS Milosevic could authorize the search. The Occurrence Report dated February 20, 2024, recorded photographs of the mail to Mr. Musclow and the contents of the mail, revealing the unknown substances.

[72] As I have already noted, on February 20, 2024, CO Gruca was working as a member of the IST when he was screening mail. Mail to inmates at a detention facility isn't just sorted and delivered. Mail to inmates is, for obvious reasons, scanned to determine if there are anomalies. CO Gruca found a letter to Letts from Ayesha Abassi Law in Toronto. The scan of the letter revealed anomalies. Correctional officers do not have authority to open letters from lawyers. The letters, on their face, are covered by solicitor-client privilege. CO Gruca took the letter to Deputy Superintendent Milosevic. DS Milosevic had authority to authorize the opening of the letter. He directed CO Gruca to do so. The letter contained unknown powder substances in makeshift paper pockets. It also contained paper stained with blue and brown substances.

[73] On the same day, February 20, 2024, CO Gruca provided an occurrence report, with photographs, to the Superintendent. The occurrence report described the x-raying of the letter, the taking of the letter to DS Milosevic, the opening of the letter, and the apparent contraband in the letter. The occurrence report described how the COs conducted an inventory of the contents of the letter. The photographs were attached and formed part of the occurrence report.

[74] On February 26, 2024, CO Gruca sent an email to the IST indicating that the cell of Letts and Mr. Musclow (he only mentioned Letts in the email) would be searched. The email was also sent to DS Milosevic. He did not get a written response from DS Milosevic but recalled that DS Milosevic came to the IST office and gave permission to conduct a search. CO Gruca testified that authorization is required to search a cell. The authorization is typically given by a Deputy Superintendent or a Staff Sergeant. DS Milosevic also testified that he authorized the search verbally based on delegated authority.

[75] In this case, given the search powers in the Ministry of Correctional Services Act, and the minimal expectation of privacy in the cell, nothing more than the occurrence report was required to show the basis upon which the decision to search could have been made. If the occurrence report is roughly analogous to an information to obtain, and the deputy superintendent roughly analogous to an authorizing justice, then there was a basis upon which the search could have been authorized, and a record upon which a court could review the decision.

[76] That said, some of DS Milosevic's answers did not inspire confidence in the internal process at the Toronto South Detention Centre. There is no written record of what the decision was. That does not make it an unreasonable search because under the circumstances of this particular case. There is enough of a record for this court to review what happened. I am not suggesting that any particular form or document is required, such as a sworn information. I am also not suggesting that a formal form or document, such as a search warrant, is required in these circumstances. A reviewing court must examine the totality of the circumstances. All that is required is some way for a reviewing court to understand the basis for ordering the search and understanding that the person who authorized it was aware of the basis and had delegated authority to order it. That said, a document – even an email or some other note – setting out that the search was authorized would be helpful to a reviewing court in the future. I strongly suggest that the correctional authorities consider mandating some kind of document. It would do a better job protecting not only the rights of an inmate; it would also protect the correctional officers by signalling to the reviewing court that some kind of process was in place to document what the decision was and when it was made. Here, the basis for the search was sufficiently set out in the documents for this court to conduct a Garofoli-type review of the decision in the absence of an authorizing note or email. The correctional authorities should understand that cases where the basis for the search is less well-documented might not survive a review.

[77] The defence does not suggest that there was no basis to search Mr. Musclow's cell. This aspect of the application is dismissed.

c) Was Mr. Musclow's right to counsel pursuant to s. 10(b) of the Charter of Rights violated?

[78] On the day of the search, CO Villanueva took physical control of Mr. Musclow. He placed Mr. Musclow in a holding cell. After the search CO Villanueva took Mr. Musclow to a smaller cell. Mr. Musclow was not cuffed. CO Villanueva simply told Mr. Musclow to follow him into the smaller cell and Mr. Musclow did so. CO Villanueva then interviewed him. CO Villanueva cautioned Mr. Musclow that anything he said could be used against him and could be used in a misconduct. He did not say that Mr. Musclow was not obliged to say anything. He did not offer to let Mr. Musclow call a lawyer. Mr. Musclow denied that the shank was a weapon but rather was used for cutting clothing. CO Villanueva testified that he had seen shanks used for that purpose before.

[79] CO Villanueva called the interview a debrief. He described it as a kind of risk assessment. DS Milosevic also referred to the interview as a debrief. CO Villanueva said that a debrief is a routine interview performed for the purpose of maintaining safety and security in the correctional institution. He testified that he wanted to understand how the contraband entered the institution so that the authorities could prevent it in the future.

[80] In the interview CO Villanueva asked Mr. Musclow questions about the contraband found in the cell. Mr. Musclow admitted the contraband was his. He said the powder was an anabolic steroid. None of those statements were used for his inmate disciplinary proceeding. The Crown does not seek to tender any of those comments – or anything said by Mr. Musclow – at his criminal trial.

[81] Staff Sergeant Onabajo later interviewed Mr. Musclow as part of the inmate disciplinary investigation. Staff Sergeant Onabajo asked Mr. Musclow if he wished to speak to a lawyer at that point. Mr. Musclow indicated that he had nothing to say on the instructions of his lawyer. That is not the encounter at issue here, however. It is the debrief with CO Villanueva.

[82] Mr. Thompson, for Mr. Musclow, argues that his client's right to counsel was violated. He argues that Mr. Musclow was detained for the purposes of s. 10(b) of the Charter even though he was already in a custodial institution. CO Villanueva never offered to let Mr. Musclow contact a lawyer, and never suggested that he should contact a lawyer. As a result, he argues, Mr. Musclow should have been provided with his s. 10(b) rights: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.

[83] I disagree. Respectfully, this argument does not recognize the reality of police work and the reality of law enforcement generally.

[84] It is obviously true that the moment a person is detained by the police, s. 10(b) is engaged and the police have an obligation to inform the detainee of their right to counsel without delay. The key question, however, is whether Mr. Musclow was subject to an investigative detention such that his rights under s. 10(b) were triggered. In my respectful view he was not. Not every interaction between the police and a member of the public – or between a correctional officer and an inmate – will result in a detention that triggers s. 10(b). It obviously depends on the circumstances.

[85] A detention is a suspension of liberty interests due to a significant physical or psychological restraint at the hands of the state: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44; Suberu, at para. 2. A person who is not detained is free to walk away from the police at any point. At para. 44 of Grant, the court provided some factors to consider when it is unclear if a person "has been deprived the state of the liberty of choice":

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[86] The first factor has some application – this was a focussed investigation centering on Mr. Musclow. Respectfully, however, it is difficult to see how these factors apply generally in a custodial situation. The inmate is already in custody. He is already detained. He is not free to walk away. At the same time, correctional officers have daily contact with prisoners. Those officers obviously receive information from prisoners from time to time. Of course, when an inmate's jeopardy changes correctional officers may well be required to provide a right to counsel: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 2, 15, 51. The key question is whether the inmates feel obliged to answer. And if they do, then it may be that the answers ought not to be admitted for inmate misconduct purposes as well as prosecutorial purposes. It would not make much sense for correctional officers to operate this way, as inmates would never provide information willingly knowing that it could result in some kind of disciplinary infraction.

[87] Indeed, the purpose of the CO Villanueva's debrief of Mr. Musclow was not to gather incriminating evidence for a misconduct or a criminal investigation. The purpose of the debrief generally was to maintain institutional security. The particular purpose of this debrief was to determine how the contraband entered the institution. This is something police and other law enforcement personnel do all the time – they talk to people to gather information in order to comply with their duties to prevent crime, keep the peace, and do all those things that police officers are required to do. The police do it all the time without providing s. 10(b) rights – even where people may be under suspicion – because they are trying to gather information, don't intend to use incriminating statements against the person, and want to assure the person that they can provide information without fear that their words will be used against them. Police must be allowed to simply have low-stakes interactions with people in order to gather information. If the police had to caution a person every time they talked to a person – even a person under suspicion – it would be a true barrier to good police work. Police are obviously allowed to talk to people without triggering a s. 10(b) right: Grant, at paras. 30-21, 37-38. Although the ability of the police to simply approach and talk to people is not without limits, as the court in Grant points out: "Effective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it.

[88] This observation obviously applies to institutional preventive security officers in a jail or prison. DS Milosevic testified that the IST regularly interacts with inmates to receive information about potential security issues, such as the introduction of contraband, gang affiliations, or the presence of weapons. Inmates are first debriefed on intake but debriefs are ongoing. DS Milosevic testified that the purpose of the debrief is not to interrogate inmates and obtain confessions. Inmates are promised some level of confidentiality, but if inmates disclosed their own criminality the institutional authorities have a duty to report it to the police but in practice the police rarely lay charges. That is because in practice inmates usually don't disclose their own criminality; they disclose criminality or safety issues involving other inmates. The institutional authorities refer major criminality to the police but DS Milosevic was not aware of any incident where police laid charges based on an inmate revealing their own criminality. I would think the reason for that is obvious – the police and Crown would have no hope of a successful prosecution based solely on an un-cautioned statement in a correctional facility. DS Milosevic agreed that such statements could, however, be a factor in the adjudication of a misconduct – although he was aware that misconducts now must be proven beyond a reasonable doubt, rather than on a balance of probabilities.

[89] In any event, such encounters must be lawful. Police and other law enforcement personnel are obviously not permitted to use or threaten violence, for example. It is difficult to see how CO Villanueva's debrief of Mr. Musclow is any different from other types of investigations conducted by law enforcement for the purpose of gathering information. In contrast, it is easy to see how the work of institutional preventive security officers – and police officers generally – would be seriously hampered if they were required to give inmates s. 10(b) rights every time they gathered information. There are obvious reasons why the officers would want to encourage an inmate to speak freely.

[90] In any event, Mr. Musclow's counsel did not point to any authority suggesting that an inmate has a right to counsel every time an institutional preventive security officer conducts a "debrief". That is not surprising. An inmate retains all rights other than those specifically taken away in a custodial institution. But an inmate simply does not have the same liberty interests as a person out of custody. That is because of the special situation that inmates find themselves in. They are in a setting where CO's have the responsibility to maintain institutional safety and security. Given the circumstances and applying the reasoning in Grant and Suberu, I find that there was no Charter violation.

[91] In any event, given that the Crown does not seek to tender any statements from Mr. Musclow, this question is largely moot.

d) If Mr. Musclow's Charter rights were violated, should the evidence from the cell be excluded at his trial?

[92] Given my conclusions, there is no need to answer this question. However, if I were to conduct a Grant inquiry, I would not exclude the drugs found in the cell: Grant. If there was a s. 8 Charter breach as a result of the search, it was at best a minor one. The impact on the Charter-protected interests of the accused person are very low here: Mr. Musclow had a very limited expectation of privacy in his cell. Further, if there was a breach it was not serious – DS Milosevic authorized the search and there was a record upon which he could authorize it. Any breach would really have been technical – a failure to make a note of DS Milosevic's decision. Finally, this was a serious offence: possession of schedule 1 drugs in a custodial institution for the purpose of trafficking. It is plain and obvious that drug trafficking within a jail is a very serious offence that increases the danger of violence, makes the place unsafe for inmates and staff, and undermines rehabilitative efforts on behalf of the inmates. The public interest in prosecuting these offences is high – the deterrent value is critical.

[93] If there was a breach of s. 10(b) it was also a minor one. During the "debrief" CO Villanueva cautioned Mr. Musclow that his statements could be used against him at a misconduct hearing but did not offer to contact a lawyer. During his interview at the misconduct investigation, however, Staff Sergeant Onabajo did offer Mr. Musclow the opportunity to speak to a lawyer. As noted, the Crown does not seek to tender any statements. In my view, any breach of s. 10(b) was minor. If Mr. Musclow was detained for the purposes of s. 10(b) and not offered a lawyer that was not a major violation because his jeopardy was low. CO Villanueva did not conduct the debrief for the purpose of gathering evidence for a criminal investigation. The Charter-protected interests of the accused were low. Finally, society's interest in the adjudication on the merits is high, as I have already noted.

[94] Even if I am wrong that Mr. Musclow is trying to stretch John Howard Society too far, and that the true penal consequences test applies to investigative interactions between inmates and correctional officers, that case was decided well after the search of Mr. Musclow's cell. The Ministry of the Solicitor General would have been in no position to offer legal advice as Shubley would still have been considered good law. Under those circumstances, it is difficult to fault the correctional officers acting in accordance with the law as they likely understood it.

[95] I would not have excluded the evidence pursuant to s. 24(2) of the Charter.

Disposition

[96] As I indicated on September 26, 2025, the application is dismissed.

R.F. Goldstein J.

Released: October 20, 2025