Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
S. McNaughton, for the Crown Attorney
Crown/Respondent
- and -
HARKIRAT RAI
A. Gerges, for the Appellant
Appellant
HEARD: December 17, 2025
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice A. Camara)
1This is an appeal brought by the appellant against conviction and sentence imposed on July 15, 2025, by Camara J. (“the T.J.”) of the Ontario Court of Justice at Hamilton, Ontario.
2Following a multi-day trial, the appellant, Harkirat Rai, was convicted on charges of drive a motor vehicle over 80 mg., impaired driving, and flight from police, contrary to their respective provisions in the Criminal Code, R.S.C. 1985, c.-C-46. The appellant was also convicted of stunt driving, pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8.
3The appellant raised one ground of appeal against conviction. Several grounds of relief found in the Notice of Appeal were advanced with respect to sentence.
Positions of the Parties:
4The appellant submits that the trial judge erred by failing to explain why she rejected the s. 10(b) Charter breach. The T.J.’s conclusions were insufficient because she failed to relate the evidence to the issue of the implementation of the rights to counsel (“RTC”).
5The appellant submits that the circumstances giving rise to the Charter application are not particularly complicated. In short, upon being advised of his rights, the appellant expressed a desire to speak to “Angelo” and that Angelo’s number was on his cell phone. The police initially believed that “Angelo” (or “Anthony”) was a lawyer and advised the appellant that his cell phone would be brought to the detachment. While at the detachment and waiting for the cell phone to be brought, the appellant indicated that Angelo was a traffic ticket agent. The appellant contends that the officer advised him that he could not speak with the agent for the purpose of obtaining legal advice and the officer refused the appellant access to his phone to call his mother to put him in touch with his counsel of choice. In the appellant’s version of event, he was denied access to his phone to contact counsel of choice and was, instead, directed to duty counsel.
6The appellant submits that the T.J. failed to provide sufficient reasons, including any reference to the assessment of the credibility of the appellant or other witnesses.
7In regard to sentencing, the T.J. went well beyond the Crown’s requested stance on sentence. The appellant submits that the T.J. neither gave notice to the parties, nor permitted defence counsel to make submissions on the issue of a possible incarceration term or the comparative length of jail for the offences. As to the HTA offence, the appellant submits that the T.J. failed to advise defence counsel that she had considered rendering a jail sentence prior to hearing full submissions, as the only discussion was related to a fine.
8The Crown responds that the convictions were entirely reasonable, supported by the evidence, and free from legal error. Her Honour heard submissions on an alleged breach of the appellant’s s. 10(b) Charter rights. It is implicit in her reasons that the T.J. rejected the appellant’s evidence and preferred the evidence from the police officers.
9The Crown submits that the reasons for judgment and comments throughout the trial demonstrated that the T.J. did in fact address all live issues.
10The Crown says that the appellant was given notice of the T.J.’s concerns about the Criminal Code and HTA sentences proposed by the prosecution being inadequate or too low. The T.J. commented about the sufficiency of the Crown’s position in the middle of submissions. The T.J. continually pressed the Crown to justify its own position. The Crown presented first, so when the appellant’s turn came, his counsel was well aware that the judge was considering imposing a higher sentence than what the Crown had sought. The sentence imposed was within the appropriate range and the appeal ought to be dismissed.
A Brief Overview of the Relevant Evidence Adduced at Trial:
On April 5, 2024, Sergeant Mitchell (“Mitchell”) was operating a marked OPP cruiser on the QEW near Eastport Drive in Hamilton. He heard a loud exhaust and observed a white Audi drive past him at an excessive rate of speed. Mitchell estimated that the vehicle was travelling in excess of 150 km/h, but he could not provide a precise speed measurement.
Mitchell activated his lights and attempted to catch up to the Audi. He testified that he reached speeds up to 190 km/h in an attempt to carry out a traffic stop. However, the excessive speed caused him to back off for road safety, and Mitchell called in his observations.
At 9:40 PM, approximately 6 minutes after Mitchell disengaged pursuit, Constable Barton (“Barton”) observed a white Audi drive past him at a high rate of speed. Barton followed, and his in-car camera captured some of the driving. Barton testified that the vehicle moved from lane to lane and weaved within a lane before changing lanes and touching the dividing line to the shoulder. He activated his lights and executed a traffic stop.
Once the applicant was pulled over, Barton spoke with the driver, identified him as the appellant, and observed red glossy eyes. Barton inquired about alcohol consumption and requested that the appellant complete an ASD test. The test was administered and the appellant registered a fail. He was placed under arrest and advised of his Charter rights.
With regards to the issue of RTC, Barton’s evidence was that the appellant told him at the detachment that he wanted to speak to “Anthony” (not “Angelo”) but seemed uncertain about the name. He testified that the appellant told him “Anthony” was not a lawyer, at which point Barton offered duty counsel which the appellant immediately accepted. Barton said nothing about the appellant wanting to contact “Anthony” in order to have “Anthony” put him in touch with a lawyer. Nor was Barton cross-examined on this very point.
In response to a leading question in chief, the appellant testified that he told Barton that “Angelo” would get him in touch with a criminal lawyer. This, he said, was in response to Barton’s comment that he needed to speak to a criminal lawyer – although he also said that this was in response to a “question” by Barton, the details of which he did not provide.
On cross-examination, the appellant stated that after the police told him he needed to speak to a lawyer, not a traffic agent, he had no further conversation with them about “Angelo” and moved on to a request to speak with his mother. He agreed that he said nothing to the police about why he wished to speak with his mother or to get the name of someone to assist him to get the name of the lawyer. The appellant also acknowledged that he did not know “Angelo’s last name. Although “Angelo” apparently worked for an “unknown” law firm where criminal lawyers also worked, he did not say this to the police at the time.
Barton testified that once the appellant told him that “Anthony” was not a lawyer, he offered duty counsel as an alternative, which the appellant immediately accepted. Barton testified that the appellant then said he was satisfied with the advice he received. Again, Barton was not cross-examined on this point. The appellant testified at trial that he was not, in fact, satisfied with the advice he received. However, he agreed that he did not say this to anyone at the relevant time, and in fact admitted that he told the police he was satisfied with duty counsel. He testified that he said this because he wished to move the process along so that he could “get it over with.”
The appellant displayed signs of impairment and subsequently provided two samples of his breath, both at 180 mg. of alcohol in 100 ml. of blood.
Relevant Legal Principles:
11Pursuant to s. 686(1)(a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence; (b) there was a wrong decision of law; or (c) on any ground where there was a miscarriage of justice. It is settled law that when considering an unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, or whether or not the trier of fact has exceeded the bounds of reasonableness in the verdict that was reached, an appellate court should show “great deference” to findings of credibility made at trial.
12The question is not whether the evidence is capable of raising a reasonable doubt. Rather, the court must thoroughly re-examine, and to an extent, conduct a limited re-weighing of the evidence and to consider its effect: R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 131. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168.
13The test for demonstrating an unreasonable verdict is an exacting one. A verdict may also be found unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the trial judge in support of the finding or is shown to be incompatible with the evidence that has not otherwise been contradicted or rejected by the trial judge. As Doherty J.A. held in R. v. Morrisey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at para. 92: “ any error, including one involving a misapprehension of the evidence by the trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed.
14In R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, the Supreme Court set out the stringent standards for this ground of appeal:
Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.
15A functional approach governs appellate review of the sufficiency of reasons. The relevant inquiry is “whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.
16“An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review”: Dinardo, at para. 25. A failure “to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 18; R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 58.
17In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada elaborated on the general principles to be applied when considering the sufficiency of reasons. Sufficiency of reasons should be judged in their entire context by what the trial judge has stated in the context of the record, the issues, and the submissions of counsel at trial. At a minimum, it is required “that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the [trial] judge has seized the substance of the matter”: at para. 43. In a case that turns on credibility, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. A judge need not review and resolve every inconsistency or respond to every argument advanced by counsel: A.M., at para. 14.
18In R. v. Sheppard, 2002 SCC 26, 210 D.L.R. (4th) 608 at para. 55, the Supreme Court stated that “ An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record…”
19The adequacy of reasons is assessed for factual and legal sufficiency. Factual sufficiency is a low bar requiring only that the judge’s decision and its basis are apparent from the reasons in light of the record. Even where the reasons are deficient, an appellate court can supplement them by considering the evidentiary context.
20Legal sufficiency requires only that the reasons allow for appellate review. In the absence of controversial points of law, trial judges need not expound on points of law but instead are presumed to know the basic legal principles at issue. Where the evidence is undisputed and uncontradicted, detailed reasons are less necessary to permit meaningful review: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 71, 74-76; R. v. Kenegarajah, 2018 ONCA 121, at para. 41.
21It is trite law that an appellate court reviewing reasons for sufficiency should start from a stance of deference. The trial judge is in the best position to determine matters of fact, and in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected: R.E.M., at para. 54. The trial judge should not be found to have erred in law because he or she has failed to reconcile every frailty in the evidence or allude to every relevant principle of law: R.E.M., at para. 56. The need for reasons arises from the particular circumstances of the case.
Application of the Legal Principles to this Case:
22This appeal essentially turns on an analysis of the trial judge's reasons for judgment in the context of the evidentiary record and the Charter application. I have considered the reasons for judgment as a whole, keeping in mind the purpose for which they were delivered. The trial judge’s reasons were not intended to be, nor have I read them, “as a verbalization of the entire process engaged in by the trial judge in reaching [her] verdict”: (see Morrissey, at p. 205.)
23In my opinion, the T.J. addressed the material issues related to the Charter application and substantive issues at trial. This is amply referenced in her reasons at pp. 8-17 of the July 15, 2025, transcript of proceedings.
24The trial judge began her analysis by self-instructing on the blended Charter and relevant trial issues. Most of the facts were not in dispute. Implicit in her findings was her determination of the officers’ and appellant’s credibility and reliability of their evidence. Indeed, the TJ clearly turned her mind to the importance of the credibility assessment, stating same during the proceedings (June 26, 2025, Transcript p. 30):
The Court: So, doesn’t this issue really turn then on what I – the findings I make about what your client said to the officer about why he wanted to get into the cell phone?
Counsel: Yes, it does.
The Court: So, it really comes down to whether I accept Officer Barton’s evidence that your client never told him he wanted to get access to the cell phone. He would call his mom, or to call his agent to get in contact with the lawyer or not?
25While the R. v. D.(W)., [1991] 1 S.C.R. 742 (“W.(D).”), test was not specifically referenced, it is evident that the learned T.J. applied those principles to the evidence adduced before her during the course of the blended trial.
26In this appeal, the appellant challenges the T.J.’s finding that he did not tell the police why he wished to contact “Angelo.” However, the basis is readily apparent from the record. The appellant’s evidence on this point was contrary to the testimony given by Barton, who was not cross-examined on this issue. Moreover, the appellant gave this evidence in response to a leading question. Both of these factors could lead the trial judge to afford the evidence less weight. The fact that the appellant gave a different version of events in cross only further underscores his evidence on this very point.
The Appellant was not steered to duty counsel:
27Section 10(b) of the Charter imposes obligations on both the police and the detainee. The police must make reasonable efforts to facilitate contact with counsel of choice. Conversely, the detainee must exercise reasonable diligence in his efforts to contact counsel of choice.
28The evidence demonstrated that the appellant provided the first name of the person with whom he wished to speak. He did not provide a last name, and, although he knew the name of the law firm to which “Angelo” or “Anthony” allegedly belonged, he did not provide this either. Obviously, the police officer had no way to action this request as the information provided from the appellant was incomplete.
29In any event, as the appellant admitted, the person with whom he wished to speak was not a lawyer. A detainee has the right to speak to a lawyer, not the right to speak to whomever he chooses.
30Of course, it is trite law that the police must take reasonable steps to facilitate access to counsel as soon as practicable.
The Ruling from the Ontario Court of Justice in R. v. Satar, [2024] O.J. No. 1181 (C.J.).
31In the alternative, and in support of his Charter argument, the appellant referred to the case of Satar. While the appellant concedes that the RTC call does not extend to paralegals or agents, a detainee can speak with a third party for the purpose of obtaining contact information for a lawyer. The appellant argues that Satar and related caselaw stand for the rule that direct access to a phone in private was wholly appropriate and required in this case. As such, the appellant ought to have been given his cellphone to personally make a call to his mother, or an agent, in order to obtain information to contact counsel of choice. Thus, the police failed to facilitate and implement his full RTC.
32For the reasons that follow, I find that the appellant does not have a constitutionally protected right to a private or direct call with a third party (non-lawyer), no matter what the purpose. The police were not obliged to heed such a request.
33In Satar, the trial judge considered the question of how the police must facilitate contact with counsel of choice through a third party. The judge relied on the case of R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.).
34In Kumarasamy, the detainee asked several times to call a friend to get the number of his personal lawyer. Instead, the police had him speak with duty counsel. The conviction was quashed because the police did not facilitate the detainee’s right to counsel of choice. Justice Durno, sitting as a Summary Conviction Appeal Court, held at paras. 25-26:
In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges (1990), 53 C.C.C. (3d) 330 S.C.C. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.
This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis. No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoing investigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed in jeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here.
35Relying on Durno J.’s reasoning, the court in Satar concluded as follows at paras. 48, 50-51:
The defence argues that the inference to be drawn from these paragraphs is as was found in the Ellies and McFadden cases - that Justice Durno meant permitting a phone call to be made directly by the detainee rather than a phone call made on behalf of the detainee. […]
I agree with the defence that the law has been settled since Tremblay, and then Kumarasamy, that when a detainee makes a request to contact a third party in order to make contact with a specific counsel the police are required to provide the detainee with a reasonable opportunity call a friend or relative in order to consult with counsel of choice.
Justice Durno's words are clear in the paragraphs I just cited. The obligation to facilitate contact with counsel of choice includes "permitting a phone call to a friend or relative to obtain the name of counsel of choice." That phone call I infer to be made directly by the detainee. He also states specifically that "the determination" of whether "the detainee is entitled to make a call to friends or relatives" or not "must be made on a case by case basis". Indeed, that indicates there will be rare cases where "a call to a friend or relative in private could jeopardize an ongoing investigation", and he provides those reasons or examples of where such a call might not be permitted. From these words, Justice Durno, again sitting as a Summary Conviction Appeal Court, held that officers must turn their minds on a case by case basis to whether a detainee should be permitted to contact a friend or relative to retain and instruct counsel of choice and, barring such rare situations as the ones he listed, that call should be made by the detainee personally. Again, to be clear, this is a call to obtain information to contact counsel of choice. (Emphasis added.)
36With respect, the jurist in Satar misinterpreted Durno J.’s discussion by inferring and concluding that the phone call from the detainee to a third party be made “directly by the detainee”: Satar, at para. 51.
37In any event, this is an opportunity for this Court to provide some clarification on the pragmatic issue of facilitating RTC by a detainee in order to comply with the implementation component of s. 10(b) of the Charter.
38This ruling does not purport to consider the mechanics or manner in which a detainee, under arrest, may use a phone to directly contact counsel of choice, in private. Indeed, the prevailing jurisprudence has addressed an accused’s Charter rights in contacting his or her counsel and the correlative duty on the police to facilitate such contact in the circumstances of the case.
39The specific issue presented here is related to RTC and whether the appellant ought to have been given his personal cellphone to make a direct call to a third party, in order to obtain information to assist in calling his lawyer; and whether there is any positive obligation or duty on the police to facilitate such direct and private contact.
40Recall that in Kumarasamy, the fundamental issue was the obligation on police to facilitate contact with the detainee’s own counsel, if expressed, even in the face of having spoken with duty counsel: Kumarasamy, at para. 25.
41Kumarasamy has been cited extensively since 2004. In addition to Durno J.’s finding at para. 21, that access to duty counsel “cannot be used to trump a detainee’s right to counsel of choice”, the ruling is often cited for the proposition that the police must make reasonable efforts to facilitate contact with counsel of choice. If the detainee asks to speak to a friend or family member so that they can put the detainee in contact with counsel in choice, then it is reasonable to expect the police to facilitate the request: see R. v. Beals et. al., 2020 ONSC 996, at para. 70; R. v. Mumtaz, 2019 ONSC 468, at paras. 24-25.
42It is clear that the discussion flowing from Kumarasamy does not explicitly mandate police to give direct access to a phone in order for a detainee to speak with a third party to obtain contact information vis-a-vis counsel; albeit it mandates that the police must make reasonable efforts to facilitate access to counsel.
43The jurisprudence surfacing from some lower court trial level decisions diverge on what “facilitate” means in this context. There is some debate related to whether the police are mandated to give the detainee personal access to his or her phone to make direct contact with a third party (friend or relative) in order to obtain a name or telephone number for counsel of choice, rather than the police undertaking this exercise on the detainee’s behalf.
44Various rulings point to provincial, regional, or city police service policies to never give the detainee direct access to a phone. These policies may make sense in the context of protecting officer safety, public safety, evidence preservation, and the integrity of the investigation including unnecessary investigative delay, arguments over who is to be specifically contacted and the extent of information sought or being provided on the phone to a third-party. These policies may also provide predictability and stability and may avoid repetitive litigation on the issue of whether the investigation in a particular case could or would be impeded or otherwise disrupted by providing a phone directly to the detainee to speak privately with a third-party.
45The limited appellate jurisprudence on point does not require that the police give the accused access to their phone to contact a third party, but, at the same time, it does not exclude that possibility as part of a “reasonable effort” to facilitate contact. In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 35, the Supreme Court held, “should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning.”
46One could interpret that phrase to mean that the court is expressing that the detainee is the subject of the verb “contact,” and therefore the detainee should be given the opportunity to call. This makes eminent sense in that the court in Willier is addressing “contact [with] their chosen counsel…” It does not purport to address contact with a third party. On the other hand, the phrase could also be interpreted to mean that a “reasonable opportunity to contact” includes the police conducting the phone call for the benefit of the detainee.
47In R. v. Edwards, 2024 ONCA 135, 434 C.C.C. (3d) 225, at para. 42, the Court of Appeal for Ontario implied that the police are not required to give the detainee access to the phone: “the purpose of s. 10(b) is best served by testing police compliance with their requirements against the reasonable diligence standard. That standard will, of course, reflect the particular circumstances of the case, including the extent to which the police have assumed control of the detainee’s ability to contact counsel. If the police assume that control, it is reasonable to expect that the police will take a more active role in contacting counsel.”
48“Reasonable efforts” by the police would in almost all circumstances include the officer contacting the third party if the detainee requests contact with a third party for the purpose of getting in touch with a lawyer of choice. The implicit suggestion here is that the police can control the phone by which contact with the third party will be made.
49In R. v. Ector, 2018 SKCA 46, at para. 63, the Court of Appeal for Saskatchewan suggests same, and that to be in compliance with s. 10(b), the police officer “must, at a minimum, convey accurate information [from the contacted third-party] back to the detainee. In these circumstances, the police are acting on the detainee’s behalf, and, that the detainee, who is under the complete control of the police, has to rely on the content and accuracy of the contact information provided to them by the police” [italics sic]. This presumes a situation where the detainee is not in the same room or area for the call with a third-party and provides that this could be an acceptable level of facilitation if the police accurately communicate the information back to the detainee.
50Similarly, in R. v. Virk, 2025 ONSC 5790, at para. 64, the court held: “in jurisdictions like Peel Region, where the police have assumed the responsibility of contacting counsel rather than providing those they detain or arrest with direct access to a phone or the Internet, the police must exercise the same [diligence] expected of those under detention or arrest when it comes to contacting counsel of choice”: see also R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 43; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 30-31.
51Nonetheless, in some situations, the police “may” give the detainee access to the phone to call a third party (non-lawyer) as part of providing the detainee a reasonable opportunity to contact counsel. But this is permissive, as there may be rare and specific circumstances where a “reasonable effort” may require allowing the detainee to call the third party directly. For example, in R. v. Fan, 2023 ONCJ 187, language issues were at play in facilitating RTC, wherein, notably, such language issues interfered with the accused’s ability to understand the information that the police communicated to him. Where the police are unable to communicate the third party’s information back to the detainee, the detainee ought to make the call directly, [albeit under police supervision]. This could be because of obvious language barriers or other accessibility concerns.
52In R. v. Bennett, 2015 ONCJ 187, at para. 82, the court held that “[t]he police must generally permit the detainee to contact a third party... to facilitate contact with counsel. It may be reasonable for the police to make those contacts on behalf of the detainee.”
53The court in R. v. Bennett, held at para. 13:
The police must facilitate the detainee’s efforts to contact counsel of choice; that duty may include calls to friends or relatives to obtain the name or telephone number of counsel (ref. R. v. Kumarasamy, (2002) O.J. No.303 (Sup.Crt.) [sic] Nevertheless, an investigating officer cognizant of the facts of the case, the possible involvement of others, and the need to preserve evidence, has the discretion in this latter step, as there are situations where a seemingly innocuous call could result in the compromise of the investigation, in that there may be the flight of a suspect or the destruction of evidence.
54The operative word in the above-noted reference is “may.” I interpret the discussion in this case to the effect that it does not mandate any such obligation on the police to permit direct use of a phone by the detainee to contact a third party. In any event, it says nothing about who ought to make such a call and whether or not it must be made in private.
55In the course of the decision, I note that Satar referred to the case of R. v. Tremblay, [1987] 2 S.C.R. 435. Tremblay was a fact specific case. It does not suggest that police are required to give the detainee direct access to the phone under s. 10(b). It merely provides one instance where the police did give that access to the detainee.
56In my opinion, the jurisprudence proffered by the Crown in Satar, (referred to at para. 49), namely the cases of R. v. O'Shea, 2019 ONSC 1514, and R. v. Maciel, 2016 ONCJ 563, at paras. 42 and 43, is the accurate interpretation of Kumarasamy. It also captures the correct balance of legal principles with respect to facilitating RTC when a detainee requests third party contact for assistance. The Crown’s comments as referenced in para. 49 are entirely apposite:
The Crown argues that Justice Durno's wording is not that explicit and that Officer Rousell did not breach Mr. Satar's Charter rights by not allowing him to make the call directly. The Crown provided the cases of R. v. O'Shea, 2019 ONSC 1514, and R. v. Maciel, 2016 ONCJ 563, in support of their position and argued that where the police have taken on the responsibility of contacting counsel on behalf of their detainees, as they did here, they should be expected to pursue that constitutional right with the same effort and diligence that the detainee himself would apply…
57In O’Shea, the court stated: “That means the police must take ‘all steps that [are] reasonable in the circumstances’ to put a person in contact with their chosen lawyer”: at para. 22. The requisite duty that “may” include calls to friends or relatives to obtain the name or telephone number of counsel does not equate to the detainee actually taking possession of the phone and making the call in private to contact whomever he or she wishes, even in order to gain information for contacting his or her lawyer.
58The approach outlined in these reasons is to avoid recurrent litigation on the scope of police “investigative necessity” or questions related to the attributes or the adequacy or extent of the contact made by the detainee to a third party.
59Practically speaking, detainees or accused persons might not know the number of a friend or relative to call for help in accessing counsel. Long gone are the days when individuals carried address books. While the police cannot be permitted to search the detainee’s phone without a warrant or informed consent, the detainee may be given limited access to his or her phone for the objective of searching contacts for the telephone number of a relative or friend. Following which, the police may make the call to the third party for express purposes of obtaining the name and contact number for counsel. Privacy interests are not engaged as the information sought from a third party is limited to providing assistance to furnish a name and phone number for counsel.
60Returning to Kumarasamy, it is arguable that Durno J.’s discussion at para. 26, that a detainee is not “always entitled to make one or a series of calls to friends or relatives” may imply that at least sometimes a detainee is so entitled.
61In this I must respectfully disagree. Section 10(b) does not provide detainees with the right to contact anyone for any purpose or to do so privately. A detainee does not have a protected privacy interest in third party calls, nor a protected right to make such calls upon detention other than for the limited purpose of exercising RTC.
62In any event, in my opinion, Durno J. did not make an “implicit” finding or interpretation as to the pragmatic manner in which the RTC must be facilitated through a third party (non-lawyer). The police are neither required nor obliged to hand over a phone to the detainee to have him or her personally call a third party to obtain a telephone number for counsel of choice, as part of their duty to provide “reasonable efforts”.
63In sum, there is no inherent prejudice or breach of confidential information or privilege by having the police actually making direct contact with the friend or relative to merely obtain a name and phone number for the lawyer of choice, to be subsequently contacted by the detainee. Indeed, such assistance does not give rise to any s. 10(b) RTC implementational breach, as long as reasonable and realistic efforts are made by both the detainee to provide relevant information to the authorities, and the police take the appropriate steps in the circumstances to facilitate such a request “with the same effort and diligence that the detainee himself would apply.”
64With respect, the specific ruling of “Issue #1” in Satar, pertaining to a finding of a breach of a detainee’s s. 10(b) Charter rights by not facilitating an accused direct access to a phone to call a third party in private (in order to obtain a name and telephone number for counsel of choice), ought not to be followed.1
The T.J.’s Reasons were Sufficient:
65The T.J. accepted that since the appellant evidently did not have a preferred lawyer in mind, Barton offered to contact duty counsel. The TJ accepted that Barton did not tell the appellant that duty counsel was his only option or that he had to accept this offer; he simply made the appellant aware of the option, as he was required to do. From the record, the T.J. determined that the appellant accepted immediately and without voicing complaint. When asked if he was satisfied, the appellant said that he was. This was not contradicted in the evidence at trial. Nothing more was required of the police, and the trial judge committed no error in dismissing this issue.
66The T.J. was entitled to prefer and accept the office’s evidence over that of the appellant. Her comment about “mind reading” was entirely appropriate given the vacillating, and inconsistent evidence proffered by the appellant on this very point at trial.
67I am persuaded that the trial judge’s analysis and reasons for dismissing the appellant’s Charter application were sufficient.
68Factual sufficiency is a low bar requiring only that the decision and its basis be apparent. Likewise, the reasons were legally sufficient because they allow for a meaningful appellate review in light of the law, facts, and submissions. Whether a breach had occurred turned on whether the appellant had expressed a desire to call a third party in order to speak with counsel. However, the T.J. concluded that this was offered by police and rejected by the appellant at the relevant time. The information from the appellant was principally non-existent.
69All of this to say that this does not mean that the trial judge is required to enter into a detailed account of the conflicting evidence. The trial judge should not be found to have erred in law because he or she has failed to reconcile every frailty in the evidence. The question is whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why: G.F., at para. 69.
70Upon a review of the reasons coupled with the trial record, Her Honour carefully scrutinized the appellant’s testimony and applied the appropriate standard of review. Indeed, the Charter application was not legally complex and involved questions of fact. It is apparent from the reasons that the T.J. considered the requisite test and did not believe the appellant’s evidence on the RTC issue, including that the appellant did not meet his onus to establish a breach of s. 10(b).
71In addressing the substantive issues for this appeal, I agree entirely with the Crown’s submissions regarding the T.J.’s assessment of the legal application and implementation of the RTC as applied in this case. There is no appellate intervention unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.
72I do not find that the learned trial judge committed a palpable and overriding error, and, absent a clear misrepresentation of the evidence, there is no basis for appellate intervention. The appeal against conviction must be dismissed.
Sentence Appeal:
73The Crown requested a custodial sentence of 30 days jail for the over 80 mg. offence and a $2000 fine for the stunt driving charge. Defence counsel requested that a conditional sentence of 90 days be imposed for the over 80 mg. count and agreed that a $2000 fine was appropriate for the stunt driving charge.
74The appellant asserts that the T.J. imposed a total sentence of 150 days, a disposition five times greater than that requested by the Crown. The appellant submits that this was not only excessive, but counsel was not advised that the sentencing positions would be “jumped” in favor of a much harsher disposition. Nor was counsel alerted to or invited to make submissions concerning any consideration of a jail term for the HTA offence.
75Moreover, the appellant submits that the trial judge erred in that she failed to explain why she imposed a cumulative jail sentence of five months. The appellant contends that the judge’s sentence was demonstrably unfit in this case.
76The appellant also raised a concern regarding consecutive versus concurrent sentences for the HTA offence. However, this argument is a non-starter, as s. 64 of the Provincial Offences Act, R.S.O. 1990, c.P.33, defaults to the imposition of consecutive sentences, unless otherwise ordered by the court.
77The Crown responds that the sentence imposed was reasonable, supported by the evidence, and free from legal error. The appellant had an extensive HTA record. This was not a joint position and the sentence was imposed after a contested trial. Her Honour heard submissions and raised concerns with respect to the period of jail sought by the Crown along with the fine. The Crown submits that although the T.J. went beyond the prosecution’s proposed sentence, she was entitled to do so and committed no error.
Application of the Legal Principles to this Case:
78The appellant concedes that the public interest test adopted by the Supreme Court in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, does not apply to contested sentencing hearings. That decision instructed judges not to depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.
79Years later, the Supreme Court was asked to incrementally extend Anthony-Cook in the case of R. v. Nahanee, 2022 SCC 37, [2022] 3 S.C.R. 3, so as to apply to contested sentencing hearings where the upper end of the sentence was negotiated. The Supreme Court declined to do so but held at para. 4 that “if the sentencing judge is of a mind to impose a harsher sentence, in any respect, than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions.”
80Writing for the majority in Nahanee, Moldaver J. found that without providing the parties the opportunity to make submissions on a proposed harsher sentence, the decision may be overturned on appeal for any one of three reasons: The appellant establishes that there was information they or the Crown could have provided to the sentencing judge that would have impacted the sentence; The sentencing judge failed to provide adequate reasons for imposing the harsher sentence, thereby foreclosing meaningful appellate review; or the sentencing judge provided erroneous or flawed reasons for imposing the harsher sentence. The appellant submits that (ii) and (iii) are pertinent to this appeal.
81The majority in Nahanee explained that the decision on sentencing must rest with the trial judge and this includes determining the upper range of a sentence. However, fairness requires that the judge properly notify the parties that a harsher sentence was being considered. In Nahanee, Moldaver J. wrote at para. 44:
Sentencing judges should let the parties know as soon as possible if they are concerned that the Crown's proposed sentence is, or may be, too lenient and they are contemplating exceeding it.
82At para. 45 of the decision, Moldaver J. held:
Adequate notice does not require the judge to set out in detail, or with exactitude, what it is that they find troublesome with the Crown's proposed sentence; they should, however, do so whenever possible. It is enough for a judge to advise the parties that, in their view, the sentence proposed by the Crown appears too lenient, having regard to the seriousness of the offence and/or the degree of responsibility of the accused. Providing comprehensive reasons for this concern may, and often will, prove impossible since the judge's position at this point is unlikely to be fixed. As indicated, the purpose is simply to put the parties on notice that the judge is considering exceeding the Crown's proposed sentence. Notifying the parties can be as simple as saying: I am considering imposing a higher sentence than the Crown is seeking due to the seriousness of this offence (see e.g. R. v. Scott, 2016 NLCA 16, 376 Nfld. & P.E.I.R. 167 at para. 37). While notice need not take a particular form, it must be more than simply asking questions or expressing vague concerns about the parties' sentencing proposals (emphasis in original).
83A failure in procedural fairness, however, is not the applicable appellate route. In Nahanee, the majority recognized that the failure to provide notice and allow for further submissions is “always an error, though not necessarily one warranting appellate intervention”: Nahanee, at para. 52. See also R. v. England, 2024 ONCA 360, 171 O.R. (3d) 401, at para. 82; R. v. A.V. 2025 ONCA 6, at para. 10.
84It is clear that the appellant must also demonstrate that such a failure led to an error in principle. In Nahanee, at para. 59, Moldaver J. considered errors in principle in this context and explained:
ii. If the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence. Failure to provide sufficient reasons is an error of law, which is a type of error in principle (Friesen, at para. 26; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28). The appellate court may only intervene if the insufficiency of reasons foreclosed meaningful appellate review. While it is preferable for sentencing judges to explicitly say why they exceeded the Crown range, it will not necessarily foreclose meaningful appellate review if this is not done. The court may look to the record, as a whole, to determine whether sufficient reasons have been given for exceeding the Crown range. Courts are to take a functional approach to sufficiency of reasons (Sheppard, at para. 50).
iii. If the sentencing judge provided erroneous reasons for imposing the harsher sentence. The appellate court may intervene if the sentencing judge relied on flawed or unsupportable reasoning for imposing the harsher sentence, such as the erroneous consideration of an aggravating factor or misapprehension of relevant authorities. Standing alone, however, flawed reasoning will not be enough; the appellant must also satisfy the court that this reasoning impacted the sentence (Lacasse, at paras. 43-44).
85Recall that Nahanee was a guilty plea. On a guilty plea, the accused is surrendering his right to be presumed innocent. In return for this, he is gaining a measure of certainty as to what his sentence will be. The overall administration of justice benefits from the time savings of not having to run the trial.
86Yet, as mentioned, in Nahanee, the Supreme Court declined to extend the strict rules about joint submissions to situations where the parties are not ad idem.
87However, as referenced above, the Supreme Court did agree that, where the sentencing judge is contemplating exceeding the Crown’s position, he or she should give some notice to the parties to enable fulsome submissions. This requirement makes sense in the context of a guilty plea, since, presumably, the accused has entered his plea on the assumption that his potential jeopardy is restricted to the Crown’s position. In other situations, it provides for procedural fairness to all parties.
88In respect of the HTA stunt driving offence in this case, the relevant sentencing discussions with the jurist and the Crown included the following:
The Court: I’m really struggling with the $2,000 fine on the flight police.
Crown: Too low or too high?
The Court: He already has a – too low. Crown: No, I agree. I agree.
The Court: He already has a prior conviction…
Crown: He has a prior.
The Court: …for stunt driving and a speeding infraction for driving 167 in a 100.
Crown: Right.
The Court: So how do I then impose a $2,000 fine on that offence again?
Crown: I – there’s no way I would seek that if the only thing he was convicted of was stunt. I would be asking for $5,000 or $6,000. But the thing is I’m asking for jail and so, as a matter of restraint, as a matter of totality, I – I don’t want to load him down with additional fines on top...
89Subsequently, when it was the appellant’s turn to make sentencing submissions, a discussion with the T.J. and defence counsel ensued, inter alia:
The Court: I’m really struggling with a fine for the stunt driving. He’s obviously been fined a number of times, like this is an unenviably (sic) driving record. I appreciate that he doesn’t have a criminal record but this is really – it’s a three page driving record with two – one stunt driving and one speeding 167 in a 100. So, how do – fines didn’t work before. He did it again. So, why would I impose another fine and in fact, probably the same fine that he was – was imposed before? (emphasis added).
Defence: Your Honour, I – I think the – the real teeth here is going to be the driving suspension. Is the fact that he’s not going to be able to operate the vehicle for three years. I – I – I perhaps, - and I also – obviously, the – a 90-day conditional sentence or – or again, it’s a – it’s a jail sentence, one served in the community, but one where he will remain on the premises at all times except for – the only exception I would be asking for is employment purposes just to allow him to work and continue to support his family. As Your Honour said, he’s been fined in the past. Perhaps, in – in – I – and instead of a fine it could be a – a 12 month period of probation just to keep the peace and be of good behavior…
90As referenced in Nahanee, the notice to the parties need not be longwinded or formal; it is enough to communicate to the parties that the trial judge is contemplating a higher sentence. As the appellant notes, the T.J. notified the Crown during his submissions that his proposed sentence on the HTA charge was “too low”, and “why would I impose another fine?” She also asked the Crown pointedly whether his proposed sentence of 30 days on the Criminal Code charges was “sufficient to meet the principles of justice.”
91I accept that these comments from the bench were not mere “vague expressions of concern”. They were pointed warnings, and more than adequate to alert the defence about the judge’s concerns, in advance of counsel making any submissions on sentence.
92As the Court of Appeal subsequently pointed out in R. v. Wesley, 2025 ONCA 51, even where the parties are ad idem in every respect, the sentencing judge is not bound to accept the joint position. This is because there is no quid pro quo after a trial, as opposed to a guilty plea.
93Furthermore, even if I accept the appellant’s position that the T.J. had failed to give adequate notice to the parties, that in itself does not make the sentencing decision automatically reviewable. I find that none of the three factors referenced earlier in Nahanee are present here, (at para. 85 above).
94It is apparent from the T.J.’s reasons for imposing 90 days on the Criminal Code charges, (plus 60 days concurrent) and 60 days for the HTA count was based on Her Honour’s concerns that the appellant’s conduct could have killed someone. It appeared that specific and general deterrence was the primary sentencing consideration for offences of this nature.
95Indeed, the presiding judge is best positioned to consider the constellation of factors relating both to the individual before the court and to the gravity of the offences. Intervention is only required if it is apparent from the trial judge’s reasons that the error had an impact on the sentence. If an error in principle had no impact on the sentence, appellate intervention is only justified if the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26.
96Demonstrably unfit can be described as “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure.” It is trite law that substantial deference is afforded to sentencing decisions. Appellate courts should only interfere with a sentence if the trial judge has committed an error in principle, failed to consider a relevant factor, or erroneously considered aggravating or mitigating factors, and such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39, 41, 43-44.
97On this review, I am persuaded that, given her expressed concerns, the T.J. did provide notice and an ample opportunity for defence counsel to address all aspects of sentencing. While the principle of proportionality was not expressly referenced in the reasons, a 90-day jail term for the Criminal Code charge and a 60-day consecutive jail term for the HTA count is within the range of sentences for these offences.
Conclusion:
98The learned T.J.’s rulings, as a whole, are logical and reasoned as to why the Charter application was dismissed. The T.J. considered the live issues before her and implicitly rejected the appellant’s evidence as it pertained to any alleged failure for the full implementation of RTC.
99I do not find any palpable or overriding error in regard to the legal principles applied to the facts of the case, nor the insufficiency of reasons. The appeal against conviction is dismissed.
100In regard to sentencing, the learned T.J. did neither err in principle, nor fail to weigh or consider relevant factors. On this record, the T.J. alerted the parties and provided an opportunity for counsel to address concerns regarding the inadequacy of entire sentence being proposed by the Crown attorney.
101In my opinion, there is no basis to conclude that the sentence is demonstrably unfit. I would not interfere with the learned judge’s analysis and sentencing rulings for both the Criminal Code and HTA convictions. Leave to appeal sentence is granted but the sentence appeal is dismissed.
A.J. Goodman, J.
Date: January 30, 2026
Footnotes
- This ruling includes references to other Ontario Court of Justice cases cited at paras. 45 and 46 in Satar, namely; R. v. Ellies, 2015 O.J. No. 4231, 340 C.R.R. (2d) 235, at paras. 53-55; R. v. McFadden, 2016 ONCJ 777, [2016] O.J. No. 6932, and R. v. Thambirajah, [2020] O.J. No. 5229.