The Defence Toolkit – April 6, 2024: Right to Counsel

This week’s top three summaries: R v Giroux, 2024 ABCJ 71: s.10(b), voluntariness, indigineity, R v Smith, 2024 ONSC 1482: #possession & DNA, and R v Pearson, 2024 ABCJ 67: no prelim #waiver by non-appearance.

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R v Giroux, 2024 ABCJ 71

[March 27, 2024] Charter s.10(b) Implementational Duty, Voluntariness, and Indigineity [J. K. Sihra J.]

AUTHOR’S NOTE: After allowing an accused individual to call a lawyer, the police must follow up to check if they successfully made contact. The court recognizes that an accused person's Indigenous background can influence their interactions with the police. As the court observed in this case, Mr. Giroux is Indigenous, and First Nations people have endured a history of colonialism. Today, both systemic and individual effects of this history persist. When asked by the police if he had reached out to counsel, the accused mentioned only that he had contacted Legal Aid. The police officer incorrectly assumed this meant he had spoken to a lawyer. By not probing further, the police denied the accused a chance to actually contact a lawyer. This oversight impacted the voluntariness of the accused's statement.

Introduction

[1] Kyle Dallas Giroux is facing the following charges:

1. s 145(5)(a) Criminal Code (“CC”) - Breach Release Order

2. s 271 CC - Sexual Assault upon TD

3. s 151 CC - Unlawful Touching with Sexual Purpose of TD, a person under age 16

Voir Dire

[3] The Accused challenged the voluntariness of his statement to the police. As such, the trial was commenced within a voir dire, during which it became apparent that ss 10(b) and 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) were also in issue.

[4] The Crown called four police officers to testify in the voir dire. The only defence witness was Mr. Giroux.

Onus of Proof

[7] An accused has the onus of proving a Charter violation on a balance of probabilities, and the Crown bears the onus of proving voluntariness of an accused’s statement beyond a reasonable doubt.

Findings of Fact

[9] In the early morning hours of September 5, 2021, the police were dispatched to a complaint of sexual assault on a teenager.

[11] Cst Dodd took a statement from a male on scene, DH. Cst Haight took a statement from TD, who was age 15.

[12] Police checks on the Accused, who was on scene, revealed that he was on conditions not to be in contact with persons under the age of 16.

[13] From his RCMP Charter card, Cst Dodd advised the Accused he was under arrest for breaching his conditions, and verbatim read him his Charter rights, including the right to counsel.

[14] The Accused indicated that he wished to speak to a lawyer.

[16] Neither Cst Dodd and Cst Haight made any offers, threats, promises, or inducements to the Accused.

[17] After arrival at the police detachment, the Accused was placed in a phone room at 7:17 hours to speak to a lawyer. Ten minutes later, the Accused came out and said he had not spoken to a lawyer but spoke to someone else. Cst Haight offered the Accused further opportunity to speak to a lawyer, but the Accused said he would rather go to the bathroom.

[18] Later, acting on Cpl Bilodeau’s instructions, Cst Perry, using her Charter card, arrested the Accused for sexual assault and sexual interference. Cst Perry also read the s 10(b) right to counsel to the Accused. Cst Perry asked the Accused if he understood. He indicated he did. The officer asked the Accused if he wished to contact a lawyer. He said, “Yes”. The police caution was also provided. The Accused again indicated that he understood.

[20] The Accused might have said he wanted a specific lawyer, but Cst Perry does not recall the name. Cst Perry did give the Accused “additional time” to speak to a lawyer.

[21] Cst Perry witnessed the Accused on the phone.

[22] When the Accused exited the phone room, Cst Perry asked if he had spoken to a lawyer. The Accused said that he spoke to Legal Aid.

[23] Cst Perry testified that “Legal Aid and lawyer would be the same”. She returned the Accused to his cell. The time was 13:55 hours.

[24] Cst Perry did not make any offer, threat, promise, or inducement in exchange for the giving of a statement.

[28] Cpl Bilodeau does not recall when speaking to the Accused at the cell door whether he asked to speak to a lawyer.

[29] The Accused followed Cpl Bilodeau to an interview room in the cell area of the detachment.

[30] Cpl Bilodeau provided a secondary caution to the Accused but could not recall her exact words when testifying. During the secondary caution, Cpl Bilodeau made it clear that giving of a statement was voluntary and that the Accused could leave. Cpl Bilodeau said that the door was not locked, and the Accused had only to say, and he would be taken back to his cell.

[31] Cpl Bilodeau did not provide any offers, threats, promises, or inducements to the Accused.

[32] Cpl Bilodeau proceeded to take a cautioned statement from the Accused, which was audio and video recorded, and no lawyer was present.

[33] Throughout the statement, the Accused expressed that he wanted to speak to his mother. Cpl Bilodeau’s notes do not mention the Accused asking to speak to a lawyer but do refer to the Accused’s wish to speak to his mother.

[35] The interview was “quite long”, but during it, Cpl Bilodeau was solicitous of the Accused’s physical needs in terms of snacks or drinks, and use of restroom facilities if required.

[36] The Accused for his part stated that the police yelled at him when they arrived at the house.

[37] He does not recall the Charter rights being read to him, and “it was all a blur”.

[38] The Accused did not completely understand the Charter rights.

[40] At the police detachment, the Accused wanted to talk to a lawyer and admits he was given time in the phone room. However, he was not able to speak to a lawyer at all, let alone a lawyer with a [Legal Aid] certificate.

[41] While in the phone room, the Accused spoke to [someone from] Legal Aid, which was still in the process of appointing a lawyer for him.

[42] The Accused asked the police multiple times to have a lawyer present if interviewed.

[43] Regardless of not being able to contact a lawyer, the Accused felt at the time he was being told, not requested, by the police to go into the interview room to give a statement.

[45] Although the Accused says the officer during the interview was respectful, the Accused felt “commanded” before the interview.

[47] The Accused felt he “had no choice” but to agree and co-operate as he was “an inmate” and “in jail”. He did not feel “respected”. He felt he had to proceed with the interview, or he would be punished, or “something bad” or unknown would happen. He “gladly” would have told the police he did not understand if he knew he was allowed to do that. He did not know he had the right to ask the police about “how to do their job”.

[48] The Accused felt “forced”, “intimidated”, “coerced”, “under duress”, and “pressured” into giving a statement.

[49] The Accused says that the statement he gave was “not entirely true” as he felt intimidated.

The Law

[50] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[51] In R v Luong, 2000 ABCA 301 (Alta. C.A.), the Alberta Court of Appeal summarized the legal principles with respect to the right to counsel at para 12:

1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter has been infringed or denied.

2. Section 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person.

3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel.

4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel.

5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)". R. v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.) at 301.

6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301.

7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right.

8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out.

9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonably diligent in the exercise of his rights. R. v. Smith (1989), 50 C.C.C. (3d) 308 (S.C.C.) at 315-16 and 323.

10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, the implementation duties either do not arise in the first place or will be suspended. R. v. Tremblay(1987), 37 C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Leclair (1989), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out.

11. Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove a valid waiver of the right to counsel. In such a case, state authorities have an additional informational obligation to "tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such a warning, an infringement is made out.

[52] The underlying functions of the right to counsel were discussed at length in R v Sinclair, 2010 SCC 35:

26 The purpose of the right to counsel is "to allow the detainee not only to be informed of his rights and obligations under the law, but equally if not more important, to obtain advice as to how to exercise those rights": R. v. Manninen, [1987] 1 S.C.R. 1233 (S.C.C.), at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee's decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice.

[53] Our Court of Appeal more recently also canvassed the purpose of s 10(b) in R v LaFrance, 2021 ABCA 51:

47 The right to effective assistance of counsel is seen as crucial in our society, and the right to it is a principle of fundamental justice; see Steve Coughlan, Criminal Procedure, 4th ed (Toronto, Ontario: Irwin Law, 2020) at 332. The purpose of s 10(b) is to provide the detainee with an opportunity to obtain legal advice on their rights and obligations under the law, mainly the right to remain silent; see R. v. McCrimmon, 2010 SCC 36 (S.C.C.) at para 18, [2010] 2 S.C.R. 402 (S.C.C.). This opportunity is made available because, when an individual is detained, they are "put in a position of disadvantage relative to the state"; see R. v. Bartle, [1994] 3 S.C.R. 173S.C.C. at 191, 1994 CanLII 64 [Bartle]; R. v. Suter, 2018 SCC 34 (S.C.C.) at para 175, [2018] 2 S.C.R. 496 (S.C.C.) [Suter]. As such, the right to counsel guaranteed by s 10(b) is "designed to ensure that persons who are arrested or detained are treated fairly in the criminal process"; see Bartle at 191, citing R. v. Clarkson, [1986] 1 S.C.R. 383 (S.C.C.) at 394, 1986 CanLII 61; Suter at para 175.

49 The focus of s 10(b) is on the provision of enough information for the detainee to make a meaningful decision as to whether to cooperate with police and for strategies to exercise that decision, or in other words to ensure that the detainee can make a free and informed choice as to whether to cooperate with police or not; see Sinclair at para 26.

[55] The Ontario Court of Appeal noted in R v Badgerow, 2008 ONCA 605:

46 Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights

[57] According to R v Whitford, 1997 ABCA 85, an accused who wishes to make two or three successive phone calls in the exercise and pursuit of the right to retain and instruct counsel must be permitted to do so unfettered by police questioning. [

[58] In R v Prosper, [1994] 3 S.C.R. 236 (S.C.C.), Lamer CJ for the majority of the Court noted that what constitutes a "reasonable opportunity" to exercise the right to counsel will depend on all the surrounding circumstances.

[59] In R v Andersen, 2003 ABQB 964, T Clackson J. said:

12 Clearly the appellant had not contacted a lawyer. Clearly, he was trying to do so. Therefore, his reasonable opportunity period continued and was improperly interrupted. The officer came to a conclusion based upon an assumption which was wrong, that is unfortunate. The error could have been avoided by the simple expedient of one or two unambiguous questions. That does not mean that the officer is obliged to play 20 questions. However, if the officer does not make specific inquiry and it is found that the detainee has been diligent and unsuccessful in contacting counsel, then the Crown cannot meet its onus.

[62] As noted by Lamer CJ in R v Bartle, [1994] 3 S.C.R. 173 (S.C.C.) at paras 63-64, courts must not speculate about the nature of the legal advice the detainee might have received and whether it would have made any difference to the outcome. It is for the Crown to establish there was no causal link between the breach and the obtaining of the evidence (para 55).

[63] J C Price J in R v Big Bull, 2023 ABKB 221 stated:

6 The law is clear, if an accused person says something to someone in authority and the crown wants to use that statement in a trial, unless the accused person consents to the use of the statement made or takes no issue with the use of that statement in the trial, the crown must prove beyond a reasonable doubt that the statement made by the accused is voluntary. This is because statements made by an accused person to persons in authority are inadmissible unless they were made by the accused person voluntarily. This is the common law rule on voluntariness also known as the confessions rule.

[69] R v Beaver, 2022 SCC 54 illuminated the concept of voluntariness:

47 Voluntariness, broadly defined, is the "touchstone" of the confessions rule (Oickle, at paras. 27, 32 and 69; Spencer, at para. 11; Singh, at para. 31). Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justice system (Oickle, at paras. 32 and 70; Singh, at paras. 30 and 34; Tessier (SCC), at paras. 70 and 72). A statement may be involuntary "because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence" (Tessier (SCC), at para. 70).

48 The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the "trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority" (Tessier (SCC), at para. 68). The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would "shock the community", and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry (see Oickle, at paras. 47, 66-67 and 71; Spencer, at paras. 11-12; Singh, at para. 35; Tessier (SCC), at paras. 5, 68, 76 and 87).

50 The role of a police caution in the voluntariness analysis was recently clarified in Tessier (SCC), where Kasirer J. affirmed, at para. 5, that "the presence or absence of a police caution is an 'important' factor in answering the question of voluntariness", based on Charron J.'s guidance in Singh, at para. 33 (see also Singh, at para. 31; Boudreau v. The King, [1949] S.C.R. 262, at p. 267).

53 Some of the non-exhaustive factors that can help show the suspect was subjectively aware of their right to silence or of the consequences of speaking to the police include (1) the suspect's awareness of being recorded; (2) indications that the suspect is directing the conversation; (3) the suspect's awareness of what is being investigated and their alleged role in the investigation; (4) the suspect's exercise of the right to silence by declining to answer police questions; and (5) the suspect's eagerness to talk, although this factor can weigh for and against such a finding, depending on the circumstances (Tessier (SCC), at para. 88).

[70] Denial of access to counsel may be a factor in determining voluntariness: Oickle at para 60; R v Sinclair, 2010 SCC 35 at para 29; R v Cole, 2019 NBQB 87 at paras 87–106.

[71] A voluntary confession cannot have been obtained in a manner that breached s 7 of the Charter (Singh at para. 8; R. v. Broyles, [1991] 3 S.C.R. 595 at p. 609; and D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020) at p. 453).

[72] A voluntary confession need not always be admitted into evidence. If a voluntary confession was obtained in a manner that breached the Charter, it can still potentially be excluded under s 24(2) (Oickle at para. 30; Singh at para. 38).

Analysis

s 10(b) Right to Counsel

[75] However, what is in issue are the dual implementational duties of the police under s 10(b) (Luong at para 12):

1. the obligation to provide the detainee a reasonable opportunity to exercise the right to counsel, and

2. the duty to refrain from attempting to elicit evidence until that reasonable opportunity has been afforded.

[76] At the outset, this Court takes judicial notice of the fact that Mr. Giroux is Indigenous, and First Nations peoples have a history of colonialism, and systemically and individually today, residual effects remain.

[77] In this matter, Cst Perry did not in her testimony explain the circumstances surrounding Mr. Giroux leaving the phone room, and whether his exit was of his own initiative or precipitated by the police. The officer merely testified that when the Accused left the phone room, Cst Perry asked if he had spoken to a lawyer. The Accused said that he spoke to Legal Aid. This was consistent with the Accused’s testimony during the voir dire.

[78] The fact that the Accused did not answer “Yes” to the officer’s question ought to have conveyed to Cst Perry that the Accused had not spoken to a lawyer, or at the very least, compelled her to ask follow-up questions. However, she did not do so. Despite the caution to police in Badgerow, Cst Perry perfunctorily ignored or was willfully blind to Mr. Giroux’s response that clearly suggested he had not exercised his 10(b) right.

[79] The Court also takes judicial notice of the fact that September 5, 2021 was a Sunday. There was thus all the more reason for Cst Perry to make further inquiry as it was a day when most businesses, including law firms, are not open or often have scaled-back services.

[80] Cst Perry simply testified that “Legal Aid and lawyer would be the same”. Yet, a lawyer is an individual with legal training whereas Legal Aid is an organization of employees, clearly not all of whom are lawyers. It was not reasonable for the officer, without more, to just equate Legal Aid to a lawyer. As did the officer in Rezansoff, Cst Perry assumed that the Accused had spoken to a lawyer, in this case apparently, a Legal Aid lawyer. This was an erroneous assumption.

[81] Although Mr. Giroux had been afforded a period of time in the phone room, he, similar to the accused in Anderson, had not contacted a lawyer. The evidence is that Mr. Giroux was attempting to do so as confirmed by Cst Perry’s observation of him being on the telephone. There is no evidence that Mr. Giroux’s failure to contact a lawyer was due to lack of diligence.

[82] The Court concludes that in the absence of confirmation that he had spoken to a lawyer as per his original wish, Mr. Giroux’s reasonable opportunity to contact a lawyer ought to have been allowed to continue but was improperly truncated by Cst Perry despite lack of urgency.

[83] The Court therefore has a reasonable doubt as to whether the Crown has met its burden of establishing that the first implementational duty was satisfied and that Mr. Giroux, who invoked the right to counsel, was provided with a reasonable opportunity to exercise the right. As per Luong, there would thus be no need to determine if Mr. Giroux was reasonably diligent in exercising his right to counsel. However, the Court is satisfied that the Accused indeed was diligent as he was observed to be on the phone, and other than choosing to go to the washroom earlier (which the Court views as being a biological imperative), there is no other evidence of Mr. Giroux not being attentive to contacting counsel.

[84] Even if the Court is mistaken as to whether the first implemental duty was satisfied, it is clear that the police failed to confirm that Mr. Giroux, having been unsuccessful in contacting counsel, no longer wished to receive legal advice. If he had in fact changed his mind about exercising his s 10(b) right, the police failed to administer a Prosper warning or waiver of the right to counsel. Either way, the Court concludes that the police violated Mr. Giroux’s s 10(b) Charter right.

Voluntariness and s 7 Right to Silence

[85] Mr. Giroux, in not being able to exercise the right to consult counsel, was deprived of potential information about:

1. his jeopardy;

2. his legal rights;

3. his options and their consequences;

4. possible police tactics;

5. how to conduct himself while in custody; and

6. whether to speak to the police

[88] It is noted that Cpl Bilodeau provided a secondary caution to Mr. Giroux before commencing the police interview. Nonetheless, this officer was unable to provide the precise wording of what she said. As per Tessier, whether a caution was provided directly before the interview is not determinative of voluntariness and is only one factor to consider.

[89] It is noted that this was a custodial interview, which, as per Singh, may have heightened the Accused’s sense of having no option but to co-operate, notwithstanding that Cpl. Bilodeau testified that she advised that the interview room door was unlocked, and the Accused was free to leave. It is possible that the Accused’s indigenous status vis-à-vis the officers involved played a role.

[94] It may well be that Mr. Giroux’s interview with Cpl Bilodeau was not "excessively aggressive and intimidating" in the vein of Oickle and Tessier. Indeed, the evidence is that Cpl Bilodeau was “respectful” and attentive to Mr. Giroux’s personal needs. Objectively assessed, however, the totality of the situation and the fact it was a custodial interview lead to the finding that Mr. Giroux genuinely believed that he was obliged to answer police questions and that he was not free to leave. The police’s actions unfairly compromised the Accused’s decision as to whether to provide a statement.

[95] The Court is not convinced that Mr. Giroux’s statement would have been given despite the s 10(b) Charter breach. As a result of this breach, the collective circumstances became oppressive and overrode the Accused’s free will and his right to remain silent. The Crown has thus failed to meet its onus of proving voluntariness of the Accused’s statement beyond a reasonable doubt. Based on the same considerations, the Court is satisfied that Mr. Giroux has established a contravention of his s 7 Charter right to silence. The Court turns now to consider whether the Accused’s statement ought to be excluded under s 24(2) of the Charter.

[105] The first two lines of inquiry here make a strong case for excluding Mr. Giroux’s statement. The cumulative weight of the first two lines of inquiry is not overwhelmed by a compelling public interest in admitting the statement. On a balancing of the lines of inquiry under s 24(2), the Court concludes that admitting Mr. Giroux's confession would bring the administration of justice into disrepute.

Conclusion

[106] The Court finds that Mr. Giroux’s statement to the police was not voluntary. The statement is excluded both on that basis and because, pursuant to s 24(2) of the Charter, his rights under ss 10(b) and 7 of the Charter were violated.

R v Smith, 2024 ONSC 1482

[March 26, 2024] Evidence of Possession, DNA Transfer [Justice S. Nakatsuru]

AUTHOR’S NOTE: This case offers valuable insights into the analysis of possession, which can be beneficial for defence counsel in future cases. While convictions were secured based on long-term wiretap evidence related to drug offences, the possession cases involving the firearm found in the car and drugs found in the residence present compelling arguments for future defences.

The examination of the firearm, including its location (found on the driver's seat inside a satchel) and the DNA evidence recovered from it, serves as an instructive example for other courts. In this instance, the DNA evidence was compromised due to the police's careless handling, and the possession of the firearm was questionable given the ease with which items can be placed in a car's seat. Additionally, there was evidence of a satchel similar to the one containing the gun being in the accused's possession the day before.

Regarding the drugs discovered in the residence, there were multiple reasonable interpretations of possession. It's worth noting that the Crown did not seek to introduce a similar fact application to apply the evidence across multiple counts.

[1] On June 15, 2021, a police surveillance team tried to box in a Nissan Rogue while it was parked in a strip plaza on Jane Street in the city of Toronto. They were going to arrest its driver, the defendant, Mr. Damen Smith, along with the other occupants1 which included a Shamal Searchwell-Beals whom the police believed to be the supplier of drugs for Mr. Smith. Mr. Searchwell-Beals had just gotten into the rear seat of the Rogue from an adjacent Hyundai when unmarked police cars moved in quickly to contain the Rogue. Mr. Smith accelerated and dramatically reversed over a low embankment. The Rogue landed on Jane Street, busy with traffic at 6:30 p.m. on that summer evening. Three police cars followed the Rogue over the embankment. One deliberately struck the Rogue’s front. Another intentionally struck its rear on the passenger side. As Detective Balint tried to maneuver his car to block the driver’s side, Mr. Smith got out and fled down the roadway toward the parking lot of another plaza. A foot chase ensued. It ended with Mr. Smith being struck by Detective Balint’s vehicle in the parking lot. When Mr. Smith got to his feet again, Detective Balint placed him under arrest for drug offences that Project Red Owl investigators believed he had been involved in based upon wiretap intercepts.

[2] After his arrest, search warrants for the Rogue and the address of unit 201, 10 Allenhurst Drive, Toronto, were executed. Drugs, a gun, and other evidence were seized. Additional charges were laid against Mr. Smith.

[3] The charges Mr. Smith faces at his trial can be broken down into three categories:

•  trafficking in various illegal drugs from May 8 to June 15, 2021;
• possession of a firearm, proceeds, and drug offences resulting from the June 15, 2021, search of the Rogue; and
• drug and proceeds offences resulting from the June 15, 2021, search of unit 201, 10 Allenhurst Drive.

[4] Before analyzing the evidence, I emphasize that any propensity reasoning is steadfastly rejected. No cross-count similar act application was brought. The evidence led by the Crown must be assessed appropriately: R. v. Baksh, 2022 ONCA 481, at paras. 18-28. Provided propensity reasoning is eschewed, evidence relating to one count can be circumstantial evidence to prove another count depending on the fact-specific circumstances: R. v. Jahangiri, 2022 ONCA 644, at paras. 36-38.

[5] Proving the charges depends significantly upon circumstantial evidence. Thus, for the Crown to meet its burden, I must be satisfied that the accused’s guilt regarding the material count is the only reasonable inference that can be drawn from the evidence or the absence of evidence. This means I must be satisfied that the circumstantial evidence, assessed logically and in totality, in light of human experience, excludes any other reasonable alternative other than guilt. If there is a reasonable inference or conclusion other than guilt, the Crown will not have met its burden of proving the case beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 35.

A. Trafficking in various illegal drugs from May 8 to June 15, 2021

[6] Proof of these charges depends upon the authorized intercepts of private communication.

[9]....Of the 183 interceptions of private communications spanning the period May 6 to June 15, 2021, the vast majority reveal a consistent pattern of retail drug trafficking by Mr. Smith. A purchaser contacting Mr. Smith. A request for one drug or another. An agreement to sell. An arrangement for a meet. There can be no doubt whatsoever Mr. Smith was trafficking in the various drugs.

[10] Without hesitation, I find there is no alternative interpretation of these intercepts. The content including references to such things as the weights of the substances (often using drug slang like “half-ball”) as well as the pricing, the brief nature of the conversations, the mutual understanding of what is being transacted, the meetings set up, complaints and compliments of the product and the existence of repeat customers all support this finding.

[12] There will be findings of guilt on these counts.

B. The offences resulting from the June 15, 2021, search of the Rogue

1. The possession of drugs for the purpose of trafficking and the proceeds of crime counts

[33] In my opinion, the whole of the evidence proves beyond a reasonable doubt that Mr. Searchwell-Beals brought the methamphetamine to sell to Mr. Smith. Mr. Smith was waiting in the Rogue to purchase the methamphetamine. There is no other reasonable inference to be drawn from the totality of the evidence.

[38] When the whole of the evidence is considered, I am satisfied beyond a reasonable doubt that the methamphetamine was brought into the car by Mr. Searchwell-Beals and that Mr. Smith knew that. Bluntly, Mr. Smith did not allow a kilogram of methamphetamine to be brought into his car without his knowing about it.

[41] The defence made no submissions regarding whether the possession was for the purpose of trafficking. Rightfully so. Given the intercepts of June 15, the circumstances in which the drugs were found, and the opinion of the drug expert, D.C. Asner, the Crown has proven this essential element beyond a reasonable doubt.

[42] There will be findings of guilt on counts 8 to 12.

[44] Therefore, Mr. Smith is found guilty of count 13.

2. Possession of the firearm counts

[45] After the police disabled the Rogue on Jane Street, D.C. Miles dealt with the front seat passenger, Ms. Forde, while D.C. Doyle dealt with Mr. Searchwell-Beals. Both were detained. D.C. Miles had Ms. Forde step over the driver’s seat to extricate herself from the car since her passenger side door was blocked by one of the police cars. Her foot hit a black satchel on the driver’s seat. To D.C. Miles, it seemed to contain something heavy. After handing Ms. Forde off to another officer, he returned to the car, unzipped the satchel, and saw a firearm within it. The Crown submits that it was Mr. Smith’s firearm. Proof of its possession depends upon circumstantial evidence. Thus, the cumulative effect of all of the evidence must be considered including weak evidence: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 37.

[47] Detective Balint testified that at 8:40 p.m. on June 14, 2021, at 10 Allenhurst Drive, he saw Mr. Smith walk to that address with a black satchel slung across his shoulder. It was not as big as a knapsack but bigger than a fanny pack. In cross, he admitted that the satchel had no distinctive features. Based on the photos of the satchel that had the firearm, it does not appear to me that Mr. Smith was carrying that satchel on June 14 since the satchel with the firearm had a very distinctive bright red stripe on the shoulder strap. It is hard to miss. It appears to be a designer satchel. In addition, I am mindful that black or dark colored side satchels are not that rare these days. This, coupled with the lack of a red striped strap on the bag that was seen on June 14, gives this evidence of Detective Balint little weight in supporting the inference that the satchel with the firearm was Mr. Smith’s. Of course though, I will consider it in the overall proof by the Crown.

[48] More significantly, on June 15, Detective Balint observed Mr. Smith exit 10 Allenhurst Drive with a female at 2:15 p.m. and get into the Rogue. He also took a short video of Mr. Smith. The video does not show Mr. Smith with a satchel. Detective Balint testified under cross that he had a decent chance to see Mr. Smith, longer than the short video, and agreed he did not see Mr. Smith with anything in his hand or with a black satchel. Thus, there is no direct evidence of Mr. Smith carrying the black satchel that day though I appreciate it could have already been in the car or he could have picked up elsewhere when he was not observed by the police.

[49] The Crown relies on two intercepts to support proof the firearm was Mr. Smith’s....

[50]....While I will still consider this evidence in the overall assessment of the circumstantial case against Mr. Smith, I do not find this call to be as inculpatory as the Crown argues.

[51] The fact that the satchel was on the driver’s seat along with Mr. Smith’s car keys is good evidence supporting the inference the satchel containing the firearm belonged to Mr. Smith. On the other hand, other occupants of the vehicle could easily have put the satchel there once Mr. Smith left the vehicle. It would be a simple matter to toss the satchel onto the seat. I note that neither Ms. Forde nor Mr. Searchwell-Beals were called to give evidence at this trial.

[52] There is the DNA evidence. The DNA expert testified that Mr. Smith could not be excluded as the major contributor of the DNA found on the firearm. There was other person(s)’s DNA on the gun but not in enough quantity to create a profile. Given the improbability of a random match, I find that Mr. Smith’s DNA was on the firearm.

[53] The DNA evidence of Mr. Smith on the gun would normally be very strong evidence for the Crown. However, the gun was very poorly handled by the police prior to sending it for DNA analysis. The firearm was proven safe at the scene by D.C. Morgan. However, he also handled numerous drug exhibits from the car as well as items such as the key fob. He also handled the satchel which D.C. Miles first touched when he discovered the gun after touching parts of the vehicle. D.C. Morgan could not recall if the satchel was closed after it was proven safe but he left all the evidence together on the front seat of the car. All of this increased the chances of crosscontamination of Mr. Smith’s DNA with the gun. Even worse was the procedure back at 12 Division when the gun was taken out and laid out on a large cardboard box along with the other items seized including the drugs found in the car so they could be photographed. For example, D.C. Manserra handled the exhibits before he touched the gun to prove it safe. Another example. D.C. Tanel handled the exhibits before he removed the firearm from the satchel. Although the officers wore gloves, clearly by handling the objects in this way, the police could have inadvertently cross-contaminated the gun with Mr. Smith’s DNA from another object. This is not speculation. It is a reasonable possibility. The DNA expert was unable to opine whether Mr. Smith’s DNA was deposited there directly or through the mechanism of transference. This state of the evidence weakens the otherwise strong inference I could have drawn from Mr. Smith’s DNA on the firearm. Again, despite the problems in ensuring the proper handling of the gun, I will still consider this evidence when assessing the inference to be drawn from the cumulative effect of the evidence. [PJM Emphasis Added]

[54] Mr. Smith’s flight from the scene is also good evidence...

....It is well-established that before drawing an inference of guilt from postoffence conduct, a trier of fact must consider alternate explanations for the conduct: White, at paras. 23-34.....

[55] The alternative explanations for his attempt to flee police containment both in the Rogue and on foot, makes the drawing of the right inference complicated in this case. As noted above, Mr. Smith could equally have been fleeing from the drugs in the car that I find belonged to him. Moreover, there is an intercepted call where Mr. Smith discusses how he gets a thrill out of fleeing in a car from the police.18 He knows the police do not engage in dangerous high-speed chases and he views flight as a good option should the police ever seek to arrest him in a car. This extremely irresponsible attitude must be rightfully condemned but it does add to the alternative explanations for his conduct. In other words, his flight both in the car and on foot could partly be explained by that attitude as opposed to any knowledge or control over the firearm in the satchel. In the end, while this evidence is probative, it is not sufficiently fact-specific to the firearm in the satchel that in the circumstances of this case, it much advances the circumstantial inference of guilt on the firearm charges.

[56] Lastly, Mr. Smith was not alone in the car. The defence argues that the gun could have belonged to one of the passengers without Mr. Smith knowing of it. I am not persuaded that the gun and satchel belonging to Ms. Forde is a reasonable inference to be drawn given the lack of evidence connecting her to the satchel, any drug-trafficking or a motive to have a firearm. However, it is reasonably possible that Mr. Searchwell-Beals could have brought the satchel with the gun into the Rogue and have put the satchel onto the driver’s seat to distance himself from the firearm contained within without Mr. Smith’s knowledge. This is an inference that flows logically from the evidence and is not conjecture nor speculation for the following reasons. [PJM Emphasis added]

[57] First, given the observation points of the officers conducting surveillance, no officer could say that when Mr. Searchwell-Beals exited the driver’s seat of the red Hyundai and entered the backseat of the Rogue, he was not carrying anything like the satchel in his hands. Indeed, I have already determined that he was at least carrying the box of methamphetamine.

[58] Second, Mr. Searchwell-Beals had the opportunity to place the satchel into the driver’s seat. He knew the police were present. They had rushed the Rogue with guns drawn yelling “police”. He had time to put the satchel there once Mr. Smith had exited the driver’s seat and had run off. Given the dynamic situation unfolding on Jane Street, no one could see what was happening inside the Rogue.

[59] Third, Mr. Searchwell-Beals had a motive to bring a firearm to the scene....

....Mr. Searchwell-Beals was bringing a large quantity of methamphetamine to the meet. He was going to leave the meet with a large quantity of cash. It makes common-sense that Mr. Searchwell-Beals may have feared others who might want to relieve him of either the drugs or the cash. In these circumstances, it is as logical and consistent with human experience for Mr. Searchwell-Beals to arm himself with a firearm as it was for Mr. Smith to do so.

[60] Fourth, the DNA evidence does not preclude Mr. Searchwell-Beals. There is a lessor quantity of unknown DNA contributor(s) on the swabs taken from the firearm.

[61] Ultimately, it is more likely than not that the gun was Mr. Smith’s. Looking at the evidence cumulatively, including all the less probative evidence, it is an entirely reasonable inference based on the circumstantial evidence that the gun is Mr. Smith’s. Indeed, if Mr. Smith was alone in the car or even with just Ms. Forde, a finding of guilt would be inevitable. But the alternative inference, that it was Mr. Searchwell-Beal’s firearm brought into the vehicle without Mr. Smith’s knowledge or consent remains a reasonable one that cannot be precluded based upon the whole of the evidence. This includes the absence of evidence from the other occupants of the car. Perhaps in an overly basic formulation, there were two drug traffickers in that car who could have had the gun. I cannot be sure which one.

[62] Mr. Smith is found not guilty of counts 6 and 7.

C. Drug and proceeds offences resulting from the June 15, 2021, search of unit 201, 10 Allenhurst Drive

[63] A search warrant was executed at what was believed to be Mr. Smith’s residence. In the closet of a bedroom, officers found:

(a) an opaque plastic shopping bag containing:

a. a bag of benzodiazepine pills, weighing approximately 152 g,

b. a bag of benzodiazepine pills, weighing approximately 215 g,

c. a clear bag of MDMA, weighing 254g; and

(b) a small locked safe, containing:

a. $800 CAD,

b. $105 USD, and

c. €50.

[64] When the police arrived to execute the search warrant, they had the keys that was on the key chain with the fob to the Rogue. Inside the two-bedroom apartment, was someone who identified himself to the police as Mark Smith.

[65] To be clear, I do not consider the evidence that Mr. Smith was a drug trafficker as evidence that the drugs in unit 201 were his. That would be propensity reasoning and no proper application was brought by the Crown to have that evidence admitted on these counts for that purpose: R. v. Lepage, [1995] 1 S.C.R 654, at paras. 37-38; Jahangiri, at paras. 38-42. Said differently, no crosscount similar fact application was brought by the Crown to make that evidence admissible for that purpose. Unlike when I dealt with the possession of the drugs in the car, I do not consider the drug trafficking done on June 15 to be contemporaneous circumstantial evidence relating to the possession of the drugs in unit 201, especially given Detective Balint did not see Mr. Smith carry anything to the Rogue when he exited 10 Allenhurst Drive that day. [PJM Emphasis added]

[66] That acknowledged, it is a reasonable inference that Mr. Smith possessed the drugs in unit 201 for the purpose of trafficking. He had the keys to the bedroom door and the safe inside the closet. Inside the closet on top of the safe, there were some documents in his name. Also, in a shelving unit, there were more documents in his name. These included a health record and a tax form.

[67] On the other hand, it is a reasonable inference that the drugs were not Mr. Smith’s but Mark Smith’s, who I have not heard from as a witness. The reasonable doubt comes from the following evidence and absence of evidence.

[68] Mr. Smith was seen by police surveillance on three occasions leaving the apartment building at 10 Allenhurst Drive on June 10, 14, and 15. But there is little other evidence to establish this is his primary residence. The documents located in the bedroom, while carrying his name, have a Swansea Mews address on it. There are only two documents that I can clearly identify from the photographic evidence of the documents and they are a tax assessment from 2018 and health test results from 2019. No other identification or more current document featuring Mr. Smith’s name or the address of 10 Allenhurst Drive was presented. As the defence submitted, the documents, only in evidence as photographs, are of a nature that a son could store at a parent’s or a close relative’s home. And there does not seem to be many documents. Moreover, while Mr. Smith’s keys opened the bedroom door and the safe, the evidence does not show he had keys to the front door of the apartment....

[69] A significant piece of evidence is the fact that Mark Smith was in the apartment at the time. He was arrested. D.C. Wocks testified that in the other bedroom, one scale, three envelopes of cash, two baggies of cash, two empty packaging, and two bags of white powder of what was believed to be cocaine was found.

[70] Moreover, unusually, when the police burst through the door after battering it down until it broke in two, Mark Smith was standing in the hallway with a set of keys in his hand. The door to the bedroom in which the benzodiazepine and MDMA was later found was not locked but open. The police did not try the keys in Mark Smith’s hand to see what door or items they opened. As I said, it is curious behaviour for someone inside an apartment in these circumstances to be walking around with keys in his hand.

[71] Given this state of evidence, Mark Smith’s absence as a witness has some import. There is no other admissible evidence, such as forensic evidence, tying the drugs in the closet to Mr. Smith.

[72] While it is a reasonable inference that Mr. Smith had knowledge and control over the drugs in the closet, it remains a reasonable inference that he did not. As the defence submits, Mark Smith would have had time to place those drugs there without Mr. Smith’s knowledge given how the police announced themselves at the door and took time to enter. Mark Smith would have a motive to do that if he wanted to distance himself from those drugs. Mark Smith having keys in his hand and the bedroom door being open support that theory. [Emphasis by PJM]

[73] This is a close call. Nonetheless, I find that the burden of proof has not been met by the prosecution.

[74] Mr. Smith will be found not guilty of counts 14 and 15.

D. Final disposition

[76] Mr. Smith is found guilty of counts 2 to 5 and 8 to 13. He is found not guilty of the remaining counts.

R v Pearson, 2024 ABCJ 67

[March 11, 2024] Application for a Preliminary Inquiry [Justice J. J. Moher]

AUTHOR’S NOTE: Waiver of a procedural right to a preliminary inquiry requires more than one non-appearance at a scheduled preliminary inquiry. In this case, the Crown sought to deny an individual a preliminary inquiry based on a single missed appearance. However, waiving procedural rights demands a clear and explicit waiver, made with a complete understanding of the right in question and the implications of forgoing those protections.

Reasons for Decision of the Honourable Justice J.J. Moher
on Defence Application to Schedule a Preliminary Inquiry

[1] This is a defence application to schedule a preliminary inquiry. I have taken the opportunity to review the Information and endorsements which provide a framework within which this motion can be addressed.

Procedural History

[3] The Crown proceeded by indictment on December 7, 2022.

[7] On February 6, 2023, Mr. George Lebessis appeared for the accused in courtroom 268. The same day, a designation of counsel was filed.

[8] On March 13, 2023, the endorsement reflects that an election was made for trial by King’s Bench Justice alone and a preliminary inquiry was requested and scheduled by defence counsel, Mr. Lebessis. The preliminary inquiry was scheduled for November 6, 2023.

[9] A Criminal Code s 536.3 Statement of Issues and Witnesses (ACOJ Criminal Rules Form 4) was filed on March 14, 2023, seeking to hear from a single witness, the complainant, LR. Although it was not expressly set out in the Form 4 whether or not committal was contested, there were seven issues raised....

[10] The Form 4, albeit not perfect, certainly leads to the reasonable inference that committal was in fact contested.

[12] On November 6, 2023, Mr. Lebessis appeared in Edmonton courtroom 447, the so-called “child friendly” courtroom. In its reply filed on this motion, the Crown advised the complainant was present on November 6, 2023, however, this is not reflected on the endorsements for that date. The endorsements do reflect that Mr. Lebessis was granted leave to withdraw and an unendorsed warrant was issued for the arrest of Mr. Pearson, who was not present when the matter was spoken to at 9:30 am.

[13] While it is not clear from the process on the file exactly when Mr. Pearson was arrested, he was released by a Justice of the Peace at the Edmonton Hearing Office on a further release order signed on December 11, 2023. The release order was a $3,000 promise to pay with conditions, including condition #2, a reporting condition, and condition #3, a condition to reside at # 10, 290 Spruce Ridge Road, Spruce Grove, Alberta. The matters were next returnable in courtroom 268 on January 15, 2024.

[20] Late on March 4, 2024, the Crown filed “Crown Position Regarding Second Preliminary Inquiry”, notionally a Form 2, resisting the defence application to schedule a preliminary inquiry. The Crown takes the position that there was a “waiver” of the preliminary inquiry when the accused failed to appear on November 6, 2023, for the preliminary inquiry.

Legal Framework

[23] In his Form 1, the accused seeks to schedule a preliminary inquiry. The Crown resists the application stating at para 24 of its written response that:

...the accused abandoned his request for a preliminary inquiry by failing to attend court on November 6, 2023, triggering Section 536 (4.3). The accused should be committed to stand trial and the matter sent to KBAC at the earliest opportunity.

[24] No case law or statutory provisions are referred to in the accused’s Form 1. Ms. Joly did refer to several cases during oral argument. The Crown, in its Form 2, referred to R v Stinert, 2015 ABPC 4 [Stinert] and R v Callender, 2007 ONCJ 86 [Callender].

[25] The case of Callender involved a $280,000 mortgage fraud. Two previous preliminary inquiries were scheduled but did not proceed, which do not appear to be related directly to the accused’s non-attendance. On the third scheduled preliminary inquiry date, the accused did not attend. Defence counsel made an application to proceed in the absence of the accused pursuant to Criminal Code s 544, the “absconding accused” section of Part XVIII. Defence counsel also represented to the court that the accused was “likely in the Bahamas” at the time of the third preliminary inquiry. At para 10 of a brief written decision, Justice B. Duncan concluded:

...even where there has been no specific withdrawal by the requesting party, there can be an effective withdrawal by conduct or a deemed abandonment of the request for a preliminary inquiry.

[26] Justice Duncan also concluded that given committal had not been contested - characterizing it as a “discovery” preliminary inquiry - the accused would sustain “minimal” prejudice if he was committed to stand trial. Mr. Callender was committed to stand trial without a preliminary inquiry.

[27] Judge Rosborough’s decision in Stinert was decided in 2015, before the amendments to the Criminal Code on September 19, 2019 that limited an accused’s right to a preliminary inquiry to certain offences. The Stinert case primarily dealt with the adequacy of the then-Form A, the Criminal Code s 536.3 statement, filed by defence counsel. Judge Rosborough suggested an expanded gatekeeping role for judges with respect to preliminary inquiries at paras 38 et subseq. He recounted at length the history of preliminary inquiries in Canada. He expressed significant dissatisfaction with preliminary inquiries. At para 12, he referred to a 1994 Provincial Court of British Columbia decision, R v Darby, [1994] BCJ No 814 (Prov Ct), describing preliminary inquiries as a “...rudderless ship on choppy waters. The preliminary hearing has been turned into a free-for-all, a living hell for victims of crime and witnesses who are called to take part in this archaic ritual.”

[28] Subsequent to Judge Rosborough’s decision in Stinert, then-Prof. Lisa Silver (now Justice Silver of the Alberta Court of King’s Bench) in her April 17, 2015 academic blog entitled, “Does the Stinert Decision Signal the End of the Preliminary Inquiry?” commented that, in her view, Judge Rosborough’s proposal to extend to his gatekeeping function went too far when he concluded that a deficient Criminal Code s 536.3 statement would deem a preliminary inquiry abandoned or withdrawn.

[29] Can the accused’s nonappearance at a preliminary inquiry be interpreted as a waiver of their request for a preliminary inquiry? The Supreme Court of Canada has analyzed this issue regarding procedural rights in general. The criteria for assessing whether there is valid waiver comes from Korponay v Attorney General of Canada, [1982] 1 SCR 41 [Korponay]. According to Korponay at 49-50, a valid waiver of a procedural requirement for the benefit of an accused must meet the following criteria:

a) The waiver must be clear and unequivocal,

b) the party making the waiver must have full knowledge of the rights the procedure was enacted to protect, and

c) the party making the waiver must know the effect of the waiver on those protections. See also R v JF, 2022 SCC 17 at paras 43-45.

Analysis

[30] The accused retained counsel within three months of having been charged with serious Criminal Code offences. Criminal Code s 286.1(2), if it involves a person under the age of 18 years, is a straight indictable offence with the maximum penalty being 10 years in custody. Criminal Code s 152, invitation to sexual touching involving a complainant under the age of 16, has a maximum custodial sentence of 14 years, and as such, the accused is statutorily entitled to a preliminary inquiry upon request. Criminal Code s 245, the administering of a noxious substance, has a maximum custodial sentence of two years in custody.

[31] On March 13, 2023, approximately four months after Mr. Pearson was charged, he elected to proceed by Trial before a King’s Bench Justice alone and requested a preliminary inquiry. The Form 4 was filed the next day and appeared to contest committal, apparently not only for the purposes of “discovery”.

[32] There were no further court appearances prior to the scheduled preliminary inquiry date. On November 6, 2023, defence counsel, Mr. Lebessis, appeared in the assigned trial courtroom. The accused did not. Defence counsel was granted leave to withdraw, and an unendorsed warrant was issued for the accused’s arrest.

[34] Ms. Joly filed a designation of counsel on February 29, 2024, and brought this application immediately thereafter. Given no materials or evidence was filed in support of the application, it is not clear what precipitated the application in terms of whether it was as a result of an inquiry by the Court or some sort of a prohibition by the Crown in docket, or otherwise

[36] In my view, Criminal Code s 536(4.3) cannot be “triggered” by an accused’s nonappearance at a scheduled preliminary inquiry. Criminal Code s 536(4.3) provides that if there is no request for a preliminary inquiry, which I take to mean if the requesting party waives the right to a preliminary inquiry or withdraws the request for preliminary inquiry, only then does the Court have jurisdiction to commit the accused to stand trial without a preliminary inquiry.

[37] Nonappearance of an accused at a preliminary inquiry cannot in and of itself constitute a waiver of a requested preliminary inquiry. I reject the Crown’s contention that “[t]he accused failed to appear [on the date scheduled for the preliminary inquiry], and b[y] doing so, abandoned the request for a preliminary hearing”.

[38] I do not accept that there can be an implied or “deemed” waiver of requested preliminary inquiry except in perhaps limited extraordinary or exceptional circumstances, see: R v Grant , 2016 ONCJ 170, another decision of ONCJ Justice B. Duncan, which involved an accused who, on the date scheduled for a preliminary inquiry, refused to acknowledge the jurisdiction of the court (ACJ Rooke described these persons as an “Organized Pseudolegal Commercial Argument” [OPCA] litigants in Meads v Meads , 2012 ABQB 571).

[39] Such circumstances do not exist in Mr. Pearson’s case. Mr. Pearson retained counsel without delay after he was charged. A preliminary inquiry was requested with dispatch and the requisite Form 4 filed at the time the preliminary inquiry was scheduled. I accept that Mr. Pearson did not appear at the first scheduled preliminary inquiry on November 6, 2023. His counsel withdrew. A warrant was issued for his arrest. He was arrested within the next month and on his second court appearance, with the assistance of duty counsel, the endorsement reflects that the previous King’s Bench Justice alone election was noted.

[40] Mr. Pearson did not waive his request for a preliminary inquiry. Any such waiver would have to be informed, clear and unequivocal. None of those prerequisites are met in this instance.

[41] Mr. Pearson’s application is granted. A one-day preliminary inquiry should be scheduled within 60 days. Ms. Joly can rely on the original Form 4 or file a new Form 4 no later than March 15, 2024.