The Defence Toolkit – May 11, 2024

This week’s top three summaries: R v Tayo Tompouba, 2024 SCC 16: #French rights, R v Williams, 2024 ONSC 1170: s.8 #abandonment, and R v DD, 2024 ABCJ 99: SOIRA exemption.

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R v Tayo Tompouba, 2024 SCC 16

[May 3, 2024] Section 530(1): Official Language Minority Rights [Reasons by Wagner C.J. with Côté, Rowe, Kasirer, and O'Bonsawin JJ. concurring, Karakatsanis and Martin JJ. dissenting]

AUTHOR’S NOTE: This decision significantly strengthens the rights of official language minorities to have trials conducted in their preferred language. Importantly, even if you are not a French-speaking lawyer, you can use this decision to provide your client with an additional ground for appeal even before the trial commences.

A key aspect of this decision is that the failure of the court to properly convey the timing of the election for a trial in French constitutes a legal error necessitating a new trial. In practice, many defence counsel waive the court's presentation of French-language rights to the accused in provincial court; however, this should not be the case. Counsel should insist on a comprehensive reading of these rights to the accused. Currently, the approved reading of these rights does not align with the Supreme Court of Canada's decision.

Furthermore, unless you, as an anglophone lawyer, have thoroughly memorized the election timing provisions yourself (which is unlikely if you rarely utilize the election), you should refrain from advising your client about this right at the initial appearance.

C. Language Rights Guaranteed by Section 530 Cr. C.

530 (1) On application by an accused whose language is one of the official languages of Canada, made not later than

(a) the time of the appearance of the accused at which his trial date is set, if

(i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or

(ii) the accused is to be tried on an indictment preferred under section 577,

(b) the time of the accused’s election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or

(c) the time when the accused is ordered to stand trial, if the accused

(i) is charged with an offence listed in section 469,

(ii) has elected to be tried by a court composed of a judge or a judge and jury, or

(iii) is deemed to have elected to be tried by a court composed of a judge and jury,

a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.

(3) The justice of the peace or provincial court judge before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.

(1) Fundamental Right To Be Tried in the Official Language of One’s Choice

[38] Discussing s. 530(1) Cr. C., this Court stated that it guarantees to every accused an absolute right to equal access to the courts in the official language of their choice, provided that the accused’s application is timely and that they are able to  instruct counsel and follow the proceedings in the chosen language (Beaulac, at paras. 28, 31, 34 and 37). To exercise this absolute right, the accused need only “assert” which official language is their own language. The judge will then have to grant the accused’s application unless the Crown shows that the assertion is unfounded (para. 34). Where the Crown challenges the accused’s assertion, the judge should not inquire into specific criteria to determine a dominant cultural identity or into the personal language preferences of the accused. The judge will only verify that the requirements of s. 530(1) Cr. C. are met (para. 34). In short, where the accused’s application is timely and there is no evidence establishing that their proficiency in the chosen language is insufficient for them to exercise their right, the accused has an absolute right, guaranteed by s. 530(1) Cr. C., to choose the official language to be used and understood by the judge or the judge and jury before whom they will be tried (para. 56).

[39] In contrast, where an accused’s application to be tried in the official language of their choice is untimely — that is, made outside the period specified in s. 530(1) Cr. C. — the accused’s right is then subject to the judge’s discretion. Under s. 530(4) Cr. C., the judge may grant the accused’s application only if satisfied that doing so is in the best interests of justice. In Beaulac, this Court stated that there are, however, significant constraints on this judicial discretion. In particular, because of the central importance of language rights in Canadian society, there is a presumption in the accused’s favour that granting their application is in the best interests of justice. In practice, therefore, granting an application under s. 530(4) Cr. C. should be the rule and denying it should be the exception (Beaulac, at paras. 42 and 56).

[40] To justify the denial of such an application, the Crown must rebut this presumption. It must show that granting the accused’s application is not in the best interests of justice and, for this purpose, make arguments based on both the reasons for the delay and the difficulties caused by the lateness of the application (Beaulac, at paras. 37, 40, 42 and 44). With regard to the reasons for the delay, this Court specified that the later the application is made, the better the reason for the delay must be in order for the application to be accepted. That being said, there is no burden on the accused: even if the accused provides no explanation for the delay, this will not necessarily be fatal. At most, it will merely facilitate the Crown’s task of justifying the denial of the accused’s late application (paras. 43 and 56). As for the difficulties caused by the lateness of the application, the Court set out the relevant factors relating to the conduct of the trial, including

 whether the accused is represented by counsel, the language in which the evidence is available, the language of witnesses, whether a jury has been empanelled, whether witnesses have already testified, whether they are still available, whether proceedings can continue in a different language without the need to start the trial afresh, the fact that there may be co-accuseds (which would indicate the need for separate trials), changes of counsel by the accused, the need for the Crown to change counsel and the language ability of the presiding judge. [para. 38]

Mere administrative inconvenience, on the other hand, is of no relevance (para. 39)

[41] The result is a framework conducive to the protection of the accused’s language rights. Even where the accused decides to exercise their fundamental right to be tried in the official language of their choice late, even as late as during the trial on the merits, the presumption applies in the accused’s favour. The burden of persuading the court that the accused’s application must be denied falls on the Crown (Beaulac, at paras. 42 and 56).

[42] Finally, it should be noted that it is well settled that the violation of this fundamental right constitutes significant prejudice for which the appropriate remedy is normally a new trial. In Beaulac, this Court stated that the erroneous denial of an application under s. 530(1) or (4) Cr. C. violates the accused’s right to be tried in the official language of their choice and will always cause prejudice to the accused. It follows that where this fundamental right of the accused was violated, the Crown can never successfully rely on either of the curative provisos in s. 686(1)(b) Cr. C., even if the violation had no impact on trial fairness or on the accused’s ability to make full answer and defence (Beaulac, at paras. 52-54; Bessette, at para. 38). Therefore, where there was an infringement of an accused’s fundamental right to be tried in the official language of their choice, a new trial will generally be the fair, appropriate and proportionate remedy (see Beaulac; Mazraani, at paras. 47-48).

(2) Right To Be Advised of This Fundamental Right

[43] Section 530(3) Cr. C. enshrines the accused’s right to be advised of their right to be tried in the official language of their choice and of the time before which an application for this purpose must be made. Parliament’s intention was that the safeguarding of this fundamental right be ultimately entrusted to the judge before whom the accused first appears. To begin with, s. 530(3) Cr. C. explicitly states that the judge must ensure that the accused is advised of their fundamental right and of the time limit for exercising it. In addition, it is implicit in the language of s. 530(3) Cr. C. that if the first appearance judge finds that the accused has not been properly informed, or if they have the slightest doubt in this regard, they must take the necessary steps to ensure that the accused is informed of their fundamental right and of how it is to be exercised....

[44]Section 530(3) Cr. C. states that the judge before whom an accused first appears “shall ensure” (“veille” in the French version) that the accused is “advised” (“avisé” in the French version) of their right and of the time limit for exercising it. The use of these terms in each language version indicates that Parliament intends judges to “make certain” that every accused is informed of their right and of how it is to be exercised so that the accused can avail themself of the right in a timely manner....

....The judge cannot presume what the accused’s choice is or assume that the accused has been or will be advised of their right and of how it is to be exercised. The judge must ensure, in a proactive and systematic manner, that the accused is properly informed, irrespective of the fact that the accused seems to be a member of a linguistic minority or that the accused may have been or may be informed of this right by another person, such as their counsel. In short, the judge must take the steps needed to “have no doubt” that the accused is well aware of their right and of how it is to be exercised (Mazraani, at para. 34; see also paras. 25, 32, 38, 44 and 60; R. v. MacKenzie, 2004 NSCA 10, 181 C.C.C. (3d) 485, at para. 12; Dhingra v. R., 2021 QCCA 1681, 408 C.C.C. (3d) 466, at para. 49).

[45] It should be noted here that if the judge finds that the accused has not been properly informed, or if there remains any doubt about this in their mind, the judge must ensure that the accused is informed of their right and of how it is to be exercised....

[47] This amendment is important. It amounts to legislative recognition of a principle of caution requiring judges to avoid presuming, without verifying in a diligent and proactive manner, that an accused has been duly informed of their right and of how it is to be exercised prior to their first appearance....

[49] It follows from the foregoing that a first appearance judge who fails to actively ensure that the accused has been informed of their fundamental right and of how it is to be exercised, or who fails to ensure, where the circumstances so require, that the accused is informed thereof, contravenes the judge’s informational duty. Such a failure by the judge constitutes a breach of s. 530(3) Cr. C. and violates the accused’s right.

[50] Finally, I note that the consequences of a breach of s. 530(3) Cr. C. will differ depending on when the breach is raised. When it is raised at first instance outside the periods specified in s. 530(1) Cr. C., the accused can file a late application under s. 530(4) Cr. C. The judge’s failure to comply with s. 530(3) Cr. C. will then be a relevant factor in the accused’s favour that the judge hearing the application must consider when assessing the diligence displayed by the accused in exercising their fundamental right. As Mainville J.A. of the Quebec Court of Appeal wrote: “Should the duty under s. 530(3) . . . Cr.C. not have been satisfied, it would be more difficult to refuse a late application” (Dhingra, at para. 51).

[51] Where the breach of s. 530(3) Cr. C. is raised for the first time on appeal, as in this case, the consequences of the breach are a subject of disagreement among the courts, with respect to both the applicable framework and the appropriate remedy....

E. Framework That Applies Where a Breach of Section 530(3) Cr. C. Is Raised for the First Time on Appeal

(1) What the Accused Must Show to Justify Appellate Intervention

[82] In my opinion, a breach of s. 530(3) Cr. C. is an error of law under s. 686(1)(a)(ii) Cr. C., with the result that an accused need only disclose the breach in order to justify appellate intervention under s. 686(1)(a) Cr. C. The question of whether the error of law was prejudicial to the accused and, if so, to what extent, is important. But this question arises in connection with the application of the curative proviso, and the onus is then on the Crown to persuade the court of appeal that the error was not prejudicial to the accused (Khan, at para. 23; Coughlan, at pp. 574-75; Vauclair, Desjardins and Lachance, at No. 51.238). Before broaching this aspect of the analysis, I will explain why a breach of s. 530(3) Cr. C. constitutes an error of law under s. 686(1)(a)(ii) Cr. C. and not, as the Crown and two of my colleagues suggest, a miscarriage of justice.

[84] Failure by the judge before whom the accused first appears to carry out their informational duty under s. 530(3) is an error in the application of a legal rule (Arradi, at para. 39; Khan, at para. 22; Coughlan, at pp. 574-75). By erroneously failing to apply an imperative legal rule of general application, the judge commits what I have termed an “improper omission”. In addition, because this irregularity is related to the proceedings leading to the conviction and is committed by a judge, it has the effect of tainting the trial court’s judgment so as to provide a basis for appellate intervention under s. 686(1)(a)(ii) Cr. C.

[87] The Court of Appeal was therefore correct to characterize a breach of s. 530(3) Cr. C. as an error of law. However, it erred in stating that, to succeed on appeal, an accused in the same situation as Mr. Tayo Tompouba must show not only that the breach occurred but also that their fundamental right to be tried in the official language of their choice was violated.

(2) What the Crown Can Show to Have the Appeal Dismissed Nonetheless

[88] Contrary to what Mr. Tayo Tompouba argues, there is nothing that precludes the application of one of the curative provisos in s. 686(1)(b) Cr. C., provided that the Crown shows that the accused’s fundamental right to be tried in the official language of their choice was not violated.

[89] A breach of s. 530(3) Cr. C. is an error that results in the court losing jurisdiction over the proceedings (Bessette, at para. 27; Munkonda, at paras. 131-33). The Crown can therefore rely on the curative proviso in s. 686(1)(b)(iv) Cr. C. and try to show that no prejudice was caused by the error (Khan, at para. 16; Vauclair, Desjardins and Lachance, at No. 51.246). Thus, once a breach of s. 530(3) Cr. C. has been established, the Crown can argue that, notwithstanding this error of law, the appeal should nonetheless be dismissed on the ground that it did not in fact cause prejudice to the accused — in other words, that the error did not result in a violation of the accused’s fundamental right to be tried in the official language of their choice. If the Crown succeeds, the presumption that the error of law caused prejudice to the accused is rebutted and the court of appeal hearing the case can apply the curative proviso (see Khan, at para. 16; Coughlan, at pp. 574-75 and 582).

[90] It is useful to note three routes that the Crown can take to show that the accused’s fundamental right was not violated and that it is therefore appropriate to dismiss the appeal on the ground that the appellant did not suffer any prejudice as a result of the breach of s. 530(3) Cr. C. First, the Crown can argue that the appellant does not have sufficient proficiency in the official language they were unable to choose at first instance — in other words, that the appellant does not have the ability to instruct counsel and follow legal proceedings in that language — such that they cannot avail themself of their fundamental right (Beaulac, at para. 34). Second, the Crown can show that, even if the appellant had been duly informed of their right and had sufficient proficiency in the language they were unable to choose, they would in any event have chosen to be tried in the language in which their trial was conducted. Lastly, the Crown can show that the appellant had timely knowledge of their fundamental right otherwise than through notice under s. 530(3) Cr. C., such that it can be concluded that the appellant chose English or French in a free and informed manner. In each case, the applicable standard of proof is that of the balance of probabilities (see R. v. O’Brien, 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 34, per Binnie J., dissenting; Esseghaier, at para. 54).

[91] To discharge its burden, the Crown can rely on the evidence already in the record or seek leave to adduce fresh evidence. For example, the Crown might seek leave from a court of appeal to file in evidence transcripts from other criminal cases against an English-speaking accused who was tried in English, where the transcripts indicate that the accused does not have sufficient proficiency in French (see R. v. Deutsch (2005), 204 C.C.C. (3d) 361 (Ont. C.A.), at paras. 45-47).

[92] In this regard, I note that the cardinal principle governing the admissibility of fresh evidence is that of the interests of justice (see s. 683(1) Cr. C.; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 63, quoting Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 28). According to Palmer, the discretion to admit fresh evidence is ordinarily exercised by weighing various factors, namely due diligence, relevance, credibility and the impact on the result (see p. 775; Hay, at para. 63; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 7). In the rare cases where an accused appeals their conviction and raises a breach of s. 530(3) Cr. C. for the first time, when no decision on the accused’s language rights was made at first instance, it stands to reason that it will generally be in the interests of justice to admit any evidence that makes it possible to determine whether the accused’s fundamental right was in fact violated.

[93] If the Crown fails to show that the accused does not have sufficient proficiency in the language they were unable to choose, that the accused would in any event have chosen to be tried in the language in which their trial was conducted or that the accused chose that official language in a free and informed manner, it will be presumed that the breach of s. 530(3) Cr. C. resulted in a violation of the accused’s fundamental right to be tried in the official language of their choice and thus caused the accused prejudice that was too significant for the conviction to be upheld....

....The Court of Appeal therefore erred in law in stating that the onus was on Mr. Tayo Tompouba to establish a violation of his fundamental right to be tried in the official language of his choice at the stage of the curative proviso analysis, rather than on the Crown to prove the contrary.

(2) The Crown Has Failed to Show That Mr. Tayo Tompouba’s Fundamental Right Was in Fact Respected

[110] Since I have concluded that the curative proviso can be applied, what must now be decided is whether the Crown has succeeded in showing that the breach of s. 530(3) Cr. C. nevertheless did not result in the violation of Mr. Tayo Tompouba’s fundamental right to be tried in the official language of his choice.

[111] It is common ground that Mr. Tayo Tompouba’s first language is French and that his linguistic abilities in French are therefore sufficient for him to choose to be tried in that language. To have the curative proviso applied and the appeal dismissed, the Crown accordingly cannot argue that the accused is not proficient in French. Rather, it can try to show either that Mr. Tayo Tompouba would in any event have chosen English as the official language of his trial if he had been duly informed of his right or that he had timely knowledge of his right otherwise than through notice under s. 530(3) Cr. C., such that it can be concluded that he made a free and informed choice to have a trial in English.

[112] However, the evidence is, at best, inconclusive on these questions, which is to say that it does not allow a conclusion to be reached one way or the other on a balance of probabilities. The uncertainty or doubt that remains must be resolved in Mr. Tayo Tompouba’s favour and must weigh against the Crown.

V. Disposition

[129] For all these reasons, the appeal is allowed, the conviction is quashed and it is ordered that a new trial be held in French.

R v Williams, 2024 ONSC 1170

[February 28, 2024] Charter s.8: Abandonment, Charter s.9: Detention and Search for Parole Violation [J.R. Presser J.]

AUTHOR’S NOTE: Determining whether an item is abandoned, particularly when it's discarded or placed away from an accused person, is a pivotal issue in many Section 8 Charter cases involving arrests in public places. Individuals carrying contraband often attempt to dispose of it when confronted with potential arrest. However, in this case, there was a layer of complexity that prevented such a conclusion.

In a bar setting, it's not uncommon for people to leave their bags unattended for periods of time. This behavior differs significantly from someone tossing a bag out of a car window during a police chase. Importantly, individuals do not relinquish their privacy rights concerning the state simply by temporarily leaving their bags at their table in a bar.

In this instance, the police erroneously assumed that a bag was abandoned following a "raid"-like entry into a bar. This conclusion was flawed and did not grant them the authority to search any unattended bags found on the premises.

[1] Ryan Williams appeared before me on a blended Charter voir dire and trial....

[3] The firearms offences relate to a loaded prohibited Glock 19 that was found in a bag on the patio of the Little Hut bar in the Rexdale neighbourhood of Toronto on July 31, 2021.

[4] Mr. Williams was at the Little Hut bar on that night. He had left the bar briefly, and then returned shortly before six police officers arrived looking for a man (unrelated to this case) for whom there was an outstanding warrant and who they believed was at the bar. Three officers were stationed outside the bar in the parking lot. Three officers entered the bar.

[5] Surveillance videos from inside the bar show that Mr. Williams was wearing a black crossbody bag when he re-entered the bar with his friend Damaine Sitladeen, just ahead of the police. Both men walked through the bar toward the exit to the back patio. A short time later, Mr. Williams re-entered the bar from the patio without the black bag.

[6] Police Constable Walker, who was stationed outside the bar, peered through the fence surrounding the back patio. He saw a man exit the bar to the patio, bend over from the waist, and place an item down. PC Walker was suspicious. He thought the man must have been trying to hide something from the police, who would have been entering the bar around the same time. He went to look for the secreted item on the patio. He found a closed black bag between a bench on the patio and the wall. PC Walker immediately opened it and found a gun inside.

[7] All police officers agreed that from the time PC Walker found the gun until they arrested Mr. Williams in relation to it approximately 22 minutes later, no one was free to leave the bar. Most of the bar’s patrons, including Mr. Williams, were not advised that they were investigatively detained until 15 minutes after the gun was found. When police did announce that everyone was detained in relation to a firearm investigation, they did not advise anyone of the right to counsel. Aside from PC Walker holding up the black bag when he re-entered the bar and asking “anyone own this bag?” police officers did not ask any questions about the bag or the firearm at any time.

[8] Between when the gun was found and when all of the patrons were advised that they were detained, Detective Fynes and PC Walker questioned Mr. Williams about the conditions of his parole. PC Walker conducted a pat down search of Mr. Williams to confirm that he was not in possession of weapons contrary to the terms of his parole. Mr. Williams was not advised that he was investigatively detained nor advised that he had a right to counsel.

[9] Det. Saffu and PC Balloutine watched the Little Hut surveillance videos. They determined that Mr. Williams was the person who had left the black bag on the patio. PC Balloutine arrested Mr. Williams for unauthorized possession of a firearm. He did not advise Mr. Williams of his right to counsel until six minutes after his arrest. Mr. Williams said he wanted to speak to his lawyer, and gave the lawyer’s name. He was not afforded the opportunity to speak with his lawyer for a further hour and 11 minutes.

[10] Mr. Williams seeks exclusion of the gun. He argues that:

 his right to be free from unreasonable search and seizure was violated, contrary to s. 8 of the Charter, when PC Walker searched his bag without a warrant and in the absence of any other lawful authority;

 police violated his right not to be arbitrarily detained under s. 9 of the Charter when they investigatively detained him, alongside everyone else in the Little Hut bar as soon as they entered the Little Hut, or no later than when the gun was found;

[12] For the following reasons, I have come to the conclusion that police violated Mr. Williams’s s. 8 rights when they searched his bag without a warrant or any other lawful excuse. I have concluded that although Mr. Williams and all the patrons of the Little Hut were detained from the time the gun was found, this was not an arbitrary detention because there were reasonable grounds to suspect that one of the people in the bar had been in unauthorized possession of the gun. However, this investigative detention did result in a breach of ss. 10(a) and 10(b) because Mr. Williams was not advised of the reasons for his detention or of his right to counsel. I have further concluded that police again violated his ss. 9 and 10(b) rights when they detained him arbitrarily to search him to investigate him in relation to a new matter, namely whether he was complying with the no weapons condition of his parole, without advising him of the right to counsel; and that they violated his s. 8 rights when they searched him as part of the parole investigation. And I have concluded that police again violated Mr. Williams’s s. 10(b) rights when they failed to advise him of the right to counsel for six minutes after his arrest and when they did not facilitate his access to counsel for an hour and 11 minutes after that. I have come to the conclusion that the admission of the evidence would bring the administration of justice into disrepute given the seriousness of the breaches and their impact on Mr. Williams’s Charter-protected interests. Mr. Williams’s Charter applications are granted. The evidence is excluded. In the absence of the gun that is the subject of all four counts in the indictment, the Crown cannot prove its case beyond a reasonable doubt. Mr Williams is acquitted of all counts.

II. THE SECTION 8 APPLICATION

A. Overview of Applicable Legal Principles

[14] Section 8 of the Charter protects against unreasonable search and seizure. In order to establish a violation of their s. 8 rights, a person must first establish that they had a reasonable expectation of privacy in the thing searched or seized: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159; R. v. Edwards, [1996] 1 S.C.R. 128, at para. 30. A person will have a reasonable expectation of privacy in “a biographical core of information,” including information which “tends to reveal the intimate details of the lifestyle and personal choices of the individual”: R. v. Plant, [1993] 3 S.C.R. 281, at p. 293.

[15] Reasonable expectation of privacy is a normative, not a descriptive or empirical standard. The normative inquiry into the reasonableness of privacy expectations is premised on questions framed in broad and neutral terms: R. v. Wong, [1990] 3 S.C.R. 36, at p. 44. This means that the assessment of whether there is a reasonable expectation of privacy is “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18.

[16] Whether a Charter claimant had a reasonable expectation of privacy is to be determined contextually with reference to four factors: (1) the subject matter of the search; (2) the Charter claimant’s interest in the subject matter of the search; (2) the claimant’s subjective expectation of privacy; and (4) whether the subjective expectation is objectively reasonable, having regard to the totality of the circumstances: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32.

[17] A major factor for consideration in determining whether a subjective expectation of privacy is objectively reasonable is whether the item searched or seized was abandoned: Tessling, at para. 32. Abandonment is fatal to a reasonable expectation of privacy: Patrick, at para. 22, citing R. v. Dyment, [1988] 2 S.C.R. 417, at p. 435. As explained in Patrick, at paras. 20 and 25, to determine whether an item has been abandoned, the trier of fact must determine whether the claimant’s subjective privacy interest:

. . . is one that an independent and informed observer, viewing the matter objectively, would consider reasonable in the totality of the circumstances (Edwards, at para. 45, and Tessling, at para. 19) having regard firstly to the need to balance “societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement” (R. v. Plant, [1993] 3 S.C.R. 281, at p. 293); secondly, whether an accused has conducted himself in a manner that is inconsistent with the reasonable continued assertion of a privacy interest and, thirdly, the longterm consequences for the due protection of privacy interests in our society

Abandonment is therefore an issue of fact. The question is whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances. [Emphasis in the original].

[18] Where the claimant has succeeded in establishing that there is a reasonable expectation of privacy, a warrantless search will be prima facie unreasonable. The onus rests on the Crown to establish on a balance of probabilities that a warrantless search was reasonable: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 32.

B. Application to this Case

(2) Analysis

(a) Did Mr. Williams Have a Reasonable Expectation of Privacy in the Bag?

[44] I have come to the conclusion that the defendant’s bag was unattended but not abandoned. In the totality of the circumstances, he had a reasonable expectation of privacy in his bag and its contents.

[47] To determine whether the defendant had a reasonable expectation of privacy in the bag and its contents, I turn to consider the totality of the circumstances, including (1) the subject matter of the search and the defendant’s interest in the subject matter of the search; (2) whether the defendant had a subjective expectation of privacy in the subject matter of the search; and (3) whether a subjective expectation of privacy was objectively reasonable in the totality of the circumstances, including whether the bag had been abandoned.

(i) The subject matter of the search and Mr. Williams’s interest in the subject matter of the search

[49] In this case, the search at issue was of the bag the defendant took into the Little Hut bar. A person’s bag, worn out into public - like briefcases, purses, suitcases, and backpacks - are often “the repository of much that is personal”: A.M., at para. 62. Bags or purses may contain identification, banking and other documents, medication, and all manner of other personal effects. In other words, a sealed and opaque personal bag containing concealed items may “be described as a bag of ‘information’” whose contents may reveal details of the owner’s activities and lifestyle: Patrick, at para. 30.

[50] Considered through the lens of the privacy of the thing searched and the potential impact of the search on the defendant, the subject matter of this search was not only the bag itself, but the information it did, or may have, contained. The defendant had a direct interest not only in the bag, but in the “informational content” of what it concealed: Patrick, at paras. 31 and 53.

(ii) Subjective expectation of privacy

[51] While the defendant did not explicitly testify that he expected the contents of his bag to remain private, subjective expectation of privacy is not a high hurdle. It does not necessarily require the explicit testimony of the Charter claimant. It may be presumed or inferred from the circumstances: Patrick, at para. 37; A.M., at para. 63.

(iii) Was Mr. Williams’s expectation of privacy objectively reasonable?

(iii.1) The place where the search occurred

[55] This was a search of the inside of the defendant’s bag, of its potential informational content. Bags people carry with them in public may contain much information that many of us do not wish to disclose to the public, much less to the police. People have a privacy interest in the contents of their sealed personal bags: Patrick, at para. 32. Framed in “broad and neutral terms” it is objectively reasonable to expect the contents of one’s bag to remain private: R. v. Buhay, 2003 SCC, [2003] 1 S.C.R. 631, at para. 19.

[56] That the bag contained contraband – a firearm – is no bar to a finding that the defendant had a reasonable expectation of privacy in his bag and its contents: “[t]he issue is not whether the appellant had a legitimate privacy interest in the concealment of [contraband], but whether people generally have a privacy interest in the concealed content of an opaque and sealed ‘bag of information.’ I believe that they do”: Patrick, at para. 32; see also A.M. at paras. 69-74. Identifying the compromised privacy interest does not “depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items”: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36.

[60] In addition, people leave bags unattended in bars all the time. As a matter of common sense and experience, people in bars routinely leave their bags or their coats unattended when they go the bathroom, to the bar to get food or a drink, to play pool, or to visit with friends in another part of the bar. They expect their personal possessions to remain private and be waiting for them when they return. As a matter of common sense and experience, people in bars forget their bag outside when they go out to smoke, returning to the bar without it. They do not lose their expectation of privacy in the contents of their bag because they forgot it and left it unattended at a bar. Viewed normatively, the expectation of privacy in the contents of one’s unattended bag in a bar is a reasonable one that society should support. People should be able to leave their bags unattended in bars without losing their expectation that the contents will remain private.

[62] Moreover, the loss of control that necessarily results from leaving a bag unattended in a bar may mean that there is a heightened risk of the bag being stolen by another person. This may result in a reduced expectation of privacy in the bag or its contents vis-à-vis other individuals. But this is not tantamount to a reduction or loss of expectation of privacy vis-à-vis the state: R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 48-49. Viewed normatively, an unattended bag in a bar that is not abandoned should attract a reasonable expectation of privacy vis-à-vis law enforcement. In my view, it does. Police should not be able to search the contents of bags in bars just on the basis that they are unattended.

(iii.2) Whether the subject matter of the search was in public view

[64] In A.M. and Patrick, 1 the Supreme Court assessed the objective reasonableness of an expectation of privacy in information contained in closed and opaque bags. In both cases, the Court concluded that although the bags themselves were in plain view, this by itself did not defeat a reasonable expectation of privacy. This is because the appellant in each case did not assert a privacy interest in the outside of the bag. Rather, the appellants’ concern was with the “concealed contents of the bags, which were clearly not in public view”: Patrick, at para. 53; A.M., at para. 49. So too, in this case, the defendant’s privacy interest was in the concealed contents of his bag. Whether the bag itself was in public view is not of assistance in this case.

[65] In the event, the defendant’s bag was not in public view when it was found and searched by PC Walker. It was wedged between a bench and the wall of the patio. This raises the question of whether the bag was abandoned by the defendant.

(iii.3) Whether the subject matter of the search had been abandoned

[68] In many cases where courts have found that the subject matter of the search was abandoned, the defendant intentionally divested themself of possession and control of the item such that they lost the ability to regulate who had access to it: Patrick, at para. 54; R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 46; R. v. Plummer, 2011 ONCA 350, 279 O.A.C. 359, at para. 42; R. v. Nesbeth, 2008 ONCA 579, 240 O.A.C. 71, at para. 22; R. v. Schirmer, 2020 BCSC 209, at paras. 85-89. Often, the defendant discarded the subject of the search while fleeing from police, or otherwise in an effort to distance themself and avoid being caught with it: Plummer, at para. 42; Nesbeth, at para. 22; Schirmer, at paras. 84-85.

[69] In cases where courts have not found abandonment, the facts supported a conclusion that even though the defendant was not in immediate physical possession of the subject matter of the search, they had not divested themselves of it, they had maintained control of it or its location, could regulate access to it, or concealed it rather than discarding it: Buhay, at para. 21; A.M., at para. 158, per Bastarache J. dissenting but not on this point; R. v. Ansah, 2020 ONCJ 72, at paras. 37-40, 48.

[70] In this case, after careful consideration of all the evidence, I am satisfied that the defendant did not abandon his bag. I find that he did not intend to abandon his proprietary interest in the bag or its contents, and that he had a reasonable continuing privacy interest in them: Patrick, at para. 54. Mr. Williams “has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest” is reasonable in the totality of the circumstances: Patrick, at para. 25. In other words, I am satisfied, on the facts of the case, that Mr. Williams did not intentionally divest himself of possession and control of his bag, discard it or divest himself of it in an effort to avoid being caught with it. I accept that he accidentally forgot his bag on the patio bench, and was not the person PC Walker saw placing an item.

[71] Mr. Williams was on the patio from 8:53:07 pm until he re-entered the bar at 8:53:31 pm without the black bag.

[72] PC Walker was captured on DC Balloutine’s body-worn camera peering through the fence line of the Little Hut at 8:56:35 pm. He estimated that he had observed the man placing an item on the patio approximately 35 to 40 seconds before this.

[73] PC Walker entered the Little Hut at 8:57:06 pm. He said this was approximately one minute after he had seen the man placing an item on the patio.

[74] I conclude that PC Walker made his observation of a man placing an item on the patio between 8:55:55 and 8:56:06 pm. This was approximately two and a half minutes after Mr. Williams re-entered the bar from the patio. As of 8:53:44 pm, Mr. Williams was seated at the bar inside the Little Hut, where, as I will discuss further below, he likely remained until his arrest. When PC Walker observed someone secreting the bag, the defendant had already been seated at the bar for somewhere between two minutes and 11 seconds and two minutes and 22 seconds.

[75] As a result, Mr. Williams could not have been the man PC Walker observed secreting an item on the patio at some point between 8:55:55 and 8:56:06 pm.

[76]....PC Walker was an experienced police officer, who suspected that he had witnessed someone hiding evidence of a crime. He would have known that timing could become an issue. In these circumstances, even if PC Walker had under-estimated how long he spent standing at the fence, it is very unlikely that he underestimated by two full minutes....

[77] I am bolstered in this conclusion by the fact that PC Walker said he only saw the one man on the patio at the time of his observation, and that he would have been able to see others if they had been there. But the video reveals that Mr. Williams was never alone on the patio....

[82] The Crown has argued that Mr. Williams abandoned the bag because he knew it contained a gun – that it was his gun – and he wanted to distance himself from that gun. Mr. Williams testified that he did not have a gun in his bag, and that someone else must have placed the gun in the bag and hidden it between the bench and the wall as observed by PC Walker, after the defendant forgot the bag on the bench. I accept Mr. Williams’s evidence.

[90] In assessing Mr. Williams’s testimony, and his credibility, I am influenced by the video evidence that is confirmatory of some of the details of why he said he was on the patio and why he said he forgot his bag there.

[93] In addition to the video evidence that is confirmatory of elements of the defendant’s story that he forgot his bag on the patio, another factor influences my thinking about his credibility and whether he was telling the truth when he said he did not possess or abandon the gun.

[94] That factor is that Mr. Williams had already left the bar when he saw what he recognized as unmarked police vehicles heading toward the Little Hut. He was at his car with Mr. Sitladeen, about to drive home. If his intention was to hide his bag to distance himself from it and avoid being caught with it by police, it would not have made sense for Mr. Williams to go back into the Little Hut to hide the bag. Instead, Mr. Williams would have driven away from police to his home, or anywhere else other than where he expected the police to attend. Or he would have hidden his bag in the car. If Mr. Williams needed or wanted to escape police, he had already made good that escape. He would not have returned to the bar to hide his bag in order to do so. As a matter of common sense and experience, Mr. Williams would not have put himself directly in harm’s way in order to avoid that harm. I find this factor supports Mr. Williams’s evidence that he did not abandon his bag on the patio, but rather that forgot it there.

[97] Notwithstanding the suspicious absence of personal effects and the paper bills in the bag, I have concluded that Mr. Williams did not abandon his bag. Most important and central to this conclusion is the independent video evidence combined with the evidence of PC Walker that confirms that Mr. Williams could not have been the person PC Walker saw secreting an item on the patio. Weighed against this independent and reliable evidence, the suspicious absence of personal effects is not determinative. The independent and reliable evidence, combined with Mr. Williams’s credible and unshaken testimony, and all the circumstances of the case satisfy me that Mr. Williams was not in possession of the gun and did not abandon his bag.

[98] Overall, I am satisfied that the defendant did not abandon his bag but forgot it. On all the evidence in the case, and in the totality of the circumstances, the defendant had a reasonable expectation of privacy in the bag.

(b) Was the Search Reasonable?

[99] A warrantless search is presumptively unreasonable absent exigent circumstances: Tessling, at para. 33. The onus rests on the Crown to demonstrate on a balance of probabilities that a warrantless search was reasonable: Buhay, at para. 32.

[100] In my view, the presumption that the warrantless search was unreasonable has not been disproven by the Crown in the circumstances of this case. There were no exigent circumstances here. Once PC Walker found the bag, its contents could not pose a risk to the safety of the police, bar patrons or staff, or passersby. There was equally no risk of loss, removal, destruction, or disappearance of any evidence in the bag if the search were delayed long enough for further investigation and/or to obtain a search warrant: R. v. Grant, [1993] 3 S.C.R. 223, at p. 243. There was no statutory or common law authorizing this warrantless search.

(3) Conclusion with Respect to Section 8 Application

[101] The defendant had a reasonable expectation of privacy in the content of his bag. The warrantless search of the bag was unreasonable. The defendant’s right to be free from unreasonable search and seizure was violated.

III. THE SECTION 9 APPLICATION AND RELATED SECTIONS 8, 10(a), and 10(b) APPLICATIONS

A. Overview of Applicable Legal Principles

[102] Police may investigatively detain an individual where, in the totality of the circumstances, there are objectively reasonable grounds to suspect that the person is connected to a particular offence and the detention is necessary: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45. Reasonable grounds to suspect is a lower standard than reasonable grounds to believe. The former standard engages reasonable possibility, where as the latter engages a reasonable probability: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27: R. v. Ramelson, 2022 SCC 4, 420 C.C.C. (3d) 151, at para. 53.

[103] A detention for investigative purposes is subject to scrutiny under s. 9 of the Charter. Section 9 is meant to “protect individual liberty against unjustified state interference. Its protections limit the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25.

[104] An investigative detention arising from an officer’s reasonable grounds to suspect based on the totality of the circumstances that a person was involved in an offence will not be arbitrary within the meaning of s. 9: Mann, at para. 20. The determination of whether an investigative detention is lawful, not arbitrary, will focus on “the nature of the situation, including the seriousness of the offence, the information known to police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope”: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 31.

[105] A person who has been investigatively detained may lawfully be searched incident to investigative detention. However, the power of search incident to investigative detention is more limited than the power to search incident to arrest. It is limited to pat down searches that are necessary to address reasonable safety concerns: Mann, at para. 40; R. v. Griffith, 2022 ONSC 3558, at para. 19.

[106] Upon detention, the right to counsel, and the right to be informed of that right, under s. 10(b) of the Charter, arise immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42. This is because on arrest, detainees are vulnerable to coercion and the exercise of power by the state. The right to counsel exists to “assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: Suberu, at para. 40. The police duty to advise a detainee of the right to retain and instruct counsel, and to facilitate that right upon detention, may be delayed for officer or public safety concerns, or subject to any limitations prescribed by law and justified under s. 1 of the Charter: Suberu, at paras. 42, 45.

[107] Investigative detention also engages the right to be advised promptly of the reasons for the detention under s. 10(a) of the Charter: Mann, at para. 21. The primary purpose of this right is to inform an individual of why they are being detained; a person is not obliged to submit to detention if they do not know the reason for it: R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-887; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 124. A secondary purpose of the s. 10(a) right is to advise a detainee of the extent of their jeopardy so that they can exercise their s. 10(b) right to counsel in a meaningful way: R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at para. 20. There will be no breach of the right to be informed of the reasons for detention if, in the circumstances, the detainee would know why they are being detained: Nguyen, at paras. 12 and 16.

[109] An individual confronted by state authority is detained, as opposed to delayed, when they no longer have the option to choose to walk away: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 25. This arises when a person is physically or psychologically restrained by police, when they submit or acquiesce in their deprivation of liberty under a reasonable apprehension that there is no choice to do otherwise: Grant (2009), at paras. 25, 28. A psychological detention can arise in two ways. The first is where a person is legally required to comply with a direction or demand from the police. The second is where a person is not under a legal obligation to comply with police direction or demand, but a reasonable person in the subject’s position would feel so obligated and conclude that he or she was not free to go: Grant (2009), at paras. 30, 31, cited in Le, at para. 25.

[110] To determine whether, or when, an interaction between police and an individual crosses over from being a delay by police to being a detention, a judge must consider three non-exhaustive factors against the backdrop of all the circumstances: Grant (2009), at paras. 31 and 44:

[111] An alleged violation of the right not to be arbitrarily detained under s. 9 of the Charter proceeds in two stages. In the first stage, the inquiry is into whether the subject was detained. If it is determined that they were detained, the second stage inquiry is whether the detention was arbitrary: Le, at para. 29.

B. Application to this Case

(2) Analysis

(a) When was Mr. Williams Detained?

[137] Considering all the circumstances of the situation and the three non-exhaustive factors from Grant, I have come to the conclusion that the defendant and all of the other patrons in the Little Hut bar were detained from the time the gun was found. The defendant was detained again when he was searched to investigate him in relation to his parole.

(i) Circumstances giving rise to the encounter as they would reasonably be perceived

[138] The circumstances giving rise to the encounter between the officers and the patrons of the Little Hut bar support a finding of detention from the time PC Walker found the gun.

[139] Three police officers entered the bar looking for Mr. Darling, who was a wanted person, and who they had reason to believe was there. They were entitled to do so.

[140] Within a very short time of their entry into the bar, the officers were questioning Mr. Farrah in relation to a different matter. They arrested him for failing to comply with recognizance and handcuffed him in plain sight of the of the other bar patrons. They were entitled to investigate Mr. Farrah for a suspected offence that presented itself to them.

[142] Approximately four minutes after officers first entered the Little Hut, a fourth officer, PC Walker, entered the bar. He walked directly out to the patio and returned in under a minute holding the black bag. He asked if anyone owned the bag, showed its contents to Det. Fynes, and said “nobody leaves.” Approximately 30 seconds later, PC Walker said “someone threw it out there, so hold these guys”; and a further eight seconds later, he said to Det. Saffu, “hold these guys.” The defendant heard PC Walker say this. Det. Saffu detained the three men he was talking to, telling them that they were not free to leave. He performed pat down searches of them in plain view of everyone in the bar. Approximately six seconds after telling Det Saffu to “hold these guys,” PC Walker shouted to the two officers remaining outside to “get in here right now.” DC Balloutine and PC Sharma immediately and quickly entered the Little Hut. There were now six police officers, and approximately eight or nine patrons, in the bar.

[143] From the time the gun was found, according to both Det. Fynes and PC Walker, no one was free to leave. The police didn’t generally announce this until approximately 15 minutes after the gun was found, but they would have prevented anyone who tried to leave from doing so from the time when the gun was found.

[145] However, the officers’ subjective investigative purposes are less relevant to a determination of whether a detention has occurred than they are to whether a detention was arbitrary. This is because “when determining whether a detention has occurred, the circumstances giving rise to the encounter are assessed based on how they would reasonably be perceived. The subjective purposes of the police are less relevant in this analysis because a reasonable person in the shoes of the putative detainee would not have known why these police officers were entering the property”: Le, at para. 37.

[147] On the facts of this case, there was no obvious case for police presence in the Little Hut, and police never expressly communicated to bar patrons why they were there. They did not say that they were there to look for Mr. Darling. The police entry into the Little Hut, and their actions once inside, could reasonably have been perceived to be some kind of raid. Police could reasonably have appeared to be generally looking for evidence of whatever they might find.

[148] That this would have been a reasonable perception of why police were there is supported on the facts. Police entered the bar at a time when nothing in particular of concern appeared to be happening there. There were no bar fights or other obvious problems. Police were not called to the bar to maintain order, provide general assistance or assistance to the bar patrons, respond to unfolding events, or in response to a complaint from a third party: Le, at para. 35. And yet police entered the Little Hut in numbers, quickly, almost immediately began questioning Mr. Farrah, very quickly arrested and handcuffed him, and continued to look around in the bar and interact with patrons.

[149] While the police entry into the Little Hut was without obvious cause and would reasonably have been perceived to be a general raid, in my view, the actual detention of bar patrons did not begin until the gun was found. Until that point, police did not do anything that would have communicated that they were assuming physical or psychological control over the men in the bar (aside, of course, from Mr. Farrah)....

[150] In the period of approximately two minutes between when police first entered the bar and when the surveillance video of the door to the patio cut out, numerous bar patrons exited to the patio and returned from it. They were neither deterred nor prevented from exiting to the patio and returning from it at will...

[151] However, this changed once PC Walker found the gun. He re-entered the bar holding up the black bag. He asked whether anyone owned the bag. He told Det. Fynes what he had found, and she peered into the bag with a flashlight. This was seen, though not heard, by the defendant. PC Walker proceeded to ask patrons of the bar generally about whether anyone owned the bag; and four times to say words that communicated that no one could leave and to direct his fellow officers to hold everyone in the bar. The bar was noisy with loud music playing. Bar patrons, including the defendant, may or may not have heard PC Walker say the words that communicated their detention. But the defendant testified that he did hear PC Walker say “hold these guys” to Det. Saffu....

[153] However, the nature of the police interaction with the defendant changed when PC Walker conducted a pat down search of the defendant. PC Walker’s investigative purpose for doing so was to determine whether the defendant was in possession of weapons contrary to the terms of his parole. The officer had no reason to believe or suspect that the defendant was in possession of weapons. He testified that, in his view, he was entitled to search a person on bail or parole to confirm whether they were in compliance with their conditions. He told the defendant that he was going to search him, and directed him to empty the contents of his pockets onto the bar. The defendant stood, emptied his pockets, and allowed himself to be searched. At that point, the defendant was required to comply. Or, if he was not legally required to comply in the moment, a reasonable person in the defendant’s position would have felt so obligated, and would conclude that they were not free to walk away: Grant, at paras. 30 and 31. The Crown concedes that the defendant was investigatively detained at this point.

(b) Was the Detention Arbitrary?

[181] In my view, the investigative detention after the gun was found was not arbitrary, but the investigative detention as part of the parole investigation was.

[182] At the time the gun was found, there were only eight or nine patrons in the Little Hut bar. Police had objectively reasonable grounds to suspect that one of them must have been connected to the firearm, which was, if not prohibited, unregistered, or loaded (which police could not have known in the moment), at the very least stored dangerously and carelessly. When they detained everyone in the bar, police could not have known which person or people were and weren’t involved in the firearms offence. But they knew it was at least possible, if not probable, that at least one of the people in the bar had committed a firearms offence. This was a constellation of objectively discernible facts which gave the police reasonable grounds to suspect everyone in the bar at the time: Simpson, at para. 61, This was a serious offence, with potentially serious public safety consequences. If police had not investigatively detained all eight or nine people in the bar, the perpetrator could have left the bar and eluded police.

[183] It is no small matter to deprive eight or nine people of liberty, and no small matter to detain everyone in an entire bar. Particularly when some number of them may have had no involvement in the firearms offence. However, the investigative detention was not expected to be of long duration....

[184] In the totality of the circumstances, the investigative detention of the patrons of the Little Hut bar from the time the gun was found was not arbitrary.

[185] The same cannot be said of the detention of the defendant when he was searched by PC Walker to investigate his compliance with parole. PC Walker readily acknowledged he did not have any suspicion that the defendant was in possession of a weapon at the time of the search. He said he did not have any reason to believe or suspect that the defendant was breaching any condition of parole. He simply believed that he was entitled to conduct a pat down search of anyone he encountered who was on bail or parole, even where there was no basis for a reasonable suspicion that they were in breach.

[186] This investigative detention was not reasonably necessarily or authorized by law. It was an arbitrary detention, in violation of s. 9 of the Charter.

(c) Sections 8, 10(a) and 10(b) Applications Arising from the Section 9 Applications

[188] I find that Mr. Williams’s right to be advised of the reason for his detention under s. 10(a) and his right to be advised of the right to counsel under s. 10(b) were breached when he was detained after the gun was found. I further find that his rights to be free from unreasonable search and seizure under s. 8 and to counsel under s. 10(b) were violated when he was detained to be searched as part of the parole investigation.

[189] Upon being investigatively detained for the gun investigation, the defendant had a right to be promptly informed of the detention and the reasons for it under s. 10(a) of the Charter: Mann, at para. 21. He also had a s. 10(b) right to counsel, and a right to be advised of that right, that arose immediately on detention: Suberu, at paras. 2, 37-42. Police did not tell him, or anyone in the bar, that they were detained – nor why – when the gun was found, and the investigative detention began. It was only approximately 15 minutes later that Det. Fynes announced to everyone in the bar that they were detained for a firearms investigation. Police did not tell Mr. Williams, or anyone in the bar, that they had a right to counsel when they were detained in respect of the firearms investigation. Mr. Williams’s s. 10(a) and (b) rights were violated when he was detained for the firearms investigation.

[191] Turning to the pat down search conducted by PC Walker, I note that the police power to search incident to investigative detention must be authorized by law, and must be exercised in a reasonable manner: Mann, at para. 45. To be authorized by law, a pat down search incident to investigative detention must be pursuant to a lawful investigative detention and may only be conducted where the officer has reasonable grounds to believe there are public safety reasons to search: Mann, at paras. 40 and 45.

[192] I have already found that Mr. Williams’sinvestigative detention for the parole investigation was arbitrary and violated s. 9 of the Charter. As a result, the requirement that a search incident to lawful investigative detention is not met. The search incident to the arbitrary investigative detention was not reasonable or authorized by law. In addition, PC Walker acknowledged that he did not have reasonable grounds to suspect that the defendant was in possession of a weapon or was otherwise in breach of his parole conditions. I conclude that there were no officer or public safety concerns that warranted a pat down search incident to investigative detention. The search breached s. 8 of the Charter.

IV. THE SECTION 10(b) APPLICATION

[220] The Crown has not satisfied its burden of establishing that the delay in facilitating access to counsel was reasonable. The one hour and 17 minute delay violated s. 10(b) of the Charter.

VI. DISPOSITION

[275] Mr. Williams’s right to be free from unreasonable search and seizure under s. 8 of the Charter arising from the search of his bag was violated. His right to be advised of the reason for his detention and his right to counsel under ss. 10(a) and (b) of the Charter arising from his investigative detention in relation to the firearm investigation were violated. His right to be free from arbitrary detention under s. 8; his right to be free from unreasonable search and seizure under s.9; and his right to counsel under s. 10(b) were violated in relation to his investigative detention as part of the parole investigation. His right to counsel under s. 10(b) of the Charter arising from his arrest was violated. The evidence of the firearm will be excluded under s. 24(2) of the Charter. The Charter application is allowed.

[276] In the absence of evidence of the firearm, the Crown has not proven the offences charged beyond a reasonable doubt.

[277] Mr. Williams is found not guilty of all counts in the indictment.

R v DD, 2024 ABCJ 99

[April 30, 2024] SOIRA Exemptions, Discharges and SOIRA [A.A. Fradsham J.]

AUTHOR’S NOTE: Once an offender's physical frailty makes compliance with the Sex Offender Information Registration Act (SOIRA) challenging, exemptions from compliance become more feasible. Requiring someone who struggles with mobility to forcibly attend a police station for reporting serves little purpose, especially for individuals deemed to pose minimal danger. This decision offers a comprehensive overview of case law in this domain.

Furthermore, the discussion in this decision regarding the potential lack of authority to impose SOIRA conditions on individuals receiving a conditional discharge is noteworthy. Justice Fradsham's analysis initiates a conversation in this province, and it's advisable for defence counsel to be familiar with it when applying for a conditional discharge on a Section 271 offence.

Introduction

[1] The offender (DD) pleaded guilty to a charge of sexual assault contrary to section 271 of the Criminal Code (the Crown had proceeded by summary conviction procedure). The Crown and Defence made a joint submission, which was accepted, that the appropriate sentence was the granting of a discharge conditional upon conditions set out in a probation order of three years [section 730(1)]. Part of the joint submission was that the Court would make orders requiring the offender to provide a sample of his DNA and requiring him to comply for 10 years with the Sex Offender Information Registration Act (Canada) (hereinafter sometimes referred to as “the SOIRA order”). Those orders were made. At the time of the sentencing, defence counsel gave notice that there would be a subsequent application reduce the length of the SOIRA order.

[2] The application for an exemption is now before me.

[3] Unless otherwise stated, a reference to a section number is a reference to that section in the Criminal Code.

Issues

[4] The overarching issue is whether an exemption should be granted to D.D.

[5] The subsidiary issue involves a determination of what factors are to be considered in determining whether or not an exemption should be granted.

[6] Finally, though not raised by counsel, there is an issue as to whether there was authority to issue the SOIRA order, and how that issue impacts the current application.

Facts

[7] On June 21, 2023, DD pleaded guilty to a charge under section 271. The facts admitted by DD were as follows:

[8] On August 18, 2021, DD, who was then 10 days shy of his 75th birthday, invited his adult granddaughter (the complainant) to come to his residence. At approximately 3 p.m., while she was there, DD kissed the complainant on her lips and forcefully held her hand. She told him to stop, but he persisted holding her head in his two hands. She hid in another room and called for help from the family.

[9] DD had no criminal record. He has significant health issues (COPD; asthma; non-small cell carcinoma of lung), and sometimes has to be hospitalized.

[10] A joint submission was made by the Crown and the Defence that, pursuant to section 730(1), DD be discharged on the conditions prescribed in a probation order of three years duration and made under section 731(2). It was also jointly submitted that orders should be made requiring DD to provide a DNA sample and requiring DD to comply with the Sex Offender Information Registration Act (Canada) (I will sometimes refer to that legislation as SOIRA).

[11] I granted the conditional discharge and made both the DNA and SOIRA orders.

[14] There are additional facts which are relevant to this application.

[15] DD lives with family members because he requires care (assistance with washroom and food preparation). He is essentially confined to his residence. He needs a walker; uses an oxygen tank; he cannot leave the residence without assistance. He certainly cannot operate a motor vehicle.

Law and Analysis

[16] Though sometimes during the course of submissions, reference was made to an order “terminating” the SOIRA order, under the current Criminal Code provisions, the application before me is really an application under section 490.04 for an order exempting DD from the SOIRA order.

A brief history of the SOIRA regime

[18] When SOIRA was first passed in 2004, registration of offender required a Crown application, and the court had discretion to exclude offenders from the registry. The regime was amended in 2011. Prosecutorial and judicial discretion under section 490.012 was removed. Registration was made mandatory for multiple sexual offences. In addition, mandatory lifetime registration was required for offenders who committed more than one sexual offence.

[19] In R v Ndhlovu, 2022 SCC 38, at paragraphs 6-7, the Supreme Court examined the SOIRA regime and while lauding Parliament’s goal of attempting to capture information about offenders that may assist the police in preventing and investigating sexual offences, the court concluded that it had failed to do so when it enacted sections 490.012 and 490.013(2.1) of the Criminal Code. The majority found that because the “mandatory registration of those offenders who are not at an increased risk of reoffending does not assist police, it is inconsistent with the principle of fundamental justice against overbreadth” (ibid at paragraph 8).

[20] The majority held that sections 490.012 and 490.013(2.1) of the Criminal Code infringed section 7 of the Charter and could not be saved by section 1. The provisions were declared of no force or effect under section 52(1) of the Constitution Act, 1982; however, the declaration in respect of mandatory reporting under section 490.012 was suspended for one year. An immediate declaration of invalidity for lifetime registration (490.013(2.2)) was granted.

[21] However, the Supreme Court did indicate that offenders who had been registered since 2011 and whose rights under section 7 were violated, could still seek a “personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012.” (ibid at paragraph 140).

[23] As a response to Ndhlovu, Parliament introduced Bill S-12: An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, SC 2023, c 28. The Bill received Royal assent on October 26, 2023. It amended portions of both the Criminal Code and to SOIRA.

[24] Under the new regime, SOIRA orders are only mandatory if certain pre-conditions are met - the offence was prosecuted by indictment, the term of imprisonment was two years or more, and the victim was under the age of 18 – none of which are applicable to the case at bar.

[25] For cases where the above conditions do not exist, sentencing courts have regained discretion in making a SOIRA order. An order must be made unless the court is satisfied of certain criteria, with consideration of factors, laid out in sections 490.012(3) and (4) of the Criminal Code.

“Termination” and “exemption”

[26] Under the previous SOIRA regime, registration was mandatory. An application for a termination order could only be made under section 490.015 of the Criminal Code if the requisite time period had elapsed (5, 10 or 20 years depending on which order was made), and if the court was satisfied that impact on the person of “[…] continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration […]”: section 490.016(1).

[27] Under the current regime, a court shall make a termination order if, after the requisite time period has passed (5, 10 or 20 years), the court is satisfied of the existence of one of the requirements laid out in section 490.016(1) (a) or (b) with consideration of the factors set out in subsection (1.1).

[28] Consequently, a termination order is not applicable in the case at bar given that a period of five years has not elapsed since the order was made as is required in section 490.015(1).

[29] While the court has no statutory authority to terminate the SOIRA order made in respect of D D, it does have the ability (if the perquisites are met) to issue an order exempting him from the SOIRA order pursuant to section 490.04(1) of the Criminal Code. Exemption applications apply only to individuals who were ordered to comply with SOIRA on or after April 15, 2011, and before October 26, 2023. Section 490.04(1) states:

490.04 (1) A person may apply to a court for an order exempting them from

(a) an order made under section 490.012 on or after April 15, 2011 but before the day on which this paragraph comes into force;

[30] That section came into force on October 26, 2023; DD’s SOIRA order was made on June 21, 2023.

[31] What are the factors to consider when terminating an order (i.e.when considering an exemption application)?

[32] The test for an exemption order and the factors to be considered are laid out in sections 490.04(5) and (6):

(5) Subject to subsection (4), the court shall make an exemption order if it is satisfied that the person has established that, at the time the order was made or the obligation began,

(a) there was no connection between the order or obligation and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or

(b) the impact of the order or the obligation on the person, including on their privacy or liberty, was grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.

[34] In order to determine, as required by section 490.04(5)(a), whether there was “no connection” between the SOIRA order made and the purpose of assisting police services as set out in the Sex Offender Information Registration Act, it is necessary to know the purpose of SOIRA.\

Section 2 of the Sex Offender Information Registration Act, S.C. 2004, c. 10, states:

Purpose

2 (1) The purpose of this Act is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders. Principles

(2) This Act shall be carried out in recognition of, and in accordance with, the following principles:

(a) in the interest of protecting society through the effective prevention and investigation of crimes of a sexual nature, police services must have rapid access to certain information relating to sex offenders;

(b) the collection and registration of accurate information on an ongoing basis is the most effective way of ensuring that such information is current and reliable; and

(c) the privacy interests of sex offenders and the public interest in their rehabilitation and reintegration into the community as lawabiding citizens require that

(i) the information be collected only to enable police services to prevent or investigate crimes of a sexual nature, and

(ii) access to the information, and use and disclosure of it, be restricted

[36] The test for an exemption and the factors to be considered under sections 490.04(5) and (6) are virtually identical to the test and factors under sections 490.012(3) and (4), for what the court must consider when exercising its discretion to not impose a SOIRA order at the time of sentencing.

[37]....I am of the view there is no real difference between what the court is to consider when deciding whether to grant an exemption to SOIRA at the time of sentencing versus what the court is to consider when granting an exemption after a SOIRA order has already been imposed.

Connection between SOIRA’s obligations and its purpose

[43] As stated in R v CK, 2024 ABKB 62 at paragraph 11, in considering the “no connection” test, courts have focused primary on whether the offender has demonstrated that there is no enhanced risk of reoffending and his or her current and prospective circumstances. As explained by the Supreme Court in Ndhlovu, supra at paragraph 8, the mandatory registration of offenders who are not at an increased risk of reoffending does not assist the police. The court further suggested the need to examine the individual characteristics of an offender since there are those offenders who, because of their individual characteristics, are at a negligible risk of reoffending (ibid at paragraph 9).

The factors to be considered

[44] The following are the factors which the court must consider under section 490.04(6) in determining whether to make the exemption order:

the nature and seriousness of the offence that is the basis of the order or obligation.

[45]....An offence of extreme depravity will have a greater connection to the purpose of aiding investigations of sexual offences through requiring an accused to comply with SOIRA’s reporting requirements (see for example: R v Tarleton, 2023 ABCJ 274 at paragraph 31).

[46]....Offenders who have committed offences that involved oral, vaginal, and anal penetration have still been exempted from SOIRA compliance (see for example: R v CRN, 2024 ABKB 15; R v Harding, 2024 ABKB 144).

b) the victim’s age and other personal characteristics

[47] SOIRA will be mandatory in almost all cases where the victim is under 18 years old....

....I have found no case law that would support an exemption or termination of a SOIRA order when the victim was under the age of 18....

[48] Another consideration may be a victim who is particularly vulnerable (see for example: R v Sulub, 2023 ABKB 431 at paragraphs 63-75, where the 18 year-old victim had autism and functioned at the level of a 6 to 8 year old. The court declined to grant a constitutional exemption to the mandatory SOIRA order).

(c) the nature and circumstances of the relationship between the person and the victim

[49]...., a situation in which the offender and victim were strangers may actually justify to a greater degree the offender’s registration in SOIRA....

(d) the personal characteristics and circumstances of the person

[50]...The Supreme Court of Canada said in Ndhlovu, supra, at paragraphs 88-89, discussing the case of R v TLB, 2006 ABQB 533:

[88] Consider, for instance, the offender in R v TLB, 2006 ABQB 533, 403 A.R. 293, aff’d 2007 ABCA 135, 404 A.R. 283. The offender was wheelchair-bound due to cerebral palsy, unable to work, and required daily assistance from a caregiver to assist with her personal needs (paras. 8-9)....

....She was pressured to make images of her child and to commit a sexual act with her son after entering into an online relationship with a man who was a pedophile (paras. 2-7). After the incident was disclosed, her son was apprehended from her care (para. 6)....

[89] TLB’s personal circumstances make it highly improbable that she would reoffend. There is no increased risk that an offender like TLB would ever commit another sex offence....

[51] A similar example can be found in R v Maslehati, 2024 BCSC 121 where an exemption was granted, in part because of the very low risk presented by the offender who was 60 years old with serious health issues.

(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence

[53] The jurisprudence seems nearly universal that when an exemption was granted (in whatever manner) to mandatory registration, the designated offence was the offender’s first sexual conviction. Most offenders had no criminal record, and the ones who did, had unrelated (usually property or impaired driving) records.

(f) the opinions of experts who have examined the person

[54] While courts have generally agreed there is no explicit requirement for expert evidence when considering a possible exemption from SOIRA, it would seem, as Justice Henderson indicated in R v Harding, 2024 ABKB 144 at paragraph 79, that the circumstances themselves must dictate whether a sentencing judge requires an expert assessment. In Harding and R v CRN, 2024 ABKB 15, no expert evidence was proffered, but the courts nevertheless declined to grant SOIRA orders, as there was sufficient information available on the record to provide a reasonable assessment of the risk of reoffending (Harding at paragraph 80).

Application of section 490.04 in the jurisprudence

[57] Insofar as the jurisprudence is concerned, on these specific exemption orders, I have found no cases from Alberta which have specifically applied section 490.04 of the Criminal Code. This is not surprising given how new the section is and the fact it does not apply to current cases before the court, only applications for exemptions of prior orders.

Decisions where a SOIRA order was or was not granted under section 490.012

[65] As previous stated, given that the test for exempting offenders from having to comply with SOIRA at the time of sentencing is virtually identical to the test for exempting offenders from SOIRA orders that were issued prior to October 26, 2023, it is worth examining the decisions that have been made under 490.012(3):

Ruling on the application at bar

[70] After examining the case law and the factors to be considered, I am of the opinion that an exemption is justifiable in DD’s case under both section 490.04(5)(a) and (b). Given his personal circumstances, at the time the SOIRA was made, there was no risk of him committing another sexual offence, and therefore there was no connection between his registration under SOIRA and the police being able to prevent and investigate crimes of a sexual nature.

[71] Though he need not do so [because of my finding in respect of section 490.04(5)(a)], DD has also satisfied me that at the time the SOIRA order was made, the impact of the order was grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Act.

Can an accused by made to comply with SOIRA if the accused is ordered to be discharged pursuant to section 730(1)?

[72] The joint submission which I accepted included a provision that the offender be made subject to a SOIRA order. That order was never set aside, and I have no authority to do so. Consequently, since the order is still in force, I have the jurisdiction to hear the application for an exemption from that order.

[73] However, I must note that, upon reflection, I am of the view that there is a strong argument to be made in support of the proposition that there is no jurisdiction to make a SOIRA order if an offender is granted a discharge.

[74] This issue was not argued before me, so I make no ruling in respect of it. However, I will set out the reasons why I think the matter remains an open question which will have to be addressed at some point.

[83] The French version of section 490.012(3) (“during sentencing” or at the “pronouncement of sentence)” may be interpreted as meaning that SOIRA is be ordered at the time of sentencing, rather than in relation to the person who is “sentenced”. That would make the use of the word “sentence” in section 490.012 (and therefore who is subject to an order) a matter of timing (i.e., when an order may be made), rather than a function of what specifically occurred to the person (conviction or discharge).

[84] The wording in section 4(1) of SOIRA appears (despite there potentially being another interpretation in the French version), to apply to those who were convicted of an offence. This interpretation is made more clear by the rest of the subsections in 4(1) of SOIRA which delineate between situations when an offender was convicted [section 4(1)(a)], versus when an offender received an absolute or conditional discharge under Part XX.1 of the Criminal Code [section 4(1)(b)], or under Division 7 of Part III of the National Defence Act) [ section 4(1)(b.1)]. Being “convicted of the offence in which the order is made” does not include being discharged, or else there would be no need for subsections (b) and (b.1).

[85] While much of the statutory language certainly suggests that an offender must be convicted (or found not criminally responsible) in order to be subject to SOIRA, whether SOIRA applies to offenders who are discharged under section 730(1) cannot be resolved by examining the statutory scheme alone. There is too much ambiguity in the language of the Criminal Code, and how a discharge is treated seems to depend on the context of the particular provisions.

Jurisprudence

[88]....R v Jayswal, 2011 ONCJ 33....

....R v Bansil, 2020 BCPC 34 at paragraphs 14-15....

[89] In choosing not to follow DK, the Ontario Court of Justice made the following comments in Jayswal, supra at paras 16-17:

With the greatest of respect to the Quebec Court of Appeal, in my view the plain reading of the section in the context of the entire legislation (the Criminal Code as well as the Sex Offender Information Registration Act) makes it clear that those who receive a discharge are not subject to the provisions of the SOIRA, unless they were found not criminally responsible on account of a mental disorder.

The Quebec Court of Appeal refers to the definition of sentence for the purposes of appeals under s. 673. There, sentence includes orders under s. 730, and dispositions for suspended sentences and intermittent sentences under s. 731 and 732. In my view if Parliament had intended “sentence” to have the meaning the Quebec Court of Appeal concluded throughout the Criminal Code, it would have said so. Other parts of the Criminal Code suggest exactly the opposite of what the court decided. One can find an example in s. 722

[90] Similarly in Bansil, supra at paras 7-10, the court explained its view of “imposes a sentence” in the wording of section 490.012:

[7] Form 52 that is included in the Criminal Code and the language of the SOIRA clearly contemplate that a conviction is required in order for registration to be mandatory. This supports the position of the defence that an offender who is found guilty but not convicted is not caught by the requirement of section 490.012.

[91] In Alberta, there does not appear to be any binding authority on the issue and when courts have touched on the question of imposing SOIRA in the case of a discharge, it has generally been left unresolved.

[95] It is arguable that the issue was put to rest by the Supreme Court in Ontario (Attorney General) v G, 2020 SCC 38, [2020] 3 S.C.R. 629, although the issue was not directly before the court, and the court was dealing with a different piece of legislation.

[96] In Ontario v G, supra, the issue was whether Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, violated the equality rights protected by section 15 of the Charter for persons found not criminally responsible on account of mental disorder [“NCRMD”]. Christopher’s Law is a piece of Ontario legislation that establishes a sexual offence registry with similar reporting and registration requirements as SOIRA. It was enacted in 2001 and was the first registry in Canada. SOIRA was modelled on Ontario’s registry.

[98] The court in Ontario v G, supra, at paragraph 27, made the following statement that arguably settles the issue concerning whether sex offender registration is required for those discharged after a finding of guilt:

[99] There is no reporting obligation for those who receive conditional or absolute discharges under s. 730 of the Criminal Code, because s. 730(3) deems those individuals not to have been convicted of the offence, and s. 3 of Christopher’s Law only captures persons who have been convicted or found NCRMD of an offence.

[101] Therefore, Ontario v G, supra, still leaves open the possibility of arguing that reporting obligations in SOIRA differ from those under Christopher’s Law, and still apply to those discharged after a finding of guilt. I do note that some case law since Ontario v G, supra, has taken the next step, and held that the SOIRA reporting obligations also do not apply to offenders who receive a discharge (for example, see: R v Parker, 2023 NSPC 38 at paragraph 5).

The modern approach to statutory interpretation

[102] As the Supreme Court of Canada explained in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27, 1998 CanLII 837 at paragraph 21, the meaning of statutory provisions cannot be determined from the simple wording of the legislation alone. Rather, the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[103] SOIRA, and section 490.012 of the Criminal Code, form an integrated legislative scheme. The Supreme Court in Ndhlovu, supra, at paragraph 67, described it as such:

The provisions [of the Criminal Code] subject offenders to the reporting requirements listed in SOIRA. When Parliament enacts related legislation dealing with the same subject, the legislation is presumed to offer a coherent and consistent treatment of the subject (R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 13.04). As a result, the provisions must be interpreted in conjunction with the scheme established under the Act. SOIRA’s overall purpose informs the interpretation of the challenged provisions’ purpose.

[104] Section 2(c) of SOIRA stipulates that one of the principles of the Act, is “the privacy interests of sex offenders and the public interest in their rehabilitation and reintegration into the community as law-abiding citizens”, which requires that the information be collected only to prevent and investigate crimes and that access to the information should be restricted.

[105] This principle is in line with the finding that an offence does not need to be part of the public record when deciding to grant a discharge.

[106] Considering the amendments to the Criminal Code as they relate to exemptions to SOIRA registration, it would seem consistent with the object of the statutory scheme that those who are discharged, whether conditionally or absolutely, would not be subject to registration.

[107] However, as previously noted, this issue was not before me. I have gone into such detail simply to make it clear that the question of whether or not a person discharged under section 730(1) can be ordered to comply with SOIRA is still unresolved in this jurisdiction, and that my previous order and this ruling in the case at bar should not be treated as my opinion on the issue.

Order

[108] Pursuant to section 490.04, I make an order exempting the offender (DD) from the SOIRA order previously made in respect of him under section 490.012.