This week’s top three summaries: Fleming v Ontario, 2019 SCC 45, R v Lemioer, 2019 SKCA 95, and R v Alston, 2019 ONSC 5491.

Fleming v Ontario (SCC)

[October 4/19] Ancillary Powers Doctrine - Arrest to Prevent a Breach of the Peace - 2019 SCC 45 [Reasons for Judgement by Côté J. (Wagner C.J. and Abella, Moldaver, Brown, Rowe and Martin JJ. concurring)]

AUTHOR’S NOTE: At first blush, this decision represents a powerful statement by the Supreme Court in favour of individual liberties and the ability to protest. The rejection of a police power to arrest someone who they do not suspect will breach the peace themselves and the restrictive way that a breach of the peace is defined by the Court are a welcome protection of citizens from the use of police force.  This broad statement will be helpful to all defence lawyers dealing with arbitrary detentions in the courts. 

However, another undercurrent in the decision is troubling.  Justice Côté and the concurring panel appear to be inviting police to arrest people on the basis of statutory authority in s.129 of the Code for failing to assist them to prevent a breach of the peace.  In essence, the only thing they are saying the police should have done differently in this case is notify Mr. Flemming they need his assistance to prevent a breach of the peace and then, if he refused (ie. insisted on his ability to peacefully protest where he liked) they could arrest him. While these comments are admittedly in obiter, they are an unanimous obiter of the Supreme Court of Canada - something not to be ignored lightly. Overall, this Author fears that police forces across the country will be emboldened by these comments to give a warning and arrest anyone who fails to heed their warning. Litigation surrounding the "reasonableness" of their beliefs regarding the apprehended breach of the peace (when they give "notice") will be as difficult as the litigation that brought Mr. Flemming to the SCC. Perhaps this was a case where the Court should have dealt with a broader spectrum of issues than the narrow basis for their decision required.  Time will tell. 


[1] On May 24, 2009, officers of the Ontario Provincial Police (“O.P.P.”) arrested the appellant, Randolph (Randy) Fleming, in Caledonia, Ontario. He had committed no crime. He had broken no law. He was not about to commit any offence, harm anyone, or breach the peace. In essence, the O.P.P. officers claimed to have arrested Mr. Fleming for his own protection. The question before this Court is whether Mr. Fleming’s arrest was lawful.

[2] ... However, a free and democratic society cannot tolerate interference with the rights of law-abiding people as a measure of first resort. There is a line that cannot be crossed. The rule of law draws that line. It demands that, when intruding on an individual’s freedom, the police can only act in accordance with the law.

[4] When our courts are asked to recognize new common law police powers, it is important to keep in mind the words of La Forest J. in R. v. Wong, [1990] 3 S.C.R. 36, that “it does not sit well for the courts, as the protectors of our fundamental rights, to widen the possibility of encroachments on these personal liberties” (p. 57).

[5]...This is never truer than in cases like the one at bar, in which the exercise of the police power in question would restrict lawful activities of individuals. In such circumstances, the courts must apply the test for common law police powers with particular stringency so as to ensure that any powers that might result in intrusions on liberty are in fact necessary.

[6]... In essence, the respondents propose a common law power to arrest individuals who have not committed any offence, who are not about to commit any offence, who have not already breached the peace and who are not about to breach the peace themselves. For the purposes of these reasons and for the sake of simplicity, I will refer to this power as the power to “arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace”.

[7] As I will explain, no such power exists at common law. The ancillary powers doctrine does not give the police a power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace. A drastic power such as this that involves substantial interference with the liberty of law-abiding individuals would not be reasonably necessary for the fulfillment of the police duties of preserving the peace, preventing crime, and protecting life and property. This is particularly so given that less intrusive powers are already available to the police to prevent breaches of the peace from occurring.

Pertinent Facts

[10] The occupation [by Six Nations protestors of a piece of land in Caledonia known as Douglas Creek Estates (“D.C.E.”)] sparked other groups in the community to organize counter-protests against the occupation and against the response of the Ontario government and the O.P.P. The contentious atmosphere in the community culminated in violent clashes between the two sides. On numerous occasions, the O.P.P., including many of the respondent officers, were called in to deal with the violence.

[11] One counter-protest group decided to hold a “flag rally” on May 24, 2009 to protest the occupation of D.C.E., the flying of Indigenous flags along Argyle Street and the O.P.P.’s actions. The plan for the rally was that participants would march south on Argyle Street and raise a Canadian flag across the street from D.C.E.’s front entrance.

[14] Mr. Fleming was a resident of Caledonia who intended to participate in the flag rally in order to express his views about the contentious issues surrounding the D.C.E. occupation. On the day of the rally, Mr. Fleming began walking north along Argyle Street towards the place where it was to be held, where he planned to meet up with the rest of the participants, who were marching from the opposite direction. He was carrying a Canadian flag on a 40- to 42-inch wooden pole.

[15] As Mr. Fleming walked on the shoulder of Argyle Street, one of the O.P.P. squads — including the respondent officers — was driving north on the street in three vehicles: two minivans, one marked and one unmarked, and an offender transport unit van. The officers spotted Mr. Fleming as they drove past him, turned around and headed towards his location with the intention of placing themselves between him and the entrance to D.C.E.

[16] Mr. Fleming saw the vans as they moved to the shoulder of the road and continued to drive fast towards him. To avoid the approaching vehicles, he moved off the shoulder, walking down into a grassy ditch, up the opposite side and over a low fence onto D.C.E. property....

[17] Mr. Fleming stepping onto D.C.E. property appeared to cause a reaction in a group of D.C.E. Protesters who were at the entrance of the property, approximately 100 metres away. Eight to ten of them began moving towards his location, some walking and some jogging. None of the protesters were carrying weapons and none uttered any threats. Mr. Fleming did not say anything to them. With the protesters still ten to twenty feet away, Officer Miller approached Mr. Fleming and told him that he was under arrest.

[18] Officer Miller took Mr. Fleming by the arm and led him back across the fence, off of D.C.E. property. The officers then ordered Mr. Fleming to drop his flag. He refused. The officers then forced him to the ground, took his flag and handcuffed him. Mr. Fleming says that as he was being handcuffed, his left arm was yanked behind his back, causing him severe pain and a lasting injury.

[20] After being arrested, Mr. Fleming was placed in an offender transport unit van and moved to a jail cell at the local O.P.P. detachment. He was eventually released approximately two and a half hours after his arrest.

[21] In relation to these events, Mr. Fleming was charged with obstructing a peace officer for resisting his arrest by Officer Miller. He appeared in court on 12 separate occasions to defend himself on this charge before it was eventually withdrawn by the Crown almost 19 months after having been laid.

[22] In March 2011, Mr. Fleming filed a statement of claim against the Province of Ontario and the seven O.P.P. officers who had been involved in his arrest. He claimed general damages for assault and battery, wrongful arrest, and false imprisonment, as well as aggravated or punitive damages and damages for violations of his rights under ss. 2(b), 7, 9 and 15 of the Canadian Charter of Rights and Freedoms.

The Ancillary Powers Doctrine

[38] The police, in fulfilling the important duties they are tasked with in a free and democratic society, are sometimes required to interfere with the liberty of individuals. This is a fact that legislatures and courts in common law jurisdictions have long recognized. However, the rule of law requires that strict limits be placed on police powers in this regard in order to safeguard individual liberties. In Dedman v. The Queen, [1985] 2 S.C.R. 2, Dickson C.J., dissenting but not on this point, set out the foundation for the analysis on this subject:

It has always been a fundamental tenet of the rule of law in this country that the police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. Laskin C.J. dissenting, in R. v. Biron, [1976] 2 S.C.R. 56, made the point at pp. 64-65:

Far more important, however, is the social and legal, and indeed, political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise. Only to the extent to which it so provides can a person be detained or his freedom of movement arrested.

Absent explicit or implied statutory authority, the police must be able to find authority for their actions at common law. Otherwise they act unlawfully. [pp. 10-11]

[40] In this Court, the respondents do not cite or seek to rely on any statute to authorize their arrest of Mr. Fleming while he was standing on D.C.E. Rather, they rely entirely on a common law power of arrest the exercise of which, they submit, was justified in the circumstances of this case. This appeal therefore requires the Court to determine whether the common law power in question exists.

[45] The basis of the doctrine is that police actions that interfere with individual liberty are permitted at common law if they are ancillary to the fulfillment of recognized police duties. Intrusions on liberty are accepted if they are reasonably necessary — in accordance with the test set out below — in order for the police to fulfill their duties.

[46] At the preliminary step of the analysis, the court must clearly define the police power that is being asserted and the liberty interests that are at stake (Figueiras v. Toronto Police Services Board, 2015 ONCA 208, 124 O.R. (3d) 641, at paras. 55-66). The ancillary powers doctrine comes into play where the power in issue involves prima facie interference with liberty. The term “liberty” here encompasses both constitutional rights and freedoms and traditional common law civil liberties (see Clayton, at para. 59; Figueiras, at para. 49). Once the police power and the liberty interests have been defined, the analysis proceeds in two stages:

(1) Does the police action at issue fall within the general scope of a statutory or common law police duty?

(2) Does the action involve a justifiable exercise of police powers associated with that duty?

(R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 35-36; Reeves, at para. 78)

[47] At the second stage of the analysis, the court must ask whether the police action is reasonably necessary for the fulfillment of the duty (MacDonald, at para. 36). As this Court stated in Dedman:

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35]

In MacDonald, the majority of the Court set out three factors to be weighed in answering this question:

1. the importance of the performance of the duty to the public good;

2. the necessity of the interference with individual liberty for the performance of the duty; and

3. the extent of the interference with individual liberty. [para. 37; citations omitted.]

[48] Throughout the analysis, the onus is always on the state to justify the existence of common law police powers that involve interference with liberty.

[54]...If the police can fulfill their duty by an action that interferes less with liberty, the purported power is clearly not reasonably necessary (see Clayton, at para. 21).

[55] Ultimately, the ancillary powers doctrine is designed to balance intrusions on an individual’s liberty with the ability of the police to do what is reasonably necessary in order to perform their duties (see Clayton, at para. 26).

Defining a Breach of the Peace

[57] ... The purported power in this case is a power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace. In targeting someone who is acting lawfully, this proposed power is aimed at individuals who have not committed, and are not about to commit, either an indictable offence or a breach of the peace.

[58] The term “breach of the peace” requires elaboration....In Brown, Doherty J.A., writing for the Ontario Court of Appeal, defined the concept as follows: “A breach of the peace contemplates an act or actions which result in actual or threatened harm to someone” (p. 248 (footnote omitted.)). In Frey v. Fedoruk, [1950] S.C.R. 517, Kerwin J. (as he then was), in concurring reasons, proposed the following definition of a breach of the peace:

It may be difficult to define exhaustively what is a breach of the peace but, for present purposes, the statement in Clerk and Lindsell on Torts, (10th edition), page 298, may be accepted: —

A breach of the peace takes place when either an actual assault is committed on an individual or public alarm and excitement is caused. Mere annoyance or insult to an individual stopping short of actual personal violence is not a breach of the peace. Thus a householder apart from special police legislation — cannot give a man into custody for violently and persistently ringing his door-bell. [Emphasis added; p. 519.]

[59] As these authorities make clear, an act can be considered a breach of the peace only if it involves some level of violence and a risk of harm. It is only in the face of such a serious danger that the state’s ability to lawfully interfere with individual liberty comes into play. Behaviour that is merely disruptive, annoying or unruly is not a breach of the peace.

[60] It is also essential at this point to be clear about what police powers are not at issue. Specifically, as I indicated above, the case at bar does not concern a power to arrest a person for the purpose of preventing that person from breaching the peace. It appears that such a power may have existed historically at common law (see Hicks, at para. 4). Indeed, the Ontario Court of Appeal considered this very power in obiter in Brown and suggested that it does exist, stating that “a police officer may also arrest or detain a person who is about to commit a breach of the peace” (p. 248 (emphasis added)). While it is not necessary to decide this in the instant case, I seriously question whether a common law power of this nature would still be necessary in Canada today.

[61] The Criminal Code provides explicitly for a number of warrantless arrest powers that obviate the need for such a common law power. In particular, under s. 31(1), a police officer can arrest anyone found committing a breach of the peace or who the officer believes is “about to join in or renew the breach of the peace”. In addition, s. 495(1)(a) provides that an officer can arrest any person “who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”....Thus, police officers already have extensive powers to arrest, without a warrant, a person they reasonably believe is about to commit an act which would amount to a breach of the peace. I therefore have difficulty seeing any need for the courts to fill a legislative gap by recognizing a common law power of arrest for the purpose of preventing individuals from committing breaches of the peace themselves. I make no comment about other possible powers short of arrest in such circumstances.

[62]... Instead, the power at issue in this case would target individuals who are not suspected of being about to break any law or to initiate any violence themselves, in situations in which the police nonetheless believe that arresting the individuals in question will prevent a breach of the peace from occurring. For example, these individuals might themselves be the targets or victims of anticipated violence. They could be “provocateurs” whose lawful actions or words are feared to be prompting others to respond violently. In such a situation, the police might believe that removing the person from the area will defuse the situation, avert the apprehended violence and even protect him or her.

Application to the Proposed Power Here

[65] This proposed power of arrest would involve substantial prima facie interference with significant liberty interests. Indeed, few police actions interfere with an individual’s liberty more than arrest — an action which completely restricts the person’s ability to move about in society free from state coercion. As this Court recently noted, “placing a person under arrest inherently infringes his or her liberty” (R. v. Penunsi, 2019 SCC 39, at para. 73).

The Second Stage - Reasonably Necessary

[75] Courts must always apply the second stage of the ancillary powers doctrine with rigour to ensure that the Crown has satisfied its burden of demonstrating that the interference with individual liberty is justified and necessary. As Abella J. stated in Clayton:

In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual’s liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public. [para. 26]

[76] The unique context of the respondents’ purported power of arrest makes it particularly difficult to justify at the second stage of the analysis. This Court has held that “[t]he standard of justification must be commensurate with the fundamental rights at stake” (Clayton, at para. 21). There are a number of reasons why the “standard of justification” is especially stringent here. The characteristics of the power, and in particular its impact on law-abiding individuals, its preventative nature and the fact that it would be evasive of review, all mean that it will be more difficult to justify as reasonably necessary compared to other common law powers. The bar is higher.

[77] Firstly, the purported police power would expressly be exercised against someone who is not suspected of any criminal wrongdoing or even of threatening to breach the peace. In the past, this Court has only recognized common law police powers that involve interference with liberty where there has been some connection with criminal activities....

[81] Secondly, the purported police power in the case at bar is preventative. The respondents propose a power that would enable the police to act to prevent breaches of the peace before they arise.

[83]... As a general rule, it will be more difficult for the state to justify invasive police powers that are preventative in nature than those that are exercised in responding to or investigating a past or ongoing crime (Figueiras, at para. 45; see also Brown, at paras. 249-51).

[84] Thirdly, the exercise of the respondents’ purported police power would be evasive of review. Since this power of arrest would generally not result in the laying of charges, the affected individuals would often have no forum to challenge the legality of the arrest outside of a costly civil suit (see J. Esmonde, “The Policing of Dissent: The Use of Breach of the Peace Arrests at Political Demonstrations” (2002), 1 J.L. & Equality 246, at pp. 254-55). Judicial oversight of the exercise of such a police power would therefore be rare. For this reason, any standard outlined at the outset would have to be clear and highly protective of liberty.

[91] With respect to the extent of the infringement, any interference with individual liberty will be justified only insofar as it is necessary in order to prevent the breach of the peace from occurring (see MacDonald, at para. 39). As I mentioned earlier, an arrest is one of the most extreme intrusions on individual liberty available to the police. Where there are less invasive measures that would be effective in preventing the breach, they must be taken instead.

[92] On considering these factors, I do not see how so drastic a power as that of arrest can be reasonably necessary. I cannot conceive of circumstances in which a common law power of arrest will be required in order to prevent violence from occurring where there are no other means — available either at common law or in legislation — that would serve this purpose.

[93] In this regard, it is important to note the statutory powers of arrest that are already available to police officers in such situations. Section 129 of the Criminal Code reads:

Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so


is guilty of

(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(e) an offence punishable on summary conviction. [Emphasis by Author]

[94] Consequently, if an individual fails to comply with less intrusive measures taken by a police officer to avert a breach of the peace — by “resist[ing] or willfully obstruct[ing]” the officer in the lawful execution of his or her duty, assaulting the officer, or omitting to assist the officer in preserving the peace after “having reasonable notice” of a requirement to do so — a statutory power of arrest already exists under the Criminal Code.

[95] The respondents’ purported power of arrest would result in serious interference with individual liberty. As a result, such an arrest cannot be justified under the ancillary powers doctrine. There is already a statutory power of arrest that can be exercised should an individual resist or obstruct an officer taking other, less intrusive measures. It is not reasonably necessary to recognize another common law power of arrest in such circumstances. Therefore, to be clear, the only available powers to arrest someone in order to prevent an apprehended breach of the peace initiated by other persons are the ones that are expressly provided for in the Criminal Code. In my view, these statutory powers are sufficient, and any additional common law power of arrest would be unnecessary.

[101] In light of the above conclusion, Mr. Fleming’s arrest on May 24, 2009, was not authorized at common law.

[108] It is neither necessary nor advisable for this Court to comment on whether, when fulfilling their duties of preserving the peace, preventing crime, and protecting life and property, the police may have some other common law powers short of arrest to prevent an apprehended breach of the peace.

Excessive Force


Section 25(1) of the Criminal Code states:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law


(b) as a peace officer or public officer,


is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[116] This section authorizes police officers to use “as much force as is necessary” in the execution of their duties. It affords them a defence to a claim of battery, provided that the section’s requirements are satisfied. The provision will not shield officers from liability if the force they used is found to be excessive.

[117] However, police officers cannot rely on s. 25(1) to justify the use of force if they had no legal authority — either under legislation or at common law — for their actions (see Figueiras, at para. 147; Coughlan and Luther, at p. 32).

[118] Because the respondents were not authorized at common law to arrest Mr. Fleming, no amount of force would have been justified for the purpose of accomplishing that task. They were not doing what they were “required or authorized to do” within the meaning of s. 25(1).

[120] For the foregoing reasons, I would allow the appeal, set aside the order of the Ontario Court of Appeal and restore the trial judge’s order. Costs are awarded throughout: costs in this Court and the agreed-upon trial and appeal costs of $151,000 and $48,000 respectively.

R v Lemioer (SKCA) 

[Sept 20/19] Charter s.11(b) - Case Complexity - 2019 SKCA 95 [Reasons by Leurer, with Schwann J.A., Tholl J.A. concurring]

AUTHOR’S NOTE: Case complexity has become a convenient excuse the Crown to escape the application of the 18 and 30-month ceilings mandated by R v Jordan.  It is a concept that is potentially as unreviewable as "prejudice" was under the Askov/Morin regime. Thankfully, many courts are resisting Crown attempts to return to an endlessly flexible concept to escape the application of the ceilings.  Here the SKCA helpfully defends the ceilings by rejecting an unjustified and unproven reference to "complexity" by the Crown. 

Pertinent Facts

[3]               In this case, the total delay between the laying of the criminal charges and the expected completion of the trial in the Court of Queen’s Bench exceeded four years. The trial judge found that this should be adjusted by only two months to account for defence delay. The trial judge also held that, although the charges against Mr. Lemioer were pending when Jordan was released, the delay could not be justified on the basis of a “transitional exceptional circumstance” (Jordan at para 96), grounded in the Crown’s reasonable reliance on the law as it previously existed. On these bases, the trial judge stayed the charges against Mr. Lemioer.

[4]               Although, in my respectful view, the trial judge committed several errors in his analysis, those errors do not affect the bottom line conclusion that “the delay involved in this case is simply too long” (Delay Decision at para 89). I would therefore dismiss the Crown’s appeal. My reasons for reaching this conclusion follow.

[6]               Mr. Lemioer was arrested as a result of his alleged involvement in various drug trafficking offences on June 9, 2013. Two days later, on June 11, 2013, an information was sworn alleging the commission by Mr. Lemioer and another individual [Co-accused] of various offences under the Controlled Drugs and Substances Act, SC 1996, c 19, and the Criminal Code. 

[7]               Between June 9, 2013 and March 5, 2014, the Crown provided disclosure and counsel organized themselves for a preliminary inquiry. On the latter of these dates, the preliminary inquiry was scheduled for October 21–23, 2014. In September 2013, Mr. Lemioer had to change his counsel when his lawyer became subject to professional discipline at the hands of the Law Society of Saskatchewan.

[8]               On October 15, 2014, on the eve of the preliminary inquiry, the Co-accused’s counsel applied for leave to withdraw due to non‑payment of fees. The presiding Provincial Court judge described the situation as “concerning”, but nonetheless granted the application. In her ruling, the presiding judge noted as follows:

The Crown indicates it is a very complex matter and they would be reluctant here to see an unrepresented accused. The other defence counsel is ready to proceed, as is the Crown, although she indicates she is not fully retained, but is accepting of that situation and appears to be ready to proceed. The accused are not in custody, and apparently this is the first date the matter has been set.

[9]               The judge then asked Crown counsel if he wanted to proceed to a preliminary inquiry against Mr. Lemioer, or if he would “be more comfortable resetting the matter and waiting for the one accused to get organized?” Crown counsel advised that he wished to proceed against the two accused jointly. As a result, the preliminary inquiry dates were vacated. It was only on April 30, 2015 that new dates for the preliminary inquiry were set for December 14 to 17, 2015. The 198 days between October 15, 2014 and April 30, 2015 were largely occupied by an application by the Co-accused for court‑appointed counsel and then for that counsel to become acquainted with the case.

[10]           The preliminary inquiry did not proceed on December 14, 2015, but instead was rescheduled to begin May 3, 2016. While the reasons for this delay were a matter of contention before the trial judge, the Crown now accepts that this time must be counted against it.

Complexity of the Case

[65]           Jordan assists in identifying cases which may be categorized as being “particularly” complex:

[77] As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[78] A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.

[67]           Here, the Crown points to four factors as justifying the delay in this case beyond what would otherwise be accounted for in the Jordan framework: (1) multiple accused in a joint trial; (2) voluminous disclosure; (3) numerous intercepted private communications; and (4) a possible challenge to the validity of wiretap authorizations based on the principles set out in R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 [Garofoli].

[71]           Still, the Crown must do more than simply point to factors that it says add to the complexity of the case. The Crown should be prepared to provide some particularization as to where, in the chronology of events, these factors impacted the march of the case from charge to completion of the trial, so as to remove the case from the application of the presumptive ceiling or, at the very least, elaborate on how complexity has added to the delay. In my respectful view, in this case, the Crown has failed in this justification. In brief, even though she was only retained in November 2013, Mr. Lemioer’s trial counsel had completed her review of documents and was ready to proceed to preliminary inquiry in early 2014. I have already given the Crown the benefit of subtracting the delay flowing from the introduction of new counsel for the Co‑accused. The Garofoli application had been scheduled to occur between the hearing of the s. 11(b) application and the commencement of the trial, and therefore did not contribute to the overall delay. Although it is an error to analyze complexity solely from the perspective as to how it will present at trial (Picard at para 57), some additional measure of the complexity of this case is evident from the fact that the preliminary inquiry was scheduled for four days and was completed in three.

[72]           In the end, while the case had more complexity than many others, I am unconvinced that complexity justified additional delay in this case beyond what is already accounted for in the Jordan framework.

[87]           For the reasons given above, in my respectful view there is no basis to interfere with the trial judge’s determination that Mr. Lemioer’s right to a trial within a reasonable time was violated. The Crown does not suggest that if this Court agrees Mr. Lemioer’s Charter rights were violated a stay is not an appropriate remedy. I would therefore dismiss the Crown’s appeal.

R v Alston (ONSC)

[Sept 23/19] – Charter s.8 - Fingerprints Database of Young Persons under the YCJA– 2019 ONSC 5491 (Presently on Westlaw at 2019 CarswellOnt 15039) [Barnes J.]

AUTHOR’S NOTE: The YCJA requires various actors in the justice system to automatically seal or destroy records with the passage of time.  The RCMP in particular maintains numerous records that can be impacted by various processes, YCJA and otherwise (ie. Conditional Discharges), that require them to actively purge their records. Unfortunately, just as they are often late to post additions to criminal records on CPIC, they are equally often late to remove records the should not be on their system by operation of time and law. Herein, one of those records (fingerprints) were used to make a case against an accused.  Section 8 protects accused persons in such circumstances as outlined below.

Pertinent Facts

1 Mr. Alston's Application to exclude evidence due to a breach of his s. 8 Charter rights is granted. The fingerprint evidence obtained as a result of the breach is excluded pursuant to s. 24(2) of the Charter. I rendered the decision with reasons to follow, and these are my reasons.

3 On October 26, 2016, a man walked into a bank in Toronto. He approached the bank teller and gave her a note. The note instructed the teller to give him the money in her till. She complied. The male fled, leaving behind the note and a rubber glove.

4 Constable Derouet found four fingerprints at the crime scene. One print was on the note. This print was compared to fingerprints stored in the Royal Canadian Mounted Police (RCMP) Automated Fingerprint Identification System (AFIS). Tyler Alston's fingerprints were stored in AFIS and matched the fingerprint on the note. Mr. Alston's prints were obtained when he was charged with criminal offences as a young person.

6 Police obtained a search warrant and searched Mr. Alston's residence and Ms. McCalla's vehicle. A large amount of Canadian and American currency was found in a safe located in the residence. A picture book containing grade school pictures of Ms. McCalla and three guns were also found in the residence. Police allege that two of the guns were stored carelessly. None of the guns were used in the robbery.

7 Mr. Alston submits that the retention period of fingerprints under the Youth Criminal Justice Act (the Act) has expired. He submits that ss. 123 and 124 of the Act therefore apply, which require Peel Regional Police to obtain a judge's order to access the fingerprints. Peel Regional Police Service did not obtain a judge's order and, thus, acted unlawfully.

8 Secondly, once the access period expired, the RCMP were required under s. 128(3) of the Act to destroy Mr. Alston's prints or — should the Librarian and Archivist of Canada request them — send the fingerprints to the Librarian and Archivist of Canada. The RCMP failed to comply with this statutory direction and therefore the RCMP's retention and use of Mr. Alston's prints is unlawful.


13 For reasons articulated below, I am satisfied that the statutory access period had expired when the RCMP resorted to AFIS to answer the inquiry from the Peel Regional Police Service. Thus, Peel Regional Police Service was required to apply to a youth court judge for authority to access the fingerprints: ss. 123 and 126 of the Act.

14 The fact that the access may have, or had, expired was unknown to Peel Regional Police. This police service did not know that the fingerprint was a youth record. On these facts, under a R. v. Grant s. 24(2) Charter analysis, I would not exclude such an inadvertent s. 8 Charter breach. The crucial question is whether the RCMP unlawfully retained Mr. Alston's fingerprints in the AFIS database.

The Statutory Provisions in Question

15 This case involves the interpretation of the relevant provisions of Part 6 of the Act in the context of an alleged s. 8 Charter breach. The Supreme Court of Canada in R. v. G.(B.), [1999] 2 S.C.R. 475, at paras. 40-42, describes a framework for such interpretations:

1) If Parliament intends to proscribe the use of applicable common law principles, it must expressly say so;

2) Absent a compelling reason to the contrary, legislation must be interpreted in accordance with the objects of the legislation; and

3) Legislation must be interpreted in a manner consistent with the Charter.

18 The overarching objective of the Act is to afford "a greater protection to young people and recogni[ze] that young persons are entitled to a presumption of diminished moral culpability because of their reduced maturity": s. 3 of the Act; R. v. G. B., at para. 16.

19 Part 6 of the Act sets out rules for keeping and using the records of young persons. The object of Part 6 is to prohibit the publication of and access to the name or any information related to a young person which "would identify the young person as a person dealt with under [the] Act", subject to the exception set out in Part 6: s. 110(1); s. 118(1) of the Act.

21 Police investigating any offence allegedly committed by a young person may keep the original or copy of the young person's fingerprints and may provide such a record to the RCMP. If the young person is convicted of an offence, then the Police Service shall provide a record of the young person's fingerprints to the RCMP: s. 115(1) — (2) of the Act. The RCMP shall keep such records in a central repository designated for "keeping criminal history files or records of offenders or keeping records for the identification of offenders": s. 115(3) of the Act. AFIS is maintained by the RCMP pursuant to s. 115(3) of the Act.

22 Section 119(1) of the Act prohibits access to, and the use of, youth records except under strict terms. The class of persons who may receive access includes police officers. This access and disclosure is subject to strict time limits which are aptly summarized in R. v. G.B. (2010), O.J. No. 1521, at para 19, as follows:

There is a three-year limit to access and use of the records created and kept by any police force and a maximum of eight years to access and use records kept by the R.C.M.P. in their Central repository. The time runs in both cases from the date of conviction where a conditional sentence is imposed. Included in the exceptions is access by any peace officer for law enforcement. It must be remembered however that the records contained in the Central repository are the records created by the force who originally investigated the crime. The record must only be destroyed after the period of 8 years has elapsed.

23 Mr. Alston's evidence on his criminal antecedents is unchallenged. He was charged on three occasions as a young person. These charges generated fingerprints that were retained by the RCMP in AFIS.

24 The second set of charges was when Mr. Alston was between 14-16 years old. He was charged with breach of his recognizance. He was found guilty and sentenced to probation. This is a hybrid offence and, without a Crown election, s. 121 of the Act deems it to be a summary conviction offence. There is no evidence the Crown elected otherwise. I will assume the Crown proceeded by summary conviction, therefore, the access period expired three years after the sentence was imposed: s. 119(2)(f), (g) of the Act. If the Crown proceeded by indictment, the period is five years after sentence: s. 119(2)(h)(j) of the Act.

26 Section 120 of the Act sets additional access periods for youth records kept by the RCMP. The fingerprints kept under AFIS records are captured by these provisions. Police officers investigating offences are granted access to fingerprint records kept by the RCMP: ss. 120(1)(e) and 120(2) of the Act. For indictable offences, in addition to the access period stipulated in ss. 119(2)(h) to (j) of the Act, s. 120(3)(a) increases the access period by five years for RCMP youth records kept pursuant to s. 115(3) of the Act.

27 As noted, Mr. Alston was previously charged with offences as a young person. Only one charge, breach of probation, resulted in a conviction. He was 16 years old at that time. I have assumed that the Crown proceeded summarily, therefore, the access period expired when he was 19 years old. Mr. Alston is now 27 years old. He has no arrests or convictions as an adult. He was 25 years old at the time of these allegations.

28 Section 128 provides rules for the destruction and disposition of records. It also imposes prohibitions on how those records may be used or disclosed. Section 128 is summarized in R. v. G.B., [2010] O.J. No. 1521, at para. 24, as follows:

Subsection 128(1) provides a blanket prohibition on use of record except by court order or two other circumstances irrelevant to this case. Subsection 128(2) provides that a record created by a police force must be either destroyed or sent to the Archives of Canada. Section 128(3) provides that the record in the Central Repository shall be destroyed or sent to the Archivist. Subsection 128(4) provides that the R.C.M.P. shall remove a record from any automated criminal conviction records retrieval system maintained by the R.C.M.P. Finally, Subsection 128(5) provides that a record kept in a system to match crime scene information by the R.C.M.P. may be disclosed in the same manner as information that relates to an offence committed by an adult for which a pardon under the Criminal Records Act (C.R.A.) is in effect.

30 ... Subsection 128(3) is clear that after expiration of the access period, the RCMP must either destroy s. 115(3) records or — at the request of the Librarian and Archivist of Canada — provide a copy of the records to the Librarian and Archivist of Canada.

32 The ICA and CRA apply during the period the records are accessible under the Act. Such an interpretation is plain and obvious and in accordance with the objects of the Act articulated in s. 3 of the Act. A different interpretation would be contrary to the object of the Act because it would mean the actions of the young person shall follow them into adulthood. Such an interpretation and result is inconsistent with the objects of the Act. If Parliament intends s. 115(3) records to be excluded from the statutory requirement for destruction, it should expressly legislate accordingly.

Charter s.8 Violation

33 This case is distinguishable from R v. G.B., 2010 ONSC 1499. In that case, the O.P.P. submitted fingerprints on robbery notes to the RCMP for identification. The RCMP identified the prints as those of G.B., who argued that the RCMP had unlawfully retained the fingerprints in violation of the Act. The Court held that the eight-year period for retaining the prints had not expired and, therefore, the RCMP had acted lawfully. G.B.'s application was dismissed: G.B. at paras. 19, 23 and 27.

34 In the present case, the retention period had expired and the RCMP failed to comply with subsection 128(3) of the Act. At the time the RCMP accessed fingerprints, the prints were unlawfully in its possession. Mr. Alston's fingerprints were thus obtained unlawfully and in breach of his right to be secure against unreasonable search and seizure. Mr. Alston's s. 8 Charter rights were breached.

Section 24(2) Analysis

35 Factors to consider in determining whether the fingerprint evidence should be excluded pursuant to s. 24(2) of the Charter are articulated in R. v. Grant, [2009] S.C.J. No. 32. The first consideration is the seriousness of the breach.

36 The Peel Regional Police Service sought access to the fingerprints for a valid law enforcement purpose with no knowledge that the fingerprints were linked to a young person or that the period for the RCMP's retention of those records had expired. The RCMP are responsible for the AFIS database. The RCMP's failure to destroy the fingerprints after the expiration of the access period is unlawful. The RCMP's conduct circumvents the clear intent of Parliament. Unlawful conduct by one law enforcement agency cannot be exempted from scrutiny by the inadvertent participation of another law enforcement agency in the unlawful act. The conduct of the RCMP constituted a serious violation and cannot be condoned by the courts. To do so will undermine public's confidence in the law and its processes.

37 The second consideration is the impact of the breach on Mr. Alston's Charter-protected interests. The evidence was collected lawfully in an unintrusive fashion, it was a fingerprint left on a note used by the bank robber. The disclosure did not reveal that Mr. Alston was a person previously dealt with under the Act. Any privacy breach was minimal.

39 These fingerprints were retained unlawfully by the RCMP for several years after the expiration of the access period. On balance, the admission of the fingerprints would bring the administration of justice into disrepute. The fingerprint identification evidence is excluded.