COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McSweeney, 2020 ONCA 2

DATE: 20200107

DOCKET: C64881

Strathy C.J.O., Doherty and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter James McSweeney

Appellant

Mark C. Halfyard, for the appellant

Sarah Shaikh, for the respondent

Heard: October 4, 2019

On appeal from the conviction entered by Justice Mary
    Teresa E. Devlin of the Ontario Court of Justice, on October 27, 2017.

Strathy C.J.O.:

[1]

The appellant appeals his convictions for possession of child
    pornography and distribution of child pornography, contrary to ss. 163.1(4) and
    163.1(3) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[2]

His trial was conducted exclusively as a
Charter
application.
    He alleged that his rights under ss. 7 and 10(b) of the
Charter
were
    infringed with respect to statements he made to police before and after his
    arrest and that the statements should be excluded pursuant to s. 24(2). After
    the trial judge found those statements to be admissible, the defence conceded
    that the Crown could prove the charges based on his admissions and the court
    was invited to make a finding of guilt.

[3]

The appellant submits that the trial judge erred in finding that he was
    not detained when he made his first statement and in refusing to exclude both
    statements pursuant to s. 24(2).

[4]

For the reasons that follow, I would allow the appeal.

I.

BACKGROUND

A.

The search

[5]

As the circumstances of the appellants statements are central to the
    analysis of whether his
Charter
rights were breached, they require
    careful examination.

[6]

In May 2016, Detective Constable Lockwood of the Internet Child
    Exploitation Unit (ICE) of Durham Regional Police received a report that
    certain images, identified as child pornography, had been uploaded to the social
    networking site, Tumblr. Further investigation determined that the uploads
    originated from an internet account registered to a subscriber at an address in
    Whitby, Ontario. The appellants wife was the subscriber. The address was
    occupied by the appellant, his wife, and their two teenage children.

[7]

Police officers prepared a search warrant for the address to seize electronic
    storage devices, computers, and other devices capable of accessing the
    internet. The warrant was executed at approximately 6:03 a.m. on June 15, 2016.
    Nine police officers entered the house, including two from the Sexual Assault
    Unit; an Identification Officer; two officers from the E-Crimes Unit; three
    from the ICE Unit; and a patrol officer. Some of the officers were in police
    uniform and others wore vests identifying them as police.

[8]

The appellants wife admitted the officers in to the home after they
    knocked on the door. The appellant was upstairs in the shower and the children
    were still in bed. The appellant came downstairs shortly after police arrived.
    D.C. Lockwood showed him the warrant and let him read it. He then asked the
    appellant whether he knew why police were at his house. The appellant denied
    knowing anything about child pornography.

[9]

As the appellant continued to read through the warrant, D.C. Lockwood
    asked him whether he could direct him to a computer in the house that might
    have child pornography on it. The appellant replied, Im not saying anything
    until I get my thoughts together.

[10]

D.C. Lockwood acknowledged that he did not address questions of this nature
    to the appellants wife. He admitted that he did not have a good answer for
    why he did not.

[11]

In response to defence counsels suggestions that both questions were
    designed to have the appellant incriminate himself, D.C. Lockwood acknowledged:
    They can be very incriminating, yes.

[12]

Within about 10 minutes of the police arriving, the family had been
    gathered in the living room. The operational plan for the search was to secure
    the scene to ensure that electronic equipment was no longer transmitting, and to
    make areas containing electronics off-limits to the family. Until that was
    done, the occupants would not be free to move about the home for fear that they
    would potentially interfere with the search or destroy evidence. D.C. Lockwood
    explained to the family what would be taking place during the search. They were
    told that they were not permitted to use their electronic devices, including
    cell phones. A police officer was stationed in the living room while this discussion
    took place and she remained there with the family throughout the search. The
    appellants wife wrote down the officers names and badge numbers. She asked
    whether she could go to the kitchen to use the land line to make a call and D.C.
    Lockwood told her that she could.

[13]

At approximately 6:29 a.m., D.C. Lockwood asked the appellants wife to
    come to the front porch of the home to give an audio statement. She agreed to
    do so. The officer testified that the purpose of the interview was to determine
    who had access to the computers in the home, but he acknowledged that most of
    the discussion was taken up with questions from the appellants wife. He
    described the interview as light-hearted and acknowledged in
    cross-examination that the appellants wife was never a suspect. At some
    point during the interview, the appellants wife asked whether she could get
    the children ready for school and the officer permitted her to tell the
    children to do so. The appellant remained in the living room while his wife was
    questioned on the porch. The interview lasted approximately 20 minutes.

[14]

At about 6:53 a.m., D.C. Lockwood asked the appellant to come to the
    porch to give a recorded statement. The officer acknowledged that he had not
    cautioned the appellant up to that point. Nor did he caution the appellant
    before he took the statement or inform him of his right to counsel. He admitted
    that his failure to do so was a mistake, because he considered the appellant a
    suspect.

B.

The first statement

[15]

After D.C. Lockwood explained the background leading up to the issuance
    of the warrant, and that experts would be examining the family computers for
    images of child pornography, the interview continued:

Lockwood: So, you know, I talked with [the appellants wife]
    and we kinda debated back-and-forth who could be responsible for this.

The Appellant: Ok.

Lockwood: Is there anything youd like to talk about?

The Appellant: Im not sure what to say, at this point.

Lockwood:
Well, Peter, I want to be, Ill
    be honest, I think it was you, man
.

The Appellant: Ok.

Lockwood: Because it wasnt your kids.

The Appellant: True.

Lockwood: Ok, kids can stumble into

The Appellant: [Inaudible]

The Appellant: So, I dont want to, uh,
I
    dont want to say anything until I talk to people that could either help me, or
    not help me
.

Lockwood:
Youre talking about a lawyer
.

The Appellant: Sure. Um, but then youre going to say, well,
    youre not under arrest anyways, so [inaudible]

Lockwood: Everything you have to say is voluntary. Im not here
    to make you talk about anything you dont want to talk about, ok?

The Appellant: Um, so whats the easiest course of action?

Lockwood: I not [sic], I cant even tell you what the easiest
    course of action is. I am here to give you a chance to tell me everything I should
    know.

The Appellant: Yeah, ok.

Lockwood: Um, anything you feel I should take into account, and
    you,
if you think theres someone in the house I should
    be questioning, I want you to tell me
.

The Appellant: No.

Lockwood: Ok?

The Appellant: I think were, I think were, uh, were,
we both know  that  its  myself
.

Lockwood. Ok, so what I want to do.

The Appellant: [Inaudible] you know.

Lockwood: So what I want to do is this, ok? I appreciate that
    honesty.

The Appellant: Right.

Lockwood: Ok?
I dont want you to say
    anything else to incriminate yourself
.

[Emphasis added.]

[16]

Moments later, the officer said, I do appreciate your honesty because I
    dont want to drag your kids into this.

[17]

After the interview, the appellant was arrested, cautioned, informed of
    his right to counsel, and taken to the police station.

C.

The second statement

[18]

After being processed at the station, the appellant was taken to an
    interview room at approximately 10:11 a.m. He indicated that he wished to speak
    to duty counsel and arrangements were made for him to do so.

[19]

After the appellant had spoken to duty counsel, the recorded interview
    continued at approximately 11:10 a.m. At the outset of the interview, D.C.
    Lockwood gave a secondary caution, followed by an awkward and inaccurate attempt
    to explain it:

Lockwood:  [G]otta [inaudible] you now because, I havent been
    with you the whole time. If you spoke to a police officer or anyone with
    authority or any special persons spoken to you in connection with this case, I
    want it clearly understood that I do not want it to influence you in making any
    statements, do you understand that?

The Appellant: Mm-hm. [Head nod, Yes].

Lockwood: So that means what another police officer told you,
    you better talk to Jeff Lockwood, uuh, theyre wrong, theyre not supposed to
    do that. Ok. Everything we say is voluntary, umm, sometimes we come in here and
    we have long chats, sometimes we come in here and just questions about where do
    we go from here and either way Im fine with that, umm, I dont play mind games
    and I dont trick anybody, Ive been around too long to do that now, and Im
    just tired, ok?

[20]

Throughout most of the interview, the appellant maintained that he
    wished to remain silent. However, at one point in the interview, D.C. Lockwood
    asked the appellant whether there was any chance that anybody else in the
    house is involved, to which the appellant replied, [a]bsolutely not.

II.

REASONS ON
CHARTER
APPLICATION

[21]

The trial judge found that both statements were admissible. She found
    that the appellant was not detained during the search of his home. Her reasons
    on the issue of detention were contained almost exclusively in para. 8 of her
    reasons:

In the case before me, there is no evidence that Mr. McSweeney
    was physically restrained.
There was also no evidence of
    psychological detention
. Not only was Mr. McSweeney free to come and go
    during the search, he was present when his wife asked to use the landline
    telephone and get the children ready for school and these requests were
    granted. In reaching the conclusion that Mr. McSweeney was not detained I have
    rejected the submission that because an officer remained in the living room
    with the family, Mr. McSweeney felt he was under police guard and not free to
    leave.
There was no evidence to support this submission
.
    Also, Mr. McSweeney never asked to leave the living room even though he saw his
    wife and children leave and go about their daily business. [Emphasis added.]

[22]

The trial judge observed that while D.C. Lockwood admitted that he
    should have cautioned the appellant before interviewing him on the porch, he
    was not legally obliged to do so, and the existence of a caution was only one
    of the factors to be considered in determining whether the statement was
    voluntary. Moreover, despite the absence of a caution, the appellant appeared
    to be well-aware of his right to remain silent.

[23]

The defence submitted that when the appellant made the comment about
    talking to people that could either help me, or not help me and D.C. Lockwood
    confirmed that he was referring to a lawyer, the officer was under a duty to
    inform him of his right to counsel and to facilitate his request. The trial
    judge rejected this submission, finding that (1) the appellant was not detained
    when he made the comment; (2) he did not actually ask to speak to a lawyer, but
    simply confirmed his wish to remain silent until he spoke to one; and (3) he did
    not further pursue the issue.

[24]

The trial judge thus found that the appellants 10(b) rights were not
    engaged, that the police did not improperly elicit his confession during the
    statement on the porch, and that the statement was both
Charter
compliant and admissible.

[25]

The trial judge also found that since the first statement was
Charter
-compliant
    and voluntary, there was no basis to find that it tainted the second
    statement.

III.

ISSUES

[26]

This appeal raises four issues:

·

First, whether the appellant was detained at the time of his
    first statement, thereby triggering his s. 10(b) right to be informed of his
    right to retain and instruct counsel without delay;

·

Second, whether the appellants second statement was obtained in
    a manner that infringed a s. 10(b) right;

·

Third, if either or both statements were obtained in a manner
    that infringed the appellants
Charter
rights, whether they should be
    excluded pursuant to s. 24(2); and

·

Fourth, if the s. 10(b) issue were decided in favour of the
    Crown, whether the appellants first statement should nevertheless have been
    excluded as being involuntary and infringing s. 7.

IV.

ANALYSIS

A.

Was the appellant
    detained at the time of the first statement?

(1)

Section 10(b)

[27]

Section 10(b) of the
Charter
provides that:

Everyone has the right on arrest or detention:

(b) to retain and instruct counsel without delay and
    to be informed of that right.

[28]

The s. 10(b) right attaches immediately on detention, subject to
    concerns for officer safety. It creates the right to retain and instruct
    counsel without delay and the right to be informed of that right, in order to
    effectively exercise it. A detained person who chooses to exercise their right
    must be given a reasonable opportunity to do so, and police must refrain from
    eliciting incriminating evidence from the detained person until he or she has
    had a reasonable opportunity to consult with counsel: see
R. v. McGuffie
,
    2016 ONCA 365, 131 O.R. (3d) 643, at para. 41;
R. v. Suberu
, 2009 SCC
    33, [2009] 2 S.C.R. 460, at paras. 38, 42;
R. v. Taylor
, 2014 SCC 50,
    [2014] 2 S.C.R. 495, at paras. 20-26.

[29]

In
Suberu
, at para. 40, the court explained:

[T]he purpose of s. 10(b) is to ensure that individuals know of
    their right to counsel, and have access to it, in situations where they suffer
    a significant deprivation of liberty due to state coercion, which leaves them
    vulnerable to the exercise of state power and in a position of legal jeopardy.
    Specifically, the right to counsel is meant to assist detainees regain their
    liberty, and guard against the risk of involuntary self-incrimination.

[30]

An individuals s. 10(b) right is thus intimately connected to their
    control over their own person. While an individual confronted by the authority
    of the state ordinarily has the option to simply walk away, this choice can be
    removed by physical or psychological compulsion, resulting in detention. Once
    detained, however, the individuals choice whether to speak to the authorities
    remains, and is protected by the s. 10 informational requirements and the s. 7
    right to silence:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    paras. 19-23.

[31]

The Supreme Court of Canada expanded on this interaction between ss. 7,
    9, and 10 of the
Charter
, at para. 22 of
Grant
:

Detention also identifies the point at which rights
    subsidiary to detention, such as the right to counsel, are triggered. These
    rights are engaged by the vulnerable position of the person who has been taken
    into the effective control of the state authorities. They are principally
    concerned with addressing the imbalance of power between the state and the
    person under its control. More specifically, they are designed to ensure that
    the person whose liberty has been curtailed retains an informed and effective
choice
whether to speak to state authorities, consistent with the overarching
    principle against self-incrimination. They also ensure that the person who is
    under the control of the state be afforded the opportunity to seek legal advice
    in order to assist in regaining his or her liberty. [Emphasis in original.]

[32]

The key task, therefore, in determining whether an individuals s. 10(b)
    rights have been triggered, is to identify whether a detention has occurred.

[33]

Detention can by physical or psychological. Psychological detention
    occurs where a person has a legal obligation to comply with a police direction,
    or where the police conduct would cause a reasonable person to conclude that
    he or she was not free to go and had to comply with the police direction or demand:
Grant
, at paras. 30-31. In determining whether someone has been
    psychologically detained, the inquiry is an
objective
one, having regard to how a reasonable person would perceive the state conduct
    in the circumstances. An objective inquiry recognizes the need for police
    themselves to appreciate when detention occurs, so they can fulfill their
Charter
obligations to detained persons:
Grant
, at paras. 31-32;
Suberu
,
    at para. 22.

[34]

The Supreme Court provided a helpful summary of the analysis of
    detention, at para. 44 of
Grant
:

In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the
Charter
refers
    to a suspension of the individuals liberty interest by a significant physical
    or psychological restraint. Psychological detention is established either where
    the individual has a legal obligation to comply with the restrictive request or
    demand, or a reasonable person would conclude by reason of the state conduct
    that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal
    obligation, it may not be clear whether a person has been detained. To
    determine whether the reasonable person in the individuals circumstances would
    conclude that he or she had been deprived by the state of the liberty of
    choice, the court may consider,
inter alia
, the following factors:

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

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

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

[35]

I accept the appellants submission that the trial judge erred in
    failing to apply the objective test mandated by
Grant
and
Suberu
,
    namely whether a reasonable person in the appellants circumstances would
    conclude by reason of the state conduct that he or she had no choice but to
    comply. While the trial judge referred to
Grant
and
Suberu
,
    her analysis reflects the error this court identified in
R. v. Wong
,
    2015 ONCA 657, 127 O.R. (3d) 321: she treated the exercise largely as a
    subjective inquiry, asking whether there was evidence of the appellants state
    of mind. This was an error of law and this court is therefore required to apply
    the correct analysis.

(2)

Detention in the context of
    the execution of a search warrant in a home

[36]

This case was argued, in this court and in the court below, as one in
    which the appellant was detained, not as a result of a legal obligation to
    comply with a state request or demand, but as a case where a reasonable person
    would conclude that they had to comply. The
Grant
factors must
    therefore be applied.

[37]

Before doing so, however, it is necessary to consider the fact that the
    encounter occurred in the exercise of the states authority through the lawful
    execution of a search warrant.

[38]

There is no question that during the execution of a search warrant
    police are entitled to segregate the occupants of the premises to ensure
    officer safety, to prevent the loss or destruction of evidence, and to maintain
    the integrity of the search. They may give appropriate directions to that end: see
R. v. Connor
(2009), 202 C.R.R. (2d) 43 (Ont. S.C.), at para. 82;
Ahmed
    et al. v. McCaskill et al.
, 2015 MBQB 68, 317 Man. R. (2d) 42, at para.
    70;
Water v. Toronto (Police Services Board)
, 2016 ONSC 7824.

[39]

However, there are limits to these powers. I accept as accurate the
    observation in
R. v Owen
, 2017 ONCJ 731, 397 C.R.R. (2d) 63, at para.
    33:

However, once the police have cleared the house and ensured
    that they have accounted for all the occupants, they must have a basis for any
    continued detention of any occupant(s). They are not permitted to simply keep
    the occupants in a room, incommunicado, while they go about their search of the
    house. Once police have ensured their safety, they are not justified in holding
    the occupants in a room unless the occupants are being arrested or otherwise be[ing]
    lawfully detained. Provided the occupants are not interfering with the search,
    they are permitted to stay in and move about the residence; or, they may leave.

[40]

Owen
itself bears some similarity to this case.

[41]

Police arrived at the accuseds home just after 7:00 am. They knocked on
    the door and were greeted by his father. The police informed the father that
    they had a search warrant regarding child pornography and asked him to move
    into the living room. The accused was upstairs in his bedroom. The police brought
    him down to the living room. The accused and his father were seated in the
    living room for several minutes. An officer stayed with them. The police then
    called the accused into the kitchen for questioning. During the interview, the
    accused made several inculpatory statements and was arrested shortly afterward:
    at paras. 1-2, 5-8.

[42]

The accused argued that he was psychologically detained when he was
    escorted from his room and sequestered in the living room with his father and
    then directed to go into the kitchen to speak to an officer: at paras. 30-31.
    The trial judge agreed, holding that the accused was subject to a
    psychological detention from the time the police escorted him downstairs and
    had him sit in the living room: at para. 32. The judge held that any
    reasonable person in the circumstances of the accused would conclude that they
    were detained: at para. 35. Further, even if there was no detention while the
    accused was placed in the living room, there was a detention when he was asked
    to speak with an officer in the kitchen: at para. 36.

[43]

Other cases have followed a similar approach:
R. v. Munkoh
,
    2010 ONSC 2253, 210 C.R.R. (2d) 87;
Water; R. v. S.L.
, 2019 ONCJ 101.

[44]

However, where police have acted solely to ensure the integrity of the
    search, where the interference with liberty was modest, and where any
    questioning was not focused on the persons involvement in a crime, courts have
    found no detention:
Munkoh
, at paras. 31-40;
Water
, at paras.
    72-83;
R. v. S.L.
, at paras. 72-84.

(3)

Application to this case

[45]

The first consideration under the
Grant
test is the
    circumstances giving rise to the encounter. As outlined above, in the context
    of the execution of the search warrant, a key consideration is whether the
    police were acting solely to ensure the integrity of the search, or whether
    they were engaged in a focused investigation. In this case, the appellant was
    clearly singled out for focused investigation. From the very outset of the
    encounter, D.C. Lockwood posed questions that were accusatory and invited
    self-incrimination. In substance, his questions amounted to: Do you know why
    we are here? and can you tell us the location of computers in this house with
    child pornography on them? Those questions would cause a reasonable person in
    the position of the appellant to conclude that they were a suspect, perhaps the
    prime suspect, in a police investigation into child pornography in their own
    home. As was the case in
Owen
, the police were not merely executing
    the search warrant, they were targeting and questioning a suspect.

[46]

The segregation of the family in one area of the home, without the use
    of phones and electronic devices, is also a circumstance to be taken into
    account. While the police were justified in clearing the house to ensure the
    integrity of the search, the prolonged sequestering of the family in the living
    room was unnecessary for that purpose. There was no suggestion that they
    attempted to interfere with the search or were anything other than co-operative.
    The fact that the appellants wife found it necessary to ask for permission to
    use the land line in the kitchen, speaks to a perception that she was not free
    to do so without permission. The same is true of her request to allow her children
    to get ready for school.

[47]

While his wife was being interviewed outside on the porch, the appellant
    was left sitting in the living room with his children, with a police officer
    continuing to stand guard over them. His isolation and separation from his wife
    (whom the police had treated more deferentially than he) would add to the
    perception of a reasonable person that an investigation was taking place and
    that they were a suspect.

[48]

D.C. Lockwood then asked the appellant to come out on the porch to speak
    to him and give a recorded statement. This would enhance the perception of a
    reasonable person, in the circumstances, that they were the focus of the
    investigation.

[49]

The second factor under
Grant
is the nature of the police
    conduct, including the language used, the use of physical contact, the place
    where the interaction occurred, the presence of others, and the duration of the
    encounter.

[50]

Physical contact does not feature in the detention analysis in this
    case. However, as already identified, the language used by D.C. Lockwood after
    police entered the house was targeted and accusatory.

[51]

It is noteworthy that the warrant was executed at 6:03 a.m. when most
    people are just waking up and when working people with children are getting
    ready for their busy day. This element takes on particular flavour when one considers
    the presence of some nine police officers executing the warrant in what appears
    to have been a typical, middle-class home. This would cause a reasonable person
    to feel the weight of the state in their home, the most private of places.

[52]

The encounter itself, up to the time when the appellant was invited to
    give a statement on the porch, lasted approximately 40 minutes. It is not clear
    when the police had secured the areas they needed to secure, but there is no
    evidence of why it was necessary for the appellant to remain in the living room
    for that length of time. Nor is there evidence as to why police did not tell
    the appellant that he could leave or get ready for work, if he wished to do so.

[53]

The final
Grant
factor to be considered is the particular
    characteristics of the individual where relevant, including age, physical
    stature, minority status, and level of sophistication.

[54]

There are no characteristics of the appellant that are particularly
    germane to this inquiry. The appellant appears to have been a mature, educated,
    and articulate adult with some appreciation of his rights in the face of the
    officers inquiries.

(4)

Conclusion on detention and
    s. 10(b)

[55]

I conclude that the appellant was detained, at the very latest, at
    approximately 6:53 a.m. when D.C. Lockwood asked him to come to the porch to
    give a statement. Given all that had taken place during the preceding 50
    minutes, including the focused and accusatory statements made to the appellant,
    the lengthy period of sequestration, under guard, and the officers request to
    come to another area of the home to make a recorded statement, a reasonable
    person in the appellants situation would conclude that they were obliged to
    comply. At no time before his arrest was the appellant informed of his right to
    counsel, even though D.C. Lockwood knew that he was required to do so. The
    appellants s. 10(b) right was infringed.

[56]

I now turn to the question of whether the appellants second statement should
    also be excluded as a result of having been tainted by the
Charter
breach in relation to the first.

B.

Was the appellants second
    statement, made after he had spoken to counsel and been cautioned, obtained in a
    manner that infringed a
Charter
right?

[58] In determining whether a statement should be
    excluded under s. 24(2), a court must answer two questions. The first, referred
    to by Doherty J.A. in
R. v. Plaha
(2004), 188 C.C.C. (3d) 289 (Ont.
    C.A.), as a threshold requirement, asks whether the statement was obtained
    in a manner that infringed or denied a
Charter
right. Where this
    threshold requirement has been met, the court proceeds to the second question,
    the evaluative component, which asks whether the admission of the statement
    as evidence would bring the administration of justice into disrepute:
Plaha
,
    at para. 44.

[57]

As explained by the Supreme Court in
R. v. Wittwer
, 2008 SCC
    33, [2008] 2 S.C.R. 235, at paras. 19-21, in order to determine whether a
    subsequent statement by an accused was obtained in a manner that infringed a
Charter
right, a court must assess whether the impugned statement is part of the same
    transaction or course of conduct as the earlier breach:

In considering whether a statement is tainted by an earlier
Charter
breach, the courts have adopted a purposive and generous approach. It is
    unnecessary to establish a strict causal relationship between the breach and
    the subsequent statement. The statement will be tainted if the breach and the
    impugned statement can be said to be part of the same transaction or course of
    conduct: [
R. v. Strachan
, [1988] 2 S.C.R. 980, at p. 1005]. The
    required connection between the breach and the subsequent statement may be
    temporal, contextual, causal or a combination of the three:
R. v. Plaha
(2004), 189 O.A.C. 376, at para. 45. A connection that is merely remote or
    tenuous will not suffice:
R. v. Goldhart
, [1996] 2 S.C.R. 463, at
    para. 40;
Plaha
, at para. 45.

[58]

In undertaking this analysis, the court must be alive to whether the
    police were able to sever the connection and establish a fresh start:
Wittwer
,
    at paras. 2-3;
R. v. Manchulenko
, 2013 ONCA 543, 116 O.R. (3d) 721, at
    para. 68; and
R. v. Hamilton
, 2017 ONCA 179, 347 C.C.C. (3d) 19, at
    para. 54.

[59]

The trial judge in this case did not apply this analysis, as she found
    there was no
Charter
breach in relation to the first statement. She
    also found that the two statements were unconnected to each other, as the
    second statement was made after a fresh start as described in
Manchulenko
.
    She accordingly held that the second statement was voluntary.

[60]

Having found a
Charter
breach in relation to the first
    statement, I would also find that there was a temporal, contextual, and causal
    nexus between the first and the second statements.

[61]

The statements were relatively close in time to each other. About four
    hours elapsed between the end of the first statement in the appellants home
    and the beginning of the second statement at the police station. In the
    meantime, the appellant went through what must have been a head-spinning and
    stressful process of arrest, transportation to the police station, parading and
    processing at the station, waiting, and consulting with duty counsel. In the
    context of this case, the passage of time was not sufficient to sever the link
    between the two statements.

[62]

The statements were also linked contextually. At the end of the first
    statement, D.C. Lockwood told the appellant that the questioning would continue
    at the station: [W]hen I come back to the station, Id like to sit down and
    chat with you, but that, talk to your lawyer first, ok? While the appellant
    did speak to counsel, D.C. Lockwood was the only person present at the second
    interview. The officers presence served to connect the two statements.

[63]

This connection was confirmed by the officers own words. At the
    beginning of the recorded statement at the second interview, D.C. Lockwood
    stated, in the appellants presence: Detective Constable Lockwood interviewing
    Peter McSweeney,
a continuation of an earlier statement
which was cut short because the accused wished to talk to duty counsel (emphasis
    added).

[64]

The statements were also contextually linked by virtue of the officer's
    conduct. During the second interview, D.C. Lockwood continued to employ the
    same investigative techniques he had used in the first interview. One technique
    was to gain the appellants trust by being considerate of his well-being. For
    example, after taking the first statement, the officer told the appellant that
    he would not arrest him in front of his children, suggested he put on warm
    clothing because the cells were cold, and made sure he had his blood pressure
    pills with him: I like to be prepared for the worst and hope for the best, he
    said to the appellant. He re-assured the appellant by telling him that there
    were a lot of reasons why people view child pornography and that it did not
    make them pedophiles.

[65]

This concern for the appellant continued at the police station, where D.C.
    Lockwood asked whether he had been treated well and whether he had any
    injuries: None from the handcuffs or anything? You were cuffed up front so
    its a lot more comfortable than sitting on those things trust me. He also
    asked whether anyone had called the appellants workplace to let them know that
    he would not be in. The appellant said he had not called and D.C. Lockwood
    said, Ok well just let that sit for a while then. Cause Im, Im not gonna
    phone them and get them suspicious. Uhh, not saying they wont find out, it
    just, it wont be from me.

[66]

While the officers solicitousness may have been genuine, and while he
    may have had legitimate reasons to ask about whether the appellant had received
    injuries at the jail, the officers statements had the effect of
    re-establishing the friendly and accommodating atmosphere he had created after
    obtaining the first statement.

[67]

There was, however, another more calculated aspect of the questioning
    that was common to both statements. In both interviews, the officer used the
    implicit threat that if the appellant was not forthright, he would have to
    interview his children.

[68]

During the first statement, a few moments before the appellant blurted
    out, we both know that its myself, the officer said, Ill be honest. I
    think it was you, man.  because it wasnt your kids. The appellant replied, [t]rue.
    Moments later, the officer said Ok, I do appreciate your honesty because I
    dont want to drag your kids into this.

[69]

The clear inference was, If you dont cooperate with me, I am going to
    have to interview your kids and tell them about the child pornography we found
    on the computers in your home.

[70]

For most of the second interview, after he had spoken to duty counsel, the
    appellant was uncommunicative. His only inculpatory statement was made after D.C.
    Lockwood again asked whether his family might have been involved:

Lockwood: [I]s there, is there any chance that anybody else in
    the house is involved?

The Appellant: Absolutely not.

[71]

Officer Lockwood already had a confession from the appellant. He had
    never suspected the appellants wife and the appellant had said that it was
    him, not his children. The officer was plainly using the appellants desire to
    shield his children from the details of the offence to extract more information
    from him. In this sense, there was also a causal nexus between the first and
    the second statements.

[72]

In my view, informing the appellant of his rights and providing access
    to duty counsel did not serve to remove the taint of the initial
Charter
infringement or to sever the nexus between the two statements. The presence of
    the officer who was responsible for that breach, and who had taken the first
    statement a few hours earlier, the reference to the earlier statement and the
    use of the same interview techniques created a situation in which both
    interviews can reasonably be described as all part of the same interrogation
    process.:
R. v. Lewis
, 2007 ONCA 349, 86 O.R. (3d) 46, at para. 32.

[73]

For these reasons, the second statement was obtained in a manner that
    infringed the appellants
Charter
rights.

C.

Should the evidence be
    excluded under s. 24(2)?

[74]

Section 24(2) of the
Charter
provides:

Where, in proceedings under subsection (1), a court
    concludes that evidence was obtained in a manner that infringed or denied any
    rights or freedoms guaranteed by this Charter, the evidence shall be excluded
    if it is established that, having regard to all the circumstances, the
    admission of it in the proceedings would bring the administration of justice
    into disrepute.

[75]

As matters transpired in the court below, it was not necessary for the
    trial judge to conduct a s. 24(2) analysis, because she found there was no
    violation of the appellants
Charter
rights. As I have found there was
    such a violation, it is necessary to do that analysis: see
R. v. Caputo
(1997), 114 C.C.C. (3d) 1 (Ont. C.A.), at p. 13.

[76]

The s. 24(2) analysis looks at the effect of admitting the evidence on
    public confidence in the administration of justice in the long term, having
    regard to: (1) the seriousness of the
Charter
-infringing state conduct;
    (2) the impact of the breach on the
Charter
-protected interests of the
    accused; and (3) societys interest in the adjudication of the case on the
    merits:
Grant
, at para. 71;
R. v. Harrison
, 2009 SCC 34, [2009]
    2 S.C.R. 494, at para. 2.

[77]

I turn now to these considerations.

(1)

The seriousness of the
Charter
-infringing
    state conduct

[78]

This stage of analysis requires that I situate the police conduct on a
    continuum of misconduct:
R. v. Blake
, 2010 ONCA 1, 251 C.C.C. (3d) 4,
    at para. 23;
R. v. Rocha
, 2012 ONCA 707, 112 O.R. (3d) 761, at para.
    31. In
Grant
, at para. 74, the Supreme Court spoke of a spectrum
    between inadvertent or minor
Charter
violations, on the one hand, and
    violations involving the wilful or reckless disregard for
Charter
rights, on the other. The more serious the infringement by the state
    authorities, the more likely it is to have a negative effect on the public
    confidence in the rule of law, and risk bringing the administration of justice
    into disrepute: at para. 74.

[79]

In my view, the
Charter
infringement in this case was serious
    and amounts to wilful disregard of the appellants
Charter
rights. The
    officer acknowledged that the appellant was a suspect from the outset and that
    he should have cautioned him. Instead, he pursued a tactical and focused
    interrogation. He ignored the appellants statement that he did not want to say
    anything and that he wanted to talk to people that could either help [him], or
    not help [him]. The officer clearly understood that the appellant wanted to speak
    to a lawyer. As Gillese J.A. observed in
Hamilton
, at para. 71, [t]he
    police obligation to hold off questioning detainees who have requested a
    consultation with counsel is firmly established law of long-standing. However,
    instead of holding off and allowing the appellant an opportunity to consult
    counsel, the officer persisted in his questioning. This wilful disregard of the
    appellants rights weighs heavily towards exclusion of the fruits of the
    interrogation.

(2)

The impact of the breach on
    the
Charter
-protected interests of the accused

[80]

The impact of the breach was serious. The appellant was detained and at
    the mercy of state actors:
R. v. Nguyen
, 2008 ONCA 49, 231 C.C.C.
    (3d) 541, at para. 21. Section 10(b) protects the detainees right to make an informed
    choice about whether to cooperate with the investigation by giving a statement:
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24-28. The
    actions of the police deprived him of that right.

(3)

Societys interest in the
    adjudication on the merits

[81]

This inquiry asks whether the truth-seeking function of the criminal
    trial process is better served by the admission of the evidence or by its
    exclusion:
Grant
, at paras. 79-84. It considers both the negative
    effect of the admission of the evidence on the repute of the administration of
    justice, and the impact of a failure to admit the evidence. In
McGuffie
,
    this court observed, at para. 62, that the pull toward the inclusion of the
    evidence is particularly strong where the evidence is reliable and critical to
    the Crowns case. On the other hand, where the first and second inquiries make
    a strong case for exclusion, the third inquiry will seldom, if ever, tip the
    balance in favour of admissibility:
McGuffie
, at para. 63.

[82]

In this case, the evidence is reliable, but it is not critical to the
    Crowns case. The Crown has circumstantial evidence regarding the possession
    and use of the computers. This may be enough to proceed with the charges: see
    e.g.,
R. v. Taylor
, 2019 ONCJ 110;
R. v. Erskine
, 2017 ONSC 6782;
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000.

(4)

Conclusion on s. 24(2)

[83]

The state conduct was willful and in disregard of the appellants
    asserted
Charter
rights. It had a serious impact on those rights and
    on his attempt to exercise them. While society has a strong interest in the
    adjudication of the charges on their merits, the exclusion of the evidence will
    not preclude the Crown from proceeding with the charges, if it chooses to do
    so, relying on forensic evidence obtained from the computers themselves. This
    is not a case in which the Crowns case will be gutted by the exclusion of the
    improperly-obtained evidence. It may be more challenging to prove, but it has
    not been suggested that it would be impossible.

[84]

For these reasons, the appellants statements should be excluded
    pursuant to s. 24(2).

D.

Voluntariness

[85]

As I have concluded that both statements resulted from breaches of s.
    10(b) and should be excluded pursuant to s. 24(2), it is unnecessary to
    consider the trial judges conclusions on voluntariness.

V.

CONCLUSION

[86]

For these reasons, I would allow the appeal, quash the appellants
    convictions, and order a new trial.

Released: GS   JAN 07 2020

G.R. Strathy C.J.O.

I agree. Doherty J.A.

I agree. M. Tulloch J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences being
    dealt with in the same proceeding, at least one of which is an offence referred
    to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mould, 2020 ONCA 78

DATE: 20200131

DOCKET: C65581

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Russell Craig Mould

Appellant

Peter Lindsay and Hamna Anwar, for the appellants

Vallery Bayly, for the respondent

Heard and released orally: January 23, 2020

On appeal from the conviction entered on April 28, 2017
    and the sentence imposed on July 4, 2018 by Justice Esther Rosenberg of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario Court of Justice conducted
    substantially on the basis of an Agreed Statement of Facts, the appellant was
    convicted of a single count of child luring under s. 172.1(1)(b) of the
Criminal
    Code
. He was sentenced to a term of imprisonment of 168 days to be followed
    by probation for a period of 1 year. He appeals both conviction and sentence.

The Background Facts

[2]

Using the name craig, the appellant, who was then about 53 year old,
    posted an advertisement on the Casual Encounters section of Craigslist. He sought
    someone under age 28 or 22, a male. The content of the ad left no doubt about
    what craig sought.

[3]

A police officer browsing this section of Craigslist began an
    investigation by responding to the ad as austin and providing a cell phone
    number where text messages could be received. An exchange of texts began.
    Within about two weeks of the response by craig, police determined that the
    initial ad and response had originated from an internet protocol address
    registered to the appellant and to his business.

[4]

After several further electronic conversations, craig and austin
    agreed to meet at a coffee shop. When the appellant attended, he was arrested.
    A cell phone in his possession contained a text message exchange about the
    meeting.

[5]

The appellant testified at his trial. He denied any interest in sexual
    encounters with minors, preferring instead men between the ages of 20 and 30.
    He claimed that the content of his collocutors communications caused him to
    realize that he was not, in fact, communicating, as austin insisted, with a
    14 year old. He concluded that he was being deceived or played by someone
    with an agenda. Annoyed, he agreed to the coffee shop meeting so that he could
    enjoy a gotcha moment.

The Appeal from Conviction

[6]

On the appeal from conviction, the appellant contends that the trial
    judge erred:

i.

by reaching her conclusion that guilt had been proven beyond a
    reasonable doubt by illogical reasoning;

ii.

by reversing the burden of proof; and

iii.

by misapprehending aspects of the evidence.

[7]

Whether these grounds are considered individually or cumulatively, we
    are satisfied that the appeal from conviction fails.

[8]

First, we are not persuaded that the finding of guilt, in whole or in
    part, is grounded on illogical reasoning.

[9]

The trial judge drew a logical inference that was within the field of
    inferences open to her on the whole of the evidence adduced at trial. She was
    satisfied, as was her entitlement, that the context and contents of the text
    messages were inconsistent with the appellants claim of annoyance and desire
    for a gotcha moment. Further, the context and content of these messages also
    put the lie to the appellants claim that he did not actually believe that his
    collocutor was 14 years old, and that he was not interested in having sexual
    contact with someone of that age, in particular, his collocutor.

[10]

Second, when the Reasons for Judgment are taken as a whole, we are not
    persuaded that the trial judges words I would simply have to take Mr. Moulds
    word for it amounted to an impermissible reversal of the burden of proof. We
    take it to be neither more nor less than an observation that the appellants
    claim stood on its own and was directly contradicted by other evidence, in
    particular, the context, content and prolonged nature of the appellants
    communications with austin. The trial judge expressly articulated the
W.(D.)
framework; examined the appellants evidence in the context of the rest of
    the evidence; rejected it and found that it did not raise a reasonable doubt
    about his guilt.

[11]

The final point concerns what is said to be a misapprehension of two
    aspects of the evidence:

i.

that, in another text exchange with another person, the appellant
    claimed no interest in sexual activity with persons under 18 years old; and

ii.

that on search of the appellants home and computers, police found no
    evidence of child pornography or other sexual conversations with minors.

[12]

In our view, the trial judge was entitled to give this evidence no
    weight in her analysis. In this respect, we observe that the preliminary crime
    of which the appellant was convicted was complete in advance of the exchange
    with the other collocutor. That other indicia which may have assisted in proof
    of the prosecutions case were not found was assigned no weight was a
    conclusion reasonably open to the trial judge on this record.

[13]

For these reasons, the appeal from conviction is dismissed.

The Appeal from Sentence

[14]

The appeal from sentence was not pursued in oral argument. The appellant
    relied on his written submissions in support of that appeal. We are satisfied
    that the sentence imposed was fit.

Disposition

[15]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is dismissed, except that the victim
    surcharge imposed by the trial judge is set aside.

David Watt J.A.

M. Tulloch J.A.

Gary Trotter J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue. These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.D., 2020 ONCA 23

DATE: 20200114

DOCKET: C64554, C64610

Doherty, van Rensburg and Hourigan JJ.A.

DOCKET:
    C64554

BETWEEN

Her Majesty the Queen

Respondent

and

R.D.

Appellant

DOCKET: C64610

AND BETWEEN

Her Majesty the Queen

Appellant

and

R.D.

Respondent

Mark C. Halfyard and Lindsay Board, for R.D.

Megan Petrie, for the Crown

Heard: December 20, 2019

On appeal by R.D. from the
    conviction entered on March 28, 2017 by Justice Brian P. OMarra of the
    Superior Court of Justice, sitting with a jury, and from the order of Justice
    Anne M. Molloy of the Superior Court of Justice, dated March 16, 2017, with
    reasons reported at 2017 ONSC 1770.

On appeal by the Crown from the
    sentence entered on October 27, 2017 by Justice Brian P. OMarra of the Superior
    Court of Justice, with reasons reported at 2017 ONSC 6375.

REASONS FOR DECISION

[1]

R.D. was convicted by a court comprised of judge
    and jury of sexual interference, sexual assault and uttering threats to cause
    bodily harm. He was acquitted of incest. The complainant was his younger
    sister, S.D. R.D. was sentenced to three years in prison (30 months for sexual
    interference; 30 months concurrent for sexual assault; and six months
    consecutive for uttering threats).

[2]

The complainant alleged that over the course of
    eight years, commencing in 2001 until 2009, R.D. forced her to perform oral sex
    and digitally penetrated her, eventually having intercourse with her, and
    threatened to hurt her if she told anyone. According to the complainant, the
    abuse began when she was nine years old and R.D. was 18. She believed R.D.
    would hurt her, as there was a history of physical abuse.

[3]

R.D. testified and denied the allegations. He
    admitted to having a poor relationship with the complainant and that he had
    pleaded guilty to assaulting her in 2004, ten years before his arrest on the
    current charges. He blamed the physical abuse on anger and impulse control issues.
    He also testified that he had learning disabilities, anxiety and depression.

[4]

Z.B., the mother of the complainant and R.D.,
    and J.D., the complainants ex-boyfriend, also testified as Crown witnesses at
    trial.

[5]

R.D. appealed his conviction on the basis that
    the trial judges charge to the jury was deficient. He also appealed the
    dismissal of his application for a stay of proceedings under s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
. The Crown sought to appeal sentence.

[6]

At the conclusion of oral argument, we dismissed
    the conviction appeal and the sentence appeal with reasons to follow. These are
    our reasons.

A.

Alleged Deficiencies in the Jury Charge

[7]

R.D. asserted that the charge was deficient in
    two material respects: (1) the trial judge neglected to review the defence
    evidence and the inconsistencies between the complainants evidence and that of
    other witnesses, and failed to relate these to the defence theory; and (2) the
    trial judge failed to instruct the jury adequately regarding the elements of
    each offence.

(1)

The treatment of the evidence

[8]

R.D. pointed to the failure of the charge to
    provide a separate summary of his evidence at trial. Instead, the trial judge
    summarized the complainants evidence, and he made reference to the evidence of
    the other Crown witnesses, while making only passing reference to R.D.s testimony.
    R.D. submitted that the result was a charge that was unbalanced and unfair.

[9]

We disagree.

[10]

The standard required of a jury charge is
    adequacy, not perfection. The appellate courts approach is functional,
    assessing the adequacy of the charge as a whole, in the context of the trial in
    which the instructions were given, and in light of its purpose:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at
    paras. 32 to 41;
R. v. Newton
, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The charge must
    provide the jury with a sufficient understanding of the facts as they relate to
    the relevant issues from the trial
:
Jacquard
, at para. 14. The
    trial judge has an obligation to review the substantial parts of the evidence
    and to relate the evidence to the issues to be decided. What is necessary are
    references to the evidence that are sufficient, in the context of the case and
    the entirety of the charge, to alert the jury to the specific parts of the
    evidence that are of significance to its decision on particular issues and to
    the positions of the parties on those issues. The role of the trial judge is to
    decant and to simplify:
R. v. Huard
, 2013 ONCA 650, 302 C.C.C. (3d) 469, at paras. 53 and 56.

[11]

In this case, the trial judges approach to the
    evidence in his jury charge was focused on the issues at trial. He did not
    simply review the evidence of each witness in a narrative way. Rather, he told
    the jury that he was going to review some parts of the evidence of [S.D.],
    that she was a critical witness in the trial, and that their assessment and
    consideration of her evidence would go a long way towards deciding this case,
    bearing in mind [the need] to consider all of the evidence. He then summarized
    parts of the complainants evidence, identifying where her account was
    contradicted by or inconsistent with the evidence of the other witnesses,
    including R.D. For example:

-

After referring to S.D.s evidence that she told
    Z.B. (her mother) about the first incident just after it happened and that Z.B.
    confronted R.D., the trial judge contrasted this account with Z.B.s testimony
    denying that S.D. had reported this incident or any other sexual incident, and
    R.D.s denial that this incident occurred.

-

After referring to S.D.s testimony that R.D.
    tried to sexually attack her when she was taking a shower and that there were
    no locks on the bathroom doors, the trial judge referred to the testimony of
    Z.B. and R.D. that there were locks on the bathroom doors.

-

After referring to S.D.s evidence that Z.B. had
    walked in on R.D. assaulting her doggie style, the trial judge referred to
    Z.B.s evidence denying she had ever seen such an incident. The trial judge followed
    this with a reference to Z.B.s account of seeing the two under a blanket,
    which he characterized as somewhat equivocal.

[12]

Contrary to R.D.s submissions, in these and
    other references to the evidence, the trial judge pointed out the key
    discrepancies between the complainants account and those of the other witnesses
    that might have served to undermine her credibility. In the context of this
    trial, where the complainants credibility was a significant issue, this
    approach was likely more effective than simply providing a witness-by-witness
    summary of the evidence that the jury heard.

[13]

As for R.D.s argument that the trial judges
    approach failed to relate the evidence to his defence, we disagree. The main
    defence, other than R.D.s denial of any instance of sexual contact with his
    sister, was that the complainant had fabricated the allegations because she felt
    angry about the admitted physical assaults she had suffered over the years and she
    wanted to have him out of the house where she would be living with her mother
    and young daughter. The jury was reminded repeatedly that the incidents of
    sexual contact described by the complainant were denied by R.D. His own
    evidence did not advance the fabrication defence. In fact, there are parts of
    his testimony that, when recounted as a narrative, may not have assisted R.D.
    in this case: his recollection that on one occasion he was lying on his bed
    under a blanket with the complainant, and that he said dont have a dirty
    mind, mom when confronted by his mother, and his admission that the
    complainant suddenly began keeping her young daughter from him.

[14]

Ultimately, the case largely turned on whether
    the jury believed the complainant. In his review of the evidence, the trial
    judge pointed out the main areas where her evidence was contradicted by or
    inconsistent with other evidence at trial. And, in reviewing the evidence, the
    trial judge repeated on several occasions the need for the jury to be satisfied
    beyond a reasonable doubt that the sexual acts had occurred.

[15]

Finally, we note that there was no objection to
    this part of the charge. While not determinative, the failure to object to the
    trial judges review of the evidence and how it related to the issues may be
    indicative of the seriousness of what is later said to be error and a factor in
    appellate review:
R. v. Cudjoe
, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 155.

(2)

The review of the elements of the offences

[16]

At the outset of the trial, the trial judge
    provided a brief explanation of the charges with reference to what was alleged
    in the indictment. He told the jury that the complainant was the sister of the
    accused, and that sexual assault is the intentional touching of another person
    without their consent in circumstances of a sexual nature. He explained that
    the complainant could not consent to count 1, the charge of sexual
    interference. He explained that count 2 alleged sexual intercourse and that
    this is an offence often referred to as incest, and that again the Crown did
    not have to prove that the complainant did not consent. With respect to count
    3, the charge of sexual assault, the trial judge stated that he would reserve
    his instructions about the law on that count until the end, and that he would
    do the same with respect to count 4, the charge of uttering a threat.

[17]

In his jury charge, the trial judge returned to
    the elements of the offences. He stated as follows with respect to the first
    three counts:

I am now going to discuss with you the elements of the offences
    alleged in this case. Counts 1 to 3 on the indictment, and you will have a copy
    of that with you in your jury room, allege sexual offences that occurred within
    stated time periods. At the outset of the trial, and before evidence was
    presented I referred to some of the different elements of each of those
    offences that the Crown must prove beyond a reasonable doubt for there to be
    convictions on any of those charges. I referred to Count 1, which is sometimes
    referred to as sexual interference with a person less than 14 years old; and
    Count 2, which is incest, as not requiring proof that the complainant did not
    consent. Consent is not a factor if the person is under a certain age, or if it
    is alleged you had sexual intercourse with a certain, a family relationship.
    Now that the evidence is complete, my instructions to you as to what the
    essential elements to be proven by the Crown are, has become focused and clear
    in this case. [S.D.] has testified that she was the victim of ongoing sexual
    abuse by her brother that escalated from touching her private parts, digital
    penetration, forced fellatio, up to and including intercourse. She did not
    consent to any of those acts and was forced to submit by threats of force.
    [R.D.] has denied that any of the alleged sexual acts took place. You must
    return separate verdicts on each count in the indictment. If you are satisfied,
    in this case, if you are satisfied, based on all of the evidence and my
    instructions on the law, that the sexual acts as described by [S.D.], were
    committed by [R.D.], then Counts 1 to 3 are proven. As I will make clear to
    you, your decision must not be based on whose evidence you prefer over the
    other. There is no onus on [R.D.] to prove he is innocent. The Crown must
    satisfy you beyond a reasonable doubt that he is guilty of any of Counts 1, 2
    or 3.

[18]

During their deliberations, the jury asked the
    following question: Charge 3  Question: (1) for the third charge, please
    clarify the term sexual assault; (2) Please clarify if consent is a factor; and
    (3) Does the age of the alleged victim matter?

[19]

The trial judge invited submissions on the
    answer to the jurys question. Defence counsel indicated that, in the context
    of the evidence, the only question for the jury was whether or not the alleged
    conduct occurred, that there was no evidence in respect of any kind of consent,
    and that if they believed the complainant, the offence would be made out. The
    trial judge answered the question in a manner consistent with these
    submissions. He stated:

Sexual assault is defined in the
Criminal Code
as the
    intentional touching of someone else without their consent in circumstances of
    a sexual nature. Now in some cases of alleged sexual assaults, consent is the
    issue. You will have other cases, not this case, where the defence isthere was
    sexual contact up to and including intercourse, and the defence position in
    those other cases is, but it was with consent. And the Crown, in that case,
    must prove beyond a reasonable doubt that it was not consensual. Okay? Now in
    this case, there is no suggestion by anyone, Crown or defence or [R.D.]that
    any of the alleged sexual events were consensualthe only evidence on the issue
    of consent is from the complainant, who indicated that none of the sexual acts
    were consensual. Okay? But the fundamental issue for you to decide is this, did
    the sexual acts as described by the complainant occur, because if you are not
    satisfied that there were these sexual acts as described by the complainant,
    then [R.D.] is entitled to be acquitted. If you are not satisfied beyond a
    reasonable doubt, this is the fundamental issue to deal with, beyond a
    reasonable doubt that the sexual acts as described by the complainant did
    occur, if there were, if you are satisfied that there were these sexual acts,
    the only evidence on consent is that there was no consent...

[20]

On appeal, R.D. argued that the trial judge
    erred by failing to set out the elements of the offences in his charge to the
    jury, with the result that the jury reached potentially inconsistent verdicts.
    The focus of this submission was on the sexual offences. We disagree.

[21]

Once again, this courts review of the adequacy
    of the charge is functional. A proper jury instruction is one that arms the
    jurors with the information they need to reach a fair and proper verdict
    in the circumstances of the particular case. The trial judges explanation of
    the law must be tailored to those specific circumstances:
R. v. Haughton
(1993),
    11 O.R. (3d) 621, at p. 625, affirmed [1994] 3 S.C.R. 516;
R. v. Rowe
,
    2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 63-64.

[22]

In this case,
when the instructions are looked at functionally, and considered
    together with the response to the jury question, which forms part of the
    charge, the trial judge provided instructions on the elements of each offence
    that were sufficient for the jury to perform its task. The kinds of touching
    that the complainant described were undoubtedly assaults of a sexual nature. Consent
    was not an issue. The trial judge and counsel were
ad
    idem
that the real issue in this trial was whether
    the jury was satisfied beyond a reasonable doubt that the sexual acts as
    described by the complainant had taken place. This was underscored by the trial
    judge in the passage set out above. And, not only was there no objection to the
    trial judges description of the elements of the offences charged, but defence
    counsel, in his submissions on the recharge following the jurys question, specifically
    endorsed the trial judges approach.

[23]

Finally, we do not accept that the way the trial
    judge instructed the jury on the elements of the offences created the potential
    for inconsistent verdicts. The jury had the indictment which provided
    particulars of what was alleged. In respect of the charge of incest, it was
    clear that the charge was of having sexual intercourse. It is telling that the
    jury acquitted R.D. on the charge of incest, while finding him guilty of sexual
    interference and sexual assault. These verdicts, which are not inconsistent,
    suggest that the jury understood the elements of the offences and were not
    satisfied beyond a reasonable doubt that sexual intercourse, which was an
    essential element of the incest charge, had taken place.

B.

The 11(b) Ruling

[24]

R.D. argued that the application judge erred in
    dismissing his s. 11(b) application. He was arrested on September 23, 2014, and
    his trial in the Superior Court began on March 20, 2017 and ended on March 28,
    2017.

[25]

The following timeline sets out the relevant court
    attendances and events:

Sep. 23, 2014

Appellant is arrested.

Sep. 26, 2014

Appellant is released on bail and speaks to Legal Aid,
          which advises him they need Crown disclosure and screening form to process
          his application.

Oct. 30, 2014

Matter is traversed to 1000 Finch for November 27. No
          disclosure made. The Crown informs the Court that disclosure would be
          prepared at 1000 Finch.

Nov. 27, 2014

Some disclosure is provided. Appellant advises that he had
          retained counsel Mr. Zoppi. Matter is remanded to January 8 at request of
          both Crown and defence.

Jan. 8, 2015

Crown advises that further disclosure has been provided to
          R.D., and that the DVD containing the complainant interview was available,
          but would only be disclosed to R.D.s lawyer given the nature of the charges.
          The Court is advised that R.D. wanted to retain Mr. Zoppi but had not made an
          application to Legal Aid as he had not received a charge screening form from
          the Crown. Matter is remanded to January 29 to allow R.D. to perfect his
          Legal Aid application. With the required materials, R.D. applies for and
          receives Legal Aid that day.

Jan. 29, 2015

Articling student from R.D.s lawyers office appears and DVD
          is provided. The matter is remanded to February 12, 2015.

Feb. 12, 2015

Defence requests adjournment to March 5, 2015 to allow
          counsel to review DVD and to schedule a Crown pre-trial (CPT) with the
          assigned Crown.

Mar. 5, 2015

Court is advised that a CPT has been scheduled for March
          9. Matter is remanded to March 12 to schedule preliminary hearing.

Mar. 12, 2015

Court is informed that CPT conducted and judicial pretrial
          (JPT) is scheduled for April 2

Apr. 2, 2015

JPT is conducted and November 23 and 24, 2015 are set for
          preliminary inquiry.

Nov. 24, 2015

Appellant is committed to stand trial in Superior Court.

Dec. 17, 2015

Appellant appears in Superior Court. Matter is adjourned
          to February 2, 2016 for a JPT.

Feb. 2, 2016

JPT is conducted. October 25, 2016 set for a seven-day
          trial with a jury. Defence indicates intention to bring third-party records
          application.

Sept. 2016

Defence delivers third party records application.

Oct. 24, 2016

Trial scheduled to begin. No judge available. Trial
          adjourned.

Oct. 26, 2016

Third party records application heard. Matter is remanded
          to November 28.

Nov. 28, 2016

Trial scheduled to begin. No judge available. Trial
          adjourned.

Nov. 30, 2016

New trial date of March 20, 2017 set.

Mar. 16, 2017

Section 11(b) application argued and dismissed.

Mar. 20, 2017

Trial begins.

Mar. 28, 2017

Trial ends.

[26]

The application judge determined that the total
    delay was 30 months and six days, just over the presumptive ceiling prescribed
    by
Jordan
(
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631)
. There is no dispute about the calculation of the overall
    delay. R.D. asserted that the application judge erred in attributing part of
    the delay to the defence, which brought the net delay under the threshold. In
    the alternative, R.D. submitted that the application judge erred in her
    conclusion that the defence had not established unreasonable delay.

[27]

The application judge attributed two periods of
    delay to the defence.

[28]

The first was the delay caused by R.D.s failure
    to complete his Legal Aid application in a timely way. R.D. had known since his
    first appearance on September 26, 2014 that he needed a Crown screening form to
    complete his Legal Aid application. He did not raise the matter in his next two
    appearances.
On both
    occasions, he was assisted by duty counsel and had already consulted with the defence
    counsel that he wished to retain.
When R.D. raised the
    issue on January 8, 2015, the form was immediately provided by the Crown and
    R.D. was approved the same day for Legal Aid. On that day the matter was put
    over to January 29, 2015.

[29]

The DVD recording of the complainants statement
    was available by January 8, 2015. The application judge attributed to R.D. part
    of the delay from January 8 to 29, 2015, when an articling student from the
    office of R.D.s lawyer attended court, and on that day received the DVD.

[30]

The second period of delay attributed to the
    defence was part of the period from February 12 to March 5, 2015. The
    application judge acknowledged that it was reasonable on January 29 to adjourn
    to February 12, a date agreed to by defence counsel, so that defence counsel
    could prepare before setting a Crown pre-trial date. However, on February 12,
    defence counsel stated that we have just recently received the complainants
    video statement and that were just going through it, and requested a
    further adjournment to March 5, 2015, before setting the pre-trial date. The
    application judge noted that the total length of the DVD was under two hours
    and that the defence had it for two weeks before asking for another three weeks
    to review it and to arrange a pre-trial.

[31]

The application judge did not precisely define
    the amount of delay attributable to the defence, but she noted that the delay
    considerably exceeded six days and therefore brought the delay beneath the
    30-month ceiling.

[32]

R.D. argued that the application judge erred in
    attributing any part of these two delays to the defence. With respect to the
    first period, he claimed that Legal Aid required a Crown screening form and
    disclosure to process the defence application, and that because no disclosure
    except the information and synopsis was actually ready until January 8, 2015,
    an adjournment would have resulted in any event. As for the second period, R.D.
    says that a period of six weeks was not unreasonable for counsel to review the
    complainants statement, to consider possible defences, and to hold a Crown
    pre-trial. In other words, the purpose of the adjournment was not simply to
    review the complainants statement.

[33]

We disagree. The characterization of the periods
    of delay and the ultimate decision on an application for a stay are reviewable
    on a standard of correctness whereas findings of fact are entitled to deference
    and reviewable on a standard of palpable and overriding error:
R. v.
    Florence
, 2014 ONCA 443, 312 C.C.C. (3d) 165, at para. 39.

[34]

The application judge did not attribute all of
    the delay in the two periods in question to the defence. She was aware of the
    fact that on each of the earlier dates no, or only minimal, Crown disclosure
    had been provided. The application judge did not attribute any of the delay
    between R.D.s first appearance and January 8 to defence delay. However, she
    reasonably concluded that
some
of the delay between January 8 and 29 was
    attributable to the defence because R.D. did not advise that he needed a Crown
    screening form until January 8, which delayed his Legal Aid appointment of
    counsel.

[35]

By January 8, the Crown had provided more
    disclosure (in the form of police notes, etc.), and advised that a DVD of the
    complainants statement was available but would only be provided to counsel. Had
    R.D. retained a lawyer before the January 8 court attendance, counsel could
    have received disclosure of the DVD at that time. The application judge
    reasonably concluded that, accordingly, at least some part of the delay when
    the matter was adjourned for a further three weeks was attributable to the
    defence delay. There is no evidentiary basis for the assertion on appeal that, even
    if R.D. had asked for the Crown screening form on an earlier occasion, he would
    not have been able to proceed with his Legal Aid application in any event
    because full disclosure had not been made.

[36]

As for the second period of defence delay, on
    January 29 defence counsel had agreed to an adjournment to February 12 for the
    purpose of obtaining and reviewing the DVD and having a Crown pre-trial. Although
    the DVD was obtained on January 29, on February 12 defence counsel asked for an
    adjournment to March 5, and it was only on that date that a Crown pre-trial
    date was set and the matter remanded to March 12. The application judge
    specifically recognized that a reasonable period of time for defence counsel to
    prepare is not properly described as delay by the defence. However, after
    referring to the fact that the DVD was only two hours long and that the defence
    had received it more than two weeks earlier, she concluded that at least some
    portion of the time between February 12 and March 5 (when the defence was ready
    to set a Crown pre-trial date) was attributable to defence delay and must be
    subtracted from the total overall delay. We see no basis to interfere.

[37]

Accordingly, we see no error in the application
    judges allocation of at least six days to defence delay. As a result, there
    was no presumption of unreasonable delay and no onus on the Crown to rebut the
    presumption.

[38]

We also do not accept that the application judge
    erred in rejecting R.D.s argument that the delay, in any event, was unreasonable.
    Where the net delay falls below the presumptive ceiling, the onus is on the
    defence to show that the delay is unreasonable. To do so, the defence must
    establish both that (1) it took meaningful steps that demonstrate a sustained
    effort to expedite the proceedings; and (2) that the case took markedly longer
    than it reasonably should have:
Jordan
, at para. 82. For cases that
    were in the system when
Jordan

was decided, these factors must
    be applied contextually and flexibly, sensitive to the parties reliance on the
    previous state of the law:
Jordan
, at para. 99;
R. v. Coulter
,
    2016 ONCA 704, 340 C.C.C. (3d) 429, at paras. 58, 87-89.

[39]

The application judge concluded that R.D. had
    not met either branch of the test. She was not satisfied that the defence had
    shown initiative in moving the matter ahead, and the delay in getting the case
    to trial was not a marked departure from the reasonable time requirements of
    the case. She considered a variety of factors, including the complexity of the
    case, local considerations, and whether the Crown took reasonable steps to
    expedite the proceedings:
Jordan
, at para. 87. It was in this context
    that she referred to the delays caused by the circumstances of the Superior
    Court in Toronto in the fall of 2016 as local circumstances.

[40]

R.D. asserted that the application judge made
    two errors: first, because this was a transitional case, she erred in unduly
    emphasizing defence initiative. Although the first prong of the test requires
    the defence to show a sustained effort to expedite the proceedings, the
    defence need not demonstrate having taken initiative to expedite matters for
    the period of delay preceding [
Jordan
]. Second, R.D. argued that the
    application judge wrongly relied on the lack of available judges to hear his
    case as a local consideration that justified the delay. He submitted that
    local considerations cannot include the governments failure to appoint
    sufficient judges, and that in this case, the reason for the delay was that his
    trial was adjourned twice because it could not be accommodated by the court,
    which added five months to the total period of delay and resulted in 15 months
    total time post-committal in the Superior Court.

[41]

We would not interfere with the application
    judges conclusion that R.D. did not establish unreasonable delay. Even taking
    into consideration that this was a transitional case, although defence counsel
    indicated his intention to bring a third-party records application at the
    judicial pre-trial on February 2, 2016, the application was only served in
    September 2016, two months after
Jordan

was released, and
    leaving insufficient time to have the application determined before the first
    scheduled trial date. The application judge reasonably concluded that the
    failure to bring the application well in advance so as not to jeopardize the
    trial date was not consistent with a sustained effort to expedite the
    proceedings as required under
Jordan
.

[42]

Moreover, there is no error in the application
    judges approach to and assessment of whether the time in this case markedly
    exceeded the reasonable time requirements of the case. She reasonably
    considered the circumstances that existed in the Superior Court in Toronto
    immediately post-
Jordan
, including the dramatic decline in the number
    of cases that resolved prior to their trial dates. We agree with her
    assessment that this was not a clear case of unreasonable delay.

[43]

Accordingly, we do not give effect to this ground
    of appeal.

C.

Sentence Appeal

[44]

The Crown sought to appeal the sentence,
    asserting that the trial judge did not give effect to an aggravating factor:
    that R.D. was in a position of trust in relation to the complainant. The Crown
    asked this court to find that the sentence was in error and to impose a higher
    sentence of six years in custody.

[45]

The
Criminal Code
provides for a number
    of statutory aggravating circumstances, including that the offender, in
    committing the offence, abused a position of trust or authority in relation to
    the victim: s. 718.2(a)(iii). The onus is on the Crown to establish the
    aggravating factor beyond a reasonable doubt.

[46]

Here, the trial judge concluded that, while R.D.
    as the older brother was in a position to exert physical and sexual domination
    of the complainant in the home and despite the age difference, this did not amount
    to a position of trust
in the particular circumstances
:
at para.
    28
.

[47]

On appeal, the Crown asserted that the evidence
    fully supported the aggravating factor of R.D.s breach of trust in committing
    the offences on his much younger sister in the family home, and that the trial
    judge erred in law in concluding otherwise.

[48]

We do not agree that the trial judges decision
    reveals error. While R.D. was many years older than S.D., and much bigger than
    and physically stronger than S.D., he also had an intellectual disability. The
    evidence was that, until she was 12, S.D. and her younger brother went to a
    babysitters home while their mother was at work and that, after that, S.D.
    took care of her younger brother. There was no evidence of a caregiving
    relationship between R.D. and his younger siblings. The trial judge was not
    prepared to accept, in the circumstances of this case, that a position of trust
    followed from the age difference and R.D. and the complainant being alone in
    the home. In our view, the conclusion that, in the particular circumstances of
    this case, the aggravating factor had not been made out was available to the
    trial judge on the evidence.

[49]

For these reasons, although we granted leave to
    appeal sentence, we dismissed the sentence appeal.

Doherty J.A.

K. van Rensburg J.A.

C.W. Hourigan J.A.