COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Poirier, 2016 ONCA 582

DATE: 20160720

DOCKET: C60530

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Michael Charles Poirier

Appellant

Matthew Gourlay and Christine Mainville, for the
    appellant

Croft Michaelson, Q.C., for the respondent

Heard: April 25, 2016

On appeal from the conviction entered on September 5,
    2014 and the sentence imposed on September 10, 2015 by Justice John Desotti of
    the Superior Court of Justice, sitting without a jury.

Weiler J.A.:

A.

Overview

[1]

The Sarnia police sought and obtained a general search warrant on
    information from five proven reliable confidential informants that the
    appellant, an addict and drug dealer, concealed the drugs he sold in his rectum
    until he made a sale. The general warrant authorized the appellants detention,
    until he has a bowel movement, significant enough to satisfy the Officers [
sic
]
    monitoring  that no packages exists [
sic
] within the rectum of Jeffrey
    Poirier if, upon arrest, the appellant refused to cooperate with the police
    and voluntarily remove the packages of drugs from his rectum.

[2]

The police arrested the appellant and took him to the police
    lockup where he was read the terms of the warrant, strip searched and placed in
    a special dry cell with no running water or usable toilet, meaning that when
    he wanted to go to the bathroom, he would have to tell police, who would then
    take him to a commode so police could monitor his excretions. This is known as
    a bedpan vigil search. The appellant spoke with his counsel.

[3]

In all, the appellant was detained at the police station for a total of
    43 hours before being brought before a justice of the peace. For the first 21
    to 22 hours, the appellant was handcuffed to the bars of his cell above his
    head and he could only reach as low as his chest. During the last half of the
    appellants detention, he was not chained to the bars of his cell. For approximately
    nine hours, he was provided with oven mitts to wear over his hands, which were
    duct taped together. He continued to be handcuffed.

[4]

Within the first 24 hours of his detention, the appellant eliminated
    three packages of drugs from his rectum, containing crystal methamphetamine and
    heroin. After the appellant excreted a fourth and final package of drugs around
    8:30 p.m., and about 30 hours after his initial detention, the police were
    satisfied the appellant had no more drugs in his rectum, and they removed the
    handcuffs and oven mitts from his hands. He was brought before a justice of the
    peace the next morning.

[5]

Over the period of his detention, the appellant underwent severe
    withdrawal symptoms because of his addiction. Except for police supervision, no
    provision was made for his condition to be monitored

[6]

At his trial, the appellant brought a
Charter
application to exclude the drugs from admission into evidence under s. 24(2).
    He alleged that the general warrant was unlawful and that he had been subject
    to arbitrary detention and imprisonment under s. 9, that the manner in which
    the bedpan vigil search was carried out violated his rights under s. 8, and
    that his right to security of the person had been violated under s. 7.

[7]

The trial judge held that the appellants
Charter
rights were
    not violated and that, even if they were, he would not have excluded the
    evidence. He convicted the appellant of possession for the purpose of
    trafficking heroin (1.5 ounces), cocaine (7 grams), and crystal methamphetamine
    (2 ounces). The trial judge also found the appellant guilty of simple
    possession of a small quantity of hydromorphone. He sentenced the appellant to ten
    years imprisonment less credit for presentence custody.

[8]

The appellant appeals both his conviction and sentence.

[9]

In relation to conviction, the appellant makes five submissions:

1)

A general warrant cannot issue for a bedpan vigil search because a
    bedpan vigil search is not a search; it is a detention. In any event any search
    conducted pursuant to a general warrant can only involve a detention of short
    duration.

2)

The terms of the warrant were defective because they purported to authorize
    non-compliance with s. 503 of the
Criminal Code
requiring that an
    accused person be taken before a justice of the peace without unreasonable
    delay and in any event within a period of 24 hours.

3)

The manner in which the warrant was executed was unreasonable and breached
    the appellants rights under s. 8 of the
Charter
.

4)

The appellants detention jeopardized his right to life and security of
    the person under s. 7 of the
Charter
because the monitoring of his
    medical condition was inadequate.

5)

The evidence obtained should have been excluded pursuant to s. 24(2) of
    the
Charter
.

[10]

In response, the Crowns submissions may be summarized as follows:

1)

A bedpan vigil search is a type of search that can be authorized
    pursuant to a general warrant.

2)

While the general warrant could not authorize non-compliance with s. 503
    of the
Criminal Code
,
the first 24 hours of the appellants detention were not an arbitrary detention
    that violated his rights under s. 9 of the
Charter
because the bedpan
    vigil search was also authorized as a search incident to the common law power
    of arrest.

3)

The manner in which the search was executed was reasonable under
    s. 8 of the
Charter
, bearing in mind the need to ensure that the
    appellant did not attempt to extract the drugs from his rectum and consume
    them.

4)

There was no violation of s. 7 of the
Charter
; medical oversight
    of the appellant was not required because this was not a situation where the
    appellant had consumed the drugs.

5)

If there was a violation of the appellants
Charter
rights, the
    breach does not warrant exclusion of the evidence of the drugs which were
    recovered during the first 24 hours of the appellants detention. Only the
    evidence of the drugs obtained after 24 hours should be excluded. As a result,
    the Crown asks that the conviction appeal be dismissed.

[11]

I would allow the conviction appeal. A bedpan vigil search is a search.
    It is a type of search that can be authorized pursuant to a general warrant under
    s. 487.01 of the
Criminal Code,
but, in this case, the warrant was
    invalid because its language purported to authorize detaining the appellant
    indefinitely without bringing him before a justice of the peace, thereby
    violating s. 503 of the
Criminal Code.
The provisions of s. 503 of the
Criminal Code
are mandatory and cannot be overridden by the terms of a
    general warrant.

[12]

The Crowns submission that the search was nevertheless valid as a
    common law search incident to arrest must also be rejected. Quite apart from
    the effect of a breach of s. 503 on the appellants
Charter
rights, a search
    incident to arrest must be executed in a reasonable manner and this was not
    done. The manner in which the search was carried out was not proportionate to
    the crime alleged and the circumstances. It did not have regard for the
    appellants personal dignity as much as possible, or for medical concerns
    specific to the appellant. Accordingly, the trial judge erred in holding that
    there was no violation of the appellants rights under the
Charter
.

[13]

As a result of the trial judges error in concluding that the
    appellants rights under the
Charter
were not breached, no deference
    to his s. 24(2) analysis is warranted. Applying the factors in
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, I would hold that, in the circumstances, the
    administration of justice would be brought into disrepute if the drugs were
    admitted into evidence, and I would exclude the evidence. Therefore, I would
    allow the appeal, set aside the appellants convictions and order an acquittal
    on all charges.

[14]

Although the Crown concedes that the sentence imposed was too long,
    having regard to my conclusion respecting the conviction appeal, the sentence
    appeal is moot.

[15]

The details surrounding the facts, the trial judges reasons, and my
    analysis of the issues follow.

B.

Facts

[16]

Police received information from five confidential informants that the
    appellant was actively dealing in heroin, methamphetamine, and oxycodone in
    Sarnia. These sources all indicated that the appellant stored significant
    quantities of drugs in plastic baggies in his rectum, only briefly removing the
    drugs to make a sale before returning the drugs to his rectum.

[17]

On the basis of this and other information, police sought a general
    warrant under s. 487.01 of the
Code
that would, after police received
    information that the appellant was in possession of a large quantity of heroin
    or crystal methamphetamine, authorize the appellants detention until the drugs
    could be recovered from his rectum.

[18]

The general warrant was granted on November 20, 2012. Its terms read as
    follows:

1. When one of five proven, reliable Confidential
    Sources referred to in this Application provides information that [the
    appellant] is currently in possession of a large supply of Heroin and/or
    Crystal Methamphetamine, Officers of the Sarnia Police will locate [the
    appellant] at the first opportunity outside of a dwelling residence and
    immediately place him under arrest at that time for possession for the purpose
    of trafficking Heroin and/or Crystal Methamphetamine.

2. [The appellant] will be brought to the Sarnia
    Police Station. The warrant will be shown and explained to [the appellant].

3. [The appellant] will be given an opportunity to
    contact his legal counsel.

4. [The appellant] will be taken to a cell where his
    actions will be constantly monitored by officers of the same sex.

5. [The appellant] will be given the opportunity to
    do one of the following:

i) Voluntarily, in the presence of Officers of the
    same sex, remove the package of Heroin and/or Crystal Methamphetamine from his
    rectum. If [the appellant] does voluntarily remove only a single package from
    inside of his rectum, [the appellant] will still be required to provide a bowel
    movement which will satisfy the Officers belief that there are no more drugs
    inside of his rectum. This is due to the information provided by all Sources
    with respect to the amounts of drugs and multiple packages that [the appellant]
    will conceal up inside of his rectum at all times, in order to ensure that all
    of the drugs have been removed or vacated from inside of [the appellant]s
    rectum.

ii) Voluntarily have a bowel movement, in the
    presence of Officers of the same sex, significant enough to dislodge the
    package of Heroin and/or Crystal Methamphetamine from inside of his rectum, or
    enough to satisfy Officers monitoring that no further packages exists within
    his rectum.

6. Should [the appellant] refuse to cooperate with
    the provisions outlined in the terms and conditions found in Appendix A, then
    [the appellant]s detention shall continue until he has a bowel movement,
    significant enough to satisfy the Officers monitoring to remove the package of
    Heroin and/or Crystal Methamphetamine or, to have a bowel movement significant
    enough to satisfy the Officers monitoring that no packages exists within the
    rectum of [the appellant].

[19]

After police received a tip from one of their confidential sources that
    the appellant was in possession of heroin, crystal methamphetamine, cocaine,
    and other substances, and that the drugs were packaged to be inserted in his
    rectum, the warrant was executed on December 5, 2012. The appellant was
    arrested at 1:32 p.m. and transported to the Sarnia police station. He was
    strip searched in an open-door room; the search was inadvertently recorded by a
    video camera. He was read the terms of the warrant.

[20]

Following an attempt to reach counsel, at 2:10 p.m. the appellant was
    placed, alone but under the watch of officers, in a special dry cell that was
    modified to have no running water and a covered sink and toilet bowl. He
    eventually spoke with counsel. In the dry cell, the appellant was handcuffed
    to the bars of the cell such that he could sit or lie down on a bench next to
    the cell door, but only reach as low as his chest.

[21]

The appellant was held in this manner until 11:21 a.m. on December 6, at
    which point police placed oven mitts on his hands, secured with duct tape, to
    provide him with more freedom of movement, but still prevent him from accessing
    his rectal area. While he remained handcuffed, he was no longer chained to the
    bars of the cell.

[22]

Around noon on December 6, the appellant asked to be taken to the
    commode and voluntarily passed two packages, each of which contained 28 grams
    of crystal methamphetamine. The appellant told the officers that that was all
    he was carrying, but there was no sign of a significant bowel movement in the
    commode and only a small amount of watery stool.

[23]

At 1:05 p.m., the appellant voluntarily passed another package, this one
    containing 28 grams of heroin. The appellant again claimed that this was the
    last package, but there was no actual bowel movement in the commode.

[24]

Later that evening, police received information from one of their
    confidential informants that they should recover a package containing brown
    heroin, cocaine, methamphetamine and pills. This information was relayed to the
    appellant.

[25]

At 8:10 p.m., the appellant asked when his handcuffs would be removed
    and police indicated that would happen when the terms of the general warrant
    were met. The appellant then asked to use the commode and produced a
    significant stool. The stool contained a package which held five smaller
    plastic bags containing: (i) 14 grams of heroin; (ii) seven packets of heroin each
    weighing .6 grams; (iii) one gram of cocaine; (iv) eight Dilaudid pills (each
    of which was 8 mg); and (v) two packages of cocaine each weighing 3.5 grams.

[26]

At this point, the police were satisfied that the appellant had no
    further drugs inside him. The appellants handcuffs were removed and he was
    moved out of the dry cell. He was later advised that he would be charged with
    possession of crystal methamphetamine, heroin, cocaine and Dilaudid, all for
    the purpose of trafficking.

[27]

The police explanation for detaining the appellant in the manner they
    did was that they did not want him to be able to remove the drugs from his
    rectum and perhaps swallow them or somehow destroy or conceal them. The door to
    the appellants cell was left open so that officers monitoring the appellant
    could enter quickly if needed, to prevent the destruction of evidence, or to
    check on the appellants medical condition.

C.

Discussion

[28]

As set out below, I am of the view that the general warrant was
    defective, in that it did not account for the provisions of s. 503 of the
Criminal
    Code
. Because the availability of a general warrant for a bedpan vigil
    search has not been previously considered at the appellate level, I will
    address whether a general warrant can issue for a bedpan vigil search,
    including whether it is a search. I will then go on to consider the defect in
    the general warrant in this case. Finally, I will address the Crowns argument
    that the search, even if not authorized by the general warrant, was authorized
    as a valid search incident to arrest.

(1)

A bedpan vigil search is a search that can be authorized by a general
    warrant

[29]

Section 487.01(1) of the
Criminal

Code
enables a judge
    to issue a warrant authorizing a peace officer to:

use any device or investigative technique or
    procedure or do any thing described in the warrant that would, if not
    authorized, constitute an unreasonable search or seizure in respect of a person
    or a persons property if

(a) the judge is satisfied by information on oath
    in writing that there are reasonable grounds to believe that an offence against
    this or any other Act of Parliament has been or will be committed and that
    information concerning the offence will be obtained through the use of the
    technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best
    interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any
    other Act of Parliament that would provide for a warrant, authorization or
    order permitting the technique, procedure or device to be used or the thing to
    be done.

[30]

In this case, I would hold that the requirements of s. 487.01(1) were
    met. The issuing judge was satisfied that there were reasonable grounds to
    believe that the appellant had trafficked drugs; given the issuance of the
    warrant and the harm to society from illicit drug trafficking, it can be
    inferred he was satisfied that the second requirement was also met; finally, no
    other provision in the
Criminal Code
or any other Act of Parliament
    provides for a warrant, authorization or order permitting a bedpan vigil search.

[31]

The appellant argues that, while s. 487.01 authorizes investigative
    methods that would otherwise be deemed to violate a persons protected right
    against unreasonable search and seizure under s. 8 of the
Charter
, it
    does not authorize a detention to perform the investigation. While
    acknowledging that a search and a detention may overlap, the appellant submits
    that anything more than a transitory detention must be specifically authorized
    by the
Criminal Code.
The appellant cites the DNA warrant provisions
    in the
Criminal

Code
, which specifically authorize both the
    taking of a DNA sample and a deprivation of liberty to obtain the sample, by
    way of example.

[32]

The appellant submits that the general warrant was unlawful in that it
    contemplated the appellants detention in circumstances that would violate s. 9
    of the
Charter
,

an independently protected constitutional
    right to be free from unauthorized and unlawful detentions.

[33]

The respondent submits that a general warrant can authorize a search
    together with any detention that is necessarily incident to the search, citing
    this courts implicit recognition of this fact in
R. v. H. (T.G.),
2014
    ONCA 460, 120 O.R. (3d) 581, at paras. 26 and 48.

[34]

I disagree with the appellants submission that a general warrant cannot
    issue for a bedpan vigil search because of the length of the detention
    involved. The common sense principle underlying the jurisprudence is that a general
    warrant to search includes doing what is reasonably necessary to carry out the
    search, and may include detention. The length and nature of detention required must
    take into consideration the nature of the search to be conducted and the
    necessity to conduct that type of search.

[35]

I begin my analysis by noting Austin J.A.s observation in
R. v.
    Noseworthy
(1997), 33 O.R. (3d) 641 (C.A.), at para. 11:

Section 487.01 does not provide simply for seizing things which
    are evidence, contraband or instrumentalities, but rather it provides for the
    doing of any thing which will yield information concerning an offence, thus
    paralleling the breadth of the informational privacy interests protected by s.
    8 of the
Charter
. [Citation omitted.]

[36]

In the same vein, MacPherson J.A. noted in
R. v. Ha
, 2009 ONCA
    340, 96 O.R. (3d) 751, at para. 26, that s. 487.01 speaks to
any
situation in which the police seek judicial
    authority to do something that, absent that authority, would constitute a
    breach of s. 8 of the
Charter
:

Section 487.01 recognizes that Parliament
    cannot anticipate or imagine all investigative means or techniques that are or
    will become available to the police. Section 487.01 focuses not on authorizing
    specific techniques, at least where there is no interference with bodily
    integrity, but rather on whether the public interest in authorizing the
    specific investigative technique in issue is sufficiently strong in the
    circumstances to overcome an individual's constitutional right not to be
    subject to an unreasonable search or seizure.

[37]

It should also be noted that a general warrant can issue
    when temporal flexibility is required:
R. v. TELUS Communications Co.
,
    2013 SCC 16, [2013] 2 S.C.R. 3, at para. 69. As well, a general warrant can
    incorporate a term that leaves the precise timing of the execution of the
    warrant to the police: see
R.

v. Lucas
,

2014
    ONCA 561, 121 O.R. (3d) 303, at paras. 181-82;
R. v. Paris
,

2015
    ABCA 33, 588 A.R. 376, at paras. 19-20.

[38]

The fact that a bedpan vigil search takes time and involves
    detention does not make it any less a search. In
R. v. Greffe
, [1990]
    1 S.C.R. 755, Lamer J. for the majority held, at p. 796, that he was not
    persuaded that there was any immediate necessity to conduct a rectal search of
    the appellant; he observed that if there were reasonable and probable grounds
    to believe the accused was a drug courier, then surely the detention of the
    accused in order to facilitate the recovery of the drugs through the normal
    course of nature would have been reasonable. Similarly, having regard to all
    the circumstances here, the police had reasonable grounds to believe that the
    appellant was a drug dealer who carried the drugs in his rectum, and to conduct
    a passive bedpan vigil search for them.

[39]

In
H. (T.G.)
, after observing that the powers
    granted to the police under a general warrant should be carefully delineated
    and narrowly construed, Doherty J.A. added at paras. 47-48: There is  a
    difference between a narrow construction of the terms of a warrant and a
    reading that would effectively neuter the search authorized by the warrant.
    Apart from measures that would compromise bodily integrity, he held that the
    authority under a general warrant to view a part of a persons body, in that
    case viewing and photographing the accuseds anal area, necessarily includes
    directing the person to position or move his body so as to allow a full
    viewing. The issue of the accuseds detention was not specifically raised at
    trial or on appeal in that case. However, the court recognized that the
    execution of the general warrant resulted in the accuseds detention from the
    time he was taken from his home until he was released.

[40]

Thus, I would hold that the fact that a bedpan vigil search takes time
    and involves the detention of the individual while the search is carried out
    does not make it any less a search.

[41]

Section 487.01(1) is subject to the limitation set out in s. 487.01(2),
    which provides that the section cannot be construed as to permit interference
    with the bodily integrity of any person.

[42]

Bodily integrity is not defined in the
Criminal Code
, nor am
    I aware of any jurisprudence defining the term in the context of s. 487.01(2).
    However, the Supreme Court of Canadas comments on the nature of a bedpan vigil
    search in
R. v. Monney
, [1999] 1 S.C.R. 652, are instructive.

[43]

In
Monney
, at paras. 29 and 47, the Supreme Court held that the
    detention of a person suspected of having drugs on or about his person
    pursuant to s. 98 of the
Customs Act
, R.S.C. 1985, c. 1 (2nd Supp.),

for over five hours until he produced urine or a bowel movement, was a
    search and seizure within the meaning of s. 8 of the
Charter
.

[44]

The court noted that, given the passive nature of a bedpan vigil
    search, it is not an invasive procedure, and is analogous to a category two
    strip search. As to whether a bedpan vigil search interferes with a persons
    bodily integrity, Iacobucci J. stated, at paras. 47-48:

There is no doubt that Canadians expect treatment that
    recognizes a strong sense of modesty concerning bodily functions. A traveller
    who is detained in a drug loo facility and compelled to produce either a
    urine or bowel movement under supervision is subject to an embarrassing
    process. In my view, however, a passive bedpan vigil is not as invasive as a
    body cavity search or medical procedure such as the administration of emetics.
    In this sense, the right to bodily integrity is not to be confused with
    feelings of modesty, notwithstanding their legitimacy.

While I conclude that the compelled production of a urine
    sample or bowel movement is an embarrassing process, it does not interfere with
    a persons bodily integrity, either in terms of an interference with the
    outward manifestation of an individuals identity, as was the central concern
    in [
R. v. Stillman
, [1997] 1
    S.C.R. 607]
, or in relation to the intentional application of
    force, as was relevant in [
R. v. Simmons
, [1988] 2 S.C.R. 495].

[45]

I appreciate that one important distinction between
Monney
and
    this case is that
Monney
involved a border crossing search where the
    state interest in protection of the public is greater and an individuals
    expectation of privacy is lower. Different considerations as to whether the
    search took place in a manner that was reasonable apply. In
R. v. Golden
,
    2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 73-74, the Supreme Court explicitly
    stated that the border context was central to the analysis of whether the strip
    search and bedpan vigil search in
Monney
were reasonable. But importantly,
    the court did not indicate that what constituted a search was different.

Further,
in this case we are not dealing
    with the standard of suspects on reasonable grounds, as was the case in
Monney
,
    but the higher standard of reasonable grounds to believe that an offence has
    been or will be committed.

[46]

Further, the court in
Monney
also pointed out a second
    important distinction that is apt. At para. 44, the court held:

A second important distinction between the circumstances of
    this appeal and those present in
Stillman
is that the customs
    officers, in detaining the respondent in this case and subjecting him to a
    passive "bedpan vigil", were not attempting to collect bodily samples
    containing personal information relating to the respondent.

[47]

I note that in its recent decision in
R. v. Saeed
, 2016 SCC 24,
    at paras. 46-47, Moldaver J., citing
Monney
, confirmed that an
    accuseds privacy interest in his own bodily fluids does not extend to drugs
    contained in his bodily waste. The drugs sought were not bodily samples
    containing personal information related to the accused. The characterization of
    a bedpan vigil search as a search does not change. (See also
R. v. Jen
,
    2014 NWTTC 6, 303 C.R.R. (2d) 143, for an example of a case in which a bedpan
    vigil search was upheld in the domestic context.)

[48]

I would hold that a bedpan vigil search meets the criteria for a general
    warrant set out in s. 487.01(1) and s. 487.01(2) and does not constitute
    interference with bodily integrity.

[49]

To summarize, a bedpan vigil search is a search within the
    meaning of s. 8 of the
Charter
. A general warrant issued under s.
    487.01 can authorize a bedpan vigil search. The fact that detention of the
    individual is necessary to conduct a bedpan vigil search does not, in itself,
    make the warrant invalid. The appellants submission to the contrary does not
    accord with the weight of judicial authority. I would reject this ground of
    appeal.

[50]

I would, however, echo the comments of Doherty J.A. in
H. (T.G.)
,
    at para. 47, that powers granted to the police in any general warrant must be
    carefully delineated and narrowly construed. As I will discuss below, the
    general warrant in this case failed to account for s. 503 of the
Criminal
    Code
, which constitutes a failure to adequately circumscribe the power
    granted to the police. Given this, and the fact that the delineation of police
    powers will be case specific and will vary depending on the circumstances, I
    need not address whether the general warrant in this case adequately delineated
    police powers.

(2)

The general warrant was defective on its face because it did not take s.
    503 of the
Code
into account

[51]

Section 503(1) of the
Criminal Code
requires a peace officer
    who arrests a person, with or without a warrant, to bring the person before a
    justice of the peace, where a justice is available, without unreasonable delay
    or in any event within 24 hours of arrest.

[52]

The Crown rightly concedes that the terms of a general warrant cannot
    override s. 503, which is mandatory. Parliament has not seen fit to provide for
    a warrant authorizing a detention beyond that which is permitted by s. 503,
    and it is not for the courts to invent such authority.

[53]

Further, the Crown acknowledges that the police, in obtaining a general
    warrant to conduct the bedpan vigil search, were seeking to avoid the
    provisions of s. 503 of the
Code
. Const. Vosburg testified he
    thought that because a provincial court judge is a higher authority than a
    justice of the peace, the judge could authorize non-compliance with s. 503.
    When the justice issued the general warrant, the police believed they had
    received an exemption from compliance with s. 503. Const. Vosburg did not seek
    a legal opinion from a Crown attorney as to whether his understanding was
    correct.

[54]

Finally, while no term of the general warrant expressly authorized
    non-compliance with the provisions of s. 503, the warrant does not set out any
    outer limit of time during which the appellant could be detained.

[55]

Indeed, the officers and the trial judge all accepted that the
    appellants detention violated s. 503, but appeared to presume that the general
    warrant could supersede compliance with the section. The trial judge never
    considered whether the warrant could legally do what it purported to do, and
    erred in apparently concluding that the general warrant permitted non-compliance
    by the police with the provisions of s. 503.

[56]

In my view, the general warrant was defective in that it did not provide
    that the appellants detention, until he excreted the drugs in his rectum, was
    subject to the requirement that the appellant be brought before a justice of
    the peace without unreasonable delay pursuant to s. 503.

[57]

Section 503 reflects an important fundamental right in our society, namely,
    the liberty of the subject, which is not to be taken away except in accordance
    with the law:
R. v. Simpson
(1994), 88 C.C.C. (3d) 377 (N.L.C.A.), at
    p. 386-87, revd on other grounds, [1995] 1 S.C.R. 449. In holding that
    the accuseds detention was arbitrary in
R. v. Truchanek
(1984), 39
    C.R. (3d) 137 (B.C. Co. Ct.), Hogarth Co. Ct. J. stated, at pp. 170-71:

[E]ven if the detention was but for hours, even if the
    detention was to obtain evidence of the commission of a serious crime, the
    deliberate illegal refusal to present [the accused] according to law was in my
    view a matter of vital importance for the people of this community, as it opens
    up to the police the idea that any one of us who has the misfortune to be
    arrested could be held for any length of time in order to extract a confession,
    to locate evidence and, for that matter, for any other purpose at their whim.

[58]

Compliance with s. 503 is not simply a matter of form. Nor does it
    matter that the appellant may not likely have been released by a justice of the
    peace while the bedpan vigil search was being conducted. If the police had
    complied with s. 503, the manner in which the appellant continued to be
    detained would have been subject to court supervision. The appellants
    detention would have changed from being a detention pursuant to the execution
    of the general warrant to a court monitored detention that ensured the ongoing protection
    of the appellants
Charter
rights.

[59]

The valid investigative purpose that the bedpan vigil search serves is
    not undermined by compliance with s. 503. As the Crown recognized, it would
    have been open to the police to take the appellant before a justice by
    telephone. Moreover, a justice can remand an arrested individual to prison for
    up to three days at the request of the prosecutor under s. 516 of the
Code
.
    Prison is defined in s. 2 of the
Code
as including a lock-up, and
    therefore the cells at the police station would appear to come within that
    definition. The police could have telephoned a justice of the peace and asked for
    the appellant to be remanded into their custody at the police station for up to
    three days, or until the appellant had expelled the drugs from his rectum,
    whichever was sooner.

[60]

For this reason, I also cannot accept the Crowns submissions that there
    was a violation of s. 503 only after the appellant had been detained for 24
    hours, and consequently, that there was no violation of s. 8 in obtaining the drugs
    excreted prior to 24 hours having elapsed.

[61]

First, section 503 requires that the appellant be brought before a
    justice of the peace without unreasonable delay, not just within 24 hours. Instead,
    24 hours represents the outer limit:
R. v. Storrey
,

[1990] 1
    S.C.R. 241, at p. 256. Given the apparent availability of a telephone
    appearance, the Crowns argument must be rejected.

[62]

Second, the submission creates an artificial divide in what was one
    course of conduct. In
R. v. Pino
, 2016 ONCA 389, released following
    the hearing of this appeal, Laskin J.A. held, at para. 48, that evidence
    obtained prior to a
Charter
infringement may still be considered to
    have been obtained in a manner that violated the
Charter
. Laskin
    J.A. further suggested, at para. 72, that, when considering whether the
    obtained in a manner requirement in s. 24(2) was met in a given case, courts
    should consider, among other things, that [t]he requirement may be met where
    the evidence and the
Charter
breach are part of the same transaction
    or course of conduct and that [t]he connection between the evidence and the
    breach may be causal, temporal, or contextual, or any combination of these
    three connections. Even if the Crown were correct that the appellants rights
    were only breached after 24 hours, there is no doubt on the facts of this case
    that the evidence obtained and the
Charter
breach would be both temporally
    and contextually linked.

[63]

For these reasons, I find that the general warrant was defective and did
    not authorize the search carried out in this case.

(3)

Assuming a bedpan vigil search can be conducted incident to arrest, in
    the circumstances, the search was not carried out reasonably

[64]

The Crown submits that even if the warrant is invalid, the search that
    took place was nonetheless authorized as a search incident to arrest at common
    law. The Crown relies on
R. v. Cornell
, 2010 SCC 31, [2010] 2 S.C.R.
    142, at para. 24, which states: The role of the reviewing court in assessing
    the manner in which a search has been conducted is to appropriately balance the
    rights of suspects with the requirements of safe and effective law enforcement,
    not to become a Monday morning quarterback.

[65]

For a warrantless search incident to arrest to be a lawful search, the
    Crown must show: 1) the appellants arrest was lawful; 2) the search was for a
    valid objective related to the arrest such as the discovery and preservation of
    evidence; and 3) the search was executed in a reasonable manner: see
Cloutier
    v. Langlois
, [1990] 1 S.C.R. 158, at p. 186;
R. v. Fearon
, 2014
    SCC 77, [2014] 3 S.C.R. 621, at para. 27;
Saeed
, at para. 37; see also
R. v. Amare
, 2014 ONSC 4119, at paras. 83-86, per Hill J., affd 2015
    ONCA 673, for a very helpful summary of the governing principles and
    jurisprudence concerning the police authority to search without a warrant
    incident to arrest, as well as the principles governing arrest based upon
    information from confidential informants.

[66]

In this case, the police had reasonable and probable grounds to arrest
    the appellant given the information they had received from their confidential
    informants that the appellant was in possession of a large quantity of drugs. The
    arrest was therefore lawful and the first requirement was met.

[67]

The search was conducted in pursuit of valid purposes connected to the
    arrest, including protecting evidence from destruction at the hands of the
    arrestee, and discovering evidence which could be used at trial: see
R. v. Caslake
,
    [1998] 1 S.C.R. 51, at para. 19;
R. v. Nolet
, 2010 SCC 24, [2010] 1
    S.C.R. 851, at para. 49. The police had reasonable and probable grounds to
    believe the bedpan vigil search would afford evidence of the offence for which
    the appellant was arrested. The police had reliable information from their
    informants that the appellants practice was to secret the drugs he sold in his
    rectum and, importantly, the police had also been informed that the drugs had
    been packaged for insertion into his rectum. The crucial link between the
    location and purpose of the search incident to arrest and the grounds for the
    arrest was therefore present: see
Golden
,

at paras. 98-99;
Fearon
,
    at para. 24.

[68]

I recognize that the jurisprudence holds that the general framework of
    the common law power to search incident to arrest must be modified so that the
    common law search power complies with s. 8 of the
Charter
in light of
    the particular law enforcement and privacy interests at stake in this context:
    see
Fearon
, at paras. 14-15. For this reason and as noted above, the
    police must have reasonable and probable grounds to believe the bedpan vigil
    search will afford evidence of the offence for which the appellant was arrested
    as well as reasonable and probable grounds to arrest: see
Saeed
, at
    paras. 74-78.

[69]

Having regard to the great harm wrought by illicit drugs and the lack of
    privacy interest in waste expelled from the body in allowing nature to take its
    course (see
Monney
, at para. 45) I would be prepared to hold that the second
    requirement of a search incident to arrest is also met.

[70]

However, even accepting that the first two requirements of a search
    incident to arrest are met in this case, the search was not valid because it
    was not conducted in a reasonable manner.

[71]

In
Cloutier
, LHeureux-Dubé J. dealt with
    whether a frisk search as incidental to the common law power to arrest without
    a warrant was lawful. After holding, at para. 62, that the purpose of the
    search must be related to the objectives of the proper administration of
    justice and not to intimidate, ridicule or pressure the accused in order to
    obtain admissions, LHeureux-Dubé J. held:
The search must not be
    conducted in an abusive fashion, and in particular the use of physical or
    psychological constraint should be proportionate to the objective sought and
    the other circumstances of the situation.

[72]

In
R. v. McGuffie
, 2016 ONCA 365, at para. 49, Doherty J.A.
    stated:

Section 8, like s. 9, is reflective of an individual's right to
    be left alone by the state absent justification for state interference with the
    individual. The constitutional protection in s. 8 rests on the fundamental
    belief that privacy, in its various manifestations, is an essential
    precondition to individual liberty and security of the person. State intrusion
    upon privacy must be reasonable; that is, any law authorizing an intrusion must
    be reasonable and the manner in which the intrusion is effected must be
    reasonable. [Citations removed.]

[73]

I begin first with the strip search of the appellant. Although it was
    reasonable to carry out the search on the basis of the information received by
    police that the appellant may have concealed drugs within or on his person, the
    search was carried out in a manner that violated the appellants right to
    privacy. It was not conducted in a private area, but an area where one could
    see into the room; it was inadvertently video recorded. Rather than proceeding
    incrementally so as to ensure that the appellant was not completely undressed
    at any one time, the appellant was completely naked for a period of time: see
Golden
,
    at para. 101 (conditions 7 and 8).

[74]

The bedpan vigil search of the appellant was also carried out in an unreasonable
    way. The appellant was handcuffed to the bars of his cell using three sets of
    handcuffs that were linked together for the first 21 to 22 hours of his
    detention. The handcuffs allowed the appellant to sit or lie on a steel bench
    or roll over, but prevented him from moving his hands below his chest.

[75]

At the very least, the chaining of the appellant to the bars of his cell
    does not meet the requirement that the use of physical constraint be
    proportionate to the objective, or strike an appropriate balance between the
    need for effective law enforcement and the appellants interests in privacy and
    dignity. A lesser restriction (oven mitts duct taped to the appellants hands
    while handcuffed), proved equally effective at preventing the appellant from
    removing or consuming the drugs, and allowed the appellant greater freedom of
    movement. This restraint was also less demeaning to the appellants dignity.

[76]

Moreover, the appellant was lodged in his cell in long johns and only
    given his track pants to wear overtop after a day had gone by. He had no proper
    bed, and, initially, no bedding. Only after he complained of being cold, likely
    due to his withdrawal symptoms, was he given a blanket.

[77]

A further factor going to the unreasonableness of the search is the
    police indifference to the appellants right to security of the person, one of
    the three protections afforded by s. 7 of the
Charter
. The right to security
    of the person is engaged when state action has the likely effect of impairing a
    persons health: see
Monney
,

at para. 55. It takes on an
    especially important role where investigative techniques employed by the
    police, such as a bedpan vigil search, are conducted in a manner that has the
    potential to endanger a detainees health.

[78]

The right to security of the person also includes
    protection of the psychological integrity of an individual. That is, the right
    protects against serious state-imposed psychological stress: see
Blencoe
    v.
British Columbia
(Human Rights
    Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307, at
    para. 57.

[79]

Two aspects of this case raise concerns. First the police were aware
    that the appellant was an addict. From Const. Vosburgs casual conversation
    with a doctor, he knew that the appellants withdrawal symptoms would be like getting
    the flu times ten, and that Tylenol could provide some relief. Yet even
    knowing this, and as the appellant began to show symptoms of withdrawal, the
    police made no provision for measures to ease the appellants discomfort such
    as having a doctor assess him for prescription medication, or provide for
    medical administration of ordinary Tylenol. There is no question that the
    police simply failed to minimize the appellants discomfort during his
    detention.

[80]

Second, during the initial phase of the investigation, the police
    believed that the appellant potentially had heroin and crystal methamphetamine,
    in fairly large quantities, stored in his rectum. Const. Vosburg testified he
    was not overly concerned that the packages in the appellants rectum might rupture,
    given the information that this was where the appellant regularly stored the
    drugs he sold, and the fact the appellant seemed to display no concern for
    himself. However, this does not take into consideration the prolonged period of
    time over which the drugs could remain in the appellants rectum if he were
    unwilling to eliminate them.

[81]

The only medical plan the police had was that if the officers observed
    signs of medical distress they would call an ambulance or take the appellant
    directly to the hospital. They did not know, however, what risks to the
    appellants health would arise if drugs from a packet were to break apart in
    his rectum, how long it would take before any signs of medical distress would
    arise, how long it would take to get him to the hospital or to obtain an
    ambulance, or whether that time was likely to be sufficient to ensure that
    serious health repercussions did not ensue.

[82]

In my opinion, the police have a duty to take reasonable steps to ensure
    that the accuseds safety and security of the person are not compromised as a
    result of the nature of the search. Reasonable steps can only be taken if the
    police inform themselves as to the risks of the procedure they are carrying
    out.

[83]

I find support for my position in the jurisprudence. In
Chaoulli
    v. Quebec (Attorney General)
, 2005 SCC 35, [2005] 1 S.C.R. 791, at para.
    118, McLachlin C.J. and Major J. held that delays in obtaining medical treatment
    which affect patients physically and psychologically trigger the protection of
    s. 7 of the
Charter
 since delays in medical treatment can result in
    serious physical pain, or even death.

[84]

Further,
Monney
stands for the proposition that, when
    confronted with a person in custody who has ingested drugs, state authorities
    need to take reasonable steps to ensure that persons safety and security of
    the person. However, in
Monney
, the Supreme Court considered the
    threat to the appellants security of the person to be self-induced because he
    was told to advise the customs officers if he felt unwell or wished to see a
    doctor and he did not do so. In this case, it appears the appellant was not
    so-advised. In any event, the appellant testified that he asked the police to
    see a doctor but no effort was made to comply with his request. The trial judge
    made no finding on the point.

[85]

No evidence was before the court as to any meaningful distinction
    between the health risks presented by a person who has ingested drugs, and a
    situation like this where the appellant was believed to be storing significant
    quantities of a variety of drugs inside his rectum.

[86]

Having regard to the evolution of s. 7 jurisprudence, and the preplanned
    circumstances of the appellants detention, the failure of the police to ensure
    that serious repercussions to the appellants health would not ensue from his
    prolonged detention, or from any possible delay in obtaining medical treatment
    in the event of an emergency, is an aggravating circumstance that makes the
    manner of the search and seizure even more unreasonable.

[87]

The trial judge erred in holding that the police conducted the search in
    an appropriate manner. While the trial judge rightly acknowledged that the unusual
    method of concealing drugs by the appellant warranted the use of a dry cell
    and watchful observation by the police for medical distress, in addition to
    noting the fact that the appellant was given cigarette breaks, food and water, the
    trial judge did not consider whether the physical restraint of the appellant
    was proportionate and whether it interfered with his privacy and dignity as
    little as possible. Nor did the trial judge consider the serious deficiency in
    police efforts to understand and plan for the medical risks to the appellant.

[88]

I conclude that the manner in which the search was carried out was a
    flagrant breach of the appellants rights under s. 8 and aggravated by the
    police indifference to his rights under s. 7.

[89]

Finally, in my view, the failure by the police to bring the appellant
    before a justice of the peace without delay constitutes an arbitrary detention
    contrary to s. 9 of the
Charter.
As

the Court of Appeal
    for Newfoundland and Labrador stated in
Simpson
,

a violation
    of s. 503 must be viewed as an arbitrary detention whether the failure to
    comply with s. 503 was deliberate or simply neglectful. I agree with that
    conclusion.

(4)

The evidence obtained should have been excluded pursuant to
    s. 24(2) of the
Charter

[90]

An application to exclude evidence under s. 24(2) of the
Charter
requires the court to assess and balance the effect of admitting evidence obtained
    in a manner that violates
Charter
-protected rights on societys
    confidence in the justice system 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 its merits: see
Grant
, at para. 71. Under the
Grant
analysis, the first two factors pull towards the exclusion of the evidence,
    while the third pulls towards its admission; in practical terms, the third
    inquiry is important when one, but not both, of the first two inquiries pull
    strongly towards the exclusion of the evidence: see
McGuffie
, at
    paras. 62-63.

[91]

Because the trial judge erred in principle in not recognizing the
    cumulative effect of the
Charter
breaches that took place, no
    deference is owed to his analysis under s. 24(2):
McGuffie
, at
    para. 64.

[92]

The Crown submits that the seriousness of the
Charter
-infringing
    conduct in this case is attenuated by the good faith of the police who believed
    that the warrant exempted them from the requirement to bring the appellant
    before a justice of the peace under s. 503. In
Grant
,

at
    para. 75, McLachlin C.J. and Charron J. acknowledged that good faith on the
    part of the police can reduce the need for the court to disassociate itself
    from the police conduct. However, they also identified what good faith conduct
    is not:

[I]gnorance of
Charter
standards must not be rewarded
    or encouraged and negligence or wilful blindness cannot be equated with good
    faith. Wilful or flagrant disregard of the
Charter
by those very
    persons who are charged with upholding the right in question may require that
    the court dissociate itself from such conduct. It follows that deliberate
    police conduct in violation of established
Charter
standards tends to
    support exclusion of the evidence. [Citations omitted.]

[93]

While I accept that the police conduct in this case is somewhat
    mitigated by their efforts to seek judicial authorization, it does not excuse
    the overall conduct of the police in this case. The failure to bring the
    appellant before a justice of the peace without delay is only one part of the
    picture. As discussed, that breach was compounded by a demonstrated disregard
    for the appellant`s privacy, dignity, health and safety. In these
    circumstances, I do not accept that the officers were acting in good faith.

[94]

With respect to the second requirement under
Grant
,

the
    impact of the
Charter
breaches in this case was not merely fleeting
    and technical; it was prolonged and serious.

[95]

In this case, the first two
Grant
factors militate strongly in
    favour of excluding the evidence. Although the offences were serious, and the
    evidence obtained was real evidence, consideration of this third factor does
    not outweigh the first two, and I would exclude the drug evidence under s.
    24(2).

D.

Disposition

[96]

Given the exclusion of evidence under s. 24(2), I would accordingly set
    aside the appellants convictions, and order that he be acquitted on all
    charges.

Released: (K.M.W.) July 20, 2016

K.M Weiler J.A.

I agree Janet
    Simmons J.A.

I agree G.J. Epstein
    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., 2016 ONCA 574

DATE: 20160719

DOCKET: C59486

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.D.

Appellant

Brad Greenshields, for the appellant

Katherine Beaudoin, for the respondent

Heard: March 8, 2016

On appeal from the convictions entered on May 29, 2014
    and the sentence imposed on September 26, 2014 by Justice
Martin
    S.
James of the Superior Court of Justice, sitting without a jury.

Laskin
    J.A.:

A.

Overview

[1]

The appellant, R.D., appeals convictions for the sexual abuse of his
    step-daughter, K.Y.

[2]

K.Y. was born in 1993. She grew up in rural Ontario with her mother, the
    appellant, two older step-sisters, and two younger half-sisters. She testified
    that for a ten-year period beginning around 2002, when she was nine years old,
    the appellant sexually abused her once or twice a year, if that. Typically he
    came into her bedroom in the morning while she was still sleeping and no one
    was home. He lay down in bed beside her, fondled her vagina, and then had unprotected
    sexual intercourse with her, following which he generally went into the
    bathroom to ejaculate. She said that the last incident of sexual abuse occurred
    in May 2012, when she was 18, about a year after she had graduated from high
    school. She left home five months later and soon after reported the abuse to
    the police.

[3]

The appellant testified and denied that he had ever sexually abused K.Y.
    One of K.Y.s older step-sisters, A.D., also testified for the defence.

[4]

The trial judge convicted the appellant of sexual interference, sexual
    exploitation, and sexual assault, and sentenced him to four years and ten
    months in the penitentiary. After finding K.Y.s testimony to be credible and
    reliable, the trial judge concluded: Having accepted the evidence of the
    complainant, as I do, having found her testimony to be credible and reliable, I
    am prepared to flatly reject the conflicting testimony of the accused even
    though there are no obvious flaws with it.

[5]

The appellant appeals only his convictions, having abandoned his
    sentence appeal. He raises three issues:

(1)

In rejecting the appellants evidence because he accepted the
    complainants evidence, did the trial judge erroneously rely on this courts
    judgment in
R. v. J.J.R.D.
(2006),
    218 O.A.C. 37 (C.A.)
?

(2)

Did the trial judge misapply the burden of proof?

(3)

Did the trial judge err by holding that K.Y.s prior out-of-court
    statements to her mother were inadmissible?

B.

The Issues

(1)

Did the trial
    judge erroneously rely on this courts judgment in

R. v. J.J.R.D
.
?

(a)

Background

[6]

J.J.R.D.
is an important case about the sufficiency of a trial
    judges reasons. It has its origins in the Supreme Court of Canadas landmark
    decision in
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, where the
    Court first said that trial judges in criminal proceedings have a duty to give
    sufficient reasons for their decisions. Sufficiency is not a stand-alone ground
    of appeal but has to be assessed in the light of the purposes of reasons. Two
    important purposes are explaining to accused persons why they have been
    convicted and permitting effective appellate review:
Sheppard
, at paras.
    24-25. An appellate court asks: do the reasons tell the parties why the accused
    was convicted, and do they enable us to understand the basis for the trial
    judges decision?

[7]

Following
Sheppard
, provincial appellate courts appeared to
    disagree on whether these two purposes could be met by a trial judges
    conclusory rejection of an accuseds evidence. In this court the issue was
    resolved by Doherty J.A.s judgment in
J.J.R.D
. He wrote, at para. 53:

The trial judge rejected totally the appellants denial because
    stacked beside A.D.s evidence and the evidence concerning the diary, the
    appellants evidence, despite the absence of any obvious flaws in it, did not
    leave the trial judge with a reasonable doubt. An outright rejection of an
    accuseds evidence based on a considered and reasoned acceptance beyond a
    reasonable doubt of the truth of conflicting credible evidence is as much an
    explanation for the rejection of an accuseds evidence as is a rejection based
    on a problem identified with the way the accused testified or the substance of
    the accuseds evidence.

(b)

The trial judges
    reasons

[8]

The trial judge relied on
J.J.R.D.
in assessing the credibility
    of K.Y. and the appellant. He first framed the issue he had to decide as follows:

The issue in this case is whether the Court can reject the
    evidence of the accused and find him guilty solely on the basis of the Courts
    acceptance of the complainants evidence.

[9]

Next, the trial judge considered the appellants evidence. He found no obvious
    flaws in it:

My assessment of the evidence of the accused is that it is
    neither, impressive or unimpressive. His demeanour while testifying was
    unremarkable. His answers to the cross-examiners questions in substance and in
    tone did not appear evasive. He did not contradict himself. I have also
    considered that, his evidence being a general denial of the complainants
    allegations must necessarily lack details. There was no obvious flaw or shortcomings
    in his testimony.

[10]

The trial judge then extensively canvassed K.Y.s evidence. He found her
    evidence to be completely credible:

At the same time, as for the complainant, I found her to be
    completely credible. She gave her evidence in a manner that sounded like she
    was recalling real incidents. She acknowledged that she remained outwardly
    friendly to the accused. She gave him hugs at appropriate times at family
    gatherings. She asked him for rides on occasion. She said she wasnt afraid to
    go with him in the car because he had never assaulted her in the car.

[11]

The trial judge considered various discrepancies in K.Y.s evidence
    but held that they did not undermine her core allegations of sexual abuse:

Despite these questions and answers, the complainant was
    unshaken in her testimony respecting the particulars of the assaults and the
    circumstances in which they occurred.

The complainant did not exaggerate or engage in hyperbole. She
    did not hesitate when giving her answers. She answered questions directly and
    was not evasive or defensive. She did not challenge counsel when pressed during
    cross-examination. I found her to be a thoroughly credible witness who gave
    truthful and reliable evidence.

[12]

The trial judge accepted that he could not reject the accuseds evidence
    by looking only at his testimony.  He said  correctly  that he was required
    to consider all the evidence to determine whether there was a reasonable doubt
    about the accuseds guilt. He concluded in words drawn from
J.J.R.D.
,
    but which the appellant now challenges on appeal:

Standing alone the evidence of the accused cannot support a
    finding of guilt, but when weighed against the totality of the evidence and in
    particular the evidence of the complainant, I am not left with a reasonable
    doubt regarding the guilt of the accused.

Having accepted the evidence of the complainant, as I do,
    having found her testimony to be credible and reliable, I am prepared to flatty
    reject the conflicting testimony of the accused even though there are no
    obvious flaws with it.

(c)

Discussion

[13]

The appellant submits that the trial judge erred by finding him guilty
    solely because he accepted that K.Y.s evidence was credible. Indeed, the
    appellant contends the trial judge set out the issue he had to resolve using
    precisely that incorrect framework. Doing so ignored the reasonable doubt
    standard. Instead, the trial judge had to consider whether, based on the
    evidence as a whole, he could accept K.Y.s evidence beyond a reasonable doubt
    even if he did not accept the appellants evidence. The appellant relies on
    this courts decision in
R. v. O.M.
, 2014 ONCA 503, 318 O.A.C. 390, which
    he says qualifies or at least clarifies
J.J.R.D
.

[14]

I do not agree with the appellants submission. In my view,
J.J.R.D.
and
O.M.
are entirely consistent, and the trial judges reasons are
    faithful to them.

[15]

J.J.R.D
. and
O.M
. make two important and related
    points: one about the sufficiency of a trial judges reasons; the other about
    the burden of proof. For convenience, I repeat para. 53 of Doherty J.A.s
    reasons in
J.J.R.D.
:

The trial judges analysis of the evidence demonstrates the
    route he took to his verdict and permits effective appellate review. The trial
    judge rejected totally the appellants denial because stacked beside A.D.s
    evidence and the evidence concerning the diary, the appellants evidence,
    despite the absence of any obvious flaws in it, did not leave the trial judge
    with a reasonable doubt. An outright rejection of an accuseds evidence based
    on a considered and reasoned acceptance beyond a reasonable doubt of the truth
    of conflicting credible evidence is as much an explanation for the rejection of
    an accuseds evidence as is a rejection based on a problem identified with the
    way the accused testified or the substance of the accuseds evidence.

[16]

At para. 42 of
O.M.
, which the appellant relies on, my
    colleague Cronk J.A. cautioned:

It is elementary that a complainants credibility cannot be
    established by assuming the accuseds guilt.
Nor can an
    accuseds evidence be rejected simply because the evidence of a complainant is
    accepted
.
W.(D.)
precludes this either/or approach to the
    assessment of credibility. Instead, under the third step of
W.(D.)
, the
    trial judge must ask whether, although she may not believe the accuseds
    evidence, a reasonable doubt arises on the whole of the evidence that she does
    accept. [Appellants emphasis.]

[17]

Three paragraphs later, Cronk J.A. quotes and relies on para. 53 of
J.J.R.D.
:

The trial judge did not err by factoring the strength of the
    Crowns case into his credibility and reliability analyses and by relying on it
    as one basis for rejecting the appellants denials of the alleged assaults.
    This court has held that an accuseds evidence may be rejected based on a
    considered and reasoned acceptance beyond a reasonable doubt of the truth of
    the conflicting credible evidence of the prosecutions witnesses. In
R. v.
    J.J.R.D.
, at para. 53, Doherty J.A. said

[18]

The sufficiency point: the bare rejection of an accuseds evidence will
    meet the two important purposes for giving sufficient reasons  explaining why
    the accused was convicted, and permitting effective appellate review  provided
    that the bare rejection is based on a considered and reasoned acceptance of a
    complainants evidence. Implicitly, the bare acceptance of a complainants
    evidence and the bare denial of an accuseds evidence (I accept the complainants
    evidence; therefore I reject the accuseds evidence) are unlikely to amount to
    sufficient reasons. A trial judge who relies on the formulation in
J.J.R.D.
should at least give grounds for accepting a complainants evidence.

[19]

In
J.J.R.D.
,
Doherty J.A. placed his point about the sufficiency of reasons in the context
    of the evidence as a whole and the reasonable doubt standard. The accuseds
    denial in that case, when stacked beside the complainants evidence and her
    diary entries, did not leave the trial judge with a reasonable doubt. And so
    Doherty J.A. explained that an outright rejection of an accuseds evidence
    may be based on a considered and reasoned acceptance
beyond
    a reasonable doubt
of the truth of conflicting credible evidence
    (emphasis added). In doing so, he addressed the need for the trial judge to be
    convinced that the conflicting credible evidence established the accuseds
    guilt beyond a reasonable doubt.

[20]

The burden of proof point: a trial judge who says only I reject the
    accuseds evidence because I accept the complainants evidence risks being
    held by an appellate court to have chosen which of the two parties to believe
    and failed to determine whether, on all the evidence, the accuseds guilt had
    been proved beyond a reasonable doubt. That risk is what Cronk J.A. cautioned
    about in
O.M.
But, as
O.M.
also shows, a trial judge can still reject an
    accuseds evidence because either the complainants evidence or other evidence
    establishes the accuseds guilt beyond a reasonable doubt. Thus,
J.J.R.D.
and
O.M.
are entirely consistent.

[21]

In the case before us, the trial judges reasons were sufficient. He did
    summarily reject the appellants evidence though it had no obvious flaw in it.
    But he did so based on a considered and reasoned acceptance of K.Y.s
    evidence. He discussed her evidence at length, including the discrepancies in
    it, and gave several grounds for why he found her evidence to be both credible and
    reliable.

[22]

The trial judge also properly applied the burden of proof. In his
    initial formulation of the question, he did use language similar to that
    cautioned against in
O.M.
But the rest of his reasons show he properly
    applied the reasonable doubt standard. He expressly instructed himself that he
    must avoid an either/or approach in choosing between competing versions of
    what actually happened. He said that [g]uilt or innocence is to be determined
    by considering all of the evidence. And then he found:

Standing alone the evidence of the accused cannot support a
    finding of guilt, but when weighed against the totality of the evidence and in
    particular the evidence of the complainant, I am not left with a reasonable
    doubt regarding the guilt of the accused.

[23]

That finding, in substance, is the same finding made by the trial judge
    in
J.J.R.D.
and upheld by this court. I would not give effect to the
    appellants submission on the first issue.

(2)

Did the trial
    judge misapply the burden of proof?

[24]

The appellant submits the trial judge misapplied the burden of proof in
    two ways: in finding K.Y.s evidence credible, the trial judge overemphasized
    her demeanour; and he failed to consider whether the exculpatory evidence of
    K.Y.s older sister A.D., who testified for the defence, raised a reasonable
    doubt. I do not agree with either branch of the appellants submission.

[25]

On the first branch, in assessing K.Y.s evidence and finding it
    credible, the trial judge did say she sounded authentic and she sounded like
    she was recalling real events. But these comments were relatively minor points
    in his credibility analysis. Despite academic and judicial commentary
    suggesting demeanour evidence is unreliable, under Canadian jurisprudence it
    remains relevant to the assessment of a witnesss credibility: see, for
    example,
R. v. N.S.
, 2012 SCC 72, [2012] 3 S.C.R. 726; and
O.M.
,
    at para. 34. As long as a trial judge does not unduly rely on demeanour to make
    a credibility finding, the trial judge will not fall into error. Here, the
    trial judge did not unduly rely on K.Y.s demeanour in finding her evidence
    credible.

[26]

On the second branch, A.D. is the appellants daughter from a previous
    marriage. She was 26 when she testified at trial. She gave evidence about a
    Skype conversation she had with K.Y. in September or October of 2012. She
    claimed K.Y. told her she had lost her virginity to J.M., who later became
    K.Y.s fiancé. According to A.D., K.Y. said that when she had sex with J.M., it
    was the first time she had had sex with anyone.

[27]

K.Y. acknowledged the Skype conversation and that she had sex with J.M.
    But she denied telling A.D. she was previously a virgin. At trial, she said the
    appellant was the first person she had sex with.

[28]

If,

after considering all of the
    evidence, the trial judge had accepted A.D.s version of the Skype conversation
    or found that it raised a reasonable doubt about whether K.Y. and the appellant
    had ever had sex, then the appellant would be entitled to an acquittal. But the
    trial judge rejected A.D.s evidence. He said:

I do not accept the evidence of A.D. on this issue. Ms. D. is
    clearly aligned with her father, the accused. At best, I conclude that she may
    have misinterpreted what she was told by the complainant.

[29]

The trial judge had good reasons for not accepting A.D.s evidence. A.D.
    admitted she resented K.Y. for breaking up the family and having the appellant
    arrested. Then she admitted writing offensive comments about K.Y. and K.Y.s
    mother on her Facebook page. The trial judge did not err because he did not
    expressly advert to whether A.D.s evidence raised a reasonable doubt about the
    appellants guilt. That it did not raise a reasonable doubt was evident from
    the trial judges rejection of A.D.s evidence and his acceptance of K.Y.s
    testimony.

[30]

I would not give effect to the appellants submissions on the second
    issue.

(3)

Did the trial
    judge err by holding that K.Y.s prior out-of-court statements to her mother
    were inadmissible?

[31]

For ten years, K.Y. did not tell anyone in authority outside the home that
    the appellant had sexually abused her. She testified she was afraid that if she
    disclosed the abuse the family would split up and she would go into foster
    care.

[32]

K.Y. did, however, disclose the abuse to her mother. K.Y. testified that
    when she was twelve or thirteen, her mother told her for the first time that
    the appellant was not her biological father. K.Y. responded that the appellant
    had touched her inappropriately, and she pointed to her vagina. K.Y.s mother
    said they would talk later and, when they did, her mother questioned K.Y. about
    what had happened. K.Y. became uncomfortable and told her mother it was just a
    bad dream.

[33]

After the initial conversations, K.Y.s mother again asked her daughter
    whether the appellant had really sexually abused her. K.Y. testified at trial
    that she lied to her mother and said he had not; it was just a bad dream.

[34]

The trial judge heard this evidence about K.Y.s statements to her
    mother and ruled it inadmissible. He took the view that K.Y.s out-of-court
    statements to her mother were prior consistent statements, which could not be
    used to bolster her trial testimony, and were not needed to rebut a claim of
    recent fabrication.

[35]

The appellant acknowledges that as K.Y. did not adopt at trial her
    previous denials of the abuse, these denials could not be used for the truth of
    their contents. But the appellant submits that the trial judge erred in ruling
    K.Y.s previous statements inadmissible on two grounds. First, they were
    admissible as part of the narrative as they put what allegedly occurred in context.
    Second, K.Y.s previous denials of abuse were not prior consistent statements.
    They were prior inconsistent statements. Therefore, though not admissible for
    their truth, they were relevant and admissible to assess the reliability of her
    trial testimony:
R. v. A.M.
, 2014 ONCA 769, 123 O.R. (3d) 536, at
    paras. 12-13.

[36]

On the appellants first ground, I agree K.Y.s previous statements to
    her mother were admissible as part of the narrative and sequence of what
    occurred. Nothing turns on this apparent error of the trial judge. He heard the
    evidence and considered it in his reasons.

[37]

On the appellants second ground, K.Y.s previous statements to her
    mother had both consistent and inconsistent aspects. Her initial disclosure of
    sexual abuse was a consistent statement. Her later denials or recantations were
    inconsistent statements. As the appellant submits, these inconsistent
    statements were relevant to assessing the reliability of K.Y.s evidence at
    trial.

[38]

Still, though the trial judge ruled the statements inadmissible, later
    in his reasons he considered K.Y.s denials. He accepted her explanation for
    why she insisted the appellants abuse was part of a bad dream:

There was an air of resignation in her description of the
    assaults. He was the only father she had ever known. She was afraid the
    disclosure would rupture their family. She was afraid that if she told someone
    what was happening, she may have to live somewhere else or go into foster care.
    When asked by a staff member at her school, if something was going on at home,
    she denied any problems. Her mother was not employed, so there was a lack of
    economic independence. Her family lived in the country, there was nowhere to go
    except when she got rides to go into town.

After she moved to Belleville, the complainant acknowledged
    that she engaged in Facebook communications and dialogue with the accused. These
    communications were put in evidence at the trial and they had a friendly and
    familiar tone to them.

At the same time, there was a sense of passivity and acceptance
    of her lot in life, in the way the complainant gave her evidence. Her reason
    for not disclosing when she did, after learning that her younger sister would
    be spending more time at home alone with the accused, sounded authentic. She
    seemed prepared to accept without complaint what had happened to her, but she
    wasnt prepared to risk having her sister assaulted as well.

[39]

The trial judge concluded that K.Y.s refusal to disclose the abuse did
    not detract from the credibility or reliability of her evidence. On the record
    before him, the trial judge was entitled to come to that conclusion. I would not
    give effect to the appellants submission on the third issue.

C.

Conclusion

[40]

For the above reasons I would dismiss the appeal. At bottom, the
    appellant challenges the trial judges credibility findings. There is no basis
    for this court to interfere with those findings.

Released: July 19, 2016 (J.L.)

John Laskin J.A.

I agree. E.A. Cronk J.A.

I agree. B.W. Miller 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.

6.

(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

7.

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

8.

(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. St. Roch, 2016 ONCA 530

DATE: 20160704

DOCKET: C59637

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christian St. Roch

Appellant

Joseph Di Luca, for the appellant

Jessica Smith Joy, for the respondent

Heard and released orally: June 22, 2016

On appeal from the conviction entered on June 13, 2014 by
    Justice Hugh K. OConnell of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault by a judge sitting without
    a jury.  He appeals on three grounds:

1.       The trial judge erred in
    finding that there was           no air of reality to the defence of honest but
              mistaken belief in consent;

2.       The trial judge misapprehended
    the evidence           of when the complainant said: this is not going to       happen,
    and;

3.       The trial
    judge erred in his reliance on the complainants demeanour in assessing her
    credibility.

We would not give effect to these grounds.

[2]

The trial judge gave lengthy and detailed reasons for his decision. He instructed
    himself on the rule in
R. v.
W. (D.)
, [1991] 1 S.C.R. 742,

and
on how to assess the credibility of the witnesses. He
    specifically found that he believed the complainant and disbelieved the
    appellant.  It was not an
R. v.
D. (J.J.R.)
(2006),
215 CCC (3d)
    252,
type of case where he disbelieved the appellant because he believed
    the complainant.

[3]

On the first issue, the trial judge was alive to the issue of honest but
    mistaken belief in consent and specifically found that the appellant knew that
    the complainant was not consenting to intercourse and oral sex on the Saturday
    morning.  The appellant testified that they had had consensual sex the night
    before.  The trial judge rejected that assertion as completely untrue.  Had that
    story been accepted by the trial judge, it may have been a basis to consider
    the defence as plausible in respect of sex on the Saturday morning.  However,
    having rejected that story as untrue, that undermined the basis for the
    appellant to believe that there was consent on Saturday morning when there was
    not.

[4]

Counsel submits that on the complaints own evidence of events on the
    Saturday morning, one can construct a version of the events that gives an air
    of reality to the defence of honest but mistaken belief in consent by the
    appellant.  We agree with the Crown that the differences in the two versions
    given by the complainant and the appellant, particularly of the actual forced
    intercourse on Saturday morning, belie any such narrative.  The trial judge
    found that the appellant knew that the complainant was not consenting.  That
    finding forecloses this defence.

[5]

On the second issue, the Crown acknowledges the misstatement by the
    trial judge regarding the complainants statement to the appellant that it is
    just not going to happen, as having occurred Friday night and not on the
    Saturday.  We agree with the Crown that that error did not impact the trial
    judges conclusion as he did not refer to it in his analysis of consent or in
    his analysis of honest but mistaken belief in consent.

[6]

The third alleged error is that the trial judge over-emphasized the
    complainants post-event demeanor.  We agree with the Crown that the trial
    judge was entitled to rely on this evidence in his assessment of her
    credibility.  Furthermore, he did not use her demeanor to decide whether there
    was an air of reality to the defence of honest but mistaken belief in consent
    by the appellant.

[7]

For the above reasons, the appeal is dismissed.

Doherty J.A.

K. Feldman J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stacey, 2016 ONCA 537

DATE: 20160706

DOCKET: C61653

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marion Stacey

Appellant

Ian McLean, for the appellant

Katherine Beaudoin, for the respondent

Heard and released orally: July 4, 2016

On appeal from the decision of the Summary Convictions
    Appeal Court dated January 8, 2016 by Justice M. Gregory Ellies of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on June 26,
    2015 by Justice Lynda J. Rogers of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of care or control
    of a vehicle while impaired. Her first appeal was dismissed by a summary
    conviction appeal judge. She now seeks leave to appeal to this court. As this
    court held in
R. v. R.R.
, 2008 ONCA 497, leave should be granted sparingly in these
    circumstances, as an exception to the general rule. Leave may be granted where
    the merits of the proposed question of law are arguable, even if not strong and
    the proposed question of law has significance beyond the four corners of the
    case; and where the summary conviction appeal judge has made a clear error,
    even if it cannot be said that the error has significance to the administration
    of justice beyond the particular case.

[2]

This appeal has no apparent merit. The trial
    judges factual finding that the appellants conduct created a realistic risk
    of danger to persons or property was amply supported by the evidence. According
    to the appellants own evidence, she entered her vehicle with the intention of
    driving it. She drank alcohol while in the drivers seat, with the keys in the
    ignition and the car turned on. A passerby found her at the wheel and
    unresponsive. The appellant has not identified any error of law on the part of
    the summary conviction appeal judge. This appeal has no significance to the
    administration of justice.

[3]

Leave to appeal is denied.

Paul Rouleau J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thornton, 2016 ONCA 562

DATE: 20160712

DOCKET: C59038

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Vincent Thornton

Appellant

Paul Vincent Thornton, acting in person

Louis P. Strezos and Peter Hamm,
amicus curaie

Eric Siebenmorgen, for the respondent

Heard: July 6, 2016

On appeal from the conviction entered on June 19, 2014
    and the sentence imposed on August 21, 2014 by Justice I. André of the Superior
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of fraud over $5,000 and was sentenced to
    five years imprisonment and ordered to pay $3,414,699 in restitution.

[2]

The background to the conviction is as follows. The appellant was employed
    at the head office of Loblaws Company Limited (Loblaws) from 2001 to 2009.
    During that period, he oversaw the companys Preferred Printers and Rebate
    Program, a program based on services provided by 26 companies. Suppliers in the
    program normally wrote rebate cheques to LBL (Loblaws Brands Limited).
    However, the appellant directed three of the companies to write cheques to
    IBL, a company that was, unbeknownst to the three companies representatives,
    owned by the appellant.

[3]

The appellant deposited rebate cheques into IBLs bank account totalling
    $3,948,301.01. After Loblaws discovered a discrepancy in the rebate amounts it
    had received, it obtained a
Norwich Pharmacal
order for the
    appellants personal banking records and IBLs banking records. It later provided
    the bank records to the police and the appellant was charged with fraud over
    $5,000.

[4]

The appellant argued at trial that his s. 7
Charter

rights
    were violated because Loblaws breached its implied undertaking by obtaining his
    banking records while pursuing a civil action against him and then handing them
    over to the police to be used in a criminal proceeding. The trial judge
    rejected this argument on the basis that the police played no role in initially
    obtaining the records and had a statutory duty to investigate once they
    received the criminal complaint. The trial judge also rejected the appellants
    testimony that he was entitled to the money in question as a commission based
    on a confidential agreement he had with a former vice president of Loblaws.

[5]

The appellant appeals his conviction and the restitution order on the
    following grounds: (1)

the trial judge erred by repeatedly intervening
    in his examination-in-chief, in a manner that prevented him from presenting his
    case in an orderly way and was tantamount to cross-examination; (2)

the
    trial judge erred in failing to properly consider his motion to exclude the
    banking records, given that they were admitted in breach of Loblaws implied
    undertaking; and (3) the trial judge erred by failing to take into account the
    appropriate sentencing principles in awarding restitution in favour of the
    complainant.

[6]

We would not give effect to these arguments.

[7]

We do not view the trial judges interventions as being disruptive or tantamount
    to cross-examination. To the contrary, it is clear from the transcript that the
    trial judge appropriately intervened to clarify confusing testimony and to
    assist the appellant, who was self-represented at trial.

[8]

With respect to the implied undertaking
    argument, the Crown argues that the rule does not apply in the circumstances
    and, in any event, if it did, it was spent when the banking records were filed
    in civil proceedings as part of a
Mareva
injunction. Assuming, without
    deciding, that the implied undertaking rule applies to the banking records and
    that their use by the police and the Crown violated the appellants s. 8
Charter
rights, we would not have excluded the admission of the documents
    under the s. 24(2) analysis mandated by
R. v. Grant
,
2009 SCC 32,
    [2009] 2 S.C.R. 353,
for the following reasons.

[9]

The seriousness of any police misconduct in this case would be very low.
    They took no positive steps to obtain the bank records; rather they were
    passive recipients of records that were or were soon to be in the public record
    in the civil proceedings.

[10]

The impact on the appellants
Charter
-protected interests is
    minimal. While the appellant had an expectation of privacy in relation to the
    bank records, the police ultimately would have been able to get a warrant or
    order to obtain them. Moreover, the bank records were merely confirmatory of
    the cancelled cheques produced to Loblaws by the suppliers who had made cheques
    payable to IBL.

[11]

With respect
to the

truth-seeking function of the criminal trial process, t
here
    is a strong societal interest in an adjudication on the merits.  The records
    are also reliable and objective evidence.

[12]

All of the
Grant
factors militate in favour of admission of the
    records into evidence. In our view, therefore, the records exclusion would
    bring the administration of justice into disrepute.

[13]

We also see no basis to interfere with the restitution ordered to be
    paid by the appellant. There was no dispute at trial regarding the amount that
    had been lost. The appellant only took issue with the Crowns calculation that
    recovery had been made in the amount of $533,601.81. A dispute as to the exact
    amount recovered does not operate as a bar to the making of a restitution order
    because double recovery can be prevented by civil courts requiring a proper accounting
    of all sums recovered.

[14]

For the foregoing reasons, the appeal is dismissed.

Paul
    Rouleau J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.