R v Campbell, 2022 ABKB 663

Court of King’s Bench of Alberta Citation: R v Campbell, 2022 ABKB 663 Date: 20221005 Docket: 200968030Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Jason Michael Campbell Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Justice N. Whitling _______________________________________________________

1. Introduction [ 1 ] The accused, Jason Michael Campbell, stands charged with one count of sexual interference contrary to s. 151 of the Criminal Code , RSC 1985 c C-46 , and one count of invitation to sexual touching contrary to s. 152 . The offence dates pleaded in the indictment are September 24, 2014, and January 31, 2015. The offences are alleged to have occurred when the accused was babysitting the complainant, who was 7 years of age at the time. [ 2 ] In this pre-trial application, the accused applies for a judicial stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms .

In support of this application, he argues that his rights under ss. 7 , 8 , 9 , 10(

b) and 11(

e) of the Charter were violated by members of the Edmonton Police Service (“EPS”) on February 13, 2020, being the day that the accused turned himself in to custody. [ 3 ] In response to this application, the Crown concedes that the police did commit a certain violation of the accused’s right to retain and instruct counsel under s. 10(

b) of the Charter but does not concede that any further Charter violations occurred. The Crown also argues that the s. 10(

b) violation was not so serious as to justify the drastic remedy of a stay of proceedings. [ 4 ] This application proceeded as a two-day voir dire . The accused and his father Gary Campbell testified for the defence in support of the application. The lead police investigator, Det. Hartwell, testified in response, and audio and video recordings of the accused’s interactions with police were played in court and marked as exhibits. Based upon this evidence, I make the findings of fact which follow. 2.

Facts [ 5 ] The complainant in this matter made a complaint to the police on December 3, 2019. [ 6 ] The lead police investigator respecting this prosecution was and is Det. Hartwell of the EPS. On the evening of February 11, 2020, Det. Hartwell had a telephone conversation with the accused’s defence counsel, Ms. Hatch, in anticipation of the accused turning himself in to police for arrest on the present charges. During that conversation, Det.

Hartwell stated that it was his intention to “lodge” the accused, which meant that he would not release the accused on the basis of police documents, and would instead lodge him in police cells pending a release hearing before a justice of the peace. [ 7 ] The next morning, Ms. Hatch followed up on her conversation of the previous evening with a letter to Det. Hartwell dated February 12, 2020. Since the contents of that letter effectively anticipated many of the facts and issues arising on the present application, its substance is here reproduced: As I indicated last night in our conversation, Mr.

Campbell has been assessed as not being capable of independent functioning and various experts have concluded that he functions cognitively at the level of a 12-year old boy. I further indicated that there is an Order appointing a Guardian and Trustee, and I attach at this time a copy of that Order dated February 16, 2018, issued by the Honourable Justice Eric Macklin. As you will see, the court was satisfied that Mr.

Campbell does not have the capacity to make decisions about various personal matters and authority was delegated to the Guardian and Trustee in relation to legal matters, matters of association, living arrangements, employment, and other matters. As I indicated yesterday, while I understand you may have been expecting Mr. Campbell to attend at the police station to meet with you or another police officer to speak, Mr. Campbell is a very vulnerable individual, owing to his cognitive difficulties, his suggestibility, and other factors.

He and his guardian and trustee have indicated that Jason will not be attending to speak to the police. You have indicated an intention to charge Mr. Campbell and “lodge him” for a period of time until he is taken before a Justice of the Peace. I confirm my advice to you that Mr. Campbell would be prepared to submit to being charged and receiving release documents, but it is not necessary that he be taken into custody for that purpose.

As I indicated, Bill C-75 has enacted new provisions which allow for release by an officer with any condition which would ensure the safety and security of any victim or witness to the offence. An undertaking may now contain provisions set out in section 501(3) of the Criminal Code , which I have attached for your review as this legislation is quite new. You will see that subsection (

k) provides that a condition can be imposed requiring the accused to “comply with any other specified condition for ensuring the safety and security of any victim of or witness to the offence” and subsection (

e) provides the authority to restrain the accused from going to various places or areas, which you indicated was a specific concern in this instance. I attach sections 501 and 502 of the Criminal Code for your review. It is further important to note that

section 493.1 now codifies the principle of restraint in relation to release following the Supreme Court’s decision in Antic . Accordingly, peace officers too must give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions in the circumstances. It is thus clear not only that the Supreme Court, but Parliament, intended that release occur at the earliest opportunity. This means that accused persons should not be taken before a Justice of the Peace unless legally required. Of further significance in this matter is

section 493.2, which requires peace officers to give particular attention to accused persons who belong to vulnerable populations. This would include individuals with disabilities, including intellectual disabilities, as those persons comprise a population that is over-represented in the criminal justice system and is disadvantaged in obtaining release. Considering all these factors, as well as the specific vulnerability of Mr.

Campbell at the police station without his guardian, I suggest that he can be charged and released on appropriate terms at his doorstep or at a mutually agreeable public location which I would be happy to arrange with you. I have had many individuals released on similar types of charges over the years on what was formerly an

Appearance Notice / Promise to Appear without the requirement of attendance at a police station. In Mr. Campbell’s uniquecircumstances, any arrest and detention and removal of Mr. Campbell from his legal guardian (which you confirmed would necessarilyoccur at the police station) in order to lodge him or take him into custody, would amount to an arbitrary and unlawful detention contraryto

section 9 of the Canadian Charter of Rights and Freedoms and a breach of the

section 11 right to reasonable bail, and a remedy wouldbe sought. [8] When testifying on the present application, Det. Hartwell did not identify any basis that he may have had to disbelieve orotherwise doubt the information imparted to him by defence counsel in the above letter of February 12, 2020. [9] Enclosed with counsel’s letter to Det. Hartwell was a copy of the Guardianship and Trusteeship Order of Justice Macklindated February 16, 2018. That Order appoints the accused’s father, Gary Deeton Campbell, as the accused’s Guardian and Trustee.

TheOrder also indicates that it was issued upon the basis of a finding that the accused “does not have capacity to make decisions about thepersonal matters with respect to which the Guardian is given authority by this Order”. Paragraph 1.1 of the Order lists the specificsubject matters with respect to which the Guardian is given the authority to act and make decisions.

Of those, the one of potentialsignificance to the present application states that the Guardian may “Carry on any legal proceeding that does not relate primarily to thefinancial matters of the Adult”. [10] On February 13, 2020, at approximately 10:00 a.m., the accused attended at an EPS station to turn himself in to the police. Hewas accompanied by Gary. Shortly after their arrival at the station, the accused and Gary were met by EPS Cst. Church. Their initialexchange with Cst. Church was audio recorded.

During that exchange Gary indicated that he wanted to go with the accused and that theaccused had been advised to say nothing. Cst. Church replied that it was good that the accused had received legal advice, but that sincethe accused was an adult Gary would not be permitted to remain with him. She also assured Gary that the accused would be treated withrespect and with dignity. The accused then left the reception area with Cst. Church, leaving Gary behind. [11] Now alone with the accused, Cst. Church asked the accused a few questions of a conversational nature.

The accused declinedto provide any audible response to most of these questions. He was then placed into an interview room at 10:19 am. The events in thatinterview room were video and audio recorded. [12] Cst. Church advised the accused of his right to counsel by reviewing an EPS information sheet with him and obtaining hissignature at the bottom. That document contains a fulsome and accurate recitation of the accused’s s. 10(

b) rights and was marked asexhibit VD-4 on the present application. [13] Cst. Church invited the accused to read the EPS information sheet along with her, and the accused responded by advising thathe could not read. The accused would later testify that he can read, but that he needs Gary’s help in understanding some things. He alsoadvised that he can write, but not longer words. [14] After reading the advice of rights

section of the document to the accused, Cst. Church asked him whether he understood. Theaccused muttered a response which may have been “Mm Hm”, to which Cst. Church stated “Jason, I need a yes or no.” To this, theaccused responded: “Yes, I want my lawyer and get ahold of her.” He then referred to Ms. Hatch by name. In the EPS informationsheet, next to the question “Do you understand?” the accused is noted to have answered “Yes”. [15] Cst.

Church then asked the accused if he wanted to talk to a lawyer right now, and he responded: “Actually yes I do, I knowher number by heart.” In the EPS information sheet, next to the question “Do you want to call a free lawyer or any other lawyer?” theaccused is noted as having answered “actually yes I do”. [16] Cst. Church then asked the accused if he wanted a paper copy of the information to take into the phone room whileacknowledging “I know you said you can’t read.” The accused was then invited to go into a phone room. [17] The accused was in the phone room for a very short time, perhaps two minutes.

Upon exiting the phone room, he was askedby Cst. Church whether he had spoken to his lawyer. To this the accused replied: “No, she’s in a hearing right now for my parole.” Theaccused would later testify that he had spoken to Ms. Hatch’s assistant. The accused was not on parole or involved in any paroleproceedings at the time, so that aspect of his response reflects some confusion on his part, at least with respect to terminology. [18] Despite the accused’s advice that he had not been able to speak to his lawyer, Cst. Church next proceeded to ask the accusedif he had obtained legal advice.

The accused responded with an ambiguous mumble which may have been an “Mm Hm” or perhaps onlya “Mm”. Cst. Church then stated: “Yes? That was a yes?” The accused then uttered an “Mm” sound, and made a partial nod, to whichCst. Church replied: “OK, perfect.” Having thusly satisfied herself that the accused had been accorded his s. 10(

b) rights, Cst. Church leftthe accused in the interview room to be interviewed by Det. Hartwell. [19] It may be noted at this juncture that the EPS information sheet contains a waiver

section containing what is sometimes calleda “Prosper warning” in reference to R v Prosper, (SCC), [1994] 3 SCR 236. That

section reads as follows: Waiver of right to counsel (if applicable): You have the right to a reasonable opportunity to contact a lawyer. I am obliged not to take a statement from you or ask you toparticipate in any process that may provide evidence against you until you are certain about whether you want to exercise this right. “Do you understand?” _____ “Do you want to waive your right to contact a lawyer?” _____ Despite the accused’s advice that he did wish to speak to his lawyer and that he had not been able to reach her since she was in a hearing,Cst. Church did not read this

section of the information sheet to the accused or ask him the questions it contains. The spaces next to thequestions were left blank. [20] During Cst. Church’s interactions with the accused in the interview room, Det. Hartwell had been observing these interactions

from a monitoring room. A few moments after Cst. Church’s departure, Det. Hartwell joined the accused in the interview room. Upon his arrival, the accused stated: “My lawyer told me not to say a word.” Det. Hartwell replied, “Thanks for telling me that”, and “Glad you got legal advice”. Det. Hartwell then commenced the interview. [ 21 ] Det. Hartwell’s interview proved less than fruitful. Throughout the interview, the accused declined to provide articulate verbal responses to the great majority of Det. Hartwell’s questions.

The accused did sometimes make audible sounds such as “Mm” and “Hm”, and he occasionally shrugged. Sometime into the interview, the accused began to scribble notes to Det. Hartwell on a piece of paper, but those notes pertained to such matters as movies and television shows. At one point, Det. Hartwell asked the accused if he had any questions. In response, the accused shook his head and made a zipper gesture across his mouth. [ 22 ] In cross-examination on the present application, the accused agreed that it had been his decision not to speak to the police. He agreed that no one made that decision for him.

In his words: “I made that decision myself.” [ 23 ] The accused did provide at least two brief verbal statements to the police which pertained to his current charges. When Cst. Church was attempting to explain the accused’s s. 10(

b) rights to him, the accused interrupted by stating: “All I have to say is if I did anything wrong I would have confessed five years ago.” Later, during the interview, the accused made a similar statement to Det. Hartwell. A follow-up question to this statement elicited no verbal response from the accused. [ 24 ] The interview concluded at 2:39 p.m. having lasted approximately four and a half hours. [ 25 ] After concluding the interview, and as anticipated in his call of the previous evening with Ms. Hatch, Det.

Hartwell decided not to release the accused on the basis of police documents, such as an undertaking pursuant to s. 501 , and instead decided to lodge the accused in police cells pending the availability of a justice of the peace for a release hearing. [ 26 ] Det. Hartwell would later testify as to his reasons for deciding to lodge the accused pending a release hearing. In his examination in-chief, he explained that he had concerns respecting the accused’s ability to communicate with children, both the complainant and other children, and his ability to attend places where children are likely to be present.

These concerns were grounded in information he had received to the effect that the accused had used the internet to obtain the babysitting job relating to the complainant. Although Det. Hartwell was aware that the accused had no prior criminal record, he was aware of a separate incident involving another child which had resulted in the imposition a peace bond. He testified that this information gave rise to concerns on his part respecting the protection of the public. [ 27 ] Det. Hartwell gave greater definition to his reasoning process during his cross-examination.

At that time, he testified that he wished to impose at least two release conditions upon the accused which he believed he was not empowered to impose in a police undertaking. Those two conditions were along the lines of the following two release conditions that would later be imposed upon the accused by a justice of the peace: 6. Shall not have any contact or communication with any child under the age of 16 years of age. 7.

You shall not seek or obtain any employment or volunteer position that involves being in a position of trust or authority towards children under the age of 16 years. [ 28 ] In his testimony, Det. Hartwell addressed s. 501 in particular, which had been brought to his attention by Ms. Hatch. That provision sets out the release conditions that a peace officer may include in a police undertaking. Det. Hartwell stated that he was aware at the time that this was new legislation, and he had received information from a police legal advisor regarding its

interpretation. In reference to s. 501(3) (

d) in particular, Det. Hartwell’s understanding at the time was that that provision only empowered him to impose a condition prohibiting a detainee from communicating with victims and witnesses respecting the particular charges on which the detainee was then being released. He believed that a no contact condition respecting potential future victims, such as other children, could only be imposed by a justice following a release hearing. [ 29 ] Det.

Hartwell agreed in cross-examination that he did not consider transporting the accused to the Law Courts to be brought before a provincial court judge, and he advised that doing such a thing was not in accordance with his practice or the EPS’s practice. [ 30 ] Also in cross-examination, Det. Hartwell was asked about the possibility of releasing the accused on an undertaking pursuant to the more limited conditions permitted by s. 501 , and later applying to a justice to broaden the conditions by amendment.

He responded that in his view, it was his own job to release the accused on appropriate conditions, and that it would not have been appropriate to release the accused on anything less than the necessary conditions. [ 31 ] The interview having concluded, the accused was lodged in cells. He was first placed in a temporary cell near the interview room, then transferred to the “Division Holding Cells”, and later transferred to the Detainee Management Unit or DMU.

Prior to his transfers to both the Division Holding Cells and the DMU he was searched, but not strip searched. [ 32 ] Once the accused had been transferred to Division Holding Cells, Det. Hartwell prepared his report and the bail package. He estimated that this may have taken him approximately 30 minutes. He did not take any exceptional steps to expedite the accused’s release hearing. [ 33 ] It seems that some period of delay occurred between the time that the accused was placed in Division Holding Cells and his transfer to the DMU.

At 4:02 p.m., defence counsel was advised that the accused had not been transferred to the DMU since a “Code Red” had been called. Det. Hartwell later disclosed that a Code Red meant that all of the cells at the DMU were full, and so no other detainees were to be sent to the DMU until a “Code Green” was called. [ 34 ] In the accused’s later testimony, he was unable to accurately estimate how many hours he had spent in his cells. He just knew that he wanted to go home. His cells were very sparsely furnished.

He was not given a mattress or bedding, but he would later testify that he did not wish to sleep while he was in the cell. No other detainees were placed in the cell with him. He was given at least one cigarette

break. He was offered food, but declined. [35] A bail hearing before a Justice of the Peace respecting the accused commenced at 11:34 p.m. At that time, he was orderedreleased on the consent of the Crown and defence on conditions which included the aforementioned conditions 6 and 7. He was releasedat approximately midnight. [36] From the time of his detention at approximately 10:00 a.m. until his release at approximately midnight, the accused wasseparated from his court appointed Guardian and detained in custody for some 14 hours.

Approximately the first 4.5 of these hours wereoccupied by the initial processing by Det. Church and the interview conducted by Det. Hartwell, and the remaining 9.5 hours representedthe additional time required to bring the accused before a justice to speak to release. [37] Meanwhile, throughout the time that the accused was in custody, Ms. Hatch sent many communications to the police station,Det. Hartwell’s cell phone, the Crown bail office, and the DMU respecting the accused’s release. These communications began no laterthan 9:40 am at which time Ms.

Hatch sent two emails to the Crown bail office asking that the accused’s release be expedited. When theCrown’s office replied that they could not consider consenting to the accused’s release until they received the bail package from thepolice, Ms. Hatch contacted Det. Hartwell and requested that he immediately prepare and provide the bail package. [38] Ms. Hatch also called the police station at 10:47 a.m. and 12:55 p.m. asking to speak to the accused to provide him withadvice, and left messages for him. She also made calls to Det.

Hartwell’s cell phone with the same requests at 12:53 p.m. and 1:04 p.m.Throughout these communications, Ms. Hatch emphasized the accused’s cognitive difficulties, demanded that he be given an immediaterelease hearing, and generally attempted to expedite the process. She also notified the police on numerous occasions that in her view, theongoing delays respecting his release had rendered his ongoing detention unlawful. [39] The accused was eventually permitted to speak to Ms. Hatch at 5:43 p.m., being approximately 8 hours after he turned himselfin to police. [40] He was provided with Ms.

Hatch’s messages shortly before his release at around midnight. 3. Analysis 3.1

Section 10(b) – Prosper and the duty to “hold off” [41] I will deal firstly with the accused’s application pursuant to s. 10(

b) of the Charter since there is some degree of agreementbetween the parties on this aspect of the application. Although the parties are in agreement that the accused’s s. 10(

b) rights wereviolated, they disagree regarding the nature and extent of that violation. 3.1.1 Legal principles [42]

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention “to retain and instruct counsel withoutdelay and to be informed of that right”. As the Supreme Court of Canada explained most recently in R v Dussault, 2022 SCC 16 at paras.31-34, the language of s. 10(

b) places both informational and implementational duties upon the state. The police must inform detaineesof the right to counsel, and they must provide detainees who invoke this right with a reasonable opportunity to exercise it. A failure tocomply with either duty results in a breach of s. 10(b). [43] The police’s informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and ofthe existence and availability of Legal Aid and duty counsel where they are available. This informational duty also requires the police toensure that the detainee understands his or her right to counsel. [44] The police’s implementational duties under s. 10(

b) are two-fold and arise upon the detainee indicating a desire to exercise hisor her right to counsel: R v Luong, 2000 ABCA 301 at para. 12, point 4. [45] The first implementational duty is to provide the detainee with a reasonable opportunity to exercise the right (except in urgentand dangerous circumstances): R v Bartle, (SCC), [1994] 3 SCR 173 at p. 192. The police can typically discharge thisduty by facilitating a single consultation at the time of detention or shortly thereafter.

A few minutes on the phone with a lawyer maysuffice, even for very serious charges: Dussault at para. 32; R v Willier, 2010 SCC 37. In assessing whether the accused has been givena reasonable opportunity to exercise the right to counsel, an objective view of the circumstances is to be considered and the police can actupon what the accused tells them.

The Court of Appeal has emphasized in this context that the police “are not mind readers” and “are notthere to play 20 Questions”: R v Top, 1989 ABCA 98 at para. 9; R v Liew, (1998) 1998 ABCA 98 , 212 AR 381 (CA) at para.18; R v Edmonton, 2014 ABCA 186 at para. 9. [46] The second implementational duty is to “hold off” from eliciting evidence from the detainee until he or she has had areasonable opportunity to consult with counsel (again, except in cases of urgency or danger): Bartle at p. 192; R v Prosper, (SCC), [1994] 3 SCR 236 at pp. 273-74.

Where a detainee has been reasonably diligent in exercising his or her right to counsel,including trying to reach a private lawyer, investigative steps in which the detainee must necessarily participate (e.g. confessions,identification evidence, and breath and blood samples) must be held in abeyance until such reasonable time as a detainee is able tocontact a lawyer: Prosper at p. 272. [47] Once a detainee who has previously asserted the right to counsel indicates that he or she has changed his or her mind and nolonger wants legal advice, an additional informational obligation upon the police is triggered.

At this point, the police are required to tellthe detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during thistime not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that

reasonable opportunity. Where the Crown relies upon the occurrence of an informed waiver of this nature, there must be a clear indication that the detainee has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Prosper at p. 274-75. 3.1.2 Application to the facts [ 48 ] Applying the above principles to the facts of the present case, the Crown fairly concedes, and I agree, that the police failed to comply with the “second informational duty” and the “second implementational duty” of s. 10(

b) by interviewing the accused without first according him a reasonable opportunity to consult with his lawyer. [ 49 ] When asked by Cst. Church whether he wanted to speak to a lawyer, the accused advised her that he did. Although some aspects of the accused’s communications following his arrest amounted to little more than ambiguous mumbles, his statements on this point were clear and unequivocal. He stated that he did wish to speak to Ms. Hatch and that he had memorized her phone number. [ 50 ] The accused spent only two minutes in the phone room.

As noted above, a brief communication of this nature will often suffice, even in relation to serious charges. In the present case, however, the accused advised Cst. Church upon exiting the phone room that he had been unable to reach Ms. Hatch since she was in a hearing. These circumstances did not require Det. Church to “play 20 Questions” or to be a “mind reader” in order to know whether the accused had had an opportunity to consult with his lawyer.

He had clearly not had such an opportunity, and there is no suggestion that he did not act with reasonable diligence in trying to reach his lawyer. [ 51 ] Despite the accused’s advice that he had not been able to speak to his lawyer, Cst. Church next proceeded to ask the accused if he had obtained legal advice. The accused responded with an ambiguous mumble which may have been an “Mm Hm” or perhaps only a “Mm”. Cst. Church then stated: “Yes? That was a yes?” The accused then uttered an “Mm” sound, and made a partial nod, to which Cst.

Church replied: “OK, perfect.” [ 52 ] These ambiguous remarks by the accused after he exited the phone room fall far short of “a clear indication that he or she has changed his or her mind” respecting his wish to speak to a lawyer, and the Crown has not suggested they discharge the Crown’s burden of establishing an “unequivocal waiver” for the purposes of Prosper at pp. 274-75. [ 53 ] Further, and in any event, any express or implicit waiver by the accused was not sufficiently informed. The drafter of the EPS information sheet used by Cst.

Church was aware of the informational duty that arises under these circumstances, and included a

section in the printed form which sets out a Prosper warning. Cst. Church did not read that warning to the accused. Nor did she obtain an acknowledgment from the accused that he understood its contents. This constituted a violation of the police’s second informational duty. [ 54 ] Cst. Hartwell was in the “monitoring room” when Cst. Church was dealing with the accused’s s. 10(

b) rights, and observed her interactions with the accused. Despite having presumably heard the accused’s advice that he had been unable to contact Ms. Hatch, and despite the absence of any Prosper warning or any informed waiver, he proceeded to conduct the interview. This constituted a violation of the police’s second implementational duty, being the duty to “hold off” in questioning the accused until he had been accorded a reasonable opportunity to contact a lawyer. 3.1.3 Conclusions on the conceded s. 10(

b) breach [ 55 ] In conclusion, I accept the Crown’s concession and find that the police committed a violation of the accused’s rights under s. 10(

b) of the Charter . Given that the accused had stated that he did wish to speak to his lawyer, had been reasonably diligent in attempting to do so, and had expressly stated that he had been unable to contact her because she was busy, the police were required to “hold off” in interviewing the accused until he had either been given a reasonable opportunity to contact his lawyer, or given a fully informed and unequivocal waiver of his rights. Proceeding with the interview under these circumstances constituted a violation of s. 10(b). 3.2

Section 10(b) – The Guardianship Order and the Operating Mind Test 3.2.1 Introduction [ 56 ] The parties are not in agreement respecting the remainder of the accused’s s. 10(

b) arguments. These arguments focus upon the fact that the accused’s father Gary was not permitted to accompany the accused during police questioning despite the fact that his father had been appointed as his Guardian and Trustee pursuant to the Order of Justice Macklin dated February 16, 2018 (the “Guardianship Order”). The terms of the Guardianship Order indicate that it was granted on the basis of a finding by the Court that “the Adult does not have capacity to make decisions about personal matters with respect to which the Guardian is given authority by this Order”.

The particular provision of the Order of potential significance to the present application is paragraph 1.1 which gives Gary the authority to, among other things, “Carry on any legal proceeding that does not relate primarily to the financial matters of the Adult”. That language is derived from that of s. 17(2)(

g) of the Adult Guardianship and Trustee Act , SA c A-4.2 (the “ AGTA ”) which is worded in substantially the same way. [ 57 ] The accused now argues that a criminal prosecution constitutes a “legal proceeding that does not relate primarily to the financial affairs of the Adult”, and that

Article 1.1 of the Guardianship Order empowered Gary to accompany the accused throughout the police interview, and to make decisions for the accused as to whether the accused would cooperate with the police. Relatedly, the accused submits that given the existence of the Guardianship Order and the other circumstances known to the police, it ought to have been apparent that the accused did not understand the nature of his s. 10(

b) rights and that he was unable to make decisions with respect to those rights. [ 58 ] In response, the Crown argues that the Guardianship Order does not confer any authority on Gary to attend police interviews, or to otherwise make decisions in relation to police investigations. Further, the Crown argues that all of the circumstances of this case, notably the nature of the accused’s interactions with the police, and the answers he gave during his testimony, indicate that he at least

met the “operating mind” test in R v Whittle, (SCC), [1994] 2 SCR 914. 3.2.2 Legal Principles [59] As previously noted, s. 10(

b) confers a right upon a detainee to retain and instruct counsel without delay. It does not conferany right upon a detainee to consult with someone who is not a lawyer. This is in contrast, for example, to the Youth Criminal JusticeAct, SC 2002, c. 1, which provides in s. 146(2)(c)(ii) that a young person must be given a reasonable opportunity to consult with aparent, adult relative, or other appropriate adult. [60] However, the Courts have found that in some exceptional circumstances, a detainee’s s. 10(

b) rights necessarily entail theright to consult with a person other than a lawyer. Where “special circumstances” such as visual impairments, cognitive difficulties, orlanguage barriers raise a positive indication that a detainee does not understand his or her s. 10(

b) rights, the police must take steps tofacilitate that understanding which may require a consultation with a non-lawyer such as an interpreter: R v Evans, (SCC), [1991] 1 SCR 869 at para. 44; Bartle at para. 19; R v Latimer, (SCC), [1997] 1 SCR 217 at para. 38.

Evenabsent special circumstances, “[a] detainee is permitted, as part of the exercise of a right to counsel, to communicate with a third party solong as the purpose is to retain or instruct counsel and there are no investigative concerns arising from the request”: R v KWJ, 2012NWTCA 3 at para. 32; R v Tremblay (SCC), [1987] 2 SCR 435; R v Oester (1989), 97 AR 389 (QB) at para. 19; R vVan Den Meerssche (1989), (BC CA), 53 CCC (3d) 449 (BCCA) at p. 458. [61] Even where it has been found that a detainee was entitled to consult with a third party, whether as a result of “specialcircumstances” or otherwise, no case outside of the youth context appears to have found that s. 10(b), or any other source of legalauthority, entitles an accused to have a third party present throughout a police interview.

Indeed, s. 10(

b) does not even include a right tohave a lawyer present during such an interview: Dussault at para. 33; R v Sinclair, 2010 SCC 35 at paras. 37-39. [62] The “special circumstances” relied upon by the accused in the present case are, to borrow the words used in Bartle, “a knownor obvious mental disability” and the Guardianship Order that was issued to address that disability. These circumstances bring into playthe “operating mind” test established in R v Whittle, (SCC), [1994] 2 SCR 914. In that case, Sopinka J. held that adetainee’s ability to understand his or her s. 10(

b) rights is governed by the “operating mind” test, which is equivalent to the test forcapacity to stand trial: 49 The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that theaccused have sufficient cognitive capacity to understand what he or she is saying and what is said.

This includes the ability to understanda caution that the evidence can be used against the accused. 50 The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make anactive choice. 51 In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required forfitness to stand trial.

The accused must be capable of communicating with counsel to instruct counsel, and understand the function ofcounsel and that he or she can dispense with counsel even if this is not in the accused's best interests. It is not necessary that the accusedpossess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right tosilence.

The accused must have the mental capacity of an operating mind as outlined above. [63] By way of further elucidation as to the nature and scope of the “operating mind test”, Sopinka J. at para. 43 quoted R vHebert, (SCC), [1990] 2 SCR 151 at pp. 171-72 where McLachlin J., as she then was, wrote that the confession rulerequires cognitive ability “in the minimal sense that the suspect must possess the mental capacity to make an active choice”. [64] Sopinka J. in Whittle also referred at para. 32 to the definition of “unfit to stand trial” in s. 2 of the Criminal Code: unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict isrendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (

a) understand the nature or object of the proceedings, (

b) understand the possible consequences of the proceedings, or (

c) communicate with counsel; [65] The “operating mind” test established in Whittle may be compared and contrasted with the test that was applied by JusticeMacklin when he issued the Guardianship Order. Of course, that Order was not premised upon a finding that the accused lacked anoperating mind or that he would be unfit to stand trial in a criminal matter. Rather, it was premised upon a finding that the accused “doesnot have the capacity to make decisions about the personal matters that are to be referred to in the order” for the purposes of s. 26(6)(a)of the AGTA.

The term “capacity” as used in that provision is defined in s. 1 of that Act as follows: 1 In this Act, [...] (d) “capacity” means, in respect of the making of a decision about a matter, the ability to understand the information that is relevant tothe decision and to appreciate the reasonably foreseeable consequences of (

i) a decision, and (ii) a failure to make a decision;

[66] It is difficult to compare the “operating mind” test from Whittle with the test for “capacity” under the AGTA. That is becausethe latter test entails, as Goss J. stated in RMK v NK, 2020 ABQB 328 at para. 128, “a hierarchy of levels of capacity, including varyinglevels of capacity required for different decisions, and varying degrees of incapacity to make decisions”.

And as Price J. stated inCostantino v Costantino, 2016 ONSC 7279 at para. 45: 45 Courts have recognized that a person can be capable of making a basic decision while being incapable of making a complex decision.They have recognized varying levels of capacity required for different decisions, and varying degrees of incapacity to make decisions.For example, a person can be capable of entering into a marriage but not capable of making a will. [Footnotes omitted] See also: Wolfman-Stotland v Stotland, 2011 BCCA 175 at paras 26-27. [67] A fulsome examination of the “capacity” standard under the AGTA is unnecessary for the purposes of the present application.It suffices to say that that standard is very different from the “operating mind” test established in Whittle.

A judicial determination that aperson lacks “capacity” for the purposes of the AGTA does not necessarily entail a finding that that person lacks an “operating mind” forthe purposes of Whittle. [68] I turn now to the specific language of paragraph 1.1 of the Guardianship Order which, as previously stated, confers authorityupon the accused’s father Gary to “Carry on any legal proceeding that does not relate primarily to the financial matters of the Adult”.That paragraph was issued pursuant to s. 17(2)(

g) of the AGTA. [69] I note at the outset that it has been held that the decision-making authority conferred by the former version of s. 17(2)(g)confers exclusive decision-making authority upon the guardian. In other words, as Martin J. stated in C v Rockyview General Hospital,2003 ABQB 366 at para. 20: “where guardians are appointed and empowered to make decisions pursuant to that provision on behalf ofthe dependent adult, by implication the dependent adult is deprived of any concurrent rights.” Hence, if a criminal investigation is caughtby the language of s. 17(2)(

g) of the AGTA and paragraph 1.1 of the Guardianship Order, then arguably, Gary had the exclusive legalauthority to make decisions regarding the accused’s cooperation in that investigation, and the accused had none. [70] I have been unable to discover any cases on the question of whether a criminal investigation constitutes a “legal proceeding” for the purposes of s. 17(2)(

g) or similar provisions. However, Black’s Law Dictionary, 9th ed., (Thomson Reuters, 2009) at p. 979provides the following definition: legal proceeding. (17c) Any proceeding authorized by law and instituted in a court or tribunal to acquire a right or to enforce a remedy. [71] It is well established that criminal proceedings commence when the information is laid by the swearing of the initialcomplaint: R v Southwick, ex p. Gilbert Steel Ltd., (ON CA), [1968] 1 CCC 356 (OntCA); Penney et al, CriminalProcedure in Canada, 2nd ed. (LexisNexis, 2018) at p. 10, §1.19.

Of course, not all criminal investigations result in the commencementof criminal proceedings.

The police enjoy a considerable discretion in deciding whether or not to bring formal charges: Penney et al, at p.9, §§1.13-1.16. 3.2.3 Application to the facts [72] Applying the above principles to the facts of the present case, I do not find that the police violated the accused’s s. 10(b)rights by separating him from his father at the time of his detention, and by not permitting him to consult with his father during theinterview process. [73] As an initial matter, I do not find that paragraph 1.1 of the Guardianship Order conferred exclusive, or any, authority upon theaccused’s father Gary to make decisions respecting the accused’s cooperation in a police investigation.

A police investigation is not a“legal proceeding” for the purposes of s. 17(2)(

g) of the AGTA since it is not a step taken before a court or tribunal. Although most if notall criminal proceedings will be preceded by an investigation, an investigation does not form part of any subsequent criminal proceeding.A criminal proceeding is only commenced upon the laying of an information, and not all investigations are followed by the laying of aninformation. As a result, I do not find that Gary was entitled to be present during the police interview, and I do not find that the accusedlacked the legal authority to make his own decisions regarding his cooperation in a criminal investigation. [74] I also do not find that s. 10(

b) of the Charter, or any other source of legal authority, conferred a right upon the accused to havehis father present during the police interview, or to otherwise consult with his father upon or during his detention.

Given that Parliamenthas not seen fit to extend the reach of s. 146(2)(c)(ii) of the YCJA to any class of adult persons, it would not be appropriate for me to doso in the context of the present application. [75] In this regard, I do not find that all of the circumstances of the police’s interactions with the accused raised “specialcircumstances” which required them to permit the accused to consult with his father prior to or during the interview. The existence of theGuardianship Order and the additional advice respecting the accused in Ms.

Hatch’s letter of February 12, 2020, were undoubtedlycircumstances that were known to the police. But these circumstances did not, in and of themselves, support a conclusion that theaccused lacked an “operating mind” at the time of the interview, or that he was unable to understand or exercise his s. 10(

b) rights. [76] When Cst. Church read the accused his rights, he indicated that yes, he understood them. When he was asked whether hewished to consult with a lawyer, he answered that he did. He then referred to his lawyer by name, and stated that he had memorized herphone number. He then entered the phone room to speak with his lawyer and apparently called his lawyer’s office. Upon exiting thephone room, he advised Cst. Church that he had not been able to reach his lawyer since she was in a hearing. During the subsequentinterview, the accused chose to remain silent the great majority of the time.

In his testimony, he acknowledged that it had been hisdecision not to say anything to the police. In his words, “I made that decision myself.” [77] I have also considered the other circumstances relied upon by the accused as supporting his lack of understanding at the timeof his interview. For example, the accused stated to Cst. Church that he had been unable to reach his lawyer since she was in a hearingrespecting the accused’s parole. The accused was not on parole at the time. The accused may have been confused as to the nature of the

hearing his lawyer was in, or he may have been attempting to represent that his lawyer was working on his release from police detention.In any event, this statement by the accused does not establish that he was unable to understand the nature of his right to counsel or theother components of the operating mind test. [78] The accused also said to Cst. Church that he could not read. He would later testify that he can read, but he needs his father’sassistance in understanding some of the things he reads.

Again, I do not find that this circumstance supports a conclusion that the accuseddid not at least have an operating mind at the time of the police interview. [79] Having considered all of the evidence on this application, notably the audio and video recordings comprising Exhibit VD-2,and the accused’s testimony before me, I conclude that the accused did at least have an operating mind at the time of the policeinterview, and that there were no special circumstances which would have indicated to the police that he did not at least possess sufficientcognitive ability to understand and exercise his s. 10(

b) rights. [80] Further, as noted above, I conclude that the accused was not entitled by the Charter or by the terms of the Guardianship Orderto have his father present during the police interview or to consult with his father upon his detention. 3.2.4 [81] In conclusion, I do not find that the police violated the accused’s s. 10(

b) rights beyond the violation conceded by the Crown. 3.3 Sections 7 and 9 – Overholding 3.3.1 Introduction [82] The accused also argues that Det. Hartwell’s failure or refusal to release the accused in a timely manner violated his rightsunder ss. 7 and 9 of the Charter. The accused’s submissions under this heading consist of two complaints. Firstly, he submits that Det.Hartwell’s decision to lodge the accused for the purpose of bringing him before a justice to speak to release was unreasonable and henceunlawful.

Secondly, he submits that the police unreasonably delayed in bringing the accused before a justice of the peace which alsorendered his detention unlawful. 3.3.2 Legal Principles [83] The inter-relationship between ss. 7 and 9 of the Charter was explained by McLachlin C.J. and Charron J. in R v Grant, 2009SCC 32: 54 The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person's liberty isnot to be curtailed except in accordance with the principles of fundamental justice.

As this Court has stated: "This guarantee expressesone of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law"(Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88).

Section 9 serves to protectindividual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20),unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [Emphasis added] [84] The Court in Grant went on to state at para. 55 that earlier appellate decisions suggesting that an unlawful detention is notnecessarily arbitrary should no longer be followed.

The Alberta decisions overruled by this aspect of Grant would at least include R vSieben (1989), (AB CA), 51 CCC (3d) 343 (AltaCA) p. 361. It has also been argued that the reasoning in R v Vassell,2015 ABCA 409 at paras. 29-30, rev’d on other grounds: 2016 SCC 26 is contrary to this aspect of Grant and should not be followed:Penney et al, pp. 395-96, §5.44, fn. 128. [85] In the present case, the lawfulness of the accused’s detention was governed by certain provisions of

Part XVI of the CriminalCode.

Certain aspects of that Part were amended by the enactment of Bill C-75 in 2019, and it is now introduced by s. 493.1 whichcodifies the “principle of restraint”: 493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accusedat the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditionsthat are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1)or 515(10), as the case may be. [86] Det.

Hartwell’s decision to not release the accused on the basis of police documents, and to instead direct that he be held incells pending a hearing before a justice was governed by s. 498: 498(1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in

section 469, andhas not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon aspracticable, release the person, if (

a) the peace officer intends to compel the person’s appearance by way of summons; (

b) the peace officer issues an appearance notice to the person; or (

c) the person gives an undertaking to the peace officer.

[...]

(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealtwith under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [...]

(3) A peace officer who has arrested a person without a warrant, or who has been given the custody of a person arrested without awarrant, for an offence described in subsection (1), and who does not release the person from custody as soon as practicable in themanner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; or (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peaceofficer did not comply with the requirements of subsection (1). [87] The cases which address decisions made by peace officers pursuant to s. 498(1.1) to detain individuals pending a releasehearing before a justice are relatively few.

In R v Jutras (2007), (ON SC), 221 CCC (3d) 543 (OntSCJ) at para. 83,Wilson J. stated that, at least at the time of that decision, “[t]here is no caselaw interpreting section 498(1.1) of the Criminal Code.”Wilson J. also noted that the authority of a peace officer under s. 498(1.1) to not release a person “is the exception to the usual rule thatpersons arrested without a warrant, including non-residents, shall be released in accordance with the provisions of section 498(1).” Inconsidering what constitutes belief on reasonable grounds to detain for the purpose of s. 498(1.1), Wilson J. reviewed a number ofdecisions defining what constitutes reasonable grounds to detain in other contexts, such as investigative detention (R v Mann, 2004 SCC52 , [2004] 3 SCR 59) and arrest (R v Lawes, 2007 ONCA 10). [88] Wilson J. in Jutras also held that s. 498(3) does not have the effect of legalizing a decision to prolong an accused’s detentionpursuant to s. 498(1.1).

Rather, s. 498(3) only applies to a failure by a peace officer to release a detainee pursuant to s. 498(1): 82 Subsection 498(3) deems police conduct lawful by continuing a detention under s. 498(1) if they fail to release as soon aspracticable. Subsection 498(3) does not purport to interpret, and render legal, action taken under the exceptions requiring a bail hearing,that is section 498(1.1). [89] This aspect of Jutras was followed by Boucher J. in R v Mullings, 2019 ONSC 2408 at para. 16 who wrote: “I agree that theplain wording of the provision in English and French reflects that

interpretation.” [90] Since Jutras, it has been held that the Crown has the onus of establishing that further detention in custody is necessary for thepurposes of s. 498(1.1): R v Holbrook, 2008 SKPC 133 at para. 25. In reviewing a peace officer’s decision under s. 498(1.1), “[t]heentirety of the circumstances known to the police at the time must be assessed to determine the reasonableness of their belief”: R vManuel, 2012 ONCJ 392 at para. 35. This requires an actual reasoned decision by the peace officer and not a mere “afterthought”:Holbrook at para. 26.

A decision to extend a detainee’s detention on the basis of a blanket, or all-inclusive policy will not be justified bys. 498(1.1): R v Hotte, 2015 ABQB 323 at paras. 32-37. [91] The cases in which peace officers’ decisions pursuant to s. 498(1.1) have been reviewed inevitably turn upon their own uniquefacts. In R v Tomlinson, 2009 BCCA 196 at para. 71, it was held that a decision to detain an accused pursuant to s. 498(1.1) pending thecompletion of a search of his residence was reasonable and in the public interest.

In Jutras at paras. 90-92 and in Manuel at paras. 34-38,it was held that a detainee's remote residency, considered alone, does not provide reasonable grounds for a belief that a detainee will failto attend Court for the purposes of s. 498(1.1)(b). [92] The legality of the overall period of delay experienced by the accused before being brought before a justice of the peace tospeak to police was governed by s. 503(1): 503

(1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has notreleased the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to betaken before a justice to be dealt with according to law: (

a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be takenbefore a justice without unreasonable delay and in any event within that period; and (

b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall betaken before a justice as soon as possible. [93] In R v Koszulap (1974), 20 CCC (2d) 913 (OntCA) at pp. 200-01, Martin J.A. noted that s. 454(1) (now s. 503(1)) does notgive a police officer “an unqualified right to keep such person in custody for the purposes of investigation for a period of 24 hours before

taking such person before a justice”. Instead, he observed, the

section states that the police must take the person before a justice withoutunreasonable delay and that the 24 hours is simply the outer limit of the time span.

This aspect of Koszulap was adopted by Cory J. in Rv Storrey, (SCC), [1990] 1 SCR 241 at p. 256. [94] The reasons for which an accused person may be detained for a reasonable time prior to being brought before a justice at leastinclude the one stated in s. 498(1.1)(a)(ii), being to “secure or preserve evidence of or relating to the commission of another offence”.This same authority to detain suspects while taking reasonable investigative steps also existed at common law: Dallison v Caffery [1965]1 QB 348 at p. 367. [95] Many cases have considered the issue of whether a particular detainee was “taken before a justice without unreasonable delayand in any event within” 24 hours for the purposes of s. 503(1).

The following representative cases are gathered by Penney et al, at p.395, §5.42, fn. 119: Storrey (18-hour delay to conduct identification line-up not unreasonable); R v Fayant (1983), (MB CA), 6 CCC (3d) 507 (ManCA) (14-hour delay, during which accused gave a statement, not unreasonable); R v Precourt (1976), (ON CA), 39 CCC (2d) 311 (OntCA) (accused and arrested at 4:30 p.m. and held overnight to conduct identificationline-up the next morning reasonable).

Other cases include R v McKelvey, 2008 ABQB 466 (holding accused for 10 hours on the basis ofhis supposed impairment unreasonable). [96] In the present case, Cst.

Hartwell testified that he decided to “lodge” the accused in cells pending a release hearing before ajustice of the peace since, in his view, the protection of the public warranted the imposition of conditions that the accused “shall not haveany contact or communication with any child under the age of 16 years”, and “shall not seek or obtain any employment or volunteerposition that involves being in a position of trust or authority towards children under the age of 16 years”.

His understanding at the timewas that s. 501 of the Criminal Code only authorized him to impose “no contact” conditions respecting persons involved in the particularcharge he had laid. The relevant aspects of s. 501 read: 501(3) The undertaking may contain one or more of the following conditions, if the condition is reasonable in the circumstances of theoffence and necessary, to ensure the accused’s attendance in court or the safety and security of any victim of or witness to the offence, orto prevent the continuation or repetition of the offence or the commission of another offence: […] (

d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, except inaccordance with any specified conditions; (

e) abstain from going to any specified place or entering any geographic area related to any person referred to in paragraph (d), except inaccordance with any specified conditions; [...] (

k) comply with any other specified condition for ensuring the safety and security of any victim of or witness to the offence. [97] In contrast to s. 501(3), s. 515(4) identifies the conditions which may be imposed by a justice when making a release orderpursuant to s. 515(2). The conditions in s. 501(3)(d),(

e) and (

k) are mirrored in s. 515(4) (d),(

e) and (g). Additionally, however, s. 515(4)(

h) empowers a justice to impose a condition that the accused “(

h) comply with any other reasonable conditions specified in the orderthat the justice considers desirable”. [98] Prior to the enactment of the current s. 501(3) in 2019, a similar authority on the part of a peace officer and the “officer incharge” to impose release conditions was contained in ss. 499(2) and 503(2.1). At that time, the equivalent provision to the current s.501(3)(

k) was contained in ss. 499(2)(

h) and 503(2.1)(h). In R v Barnett, 2010 ONSC 3720 at paras. 10-12, Nordheimer J. consideredthe authority of an officer in charge to impose a “no cellular phones” condition upon a person charged with drug trafficking pursuant tothese provisions, and concluded as follows: 12…[T]he Criminal Code authorizes an officer in charge to impose additional conditions for a very specific purpose -- to ensure thesafety and security of any victim or witness.

It does not authorize an officer in charge to impose additional conditions for any otherobjective, including the prevention of further offences, no matter how laudable those objectives may be.

That authority is only availableto a judge or justice of the peace in a bail application… [W]here there is nothing in the underlying offence that would suggest that such acondition has been imposed for the safety or security of any victim or witness, then that condition presents, on its face, as having beenimposed without jurisdiction. [99] I agree with the analysis of Nordheimer J. in Barnett and find it to be equally applicable to the current version of s. 501(3)(k).It may well be that the reasoning in Barnett was the source of the advice received by Det.

Hartwell respecting the current s. 501.However, the analysis in Barnett is only applicable to the current s. 501(3)(k). It is inapplicable to the current ss. 501(3)(

d) and (e). Thelanguage of those provisions is not limited to “any victim of or witness to the offence”. Instead, those provisions refer to “any victim,witness or other person identified in the undertaking”, and to “any specified place or entering any geographic area related to any personreferred to in paragraph (d)”. The judicial versions of these provisions, being ss. 515(4)(

d) and (e), contain substantially the samelanguage, and have long been recognized as authorizing the imposition of conditions designed to prevent the commission of otheroffences pending the trial. One case cited by Justice Trotter in The Law of Bail in Canada, 3d ed (Thomson Reuters: 2020 Rel. 1) at p.6-31 on this subject is R v Bielefeld (1981), (BC SC), 64 CCC (2d) 216 (BCSC).

In that case, Taylor J. concluded atparagraph 6 that what was then s. 457(4)(d) (now s. 515(4)(d)) authorized the imposition of conditions “to prevent interference in thecourse of justice, in the case of witnesses, and breaches of the peace in the case of other persons”. [100] Although Bielefeld addressed the authority of a judge or justice of the peace to impose release conditions, rather than thecorresponding authority of a peace officer, I find that the reasoning in that case applies equally to the language of the current ss.501(3)(

d) and (e). Those provisions authorize the imposition of “no contact” and “no go” conditions by peace officers in relation to anyvictim, witness, or other person. This language is not limited to persons involved in the particular offence or offences charged.

3.3.3 Application to the facts [ 101 ] I will now apply the legal principles summarized above to the facts and circumstances of the present case. [ 102 ] The police interview of the accused lasted from 10:04 a.m. until 2:39 p.m. I find that the police were authorized to detain the accused during this interval for this purpose. As stated in s. 498(1.1)(a)(ii), Det. Church and Det. Hartwell were empowered to detain the accused in custody for the purpose of securing evidence of or relating to the offence that they were then investigating.

Although the interview was unproductive, the time taken up by this task was not unreasonable. [ 103 ] After the conclusion of the interview, Det. Hartwell decided to detain the accused pending a bail hearing before a justice of the peace rather than releasing him on the basis of police documents. I find that this decision was also reasonable. Conditions 6 and 7 of the resulting release order were reasonable conditions and they were imposed in order to prevent the repetition of the offence or the commission of another offence (s. 498(1.1)(a)(iii)). The facts known to Det.

Hartwell provided him with reasonable grounds to believe that such conditions were necessary for the safety of the public. These facts included information that the accused had used the internet to acquire a babysitting job respecting the complainant, and information that at least one other complaint of a similar nature had been made against the accused. [ 104 ] At least one of the release conditions subsequently imposed upon the accused could not have been imposed by Det. Hartwell pursuant to s. 501(3) , and could only have been imposed by a justice at a bail hearing pursuant to s. 515(4)(h).

That condition is Condition 7 which provided that the accused not seek any employment or volunteer position that would put him in a position of trust or authority towards children under the age of 16. A “no employment” condition is fundamentally different from a “no contact” condition. Seeking employment or a volunteer position would not necessarily involve communications with children for the purposes of s. 501(3) (d), and so cannot be effectively prohibited pursuant to that provision. [ 105 ] I have considered defence counsel’s suggestion that Det.

Hartwell could have simply released the accused without all of the necessary conditions, and then had them amended later by a prosecutor. I conclude that Det. Hartwell’s explanation for not taking this route was reasonable and understandable. In his view, it was his responsibility to ensure that the accused was released on the necessary and appropriate conditions. Relying upon a prosecutor to apply for the amendment of the conditions at some point in the future would have been an abdication of that responsibility. [ 106 ] I therefore conclude that Det.

Hartwell’s decision to “lodge” the accused in cells pending a bail hearing was lawful in that it was made in accordance with s. 498(1.1). [ 107 ] I turn next to the reasonableness of the delay in bringing the accused before the justice. That delay lasted for approximately 9 hours from when the interview ended at 2:39 p.m. until the bail hearing commenced at 11:34 p.m. I do not find that this period of delay violated s. 503(1)’s requirement that the accused be brought before a justice “without unreasonable delay”.

The record does not disclose the cause or causes for this period of delay other than that some of the delay was attributable to the fact that the DMU was, at least for a time, filled to capacity, which delayed the accused’s transfer to that facility. There is no specific evidence as to the sufficiency of the police, prosecutorial, or judicial resources dedicated to processing the release of detainees at the time or today. Absent any further evidence on this point, I cannot conclude that a 9-hour delay is inherently unreasonable. [ 108 ] I have also considered defence counsel’s submissions to the effect that Det.

Hartwell or others ought to have taken certain extraordinary steps to expedite the accused’s release hearing such as by driving him over to the Law Courts building, or by otherwise prioritizing his release hearing. I agree with Crown counsel that the police were not required to take such extraordinary measures, which would have amounted to “queue jumping”.

Although the accused suffers from certain cognitive impairments and was separated from his father and guardian, the police were not required to give his hearing special priority at the expense of the other detainees awaiting a hearing. 3.3.4 Conclusions on ss. 7 and 9 [1] In

summary, I conclude that Det. Hartwell’s decision not to release the accused pursuant to s. 498(1) was authorized by s. 498(1.1) since he believed on reasonable grounds that it was necessary in the public interest that the accused’s release be dealt with under s. 515 rather than s. 501 . I also conclude that the police did not violate s. 503(1) by failing to bring the accused before a justice without unreasonable delay.

Accordingly, the accused’s 14-hour detention on February 13, 2020, from 10:00 a.m. until midnight was lawful, and was not an arbitrary detention for the purposes of s. 9 of the Charter . 3.4 Remedy [ 109 ] I turn now to the question of what remedy ought to be granted to the accused for the violation of the accused’s rights under s. 10(

b) identified earlier. Since the interview of the accused that followed that violation did not yield any answers of any particular use to the prosecution, the accused does not seek the exclusion of that statement, and instead seeks a stay of proceedings. [ 110 ] The test applicable to an application for a stay of criminal proceedings was stated by the Supreme Court of Canada in R v Babos , 2014 SCC 16 : 32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" ( Regan , at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" ( ibid. , at para. 57). [ 111 ] One of the cases relied upon by the defence in support of this application is R v Reilly , 2018 ABPC 85 , rev’d 2019 ABCA 212 , rev’d 2020 SCC 27 , in which a stay of proceedings was ordered on the basis that the accused had been unlawfully detained for more than 24 hours as a result of an ongoing and systemic problem in the bail system. [ 112 ] The breach of the Applicant’s s. 10(

b) rights was a serious one. It is difficult to understand how both Cst. Church and Det. Hartwell could have concluded that the accused had been accorded a reasonable opportunity to speak to his lawyer when he had just told them that he had been unable to reach her since she was in a hearing. Had the accused applied for an order pursuant to s. 24(2) of the Charter to exclude the resulting statement, he would have had a strong claim to such relief. [ 113 ] But a stay of proceedings pursuant to s. 24(1) is another matter altogether.

A stay is the most drastic and draconian of Charter remedies in criminal proceedings and will only be granted in the “clearest of cases”. I do not find that the violation of the accused’s s. 10(

b) rights in the present case warrants the imposition of a stay. [ 114 ] The s. 10(

b) violation does not prejudice the accused’s right to a fair trial. The violation did not lead to the creation of any evidence that the Crown intends to rely upon at trial. [ 115 ] Further, the violation is not so egregious that permitting the trial to proceed in the face of it would compromise the integrity of the justice system. The police dealt with the accused’s s. 10(

b) rights in a negligent manner. But they otherwise treated him fairly and humanely. Their conduct does not reflect any systemic or ongoing problem, and it is not necessary for the court to dissociate itself from that conduct by staying any further proceedings against the accused. [ 116 ] The accused’s application for a stay of proceedings is denied. It remains open to the accused to potentially seek a sentence reduction as a s. 24(1) remedy in the hypothetical event that he were to be convicted of one or more of his present charges. 4. Conclusions [ 117 ] The Crown has conceded that the police violated the accused’s rights under s. 10(

b) of the Charter by interviewing him without first giving him a reasonable opportunity to contact his lawyer. I accept that concession and find that such a violation did occur. However, the remainder of the accused’s Charter application is denied, and his application for a stay of proceedings is also denied. Heard on the 15 th and 16 th days of June, 2022. Dated at the City of Edmonton, Alberta this 5 th day of October, 2022. N.J. Whitling J.C.K.B.A. Appearances: Patrick Bigg for the Crown Deborah Hatch & Caitlin Dick for the Accused