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The Defence Toolkit – April 19, 2025: s.10(b) – Just Dial the Number

Charter 10(b) | During Search Warrant Execution | Gladue - Mitigation | The Principled Exception

Posted On 19 April 2025

This week’s top three summaries: R v Tierney, 2025 ABKB 223: 10(b) SW #delay & overhold, R v Cardinal, 2025 ABCA 128: #principled exception, R v Davis, 2025 BCCA 113: #gladue & s268,

R v Tierney, 2025 ABKB 223

[April 9, 2025] Charter s.10(b): Search Warrant Delay and Access to Counsel [Justice Kent J. Teskey]

AUTHOR’S NOTE: This decision is a breath of fresh air in an area that’s been marked by entrenched police habits and resistance to constitutional accountability. Justice Teskey puts into sharp focus a fundamental problem: police continue to treat access to counsel as a luxury rather than a right—especially when a search warrant is pending.

Key Takeaways from the Ruling:

  • Delay of Access Is Not Justified by Speculation: The idea that an accused will somehow use counsel to obstruct justice is just that—speculation, not evidence. Teskey challenges this myth head-on, implicitly ignoring the idea that defence lawyers could be co-conspirators and directing that police can dial their number directly (to prevent calling of non-lawyers). 

  • There Are Alternatives to Delay: One of the strongest contributions of this case is its push for practical solutions: the police can dial Legal Aid or reach out to counsel of choice before or during the warrant process. Waiting hours under the guise of “preserving evidence” without any meaningful legal access is not a justifiable default.

  • A Shift in Framing the Role of Defence Counsel: Teskey recognizes what many courts have been reluctant to articulate: lawyers are officers of the court, not extensions of criminal enterprise. That acknowledgment cuts at the root of the rationale often used to justify the delay.

How Defence Can Use This:

  • Charter s.10(b) arguments can be significantly bolstered using this case, particularly when there’s a gap between arrest/detention and meaningful access to legal advice during a warrant delay.

  • It opens up litigation strategies around the exclusion of evidence, especially where the delay is significant and avoidable.

  • The decision empowers cross-examination of officers who treat the denial of access as standard protocol. Teskey’s reasoning provides strong material for suggesting that such practice is not good faith, but systemic disregard.

In sum, this isn’t just a win on the facts—it’s a strategic tool that can help challenge the culture of reflexive denial of counsel in warrant-based investigations. It’s a ruling worth citing often and loudly.

[1] The Accused stands charged with serious offences relating to the possession of narcotics and firearms. He alleges that the police breached his rights under s 10 and 11(e) of the Charter by delaying his right to Counsel for over 16 hours and failing to bring him before a Justice of the Peace for 33 hours. They seek exclusion of all of the evidence obtained from the search of his residence pursuant to s 24(2) of the Charter. The Crown concedes that the breaches have been established but argues that they do not justify exclusion. For the following reasons, I find that the breaches are so severe as to justify exclusion.

I. Facts

[3] On May 10, 2021, the Applicant was handcuffed at 2345 hours. At 2351 hours, he was advised that he was under arrest for trafficking and read his Charter rights. In response to wanting to speak with a lawyer, he stated, “Yeah, please.”

[4] At 0111 hours (now May 11, 2021), Cst. Sidorenko ordered that the Applicant not be permitted to contact counsel. He acknowledged that this was a Charter breach

[5] At 1359 hours, two males exited the residence and were detained by Cst. Sidorenko. He advised them of the CDSA investigation

[6] Cst. Henning noted that “the preservation of evidence was not a concern for Tactical at this time given the length of delay in obtaining a search warrant.”

[7] At 1500 hours, a warrant was obtained.

[8] At 1550 hours, a police announcement was made at the residence’s front door, 8635 180 Street, with no response. Cst. Davie noted that “At this time it was believed that the presence of police had been known by both the occupants of 8635 180 Street for a significant period of time” as a marked car had been parked outside for hours and there had been a plain clothed RCMP arrest of two males who had exited the residence.

[10] At 1614 hours, the house was cleared and Cst. Sidorenko called the Parkland Detachment to advise that the Applicant was now permitted to use the phone room.

[11] The Police seized considerable amounts of Fentanyl (1248g), Cocaine (1587g), and methamphetamine (500g), which he admitted to possession of before me.

[12] At 1621 hours, the Applicant was brought to the phone room.

The Law- Delay in Right to Counsel

[15] I rely on the helpful decision of Justice DiLuca in R. v. Wu, 2017 ONSC 1003, which I consider to be a complete summary of the law on delay to the right to Counsel and reproduce in its entirety,

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 at para. 75.

b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law:

i. Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J., 2010 ONSC 735 at paras 276-8, and R. v. Learning, at para. 75;

ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-15 and 122;

iii. Cases where there safety concerns for the accused, see R. v. Strehl, 2006 CanLII 39572 (ONSC) at para. 4;

iv. Cases where there are medical concerns, see R. v. Willier, 2010 SCC 37 at para. 8 and R. v. Taylor, 2014 SCC 50 at para. 31;

iv. Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover, 2016 ONSC 4795 at para. 66 and 70, R. v. Kiloh, 2003 BCSC 209 at para. 15 and 38, and R. v. Salmon, 2012 ONSC 1553 at para. 92; and,

v. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay, see R. v. J.(K.W.), 2012 NWTCA 3 at para. 29-30, and R. v. Khairi, 2012 ONSC 5549.

c. The right to counsel cannot be suspended simply on the basis that a search warrant is pending, see R. v. Soto, 2010 ONSC 1734 at para. 69, and R. v. Liew and Yu, 2012 ONSC 1826 at para.70.

d. A general or bald assertion of “officer safety” or “destruction of evidence” concerns will not justify a suspension of the right to counsel, see R. v. Patterson, 2006 BCCA 24 at para 41-42, and R. v. Proulx, 2016 ONCJ 352 at para.47.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

f. The suspension of the right must be only for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581, at para. 83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances.

g. The longer the delay, the greater the need for justification. The right to counsel must be given “without delay.” The case law addressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to an extreme example of a suspension of the right to counsel for a period of approximately 26 hours; see Blakely v. Parker, 2007 CanLII 33123 (ON SCDC). In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and the target of the search was known to be part of a criminal organization that was willing to confront and shoot police.

h. The suspension of the right to counsel must be communicated to the detainee, see: R. v. Rover, 2016 ONSC 4785 at para. 70.

II. Analysis

The Police did not have a reasonable basis to delay the right to Counsel.

[17] Simply because a premise is occupied does not create a risk that evidence will be destroyed, nor does it necessarily create an officer safety risk. To find such would be to create a categorical rule that would significantly alter the ordinary right of immediate right to counsel. Police should be prepared to provide cogent, detailed and case-specific reasons that justify the exceptional decision to deny counsel. Resorting to hunches and generalities will be insufficient to meet the evidentiary requirement.

[18] Moreover, the officers failed to consider reasonable alternatives to delaying counsel, including dialing the Legal Aid line or calling the lawyer the accused wished to call. [Emphasis by PJM]

The Police failed to reevaluate the decision to withhold the right to Counsel throughout the delay period.

[19] Even if initially reasonable, the Police are under a continuing obligation to consider the need to delay the right to Counsel throughout the period. In this case, the police made no effort to reassess the decision to delay at any point. This is unacceptable. After the arrest, the police positioned a vehicle within view of the residence and noted nothing of concern. Moreover, Cst. Davie believed that the occupants of the house would have been aware of police presence for a “substantial period of time”

[20] There were numerous opportunities where the Police ought to have reevaluated their initial decision to delay Counsel. This makes the conduct more serious…

In this case, once the decision was made to deny Counsel, it was never meaningfully reevaluated until the search was executed. This is unacceptable.



The Police failed to advise the Accused of withholding the right to Counsel

[21] At no point did the police ever tell the Accused that the right to Counsel was being delayed, and more importantly, why. This is unacceptable…

[22] When an accused is told they have a right, but not why it is being withheld, they may reasonably believe it doesn’t exist. The failure to communicate the delay to Mr. Tierney again renders the state’s conduct more serious.

Conclusion on Section 10(b)

[23]…The law on s 10(b) rights could not be clearer. Immediate means immediate. That is the rule. To the extent circumstances compel an exceptional delay, it must be on serious evidence, continually and probingly reassessed throughout the delay period. I struggle to find words to convey my concern for the conduct of the police in this matter.

Overholding the Accused for a Bail Hearing

[24] The Accused was detained for roughly 33 hours before having a bail hearing. The statutory requirement under s 503 is that an Accused be brought before a Justice within 24 hours.

[25] This is not a new or uncertain rule…

[26] This case also postdates significant judicial comment about overholding issues in Alberta in R. v. Reilly, 2020 SCC 27, where the Supreme Court of Canada affirmed a stay of proceedings for issues of systemic overholding.

[28] First, the police failed to send the bail package to the Hearing Office until 30 minutes before the 24-hour deadline.

[29] Second, there is no evidence that I can rely on to suggest that COVID-19 was attributable to delay. Instead, I find that the delay caused to this Accused was solely attributable to the police choosing to prioritize their investigative interests over their constitutional prerogative to the rights of the Accused.

[30] This is highlighted by the fact that they choose to engage in a multiple-hour police interrogation of the Accused well outside of the 24-hour mark, after 30 hours in custody…

III.Section 24(2)

[32] While there is not a direct causal link between the Charter breaches and the evidence seized, there is a significant temporal and contextual connection that allows me to consider exclusion. As noted in R. v. Wittwer, 2008 SCC 33 at 21,

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p.1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha, (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376 at para. 45.

[33] I make the following findings on the three branches of the Grant analysis.

The Seriousness of Charter-Infringing State Conduct

[34] The Police were at best careless, but in my view, they were largely indifferent to the essential rights that were being violated

[35] This factor favours exclusion

The Impact on the Charter-Protected Rights of the Accused

[36] These violations impacted significant rights for this Accused. The hours surrounding arrest engage significant vulnerability for a detainee. As described by Laskin J.A in R. v. Pino, 2016 ONCA 389 at para 105, the right to counsel is “a lifeline to the outside world.” This vulnerability was exacerbated by the significant delay of the Accused’s bail hearing.

[37] This factor also points to exclusion

Balancing the Factors.

[40] I accept that where, as in this case, the first and second factors bear strongly towards exclusion, the third factor will seldom, if ever, tip the balance towards admissibility, R. v. McGuffie, 2016 ONCA 365 at para 65.

[41] I am also guided by the decision of the Ontario Court of Appeal in R. v. Whittaker, 2024 ONCA 182, where the Court overturned the 24(2) determination of a trial judge who erroneously found that a 10-hour delay in the right to Counsel was “an honest mistake.” The Court held that the clear and decisive legal requirements under Section 10(b) compelled a finding that the conduct was extremely serious. In performing a Section 24(2) analysis afresh, they held at paragraph 42,

The breach of the appellant’s s. 10(b) rights was so serious and injurious to his Charter-protected interests that no amount of public clamour for a conviction could tip the scales towards inclusion. The integrity of the justice system would be compromised if, in these circumstances, this court were to effectively vindicate the inexcusable Charter breach by the police. Simply put, the administration of justice is better served by excluding the evidence than by admitting it.

[44] While I am aware of the serious criminal conduct involved in this matter, the conduct of the police was neither minor nor merely imperfect; it was a serious breach of fundamental Charter rights. In my view, to admit this evidence under this cloud of impropriety would be to promote “…a theory of the rule of law that a thoughtful and reasonable citizenry would not likely accept.” R. v. Julom, 2022 ABCA 198, at para 92

IV.Conclusion

[45] The evidence is excluded pursuant to s 24(2) of the Charter

R v Cardinal, 2025 ABCA 128

[April 11, 2025] Principled Exception to Hearsay: Combining procedural and substantive threshold reliability creates a risk of admission in legal error [Dawn Pentelechuk, Anne Kirker, and Alice Woolley JJ.A.] 

AUTHOR’S NOTE: This case is a solid reminder that the principled hearsay exception isn’t a shortcut to admissibility just because a statement feels emotionally compelling or seems superficially trustworthy.

Key Takeaways:

  • Procedural vs. Substantive Reliability: Courts need to clearly identify which route they’re relying on—and not blur the lines. Mixing both without doing the proper analysis risks a legal error, as confirmed by the Supreme Court.

  • Emotions ≠ Reliability: The judge leaned heavily on the emotional presentation of the declarant (as observed by police) and the tone of the audio recording, but failed to rigorously test the reliability of the statement through either route.

  • Alternate Explanations Matter: The Court also ignored plausible alternate motives—like the declarant possibly trying to get the accused in trouble. Failing to grapple with such possibilities weakens any claim of inherent trustworthiness.

Defence Use:

This decision is a great tool for challenging questionable hearsay—especially when the Crown leans on emotional appealor perceived sincerity rather than real safeguards or evidence of truth. Defence counsel can use it to push back on lazy applications of the principled exception and remind trial judges of the danger of combining the two routes without due diligence.

 

Introduction

[1] Shortly after midnight on December 26, 2022, the complainant JH called 911 and reported that someone was in her home with a gun, a person she later identified as the appellant Preston Cardinal. She told the 911 operator that the appellant was “taking stuff” from her apartment, had pulled out his gun to try “to keep [her] in the apartment”, and had threatened to shoot her.

[2] The police came to JH’s building and found the appellant inside, holding a backpack. In the backpack was a baggie containing 5.5 grams of methamphetamine, as well as two rounds of 22-calibre ammunition and an iPad belonging to JH. The police discovered an airsoft pistol and sawed-off rifle in the building proximate to where the appellant was found. No meaningful comparison could be made to DNA found on the airsoft pistol, but the DNA of three individuals was identified on the sawed-off rifle, one of whom was the appellant.

[3] After the appellant was arrested, the police interviewed JH in her apartment. She gave the police an audio recorded statement. The statement was not video recorded or taken under oath or caution. The police asked JH some follow-up questions about the information she provided.

[4] …The Crown sought to admit JH’s 911 call and her audio statement to the police as exceptions to the rule against hearsay. The 911 call was admitted as a spontaneous utterance. The audio statement was admitted under the principled exception to the exclusion of hearsay. Under the principled exception the party seeking to admit the evidence must establish the necessity and threshold reliability of the hearsay evidence on the balance of probabilities.

[5] The appellant consented to admission of the 911 call subject to limits on its use as a prior consistent statement. The trial judge admitted JH’s audio recorded statement to the police after a voir dire. The appellant had agreed the necessity requirement was met and the trial judge found threshold reliability was also made out. The trial judge subsequently convicted the appellant…

[6] The appellant appeals his conviction on the basis that JH’s audio statement to the police ought not to have been admitted in evidence as it was neither procedurally nor substantively reliable. For the reasons that follow, we allow the appeal.

Complainant statements

[8] In the 911 call and in her audio recorded statement, JH identified the appellant by name and description. She reported that the appellant had threatened her with a gun, telling her that he would shoot her or anyone she let into the apartment. In her audio recorded statement she further told the police that the appellant said he possessed multiple firearms, including two “handies” and a “sawed-off shotgun maybe”. She said in her audio recorded statement that the gun he used when threatening her was a black handgun.

[9] These statements were the only evidence that the appellant committed assault and that he used a weapon while doing so. They also were important to link the appellant to the airsoft pistol; absent JH’s statement, the only link between the appellant and the airsoft pistol was that it was near him in the apartment building when he was arrested.

[11] While JH’s account of the appellant’s assault and of his use of a firearm was largely consistent through the 911 call and the audio statement, other aspects of her account shifted during the course of her discussions with the police.

[12] On the 911 call, JH initially said that she did not know the appellant. She said that she had met him on Facebook the day before, and met him in person for the first time that day. She said she did not invite him over or tell him her address. During the audio statement, JH initially said she met the appellant two days before on Facebook. He had asked if he could come over that day and she said maybe he could come over that evening, and he then showed up at her place later that evening. Further on in the interview, however, JH gave a different account. She said that after meeting the appellant on Facebook a few days earlier, he had come to her apartment the day before, and they had sex. Now he had come to visit her again and “to spend the night”…

[13] JH provided information that could be used to infer she had animus towards the appellant, including that she understood the appellant had stabbed someone she knew and stolen from him. She described the appellant as having beaten his sister, as beating up women all the time, as a murderer and a gang member. She told the police that her friend Rob had warned her about problems with the appellant and had suggested to her, “Why don’t we just set him up and we get rid of him”, to which she said that she had replied, “I don’t want nothing to do with any of that”. [Emphasis by PJM]

[14] In addition, over the course of the statement JH acknowledged that on the previous day she had attempted to enter into a scheme with her friend Rob, to act as a go-between for the appellant and Rob who was interested in purchasing a firearm. JH’s explanation for this was that she had just had her children returned to her, and she needed money. She also expressed concern that the statement she was providing might jeopardize her custody of her children. [Emphasis by PJM]

[19] The trial judge found the statement to be substantively reliable. She emphasized that it was made within minutes of JH calling 911, and that the officer testified that JH appeared to be scared. The audio recording allowed the court to hear JH’s fear as well as the sound of relief in JH’s voice that the police had arrived. There were no dangers with memory, perception or narration given that no meaningful time had elapsed between the events and JH’s account of them, and given the clarity and detailed information JH provided…

…The trial judge found that while video would be helpful, it “would not add a great deal to this”, particularly given the officer’s observations of JH’s demeanour…

[20] The trial judge relied as well on corroborative evidence. The appellant matched the description provided by JH. The police found ammunition, a sawed-off rifle with the appellant’s DNA and the airsoft pistol, “all within a very short time of the police being dispatched to a high priority call”. The complainant was found where she said she was. Given this, the trial judge considered and rejected the possibility that the complainant was being dishonest in her account, concluding that the corroborative evidence combined with “the other aspects of the audio-taped statement” were sufficient to overcome the dangers of hearsay.

[25] The admissibility of JH’s statement is a question of law reviewable for correctness; however, if the trial judge addressed the factors relevant to reliability, did not materially misapprehend relevant evidence and reasonably assessed the weight to be assigned to each factor, her weighing of those factors is entitled to deference; “absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference”: R v Charles, 2024 SCC 29 at para 41; R v Lawrence, 2020 ABCA 268 at para 14; R v Youvarajah, 2013 SCC 41 at para 31 [Youvarajah]; R v Couture, 2007 SCC 28 at para 81.

Analysis

[28] Hearsay evidence is presumptively inadmissible. It can exceptionally be admitted if it is necessary and sufficiently reliable: R v Bradshaw, 2017 SCC 35 at para 18 [Bradshaw]. Necessity and threshold reliability are established on a balance of probabilities; reliability exists when the hearsay is “sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: Bradshaw at paras 23, 26; R v Khelawon, 2006 SCC 57 at paras 47, 49 [Khelawon]

[29] Threshold reliability can be established by showing procedural reliability, that there are “adequate substitutes for testing truth and accuracy”, or substantive reliability, that “there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy”: Bradshaw at para 27; Youvarajah at para 30; Khelawon at paras 61-63.

[30] Procedural reliability usually requires “some form of cross-examination of the declarant”, although a court may consider factors such as whether the statement is video recorded, the presence of an oath and whether the declarant was warned about the consequences of lying: Bradshaw at para 28; Youvarajah at para 54; Khelawon at para 76.

[31] Substantive reliability considers the existence of explanations for a statement other than its truthfulness and reliability, “whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”: Bradshaw at para 40. A judge considering admissibility based on substantive reliability must use corroborative evidence cautiously, relying on such evidence only “if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement”: Bradshaw at para 44. It “must show that the material aspects of the statement are unlikely to change under cross-examination”: Bradshaw at para 47. A judge must rule out plausible alternate explanations for the statement on a balance of probabilities: Bradshaw at para 49.

[33] While procedural and substantive reliability may be considered together to establish threshold reliability, courts do so rarely; a combined approach creates the risk that a statement will be admitted despite insufficient procedural safeguards or guarantees of inherent trustworthiness: Bradshaw at para 32; R v Tsega, 2019 ONCA 111 at para 24.

[34] …she committed the errors in principle identified by the appellant.

[35] The circumstances in which JH made her statement to the police did not provide an adequate substitute for the traditional safeguards of stating the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. They did not overcome the dangers that arise from the inability to further test the statement’s truth and accuracy. The trial judge had no evidence about how JH viewed the police officers, or to suggest that their presence made her feel a greater need to tell the truth. JH was not cautioned about the importance of telling the truth and did not provide an oath or affirmation. The fact that police officers were present does not, in and of itself, justify an inference that JH understood she needed to tell the truth to those officers. In addition, the questions the police officers asked JH were limited and not probing. Unsurprisingly given their role, and that they had reason to understand JH to be a victim of a crime, they asked her for clarification or more information, but did not challenge her or test the credibility or reliability of the information she provided. Their role was not to cross-examine JH and they did not do so, even when details of her account changed.

[36] The trial judge believed that she could discern JH’s emotional state from listening to the audio recording and from the officer’s testimony that JH seemed scared, and from that infer JH’s credibility. This conclusion gives insufficient weight to the role of cross-examination in the trial process; it places improper weight on the trier of fact’s perception of a recorded speaker’s emotional affect. [Emphasis by PJM]

[37] The trial judge acknowledged that the circumstances in which JH made her statement to the police did not establish procedural reliability. She nonetheless permitted some weak indicia of procedural reliability to weigh materially in her analysis. In doing so she erred; the circumstances in which JH’s statement was made provided no material assurance as to its truth and accuracy. They could not be used to establish threshold reliability alone or in combination with substantive reliability. [Emphasis by PJM]

[38] The trial judge also did not consider the most plausible alternative explanation for JH’s statement, other than its truth and accuracy, in assessing whether the corroborative evidence assisted in establishing substantive r

[39] It was an effective way to do what JH said Rob had asked her to do – to set the appellant up.

[40] That explanation may not be correct or accurate. It may be less likely than the explanation that JH said what she said because it was the truth. But it is a plausible explanation for JH’s statement other than its inherent trustworthiness, one which the trial judge needed to identify and consider prior to admitting the statement.

[41] Moreover, it is an explanation that is consistent with the corroborative evidence.

[42] …the less exculpatory possibility, that JH knew the appellant possessed firearms and called the police to set the appellant up, was raised by JH’s statement itself, and needed to be considered by the trial judge in determining the substantive threshold reliability of JH’s account that the appellant threatened her with a weapon. She did not do so. [Emphasis by PJM]

[43] The substantive reliability of JH’s statement was further undermined by its inconsistencies. The trial judge minimized their significance. In doing so she improperly discounted the function of cross-examination in testing a witness’s credibility and reliability. Where a witness shifts their account of how they met someone, and the nature of the relationship they had with them, it raises the possibility that other aspects of their account may change or shift when challenged in crossexamination. The inconsistencies here matter not because of the facts with respect to which JH was inconsistent, but because they reveal JH to be inconsistent. They call her credibility and reliability as a witness into question. And they raise the material possibility that further inconsistencies, including on facts material to the appellant’s guilt, may have been revealed if JH was cross-examined at trial. [Emphasis by PJM]

[44] …Here, however, the issues with JH’s character, and the extent to which the trial judge minimized those issues, exacerbate the problems with the finding that JH’s statement had threshold reliability. JH’s acknowledgement of criminal activity may not have been fatal to the admission of her statement, but on the facts of this case it ought not to have been used to support its admission, as the trial judge seems to have done when she emphasized in both the voir dire and trial decision that JH brought “all these things up….without much probing, and volunteers many things that the police are not aware of that make her look less positive”.

[46] Based on this analysis, we are satisfied that JH’s audio recorded statement could not have been admitted on a proper assessment of threshold reliability…

[48] He submits, however, and we agree, that an acquittal must be entered for his conviction for assault (count 10) and for use of an imitation firearm in an offence (count 1)…

[49] A new trial is ordered with respect to the offences related to possession of a firearm (counts 2, 4, 5, 6 and 14)…

R v Davis, 2025 BCCA 113

[April 7, 2025] Charter s.11(b): Delay Under the Ceiling after Direct Indictment [Majority Reasons by Fenlon J.A. with Grauer J.A. concurring, Riley J.A. dissenting]

AUTHOR’S NOTE: This case is a strong reaffirmation that Gladue principles are not optional or sidelined just because an offence is violent or serious. It underlines what R v Ipeelee made clear over a decade ago: systemic and background factors facing Indigenous offenders must be given real weight—even in cases involving major offences like aggravated assault.

Core Points from the Case:

  • Seriousness of the Offence ≠ Disqualification: The trial judge erred in treating the violent nature of the offence as an automatic bar to a Conditional Sentence Order (CSO). The Court of Appeal emphasized that seriousness alone is not determinative.

  • Gladue as a Makeweight: Where the offender meets the legislative criteria for a CSO, Gladue considerations should tip the scale in favour of a community-based sentence, particularly when over-incarceration of Indigenous people remains a crisis.

  • Judges Have a Role in Reducing Incarceration: The appellate decision reinforces that sentencing judges are not passive actors—they have a positive duty to consider alternatives to imprisonment, especially when dealing with Indigenous offenders.

Takeaway for Defence Counsel:

This case gives defence lawyers strong ammunition for pushing back against reflexive custodial sentences for Indigenous clients—even in violent cases. It also empowers arguments that courts should not water down or bypass Gladue analysis when legislative alternatives to jail, like CSOs, are available.

Gladue isn’t just a checkbox. It’s a constitutional imperative, and this case helps bring that message back to the foreground where it belongs.

[1] The appellant Isaac Davis pleaded guilty to aggravated assault and was sentenced to 21 months in jail followed by one year’s probation. On appeal, he seeks the imposition of a conditional sentence, contending the judge failed to give effect to the principles in R. v. Gladue, [1999] 1 S.C.R. 688 [Gladue] and the requirement in s. 718.2(e) of the Criminal Code, R.S.C., 1985, c. C-46, that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

Background

[2] On January 13, 2023, the appellant was 20 years old. He was on the phone with his mother when she became involved in a motor vehicle accident with the victim, Mr. Stone. The appellant thought he could hear Mr. Stone yelling at his mother. Thinking that she was in danger, he rushed to the scene of the accident. On arrival, he spoke to his mother and then confronted Mr. Stone who was hurrying towards his mother, having just come from a store where he had purchasedcigarettes for her. Although Ms. Davis tried to stop her son, he walked briskly towards Mr. Stone and punched him in the middle of his forehead, causing him to fall to the ground unconsciou

[3] The judge described the assault and its devastating impact on the victim:

[7] The punch was delivered without warning and without Mr. Stone having an opportunity to protect himself. The punch was a very serious assault. Mr. Stone suffered from a skull fracture and a severe brain injury. Once on the ground, Mr. Stone was bleeding from the head, unconscious, and throwing up. Mr. Stone was transferred immediately to a hospital in Victoria where he had emergency surgery to relieve pressure on his brain. Mr. Stone had two bleeds on the brain, he had multiple surgeries, he was in a coma for three weeks, and was paralyzed for two weeks. It was touch and go for a while as to whether Mr. Stone was going to survive or not.

On Appeal

[4] The appellant contends the sentence imposed by the judge is unfit because he erred:

(a) in concluding that “Gladue factors” played a limited role in the sentencing exercise; and

(b) in his evaluation of mitigating factors, which impacted his decision to refuse to impose a conditional sentence order.

[6] Judges are given broad discretion in the imposition of a fit sentence. As a result, an appellate court can intervene to vary a sentence only when the sentence is demonstrably unfit, or the sentencing judge has made an error in principle that had an impact on the sentence: R. v. Friesen, 2020 SCC 9 at para. 26 [Friesen]; R. v. Sellars, 2018 BCCA 195 at para. 22; R. v. Lacasse, 2015 SCC 64 at paras. 41, 44.

[9] In the present case, the sentencing judge was alive to the importance of Gladue factors and his obligations under section 718.2(e), but he found these factors had a “lesser impact,” in part because of Mr. Davis’s “success in life” as demonstrated by the fact that he had graduated from high school, was employed, had no negative peer associations, no addiction issues, and no criminal history: at para. 19.

[10] The Crown concedes the judge erred in principle in his approach to Mr. Davis’s circumstances as an Indigenous offender—the appellant’s success and his desire to better himself were not a principled basis to find that the impact of Gladue factors on his moral culpability should somehow be afforded less weight. In this regard, the Crown notes that the appellant’s paternal great-grandmother was a residential school survivor and, as the judge recognized, the appellant’s grandmother and father had clearly been impacted by the historical treatment of Indigenous Peoples: at para. 18. In short, these circumstances could not be ignored or minimized because the appellant had to some extent risen above the challenges he faced: R. v. Kehoe, 2023 BCCA 2 at paras. 42, 54.

[11] It is the Crown’s position on appeal that, despite this material error, the judge nonetheless imposed a fit sentence, one that was near the bottom of the range for an offence of this gravity…

[12] Because the judge’s error was a material one, this Court must consider the sentence afresh, without deference, while at the same time deferring to the judge’s factual findings and his identification of the aggravating and mitigating factors to the extent that they are not affected by the error: Friesen at paras. 27–28.

[15] The specific question to be addressed in this case is whether Mr. Davis, as an Indigenous offender, should be sentenced differently from the way a non-Indigenous offender would be sentenced for an aggravated assault of this nature. In my view, the answer to that question must be “yes.”

[17] Sentencing judges are to pay “particular attention to the circumstances of Aboriginal offenders because those circumstances are unique, and different from those of non-[A]boriginal offenders”: at para. 37. The Court continued

37 The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction.

[Emphasis added.]

[18] It follows that s. 718.2(e) requires the sentencing judge to consider alternatives to the use of imprisonment: Gladue at para. 38. That is consistent with the purpose of s. 718.2(e), which is intended to address the problem of over incarceration in Canada and, in particular, the more acute problem of the disproportionate incarceration of Indigenous people: Gladue at paras. 50–51.

[20] In R. v. Ipeelee, 2012 SCC 13 [Ipeelee],…

[21] Addressing the criticism that handing down different sentences for Indigenous and non-Indigenous offenders for the same offences is inconsistent with the parity principle—which requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances—the Court wrote:

[79] In practice, similarity is a matter of degree. No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances. Section 718.2(b) simply requires that any disparity between sanctions for different offenders be justified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencing process. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e) […] [Emphasis added.]

[22] …The second and more significant error is noted to be “the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences”: Ipeelee at para. 84. In this regard, the Court observed:

[84] […] The passage in Gladue that has received this unwarranted emphasis is the observation that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing” (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).

[24] I return then to my conclusion that, in sentencing Mr. Davis as an Indigenous offender, he must be sentenced differently from a non-Indigenous offender. But how is that to be put into practice? It is evident that a conditional sentence may be imposed for aggravated assault…

[25] …There was thus no statutory barrier to the imposition of a conditional sentence order.

[26] I turn then to the challenging question facing this Court as we sentence anew: when the Gladue factors are given appropriate weight, does Mr. Davis’s lessened moral culpability tip the scales sufficiently to warrant a conditional sentence despite the serious consequences of his actions, and the need to deter others and denounce such conduct?

[27] Ipeelee is clear that an Indigenous offender who has committed a violent, serious offence may, in appropriate cases, receive a lesser term of imprisonment than a non-Indigenous offender, without contravening the parity principle. But Ipeelee does not expressly address whether a non-carceral sentence for an Indigenous offender, in circumstances in which a non-Indigenous offender would be imprisoned, would similarly avoid that contravent [Emphasis by PJM]

[29] In conducting the individualized assessment, I conclude that, in contrast to the offenders in the cases considered by the sentencing judge and relied on by the respondent Crown, Mr. Davis’s moral blameworthiness is markedly diminished by his circumstances as an Indigenous offender.

[30] Mr. Davis is a member of the K’ómoks First Nation. His role in the family was described as that of a “protector” to his mother and female cousin. Reports filed at sentencing confirmed that his father abused his mother and sexually abused his cousin. Mr. Davis’s upbringing was marked by poverty, domestic violence, and substance misuse by both parents. Mr. Davis felt compelled to shield family members from “bad experiences” and “take care of everyone.” Mr. Davis was 20 years old at the time of the offence, and a first-time offender with no involvement with the police prior to that date. Despite a diagnosis of dyslexia and ADHD, Mr. Davis had graduated high school, was gainfully employed, and was described by his employer at sentencing as empathetic and compassionate.

[31] It bears repeating that Mr. Davis grew up on a reserve witnessing chronic abuse of his mother by his father…

Mr. Davis’s circumstances provide the necessary context for understanding his actions on the day of the offence. Mr. Davis perceived Mr. Stone as an aggressor and his mother as in need of protection. That perception, although flawed, caused him to overreact and deliver a single blow to Mr. Stone with devastating consequences. Mr. Davis’s reaction to Mr. Stone was undoubtedly shaped by sociopolitical factors, including the systemic and background factors identified in Gladue and Ipeelee.

[32] Mr. Davis’s reaction when he realized what he had done is telling. He tried to help Mr. Stone, rolling him onto his side, apologizing profusely as overheard by witnesses at the scene. Mr. Davis waited for paramedics and police to arrive and immediately accepted responsibility for the injury caused to Mr. Stone…

[35] In my view, the brief period of time between the accident and Mr. Davis’s arrival did not provide him with an opportunity to consider his response to the situation. It was Mr. Davis’s arrival at the scene and his continued perception of his mother being in distress that caused him to assault Mr. Stone. It is evident that Mr. Davis’s perception was skewed…

[36] Taking into account the full weight of Mr. Davis’s circumstances as an Indigenous offender, we are required to do more than pay lip service to Gladue and Ipeelee, mindful that section 718.2(e) creates a judicial duty to give its remedial purpose full force: Gladue at para. 34.

[37] Incarceration rates for Indigenous offenders will not be reduced significantly if sentencing judges simply reduce the term of imprisonment they would otherwise have imposed in order to account for Gladue factors. Serious consideration should always be given to the imposition of a conditional sentence in all cases where the statutory prerequisites are satisfied: R. v. Proulx, 2000 SCC 5 at para. 90 [Proulx]. If a CSO cannot be considered a fit sentence in the circumstances of this case, I cannot help but ask whether a CSO could ever be imposed on an Indigenous offender for a serious offence. [Emphasis by PJM]

[38] The devastating injury suffered by Mr. Stone and the impact of those injuries on his life loom large in the sentencing assessment, as they must. But consideration of those serious consequences as mandated by section 718.2(a)(iii.1), and the need for deterrence and denunciation, must not be allowed to negate the importance of considering the offender’s moral culpability. [Emphasis by PJM]

[44] We are confronted in this case with a situation in which some principles of sentencing militate in favour of a conditional sentence, while others favour incarceration. In these circumstances, we are called upon to weigh the various objectives in fashioning a fit sentence, aware that the weight given to each principle must vary according to the nature of the crime and the circumstances of the offender: Proulx at para. 116. Conducting the assessment in accordance with these directions, I conclude that significant weight should be placed on the lessened moral culpability of the offender given his circumstances as an Indigenous person. These factors, along with the other mitigating factors identified by the judge, and the effectiveness of a strict conditional sentence order in achieving denunciation and deterrence, lead me to conclude that a conditional sentence is a fit sentence in this case.

Disposition

[46] I would grant leave to appeal, allow the appeal, set aside the sentence of 21- months in custody, and replace it with a conditional sentence of two years less a day followed by 12-months’ probation on the same terms imposed by the judge

 

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Written By Pawel Milczarek

Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

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