This week’s top three summaries: R v Whitlock, 2025 ONSC 6006: #remand s.12, R v EJ, 2025 ONSC 6016: #self-defence, R v CB, 2025 ONSC 6004: cross-count #similar fact

R. v. Whitlock, 2025 ONSC 6006

[October 24, 2025] Charter s.12: Remand Retribution by Staff [Conlan J.]

AUTHOR’S NOTE: Remand facilities are inherently dangerous environments. Remand prisoners—who are presumed innocent—face risks of violence and exploitation from fellow inmates for countless reasons. The foundational bargain society makes when denying pre-trial release is this: if liberty must be restricted pending trial, the State must provide humane and safe conditions of confinement.

At times, that bargain breaks down. This case illustrates a disturbing scenario in which remand guards, frustrated or animated by a sense of vengeance, inflict unlawful punishment on those in their care. When that occurs, the courts must confront the reality that these abuses are not isolated from the criminal process—they are directly connected to it. The connection begins the moment bail is denied and the accused is placed into the custody of remand authorities.

This decision provides a clear roadmap for how such constitutional violations can and should be addressed. Where state actors tasked with custodial care commit unlawful acts to them, the justice system can only meaningfully distance itself from that misconduct by staying the affected criminal charges. Anything less risks signalling tolerance of retaliatory or punitive behaviour by those entrusted with coercive power.

In a society governed by the rule of law, remand authorities must exercise their responsibilities with restraint, humanity, and fidelity to constitutional norms. Vengeance is never a permissible basis for the exercise of state power—especially against individuals who have not been convicted of any offence.

[Note: Names of accused removed by author and replaced by A, B, and C]

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I. Overview

[1] In a preferred Indictment dated 27 February 2024, three accused persons, [A, B,and C], are charged with (i) committing first-degree murder on the person of Arman Dhillon contrary to section 235(1) of the Criminal Code and (ii) attempting to murder Sonia Grewal while using a firearm contrary to section 239(1) of the Criminal Code.

[4] This ruling relates to the joint defence application for an order staying the proceedings against each accused under section 24(1) of the Canadian Charter of Rights and Freedoms (“Charter”)

[5] The subject matter of the application is what happened at Maplehurst Correctional Complex (“MCC”) in late December 2023.

[6] There is no dispute that there was a serious incident that occurred at MCC on December 20, 2023. On that date, a correctional officer named Lecinski (“Lecinski”) was assaulted. He was punched in the face by an inmate in Unit 8C, prompting an emergency response that included a code blue.

[7] There is no dispute that none of the three accused in our case had anything at all to do with the assault on Lecinski.

[8] There is no dispute that, ultimately, Superintendent Wong (“Wong”) authorized the deployment of the Institutional Crisis Intervention Team (“ICIT”) over two days, December 22 and 23, 2023. There is no dispute that the ICIT operation involved the extraction and search of every inmate, including the three accused in our case, and every cell on the whole of Unit 8, including the cells of the three accused in our case.

[9] There is no dispute that every inmate, including the three accused in our case, who was extracted from his cell on either December 22 or 23 was restrained with ties around his wrists and escorted by two armed tactical officers and then seated in another area of the institution, facing the wall, and wearing just underwear (boxer shorts).

[10] There is no dispute that every cell, including the cells of the three accused in our case, was searched by officers and then left close to barren. Most items were removed from every cell.

[11] There is no dispute that every inmate, including the three accused in our case, was left without any clothing except the underwear that he was wearing at the time of his extraction until December 24.

II. The Positions of the Defence and the Crown

A. The Defence

[15] It is submitted that one example of the excessiveness of the operation was the intentional deprivation of clothing for the inmates, including the three accused in our case, for a lengthy period of time.

[16] It is argued that the ICIT deployment was not authorized in a reasonable manner and in compliance with formal requirements, such as the completion of a Threat Level Assessment.

[19] It is submitted that staff at MCC not only failed to complete required documentation but, in some instances, falsified documents and, in other instances, colluded by submitting identical reports.

[21] It is argued that staff at MCC engaged in a cover up because they failed to prepare required reports in a timely manner and only did so months later in response to litigation and a formal investigation by Correctional Services Oversight and Investigations (“CSOI”), the intelligence and investigative body of the Ontario Ministry of the Solicitor General (“Ministry”).

[22] The accused/applicants submit that some of the witnesses who testified at court during the hearing of the application, including senior personnel from MCC and the Ministry, lied about what happened with regard to the ICIT deployment and its aftermath.

[23] An encapsulation of the position of the defence is found at paragraphs 7 and 113-115 of the joint factum dated July 21, 2025, Case Center pages C-1-4562 and C-1-4600, reproduced below:

7. There were no proper grounds for the ICIT deployment – there was no threat. The use of ICIT was unnecessary, excessive, and disproportionate. In its execution, the ICIT extraction operation was inhumane, degrading and was blatantly punishment and retribution against innocent inmates. The search of the cells was unwarranted and improper as virtually all the contents were removed. And, senior and rank and file MCC staff sought to minimize the repercussions for their conduct, engaging in a cover up, with some witnesses providing incredulous explanations for their conduct, with some even admitting to lying and being a part of a cover-up before this Honourable Court. The Applicants respectfully submit that the conduct of MCC employees was an abuse of process. There is no other remedy capable of addressing the abuse in this case other than a stay of proceedings.

113. The conduct in this case was so excessive that it shocks the conscience of the public, and it is clearly disproportionate, as there was no identifiable threat justifying the ICIT deployment.

114. Significantly, the conduct undermines the proper administration of justice in this province. For public safety reasons, the criminal justice system permits the state to detain individuals who are presumed innocent while they await trial. There is no compensation for those who are eventually acquitted. However, there is a corresponding obligation on the state to provide for a humane and safe environment while people are warehoused awaiting their trial. Accomplishing this must be a priority for governments that oversee remand institutions. In the case of MCC, courts have consistently found that the state has failed to live up to its obligations. Any remedy fashioned in this case must distance this Honourable Court from and not perpetuate or condone the abuse. A stay of proceedings in this most serious of cases is a precisely calibrated remedy, reserved for situations where lesser measures have failed to address ongoing misconduct that continues to compromise the integrity of the administration of justice in this province.

115. A stay is the only effective option that remains.

[24] The defence submits that what happened here violated the accused persons’ rights under sections 7, 8, and 12 of the Charter.

105. The Applicants in this case seek a remedy in this court that redresses the prejudice to the administration of justice occasioned by the conduct of MCC. The fact that they may sue for damages in civil court is not a bar or an alternate remedy that addresses the wrong perpetrated by the MCC because the civil court does not remedy the damage caused to the integrity of the criminal court processes. Accordingly, the fact of the possibility of a civil action is not an available (alternate) remedy at step two of Babos.

106. A stay of proceedings is the only appropriate remedy under the circumstances. While other remedies may be suggested, none will strike at the heart of the issue. Potential lesser remedies the court may consider, but would be inappropriate, could be granting bail pending trial or a reduction in sentence (parole) following a conviction.

107. Bail as a remedy is not responsive to the abuse as it does not address the underlying systemic implications of the conduct. The law allows for pre-trial detention and the court has a direct say in the conditions of confinement. Granting bail pending trial will not send the proper message following a successful abuse of process application regarding the treatment of the inmates. Accused persons are granted bail regularly, doing so in these circumstances will not rectify the larger issue at hand.

109. A stay of proceedings is the only remedy that is responsive to and works to disentitle the state from a prosecution where it permitted the abuse to occur in the first place.

112. While a stay can only be granted in the clearest of cases, the applicants submit that, after balancing all the factors in light of the remedial category and the impact of Maplehurst’s actions on the integrity of the justice system, this is a clear case for a stay

III. Assessment of the Evidence and Findings

A. The Evidence of Leigh-Ann MacDonald

[41] This Court finds as a fact that the ICIT deployment at MCC in late December 2023 was undertaken for one reason and one reason only.

[42] It was done for vengeance. It was done to avenge what had happened with Lecinski. It was done for retribution. It was done to punish all of the inmates in Unit 8 for what had happened with Lecinski. It was done to appease the correctional officers, or some of them who were most unhappy about the vicious assault perpetrated against Lecinski and the seemingly celebratory mood that it engendered among some of the inmate population at MCC.[Emphasis by PJM]

[43] The ICIT deployment had nothing to do with anything else. It had nothing to do with alleged increased violence on Unit 8. Nothing to do with fear or threat of a weapon. Nothing to do with fear and/or hostility and/or heightened danger on Unit 8.

[44] I believe Leigh-Ann MacDonald (“MacDonald”).

[45] Of all of the witnesses who testified at the hearing of this application, I find Ms. MacDonald to have been the closest thing to exemplifying what a judge most appreciates in a witness.

[46] MacDonald is all of the following. An extremely experienced worker in corrections. A very long-time employee at MCC. A person with a wealth of management experience. A person whose conduct was in no way impugned by the CSOI body and, therefore, someone with absolutely no self-interest in the outcome of the application, unlike Wong and Jones as examples of the contrary. A witness whose evidence was not, in any material way, internally inconsistent or contrary to any other evidence that this Court accepts. A witness who showed during her testimony a balance between firmness required of someone who works in corrections and, where appropriate, empathy towards those that she interacts with, including prisoners. A witness who answered every single question put to her, by every lawyer, directly and without regard for how the answer may serve to call into question her own willingness to stand up to her superiors, like Wong for example. A witness who testified with no apparent agenda of any kind. A witness who was not afraid to say that she cannot say what she cannot say, like when she admitted to the Crown that she cannot say what was in Jones’ mind at the time that he recommended the ICIT deployment.

[50] At MCC, MacDonald has experience as a correctional officer, and as a sergeant, and as a staff sergeant, and as deputy superintendent of programs, and as deputy superintendent of operations.

[52] Relevant to the ICIT deployment, MacDonald was working at MCC on December 20, 21, and 22, 2023. Although she was there on December 20th, she did not learn about the assault on Lecinski until the early morning on December 21st .

[53] In terms of the reason for the ICIT deployment, MacDonald testified to the following points, all of which this Court accepts:

(i) there was an early morning meeting at MCC on December 21st, and members of the senior administration team were present for that meeting, including Jones and MacDonald;

(ii) at that meeting, Jones spoke about how upset and angry the correctional officers were about what had happened to Lecinski;

(iii) Jones spoke about how the correctional officers felt that senior administration at MCC did not have their backs;

(iv) Jones spoke about how the correctional officers appeared ready to walk out on the institution;

(v) Jones stated that, as a result of all of that, a message needed to be sent to the inmates;

(vi) Jones stated that, to send that message to the inmates, his recommendation was that ICIT be deployed; and

(vii) her understanding, which came from Jones and from what he said at that meeting, was that ICIT was being requested in order to send a message to the inmates.

[54] MacDonald was very clear in her evidence, and she repeatedly testified, that it was Jones who requested the ICIT deployment; that Jones specifically mentioned the anger and upset among the correctional officers because of what had occurred with Lecinski; that Jones specifically mentioned that the correctional officers felt that the administration did not have their backs; and that Jones expressly stated that a message needed to be sent to the inmates.

[55] This Court accepts all of that evidence from MacDonald.

[58] Mr. Kapoor asked MacDonald, “it was apparent to you that the use of ICIT was to avenge what happened to C.O. Lecinski?”. MacDonald answered, “in that context, yes.” (page 27, lines 12-14 of the transcript of MacDonald’s evidence given on May 6, 2025).

[59] This Court accepts that evidence of MacDonald. This Court finds as a fact that the ICIT deployment was to avenge what had happened to Lecinski and for no other reason.

[61] Mr. Goldstein then asked MacDonald, “what to send a message to, you don’t know, do you?”, and MacDonald replied, “no, I do not”. She agreed with Mr. Goldstein that a “message” is a fairly ambiguous term (page 56 of the transcript).

[62] This Court finds as a fact that the “what to send a message to” is obvious – the message was being sent to the inmates that ICIT is what happens when one inmate seriously assaults a correctional officer. MacDonald was being very fair in her evidence in essentially acknowledging that she cannot know what was unspoken but was in Jones’ mind during the meeting on December 21st .

[63] Nothing in that exchange between MacDonald and Mr. Goldstein changes the Court’s finding as to why ICIT was activated. It only serves to solidify that finding. ICIT was activated solely for the purpose of avenging what had happened to Lecinski. It was done solely to punish all of the inmates on Unit 8, including the three accused in our case, for what one inmate did to Lecinski and thereby alleviate the anger and upset among the staff.

[64] If there was any other reason for the ICIT activation, it would have been mentioned by Jones, or by someone, during the very meeting of senior administration officials where the ICIT deployment recommendation was being made and discussed. That did not happen according to MacDonald’s evidence, and I accept that evidence.

[69] When MacDonald was cross-examined by Mr. Goldstein, she did not attempt to distance herself from the ICIT deployment. In fact, she agreed with Crown counsel that the ICIT deployment was “okay” and was not at all unprecedented in terms of her history at MCC (pages 47-48 of the transcript).

[70] Again, this is a sign of a credible witness. Of course, it will be up to this Court to determine whether this ICIT deployment was “okay”.

[71] MacDonald testified, and this Court accepts, that there was another meeting held on December 21st, which meeting she was present for along with other members of senior management at MCC, including Wong. The main topic discussed at that meeting was restrictive confinement. Wong proposed that the inmates be generally confined to their cells. The plan was to cancel all visits for the inmates and to let only a few inmates out of their cells on each wing of Unit 8 at any given time.

[72] During that meeting, Ms. Frank (“Frank”), a member of the senior management team at MCC, voiced opposition to the idea of restrictive confinement. She asked Wong why some 192 inmates would be punished for the actions of just a few of them. At the time, Frank was one of the deputy superintendents of operations at MCC. MacDonald was also opposed to the proposal for restrictive confinement as she thought that it was completely unwarranted, however, Frank spoke up before MacDonald could say anything at the meeting.

[74] MacDonald testified, and this Court accepts, that Jones was one of the search captains during the first day of the ICIT deployment, December 22nd. She knows that because she saw the roster of assignments for that day, although she readily acknowledged to Crown counsel, Mr. Goldstein, that the roster could have changed as Jones could have taken himself off as search captain and assigned somebody else to perform that role

[76] I pause here to note that the said roster that was reviewed by MacDonald has apparently gone missing. It was not disclosed to any of the counsel in this case, including Crown counsel, even though MacDonald testified, and this Court accepts, that the electronic rosters of staff assignments are expected to be kept and be available to be reviewed going back many years. This is significant because Jones denied in his evidence that he played any role during the ICIT deployment that had anything to do with being a search captain. The electronic rosters of staff assignments would have helped this Court to evaluate the credibility and reliability of Jones’ evidence on that point. The electronic rosters are not the only example of missing or lost evidence, or deliberately withheld evidence, in this case. Other examples are outlined later in these reasons. In my view, all of these examples are relevant to the stay of proceedings analysis.

[77] MacDonald testified, and this Court accepts, that there was an awkward moment between her, Sergeant Edgington (“Edgington”), and Wong during the first day of the ICIT deployment, on December 22nd . Wong was in the hallway where inmates were sitting cross-legged and facing the wall, with ICIT officers, in full tactical gear and carrying weapons, standing and, in some cases, patrolling behind them. Edgington asked MacDonald if Wong was aware that the equipment in that hallway was audio recording. MacDonald replied to Edgington that she did not think that Wong was aware of that. When Wong had exited the hallway, Edgington, in the presence of MacDonald, asked Wong if Wong knew about the audio recording capability. Wong replied that he was not aware of that. Edgington and MacDonald then both looked at Wong and told him that the equipment in that hallway was recording audio. Wong then said something like, “oh shit”. Wong seemed to be very concerned about the fact that the cameras in that hallway were recording audio.

[78] I pause here to note, again, that the said audio recording was not disclosed to any of the counsel in this case. This is another example of lost or missing evidence, or deliberately withheld evidence, relevant to the stay of proceedings analysis.

[79] MacDonald testified, and this Court accepts, that she went on a tour of MCC on December 27th or 28th, along with Wong and another member of the senior administration team at MCC, Ms. Wilson (“Wilson”). During that tour, as they were approaching Unit 8, Wilson told Wong to lay off the “Wongtanamo Bay” comments, an expression that combines Wong’s name with the notorious Guantanamo Bay (the U.S. military base and detention facility located in Cuba). Wong replied something like, “oh shit, you heard about that all the way there?”, and Wilson replied that everybody had heard about it.

[80] MacDonald testified that she did not believe that the use of that term, “Wongtanamo Bay”, was very professional.

[81] This Court would observe that, whatever one thinks about the detention facility at Guantanamo Bay, it is incontrovertible that the facility has been the subject of much controversy and widespread criticism that relates primarily to alleged human rights abuses of the detainees.

[82] MacDonald testified, and this Court accepts, that MCC is a place where communication often breaks down, even among senior management personnel, illustrated by the fact that MacDonald did not even know about the Lecinski assault until the day after it happened – something that she complained to Wong about at the time. MCC is a place where it is common for complaints to be raised but nothing is done about them. MCC is a place where those who try to do the right thing are ostracized. MCC is a place where those who try to report the misconduct of others are punished. All of these things are a part of the culture at MCC, and that was the case at the time of the ICIT deployment in December 2023, and that was the case before the ICIT deployment, and that has been the case since the ICIT deployment. In fact, the culture at MCC has been generally worsening over time.

B. Other Evidence at the Hearing

Video Evidence

[83] During the hearing, this Court watched a significant amount of video evidence (Exhibit 1). On the basis of that evidence, this Court makes the following findings of fact:

(i) the assault against Lecinski was committed by one male inmate who punched the correctional officer in the face;

(iii) the assailant was removed from the area of the assault and the area was fully contained by the staff in very quick order;

(iv) of the three accused in our case, only [B] was inside the room where the assault occurred, and not in close proximity to the assault and not involved in the assault in any way;

(vii) during the ICIT activation, each inmate, including the three accused in our case, was removed from his cell, with multiple guards assisting with that removal;

(ix) each inmate, including the three accused in our case, had his hands/wrists ziptied together and his arms outstretched in front of him;

(x) each inmate, including the three accused in our case, was wearing only his boxer shorts while being physically escorted by ICIT officers;

(xiii) in some instances, the inmates were dragged out of the cells, forcibly, by their feet, on their stomachs;

(xv) while in the staffing area, [B]’s bare buttocks was clearly visible to all of those who were present, as his hands were zip-tied together and his boxer shorts were falling down;

(xvi) many of the inmates had their bare buttocks exposed, at least partially, during the ICIT deployment;

(xvii) each inmate, including the three accused in our case, was taken to the hallway and forced to sit on the floor, facing the wall;

(xviii) when A was escorted out of the cells area, his boxer shorts were falling down, exposing his bare upper buttocks;

(xx) in the hallway, the inmates, including the three accused in our case, were sitting cross-legged and facing the wall, still wearing just their boxer shorts and still with their hands/wrists zip-tied together;

(xxi) the guards in the hallway were, at times, pointing their weapons (which also act as flashlights) at the backs and at the heads of the inmates;

(xxiii) some inmates, including the three accused in our case and especially [A], appeared to be in physical pain while being escorted by ICIT officers, evidenced through the clear grimaces on their faces for example;

(xxv) during the searches of the cells, in the absence of the inmates, Wong would frequently fist-bump other staff members, and pat them on their backs or shoulders or chests, and put his arm around them;

(xxvi) on one occasion, Wong had a photograph taken of himself and the guards up against the wall in the cells area, with Wong crouched down in front of the guards and giving the number one finger sign in the photo;

(xxvii) immediately after that photograph was taken, Wong clapped his hands and applauded the guards, shook hands with some of the staff members, and gave the thumbs-up sign to some of the staff members;

(xxviii) during the searches of the cells, they were cleared-out of almost everything;

(xxix) in most instances, stuff removed from the cells was thrown on to the floor and then placed in large bins;

(xxx) where the cell was located on the upper level, in most instances the stuff removed from the cell was simply thrown or kicked down to the floor at the lower level;

(xxxiii) after all of the inmates were returned to their cells at Unit 8B, tactical officers reattended at [A]’s cell and performed a second extraction;

(xxxiv) the inmates, including the three accused in our case, were without clothing (except for their boxer shorts) and bedding and most everything that was normally inside their cells from the time of their initial extractions from their cells, which occurred on either December 22 or 23, 2023, until December 24, 2023, as evidenced from when the inmates are seen exiting their cells wearing only their boxer shorts and white towels or small sheets and retrieve their orange jumpsuits in the presence of Wong and Staff Sergeant Thanachayan; and

(xxxv) [B] and [A] were extracted from their cells on December 22nd, and [C] was extracted from his cell on December 23rd .

Jones

[188] It was Jones who made the all-staff call after the Lecinski assault. In terms of what is most relevant to the questions that need to be decided by this Court, Jones testified about the following sequence of events and gave the following evidence, in this order:

(i) on December 20th , he met with Wong and Deputy Superintendent Newhook (“Newhook”);

(ii) they talked about the possibility of an ICIT activation;

(iv) Jones said to Wong and Newhook that ICIT was a good idea but should be limited to the removal to segregation of those involved in the assault of Lecinski and the transfer-out of MCC of the inmate who punched Lecinski;

(v) On December 20th, ICIT was activated and did remove from MCC the inmate who punched Lecinski;

(vii) at the first morning staff muster on December 21st , staff were very upset and angry – they wanted the whole unit searched – they were very hostile towards the inmates – they wanted management to do more – they were concerned about weapons;

(xi) Jones said that ICIT should be deployed for all of Unit 8 in order to search for weapons;

(xii) it was “the threat of weapons on the unit” that caused him to make the recommendation for the ICIT activation;

(xiii) “I feel there is always weapons in the unit”, he stated at court;

(xiv) Wong agreed about ICIT, and Newhook agreed about ICIT, and Wong made the final decision to activate ICIT on the whole of Unit 8;

(xv) on December 22nd, his role was only to shadow ICIT because he had just been promoted to ICIT coordinator;

(xvi) he was only observing on December 22nd;

(xvii) he did not know at the time that the searchers were removing everything from the cells, but he knows that now;

(xviii) he did not know at the time that the inmates had no clothing, but he knows that now;

(xix) he did not know at the time that the exhaust fans were turned on, which would make it colder in the winter, but he knows that now;

(xxii) he completed no reports of any kind in December 2023, and his first report was prepared in April 2024, which he created from his memory of events surrounding the ICIT activation;

(xxiii) regarding the package of documentation that was required to be prepared and provided to him on December 21st, which had to include use of force reports and a threat assessment report, he has never seen that package since December 21st and has no idea if it was ever done in whole or in part;

(xxiv) he told the head of ICIT, Martell, that the activation was because of the threat of weapons;

(xxviii) he agrees that he told the CSOI body (July 30, 2024) that he recommended ICIT because of the unruly behaviour of the inmates who had refused to comply with officers’ demands to return to their cells, and that in that interview he said nothing about weapons or the threat of weapons;

(xxxii) about 40 hours elapsed between the time that everything was fully secure at MCC and the deployment of ICIT on the whole of Unit 8;

(xxxiii) during that time period of about 40 hours, there had been no significant incident of non-compliance by any inmate on Unit 8;

(xlii) with prisoner extractions performed by ICIT members, pain is intended to ensure compliance by the inmates;

(xliii) nobody used metal detectors during the searches of the cells;

(xliv) metal detectors were available to be used during those searches;

(xlv) metal detectors would normally be used, and should be used, when one is searching for weapons;

(l) in cross-examination by the Crown, Jones testified that ICIT was activated because “we thought there were multiple weapons in Unit 8”;

(li) and, further, Unit 8 was out of control;

(lii) but the threat of weapons was the only reason for the ICIT deployment; and

(liii) although, “1000%” the length of time that would have been required to do a level II search was a significant factor in recommending and activating ICIT.

[200] The Ministry’s Searching for Weapons Policy is not the only policy that MCC failed to comply with here, to any degree.

[201] Frankly, there are too many violations to mention. Just a few of them are:

(i) MCC staff contravened section 3.6 of the Searches Policy – these inmates were strip searched and left unclothed (except their underwear) for longer than what was necessary to search their persons and their cells;

(ii) MCC staff violated section 6.7.5 of the Searches Policy – the video evidence does not always show a minimum of two staff members present during the searches of the cells; and the areas were not left in an orderly and tidy fashion; and inmate personal property was not respected;

(iii) MCC staff contravened most of the Use of Force Policy, including but not limited to sections 4.18 (when the use of force is authorized) and 4.19 (the requirements of the Use of Force Investigation File);

(iv) MCC/ICIT staff violated most of the Handheld Digital Video Recording – Institutional Crisis Intervention Team Deployments Policy;

(v) MCC staff contravened most of the Duty Notebooks Policy;

(vi) MCC staff violated the entire objective of the Inmate Clothing Policy – to ensure that inmates are treated “in a just and humane manner”; and

(vii) MCC staff contravened the Laundry Policy in that not only did the inmates not have the enumerated items but they had no items (except their underwear that they were wearing) for 24-48 hours, approximately.

[202] In addition to the violations of several Ministry policies during the ICIT activation and the level IV search, I agree with defence counsel, and I agree with my colleague Justice Woollcombe in Her Honour’s decision in Ritchie, at paragraphs 107-108, that the strip searches of the inmates that occurred here, during the ICIT members’ extractions of the inmates from the cells, were unlawful. The three accused in our case were subjected to unlawful strip searches.

[203] These strip searches were not in accordance with section 24 of Amending Reg. 778 of R.R.O. 1990, Ontario Reg. 316/24, Ministry of Correctional Services Act, R.S.O. 1990, c. M.22.

[206] In the context of the strip searches of these inmates at MCC on December 22 and 23, 2023, including [A], [B], and [C], like Woollcombe J. found in Her Honour’s case, I find that:

(i) there were no reasonable grounds to believe that the accused were carrying contraband that could have been hidden on or within their bodies;

(ii) there were no reasonable grounds to believe that the strip searches were needed to confirm the existence of contraband and to recover it; and

(iii) there were no reasonable grounds to believe that using a less intrusive search method, such as a lower-level routine search of the cells, would not have been effective at locating the suspected contraband or was not operationally feasible.

[207] Further, I would add the following finding as well: the strip search of the entire group of inmates on Unit 8 was not limited to as small a group as was reasonably necessary to confirm the existence of contraband or to recover it (a requirement for a valid group strip search under subsection 24(6) of the said Amending Reg.).

[209] I do not accept that the ICIT activation had anything to do with the general behaviour of the inmates on Unit 8, or some alleged general increase in the level of violence or threats of violence on Unit 8 leading up to December 22nd, or some alleged non-compliance of the inmates with staff demands.

[232] It is likely that Jones has had a dedicated and successful career in corrections. In late December 2023, however, he exercised terrible judgment, perhaps clouded by what he perceived to be the rabid demands of the staff who, in his own words, drove the bus on what he ultimately recommended and what was decided – the ICIT activation.

[233] This Court finds that there was no valid justification for what was done. It was done to appease the staff and to avenge what happened with Lecinski. It was done to punish all for the misconduct of one.

IV. The Law

[408] Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Charter, section 7.

[409] Everyone has the right to be secure against unreasonable search or seizure. Charter, section 8.

[410] Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Charter, section 12.

[412] A stay of proceedings is an available remedy under section 24(1) of the Charter, and that remedy is available specifically in the context of prison guard-prisoner interactions. R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509.

[414] In fact, there are no differences of opinion in that regard. Not when it comes to interpretation. The Crown has conceded a violation of section 8. The Crown has not conceded a violation of section 7, however, that lack of concession is not grounded in any conflict about the meaning of that constitutional protection but rather is based on competing factual findings that the Crown urges this Court to make.

[416] On section 7, it is important to remember the following, taken from the instructive decision of Justice Watt, writing for the Court of Appeal for Ontario, in R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at paras. 106-109:

(i) not every compromise of a person’s security will come within the reach of section 7;

(ii) rather, the compromise must be significant enough to warrant constitutional protection;

(iii) otherwise, we risk trivializing the section 7 Charter protection;

(iv) security of the person protects both the physical and the psychological integrity of the individual;

(v) for a compromise of security of the person to be established, the state action must have had a serious and profound effect on the person’s psychological integrity;

(vi) regarding the psychological integrity of the claimant, two requirements must be met before the security of the person interest protected by section 7 is engaged: (a) first, the psychological harm must be state imposed, meaning that the harm must result from actions of the state, and (b) second, the psychological harm or prejudice must be serious;

(vii) in terms of the seriousness of the psychological harm or prejudice, something greater than ordinary stress and anxiety is required; and

(viii) the effects of the state interference are to be assessed objectively.

[417] Section 7 claims proceed in two steps: (i) first, the claimant must establish on a balance of probabilities that there has been a deprivation of, in our case, security of the person, and (ii) second, the claimant must show that the said deprivation was not in accordance with the principles of fundamental justice. Ritchie, at para. 111.

[418] State action that is fairly characterized as a form of corporal punishment or torture will generally amount to a violation of section 7 of the Charter

[419] That is because corporal punishment or torture committed by the state will almost inevitably amount to a finding of a significant deprivation of the subject’s physical and psychological integrity (and, thus, the subject’s security of the person) and because, as Lamer J., as the Chief Justice then was, stated in R. v. Smith, [1987] 1 S.C.R. 1045, at pp. 1073-1074, “some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment”.

[420] It is well-accepted that Canadians reject state-sanctioned torture in the domestic context; “torture is seen in Canada as fundamentally unjust”. Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at paras. 51-52

[421] Corporal punishment and torture are concepts that are well-accepted as being “fundamentally unjust”, fundamentally unfair and incompatible with justice, and “outside the legitimate domain of a criminal justice system”, and thus, the significant deprivation of the subject’s security of the person that is inherent in forms of corporal punishment and torture cannot be found to be in accordance with the principles of fundamental justice. Suresh, at paras. 50-51.

[422] On section 8, it is important to remember the comments of Justice Lamer, as the Chief Justice then was, writing for the majority of the Supreme Court of Canada in the seminal decision in R. v. Collins, [1987] 1 S.C.R. 265, at p. 278:

(i) a search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable;

(ii) where the Crown points to some specific legislative basis for the search in question, like a section of a statute or a regulation, then the search may be held to be unreasonable if it is determined that the search did not properly come within that legislative basis;

(iii) alternatively, even if the search is determined to have properly come within that legislative basis, the search could still be found to have been unreasonable on the ground that it was carried out in a manner that made it unreasonable.

[423] In our case, unlike sections 7 and 8, there is a difference of opinion about how the defence and the Crown interpret section 12 of the Charter, and thus, I will spend some time on that issue below. I will then turn to spend some considerable time dealing with the legal principles that govern a stay of proceedings.

[424] One of the seminal authorities in Canada on the proper interpretation of section 12 of the Charter is the decision of Justice Lamer, as the Chief Justice then was, in Smith, referred to above in the context of section 7.

[425] These are some of the helpful takeaways from the decision of Justice Lamer at pp. 1062- 1072:

(i) in the early years of the Canadian Bill of Rights, section 2(b) of which was one of the origins of what later became section 12 of the Charter, the application of the prohibition was limited to the protection against the infliction of excessive and unusual physical pain;

(ii) the only court decision in Canada that found a treatment or punishment to be cruel and unusual under the Canadian Bill of Rights was that of Justice Heald of the Trial Division of the Federal Court in McCann v. The Queen, [1976] 1 F.C. 570;

(iii) interestingly (for our purposes), McCann was a case about prison conditions, specifically solitary confinement;

(iv) Heald J.’s conclusion that the prison conditions in that case amounted to cruel and unusual treatment was based on the view that the conditions served no “positive penal purpose” and, further, they were “not in accord with public standards of decency and propriety”, especially given that “adequate alternatives” existed in the prison setting;

(v) in R. v. Miller and Cockriell (1975), 24 C.C.C. (2d) 401 (B.C. C.A.), a case dealing with capital punishment in Canada, in dissent, McIntyre J.A., as he then was, found that the words “cruel and unusual” were to be read disjunctively so that “cruel punishments however usual in the ordinary sense of the term could come within the proscription”;

(vi) when that case was decided by the Supreme Court of Canada, however, Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680, the majority held that the words “cruel and unusual”, in section 2(b) of the Canadian Bill of Rights, were to be read conjunctively;

(vii) after 1976, and after the Charter was enacted, most of the cases decided were focused on punishment rather than treatment, but regardless, in interpreting the meaning of section 12, those decisions usually resorted to tests similar to those set out by Professor Tarnopolsky, as he then was, in his useful article, “Just Deserts or Cruel and Unusual Treatment or Punishment? Where Do We Look for Guidance?” (1978), 10 Ottawa L. Rev. 1, at pages 32-33;

(viii) reducing and rewording what Professor Tarnopolsky suggested in that article to what is relevant to treatment, and not punishment by way of a potential penalty for a criminal offence for example, one could ask (a) whether the treatment went beyond what was necessary to achieve a legitimate aim; and (b) whether the treatment was unnecessary because there were adequate alternatives; and (c) whether the treatment was unacceptable to a large segment of the population; and (d) whether the treatment could or could not be applied upon a rational basis and in accordance with ascertained or ascertainable standards; and (e) whether the treatment was arbitrarily imposed; and (f) whether the treatment had any value in terms of some social purpose; and (g) whether the treatment was in accord with public standards of decency or propriety; and (h) whether the treatment was of such a character as to shock the general conscience or as to be intolerable in the context of fundamental fairness; and (i) whether the treatment was unusually severe and hence degrading to human dignity and worth;

(x) it is also clear that Justice Lamer agreed with the “Laskin approach as set out in Miller and Cockriell” – that approach being to treat the phrase “cruel and unusual” as a “compendious expression of a norm”, rather than get caught-up in a debate as to whether the words should be read disjunctively or conjunctively;

(xi) in the opinion of Justice Lamer, and the following is found in that section of His Honour’s judgment under the heading “The meaning of s. 12”, a judgment concurred in by Chief Justice Dickson and not, on these points, disagreed with by any of the other justices who took part in the appeal, (a) the power of the state to impose a punishment or treatment on an individual has limits; (b) in reviewing that power, it is relevant whether it was necessary for the state to do what it did in order to attain some legitimate end, and it is also relevant whether the requisite procedure was followed; (c) the protection afforded by section 12 governs the quality of the treatment or punishment and is concerned with the effect that it may have on the person on whom it is imposed; (d) a key question for a reviewing court will be whether the punishment (and, in our case, treatment) was so excessive as to outrage standards of decency, as Chief Justice Laskin observed in Miller and Cockriell, at page 688; (e) put another way, one could ask oneself whether the treatment was grossly disproportionate to what would have been appropriate in the circumstances; and (f) to amount to a violation of section 12, something more than mere excessiveness is required.

[427] There are well more than 1000 court decisions across Canada that have cited Smith approvingly, particularly the judgment written by Justice Lamer, since 1987, including many decisions of the Supreme Court of Canada and of various appellate courts across the country.

[428] These subsequent decisions that have relied on Smith for guidance include many cases dealing with treatment (as opposed to punishment), and treatment in the prison context, and those decided by our Court of Appeal for Ontario specifically. To illustrate the point, just three examples are: R. v. Olson, 62 O.R. (2d) 321 (Ont. C.A.); Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, 416 D.L.R. (4th) 124 (Ont. C.A.); and Canadian Civil Liberties Association v. Canada, 2019 ONCA 243, 144 O.R. (3d) 641 (C.A.).

[429] In this Court’s decision on section 12, I will follow the recipe provided by Justice Lamer, as the Chief Justice then was, in Smith, including consideration of the questions posed by Professor Tarnopolsky, as he then was, and I will also be bound by the helpful summary of the legal framework outlined by Justice Laskin, for the Court of Appeal for Ontario, at paragraphs 7 through 10 of Ogiamien, set out below:

[7] Although Ogiamien and Nguyen claimed violations of sections 7 and 9 of the Charter, the focus of their application was s.12. Section 12 of the Charter guarantees that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. This case is about treatment, not punishment. The lockdowns at Maplehurst were “an exercise of state control” over Ogiamien and Nguyen and amounted to “treatment” under s. 12: Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p.611. And this court has held that the test to establish a violation of s. 12 is the same for treatment as it is for punishment: R. v. Olson (1987), 62 (O.R. (2nd) 321 (C.A.) at p. 336, aff’d, 1989 CanLII 120 (SCC), [1989] 1 S.C.R. 296.

[8] To establish a violation of s. 12 a claimant need not show separately that the treatment is both cruel and unusual. The words “cruel” and “unusual” colour each other and together express a standard or norm. See Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at pp. 689-690.

[9] But “cruel and unusual” is a high bar to meet. The Supreme Court has used various expressions to describe this high bar: “so excessive as to outrage standards of decency”; “grossly disproportionate to what would have been appropriate”; “grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable”. The point underlying these expressions is that merely excessive treatment or disproportionate treatment is not enough to establish a s. 12 violation. In the context of punishment the Supreme Court has cautioned against stigmatizing every excessive or every disproportionate sentence as being a constitutional violation. So too with treatment. See Miller and Cockriell, at p. 688; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at para. 54; R v Morrissey 2000 SCC 39, at para. 26; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39; and R. v. Tinker, 2017 ONCA 552, at para. 126.[Emphasis by PJM]

[10] Lamer J.’s expression in Smith — “grossly disproportionate to what would have been appropriate”— suggests a two-step inquiry to determine whether treatment has been cruel and unusual. The first step establishes a benchmark. In this case step one looks at the treatment of Ogiamien and Nguyen under “appropriate” prison conditions—that is their treatment under ordinary conditions in the remand units when there were no lockdowns. Step two assesses the extent of the departure from the benchmark. In this case step two looks at the effect of the lockdowns on Ogiamien’s and Nguyen’s treatment. If the effect of the lockdowns resulted in treatment that was grossly disproportionate to their treatment under ordinary conditions then their s.12 rights would be violated.[Emphasis by PJM]

[430] In Canada, torture is a criminal offence. The offence section is set out at 269.1(1) of the Criminal Code, and the definition section is found at 269.1(2).

[431] Torture includes acts and omissions. Torture is where severe pain or suffering is intentionally inflicted on a person. That severe pain and suffering may be physical or mental or both.

[432] To be a criminal offence in Canada, however, the intentional infliction of the severe pain or suffering must have been for one, or more than one, of three enumerated purposes, or for any reason based on discrimination.

[434] The three enumerated purposes referred to above are: (i) to obtain from the person or from a third person information or a statement (not relevant in our case), (ii) to punish the person or a third person for an act that the person or third person has committed or is suspected to have committed, and (iii) to intimidate or coerce the person or third person

[435] The latter two purposes are relevant in our case.

[436] There is nothing in the Criminal Code, or in any international covenant that Canada is a signatory to, or in any jurisprudence that I am aware of, or in any other legislation that I am aware of, that prohibits a finding of torture in the context of a prison setting.

[437] In Canada, it is accepted that torture is not only illegal and in breach of international conventions but would also undoubtedly be unconstitutional in that it is blatantly contrary to section 12 of the Charter and, in most cases, likely contrary to section 7. In other words, torture is incontestably abhorrent and inherently in violation of section 12. Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at paras. 46-52, referring to numerous authorities including but not limited to the earlier decision of the Supreme Court of Canada in Suresh, referred to above in the context of section 7.

[438] Canada’s definition of and treatment of torture is consistent with many international conventions, including but not limited to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations’ General Assembly resolution 39/46 adopted on December 10, 1984 and coming into force on June 26, 1987, in particular Part I, Article 1 thereof, which sets out a very similar definition of “torture” as that contained in Canada’s Criminal Code

[439] I will turn now to the legal principles that govern a stay of proceedings

[440] A stay of proceedings under section 24(1) of the Charter is one remedy, but only one available remedy, to an abuse of process. It is the most drastic remedy; it is the “ultimate remedy” in the sense that it is final. Where charges are stayed, they may never be prosecuted, and the victims will never have their day in court. Society will never have the case resolved on its merits by a trier of fact. For these reasons, there is a very high threshold to be met; a stay is reserved only for the “clearest of cases”. A stay is a remedy of last resort. R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 68-69; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 86; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-31; R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581 (S.C.C.), at paras. 112-113; R. v. Burke, 2025 ONCA 619, at para. 12.

[441] Regardless of whether the abuse causes prejudice to the accused (because it goes to trial fairness) or causes prejudice to the integrity of the justice system, a stay of proceedings ought not to be granted unless (i) the prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial or by its outcome, and (ii) no other remedy is reasonably capable of removing that prejudice. Both criteria must be met before a stay is an appropriate remedy. O’Connor, at para. 75; Regan, at para. 54.

[442] A stay of proceedings is a prospective remedy. It is not a retroactive remedy. It does not simply deal with a past wrong and attempt to redress it. Rather, a stay aims to prevent the perpetuation of a wrong that “if left alone, will continue to trouble the parties and the community as a whole, in the future”. Tobiass, at para. 91; Regan, at para. 54.

[444] The case of these three accused, [A], [B], and [C], is all about this small residual category of abusive action.

[446] Where it is found that the likelihood of abuse will continue to manifest itself if the proceedings continue, the court must go on to consider the abuse in relation to other possible remedies that are less drastic than a stay of proceedings. Only once the court has determined that the abuse will continue to plague the judicial process and that no remedy other than a stay can rectify the problem may the judge exercise the discretion to grant a stay. Regan, at para. 56.

[449] What should the judge keep in mind when conducting that delicate balancing of interests at the very final stage of the analysis? Justice Moldaver, at paragraphs 40, 41, and 44 in Babos, helped answer that question.

[41] However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.

[44] Undoubtedly, the balancing of societal interests that must take place and the “clearest of cases” threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be “exceptional” and “very rare” (Tobiass, at para. 91). But this is as it should be. It is only where the “affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay of proceedings will be warranted (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667).

[450] Ultimately, at that very final stage of the analysis, the question for the court is whether the integrity of the justice system would be better served by a stay of proceedings or a full trial on the merits. Babos, at para. 47.

[451] In terms of the governing legal principles with regard to a stay of proceedings under section 24(1) of the Charter, in a very recent decision of the Court of Appeal for Ontario, R. v. Gilmore-Bent, 2025 ONCA 553, a case where the trial judge stayed serious weapons-related and breach of bail charges as a result of the accused’s Charter rights having been violated by correctional officers while the accused was in custody awaiting trial, Paciocco J.A. dealt with the question of whether the trial judge, as submitted by the Crown on appeal, had misapplied the test for a stay of proceedings by disregarding the alleged lack of connection between the Charteroffending conduct of the correctional officers and the prosecution of the charges.

[452] As the position of the Crown in our case bears some similarity to the position of the Crown advanced on appeal in Gilmore-Bent, the analysis undertaken by Justice Paciocco is instructive. His Honour cautioned against taking too narrow of an approach to conceptualizing how trials can be tainted by state misconduct. Paragraphs 57 through 60 of the decision in Gilmore-Bent, all relevant in our case, are set out below:

[57] I agree with the underlying principle relied upon by the Crown in making its first submission. A court cannot stay criminal proceedings because of misconduct unconnected to those proceedings. As O’Bonsawin J. noted in Brunelle, at para. 57, “When there is no connection between the abusive conduct and the proceedings against the accused, the fact that the court disassociates itself from the conduct [by staying the proceeding] will not have the effect of preserving the integrity of the justice system.” However, in my view, the Crown is pursuing an unduly narrow conception of the kind of connection that is required.

[58] It relies heavily on passages from Brunelle, at paras. 39 and 55, that, in discussing the issue of standing, referred to abusive conduct that either arises in the police investigation or operation, or taints the court proceedings. Relatedly, the Crown emphasizes that the misconduct in this case was perpetrated not by the prosecuting Crown or the police, but by prison guards who had custodial charge of Mr. GilmoreBent eight months after his arrest, and who had no influence over the trial or its outcome.

[59] The Crown’s submissions do not persuade me that the requisite connection was lacking or that the trial judge failed to consider the strength of that link. It is settled law that abuse by correctional officers can taint pending court proceedings. As the trial judge pointed out, in R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, Fish J., for the Supreme Court, upheld a stay of proceedings of charges after a prison guard provoked and then assaulted the accused while transporting Bellusci between a courthouse and a penitentiary. I would not read Bellusci narrowly as confined to cases where the proceeding arises directly from the incident involving the abuse. In the case at hand, not only were the correctional officers the state agents who were given charge of Mr. Gilmore-Bent pending his trial on the charges before the trial judge, but some of the misconduct by the correctional officers occurred while they were testifying at the trial itself, in a motion properly before the trial judge. The required connection between the misconduct and the proceedings exists.

[60] Indeed, I would caution against taking the kind of narrow approach the Crown promotes in conceptualizing how trials can be tainted by state misconduct. Requiring the misconduct to arise from the manner the case is prosecuted, or the way in which trial evidence is gathered, would shrink the residual category for staying proceedings by largely merging it with the main trial fairness category. As L’Heureux-Dubé J. commented in the seminal decision on remedial Charter stays, R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73:

The residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness and vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the process.

[Emphasis added.]

A narrow approach can only disable the opportunity to use this remedy in “the panoply of diverse and sometimes unforeseeable circumstances” where it may be warranted.[Emphasis by PJM]

[453] Finally, it should be noted that no criminal offence in Canada is beyond the reach of a stay of proceedings. In R. v. Kporwodu, 75 O.R. (3d) 190 (C.A.), a case where the accused were charged with first-degree murder in the death of their three-month-old daughter, in circumstances where it was acknowledged by the Court of Appeal at para. 3, that “[s]taying charges of firstdegree murder without a trial on the merits is almost unthinkable”, the Court upheld a stay of proceedings in the context of a section 11(b) Charter violation.

[455] Even in other Charter contexts, however, murder charges may be, and have been, stayed.

[461] Simply put, as the Supreme Court of Canada has held, “no category of offence is beyond the ambit of the abuse of process doctrine”. R. v. Haevischer, 2023 SCC 11, 425 C.C.C. (3d) 411 (S.C.C.), at para. 121.

V. The Law as Applied to the Facts

Section 7 of the Charter

[464] In my view, the accused have met their onus in establishing, on a balance of probabilities, a violation of each of their section 7 Charter right to security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice.

[465] What happened at MCC in late December 2023, with the ICIT activation on the whole of Unit 8, was a form of corporal punishment, that is, the intentional infliction of physical pain to the inmates, including [A], [B], and [C], as a method of discipline or correction for the assaultive act of the inmate who punched Lecinski

[466] What happened at MCC was akin to torture. That conclusion of this Court is expanded upon below, in the context of the section 12 Charter claim. A violation of section 12 will, in most cases, as here, amount to a violation of section 7.

[467] It is unnecessary, on these facts, to even have regard to the question of whether these accused persons suffered serious and profound psychological harm or prejudice. The evidence demonstrates that they, [A], [B], and [C], were each deprived of their security of the person in that their physical integrity was significantly compromised at the hands of the state actors at MCC.

[468] Specifically, these accused persons were strip-searched without justification and not in accordance with the law and not in accordance with Ministry policy, as detailed above in these reasons (see the discussion of Jones’ evidence).

[469] Further, these accused persons were forcibly extracted from their cells, paraded around the jail in their underwear while wearing physical restraints, and then forced to sit cross-legged in the hallway for a lengthy period of time, still physically restrained.

[470] In addition, these accused persons were subjected to the pain compliance physical techniques employed by the ICIT officers, throughout the ICIT activation, from the time that they were first confronted by the ICIT officers inside their cells until the time that they were finally returned to their cells (even longer for [A], given the second cell extraction and physical escort to segregation that he was subjected to).

[472] And that deprivation was not in accordance with the principles of fundamental justice. Respect for basic human dignity is a principle of fundamental justice. It is a juridical and binding legal norm that underlies many of our constitutional protections. State action that amounts to corporal punishment and that is akin to torture is, by definition, not in accordance with respect for basic human dignity

Section 8 of the Charter

[475] The violation was multi-faceted.

[476] As explained earlier in these reasons (in the context of an assessment of Jones’ evidence), the strip-searches of these accused persons did not come within the law that authorizes stripsearches – section 24 of the said Amending Regulation. As such, the strip-searches of these accused persons were unreasonable.

[477] Further, the strip-searches of these accused persons were carried out for a wholly improper purpose – to punish them. As such, they were unreasonable.

[481] There was no justification for strip-searching the accused persons directly in the presence of other inmates and then keeping the accused persons stripped almost naked throughout the entire duration of the ICIT activation on that particular wing of Unit 8.

[482] There was no justification for the ransacking of the cells and stripping them of essentially everything.

[483] In summary, each of these accused persons had his section 8 Charter protection violated in multiple ways. His personal strip-search did not come within the law and, further, was carried out in an unreasonable manner. The search of his cell did not come within the law and, further, was carried out in an unreasonable manner.

[484] In my opinion, the accused have met their onus in establishing, on a balance of probabilities, a violation of each of their section 12 Charter right to not be subjected to any cruel and unusual treatment or punishment.

[485] What happened here was both cruel and unusual. What happened here was both treatment and punishment at the hands of state actors at MCC.

[486] If we look at the decision of Lamer J., as the Chief Justice then was, in Smith, and if we look at the helpful guidance provided by Professor Tarnopolsky, as he then was, in the article cited in Smith, I would find the following:

(a)whether the treatment went beyond what was necessary to achieve a legitimate aim – I would answer that question in the affirmative as there was no legitimate aim to begin with, in that the ICIT deployment was for the sole purpose of exacting revenge on these three accused persons, and all of the other inmates on Unit 8, for what happened to Lecinski and, further, any legitimate concern about a weapon on Unit 8, if such a legitimate concern did exist at the time (which I find it did not exist), could have been dealt with by way of a lower-level search that did not require ICIT and the strip-searching of these three accused persons, them being paraded around the jail in their underwear, them being the subjects of forcible extractions from their cells and pain compliance techniques, them being exposed to a noticeably and markedly colder temperature due to the intentional and unnecessary operation of the exhaust fans, them being forced to sit cross-legged in the hallway for a lengthy period of time, them being left without any clothing for a lengthy period of time even after the ICIT deployment and the search process of the cells were completely finished, and the total ransacking of their cells;

(b)whether the treatment was unnecessary because there were adequate alternatives – I would answer that question in the affirmative for those same reasons, and I would add that any resistance among correctional officers to participate in the lower-level search of the cells could have been dealt with by following usual procedure outlined by Wilson in his evidence at the hearing of the application;

(c)whether the treatment was unacceptable to a large segment of the population – I would answer that question in the affirmative as I think that most Canadians would find it unacceptable for a correctional institution to punish these three accused persons, and nearly 200 inmates, for the assaultive actions of one inmate who was swiftly removed from the institution without any further incident;

(d)whether the treatment could or could not be applied upon a rational basis and in accordance with ascertained or ascertainable standards – I would answer that question in the negative as this ICIT deployment was not carried out in accordance with the mandated standards (Ministry policy), and it was carried out in the absence of any of the required documentation having been completed, such as the Threat Level Assessment and the Weapons Search Protocol Checklist;

(e)whether the treatment was arbitrarily imposed – I would answer that question in the affirmative as the ICIT deployment was exerted against these three accused persons, and all of the other inmates on Unit 8, regardless of whether they had any involvement at all in the Lecinski assault and regardless of whether they were individually suspected of being in possession of, or having been in possession of, any weapon or contraband;

(f) whether the treatment had any value in terms of some social purpose – I would answer that question in the negative as there was no social purpose to deploying ICIT for the purpose of achieving vengeance against these three accused persons, and all of the other inmates on Unit 8, for the actions of someone else;

(g)whether the treatment was in accord with public standards of decency or propriety – I would answer that question in the negative as punishing these three accused persons, and all of the other inmates on Unit 8, and having them paraded around the jail in their underwear, bare buttocks exposed partially, was not in accordance with basic public standards of decency;

(h)whether the treatment was of such a character as to shock the general conscience or as to be intolerable in the context of fundamental fairness – I would answer that question in the affirmative as corporal punishment and torturous state conduct is never tolerable in the context of fundamental fairness; and

(i) whether the treatment was unusually severe and hence degrading to human dignity and worth – I would answer that question in the affirmative as all of the evidence adduced at the hearing of the application would consistently support the unusualness of deploying ICIT on an entire unit of a correctional facility, and it is certainly severe and degrading to human dignity and worth to punish these three accused persons, and all of the other inmates on Unit 8, by, among other things, strip-searching them and then parading them around the jail in their underwear and then leaving them in that state until finally giving them some clothing and bedding some 24-48 hours later.

[488] In the unique circumstances of our case, although nothing turns on this, I am of the view that what happened here was both cruel and unusual treatment, and cruel and unusual punishment. That is because the treatment here was a form of punishment. The treatment was designed to be a penalty exacted by the state (MCC) against these three accused persons, and all of the other inmates on Unit 8, for what happened to Lecinski.

[493] What happened here was well beyond mere excessiveness. In my opinion, it is an outrage to basic standards of decency, and it is grossly disproportionate, to respond to an incident of an inmate viciously assaulting a correctional officer with the deployment of armed and tactical guards to punish these three accused persons, and nearly 200 inmates, by, among other things, stripsearching them, leaving them in just their underwear and without any clothing or bedding, and ransacking their cells.

[494] It is not the role of this Court to make some pronouncement on whether what happened at MCC in late December 2023 amounted to a criminal offence, and these reasons ought not to be interpreted that way.

[495] This Court’s reliance on subsections 269.1(1) and 269.1(2) of the Criminal Code are simply to illustrate the seriousness of what occurred at the institution

[496] Using those statutory provisions as guidance, it is clear to me that this ICIT deployment at MCC in late December 2023 involved state actions that are akin to, consistent with, what Canada’s parliamentarians have defined as torture.

[497] Torture includes acts and omissions. Torture is where severe pain or suffering is intentionally inflicted on a person. That severe pain and suffering may be physical or mental or both.

[499] Excluded from the definition of torture is any act or omission that arises only from or is inherent in or incidental to lawful sanctions. That exclusion is not relevant here; there is no legislation or Ministry policy that permits the punishment of inmates generally for the misconduct of someone else.

[500] The three enumerated purposes referred to above are: (i) to obtain from the person or from a third person information or a statement (not relevant in our case), (ii) to punish the person or a third person for an act that the person or third person has committed or is suspected to have committed, and (iii) to intimidate or coerce the person or third person.

[501] The latter two purposes are relevant in our case.

[502] In light of this Court’s findings of fact, most particularly with regard to (i) the sole purpose for the ICIT deployment, (ii) the pain compliance techniques employed by the ICIT officers and the objective video evidence, and (iii) the other tactics employed by the ICIT officers such as turning on the exhaust fans to make the area colder, in some cases pointing their weapons at inmates, and so on, it would seem to me that what happened here was beyond corporal punishment and was torturous in nature.[Emphasis by PJM]

[503] It is arguable, I would say strongly so, that this ICIT deployment involved (a) severe pain or suffering that was (b) intentionally inflicted on these three accused persons and (c) for the purpose of punishing these three accused persons for the act committed by the inmate who assaulted Lecinski (a third person) and, further, for the purpose of intimidating these three accused persons. In any event, whether it is the case or not that what happened here would fall strictly within the definition of “torture” in Canada’s Criminal Code, I am of the opinion that the state actions at MCC in late December 2023 may be fairly characterized as akin to the type of torturous conduct that the Supreme Court of Canada, in Kazemi Estate for example, has held to be “undoubtedly unconstitutional” and “blatantly contrary” to section 12 of the Charter: para. 52.

[504] These three accused persons had their section 12 Charter rights violated.

Section 24(1) of the Charter

[505] I agree with Mr. Kapoor that, within the arena of the criminal justice system in Canada, one of the bargains that is implicit is that we tolerate presumptively innocent accused persons being detained pending the completion of their cases in exchange for an understanding that those accused persons will be treated humanely while in detention.

[512] In our case, this Court’s adjudication of the sections 7, 8, 12, and 24(1) Charter issues is premised on the evidence as a whole, detailed above in these reasons. The lack of evidence from [B] and [C], and the fact that this Court has rejected some of the evidence of [A], does not alter any of the Court’s key findings. At both the infringements stage and at the remedy stage, each accused has met his burden of proof.

[515] Fourth, the Crown argues that a stay of proceedings ought not to be ordered because there are alternative remedies that would suffice in the circumstances. I disagree that any of the proposed alternate remedies would be appropriate in these circumstances.

[516] A civil damages award is a prospective and uncertain remedy that would take years to achieve and which, more importantly, would do very little to address the prejudice caused by the abuse in question.

[517] A reduction in the sentence for first-degree murder is plainly not possible, and the Crown’s whole theory of the case is premised on this being a gang rivalry-fueled, premeditated, execution-style killing and nothing else. A reduction in the sentence for attempted murder means nothing in the face of a sentence for first-degree murder.

[518] Judicial interim release of these accused would do nothing to address the prejudice caused by the abuse and, just as important, this Court cannot simply release three men on bail if they cannot meet the statutory reverse-onus test for bail, and I doubt that they could

[519] Finally, a judicial declaration of censure would be meaningless. Other issues involving MCC, such as overly harsh conditions in pre-sentence custody and chronic delays in prisoner transport, have already been the subjects of repeated “judicial declarations of censure” by this Court and by a countless number of other judges, with no impact whatsoever. Besides, such a declaration would be a wholly inadequate response to address the prejudice caused by this high degree of very serious state abuse.

[523] For these three accused persons, it is the constellation of abusive conduct, giving rise to multiple Charter violations, that underlies the above conclusion, including but not limited to the unjustified activation of ICIT for a totally improper purpose; the complete lack of adherence to the legislative and policy requirements both before the ICIT deployment started and during the ICIT deployment; the negligent loss of or intentional destruction of or deliberate withholding of highly relevant evidence of what happened during the ICIT deployment; the collusion and the attempted cover-up; the untruthful evidence given to this Court and, in some respects, to the CSOI body; and the lack of follow-up and accountability since December 2023, even after the CSOI findings were made.[Emphasis by PJM]

[524] On the first part of the test for a stay of proceedings under the residual category of cases, I have asked myself whether the prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial or by its outcome, and I have concluded that it would be.

[525] With respect, the Crown is wrong when it tries to paint a picture of this abusive conduct as being totally divorced from the criminal proceeding itself. The Crown is taking far too narrow a view of the matter, just as the Crown did in Gilmore-Bent, as observed by Paciocco J.A.

[526] The collusion among some MCC witnesses, and the giving of untruthful evidence, and the attempted cover-up, as examples, were not limited to events that are separate and apart from this criminal proceeding but are abusive conduct that persisted well after this criminal proceeding started and even continued during the actual court hearing of the within application.

[530] I am convinced that a trial in this proceeding will serve to perpetuate the wrongs that have occurred here. If a stay of proceedings is not granted, and if these wrongs are left alone, they will, in my opinion, leave an indelible scar on the administration of justice and continue to trouble us all. Without wanting to oversimplify the matter, this case is all about [A], [B], and [C] being subjected to torturous state actions while being held in pretrial detention as presumptively innocent accused persons – state conduct that deployed ICIT against these three accused persons not for anything they did but in order to avenge what one other inmate did to a correctional officer. In the face of that overall picture of wrongs, we cannot permit the case to proceed to trial.

[532] I have concluded that this is such an exceptional case. Some of the abusive conduct has continued right up to the present time: collusion, cover-up, and untruthful evidence, as examples. There is no reason to think that those things, the abuse, will not be carried forward if a stay of proceedings is not granted and a trial ensues.

[533] It is true that another large-scale ICIT deployment and level IV search has not occurred at MCC since late December 2023, that I am aware of, however, the gross lack of accountability and follow-up that has post-dated this ICIT operation makes me think that the abuses that occurred in late December 2023 are likely to occur again.

[536] I must balance the interests in favour of granting the stay, such as denouncing the abusive state misconduct in this case and preserving the overall integrity of the justice system, against society’s interest in having the case adjudicated on its merits.

[537] Ultimately, at this very final stage of the analysis, the question for this Court is whether the integrity of the justice system would be better served by a stay of proceedings or a full trial on the merits.

[538] I have concluded that it would be better served by a stay of proceedings.

[541] There is a spectrum of state misconduct, with the most egregious conduct being such that there is a greater need for the court to dissociate itself from it due to the degree that the said conduct shocks the conscience of the community and offends its sense of fair play and decency. In such a case, it becomes less likely that society’s interest in a full trial on the merits will prevail in the final balancing process.

[542] This is such a case.

VI. Conclusion

[543] On all charges on the Indictment against all three of the accused, this Court enters a judicial stay of proceedings pursuant to section 24(1) of the Charter.

R. v. E.J., 2025 ONSC 6016

[October 24, 2025] Self-Defence: Use of a Weapon against Unarmed Assailants [Schreck J. ] 

AUTHOR’S NOTE: The self-defence provisions in the Criminal Code cast a wide net, requiring courts to assess a broad range of contextual factors before determining whether an accused’s response was reasonable. In this case, the factual matrix involved an encounter that began as a group-versus-group confrontation but rapidly escalated into a scenario where one individual became isolated and was attacked by multiple assailants. In the midst of this fast-moving and chaotic sequence of events, the accused used a knife to defend himself, resulting in the death of one attacker.

The judgment highlights two crucial considerations: the group dynamics at play and the speed and intensity with which the confrontation evolved. These factors informed the trial judge’s assessment of the accused’s perception of the threat and the reasonableness of his defensive actions. In the end, the Crown failed to discharge its burden to disprove self-defence beyond a reasonable doubt.

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[1] Auptin Abedini-Senoubari was only 18 years old when he died of a single knife wound to the chest during a senseless altercation between two groups of teenagers. E.J., who was 17 years old at the time, was holding the knife that caused the wound.

[2] E.J. and Mr. Abedini-Senoubari did not know each other. They had both attended the same after-hours party with their respective groups of friends. E.J. had been evicted from the party and was arguing with a security guard outside when Mr. Abedini-Senoubari and his friends began to taunt him and video record him with their phones. E.J. became angry and he and his friends soon began exchanging taunts and insults with the other group. Eventually, both groups ended up in a nearby parking lot, where there were physical altercations between the members of both groups. One of those was between Mr. Abedini-Senoubari and E.J.

[3] The physical altercation between Mr. Abedini-Senoubari and E.J., most of which was captured on security surveillance video, lasted for less than 10 seconds. At some point, a knife E.J. was holding in one of his hands caused the wound that later killed Mr. Abedini-Senoubari. The altercation ended when E.J. fell to the ground, where he was kicked and stomped on by Mr. Abedini-Senoubari and one of his friends. The two groups then separated. Mr. Abedini-Senoubari collapsed about 12 seconds later and never recovered. By then, E.J. and the rest of his group had left the scene.

[4] E.J. was charged with second degree murder and elected to have a judge-alone trial in this court. After the evidence was heard, Crown counsel advised the court that they accept that the evidence does not support a charge of murder and have asked the court to return a finding of guilt for manslaughter

III. ANALYSIS – SELF-DEFENCE

A. The Defence of Self-Defence

(i) Overview of the Issue

[71] E.J. does not dispute that he inflicted the wound that caused Mr. Abedini-Senoubari’s death. He maintains, however, that he was acting in self-defence when he did so. The Crown accepts that there is an air of reality to this defence and that it bears the onus of disproving the defence beyond a reasonable doubt: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 50- 53

(ii) Section 34 of the Criminal Code

[72] The defence of self-defence is governed by s. 34 of the Criminal Code, an amendment to the much-criticized earlier self-defence provisions created by the enactment of the Citizen’s Arrest and Self-Defence Act, S.C. 2012, c. 9, s. 2. Section 34 now provides as follows:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[73] If the Crown disproves one or more of these components in s. 34(1) beyond a reasonable doubt, the defence will fail. In R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 51, the Court labelled the three inquiries as (1) the catalyst; (2) the motive; and (3) the response. The Crown accepts that the catalyst existed in this case, that is, that E.J. reasonably believed that Mr. Abedini-Senoubari was using force against him at the relevant time. I will therefore focus on the other two components.

(iii) The Moral Foundation for the Defence

[74] As was made clear in Khill, the amendments do more than alter the statutory criteria for the application of the defence. They also alter the moral foundation for it. Self-defence was usually previously thought of as a justification, that is, a circumstance in which an otherwise wrongful act is morally right. This is in contrast to defences that are categorized as excuses, which are those in which the act, although morally wrong, is forgiven based on a recognition of human frailty in certain circumstances: D.M. Paciocco, “The New Defense Against Force” (2014), Can. Crim. L. Rev. 269, at p. 274; C. Fehr, “The Moral Foundation of Criminal Defences and the Limits of Constitutional Law” (2023), McGill L.J. 291, at pp. 297-300. The majority in Khill, at para. 48, explained how this distinction has been “blurred” by s. 34:

The 2013 amendments further obscure the moral foundation of selfdefence. The new provisions retain the underlying principle that the accused’s actions are a response to an external threat to their bodily integrity. However, unlike the old law, the self-defence provisions no longer use the language of justification. Section 34 simply states that the accused “is not guilty of an offence” where the requirements of the defence are met. Further, the elimination of an “unlawfu[l] assaul[t]” (per the previous s. 34(1)) or an “apprehension of death or grievous bodily harm” (per the previous s. 34(2)) as discrete triggering features arguably removes any residual boundary between the “morally justifiable” and “morally excusable” categories of the defence. Some argue that the new s. 34 may accommodate a continuum of moral conduct, including acts that are merely “morally permissible” where the threat and response meet a reasoned equilibrium (Fehr, [“Self-Defence and the Constitution” (2017), 43 Queen’s L.J. 85] at p. 102). This suggests the defence is neither purely a justification nor an excuse, instead occupying a middle ground of “permissibility” between rightfulness and blamelessness. As will become apparent, the line between justification and excuse has been blurred by the amendments, and this must be taken into consideration in interpreting the new provisions.

See also D. Stuart, “R. v. Khill: The Supreme Battles at Length to Interpret Uncertain Self-Defence Provisions” (2021), 74 C.R. (7th) 324.

C. Motive

(i) The Crown’s Position

[84] As noted, the first component of self-defence, the catalyst, is not in issue. The second component is the requirement that “the act be undertaken by the accused to defend or protect themselves from the use of threat or force” and “not undertaken for the purpose of vigilantism, vengeance or some other personal motivation”: Khill, at para. 59.

[85] The Crown submits that E.J.’s motive for the stabbing was not to protect himself, but rather to harm Mr. Abedini-Senoubari, whom he recognized as the person who had taunted him and made a video of him earlier. Crown counsel relies on the text messages, which she submits shows that E.J. had an animus against Mr. Abedini-Senoubari and targeted him specifically.

(ii) Self-Defence Need Not be the Only Motive

[86] The motive component requires that the accused acted for a defensive purpose, but it does not require that this be his or her only purpose. This element of the defence is made out if selfdefence was at least part of the accused’s purpose in undertaking the act in question. The defence fails only “[i]f there is no defensive or protective purpose”: Khill, at para. 59. This was explained in R. v. Zsombor, 2023 BCCA 37, at para. 29:[Emphasis by PJM]

I accept that an accused’s purposes may be layered, in that they may act for a defensive purpose in addition to another purpose. However, for the defence of self-defence to succeed, the accused must have acted for a defensive or protective purpose, regardless of what other purposes may have co-existed.

See also R. v. Jeremschuk, 2024 ABCA 268, 75 Alta. L.R. (7th) 242, at paras. 28-29.

[87] Given the speed at which the events occurred and the fact that at the time of the fatal injury, E.J. appeared to be moving away from Mr. Abedini-Senoubari, who was advancing on him, the Crown has failed to satisfy me beyond a reasonable doubt that E.J. had no defensive or protective purpose at the time he stabbed Mr. Abedini-Senoubari.

(iii) The Text Messages

[88] I recognize that the text messages, in particular the one which states “Ur right we had to yoke your homie we had to make it personal,” suggests that E.J. targeted Mr. Abedini-Senoubari. However, without the context of the other party’s portion of the conversation, I am not inclined to put much weight on the text messages. In any event, given E.J.’s age and the overall immature tone of the messages, I am of the view that the messages were largely an expression of juvenile bravado rather than a genuine description of his state of mind.

D. Reasonableness

(i) Overview

[89] The real issue in this case is whether E.J.’s act was “reasonable in the circumstances” as required by s. 34(1)(c). The decision in Khill outlines several important points about what is meant by “reasonable in the circumstances,” which can summarized as follows:

 The purpose of the reasonableness requirement is to ensure that the law of self-defence conforms to community norms of conduct, that is, the conduct expected of a reasonable person in the circumstances:Khill, at para. 62.

 The reasonableness requirement “casts a wide net of inquiry” that must take into account how the act happened and the role each person played: Khill, at para. 64.

 The inquiry is concerned with what a reasonable person would have done in similar circumstances, not what the accused thought at the time of the act: Khill, at para. 65. In other words, the issue is the reasonableness of the accused’s actions, not his or her beliefs. However, reasonable beliefs held by the accused as to the nature of the threat are relevant, even if mistaken: Khill, at paras. 65-67.

 It is not the accused’s perspective that must be considered. Rather, it is the perspective of a reasonable person with some of the accused’s qualities and experiences, such as his or her physical characteristics (e.g. age, size, gender, etc.) as well as the prior history, if any, between the parties: Khill, at paras. 64, 67.

 Because s. 34 “blurs the line” between justifications and excuses, the term “reasonable” is not restricted to acts which are morally right. However, where an accused seeks to excuse his or her actions as being morally involuntary, the extent to which he or she contributed to the creation of the threat is an important consideration: Khill, at paras. 47-48; 105-107.

 The trier of fact must consider all of the factors enumerated in s. 34(2) that are relevant in the circumstances of the case, but may consider other factors as well. No one factor is necessarily determinative and the weight to be given to each factor is for the trier of fact to determine: Khill, at paras. 42-44, 68.

[90] This framework requires me to assess E.J.’s conduct in the context of a broader social perspective on what constitutes acceptable behaviour: Khill, at para. 2. This requires me to apply an objective standard of reasonableness. However, it must be a “modified” objective standard that takes into account the accused’s personal circumstances, characteristics and experiences: R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at paras. 56-57; Khill, at para. 64. E.J. did not testify, so I know little about his circumstances and nothing about his experiences. However, I do know that at the time of the events in question, he was 17 years old, and the objective standard I apply must be modified to account for this.[Emphasis by PJM]

(ii) Section 34(2) Factors

(a) The nature of the force or threat

[91] Mr. Abedini-Senoubari was clearly about to assault E.J. at the time of the alleged offence. However, the nature of the force or threat cannot be limited to that moment and the entire factual context must be considered. This case involved a conflict between two groups. By the time of the physical altercation between E.J. and Mr. Abedini-Senoubari, all of E.J.’s group except for Mr. Whyte had fled, while several members of Mr. Abedini-Senoubari’s group remained.

[92] The existence of a group dynamic and its relevance to the factor in s. 34(2)(a) was recently considered in R. v. Sels, 2025 ONCA 592, at paras. 17-20:

The factors set out in s. 34(2) contemplate that for purposes of selfdefence, an “incident” may involve multiple parties. An accused may perceive a threat of force emanating from one individual, or from a group acting in concert. The statutory criteria are broad and flexible. They require consideration of the whole of the circumstances. A group dynamic, where relevant, can impact on all three stages of the analysis: the catalyst, the motive, and the response.

A group dynamic stands out as particularly relevant to one aspect of s. 34(2), namely the direction in subsection (a) to consider “the nature of the force or threat”. The animating purpose of self-defence is “defending or protecting” oneself or another from a force or threat: s. 34(1)(b). As the intensity of a force or threat increases, so too does the range of reasonable responses.

The force or threat posed by a group will often be qualitatively different – that is different in nature – than that posed by an individual acting alone. An accused who is outnumbered in a physical dispute may face a heightened risk of danger. A coordinated assault from multiple assailants may be more formidable than an assault from an individual assailant, or even a series of assailants.

[93] The heightened threat posed by a group was illustrated in this case by events that occurred immediately prior to the altercation between E.J. and Mr. Abedini-Senoubari. At least two and possibly more people were circling Mr. Whyte and assaulting him in concert, conduct which Mr. Abedini-Senoubari joined in by swinging at Mr. Whyte. The threat posed by the group was also illustrated by what occurred immediately after Mr. Abedini-Senoubari was stabbed, when he and Mr. Alemi both kicked E.J. while he was on the ground, although this occurred afterwards and would not have been known to E.J. at the relevant time.

[94] Overall, this factor supports a finding that E.J.’s act was reasonable.

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force

[95] It is clear that at the time of the act, the use of force by Mr. Abedini-Senoubari was imminent and escape was not a realistic possibility. There were, however, other means available to E.J. to respond to the use of force. He could have struck Mr. Abedini-Senoubari with his fists or kicked him. He could have hit him with the bottle he had in his hand, as he had attempted to do moments earlier

[96] That said, I must bear in mind the well-established principle that an accused who claims self-defence is not required to “weigh to a nicety” the amount or type of force used in response and “the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection”: R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7; R. v. R.S., 2019 ONCA 832, 440 D.L.R. (4th) 165, at para. 38.

(c) the person’s role in the incident

(1) the scope of s. 34(2)(c)

(2) did E.J. intend to participate in a consensual fist fight?

[99] A central part of the Crown’s theory in this case is the contention that after walking to the Mr. Motor parking lot, E.J. and the others in his group decided not to leave the scene but to instead go south to the Get Movers parking lot for the purpose of having a consensual fight with the members of the other group, whom E.J. and others had beckoned to come there for that purpose.

[100] If E.J. had been involved in provoking the other group into engaging in a consensual fight, then he would have played a significant role in creating the situation that led to him resorting to force to protect himself. Up to that point, there had been no physical altercations between the two groups. In these circumstances, inviting the other group to engage in a fight would have been a deliberate choice to escalate the situation rather than retreat, which would be a relevant consideration: R. v. Willemsen, 2022 ONCA 722, 418 C.C.C. (3d) 353, at para. 20.

[101] Having carefully considered all of the evidence, I do not accept that E.J. attempted to initiate a consensual fight with the other group, although Mr. Whyte and Mr. Vorobiov may have done so earlier. I draw this conclusion for several reasons.

[102] First, there is no reliable evidence that E.J. communicated to the other group that he wished to engage in a consensual fight. No witness testified to hearing E.J. say anything that amounted to an invitation to the members of the other group to fight. The Crown submits that video from Camera #5 taken after E.J.’s group left the Mandarin parking lot shows that they continued to verbally engage with the other group. The video shows the feet of E.J.’s group moving around, but there is no audio and no evidence as to where the other group was at this point. I am not prepared to speculate about what, if anything, was being said. In any event, it appears from the placement of their feet that E.J.’s group was standing in a circle rather than facing the other group.

[107] By the time E.J.’s group entered the Get Movers parking lot, it would have been obvious to them that they were outnumbered and a fight with the other group would inevitably lead to them being defeated, humiliated and possibly seriously injured. I agree with Crown counsel that intoxicated adolescents sometimes make unwise choices, and it appears that Mr. Whyte and Mr. Vorobiov may have initially have done so, but I find it unlikely that all six members of the group intended to confront the larger group in the Get Movers parking lot. I accept the testimony of Mr. McKenzie that there was no plan for a consensual fight between the two groups.

[108] Fourth, the behaviour of E.J.’s group in the Get Movers parking lot, as seen on Camera #6, is inconsistent with them planning to engage in a fight. Mr. Berkovits immediately ran to the middle of the lot. The others all began to back away as soon as they entered the lot. Within six seconds, all of them except for E.J. and Mr. Whyte, both of whom had tripped, turned and ran away. While Mr. Vorobiov did move his fist into his hand three times, he immediately turned and ran after doing so. I accept his evidence that he was merely preparing to defend himself if necessary

[109] The Crown seeks to explain the group’s behaviour by postulating that they intended to have a consensual fight, but ran away when the other group turned out to be larger than expected. That may have been the case for Mr. Whyte and Mr. Vorobiov while they were on the grassy section between the laneways. However, by the time the whole group was in the Get Movers lot, they would already have known that the other group was much larger.

[110] For these reasons, I am unable to conclude that E.J. and his group planned to have a consensual fight with the other group in the Get Movers parking lot. It is far more likely that they entered the lot with the intention of leaving the area through the exit near the St. Louis Bar and Grill restaurant.

3. did E.J. initiate the altercation?

[111] The Crown correctly points out that E.J. swung the bottle at Mr. Abedini-Senoubari just prior to the fatal altercation and submits that he therefore initiated the altercation and cannot reasonably claim to have acted in self-defence. Whether the accused initiated the altercation is an important consideration under s. 34(2)(c) and can often be dispositive of whether he or she can successfully claim to have acted in self-defence: Khill, at para. 88.

[112] As was made clear in Khill, at para. 83, the effect of s. 34(2)(c) is that “judges and juries are no longer expected to engage in a step by step analysis of events, artificially compartmentalizing the actions and intentions of each party at discrete stages, in order to apply the appropriate framework to the facts.” This means that I cannot simply consider the events beginning at the moment that E.J. swung the bottle at Mr. Abedini-Senoubari.

[113] It is important to note that prior to Mr. Whyte punching Deon, there had been no physical contact between the two groups and the altercation had been entirely verbal. Mr. Whyte’s punch had the effect of changing the nature of the confrontation, so it is helpful to consider what occurred from that point, as well as the speed at which events unfolded.

[114] The important events and the times at which they occurred were as follows:

00:23:43: Mr. Whyte punches Deon.

00:23:44: Mr. Whyte runs away from Deon and loses his shoe.

00:23:46: Deon follows Mr. Whyte and they face each other and raise their fists.

00:23:49: A second individual approaches Mr. Whyte.

00:23:50: Mr. Whyte retreats and the other two follow.

00:23:52: The second man punches Mr. Whyte.

00:23:53: E.J., who was walking backwards, turns and sees Mr. Whyte, Deon and the other man.

00:23:54: E.J. swings the bottle at the second man and misses while Deon and the man swing at Mr. Whyte.

00:23:56: Mr. Whyte falls to the ground. Mr. Abedini-Senoubari breaks away from Mr. Ahmad and begins to run to the area where Mr. Whyte is.

00:23:57: Deon and the other man kick Mr. Whyte on the ground.

00:23:58: Mr. Whyte gets up

00:24:00: Mr. Abedini-Senoubari arrives to where Mr. Whyte is and swings at him

00:24:01: E.J. swings the bottle at Mr. Abedini-Senoubari and misses.

00:24:03: Mr. Abedini-Senoubari advances towards E.J. with his arm raised and appears to make contact with him.

00:24:04: E.J. extends his left arm, stabbing Mr. Abedini-Senoubari in the chest

00:24:05: E.J. falls to the ground, where he is kicked by Mr. Abedini-Senoubari and Mr. Alemi.

[115] This entire sequence of events took 22 seconds. During this time, E.J. swung the bottle three times: once at the unidentified male who was punching Mr. Whyte together with Deon and twice at Mr. Abedini-Senoubari right after he had joined the other two and swung at Mr. Whyte. The time that elapsed between when Mr. Abedini-Senoubari swung at Mr. Whyte and when E.J. stabbed him was four seconds.

[116] In my view, it is not accurate to say that E.J. initiated the confrontation with Mr. AbediniSenoubari. Rather, he became involved in an existing confrontation that was initially between Mr. Whyte and Deon, but which the unidentified male and Mr. Abedini-Senoubari then joined. E.J. was not the initial aggressor, nor was he the person who made the fight uneven.[Emphasis by PJM]

[117] When all of the evidence is considered, it is clear that E.J.’s role in the incident is not straightforward. He initially failed to take any steps to de-escalate the conflict and failed to leave the area when he could have done so from the Mr. Motor parking lot. He was not responsible for the altercation becoming physical, but he chose to use a weapon when others did not. However, he did so in circumstances where he and Mr. Whyte were outnumbered. While some aspects of E.J.’s role support the conclusion that his act was unreasonable, other aspects support the opposite conclusion. All form part of the matrix of factors that must be considered in determining whether the act was reasonable.[Emphasis by PJM]

(d) whether any party to the incident used or threatened to use a weapon

[118] E.J. used two weapons: the bottle he swung at Deon and then at Mr. Abedini-Senoubari and the knife. There is no reliable evidence that any other party used or threatened to use a weapon. While Mr. Vorobiov testified that he saw someone with a knife, his evidence on this point was unreliable.

[121] I am satisfied that E.J. did have the knife out when he was standing near where Mr. Whyte was fighting with the other two people. The video is clearer, the object is apparent for at least nine or 10 frames, and it is clearly moving together with E.J.’s hand. Furthermore, E.J. would not have had time to take the knife out when Mr. Abedini-Senoubari was advancing on him.

[123] Crown counsel submits that E.J. broke an unwritten “rule” against “bringing a knife to a fist fight.” That he did, which weighs against a finding that his actions were reasonable. The reason for the “rule” is that where only one participant in a fight is armed with a knife, they are not evenly matched and the fight is unfair. However, once again, the entire context must be considered and the presence of a group dynamic is a relevant factor. The use of a weapon in an altercation puts the other party at a disadvantage, which may make the act said to constitute selfdefence unreasonable. However, where the armed individual is facing a threat from a group, he or she is at a disadvantage and the use of a weapon may be reasonable to counter that disadvantage.

(e) the size, age, gender and physical capabilities of the parties to the incident

[125] There was evidence that Mr. Abedini-Senoubari was somewhat taller than E.J. and he appeared on the video to be slimmer and more muscular. However, the differences in their relative sizes were not, in my view, of much significance. They were of the same gender and approximately the same age. This is not a relevant factor in the circumstances of this case.

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident

[127] E.J. and Mr. Abedini-Senoubari did not know each other. They first interacted outside the Cleopatra Lounge when Mr. Abedini-Senoubari made a video of E.J. arguing with the security guard, which E.J. took exception to. After that, members of their respective groups became involved and taunts and disrespectful language were exchanged between them. Some of Mr. Abedini-Senoubari’s utterances of this type can be heard on the video he made while E.J. and his group were walking towards Mr. Motor. Some of E.J.’s words were captured by the camera outside the Cleopatra lounge, and several witnesses testified that he was shouting and speaking aggressively.

[131] In my view, both E.J. and Mr. Abedini-Senoubari made poor decisions at different points and chose to escalate or continue the altercation rather than end it.

(g) the nature and proportionality of the person’s response to the use or threat of force

[132] E.J. stabbed Mr. Abedini-Senoubari in the chest with a knife. The Crown is no longer alleging that E.J. intended to kill Mr. Abedini-Senoubari or intended to cause him serious bodily harm he knew was likely to cause death. However, stabbing a person in the chest with a knife is clearly very dangerous.[Emphasis by PJM]

[133] The proportionality of the response is a more difficult question. At one level, stabbing an unarmed person in the chest in response to a threat of being punched is disproportionate: Jobe, at para. 144. However, as noted earlier, the group dynamic must be considered: Sels, at para. 20; P.S., at paras. 288-291. The threat E.J. was facing was more than a punch from Mr. AbediniSenoubari. Rather, it was a group assault by several individuals. This was in fact what occurred immediately after the stabbing when Mr. Abedini-Senoubari and Mr. Alemi kicked and stomped on E.J. when he was on the ground.[Emphasis by PJM]

[134] Also relevant here is the principle alluded to earlier that an accused is not required to “weigh to a nicety” the measure of force required as a defensive action. There is no requirement for strict proportionality, and the accused may be mistaken about the level of force required as long as the mistake is reasonable: R. v. Kong, 2005 ABCA 255, 53 Alta. L.R. (4th) 25, at paras. 208-210, per Wittman J.A., dissenting, rev’d (dissent adopted) 2006 SCC 40, [2006] 2 S.C.R. 347; P.S., at para. 291. As was noted in R. v. Hodgson, 2024 SCC 25, 494 D.L.R. (4th) 501, at para. 78, “[a] person in a threatening situation need not carefully assess the threat and thoughtfully determine the appropriate response.”[Emphasis by PJM]

[135] Given the speed at which the events unfolded, the group dynamic and the fact that there was only one stab wound, I do not consider the force used to be disproportionate.[Emphasis by PJM]

(iii) Balancing the Factors and Assessing Reasonableness

[140] I have carefully considered all of the relevant factors in s. 34(2) of the Code. As noted, some favour a finding that E.J. acted reasonably, while some favour the opposite finding. While I view this as a close case, I am ultimately not satisfied beyond a reasonable doubt that E.J.’s actions were unreasonable and the Crown has therefore failed to disprove that he acted in selfdefence.

IV. DISPOSITION

[141] The Crown accepts that the evidence does not support the charge of second degree murder alleged in the indictment and E.J. is found not guilty of that charge. For the foregoing reasons, E.J. is also found not guilty of the lesser and included offence of manslaughter.