This week’s top three summaries: R v Boucher, 2025 ABKB 56: charges #severance, R v Leonard, 2025 ONCA 57: insufficient #reasons and R v Buonomo, 2025 ONCA 62: BPA #fentanyl
R v Boucher, 2025 ABKB 56
[January 30, 2025] Severance of Charges: Murder and Other Offences [Lisa A. Silver J.]
AUTHOR’S NOTE: Severance of charges can be crucial for the defence in several ways. An accused may wish to testify on some charges but not others. In jury trials, multiple charges can create undue prejudice, making it difficult for jurors to disregard bad character evidence and avoid improper propensity reasoning. Additionally, in cases with multiple accused, lengthy and complex jury instructions can lead to confusion, as the judge must clarify which evidence applies to which charges and accused. While judges are trained for this form of mental compartmentalization, jurors are not. Here, Justice Silver provides a strong overview of severance law in murder trials, ultimately granting severance in the interests of justice.
I. Overview
[1] On February 18, 2022, the fire department were called to a house fire. Chad Kowalchuk’s burned and bound body was found in the upstairs of the home, which he had owned and lived in. Mr. Kowalchuk did not die from the effects of the fire but from blunt force injuries.
[2] Mr. Boucher, Mr. Urban, Mr. Sims, and Mr. Abraham were jointly charged with the firstdegree murder of Mr. Kowalchuk. On the same Indictment as the murder, Mr. Boucher and Mr. Sims were also jointly charged with arson.
[3] According to the Crown’s theory, the four men beat Mr. Kowalchuk causing his death on February 13, five days before the fire. The fire was started by Mr. Boucher and Mr. Sims to conceal the death and any other evidence linking the four accused to the murder.
[5] Gasoline and propane were used as accelerants in the fire and found in the burned home. Accelerant and gasoline were detected on the clothing of two accused, Mr. Urban and Mr. Boucher. Accelerant was also found on the clothing of three non-accused, including Kyla Cooley and Sharlee Rennie, who lived in the basement of the home. The presence of gasoline was also detected on the clothing of Ms. Cooley.
[6] The deceased’s vehicle was recovered three days after the fire containing a jerry can of gasoline, butane torch, and other items. The vehicle was thought to be taken by Mr. Urban and Ms. Cooley. [
7] Mr. Boucher applied to sever the arson charge from the first-degree murder count pursuant to section 591(3) of the Criminal Code.
[8] There are two main issues. First, the defence argued that the two-count Indictment does not comply with section 589(a) of the Criminal Code because the arson does not “arise out of the same transaction” as the murder. If the defence is correct, the Crown improperly joined the two counts. As a result, the Indictment would not be valid. In determining this issue, I must also decide which party, the Crown or defence, has the burden of proof of compliance with the section.
[9] If the Indictment is valid, the second issue is whether severance of the arson and murder counts are required in the “interests of justice” under section 591(3)(a) of the Code. I must also decide if severance is ordered, whether the order includes Mr. Sims.
[10] Applying the presumption of regularity, I find the burden of proof is on the defence to show on a balance of probabilities that the Indictment is invalid. I am not satisfied that the Indictment is invalid under section 589(a) because the arson arises out of the same transaction as the murder count.
[11] However, it is in the interests of justice to sever the arson count from the murder count because the prejudice to Mr. Boucher’s fair trial interests outweighs the societal interest in avoiding multiplicity of proceedings. Moreover, it is just and fair that the severance of the counts applies to Mr. Boucher and Mr. Sims because the fair trial concerns apply to both.
[12] Accordingly, I direct the severance of the arson count from the murder count in the Indictment.
II. Analysis
A. Does the Indictment Comply with Section 589(a)?
i) Which party has the burden of proof?
[13] I find the defence has the burden to prove the Indictment does not comply with section 589(a) because the presumption of regularity applies to all indictments, requiring the defence to rebut the presumption on a balance of probabilities with evidence to the contrary. The application of the presumption of regularity is consistent with the practical realities of the drafting and preferring of an indictment. Moreover, placing the burden on the defence is consistent with general severance principles.
[14] I am satisfied that the common law presumption of regularity applies to all indictments preferred by the Attorney-General, which includes those prepared and preferred by Crown prosecutors. The presumption of regularity is a common law maxim presuming that acts done are proper and correct until the contrary is shown: R v Kapoor, 1989 CanLII 7250 at 68 [Kapoor]. In Kapoor, Justice Watt, as he then was, found the presumption had “especial application” to those persons who executed a public duty: Kapoor at 68; R v De Boerr, 2013 ONSC 2988 at para 7 [De Boerr]. Crown prosecutors execute public duties, and function with quasi-judicial authority: Boucher v The Queen, 1954 CanLII 3 (SCC), [1955] SCR 16 at 21, 23-24. As part of their duties, Crown prosecutors draft and prefer indictments. It is therefore presumed Crown prosecutors properly discharge their duties by executing and preferring valid indictments: Kapoor at 69.
[16] In this case, the presumption of regularity applies to the Indictment because the accused were directly indicted by the Deputy Attorney General for Alberta in the execution of their public duty. The Indictment is therefore presumed valid on its face, legal, and correctly prepared subject to evidence to the contrary.
[18] Because the presumption for regularity operates, the defence has the burden to rebut and displace the presumption through evidence to the contrary: Kapoor at 68; De Boerr at para 8. The degree of proof to rebut the presumption of regularity is on a balance of probabilities: Kapoor at 70. Justice Watt in Kapoor found the defence also has the evidential burden to produce sufficient evidence to put the issue into play: Kapoor at 70.
[19] Applying the presumption of regularity in this case, the defence has the burden to prove on a balance of probabilities that the Indictment is invalid because the arson did not arise from the same transaction as the murder. Moreover, the defence has the evidentiary burden to produce sufficient evidence to fulfill the threshold test. The defence filed a thorough, detailed, and properly grounded application that fulfills the threshold test. I, therefore, find the application has an air of reality. I will consider the issue on its merits.
[20] Finally, placing the burden of proof on the defence in this application is also consistent with the burden of proof in severance applications and with general severance principles: R v Giroux, 2002 ABQB 532 at para 9 [Giroux]. Those principles dictate that when the defence applies for severance, the defence has the burden of proof to satisfy the court that severance is in the interests of justice on a balance of probabilities.
ii) Does the arson “arise out of the same transaction” as the murder?
a) The statutory and legal approach
[25] Despite this debate, the courts agree that the assessment requires a fact-driven and case specific approach. In my view, this approach is necessarily contextual. The determination of whether an offence arises out of the same transaction of the murder is rooted in the objective of the original rule and the purpose of the subsequent amendment. The contextual perspective keeps the fact-driven assessment firmly anchored to the provision’s overarching concerns with trial fairness.
[26] Justice Watt in R v Manasseri, 2016 ONCA 703, leave to appeal refused, 2017 CanLII at para 68 [Manasseri], offered a helpful statutory interpretation of the phrase “same transaction”: Manasseri. He held that the term “transaction” is not confined to a “single event or occurrence” but includes “a series of connected acts or events that extend over a period of time.”
[27] Applying this interpretation, Justice Watt found in Manasseri that although the events were “discrete” and committed by different people, there was an underlying factual, legal and temporal “unity” labelling the offences as part of “the same transaction” as the murder: Manasseri at para 82.
[29] Case law has developed a list of non-exhaustive factors to consider in the overall assessment. These factors are grounded in the factual circumstances of the case. In Regina v Nimoh, 2018 ONSC 2745 [Nimoh], the court outlined several considerations to assist the decision-making process including temporal and geographical proximity between the charges, whether the crimes involve the same or different victims and accused, the similarity of issues, and whether the counts form part of a “continuous or related chain of events”: Nimoh at para 83.
b) Application to the case
[32] Applying the principles, I find the arson arises from the same transaction as the murder because the offences are connected by geographical and temporal proximity, are inextricably linked factually being part of the same series of events, share common accused and witnesses, and share similar evidential and procedural issues. In making this decision, I am mindful of the entire context of the two offences and sensitive to the concern for trial fairness.
[33] First, the two offences are intimately linked geographically. The arson and the murder happened at the same place, the deceased’s home. Second, the two offences are linked temporally. Even though all accused did various other activities in the intervening time, the arson happened only a few days after the murder.
[34] Third, the factual connection between the two counts is also reflected geographically and temporally because between the time of the murder and the time of the arson, the murder scene did not change. At the time of the arson, the deceased’s body was still located in the same place where the murder allegedly happened. Moreover, other than the removal of property from the home, the potential forensic evidence linking the accused persons to the murder was still present.
[37] On the other hand, there is a clear connecting series of acts or events starting with the murder and ending with the arson. For instance, the evidence strongly suggests that the primary reason for the arson was to conceal the murder and destroy evidence relating to it. It may be that the arson was also to destroy the photographs and videotapes of child abuse by the deceased, but this is arguably an incidental reason. Certainly, that evidence was portable and could have been removed from the home. What could not be easily removed was the forensic evidence linking the accused persons to the murder, and the body of the deceased. Moreover, looking beyond motive for the arson, the planning of the arson by the accused persons act as a bridge between the murder and the setting of the fire providing further connections between the two offences.
[38] Another way that the two offences are connected is through the investigation of the murder. It was the commission of the arson that triggered the police investigation of the murder….
[39] Fifth, the murder and the arson share some common accused but not all….
[43] There is a concern that the arson charge could lead to moral and reasoning prejudice. This concern is one of the underlying reasons for the traditional rule against joining non-murder counts with a murder. Although this is a concern, it is not the determinative one because the arson arises from the same transaction as the murder.
[44] I therefore find that the commonsense conclusion is that joinder of the arson count with the murder is consistent with the purpose and objectives of section 589 because of the significant underlying factual, legal, and temporal unity between the arson and the murder.
B. Is Severance of the Two Counts on the Indictment Required?
i) Is severance in the “interests of justice”?
[46] On balance, I find that it is in the interests of justice to sever the arson count from the first-degree murder count because of the significant prejudicial effect the arson charge would have on the fairness of the Mr. Boucher’s trial. In my view, the prejudicial effect cannot be adequately alleviated through jury instructions.
[47] Whether severance of the counts is in the interests of justice is an exercise of judicial discretion based on the balancing of several non-exhaustive factors outlined by Justice Deschamps in R v Last, 2009 SCC 45 at para 18 [Last]. Not one factor is determinative of the issue: R v Durant, 2019 ONCA 74 at para 73 [Durant]. The burden is on the defence to satisfy the court on a balance of probabilities.
[49] The factors favouring joinder of the two counts include the factual and legal nexus between the counts as well as the efficiencies in having a single trial. I will not repeat the earlier discussion, under the section 589 application, on the factual nexus between the counts. I am satisfied that the two counts are factually linked because the arson arises from the same transaction as the murder. This connection strongly favours joinder.
[50] To a limited extent there is legal nexus between the charges because both counts share some similar evidentiary and procedural issues. Moreover, the setting of the fire is potentially circumstantial evidence of the murder. However, the admissibility of fire as after-the-fact conduct is a separate issue that is not dependent on whether the arson count is on the Indictment. The legal nexus is a moderate indicator for joinder.
[51] The desire to avoid a multiplicity of proceedings is a factor in favour of joinder but is not a controlling one considering the seriousness of the murder charge and the overarching concern for trial fairness. The murder count shares many of the same witnesses and evidence with the arson count, making one trial desirable. Moreover, the evidence is not overly complex. Even so, if the arson was tried separately, not all the evidence from the murder trial is needed, thereby minimizing the length of a separate trial. On balance, these factors moderately favour joinder.
[54] I am satisfied there is prejudice to Mr. Boucher on a joint trial for several reasons. Cumulatively, these factors increase the complexity of the instructions to the jury raising concerns with trial fairness. Although jurors are well equipped to consider complex issues, in this case, I am not satisfied that the potential for prejudice to Mr. Boucher can be adequately alleviated through instructions, particularly where multiple cautionary instructions on differing issues are needed. The prejudicial concern is heightened because the arson count is joined with a first-degree murder count, the most serious offence in the Criminal Code. Together, these factors strongly favour severance.
[55] First, there is potential moral and reasoning prejudice arising from a joint trial. Although a timely and clear instruction to the jury can eliminate this kind of reasoning, because the fire evidence must be considered on the arson count, there is potential for contradictory and confusing instructions to the jury.
[56] Moral prejudice involves improper and faulty reasoning by the jury arising from the potential for the arson charge to be used as evidence of Mr. Boucher’s bad character: R v Keror, 2017 ABCA 273 at para 59 [Keror]. Bad character evidence can lead the jury to infer guilt on the murder merely because Mr. Boucher is the type of person to set an unlawful and destructive fire. Such reasoning can lead the jury to convict Mr. Boucher of the murder based on propensity evidence and not on the evidence for that charge.
[57] To eliminate this potential problem, the jury must be warned not to enter into this impermissible reasoning. This type of instruction is not in itself complex or difficult for a jury. However, in this case, the complexity increases because the fire evidence is relevant and material to the arson count. The jury would be told to not use the fire as bad character evidence, but they must also be instructed to use the fire evidence as proof that Mr. Boucher committed the arson.
[58] I should also mention that the murder evidence could be viewed as bad character evidence on the arson charge. The jury would also need to be carefully instructed not to convict Mr. Boucher of the arson merely because he may be the type of person to commit violence.
[59] A joint trial involving the arson also raises concerns with reasoning prejudice. This kind of prejudice arises from the admissibility of evidence that potentially confuses the jury and distracts the jury from their duty to render a true verdict on the murder count: Keror at para 59. It can lead the jury to place more weight on the arson evidence that is logically justified: Keror at para 60.
[60] Here, having a joint trial can reasonably distract the jury from the more serious firstdegree murder charge. For instance, the jury would need to hear detailed evidence on the fire to prove the arson charge beyond a reasonable doubt. The fire evidence would not be just a passing reference or part of the narrative. Rather, the fire evidence has the potential to have an outsized importance in the trial.
[61] Second, the moral and reasoning prejudice of a joint trial may be heightened if the fire evidence is also admissible as after-the-fact conduct on the murder count. This would require three different instructions to the jury. One instruction would warn the jury of the limited use of the fire evidence as bad character evidence on the murder. A second instruction would be more permissive, instructing the jury of the limited use of the fire evidence as after-the-fact conduct because it they find it is circumstantial evidence on the murder. The third instruction would invite the jury to use the fire evidence as proof of the arson charge. These nesting of instructions on the same evidence could be confusing and contradictory for the jury. It would also lengthen the jury charge.
[62] Moreover, if the fire evidence was also used as after-the-fact conduct evidence on the murder in a joint trial, the jury would be instructed on differing standards of proof. For instance, the criminal standard of proof beyond a reasonable doubt would not be applied by the jury when considering the after-the fact conduct as circumstantial evidence of the murder: R v Menard, 1998 CanLII 790 (SCC), [1998] 2 SCR 109. Yet, the jury would be instructed to apply the higher criminal standard to whether Mr. Boucher is guilty of the arson count.
[63] Third, I find that prejudice arises from the multiplicity of accused because only two of the three accused persons are facing a two-count trial. As a result, the instructions to the jury are more complex. For instance, if the fire evidence is admitted as after-the-fact conduct relevant to the murder, the evidence would apply to all accused but when considering the arson charge, the evidence would only apply to two accused, Mr. Boucher and Mr. Sims. Moreover, Mr. Boucher and Mr. Sims as accused on both the murder and arson counts would be highlighted and their role in the events over emphasized to their detriment.
[65] Also, severance of the counts does not preclude the use of the fire evidence as part of the context or narrative of the case, although a strong instruction on the limited use of the evidence would be needed. I am satisfied that severance of the counts would not impair the fact-finding or truth-seeking process. Rather, it would focus the jury on the first-degree murder count and promote a fair verdict rendered through due consideration of the applicable evidence.
[67] After reviewing and balancing all factors, I am satisfied that severance is required in the interests of justice. On balance the concern for trial fairness outweighs the desire to have an efficient single trial. As was stated by the court in Giroux, when it comes to such serious allegations, “the general objective of avoiding a multiplicity of trials must give way to the need to achieve fairness in relation to the murder counts”: Giroux at para 52. I agree. Here, the cumulative effect of potentially confusing and complex jury instructions creates real and significant prejudicial risk to overall trial fairness. The desire to save court resources with one trial and promote efficiencies does not outweigh the potential prejudicial effect of trying the arson count with the first-degree murder.
III. Conclusion
[69] The application to sever the arson count 2 from the first-degree murder count 1 is allowed with a caution. This ruling, however, should not be interpreted as a finding that the evidence of the fire is not admissible at the murder trial. My ruling does not preclude an application by the Crown prosecutor to admit the fire evidence as after-the-fact conduct relating to the murder.
R v Leonard, 2025 ONCA 63
[January 29, 2025] Appeals: Insufficient Reasons Adopting Crown Submissions [Reasons by Copeland J.A. with I.V.B. Nordheimer and L. Sossin JJ.A. concurring]
AUTHOR’S NOTE: Judges must make necessary factual findings and clearly explain their legal reasoning in Charter rulings and decisions on conviction or acquittal. In this case, the judge attempted to bypass this duty by adopting large portions of the Crown’s submissions without independently analyzing them. The Court of Appeal found this approach inadequate, ruling that it failed to meet the required standard of judicial reasoning.
[1] The appellant was charged with multiple counts relating to a loaded firearm seized from the trunk of a car that he was driving in the company of three male passengers. The Crown chose to proceed only on count #3, possession of a loaded prohibited or restricted firearm without being the holder of an authorization or licence, contrary to s. 95(2) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant was convicted and appeals from conviction.
[2] The trial turned on two applications alleging breach of the appellant’s Charter rights. The appellant alleged that his right to trial within a reasonable time, protected by s. 11(b) of the Charter, had been infringed. He also alleged that his right to be free from unreasonable search and seizure, protected by s. 8 of the Charter, was infringed by the search of the vehicle that led to the discovery of the firearm. The trial judge rejected both applications. The s. 11(b) application was heard and decided pre-trial. The trial proceeded blended with the s. 8 Charter application. Following the rejection of the s. 8 application, the parties filed an agreed statement of facts supplementing the evidence in relation to the firearm. The defence led no evidence on the trial proper, made no submissions, and invited the trial judge to convict.
[3] The appellant raises three grounds of appeal. It is only necessary to address the first ground to decide the appeal. The appellant argues that the trial judge’s reasons on both Charter applications are insufficient to permit meaningful appellate review. He argues that, in substance, the trial judge’s reasons on both applications simply adopted the Crown’s submissions. The appellant acknowledges that although a judge simply adopting the submissions of a party as their reasons is frowned upon, 2 it does not necessarily result in insufficiency of reasons. The appellant argues that in this case, the reasons are insufficient because the trial judge failed to make findings of fact on a number of contested issues;…
[5] I would allow the appeal on the basis that the trial judge’s reasons on both the s. 11(b) application and the s. 8 application are insufficient to permit meaningful appellate review. As noted above, this case turned on the disposition of the Charter applications. A new trial is required.
[6] Poor reasons, in themselves, do not justify appellate intervention. Appellate intervention is only warranted where the insufficiency of reasons prevents meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25-26, 28, and 55; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 70, 74-75. An appellate court must take a functional approach to the sufficiency of reasons, and review a trial judge’s reasons in the context of the record and the live issues at trial: R.E.M., at paras. 16, 35; G.F., at paras. 69-70. In short, to be sufficient, reasons must make clear what was decided and why, and the logical connection between the two: R.E.M., at paras. 17-18.
[8] Unfortunately, the trial judge’s reasons on both the s. 11(b) and s. 8 applications do not allow this court to know either the facts that he found or the legal analysis he applied to those facts. The substance of his reasons in both Charter applications was a boilerplate adoption of the Crown’s submissions, supplemented with references to ranges of paragraph numbers in the Crown’s written submissions, and in the case of the s. 11(b) reasons, also to pages of the transcript of the submissions. The rote nature of the reasons is clear from the extracts below from the s. 11(b) and s. 8 reasons.
Section 11(b) reasons
I find the Crown’s written oral submissions to be fair, balanced factually and legally supported, persuasive and I adopt them. I find the defence analysis is not persuasive and I reject it.
Section 8 reasons
I find the Crown’s written oral submissions to be fair, balanced factually and legally supported, persuasive and I adopt them. I find the defence analysis is not persuasive and I reject it. I find the Crown’s oral submissions and written submissions to be fair, balanced, supported in fact and law, persuasive and compelling, and adopt them; in particular paragraphs 5 to 16 of the respondent’s materials. I find the defence submissions not persuasive.
[9] The s. 8 application turned on whether the search of the vehicle, and in particular the search of the trunk, was lawful under s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (the “CCA”). Although arguments were made at trial (and on appeal) about the initial grounds to trigger the right to search, I will focus on the scope of the search, as that was the most contentious issue. There was a contested legal issue at trial as to whether, assuming there were grounds to search the vehicle, the lawful right to search extended to the trunk. This argument turns on whether the scope of the right to search in s. 12(3) of the CCA is limited by the fact that the prohibition in the CCA (as it relates to the facts of this case) only applies to cannabis that is “readily available to any person in the vehicle”: s. 12(2)(b). This is a question of statutory interpretation informed by the Charter.
[11] The trial judge’s reasons do not specify or identify the legal analysis that led him to find that the search of the trunk was lawful and did not infringe s. 8 of the Charter. I am not persuaded by the Crown’s submission on appeal that his reference to two cases relied on by the Crown make his legal analysis clear.
[12] Nor did the trial judge make any findings of fact on whether items in the trunk of the vehicle were “readily available” to any person in the vehicle, within the meaning of s. 12(2) of the CCA. The evidence was that the vehicle had a separate trunk (i.e., it was sedan-style and not a hatchback). It did not have a pass-through from the back seat to the trunk, but the back seats were capable of folding down. However, there were two passengers in the back seat. The trial judge made no factual findings about how easy or difficult it would have been to put the seats down or whether it was even possible to do so with two passengers in the back seat. The Crown asks us to make the necessary factual findings on appeal. That is not our role.
[13] As the Supreme Court noted in Sheppard, at para. 55:
Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.
On the s. 8 issue in this case, the trial judge’s reasons do not permit this court to engage in meaningful appellate review.
[15] The trial judge’s s. 11(b) reasons are similarly insufficient. As with the s. 8 application, there were numerous live issues in the s. 11(b) application. Several time periods were contested as potential defence delay or waiver. However, the trial judge’s s. 11(b) reasons do not allow this court to understand the basis on which the trial judge accepted the Crown’s arguments.
What was the factual basis upon which a finding of an informed waiver for a particular time period could be made?…
If the trial judge accepted the Crown submission that a second judicial pretrial should be characterized as defence delay, what was the basis for that finding?….
The trial judge was also critical of defence counsel for what he viewed as late disclosure to the Crown of the intention to bring a s. 11(b) application. It is not clear that the record supports this conclusion. But setting that to one side, the trial judge did not explain how this factor fit into the s. 11(b) analysis…
[16] The trial judge’s reasons fail to engage with these issues. There is a lack of explanation of both the facts found and the legal analysis for each contested area.
[17] As noted above, the jurisprudence on sufficiency of reasons directs that appellate courts must consider the sufficiency of a trial judge’s reasons in the context of the record and the live issues at trial. This obligation does not extend to requiring the appellate court, as a prelude to appellate review, to effectively write the reasons that the trial judge failed to produce. Nor is it the appellate court’s role to “perform its own analysis to resolve issues that the trial judge did not adequately address”: Penate v. Martoglio, 2024 ONCA 166, at para. 23.
[21] The trial judge’s reasons in this case do not meet that standard. To hold that the reasons in this case are sufficient would do a disservice to the parties to proceedings before the OCJ, to the public, and to the hard work of the other judges of the OCJ.
[22] I would allow the appeal, set aside the conviction, and order a new trial on count #3.
R v Buonomo, 2025 ONCA 62
[January 24, 2025] Bail Pending Appeal: Fentanyl Trafficking [Justice P. Lauwers J.A.]
AUTHOR’S NOTE: Fentanyl has become a major public emergency in Canada over the past decade, leading to increasingly severe punishments and, at times, reduced legal protections for accused persons. However, this case stands out as an exception, reinforcing the importance of procedural rights and ensuring meaningful appeal opportunities for individuals charged with possession for the purpose of trafficking.
[1] On April 22, 2024, the applicant was found guilty by a jury of the following offences:
Possession of 465.87 grams of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”);
(1) The Circumstances Giving Rise to the Convictions
[3] The charges arose from a police takedown of a vehicle in which the applicant was one of four occupants, sitting in the front passenger seat. Police searched the vehicle and discovered a bag containing 465.87 grams of fentanyl, a large quantity valued at $100,000, along with a conductive energy weapon on the floor of the passenger seat where the applicant was seated. After police conducted a strip search of the applicant at the station, they also discovered a small bag of cocaine. At the time, the applicant was on bail relating to charges of trafficking fentanyl and possession of a prohibited firearm from an arrest in July 2021.
[4]….A call was placed to the applicant’s choice of counsel at 12:17 p.m. The applicant was unable to reach his counsel of choice and did not leave a message with her office. He then spoke to an assistant at another lawyer’s office, but not to a lawyer. It is common ground that he never spoke to counsel on the day of the arrest.
[5] The applicant fairly summarizes the motion judge’s findings:
The motion judge found that the police had lawful authority to search the vehicle, and that their delay in providing the Applicant with his right to counsel was reasonable, but accepted that the manner of the strip search violated s. 8 of the Charter and that the police had breached the Applicant’s s. 10(b) rights by failing to facilitate his desired consultation with counsel.
The motion judge separately considered the admissibility of the evidence discovered in the vehicle and the evidence discovered on the Applicant’s person. He determined that the evidence seized during the strip search should be excluded, but that the s. 10(b) violation did not warrant excluding the narcotics and weapon discovered in the vehicle from evidence as all three Grant factors favoured admission.
The motion judge also noted that “[t]here was no connection between the s. 10 breach and the discovery of the evidence in the Dodge Charger vehicle”.
(3) The Governing Principles
[7] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.
[8] I set out the governing principles at length in R. v. J.B., 2023 ONCA 264. As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 86 C.C.C. (3d) 32, (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.
[9] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice: Oland, at para. 23; Farinacci, at pp. 47-48. Consideration of the public confidence component involves striking the balance between enforceability and reviewability. In striking this balance, “appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public”, being, “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47.
(a) Enforceability
[11] As noted in Oland, at para. 37, the seriousness of the crime figures in the assessment of the enforceability interest. These are undoubtedly very serious offences. The jurisprudence recognizes that “[d]rug trafficking offences such as these have been identified as being on the higher end of the gravity spectrum in the context of bail pending appeal applications”: R. v. Janisse, 2022 ONCA 756, at para. 9, per MacPherson J.A. He added: “This stance on drug trafficking offences is unsurprising, given the fentanyl and methamphetamine epidemic this country is currently experiencing”. See also R. v. Isaac, 2022 ONCA 156, at para. 9. The Crown is right to assert that “Fentanyl continues to plague Canadian communities.”
(b) Reviewability
[12] Reviewability acknowledges that the “justice system is not infallible” in its results, such that “persons who challenge the legality of their convictions should be entitled to a meaningful review process” that does not “require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, at para. 25, citing Farinacci, at pp. 47-49. The court noted in Oland that “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44. The applicant no longer benefits from the presumption of innocence: Oland, at para. 35.
(4) Application
[14] The Crown opposes bail pending appeal, arguing that the applicant does not satisfy the public interest criterion under s. 679(3)(c). Specifically, the Crown asserts that the seriousness of the crimes and the weakness of the grounds of appeal cause the public interest in enforceability to outweigh the reviewability interest. The Crown adds that the applicant also had a recent conviction for offences that took place just a few months before the offences under appeal: trafficking fentanyl, possessing a shotgun, and breaching court orders. The Crown expresses concern that this behaviour shows “similar conduct in such short duration.”
[15] In my view, as I will explain, the applicant’s Charter arguments “clearly surpass” the “not frivolous” standard. The applicant is not a flight risk; he complied with his bail restrictions without incident before and after he was convicted. Therefore, the public interest criterion drives much of this analysis.
(a) Public Safety
[16] Bail is denied under the public safety component only if the applicant poses “a ‘substantial likelihood’ of committing an offence or interfering with the administration of justice, where this ‘substantial likelihood’ endangers ‘the protection or safety of the public’ and when it is ‘necessary’ for public safety”: R. v. J.J., 2020 ONCA 280, at para. 12, citing R. v. Morales, [1992] 3 S.C.R. 711 at p. 737.
[17] I do not see the applicant as a public safety risk and take reassurance in the fact that the trial Crown did not seek to revoke his bail after he was convicted and leading up to the sentencing on January 16, 2025. I am buttressed in that view by the applicant’s considerable progress in rehabilitation. While in custody, he completed several programs that taught him “core life skills.” While out on bail in March 2024, he attended a 35-day in-patient substance abuse recovery program at De Novo Treatment Centre in Huntsville, Ontario. He has been regularly engaged with a psychotherapist/social worker through the Métis Nation of Ontario Wellness and Wellbeing program. There are letters of support from these institutions. His release plan is solid and includes GPS monitoring conditions, which I believe attenuates any public safety concerns in this case: see J.J., at para. 27.
(b) Public Confidence in the Administration of Justice
[19] Public confidence in the administration of justice requires that judicial decision-making be reviewed and corrected, especially when an individual’s liberty is at stake: Farinacci, at p. 48; R. v. Manasseri, 2013 ONCA 647, at para. 42. I now turn to assess the grounds of appeal and their weight in balancing the reviewability interest.
[20] The applicant’s essential argument is that the motion judge did not address and gave no weight to the unexplained police failure to advise him promptly of the reason for his arrest, as required by s. 10(a) of the Charter.
[21] The motion judge dismissed the claim that the police violated the informational component of s. 10(b) when they failed to read the applicant his rights to counsel until 10:32 a.m. The motion judge found that “his rights to counsel were given roughly 11 minutes after his arrest, which is not an inordinate delay, in my view”: at para. 50. The applicant points to three problems with this assessment. First, it is factually incorrect, since the applicant was not informed of his right to counsel until about 20 minutes after his arrest. Second, without any explanation, the police failed to inform the applicant immediately of his right to counsel. Third, the applicant points out that “the motion judge failed to incorporate the fact that the Applicant never spoke to counsel into his analysis.”
[22] The applicant argues that the motion judge was obliged to take the s. 10 breaches more seriously, and to combine them with the strip search s. 8 breach, in deciding whether the drugs found in the car ought to have been excluded by the analysis under s. 24(2) of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Instead, the applicant argues that the motion judge “improperly silo-ed the s. 10 breach from the s. 8 breach involving the manner of the strip search.”….
[23] The applicant’s argument that the s. 24(2) analysis is required to be more holistic has support in the jurisprudence. The panel hearing this appeal will have to decide whether the motion judge’s approach was deficient and whether the Charter breaches require that all of the evidence should be excluded, including the drugs found in the car. If that were to be the outcome of the appeal, then the applicant would have served part of his custodial sentence before this court determined that the conviction upon which it was based was unlawful.
(5) Disposition
[25] A reasonable member of the public, one who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values, would recognize that neither the possibility of the applicant’s flight, nor his possible risk to public safety have any role to play in balancing the reviewability interest against the enforceability interest. I see this application for bail pending appeal as a close call. The grounds of appeal carry significant weight. They are not weak, as the Crown submits, but are moderate in strength and could realistically lead to an acquittal on appeal. This possibility engages the liberty interest, which guards against imprisonment for those whose conviction might be unlawful. Although the offences are very serious and fentanyl is a scourge, granting the applicant bail would be consistent with public confidence in the administration of justice, in ensuring that the law is respected.
[26] The bail order in the form agreed to by the Crown and the applicant may be issued with the highlighted GPS warning filed by the Crown appended.
