



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Donnelly, 2016 ONCA 988

DATE: 20161229

DOCKET: C59680

Watt, Epstein and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Brandon Donnelly
[1]

Respondent

John McInnes and Katherine Beaudoin, for the appellant

David M. Humphrey and Jill D. Makepeace, for the respondent

Frank Addario and Megan Savard, for the intervener
    Criminal Lawyers Association

Christine Mainville and Benjamin Snow, for the
    intervener Canadian Civil Liberties Association

Heard: March 22-23, 2016

On an appeal from the sentence imposed by Justice Ian V.
    B. Nordheimer of the Superior Court of Justice on November 6, 2014, with
    reasons reported at 2014 ONSC 6472, 322 C.R.R. (2d) 56.

Watt J.A.:

[1]

Brandon Donnelly edited films. He worked at Azov Films, a company run by
    Brian Way. Azov Films distributed films worldwide.

[2]

Some of the films Donnelly edited showed naked pre-teen and teenaged
    boys engaged in sexualized play activities.

[3]

Donnelly and Brian Way got charged with making child pornography for the
    purpose of publication, amongst other child pornography offences.

[4]

Making child pornography for the purpose of publication is an offence
    that, on conviction, is punishable by a minimum sentence of imprisonment for a
    term of one year.

[5]

Donnelly pleaded guilty to making child pornography for the purpose of
    publication. But he did not go to jail. Not for one year. Not at all. The trial
    judge imposed a sentence of imprisonment on Donnelly, but ordered that he serve
    the sentence in the community. Such a sentence was statute-barred by s.
    742.1(b) of the
Criminal Code
, given the mandatory minimum sentence,
    but, in the trial judges view, an appropriate remedy in light of
Charter
breaches.

[6]

The Crown appeals.

[7]

These reasons explain why I have concluded that the trial judge made
    some mistakes and what I would do now to correct them.

The Background Facts

[8]

A brief overview of Donnellys involvement in the offence charged and
    what happened after his arrest until he was released from custody days later
    will provide the background necessary for an understanding of the arguments
    advanced on appeal and how I would respond to them.

Film Production

[9]

Donnelly received raw film footage from several countries. Some of the
    raw footage from the Ukraine and Romania showed naked pre-teen and teenaged
    boys. Although none of the films depicted sexual acts, they included scenes
    that exposed the penis and anal region of boys. It was admitted that the films
    were made for a sexual purpose  made for and marketed to adult men who are
    sexually attracted to boys. The films sold on Azov Films website featured 44
    different boys.

[10]

Donnellys task was to make a cohesive film from the raw footage. The
    finished product did not need a plot. Or a script. Or a story. Donnelly added
    title pages. Sometimes music. Copyright notices. The company logo. He produced
    trailers. He knew that the films he edited were posted for sale on the
    internet.

[11]

Donnelly made 74 films that were child pornography.

The Arrests and Searches

[12]

On May 1, 2011, police executed search warrants at Azovs offices, Brian
    Ways home, some post office boxes and Ways vehicle. Investigators thought
    that Way may have been using encryption technology and may have had remote
    access to material the police were authorized to seize. The search warrants
    were executed by a group of about 30 officers over the course of four days. By
    9:00 p.m. on May 1, 2011, police had succeeded in disconnecting the companys
    server from the internet.

[13]

Donnelly and Brian Way were arrested separately on May 1, 2011.

[14]

Donnelly was arrested at his parents home where he lived. His father
    told arresting officers that Brandon required medication daily  Prozac  for
    obsessive compulsive disorder (OCD) and anxiety. Brandon took four pills before
    leaving home with the police. His father gave the police Brandons current
    prescription in a smaller expired container to take with them.

[15]

Police took Donnelly to 22 Division for booking. The booking officer was
    told about Brandons medication needs and his prescription was put in a bag
    before he was lodged in a holding cell at the Division.

The Transfer to 23 Division

[16]

On May 2, 2011, Donnelly and several other prisoners were taken to 23
    Division to be fingerprinted and photographed. The men were handcuffed in the
    prisoner transport van.

[17]

Donnelly claimed that a uniformed officer at 23 Division described him
    as a sick fuck, a pedophile and a faggot. The officer taking his
    fingerprints, according to Donnelly, used unnecessary force in doing so. What
    occurred at 23 Division caused Donnelly significant stress and made him fearful
    about what would happen to him in custody.

[18]

The police denied any misconduct at 23 Division.

The Court Transport

[19]

Donnelly and Way were segregated from the other prisoners in the
    prisoner van that took them to the courthouse from 23 Division later on May 2,
    2011. Donnelly could hear prisoners in another compartment of the van talking
    about the charges he and Way were facing. When they arrived at the courthouse, Donnelly
    claimed that a guard there asked him whether he had been hurt. Another guard
    offered the rejoinder no, not yet. While being moved to the holding cells at
    the courthouse, a small and aggressive guard tripped Donnelly and said watch
    where youre going.

[20]

Donnelly spoke to his counsel in the holding cells. His counsel noted
    that Donnelly appeared depressed.

The First Appearance

[21]

Donnelly appeared with his counsel in bail court on the afternoon of May
    2, 2011. Donnelly was depressed and felt fearful in the company of other
    prisoners who knew the charges he faced. He had not been provided with any of
    his medication since his arrest.

[22]

A police officer, who was unaware of the actual state of the
    investigation, in particular, of what progress had been made in execution of
    the various search warrants, spoke to the Crown assigned to the bail court.

[23]

The officer advised the Crown to ask for the bail hearing to be adjourned
    for three days. Police needed to ensure that evidence was not destroyed by individuals
    who could gain remote access to the companys computer system. The reality was
    that by 9:00 p.m. the previous night the server had been disconnected from the
    internet.

[24]

Defence counsel had no disclosure and no real ability to challenge any
    allegations the Crown might make. The Crown had indicated that it would be
    seeking a detention order on the secondary and tertiary grounds. It was late in
    the afternoon and unlikely that a bail hearing could be accommodated in any
    event. Defence counsel, a very experienced criminal lawyer, realized that the
    Crowns request for an adjournment would inevitably succeed. In the
    circumstances, he consented to the adjournment request, but persuaded the
    presiding justice to endorse the warrant of committal that Donnelly be housed
    in protective custody and receive medical attention.

[25]

The justice adjourned the bail hearing to May 5, 2011.

Toronto West Detention Centre

[26]

Donnelly was transported from the courthouse to Toronto West Detention
    Centre (TWDC) in a prisoner van. He was seated in a separate compartment from
    other prisoners, but could hear them talking about the charges he faced.

[27]

During processing at TWDC, Donnelly claimed that an aggressive guard
    called Donnelly sick. Another announced his charges to others in the
    immediate area and told Donnelly that he (Donnelly) would enjoy jail.
    Donnelly was then escorted to the medical office, but was not given his
    medication.

[28]

From the medical office, Donnelly was taken to his cell. He said that en
    route, a guard struck him hard on the back of his head. Another told him that
    he would be hurt, beaten up while he was in jail. There was no water in
    Donnellys cell. Donnelly said that the mattress, bedding and hygiene products
    were taken from his cell, as were his clothes, leaving him with only his boxer
    shorts.

[29]

The next day, May 3, 2011, Donnellys parents visited him at TWDC. They
    became concerned about his treatment and his obvious fear. They spoke with a
    supervisor about Donnellys report that he had not been provided with his
    medication. At his parents request, Donnellys therapist called the jail to
    emphasize his need for Prozac and repeat Donnellys parents concern that he
    might be suicidal. Donnelly was placed on suicide watch and his jail clothing
    replaced by a gown. His cell had no running water and he was beginning to feel the
    effects of dehydration. Evidence from the correctional authorities suggested
    that Donnelly was provided with his medication sometime on May 3, 2011, however
    he testified that he did not receive it until the next day.

[30]

The following day, Donnelly was permitted to have his first shower since
    his arrest three days earlier. He was taken off suicide watch and returned to
    his cell with functioning water. His lawyer and therapist visited. He was
    depressed and, according to the therapist, reported suicidal ideation.

Release on Bail

[31]

On May 5, 2011, Donnelly was transported to the courthouse in a prisoner
    van. He was handcuffed to another prisoner. The Crown consented to his release.
    Later that day he was released from custody.

The Stay Application

[32]

Donnelly sought a stay of proceedings when he appeared for trial in the
    Superior Court of Justice. He alleged that his rights under ss. 7, 8, 9 and 10
    of the
Charter
had been infringed.

[33]

In connection with s. 9 of the
Charter
, Donnelly contended, and
    the trial judge found, that he had lost three days of liberty because the Crown
    had obtained an adjournment of his bail hearing on the basis of flawed
    information provided by the police. Although the Crown was unaware of the
    inaccuracy of the information, the result was an arbitrary detention that was
    exacerbated by Donnellys OCD and the failure of authorities to provide him
    with his medication in a timely way.

[34]

The s. 7 complaints and findings focused on the treatment of Donnelly
    while he was in the custody of police and correctional officers. Verbal and
    physical abuse. Assaults. Delayed provision of medication. And general
    mistreatment of a prisoner who suffered significantly more because of his OCD.

[35]

The trial judge declined to enter a stay of proceedings despite his
    findings that state actors had infringed Donnellys rights under ss. 9 and 7 of
    the
Charter
: see
R. v. Donnelly
, 2013 ONSC 7798.

The Plea of Guilty

[36]

About six months after dismissal of his application to stay proceedings
    for constitutional infringement, Donnelly pleaded guilty to a single count of
    making child pornography for the purpose of publication. The trial judge
    entered a finding of guilt and recorded a conviction.

The Sentencing Proceedings

[37]

The trial Crown sought a sentence of seven years in the penitentiary.
    Defence counsel sought a conditional sentence of imprisonment of not more than
    two years less one day.

[38]

The trial judge, mindful of the minimum sentence of imprisonment for a
    term of one year, considered that a fit sentence for Donnelly would be a term
    of imprisonment for 21 months without any consideration of the impact of the
Charter
infringements on the length of the sentence or on the manner in which the
    sentence should be served. Without account being taken of the
Charter
infringements, the sentencing judge concluded that a reduction of the sentence
    to the minimum jail term of one year would not provide an effective remedy, as
    it would ignore Donnellys mental health concerns and the risk of his
    committing suicide while in custody.

[39]

The trial judge concluded that this was one of the exceptional cases
    that required the mandatory minimum term of imprisonment to be overridden in
    order to provide Donnelly with an effective remedy under s. 24(1) for breaches
    of his
Charter
rights. A conditional sentence of 21 months was
    imposed.

The Issues on Appeal

[40]

The Crown alleges that three errors made by the trial judge led him to
    impose a sentence that is at once unfit and outside the dispositions available
    for the offence of which Donnelly was convicted. Two errors relate to the
    findings of constitutional infringement that provided the gateway to the
    remedial authority of s. 24(1) of the
Charter
. The third has to do with
    the use of s. 24(1) as an authority to impose a sentence outside the range of punishment
    available for the offence of which Donnelly was convicted.

[41]

For discussion purposes, I would paraphrase the three issues as alleged errors
    on the part of the trial judge as follows:

i.

in finding Donnelly was arbitrarily detained in breach of s. 9 of the
Charter
when his bail hearing was adjourned for three days on the basis of faulty
    information provided by the prosecutor;

ii.

in finding the security of Donnellys person was infringed by the manner
    in which he was treated by those in charge of his custody from his arrest until
    his release on bail; and

iii.

in invoking s. 24(1) of the
Charter
to impose a sentence
    outside the available range of punishment as an appropriate and just remedy for
    the infringements of Donnellys
Charter
rights.

The Applicable Standards of Review

[42]

A deferential standard of review applies to a trial judges imposition
    of sentence. An appellate court may only intervene where the sentencing judge
    has erred in principle, failed to consider a relevant factor, erred in his or
    her consideration of an aggravating or mitigating factor, and such error had an
    impact on the sentence imposed, or where an unfit sentence has been imposed:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 43-44, 52;
R.
    v. Lloyd
2016 SCC 13, [2016] 1 S.C.R. 130 at para. 52;
R. v. Grant
,
    2016 ONCA 639, at para. 162.

[43]

In relation to
Charter
breaches, appellate intervention is only
    warranted where the trial judge has committed palpable and overriding error about
    the facts that underlie the breach, or where the trial judges identification
and application of the correct legal principles raises a question of
    law, assessed on a correctness standard:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 129;
R. v.
    Shepherd
, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

[44]

And connection with to decisions pursuant to s. 24(1) of the
Charter
,
    a deferential standard of review has arisen from recognition of it as a broad
    discretionary remedy. Deference is owed
unless the trial judge
    has misdirected himself or herself in law, committed a reviewable error of fact
    or rendered a decision so clearly wrong as to amount to an injustice:
R.
    v. Bellusci
, 2012 SCC 44, [2012] 2 S.C.R. 509, at paras.
    17-19 & 30;
R. v. Babos
, 2014 SCC 16,
    [2014] 1 S.C.R. 309 at para. 48;
R. v. Badgerow
, 2014 ONCA 272, [2014] 119 O.R. (3d) 399, at para. 187, leave to
    appeal refused, [2014] S.C.C.A. No. 254.

Issue #1: The Infringement of s. 9

[45]

The initial
Charter
infringement found by the trial judge
    arises out of Donnellys detention and custody because his bail hearing did not
    proceed until May 5, 2011, three days after his first appearance on May 2,
    2011.

[46]

A few brief references to the underlying circumstances will assist in
    understanding the trial judges finding and the nature of the alleged flaw in
    his reasoning.

The Additional Background

[47]

The principal investigative technique used to build the case against Donnelly
    and Brian Way was the execution of search warrants.

[48]

Seven search warrants were issued in relation to this investigation and
    authorized searches at several places associated with Way and Azov Films. On
    May 1, 2011, the same day Donnelly and Way were arrested, a search warrant was executed
    at the Azov Films business premises. The warrants expired on May 4, 2011. None
    entitled the police to search Donnellys home or any other place with which he
    was associated.

[49]

The principal evidence sought by the police under the search warrants
    was housed in the computer system of Azov Films, the business at which Donnelly
    worked. It is notorious that the contents of such systems can be accessed,
    manipulated and eradicated remotely. No evidence. No case.

[50]

It is commonplace that in the vast majority of criminal prosecutions in
    this province, disclosure to the defence of the case for the Crown does not
    occur at first appearance. It is all the more so where the principal
    investigative procedure to gather evidence  execution of search warrants  has
    not been completed.

[51]

On first appearance on May 2, 2011, the prosecutor sought an adjournment
    of the bail hearing for three days. A police officer, who was not one of the principal
    investigators, had asked her to do so. The basis of the officers request was
    so that police could ensure that evidence was not destroyed (by remote access)
    until the warrants could be fully executed. The prosecutor also indicated that
    she wanted to seek a detention order on the secondary and tertiary grounds.

[52]

As it happened, by 9:00 p.m. on May 1, 2011, police had control of the
    computer system of Azov Films. They had disconnected the server from the
    internet. Remote access, hence manipulation and destruction of the contents of
    the system, was no longer possible.

[53]

It is not suggested that either the prosecutor or the officer who
    provided information to her about the need to guard against destruction of
    evidence intended to mislead anyone, including defence counsel and the
    presiding justice.

[54]

Donnellys case was not reached until late in the afternoon of May 2,
    2011. Defence counsel recognized that insufficient time remained in the court
    day to complete a contested release hearing. The prosecutors request for an
    adjournment for the stated purposes  to prevent destruction of the evidence
    and to show cause why detention was justified  would likely succeed, in any
    event. Defence counsel consented to the adjournment until May 5, 2011.

The Decision of the Trial Judge

[55]

The trial judge acknowledged that on the surface, the concern expressed
    by the prosecutor, on the basis of the information provided by the police, was
    legitimate. But this facial legitimacy was undermined by two factors:

i.

the police already had control of the computer systems and had
    disconnected it from the internet, thus making manipulation and destruction
    impossible; and

ii.

the police had made no effort at all to determine whether Donnelly had
    any computers in his home and thus, whether he had remote access to the
    companys computer system.

[56]

The trial judge was not persuaded that defence counsels consent to the
    adjournment was fatal to the s. 9
Charter
claim. Defence counsel was
    entitled to take at face value the information relayed by the prosecutor to
    justify the adjournment request. These requests are based on a high level of
    trust and good faith among counsel and must be handled expeditiously. Had the
    true state of affairs been disclosed, a consent release should have been
    forthcoming.

[57]

The trial judge expressed his conclusion in these terms:

When it comes to the question of bail for an accused person,
    police and prosecutors must be especially vigilant to ensure that only those
    persons whose continued detention is essential to the proper administration of
    justice are detained. Great care must be taken to ensure that any information
    provided to the court relating to the accused person, and any reasons
    underlying a request for that continued detention, even for a short period, are
    as complete and accurate as possible. Neither the immediacy of the matter coming
    forward, or the complexity of the investigation, or the volume of material, or
    the number of persons arrested, or any other like matters, can excuse
    non-compliance with the overarching need to be full, fair and frank with
    defence counsel and the court.

In this case, the prosecutor, through no fault of her own, put
    forward reasons for the continued detention of the applicant for three more
    days that were fundamentally flawed. As a consequence, the applicant lost three
    days of liberty  a deprivation of liberty that was particularly problematic
    for the applicant given his OCD. In my view, the deprivation constituted a
    breach of the applicants right under s. 9 of the
Charter
not to be
    arbitrarily detained or imprisoned.

The Arguments on Appeal

[58]

The Crown says that the adjournment granted by the justice was a
    facially valid order under s. 516(1) of the
Criminal Code
. It was not
    vitiated by fraud, duress or any other flawing circumstance. As a lawful order,
    adjourning the bail hearing for a time permitted by the
Criminal Code
,
    even without Donnellys consent, the ensuing detention cannot be arbitrary.

[59]

The Crown contends that the finding of infringement was grounded on two
    findings:

i.

that the faulty information
caused
Donnellys detention; and

ii.

that the police had a constitutional duty to provide perfectly accurate
    and up-to-date information to the prosecutor and thus, defence counsel.

But, the Crown continues, both findings are flawed.

[60]

According to the Crown, the prosecutor would have sought an adjournment
    even if she had received the correct information about Donnellys inability to
    manipulate or destroy evidence. The prosecutors position on release was driven
    by the size of the seizure  the largest in Canada  and the seriousness of the
    offence. Whether destruction or manipulation was possible, the search warrants
    had not expired on the date of the first appearance. They remained valid and
    executable until May 4, 2011. Further, the prosecutor would inevitably want to
    make further inquiries about Donnelly and the alleged offence, particularly his
    role in it, before embarking on a show cause hearing or consenting to his
    release.

[61]

The Crown argues that the consent of defence counsel to the adjournment
    puts paid to the claim of arbitrary detention. The consent was a considered
    decision made by experienced counsel aware of the realities of the situation.
    The largest seizure of its kind in Canada. An ongoing investigation. Continuing
    execution of search warrants. The difficulty of getting Donnelly released late
    in the day.

[62]

Further, the Crown submits, the suggestion of perfect fidelity between
    the current state of the investigation and the information provided to the
    prosecutor sets an unworkable standard, one impossible of achievement in an
    unfolding investigation. Failure to achieve it does not vitiate the consent of
    defence counsel or warrant a finding that s. 9 of the
Charter
has been
    breached.

[63]

Donnelly supports the conclusion of the trial judge. He says that an
    appropriate analogy in this case is the obligation settled upon the author of
    an Information to Obtain (ITO) and the effect of false or misleading
    information on the validity of the search authority. A facially valid order can
    be set aside, a search or seizure found unreasonable, because of the failure to
    make full, fair and frank disclosure of all material facts or because of the
    inclusion of false or misleading information. The standard should be no less
    stringent where the liberty of one accused of crime is at stake.

[64]

Donnelly adds that reliance upon demonstrably false information to
    justify or extend detention is unconstitutional and results in an infringement
    of s. 9 of the
Charter
. Since the tech officers had pulled the plug
    on the internet at 9:00 p.m. the previous day, any purported risk of
    destruction of evidence was eliminated less than eight hours after Donnellys
    arrest, well before the adjournment request.

[65]

Both parties submit that, while it was not the approach taken before the
    trial judge, the arbitrary detention issue arising from the adjournment of the
    bail hearing might also be framed as a s. 11(e)
Charter
breach.
    Accordingly, our review of the bail adjournment issues will also be assessed
    through the lens of s. 11(e) which guarantees a right not to be denied
    reasonable bail without just cause.

The Governing Principles

[66]

Three brief points should be made about the s. 9
Charter
guarantee against arbitrary detention or imprisonment.

[67]

First, s. 9 is a manifestation of the general principle, articulated in
    s. 7, that a persons liberty is not to be curtailed except in accordance with
    the principles of fundamental justice. This is one of the most fundamental
    norms of the rule of law. The state may not detain arbitrarily, but only in
    accordance with the law:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R.
    353, at para. 54;
Charkaoui v. Canada (Citizenship and Immigration)
, 2007
    SCC 9, [2007] 1 S.C.R. 350, at para. 88.

[68]

Similarly, the basic entitlement in s. 11(e) of the
Charter
to
    be granted reasonable bail, unless there is just cause to do otherwise, embodies
    the principle that liberty and the presumption of innocence are at the heart of
    a free and democratic society and that interim detention must be truly
    justified having regard to all the relevant circumstances:
R. v. St-Cloud
,
    2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 27-30, 70;
R. v. Hall
, 2002
    SCC 64, [2002] 3 S.C.R. 309, at paras. 13, 22, 47-50;
R. v. Zarinchang
,
    2010 ONCA 286, 99 O.R. (3d) 721, at paras. 37-39.

[69]

Second, a lawful detention is not arbitrary within s. 9 of the
Charter
unless the law authorizing the detention is itself arbitrary. On the other
    hand, a detention
not

authorized
    by law

is

arbitrary
    and violates s. 9 of the
Charter
:
Grant
, at para. 54;
R. v.
    Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20.

[70]

Third, a discretionary statutory authority may be arbitrary where the
    statute provides no criteria, express or implied, to govern its exercise. A discretion
    to detain persons will be arbitrary if there are no criteria, express or
    implied, which govern its exercise:
R. v. Hufsky
, [1988] 1 S.C.R. 621,
    at p. 633;
R. v. Pearson
, [1992] 3 S.C.R. 665, at pp. 669-700. A
    detention governed by unstructured discretion is arbitrary:
Pearson
,
    at p. 700.

[71]

The analogy advanced by Donnelly about the effect of false or misleading
    information in an ITO, or I would add, an affidavit filed in support of an
    application for a Part VI authorization, warrants brief reference to the
    principles that govern the disclosure obligations of the authors of those
    supportive documents and the effect of false or misleading information on the
    validity of the search authority.

[72]

Applications for search warrants and authorizations to intercept private
    communications under Part VI are
ex parte
proceedings. As a result,
    the author of the supportive document must make full, fair and frank disclosure
    of all material facts so that the authorizing judge or justice can assess
    whether the contents satisfy the conditions precedent to issuance of the search
    authority:
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 998, at para.
    46.

[73]

Without more, inclusion of false or misleading information in the ITO or
    supportive affidavit does not vitiate the search authority. The reviewing judge
    excludes the erroneous information and then determines whether there remains
    reliable information that might reasonably be believed on the basis of which
    the search authority
could
have issued:
R. v. Vu
, 2013 SCC
    60, [2013] 3 S.C.R. 657, at para. 16;
Araujo
, at para. 54.

The Principles Applied

[74]

As I will explain, in my respectful view, the trial judge erred in
    concluding that the three day consent adjournment of the bail hearing amounted
    to an arbitrary detention in breach of s. 9 of the
Charter
.

[75]

In my approach to this issue, I have in mind that to decide
    whether a
Charter
claimant has established entitlement to a remedy
    requires proof on a balance of probabilities of the foundational facts that
    ground the claim and, further, that those facts amount to an infringement of
    the claimants right or freedom guaranteed under the
Charter
.
An appellate court may intervene only where the trial judge has
    committed palpable and overriding error in relation to the facts that underlie
    the breach, or where the trial judges identification and application of the
    correct legal principles raises a question of law, assessed on a correctness
    standard.

[76]

Section 516(1) of the
Criminal Code
permits a justice, before
    or at any time during the course of a judicial interim release hearing, on
    application by the prosecutor or accused, to adjourn the proceedings and remand
    the accused in custody in prison. Where the adjournment
exceeds
three
    clear days, the consent of the accused is required. It necessarily follows that
    an adjournment that is
not
more than three clear days  as was the
    adjournment in this case  does not require any consent on the part of the
    accused.

[77]

Ex facie
the order of the justice adjourning the judicial
    interim release hearing from May 2, 2011 to May 5, 2011  a period that did not
    exceed three clear days  was a valid order under s. 516(1) of the
Criminal
    Code
. Donnellys detention pursuant to that order was a detention
    authorized by law, thus not arbitrary under s. 9 of the
Charter
.

[78]

Nor does the fact that the adjournment was granted in part on the basis
    of inaccurate information transform what was not an arbitrary detention into
    one that was arbitrary. I have reached this conclusion for several reasons.

[79]

First, the conclusion of the trial judge begins from a faulty premise 
    the obligation to provide error-free, up-to-moment disclosure of the progress
    of the investigation to the prosecutor. This posits a disclosure standard of
    perfection that would outstrip the legitimate requirements of
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326.

[80]

Second, to the extent that the trial judge found that the inaccurate
    information invalidated the consent of defence counsel to the adjournment, it
    was unmindful of the irrelevance of consent to the validity of the adjournment.
    The adjournment request did not seek an adjournment for more than three clear
    days. The adjournment sought and granted was for two clear days:
Interpretation
    Act
, R.S.C. 1985, c. I-21, s. 27(1).
[2]
No consent was required. A Crowns request for adjournment pursuant to s. 516
    is not an absolute right, but rather must be made on a good faith basis and
    informed by the requirement for a just cause analysis pursuant to s. 515, such
    that an accused otherwise entitled to release will not be arbitrarily detained.
    Here, for reasons that will be set out more fully below, even absent a concern
    for destruction of evidence, the adjournment request cannot be said to be
    without foundation.

[81]

Third, to the extent that the finding of infringement is rooted in an
    analogy to the effect of inclusion of erroneous information in an ITO or
    affidavit submitted in support of a search warrant or Part VI authorization,
    the analogy is inapt.

[82]

The obligation to make full, fair and frank disclosure of all material
    facts in an ITO or Part VI affidavit is a function of the
ex parte
nature
    of the procedure involved in obtaining the search authority. Judicial interim
    release hearings are not
ex parte
proceedings. Further, the inclusion
    of erroneous information in the ITO or Part VI affidavit does not, without
    more, vitiate the enabling order or make the search conducted under its
    auspices constitutionally flawed.

[83]

Moreover, the trial judges conclusion that the adjournment violated Donnellys
Charter
rights is premised on finding that, absent the erroneous
    concern about the destruction of evidence, the Crown would not have sought the
    adjournment. However, the Crown did not seek the adjournment
solely
because of the risk of destruction of evidence. The primary reason articulated
    in making the request was so that the police can continue their
    investigation. That encompassed not only the ongoing execution of search
    warrants, but also the size of the seizures in relation to serious child
    pornography charges, further delineation of Donnellys role and his suitability
    for release.

[84]

There remained legitimate reasons to pre-empt a judicial interim release
    hearing for a short period of time. Indeed, during the initial appearance on
    May 2, the Crown advised the court Donnellys detention was being sought on the
    secondary and tertiary grounds. The Crown dealing with the matter on May 5
    initially advised defence counsel that they would not consent to release. It
    was only after speaking to an investigating officer, receiving information
    about Donnellys role as an editor, receiving a report from his therapist about
    his OCD and how the therapist felt he was faring in custody, that the Crown consented
    to release later that day.

[85]

In the result, I am satisfied that the trial judge erred in holding that
    the adjournment of the judicial interim release hearing from May 2, 2011 until
    May 5, 2011 infringed s. 9 of the
Charter
. Nor, could an infringement
    of s. 11(e) of the
Charter
be established on the record in this case. It
    follows from the lack of infringement that s. 24(1) could not be engaged on this
    basis.

Issue #2: The Section 7 Infringement

[86]

The trial judge also found an infringement of the security of the person
    component of s. 7 of the
Charter
. In general terms, the infringement
    related to the manner in which Donnelly was treated by state agents while in
    custody after arrest but prior to release. The conduct included what occurred
    at the police station, during transport to court, at court and at TWDC.

[87]

Little need be added to the circumstances already recited but some
    detail is necessary because the Crown alleges palpable and overriding errors in
    some of the factual findings made by the trial judge.

The Additional Background

[88]

Donnelly claimed that a police officer used excessive force when he was
    fingerprinted and photographed at 23 Division. The fingerprint officer denied
    the allegations. The trial judge found that no such conduct took place.

[89]

The jail records for the period of May 2 to May 5, 2011 disclosed that Donnelly
    received his medication  Prozac  on May 3, 2011. During his incarceration at
    TWDC, Donnelly received all his meals including drinks. He suffered no visible
    injuries, including bruises, while in custody.

[90]

On prior occasions, Donnelly had occasionally missed a dose of his
    medication for OCD. Donnelly testified that memory problems were not associated
    with his OCD.

The Reasons of the Trial Judge

[91]

Donnelly alleged a breach of his s. 7 right to security of the person on
    the basis of several events that occurred while he was in the custody of
    various state actors. The trial judge summarized those events as including:

Many of the applicants complaints regarding the manner in
    which he was treated between May 1 and May 5 involve the time that he was held
    in custody. The applicant recounts a number of events that occurred during that
    time. These events include the following:

(i)    He
    was not given his medication either on May 2 or May 3;

(ii)    He
    was verbally abused on a number of different occasions by various police
    officers, court officers and prison guards including implied threats and
    derogatory terms;

(iii)   He
    was struck in the back of the head on one occasion by a prison guard;

(iv)   He
    was intentionally tripped on one occasion by a court officer while in the cell
    area at the Finch Avenue Courthouse;

(v)   The
    nature of the charges that he faced was announced by prison guards to other
    inmates in the detention facility;

(vi)   He
    was kept in a cell overnight at the detention facility dressed only in his
    boxer shorts with nothing to keep warm and no mattress to sleep on;

(vii)  He
    was provided with minimal drink and food;

(viii) He
    was never provided with hygiene products and only at the very end of his stay
    was he permitted to have a shower.

[92]

The trial judge considered the standard to be met by Donnelly to
    establish a breach of s. 7 required him (Donnelly) to demonstrate that the
    conduct of the state actors caused him significant psychological injury. The
    judge then examined the several claims advanced by Donnelly, finding some
    established and others not proven.

[93]

The trial judge was satisfied that both the police and correctional
    officers failed to provide Donnelly with his medication  Prozac  for 48 hours,
    despite having the medication in their possession. The judge acknowledged that Donnelly
    did not request his medication (although others did on his behalf); that it was
    corrections policy not to administer medication brought into the jail by
    inmates; and that Donnelly suffered no physical harm as a result of the delay
    in receiving his medication. The trial judge concluded that the delay in
    providing the medication exacerbated Donnellys inherent anxiety and caused him
    reasonably to believe that the authorities were intentionally withholding his
    medication.

[94]

The trial judge rejected Donnellys complaint that he had been subject
    to abuse, in particular, held up to ridicule by officers at 23 Division. The
    judge had no doubt that Donnelly was subjected to derogatory remarks during his
    transfer from 22 Division to 23 Division, from 23 Division to the courthouse
    and at the courthouse. He considered that common sense and experience strongly
    support the likelihood that such comments would have been made by some
    [correctional] officers because not all officers conduct themselves with the
    degree of professionalism that we would hope for and, frankly, have the right
    to expect.

[95]

The trial judge also found that Donnelly had been tripped by a court
    officer while he was being walked through the cells and that he had been struck
    on the back of the head by a guard at TWDC. He found that neither event was
    something Donnelly would misinterpret or be confused about because of his OCD
    or simply make up. Besides, experience demonstrates repeatedly that these
    types of events occur.

[96]

The trial judge rejected the allegation that other inmates knew of the
    offences with which Donnelly was charged because correctional authorities
    announced the charges in their presence. He also found nothing improper about
    the provision of food, drink, hygiene products and shower access to Donnelly,
    who made no complaint about the lack of working water fountains in two of his
    cells.

[97]

The trial judge further found that Donnelly had been left in his boxer
    shorts during his first night at TWDC. In making this finding, the trial judge
    relied on two items of evidence that he said corroborated Donnellys complaint:

One is that this is an event that the applicant told his father
    about, somewhat reticently, when he spoke to his parents the next day. The
    other is that there was no evidence that, prior to being put in a segregation
    cell, inmates are strip searched and then provided with clothing and a mattress
    some short time later. I believe that that short time became a much longer
    time in the case of the applicant and I believe that this likely occurred as a
    juvenile way for the guards to express their displeasure regarding the
    applicant. Both of these facts provide some corroboration for the applicants
    evidence respecting this event.

[98]

The trial judge expressed his conclusion on the s. 7 issue in these
    terms:

In the end result, I am satisfied that during the time that he
    was held in custody, the applicant was verbally abused, he was physically
    abused and he was generally mistreated. The impact of this mistreatment was
    especially acute for the applicant given his OCD. There is no justification for
    this conduct. The fact that persons are in custody does not bestow on the
    authorities responsible for their care, the right to abuse or mistreat inmates
    simply because they are offended by the nature of the allegations found in the
    charges that the inmate faces. The requirement that prisoners are to be
    provided with humane treatment is a longstanding principle that has
    international application.

I conclude therefore that the applicants rights under s. 7 of
    the
Charter
were breached by the conduct to which he was subject
    during the time that he was held in custody.

The Arguments on Appeal

[99]

The Crown says that the trial judges finding of a s. 7 infringement
    based upon the treatment of Donnelly while in the custody of state agents is
    flawed in two significant respects. His findings of fact were clearly wrong,
    unsupported by the evidence and plainly unreasonable. They are diffuse with
    palpable and overriding errors and reviewable on that basis. What is more,
    according to the Crown, the trial judge applied the wrong legal test in
    deciding that the alleged misconduct amounted to a breach of s. 7. The proper
    standard requires proof that the conduct of the state had a serious and
    profound effect on a persons psychological integrity with the effects being
    assessed objectively, with a view to their impact on the psychological
    integrity of a person of reasonable sensibility.

[100]

According to the
    Crown, the trial judge did not engage in any meaningful assessment of Donnellys
    sincerity in making his findings of fact. He paid no heed to the implications
    of his rejection of critical aspects of Donnellys testimony and was oblivious
    to the possibility of testimonial insincerity despite the frequent
    inconsistency between Donnellys testimony and the objectively discernable
    evidence and signs pointing to concoction and hyperbole.

[101]

The Crown
    contends that the trial judges reasons for accepting Donnellys evidence
    reflect error. The reasons for accepting his testimony about physical assaults
    are speculative and illogical. In connection with the finding relating to the
    boxer shorts, the acceptance was based on spurious corroboration including a
    prior consistent statement to his father. The finding that Donnelly reasonably
    believed that the authorities were intentionally withholding his medication is
    at odds with the evidence of a specific inquiry about medication shortly after
    his admission to TWDC. The trial judge made no finding about the actual
    derogatory comments alleged to have been made en route between police stations
    and to the courthouse, thus could not realistically determine that they
    offended s. 7.

[102]

The Crown says
    that the trial judge erred in the test he applied in determining whether the
    misconduct of state actors offended s. 7 of the
Charter
. The trial
    judge took the standard as significant psychological injury, a benchmark that
    is much less demanding than what s. 7 requires. Donnellys s. 7 protected
    security of the person interest only became engaged if the impugned state
    action would have had a serious and profound effect on the psychological
    integrity of a person of reasonable sensibility. The evidence here was
    incapable of crossing this threshold.

[103]

Donnelly begs to
    differ. The real issue before the trial judge was whether the alleged incidents
    occurred, not whether, if established, they constituted a breach of s. 7. It
    was in this manner that the trial Crown approached the case and those concessions
    framed the obligations of the trial judge. The trial judge applied the proper
    test although he neither articulated it nor he was required to do so in light
    of the argument advanced at trial.

[104]

In addition, Donnelly
    continues, the trial judge did not err in accepting his testimony. He was
    entitled, as he did, to accept some, none or all the evidence of any witness
    who testified, including Donnelly. His conclusions were based on proper
    considerations, an assessment of the evidence as a whole and were reasonable.
    The trial judge did not give Donnelly any free pass on reliability and was
    alert to the prospect and consequences of fabrication. Nothing displaces the
    deference that is the trial judges due on findings of fact. That deference
    compels rejection of the Crowns thinly-disguised attempt to recalibrate the
    findings of fact in the guise of legal error.

The Governing Principles

[105]

As much as it is
    unnecessary to restate the standard of review applicable to findings of fact
    and inferences from findings of fact, it is essential to consider what must be
    established, on a balance of probabilities, to amount to an infringement of the
    security of the person component in s. 7 of the
Charter
.

[106]

To begin, it is
    not every qualification or compromise of a person`s security that comes within
    the reach of s. 7 of the
Charter
. The qualification or compromise must
    be significant enough to warrant constitutional protection. To suggest that any
    qualification or compromise of security of the person engages s. 7 risks trivializing
    the protections of the
Charter
:
Cunningham v. Canada
, [1993]
    2 S.C.R. 143, at p. 151.

[107]

Security of the
    person protects both the physical and psychological integrity of the
    individual:
Blencoe

v. British Columbia (Human Rights Commission)
,
    2000 SCC 44, [2000] 2 S.C.R. 307, at para. 55;
R. v. Morgentaler
,
    [1988] 1 S.C.R. 30, at pp. 56 and 173;
Carter v. Canada (Attorney General)
,
    2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64 & 71. For a restriction of
    security of the person to be established, the state action in issue must have a
    serious and profound effect on a persons psychological integrity:
New
    Brunswick (Minister of Health and Community Services) v. G. (J.)
, [1999] 3
    S.C.R. 46, at paras. 59-60.

[108]

The descriptive
    serious state-imposed psychological stress fixes two requirements that must
    be met before the security of the person interest protected by s. 7 becomes
    engaged. First, the psychological harm must be state imposed, that is to say,
    the harm must result from actions of the state. And second, the psychological
    harm or prejudice must be serious. It follows that not every form of
    psychological prejudice or harm will constitute a violation of s. 7:
Blencoe
,
    at para. 56-57. In other words, there is something qualitative about the type
    of state interference that ascends to the level of a s. 7 infringement:
G.
    (J.)
, at para. 59;
Blencoe
, at paras. 56-57. Nervous shock or
    psychiatric illness are not necessarily required, but something greater than
    ordinary stress or anxiety is:
G. (J.)
, at paras. 59-60.

[109]

A final point.
    The effects of the state interference are to be assessed objectively. We gauge
    their impact on the psychological integrity of a person of reasonable
    sensibility, not one of exceptional stability or of peculiar vulnerability:
G.
    (J.)
, at paras. 59-60.

The Principles Applied

[110]

As I will
    explain, I conclude that the trial judge erred in finding the security of Donnellys
    person was infringed by the manner in which he was treated by those in charge
    of his custody from his arrest until his release on bail. In my respectful
    view, both the findings of fact made by the trial judge and his determination
    that what occurred amounted to a breach of s. 7 are flawed by error.

[111]

To take first,
    the findings of fact.

[112]

The trial judge
    settled on four events of state misconduct to ground his finding of
    constitutional infringement:

i.

delay in providing prescribed medication;

ii.

derogatory comments during transport;

iii.

physical abuse by correctional officers, a trip and punch to the head;
    and

iv.

leaving Donnelly partially clad after a strip search when he was placed
    on suicide watch.

[113]

In connection
    with the delay in providing prescribed medication, recall that the bottle in
    which the pills were provided displayed an expired date. As the evidence before
    the trial judge established, jail authorities, quite understandably, do not
    dispense medication brought by inmates. Rather they confirm the currency of the
    prescription, obtain fresh product from a pharmacy and dispense it according to
    the prescription.

[114]

Correctional
    authorities were well aware that Donnelly was taking prescribed medication. He
    was seen by a nurse on the evening of his admission to TWDC. He made no
    complaint about missing his regular dosage of medication, as he had from time
    to time in the past. He received his medication the following day. On this
    evidence, the trial judge found that Donnelly reasonably concluded that he was
    denied his medication intentionally by correctional authorities. Such a
    conclusion is at best speculative.

[115]

The trial judge
    said he had no doubt that Donnelly was subjected to derogatory remarks during
    his transport between police divisions and while at the courthouse, but made no
    express finding about the nature of the remarks made. He buttressed this finding
    by reference to common sense and experience and what he termed a regrettable
    reality. It is at best debatable whether either of these propositions fall
    within the scope of judicial notice or any other surrogate for
viva voce
evidence. This finding is seriously flawed.

[116]

The trial judge
    accepted Donnellys evidence in relation to two physical events while he was in
    custody  that he was tripped by a guard at the courthouse and struck in the
    back of the head by another guard at TWDC. The trial judge said the events were
    not of a type that the applicant would misinterpret nor ones he might be
    confused about as a result of his OCD and related symptoms. In the trial
    judges view, he had no reason to conclude Donnelly simply made them up and
    experience demonstrates repeatedly that these type of events occur. Again, it
    is debatable whether the latter assertion is properly the subject of judicial
    notice or any surrogate for
viva voce
evidence. Relying on it in the
    absence of an evidentiary basis is problematic. The trial judges finding is
    flawed in this respect.

[117]

The trial judge
    also found that Donnelly was kept in his boxer shorts with neither blanket nor
    mattress for a period during his first night at TWDC. The trial judge appears
    to have found confirmation of this fact from a complaint that Donnelly made to
    his father during a jail visit on May 3, 2011. This prior consistent statement
    cannot be pressed into service as confirmation of the same allegations made by
    the same source. Further, the finding that this likely occurred as a juvenile
    way for the guards to express their displeasure is bereft of evidentiary
    support.

[118]

Setting to one
    side the flawed factual findings made by the trial judge, the more serious
    error is the standard he applied to determine whether the misconduct amounted
    to an infringement of s. 7.

[119]

The trial judge
    accepted as a basic premise that significant psychological injury amounts to a
    breach of a persons s. 7 rights in the same fashion that physical injury does.

[120]

As we have
    previously seen, it is not every state interference with an individuals
    psychological integrity that engages s. 7. Where, as here, the psychological
    integrity of a person is at issue, security of the person is restricted to
    serious state-imposed psychological stress. The state conduct must have a
    serious and profound effect on a persons psychological integrity. These
    effects are to be assessed objectively, with a view to their impact on the
    psychological integrity of a person of reasonable sensibility.

[121]

The trial
    judges finding of infringement eschews any objective assessment in favour of a
    consideration of the effects on
this
respondent, a person with
    enhanced susceptibility to anxiety and stress as a result of OCD. Even if the
    findings of fact made by the trial judge remain intact, those findings simply
    do not support a finding of s. 7 infringement when the proper standard is applied.

Issue #3: Section 24(1) as a Basis to Impose a Sentence
    outside Statutory Limits

[122]

The final issue
[3]
requires no additional reference to the circumstances of Donnelly or the
    offence he committed. What is essential to an understanding of this issue is a
    brief reference to the positions advanced by the parties at trial and the
    reasons of the trial judge for imposing a sentence outside the limits provided
    by the
Criminal Code
.

The Positions of the Parties at Trial

[123]

At the
    sentencing hearing, the trial Crown sought a sentence of imprisonment for a
    term of seven years.

[124]

Trial counsel
    for Donnelly asked the trial judge to impose a conditional sentence of
    imprisonment for a term of not more than two years less one day. Counsel did
    not challenge the constitutional validity of the mandatory minimum sentence of
    imprisonment or seek a constitutional exemption from that minimum sentence.
    Instead, relying on the trial judges findings of constitutional infringement, Donnelly
    invoked s. 24(1) of the
Charter
to claim, as an appropriate and just
    remedy for those infringements, a conditional sentence of imprisonment that was
    otherwise statutorily unavailable because of the combined effect of ss.
    163.1(2) and 742.1(b) of the
Criminal Code
.

The Reasons of the Trial Judge

[125]

The trial judge
    approached sentencing in two steps. The first step involved a determination of
    a fit sentence without consideration of the
Charter
breaches and
    invocation of s. 24(1) of the
Charter
to relieve against the mandatory
    minimum term of imprisonment. The trial judge concluded this step of his
    analysis in these terms:

In my view, given all of the factors that I have mentioned, a
    penitentiary term of imprisonment is not only unwarranted, it could also not be
    justified on a proper application of the principles of sentencing. Such a
    sentence would not be proportionate to Mr. Donnellys role in this matter.
    Rather, the appropriate sentence would be from a mid-reformatory term to a
    maximum reformatory term. It is only the fact that Mr. Donnelly worked for Mr.
    Way for three years, and that he edited seventy-four such films during that
    time, that increases the appropriate sentence above the mandatory minimum. I
    have concluded, therefore, that the appropriate sentence for Mr. Donnelly would
    be twenty-one months before any consideration of the
Charter
breaches
    and the other personal issues surrounding Mr. Donnelly.

[126]

The trial judge
    then turned to consider how he could provide an effective remedy for the
Charter
infringements and other issues, in particular the fragile mental state of Donnelly
    and the risk of him committing suicide while in custody. He concluded:

It does not, therefore, constitute an effective remedy to
    simply reduce Mr. Donnellys period of incarceration, as would otherwise be the
    usual remedy for such breaches. To do so, in the case of Mr. Donnelly, is to
    really provide him with no remedy at all. Indeed, not only would such a result
    not be an effective remedy, it actually amounts to an aggravation of the
    breaches, only this time with the potential for fatal results.

I have therefore, concluded that this is one of those
    exceptional cases that requires, in order to provide Mr. Donnelly with an
    effective remedy under s. 24(1) for the breaches of his
Charter
rights, to override the mandatory minimum term of imprisonment and, instead,
    impose a sentence that permits Mr. Donnelly to serve his sentence in the
    community. While I am aware that the reference in
Nasogaluak
was to
    sentence reduction, I do not see any reason in principle why the form of
    sentence cannot be altered, as opposed to reduced, as an equally effective
    remedy. Indeed, to some extent, permitting the sentence to be served in a
    different manner, rather than imposing a reduction in the sentence, is more
    faithful to Parliaments objective of requiring a minimum length of sentence.

I am therefore satisfied that, in the exceptional circumstances
    of this case, the appropriate penalty to be imposed is a conditional sentence
    of twenty-one months.

The Arguments on Appeal

[127]

The Crown says
    the decision in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206,
    makes it clear that if the circumstances of a
Charter
breach are
    relevant to an offender and the offence committed, conventional sentencing
    principles permit their consideration in determining a fit sentence without the
    need to resort to the remedial authority of s. 24(1) of the
Charter
.
    Where the
Charter
infringements are unrelated to the offence and
    offender, they are irrelevant to a determination of a fit sentence and their
    remedy lies elsewhere.

[128]

The
Nasogaluak
court made it clear that, at least as a general rule, it is neither necessary
    nor useful to invoke s. 24(1) to achieve an appropriate reduction of sentence
    to take cognizance of any harm flowing from the unconstitutional conduct of state
    agents. A sentencing judge, acting within the boundaries of the statutory
    sentencing scheme, must exercise that discretion in compliance with the
    statutory minimums and other provisions which restrict or prohibit certain
    forms of sentence for the offence of which an offender has been convicted.

[129]

It follows, the
    Crown says, that sentence reductions outside statutory limits do not generally
    constitute an appropriate remedy within s. 24(1) of the
Charter
,
    absent a challenge to the constitutionality of the statutory limit.

[130]

But, the Crown
    acknowledges, the
Nasogaluak
court added a
caveat
. The Court
    did not foreclose the
possibility
of a sentence reduction outside
    statutory limits as the sole effective remedy for misconduct by state agents in
    relation to the offence and the offender. However, sentence reductions outside
    statutory limits are at once exceptional, available only in cases of
    particularly egregious misconduct by state agents, and for conduct of those
    agents in relation to both the offence and the offender.

[131]

Here, the Crown
    continues, the trial judge erred in concluding that
Nasogaluak decided
that s. 24(1) could be used to impose a sentence outside statutory limits in
    exceptional cases. To the contrary, a careful reading of
Nasogaluak
makes it clear that the Court expressly left this possibility open for future
    consideration. Indeed, to invoke s. 24(1) as a basis upon which to impose a
    sentence outside statutory limits would conflict with the Courts earlier
    decision in
R. v. Ferguson,
2008 SCC 6, [2008] 1 S.C.R. 96;

be
    inconsistent with the rule of law and the principle of legality; and amount of
    an inappropriate interference with Parliamentary sovereignty.

[132]

In addition, the
    Crown says that even if it could be said that
Nasogaluak
decided that
    s. 24(1) could be invoked to impose a sentence outside statutory limits in
    exceptional cases, this is not an exceptional case. To qualify, the
    sentence reduction outside statutory limits must be the sole effective remedy
    for some particular egregious form of misconduct in relation to the offence and
    the offender. Here, the trial judge recognized that reduction of the sentence
    to the statutory minimum would adequately remedy the breaches. Instead, the
    trial judge considered this an exceptional case because of Donnellys fragile
    mental state and heightened risk of suicide. This was not linked to the
Charter
breaches and impermissible under
Nasogaluak
.

[133]

The Crown
    submits that the trial judge invoked s. 24(1) to override two constitutionally
    sound statutory provisions  the minimum sentence for the offence charged and
    the prohibition against conditional sentence orders for convictions carrying a
    minimum punishment  on the basis that it would generate unconstitutional
    effects when applied to Donnelly. The effect was to grant Donnelly a
    constitutional exemption, a remedy that was off-limits under
Ferguson
.

[134]

In addition, the
    Crown argues, the trial judge made speculative findings about the fact and
    certainty of physical abuse if Donnelly was incarcerated and considered the
    suicide risk  which the trial judge calculated to be at once substantial and
    likely to succeed because of the inability of correctional authorities to
    curtail it  to reach a conclusion that this case was exceptional. In the
    end, imposition of a sentence outside statutory limits was not the
sole
effective remedy
for
some
particularly

egregious
forms of misconduct by state agents in relation to Donnelly and his offence.

[135]

Donnelly begins
    with a reminder that state misconduct is a relevant factor for a sentencing
    judge to consider in determining a fit sentence, even if that misconduct does
    not amount to a
Charter
infringement. It is equally so, of course,
    where the state misconduct does breach an accuseds
Charter
rights or
    freedoms. Relief from a mandatory minimum sentence is a remedy that may be
    appropriate and just for unconstitutional state action. It is not, as the Crown
    suggests, nor does it amount to, a constitutional exemption by another name.

[136]

Donnelly rejects
    the Crowns submission that the use of s. 24(1) to impose a sentence outside
    statutory limits for unconstitutional state conduct violates the rule of law
    and the principle of legality and interferes with Parliamentary sovereignty.
    This is simply a case in which an exceptional remedy was required and properly
    granted.

[137]

Donnelly
    acknowledges that some of the stresses considered by the trial judge as
    relevant to a determination of whether this was an exceptional case were unrelated
    to the
Charter
breach. That said, those other stresses did not sever
    the link between the
Charter
breaches and the harm that requires an
    appropriate and just remedy under s. 24(1). The trial judges findings were not
    speculative, rather firmly grounded in the evidence and deserving of deference
    here. The impact of the
Charter
breaches was more severe on Donnelly
    as a result of his serious pre-existing mental health issues. This is an
    exceptional case, the remedy appropriate and just.

[138]

The Criminal Lawyers
    Association (CLA) is an intervener in this appeal and the related appeal in
Gowdy
.
    The CLA argues that sentence reduction is an appropriate and just remedy where
    a
Charter
breach is relevant to sentencing or not otherwise remediable,
    even where the remedy leads to a sentence below the mandatory minimum.

[139]

The CLA says
    that where the relief sought would differ from the mandatory minimum or some
    other statutorily-imposed punishment, and in the absence of a s. 52(1)
Charter
challenge, a court should first decide whether a fit sentence for the offence
    and offender, absent any state misconduct, falls within the range of legal
    sentences, taking into account Parliaments statutory expression of intent
    about the need for denunciation and deterrence.

[140]

The CLA submits
    that where the fit sentence is within the range of legal remedies, the
    sentencing court should then consider the effect of the state misconduct and
    decide whether a sentence reduction  quantitative or qualitative  is an
    appropriate and just remedy for the state misconduct that occurred.

[141]

The CLA contends
    that sentence relief under s. 24(1) is legal and appropriate even where the
    remedy leads to a sentence below a mandatory minimum. These reductions are
    rational and just, do not create objectionable uncertainty and do not amount to
    impermissible constitutional exemptions. They also respect Parliamentary
    sovereignty and the rule of law.

[142]

The Canadian
    Civil Liberties Association (CCLA) is also an intervener in this appeal and in
    the related appeal in
Gowdy
.

[143]

The CCLA says we
    should embrace this opportunity to recognize a readily available and versatile
    s. 24(1) sentence reduction remedy where it is particularly responsive to
Charter
breaches relevant to sentencing or particularly necessary where no remedy would
    otherwise be granted.

[144]

According to the
    CCLA, there should be no limitations on the type of breach that may justify a
    sentence reduction as an appropriate and just remedy under s. 24(1). Nor
    should the reductions be limited to rare or particularly egregious breaches.
    Sentence reductions should not be restricted by either mandatory minimum
    sentences or the principle of proportionality. Such reductions will fill a
    constitutional void, enhance remedial parity and proportionality and integrate seamlessly
    with the trial process.

The Governing Principles

[145]

It is helpful to
    begin with a reminder of some general principles that inform the remedial
    authority for which the s. 24(1) of the
Charter
provides. Section
    24(1) provides that [a]nyone whose rights or freedoms, as guaranteed by this
Charter
,
    have been infringed or denied may apply to a court of competent jurisdiction to
    obtain such remedy as the court considers appropriate and just in the
    circumstances.

[146]

First, the words
    appropriate and just in the circumstances direct the judge to exercise a
    discretion based upon the judges perception of the nature of the right and of
    the infringement, the facts of the case and the application of the relevant
    legal principles. It is difficult to imagine language which could equip a court
    with a wider and less fettered discretion. No binding formula can be composed
    for general application. And appellate courts are disentitled to cut down this
    wide discretion:
Mills

v. The Queen
, [1986] 1 S.C.R. 863, at
    p. 965;
Doucet-Boudreau v. Nova Scotia

(Minister of Education)
,
    2003 SCC 62, [2003] 3 S.C.R. 3, at para. 52.

[147]

Second, the
    words appropriate and just elude precise and lack exhaustive definition. The
    language appropriate and just in the circumstances bespeaks flexibility and
    invites contextual considerations. An appropriate and just remedy in the
    circumstances of a
Charter
breach is a remedy that meaningfully
    vindicates the rights and freedoms of the claimants and employs means that are
    legitimate within the framework of our constitutional democracy. The remedy
    must be a judicial remedy that not only vindicates the affected right, but also
    invokes the function and powers of a court:
Doucet-Boudreau
, at paras.
    55-57.

[148]

Third, as is
    self-evident, s. 24 is part of a constitutional scheme for the vindication of
    fundamental rights and freedoms enshrined in the
Charter
. It follows
    from the broad language in which s. 24 is cast, as well as the myriad roles it
    may play in cases, that it should be allowed to evolve to meet the challenges
    and circumstances of those cases. Remedies must be approached in a flexible way
    and be responsive to the needs of individual cases:
Doucet-Boudreau
,
    at para. 59. The section must be interpreted in a manner that provides a full,
    effective and meaningful remedy for
Charter
violations:
R. v.
    974649 Ontario Inc
,

2001 SCC 81, [2001] 3 S.C.R. 575, at para.
    19.

[149]

Finally, by way
    of general principle, s. 24(1) provides a case-by-case remedy for
    unconstitutional conduct of state agents operating under lawful schemes the
    constitutionality of which is not challenged. The acts of state agents acting
    under these regimes are not the necessary result or effect of the law, rather
    of the agents application of a discretion conferred by the law in an
    unconstitutional manner:
Ferguson
, at paras. 35, 60-61.

[150]

The authorities
    have elucidated several principles to be applied when the specific remedy
    sought for a
Charter
infringement under s. 24(1) is some amelioration
    of the sentence that might otherwise be fit for the offence and offender.

[151]

First, the
    sentencing regime put in place by Part XXIII of the
Criminal Code
allows some scope for sentencing judges to consider not only the conduct of the
    convicted offender, but also the conduct, whether acts or omissions, of state
    actors. In order for state conduct to be cognizable in this way, however, that
    conduct, or more accurately misconduct, must relate to the circumstances of the
    offence or offender. In these situations, the state misconduct need not amount
    to a breach of the
Charter
and the sentencing judge need not invoke s.
    24(1) in order to properly take it into account in determining a fit sentence:
Nasogaluak
,
    at para. 3. Even where the state misconduct amounts to a
Charter
breach,
    the statutory or common law sentencing regime can afford an appropriate remedy
    without the need to summon the remedial panoply in s. 24(1):
Nasogaluak
,
    at paras. 2-3.

[152]

Second, where
    the state misconduct does not relate to the circumstances of the offence or of
    the offender, an accused must seek his or her remedy elsewhere. The sentencing
    regime can be of no service because the misconduct falls beyond its reach. In
    addition, reduction of sentence cannot be an appropriate remedy under s.
    24(1), assuming the misconduct amounted to a
Charter
breach, where the
    facts that underpin the breach lack any connection to the circumstances of the
    offence or of the offender:
Nasogaluak
, at para. 4.

[153]

Third, as a
    general rule, invocation of s. 24(1) of the
Charter
is neither
    necessary nor useful to achieve an appropriate reduction of sentence to account
    for any harm flowing from unconstitutional acts of state agents after the
    offence charged. Sentencing judges must exercise their discretion within the
    parameters of the
Criminal Code
complying with statutory minimums and
    other provisions which prohibit certain sentencing dispositions in respect of
    the offence:
Nasogaluak
, at para. 5.

[154]

In a similar
    way, the restraints just mentioned apply where the remedial power of the court
    under the
Charter
is invoked. Sentence reductions outside statutory
    limits do
not
generally constitute an appropriate remedy within s.
    24(1) unless the constitutionality of the relevant statutory limit itself is
    challenged:
Nasogaluak
, at para. 6.

[155]

A brief reminder
    about the underlying circumstances in
Nasogaluak
, and the end result
    of the proceedings provides a helpful context in which to consider the claims
    of infringement advanced and the remedies sought in this case.

[156]

Nasogaluak was
    charged with impaired operation of a motor vehicle and flight from police. He
    was apprehended after a high speed pursuit. Nasogaluak resisted police efforts
    to arrest him and take him into custody. During the arrest, he was punched in
    the head three times, in the back twice and pinned face down on the pavement.
    He suffered broken ribs and a punctured lung that required emergency surgery.

[157]

Nasogaluak
    pleaded guilty to both charges. The trial judge found an infringement of s. 7
    occurred as a result of the police conduct during the process of arrest.
    Invoking s. 24(1) of the
Charter
, the trial judge granted Nasogaluak a
    conditional discharge, a punishment available on the flight from police finding
    of guilt but not on the impaired operation finding because of the minimum punishment
    provided in such cases. The Alberta Court of Appeal set aside the conditional
    discharge granted on the impaired operation count and substituted the minimum
    fine to be levied on conviction.

[158]

In the Supreme
    Court of Canada, one of the issues considered was the availability of sentence
    reduction as a s. 24(1)
Charter
remedy and the limitations, if any,
    that circumscribed a judges discretion to reduce a sentence as a
Charter
remedy. In the end, the court upheld the sentence reduction as a remedy available
    within the enabling scheme of Part XXIII, and stated as a general rule that the
    reduction could not extend beyond the limits imposed by the
Criminal Code
on the available sentencing alternatives:
Nasogaluak
, at paras. 55, 63.

[159]

However, the
Nasogaluak
court said that exceptional cases may arise and the remedial power of s.
    24(1) is expansive. The court suggested that it would not
foreclose
the possibility that in some exceptional cases, a sentence reduction outside
    statutory limits may be the sole effective remedy for some particularly
    egregious form of misconduct in relation to the offence and the offender:
Nasogaluak
, at para. 64. However, it was
    not necessary for the court to address the availability of such a remedy in
    that case, having resolved the infringement with a remedy within statutory
    limits. Significantly, the court did not explain how this suggestion in
Nasogaluak
should be reconciled with its earlier decision in
Ferguson
, which
    foreclosed the possibility of constitutional exemptions from mandatory minimum
    sentences as an appropriate remedy for a
Charter
infringement, in that
    case in relation to s. 12.

The Principles Applied

[160]

As I will
    explain, I am satisfied that in the circumstances of his case, the trial judge
    erred in invoking s. 24(1) of the
Charter
to impose a sentence outside
    statutory limits for the offence of which Donnelly was convicted.

[161]

I
    begin with the self-evident. This is an appeal from sentence. Appellate courts
    accord sentencing judges a wide berth in their determination of what
    constitutes a fit sentence for an offender and the offence of which she or he
    has been found guilty.
Sentencing decisions are entitled to
    deference unless it is demonstrated that the trial judge made an error in law
    or an error in principle that has an impact on the sentence or imposed a
    sentence that is demonstrably unfit.

[162]

In my view, the
    trial judge erred in principle in invoking s. 24(1) of the
Charter
to
    impose a sentence outside the sentencing options available to him for the
    offence to which Donnelly pled guilty and of which he was convicted.

[163]

As I have
    already explained, in my view, the trial judge erred in finding infringements
    of ss. 9 and 7 of the
Charter
. The underlying facts found by the trial
    judge are based in part upon palpable and overriding errors and, in any event, simply
    do not rise to the level of constitutional infringement.

[164]

Second, in the absence
    of an established
Charter
infringement, the trial judge could not
    invoke s. 24(1) as a source for a remedy. No infringement. No s. 24(1) remedy.

[165]

Third, in any
    event, the
Nasogaluak
court explained that s. 24(1) need not be
    invoked to provide a sentencing remedy for unconstitutional conduct by state
    actors relating to the offence or offender. An effective remedy may be
    fashioned within the confines of Part XXIII of the
Criminal Code
.

[166]

As the
Nasogaluak
court makes clear, in appropriate cases, the statutory sentencing scheme in
    Part XXIII permits sentencing judges to consider not only the conduct of the
    offender, but also that of state actors whose conduct relates to the
    circumstances of the offence or the offender. For state conduct to be considered
    under Part XXIII, it need not amount to a
Charter
infringement. And so
    it was that the trial judge was entitled to take the conduct of state actors in
    relation to Donnelly into account under Part XXIII in determining a fit
    sentence.

[167]

However, in
    exercising his discretion under the sentencing scheme for which Part XXIII
    provides, a trial judge must exercise that discretion within the parameters of
    the
Criminal Code
. The sentence imposed must comply with the statutory
    minimums (absent a successful constitutional challenge to them) and other
    provisions, for example, s. 742.1(b), which prohibits conditional sentences of
    imprisonment for those convicted of offences which carry a minimum term of
    imprisonment.

[168]

It follows in
    this case, that the trial judges discretion under the statutory sentencing
    scheme of Part XXIII could not authorize imposition of a conditional sentence
    of imprisonment. Section 742.1(b) forecloses the conditional sentence of
    imprisonment option where the offence is punishable by a minimum term of
    imprisonment. Section 163.1(2) enacts a minimum sentence of imprisonment for a
    term of one year for making child pornography for the purpose of publication.

[169]

Nor would the
    result be any different if we were to assume in Donnellys favour that:

i.

the breach of s. 9 or s. 11(e); and

ii.

the breach of s. 7.

had been established on the balance of probabilities,
    thus providing him with access to the remedial expanse of s. 24(1).

[170]

And if we were
    to assume that
Nasogaluak
actually decided, rather than left open, that
    s. 24(1) may authorize imposition of a sentence outside statutory limits, even
    in the absence of a constitutional challenge to the limit, Donnellys case
    would fail. And it would fail for two reasons.

[171]

First, while s.
    24(1) of the
Charter
provides a broad discretionary remedy, the trial
    judge misdirected himself by failing to apply the exceptional limitation set
    out by the Supreme Court of Canada in
Nasogaluak
to the potential use
    of s. 24(1) as a remedy permitting in some exceptional cases, sentence
    reduction outside statutory limits. Even a most generous reading of
Nasogaluak
would confine an outside-limits sentencing remedy to exceptional cases where
    the
Charter
infringement involves some particularly egregious
    misconduct by state agents in relation to the offence
and
the
    offender:
Nasogaluak
, at para. 64. This is a very high standard, and
    one not met here.

[172]

If the conduct
    in
Nasogaluak
 an amalgam of repeated assaults, significant bodily
    harm and official concealment  falls short of this threshold, what occurred
    here must likewise fail. Clearly, derogatory comments or physical abuse, if
    they occur, cannot be condoned. Nor can conveyance of inaccurate information to
    prosecutors conducting bail hearings. That said, the conduct complained of here
    simply cannot wear the mantle of particularly egregious misconduct, and thus
    cannot sustain the outside limits sentence imposed by the trial judge.

[173]

Second, the
Nasogaluak
decision contemplates sentence reduction outside statutory limits as an
    exceptional remedy only where it may be the
sole effective
remedy
    (emphasis added) for the state misconduct that is to be remediated.  As a
    result, the trial judge erred in law by imposing a conditional sentence, which
    was clearly outside statutory limits given that it was prohibited by the
Criminal
    Code
, in a situation in which the trial judge himself recognized that a
    reduction in sentence to a minimum one year sentence would be an effective
    remedy to reflect the
Charter
violations he had found. It was really Donnellys
    fragile mental state and risk of suicide that made the case exceptional in the
    trial judges view and resulted in his finding that a conditional sentence was
    the only effective remedy.

Conclusion

[174]

It follows from
    what I have said that the sentence imposed by the trial judge cannot stand. A
    sentence of imprisonment was required. The trial judge identified a 21 month
    sentence as fit before considering the
Charter
breaches. I agree that
    sentence falls within the range given Donnellys level of involvement, albeit
    towards the lower end of that range.

[175]

Donnelly has
    completed a 21 month conditional sentence. The sentence included a curfew for
    the full term of the sentence. In the circumstances, I see no penological
    principle or state interest that would be vindicated or furthered by his
    re-incarceration: see
R. v. Smickle
, 2014 ONCA 49, 306 C.C.C. (3d)
    351, at paras. 10-12, 21.

[176]

I would grant
    leave to appeal, allow the appeal, set aside the sentence imposed at trial and
    substitute a sentence of 21 months in prison. In the circumstances, I would
    stay the operation of that sentence and direct that no warrant of arrest or
    committal issue.

Released: December 29, 2016 (D.W.)

David Watt J.A.

I agree. Gloria Epstein J.A.

I agree. M. Tulloch J.A.





[1]

This appeal was heard together with
R. v. Gowdy
,

2016 ONCA 989, for
    which reasons are issued concurrently.



[2]

Section 27(1) states that [w]here there is a reference to a
    number of clear days or at least a number of days between two events, in
    calculating that number of days the days on which the events happen are
    excluded.



[3]
In the absence of a
Charter
infringement, it is not strictly necessary
    to consider this issue. I have done so, however, in case my findings on
Charter
infringements are in error and in light of the thorough and helpful argument on
    the issue by all counsel.


