



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gowdy, 2016 ONCA 989

DATE: 20161229

DOCKET: C59875 & C60460

Watt, Epstein and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant (C59875)/

Respondent (C60460)

and

Kris Gowdy
[1]

Appellant (C60460)/

Respondent (C59875)

John McInnes and Katherine Beaudoin, for the appellant/respondent
    Crown

Russell Silverstein and Anna Cooper, for the
    respondent/appellant Kris Gowdy

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

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

Joseph Di Luca and Khalid Janmohamed, for the interveners
    Canadian
HIV/AIDS Legal Network and HIV & AIDS Legal Clinic
    Ontario

Heard: March 22-23, 2016

On an appeal from the conviction entered on July 7, 2014,
    with reasons reported at 2014 ONCJ 592, and the sentence imposed on December
    19, 2014, with reasons reported at 2014 ONCJ 696, 325 C.R.R. (2d) 1, by Justice
    Michael Block of the Ontario Court of Justice.

Watt J.A.:

[1]

Kris Gowdy was a youth pastor. One day, he posted an ad in the personals
    section of Craigslist.

[2]

Kris Gowdys ad attracted some attention. Some unwanted attention. From
    a police officer.

[3]

The police officer responded to Kris Gowdys ad. But he did not tell
    Kris Gowdy that he was a police officer.

[4]

A short time later, police arrested Kris Gowdy on a charge of internet
    luring of a person believed to be under sixteen years old.

[5]

The day after Kris Gowdys arrest, the Durham Regional Police Service
    (DRPS) issued a media release about Kris Gowdy and his arrest. The release
    contained some information about Kris Gowdy, including information about his
    medical condition police had learned when they searched Gowdys car incident to
    his arrest.

[6]

At trial, Kris Gowdy asked the judge to stay proceedings against him
    because the media release about his medical condition violated his right to
    security of the person under s. 7 of the
Charter
.

[7]

The judge agreed that the media release infringed Kris Gowdys right to
    security of the person, but disagreed with the remedy Gowdy sought for this
    infringement. Gowdy appeals from the refusal of the trial judge to enter a stay
    of proceedings.

[8]

The trial judge considered that an appropriate and just remedy for the
    infringement of Gowdys s. 7 right to security of the person was to impose a
    sentence outside the statutory limits prescribed by the
Criminal Code
.
    The Crown appeals from the sentence imposed  a conditional sentence of
    imprisonment of two years less one day, followed by probation for three years.

[9]

These reasons explain why I would dismiss Gowdys appeal from
    conviction, but would grant leave to appeal sentence, allow the appeal and
    substitute a sentence of imprisonment for one year, but stay its enforcement.

The Background Facts

[10]

A helpful point of departure for a consideration of both appeals is a
    brief sketch of the circumstances of the offence and the issue of the media
    release, followed by a snapshot of the proceedings at trial.

The Offence

[11]

Using a fake username, Kris Gowdy posted an ad in the personals section
    of Craigslist. He sought guys who were interested in receiving fellatio. The target
    group included under 35, jocks, college guys, skaters young married guy.

[12]

A police officer was monitoring the website on which Gowdy had posted
    his ad. The words young, skaters and under 35 raised the officers
    concern about the potential involvement of underage responders.

[13]

The officer decided to reply to Gowdys ad. He posed as Brad, a
    sexually inexperienced 15 year old. Brad and Gowdy exchanged queries and
    responses. Gowdys responses showed the user name Sean Smith at an email
    account for collegetoy 2003. Despite his awareness of the implications of
    Brads age, Gowdy offered to go to Brads home and perform fellatio on
    Brad and his 15 year old friend.

The Arrest and Search

[14]

Five minutes after their last electronic exchange, Gowdy arrived at
    Brads home. He was arrested immediately.

[15]

Police searched Gowdys vehicle incident to his arrest. In it they found
    documents that disclosed that Gowdy was HIV positive. Police found no condoms
    during their search of Gowdy or his vehicle.

[16]

Kris Gowdy was charged with one count of child luring by
    telecommunication and one count of attempted aggravated sexual assault. The
    latter count was later withdrawn by the Crown.

The Post-arrest Interview

[17]

Investigators conducted a lengthy videotaped interview of Kris Gowdy the
    day of his arrest. A substantial part of the interview was taken up by
    inquiries from the officers about whether Gowdy had exposed others to the risk
    of HIV during sexual encounters with them.

[18]

Kris Gowdy acknowledged that he had been diagnosed as HIV positive in
    2009. During his interview he did not admit having had sexual contact with
    anyone who was unaware of his HIV status, or of having engaged in activities
    that carried the risk of transmission of the HIV virus. Investigators pressed
    him for names of persons potentially at risk on the basis of their expressed
    concern that Gowdy may have exposed those partners to the risk of transmission
    of the HIV virus. He provided some partial names and his email password so that
    officers could access his email contacts list. The lead investigator did not
    match the names to individuals in Gowdys phone and did not recall seeing any
    evidence of those names when he later reviewed the phone examination results.

[19]

At trial, no evidence was given about any internal procedure of the DRPS
    relating to media releases, in particular, pre-release approval by senior
    officers or issuance of the releases under their aegis. Nor was there any
    evidence about prior or subsequent media releases of this nature by the DRPS.

[20]

There was no evidence indicating that the investigators had any
    information at the time of the interview or sought out any information
    afterwards addressing the likelihood that HIV could be transmitted by
    performing fellatio on an unprotected partner, or to confirm Gowdys assertion
    that he believed that medication had diminished his viral load to such an
    extent that he was no longer a serious transmission risk.

The Media Release

[21]

After the interview with Gowdy, the lead investigator requested that the
    police media relations department issue a media release. A media release announcing
    Gowdys arrest, which disclosed that he was HIV positive, was issued the day
    after his arrest, August 10, 2012, by the DRPS. The release identified Gowdy by
    name, and listed his residential address, occupation and church affiliation.
    Gowdy was described as a person who had travelled extensively and had an
    extensive social media presence.

[22]

In the media release, the police expressed concern about further victims
    who had not yet been identified. The release solicited contact from anyone with
    new information to the investigation.

The Trial Proceedings

[23]

At trial, Gowdy conceded that the luring offence had been proven, but
    sought a stay of proceedings on two grounds:

i.

entrapment; or

ii.

breach of his s. 7 security of the person interest.

[24]

The trial judge found no evidence of entrapment. However, he did find
    that issuance of the media release infringed Gowdys right to security of his
    person under s. 7 of the
Charter
. However, the trial judge declined to
    enter a stay of proceedings. Instead, the judge invoked s. 24(1) of the
Charter
and imposed a sentence outside statutory limits
[2]
as an appropriate and just remedy for the infringement.

The Appeals

[25]

There are two appeals.

[26]

Gowdy appeals the dismissal of his application to stay proceedings on
    the basis of infringement of his
Charter
rights through disclosure of
    personal medical information through the media release by police.

[27]

The Crown appeals the sentence imposed  a sentence of imprisonment for
    two years less a day, to be served in the community, followed by probation for
    a term of three years. The Crown submits that the trial judge erred not only in
    finding a s. 7
Charter
infringement but also in overriding the
    statutory bar to a conditional sentence as an appropriate and just s. 24(1)
    remedy.

[28]

There are three interveners. The Canadian HIV/AIDS Legal Network and HIV
    & AIDS Legal Clinic Ontario take the position that police press releases
    that include an individuals HIV status engage an individuals security of the
    person interests under s. 7 of the
Charter
and raise the potential of
    physical violence, stigmatization, mental anguish and distress for persons
    living with HIV in the community or in custody and constitute an unlawful
    breach of s. 8 of the
Charter
. They also take the position that
    disclosure of an individuals HIV status in circumstances like the case at bar
    is not authorized by the provincial privacy legislation relied upon by the
    Crown.

[29]

The Canadian Civil Liberties Association (CCLA) and the Criminal
    Lawyers Association (CLA) are interveners in this appeal and the related
    appeal in
Donnelly
and take the same position in both appeals. Their
    positions are set out more fully in the
Donnelly
decision, at paras. 138-144,
    but in essence both argue that s. 24(1) sentence reductions, even where the
    remedy is below a mandatory minimum, should be available as a just and
    appropriate remedy for
Charter
breaches.

THE APPEAL FROM CONVICTION

[30]

On the appeal from conviction, Gowdy does not contend that the Crown
    failed to prove some essential element of the offence. Nor does he say that the
    trial judge erred in law or reached an unreasonable conclusion in finding him guilty.
    Rather his complaint is that the trial judge erred in failing to stay
    proceedings under s. 24(1) of the
Charter.

[31]

Nothing further need be said about the content of the media release, but
    something should be added about the motivation behind it, its impact on Gowdy
    and the findings of the trial judge about the nature and extent of the
Charter
infringement occasioned by the release.

The Additional Background

[32]

Gowdy takes no issue with the police having lawfully obtained documents
    that disclosed his HIV positive status as a result of the search of his vehicle
    incident to his arrest.

[33]

The investigating officer who requested the media release be issued was
    motivated by a concern for public safety and a desire to investigate further
    any contact Gowdy may have had with sexual partners who were unaware of his HIV
    positive status and thus at risk of infection.

[34]

The lead investigator testified that he did not consider whether the
    release was authorized or prohibited by any provincial legislation. He notified
    his immediate supervisors after the interview that he was getting in touch with
    the media relations team to do a media release. However, there is no evidence
    that he obtained the permission of the chief of police or any superior
    officers, nor that he sought legal advice about the authority to issue or the
    advisability of issuing the media release. Similarly, there is no evidence that
    he made any inquiry of medical professionals about the likelihood of
    transmission of the virus associated with the sexual activities in question or
    Gowdys HIV viral load.

[35]

The lead investigator testified that, to his knowledge, he had never
    before investigated someone with HIV in his 23 years of policing.

[36]

The investigating officer acknowledged he did not consider the
Charter
rights of Kris Gowdy before requesting the media release.

The Findings of the Trial Judge

[37]

The trial judge considered first whether any provincial legislation
    authorized or permitted release of Gowdys private medical information. He
    examined both the
Municipal Freedom of Information and Protection of
    Privacy Act
, R.S.O., 1990 c. M.56 (
MFIPPA
) and the
Police
    Services Act
, R.S.O. 1990, c. P.15 (
PSA
) and Regulations passed
    under it. According to the trial judge, the media release was unlawful because it
    was not authorized nor permitted by either
MFIPPA
, a statute of
    general application, or the
PSA
and
    its Regulations
, which the trial judge felt provided a complete
    regime for the public disclosure of personal medical information by a police
    service.

[38]

The trial judge then considered whether the release infringed the
Charter
.
    He concluded that both ss. 7 and 8 protected privacy of information, including
    personal medical information which attracted a high level of protection. The
    judge expressed his conclusion on the infringement issue in these terms:

The inherent reasonable expectation of privacy in medical
    information is taken for granted in the vast volume of authorities that
    consider the rights of complainants in sexual assault matters. It is also
    commonly accepted that the seizure of medical data as evidence in a criminal
    prosecution requires prior judicial authorization. In the case before me the
    information was not seized in a manner impugned by the defence. But where
    personal medical information falls into the hands of the police without any unlawful
    conduct on their part, the suspect still retains a right that any subsequent
    use by the police conform to
Charter
principles. Privacy of personal
    medical information cannot be restricted to cases where Section 8 infringements
    are pled. The concept of security of the person is engaged anytime police
    violate a reasonable expectation of privacy by unlawfully circulating private
    medical data.

I rule that the unlawful and unreasonable public disclosure of
    Mr. Gowdys personal medical information violated Section 7 of the
Charter
.

[39]

The trial judge then assessed the impact of the infringement on the
Charter
protected interests of Kris Gowdy. The trial judge noted that Gowdy had
    testified that privacy of medical information was very important to him.
    Disclosure of Gowdys HIV positive status would likely have required him to
    step down from his church position and face discipline, as well as cause
    discord within his family and friendships. However, the trial judge was unable
    to distinguish the effect disclosure of Gowdys HIV positive status would have
    had on his employment independent of the charge of child luring and the
    resultant disclosure of his sexual orientation. In the result, the trial judge
    was unable to find any evidence to support a conclusion that police disclosure
    of Gowdys positive status aggravated the consequences that would ensue for
    him, a clergyman with a conservative religious organization, from the mere fact
    that he was charged with the same sex internet luring of an underage person.

[40]

Turning his attention to the remedy sought for the infringement  a stay
    of proceedings  the trial judge took as the governing standard the residual
    category of abuse of process as articulated in
R. v. Babos
, 2014 SCC
    16, [2014] 1 S.C.R. 309. He considered that the police conduct demonstrated a
    profound ignorance of the legal strictures on police disclosure of the private
    medical information of arrested persons and reflected an assumed danger of HIV
    transmission without any medical or other inquiries. The disclosure also
    revealed an indifference to Gowdys privacy interests and their constitutional
    status.

[41]

Despite his findings about police ignorance of the legal requirements
    for disclosure and indifference towards an arrested persons
Charter
rights, the trial judge found that the police conduct was neither brutal nor
    dishonest. He also considered that the conduct was well-intentioned, albeit
    deeply flawed. He found no evidence to support a conclusion that such
    indiscriminate and unlawful disclosure was an ongoing institutional problem
    with the DRPS.

[42]

The trial judge pointed out the high onus on an applicant who seeks a
    stay of proceedings for abuse of process. On balance, the trial judge was
    satisfied that the continuation of the proceedings would
not
compromise the integrity of the judicial system, and that a response short of a
    stay could provide a meaningful remedy. The principal impact on Gowdy was not
    from the media release or the continuation of the proceedings, but rather the
    nature of the charge that Gowdy faced. The judge declined to enter a stay of
    proceedings, choosing as an appropriate and just remedy a strong judicial
    rebuke of the police conduct and a reduction of the sentence otherwise fit for
    the offence and the offender.

The Grounds of Appeal

[43]

Gowdy contends that the trial judge erred in failing to enter a stay of
    proceedings as an appropriate and just remedy for the breach of his right to
    security of the person. He says that the error was the result of a combination
    of missteps by the trial judge who:

i.

understated or undervalued the impact of the
Charter
breach on
    the
Charter
-protected interests of Gowdy;

ii.

failed to properly appreciate the seriousness of the breach;

iii.

failed to find that the state interest in prosecuting Gowdy was not
    pressing; and

iv.

erred in concluding that a remedy less than a stay was appropriate and
    just.

Ground #1: Failure to Stay Proceedings

[44]

In earlier paragraphs I have endeavoured to capture the evidence
    adduced, the findings of fact made and the conclusion reached by the trial
    judge on Gowdys motion stay proceedings on account of
Charter
infringement. Nothing will be gained by their repetition here.

The Arguments on Appeal

[45]

Kris Gowdy acknowledges that to succeed on this ground of appeal he must
    satisfy the three requirements of the test for a stay of proceedings as
    reiterated in
Babos
, at paras. 31-32. He also recognizes that it is
    only on rare occasions  the clearest of cases  that a stay of proceedings for
    an abuse of process will be warranted.

[46]

Gowdy says that the trial judges conclusion rejecting a stay is flawed
    by legal misdirection and reviewable errors of fact and is so clearly wrong
    that it amounts to an injustice.

[47]

According to Gowdy, the trial judge gravely underestimated the impact of
    the
Charter
infringement on his protected interests. The judge also misapprehended
    the evidence in terms of Gowdys awareness of potential police disclosure of
    his HIV status when the trial judge found that it had not come up during the
    interview since the officers actually made numerous comments in that regard. Gowdy
    asserts that the trial judge should have taken judicial notice that persons
    infected with HIV remain subject to great prejudice and stigma in the
    community. The extensive media reportage of Gowdys arrest and medical condition
    demonstrates this. The trial judge also erred in comparing the impact of the
    breach with other hardships, such as what followed from the fact and nature of
    the charge.

[48]

Further, Gowdy continues, the trial judge erred in his appreciation of
    the seriousness of the
Charter
breach. He was wrong to find good faith
    in light of his findings that the police conduct was deliberate, in willful
    ignorance of provincial law and a casual disregard of the
Charter
.
    Breaches based on ignorance and indifference to the protections afforded by the
    supreme law of Canada cannot be legitimized by the application of a thin veneer
    of good faith.

[49]

In addition, Gowdy says, the trial judges findings about the
    seriousness of the breach varied as between the stay application and the
    reasons for sentence. On the stay application, the trial judge found that there
    was no evidence that the police conduct at issue was ongoing, yet he reached a
    contrary conclusion in his reasons on sentence when he found that the DRPS had
    not taken any steps to protect against future breaches. Similarly, in his
    reasons for sentence, the trial judge found that the investigators had
    committed a serious breach of s. 10(b) of the
Charter
by failing to
    clear up an apparent misunderstanding of the informational component of the
    right to counsel at the outset of the interview and later in failing to
    facilitate contact with counsel when Gowdy asserted that right. Neither these
    individual breaches, nor the fact that, combined with that of s. 7, they
    revealed a pattern of constitutional disobedience, were taken into account on
    the stay application.

[50]

Finally, Gowdy urges, society has no pressing interest in prosecuting
    him for a victimless inchoate crime. A properly informed assessment of all the
    circumstances should have resulted in a stay of proceedings in the clearest of
    cases paradigm. The availability of a sentence reduction played a critical
    role in the trial judges balancing of the
Babos
factors.

[51]

The Crown offers two responses. The first contests the trial judges
    finding that the media release infringed Gowdys s. 7 right to security of the
    person. The second supports the trial judges conclusion that Gowdy had not
    made out a case for entry of a stay of proceedings.

[52]

The Crown says that the trial judge erred in finding that the media release
    offended provincial privacy legislation. While the
PSA
did not provide
    specific authority for the DRPS to disclose in these circumstances, as it only
    applied to someone already convicted of a criminal offence who posed a
    significant risk of harm in circumstances where disclosure would reduce that
    risk, it did not prohibit it either. The correct conclusion is that the
    disclosure was authorized by an exception  the consistent purpose exception
    in s. 32(c) of
MFIPPA
 thus, not in breach of the general prohibition
    found by the trial judge.

[53]

Second, the Crown argues, the trial judge erred in holding that
    security of the person within s. 7 of the
Charter
was engaged whenever
    police violate an individuals reasonable expectation of privacy by circulating
    private medical data about that individual. In reaching this conclusion, the
    trial judge failed to apply the proper test in determining whether the
    security of the person right protected by s. 7 was engaged. Further, the
    trial judge erred in finding a breach of s. 7 in light of his finding of fact
    that the media disclosure that no psychological impact on Gowdy beyond what had
    resulted from the fact and nature of the charge  internet luring of an
    underage same sex youth.

[54]

The Crown contends that the police originally obtained the information
    about Gowdys HIV positive status lawfully by a reasonable search of his motor
    vehicle incident to his lawful arrest for internet luring. The subsequent
    disclosure did not amount to a search or a seizure thus did not re-engage s. 8
    of the
Charter
. In any event, police had common law authority to share
    the fruits of their investigation for law enforcement purposes as was done
    here.

[55]

In the alternative, the Crown continues, the trial judge did not err in
    failing to stay proceedings. An accused who seeks a stay of proceedings must
    satisfy a very demanding standard. Stays are only available in the clearest of
    cases. Neither the underlying findings of fact nor the statement and
    application of the test reflect legal error or palpable and overriding error in
    the fact-finding process. Appellate intervention is not warranted.

The Governing Principles

[56]

It is common ground that if the disclosure of Gowdys medical condition
    offended his s. 7 right to security of his person, a stay of proceedings would
    only be warranted if the underlying conduct  the media release  risked
    undermining the integrity of the judicial process. In other words, the impugned
    conduct implicates the residual category of the abuse of process analysis.

[57]

Cases necessitating a stay of proceedings for an abuse of process
    generally fall into two categories. The main category is where state conduct
    compromises the fairness of an accuseds trial. The residual category
    captures where there is no threat to trial fairness but the state conduct risks
    undermining the integrity of the judicial process:
Babos
, at para. 31.
    There is no issue here that the media release had any impact upon trial
    fairness.

[58]

In
R. v. OConnor
, [1995] 4 S.C.R. 411, a majority of the
    Supreme Court of Canada had recognized that the abuse of process doctrine has
    essentially been subsumed within
Charter
breach analysis. Principles
    of fundamental justice both reflect and accommodate the common law doctrine of
    abuse of process such that there is no utility in maintaining two distinct
    analytic regimes:
OConnor
, at paras. 70-71.

[59]

The standard according to which courts are to determine whether to stay
    proceedings has three requirements:

i.

prejudice to the accuseds right to a fair trial or the integrity of the
    justice system that will be manifested, perpetuated or aggravated through the
    conduct of the trial or its outcome;

ii.

no alternative remedy capable of addressing the prejudice; and

iii.

where uncertainty persists after requirements i. and ii. have been
    considered, whether the interests in favour of granting a stay prevail over
    societys interests in having a final decision on the merits.

See
Babos
, at para. 32;
R. v. Regan
,
    2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 54, 57.

[60]

The first requirement recognizes that there are limits on the type of
    state conduct society will tolerate in the prosecution of offences. Sometimes,
    state conduct will be so disturbing that having a trial, even a fair trial,
    will leave the impression that the justice system condones conduct that offends
    societys sense of fair play and decency. The question that requires answer in
    connection with the first requirement is whether proceeding to trial in light
    of the state conduct would do further harm to the integrity of the justice
    system:
Babos
, at paras. 35, 38.

[61]

For the second requirement, the question is whether any other remedy
    short of a stay is capable of redressing the prejudice. Since the prejudice
    with which we are concerned in the residual category is prejudice to the
    integrity of the justice system, remedies must be directed towards that harm.
    In this category, we do not furnish redress to an accused for a past wrong done
    to him or her. Rather, we focus on whether an alternate remedy, short of a
    stay, will adequately disassociate the justice system from the impugned state
    conduct going forward:
Babos
, at para. 39.

[62]

The third requirement  a balancing of interests  is of great
    significance in the residual category. Balancing is only required when
    uncertainty remains after consideration of the first two requirements. What the
    court is asked to decide is which of two options  staying proceedings or holding
    a trial  better protects the integrity of the justice system. Relevant factors
    include but are not limited to:

i.

the nature and seriousness of the impugned conduct;

ii.

the isolated or systemic and ongoing nature of the conduct;

iii.

the circumstances of the accused;

iv.

the charges faced by the accused; and

v.

the interests of society in having the charges determined on their
    merits.

See
Babos
, at para. 41.

[63]

In the residual category, it must appear that the state misconduct is
    likely to continue into the future, or that pursuit of the prosecution will
    offend societys sense of justice:
Babos
, at para. 36;
Canada
    (Minister of Citizenship and Immigration) v. Tobiass
, [1997] 3 S.C.R 391,
    at para. 91.

[64]

An accused who seeks a stay of proceedings under the residual category
    faces an onerous burden on account of the clearest of cases threshold and the
    balancing of societal interests that forms an integral part of the analysis
    undertaken by the trial judge. In the residual category, cases warranting a
    stay of proceedings are exceptional and very rare:
Babos
, at para.
    44;
Tobiass
, at para. 91. See also
R. v. Conway
, [1989] 1
    S.C.R. 1659, at p. 1667.

[65]

A final point has to do with the standard of review. Appellate review of
    a remedy ordered, and I would add, refused, under s. 24(1) of the
Charter
is warranted only where a trial judge misdirects her or himself in law, commits
    a reviewable error of fact, or renders a decision that is 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;
Babos
, at para. 48;
Regan
,
    at paras. 117-118; and
Tobiass
, at para. 87.

The Principles Applied

[66]

As I will explain, I would not give effect to this ground of appeal,
    essentially for two reasons. The first has to do with the trial judges
    threshold finding that the media release infringed Gowdys right to security of
    his person under s. 7 of the
Charter
. The second, which assumes the
    threshold finding of
Charter
infringement is correct, relates to the
    capacity of the infringement to satisfy the requirements for entry of a stay of
    proceedings.

[67]

Whether issuance of the media release infringed Gowdys security of the
    person interest under s. 7 of the
Charter
is also put in issue by the
    Crown in its appeal of the sentence imposed by the trial judge. It is there
    where I have decided to deal with that issue and have concluded that the trial
    judge erred in deciding that distribution of the media release infringed s. 7.

[68]

However, for the purpose of Gowdys appeal, I will treat the
    infringement finding as correct and assess whether it establishes what is
    required for entry of a stay of proceedings. For several reasons, I am satisfied
    that the burden imposed on Gowdy well exceeds the grasp of the infringement upon
    which he relies.

[69]

First, Gowdys claim for a stay of proceedings invokes the standard that
    must be met for the residual category of abuse of process. Gowdy must establish
    that the infringement caused prejudice to the integrity of the justice system
    that will be manifested, perpetuated or aggravated through the conduct of even
    a fair trial or its outcome because the statue conduct at issue is so offensive
    to societal notions of fair play and decency.

[70]

Moreover, a stay of proceedings is a prospective remedy. It does not, as
    Gowdy would appear to suggest, at least implicitly, redress a wrong that has
    already been done. Rather, the stay aims to prevent the perpetuation of a wrong
    that, if left alone, will continue to trouble the parties and the community in
    the future. Just because the state has treated a person shabbily in the past
    does
not
, without more, entitle that person to a stay of proceedings.
    The evidence must also make it appear that the state misconduct is likely to
    continue in the future, or that carrying forward with a prosecution will offend
    societys sense of justice.

[71]

At bottom, what happened here, and what must meet the burden for the
    stay, was distribution of a media release that included reference to Gowdys
    HIV positive status. For the most part, the release recited information that
    was a matter of public record. The identity of a person charged with a crime.
    The nature of the crime. Solicitation of further information from the public should
    they have any relevant information about the person charged. Did the inclusion
    of HIV status in the media release, in the specific circumstances of this case
    and in relation to the prosecution of a serious offence aimed at preventing
    sexual predation upon children, tip the otherwise routine disclosure into an ongoing
    affront to the integrity of the justice system that could not be remedied by
    other means?

[72]

The trial judge concluded that an alternate remedy was adequate to disassociate
    the justice system from the impugned conduct going forward. A judicial rebuke
    and reduction in sentence were adequate. A stay was not warranted. His remedial
    choice, unless cumbered by legal error, a reviewable error of fact or a
    decision that is so clearly wrong as to amount to an injustice, is entitled to
    deference in this court.  In my view, the trial judges conclusion demonstrates
    no legal error, is well supported on this record, and appellate intervention is
    not warranted.

[73]

In this case it is critical not to lose sight of the circumstances of
    the alleged misconduct. There was no issue that the information disclosed in
    the media release was found in Gowdys car during a search incident to arrest
    the lawfulness of which was not called into question. It was included in a
    media release composed primarily of information about Gowdys arrest that was
    lawfully in the public domain. It solicited responses from others who may have
    had consensual sexual contact with Gowdy, unaware of his HIV status at the time
    of that contact. In addition to the obvious potential health risk associated
    with consensual unprotected sexual activity, the release was issued before the
    Supreme Court of Canada clarified the relevance of non-disclosure of HIV
    positive status to the issue of consent in
R. v. Mabior
, 2012 SCC 47,
    [2012] 2 S.C.R. 584. The record does
not
establish that releases of
    this nature were frequent or reflected a systemic and ongoing problem with
    constitutional infringements by the DRPS. In addition, Gowdy was facing a
    serious charge, an offence that society rightly expects would proceed to trial.

[74]

Where, as here, prejudice to the integrity of the judicial system is the
    allegation advanced (for there can be no claim that the disclosure affected the
    fairness of Gowdys trial), a judge is required to decide which of the
    available options  a stay or continuing the trial despite the infringement 
    better protects the integrity of the justice system. This inquiry necessarily
    involves the balancing of myriad factors. It inevitably follows that the
    conclusion reached in this balancing process is entitled to deference in this
    court. In my view, no case has been made out for its disturbance here.

[75]

Finally, as the authorities repeatedly emphasize in connection with both
    the main and residual category of abuse of process, stays of proceedings are
    rare, reserved for the clearest of cases. In the residual category, stays are
    exceptional and very rare:
Tobiass,
at para. 91. A stay is
    warranted only in cases in which the affront to fair play and decency is
    disproportionate to the societal interest in the effective prosecution of
    criminal cases. Bluntly put, that is not this case. I would dismiss the appeal
    from conviction.

THE APPEAL FROM SENTENCE

[76]

The Crown seeks leave to appeal sentence, asserting error not only in
    the trial judges invocation of s. 24(1) of the
Charter
to impose a
    sentence that is outside statutory limits, but also with the finding of
    constitutional infringement that provided access to the remedial authority of
    s. 24(1).

Issue #1: The Infringement

[77]

Since the circumstances of the alleged infringement have been set out
    above, a thumbnail sketch of the trial judges reasons in relation to the
Charter
breaches will provide the necessary platform for consideration of the discussion
    that follows.

The Reasons of the Trial Judge on the Alleged
Charter
Breach

[78]

The trial judge found that the right to privacy of medical information
    was protected by provincial legislation that governed the release of
    information about the identity of persons with communicable diseases. He then
    referred to both the
PSA
and
MFIPPA
. The trial judge
    concluded that the
PSA
created a complete regime for disclosure of
    this information by the chief of police and his or her designate provided
    certain conditions were met. None of these conditions were satisfied in this
    case. As a result, publication of the media release was unlawful.

[79]

The trial judge noted that two
Charter
rights were implicated
    by disclosure of Gowdys medical condition. Section 7 protected Gowdys right
    to security of his person, including his right to keep personal medical data
    private, and his right to be free from state-imposed psychological stress that
    was serious in nature. Section 8 protected informational privacy, including
    privacy of medical information which is particularly sensitive.

[80]

The trial judge expressed his conclusion about the nature and extent of
    the
Charter
infringement occasioned by the media release in terms that
    bear repeating:

The inherent reasonable expectation of privacy in medical
    information is taken for granted in the vast volume of authorities that
    consider the rights of complainants in sexual assault matters. It is also
    commonly accepted that the seizure of medical data as evidence in a criminal
    prosecution requires prior judicial authorization. In the case before me the
    information was not seized in a manner impugned by the defence. But where
    personal medical information falls into the hands of the police without any
    unlawful conduct on their part, the suspect still retains a right that any
    subsequent use by the police conform to
Charter
principles. Privacy of
    personal medical information cannot be restricted to cases where Section 8
    infringements are pled. The concept of security of the person is engaged
    anytime police violate a reasonable expectation of privacy by unlawfully
    circulating private medical data.

I rule that the unlawful and unreasonable public disclosure of
    Mr. Gowdys personal medical information violated Section 7 of the
Charter
.

The Arguments on Appeal

[81]

Preliminary to an examination of the arguments on appeal, it is helpful
    to clear away the uncontroversial.

[82]

Kris Gowdy does not contest the lawfulness of his arrest on a charge of
    underage internet luring. He concedes that the search of his vehicle, which he
    drove to Brads house, was a valid search incident to his lawful arrest. The
    search was carried out in a reasonable manner and the documents disclosing his
    HIV positive status were lawfully seized from the vehicle.

[83]

In addition, Kris Gowdy appears not to gainsay the authority of the DRPS
    to issue a media release describing his arrest; the nature of the charge on
    which he was arrested; and his basic biographical details of name, address, age
    and occupation. Nor does he quarrel with the authority of the police to
    investigate further and to solicit members of the public to advance or expand
    their original investigation.

[84]

The target of Kris Gowdys complaint is disclosure in the media release
    of his HIV positive status. Dissemination of this inherently private medical
    information, he says, infringed his right to security of the person guaranteed
    by s. 7 of the
Charter
.

[85]

On appeal, the Crown contends that the trial judge erred in holding that
    any time police violate a reasonable expectation of privacy by voluntarily
    circulating private medical data, the security of the person component of s. 7
    is engaged.

[86]

The Crown says the security of the person component in s. 7 relates
    exclusively to state conduct that interferes with the physical and
    psychological integrity of a person. No interference with physical integrity
    occurred here. The effect of state conduct on the psychological integrity of a
    person is to be assessed objectively, the standard applied, the psychological
    integrity of a person of reasonable sensibility. The trial judges own finding,
    that the disclosure of Gowdys HIV positive status had no impact on his
    psychological integrity beyond that caused by the fact and nature of the charge
     internet luring of a same sex minor  negates any prospect of a s. 7
Charter
breach.

[87]

The Crown considers next whether the trial judge inadvertently
    mislabelled a breach of s. 8 as a breach of s. 7. But any mislabelling is of no
    moment because, the Crown says, no s. 8 breach has been made out here.

[88]

According to the Crown, nothing in the
PSA
authorized or
    prohibited disclosure of information about Gowdys HIV positive status. The
    only provision that enjoins disclosure of personal information in the custody
    or control of a municipal institution, such as the DRPS, is s. 32 of
MFIPPA
.
    But just as s. 32 enacts a prohibition, it also creates exemptions. The
    consistent purpose exemption of s. 32(c) of
MFIPPA
authorized the
    media release here. The personal information was obtained from Gowdys vehicle
    during a lawful search incident to arrest. The purpose of a search incident to
    arrest is to ensure the safety of the police and the public; to protect
    evidence from destruction; and to discover evidence related to the reasons for
    the arrest. The disclosure here was for a consistent purpose, to advance the
    investigation by encouraging consensual sexual partners of Gowdy, unaware of
    his HIV positive status, to contact police to determine whether Gowdy had
    committed further offences. It follows that the disclosure was lawful and no
    breach of s. 8 occurred.

[89]

In addition, the Crown continues, the subsequent disclosure in the media
    release, which followed the lawful search incident to arrest, was not itself a
    search or seizure, thus did not on its own engage s. 8 of the
Charter
.
    Admittedly, Gowdy retained a residual privacy interest in the contents of the
    documents seized incident to arrest. Despite that residual interest, however,
    police were entitled to use that information for the purposes of law
    enforcement. Their conduct in doing so did not offend s. 8.

[90]

Gowdy resists any claim of error on the part of the trial judge. Both
    ss. 7 and 8 of the
Charter
protected his reasonable expectation of
    privacy in his medical information. Gowdy says that information about a
    persons medical condition, such as his HIV status, is part of the biographical
    core of personal information individuals in a free and democratic society would
    wish to maintain and control free from dissemination by the state. Despite
    lawful acquisition of these documents by the state, Gowdy retained a continuing
    reasonable expectation of privacy in the information contained in them, a
    residual interest worthy of protection under s. 7 of the
Charter.

[91]

Gowdy says that the disclosure in the media release was unlawful, an
    unconstitutional compromise of his residual expectation of privacy. The trial
    judge made no error in finding constitutional infringement.

[92]

Gowdy contends that police disclosure in the media release of his HIV
    status was unlawful because it was prohibited under the governing provincial
    statute  the
PSA
 as well as under the statute of general
    application  the
MFIPPA
 and the common law. The media release was
    not for a legitimate law enforcement purpose.

[93]

In Gowdys submission, the
PSA
and its accompanying regulations
    form a complete regime governing public disclosure by the police of the
    identity of a persons with communicable diseases. Granted, the
PSA
enacts no express prohibition. But the prohibition arises by necessary
    implication from the presence of several exceptions. And none of those
    exceptions authorized the media release here. The disclosure was not made by
    the chief of police or by his designate. Gowdy had only been charged with, not
    convicted or found guilty of an offence. And there was no basis upon which the
    chief could reasonably believe that Gowdy posed a significant risk of harm to
    others and that disclosure of his HIV status would reduce that risk.

[94]

In addition, Gowdy says, if
MFIPPA
were applicable, not only
    does it not authorize, but also it expressly prohibits the disclosure that
    occurred here. Section 32 of
MFIPPA
enacts a general prohibition. The
    consistent purpose exception in s. 32(c) cannot apply because its application
    would render the law enforcement disclosure exception in s. 32(f) redundant.
    Even if recourse to the consistent purpose exception in s. 32(c) were
    permissible, the information collected directly from Gowdy was not released for
    a consistent purpose as that phrase is defined under s. 33, since Gowdy would
    not reasonably have expected its release at the time it was collected.

[95]

Gowdy acknowledges that police can look to the common law as a source of
    authority for a legitimate law enforcement purpose to use the fruits of a
    lawful search. But they should not be permitted to do so on the basis of
    reasonable suspicion of the commission of other crimes in which Gowdys HIV
    status would matter. The standard should be reasonable and probable grounds and
    there was no basis for such a conclusion here.

The Governing Principles

[96]

Security of the person is one of three interests afforded protection
    under s. 7 of the
Charter
. But the protection is not absolute. An
    individual may be deprived of security of the person, as well as of life and
    liberty, provided the deprivation accords with the principles of fundamental
    justice.

[97]

In common with a deprivation of liberty, s. 7 does not protect a person
    against any and all deprivations of or intrusions upon personal security. The
    deprivation must be sufficiently serious to warrant
Charter
protection:
Cunningham v. Canada
, [1993] 2 S.C.R. 143, at p. 151. To
    require that
any
intrusion upon security of the person must accord
    with the principles of fundamental justice would tend to trivialize the
    protections afforded by the
Charter
:
Cunningham
, at p. 151.

[98]

The right to security of the person protects the physical and
    psychological integrity of the individual:
New Brunswick (Minister of
    Health and Community Services) v. G. (J.)
, [1999] 3 S.C.R. 46, para. 58;
R.
    v. Morgentaler
, [1988] 1 S.C.R. 30, at p. 173.

[99]

To mark out the boundaries that protect an individuals psychological
    integrity from state interference is an inexact science. There is a qualitative
    aspect to the type of conduct that would ascend to the level of an infringement
    of this right. To be clear, the right does not protect an individual from the
    ordinary stresses and anxieties that a person of reasonable sensibility would
    suffer from government action. If this were so, we would trivialize what it
    means for a right to be constitutionally protected:
G. (J.)
, at para.
    59.

[100]

To establish a
    restriction of security of the person, an applicant must demonstrate, on a
    balance of probabilities, that the state conduct in issue had a serious and profound
    effect on the applicants psychological integrity. The effects of the state
    interference are to be assessed objectively, with a view to their impact on the
    psychological integrity of a person of reasonable sensibility. The effects need
    not rise to the level of nervous shock or psychiatric illness, but must extend
    beyond ordinary stresses or anxiety:
G. (J.)
, at paras. 58-60.

[101]

The phrase
    serious state-imposed psychological stress fixes two requirements that must
    be satisfied for the right to security of the person to become engaged. The
    psychological harm must result from the conduct of the state. In other words,
    there must be a causal link between the impugned state conduct and the
Charter
violation claimed. And the psychological prejudice or harm must be serious:
Blencoe
    v. British Columbia

(Human Rights Commission)
, 2000 SCC 44,
    [2000] 2 S.C.R. 307, at paras. 57, 60.

[102]

Prominent in the
    reasons of the trial judge and the submissions of counsel on appeal are two
    provincial statutes  the
PSA
and the
MFIPPA
. Each has
    provisions governing disclosure of certain types of information.

[103]

The
PSA
contains no express prohibition against disclosure of personal information.
    However, such a prohibition would seem to arise by necessary implication from
    s. 41(1.1), which authorizes the chief of police or anyone the chief designates
    for the purpose of the subsection to disclose personal information about an
    individual, provided the disclosure is in accordance with regulations passed
    under the
PSA
. The exception or exemption in s. 41(1.1) applies
    despite any other Act and is deemed to be compliant with s. 32(e) of
MFIPPA
and s. 42(1)(e) of the
Freedom of Information and Protection of Privacy Act
,
    R.S.O. 1990, c. F.31.

[104]

Disclosure under
    s. 41(1.1) of the
PSA
may be made for the purpose of protecting the
    public or victims of crime, amongst other purposes, when it is reasonably
    believed an individual poses a significant risk of harm to other persons:
PSA
,
    s. 41(1.2); O. Reg. 265/98, s. 2.

[105]

Section 28(2) of
MFIPPA
generally prohibits anyone from
collecting
personal
    information on behalf of an institution unless the person has express
    authorization to do so or is collecting the information for a law enforcement
    use. Section 32 of
MFIPPA
generally prohibits
disclosure
of
    personal information by an institution, but the prohibition is not absolute.
    Disclosure is permitted for the purpose for which the information was obtained
    or for a consistent purpose: s. 32(c). It is also permitted, pursuant to s.
    32(f), if it is by a law enforcement institution to another law enforcement
    agency in a foreign country under certain conditions or to another law
    enforcement agency in Canada.

The Principles Applied

[106]

As I will
    explain, in my respectful view, the trial judge erred in holding that
    disclosure of Gowdys HIV positive status in the media release engaged and
    infringed Gowdys right to security of the person under s. 7 of the
Charter
.

[107]

The reasoning of
    the trial judge, which led him to conclude that Gowdys right to security of
    the person under s. 7 had been breached, proceeds through a series of steps:

i.

where police obtain, by lawful means, personal medical information about
    a suspect, the suspect retains a right that any subsequent use of the material
    by the police will be
Charter-
compliant;

ii.

privacy of personal medical information is not confined to cases in
    which s. 8
Charter
infringements are alleged;

iii.

the concept of security of the person is engaged whenever police
    violate a reasonable expectation of privacy by voluntarily circulating private
    medical data; and

iv.

the unlawful and unreasonable public disclosure of Gowdys personal
    medical information violated s. 7 of the
Charter
.

[108]

Four reasons
    persuade me that the trial judges finding of an infringement of the security
    of the person component of s. 7 cannot stand.

[109]

First, the
    standard applied. The trial judge held that security of the person under s. 7
    becomes engaged and, by necessary implication, is infringed anytime police
    violated an individuals reasonable expectation of privacy by unlawfully
    circulating the individuals private medical data. This does not reflect the controlling
    standard by which claims of this infringement are assessed.

[110]

The right to
    security of the person protects both the physical and psychological integrity
    of an individual. No question of physical integrity arises here. Where state
    conduct is said to interfere with psychological integrity and thus to offend s.
    7, the individual must demonstrate that the state conduct  issuance of the
    media release disclosing private medical information  had a serious and
    profound effect on the individuals psychological integrity. These effects of
    the state interference must be assessed objectively, with a view to their
    impact on the psychological integrity of a person of a reasonable sensibility.
    And these effects must extend beyond ordinary stress or anxiety, albeit need
    not reach the threshold of nervous shock or psychiatric illness. If disclosure
    of an individuals HIV status is said to infringe s. 7, it must meet this
    standard to qualify as a breach. The trial judge assumed the infringement based
    on
any
disclosure of private medical information and in doing so
    failed to apply this standard.

[111]

Second, even if
    the trial judge had applied the proper legal standard to determine whether
    there had been an infringement of the security of the person interest in s. 7,
    a finding of infringement could not stand because it would be fundamentally at
    odds with the trial judges factual conclusion that he could not distinguish
    any effect that disclosure of Gowdys HIV status would have on his career
    independent of the effect of the nature and effect of the charge of same-sex
    underage internet luring. What occurred in this case simply cannot ascend to
    the standard required to establish an infringement of security of the person
    under s. 7 in the absence of a serious and profound effect of the HIV
    disclosure upon Gowdys psychological integrity separate and apart from the
    impact of the disclosure of the allegations in the media release.

[112]

Third, it is not
    clear to me that the consideration of whether there was a
Charter
breach had to be founded, as submitted by the parties, on either the
    authorization or prohibition of the disclosure by statute. The real issue on
    this appeal is not to validate the actions of the police in disclosing Gowdys
    HIV status, which clearly in retrospect were not advisable, but to evaluate
    whether the release of the information met the threshold of serious and
    profound effect on Gowdys psychological integrity sufficient to constitute a
Charter
breach. Statutory authorization or prohibition can certainly inform the
    analysis, and as a result will be considered below, particularly in light of
    the parties submissions, but are not necessarily determinative.

[113]

It is common
    ground that the
PSA
did not authorize disclosure of Gowdys HIV
    positive status. The exemption in s. 41(1.1) of the
PSA
authorizes a
    chief of police, or his or her designate, to disclose personal information
    about an individual in accordance with regulations passed under the
PSA
.
    Section 41(1.2) adds a requirement that disclosure of personal information be
    for one or more of several listed purposes, including protection of the public
    and law enforcement. Sections 2 and 3 of O. Reg. 265/98 describe the substance
    of the personal information that a chief of police or designate may disclose.
    Nothing authorized the disclosure of the personal medical information in this
    case. There was no evidence that the chief of police or a designate authorized
    the release, nor that they reasonably believed Gowdy posed a significant risk
    of harm to others and that the disclosure would reduce the risk posed. Further,
    Gowdy was not yet convicted of an offence and the information released went
    beyond what could be authorized in relation to a person charged: O.Reg. 265/98,
    s. 3.

[114]

On the other
    hand, an exception to the prohibition of disclosure of personal information in
    s. 32(c) of
MFIPPA
, where disclosure is for the purpose for which the
    personal information was obtained or for a consistent purpose, may render the
    disclosure here lawful. The personal information was obtained during an
    investigation of an alleged criminal offence. One of the purposes of the media
    release was to further the original investigation by inviting responses from
    other sexual partners of Gowdy who may be at risk of transmission of the HIV
    virus in the absence of his disclosure of his status and use of protection. The
    nature of the offence being investigated and the circumstances of the
    commission itself in this instance could be sufficient to give rise to a public
    safety and law enforcement concern for other victims.

[115]

Finally, to
    recast the conclusion as an infringement of s. 8 of the
Charter
, the
    decision remains flawed. The original search and seizure was lawful. As a
    general rule, disclosure of the results of a search and seizure does not amount
    to a search for s. 8 purposes. After all, disclosure is simply a
    communication to another or others of information previously acquired. That
    said, sometimes s. 8 protections may attach to post search and seizure
    disclosure:
Wakeling v. United States of America
, 2014 SCC 72, [2014]
    3 S.C.R. 549, at para. 40.

[116]

Ultimately, the
    disclosure of Gowdys HIV positive status in the context of a media release
    about his arrest, was not so disconnected from law enforcement concerns over
    the existence of potential victims that it rendered the disclosure an
    unreasonable violation of Gowdys security of the person or informational
    privacy. The police had reasonable suspicion; reasonable grounds to believe
    further offences had been committed was not required for the purpose of the
    media release.

Issue #2: The Remedy

[117]

The trial judge
    mobilized s. 24(1) of the
Charter
as the remedial source for the
    imposition of a sentence outside statutory limits. Critical to the availability
    of s. 24(1) as the source of the remedy granted was a threshold finding of a
    breach or infringement of an enumerated
Charter
right or freedom. That
    threshold finding was a breach of Gowdys right to security of the person. As I
    have explained, the threshold finding that the media release infringed Gowdys
    s. 7 right to security of his person or his s. 8 right to be secure against
    unreasonable search or seizure cannot stand. In the absence of those
    constitutional infringements, s. 24(1) cannot be of service to Gowdy to obtain
    a sentence outside statutory limits.

[118]

However, in the
    event that I am wrong about the absence of an infringement of s. 7 or s. 8 and
    equally in error about the inapplicability of s. 24(1) as a remedial source, I
    will assume there were sufficient constitutional infringements and examine
    whether the sentence imposed can be justified through the application of s.
    24(1).

The Positions of the Parties at Trial

[119]

At trial, Crown
    counsel (not Mr. McInnes) sought a sentence of 18 months in custody followed by
    a significant probationary term. Defence counsel (not Mr. Silverstein)
    advocated for a conditional sentence or, in the alternative, a modest jail
    sentence in the range of 90 days.

The Reasons of the Trial Judge

[120]

On the basis of
    his threshold finding that the media release breached Gowdys security of the
    person right under s. 7 of the
Charter
, the trial judge turned to s.
    24(1) to provide an effective remedy for the breach. He considered that
    imposition of the statutory minimum sentence  imprisonment for one year 
    would not provide an effective remedy in this case. Such a remedy would be
    ineffective, he said, because application of the operative objectives and
    principles of sentencing, together with the circumstances of the offence and
    the offender, would not warrant a sentence beyond the statutory minimum.

[121]

And so it was
    that the trial judge invoked the decision in
R. v. Nasogaluak
, 2010
    SCC 6, [2010] 1 S.C.R. 206, and several trial judgments which he considered
    authorized the imposition of a sentence outside statutory limits  a
    conditional sentence of imprisonment of two years less one day, followed by a
    three year probationary term.

The Arguments on Appeal and The Governing
    Principles

[122]

The arguments
    advanced on appeal and the governing principles that control the disposition of
    this issue are the same as advanced in the companion appeal in
R. v.
    Donnelly
, 2016 ONCA 988. Their substance appears in paras. 127-159 of that
    judgment and need not be repeated here.

The Principles Applied

[123]

In this case, I
    am satisfied that neither s. 24(1) of the
Charter
nor Part XXIII of
    the
Criminal Code
can be conscripted in support of the imposition of a
    sentence outside statutory limits, particularly, the sentence imposed here.

[124]

To take first,
    the source relied upon by the trial judge  s. 24(1) of the
Charter
.
    This issue I approach, of course, on the assumption that the threshold findings
    of
Charter
infringement were correct.

[125]

In my view, the
    trial judges invocation of
Nasogaluak
and s. 24(1) as the basis upon
    which he imposed a sentence outside statutory limits is flawed for at least
    three reasons.

[126]

First, as the
Nasogaluak
court points out, s. 24(1) is not the exclusive source a trial judge may plumb
    to take into account
Charter
breaches relating to the circumstances of
    an offender in determining a fit sentence. An effective remedy for a proven
    wrong, which also happens to be a
Charter
breach, may be taken into
    account in determining a fit sentence under Part XXIII of the
Criminal Code
.
    First choice resort to s. 24(1) to reduce a sentence to account for any harm
    flowing from unconstitutional conduct does not comply with the general rule
    espoused in
Nasogaluak
, at para. 5.

[127]

Second, the
    trial judge appears to have treated
Nasogaluak
as having determined,
    rather than generally foreclosed, a sentence reduction outside statutory limits
    as an appropriate remedy for
Charter
infringement. The general rule of
Nasogaluak
is that a sentence reduction outside statutory limits does
not
generally constitute an appropriate remedy under s. 24(1), unless the
    constitutionality of the statutory limit itself is challenged. No such
    challenge was advanced here. An outside statutory limits sentence was not generally
    available under
Nasogaluak
, which requires that sentences imposed
    under Part XXIII comply with statutory minimums and other provisions which
    prohibit certain forms of sentence in respect of the offence, such as the
    restrictions regarding conditional sentences set out in s. 742.1(b). Moreover,
    and as noted in
Donnelly
, the
Nasogaluak
court did not make
    clear how a sentence reduction outside statutory limits should it be available,
    could be reconciled with its earlier decision in
R. v. Ferguson
, 2008
    SCC 6, [2008] 1 S.C.R. 96.
Ferguson
foreclosed the possibility of
    constitutional exemptions from mandatory minimum sentences as an appropriate s.
    24(1)
Charter
remedy, in that case in relation to s. 12.

[128]

Third, while the
Nasogaluak
court did not foreclose the possibility that a sentence
    reduction outside statutory limits may be the sole effective remedy for state
    misconduct, the court made it clear that such a remedy was limited to
    exceptional cases and particularly egregious conduct in relation to the offence
    and the offender. Simply put, as it was in
Nasogaluak
itself, this is
    not such a case.

CONCLUSION

[129]

Even if breaches of s. 7, 8 & 10(b) were actually
    supported here, the state conduct, particularly when evaluated in light of the
    pre-
Mabior
state of the law that was in existence at the time, was not
    so exceptional as to warrant a reduction outside statutory limits.


[130]

Ultimately, it follows
    from my conclusion that the trial judge erred in finding
Charter
infringement that could ground a s. 24(1) remedy that the sentence imposed at
    trial should be varied within the limits prescribed by law. No one on appeal suggests
    that the sentence warranted in this case should exceed the statutory minimum 
    imprisonment for one year. Nor does anyone suggest that the minimum term of
    imprisonment should be followed by a period of probation.

[131]

I would grant
    leave to appeal the sentence imposed at trial and vary the sentence to one of
    imprisonment for a term of one year without any period of probation.

[132]

Kris Gowdy has
    completed the conditional sentence of imprisonment imposed by the trial judge.
    For two years, he has been subject to stringent conditions, including eight
    months of house arrest; electronic supervision for the full term of the
    sentence; and a curfew for the final sixteen months. In the circumstances, I am
    unable to divine any valid purpose that would be served by his
    re-incarceration. Accordingly, I would stay the application of the sentence and
    direct that no warrant issue for his arrest or committal.

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

David Watt J.A.

I agree.
G.J.
    Epstein J.A.

I agree. M. Tulloch J.A.





[1]
This appeal was heard together with
R. v. Donnelly
, 2016 ONCA 988, for
    which reasons are issued concurrently.



[2]

Section 172.1(2) of the
Criminal Code
mandates a mandatory
minimum
    punishment of imprisonment for a term of one year for the offence of luring a
    child pursuant to s. 172.1(1). Section 742.1(b) provides that a conditional
    sentence is not available if the offence is punishable by a minimum term of
    imprisonment.


