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Charter - s.9 Detention and Imprisonment (2). R. v. Diakoloukas [detention after bail release order]
In R. v. Diakoloukas (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against conviction for "one count of possession of child sexual abuse and exploitation material (“CSAEM”)".
The court considers a Charter s.9 ['detention'] issue, here regarding the appellant's treatment "(o)nce this court has issued a release order":b. The scope of the s. 9 breach
[125] The appellant argues that he should have been released from the Brampton courthouse. He emphasizes that this court’s release order clearly states that “upon completion of Appendix A to this release order, the person having custody of the appellant shall immediately release the appellant if not otherwise detained”. He maintains that once the authorities are in receipt of this court’s release order, they must take steps to complete the order by effecting the execution of Appendix A. Failing to do so would frustrate this court’s order that the individual be released on bail once his signature on Appendix A has been witnessed (unless, of course, he is otherwise detained). The respondent agrees.
[126] The parties are right. Custodial authorities cannot take a lackadaisical approach to a detainee’s release on bail pending appeal. Once this court has issued a release order, and the only thing standing between the individual’s detention and liberty is the execution of Appendix A, the authorities must act to facilitate that execution and give effect to the order.
[127] At the same time, it is only right to acknowledge that custodial authorities, whether working in courthouse cells or in jails, are contending at any given time with numerous pressures, ones that include ensuring the safety and security of others in their respective institutions and courthouses. Accordingly, it would place an impossible and sometimes dangerous burden on the authorities if this court were to require that Appendix A be executed immediately in all cases. Indeed, during oral submissions for these appeals, the parties acknowledged that reasonableness should guide this process.
[128] To this end, once in receipt of the release order, the custodial authorities must act in a reasonably prompt manner to ensure that Appendix A is executed and the detained individual is released, assuming he is not held for another reason. What is reasonably prompt in any given case will be informed by the objective circumstances at work, including the contextual factors confronting the courthouse or institution where the individual is detained at the point that release has been ordered.
[129] Section 9 of the Charter provides a right not to be arbitrarily detained or imprisoned: Grant, at para. 54. There is no dispute in this case that, at some point, the appellant (and Z.C. and Mr. McKenzie) became arbitrarily detained.
[130] What is unusual about this case (and the related cases) is that the detention started lawfully, following sentencing. Unlike most s. 9 jurisprudence, therefore, there was nothing arbitrary or unlawful about the appellant (and Z.C. and Mr. McKenzie) being detained in the first place. The question is when the lawful detention(s) became arbitrary.
[131] The respondent fairly concedes that this court’s order was not complied with in a reasonably prompt fashion, because of a series of mistakes and misunderstandings about the appropriate location of release. Without those mistakes and misunderstandings, the appellant would have been released from the Brampton cells. Accordingly, the respondent maintains that the appellant (and Z.C. and Mr. McKenzie) were arbitrarily detained from the moment they were transported to Maplehurst. I agree. Accordingly, in this case, the arbitrary detention started at 5:45 p.m., when the appellant entered the van to be transported to Maplehurst. . R. v. Diakoloukas [psychological detention]
In R. v. Diakoloukas (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against conviction for "one count of possession of child sexual abuse and exploitation material (“CSAEM”)".
Here the court considers what constitutes psychological 'detention' under Charter s.9 ['Detention or imprisonment']:a. Psychological detention
[59] Not every encounter with the police gives rise to a detention: R. v. Suberu, 2009 SCC 33, [2009] S.C.R. 460, at para. 3. Rather, a detention within the meaning of s. 9 of the Charter occurs where the police suspend “an individual’s liberty interest by virtue of a significant physical or psychological restraint”: Suberu, at para. 21.
[60] When it comes to psychological detention, the inquiry is an objective one, asking how a reasonable person in the accused’s circumstances would perceive the police conduct: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 30-31, 44. There are three factors to be considered and balanced, as summarized in R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at para. 22:(1) The circumstances as they would be perceived by the individual;
(2) The police conduct in question; and
(3) Where relevant, the characteristics or circumstances of the individual. [61] The standard of review is one of correctness because whether a detention exists is a question of law: Grant, at para. 43; Lafrance, at para. 23; and R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 23. Although the trial judge’s findings of fact are owed deference, the analysis and conclusion arising from those facts are subject to a standard of correctness.
....
[70] While the appellant maintains that this court’s decisions in Scopel-Cessel and McSweeney, both cases where psychological detentions were found, are similar to this one, I disagree. The trial judge distinguished those cases, and they are indeed distinguishable.
[71] In Scopel-Cessel, there was a search warrant executed at the accused’s home at 6:02 a.m. While the accused was told that he was not detained, he was not told that he was free to leave. And it was “unrealistic” for him to do so “in the particular circumstances of [that] case” because he was in his pyjamas at 6:00 a.m. on a cold January morning: at para. 45. While the search warrant was being executed at his home, he and his wife were in the kitchen. He had to ask the police if it was alright to make a coffee. In these circumstances, this court concluded that the appellant was psychologically detained, which meant that he should have been provided with his right to counsel pursuant to s. 10(b) of the Charter.
[72] In McSweeney, there was a search warrant executed at 6:03 a.m., when the accused was in the shower and his children were still in bed. The accused was singled out for a “focussed investigation” and asked targeted, accusatory and incriminating questions while segregated “under guard” in a room away from his family and with no access to a telephone. The questions would have caused any “reasonable person in the position of the appellant to conclude that they were a suspect, perhaps the prime suspect, in a police investigation into [CSAEM] in their own home”: at para. 45. Mr. McSweeney’s wife had to ask permission to use the phone in the kitchen and permission to get the children ready for school, all of which spoke to the “perception that she was not free to do so without permission”: at para. 46. In all of these circumstances, Mr. McSweeney was found to be psychologically detained.
[73] It is easy to see how in both Scopel-Cessel and McSweeney, after applying the objective test, this court arrived at the conclusion that the appellants were psychologically detained and, therefore, that their s. 10(b) Charter rights had been triggered and infringed. ....
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