R. v. Poirier, 2016 ONCA 582
[51] Section 503(1) of the Criminal Code requires a peace officer who arrests a person, with or without a warrant, to bring the person before a justice of the peace, where a justice is available, without unreasonable delay or in any event within 24 hours of arrest.
[52] The Crown rightly concedes that the terms of a general warrant cannot override s. 503, which is mandatory. Parliament has not seen fit to provide for a warrant authorizing a detention beyond that which is permitted by s. 503, and it is not for the courts to invent such authority.
[53] Further, the Crown acknowledges that the police, in obtaining a general warrant to conduct the bedpan vigil search, were seeking to avoid the provisions of s. 503 of the Criminal Code. Constable Vosburg testified he thought that because a provincial court judge is a higher authority than a justice of the peace, the judge could authorize non-compliance with s. 503. When the justice issued the general warrant, the police believed they had received an exemption from compliance with s. 503. Constable Vosburg did not seek a legal opinion from a Crown attorney as to whether his understanding was correct.
[54] Finally, while no term of the general warrant expressly authorized non-compliance with the provisions of s. 503, the warrant does not set out any outer limit of time during which the appellant could be detained.
[55] Indeed, the officers and the trial judge all accepted that the appellant's detention violated s. 503, but appeared to presume that the general warrant could supersede compliance with the section. The trial judge never considered whether the warrant could legally do what it purported to do, and erred in apparently concluding that the general warrant permitted non-compliance by the police with the provisions of s. 503.
[56] In my view, the general warrant was defective in that it did not provide that the appellant's detention, until he excreted the drugs in his rectum, was subject to the requirement that the appellant be brought before a justice of the peace without unreasonable delay pursuant to s. 503.
[57] Section 503 reflects an important fundamental right in our society, namely, the liberty of the subject, which is not to be taken away except in accordance with the law: R. v. Simpson, 1994 CanLII 4528 (NL CA), [1994] N.J. No. 69, 88 C.C.C. (3d) 377 (C.A.), at pp. 386-87 C.C.C., revd on other grounds 1995 CanLII 120 (SCC), [1995] 1 S.C.R. 449, [1995] S.C.J. No. 12. In holding that the accused's detention was arbitrary [page448] in R. v. Truchanek, 1984 CanLII 5683 (BC SC), [1984] B.C.J. No. 3200, 39 C.R. (3d) 137 (Co. Ct.), Hogarth Co. Ct. J. stated, at pp. 170-71 C.R.:
[E]ven if the detention was but for hours, even if the detention was to obtain evidence of the commission of a serious crime, the deliberate illegal refusal to present [the accused] according to law was in my view a matter of vital importance for the people of this community, as it opens up to the police the idea that any one of us who has the misfortune to be arrested could be held for any length of time in order to extract a confession, to locate evidence and, for that matter, for any other purpose at their whim.
[58] Compliance with s. 503 is not simply a matter of form. Nor does it matter that the appellant may not likely have been released by a justice of the peace while the bedpan vigil search was being conducted. If the police had complied with s. 503, the manner in which the appellant continued to be detained would have been subject to court supervision. The appellant's detention would have changed from being a detention pursuant to the execution of the general warrant to a court-monitored detention that ensured the ongoing protection of the appellant's Charter rights.
[59] The valid investigative purpose that the bedpan vigil search serves is not undermined by compliance with s. 503. As the Crown recognized, it would have been open to the police to take the appellant before a justice by telephone. Moreover, a justice can remand an arrested individual to prison for up to three days at the request of the prosecutor under s. 516 of the Criminal Code. "Prison" is defined in s. 2 of the Code as including a "lock-up", and therefore the cells at the police station would appear to come within that definition. The police could have telephoned a justice of the peace and asked for the appellant to be remanded into their custody at the police station for up to three days, or until the appellant had expelled the drugs from his rectum, whichever was sooner.
[60] For this reason, I also cannot accept the Crown's submissions that there was a violation of s. 503 only after the appellant had been detained for 24 hours and, consequently, that there was no violation of s. 8 in obtaining the drugs excreted prior to 24 hours having elapsed.
[61] First, s. 503 requires that the appellant be brought before a justice of the peace "without unreasonable delay", not just within 24 hours. Instead, 24 hours represents the outer limit: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p. 256 S.C.R. Given the apparent availability of a telephone appearance, the Crown's argument must be rejected.
