R. v. Gledhill

Date: September 15, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mark Gledhill

Before: Justice John North

Reasons for Judgment: September 15, 2020

Counsel

C. Ponesse — counsel for the Crown

M. Gledhill — self-represented

NORTH J.

I. INTRODUCTION

1Mark Gledhill is charged with six counts of refusing to comply with the boundary condition of a probation order, contrary to s. 733.1(1) of the Criminal Code. It is alleged that Mr. Gledhill violated the boundary condition on the following dates in 2017: October 11th; October 27th; October 30th (x2); November 3rd; and November 6th.

2Mr. Gledhill is also charged with one count of failing to attend court on September 26, 2016, contrary to s. 145(2)(a) of the Criminal Code.

3The Crown elected to proceed summarily on all counts.

4The matter proceeded as a blended Charter application and trial. With the exception of Mr. Gledhill's testimony, the evidence of all of the witnesses was admissible on the Charter application and the trial proper. Mr. Gledhill testified twice – first, on the Charter application and then on the trial proper. It was agreed that Mr. Gledhill's testimony on the Charter application was not admissible on the trial proper.

5Mr. Gledhill argued that his rights under ss. 7, 8, 9 and 11(d) of the Charter had been violated. I previously dismissed the Charter application, with reasons to follow. I found that, on one occasion, Mr. Gledhill's rights under s. 9 had been infringed. I concluded that there was no merit to any of the other Charter arguments. I found that there was no basis to either exclude any evidence under s. 24(2) or enter a stay the proceedings under s. 24(1) of the Charter.

6These are my reasons on both the Charter application and the trial proper.

7Mr. Gledhill was self-represented throughout the trial. However, counsel was appointed pursuant to s. 486.3(3) of the Criminal Code to conduct the cross-examination of a complainant in an assault with a weapon charge. Later in the trial, at the request of the Crown, the assault with a weapon charge was dismissed.

8The primary focus of Mr. Gledhill's defence, apart from the Charter issues, was the argument that the Crown had not established the requisite mens rea for any of the alleged offences.

9At the outset, it may be helpful to set out three of my conclusions. I will explain why I arrived at these conclusions later in the reasons.

10First, I found that all of the security guards and police officers who were called as witnesses by the Crown provided credible and reliable evidence.

11Second, the evidence clearly established that Mr. Gledhill was within the area that was subject to the boundary condition on all of the dates that he was alleged to have violated that condition.

12Third, the evidence clearly established that Mr. Gledhill did not enter the courtroom for his trial on September 26, 2016.

13A relatively large number of witnesses testified at this trial. It is not necessary to conduct a detailed review of the testimony of all of the witnesses.

14In the following section, I provide some additional background and a brief summary of much of the evidence. After that, I review, in greater detail, the evidence of three witnesses: Jesus Rodriguez Santiago, Constable Steven Delottinville and Mr. Gledhill. Following that, I set out my credibility and reliability findings. Finally, I address the Charter issues and the issues on the trial proper.

II. EVIDENCE

15On April 2, 2015, after being found guilty of mischief contrary to s. 430(4) of the Criminal Code, Mr. Gledhill was sentenced by Zuker J. of the Ontario Court of Justice to a $500 fine and a three-year probation order. The probation order included a condition which required Mr. Gledhill to report to a probation officer within two working days. The probation order also included a boundary condition. The boundary condition provided as follows:

"Not to be in the area bounded by Bloor Street to the north, King Street to the south, University Avenue to the west and Yonge Street to the east except with the prior permission of probation, for medical emergencies or attending court."

16Mr. Gledhill did not sign this probation order. Mr. Gledhill testified during this trial that a clerk of the court refused to provide him with an unsigned copy of the probation order.

17On January 9, 2016, Mr. Gledhill was arrested and charged with failing to comply with the probation order by not reporting to a probation officer within two working days. During this trial, Mr. Gledhill acknowledged that he did not report to a probation officer. Mr. Gledhill testified that he was not aware that the April 2, 2015 probation order included a reporting condition or a boundary condition.

18Mr. Gledhill testified that he did not receive a copy of the April 2, 2015 probation order until January, 2016, when it was included in the disclosure that he was given by the Crown for the charge of failing to report to a probation officer. Mr. Gledhill was self-represented on that matter.

19The failing to report to a probation officer charge was withdrawn by the Crown on July 17, 2018.

20During this trial, a number of CCTV recordings were introduced into evidence. During cross-examination, Mr. Gledhill stated as follows, "[t]he video surveillance says that I'm – says I'm there, but that doesn't prove intent to breach probation. That's what I've been saying all along." Even without Mr. Gledhill's position on this issue, based on all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Gledhill appears in each of these CCTV recordings in the locations and on the dates alleged by the Crown.

A. Fail to Attend Court – September 26, 2016

21On January 10, 2016, the day after he was arrested for failing to report to a probation officer, Mr. Gledhill was released on a recognizance. The recognizance required him to attend court on February 17, 2016, and "thereafter as required by the court in order to be dealt with according to law." On September 7, 2016, the court set a two-day trial to commence on September 26, 2016 in courtroom 123 at the Old City Hall courthouse.

22The Crown alleges that Mr. Gledhill failed to attend court for his trial on September 26, 2016. On that day, a bench warrant was issued for his arrest. During cross-examination on the trial proper, Mr. Gledhill testified that he was in the Old City Hall courthouse on September 26, 2016, but that he did not enter courtroom 123.

23Constables Steven Casasola and Tom Leney are Toronto Police Service (TPS) officers. Both testified at this trial. They were at the Old City Hall courthouse on September 26, 2016 to be witnesses on Mr. Gledhill's trial for the charge of failing to report to a probation officer.

24Both officers testified that they saw Mr. Gledhill outside of courtroom 123 before 10 a.m. According to the officers, they entered courtroom 123 when the trial judge arrived. Both officers testified that Mr. Gledhill was told on a number of occasions that he was required to enter the courtroom. However, Mr. Gledhill did not enter the courtroom. The trial judge requested that someone step into the hallway to tell Mr. Gledhill to enter the courtroom.

25Constable Leney testified that he walked out of the courtroom to convey the trial judge's direction, but Mr. Gledhill was no longer in the hallway. Constable Leney reported to the trial judge that he did not see Mr. Gledhill outside of the courtroom.

26The trial judge asked if someone would walk around the courthouse to see if Mr. Gledhill was still in the building. The officers spent about 30 minutes looking for Mr. Gledhill. After that, they advised the trial judge that they did not find him. The trial judge issued a bench warrant for Mr. Gledhill's arrest.

27I will review Mr. Gledhill's evidence as it relates to this count later in these reasons.

B. Fail to Comply with the Boundary Condition – October 11th, 27th, 30th (x2); November 3rd and 6th, 2017

1. October 11, 2017 – Bay Adelaide Centre

28On October 11, 2017, Jesus Rodriguez Santiago called 911 and reported that he had been assaulted by an unknown man in a public washroom located in the underground PATH system. The alleged assault occurred at 333 Bay Street, which is part of the Bay Adelaide Centre.

29Mr. Santiago testified that he took a photograph of the alleged assailant while they were in the washroom. It is not disputed that the person depicted in the photograph was Mr. Gledhill.

30CCTV recordings that were introduced into evidence show Mr. Gledhill and Mr. Santiago in the Bay Adelaide Center after they left the public washroom.

31Ermine Marshall, who was a security guard working at the Bay Adelaide Centre on October 11, 2017, testified that she dealt with Mr. Gledhill and Mr. Santiago while she was at the security desk on the main floor of 333 Bay Street.

32The evidence establishes that both the public washroom and the security desk at 333 Bay Street were in the area that was subject to the boundary condition.

33Mr. Santiago spoke with uniformed police officers about this matter. On October 19, 2017, he gave a statement to Constable Steven Delottinville of the TPS.

2. October 19, 2017 – Statement by Mr. Santiago to Constable Delottinville

34On October 19, 2017, Mr. Santiago met with Constable Delottinville of the TPS, who had been assigned to investigate this matter. Mr. Santiago provided Constable Delottinville with a statement and an electronic copy of the photograph that he had taken of the man who allegedly assaulted him.

35In an effort to identify the suspect, Constable Delottinville prepared a TPS news release which included a photograph of the suspect. The news release stated that the TPS "requests assistance identifying a man wanted in an assault with a weapon investigation." The news release included other information about the alleged assault and a description of the suspect.

36Constable Delottinville submitted a draft version of the news release to the Corporate Communications department of the TPS on October 25, 2017. It appears that this news release was added to TPSnews.ca on October 26, 2017. TPSnews.ca is a website operated by the TPS.

37As previously stated, I will review the evidence of Mr. Santiago, Constable Delottinville and Mr. Gledhill in more detail in the next section.

3. October 27, 2017 – Canadian Tire, 65 Dundas Street West

38On October 27, 2017, security staff at the Eaton Centre were contacted by a store manager at Mark's Warehouse. The manager advised that there was a man in the store who was wanted by the TPS. When a security guard, Charles Abrahams, arrived at Mark's Warehouse, the manager showed him the TPS news release regarding the alleged assault on October 11, 2017. The manager pointed to a man in the store. Mr. Abrahams testified that this man was the person whose photograph appeared in the TPS news release. The man in the store was Mr. Gledhill. Mr. Abrahams radioed the main security office and asked that uniformed paid duty TPS officers, who were working at the Eaton Centre, attend the store.

39Mr. Abrahams followed Mr. Gledhill to the Canadian Tire store, at 65 Dundas Street West. This is just west of Mark's Warehouse. Two uniformed paid duty TPS officers arrived at the scene.

40Constables Balaza Zanati and Marcel Lewis testified that they detained Mr. Gledhill as he was about to leave the Canadian Tire store. A short time later, Mr. Gledhill was placed under arrest and transported to 52 Division.

41Mr. Gledhill was charged with assault with a weapon. The evidence establishes that the Canadian Tire store at 65 Dundas Street West is within the area that was subject to the boundary condition.

42Much of the interaction between the two TPS officers and Mr. Gledhill was captured by a Canadian Tire CCTV camera. This recording was introduced into evidence.

4. October 30, 2017 – Bay Adelaide Centre

43Ajay Gaud, a security guard who was working at the Bay Adelaide Centre on October 30, 2017, testified that at approximately 6:00 p.m. he had a conversation with a man who had just walked out of a public washroom. The man complained to Mr. Gaud that he had witnessed sexual activities occurring in the washroom. Mr. Gaud reported this complaint to a supervisor.

44Later that evening, Mr. Gaud and his supervisor reviewed CCTV recordings taken from cameras located outside of the public washroom. Mr. Gaud testified that his supervisor recognized the man who had made the complaint. Bay Adelaide Center security had a "lookout" for this man, which stated that the police were to be called if the man was seen. The lookout included a photograph of the man. During cross-examination by Mr. Gledhill, Mr. Gaud testified that he believed that the lookout was created because "something happened on our property with you."

45CCTV recordings from the Bay Adelaide Centre were introduced into evidence. The CCTV recordings show Mr. Gledhill near a public washroom in the Bay Adelaide Center on October 30, 2017. This was in the area that was subject to the boundary condition.

5. October 30, 2017 – Canadian Tire, 65 Dundas Street West

46It is alleged that on October 30, 2017, Mr. Gledhill attended the Canadian Tire store at 65 Dundas Street West. Josip Martinovic, who is the manager of the Canadian Tire at that location, testified that Mr. Gledhill arrived at the store and requested to speak with him. Mr. Martinovic stated that Mr. Gledhill asked for a copy of the CCTV recording from the day he was arrested in the Canadian Tire. Mr. Martinovic testified that he told Mr. Gledhill that Canadian Tire would not provide him with a copy of the CCTV recording. Mr. Martinovic told Mr. Gledhill that he should contact the police.

47In court, Mr. Martinovic identified Mr. Gledhill as the man who requested the CCTV recording on October 30, 2017.

6. November 2, 2017 – Mr. Gledhill Attends 52 Division

48On November 2, 2017, Mr. Gledhill went to the front desk at 52 Division. He asked to speak to Constable Delottinville. This was the first time that Constable Delottinville met Mr. Gledhill. Constable Delottinville testified that during this conversation he told Mr. Gledhill that he would be arrested if he continued to enter the area that was subject to the boundary condition in his probation order. At trial, Mr. Gledhill asserted that Constable Delottinville told him that he would be arrested if he returned to 52 Division. In cross-examination, Constable Delottinville denied that he said that. Constable Delottinville did not charge Mr. Gledhill that day with breaching the boundary condition.

49I will address the evidence about what occurred on this day in more detail later in these reasons.

7. November 3, 2017 – 121 King Street, The Exchange Tower and The Bay Adelaide Centre

50David Kingston and Mohamed Isse testified that they saw Mr. Gledhill at 121 King Street West on November 3, 2017. 121 King Street West is an office building that is connected to the underground PATH system. Mr. Kingston and Mr. Isse are security guards who work at 121 King Street West. 121 King Street West is on the south side of King Street. It is not in the area that was subject to the boundary condition.

51Mr. Kingston was working on November 3, 2017. He testified that Christopher Sowa told him that he had just seen a man tearing down "wanted posters" in a nearby location. Mr. Sowa told Mr. Kingston that these posters had a photograph of the man who was tearing them down.

52Mr. Kingston testified that, at the time, he recalled reading "a similar article" on a Toronto news website about a man who was wanted by police. Mr. Kingston testified that he pulled up a picture of the "wanted man" from a website and showed it to Mr. Sowa. Mr. Sowa confirmed that it was the same man that he had just seen. Mr. Kingston called the police.

53Using the CCTV system in the building, Mr. Kingston saw this man "on the concourse going towards the men's washroom." Mr. Kingston added that he later saw this man "going towards the Exchange Tower."

54Two recordings taken by CCTV cameras in 121 King Street West from November 3, 2017 were introduced into evidence. Mr. Kingston confirmed that he viewed those recordings on November 3, 2017.

55The camera that captured the first recording was located in the concourse level of 121 King Street West. The camera was pointed towards a short walkway that leads to public washrooms. Mr. Kingston testified that in this recording Mr. Gledhill can be seen walking out of the men's washroom and that Mr. Isse is holding a nearby door open.

56The camera that captured the second recording was also located in concourse area of 121 King Street West. It was pointed in the direction of the Exchange Tower Tunnel. This tunnel connects 121 King Street West with the Exchange Tower. The tunnel is located beneath King Street. The Exchange Tower is located north of King Street West.

57Mr. Kingston testified that Mr. Gledhill and Mr. Isse can also be seen in the second recording. In this recording, Mr. Gledhill is walking north into the Exchange Tower Tunnel. Mr. Isse is walking a short distance behind Mr. Gledhill.

58Mr. Isse testified that just after lunch he was asked by Mr. Kingston to go to the men's washroom in the concourse area to monitor a suspect with a beard who was wearing a red t-shirt, blue jeans and white shoes.

59Mr. Isse testified that he waited around the washroom area for about 30 minutes. When a man who matched that description came out of the washroom, Mr. Kingston notified Mr. Isse by radio that this was the suspect.

60Mr. Isse testified that he followed Mr. Gledhill. According to Mr. Isse, Mr. Gledhill walked to the Exchange Tower and then to the Bay and Adelaide Centre.

61In court, Mr. Isse identified Mr. Gledhill as the man he followed to the Bay Adelaide Centre. Mr. Gledhill acknowledged that he was the person in the two CCTV recordings.

62Mr. Kingston called the TPS and advised that this man had just been at 121 King Street West.

63The Exchange Tower and the Bay Adelaide Centre are in the area that was subject to the boundary condition.

8. November 6, 2017 – 121 King Street West, The Exchange Centre and Scotia Plaza

64On November 6, 2017, security guards at 121 King Street West had reason to believe that Mr. Gledhill had returned to the same public washroom.

65Mr. Isse testified that he went into the washroom and saw shoes sticking out of a stall. Mr. Isse exited the washroom and waited outside.

66Mr. Isse testified that about 35 minutes later, Mr. Gledhill walked out of the washroom. A CCTV recording shows Mr. Gledhill exiting the washroom, with Mr. Isse standing nearby. Mr. Isse was wearing his uniform.

67Mr. Isse testified that he followed Mr. Gledhill as he walked north into the Exchange Tower Tunnel. A CCTV recording shows Mr. Gledhill walking into the Exchange Tower Tunnel, with Mr. Isse a short distance behind.

68Mr. Isse testified that Mr. Gledhill entered the concourse level of the Exchange Tower and First Canadian Place. According to Mr. Isse, Mr. Gledhill noticed that he was being followed and "kind of sprinted towards 40 King Street West." Mr. Isse testified that he stopped following Mr. Gledhill on the First Canadian Place side of the PATH tunnel to Scotia Plaza.

9. November 7, 2017 – Date of Arrest

69Mr. Kingston testified that on November 7, 2017, he had reason to believe that Mr. Gledhill was in a public washroom at 121 King Street West. Using the CCTV system, Mr. Kingston confirmed that Mr. Gledhill had entered the washroom. Mr. Kingston called Constable Delottinville to advise that Mr. Gledhill was in the building. Mr. Kingston testified that "we were told to call them directly when we saw Mr. Gledhill and they were going to arrest him."

70A short time later, Constable Delottinville and his partner arrived at 121 King Street West and entered the washroom. Two security guards stood outside to prevent anyone from entering. Constable Delottinville and his partner placed Mr. Gledhill under arrest. Mr. Gledhill was charged with breaching the boundary condition of the probation order.

III. EVIDENCE OF JESUS RODRIGUEZ SANTIAGO, STEVEN DELOTTINVILLE AND MARK GLEDHILL

A. Evidence of Jesus Rodriguez Santiago

71Mr. Jesus Rodriguez Santiago testified that shortly after 6:00 p.m. on October 11, 2017 he was walking in the underground PATH system in downtown Toronto. He entered a public washroom located in the PATH system.

72Mr. Santiago testified that there were three men the washroom when he entered it. Mr. Santiago testified that one of the men was "standing up doing absolutely nothing, facing toward the mirror…". Mr. Santiago said this man was rubbing his chin or goatee with his right hand. Mr. Santiago had never seen this man before. The second man was standing at a urinal and the third man was washing his hands at a sink.

73According to Mr. Santiago, after a few seconds, the first man started yelling, "you can't do this in here you faggots." Mr. Santiago testified that the first man repeatedly used this derogatory term. Mr. Santiago testified that this man also said things like, "I should die, I shall die, I shall not be able to live." According to Mr. Santiago, he was standing at a urinal when this happened. By this point, the second man and third men were standing closer to each other. One of these men, quickly buttoned up his pants, and left the washroom. According to Mr. Santiago, the third man "was doing up his pants in a very quick manner." Mr. Santiago did not observe what, if anything, the second man and third man had been doing before this.

74Mr. Santiago testified that he was scared and didn't know what was going on. He was not sure whether the first man's anger was just directed at the other two men or at all of them. Mr. Santiago testified that he initially pretended that nothing was happening, and he attempted to slowly exit the washroom.

75Mr. Santiago said that he found the man's comments uncomfortable and offensive. Mr. Santiago testified that as he was walking towards the exit to the washroom he told the man that he shouldn't be making derogatory remarks of that nature. According to Mr. Santiago, when he said this, he "raised his voice a little" but he was not aggressive.

76Mr. Santiago testified that he had his cell phone in his hand and took "a quick picture" of the man. He told the man that he was going to "report this."

77Mr. Santiago testified that the man "came towards me and I wasn't 100% sure he will be punching me or do anything." In cross-examination, Mr. Santiago agreed that, at one point, the man either said "you can't take a picture or me" or "don't take a picture of me."

78Mr. Santiago testified the man "kept telling at me all these words and then somehow he was more aggressive, more angry." According to Mr. Santiago, he told the man to stay away from him.

79Mr. Santiago testified that the man had a "backpack or something" on his right shoulder. According to Mr. Santiago, while holding the strap of the backpack, the man made a motion using his right arm and the bag that Mr. Santiago perceived as aggressive and intimidating. Mr. Santiago testified that the man "tried to hit me twice." Mr. Santiago testified that the man "somehow tried to use the bag as a weapon." According to Mr. Santiago, when the man did this, he was within an arm's length of Mr. Santiago.

80Mr. Santiago testified that the man and the backpack did not actually make contact with him. Later in his testimony, Mr. Santiago conceded that he did not know whether the man actually wanted to hit him or was just attempting to intimidate him.

81Mr. Santiago testified that he left the washroom and walked down a hallway to get away from the man. He said that he did know if the man was going to escalate the situation. According to Mr. Santiago, he wanted to find someone to help him.

82Mr. Santiago said that as he walked down the hallway, he believes that the man made contact with Mr. Santiago's left wrist or sleeve, but he was not sure. According to Mr. Santiago, the man was still angry and continued to make the same derogatory remarks.

83Mr. Santiago testified that when they were in the hallway, the man made another motion with his body and his bag. Mr. Santiago interpreted this as an aggressive act and "some kind of an attack."

84Mr. Santiago told the man that he was calling the police and to stay away from him. According to Mr. Santiago, the man went back towards the washroom.

85Mr. Santiago called 911 and spoke to an operator. He testified that as he was speaking to the 911 operator, the man walked by him and made another derogatory comment.

86Mr. Santiago followed the man from a distance and told the 911 operator where the man was located. Mr. Santiago testified that the man took an escalator to the main floor and walked to a security desk. The man spoke to a woman who was sitting at a security desk. Mr. Santiago testified that, after that, the man walked out of the building through a nearby exit.

87Mr. Santiago spoke with security officers about this incident before making a statement to the police. Mr. Santiago did not tell the security officers that the man had physically assaulted him.

88Mr. Santiago was on the phone with the 911 operator for approximately nine minutes. Early in the call, Mr. Santiago told the 911 operator that he was being verbally harassed and a man was making derogatory comments. Towards the end of the call, he said that the man had used his bag to threaten him.

89When he testified, Mr. Santiago was shown some CCTV videos. Mr. Santiago identified himself and the man who had been in the washroom with him. The videos show Mr. Santiago and the man after they left the washroom. At trial, it was not disputed that the other man who left the washroom and walked to the security desk at 333 Bay Street was Mr. Gledhill. The CCTV recordings from that day clearly show that the other man was Mr. Gledhill.

90Mr. Santiago testified that the public washroom was about a block north of King Street, between Bay Street and Yonge Street. Using a map of the PATH system, Mr. Santiago identified the location of the washroom.

B. Evidence of Steven Delottinville

91Steven Delottinville has been a constable with the TPS for over 20 years. In the fall of 2017, he was working in the Major Crime Unit at 52 Division. He was assigned to investigate an alleged assault that occurred on October 11, 2017. He received an occurrence that had been prepared by two uniformed TPS officers. Constable Delottinville testified that the information contained in the occurrence was "pretty bare bones at that point." He knew the name of the complainant and had a description of the suspect.

92On October 19, 2017, Constable Delottinville met with the complainant, Mr. Santiago. Constable Delottinville took a cautioned and sworn video statement from Mr. Santiago. Mr. Santiago told the Constable Delottinville that a man had assaulted him in a public washroom.

93Constable Delottinville testified that Mr. Santiago told him that, using his cell phone, he had taken a photograph of the person who had assaulted him. Mr. Santiago sent Constable Delottinville an electronic copy of the photograph.

94In an effort to identify the suspect, Constable Delottinville prepared a draft press release which included the photograph. On October 25th he submitted the draft press release to TPS Corporate Communications. It appears that the press release was added to TPSnews.ca on October 26, 2017.

95Constable Delottinville took scheduled leave from October 27nd to November 1st.

96While he was away from work, Constable Delottinville was contacted by people who told him that the "guy in your press release" had been arrested by TPS officers and charged with assault with a weapon. Constable Delottinville was told that the man's name was Mark Gledhill. At the time, Constable Delottinville did not know Mr. Gledhill.

97While Constable Delottinville was away from work, a number of people, including a bail supervisor and police officers, sent Constable Delottinville emails and other forms of communication in which they advised that they recognized Mark Gledhill as the person in the photograph from the press release.

98Constable Delottinville returned to work on November 2, 2017. He testified that the information that he received from people who had contacted him while he was away from work did not lead to the arrest of Mr. Gledhill.

99Constable Delottinville testified that he first met Mr. Gledhill on November 2, 2017. Mr. Gledhill arrived at the front desk at 52 Division and said that he wanted to speak with Constable Delottinville. Mr. Gledhill told Constable Delottinville that he wanted him to obtain the video from his arrest at the Canadian Tire store.

100Constable Delottinville testified that Mr. Gledhill told him that he had gone to the Canadian Tire store on 65 Dundas Street after he was arrested. Constable Delottinville testified that this was the first time that he was knew that Mr. Gledhill had violated the boundary condition of his probation order. According to Constable Delottinville, he told Mr. Gledhill that he could not go back to Canadian Tire because "it's within your boundary." Constable Delottinville testified that he told Mr. Gledhill:

"…you need to stop going inside the boundary. If I find out you've been going in that boundary again, you're going to be placed under arrest for breach of probation."

101Constable Delottinville testified that he exercised his discretion that day and did not immediately arrest Mr. Gledhill.

102In cross-examination, Constable Delottinville denied that he had threatened to arrest Mr. Gledhill for being at 52 Division. The 52 Division Police Station is not within the area that was subject to the boundary condition.

103Constable Delottinville testified that he later obtained information that Mr. Gledhill had violated the boundary condition on other occasions. Some of these alleged breaches occurred after Constable Delottinville had cautioned Mr. Gledhill not to enter the area covered by the boundary condition. Constable Delottinville testified that the investigation shifted after he obtained this information.

104According to Constable Delottinville, on November 6, 2017, David Kingston, a security guard at 121 King Street West, contacted police to advise that the man in the "wanted poster" had just been in the building. Constable Delottinville later reviewed the report that was prepared by the officers who responded to that call.

105Constable Delottinville testified that he met Mr. Kingston on November 7th at 121 King Street West. According to Constable Delottinville, he was there to interview witnesses and pick up CCTV recordings. Constable Delottinville testified that during this conversation Mr. Kingston told him that he was aware that Mr. Gledhill had been in the building on two occasions: November 3, 2017 and November 6, 2017.

106Constable Delottinville testified that Mr. Kingston said that he had previously called the police about Mr. Gledhill but that police officers had not arrived at 121 King Street West before Mr. Gledhill left the area. Constable Delottinville told Mr. Kingston to call him directly when security guards saw this man. Constable Delottinville returned to 52 Division.

107Later that day, Constable Delottinville received a call from Mr. Kingston, who advised that Mr. Gledhill was at 121 King Street West. As a result of receiving that information, Constable Delottinville went back to 121 King Street West. He was joined by his partner, Constable Mark Kennedy.

108When the officers arrived at 121 King Street West, they met Mr. Kingston in the lobby. Mr. Kingston took the officers down to the washroom area. Constable Delottinville testified that he and Constable Kennedy entered the washroom and found Mr. Gledhill inside. They placed Mr. Gledhill under arrest for breaching the boundary condition of his April 2, 2015 probation order.

109Constable Delottinville testified that he made the decision to arrest Mr. Gledhill on November 7, 2017 as Mr. Gledhill continued to violate the boundary condition.

C. Evidence of Mark Gledhill

1. Mr. Gledhill's Testimony on the Charter Application

110Mr. Gledhill testified on the Charter voir dire. Notwithstanding the guidance provided by the Court, much of Mr. Gledhill's testimony on the Charter application was made in the form of submissions on his interpretation of the law.

111In cross-examination, Mr. Gledhill agreed that on October 11, 2017, he was involved in a dispute with Mr. Santiago that started in a public washroom in the downtown area. He testified that during this dispute, Mr. Santiago took a photo of him while they were inside the washroom. Mr. Gledhill agreed that he was not in a stall when the photo was taken. Mr. Gledhill testified that, at the time the photo was taken, he was standing in front of a mirror.

112Mr. Gledhill stated that while he was in that washroom he was attempting "to prevent unlawful activity from being perpetrated in front of me." Mr. Gledhill testified that if he sees men engaged in activities that he perceives as inappropriate in public washrooms he will "have something to say about that" and when he does:

"…the smart gay guys leave. They don't provoke further incident which is what Rodriguez [Santiago] did on that day, by taking my photograph."

113In cross-examination, Mr. Gledhill explained that it was his position there had been an "unlawful search", because the police used his photographic likeness, which was taken in a public washroom without his consent, in the press release. Mr. Gledhill asserted that the police "could've used video surveillance from the property to do that. They didn't have to use my photographic likeness." Mr. Gledhill also testified that the police could not "use a photograph that they know was taken in an area where there is no video surveillance."

2. Mr. Gledhill's Testimony on the Trial Proper

114I will address Mr. Gledhill's testimony as it relates to the fail to attend court charge later in these reasons.

115Mr. Gledhill testified that on October 27, 2017 he was arrested and charged by the TPS.

116Mr. Gledhill testified that on November 1, 2017 he went to a downtown property located at 55 University Avenue. While there, he saw a piece of paper (or a "notice") taped inside three washroom stalls. The notice was a copy of the TPS news release that had been posted to TPSNews.ca.

117Mr. Gledhill testified that copies of this were posted at 55 University Avenue in November and December, 2017. Mr. Gledhill testified that, as he had already been arrested for the alleged assault, he did not know who had posted these notices or for what purpose.

118Mr. Gledhill said that someone had taken the photograph which appeared in the TPS news release and included it in a "notice", which was posted in Scotia Plaza. This notice stated "[p]reviously sought by police for assault" and mentioned information that had been contained in the TPS Bulletin. Mr. Gledhill testified that this notice had been posted in Scotia Plaza on numerous occasions in late 2017 to early 2018. He did not know who had posted these notices. He testified that he removed all of the notices.

119Mr. Gledhill suggested that the people responsible for leaving those notices might have been "members of the public who are guests to the property" who were upset that he had been "interfering with their…purported right to engage in unlawful activity." Mr. Gledhill explained that he had been "challenging" people who were engaged in sexual activities in public washrooms in the PATH system. It was Mr. Gledhill's view that whoever posted these notices were "aided and abetted by the police and occupiers to post notices that defame me and interfere with matters before this court."

120Mr. Gledhill testified that he did not comply with the conditions of the probation order because he did not know about them. According to Mr. Gledhill, he was never properly informed about the conditions in the probation order. He testified as follows:

"…the Crown Attorney's office didn't see fit to follow the Criminal Code respecting, you know, taking all reasonable steps to inform me. They passed the buck to MCSCS Probation, who they presumed would inform me of the contents of this, of this document [probation order]."

121Mr. Gledhill testified that he understood that he had an obligation to be in court on April 2, 2015 to be sentenced before Zuker J. He agreed that he appeared in court that day.

122He disagreed with Crown counsel's suggestion that on April 2, 2015 he heard the terms of the probation order being read out.

123In cross-examination, Crown counsel read a portion of the April 2, 2015 transcript to Mr. Gledhill. The following excerpt from the transcript of April 2, 2015 was put to Mr. Gledhill:

Mr. Flaherty (Crown): … judge, sir. So, what, what, sir, just so you know, maybe Madam Clerk, you can read out the conditions to Mr. Gledhill? Mr. Gledhill, stay, if you want to you can hear that there are exceptions to the boundaries that His Honour has ordered and so perhaps we could read that out, Madam Clerk?

Mr. Gledhill: Well, I don't…

Court Clerk: Okay.

Mr. Gledhill: … I don't see any – counsel, I don't see any reason for exceptions to the boundaries. The boundaries should be clearly defined, 777 Bay Street, as per the T.P.A. notice that I was unlawfully issued, 777 Bay Street, College Park.

Mr. Flaherty: Okay.

Mr. Gledhill: Nothing else.

Mr. Flaherty: So, so why don't we do this? Uh, Madam Clerk…

Mr. Gledhill: That's the boundary.

Mr. Flaherty: Sir, can you - would it be possible for Madam Clerk to read out the whole condition to you?

Mr. Gledhill: Okay.

Court Clerk: Okay.

Mr. Flaherty: Thank you.

Court Clerk: Not to be in the area bound by Bloor Street to the north, King Street to the south, University Avenue to the west, Yonge Street to the east, except with the prior permission of probation…

Mr. Gledhill: Nope.

Court Clerk: …for, for medical emergencies or attendance at court.

Mr. Gledhill: Nope, that's absent duty of care. I don't agree to that. So, issue your endorsement, Justice Zuker, and it's gonna end up in front of the Civil Court judge, okay.

[Emphasis added.]

124Mr. Gledhill testified that he was arrested on January 9, 2016 and charged with breaching a condition of the April 2, 2015 probation order by not reporting to a probation officer within two working days. He represented himself on that matter. He testified that he received the disclosure for that case in January, 2016. That disclosure included a copy of the April 2, 2015 probation order. Mr. Gledhill testified that "when I was arrested and charged [in January, 2016], and I was provided with the disclosure, that's when the Crown made me aware of the probation order." [Emphasis added.]

125During cross-examination, Mr. Gledhill confirmed on more than one occasion that he received and read the April 2, 2015 probation order in January, 2016. He acknowledged that he was made aware of the boundary condition long before October, 2017. Mr. Gledhill testified as follows:

"But January 2016, that's when I received notification about the – that's – that's when I had – that's when I gained knowledge of the contents of the probation order… on – in January 2016, not April 2, 2015." [Emphasis added.]

126In cross-examination, Mr. Gledhill testified that he attended 65 Dundas Street West (Canadian Tire), 22 Adelaide Street West (Bay Adelaide Centre), 130 King Street West (Exchange Tower) and 44 King Street West (Scotia Plaza) between April 2, 2015 and April 2, 2018.

IV. CREDIBILITY AND RELIABILITY FINDINGS

A. Crown Witnesses

127While a criminal trial is not a credibility contest, my assessment of the credibility of the witnesses is important and will affect the central findings that I am required to make.

128With one exception, I found all of the witnesses called by the Crown were entirely credible and reliable. I will deal with the one exception in a moment. No significant inconsistencies in the evidence of the other witnesses called by the Crown were revealed. Their evidence made sense. I found no basis to conclude that any of these witnesses had embellished their evidence or colluded with other witnesses. The testimony of a number of the witnesses called by the Crown was corroborated by CCTV recordings. The cross-examination of these witnesses did not reveal any problems that impacted on my assessment of their credibility or the reliability of their evidence. These witnesses were in positions to make the observations that they testified about. They were able to recount their evidence in a manner which supported the reliability of the evidence. All of the witnesses called by the Crown provided answers that were responsive to the questions that were asked in cross-examination.

129Mr. Gledhill argued that a number of the witnesses called by the Crown were not credible and that I should not rely on their evidence. He alleged that some of the security guards were "colluding and conspiring with each other." I found no basis in the evidence to make such a finding.

130Before I deal with the one Crown witness whose evidence, in one area, caused me some concern, I will address the evidence of Constable Matthew MacInnis. Mr. Gledhill, not Crown counsel, called Constable Matthew MacInnis as a witness to establish that his s. 9 rights had been violated on June 2, 2016. At times, Constable MacInnis appeared to be annoyed by some of Mr. Gledhill's questions. There were occasions when Constable MacInnis answered a question with a question, when no clarification appeared to be necessary. At times, he seemed to be sparring with Mr. Gledhill. To be fair, some of Mr. Gledhill's questions were long and difficult to follow. Further, Mr. Gledhill made at least one insulting comment that was directed at Constable MacInnis when the officer was testifying. While I found a s. 9 violation, I did not disbelieve the officer's account of what occurred that day.

131Mr. Santiago was the only witness called by the Crown whose testimony, in one area, I had some concerns about. His evidence about whether Mr. Gledhill made physical contact appeared somewhat inconsistent. The summary of the alleged assault, as described in the TPS news release, stated that the assailant struck Mr. Santiago several times with a black bag. During cross-examination by the lawyer appointed under s. 486.3(3), Mr. Santiago agreed that the man's black bag did not make contact with Mr. Santiago's body. At one point during his testimony, Mr. Santiago stated, "if I remember well he might have grabbed me from my sweater or something." Later in his testimony, Mr. Santiago acknowledged that, as there were a lot of things happening in that moment, he could not be certain that the unknown man actually grabbed his sweater or wrist.

132It is possible that Mr. Gledhill made contact with Mr. Santiago. However, on a balance of probabilities, I am not satisfied that there was physical contact. In my view, the uncertainty in this part of Mr. Santiago's evidence was likely the product of the stressful and frightening nature of the incident which occurred over 10 months before he testified. In my view, Mr. Santiago's ability to recall, with certainty, whether or not Mr. Gledhill actually made contact with him was affected by those circumstances. Having heard and considered Mr. Santiago's testimony, I have concluded this was not a credibility issue – it was a reliability issue.

133However, I accept that Mr. Gledhill initiated the confrontation in the public washroom. I accept that Mr. Gledhill was angry, yelling and aggressive. Mr. Gledhill made derogatory, homophobic and threatening comments to Mr. Santiago. I accept Mr. Santiago's testimony that Mr. Gledhill repeatedly referred to Mr. Santiago as a "fucking faggot" and said "…you shall die, you have no reason to live."

134I accept Mr. Santiago's evidence that he told Mr. Gledhill to stay away from him. I believe Mr. Santiago's testimony that Mr. Gledhill, using his upper body or his black shoulder bag, made a physically aggressive move towards Mr. Santiago. I accept that Mr. Santiago was threatened by Mr. Gledhill's behaviour and comments. There is some evidence to corroborate Mr. Santiago's testimony on these matters. Mr. Santiago called the police when he left the washroom. He was clearly upset. A CCTV video shows Mr. Gledhill, as he walked out of the hallway from the washroom area, quickly leaned forward in an aggressive manner at Mr. Santiago. At the time, Mr. Santiago was speaking on his cell phone with the 911 operator. When he leaned forward, Mr. Gledhill was inches from Mr. Santiago's face.

135I believe Constable Delottinville's testimony that he included the photograph that was provided by Mr. Santiago in the TPS news release in an effort to identify the unknown suspect of an alleged assault in a public washroom. I accept that Constable Delottinville was conducting a bona fide investigation and, subjectively, had reasonable grounds to believe that an assault with a weapon had occurred.

B. Mark Gledhill

1. Charter Application

136As I previously mentioned, Mr. Gledhill's testimony on the Charter application was primarily submissions on legal arguments. I did not consider Mr. Gledhill's testimony on the Charter application for any purpose on the trial proper, including my assessment of his credibility on the trial issues. I also did not consider Mr. Gledhill's testimony on the trial proper for any purpose on the Charter application.

2. Trial Proper

137For a number of reasons, I have concluded that Mr. Gledhill was not a credible witness.

138In cross-examination, Mr. Gledhill provided a number of answers that were not responsive to clear questions that were asked by Crown counsel. On more than one occasion, Mr. Gledhill had to be reminded by the Court to provide responsive answers. Some of these answers were very lengthy. On several occasions, he used questions as an opportunity to make speeches, rather than provide responsive answers. Several answers were argumentative.

139Some of Mr. Gledhill's answers were evasive. For example, in cross-examination, Crown counsel read a passage from the transcript of the April 2, 2015 sentencing hearing. Mr. Gledhill was asked whether he would agree, having had the passage from the transcript read to him, that he was in the courtroom on April 2, 2015 and that he heard the boundary condition that was read out by the court clerk. In response to that question, which was asked more than once, Mr. Gledhill smiled and repeatedly responded "If you say so." It is my conclusion that Mr. Gledhill did not want to provide a responsive answer to this question because he believed that it would be detrimental to his position that the Crown had not proven mens rea on the breach of probation charges.

140At times, Mr. Gledhill's evidence was inconsistent. For example, Mr. Gledhill provided a number of inconsistent explanations for why he did not enter courtroom 123 on September 26, 2016. I will address those inconsistencies later in these reasons.

141On a number of occasions, Mr. Gledhill suggested that Zuker J. imposed a discharge after finding him guilty of mischief. It is unclear to me why Mr. Gledhill believes that. The transcript from the sentencing hearing, the certified copy of the information and an agreed statement of facts all indicate that Zuker J. sentenced Mr. Gledhill to a $500 fine and probation for three years. In assessing Mr. Gledhill's credibility, I give no weight to Mr. Gledhill's apparent belief that Zuker J. imposed a discharge. While Mr. Gledhill's criminal record is a relevant factor in assessing his credibility, I gave it very little weight.

142In the reasons that follow, I will make more specific credibility findings.

143While I have found that Mr. Gledhill was not a credible witness, a criminal trial is not a credibility contest. As Mr. Gledhill testified, I must follow the approach set out in R. v. W.(D.), in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt.

V. THE CHARTER APPLICATION

A. Introduction

144Mr. Gledhill argued that his Charter rights under ss. 7, 8, 9 and 11(d) had been infringed. Mr. Gledhill took the position that the appropriate remedy for the alleged Charter violations was a stay of proceedings under s. 24(1) of the Charter. Alternatively, Mr. Gledhill argued that the Court should exclude "all Crown actus reus evidence", pursuant to s. 24(2) of the Charter. This evidence includes CCTV recordings and viva voce evidence from Crown witnesses.

145Mr. Gledhill filed multiple Charter Application Records. Ultimately, Mr. Gledhill relied on the written arguments he made in an Application Record dated September 27, 2019 and his oral arguments made on September 17, 2019 and October 1, 2019. On September 17th, Mr. Gledhill stated that the Court could "set aside" all of the written applications and materials that he previously filed in support of his Charter arguments, as the factum dated September 16th "superseded" all earlier written arguments.

146During the course of the trial, Mr. Gledhill raised Charter issues that he did not appear to pursue during his final written and oral submissions. Given Mr. Gledhill's position on September 17, 2017, it is not necessary to address every issue that Mr. Gledhill brought up during this trial. However, it was not entirely clear to me whether Mr. Gledhill abandoned certain arguments. Where that is the case, out of an abundance of caution, I will address those arguments.

147At the outset, I should note that Mr. Gledhill's position on the admissibility of the CCTV recordings evolved. Initially, he was seeking to have all of the CCTV the recordings excluded. However, on the day that counsel appointed under s. 486.3(3) attended, I was advised by the s. 486.3(3) counsel that:

"So I was able to discuss with Mr. Gledhill his application to exclude surveillance video, for October the 11th that is. So he will not be proceeding with that application and he has permitted me to advise you that the defence, in accordance with the materials that he has provided you, is with respect to his knowledge of being bound by that probation order, and that's why exclusion of the video wouldn't, wouldn't advance that defence. But it would be helpful with respect to the assault with a weapon charge and cross-examining the civilian witness. And so he's not making the application to exclude the surveillance on October the 11th." [Emphasis added.]

148In assessing credibility issues on a Charter application, the principles set out in R. v. W.(D.), do not apply. On a Charter application, the guilt or innocence of an accused is not being decided and the criminal standard of proof does not apply: R. v. Stewart, 2019 ONCJ 78, at para. 8.

B. Section 8

149Mr. Gledhill advanced several arguments in support of his s. 8 application.

1. The Photograph and the TPS Press Release

150Mr. Gledhill argued that his rights under s. 8 of the Charter had been infringed because the police used the photograph that was taken by Mr. Santiago in a TPS press release.

151He argued that police should not have used this photograph in the press release, as it was taken without his consent, in circumstances where he had a reasonable expectation of privacy. Mr. Gledhill asserted that "I have a reasonable expectation of privacy – there's a reasonable expectation of privacy when I'm in a public washroom."

152Mr. Gledhill argued that the only reason the breach of probation charges were brought:

"…was because the police used my photographic likeness and posted it to social media and that's how they identified me. They didn't identify me through proper means. They identified me through improper means."

153Mr. Gledhill argued that the CCTV recordings were "improperly obtained evidence", and should be excluded.

Law

154Section 8 of the Charter provides that "[e]veryone has the right to be secure against unreasonable search or seizure."

155Section 8 is only engaged if there has been a "state action" that implicated a person's reasonable expectation of privacy: R. v. Drakes, 2009 ONCA 560, at para. 13; R. v. Cole, 2012 SCC 53 (CanLII), [2012] 3 SCR 34, at para. 34.

156Once it has been determined that state action was involved, there are two stages to a s. 8 analysis: R. v. Jones, 2017 SCC 60 (CanLII), [2017] 2 SCR 696, at para. 11.

157At the first stage, an applicant must show that "a state act constituted a search or seizure because it invaded his or her reasonable expectation of privacy in the subject matter of the search": Jones, at para. 11.

158State conduct will be considered a search or a seizure within the meaning of s. 8 where a court concludes that an applicant had a reasonable expectation of privacy in the subject matter: R. v. Spencer, 2014 SCC 43 (CanLII), [2014] 2 SCR 212, at para. 16. In other words, "…there is no 'search and seizure' within the meaning of s. 8 if the claimant cannot demonstrate a reasonable expectation of privacy": R. v. Mills, 2019 SCC 22, at para. 12.

159In determining whether an applicant's subjective expectation of privacy is objectively reasonable, a court must consider the "totality of circumstances": Jones, at para. 13; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, at paras. 31 and 45. This is so, "whether the claim involves aspects of personal privacy, territorial privacy or informational privacy": R. v. Patrick, 2009 SCC 17 (CanLII), [2009] 1 SCR 579, at para. 26. The analysis "always requires close attention to context": Patrick, at para. 26.

160The need for privacy "can vary with the nature of the matter sought to be protected, the circumstances in which and the place where the state intrusion occurs, and the purposes of the intrusion": R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 SCR 20, at p. 53. See also Patrick, at para. 38.

161The reasonable expectation of privacy standard is not a purely factual inquiry: Spencer, at para. 18. The standard is normative, and while factual context is important, the analysis is "laden with value judgments about the long-term consequences of government action for the protection of privacy": Patrick, at para. 14.

162At the second stage, the "claimant must show that the search or seizure was itself unreasonable": Jones, at para. 11. A reasonable expectation of privacy can only be subject to state intrusion under the authority of a reasonable law: Cole, at para. 9. A search or seizure will be reasonable if it was authorized by law, the law itself was reasonable, and the search or seizure was carried out in a reasonable manner: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, at p. 278; Spencer, at para. 68. The party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145.

There Was No Search or Seizure for the Purposes of Section 8

163Mr. Santiago was not acting as an agent of the state when he took Mr. Gledhill's photo. The photo was not taken at the direction or request of the TPS. Assuming, without deciding, that the police using the photo in the press release constituted state action for the purposes of s. 8, I have concluded that Mr. Gledhill had no reasonable expectation of privacy and his s. 8 rights were not infringed.

164There is no question that a person has a "high reasonable expectation of privacy in a washroom stall": R. v. Williams, 2019 ONSC 5583, at para. 22. The police "cannot go around randomly peering into occupied stalls with a view to investigating criminal activity": Williams, at para. 22. That is not what happened here.

165The content of a photo, and how it was taken, are relevant to the question of whether the photo was obtained and used in breach of privacy interests that would reasonably arise. In my view, the content of the photo taken by Mr. Santiago does not support the conclusion that it was taken - and later used by the TPS - in circumstances in which Mr. Gledhill had a reasonable expectation of privacy. The photo did not depict Mr. Gledhill involved in a highly personal or otherwise embarrassing activity. Mr. Gledhill was fully clothed. The photo did not depict intimate parts of his body. The photo had no sexual aspect to it. The photo was not taken inside a washroom stall. Mr. Gledhill was standing near the exit of a public washroom.

166The photo did not depict highly revealing and meaningful information about Mr. Gledhill's personal life. The photo did not involve information that went to the biographical core of Mr. Gledhill's personal information.

167Other circumstances surrounding the taking of the photograph support the conclusion that Mr. Gledhill had no reasonable expectation of privacy. I have concluded that Mr. Gledhill initiated the confrontation in the public washroom. Mr. Gledhill made demeaning and homophobic remarks that were directed at Mr. Santiago. He was yelling and aggressive. As Mr. Gledhill was being verbally abusive, he made a quick physical movement forward, while in close proximity to Mr. Santiago. It is my conclusion that Mr. Gledhill intended to intimidate and threaten Mr. Gledhill. I accept Mr. Santiago's evidence that he was fearful. It is not objectively reasonable for Mr. Gledhill to have an expectation of privacy in those circumstances.

168After Mr. Santiago provided a statement to Constable Delottinville, the officer had reasonable grounds to believe that an assault with a weapon had occurred.

169Having found that Mr. Gledhill had no reasonable expectation of privacy, it is not necessary to consider the second stage of the s. 8 analysis.

170Mr. Gledhill's rights under s. 8 were not infringed by the TPS including his photograph in the press release.

2. CCTV Recordings from 121 King Street West

171Mr. Gledhill made two s. 8 arguments that were specific to the CCTV recordings from 121 King Street West. The first argument was that his s. 8 rights were infringed because security guards at 121 King Street West used the building's CCTV system to monitor his activities and then reported what they saw to the police. Mr. Gledhill argued that the police were required to obtain prior judicial authorization to "surveil my comings and goings" at 121 King Street West.

172For the following reasons, I do not accept this argument.

173First, the security guards were not acting as agents of the state. This was not a situation where the state installed or directed the installation of cameras. The CCTV cameras would have been recording even if the police had never spoken to the security guards. The security guards had information about a person who was suspected to have committed a crime in a location not far from 121 King Street West. This would reasonably have been of interest to security guards at 121 King Street. During the course of their duties as security officers they saw Mr. Gledhill and contacted the police. This did not make the security guards agents of the state.

174Second, Mr. Gledhill did not have a reasonable expectation of privacy in these circumstances. Some kinds of visual recordings in public places are to be expected: R. v. Jarvis, 2019 SCC 10 (CanLII), [2019] 1 SCR 488, at para. 62. However, whether a person can reasonably expect privacy is not determined simply on the basis of whether there was a risk that the person would be observed or recorded: Jarvis, at para. 68.

175Having said that, in my view, an important consideration in the analysis is that, by 2017, most people understood that in a public setting like the underground PATH system they may be subjected to video surveillance from security cameras: R. v. Yu, 2019 ONSC 942 (CanLII), at para. 124.

176I have concluded that, given all of the circumstances, Mr. Gledhill did not have a reasonable expectation of privacy.

177In any event, even if I had concluded that Mr. Gledhill's rights under s. 8 had been violated as a result of the police not obtaining prior judicial authorization at 121 King Street West, I would not have excluded any evidence under s. 24(2): Yu, at paras. 144-156.

178The second s. 8 argument made by Mr. Gledhill regarding the CCTV videos from 121 King Street West was that it would be contrary to public policy, and a violation of his s. 8 rights, for the court to rely on CCTV recordings that were obtained as a result of information that was provided to the police from a complainant in an assault charge that was dismissed at the request of the Crown. Mr. Gledhill argued that to permit the Crown to make use of the CCTV recordings "supports public mischief and mischief to property" as the complainant was a "liar." I do not agree. First, I did not conclude that Mr. Santiago was a "liar." Second, the police are entitled, as part of a bona fide investigation, to rely on information provided to them by a person who is later found to have credibility or reliability issues. At the time Constable Delottinville obtained the statement and photograph from Mr. Santiago, he had no reason to doubt the accuracy of Mr. Santiago's account.

C. Section 9

179Mr. Gledhill argued that he was arbitrarily detained on June 2, 2016, contrary to s. 9 of the Charter.

180On that day, officers from the TPS attended Commerce Court at 199 Bay Street in response to a radio call. A security officer called 911 and advised that a "possible wanted person" was at that location. Constable Matthew MacInnis, one of the officers who responded, testified that at the time the radio call was received he did not know why the person was "wanted."

181Mr. Gledhill was initially detained by police officers to determine if there was a warrant for his arrest. Constable MacInnis testified that when it was determined that there were no warrants outstanding, "that detention ended." Mr. Gledhill does not suggest that the detention to this point was arbitrary. However, as Constable MacInnis agreed, the detention continued for a few minutes after it was determined that there were no outstanding arrest warrants.

182Constable MacInnis testified that a security guard told Mr. Gledhill that he was going to be served with a Trespass to Property Act notice with a one-year prohibition. According to Constable MacInnis, Mr. Gledhill told the security guard that they cannot "trespass him and that he doesn't recognize their authority." Constable MacInnis told Mr. Gledhill that the security guard had the authority to issue the notice. Constable MacInnis testified that Mr. Gledhill made some comments in response. During the cross-examination of Constable MacInnis, Mr. Gledhill denied making any of the statements attributed to him.

183According to Constable MacInnis, upon hearing what Mr. Gledhill said, the security guard served a trespass notice on Mr. Gledhill with a three-year prohibition.

184In explaining why Mr. Gledhill's detention continued after it was determined that there were no outstanding warrants, Constable MacInnis testified as follows during the cross-examination by Mr. Gledhill:

• "…in good faith I stood by and kept the peace while he [the security officer] conducted his job."
• "I stood by, detained you and for the investigation of trespassing they issued your notice."
• "I facilitated them [the security officers] investigating you regarding being on their property."
• "They wanted to deal with a trespassing issue. I facilitated it as a peace officer, then I left."

185I was not pointed to a specific statutory authority that authorized the second detention.

186The onus is on the Crown on both stages of the ancillary powers doctrine: Fleming v. Ontario, 2019 SCC 45, at paras. 46-48.

187I accept that Mr. Gledhill was upset that a security officer was attempting to issue a trespass notice. Given the circumstances, Constable MacInnis was fulfilling his duty to preserve the peace by remaining in the area. However, based on the evidence and arguments that I heard, the Crown did not discharge its onus under the ancillary powers doctrine.

188I am not satisfied that there was a lawful statutory or common law power that authorized the continuation of the detention by the police after the conclusion of the Criminal Code investigation. I have concluded that Mr. Gledhill's s. 9 rights were violated.

D. Sections 7, 11(d) and Abuse of Process

189Mr. Gledhill made a number of arguments in support of his position that there had been an abuse of process in this case and that his rights under ss. 7 and 11(d) of the Charter had been violated.

190I will deal with each of those arguments in this section.

191In short, I found no basis to find that Mr. Gledhill's rights under s. 7 or s. 11(d) had been infringed. There was no foundation to establish either category of abuse of process: R. v. Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, at paras. 38-42.

Argument One

192Mr. Gledhill suggested that members of the TPS and the Crown Attorney's office had, over the course of several years, engaged in an abuse of process by charging and prosecuting Mr. Gledhill for similar offences that they knew were without merit.

193Mr. Gledhill pointed to the fact the Crown had withdrawn charges of a similar nature against him in the past. Mr. Gledhill argued that this supports his position that the police and the Crown engaged in improper conduct in this case. He asserted that these charges were brought in an effort to make him "cave" and ultimately plead guilty.

194There is no reasonable evidentiary basis to conclude that the actions of the police or the Crown in any of these cases, including the charges in the case at bar, were motivated by improper purposes. In these circumstances, there is no merit to the suggestion that the Court should draw a negative inference based on the Crown withdrawing charges against Mr. Gledhill on other occasions. To make such a finding would require the court to engage in speculation. In my view, Weiler J.A's reasoning in R. v. Thompson, 2015 ONCA 800, at paragraph 50 is applicable to this case:

"Drawing a negative inference from the withdrawal of charges against Mr. Simpson would require this court to engage in speculation, because the Crown is not obliged to give reasons for the exercise of its prosecutorial discretion: see R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at pp. 410-11. Such speculation cannot establish arbitrary or improper motives for which a s. 24 Charter remedy would lie: see R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 36."

Argument Two

195Mr. Gledhill asserted that his Charter rights were violated on October 27, 2017 by two uniformed TPS officers who were working a "paid duty" shift at the Eaton Centre. These officers responded to a request for assistance at Mark's Warehouse. This call led them to the Canadian Tire store.

196Mr. Gledhill argued that when the officers arrested him they were acting outside of the scope of their authority as paid duty officers who had been contracted by Cadillac Fairview. By the end of the trial, it was unclear to me whether Mr. Gledhill had abandoned this argument. In the event that he did not abandon this argument, for the following reasons, I reject it.

197First, the fact that the TPS officers were working a paid-duty shift at the Eaton Centre did not negate their authority and responsibilities under the Police Services Act. They were still police officers. A police officer has the authority to enter a business establishment that is open to the public with an implied invitation to enter: R. v. Lam, 2014 ONSC 3538, at para. 280; R. v. Fitt, 1995 NSCA 47 (CanLII), [1995] N.S.J. No. 83 (NSCA), at paras. 12, aff'd 1996 CanLII 251 (SCC), [1996] SCJ 6; R. v. Kouyas, 1994 NSCA 244 (CanLII), [1994] N.S.J. No. 567, at paras. 13-14, aff'd [1996] SCJ 6.

198Based on information the TPS officers received, the officers had a lawful basis to arrest Mr. Gledhill when he was in the Canadian Tire store.

199During the cross-examination of Constable Marcel Lewis, Mr. Gledhill initially took the position that a uniformed TPS officer who was working a paid duty shift at the Eaton Center could not cross the street to provide assistance to a person who needed it. That position is obviously devoid of any merit. Indeed, Mr. Gledhill later stated, "of course" he was not taking this position. Mr. Gledhill went on to state that within the context of this case "the only enforcement authority that the TPS has is under the Provincial Offences Act and the Trespass to Property Act."

200Second, both Constable Lewis and Constable Zanati testified that when they reported for their paid duty shift they were told to conduct a general patrol in the main area of the Eaton Center, Mark's Warehouse and Canadian Tire. I accept their evidence. On October 27, 2017, both officers were being paid by Cadillac Fairview to patrol these areas.

201Third, Josip Martinovic, the General Manager of the Canadian Tire store at 65 Dundas Street West, testified that the owner of the store prepared a letter, many years ago, which stated that "the police are welcome to be on our property." I accept his evidence.

202There is simply no reasonable basis to conclude that the TPS officers were acting outside their lawful authority when they entered the Canadian Tire store and arrested Mr. Gledhill.

Argument Three

203The third argument is similar to the second argument. Mr. Gledhill took the position that, "[t]he only authority that TPS has on private property, in my view, is Provincial Offences Officer [sic]." The private property that Mr. Gledhill was referring to includes the Canadian Tire store on Dundas Street, the underground PATH system and public areas of office towers in downtown Toronto.

204There is no merit to this argument. These areas are open to the public. I see no basis to conclude that the police officers in this case were unlawfully in any of the locations mentioned by Mr. Gledhill. Once again, a police officer is lawfully permitted to enter an area of a premises to which the public is impliedly invited.

205Further, there was no evidence that any of the owners objected to the police officers entering their property.

Argument Four

206Mr. Gledhill argued that a number of the witnesses who were not police officers had been involved in "many facets of misconduct." As I understand his position, this argument was relevant to an assessment of both the credibility of some of these witnesses and to the Charter application.

207Mr. Gledhill asserted that that Nicola Lisi, who was employed by the Private Security and Investigative Services Branch of the Ministry of Solicitor General, failed to comply with rules and regulations regarding security guards. There was no basis to make such a finding.

208Mr. Gledhill took the position that a number of security guards who were witnesses in this case had engaged in unlawful behavior. Assuming that any of these witnesses could be considered state actors for the purpose of the Charter, I found no basis to conclude that any of them engaged in any form of misconduct or violated any statutory provisions that applied to them. Again, I found all of these witnesses were credible and provided reliable evidence.

209Mr. Gledhill argued that security guards had improperly given statements to the police about him. During the cross-examination of Constable Delottinville, Mr. Gledhill took the position that security guards are not permitted to supply the police with information about Criminal Code investigations unless the investigation relates to "public mischief and interference to property." Mr. Gledhill asserted that security guards are "not supposed to be telling you [the police] stories about me when I haven't been convicted of anything and I'm presumed innocent…". There is no merit to this argument. The security guards that Mr. Gledhill takes issue with were witnesses in a criminal investigation. There is no reason why the security guards could not speak to the police about these matters.

210During the cross-examination of Mr. Isse, Mr. Gledhill suggested that Mr. Isse had peered into a washroom stall that Mr. Gledhill was using. In response to this suggestion, Mr. Isse stated, "I would never –that's unprofessional, I would never do that." I accept Mr. Isse's evidence. I find that Mr. Isse did not peer into Mr. Gledhill's stall.

211In considering this issue as it relates to 121 King Street West, some additional context may be helpful. Concerns had been expressed about Mr. Gledhill's frequent presence and conduct in a public washroom at 121 King Street West. Security guards had received a report that Mr. Gledhill had been seen in a nearby building tearing notices down - these notices indicated that the TPS was seeking assistance to identify a man wanted for assault in a public washroom in the PATH system. Later, the security guards were advised that the police were going to arrest Mr. Gledhill. The security guards at 121 King Street West had a reasonable basis to maintain an awareness of Mr. Gledhill's presence in that building. As I stated when I addressed the s. 8 claim, I have concluded that the security guards at 121 King Street West were not acting as agents of the state. None of the actions of the security guards at 121 King Street West were unlawful or inappropriate.

Argument Five

212Mr. Gledhill asserted that the conduct of the TPS and the Crown Attorney's office resulted in an abuse of process by charging and prosecuting Mr. Gledhill for offences that they knew could not be proven because there was no evidence of mens rea. Mr. Gledhill argued that the Court should enter a stay of proceedings because the prosecution was a "vexatious abuse of the Court's process of s. 7 and 11(d) of the Charter." I do not accept this argument. As I will explain in more detail when I address the trial proper issues, I am satisfied that there is admissible evidence of mens rea.

Argument Six

213Mr. Gledhill asserted that the police and the Crown had been "vexatious" by charging and prosecuting him, on multiple occasions, for breaching the boundary condition of his probation order. Mr. Gledhill argued that it was an abuse of process to charge him "again and again with the same offence." Mr. Gledhill argued that that there was state misconduct because:

"…you don't go around having the police file multiple charges subsequent to a charge that has already been filed and hasn't been disposed of yet."

214Mr. Gledhill also asserted as follows:

"The vexatiousness comes in with the repeated charges being laid when you know that there's a matter before the court that's supposed to address that specific issue."

215I do not accept this argument. The police had reasonable and probable grounds to believe that Mr. Gledhill had committed a criminal offence for each alleged breach of the boundary condition. Where there are reasonable grounds to believe that a person has repeatedly violated the same condition of a probation order, the police are not required to wait until the conclusion of the trial on the first alleged breach before charging the person for subsequent breaches. There was nothing vexatious about the conduct of the police or the Crown.

Argument Seven

216Mr. Gledhill argued that there had been an abuse of process because, during the course of the investigation, security guards had spoken to police officers about this matter and because police went on "private property" to speak with security officers "about matters that are before the court."

217Mr. Gledhill asserted that by asking potential witnesses if they knew or recognized a person who was suspected of committing a criminal offence, the police had engaged in inappropriate behaviour. Mr. Gledhill also argued that the police had no right to tell others, including a security guard at 121 King Street West, that Mr. Gledhill was breaching his probation order by being on a particular property. Mr. Gledhill asserted that "they don't have any right to do that. That's abuse of process."

218I do not agree with this argument. To perform their lawful duties, police officers are required to speak with potential witnesses. That is a fundamental part of their job. I found no basis to conclude that any of the communications between the police officers and security guards was improper. None of the police officers in this case attempted to improperly influence the testimony of other witnesses. I do not accept that the police officers provided any of the witnesses with inappropriate directions. There is no basis to find that communications that occurred between the police officers and other witnesses tainted or otherwise impacted on the integrity of the evidence given by those witnesses.

Argument Eight

219Mr. Gledhill alleged that the police officers involved in this case had engaged in other forms of misconduct.

220While I found that Mr. Gledhill's s. 9 rights had been violated, given the nature of, and circumstances surrounding, this infringement, the actions of Constable MacInnis do not even approach what I would characterize as police "misconduct."

221I do not need to decide whether it would be inappropriate and/or violate Mr. Gledhill's rights under the Charter if a TPS officer posted a copy of the TPS press release or the other "notice" in a public washroom in the PATH system. There is simply no evidence that anyone from the TPS posted the press release or the other "notice" in a public washroom in the PATH system. There is no evidence that any TPS officer encouraged anyone else to post these items in a public washroom.

Argument Nine

222Mr. Gledhill argued that his s. 11(d) rights had been violated because Crown counsel failed to give him sufficient notice that the Crown would seek to have three defence witnesses excused, pursuant to s. 700(2). It was also suggested that this resulted in an abuse of process.

223After Mr. Gledhill obtained subpoenas for three witnesses, Crown counsel applied pursuant to s. 700(2) of the Criminal Code to have these witnesses excused. In the end, I was not required to make a ruling on the Crown's application because "in the interest of time management" the Crown agreed that imposing time limits on the evidence of these witnesses would satisfy the Crown's concerns.

224Mr. Gledhill argued that "when the Crown makes an application and doesn't follow the rules for service in advance, it's breaching s. 11(d), that's an abuse of process."

225Having regard to the nature of the evidence that these witnesses were expected to give, the Crown's position on the s. 700(2) application was not at all unreasonable. It was difficult to see how any of these witnesses could give material evidence. In any event, there was no unfairness in the timing of the Crown's application. There was no prejudice to Mr. Gledhill as he was permitted to call the three witnesses. Mr. Gledhill's complaint about the timing of the application could not give rise to an abuse of process finding.

Argument Ten

226On a number of occasions, Mr. Gledhill suggested that Crown counsel had engaged in other conduct that was improper. There was no basis for this claim. Indeed, the fair manner in which this trial was prosecuted by Mr. Ponesse was entirely consistent with the high standard of conduct expected of Crown counsel: Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] SCR 16.

Argument Eleven

227Mr. Gledhill argued that Constable Delottinville violated his rights under s. 11(d) on November 2, 2017 when Mr. Gledhill was at 52 Division. Constable Delottinville told Mr. Gledhill that he would be arrested and charged if he returned to the area that was subject to the boundary condition. Mr. Gledhill argued that, as he had not been found guilty, Constable Delottinville violated his s. 11(d) rights by stating that Mr. Gledhill had breached the boundary condition. There is no merit to this claim. Constable Delottinville's caution did not violate Mr. Gledhill's rights under s. 11(d).

228In any event, Constable Delottinville had reasonable grounds to believe that Mr. Gledhill had violated the boundary condition. Instead of immediately arresting Mr. Gledhill, Constable Delottinville exercised his discretion in a reasonable manner and told Mr. Gledhill what would happen if he entered the area that was subject to the boundary condition.

229I do not accept that Constable Delottinville told Mr. Gledhill that he would be arrested if he returned to 52 Division.

Argument Twelve

230Mr. Gledhill suggested that Constable Delottinville violated his right to be presumed innocent by testifying that Mr. Gledhill had ignored the boundary condition. There is no merit to this argument. Constable Delottinville was a witness in this trial. The burden was on the Crown to prove, beyond a reasonable doubt, that Mr. Gledhill was guilty of the charges before the court. Constable Delottinville's testimony did not undermine the presumption of innocence.

E. Sections 24(1) and 24(2)

231I found one Charter violation. None of the evidence relied upon by the Crown could be said to have been "obtained in a manner" that violated any Charter rights: R. v. Pino, 2016 ONCA 389, at para. 36. There was no temporal, causal or contextual connection between the s. 9 breach and the evidence that Mr. Gledhill seeks to exclude. Indeed, the arbitrary detention was unrelated to the offences before the Court.

232There is no basis for a remedy under ss. 24(1) or 24(2).

233The application is dismissed.

VI. TRIAL PROPER

A. Legal Principles

234There are certain fundamental legal principles that apply to every criminal trial.

235In a criminal trial, an accused person is presumed to be innocent, unless and until the Crown establishes all of the essential elements of an offence beyond a reasonable doubt. Proof of probable or likely guilt does not satisfy the standard of proof beyond a reasonable doubt. Proof beyond a reasonable doubt falls much close to absolute certainty than to proof on a balance of probabilities: R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, at para. 242.

236A reasonable doubt is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, at para. 39.

237A court can believe some, none or all of what a witness says.

238A criminal trial is not a credibility contest. A trier of fact does not decide a criminal case based on which contradictory version of the evidence he or she believes is more reasonable.

239As there are credibility issues between the case for the Crown and Mr. Gledhill's evidence, when deciding whether the Crown has established the guilt of Mr. Gledhill beyond a reasonable doubt, I will apply the approach set out in R. v. W.(D.).

240A trial judge is not required to apply the W.(D.) framework in a rigid or formalistic manner. The "order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration": R. v. Vuradin, 2013 SCC 38 (CanLII), [2013] 2 SCR 639, at para. 21.

B. Fail to Attend Court

1. Law

241The offence of failing to attend court is a true criminal offence and it requires proof of mens rea. Mere carelessness will not support a conviction. The mental element for the crime of failing to attend court under s. 145(2)(a) is to be assessed subjectively: R. v. Zora, 2020 SCC 14, at para. 31.

242As s. 145(2)(a) requires proof of subjective fault, a person who raises a reasonable doubt about an honest but mistaken belief of fact cannot be found guilty: R. v. Weishar, 2003 CanLII 64247 (ONSC), at para. 38. Even a careless mistake may be sufficient to avoid a finding of guilt, if it "falls short of the 'deliberate' ignorance required to establish liability based on willful blindness": R. v. Withworth, 2013 ONSC 7413, at para. 13.

243However, honest mistakes that are legal in nature do not furnish a defence to a criminal charge: Withworth, at para. 15.

244The inclusion of a statutory defence of "lawful excuse" in s. 145(2)(a) provides an additional defence that would not otherwise be available to an accused: Zora, at para. 37. It is not to be confused with mens rea: Zora, at para. 37. The issue of lawful excuse only arises after the Crown has established all of the essential elements of the offence beyond a reasonable doubt: Weishar, at para. 38.

2. Analysis and Conclusion

245Mr. Gledhill testified that while he was at the Old City Hall courthouse on September 26, 2016 he did not enter courtroom 123. Based on all of the evidence, I am satisfied, beyond a reasonable doubt, that the Crown established the requisite actus reus.

246According to Mr. Gledhill, that morning he saw a number of people involved in his case "milling about outside" of courtroom 123. Mr. Gledhill testified that he decided to leave the courthouse without entering the courtroom.

247Crown counsel asked Mr. Gledhill why he did not enter the courtroom. Mr. Gledhill's initial response to this question was that the judge was late. He testified that he waited, "in good faith, for at least 45 minutes." Mr. Gledhill was asked whether he believed that it was his "right to determine when court starts." Mr. Gledhill responded as follows:

"No. But when it's understood that court is gonna begin at a certain time that, you know, time is money. And if I had a lawyer, a lawyer would be sitting around being paid to do nothing. So I guess it was fortunate that I was self-represented, and I didn't have to waste my money."

248Mr. Gledhill went on to suggest that he made a mistake about the date, and stated "so that's an honest mistake of fact." Mr. Gledhill testified as follows:

"…And just – just as everything else out of the Crown's evidence it's actus reus, it is not mens rea. It – the Crown has already asked me, and I said yes, I was there and yes, I failed to remain. But that does not prove that I intended not to attend court. They don't have any proof of that. And if the court accepts the, the Crown's evidence that I did in fact know that I was supposed to attend court and therefore I'm guilty on that charge, that I'm gonna plead honest mistake of fact, okay…"

249Later in his testimony, Mr. Gledhill stated that he left the courthouse without entering courtroom 123 because a justice of the peace:

"…remanded that matter to trial, and she didn't have the authority to do that."

250Mr. Gledhill testified that on September 26, 2016 he knew that his trial was scheduled to commence that day in courtroom 123. Mr. Gledhill later claimed that "…I reasonably expected I was there for a JPT, not a trial." Crown counsel asked, if Mr. Gledhill thought he was there for a judicial pre-trial, why did he leave the courthouse before finding out if it was going to happen. Mr. Gledhill responded as follows:

"…The reason I left was because I wasn't gonna be treated fairly."

251When asked by Crown counsel to explain what he meant when he said that he left the courthouse based on a "reasonable and fair mistake of fact", Mr. Gledhill provided the following answer:

"I presumed that you were gonna play it by the rules. That's what my error was."

252Mr. Gledhill went on to say:

"Once I – once I started talking to you and to the – and to everybody else who was outside the courtroom, maybe then I decided – maybe when I, when I originally showed up maybe I did intend to attend court, okay…

…I have no way of knowing that now, Your Honour. It's three years later. I don't know exactly what my thinking was at the time."

253I do not believe Mr. Gledhill's testimony that he did not know that he was required to enter courtroom 123 for his trial. I do not believe that he did not enter the courtroom based on a mistake of fact. I do not believe Mr. Gledhill's evidence that he thought that a justice of the peace had no authority to set a trial date.

254In short, I do not believe Mr. Gledhill's testimony about why he did not enter the courtroom for his trial. His explanations are inconsistent. His answers do not make sense.

255During the course of the trial, Mr. Gledhill appeared to suggest that a person cannot be convicted of the offence of failing to attend court where the Crown withdraws the underlying charge. However, at another point, Mr. Gledhill appeared to agree that an accused has an obligation to attend court, even on matters that are ultimately withdrawn. If it was Mr. Gledhill's intention to assert the former position, there is no merit to that argument. In Zora, at paragraph 2, Martin J. stated as follows in relation to the offence of breaching a bail condition under s. 145(3):

"Parliament made it a separate offence to breach bail conditions under s. 145(3) of the Code. This is a crime against the administration of justice and carries a maximum penalty of two years' imprisonment. Accused persons may therefore be subject to imprisonment under s. 145(3) if they breach a condition of their bail, even if they are never ultimately convicted of any of the crimes for which they were initially charged." [Emphasis added, footnotes removed]

256The same reasoning applies to a charge under s. 145(2)(a). An accused person may be convicted of failing to attend court contrary to s. 145(2)(a) even if they were not convicted of the charge that originally brought them to court in the first place.

257Based on the totality of the evidence, I am satisfied that Mr. Gledhill knew that he was required to enter courtroom 123 on September 26, 2016. I do not believe Mr. Gledhill's evidence that he did not know that he was required to enter the courtroom. I am not left with a reasonable doubt by Mr. Gledhill's evidence. I have concluded that the only reasonable inference is that Mr. Gledhill intentionally failed to enter the courtroom, knowing that he was required to enter the courtroom for his trial. After applying the framework in R. v. W.(D.), on the evidence that I do accept I am convinced that the Crown has proven all of the essential elements beyond a reasonable doubt. I am not left with a reasonable doubt that Mr. Gledhill had an honest but mistaken belief. I am satisfied beyond a reasonable doubt that Mr. Gledhill did not have a lawful excuse not to attend court as required that day.

258I find Mr. Gledhill guilty of failing to attend court, contrary to s. 145(2)(a) of the Criminal Code.

C. Breach of Probation

1. Law

259The Crown is required to prove subjective mens rea for the offence of failing or refusing to comply with a probation order: R. v. Docherty, 1989 CanLII 45 (SCC), [1989] 2 SCR 941, at pp. 950-52, Zora, at paras. 35, 50-51. The Crown must establish that the accused committed the breach knowingly or recklessly.

260It my view, having regard to the guidance provided by the Supreme Court in Zora with respect to the subjective mens rea requirement that applies to s. 145(3), subjective mens rea under s. 733.1 can be proven where the following elements are established by the Crown:

(i) The accused had knowledge of the conditions of their probation order, or they were willfully blind to those conditions; and

(ii) The accused knowingly failed or refused to act according to their probation conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were willfully blind to those circumstances, and failed or refused to comply with their conditions despite that knowledge; or

(iii) The accused recklessly failed or refused to act according to their probation conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their probation conditions and persisted in this conduct.

See Zora, at para. 109; Docherty, at pp. 957-58.

261An honest mistake of fact is a defence to the charge of breach of a probation condition. A mistake of law is not. A mistake of fact defence could be available where an accused genuinely forgot a probation condition. However, a mistake about the legal scope or effect of a probation condition is a mistake of law and would not afford a defence: Zora, at para. 114.

262The second element of the mens rea for s. 733.1 can be proven by showing that an accused acted knowingly or recklessly in breaching their probation condition: Zora, at para. 115. This means that the accused must be aware of, or willfully blind to, the factual circumstances requiring them to act - or refrain from acting – with their conditions at the time of the breach.

263The inclusion of a statutory defence of "reasonable excuse" in s. 733.1(1) provides an additional defence that would not otherwise be available to an accused: Zora, at para. 37. It is not to be confused with mens rea: Zora, at para. 37.

2. The Probation Order was Valid

264Section 732.2(1) of the Criminal Code provides that, subject to certain exceptions that have no application in this case, a probation order comes into force on the date it is made.

265Section 3.1 of the Criminal Code provides that, "unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing."

266Section 732.1(5) provides that the court that makes a probation order shall:

(a) cause a copy to be given to the offender;

(b) explain the conditions of the order and the substance of s. 733.1 to the offender;

(c) cause an explanation to be given to the offender of the procedure for applying for a change to the optional conditions and the substance of s. 732.2(3 and (5); and

(d) take reasonable measures to ensure that the offender understands the order and the explanations.

267Section 732.1(6) was added to the Criminal Code on October 1, 2008. The wording of this provision unambiguously provides that a failure to comply with the requirements set out in s. 732.1(5) does not affect the validity of the order.

268The fact that Mr. Gledhill did not sign the probation order does not affect the validity of the order: R. v. Ralf, 2020 ONCJ 230, at para. 13.

269I am satisfied beyond a reasonable doubt that the three-year probation order was valid and came into force on April 2, 2015.

3. Actus Reus

270Where an accused is charged with the offence of breach of probation, the Crown must prove that he or she committed an act that is prohibited by the probation order or that he or she failed to perform an act that is required by the order: R. v. C.D.C., [2004] N.J. No. 159 (P.C.), at para. 27.

271In this case, with one exception, CCTV recordings were tendered by the Crown for each of the breach of the boundary condition counts. The CCTV recordings from 121 King Street West did not show Mr. Gledhill in the area that was subject to the boundary condition. However, I accept Mr. Isse's testimony that on November 3rd and 6th he observed Mr. Gledhill in the area that was subject to the boundary condition.

272The Crown did not have a CCTV recording of Mr. Gledhill at the Canadian Tire store on October 30, 2017. However, based on Mr. Martinovic's in-court identification of Mr. Gledhill and his testimony about Mr. Gledhill's request for a copy of a CCTV recording of his arrest, I am satisfied, beyond a reasonable doubt, that Mr. Gledhill was in the Canadian Tire store at 65 Dundas Street West on October 30, 2017. I note that in his cross-examination of Mr. Martinovic, Mr. Gledhill did not suggest that Mr. Martinovic had identified the wrong person. When Mr. Gledhill testified, he did not suggest that Mr. Martinovic had identified the wrong person. As previously noted, the evidence establishes that the Canadian Tire store is in the area that was subject to the boundary condition.

273Based on all of the evidence, I am satisfied, beyond a reasonable doubt, that on each of the alleged offence dates Mr. Gledhill was in the area that was subject to the boundary condition.

4. Mens rea

274Mr. Gledhill argued that the Crown failed to establish, beyond a reasonable doubt, that he had the requisite mens rea to commit the offences under s. 733.1.

275To establish that Mr. Gledhill knew that he was subject to the boundary condition in the probation order, the Crown was not required to prove that Mr. Gledhill signed the probation order or that the Court sent him a copy of the order by registered mail. In any criminal case, there may be a number of ways that the Crown can prove an accused's knowledge or intent. This situation is no different.

276In reaching a verdict, a trier of fact may rely on direct and circumstantial evidence. A court may be satisfied as to an accused's knowledge based on an inference drawn from circumstantial evidence. Indeed, in many cases, an accused's knowledge or intent is not proven through direct evidence. Often, a trier of fact is asked to draw an inference of guilt based on circumstantial evidence: R. v. Beaver (1957), 1957 CanLII 14 (SCC), 118 CCC 129 (SCC); R. v. Tempelman, 2006 ONCJ 55, at para. 30; R. v. M.A.M., 2005 BCSC 1515, at para. 36; and R. v. Graham, 2016 ONCJ 698, at para. 120.

277In a case that involves circumstantial evidence, an accused can only be found guilty if the trier of fact is satisfied that the accused's guilt was the only reasonable inference that the totality of the evidence supported: R. v. Buchanan, 2020 ONCA 245, at para. 58; R. v. Villaroman, 2016 SCC 33 (CanLII), [2016] 1 SCR 1000, at para. 55.

278An inference of guilt must not be based on speculation. A trier of fact must not "fill in the blanks" or "jump to conclusions": Villaroman, at para. 29. Inferences must only be based on the evidence: R. v. Wuschenny, 2018 ONSC 6765, at para. 79.

279For the following reasons, I am satisfied beyond a reasonable doubt that Mr. Gledhill knew that he was subject to the boundary condition on each of the alleged offence dates. Indeed, I am satisfied that he knew this long before October, 2017. I am also satisfied, beyond a reasonable doubt, that Mr. Gledhill understood that he was required to comply with the boundary condition and intentionally refused to do so.

280First, the transcript of Mr. Gledhill's sentencing hearing from April 2, 2015 makes it clear that the court clerk read the boundary condition to him. Earlier in these reasons, I included an excerpt from that transcript. After the boundary condition was read to him, Mr. Gledhill unambiguously expressed his disagreement:

Mr. Gledhill: Not gonna pay restitution, not gonna be bound by the boundaries that you've set, Justice Zuker. You can, you can provide –you've already provided a defence. Your, your legal counsel, Judith Parker, had already provided me with your defence and I'm gonna be attacking that in court. So, none, none of the orders that I – none, none of the stipulations that, that you've ordered, Justice Zuker, are gonna, are gonna stand. They're gonna be set aside." [Emphasis added.]

281While Mr. Gledhill did not agree with the boundary condition imposed by Zuker J., he was clearly made aware of it.

282Second, during this trial, Mr. Gledhill testified that in January, 2016 the Crown provided him with the April 2, 2015 probation order. The probation order was in the disclosure for the charge of failing to report to a probation officer. Mr. Gledhill testified that he received and read that disclosure, including the probation order. This was over 19 months before the incident involving Mr. Santiago. In my view, this is compelling evidence that Mr. Gledhill knew that he was subject to the boundary condition before October 11, 2017. Indeed, even if the other three items that I have mentioned in this list were taken out of the evidentiary pile, after applying the analytical framework in R. v. W.(D.), I would be satisfied beyond a reasonable doubt that Mr. Gledhill knew that he was subject to the boundary condition on each of the alleged offence dates.

283Third, Mr. Gledhill testified that in the disclosure that he received for the charge of failing to report to a probation officer, he also received the April 2, 2015 sentencing transcript. That transcript also sets out the boundary condition.

284Fourth, on November 2, 2017, Mr. Gledhill went to 52 Division and spoke with Constable Delottinville. I accept Constable Delottinville's evidence that during this conversation he told Mr. Gledhill that he was subject to the boundary condition in his probation order. I accept that Constable Delottinville told Mr. Gledhill that he would be charged if he violated the boundary condition again. While Constable Delottinville's warning would be of no value to the Crown in proving Mr. Gledhill's knowledge of the boundary condition prior to November 2nd, it is relevant evidence with respect to Mr. Gledhill's mens rea on November 3rd and November 6th.

5. Issue Estoppel

285Mr. Gledhill argued that the doctrine of issue estoppel was engaged in relation to the breach of the boundary condition charges. Mr. Gledhill framed this argument as both a Charter issue and as a defence on the trial proper.

286On July 17, 2018, Crown counsel withdrew the charge of failing to comply with the probation order by not reporting to a probation officer. In support of his argument, Mr. Gledhill relied on a court transcript dated July 17, 2018. Mr. Gledhill took the position that the following statement made by Crown counsel provides support for the issue estoppel argument:

"In relation to those other charges, frankly, there is no way I could at trial prove, despite being the author of that situation, that he was informed that he needed to go to court and report the [sic] probation officer."

287Mr. Gledhill argued that Crown counsel's statement is an admission that the Crown could not prove mens rea in relation to an allegation that Mr. Gledhill breached any of the conditions of the April 2, 2015 probation order.

288In a criminal case, issue estoppel "precludes the Crown from introducing evidence in later proceedings inconsistent with findings made in an accused's favour in earlier proceedings": R. v. Thompson, 2014 ONCA 43, at para. 1.

289The doctrine of issue estoppel "is a narrow rule of law that is meant to ensure fairness to an accused person, to avoid inconsistent verdicts and to ensure finality in rulings": R. v. Simmons-McKenzie, 2019 ONCJ 127, at para. 10.

290The doctrine can operate "where the finding said to create the estoppel was a positive finding or a finding based on reasonable doubt": Thompson, at para. 48; R. v. Mahalingan, 2008 SCC 63 (CanLII), [2008] 3 SCR 316, at para. 31. In Schweneke v. Ontario (2000), 2000 CanLII 5655 (ON CA), 47 OR (3d) 97 (C.A.), the Court concluded that issue estoppel would not apply where an accused was discharged at a preliminary inquiry. In arriving at this conclusion, the Court "pointed out that a judge presiding at a preliminary inquiry does not make findings of fact": Thompson, at para. 54.

291In this case, there was no judicial determination by the Court on July 17, 2018. On that date, Crown counsel withdrew the charge. Crown counsel withdrawing a charge is not a judicial determination of a factual issue on the merits. The absence of a judicial determination on the merits on the factual issue in the previous case is dispositive to Mr. Gledhill's issue estoppel argument in this case.

292In any event, for at least two other reasons, I see no unfairness in the Crown being permitted to prosecute Mr. Gledhill on the breach of probation charges that are before this Court.

293First, the Crown's statement on July 17, 2018 did not induce Mr. Gledhill into believing that he was permitted to enter the area that was subject to the boundary condition. This statement was made over eight months after Mr. Gledhill was alleged to have violated the boundary condition.

294Second, on July 17, 2018, Crown counsel did not state that the Crown could not prove any alleged breach of the probation order.

295I find that issue estoppel does not apply.

6. Global Bail Order

296Mr. Gledhill argued that the "global bail order" he entered into on November 15, 2017 provides a defence to the breach of the boundary condition charges.

297Mr. Gledhill was arrested and charged on November 7, 2017 with breaching the boundary condition in his probation order. On November 15, 2017 the Crown consented to Mr. Gledhill's release. Green J. vacated a previous bail order pursuant to s. 524 of the Criminal Code. The global bail order applied to the charges of assault with a weapon, failing to report to a probation officer, failing to attend court and refusing to comply with the boundary condition.

298The global bail order included the same boundary condition as found in Mr. Gledhill's probation order, with an additional exception which permitted him to enter the prohibited area when he was travelling on the TTC. The transcript from the bail hearing reveals that immediately before including the TTC exception to the boundary condition in the bail order, Green J. observed, "His probation is going to expire in April. And these charges may not have been resolved by then."

299According to Mr. Gledhill, at one point, Crown counsel stated that the November 15, 2017 global bail superseded previous bail orders. As I understand Mr. Gledhill's argument, Crown counsel's statement that the global bail order superseded previous bail orders provides a defence to the breach of probation charges, given the TTC exception to the boundary condition. Mr. Gledhill argued that the exception to the boundary condition in the November 15, 2017 global bail order "applied to all FTC charges from the beginning."

300With respect, Mr. Gledhill's position is based on a fundamental misunderstanding of the impact of the global bail order. The inclusion of a TTC exception in the global bail order did not mean that this exception also applied to the April 2, 2015 probation order.

301In any event, Mr. Gledhill violated the boundary condition of the probation order between October 11, 2017 and November 6, 2017. When he entered the area that was subject to the boundary condition in the probation order he was obviously not relying on an exception to a boundary condition in a bail order that he entered into on November 15, 2017.

7. Conclusion

302I do not believe Mr. Gledhill's testimony that he did not know that he was subject to the boundary condition in the probation order. I am not left in reasonable doubt by his evidence. I am not left with a reasonable doubt that Mr. Gledhill had an honest but mistaken belief.

303On the basis of the evidence that I accept, I am satisfied beyond a reasonable doubt that Mr. Gledhill knew, prior to October 11, 2017, that he was subject to the boundary condition. I am satisfied beyond a reasonable doubt that he intentionally violated the boundary condition on each of the six occasions as alleged by the Crown. Mr. Gledhill's evidence does not raise a reasonable doubt regarding his intent.

304I am satisfied beyond a reasonable doubt that Mr. Gledhill entered the area that was subject to the boundary condition on each of the alleged offence dates. I am not left in a reasonable doubt by Mr. Gledhill's evidence regarding the actus reus.

305After applying the analytical framework in W.(D.), I am satisfied that the Crown has established, beyond a reasonable doubt, all of the essential elements for each of the six breach of probation charges. I am satisfied beyond a reasonable doubt that Mr. Gledhill had no reasonable excuse to enter the area that was subject to the boundary condition.

306I find Mr. Gledhill guilty on all six counts of breach of probation.

VII. CONCLUSION

307I find Mr. Gledhill guilty of the seven offences with which he has been charged.

NORTH J.