R. v. Bancroft
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
-and-
Kyle Bancroft
Before: Justice Michael G. March
Charter Applications heard on: October 30, November 19, December 9, 11 & 17, 2019, January 8, August 18 & 20, 2020
Reasons for Charter Ruling released on: October 19, 2020
Counsel:
- Teresa James, for the Crown
- Kyle Bancroft, Self-Represented Accused
Introduction
1The accused, Kyle Bancroft, ("Bancroft") stands charged that:
a) on December 28, 2015, he conspired with Roy Wiggins and Cary St. Michael to commit the indictable offence of fraud by selling a wood processor and then claiming to its insurer it was stolen contrary to section 465(1)(c) of the Criminal Code ("the Code");
b) on December 28, 2015, he had in his possession a quantity of Canadian currency of a value exceeding $5000 knowing that the currency was obtained by the commission of an offence punishable by indictment, to wit, the proceeds of the sale of the wood processor contrary to section 354(1)(a) of the Code;
c) on December 30, 2015, he committed public mischief with intent to mislead by causing Provincial Constable J. Cassidy, a peace officer with the Ontario Police Provincial Police, to enter upon an investigation by reporting that the offence of theft had been committed, when it had not, contrary to section 140(1)(c) of the Code;
d) on February 1, 2016, he, being a person required by law to make a statement orally under oath, to wit, an interview under K.G.B. caution with Commissioner of Oaths, Karen Wren, did make a false statement, to wit, the theft of his wood processor, knowing the statement was false contrary to section 131 of the Code;
e) on January 26, 2017, by deceit, falsehood or other fraudulent means, he attempted to defraud Economical Mutual Insurance Company of the sum of over $5000 by filing a false insurance claim contrary to section 380(1)(a) of the Code;
f) on January 26, 2017, he knowingly made a false statement, to wit, a Proof of Loss to Economical Insurance Company with intent that it be acted upon as genuine, and did thereby commit forgery contrary to section 367 of the Code;
g) on January 26, 2017, he knowingly used a forged document, to wit, a Proof of Loss form as if it were genuine contrary to section 368(1)(a) of the Code;
h) on August 21, 2015, he, by deceit, falsehood or other fraudulent means, defrauded National Leasing of a sum of $54,838.05 by forging a bill of sale for a 2014 Cord King wood processor that never existed contrary to section 380(1)(a) of the Code;
i) on August 21, 2015, he conspired with Cary St. Michael to commit the indictable offence of fraud by planning the fraudulent sale of a wood processor and forging a bill of sale for said wood processor contrary to section 465(1)(c) of the Code;
j) on August 19, 2015, he knowingly made a false document, to wit, a leasing agreement for a 2014 Cord King Wood Processor with intent that it be acted upon as genuine, and did thereby commit forgery contrary to section 367 of the Code;
k) on August 19, 2015, he knowingly used a forged document, to wit, Application of a Leasing Agreement for a 2014 Cord King Wood Processor as if it were genuine contrary to section 368(1)(a) of the Code;
l) on August 24, 2015, he had in his possession Canadian currency of a value exceeding $5000 knowing that the currency was obtained by the commission in Canada of an offence punishable by indictment, to wit, fraud relating to a bill of sale for nonexistent property, a 2014 Cord King Wood Processor, contrary to section 354(1)(a) of the Code; and
m) between May 1 and June 6, 2017 he wilfully attempted to obstruct the course of justice by attempting to dissuade a person by bribes to confess to offences Bancroft committed contrary to section 139(2) of the Code.
2Originally, Bancroft faced 10 other charges in a 23 count Information before this Court. However, 5 of those 10 were withdrawn at the outset of trial on June 11, 2019, (i.e. Cts. 18 through 22 inclusive). The remaining 5 were dismissed at the invitation of the Crown on August 19, 2020 (Cts. 13 through 17 inclusive).
3Bancroft is representing himself. He was denied the assistance of counsel when his Rowbotham application to the Superior Court of Justice regarding his "Pembroke" charges was dismissed on March 28, 2019. This occurred roughly 10 weeks prior to the commencement of his trial before me on June 11, 2019.
4Over the course of the trial, which has to this point lasted in excess of twenty days, Bancroft brought four additional applications seeking a stay of his charges under section 24(1) of the Canadian Charter of Rights and Freedoms ("the Charter"). His first application was denied on November 19, 2019, when I ruled that his right to a trial within a reasonable time was not violated. In respect on his remaining three applications, he contended that:
a) his right to privacy was violated following his arrest and while in the custody of the Ontario Provincial Police ("OPP") and other peace officers, he exposed his private areas, or he urinated and/or defecated:
(i) in the presence of a hospital nurse while police watched,
(ii) in the presence of officers while in a police garage,
(iii) in the presence of correctional officers and under video surveillance monitoring while receiving medical treatment at the Ottawa Carleton Detention Centre ("OCDC"), and
(iv) under video surveillance monitoring in the holding cells of the Pembroke Courthouse;
b) his right to make full answer and defence was violated as a result of the Crown's failure to provide "all disclosure", when only some, but not all, had been given to him; and
c) his right to a fair trial was violated by the state refusal to provide him with qualified legal representation, thereby compelling him to act for himself while incarcerated, and with limited access to telephones, and no access to the Internet.
5Bancroft conceded that this Court had no power to grant the Charter relief sought in paragraphs 4 a) (i) and (ii) above. The circumstances of the alleged privacy violations occurred when Bancroft was in police custody on charges unrelated to those for which he is being tried before me.
The Relevant Evidence
The Right to Privacy Kyle Bancroft
6Bancroft testified that he became an inmate at OCDC on September 6, 2017. Initially, he was placed in its health care unit. He presented with a condition known as lymphedema. As a result, he faced the prospect of losing one of his legs.
7At that time, he was significantly overweight. He was in excess of 500 pounds when first incarcerated.
8He recalled that his legs needed to be wrapped in Coban. Periodically they would bleed. There were open wounds on them.
9Bancroft remembered an incident where 6 to 8 women were ushered into a room to be taught how to wrap the Coban on his legs. He was required to bend over slightly as if he were downhill skiing. His scrotum was held to one side. He testified that everyone laughed during this procedure.
10On other occasions, he was required to lie on his back "spread eagle" in his cell. He had to assume this position in order to have socks put on him. The socks went all the way up to his groin. At times his genitals would be exposed.
11Guards assigned to watch over the personal support workers ("PSW's") or medical staff would make derogatory comments upon seeing Bancroft in such a position.
12At other times, Bancroft would be strip-searched in front of approximately 30 people. Correctional staff would ask him to lift his belly or spread his buttocks. Again, he would be subjected to name-calling and insults.
13After some months in custody and while an inmate in the regular dormitory, as opposed to the health care unit, Bancroft began to lose weight. His leg length socks would fall down. He would have to go to a small room at the end of a hallway within the institution. There he would lift his legs up one at a time on to a desk trying to get his socks up while wearing baggy shorts. He could not control whether the door was shut. There were also two cameras on the ceiling of this room.
14Additionally, there would be times when Bancroft would be sleeping in his cell. His shorts were loose. Guards, mostly male, but occasionally female, would knock on his door and tell him to cover himself.
15Last but not least, while in holding cells at the Pembroke Court House, Bancroft remembered an occasion when one of the special constables had to seek out his then girlfriend, Ginger Zilney ("Zilney"). The special constable escorted Zilney into the cell to assist Bancroft with cleaning himself after he went to the bathroom.
16Bancroft did not recall any signs warning of video surveillance monitoring in the cells. Nor was he told of the availability of a privacy gown. It was only after he complained that a sign advising of the existence of such a garment appeared in the Court House holding cells.
17Bancroft was adamant that no gowns either at OCDC or at the Pembroke Court House were large enough to offer him privacy. He had to use a towel to wipe himself. The small wall, which blocked the view of a person using the toilet, did not suffice for him. Given his girth, Bancroft needed to stand up and wipe himself after going to the bathroom.
18Bancroft only learned of his ability to complain about a violation of his Charter right to privacy after he read a newspaper article on or about May 24, 2019 where charges were stayed after a male, in police custody on an impaired driving charge, was monitored via video urinating in a holding cell.
19Bancroft complained as well of the necessity for monitoring by correctional authorities when he took a shower at OCDC. On occasion, Bancroft required the assistance of PSW's to shower. He insisted on female staff assisting him with showering as a result of having been a victim of child sexual abuse. He conceded that when he declined to take a shower because only male PSW's were available to help him, it was his choice to decline.
20Bancroft did not like to shower alone in case he fell. However, he felt pressured to shower every day. If he did not, he thought he would be "bounced" off the dorm by the other inmates for his lack of hygiene.
Kristal Hennigar
21Kristal Hennigar ("Hennigar") testified that she has been the Health Care Manager at OCDC since January 2019.
22Hennigar had previously been the Assistant Health Care Manager since May 2015.
23In reviewing institutional records, Hennigar was able to discern that Bancroft had spent his first 11 months at OCDC in its health unit in cell number 3.
24Within the health unit, Hennigar related that there is a larger treatment room and a smaller doctor's room.
25Hennigar became aware of a complaint emanating from Bancroft about his genitals being exposed while receiving treatment. Hennigar could not remember the specific number of times this was said to have occurred.
26Hennigar confirmed that Katherine Finter ("Finter") was a PSW who attended to Bancroft virtually since the outset of his incarceration at OCDC.
27Hennigar herself could not recall an occasion when Bancroft was required to spread his legs into a 'Y' shape.
28On March 22, 2018, Bancroft was fitted for customized socks to treat his legs. Precise measurements were made. The socks were intended to stretch from his feet to his groin area.
29On April 17, 2018, the socks were delivered. Staff were required to teach Bancroft how to wear them.
30On September 11, 2018, Bancroft was brought to the health unit for compression stocking reassessment. New leg measurements were taken.
31On October 16, 2018, those new stockings were delivered.
32Hennigar testified that she instructed Bancroft's PSW's that his stockings should always be put on in the treatment room or the doctor's room. Neither of those rooms are equipped with surveillance cameras. Rather, there are two cameras in the hallway near those rooms.
33Hennigar explained that PSW's who enter the jail come from a referral made by an outside agency, Certicare. OCDC policy requires that a guard be assigned to each PSW to ensure his or her safety while on the premises of the institution.
34Hennigar clarified that health care staff "document" by exception. That is to say – staff are trained to note what is out of the ordinary as opposed to what is customary.
35Under cross-examination, Hennigar was asked about her qualifications. She indicated she is a registered nurse. She has a Bachelor of Science degree in nursing.
36In describing the layout of the health care unit, Hennigar related that there are four cells outside the nursing station. Typically, one inmate is lodged in each cell in that area of the jail. Where necessary, the cells can accommodate two inmates.
37Hennigar confirmed that Bancroft had a condition which affected blood circulation in his legs. She stated that inmates are free to consent or withhold consent to treatment. In most instances, consent is implied. She used, as an illustration of the concept, the person who sticks his or her arm out for a healthcare worker to draw blood for medical analysis.
38Hennigar surmised that if several PSW's were present to see how Coban or any other form of treatment was administered to Bancroft, it was for instructional purposes. A guard or guards would have to be present to ensure the safety of the workers.
39Typically, guards assigned to such workers would stand outside a cell door or treatment room. Depending on the risk posed by the inmate and the nature of the treatment, the door may or may not be closed by a worker.
40Hennigar could not recall Bancroft objecting to PSW's being trained to administer his treatments in a group. If he had objected, the training would have stopped.
41Hennigar explained that if an inmate felt mistreated, a green form could be filled out. A record of the complaint would be kept on file and brought to her attention.
42Hennigar confirmed that Bancroft specifically requested the assistance of a PSW when he showered.
43Hennigar herself recalled one or two occasions when she personally wrapped Bancroft's legs. When she attended to this task, she did so in the treatment room.
44Under re-examination, Hennigar remembered that when Bancroft first entered OCDC on September 6, 2017, one of his legs had an open wound.
45In the interest of expediting the trial and on consent of the Crown and Bancroft, Hennigar, at my request, agreed to review Bancroft's medical records and to prepare an Affidavit to chronicle all instances where staff had documented times when Bancroft:
a) requested medical treatment,
b) received it, and/or
c) complained about it
in the application of Coban wraps or stockings to Bancroft's legs, insofar as those treatments related to his privacy interests.
46The Affidavit of Kristal Hennigar sworn November 19, 2019 was made Exhibit 27 at Bancroft's trial. I will comment further regarding this piece of evidence upon my review of Bancroft's medical records at a later stage.
Christian Richer
47Deputy Superintendent Christian Richer ("Richer") of OCDC testified that he has been an employee of the institution for 16 years.
48Occasionally, as part of his duties, he will communicate by telephone or email with Hennigar, the health care manager. He does not communicate directly with the PSW's who come to OCDC.
49Richer did not have any emails regarding compression socks worn by Bancroft. Nor could he recall any conversations with anyone about such socks.
50Richer had no recollection of strip searches being done at bunkbeds during his tenure as Deputy Superintendent.
51Additionally, Richer had never heard of YouTube or Facebook videos of footage taken by any cameras within OCDC.
52Under cross-examination, Richer explained that within a correctional facility such as OCDC, a balance must be struck between protecting the inmates' privacy interests and maintaining the security of the institution.
53As an example, Richer explained that it would be preferable to offer complete privacy to an inmate showering, but of course, it would not be acceptable to find that inmate hanging from a shower nozzle, if he or she were to attempt to commit or succeed in committing suicide.
54Richer explained that PSW's carry out their duties for the most part in the health care unit. Bancroft typically went there to take his showers.
55Guards would, of necessity, accompany the workers to the health care unit. The guards are responsible for ensuring both the safety of the workers and inmates.
56Regarding cameras, Richer pointed out that OCDC is bound by the provisions of the Privacy Act. No electronic devices are permitted inside the institution.
57For inmates who wish to complain about their treatment within the facility, there is a process in place. Green forms must be filled out to address health care issues. White forms are used to deal with more general complaints and are typically handled by an area sergeant. Blue forms are a means for the inmate to address dissatisfaction with respect to a white form complaint. Blue forms go to the Superintendent for review.
58Richer reviewed all white forms in Bancroft's personal file. None addressed complaints regarding his stockings or a lack of privacy. Nor were there any blue forms filled out by Bancroft.
Scott Munro
59Sgt. Scott Munro ("Munro") testified on November 19, 2019 that he is one of the security managers at OCDC. He has occupied that position since 2014. He is responsible for monitoring all security and surveillance equipment at the facility.
60Munro confirmed that guards are not to have cell phones inside the institution.
Michelle Prudhomme
61Michelle Prudhomme ("Prudhomme") is a registered social worker employed at OCDC. She started her position within the facility on March 25, 2019.
62In terms of education, Prudhomme has a Bachelor of Social Work degree, which she obtained in 2012.
63As part of her professional duties, Prudhomme made clear that maintaining privacy with her clients is vitally important. She explained that designated rooms at certain times can be made available when inmates wish to discuss matters with her.
64OCDC is, of course, a jail. Privacy, she explained, is often difficult to find. However, a private space could usually be found.
65At times, Bancroft would indicate the matter was urgent. He would speak through his cell door to her.
66Over the course of Prudhomme's dealings with Bancroft, he has been housed in the health unit. While visiting Bancroft there, Prudhomme observed a maximum of six inmates confined in that area. The minimum would have been four. Rarely would the maximum of six be located there.
67Prudhomme would speak at least weekly to Bancroft while touring.
68Prudhomme could not recall Bancroft making any complaint regarding the assistance he required in having his stockings put on, or the exposure of his genitals.
69She did confirm that he was the subject of barbs and badgering from staff about his body size.
70Prudhomme did not ask Bancroft who was responsible for the insults. She explained that certain things are outside her control.
71Early into her employment, she did recall speaking to the Health Care Manager, Hennigar, about the situation. She confirmed that if the verbal taunting amounted to a chronic form of harassment, she would have made a complaint on Bancroft's behalf.
72When asked about access to showers, Prudhomme characterized this as an historical problem for Bancroft. In her view, the guards did not want to accompany Bancroft to the shower area.
73Prudhomme highlighted Bancroft's desperation at the state of his impecuniosity. He had no money for a haircut. He went five weeks wanting one. Eventually he gave up and shaved his own head.
Katherine Finter
74Katherine Finter ("Finter") testified that she began providing health care to Bancroft as a PSW in about September 2017.
75At that time, Bancroft was lodged in cell number 3 of the health care unit at OCDC.
76In describing her role, she explained that she provided inmates with assistance in having showers, dressing, and attending to their daily care.
77Finter could not remember ever assisting Bancroft with wrapping his legs with Coban.
78In April 2018, she reckoned that this was when she first assisted Bancroft with putting on his compression stockings. She confirmed that they did stretch from his feet to his groin area.
79To Finter's recollection, Bancroft would return to his cell where he would lift his legs up beside the door while lying on his back. Finter explained that she would "stay in the middle" to offer him privacy. She understood that guards would have to remain outside to watch over her.
80Finter was not sure about the location of surveillance cameras.
81At times, Finter related that they were forced to put the stockings on in the hallway. Most often, male guards would be present. Occasionally, female officers would stay and monitor this procedure, or Bancroft's showering.
82When the Health Care Manager, Hennigar, learned of this practice, she spoke to Finter and disallowed it. Hennigar insisted that the stockings be administered in the doctor's room or the examination room. However, there were still many occasions when the door to either room would not be closed when the stockings were applied to Bancroft's legs.
83Nevertheless, Finter remained of the view that she would be able to block the ability of the guards to see Bancroft's private area.
84Finter added that she brought any complaints made by inmates to the attention of the Health Care Manager. One such occasion was when Bancroft's toenail fell off. She taped it down. A nurse, she recalled, saw Bancroft's toenail as well.
85Under cross-examination, Finter confirmed that she is sent to work at OCDC upon direction from an outside agency, GEM Health Care. She received no special training to work in a correctional facility.
86She testified that she did not expect to be left on her own with an inmate. She appreciated that this was for her safety and security.
87Finter reckoned that Bancroft decided himself when he needed her help with showering or getting his stockings on. There were times when he took showers by himself. It was specifically the bottom of his legs that he needed help with. He was always capable of showering the rest of his body on his own.
88Finter could not recall receiving any training with respect to how properly to apply Bancroft's compression stockings. Bancroft himself told her how to put them on.
89He also assumed the position in which he had to place himself in order to have the stockings put on including spreading his legs. She may have adjusted his clothing on occasion to protect his privacy.
90She could not recall Bancroft ever raising with her a concern about surveillance cameras. Generally, she could not remember any instances where Bancroft complained about a lack of privacy.
91The times when Bancroft's socks were administered in the hallway, Finter confirmed that it was Bancroft's choice to don them there.
92She emphasized as well that if Bancroft had ever expressed any discomfort in the care she offered, or the place where her assistance was given, she would have stopped. Equally, if she had overheard an offensive comment made by a guard, she would have taken it to the manager.
93Finter knew that it was Bancroft's preference to have a female PSW assist with this showering.
Disclosure
Kyle Bancroft
94Bancroft testified that it was not until May 27 or 30, 2019 that he received an opportunity to first review disclosure in preparation for his trial.
95For approximately two weeks, correctional staff had either lost or misplaced it.
96Bancroft recalled that his trial in respect of his charges began on June 11, 2019.
97In order to try to be ready to defend himself, Bancroft had asked correctional staff that he be able to review disclosure during meal times. His request to do so was denied. He filled out blue forms to appeal, but those requests went unanswered.
98Additionally, he testified about a computer malfunction. He approached Sgt. Munro about the problem. Munro worked on it. He downloaded a program to enable Bancroft to review digital components of the disclosure.
99Bancroft proclaimed that the whole system for the review of disclosure at OCDC was inadequate. The attempts made by guards to record the times during which he could review disclosure was inaccurate and misleading.
100As an example, Bancroft highlighted that on October 9, 2019, he put in three individual requests to get into his "personals" to attempt to reach potential defence witnesses. All three requests fell on deaf ears.
101Bancroft asked Richer if he could be permitted to leave his cell in order to use the telephone. Richer pointed to a pay phone. He explained to Bancroft that he could only use it.
102Richer further informed Bancroft that he could not stay past 4 PM to make a phone call.
103Further, Bancroft explained that he did not even know about the existence of blue forms in order to file a formal complaint within OCDC until September 2019.
104Bancroft hearkened back to October 23, 2017 when a formal request was made on his behalf by his then defence counsel, Solomon Friedman. On that date, Mr. Friedman first requested Crown disclosure relating to Bancroft's subject charges.
105On July 10, 2018, Mr. Friedman returned disclosure to the Crown. On that date as well, Mr. Friedman had applied to the presiding judge to be removed as Bancroft's counsel of record. That request was granted.
106Over the course of some eight months thereafter, Bancroft was attempting to obtain a Rowbotham Order to have the Court appoint counsel to assist him with his defence.
107On March 28, 2019, the application for the Order in connection with his Pembroke charges was denied.
108Bancroft commiserated that he had no expertise in defending himself on criminal charges.
109On April 12, 2019, Bancroft spoke to the Crown to advise that he was being transferred back to OCDC from the Central East Correctional Centre ("CECC") in Lindsay, Ontario.
110Notwithstanding, on April 17, 2019, the Crown sent disclosure to CECC.
111On April 19, 2019, Bancroft was sent back to OCDC from CECC.
112On April 23, 2019, Bancroft went to the PVLO, a designated room at OCDC for inmates to review disclosure. He discovered that there was no such material there for him to look over regarding his Pembroke charges.
113On April 29, 2019, Bancroft made a video bail appearance and explained to the presiding Justice of the Peace in Pembroke that he had no disclosure. This fact was confirmed by OCDC.
114On May 10, 2019, Bancroft testified that he was informed disclosure was lost during his transport from CECC to OCDC.
115On May 16, 2019, Bancroft learned that a new package of disclosure prepared by the Pembroke Crown Attorney's office had been sent to OCDC that day.
116On May 18, 2019, Bancroft used a white form to request an opportunity to be brought down to the PVLO in order to review the disclosure.
117On May 28, 2019, while making a court appearance in Pembroke, Bancroft asserted that he was still without disclosure.
118Then, on May 30, 2019 between 10:15 and 11:05 AM, Bancroft testified he was given his first opportunity to review disclosure. This left him 12 days to review the materials in order to prepare for his trial, which began on June 11, 2019.
119Further, Bancroft pointed out that much of the disclosure was in digital form. It was provided to him on a USB stick. He would have preferred to have it in paper form.
120Bancroft still made his best efforts to plod through "mountains of it".
121Well into September 2019, Bancroft bemoaned that he was still asking for disclosure from the Crown.
122He elaborated on how difficult it is to review disclosure and to prepare for trial as an inmate in a correctional facility. There are many distractions.
123To illustrate his ordeal, Bancroft asserted that delays occurred due to the retirement of the lead investigator on his case, Detective Constable Snyder.
124A picture lineup comprised of photos offered to police by Bancroft's sister was never disclosed to him. The lineup, he was convinced, was used in the investigation into his charges.
125Essentially, Bancroft's complaint regarding lack of disclosure spanned the period of July 2018 to March 2019. In July 2018, Mr. Friedman removed himself as Bancroft's counsel of record. On March 28, 2019, Madam Justice Ratushny denied Bancroft's Rowbotham application in respect of his Pembroke charges.
126Bancroft wondered why, if disclosure could be made in its entirety so readily to Mr. Friedman upon request, the same could not be done for him. Instead, he received disclosure in dribs and drabs here and there.
127To add insult to injury, guards on occasion searched his cell to ensure that he had no disclosure in it.
128It was not until Sgt. Munro testified at his trial that he learned that Crown disclosure sent to CECC ended up at the Toronto South Detention Centre.
129Bancroft testified that he found a USB stick in his red bag, a container for essential items he needed to bring to court, believing that it related to other charges, but later learned that it related to his Pembroke charges.
130Bancroft steadfastly denied that he refused opportunities to exit his cell in order to review Crown disclosure.
131In sum, he explained, he did what he could whenever he was given an opportunity to review disclosure in the PVLO room.
132Under cross-examination, while testifying on December 11, 2019 Bancroft complained that the jail was on a "lockdown" most of the four days before his trial resumed that day.
133Bancroft denied that he refused to go to the PVLO room on December 6, 2019, as a log book kept by OCDC indicated. He insisted that he was never asked on that day whether he wished to go to the PVLO room.
134Bancroft claimed that he kept his own log book regarding access to the PVLO room. He conceded that he knew he would be testifying on December 11, 2019 regarding the access granted to him by OCDC to his disclosure. Yet he did not bring his log book with him to court.
135Bancroft further explained that he did not need to go to the PVLO room every day. At times, he could work in his cell to prepare for trial without access to disclosure.
136He agreed that the log book kept by OCDC indicated that he refused to go to the PVLO room on December 2, December 1, November 30, November 28, November 26, November 24, November 23, November 21, and November 20, 2019.
137However, Bancroft insisted that none of the documents kept by OCDC were accurate.
138He conceded that it was clear Mr. Friedman requested disclosure on November 2, 2017. The standard form letter sent to the Pembroke Crown Attorney's office did not indicate on which charges Mr. Friedman was retained to defend Bancroft. On November 23, 2017, the Pembroke Crown Attorney's office sent disclosure to Mr. Friedman's office.
139On January 5, 2018, Mr. Friedman indicated that he was not actually retained to defend Bancroft with respect to his Pembroke charges, only his Ottawa charges, and that he was assisting Bancroft to some extent with the Pembroke matters.
140By January 31, 2018, Mr. Friedman confirmed upon request from the Pembroke Crown Attorney's office that he was acting for Bancroft on his Pembroke charges.
141On February 2, 2018, complete disclosure as it existed at that time was sent by the Pembroke Crown Attorney's office to Mr. Friedman regarding his Pembroke charges.
142Bancroft complained that he never saw one piece of disclosure while Mr. Friedman was acting for him.
143Bancroft agreed that he was represented by counsel right up to the time that his Rowbotham Application failed in respect of his Pembroke charges on March 28, 2019. His complaint therefore about the failure on the part of the Crown to make available all disclosure to him covered the period between March 28, 2019 and May 30, 2019, the latter date being what Bancroft originally testified was his first occasion to review Crown disclosure in respect of his Pembroke charges.
144Bancroft acknowledged that as of April 12, 2019, the Pembroke Crown Attorney's office was attempting to make disclosure available to him while he was incarcerated.
145He complained that all he had in respect of his Pembroke charges was 8 to 10 pages he received from Ms. Marni Munsterman, his counsel prior to retaining Mr. Friedman.
146Bancroft was perturbed by the fact that Crown disclosure was sent to him at CECC. He insisted that he informed the Pembroke Crown Attorney's office that he would be returned to OCDC in short order.
147However, Bancroft conceded that correctional facilities had control over where he would be at any given time. Bancroft, since September 6, 2017, had never sought to be released at a bail hearing.
148He agreed that based on assurances received by the Pembroke Crown Attorney's office from CECC that Bancroft would be held at that facility until May 2019, it was not unreasonable for the Pembroke Crown Attorney's Office to send disclosure to him there on April 17, 2019.
149Inexplicably, Bancroft commented, disclosure in respect of his Pembroke charges went missing until May 29, 2019. He reiterated that on May 30, 2019, he was provided his first opportunity to review it. He was thereafter given daily access to it.
150Bancroft was not certain whether the disclosure he received regarding his Pembroke charges was the original package or the second one provided to OCDC by the Crown on May 14, 2019.
151After some hesitation, Bancroft conceded that he was first permitted to review the disclosure regarding his Pembroke charges not on May 30, but May 20, 2019, some 3 weeks prior to his trial commencing on June 11, 2019.
152Regarding additional disclosure requested by Bancroft, he conceded that any information regarding letters written by Detective Constable Snider on behalf of the principal Crown witnesses against him, Mr. St. Michael and Mr. Wiggins, were disclosed to him on September 4, 2019 prior to the termination of their cross-examinations.
153Further, the statement made by Mr. Wiggins to police, which Bancroft was seeking, was disclosed to him on June 14, 2019, well prior to Wiggins giving his evidence at trial.
154Bancroft complained that if he received direct communication from the Pembroke Crown Attorney's office, almost 2 weeks would go by before Munro would provide such correspondence to him.
155Bancroft explained his difficulties grappling with large sums of paper disclosure. All staples and paper clips had to be removed before the disclosure could be handed over to him. The documents would thus get inevitably shuffled and out of order.
156Furthermore, at no point in time was Bancroft permitted to have transcripts of witness statements made to police in his cell with him.
157Bancroft testified that he knew to ask the Crown for any relevant disclosure. If the Crown did not provide a satisfactory answer and comply with his request, he felt the proper course was to leave the issue for argument during his closing submissions on his Charter application.
158However, Bancroft conceded that at the outset of trial, the Court explained to him how he should go about requesting disclosure, and to raise it with the Court if he was unsatisfied with the Crown response.
159Bancroft agreed that he did not follow this procedure.
160In speaking of his difficulties accessing digital disclosure, Bancroft testified that Munro fixed the laptop computer which was Bancroft's means to review such materials. Yet Munro was supposed to write out a 10 step procedure to be followed in using the laptop. Munro did not do so, and Bancroft forgot the 10 steps.
161The Deputy Superintendent of OCDC, Richer, explained when he testified that when disclosure arrives at the institution, it is handled by the security manager, in this case, Munro. The security manager is responsible for ensuring no safety risk to the inmate to whom it is directed, or to others, is posed by what is provided in writing from the Crown. Upon so doing, the security manager forwards the disclosure to a professional liaison officer who coordinates with the inmate as to when he or she may view it.
162An inmate must use a white form to request an opportunity to review the disclosure. To Richer's knowledge, disclosure could be reviewed between 9:30 AM and 11:15 AM, 1:30 PM and 4 PM, and 7 PM and 8:15 PM daily.
163OCDC keeps track of how often the inmate is permitted to review the disclosure in a log book entitled Inmate Disclosure Material Register ("IDMR").
164The IDMR is ministry approved. It is the document which officially records an inmate's opportunities to review disclosure. Any other record kept by other correctional officers is not.
165If any discrepancy occurs between a separate record and the IDMR, Richer would rely on the IDMR as the correct account of the times an inmate would have been offered or given access to the room where disclosure must be reviewed.
166One of the security managers for OCDC, Munro, gave evidence that there are a few self-represented inmates at the facility. Any Crown disclosure that is sent to them must be cleared through him or another security manager. Once this has been done, the material is passed along to Melissa Schell, the correctional officer in charge of the PVLO.
167In order to access disclosure, an inmate must ask to attend the PVLO. Usually, a completed white form initiates the request.
168Munro explained that Bancroft was booked in every day to review disclosure. This was due to his complaints of not getting access.
169OCDC now has four laptops dedicated for reviewing disclosure. Two months prior to Munro testifying on November 19, 2019, there were only two such computers.
170Munro recalled a complaint from Bancroft that he could not use one of the laptops for viewing his disclosure. He still had one other at his disposal.
171Munro was not aware of any other complaints made by Bancroft with respect to reviewing disclosure.
172Upon inspection of the IDMR and other documents, Munro stated that Bancroft only came out once during the month of November to review disclosure. Bancroft explained he did not need to review it. Additionally, his glasses were broken.
173Regarding the missing disclosure, Munro surmised that this occurred when Bancroft was transferred from CECC to OCDC.
174It was Munro's belief that Bancroft's disclosure ended up at the Toronto South Detention Centre. It took three weeks to a month before it was tracked down. In the meantime, another copy of the disclosure package was sent by the Crown to OCDC. That second package came to Munro.
175Upon clearing it, and turning it over to the PVLO, Munro seemed to recall that this was the only time Bancroft complained about technical difficulties with one of the computers at his disposal.
176Munro explained that inmates also have access to pencils and paper. Their notes are not reviewed by correctional officers.
177Bancroft would be permitted to take any notes he made upon reviewing disclosure back to his cell. Alternatively, it would be his choice as to whether he wished to leave his notes with the disclosure.
178Under cross-examination, Munro explained that he downloaded a 'player type' program to enable Bancroft to watch certain video disclosure.
179Munro did not recall receiving an email from the correctional officer in charge of the PVLO, Ms. Schell, regarding an inability to play DVD's on a computer.
180Munro was only aware of the IDMR as a record sanctioned by the institution to track the times and dates during which an inmate may review disclosure.
181Munro confirmed that disclosure can only be viewed in the designated PVLO rooms. Otherwise, there is a risk that it could be lost.
182Aside from the IDMR, Munro explained that there are other log books which record other data regarding inmate movements within the correctional facility.
183Munro remembered an incident where Bancroft's red bag was accidentally locked in a manager's office at OCDC. The red bag is a container for items an inmate at OCDC wishes to take with him or her to court. However, to Munro's recollection, the red bag was only unavailable to Bancroft on a Saturday. By the following day, it was located, and access to it was granted to Bancroft.
The Right to a Fair Trial while Incarcerated with Limited Telephone and Internet Access
Kyle Bancroft
184Bancroft explained his exasperation at attempting to act for himself with no expertise, education or background in the law.
185At one point, he expressed within earshot of a correctional officer how he just wanted to end his life and get it over with. Later in his testimony he downplayed what he had said. He testified he used words to the effect of " . . . [i]t's a wonder people don't harm themselves in here". Those words landed him in solitary confinement on suicide watch. He was forced to wear what he referred to as a "baby doll".
186After a brief stay in segregation, he was seen by a doctor. He explained that his earlier comment was more an expression of frustration than a true statement of any intention to end his life. He was soon returned to one of the dormitories within OCDC.
187Bancroft lamented that his life since being incarcerated in September 2017 has been totally controlled by correctional officers. It has affected his general access to the PVLO room, the only place where he can review Crown disclosure.
188Similarly, his access to the internet in order to conduct research to prepare his defence is nonexistent. As an inmate in a provincial correctional facility such as OCDC, he is not permitted to utilize the internet from anywhere within the institution.
189Bancroft complained that his use of a telephone is also severely restricted at OCDC. As an example, he recalled an incident where on Oct. 9, 2019, he asked Richer, the Deputy Superintendent, how he could have access to a phone to reach out to potential defence witnesses. Richer pointed to a pay phone and told Bancroft he could only use it. Bancroft was also refused any opportunity beyond 4 PM in the afternoon to make a call.
190Bancroft recounted that he did not begin speaking to Sarah Slaight, a Coordinator of the Jail Accountability and Information Line, until August 2019.
191Bancroft pointed out too, of course, that as an inmate for almost 3 years when he testified, he does not have the means to pay for transcripts of evidence given by witnesses at earlier points in time during his trial, or in separate proceedings, where Crown witnesses may have given contradictory evidence to what they gave at his trial.
192Bancroft related his difficulty in organizing and managing "mountains" of Crown disclosure when he is not permitted access to a stapler or any other means to separate and keep his numerous papers in order. On many occasions, he found his papers shuffled or meddled with by correctional officers. Nor was he permitted to have them with him in his cell. He was only allowed his personal, pencil written notes.
193In summing up, Bancroft expressed his frustrations by stating that all he wanted was to be treated like any other normal human being. He found himself at a terrible disadvantage not being able to find defence counsel to accept his collect calls. He tried to reach some 30 or 40 lawyers since being incarcerated. Legal Aid Ontario only helped by suggesting the names of 6 to 8 who might consider helping him with his Rowbotham application.
194As previously mentioned, Bancroft's Rowbotham application was denied on March 28, 2019 prior to the commencement of his trial, which began some two and a half months later.
Deputy Superintendent Richer
195Richer, the Deputy Superintendent of OCDC, confirmed that no electronic devices with access to the internet are permitted to be in the possession of an inmate at the facility.
196In his 16 years in the role of Deputy Superintendent, he has never received a complaint from an inmates about his or her inability to make a telephone call. Bancroft is the sole exception.
197Richer explained that the phone system at OCDC is the same for all provincial jails.
198The telephone system made available to them is known as OTMS [Offender Telephone Management System].
199Inmates who request to use the telephone must be escorted out of their cells when not in the common areas.
200OCDC does not control on an institutional level the maximum length of a telephone conversation an inmate may be permitted to have.
201Bancroft is subject to lockdown between 11:30 AM and 1:30 PM, 4:30 PM and 7 PM. Outside of those hours, he would have access to telephones between 9 AM and 9 PM.
202Like all other inmates at provincial institutions, Bancroft has no access to the internet.
Sergeant Munro
203As the correctional officer responsible for dealing with access by self-represented accused to disclosure, and by extension, the PVLO, Munro could not recall a single instance where he was asked by Bancroft about opportunities to conduct legal research via the internet.
204Munro confirmed that OCDC does not have a library equipped with legal publications.
205Nor could he recall an occasion where Bancroft asked to make a telephone call in order to access a legal representative or resource.
206Provincial correctional institutions have security concerns about publications accessible to inmates, Munro explained. The content might mention other inmates' charges, the details of what they are specifically alleged to have done or the evidence they gave in a proceeding.
207Sgt. Munro could not confirm when telephones were shut off at OCDC.
208He was clear there is no access to the internet for inmates.
209Equally, Sgt. Munro agreed that the only means by which an inmate can contact others outside the institution is by way of a collect call to a landline. He understood that there is a time limit on such calls. They are automatically terminated at the expiration of 20 minutes from the time the call recipient agrees to accept.
210Sgt. Munro's understanding was that telephone communication providers make tenders to the Ontario provincial government periodically. He recalled that Rogers was a previous service provider. Now it is Bell Canada.
211Sgt. Munro agreed that at times inmates have difficulty accessing telephones at OCDC.
Sarah Spaight
212As previously mentioned, Sarah Spaight ("Spaight") is a coordinator with the Jail Accountability and Information Line ("JAIL"). She is also a Ph.D. student at the University of Ottawa in its Faculty of Social Sciences.
213JAIL, she explained, is an oversight volunteer agency which monitors conditions of confinement at OCDC. JAIL provides quarterly reports to the institution's Superintendent.
214Spaight testified as to the limitations placed on outgoing calls made by inmates at OCDC. Inmates are restricted to placing only collect calls within North America to a 10 digit telephone number. Typically, the 10 digit number must be a landline. Workarounds are possible, but for the most part, inmates have considerable difficulty in placing calls to anyone with a cell phone. Consequently, the ability to contact sureties, witnesses and many others with whom the inmate wishes to communicate is an arduous task.
215Inmates at OCDC are not permitted to possess calling cards. They are only available to inmates serving sentences at federal penitentiaries.
216Additionally, outgoing calls from OCDC, or other like provincial correctional facilities, automatically terminate after 20 minutes.
217Spaight indicated that JAIL's mandate is to provide support and assistance to inmates. JAIL accepts calls from inmates between 1 and 4 PM Monday to Friday.
218She began helping Bancroft in or about September 2019.
219In the year prior to giving her evidence on December 9, 2019, Spaight estimated that JAIL received just under 3000 calls. Anonymized notes of the conversations are kept. Inmates fear reprisal for complaints they make about the conditions at OCDC.
220Spaight characterized Bancroft as a frequent caller. She had no knowledge of any assistance provided by the Crown to Bancroft in his attempts to contact potential defence witnesses. Nor was she aware of any arrangements the Crown had made for Bancroft to meet privately with Justices of the Peace to have subpoenas issued to defence witnesses.
Michelle Prudhomme
221Michelle Prudhomme (Prudhomme) is a registered social worker employed at OCDC. She began working at the correctional facility on March 25, 2019.
222She confirmed that, to her knowledge, inmates can only use the telephone during access times. She believed the access time for inmates in the health unit area of OCDC, where Bancroft was confined, was only one and a half hours per day. However, there is a maximum of six people who can be kept in that area.
223Prudhomme was aware that Munro did offer opportunities to Bancroft to use the telephone outside of usual hours.
224To Prudhomme's knowledge, Bancroft was not permitted the use of a telephone in the PVLO.
225Prudhomme was clear that no inmates can ever have access to the internet.
226Prudhomme herself has facilitated access to a telephone for Bancroft with the assistance of the John Howard Society. Apparently, Bancroft wished to make a report of a sexual assault upon him while in custody. As well, he was concerned about rumours he had heard that the Hell's Angels had put a "hit" out on him. He was worried as a result about who he may come across while incarcerated.
227Prudhomme also followed up herself with the Ottawa Police Service to ensure the authorities were made aware of Bancroft's fears.
The Issues
228Bancroft's three applications under the Charter seeking a stay of proceedings raises the following issues:
a) Was there an infringement or a denial of his right to privacy flowing from his treatment at the hands of correctional officers?
b) Was there an infringement or a denial of his right to Crown disclosure because he did not receive all disclosure in a timely and orderly fashion?
c) Was there an infringement or a denial of his right to a fair trial arising through a lack of qualified legal representation? If not, was his right to a fair trial affected through his inability as an incarcerated, self-represented accused to access the internet at all, or telephones more freely and more frequently?
d) Upon consideration of any and all violations of his Charter rights collectively, is a stay of proceedings an appropriate remedy, or would an alternative remedy suffice?
The Law
The Right to Privacy
229Recently, in R. v. Moordi, 2019 ONCJ 293, Gee J. reviewed the law governing the right to privacy in the context of section 8 of the Charter, where a prisoner uses the washroom under video surveillance:
[15] The police use of video surveillance to monitor and record the activities of individuals can amount to a search for the purposes of s. 8 of the Charter. The issue becomes whether the person under surveillance has a reasonable expectation of privacy in the circumstances. A growing body of jurisprudence has moved a number of the issues in cases such as this beyond debate.
[16] The police have a legitimate need to monitor persons under their control and monitoring them by video is a reasoned means of doing so. However, individuals have a reasonable expectation of privacy when it comes to using toilet facilities for the purpose of normal bodily functions. Although that expectation of privacy is reduced when detained under these circumstances, it is not forfeited by the mere fact the police have taken them into custody.
[17] These issues were discussed and articulated beginning with the case of R. v. Mok, 2014 ONSC 64, leave to appeal refused 2015 ONCA 608. The tension between the detainee's expectation of privacy in the circumstances and the legitimate need of the police to monitor detained persons was discussed in paragraphs 66 to 82 of Mok. The court concluded the discussion about the tension between these two interests in paragraph 81 as follows:
… the monitoring and videotaping of detainees using the cell toilet by police officers of either gender is a "highly intrusive invasion of privacy". On the other hand, the state's legitimate interests in monitoring cells for safety and preservation of evidence are not so compelling that they ought not to give way to at least a modesty screen that partially blocks the camera's view of the toilet. The detainee's expectation of privacy in the cell area is not so significant as to warrant a finding that any surveillance is inappropriate. But it is sufficient to require that the police do not monitor and record the use of the toilet by detainees.
[18] Since Mok, other courts have made similar findings. See for example R. v. Deveau, 2014 ONSC 3756, R. v. Singh, 2016 ONSC 1144, R. v. Rowan, 2018 ONCJ 777, R. v. Lacku, 2019 ONCJ 88 and R. v. Wijesuriya, 2018 ONCJ 211. As a result of this jurisprudential guidance, many police services began to take steps to balance these competing interests between the detainee's expectation of privacy and the state's legitimate need to monitor persons in its custody. For instance, the use of privacy gowns as mentioned here, or privacy screens or the pixilation of the videos themselves are some of the methods used to attempt to strike an appropriate balance in this situation.
[19] Once a s. 8 breach is established in these circumstances the focus turns to the appropriate remedy. Initially stays were sought, but courts have shied away from granting this remedy. See Mok for instance. Now it is becoming more established to seek an exclusion of the results of the breath samples pursuant to s. 24(2) of the Charter. The resort to this remedy was initially resisted by the Crown on the basis there was no casual connection between the breach and the obtaining of the breath samples. However, it is clear a causal connection is not required. A temporal connection sufficient so that the breach and the breath samples can be said to be part of the same transaction or course of conduct is all that is required to make the exclusion of the evidence an available remedy (see Deveau paragraphs 15 to 19).
230In R. v. Mok (2015) ONCA 608, the Court of Appeal for Ontario held as follows:
[4] Leave to appeal in this case was sought on both grounds. As both courts below found a breach of s. 8 of the Charter, the only issue on appeal was whether a stay was the appropriate remedy for the breach.
[5] The stay was originally granted by the trial judge as the remedy in this case based on the evidence that this was not a unique incident. At the time, the York Regional Police viewed and videotaped all prisoners using the toilets in their cells as a matter of policy. However, on this appeal, the court was told that since the decision of the summary conviction appeal judge upholding the finding of a s. 8 breach, steps have been taken by the York Regional Police to ensure that prisoners' privacy while using the toilet is now protected from both viewing and videotaping. This information confirmed the findings made by a number of other trial courts recently faced with the same issue, who declined to order stays: see R. v. Arbelo, 2014 ONCJ 257, at para. 31 on changes to York Regional Police's videotaping practices; see also R. v. Orenchuk, 2014 ONCJ 650, at para. 63, and R. v. Griffin, 2015 ONSC 927, at paras. 10-11, on changes in practice at other police forces.
231In Moordi, the Charter remedy sought was an exclusion of the evidence of the accused's blood alcohol concentration. In this case, Bancroft seeks a stay of proceedings, a Charter remedy reserved for the "clearest of cases". The distinction is an important one.
Disclosure
232In R. v. Gubbins, 2018 SCC 44, Rowe J., speaking for an eight member majority of a full panel of the Supreme Court of Canada, reaffirmed the principles governing the Crown's disclosure obligations as follows:
[18] In R. v. Stinchcombe, [1991] 3 S.C.R. 326, this Court held that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This is referred to as first party disclosure. The Crown's duty to disclose corresponds to the accused's constitutional right to the disclosure of all material which meets the Stinchcombe standard: R. v. Dixon, [1998] 1 S.C.R. 244, at para 22. The purpose of disclosure is to protect the accused's Charter right to full answer and defence, which will be impaired where there is a "reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence": ibid.
[19] The Crown's duty to disclose is triggered upon request and does not require an application to court: Stinchcombe, at pp. 342-43. The duty is ongoing; new information must be disclosed when it is received: ibid. The Crown's duty to disclose is not absolute. The Crown considers relevance and the rules of privilege. Where the Crown refuses to disclose evidence for reasons of privilege or irrelevance, the defence can request a review; in such an instance, the burden is on the Crown to justify its refusal to disclose by showing that the information is "clearly irrelevant" or privileged: Stinchcombe, at pp. 339-40.
233Further at paras. 21 to 23, Rowe J. went on to explain:
[21] In McNeil, this Court clarified that "the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown": para. 24. The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant: McNeil, at para. 49. As well, the police have a corresponding duty to disclose "all material pertaining to its investigation of the accused": McNeil, at paras. 23 and 52. Such material is often referred to as "the fruits of the investigation": McNeil, at paras. 14, 22-23. As well, the police may be required to hand over information beyond the fruits of the investigation where such information is "obviously relevant to the accused's case": McNeil, at para. 59.
[22] The "fruits of the investigation" refers to the police's investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/ Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet. In its normal, natural everyday sense, the phrase "fruits of the investigation" posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused. (R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 92-93)
[23] In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additional information that is "obviously relevant" to the accused's case. The phrase "obviously relevant" should not be taken as indicating a new standard or degree of relevance: Jackson, at para. 125, per Watt. J.A. Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the Crown's case, raise a defence, or otherwise consider the conduct of the defence. McNeil requires the police to hand such information to the Crown.
The Right to a Fair Trial (Counsel/Telephones/Internet Access)
234Typically, a Rowbotham application is the vehicle by which an accused seeks to redress the anticipated breach of the right to a fair trial. With the assistance of counsel, Bancroft brought such an application. It was denied by Ratushny J. on March 28, 2019. Her Honour in R. v. Bancroft (2019) ONSC 1931 explained the test for state funded appointment of counsel as follows:
1. The Test on a Rowbotham Application
[3] Counsel agree the court's determination of whether to stay proceedings pending the appointment of publicly funded counsel depends on the applicant satisfying all three of the following prerequisites on a balance of probabilities: (a) Legal Aid: The applicant is ineligible for or has been refused legal aid and has exhausted all appeals for reconsideration of his eligibility; (b) Indigence: The applicant is indigent and unable to privately retain counsel to represent him at trial; and (c) Seriousness and Complexity: The applicant's right to a fair trial will be materially compromised absent public funding for counsel: R. v. Rowbotham, (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 45-46.
[4] For the prerequisite of indigence, the inquiry into the applicant's financial circumstances commences when he or she reasonably knew a lawyer would need to be retained to defend criminal charges, and at the latest, when charges were laid: R. v. Crichton, 2015 BCCA 138, 319 C.C.C. (3d) 504, at para. 51, leave to appeal to the S.C.C. dismissed, [2015] S.C.C.A. No. 432, referred to in R. v. Woods, 2016 ONSC 2374, at para. 15.
[5] The court is not reviewing the decision of Legal Aid on a Rowbotham application but is fulfilling its independent obligation to ensure the accused receives a fair trial: R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at para 18.
[6] In considering the issue of a fair trial, the Ontario Court of Appeal stated in Rushlow (at para. 19):
In considering whether to appoint counsel, the trial judge is required to consider the seriousness of the charges, the length and complexity of the proceedings and the accused's ability to participate effectively and defend the case. Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel. This does not mean that counsel is only required in exceptional cases. Rather, it is the fact that legal aid is available for accused who cannot afford a lawyer that Rowbotham orders are exceptional.
[7] In the usual situation governing Rowbotham applications involving, as in the present case, a prospective or anticipated breach of the right to a fair trial, relief is available only on proof there is a "sufficiently serious risk" or a "real and substantial risk" or a "very real likelihood" or a "high degree of probability" that the alleged violation will in fact occur: R. v. Cai, 2002 ABCA 299, 9 Alta. L.R. (4th) 28, at paras. 6, 7, 13 and 32, leave to appeal to the S.C.C. dismissed, [2003] S.C.C.A. No. 360, referring to Cory J.'s remarks in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at p. 159, that deciding prospectively whether there will be a Charter breach is really an exercise in conjecture and it is hard, therefore, for the applicant to show the high degree of probability required.
[8] This reference to a high degree of probability could be understood to move the burden of proof to one that is higher than a balance of probabilities, however, I do not understand these comments to affect the burden of proof and do not apply them in this way. The third branch of the Rowbotham test requires a contextual determination that the applicant's right to a fair trial will be materially compromised absent public funding for counsel and this, in my view, addresses the issue of the need for a high degree of probability as referred to in Cai.
235Her Honour later found:
The Pembroke Charges
[29] For the Pembroke charges the applicant has satisfied two of the three elements of the Rowbotham test.
[30] He has been determined to be indigent and will remain indigent for the trials scheduled to occur soon, in April, May and June 2019.
[31] Although he has not completed the application process with Legal Aid Ontario, I find that it has been effectively completed with his final denial in September 2018 and his unchanged financial status since that time. I agree with his counsel that it would be futile (R. v. Fournier (2006), 209 C.C.C. (3d) 58 (Ont. CA), at para. 9) to require the applicant to continue his application for legal aid for the Pembroke charges, given his present indigent status that is unlikely to change in time for these soon-to-occur trials.
[32] The applicant has not, however, satisfied the Rowbotham element in respect of the complexity of the 30 Pembroke charges. They are related to purchases of a wood processor and fraud. They involve no co-accused. They involve short trials before a judge without a jury. Only the number of charges contributes a degree of complexity.
[33] The applicant's counsel submits that the Ottawa, Pembroke and Belleville charges are inter-related, thereby adding to their complexity. I do not understand this to be the case other than to suggest a pattern of alleged criminal activity by the applicant which, even if relevant, has little to do with the consideration of whether there is a very real likelihood that his right to a fair trial will be materially compromised absent the assistance of counsel.
[34] As the respondent has submitted, the allegations involve straightforward factual circumstances the applicant can understand, such as whether he was or was not involved in the alleged thefts, break-ins and frauds. As such, it appears the trials will be primarily fact-based and not legally complex. The trial judge will assist in procedural matters and in guarding the fairness of the trial process.
[35] I am unable to conclude on a balance of probabilities in respect of the Pembroke charges that there is any very real likelihood the applicant's right to a fair trial will be materially compromised without the assistance of state funded counsel.
[36] It is for these reasons I dismiss the Rowbotham and Peterman applications for the Pembroke charges.
236It should be noted that Bancroft did not appeal the decision of Ratushny J. in respect of the charges before me. He could have done so. He cannot now look to this Court to relitigate that issue. What he is confined to, within the hearing of this particular Charter application, are arguments that in the circumstances in which he finds himself, as a self-represented inmate, his ss. 7 & 11(d) Charter rights to a fair trial in accordance with the principles of fundamental justice have been infringed or denied.
The Reality of Pre-Trial Custody
237In R. v. Adams, 2016 ABQB 648, Clackson J. made these general comments on the conditions of confinement for prisoners in remand centres such as OCDC:
[72] There has been and I suspect there remains the notion that prisoners have no rights and deserve whatever ill treatment they may suffer. Indeed that sentiment was expressed by Stockwell Day relatively recently at a time he was angling to lead one of Canada's national parties. Of course, he was wrong, as are those who harbour the same attitudes and beliefs. Jails are not lawless environments. Criminals are still people entitled to basic human rights and the Charter extends into that environment the same way it extends into all environments.
[73] It is also important to remember that when we are considering behaviours in a Remand Centre, we are talking about many people who, like the accused here, have not been convicted and therefore are presumed to be innocent. While poor treatment of the guilty is not justified, it must be even more true that poor treatment of the innocent is not justified. An accusation does not justify punishment without proof . . .
[74] On the other hand we accept, and I think we must, that jails and remand centres are rough places. They are full of people who have or have had problems. They are full of men who are full of testosterone. The likelihood of conflict is huge. In that environment control is maintained by guards and institutional rules. Control is not easily maintained. Therefore violence erupts, events occur which cause safety concerns and life for both guard and inmate can be difficult and is stressful. Like police, guards have a very difficult job. Both see us at our worse. Both get little respect from the people they arrest or guard. Both have exceedingly stressful and difficult jobs. In those circumstances, we must accept the occasional imperfect behaviour. We cannot expect sainthood from police or guards any more than we can reasonably expect it from ourselves. Having said that, however, major transgressions undermine the confidence we have in our police and our guards. Therefore, when we come across that kind of behaviour we must act decisively to root out the behaviour so as to restore the confidence in and confidence of those whom we trust to act correctly.
Access to Telephones
238In R. v. Farrell, 2011 ONSC 2160, Lalonde J. heard an application brought on behalf of an accused inmate in respect of confinement conditions at OCDC including access to telephones. The remedy sought under s. 24(1) of the Charter was an extraordinary one, habeas corpus. Essentially, Farrell, the accused, was seeking a form of judicial interim release or deliverance from OCDC, so as not to be subjected to further alleged cruel and unusual punishment.
239Lalonde J. made findings on the evidence before him as follows:
[15] The detention center has changed its telephone system recently so as to disallow three-way calling. The problem with this arrangement is twofold. Firstly, in 2011 most people use cellular telephones. When three-way calls are disallowed, it is almost impossible to contact family members. Most cellular phones are not equipped to accept collect calls.
[16] The applicant is unable to effectively instruct counsel on the telephone as a result of this change in the telephone arrangement. Almost every telephone call is interrupted by a machine that announces that three-way calls are not allowed; the line is then disconnected. Despite not being three-way calls, as they are being placed to a lawyer's office on a collect call basis, the system continuously interrupts the calls without notice. In the course of a long and complicated trial, the Applicant claims he is simply unable to instruct his counsel by telephone.
[17] Furthermore, the telephone is unavailable to inmates between 4:15p.m. and 7:00p.m. This is the best time to reach trial counsel because they are in their offices after Court. Preparing for Court is virtually impossible without access to the telephone in the early evening hours.
[20] The meals at the detention centre are insufficient and produced on a four week cycle. The portions are small and the Applicant is consistently hungry. The only other option is to pay for canteen food; however, that food is "snack food" and unhealthy.
[21] There is limited access to reading material and the available material is questionable. The Ottawa Detention Centre has a library and the books are old and almost all of them have many pages missing. Essentially, books are not available because they are not maintained. Library access is irregular. There are books available in the canteen at $15.00 each; however, after a long period of time in jail, money is scarce and the selection is limited to 8 different books.
[22] The detention centre rations toilet paper, toothbrushes, deodorant, soap, shaving cream and toothpaste. There are 16 items distributed between 32 prisoners. This causes frenzy when the material is distributed because there is never a sufficient supply.
[26] The beds are metal and the mattresses are extremely thin. Neck and back pain result from any extended period of time spent on the bed.
240Sadly, it appears not much has changed in terms of the conditions faced by inmates detained at OCDC in the past decade since Farrell was decided.
241Lalonde J. went on to provide a general description of the institutional nature of OCDC:
[36] The OCDC is a maximum security correctional institution under the Ministry of Correctional Services Act ("MCSA"). It provides custody for adult males and females who have been sentenced, remanded, violated parole, or who are subject to an immigration hold. The capacity of the OCDC is 595 and the facility consists of general population units, protective custody units, segregation cells, and a health care unit containing four cells for inmates requiring close monitoring by health care staff. Given its status as a maximum security institution, restrictions are continuously imposed on the movement and liberty of inmates by physical barriers, close staff supervision, and more limited access to the community.
242However, in dismissing the application, Lalonde J. concluded:
Lawful incarceration results in necessary limitations in privileges and rights to maintain institutional security
[47] The Courts have recognized that lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. There must be a mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. This principle applies equally to remanded as well as sentenced inmates. A person in custody simply does not possess the full range of freedoms of an un-incarcerated individual. The problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions.
[48] In Maltby v. Saskatchewan (Attorney General) (1982), 2 C.C.C. (3d) 153 (Sask. Q.B.) at para. 20, Justice Sirois stated:
Prison officials and administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgments are needed to preserve internal order and discipline and to maintain institutional security. Such considerations are peculiarly within the province and professional expertise of corrections officials, and in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters: Pell et al. v. Procunier, Corrections Director et al. (1974), 417 U.S. 817 at p. 827. The unguided substitution of judicial judgment for that of the expert prison administrators on matters such as this would to my mind be inappropriate.
[72] I conclude with the words of Lofchik J. in R. v. Aziga, supra:
Detention facilities are not nice places for nice people. They are institutions for confinement of people either charged with or convicted of crimes. The Applicant is not being "punished" but simply suffering from what appear to be the inevitable inconveniences of the operation and administration of a large detention centre. His situation may not be comfortable and it may be considerably aggravated by the length of his stay but I have found in an earlier application that the delay in this case was not caused by an infringement of the Applicant's constitutional rights.
Internet
243In R. v. Haevischer, 2013 BCSC 1085, Wedge J. set out some of the reasons for banning any inmate access to the internet. Her Honour wrote:
[30] Inmate culture refers to the unwritten rules that govern how inmates conduct themselves. It includes an internal form of hierarchy and an inmate code of behaviour. The hierarchy is ruled by the inmates with the highest authority, whether by their affiliation with a threat group or gang or the notoriety of their crimes. Informants (also known as "rats") and justice system cooperators occupy the bottom of the hierarchy, as there is no greater breach of the inmate code than to testify for the Crown against other inmates. According to the inmate code, an inmate in the presence of a known cooperator is expected to take steps to bring harm to the cooperator, from assault up to murder. Failure to take such steps can expose that inmate to attempted or realized repercussions or lead to loss of credibility within the inmate population. As a consequence, inmates who testify for the Crown can expect their personal safety and even lives to be in grave danger in a correctional setting.
[31] Inmates are naturally curious about other inmates and want to know whether they are "solid", meaning they are not cooperating with the justice system and can be trusted. They will conduct what are essentially reference checks on individuals who come into their ranges, primarily by reference to their names.
[32] Inmates do not have access to the internet or smart phones of any kind. Nevertheless, information from the outside can be brought into an institution in several ways. Inmates have contact with visitors. They also have access to telephones, and are able, for instance, to phone individuals on the outside to conduct internet searches regarding another inmate for them. Inmates receive mail which is opened by CSC officials who inspect its contents for items such as contraband; they do not read correspondence unless specifically authorized to intercept an inmate's communications. Further, inmates have access to televisions (including news channels) and newspapers. Finally, information can make its way into an institution by the transfer of inmates from other institutions. Once it makes its way into an institution, information is rapidly circulated.
244I am mindful that in Haevischer, Wedge J. was commenting upon the hierarchy which develops in a federal penitentiary. I have no doubt, given the size of OCDC and the cross-section of inmates confined within its wall, that a similar pecking order exists there.
A Stay of Proceedings under s. 24(1) of the Charter
245In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, the Supreme Court of Canada reflected on the nature of a stay to redress a breach of a Charter right. The Court elucidated the steps to be followed in determining when this "rare" remedy can be granted:
A. Abuse of Process and Stays of Proceedings
[30] A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.
[31] Nonetheless, this Court has recognized that there are rare occasions — the "clearest of cases" — when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) ([O'Connor, at para. 73]). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.
[32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" ([Regan, at para. 54]);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).
[33] The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids "schizophrenia" in the law ([O'Connor, at para. 71]). But while the framework is the same for both categories, the test may — and often will — play out differently depending on whether the "main" or "residual" category is invoked.
[34] Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.
[35] By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.
[36] In Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, this Court described the residual category in the following way:
For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well — society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para. 91]
[37] Two points of interest arise from this description. First, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example (see, e.g., R. v. Keyowski, [1988] 1 S.C.R. 657), as does using the criminal courts to collect a civil debt (see, e.g., R. v. Waugh (1985), 68 N.S.R. (2d) 247 (S.C., App. Div.)).
[38] Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.
[39] At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.
[40] Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. This Court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed ([Tobiass, at para. 92]). When the main category is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these "clearest of cases", the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.
[41] However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. [5] Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
[44] Undoubtedly, the balancing of societal interests that must take place and the "clearest of cases" threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be "exceptional" and "very rare" ([Tobiass, at para. 91]). But this is as it should be. It is only where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings will be warranted (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667).
Analysis
Was Bancroft's right to privacy under s. 8 of the Charter infringed or denied?
246There can be little doubt that Bancroft, when he went into custody at OCDC on Sept. 6, 2017, was in poor health. He had lymphedema. He was obese. He needed medical treatment. Not surprisingly, he appears to have spent the majority of his time while incarcerated at OCDC housed in its health unit.
247The administration of medical care in a correctional facility has its challenges. I cannot envisage a situation where the health professional who provides the care would not wish to have a guard present to see to his or her own safety. For an inmate, there is clearly an invasion of privacy to a certain extent when she or he consents to the required treatment, but not to perhaps curious, watchful eyes of a correctional officer, or of other prisoners. Moreover, jails and even holding cells at courthouses, are commonly equipped with video camera surveillance.
248Occasionally, a teaching opportunity may present for one or more health care professionals within a correctional institution to learn from another how to administer a particular form of treatment. Consent, of course, from the inmate to permit the others to observe should be obtained. At times, and with the fluidity of the situation, health care professionals instructing their colleagues may overlook the need to obtain consent from an inmate patient. Although unfortunate, it hardly warrants a stay of proceedings as against the inmate, who was not asked to provide his or her express consent. Seldom would be the occasion, in my view, where an inmate would withhold his or her consent to allowing others to learn how to administer a specific course of treatment.
249Bancroft's primary PSW, Finter, indicated that Bancroft consented to her putting on his stockings. He showed no embarrassment in undergoing the procedure. He assumed the "spread eagle" position himself. She could not recall a single instance when he complained about a lack of privacy. If Finter put on compressions socks, or applied bandages in a public corridor, it was Bancroft's conscious choice to have the assistance given then and there. Somewhat ironically, it was Hennigar, the health care manager at OCDC, who ended this practice. She insisted that the procedure be conducted in a doctor's room or examination room to afford more privacy to Bancroft.
250If Bancroft wanted to take a shower, I believe what Finter said to be true. Bancroft was able to shower much of his body on his own without assistance. Whenever he needed help, he insisted on being attended to by a female PSW.
251Turning to an inmate's use of washroom facilities within a correctional facility, clearly one cannot expect the same measure of privacy offered as with an individual in the community. Inmates can be harmed by others behind closed doors away from public view where the fear of consequences for the assailant are near nonexistent. That is not to say that an appropriate balance should not be struck depending on the individual circumstances to allow for privacy to be respected while ensuring security from a correctional perspective.
252Strip searches to rid jails of contraband, for example, weapons and drugs, are also a legitimate pursuit of correctional officers for their own safety as well as the safety of all inmates.
253Of equal importance is the prevention of self-harm by the despondent inmate. Often the desperation of their situation, even when not serving a sentence, but merely awaiting an opportunity for bail, or completion of their trial, becomes overwhelming. Serving time behind bars is never easy.
254I have extensively and carefully reviewed the Affidavit of Hennigar, the Acting Health Care Manager at OCDC sworn November 14, 2019. If anything, it confirms for me that when Bancroft entered OCDC on September 6, 2017, he was in a very poor state of health.
255Over the course of the next seven to eight months (September 2017 – April 2018), he received the medical care he required. His condition improved steadily. I have no evidence to determine if it should have taken as long as it did to appropriately address his lymphedema. However, I see nothing in the record put before me to suggest that Bancroft's medical care was neglected while he was an inmate. Whenever he needed to be moved back to the OCDC's health care unit, or to be seen at an external facility such as the Ottawa Heart Institute, for example, he was taken.
256He received customized compression socks. He obtained new ones after losing weight. Health care staff regularly and routinely performed his Coban wrappings and dressing changes. On April 17, 2018, the nursing notes attached as an exhibit to Hennigar's affidavit evidence commented "Compression stockings arrived. Teaching done."
257His PSW, Finter, assisted him with showering on a near daily basis unless court attendances interfered. It was typically Bancroft's own insistence on female PSW's to help with showering that saw him go days without. Furthermore, Bancroft reached the stage where he could shower "autonomously" according to the nursing notes.
258In Bancroft's Plan of Care, to which he agreed, he knew that "[a]t the [correctional] officer's discretion, the shower door shall be maintained open to allow for visual observation to ensure safety at all times". Clearly, Bancroft appreciated that his and others' personal safety and security rights could from time to time trump his right to privacy.
259When Bancroft's mental health deteriorated to the point where he contemplated suicide, the nursing notes of December 18, 2018 documented that it was "peer pressure in dorms" which caused Bancroft to despair to such a degree.
260I accept that Bancroft may have occasionally been belittled by other inmates. They are not state actors. Body shaming has gone on since the dawn of time. Inmates chirping, teasing and taunting one another is hardly novel.
261On the other hand, guards engaging in this type of behaviour is not appropriate. I accept what Bancroft says about the occasional insult he suffered from correctional officers. His social worker, Prudhomme, confirmed this type of badgering occurred. With his liberty taken from him, and his everyday movements strictly controlled, the last thing Bancroft needed was to be ridden by guards.
262However, Finter did not recall hearing any such banter. I conclude that any insults correctional officers hurled at Bancroft were much more the exception than the rule.
263Turning to the possession of electronic devices within institutions such as OCDC, they give rise to a legitimate worry for correctional authorities. Using such devices to invade the privacy of other inmates would be for them a minor concern, I would venture. The greater evil is that smartphones, laptops, tablets and the like can be employed to interfere with the administration of justice. Clearly, they can be utilized to intimidate or threaten potential witnesses against the accused. They can also be used to obtain information on fellow inmates. Last, but not least, they could serve as powerful tools to provide instructions to outsiders on how potentially to deliver contraband to the jail, or on how to coordinate and assist in an escape attempt by an inmate.
264In sum, I find on the totality of the evidence that Bancroft has not satisfied me on a balance of probabilities that his right to privacy under s. 8 of the Charter has been infringed or denied.
Was Bancroft's right to Crown disclosure under s. 7 of the Charter infringed or denied?
265The following timeline must be borne in mind to determine whether Bancroft's s. 7 Charter right to Crown disclosure was violated:
a) Sept. 6, 2017 – Bancroft is arrested and held in custody,
b) Nov. 2, 2017 – Bancroft's counsel (Friedman) requests Crown disclosure,
c) Nov. 23, 2017 – Crown sends disclosure to Friedman,
d) Jan. 5, 2018 – Friedman informs Pembroke Crown he is not retained to act for Bancroft on the Pembroke charges,
e) Jan. 31, 2018 – Friedman confirms at Pembroke Crown's request that he is now retained on the Pembroke charges,
f) Feb. 2, 2018 – all Crown disclosure is sent to Friedman by the Crown in relation to the Pembroke charges,
g) July 10, 2018 – Friedman requests and the Court orders his removal as counsel of record for Bancroft,
h) July 2018 to March 2019 – Bancroft, with the assistance of other counsel, seeks a Rowbotham Order,
i) March 28, 2019 – Bancroft's application for a Rowbotham Order is denied,
j) April 12, 2019 – Bancroft contacts the Pembroke Crown to notify he is being sent back to OCDC from CECC,
k) April 17, 2019 – Pembroke Crown sends disclosure to CECC,
l) April 19, 2019 – Bancroft arrives back at OCDC,
m) April 23, 2019 – Bancroft discovers the Pembroke disclosure is not available for his review at OCDC,
n) April 29, 2019 – Bancroft explains during a video bail appearance he has no Pembroke disclosure for his review,
o) May 10, 2019 – Bancroft is informed by correctional authorities his Pembroke disclosure may have been lost during transport from CECC to OCDC,
p) May 16, 2019 – Pembroke Crown prepares and sends new disclosure package to Bancroft,
q) May 20, 2019 – Bancroft receives and is permitted to review Crown disclosure regarding his Pembroke charges,
r) June 11, 2019 – Bancroft's trial in respect of his Pembroke charges commences,
s) June 13 -14 – Bancroft's trial continues, and
t) June 17 to present – Bancroft's trial resumes, is adjourned, and continues from time to time thereafter.
266Three weeks prior to trial, Bancroft received and began his review of Crown disclosure to prepare for trial in connection with his Pembroke charges as a self-represented, incarcerated accused. Undoubtedly, this was far from ideal.
267However, Bancroft was content to leave it to his retained counsel, Friedman, to prepare his defence. Bancroft's relationship with Friedman irreparably broke down by July 10, 2018. Later his prospective lawyer, who assisted with his Rowbotham application to seek appointment as his defence counsel in respect of his charges before me, was denied state funding to represent Bancroft in Pembroke.
268Through no fault of the Crown, Bancroft did not receive his disclosure shortly after it was sent to CECC on April 17, 2019. I find nothing blameworthy in the Crown's conduct sending the disclosure to CECC notwithstanding Bancroft's assurances he was on his way back to OCDC. Based on information provided by the correctional authorities and relied upon by the Crown, specifically that Bancroft would be at CECC until May 2019, disclosure was sent to him there. There was no bad faith, malice, or negligence in the Crown's decision to send disclosure to Bancroft initially at CECC based on the representations received.
269I accept and find as a fact that the Crown made its best efforts to locate the missing disclosure, and to put together a replacement package for Bancroft by May 16, 2019.
270On copious occasions throughout the course of Bancroft's trial, I have provided Bancroft with the more common and less radical remedy of an adjournment to allow him time to prepare for his trial. I have insisted on the Crown sharing with Bancroft a list of the witnesses it intended to call at various points in time. The sheer length of time the trial has taken to date is testament to the respect shown for Bancroft's right to a fair trial.
271Further, I conclude that Bancroft was less than diligent himself in utilizing the PVLO room, and in making the most of opportunities to access disclosure there, in order to know the case against him and to prepare his defence. The USB stick he found relating to his Pembroke charges, which he did not closely examine until after the commencement of his trial, exemplifies his casual approach to reviewing the materials the Crown was obliged to provide to him.
272Accessibility to Crown disclosure within a correctional facility must be closely monitored and regulated. If it falls into the wrong hands, mayhem can ensue. People can get hurt.
273Restricting the times and places where Crown disclosure can be reviewed by a self-represented, accused inmate is a legitimate policy concern for correctional authorities.
274I cannot second guess the decisions made by correctional authorities as to where and when access to disclosure shall be granted, what type of resources will be allocated to allow for its review, and whether it be in paper format or digitally on a laptop. Inmates are free to make their own notes. Bancroft himself conceded he did not need constant access to his disclosure to prepare for his trial.
275Suffice to say, on the evidence before me, I cannot find that Bancroft's s. 7 Charter right to full answer and defence has been infringed or denied as a result of the state's failure to provide disclosure in its entirety to him at the earliest possible opportunity.
Was Bancroft's right to a fair trial infringed or denied by being compelled to act for himself with no access to the internet and limited access to the telephone?
The Right to a Fair Trial
276A judge, in offering assistance to a self-represented accused, walks a fine line. To the greatest extent possible, the judge must protect the accused's right to a fair trial. At the same time, the judge must respect the Crown's right to prosecute crime.
277Bancroft is a man in his mid-50s. He has no training in the law. He did not finish high school.
278I say this not to disparage Bancroft in any way. Indeed, I have noticed at points in time over the course of his trial thus far his desire to learn, his ability to understand and his root intelligence.
279Bancroft is by no means an able lawyer. He has nevertheless presented his case competently for a man of his level of sophistication, his life experience and his cognitive, analytical ability.
280At every turn, I have attempted to assist Bancroft. I have tried my utmost to provide him with fair opportunity to present his case. Seldom has he not risen to the task.
281In explaining the relevant law and how it is to be applied, Bancroft has appreciated, in my assessment, what I have had to say to him. He has not only grasped, but relished in his right to cross-examine witnesses, to call witnesses in his defence, and to understand the risks that come with choosing whether to testify in his own defence or not.
282At the outset of this trial, I refrained from explaining to Bancroft the essential elements of each of the 23 specific offences he was alleged to have committed. The exercise, I felt, would have overwhelmed a self-represented accused.
283Instead, I opted to assist Bancroft piecemeal where he appeared to require help. I firmly believe I was not in error in doing so.
284I have painstakingly and methodically instructed Bancroft with respect to the general principles which apply to criminal law and procedure. I have ordered essential transcripts to be provided to him at the court's expense. Those transcripts have been sent to him at OCDC as soon as they have become available.
285I do not wish to condone in any way the ill treatment of prisoners received from time to time awaiting trial while incarcerated. More often, I venture, it comes from fellow inmates. Guards must do their utmost to shield those within institutional walls from harm at the hands of another prisoner. The task of correctional officers is not an easy one. However, a just society demands that prisoners receive humane treatment at all times whether awaiting trial or while serving a sentence.
286Conditions at OCDC, like many correctional institutions across our country, are harsh. For the most part, young men are forced to congregate. Occasionally, they collide. It is not pleasant.
287Equally, resources such as access to a Criminal Code, criminal law texts, case law, articles, papers and like publications are scarce, if nonexistent, within any correctional facility. It is unfortunate to say the least.
288The phenomenon of the self-represented accused is a growing one. State funded legal aid to the indigent seems forever on the decline. More ought to be done to provide to the inmate forced to act for him or herself with the necessary resources to prepare his or her defence.
Telephones
289Telephone systems within correctional facilities need updating. Most Canadians use cell phones nowadays. I can safely surmise from life experience in the modern world that the vast majority of our population has abandoned any reliance upon a landline. Our penal system must recognize this reality.
290Most definitely, more liberal access for inmates to telephones should be offered. The inability for them to call a cellular telephone number should be ended.
291If federal and provincial governments choose to continue down the path of reducing state-funded assistance for those who cannot afford to retain a lawyer privately, other minimal measures ought to be taken. Prison libraries should be updated. Resources should be made available to accused to allow them to educate themselves. An accused's ability to understand the case to be met must consequently be built into the penal system itself, as best it can be.
292I hasten to add that there is no substitute for competent, trained legal counsel representing the interests of an accused.
Internet
293Internet access is strictly denied for obvious reasons within correctional facilities. Knowledge is power. Information gathering on fellow inmates is dangerous. The prisoner, who could be a click away from uncovering details on another inmate, is fundamentally unacceptable from an institutional security standpoint.
294However, limited access to permit online, legitimate legal research may be achievable. A court of law however cannot be asked to engineer the means to accomplish this goal. To force governments to do so through Charter relief is not the answer.
295Policy is for elected officials, correctional authorities and prisoner rights advocates within the penal system to develop, to implement and to prioritize.
Conclusion
296In sum, I cannot find on the evidence before me that Bancroft's right to a fair trial has been infringed to the extent that it warrants a stay of proceedings.
297I have no doubt that Bancroft was subjected to rude taunts and barbs from jail guards from time to time over the last three years. I expect those pale in comparison to what he has received from fellow inmates. Serving time in jail is hard.
298Bancroft has had limited access to telephones. Defending oneself as an incarcerated accused is extremely difficult at the best of times. It is exacerbated by a complete denial of access to the internet in this modern world.
299However, Bancroft's plight is far from a clear case which requires a halt to be put to his prosecution by the Crown.
300Bancroft's right to a fair trial has been and will continue to be protected through to the end of trial with my interventions whenever required.
301I cannot find on the evidence proffered before me that Bancroft's right to privacy, right to Crown disclosure and right to a fair trial, as I interpret them in the broadest, most purposive and most cumulative manner, have been violated.
302Accordingly, the applications herein are dismissed.
DATED: October 19, 2020
_______________________________
March, M.G., J.