ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
HARRIS MOHAMED
Before Justice K.L. McLeod
Heard on July 31, August 1,10, 23, October 24, 2023
February 9, 22, October 16,17, 20, 21, 22, 24, December 29, 30, 2025
Reasons for Judgment released on April 27, 2026
Jacob Wilson counsel for the Crown
Adele Monaco and Noelle Sagher counsel for Mr. Mohamed
I The Background
1On August 23, 2023, Mr. Mohamed pleaded guilty to a charge of robbery with the use of a firearm, and possession of a loaded prohibited firearm. He had been arrested on May 11, 2022, at the scene of the robbery; a jewellery store located within the Erin Mills Town Centre Mall.
2This matter first came in front of me for a preliminary hearing, at the conclusion of which, and no doubt after taking some time and recognizing the inevitability of the Crown being able to prove his culpability, Mr. Mohamed re-elected his mode of trial and pleaded guilty.
3This judgment deals with one issue: the Charter Application filed by Mr. Mohamed seeking a stay of these proceedings or, in the alternative, a sentence less than the mandatory minimum. The Crown suggests the disposition should be one of time served, plus ancillary orders (s.109, DNA). Mr. Mohamed’s time spent in custody, with statutory credit would be less than the mandatory minimum sentence of five years imprisonment. Thus to accede to the Crown’s position, would require me to find that the “exceptional case” standard referred to by the Supreme Court in R. v. Nasogaluak1 has been met.
4This Application is brought because of the now well known ICIT Activation that took place at Maplehurst Correctional Centre (MCC) on December 22& 23, 2023.
5Before embarking on consideration of the Charter Application and outlining the various issues under that umbrella, I want to set the context of Mr. Mohamed's wrongdoing on August 23, 2022.
6White Carat is a jewellery store which, at the time of the robbery worked on an “appointment only” basis with customers being admitted into the store through a locked door, which was then relocked. A call had been received and an appointment made. Four men were waiting outside at the appointed time. They were let into the store through the locked partition door which was then relocked by an employee using a key.
7The store and indeed the Mall in which it is located, have surveillance cameras. That surveillance was played in court. After what appears to be initial friendly greetings, one of the four men, wearing a blue hoodie, now identified as Mr. Mohamed, pulled out a gun and informed the employees “it's a robbery, you need to cooperate, or I am going to shoot you”. One of the other men had a taser and showed it to one of the employees. All the men were wearing masks.
8The violence and speed of the robbery was all clearly depicted on the surveillance. A glass cabinet was smashed, and Mr. Mohamed was seen seizing the cash and jewellery. When the assailants wanted out of the store, the door had to be unlocked but an employee was withholding the key. However, when one of the assailants shattered a glass cabinet, the employee capitulated, unlocked the door and the men ran out.
9Outside of the store, however, there was a security officer and two other men who had been alerted to the robbery by the assailants banging on the door. Mr. Mohamed was apprehended and finally subdued by four men. He was found with some of the stolen jewellery in his pocket, cash and the loaded firearm.
10Mr. Mohamed was detained in custody and not released until May 14th, 2025, after having served, I am told, the equivalent of 4.5 years in custody - with credit pursuant to Section 719 (3.1) of the Criminal Code. At the time of the delivery of this judgment he is on a strict house arrest bail with three sureties.
11During the intervening period between his plea and the sentencing hearing, an enhanced presentence report was prepared. Mr. Mohamed is now 28 years of age; the robbery was his first offence. He has no record. The robbery took place two months after his father died. His father had been the victim of a hit and run while waiting for a bus. This gentleman remained on life support for several months before dying of his injuries. Mr. Mohamed was described as having an “on again, off again” relationship with his father.
12Both Mr. Mohamed’s cousin and mother believe that it was during the time of this unfortunate occurrence that Mr. Mohamed started to be unable to cope. Mr. Mohamed has 5 siblings; his mother has almost single handedly provided for the family and is described by her son as “a superhero”.
13Mr. Mohamed has graduated from High School and has a wish to become a skilled trades person.
II The Charter Application
14At the outset of this proceeding the Crown had conceded a Section 8 breach, however that landscape has changed. On the 6th day of this hearing, Justice Conlon's decision in R v Whitlock2 was released. Justice Conlon issued a stay on three accused who were each charged with one count of first-degree murder, due to breaches of Sections 7, 8 and 12 of the Charter at the hands of officers and staff at MCC in respect of the ICIT Activation.
15When this hearing resumed after the Christmas break, the Crown, Mr. Wilson, read into the record the amended position of the Crown in hearings on this issue as a result of Justice Conlan’s decision.
16That statement is as follows:
The Crown is appealing the decision in R. v. Whitlock et al. and will be taking issue with both factual findings and legal conclusions of Justice Conlan in that case.
In the interest of judicial economy, the Crown accepts that it is not practical to contest the factual findings made at paragraphs 41-407 of Whitlock for the purposes of this stay application. To be clear, the Crown reserves its right to challenge those factual findings on any appeal that arises from this Court’s decision. That said, the Crown accepts that it is open to this Court to make findings of fact based on Justice Conlan’s conclusions.
Justice Conlan found breaches of ss. 7, 8, and 12. In light of the principle of horizontal stare decisis, the Crown agrees that this Court can also find breaches of s. 7, 8, and 12. The Crown is appealing the findings of breaches of ss. 7, 8 and 12 in R. v. Whitlock et al. The Crown reserves its right to appeal the findings of breaches of ss. 7, 8 and 12 in this case as well.
The Crown reserves its right to call additional evidence on this application and argue that the appropriate remedy is a reduction in sentence.
17Given the evidence I have heard, and the unique experience of Mr. Mohamed because of the officers' actions, I have concluded first that I share Justice Conlon's concerns about what occurred at MCC and the concession of the Crown, but secondly that Mr. Mohamed deserves findings from me on the evidence I have heard. I understand the Crown may well appeal my factual findings because of its aforementioned concession; however I am hopeful that my findings will merit a consideration on their own merits because of the evidence I have heard and will come to a decision on this individual judgment and not just as a matter of course, issue an appeal notice.
18To put it simply, I believe Mr. Mohamed deserves finality on this episode of his life. I intend to review each of the witness’s testimony as I heard it and make my findings on it.
19Both Crown and Defence filed as Exhibit 1, a lengthy statement outlining the background of the occurrence on which evidence was called. I am grateful to them for this cooperation as it succinctly covers the entire set of circumstances and is reproduced in full in this judgment. I also wish to thank counsel for their obvious cooperative efforts throughout this hearing to accommodate witnesses and to control the presentation of the evidence. To work in such a collegial environment made this difficult hearing run smoothly.
20Agreed Statement of Fact – MCC ICIT Deployment
The Institutional Crisis Intervention Team
The Ministry of the Solicitor General’s Institutional Crisis Intervention Team (“ICIT”) is comprised of correctional officers with specialized training and techniques to generally control rebellious, non-compliant, aggressive, violent, or potentially violent inmates in a disciplined and professional manner.
The intended purpose of ICIT is the peaceful resolution of an institutional crisis, where one exists, through a disciplined show of force. ICIT may also be authorized as a preventative measure for risk mitigation, if it is established that risk exists, to ensure safety.
ICIT is responsible for removing, searching, and escorting inmates to a secure area within the institution.
Ministry policy stipulates that when determining the level of response to a reported and documented threat, the institution is to intervene in a “necessary manner, consistent with the nature and immediacy of the threat posed”. ICIT will be called upon when the threat level exceeds an established threshold. The threshold will be established by a Threat Level Assessment, which must be conducted prior to the deployment of the ICIT team.
MCC ICIT Deployment, December 2023
In December 2023, Mr. Mohamed was an inmate in Unit 8, Wing C, Cell 4 at Maplehurst Correctional Complex (“MCC”).
On December 20, 2023, an inmate at MCC assaulted a correctional officer in the dayroom of Unit 8C (the “incident”). The incident was captured on video surveillance. The assaultive inmate was immediately apprehended. One other inmate approached the correctional officer and was also apprehended. A third inmate who approached correctional staff was eventually also escorted off the wing. The three inmates were put into segregation. A Code Blue was called and inmates were safely returned to their cells, without incident, in under twenty minutes.
On December 21, 2023, Superintendent Wong approved the deployment of ICIT to search the inmates in all wings of Unit 8 (8A-8F) and for correctional officers to search Unit 8 cells for weapons, wing by wing, due to what MCC staff perceived to be “rebellious and out of control inmates” following the assault on the correctional officer.
There was no written report provided to Superintendent Wong of any weapons, notwithstanding his direction to search for weapons, nor did any officer report that weapons were subsequently located.
The “rebellious and out of control” behaviour relied upon by Superintendent Wong to justify the deployment of ICIT remains to date unsubstantiated.
On December 20, 2023, immediately following the assault, the assaultive inmate was immediately removed from the range. Two days later, on December 22 and 23, 2023, despite no further out of control behaviour or significant new security/discipline issues arising since the guard was punched, ICIT was deployed. ICIT entered Wing C in or around 9:30am.
On December 22 and 23, 2023, ICIT teams entered each wing on Unit 8 wearing tactical gear. Some ICIT officers were carrying pepper ball launchers. ICIT directed inmates to remove their clothing down to their boxer shorts, applied Nikyo control, restrained their wrists with zip-ties, and searched them.
Prior to escorting Mr. Mohamed into the hallway, ICIT pulled Mr. Mohamed to the shower for decontamination in his boxers. He was not towelled afterwards or at any time. Mr. Mohamed was then brought, wet, from the showers, to see the nurse. The nurse noted no injuries for any of the inmates on Unit 8. Following his less-than-30-second assessment by Nurses Henry and Goulbourne, he was then brought into the corridor where he remained seated on the floor, still in wet boxers, zip-tied, facing the wall alongside numerous other prisoners who were treated similarly. Mr. Mohamed remained in that position for most of the two-hour period between approximately 9:52am and 11:52am, other than a three-minute period from 10:56 to 10:58am and a nine-minute period 11:13am to 11:22am, during which intervals he was made to stand up and brought, still zip-tied, by ICIT officers to an area of the prison that was not visible on disclosed video-recordings before being returned to sit on the floor against the wall.
While the inmates sat in a hallway in their boxers, MCC staff searched their cells. Inmates sat cross-legged facing the wall. Multiple hours later, inmates were then returned to their cells in their boxer shorts.
Mr. Mohamed was returned to his cell at 11:52am, where he remained in his cell in only his boxer shorts, until December 24, 2023, despite sufficient laundry being available.
Mr. Mohamed and other inmates complained of being cold during the ICIT deployment and viewed this as a punitive measure. The exhaust fan report confirmed that the temperature in Wing C dropped approximately 2 degrees Celsius over the period between December 21 and 24, 2023.
CSOI Investigations
On June 21, 2024, the Deputy Solicitor General of Ontario requested that Correctional Services Oversight & Investigation (“CSOI”) conduct an investigation into the ICIT Deployment. CSOI reviewed surveillance, logbooks, policies and occurrence reports and conducted interviews with over 70 witnesses (corrections officers and inmates).
In a report dated October 31, 2024, CSOI found that MCC had not completed the requisite Threat Level Assessment and concluded that the ICIT deployment was "unnecessary, excessive, and unproportionate [sic] to the threat posed by Unit 8 [inmates]”. There were no documented reports of weapons or rebellious or aggressive behaviour between when the guard was punched and ICIT deployed.
Charter Breach – (This was the Crown’s position prior to the release of the Judgment in R. v Whitlock)
The ICIT deployment breached the Applicant’s s. 8 Charter rights.
While not every failure to follow Ministry policy will result in a Charter breach, the Crown concedes that in the particular circumstances of this case, a section 8 Charter breach is established.
While the superintendent may authorize a strip search of an inmate pursuant to s. 23.1 of the Ministry of Correctional Services Act, the manner in which the search was conducted in this instance – using the ICIT team for all of Unit 8 – was unreasonable based on the findings of the CSOI investigation.
The CSOI investigation concluded that Superintendent Wong’s authorization of an ICIT activation after the December 20, 2023 incident was unnecessary, excessive and disproportionate to the threat posed by the Unit 8 inmates in large part due to the failure to conduct a formal risk assessment for the presence of weapons. There were no documented reports of weapons or rebellious or aggressive behaviour until four months after the incident took place. As the Crown concedes, the ICIT deployment was unnecessary and excessive.
The Institutional Search Policy requires correctional staff to conduct strip searches in a manner that preserves dignity and human rights and does not cause unnecessary embarrassment or humiliation. Inmates are not to be unclothed for longer than necessary.
Mr. Mohamed was unclothed for three days, from December 22 to 24, 2023.
III The Evidence
Mr. Mohamed’s Affidavit
21Mr. Mohamed filed an Affidavit in support of his Application. The body of that Affidavit is reproduced here:
I am Harris Mohamed, the Applicant in this matter, and therefore have knowledge in the information I herein depose.
My counsel is Adele Monaco from Monaco Chartier Criminal Lawyers.
I was arrested on May 11, 2022, and charged with the following offences:
a. Robbery;
b. Disguise with intent;
c. Firearm – use while committing offence;
d. Point firearm;
e. Unauthorized possession of firearm;
f. Knowledge of unauthorized possession of firearm;
g. Possession of a loaded prohibited or restricted firearm; and
h. Unauthorized possession of a prohibited device or ammunition.
On August 23, 2023, I plead guilty to robbery with a firearm and possession of a loaded prohibited firearm.
Since my arrest and until May 14, 2025, I was an inmate at Maplehurst Correctional Complex (“MCC”). I have been on house arrest with an ankle monitor since my release on May 14, 2025.
While at MCC, I was in Unit 8C, cell 4.
On December 20, 2023, I was in the shower when I heard a fight. I was immediately yelled at to go to my cell. I was soaking wet but rushed to get my clothes on. While in my boxers, still wet, I was grabbed and pushed forcefully to my cell by multiple guards.
On the night of December 21, 2023, a guard who was walking my unit was threatening us with punishment because of the fight the previous day. I remember one stating “we’re going to paint the floor with you guys” and “we have something in store for you guys”.
On December 22, 2023, I was still housed in Unit 8, cell 4, when the Institutional Crisis Intervention Team (ICIT) was deployed.
I was sleeping on the top bunk in my cell and my cellmate was on the bottom bunk. Our range was flash banged, and the flash bang hit the shower, which was very close to my cell.
I heard people screaming orders but could not decipher what was being said. I remember lasers focused on my cell.
Eventually, multiple ICIT members came to my cell. I was asked to take my clothes off and to get on the ground. I was complying when I was pepper sprayed. When I tried to ask the guard why I was pepper sprayed, I was told “this is what you deserve.”
My cell mate was dragged out and then they came for me. I was asked if I was the one who was disrespecting the officers the night before. They told me to sing “Jingle Bells” while the men were in my cell. My head was smashed on the ground, the back of my neck was punched, and my arms were twisted in uncomfortable ways. Another man said, “you will not be home for fucking Christmas.” My face was then smashed on the ground again. All I saw was blood, vomit, and pepper spray on the floor.
I was then picked up to go to the shower. One or two of them were grabbing my hair. I could not see anything. I did not get properly decontaminated.
I then went to see the nurse. I told her I hurt everywhere in my body. I was then moved to the hallway with the other men. At one point, my cellmate began to have a seizure beside me. He started foaming at the mouth. He eventually received medical attention.
Some men were brought to separate rooms and all we heard were screams. After what feltlike a couple hours sitting cross-legged, I started to get a cramp in my leg where I was shot in 2019. I was in excruciating pain. I had a pepper ball gun pointed at my head as a response. Eventually, two men picked me up so I could stretch.
I sat back down. Eventually, again, I got another cramp because of my existing injury, and I asked to stretch again. I was taken down to arrival and departure and was forced to have a scan for unknown reasons. On my way down, I was continuously hurt, especially my wrists, due to the way I was being held. The same thing occurred on my way back up. When I came back up, I sat back down facing the wall.
When I eventually came back to my range, and we were allowed back in our cells, I had nothing left. The only thing left in my cell was a small piece of cloth and my prayer mat. All of my property, clothing, canteen, and hygiene items were gone. Some other inmates had their shoes in their toilets.
At one point, I thought I had to call poison control because I was not properly decontaminated. My eyes were irritated, everywhere I touched was burning, and I was coughing all night. I also observed blood in my phlegm. No one was giving me medical attention. In the morning, other inmates were giving me their milk because they knew how bad I was pepper sprayed. I was covered in rashes.
The temperature was so low in Unit 8 that I could see my breath. The COs were wearing jackets on their night walks. My mattress was stripped so I was sleeping on plastic. I had no clothes, no sheets, and no blanket.
My experience in Unit 8 at MCC was traumatic. In 2019, I was a victim of a shooting, and I was significantly distressed. What happened to me at MCC has intensified my trauma, which I am still trying to work through.
I make this affidavit in respect to my sections 7, 8 and 12 Charter application and for no other or improper purpose.
The Viva Voce Evidence of Mr. Mohamed
22Mr. Mohamed testified on the Application. He explained that he had pleaded guilty to robbery in August 2023, at that time he had been in custody for 8 months during which he was housed in Unit 9 for 2 months, then transferred to Unit 8C where he remained until he was released on bail.
23He described the conditions in MCC up to the time of the ICIT deployment as being bad, including a lack of toiletries, toilet paper, clean sheets – some had to use the same sheets and blankets for months. He described his whole unit protesting the conditions through hunger strikes for as long as 3 days to improve conditions such as access to showers.
24Mr. Mohamed explained that on the day of the Lecinski assault he was in the shower, he recalled hearing a commotion, looked out and saw a guard lying on the ground. He did not see anyone fighting or resisting orders to go into lock up. He tried to put on his boxers and gather his clothes when a correctional officer came and took him from the shower area and shoved him towards his cell.
25A video of the incident shows someone peeking out from what we were told was the shower close to the staircase leading to the second landing.
26Mr. Mohamed explained that at this time, given the proximity to Christmas, the inmates had been permitted double canteen bags which included food and hygiene supplies. They were all permitted to spend $180.
27With respect to clothing, he explained that some of the issued clothing was warmer than others, and those clothes were saved by the inmates. He explained he suffered from low iron and was always cold in his cell.
28The day after the assault, Mr. Mohamed explained they were locked down in their cells for the entirety of the day, without knowing the reason. However, he overheard a guard in the evening as he walked past the cell saying something to the occupant of the next-door cell something akin to “We have something in store for you guys, we are going to wipe the paint off the floor”.
29On December 22nd, Mr. Mohamed said he was sleeping at 9 a.m., which was unusual as he usually gets up around 7;30 to 8 because his medications would be delivered. He was awoken by a loud bang; he saw a flash through the cell window and saw guards in riot gear. He counted 30-35 in number who were dressed, as his cellmate told him, like Power Rangers. Mr. Mohamed saw men with pepper ball guns and laser flashlights. He recalled one guard with a microphone, saying something which was muffled, but what he could make out was that they had to go to the back of their cell and strip to their boxers.
30Mr. Mohamed explained that more was said, but he could not make it out as the person who was giving the orders was doing so through balaclavas and visors.
31Mr. Mohamed described how he had to hand his clothes through the cell hatch. However, a scrutiny of the video of Mr. Mohamed’s cell during the extraction did not show any clothes being handed through the hatch. This inaccuracy is not pivotal to an assessment of the reliability or credibility of the entirety of his version of what he experienced during the ICIT activation as there is video of much of what occurred. Nor frankly it is surprising that his account was inaccurate on this detail, given what was inflicted upon him within minutes of the commencement of the Activation.
32What Mr. Mohamed did describe is that both he and his cell mate tried to cooperate with the instructions that they understood. He described it as follows: one inmate had to face the back of the cell, while the other stripped off his boxers in front of the cell window and satisfied the officers that he had no weapons concealed on him and then covered their privates with their boxer shorts. The same procedure was followed for the second inmate: in this case Mr. Mohamed. Apparently when the inmates normally changed clothing it was done individually behind a curtain to preserve individual privacy.
33After this examination, Mr. Mohamed explained they were told to lie on their stomachs on the floor, with their legs up pointing towards the door. His cell mate was closest to the door. He explained the pepper spray was pumped through a crack in the door with the nozzle facing directly towards him. He felt burning on his skin everywhere, he was coughing, he could not breathe, and he was trying to massage his throat. He described standing up and vomiting, his eyes were excruciating and said he could not see anything. Mr. Mohamed explained that he was the one who was further away from the door, he received the worst of the spray.
34He said he was confused, in shock and was asking “why did you pepper spray me” and was told because he deserved it. He could not hear exactly what he was being ordered to do, and they were pepper sprayed again. He said the guards were screaming at him to go back down to the ground, but his cellmate warned him there was pepper spray on the floor. He went down and just waited while his cellmate was dragged out feet first on his stomach.
35In court I observed the video of the events taken from outside of Mr, Mohamed’s cell, including the two pepper spray attacks. The cell door was opened, the pepper spray clearly fired, and then the door of the cell closed again. Again, within minutes, the same action was repeated. Presumably the closing of the cell door was to make sure the effects of the pepper spray would permeate the entirety of the closed cell.
36Again, the video shows there were at least 3 or 4 guards at the door of the cell, then 2 more guards can be seen joining the others. They are seen entering the cell in which Mr. Mohamed was by then the only occupant. Mr. Mohamed explained that at one point he was lying on the floor in a “hog tied position” waiting to be taken out.
37A riot shield was held by one of the guards, he went in first. Mr. Mohamed described how a guard with a shield jumped on his back and pressed the shield on his back. Mr. Mohamed recalled screaming. He described two guards grabbing his wrists and fingers twisting his fingers and hands. One guard pressed his head to the ground with his knee and was punching Mr. Mohamed. His face was smashed into the ground, he was coughing and vomiting with the riot shield guard pressing down on his back and another guard contorting his feet. Everyone, Mr. Mohamed said, had a job!
38Mr. Mohamed described how he was bleeding from his mouth and that his eyes still suffer the effects of the pepper spray. He recalled how when he was on the ground he was in excruciating agony but heard the guards saying he would not be home “for fucking Christmas” and that he was asked to sing Jingle Bells. He did not.
39The video does show that when the door is opened for the first time to deploy the pepper spray, it appears as though someone is standing at the back of the cell. Mr. Mohamed did change his testimony upon observing that video and agreed that because of the video, it appears he was not on the floor. Again, while that may have been taken as a sign of disobedience by the guards and would explain why Mr. Mohamed had a burning sensation to his front and his back, I do not find this inaccuracy to adversely affect his credibility in describing what happened to him given the horrific nature of the effect of the pepper spray.
40Mr. Mohamed agreed the guards then took him to a shower for a couple of minutes, his head was forced up to the nozzle, but he could not see anything, water was rushing into his mouth and throat, and he could not touch his eyes as his hands were tied behind his back. He also explained that the hot water mixed with the oil of the pepper spray reignited the spray’s effects and he felt he was burning.
41Mr. Mohamed recalled being taken out of the shower and being walked to the front of the rotunda where a guard and nurse were waiting for him. Mr. Mohamed says he told the nurse he was pepper sprayed but did not receive a proper examination. He described the nurse as “taking six seconds to write me off”. I have looked at the video of the removal from the shower, he is not provided with a towel and as he comes out, he is stopped and surrounded by officers. His arms were manipulated to put him into a hold which clearly caused him at one point to lift his leg, presumably because of the contortion that is seen. A snapshot of this moment follows:
42He was walked to the nurses’ station by three guards and described being nudged forward by what felt like the barrel of a gun. This is an excerpt of the video from MCC included as an exhibit. It depicts Mr. Mohamed from the rear as he was presented to the nurse, which indeed shows an officer pressing the end of what looks like a gun into the back of Mr, Mohamed and he on his tiptoes.
43In terms of the restraint position Mr. Mohamed was placed into, he described it as “bat like” to be placed into that position it felt like his arms were being ripped out of their sockets. He was told by one of the guards that “you are a big guy you can handle it”.
44A photograph3 was taken of Mr. Mohamed as he was taken to the nurse. From this image, one is able to see not only the way in which his arms were manipulated and held with zip ties, but also the close-up view of the officers’ attire. Furthermore, the extent of the visibility of his body and of the inability of any nurse in a few second interaction to do her job, cannot conceivably fit the description of a medical examination.
45Mr. Mohamed also described the scene in the nurses’ hallway. He realized there he was the third person who had been pepper sprayed including the person who was seated next to him. He described how he would see when a guard was pointing the pepper ball gun at them, they would see a flash of light.
46Mr. Mohamed described being in the hallway for hours, describing how he had suffered a preexisting injury to his right leg which required stretching to relieve cramps. There were other men who were unable to sit cross legged for long periods of time. Mr. Mohamed described one person who explained to the guard that he could not sit cross legged due to a bike accident. The guards picked him up and took him into a room, from which Mr. Mohamed heard screams. One of the inmates is seen on the video rolling onto his side, Mr. Mohamed was next to him. Mr. Mohamed described how this man had not had his medication that morning and had a seizure. Mr. Mohamed informed the guards of this, but they did not believe him, but they did take the inmate away.
47Mr. Mohamed also said he was walked to A & D for a scan, during which nothing was found, after asking again to be allowed to stretch.
48Mr. Mohamed also explained that when they were allowed back to their cells, all that remained after the search was his prayer mat and a washcloth. Everything else had gone. The operating industrial fans were allowing cold air into the cell and remained on, despite requests, and for what seemed to be a period of four and five days thereafter during which the cell became colder. During this time, there was nothing to clean the smell of pepper spray from the surfaces on which the pepper spray had been deployed.
49Mr. Mohamed also explained that they did not receive blankets or clothes to wear. On the first night, they were only provided with sheets. They had no clothes and no blankets for the days that followed and for Mr. Mohamed, who has anemia, he described that he really suffered from cold remaining in wet boxers and nothing more. Some of the inmates tried to help him by providing him with their portion of milk so that he could clean the pepper spray off himself.
50For Mr, Mohamed, he found this experience sent him “into a state of shock”. He explained he had never before suffered an ICIT Activation and found the abuse very difficult. He explained there is an inmate code that dictates they take abuse “on the chin: but everything had been taken from them. Mr. Mohamed described one inmate as a 19-year-old only on driving charge, for whom this experience was extremely hard.
51While Mr. Mohamed was cross-examined on some of the details that he had provided in his Affidavit particularly about being able to see his breath because it was so cold. He explained that the lower half of the range was colder than the upper range and he was on the lower range. He also explained that he was coughing for 3 to 4 days, his skin had rashes, he was nauseas, had headaches and had a fever.
52I did ask Mr. Mohamed if he was known as a troublemaker in the range, which may have led to the extreme treatment he endured. He indicated that he followed the rule of the range, which is that that two more senior inmates would be the “servers”; i.e., the inmates who would liaise between inmates and the guards about issues. He denied ever causing a problem.
53While all the officers denied that Mr. Mohamed was taunted about not being able to go home for Christmas or being asked to sing Jingle Bells, having observed Mr. Mohamed recount his experience, I accept that this part of his version of events is so remarkable, it could not be fabricated. There was no need for Mr. Mohamed to exaggerate what occurred, we were able to see so much of the gratuitous cruelty, it is not a stretch to accept that he was taunted in the way he described.
54Given the video surveillance tapes that were played in court and much of Mr. Mohamed’s testimony being corroborated by those tapes, I have no reason to find him to be at all incredible, although as stated earlier, his reliability on some of the details was not surprisingly flawed in the few particulars as described.
55Mr. Wilson for the Crown, at the conclusion of Mr. Mohamed’s evidence; he was the last witness called in the hearing, conceded that he was not aware of any other inmate in MCC being treated worse than Mr. Mohamed and apologized to Mr. Mohamed for him having suffered to the extent he was abused.
The Evidence from MCC Officers
Mr. Adam Mascolo
56Mr. Mascolo was a member of the ICIT team who worked in the A & D department where many of the team worked. He had been A & D at the time of the deployment for 6 months. He could not recall in that period how many, if any, major ICIT deployments had been activated.
57Officer Mascolo was one of the officers who responded to the Code Blue alarm when the assaultive behaviour by an inmate on Officer Lecinski took place on December 20th. He described running to Unit 8 and recalled seeing inmates “loud rowdy yelling, like inciting”. He saw inmates in the wings yelling and banging on the windows.
58He had been informed the day before the ICIT deployment of the proposed action. He was to be one of the arrest officers. He knew it was to be a Level 4 deployment which he described as “inmates taken out cell by cell, strip searched and then returned to the cell”. He said he understood the rationale to be for a weapons search. He never documented that fact and testified that he knew this due to “talk throughout the jail”.4
59Mr. Mascolo named his team leader as Mr. Martell who gave instructions to the team the morning of the deployment but testifying two years later could not “honestly recall” what those instructions were.
60While he could not recall which of the wings of Level 8 he was activated, he did recognize himself from the video as one member of the extraction team in Wing 8C.
61Mr. Mascolo explained his role was to apply the “NIKYO hold”5 which he would not concede was uncomfortable or painful, rather he described it as a “position of disadvantage, so we can gain control”6. Once the hold is established flex cuffs are attached to the wrist. That hold is applied through the hatch of the cell
62However in watching the video, he noted that Mr. Mohamed was subjected to a twist lock: that is the left hand is held by holding the outside of the right hand, and the right hand is twisted 270 degrees to the left so that the pinkie finger is closest to the left hand and the right hand is grabbed and the arms are pushed up.
63For those who had received a spray of pepper spray, he described they were taken to a shower and “they can rinse their face off”7. That is achieved by not releasing the hold on the person, rather just instructing them to put their face up to the shower. Mr Mascolo considered that the 29 seconds Mr. Mohamed was held in the shower during which his hands were still tied was sufficient to rinse his face “because I have personally been through it many times”8. From the evidence I have heard it appears any trial runs of pepper spray being cleansed off officers was not done when their hands were locked behind their back and not usable.
64Mr Mascolo testified that after the inmates were brought out of the Wing, they were photographed and seen by a nurse who asked questions. He could not recall what questions were asked but thought it was an inquiry about injuries. He testified that none of the inmates who he brought to the nurse spoke of injuries.
65Mr. Mascolo recalled the commencement of the deployment being through a flashbang and the Team Lead of ICIT giving instructions to have the inmates lay on their stomach and wait until the officer arrived at the individual cells until each inmate was asked to stand up and complete a strip search. These instructions are given from outside the cell door. Mr. Mascolo said that some inmates on 8C did not comply and that Mr. Mohamed who he saw in court, might have been one of those people. He also said that people were pepper sprayed for “non-compliance”. Not surprisingly he said he never saw anyone being pepper sprayed unless there was non-compliance. He considered that the use of pepper spray to enforce compliance was “one of the least intrusive ways to get them to comply9” rather than grabbing them with their hands and the moving of them.
66He also never heard his fellow officers asking inmates whether they had disrespected any officers or any officer saying “You are not going to be home for fucking Christmas” or asking anyone to sing Jingle Bells, as Mr. Mohamed had alleged.
67Mr. Mascolo indicated that the reason the person who we know to be Mr. Mohamed had his hands together in the way depicted in the video that we all watched, was a hold used for High-Risk inmates or non-compliance.
68The Crown asked Mr. Mascolo a series of questions10:
Q…Was it your feeling as ICIT was deployed that day that the purpose of what your group was doing, clearing prisoners out of the cells, was to punish them?
A. No
Q. To hurt them?
A. No
Q. To humiliate them?
A. No.
Q. To torture them?
A. No.
Q. To get revenge for what happened to your colleague?
A. No.
Q. …Did any of your colleagues appear to you to have the attitude that they’re out for revenge, or, to inflict pain, punishment
A. No
69Mr. Mascolo also answered in the affirmative that everything done was done according to protocols, and that none of the holds were inappropriate nor was he aware of any inmate having a seizure while seated on the floor in the nurses’ corridor.
70Overall, this officer refused to consider that any of the actions from the ICIT deployment were in any way beyond protocol or even admit to any memory of something that he saw on video in the courtroom. He was asked in re-examination whether he recalled being asked during the hearing by the Crown about the pepper ball launchers that officers were pointing at the seated inmates in the nurses’ corridor. He said that although he was there, he didn’t have recall because he was an arrest officer and didn’t have a pepper ball launcher.
71When he was asked again: he said11:
I remember an officer in the hallway with a pepper ball launcher, but I do not recall him pointing it specifically.
Q. Okay once we showed you the video yesterday, did it refresh your memory?
A. it looked like that officer was walking up and down the hallway.
Q. Are you suggesting that what we saw yesterday, he wasn’t pointing it at anyone.
A. It’s not that he’s pointing at anyone, he’s holding it canted to his non-dominant side as he’s walking up the hallway, because that’s how you would carry a pepper ball launcher.
72The officer was then shown the video again which clearly showed the officer carrying the launcher stopping at the rear right of Mr. Mohamed, pointing the launcher with the light right on Mr. Mohamed. The was then asked12:
Q. Would you agree with me that the officer that had the pepper ball launcher actually pointed it, as he was walking and stopped sometimes on people and stopped sometimes on people and kept walking….
A. No, I - yeah
73Having more than reluctantly answered this question immediately following a clear depiction, he was asked:
Q. …and for those inmates who had just experienced pepper spray, who had just gone through the whole routine of, you know, the water and are you okay, and now brought soaking wet, kneeling in front of a wall, I am going to suggest to you that having someone point the light, or whatever its called, laser from the pepper ball launcher would be very intimidating to that person who just experienced it, ‘cause they know what’s inside; right? Pepper, it’s used as a form of intimidation, isn’t it?
A. No, I wouldn’t say intimidation.
74Frankly this response, if it wasn’t such a serious matter, is just laughable as it is so clearly a falsehood. This officer who was right in the centre of the most aggressive of deployments, would not admit to what was right in front of him on the screen. Sadly, as this judgment will signify, he is not the outlier, rather he is the norm.
75Another equally ridiculous falsehood was this13:
Q. I am going to make a suggestion to you. You can agree or disagree with me, Okay.
A. Okay
Q. I’m going to suggest to you strongly that this deployment, this full-scale, shutting down Section 8 deployment, was directly related and in retaliation to what happened to Officer Lecinski?
A. I disagree.
76The officer was asked if he knew of anyone amongst his colleagues or supervising managing staff, that would say it would contribute. His answer was: 14"I am not sure”… I didn't hear anything of the sort”.
77This officer when asked at the outset of his testimony firstly about the writing of his ICIT Activation Report. He recalled writing his report in the ICIT Ready Room, and “believed” there were other people in there at the same time at the computers. He was asked if the team wrote their reports together, he did not know, he then said that other guys wrote their reports in other locations, he believed.
78Mr. Mascolo knew that the CSOI report detailed there was collusion but did not know if the two people who colluded were in the same report writing episode as he. He was then asked if he had spoken to any of his colleagues about the December 22 activation. Amazingly his response was “Here and there”15.
79It was then put to him that the news of this event has been widely disseminated in the newspapers, on social media etc., and with the delivery of subpoenas. He refused to acknowledge that he and his colleagues had discussed it “quite a bit”. I found this assertion to be completely incredible: a Superintendent had been dismissed, another officer also dismissed, two inquiries with numerous witnesses, the writing of occurrence reports was commissioned four months after the event, the Activation was front page news. This officer had heard about the upcoming activation for Weapons offences through word of mouth through the jail but refused to admit anything more than a discussion “here and there” of what had taken place.
80I found this officer’s inability/refusal to recognize all of the following - the severity of this activation, the fact of its magnitude, the use of the pepper spray, the pain causing knots to be not out of the ordinary was no less than complete obfuscation and simply not credible. To put it quite simply, he was untruthful.
Mr. Robert Watson
81Mr. Robert Watson at the time of testifying was no longer employed at MCC but was working as an officer with Halton Police. However, during the relevant period, he, like many of the officers in the ICIT Team, worked in A & D at MCC. At the time of the deployment, he had been an ICIT member for four years. He was deployed on a “Code Blue” on the 20th December due to the assault on Officer Lecinski and indeed got to the Unit before the injured officer was vacated from the scene.
82This officer’s Use of Force Occurrence report was filed as an exhibit16. In that report, completed by him within 30 minutes of the occurrence, he described dealing with the arrest of the one inmate who assaulted the officer and two others who were seen remonstrating with the guards. In that report he described arriving on the scene, to render assistance that was needed “after observing the Wings locking up without issue, I returned to the Unit 8 desk area”. However, when testifying he said: “By no issues, I would have meant that I did not engage in another-I believe that’s what I would have meant by it: …Like every lockup there’s issues. I – like I am sorry I wrote that but, like every time you lock up offenders after a Code Blue, guys talk.”17
83The final sentence of that report was “I remained on Unit 8 and assisted with lock up with no issues”.
84This officer was clearly doing his best to row back his two definitive statements on his December 20th account of having “no issues”. His only excuse for his regret is obviously that he is suggesting by his “guys talk” comment that he heard others speak of issues. This officer’s excuse for his regret is completely nonsensical.
85I have watched a video of the lockup that took place at Wing C of the Unit that was the site of the Lecinski assault. The assailant after hitting the officer, ran around the day room, and then turned around and put his hands up and was immediately taken into custody. Two other inmates seemed to be remonstrating with the officers, and were taken into custody, the remainder stood by silently and then proceeded in an orderly fashion to their cells.
86A video of one of the other units taken from outside the glass barrier in the centre area of the Wing, shows all of the inmates crowding towards the glass barrier, so as to see what the Code Blue was all about. Indeed, they appeared to be cheering and clapping, some right by the glass. No doubt this was not appreciated by the officers but given the obvious “us and them” mentality in the jail, it is hardly surprising. It is the same mentality that used to drive hockey fans to cheer on their team member who was involved with a violent fight with an opposing team member. However, there was no suggestion that there were difficulties in the lock down. Mr. Watson was not credible in his attempt to take back his contemporaneous description of what happened on December 20th when participating in the lock down after the assault incident.
87Mr. Watson was also involved in the ICIT deployment that took place on December 22nd. He testified that although he was not involved in the decision to activate, he was told why it was happening: “I was told that the offenders made multiple threats to the staff during lockup”18 Mr. Watson had been a member of the ICIT deployment team for four years and until that time had never been a part of such a large deployment.
88He was involved in removing Mr. Mohamed from his cell and completed an ICIT Activation Report19within hours of his deployment as he was planning to go on holiday the following day.
89In April of 2024 Mr. Watson was subsequently asked to write another report, like many of the officers, once the court subpoenas started arriving in April. That “Occurrence Report“ dated April 11, 2024 dealt with the assault of December 20th and tells a very different story to his Use of Force Report of December 20th.
90The more recently constructed report spins a story that is completely devoid of mention in the earlier Use of Force Report. While it could be argued the Occurrence Report and the Use of Force Report were compiled for different purposes, the former fails to document any of the officer’s so-called observations which were contained in the April report. It is worth recounting in full this document in this judgment even though it has been made an exhibit in this proceeding. It is addressed to Superintendent Mr. W. Wong.
On Wednesday December 20th, 2024 approximately at approximately 1525 House at MCC Correctional Complex Unit 8 I was working as an Admitting and Discharge (A & D)Officer wen(sic) I responded to a Code Blue in Unit 8.
Approximately 1525 Hours I heard Central control call a Code Blue staff assistant alert for Unit 8. I immediately responded to Unit 8. Once I arrived on Unit 8, I saw Correctional Officer (CO) (name redacted) being ushered to the Unit 8 Programs area. CO (blank) was bleeding excessively from his face and had his hand covering his eye. Once I was by the walk-through metal detector, I could see one inmate handcuffed against the wall in front of the Unit 8 desk area, and one inmate engaged in a physical altercation with several Officers. I proceeded passed (sic) as it appeared they did not require further assistance. I proceeded to D Wing where most of the responding Correctional officers were beginning to attempt to lock up the wing. I noticed that every other Wing on Unit 8 had the majority of the inmates inside standing against the glass. The inmates were banging on the glass and appeared to be cheering the staff assault. I had never seen this before in my over nine years working at MCC Correctional Complex. Once I entered D Wing, I assisted in locking up the Wing. I overheard inmate’s(sic) yelling “that’s what you goofs get”. I also heard the inmates yelling “fuck that guy”. After exiting the Wing when all the inmates were secured in their cells, I overheard most of the inmate’s (sic) banging on their cell doors, cheering, and making threats such as “one CO down, more to come”. I then assisted lock up the rest of the Unit. Every wing was similar. The inmates were loud and cheering the assault on CO (blank) I overheard similar threats in these wings as well, including “fuck the Cos”,” “fuck you goofs”, and “that’s what you guys get” several times each. Once all the inmates were locked up and the inmates were secured in their cells, I returned to A&D to continue my duties as an A&D Officer.
91Much was made by Mr. Mohamed’s counsel over the obviously differing signatures contained on Mr. Watson’s three reports. While it is clear, even from his testimony alone, that one of the signatures was not his, it is the content of the differing reports that is the most troubling. Given that the April report was written in response to the subpoenas and given that Mr. Watson said in his testimony that four months after the event it was hard to remember the details, it is clear the details contained in the later report together with the instruction to prepare it were manufactured to conjure an ex post facto rationale for the almost unprecedented full-scale deployment.
92The issue of someone else essentially pretending one of the documents was signed by Mr. Watson is obvious troubling, but frankly is indicative of the MCC lax approach to procedures and protocols without any form of accountability.
93Mr. Watson was also asked whether it ever crossed his mind that the large-scale deployment could be potentially viewed as retaliation for what happened to Mr. Lecinski. His response was20:
I can see that people could see it as retaliation. However, working there, I do understand that it was getting towards the holidays and for everyone’s safety, they probable want the team to go in and complete a search, because I would find it hard to believe that people would feel safe working on that unit …But I could see how it could be viewed that way. But no one ever told me like, this is for Lecinski or – do you know what I mean?
94He admitted to drawing his own conclusion having read all the newspaper reports of the activation once it became public. He said that officers are often assaulted in the jail and “it would be crazy” that it was retaliation, if so, there would be many more activations. Even this witness, who no longer works at MCC, was not prepared to admit what he had heard and read in the press reports could only lead to one conclusion: it was retaliation. When one looks at the script he was asked to write in April, 2024 about what led to the deployment; his persistence that the deployment was not retaliation is simply not credible.
95Mr. Watson’s refusal to admit the real basis of the deployment is so indicative of the MCC culture specifically the pervasive attitude of the officers, about which I have heard so much. It is obvious from the timing of his Activation, and the “no issue” lock up following the assault on the officer that what followed within a short period of time, in the fashion in which the Activation was carried out, that they at the very least could have been related. In addition two other demonstrations of power namely the fact that the Superintendent was recorded on video as walking down the nurses’ corridor high fiving the officers, where all the inmates were positioned facing the wall in a seated position in their boxers and the fact that the photo of the entire team with the Superintendent front and centre with his thumbs up standing in the wreckage of the excessive search that took place of the cells, is also so obviously a clear demonstration of payback. To not even concede what is so clear, even with the clarity of hindsight and the videos, is at the very least disappointing, if not an outright falsehood.
96Mr. Watson, in his ICIT Activation Report of December 22nd described his activities with respect to Mr. Mohamed and his cellmate. He described the team leader giving “multiple orders” to comply and strip down to a pair of boxers and lay on their cell bunk. Mr. Watson simply stated: “the inmates did not comply”. There was no description of how the inmates did not comply and indeed the video shows one officer at the glass window looking into the cell: that was not Mr. Watson, so the allegation of “noncompliance” is impossible to discern, both in terms of how he knew of it and what it was.
97Mr. Watson described the first blast of pepper spray shot into the cell, then the door then being closed presumably so the inmates feel the full uncomfortable effect of the noxious spray. The video reveals that the pepper spray was first deployed at 9:41:29. The door is then closed. The second burst was deployed at 9:42:28 again the door was closed. The first man was taken out by two officers at 9:44:03. he had clearly been lying on his stomach facing away from the door of the cell with is legs and feet in the air. He was pulled out by two officers on his stomach in his boxer shorts. The door was again shut and not reopened until 9:47:59. when one officer carrying a full-length shield and 3 others entered the cell. Mr. Mohamed was finally brought out of the cell at 9:50:16 having enduring a small room containing two blasts of pepper spray for close to 9 minutes.
98Mr. Watson in his report did not mention the second blast of pepper spray he only described Mr. Mohamed’s behaviour in the aforementioned Report this way:
The Team 1 TL ordered I/M Mohamed to lay on his stomach on the cell floor facing the back of the cell. The Team 1 TL keyed open the cell door and I followed the Prone into the cell. The Prone pinned the inmate with the shield. I went to the left side of the inmate and went to gain control of his arms. The inmate attempted to pull his arm away from my control. I ordered inmate to stop resisting. The inmate was kicking his feet at the Prone. I continued to order the inmate to stop resisting, I was able to place I/M Mohamed’s right arm behind his back and used a twist lock to maintain control. The Arrest 2 applied a twist lock as well. I applied handcuffs to the inmates back.
99Mr. Watson described the taking of Mr. Mohamed to the shower, to the nurse’s “assessment”21 and to placing him in the corridor with the other inmates. He also had further interaction with Mr. Mohamed when he was forced to walk the 200-300 metres without shoes or clothes beyond his boxer shorts to A & D for a body scan which revealed nothing.
100Mr Watson was not helpful with respect to anything he heard the officers say to Mr. Mohamed, or any physical assaults on him. Indeed, he was asked directly22:
Q. Did you – do you believe that any of the force deployed in these cases, where people were pepper sprayed and cuffed, or zip tied did you believe any of the force that you saw used or that you used yourself was excessive?
A. Excessive, no.
101The witness did however concede that the purpose of the twist lock is to cause pain23. He also described this lock as causing mere discomfort to occasional sharp pain or “numbness or burning in my hands where I do not feel it anymore”.
102Mr. Watson was asked about Mr. Mohamed’s allegation that when he was lying on the floor after being pepper sprayed, he was asked to sing “Jingle Bells” which he refused. Mr. Watson said he had read about the allegation in the newspaper but did not hear such an utterance. He testified that he asked someone on the team about it and then said that he heard about the allegations and “for some reason kept reading it, cause it was a straightforward as it gets this activation”24.
103Frankly this is a horrifying statement that what happened in MCC on December 22,23 and 24 and the ensuing events is “straightforward”. This officer had testified that usually ICIT deployments were of smaller scale, but so it was more than straightforward in its enormity. However, if the whole sequence of events was repeated each time a deployment takes place, it would be extraordinarily frightening. This deployment was far from normal, and this statement of Mr. Watson is simply not credible.
Mr. Alistair Sanderson
104Mr. Alistair Sanderson was the team lead on December 22nd, 2023. He had not been present on December 20th, 2023 when Officer Lecinski was assaulted.
105Like many of the other members of the ICIT Team, at the time of the Activation his full-time assignment was in A & D. He has been there since 2017 and remains working there at the time of testifying. He was asked about his history of being an ICIT member including how many deployments there had been: he guessed 50 but conceded that this Unit 8 deployment was the only time an entire Unit had been dealt with in this way. Mr. Sanderson is no longer an ICIT member.
106He had provided a statement to the CSOI inquiry, which was summarized in its report as follows: “he understood that ICIT was deployed because of the fairly severe staff assault and that that Unit became unruly and threatening and they were in jeopardy of losing the entire unit25”.
107The officer agreed when testifying before me that he told the CSOI body that he believed that the ICIT deployment was to take place because of the assault on Officer Lecinski, however following a break in these proceedings over the weekend, Mr. Sanderson was asked what the reason for the search was; he answered he was receiving a lot of information as to different things and from different sources26. He named particularly, the ICIT coordinators Officers Black and Edgington and he assumed that all the proper channels had been followed and “I was going to perform a just operation”27.
108Mr. Sanderson completed an ICIT Activation Report on December 23, 202328. On the first page of that Report under the heading “Situation: the officer wrote: “It has been decided by the administration that all of Unit 8 be extracted by ICIT for the purpose of search due to recent events on the unit”. The officer conceded the term “recent events” referred to the assault on Officer Lecinski, however denied that this was “retaliation” 29
109While this witness had little recollection of the events beyond any details contained in the Report he authored, he did testify that the method by which pepper spray was deployed was to open the door, spray a burst and shut the door “for protection...for the team”30
110Frankly this officer was of very little assistance with what occurred on the day; he recalled generalities but no specifics. Noticeably however, his memory was good enough to deny the existence of the more egregious allegations referred to by Mr. Mohamed including the instruction to sing Jingle Bells.
111In addition, he was, like his colleagues, stubborn in his refusal to admit or even agree with counsel a completely realistic interpretation of a surveillance video. When he was shown a video of the nurses’ corridor and an officer with a pepper ball launcher focused on Mr. Mohamed, he refused to accede to the suggestion of its focus, by saying he didn’t know if it was focused on Mr. Mohamed or not, even when the pinpoint light that comes from the launcher was shining directly on Mr. Mohamed’s head and not moving.31
112Another example of this intransigent unrealism was found in the following exchange with counsel when the witness was explaining that the pepper ball launcher was being held at the low ready position as the officers patrolled the corridor.32
Q. The low ready. So, we have all of these inmates that have just been, some of them pepper sprayed, some of the decontaminated, some of them soaking wet.
A. Mm-hmm
Q. In fact you know, you can see one guy in the middle with tattoos all over his arms and it looks like his underwear is falling off, and he is sitting on the cold floor. So you’ve got all of these guys that are zip tied close to each other, knees up against the wall. I’m going to suggest to you that there’s no way these guys can get up, unless an officer picks them up from one arm and helps them up? And you know that to be a fact. You know that to be true. There’s no way these guys could have popped up?
A. With – they could break…
Q. On their own.
A. Break the zip ties, actually
Q. Of course they could break their zip ties. With – how many officers do we see in the corridor? One, two, three, four, five. I mean, it’s just runover with officers. My point being it’s not likely that these guys are going to jump up. Would you agree with me?
A. If it wasn’t likely that they were going to jump up, there’s no need for us to be there, and we could be outnumbered in that hallway…at any given time of thirty to three.
113This witness had just seen the video in which a number of men in boxers alone, facing a wall, having to be cross legged with masked, helmeted, completely covered and therefore unidentifiable men in body armour pacing up and down behind their backs with pepper launchers which resemble guns, with a pinpoint spotlight. To not agree with counsel’s suggestion, and in fact to debate with her, is a perfect example of the dogma and the nonsensical untruths that seem to pervade the attitude of these witnesses.
Mr. Cameron Wilhelm
114Office Wilhelm works in A & D and is no longer a member of the ICIT Team but was at the time of this occurrence and responded to the Code Blue on December 20th. After dealing with one of the three inmates who were taken into custody for that incident33, he explained how he went into Unit 8C and the inmates were “uncooperative” in being locked up in a timely manner.34
115The video of the inmates returning to their cell was shown to the officer. It appeared that all of the inmates who had witnessed the assault and related matters were watching the event and once all three of the inmates had been taken out all of the remaining observer inmates walked in an orderly fashion to their cells. Despite being confronted by this video, the officer would not admit35 anything more than: “they did not go back to their cells and there was no more issues”. He considered the return to the cells to not be sufficiently timely, even though he could not say when the direction was issued to the inmates.
116This witness explained that he understood the ICIT activation was due to a Level 4 weapons search “cause there was – we were told that there weapons on the unit”.36 although he conceded no documentation was produced.
117As with the other witnesses, this officer who was part of the team that extracted Mr. Mohamed and his cell mate from their cell, after the infliction of two bursts of pepper spray, testified that he did not witness any excessive force used.37
118This officer was also assigned to the nurses’ corridor and agreed he would have had a pepper ball launcher from time to time in that hallway but “did not think that any Correctional Officers shined a light or laser on the back of an inmate’s head”38. When shown the video this witness agreed the flashlight was pointed at the backs of inmates, but disagreed it was done so for intimidation.
119This witness, despite his intransigence, was helpful in terms of the compilation of the ICIT Activation Report39which he and others completed. In that report under the heading: Situation: it states:
It has been reported by unit staff and administration that Unit eight (8) has been noncompliance with all of staff direction. As a result on December 20th, 2023 a staff member was assaulted on unit eight (8) “Charlie” resulting in…blacked out. Let it be known that on this unit many of the inmates possess high profile charges including and up too (sic) murder , assault, assaults with a weapon.
120He explained that after the deployment they went into “the ready room” to write their reports. He was asked whether it was possible (as found by the CSOI) that there was collusion between the officers as they compiled their reports. He agreed that as they wrote their reports it was possible people were speaking to one another.
121He also explained how there was a “scribe” who was the ICIT coordinator. He would give dates and times of what they were doing and provided notes. What was included in the “Situation” description was provided to all of the officers. It is obvious to me they all copied the same details even to the extent of replicating the error in spelling “too” and in leaving a space between “murder” and the comma.
122Mr. Wilhelm was the designated prone officer who pinned Mr. Mohamed down in his cell and stated that he used the prone to pin him even though he was compliant. He considered because of the aforementioned threat assessment, he was on high alert and despite the compliance, he was on guard that the situation would change so he would pin the person to the ground with his prone.
123As with his colleagues, this officer would not admit to hearing any of the alleged utterances by officers to Mr. Mohamed when they went to extract him from his cell. Furthermore, he recalls none of the details of what had occurred during the Activation other than he had never heard in his career of pepper spray being utilized before an inmate had time to comply with an order.
124He did not recall an inmate having a seizure in the nurses’ corridor, nor did he consider that any of the actions taken on that day were not in accordance with protocol and were not done to punish the inmates or for retaliation.
125I took the opportunity to ask the officer about his testimony with respect to the pointing of the pepper ball weapon. I asked what reason would there be to point the light of the pepper ball launcher at someone. I will quote the exchange we had as a result of this question:40
A. I – so in the hallway you can see that there’s probably roughly 30 inmates and four or five ICIT members. So if the inmates were to decide to stand up and be rebellious which we always have to be ready for, we need to be ready to act in that instance. So they are not pointing it at them in terms of a threat, they’re pointing it at them because the inmates are potentially a threat to us if you were all to unruly stand up, because we were outnumbered significantly.,
The Court: So you are trying to do it to somebody as a lesson to the others?
A. No, No, Miss, sorry your Honour. They are doing it because the inmates, they’re not locked behind a cell. They’re in an open area. They’re outnumbering us. They’re – the officers that are walking back and forth with the pepper ball guns are just scanning the area to see if all the inmates are being compliant. The light being flashed on them is just a part of their scan as they’re walking up and down the hallway.
The Court: Yeah, but he is just standing there, stops and some of them walk up and down but he’s standing there and pointing down at this guy.
A. Yeah, I can’t speak to why that officer did that. Sorry your Honour.
126This is the fourth officer from whom I heard who appears to be and in fact on his own admission, have “talking points” which he must promulgate: he is copying the narrative contained in his Activation Report about the “Situation” leading to the ICIT deployment, which speaks to complete generalities and no specifics. The assault on Officer Lecinski was a result of a suspicion of weapons, and none being found, nor were there any weapons found because of the ICIT Activation. Nor were there any concrete justifications for the “alleged weapons threat”.
127Furthermore, this officer’s intransigence to admit what was being demonstrated by video in real-time in the courtroom, and the common language of each of these witnesses, that they have little recollection of the specifics but know that none of the most damning of allegations were true, smacks of a decision taken by all to proffer a common attitude and story that simply defies logic and frankly makes their testimony simply incredible.
The Management Team
Mr. Brendan Black
128Mr. Black was working on December 20th, 2023, when Officer Lecinski was injured. He was working as one of the Staff Sergeants in Security. He did not work on December 21st and December 22nd but did communicate with officers who were to be involved with the Activation. He indicated he received a call from Mr. Jason Martell who informed him of the plans for the “full scale activation”41. He testified he was not surprised to hear the plans as he had been on the unit on December 20th and “kind of had a good idea of, of the behaviour of the inmates for the few minutes I was on the Unit”42.
129Mr. Black stepped in as ICIT Coordinator for December 23rd. He described the role of the ICIT Coordinator being a management representative of the team. There were two of them, himself and Mr Edgington 43 (See evidence of John Edgington below).
130Mr. Black testified that he understands the policy on the obligation to, independently from the surveillance cameras, record both on an audio and visual camera, all the cell extractions. All the officers had heard that the camera recording had failed, one or two of them spoke about their impression that the cameras were not known to be reliable because of age, however it was Mr. Black who agreed that he now understands from the CSOI inquiry, his responsibility to ensure the policy was followed.
131Notwithstanding that tardy concession, Mr. Black suggests that when arriving for duty on the last day of the deployment he was not made aware there were any problems with any part of the deployment including the activation of the audio and visual camera. He said he became aware of the camera being in the unit only when he arrived there and saw it. He said he is now aware of the policy and further several months after the Activation found out that it was the only camera which recorded what the Superintendent said to the team.
132Mr. Black was asked directly44.:
Q. … You also know that was the only camera that had audio, right?
A. Yes
Q. Yeah And that was the only camera that captured Superintendent Wong on the 22nd, as he was make certain comments to his boys?
A. I was not aware of that for several months later.
Q. Right, and that camera was operating, was functioning but somehow the footage disappeared.
A. How can you be certain the camera was operating?
Q. Yeah, No, I’m asking the question.
A. Okay
Q. You are aware from the CSOI Report the footage somehow disappeared?
A. No, I’m aware that the camera footage was not there.
Q. That the – sorry, I didn’t hear that.
A. It did not record.
133This answer was interesting in that this witness’ testimony was that he was not present on the 22nd of December, nor was he aware of the existence of an audio and video camera on the unit until he saw it. Why then is he so insistent in persisting with the fact that the camera did not record rather than it disappeared, rather than just answering he was not there, so had no explanation to proffer. The answer is obvious; this is again the following of the “script”.
134Furthermore, he conceded ultimately that if there was a concern with any of the equipment, it would be reported to him, he has not followed up to find out who should have assigned the camera to someone or speak to the overall team leaders who would have done the assignments of who would be responsible for the camera. Furthermore, he never made any effort to find out who was responsible.
135Mr. Black said that there were SD cards available to be used, and it is the job of “security” to check the cameras. However, it is the camera operator who is assigned to each camera and who is supposed to insert the SD card and ensure that its operational.45
136Mr. Black was asked about the pepper spray. He testified that the target area of the pepper spray is the facial area and that it burned around the eyes and in the eyes and in the forehead; he explained he has been pepper sprayed several times.
137With respect to the extent of his role at the end of an extraction; he testified it was his duty to ensure an inmate was placed safely back into his cell and that the flex cuffs were removed and the doors locked; nothing more.
138He could not assist in why the extractor fans used to remove any remnant of the deployed pepper spray were not activated immediately upon the extraction of the inmate to ensure any remnant of the substance was extracted while the inmates were out of the cells. On the second day of the deployment in which he was the Coordinator he didn’t recall whether the fans were on and he didn’t order them activated. He explained how the fans were turned on manually from the control module which is positioned in the centre of the Wings.
139He made the following assertions:
It was not his duty to ensure clothing was provided after the searches. Nor was he aware of the accusations of a lack of clothing until many months thereafter.
He was not aware of the cold temperatures that had been inflicted on the inmates until months later.
He was not aware that Superintendent Wong involved himself in the actual search.
He was not aware of the high-fiving that Superintendent Wong was doing with the ICIT officers as he walked down the nurses’ corridor. He was however aware that there was a photo taken of the search team with the Superintendent giving a thumbs up in the photo.
140He admitted it was his role to review and sign off all the ICIT Activation Reports when prepared by the individual officers. He also admitted he left work before all of his team had completed them and he told the team leader: “Can you sign for the reports because I’m leaving”.46
141Mr. Black also admitted using his personal phone, not his work phone, to communicate with his colleagues and informed the CSOI of that fact.
142Mr. Black confirmed that before ICIT is deployed, there is a requirement that a Threat Level Assessment must be completed. The Assessment, he explained, is an agreement between management and the union on what level of search will be conducted. Contained in the Assessment will be the reason for the search. The reason would be included in a form filled in by a Union member as their belief of the need for a search. The report goes from a Union member, i.e. people who work at the jail, to a staff sergeant. The Staff Sergeant would then bring the form to senior management who would discuss this with a deputy level or above and make a decision. Once that decision is made, Mr. Black believed that there then would be a liaison with Regional Office, the Regional Director.47
143Once the decision is made activate ICIT is made, the Staff Sergeant would call Mr. Black or his colleague at the same level - Mr. Edgington - and relay the fact of the activation.
144Mr. Black affirmed that it was his understanding that no Threat Level Assessment was ever prepared for the ICIT deployment of December 21st.
145Mr. Black confirmed that the Section in the ICIT Activation Report titled: “Situation”48 (also known as the SMEAC49) was compiled by the team leader and is used for each form. The SMEAC must be signed by the crisis manager for approval prior to deployment. All of these reports are included in what is called an ICIT package.
146Within that package should be the SD cards from the handheld camera that records the audio and video of each extraction in close range.
147Mr. Black was also cross examined about the number of the officers patrolling the nurses’ corridor. He saw nothing inappropriate with that as he said in the past, inmates had, during a deployment, been uncooperative. He said he has seen instances of inmates when placed in an area with zip ties and having to cross their legs in the same way, being able to stand up on their own accord, thus the need for safety and security.
148When asked about the use of the pepper ball launcher being pointed, he considered that whatever the hand the gunner uses, the launcher would point in the direction of those seated. Mr. Black did concede that the whole activation is intimidating “because it’s a tactical team”.50
149Mr. Black also testified that he sent out a request in April of 2024 to all officers requesting that those who had not previously filled in a report in December should submit one.51 He agreed he did this “because there were subpoenas coming in and there was a conversation with Senior Management and we knew that there was - because it was a Code Green and I hate to say it, correctional officers are inherently bad at writing reports”.52
150I did engage with Mr. Black in the following manner:53
Q. What I am trying to figure out is, is there any curb on the discretion of management by Solicitor General or anybody else as to when the ICIT team is activated. Is there any law, because this is extraordinary behaviour and this is – so I’m trying to figure out if there are any rules by which ICIT should be activated or cannot be activated
A. …I think that’s a decision that senior management makes in liaising with the regional directors. They, they share the information about whatever the situation may be, and request and sometimes a request may be denied by the regional director. But its based on the information provided that they make the decision….together.
Q. So…say Mr. Smith, who’s the superintendent who phoned up the regional director and say: “Hey I’m thinking of activating ICIT.”
A. My understanding, at the time, was that they didn’t necessarily need their approval. They would just tell them that they’re activating. But now that’s since changed. Now they need the regional director’s approval.
151Amazingly, Mr. Black admitted there was no policy paper restricting the use of ICIT situations. It was totally up to the discretion of the Superintendent, the crisis manager and the senior managers.
152What is clear from Mr. Black’s evidence is the following: a complete lack of rules and accountability as to when the use of ICIT in the intimidating manner in which it was deployed in December 22, and 23. There was no appreciation by him as to how extraordinary the ICIT deployment appears to anyone outside the walls of apparent silence of dissemination of how these actions are taken.
153The calmness and normalcy of the officer’s acceptance of these actions alongside an admission of intimidation, is extraordinary in itself. Furthermore, the acceptance that Reports were never checked, not only for content but also for completion within hours of the incident. It took subpoenas to prompt this officer to remind officers of their duty to complete reports and for which there was a description of the Situation which simply was not true. This appeared to be a power with no limits and no accountability and certainly Mr. Black is part of the system that condoned such behaviour.
154Furthermore, I found his professed lack of knowledge as to the Superintendent’s involvement in the searches, and parade down the nurses’ corridor high-fiving the officers, the lack of clothing, and the reduced temperatures upon his return to duty on the second day of the activation, incredible. Given the text message interactions on WhatsApp which he conceded with his colleagues, together with the talk within the jail, about which I heard much, I find it impossible that he did not know until many months after the event.
Mr. Ralph Serafini
155Mr. Serafini has been employed at MCC for 15 years and since 2023, a building systems operator with responsibility to manage the building automated system which manages the HVAC, heating, cooling and the fans.
156Mr. Serafini was not present at MCC during the ICIT deployment and was not asked to investigate any temperature issues during the deployment until April of 2023. The graph provided by Mr. Serafini attached to his Affidavit of April 2024, show the reduction in temperature during the days of the deployment.
157There were two crucial pieces of evidence that he provided. First that the computer system ensures that the warm air to a preset temperature is pumped in through vents in the main area (not the cells which have their own supply ducting), old air is returned, and it is the temperature of the return that is measured and recorded.
158Secondly, he described the role of the exhaust fans. They pull the contaminated air, for example the remnants of pepper spray from deployment from the individual cells. Mr. Serafini was asked about the length of time the exhaust fans would take to remove pepper spray from cells: he anticipated one hour54 for the air to pumped by the exhaust fans out through vents that originate in the roof of the institution. The fans are covered by dampers on the roof when the fans are activated the dampers on the roof open to pull out the air. Mr. Serafini testified as to this:55
A. So the heating, we supply all the time. If there is any – a smoke fan to extract, tear gas or smoke or smells, the return is closed, so we don’t contaminate other Wings in that pod, that Unit.
159When asked what he considered to be the reason for the drop in temperature, his response was that he had no idea as he was not there to investigate the issue. Indeed, he had testified he did not know there was a problem until April of 2024 when he was asked to look at the temperatures.56
160The smoke fan is another way of describing the exhaust fan. The records of the activation of the exhaust fans have long since disappeared, as they are apparently destroyed after 30 days. They were not needed until April, some 4 months after the deployment. Thus, there is no way of discerning how long the exhaust fans were left on. What we do know is this: there are supply ducts in the Cells and in the Day room. The exhaust fans are pulling out the air he was asked:57
Q. Okay-If an exhaust fan were turned on to, to pull out OC spray, for example, what, what would that do to the temperature?
A. Its quite possible it would drop the temperature a bit, cause we’re pulling out – we’re pushing heat in and we’re pulling, pulling heat out, as well.
161There is evidence that OC spray was discharged, and that the exhaust fans were initiated. There is however no evidence that these fans were ordered off within the time period covered by this deployment. While this witness, upon questioning by me, absolutely refused to concede that when the dampers in the roof were opened for the operation of the exhaust fans, there was no possibility that the cold air from the outside would seep in, I find it is highly likely that the opening of the exhaust fans to the frigid December air would lead to cold air seeping in from the outside.
162Indeed, one question from defence counsel at the conclusion of her examination when asking about the lower temperature in the cells, and whether there were varying speeds of the exhaust fans at least revealed a crack in the armour of denial58:
Q. …And you don’t know what the volume is of extraction? Okay. Is it possible that on a cold winter night, notwithstanding the conditioned air being pumped in, if an exhaust fan was turned on and left running for two and a half, maybe three days, we could see this result?
A. Correct
Q. You Agree
A. Correct, I agree.
163While the temperature charts revealed in Mr. Serafini’s Affidavit showed a reduction in the heat of the air being removed from the cells dropped by 2 degrees, over the two-to-three-day period, Mr. Mohamed’s Affidavit and testimony spoke to a much more drastic temperature loss and of extremely cold temperatures. It is clear that while the heat controlled by the computer and through and from the vents only dropped two degrees, there was also another source of air: the exhaust fans. They were operational and no doubt caused a real chill in the cells.
164Finally, I would comment on what I consider to be a complete disregard of inmates as human being throughout the testimony of the witnesses. They are referred to as “bodies”, as “offenders” (when many are pending trial) as of deserving of the harsh treatment they received during this deployment. This witness was no different, he had an indifference to even trying to understand why the temperatures dropped during the critical period of MCC’s history. I quote again from the transcript: 59
Q. So what could’ve explained this drop in temperature on December 22nd and 23rd, based on your knowledge of the system?
A. I have no idea why it dropped. I wasn’t there to investigate the problem.
165This witness had testified about the process he had been asked to involve himself in from April 2024. He was asked to pull the graphs, compile an Affidavit and has testified subsequently in two other matters prior to Mr. Mohamed’s hearing. Given the allegations of which he was clearly aware, I find it hard to conceive of a person of this longevity at the institution would not have investigated what had led to the issue of the temperature drop.
166There was a further exchange that really brought into focus for me, the pervasive sentiment of this officer, despite his specialization in systems, of dealing with inmates as lesser people. I will transcribe that discussion here: it commences with counsel for Mr. Mohamed’s cross-examination:60
Q. Okay Mr. Serafini I’m going to suggest to you that everyone’s tolerance for cold is different. Some people run hot. Some people run cold, always have blankets, whatever. You know that to be true. It’s human nature. But someone who is naked, wearing nothing but cotton boxers, and we experience this, what we see here, consistently for one, two – almost two and a half, three days, and starting off wet. Okay, let – we – you – we didn’t tell you that, wet, clothed, cold, wet, wet with water, would – could feel cold. I mean you’re not a doctor.
A. How did they get wet?
167That question by Mr. Serafini and the tone in which it was posed caught me by surprise. So much so that at the end of his testimony I asked him the following61:
Q. All right, and then there was just one question – one answer that mystified me. Ms. Monaco was putting to you about, you know, if somebody got wet, and you said, “How did they get wet?” Why did you ask that question?
A. Because she said they were wet, Because she said they were wet, so I just want to know why they were wet.
THE COURT: Well – does that matter how they got wet?
A. Well, if there was a sprinkler system off or – I don’t know. It was just a common question I asked.
THE COURT: Okay it’s a bit of a mystery, isn’t it?
A. Unfortunately, yes
168The vehemence of tone with which by Mr. Serafini questioned counsel about the cause of the inmate being wet, frankly struck me as a rhetorical one, he all knowing that inmates had been pepper sprayed for perceived disobedience; therefore it was their fault they were cold. Mr. Serafini’s nonsensical answer to my query as to why he had responded the way he did, confirms my suspicion.
169Again, this is just another example of the perception of the staff at MCC that the inmates are less than human and the fact that all of these men had had nothing to do with the wrongdoing that led to the deployment was not even a consideration, they were all tarred with the same brush. It was extremely troubling.
Mr. John Edgington
170Mr. Edgington was at the time of the ICIT Deployment, working at MCC as a Staff Sergeant and an ICIT Coordinator. He describes MCC as the most dangerous of the three jails at which he has worked due to the needed response to “codes or actually working with inmates”.62
171Mr. Edgington had compiled an Affidavit,63 presumably for one of the Applications filed in Court. In that Affidavit and in his testimony in court affirming that Affidavit, he stated firstly that he was not on shift on the day that the officer assault took place but was the following day when he is involved in the removal of the alleged assailant of the officer to a different institution. Secondly, in para. 4 of the Affidavit he states:
I was not working on Wednesday, December 20, 2023. However, I did pull the video of the staff assault by an inmate in Unite 8C on December 20, 2023 and I did follow the movement of the officer on the video around the rotunda which gave me a view of the riotous behaviour that ensured after he was assaulted. They were literally stacked 2 persons high six feet off the ground and standing on the ledge”.
172And in Paragraph 6 he stated:
I am aware from Unit Staff and administration that Unit 8 had been non-compliant with staff direction for some weeks prior to December 20, 2023. Many of the inmates on Unit 8 have high profile charges including murder, assault with a weapon and human trafficking. Many on Unit 8 are members of security threat groups (gangs) such as the Jamestown Cripps and Mount Olive Cripps. Unit 8 is known by staff to be the most dangerous Unit. We hear codes called quite often on Unit 8.
173Mr. Edgington continued for an additional three paragraphs in his Affidavit to speak of the history of Unit 8 in the weeks preceding the assault on the officer. In cross examination by counsel for Mr. Mohamed, Mr Edgington was asked about his description of “riotous behaviour”. It was put to him that only one inmate was standing on a bench to get a better view of what had happened to necessitate the Code Blue that had been called because of the officer assault. While there is no sound, it is clear that all of those inmates standing behind protective glass, fully secured were laughing and banging on the glass and applauding at the sight of the injured officer. Mr. Edgington in responding to questions was clearly angry and offended at seeing this behaviour. I noted this exchange between counsel and Mr. Edgington64:
Q. Banging on the glass, clapping, laughing?
A. Yeah, correct
Q. And that’s what you call “riotous behaviour””
A. Cheering on…
Q. Cheering.
A…the assault of a, of an officer.
Q. Well, Cheering who? There was nothing to cheer at that point. He had exited.
A. Mr. Lecinski, as I said was in plain view.
Q. Right.
A. So they cheered that on that he had been assaulted They can..
Q. Right.
A. See him in that condition.
174I noted that when the officer was involved in this exchange with Ms. Monaco, he was very angry. As he admitted, he considered this riotous behaviour obviously because of the lack of empathy shown by the inmates to an officer. I found his barely concealed fury at the behaviour of the inmates to be completely baffling. More surprising was that this officer was responding emotionally to an excerpt of a video that he watched, drew a conclusion from seeing that and did not watch how the inmates shortly thereafter quietly complied with orders to go to their cells.
175This officer then retreated to saying that he wasn’t there, had only watched a few minutes of the video and listened to hearsay.
176I have highlighted this part of his testimony as I what struck me was his outrage that people who he considered to be such trouble, having highlighted their charges, would not want to see what was going on, just as motorists do when they slow up on the highway as they pass a car crash – the term ‘rubber necking comes to mind. Furthermore, given the treatment of the inmates which we are discussing in this application, which appears not to be a unique treatment (although its size and scope is) is it any surprise that there is this antipathy of inmates to correctional officers? It clearly is mutual.
177Referring again to the Affidavit and his testimony, there were some extraordinary statements affirmed to by Mr. Edgington:
Corrections is a para-military organization which follows a chain of command. The ICIT uniforms serve several purposes, including fostering a sense of unity, creating a professional image and enhancing Safety and Security65
With respect to the ICIT members’ uniforms, he agreed the officers wore black uniforms, balaclavas, gas masks on top, a visor with a helmet, shields, batons (pepper spray), black tactical boots. He also said that the use of these uniforms assists the inmates to determine who is a correctional officer. He denied however the fact that these officers were completely covered, without identifying badges or numbers on the uniform and with just slits for eyes, creates a level of anonymity. His response to that suggestion was:” No its a clear face mask” 66. Furthermore, he also responded to the slits for eyes question with a further comment, that one of the officers who was standing with him, but not part of the frontline masked activation team was standing with his helmet off.
Contained in his Affidavit:67 is the following clearly false statement which is contradicted in the Agreed Statement of Fact and by the videos and evidence:
None of the other inmates were inconvenienced by the ICIT Activation for more than 35 to 40 minutes for each Wing.
178During this testimony the officer denied being aware of the extent of the lack of clothing issue, even when he wrote his Affidavit five months after the deployment and after many of the details of the treatment of inmates during the deployment were reported in the press. I do not believe him.
179This officer prevaricated, obfuscated and argued over tiny details in his cross examination; there were too many instances to detail but of the most telling was when counsel called him “officer”, he insisted on being called “Staff Sergeant”. Also, either his memory was flawed, or he was trying to avoid the truth when he denied that he was present for the search of the Wings and he could not remember in which Wing, Superintendent Wong was involved in the search.
180When he was told by counsel that Wong was on 8C there was the following exchange68
Q. You were in 8-C correct.
A. Sorry.
Q. You were in 8-C
A. I was in the various Wings, yes maam.
Q. You were in 8-C during the deployment.
A. That’s correct.
181With respect to the issue of the exhaust fans being left running, this officer was vague at best. He agreed he gave a direction to start up the ventilation and he did not recall telling anyone to turn it off. However, he did say that if staff were touring the cells area, and it was cold, he would assume that someone would give an order to stop the fans running, but as far as he could recall he just heard hearsay that inmates were saying they could see their breath. Therefore, while agreeing he ordered the fans to go on, he also agreed he never gave the order to switch them off.
182With respect to the issue of the pointing of the pepper ball launchers directly at the inmates sitting cross legged in the hallway semi-naked and some still wet from a shower, counsel put to him that it was a form of intimidation. The officer did not directly answer the question initially and then was asked69:
Q. I'm asking when the flashlight is focussed on someone who is cross-legged facing the wall with their knees against the wall and handcuffed, when that flashlight is focussed on that individual; it is a form of intimidation?
A. No, maam it’s a non- lethal weapon. I - its going to hurt, but I've been shot multiple times...And if they're facing the wall and its shined behind them, how are they even going to know flashlights on them.....We're not using the pepper ball launcher as an intimidating device. ...They just know we have it.
183He was then asked what the purpose of pointing the light at them, his next response was that it was just in the ready position. He was asked again and his response was to deploy it if it was necessary, if the inmate became physically resistant or started threatening.
184His refusal to concede what was obvious to everyone: that this was used as nothing more than a method of intimidation led to a replay of the video. The officer came up with all kinds of suggestions70 as to what was going on. They ranged from maybe that the gentleman identified as Mr. Mohamed was suffering from intoxication, that because the inmate is slouched over, he may be in a state of positional asphyxia, that the officer is just adjusting his strap, that he didn't see the officer pulling the trigger, or walking up behind and threatening the inmate, or yelling. Finally, he conceded it might be intimidating and then that it was 100% intimidating.
185This officer also refused to accept that there had to be a Threat Level Assessment prepared before ICIT could be deployed. He was asked the question71:
Q. Okay Staff Sergeant Edgington, you know that it is mandatory to have a threat assessment – Threat Level Assessment report prepared before, before ICIT can be deployed?
A. Nice, can you show me where it is written….
186He proceeded to say that he had looked for a definitive answer as to the question and could not find one and therefore refused to accept it was required. Even when he was read in open court the Ministry policy his answer was72:
A. I hear that. Show me. It's the CSOI. Show me where the policy is. What was the actual policy miss
187Finally, once being shown the Protocol, he conceded that he had been called to task over searching inmates after the death of an inmate and concedes that he had heard of a Threat Level Assessment, because he did it all the time!
188This officer was also asked about his Activation report which he completed on December 22, 2023. In that report under the heading: Situation, (previously referred to as the “SMEAC”)73 his report states:
It has been reported by unit staff and Administration that Unit 8 has been non-compliant with all staff direction following a staff assault that occurred on December 20th that resulted in an officer being punched in the face, breaking bones in his face and a laceration resulting in stitches. This unit has many inmates with many high-profile charges, including murder, assault and assault with a weapon.
189To restate again what is clear, there was never any report of weapons, nor was noncompliance ever documented, other than the 3 inmates who were involved in the officer assault. Furthermore, the final oft repeated conclusion by this officer about the inmates’ “high-profile charges” has absolutely nothing to do with the officer assault nor with any noted noncompliance.
190This officer was asked whether he ever questioned what the reported noncompliance was given that the Weapons protocol seems to specify the process to be followed when searching for weapons. His answer was essentially: no, he did not question the SMEAC and with respect to the Policy, he was asked whether he had seen it before. His response was “Mmhmm” which I take to be “yes” and then responded with a complete non-sequitur that he was taken to task previously by a superior for strip searching inmates after the death of an inmate. However, on further questioning he was asked whether he had read the Protocol, his response was: 74
A: I can’t speak to…I’ve read this. He’s verbalized. He didn’t ask me why we didn’t do a threat level for the, the talk, what I’m talking about for a death of an inmate, but he talked about the dignity of the inmates.
Q. Right but you’ve heard of the Threat Level Assessment, and you’ve read those words..
A. I do…
Q. ..under policy.
A. I do the threat level all the time, miss not every time, but quite often.
191This officer was questioned about the use, or lack thereof, of a functioning handheld camera which should record both audio and video, as opposed to the inbuilt surveillance cameras which only record video. He conceded it was his responsibility to ensure that the cameras were on and operational with an SD card installed. This officer said he was not advised at any point that the camera was not working during the Activation. He was insistent that at no point, even when the camera was moved from the extraction area to the nurses’ hallway, he was not told the camera was not functioning.
192This officer conceded being the person who, while in the nurses’ corridor, warned Superintendent Wong that he was being audio and video recorded. When counsel asked what Wong told him, this officer said Wong responded: “Oh wow I didn’t know that”75.
193Upon being reminded of a previous version he had told of his conversation with Wong, he agreed the Superintendent may have said “oh shit”, in surprise essentially, this officer mused, was because none of the officers were accustomed to working with audio.
194This officer made extensive reference to his experience that the cameras were outdated and often not functional. Presumably this was an effort to attribute the lack of video/audio recordings of the Activation on the date in question to faulty machinery. The problem with that is that many of the examples that he gave about those occasions included an awareness by the officer who was tasked with the recording being alerted to the problem in the midst of recording. In the case of this first day of the Activation, counsel have been told here are no recordings at all.
195This officer was the best example of what appears to be an institutional mindset at this institution. He was clearly outraged that one of his colleagues was injured and that the inmates were cheering that fact. While this evidence is not before me, I cannot help but remark on one of Justice Conlon’s conclusions in R. v. Whitlock et al found at paragraph 83:
(vi) the staff in the control module at MCC celebrated the ICIT deployment – they were seen smiling and laughing and mocking the inmates, and they appear to be very pleased to be able to witness the physical escorts of the inmates by ICIT officers as they walk by the control module from the cells area;
196Interestingly one of the officers who was seen laughing, testified to Justice Conlan “that the laughing was a coping mechanism that he employs to deal with stress – the stress of the Lecinski assault – and also because of his joint pain”.76
197At the time of Mr. Edgington testifying, Superintendent Wong had been fired because of his role in the initiation and subsequent conduct during the ICIT Activation. It was extraordinary to hear from this witness that the former Superintendent: a man whose actions had been on the front page of newspapers because of the outrage of what occurred, was somebody about whom he was asked by me: 77
Q. Superintendent Wong, did you come up through the ranks with him; do you know him?
A. No I don’t know him. I’d like to know him personally. He was probably the best super I ever worked under for his personality and, walking around the jail. Very positive, a nice change from what we’ve had to deal with, especially going through COVID. ……he was the best superintendent I’ve ever had and I’ve had a slew of ..
THE COURT: The reason I asked is you referred to him as “Winston”
A. Winston Wong.
198After hearing this testimony, I was provided a document titled HR Plan- MCC Correctional Complex (MHCC) – Institutional Crisis Intervention (ICIT Deployment December 2023.78 This document shows Mr. Edgington to have received a 10-day suspension for 3 reasons: 1. Staff Sergeant (SSGT) did not conduct a minimum of two unit tours when they were on duty on December 21, 2023 as required by a DSA email directive dated February 8, 2023. 2. SSGT made an unprofessional remark during their investigation interview that did not respect and acknowledge all gender identities, contrary to ministry policy. 3. SSGT did not ensure the Handheld Video Recorder (HDVR) was used in accordance with ministry policy, as they did not assign a Video Camera Operator for the ICIT deployment on 2023, or document their rationale via ICIT Activation Report (AR).
199By the time this witness testified, he had served his 15 day suspension, but was clearly still of the same mindset as he was during the Activation; that it was justified and he continued to proffer explanations for the actions during the deployment which on occasion had absolutely no bearing on the truth of the videos that we observed.
200I found this witness to be unbowed in his belief of the righteousness of the actions that he would admit, argumentative, arrogant and seemed to have no concept of the obvious lack of justification for the Activation. He was one of the senior officers in 8C and would have seen the double pepper spray blast that was inflicted on Mr. Mohamed and would have seen the deleterious effect it had on him.
201I did not find him to be a persuasive witness; in addition, he exemplified everything about the obvious cruelty of the infliction of pain and suffering on the men who had nothing to do with the assault on Lecinski, all of his actions were clearly retributive; he blamed all of the inmates for the action of one.
Mr. Stuart Wilson
202Stuart Wilson testified, he was in his 37th year of working at MCC. He used to work as an ICIT member many years ago and became a team leader, but resigned in the early 2000’s.
203With respect to the December 2023 ICIT Activation he was directed to be part of the search team as part of the Institutional Security Team. Mr. Wilson reported directly to Mr. Black, and to the Deputy Superintendent Ms. Fernandes.
204Mr. Wilson explained the bifurcation of roles: the ICIT team is responsible for the Activation including the extraction of the inmates, and his team would do the searching of the units. He was waiting in his office to be called to commence the search. When there was no communication, he went directly to the floor with his team.
205When the team arrived, Mr. Wilson described the search as being “80-90% done”.79
206The officer then continued:80
I was standing around, honestly a little, I’ve used this word previously, a little bewildered at what was happening. The superintendent was in the area. There were deputy superintendents in the area. They were throwing things out.
207The officer continued that he would have involved himself as was his role, if it had been a proper search. He explained further that he saw property being removed from a jail cell, which was not contraband, and which should remain in place.
208The search that he saw was not in accordance with policy; he went into a cell and saw that everything but the mattress had been removed. He said it was not appropriate to remove everybody’s things. He determined he was not going to participate in the search and left.
209Mr. Wilson explained that he had been cochair of the Health and Safety Committee and had tried to update the policy so that proper orders and proper training for new recruits as to searches could be provided. His efforts had come to naught. But on the 22nd of December he saw the Superintendent and his highest ranked Deputy, Ms. Newhook, involved in the search. He said:81
So I would suggest to you if you are actually the superintendent, the highest-ranking member of an institution, which he shouldn’t actually be in that area, doing that, and he is showing that, that he believes that he has the authority, that this is correct, that the staff members are being taken down the road they shouldn’t be taken down…..that’s incredibly, incredibly unfortunate.
210Mr. Wilson also described Mr. Wong gathering up all the staff on the range at that time and told them he was taking a photo, which Mr. Wilson understood was distributed to others, including the officer who had been assaulted.
211It was also Mr. Wilson’s belief that the ICIT Activation was a punitive action taken because of the assault on Officer Lecinski and it was an action contrary to the rules, policies and the law because it was against other people because of the “degradation and behaviour of another inmate82.”
212Mr. Wilson also agreed that what he told the CSOI investigators is still his view. He said: “I’ve worked this job for 35 years. I do understand doing the proper thing and keeping things secure. That is not what happened here”83.
213In terms of instructions received from Mr. Black that his team go around the institution and find people to write reports to provide backing the grounds for the Activation, in April 2024, Mr. Wilson considered it “collusion”. He told everybody at the meeting he would not be involved and even told Mr. Black that he should document these instructions in an email because Mr. Wilson could see Mr. Black getting into trouble for the search for supportive reports. Mr. Wilson did write a report but confirmed that in it he told the truth about what had happened and what he had seen and heard.
214Mr. Wilson described how his team met with the Deputy Superintendent Fernandes the morning following the first day of the Activation and had a discussion surrounding the extent of the search on the day before.
215Mr. Wilson also recounted a conversation with Ms. Fernandes in which she informed him that “they got rid of the audio and video”, he was so adamant about that conversation that when he told the CSOI investigation of this, he suggested he be asked to take a lie detector test to prove his truthful recounting of the conversation.
216Additionally, Mr. Wilson recounted that he had had two meetings with Ms. Fernandes on one day, both with his team and alone. He could not recall whether the issue of the missing video was discussed at both meetings, but again confirmed he received this information at one of the meetings. He described his reaction to that revelation as one of “surprise”84
217Mr. Wilson was clearly upset that it was the correctional officers who were being blamed in the media for all that had gone wrong in the institution. He considered that it was the Staff Sergeants – particularly Mr. Jones, who watched the search proceeding - and the Superintendent and Deputies who were the ones who should be blamed. According to Mr. Wilson, the officers were just following orders. Mr. Wilson was at pains to emphasize that even the guards who we observed on video carrying out placing Mr. Mohamed in the excruciating zip tie lock were only following orders. Furthermore, he believed that using the ICIT team to extract the inmates, who in fact posed no risk at all, was punitive.
218Mr. Wilson was very helpful in explaining the levels of command and policies in an institution. He spoke of who he thought was responsible for the ICIT Activation and the misdeeds and omissions of that chain of command. He also believed that the injuries inflicted on Officer Lecinski were horrific. He also said this:85
And the law should have come into place there; not correctional officers, not the administration. And everybody right up to – so for this type of activation to occur, the executive director, if you follow the policies of the administration, the executive director should’ve known. The regional director should’ve known. And in this investigation, it basically lays out the fact and it gives them plausible deniability, when the regional director actually toured with Mr. Jones the building the day before this happened.
219This was the second time Mr. Wilson had mentioned the presence of the Regional Director the day before the ICIT Activation. While the CSOI inquiry found that regional office had not been informed, Mr. Wilson was clearly skeptical of that assertion. The evidence that I have received points clearly to a decision being taken and disseminated on the 21st of December to conduct the whole scale Activation. Given the personnel involved in the Activation it seems that Mr. Wilson’s skepticism of regional office ignorance is understandable.
220Mr. Wilson has clearly suffered some ramifications of his refusal to search, his refusal to fill in false narratives and his truthful recounting the impropriety of what he saw the Superintendent and Deputy Superintendent doing in the Wing. While he was very close mouthed about the details, I have learned that his wife who was a Deputy Superintendent of MCC, but who was away on a course in London during the Activation Period was fired from her position. Also, I was told there is a grievance action by Mr. Wilson towards Mr. Jones (who resigned before meeting with the CSOI Inquiry officers) in the background and there is clearly no love lost between the two men.
221None of that affects Mr. Wilson’s credibility or reliability. He was careful not to pass comment on what he had only heard had happened, rather he reported on what he observed or heard firsthand, despite his obvious strong feelings and knowledge of what the media had reported. He knows the policy and appears to have demonstrated a slavish adherence to the spirit of the policies and fully understands that management was at fault.
222This is a man who has spent nearly four decades in public service at an institution; a man who knows the rules and will not countenance infractions of those rules. He respects the privacy of inmates and the importance to them of their possessions and who was obviously extremely disturbed by the abuse of the search policy that he witnessed.
223As Justice Conlan found, I found Mr. Wilson to be an honest reliable and frankly refreshingly truthful witness in this Application.
224However, I would disagree with Mr. Wilson to this extent: Mr. Wilson has the courage to not follow through with what he considered an improper search, and he chose not to lie or avoid the truth of what had happened. With the exception of Mr. Wilson, the MCC employees I heard from in this hearing, made a different choice. Their choice was not to be truthful on many occasions and not express even months and years after the event, that upon reviewing what happened, that the actions were wrong. While these officers may have been following orders, if those orders were so clearly wrong, why would they not tell the truth two years after the event. I am not as sympathetic as Mr. Wilson for his colleagues that testified in this hearing.
Ms. Pamela Fernandes
225Ms. Fernandes was the Deputy Superintendent of Security and Compliance at MCC during the ICIT Activation. She would not generally receive reports of weapons if they existed; those reports would go to the operations departments. However occasionally she would receive reports, but during the December 20th - 23rd 2023 period, she did not receive any.
226She was present at the institution the day of the Lecinski assault and recalled signing off on “Local Investigation Reports”, (“LIR”) received from the Risk Management Team (“RMT”). These LIRs incorporate occurrence reports from the officers involved which policy dictates, must be written by the end of the officer’s shift. These are then brought to her. She conceded that while the policy dictated when the reports should be written, the reality was different and in the case of the Lecinski assault she assumed there were reports missing but she does not recall exactly if that was the case. Then she conceded that when she started receiving subpoenas for the documents, which she thought may have been in March or April, she realized there were a number of reports missing. It was then put to her that in fact subpoenas were issued as early as December. Her immediate response was:86 ‘The first one I recall is January, the beginning of – the – like early January.”
227She denied that the ICIT Activation was a direct result of the Lecinski assault, rather she said it was ordered because of the behaviour in the inmates after the assault. She was asked what the behaviour was. Her first answer was “I wasn’t on the unit”. Her second answer was: “I can only speak to what I’ve seen in video and what I’ve seen in reports. It’s just they were refusing to lock up”. When asked what the resistance was, she said “I don’t know. I wasn’t there.”87 She then said she could not remember what she had seen on the video. The next rationale was overall noncompliance, but she wasn’t there.
228While Ms. Monaco argued with Ms. Fernandes about whether the latter’s testimony on this point was in fact worthless, I do not agree that it was worthless. It did allow me to form a very dim view of Ms. Fernandes’ credibility about her rationale for the ICIT Activation. She was just giving the “party line” and frankly given her position as Deputy Superintendent of Security, it was her duty to know and be truthful. She was not.
229Part of Ms. Fernandes role was also to oversee video surveillance and during the Activation, while she didn’t participate, she saw it on video. She also was sent the photograph ordered by Mr. Wong of him with his thumbs up in the Wing after the Activation. She responded: “Love it”. Her excuse for doing that, all knowing as she said it was “unusual” for a Superintendent to be involved in a search, she considered Mr. Wong as someone who was the kind of superintendent that would induce morale in staff. She said if she had known the photo was taken in the Wing, she would not have responded in such a way. Respectfully, I do not accept that explanation. It was obvious from the photo where it was taken, indeed the video surveillance of which she was in charge, shows where it was taken.
230Ms. Fernandes was also responsible for maintaining video surveillance if it is requested by third parties. When she received the requests to turn over the video of the Activation, she agreed she directed all her employees not to send out the video until she got legal advice. She was asked if she would be surprised if Ms. Monaco was advised in an email that she was not entitled to the video surveillance without a Freedom of Information Request. Ms. Fernandes denied all knowledge of the email.
231Ms. Fernandes denied ever seeing video from the handheld cameras utilized on the first day of the Activation, but she saw the handheld videos of the second day. She professed to having no idea what happened to the missing video, but said she received a call from someone telling her the December 22nd SD card was blank.
232Ms. Fernandes denied ever telling Mr. Wilson that the tape was “got rid of”. Given her lack of any efforts to find out what happened to the SD card, and to continue to ask for the creation of evidence supporting the institution version of events, I do not accept her bald denial. Mr. Wilson knew what he heard.
233Ms. Fernandes denied every knowing that the inmates were left without clothes for two days or that there was a significant temperature drop in the Wing. She testified she only found out as a result of production orders being served on the institution. Again, I find that difficult to accept.
234Finally with respect to the tardy completion of the LIR forms, she conceded that very few of them are completed within the time limits and indeed she did not even request them until March.
235Ms. Fernandes’ professed lack of knowledge and her dilatory approach to the task of ensuring compliance with securing video tapes and reports from officers is frankly shocking. She agreed that what happened on December 22 and 23 was a large activation; given the treatment of the inmates which she had observed from the video, her lack of attention to ensuring everything was proper and legal is demonstrably negligent.
236Finally, as was demonstrated with so many of the witnesses I heard and has been remarked upon by me, the cavalier consideration of the inmates in the institution is obvious, even to the extent to what they are called. MCC is the second largest jail in the Province of Ontario and has a large remand population. Ms. Fernandes referred to the men as offenders. She should be leading by example. The choice of language is important, and it would be expected that someone as senior as Ms. Fernandes would be aware that the inmates only become offenders when a court makes that finding. Most of these men still carry with them the presumption of innocence. They are not treated as such in MCC.
Ms. Marguerite Newhook
237Ms. Newhook is also a Deputy Superintendent at MCC. On December 20th she was alerted to the assault of Mr. Lecinski and walked him to A & D. She returned to her office and then had a conversation with Mr. Wong about the “activation of ICIT for the individual who had assaulted CO Lecinski”.88 This activation was apparently to transfer that person.
238On the following day, she arrived at 8.30 a.m. and met with Staff Sgt. Jones who spoke to her and Mr. Wong and informed them of his wish to activate ICIT for the whole of Unit 8. She did not consider this request to be an excessive response to the incident the day before. She thought there were other considerations apart from the assault: she called those “the mood”. Counsel’s questioning continued:89
Q. Okay and whether or not you felt that it was the proper thing to do, you don’t remember thinking, “Well why are we doing this”.
A. I didn’t make the decision.
Q. And you’re there with a man who says, “We’re going to activate ICIT”, you had seen the video. Clearly it would have crossed your mind that this was not a situation to activate ICIT, that it didn’t warrant it. Clearly that would have crossed your mind, did it not?
A. I don’t recall the conversation.
239Ms. Newhook continued to deny she took any role in the decision making, even though she was the second in command. When asked if she agreed with the decision to activate: her response was: “Its neither here nor there”. She was asked the same question two more times and continued to prevaricate, until I instructed her to answer the question as there had been no objection by the Crown. She indicated she agreed with the decision but could not recall whether she was given any information about further occurrences during the night of the 20th, nor could she say whether the ICIT activation was merely a response to the assault on the officer. Towards the end of her testimony Ms. Newhook revealed that her understanding was that the ICIT team was activated because of the inmates’ behaviour standing over Mr. Lecinski as he lay on the ground and that there was some conversation about meal trays being held back.90 I watched the video, the inmates did not approach Mr. Lecinski when he was on the ground.
240Ms. Newhook did agree that the normal procedure for activating ICIT would be for the Staff Sergeant to brief one of the deputies as to the rationale for the request, this would be by email. That email would be sent to the Toronto Regional Office. None of this procedure was followed for this Activation.
241Ms. Newhook’s lack of attention to the process which is part of her role as the person in charge of staff training of Ministry policies was complete. She could not recall whether she raised the issue of lack of process and paperwork with Mr. Wong. Ms. Newhook was asked if she would have made notes of what was happening. Her answer was “Not necessarily”.91 Nor could Ms. Newhook remember touring Unit 8 on December 21st, although she agreed she had apparently done so,
242Ms. Newhook was asked about her knowledge of the need for a Threat Level Assessment. Her response was “I do now know that. At the time, I, I, don’t remember.”92
243On the day of Ms. Newhook’s testimony in this matter, the decision of Justice Conlan was released. When testifying in the afternoon of October 24th, Ms. Newhook agreed that she had read the decision. Ms. Newhook’s changing testimony before Justice Conlan on this very issue, gave the learned Justice serious concerns about her credibility. She was asked by Ms. Monaco if in fact she did not know about the Threat Level Assessment being required in December 2023. Her response: “I don’t recall.” Ms. Newhook continued to prevaricate so much so that I asked her: “You don’t know that you didn’t know?”93
244Ms. Newhook agreed that she told the CSOI investigators that she knew of the requirement but is now saying she should have known but did not.
245With respect to what occurred on December 22nd, Ms. Newhook testified that she was on duty but had nothing to do with the Activation. She said she was surprised when appearing before Justice Conlan a video revealed her to be on Unit 8, although she categorically denied ever being within the Wings as at least two of her colleagues – one of them being Mr. Wilson in his testimony in this Application - had recounted her being part of the search. I do not accept this professed lack of memory to be the truth.
246Ms. Newhook agreed that the only LIR she signed off on was the Lecinski assault and that was woefully late – 5 or 6 months after the occurrence.
247Ms. Newhook concluded her testimony in agreeing with the benefit of hindsight that there were other alternatives that should have been explored before the drastic ICIT Activation step. Furthermore, that while it was Mr. Wong who made the ultimate decision and should have put all of the process employed into writing, that she could have done that as well. She also agreed that there was not sufficient justification for this Activation and that she adopted a “hands off” approach to the decision making.
248While I appreciate Ms. Newhook’s opinion proffered in October, 2025 that there were issues with the decision-making process to activate the ICIT unit, her testimony about what happened on the day of the activation is hopelessly flawed by a professed lack of memory, and changing testimony. Frankly the only time Ms. Newhook was definitive was in her refusal to accept that she was part of the search team with Mr. Wong in Unit 8. She initially had apparently denied ever being there, then had her memory refreshed by a video showing her to be on the floor but not within the Unit but was vociferous in her refusal to admit she had, as described by Mr. Wilson, been being in the Wing and working with Mr. Wong in the search. I do not accept her evidence on this. Mr. Wilson was clear and concise in what he observed on Unit 8, together his surprise at what he saw and his reaction. His evidence has none of the flaws in both reliability and credibility that Ms. Newhook’s has. I find she was part of the search and was playing a supportive role in this inappropriate and unlawful Activation.
Ms. Maxine Goulbourne
249Ms. Goulbourne was the nurse on shift on December 22nd, 2023 and in front of whom, Mr. Mohamed was presented. She confirmed the record that she had completed indicating Mr. Mohamed had “No injuries reported or noted”. 94
250Ms. Goulbourne was shown the video of Mr. Mohamed being brought within her purview. She indicated she could not see any injuries on the video and was then asked by Mr. Wilson the following question:95
Q, And the position the gentleman is in is uncomfortable, I mean, would, would you have thought this is probably uncomfortable?
A. I’m not able to comment
251Ms. Goulbourne was being faced with the same image that is depicted in this judgment and forms Exhibit 11. I found her response as noted above to be at best disappointing; she is a health care provider and her refusal to comment on what was so obvious, is shocking. It is just yet another indication of the seeming lack of candour that is so prevalent in the witnesses who appeared to corroborate the correctness of the process that was followed on December 22, 2023.
252Ms. Goulbourne spent 24 seconds with Mr. Mohamed facing her and visible from the waist up. She admitted never going behind him, she did not see the pepper ball launcher being pushed into his back which is revealed in the photo in this judgment.
253Ms. Goulbourne did not have Mr. Mohamed’s health records with her at this time, neither did she recall providing him with medication over his time in MCC.
254It was conceded by the Crown that Mr. Mohamed did not receive his medication for his anemia or his dose of melatonin during the day of the Activation nor on the next day that it was due.
255Unfortunately, there is but one conclusion that can be drawn about this so called “medical examination”. It was a matter of form over substance i.e. a pretense at checking the inmates’ wellbeing before they are placed in the corridor a significant length of time in uncomfortable conditions. Mr. Mohamed had been pepper sprayed twice; he was standing in front of the nurse who did nothing more than add checkmarks to her form.
IV The Legal Issues:
Charter breaches
256Mr. Mohamed submits the Activation was ordered and carried out in breach of his Section 7, 8 and 12 Charter rights. It is the Applicant’s onus to prove a breach of a Charter right on a balance of probabilities and which the Crown has now conceded has been met.
257Section 7 states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
258Section 8 states: Everyone has the right to be secure against unreasonable search or seizure. Obviously, there is a limited right of search and seizure contained in the Ministry of Correctional Services Act. 96
259Section 12 states: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
260The Government of Canada Guide97 states Section 12 prohibits treatment and punishment by the state that are cruel and unusual. This includes torture, excessive or abusive use of force by law enforcement officials.
261Canada is a proud signatory to the International Covenant on Civil and Political Rights. The following Articles are of relevance:
Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 10: (1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
262The alleged breaches of Sections 7 and 12 in this case therefore relate to the treatment of Mr. Mohamed. To summarize the evidence, this ICIT activation was clearly a retributive result of the assault of the Correctional Officer. Any pretense of it being anything else simply is false. All of the inmates who became the subjects of the ICIT deployment had nothing to do with the assault of the Correctional Officer.
263The events described by Mr. Mohamed and documented in the video surveillance clearly reveal the appalling treatment of him. The use of pepper spray twice in the face, the disallowance of Mr. Mohamed to use his hands to try and get the pepper spray from his eyes and body in the shower, the manipulation of his arms to a position that is clearly designed to cause great pain, surrounded by numerous officers, amounts to nothing less than torture, The mandated positioning of all prisoners in the hallway with only their underwear, and of Mr. Mohamed soaking wet from a shower where he was not even permitted to dry himself, the lack of clothing and bedding for at least 2 days, with exhaust fans open to the December air, all amount to cruel, degrading and inhumane treatment.
264Section 8 relates to the strip search being carried out for an improper purpose and for the abusive removal of all clothing except boxer shorts from Mr. Mohamed for many hours and without justification, and also for the abusive search and removal of all of his possessions from his cell, except a prayer mat. During the hearing of the Application, I received a copy of a document contained in the Institutional Services Manual: Polices & Procedure (“the Policy”). The purpose of this Policy is set out in Section 1.0:
The purpose of this policy is to establish an objective process for assessing threat levels and a protocol to follow when searching for weapons in correctional institutions in order to ensure that threats to institutional safety and security are responded to in a safe, responsible and effective manner.
265The Policy speaks to the process required when a threat of weapons or information as to the existence of a weapon in the institution is received. The policy proscribes the criteria to be used in assessing the credibility of a threat and/or information as to the existence of weapons. If the information is deemed credible, the next step is to consider which of the three levels of search should be conducted98. Of the three levels, level 5 is the highest and stipulates: “Search of the institution with cell extractions by multiple ICIT teams, use of handheld metal detectors and searches by correctional officer search teams”.
266The Activation that took place on December 22 and 23 involved the entire ICIT personnel. This Policy designates correctional officer search teams should be involved and conduct the searches. Clearly Mr. Wong and the Deputy Superintendent were not part of the search teams.
267Also, at the end of this Section describing the level of searches, there is the following:
Note: Staff do not have to wear body armour when searching unoccupied areas and cells or for searching and removing inmates who have already been strip-searched.
268The Policy also delineates a “Weapons Search Protocol Checklist” which must be completed by the crisis manager or designate to ensure none of the steps taken to confirm vital information has been overlooked.
269Furthermore, when a search is authorized, the Policy orders priority be given to certain goals, two of those goals are of relevance in the facts before me: that of providing inmates with essential health care services and medication and further continuing to provide basic nutrition, hygiene and laundry services.
270The admitted facts make it clear that the Threat Level Assessment was never conducted, nor was there any real threat or information (as distinguished from Correctional Officer gossip) of weapons in the institution. Also, I did not receive any evidence that the so called “Crisis Manager” ever completed the Protocol Checklist as required by the Policy.
271Furthermore the nature of the search, the insistence that each inmate remove all of his clothing in front of an officer observing through a window on the door of the cell, to the order that only allowed them to cover their naked bodies with boxer shorts, the removal and theft of the inmates’ canteen (a double order because of the Christmas holidays) the lack of clothing and bedding when these inmates were covered only by their boxer shorts and suffering from reduced heating all points to an abusive, improper search and seizure.
272While the Crown in the interests of “judicial economy”99 has conceded these breaches, it is still suggested that this concession is not one that the Crown agrees with Justice Conlon’s findings on the facts before him. I have made findings of fact on the evidence before me; there really was no dispute from the Crown as to what we saw or the inferences that should be drawn from testimony. Frankly the assertion prior to me making findings of fact, that the Crown, despite its concession, has given notice that it wants to appeal this judgment is unprecedented and astonishing.
273There has never been any credible justification for this man to endure the following:
a. to receive two blasts of pepper spray while dressed only in boxer shorts,
b. to be punched while pinned down on the pepper spray ridden floor,
c. to be asked to sing Jingle Bells while in that position.
d. to be forced to shower with his hands tied behind his back so that he was unable to remove the pepper spray from his face, the focus of the discharge,
e. to have a pepper spray gun pressed against his naked back while in front of the nursing staff,
f. to be forced to sit in a cross-legged position in boxer shorts with other inmates for the best part of 2 plus hours,
g. to have and be aware of, while cross-legged, a pepper spray gun pointed to his head as an object of intimidation,
h. to be taken to A & D for an intrusive body scan in only his boxer shorts and bare feet for no justifiable reason,
i. be left with only wet boxer shorts as clothing for 2 days,
j. to be left in a cell in cold temperatures with an exhaust fan running which is open to the December elements without any other clothing, blankets or covering for warmth,
k. to lose all of his meagre possessions from the cell including personal papers, double canteen in the amount of $180, photos and all clothing.
V The Remedy
274I will now turn to the issue of remedy. The issue of the MCC Charter infringements has been considered more recently by three Superior Court Justices in this jurisdiction, I will deal with the first two of those. The first case chronologically speaking was R. v. Ritchie.100 The second was the aforementioned R. v. Whitlock.
275Ritchie was charged with second degree murder of the mother of his of their 8-year-old child. He was a serial abuser of her and had continued to do so while on release to have no contact with her. He also had a criminal record of 13 previous convictions. He essentially decapitated her in her home with their son in the same premises. It was the child who found his dead mother. The defendant pleaded guilty. While awaiting sentence, he was in Unit 8B when the ICIT Activation took place and while he experienced much of what happened to Mr. Mohamed, there was no pepper spray deployed.
276The only issue in the sentencing hearing of Ritchie was the issue of parole ineligibility. The Defence was seeking a reduction to 10 years, the Crown a reduction of 18 years because of the breaches of Section 7, 8 and 12 of the Charter. Other alleged breaches of Sections 9, 12 and 15 were either abandoned or dismissed. Justice Woollcombe reduced the parole eligibility by two years, from 20 years to 18 years for the breaches.
277Whitlock, a decision of Justice Conlon as a pretrial case management judge, dealt with 3 defendants, all of whom were inmates on remand for first degree murder and attempt murder. Justice Conlon on the Charter motion heard in all from 30 witnesses and concluded the following101:
…The Crown submits that this case is not what confronted Justice Woollcombe in Ritchie. I agree. It is much worse. The vast evidentiary record before this Court is like nothing that has been before any other judge when it comes to the ICIT deployment at MCC in December 2023. The CSOI findings which were the main source of evidence before Woollcombe J., are benign compared to what this Court has heard.
278While the evidentiary record before me is not as complete, as it deals with one defendant and his experience as an inmate on Wing 8C, it is certainly more relevant and frankly shocking than the evidence before Woollcombe J. and there is no allegation that Whitlock and his two coaccused Bhatia and Sandhu were victims of any pepper spray deployment into their faces and body.
279Neither Bhatia nor Sandhu testified on the application, Mr. Whitlock did, but much of his evidence was rejected by Justice Conlon who found that none of his evidence was necessary to a determination of the issues raised in this application. My finding with respect to Mr. Mohamed’s evidence is different.
280I will now turn to the issue of whether a stay or, as the Crown suggests, a finding that a sentence slightly lower than the MMP of 5 years is appropriate.
281Section 24(1) permits for a stay of proceedings to be granted only in the clearest of cases where (a) the conduct of the state compromises the fairness of a defendant’s trial – this concern really addresses a consideration of whether there will be ongoing unfairness to the accused; clearly this does not apply in Mr. Mohamed’s case or (b) within what is known as the residual category in which the conduct of the state risks undermining the integrity of the judicial process.102 Clearly Mr. Mohamed’s case falls within the residual category given Mr. Mohamed’s waiver of his right to a trial and ensuing guilty plea. It is within this category that the actions of the state which are so offensive to society’s sense of fair play and decency, fall. These cases are rare.
282Three requirements for a stay are required103:
(1) there must be prejudice to the defendant’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome,
(2) there must be no alternative remedy capable of redressing the prejudice and of disassociating the justice system from the impugned state conduct going forward, and
(3) after consideration of (1) and (2) the balancing test should be undertaken in a case such as Mr. Mohamed where his Application invokes the residual category.
283This balancing test mandates certain considerations best set out by the Supreme Court of Canada in Babos (supra):104
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. 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.
284There is no doubt that the treatment of Mr. Mohamed by the officers at MCC fulfills the first requirement. Such abusive treatment at the hands of prison guards in whose trust Mr. Mohamed had been placed pending trial and/or sentencing is considered connected to these proceedings and seriously affects and frankly undermines the integrity of the justice system.105
285The satisfaction of the second requirement does not require that any alternative remedy be available. Indeed, there is an alternative remedy suggested by the Crown: that of a time served situation which is short of the MMP designated by Parliament106 This would mean that Mr. Mohamed would receive a sentence of 4.5 years rather than the MMP of 5 years.107
286The requirement is that the alternative remedy considered by me “would suffice to dissociate the court from the prejudice occasioned to the integrity of the justice system by the …misconduct”108 To consider that a sentence below the MMP is appropriate cannot be sufficient to telegraph the need to disassociate the court and the justice system from what occurred at MCC. Not only is this effectively a reduction of sentence of 6 months, but it fails to address the horrific torture to which Mr. Mohamed was subjected.
287Also it ignores the requirement that the justice system, in the clearest of messages, will in no way countenance, excuse or play down the abuse of the system, of the law and frankly of the systemic lying and obfuscation by so many of the MCC officers, up to and even after the release of Whitlock in which His Honour made the following findings109:
Fifth, one of the overarching themes of the Crown’s position on the request for a stay of proceedings is that we are concerned with a mere two days at MCC. I disagree. There is no reason for this Court to ignore the gross and pervasive lack of accountability and follow-up that post-dated the ICIT deployment, even after the CSOI body’s findings were made. This is a systemic problem of a lack of accountability at MCC, both internally and externally within the wider Ministry. There is no reason for this Court to ignore things like the negligent loss or intentional destruction of evidence, the lying of MCC witnesses in the courtroom, the collusion among MCC witnesses, and the attempted cover-up that came after the ICIT deployment. All of these things are highly relevant to the stay application, as found by Justice Penman in Her Honour’s case, Gilmore-Bent, 2024 ONSC 199, at paragraphs 67-87, and as confirmed by Justice Paciocco on appeal, Gilmore-Bent, at paragraph 59. In fact, a lack of accountability, destruction of evidence, and lying in court during the currency of the proceeding itself, all proven considerations in our case, have also been pointed to in past decisions of the Court of Appeal for Ontario as being highly relevant on this type of application: R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253, at paras. 42 and 48; R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at paras. 92-94, 102, and 107.
288Justice Conlan made a finding, which I was unable to due to the volume of the evidence before him, that the audio and video camera recordings from December 22, were destroyed. I heard evidence from Mr. Wilson that Deputy Fernandes informed him of the destruction. Mr. Wilson who was so sure of what he heard that he recounted offering to take a lie detector test. However, this allegation was vociferously denied by Ms. Fernandes.
289I have deep suspicions that something mysterious happened to the video recording especially since Mr. Wong was alerted to the facts of the recordings and the other numerous instances of the cover up once the subpoenas were received in the creation of a completely false narrative, however I did not receive enough evidence to draw the conclusion of destruction.
290Finally, I turn to the balancing that I must do bearing in mind the ultimate test: is this the clearest of cases for which a stay must be granted? Undoubtedly Mr. Mohamed committed serious offences. I have looked at a number of cases in which stays were granted. Obviously, none is more serious than in Whitlock which is under appeal.
291In R. v Capay110 a charge of first degree murder was stayed due to the treatment of holding the defendant in administrative segregation by himself for four years, six months and two days. The defendant was in his mid 30’s and an Indigenous person who suffered from the legacy of being in a family in which the residential schools had left their horrible legacy of alcoholism, domestic violence, sexual abuse and physical assaults. The court considered, during the balancing test, that the state conduct was not isolated, the inadequacy and ineffectiveness of the segregation review system was well known and long standing. The court found that this was the clearest of cases in which a stay should be granted because “no remedy short of a stay is capable of redressing the prejudice caused to the integrity of the justice system as a result of the multiple and egregious breaches of the accused’s Charter rights”.111
292In R. v. Singh112 the defendant was convicted of a robbery involving a $350,00 theft of goods. The victim was bound by zip ties and duct tape and threatened with what he believed to be handgun. Two accused were arrested and alleged that on three occasions, they were beaten by the police. Statements described as exculpatory were obtained from both defendants, one of whom was seriously injured including a broken rib. The trial judge denied a stay, but the Ontario Court of Appeal overturned the decision and imposed a stay because the assaults were the result of “a calculated, prolonged and skillfully choreographed investigative technique developed by these officers”. The Court found that “it would be naïve to suppose that this type of egregious conduct, on the part of these officers, would be confined to an isolated incident”113 and found that there should be no condonation of the type of interrogation and further that the officers had not been called to account for their behaviour.
293In R. v. Tran114 the defendant, while being acquitted at trial of a series of violent home robberies, was convicted of 2 counts of conspiracy to commit robbery. He was beaten badly by police when arrested, his jaw was broken in two places and provided tardy medical attention. The officers involved lied to other officers, tried to force Mr. Tran to say he fell, and also were found to have committed perjury when testifying on the voir dire. No criminal charges were laid against the police, nor where they disciplined. At trial the judge imposed a 50% reduction in sentence, but the Court of Appeal imposed a stay of proceedings because of the serious assault for no reasons, delayed medical attention, a cover up including perjury. The Court also found the prosecutorial response was one of alignment with the police regardless of the abuse. The Court determined these actions were an affront to decency and fair play and overturned the trial decision.
294At this juncture I want to emphasize that throughout this hearing, Crown Counsel, Mr. Wilson has been more than cooperative in providing assistance to counsel and to all in the courtroom in terms of showing video footage, being flexible as to the process and fair in his submissions. In our discussion about the Crown’s amended statement of concessions, I queried him on the proposed appellate process: he was more than clear and frankly honest, that it was his understanding that because of the scope of the Crown’s appeal in Whitlock, any decision by me would be vulnerable to being joined in that appeal. Mr. Wilson, at the conclusion of Mr. Mohamed’s evidence; he was the last witness called in the hearing, conceded that he was hopeful that what happened to Mr. Mohamed about which we have heard so much, was the worst that happened to anyone and that we would not have to hear any more egregious versions of event. I thank him for his assistance and candour throughout this case; suffice it to say that his behaviour and submissions were the totally opposite of those heard from the Crown in Tran.
295Having said that, Mr. Wilson’s submissions on behalf of the Crown, having heard the evidence, were succinct. He did not invite any alternate finding on the issue of the Charter breaches and the facts that we heard, except with respect to the reliability of Mr. Mohammed on certain issues.
296Mr. Wilson did oppose Mr. Mohamed’s request that a stay be imposed, arguing that there was an alternate remedy and further that the facts here while meriting a remedy did not rise to the “clearest of cases” and therefore a stay was not appropriate. I disagree.
297There has been little or no accountability for the actions at MCC. Over 190 inmates were subjected to a coordinated series of retributive and vengeful attacks because one inmate assaulted an officer and two more appeared to try to assist him after it was all over. There have been two CSOI inquiries, which found wrongdoing. As a result, there were some officers who were disciplined. Referring again to the HR Action Plan, two members of management were shown to be “terminated”. Mr. Wong was terminated, as was Mr. Ramirez, the Search Captain. Two Staff Sergeants resigned before they could be sanctioned: Mr Jones and another. Four officers were terminated for collusion and excessive force. Other management members and officers received suspensions for up to 20 days; most were for 3-5 days.
298Many of the very same officers who were responsible for the hardship endured by Mr. Mohamed still work at MCC. Not one person has been charged criminally despite the findings of excessive force and collusion and lying. The cover up continues by the officers denying under oath in 2025 that everything that occurred was not according to Protocol and that there was no correlation between what happened to Mr. Lecinski and the decision to put into effect the largest ICIT Activation known to many.
VI Conclusion
299In concluding, I emphasize my full awareness of the seriousness of Mr. Mohamed’s offence. I watched the video of the robbery, it was clearly a premeditated act, it was violent, and Mr. Mohamed fought hard to try and remove himself from the grip of those who apprehended him.
300But the principle of The Rule of Law is about much more than punishing people who have been proven to have committed offences. It is an overarching principle about the conduct of all peoples and the state institutions which work within the government. If those state institutions do not follow the rules and then cover up that lack of adherence when called to account how can we in the justice system just stand by and respond with a “Yes but these are bad people”? We cannot, if we did The Rule of Law would be nothing more than four meaningless words.
301A stay of proceedings is the only remedy available and this case, above many, is the clearest of cases. Frankly the overwhelming disappointment is the concept of believing that surely in Canada, we would be better than this. The actions of the MCC officers prove sadly that we are not. Furthermore, it is an imperative that the justice system proclaim these actions are not acceptable and so far beyond the bounds of common decency that the system must react with the strongest of condemnation.
302The charges against Mr. Mohamed will be stayed.
Released: April 27, 2026
Signed: Justice K.L. McLeod
Footnotes
- 2010 SCC 6 para 6 & 64
- 2025 ONSC 6006
- Exhibit 11
- Transcript of October 16, 2025 p. 55
- Transcript of October 16, 2025 p. 64
- Transcript of October 16, 2025 p. 66
- Transcript of October 16, 2025 p. 69
- Transcript of October 16, 2025 p. 89
- Transcript October 16, 2025 p. 107
- Transcript October 16, 2025 p. 105
- Transcript October 17, 2025 p.30
- Transcript October 17,2025 p.31
- Transcript October 17,2025 p.56
- Transcript October 17,2025 p.56
- Transcript October 16, 2025 p. 47
- Exhibit 8(b)
- Transcript October 17, 2025 p. 96.
- Transcript October 17, 2025, p.84
- ICIT Activation Report of Witness Watson
- See Transcript October 17, 2025 p. 98.
- See evidence of Ms. Goulbourne infra.
- Transcript October 17. 2025 p.131
- Transcript October 17, 2025 p.135
- Transcript October 17, 2025 p.141
- See Transcript of October 17, 2025 p.155
- See Transcript October 20, 2025 p.20
- See Transcript October 20th, 2025 p.23
- Exhibit 9.
- Transcript October 20th, 2025 p.67
- Transcript October 20, 2025 p.38
- Transcript October 20, 2025 p.53
- Transcript October 20, 2025 pp. 54-55
- Exhibit 10(a) Use of Force Occurrence Report dated December 20, 2023.
- Transcript October 20, 2025 p.85
- Transcript October 20, 2025 p 89
- Transcript October 20, 2025 p. 90
- Transcript October 20, 2025 p. 96.
- Transcript October 20, 2025 p. 98
- Exhibit 10(b) ICIT Activation Report, dated December 23, 2023.
- Transcript October 20, 2025 p.126
- Transcript October 20, p. 130
- Transcript October 20th p. 130,
- See Evidence of Mr. Edgington infra
- Transcript October 20th, 2025 p. 138
- Transcript October 21, 2025 pp.23-25
- Transcript October 20, 2025 p.156
- Transcript October 21, 2025 p.13
- See Paras 108,119,121,126 (supra)
- SMEAC is the acronym for Situation, Mission, Execution, Administration, Logistics & Command.
- Transcript October 21, 2025 p.32
- Transcript October 21, 2025 p.46.
- Transcript October 21, 2025 p.46
- Transcript October 21, 2025 p. 62
- Transcript October 21, 2025 p.134
- Transcript October 21, 2025 p. 78
- Transcript October 21, 2025 p. 79
- Transcript October 21, 2025 p.79
- Transcript October 20, 2025, p.138
- Transcript October 21, 2025 p. 79
- Transcript October 21, 2025 p. 125
- Transcript October 21, 2025 p. 131
- Transcript October 21, 2025 p. 141.
- Applicant’s Materials: Tab 4, Transcript October 21, p.151
- Transcript October 21, 2025 p. 153
- Transcript October 22, 2025 pp 15-16
- Transcript October 22, 2025 p. 20
- Contained in his Affidavit:67 is the following clearly false statement which is contradicted in the Agreed Statement of Fact and by the videos and evidence:
- October 22, 2025 p.43
- October 22, 2025 p.87
- Transcript October 22, 2025, p, 98
- Transcript October 22,2025 p.102
- Transcript October 22, 2025 p. 109
- See Para 145 supra
- Transcript October 22, 2025 p.113
- Transcript October 22, 2025 p.135
- Paragraph 105 Whitlock supra
- October 22, 2025 p. 150
- Exhibit 17
- Transcript October 22, 2025 p. 157
- Transcript October 22, 2025 p. 158
- Transcript of October 22,2025 p. 170
- Transcript of October 22,2025, p.188
- Transcript of October 22, 2025 p.190
- Transcript of October 24th, 2025 p. 25
- Transcript of October 24th, 2025 p. 48
- Transcript October 24, 2025 p. 76
- Transcript October 24, 2025 p.79.
- Transcript of October 24th, p.97
- Transcript of October 24th p.104
- Transcript of October 24, 2025 p. 131
- Transcript of October 24, 2025 p 115
- Transcript of October 24, 2025 p. 116
- Transcript of October 24, 2025 p. 120
- Transcript October 24, 2025 p. 143
- Transcript October 24, 2025 p. 142
- RSO 1990 Section 23.1
- https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html
- Para 6.6,4 of the Policy.
- See document of concessions by Crown post Whitlock para 16 supra
- 2025 ONSC 4580
- Whitlock supra at para 513
- R. v. O'Connor, 1995 SCC 51
- R. v. Babos, 2014 SCC 16
- Babos at para. 41
- R. v. Bellusci 2012 SCC 44, R. v. Gilmore-Bent 2025 ONCA 553
- R. v. Nasogaluak (supra)
- Criminal Code of Canada, s. 344(1)(a)(i)
- Bellusci supra at para. 46.
- Whitlock supra at para. 520.
- 2019 ONSC 535
- Para 534 ibid
- 2013 ONCA 750
- R. v. Singh (supra)
- 2010 ONCA 471