Court File and Parties

Date: April 3, 2017

Court File No.: TORONTO 12000789/2010

Ontario Court of Justice

Between:

SHANE RUTHERFORD, Applicant

— AND —

HER MAJESTY THE QUEEN, Respondent

Before: Justice Paul H. Reinhardt

Heard on: 22 April, 4 May, 1 June, 2 September, 17 November 2016 & 23 January, 23 February 2017

Reasons for Ruling on Application released on: 3 April 2017

Counsel:

Elme G. Schmid & Margaux Peck, for the Applicant

Sarah De Filippis, for the Crown, Respondent

REINHARDT J.:

Introduction

[1] By Application dated 15 January 2016, Mr. Shane Rutherford brought application before this court pursuant to Sections 15 and 24(1) of the Canadian Charter of Rights and Freedoms seeking a stay of these proceedings.

[2] The application was brought based upon an Application Record, including court transcripts and documents, including Medical Records, which were sealed at the request of the Applicant.

[3] I heard testimony from two witnesses for the applicant:

(1) Shane Rutherford, on his own behalf; and

(2) John Rae.

[4] We conducted a Mohan Voir Dire with respect to Mr. Rae's qualifications to give expert opinion evidence, and I ruled that Mr. Rae was qualified to do so. (See Exhibits 6(a) Report, and Exhibit 6(b) Curriculum Vitae.)

[5] After due consideration, I have concluded that the Application must fail.

[6] In my view, Mr. Rutherford has not satisfied his evidentiary burden, to prove to a balance of probabilities that his Charter-protected Section 15 rights have been infringed.

[7] These are my reasons.

History of Proceedings

[8] On 16 January 2010, the Applicant, Shane Rutherford, was charged with one count of Impaired Driving and one count of Over 80-Operation, contrary to section 253 of the Criminal Code of Canada.

[9] Upon arrest, Mr. Rutherford's ADHD medication was confiscated by police, who believed it to be the street drug "ecstasy", and charged him with one count of Possession of a Controlled Substance contrary to section 4(6) of the Controlled Drugs and Substances Act ("CDSA").

[10] Mr. Rutherford deposed and testified that on his first court appearance regarding this matter, on 11 March 2010, he was represented initially by counsel, Owen Wigderson, and at this initial court appearance, the court was provided with a counsel designation.

[11] In addition, Mr. Rutherford deposes in his affidavit dated 18 January 2016, that on his own behalf he requested alternative form disclosure and disability accommodation, when he first appeared in court.

[12] However, in that same affidavit, paragraph 28, he deposes that he did not pursue alternative format disclosure or other accommodation when he realized that his ultimate counsel, Brian Doody, who was not visually impaired, could assist him to understand the Crown standard format disclosure, as well as represent him at his trial.

[13] On 26 August 2010, the CDSA charges were withdrawn.

[14] On 7 July 2011 Mr. Rutherford was arraigned and brought an application under the Canadian Charter of Rights and Freedoms (the "Charter") pursuant to section 11(b) of the Charter, alleging unreasonable delay.

[15] Again, he was represented in this initial proceeding and this initial application by Counsel Brian Doody.

[16] On 28 September 2011, Justice Ray granted the application and these proceedings were stayed.

[17] The Crown appealed, and on 24 May 2012, the Honourable Justice Michael Code allowed the appeal and ordered a new trial.

[18] Beginning on 25 June 2012, Mr. Rutherford was back before the court in 111 Court, to begin the process of setting a new trial date, and was representing himself.

[19] On that date, Mr. Rutherford deposes in his affidavit dated 18 January 2016 that he made his first appearance on the re-trial and again requested alternative format disclosure, unspecified, to permit him to represent himself in these proceedings.

[20] After six further appearances in 111 Court, between 19 July and 8 November 2012, a judicial pre-trial was set for 5 December 2012. On that occasion, the Crown was represented by Counsel Eva Flynn, who by that date had seized herself with the matter.

[21] In this hearing, the transcript discloses that Mr. Rutherford indicated that he was seeking, in addition to "large-print" written disclosure, electronic disclosure for use in his computer.

[22] Mr. Rutherford also placed on the record his request for accommodation during the trial itself, in the form of "live-streaming" of the proceedings into his computer.

[23] In this hearing a trial date was set for the 1st and 2nd of May, and a separate 11(b) delay application for 14 March 2013, with a further date of 24 January for the matter to be spoken to, to confirm that the 11(b) application had been perfected, and that accommodation during the application and trial had been finalized.

[24] On 24 January Mr. Rutherford did not appear, and bench warrant was issued for his arrest.

[25] The warrant was executed when Mr. Rutherford was at his home.

[26] Mr. Rutherford was brought to court in custody on 25 January and released on consent of the Crown on his own bail.

[27] The matter was further adjourned to 1 February 2013.

[28] On 1 February 2013, Mr. Rutherford again was not present and a second warrant was issued.

[29] The transcript discloses that Crown counsel Ms. Flynn explained to the court in the morning session the history of the matter: that on 5 March 2012, a judicial pre-trial had taken place and because the 11(b) application was still not perfected, the matter had been originally set for 24 January to be spoken to, to confirm that the 11(b) application was perfected.

[30] During the morning session, the court and the crown agreed that Mr. Rutherford should be given more time to attend before a warrant would be considered, and the matter was held down until the afternoon session.

[31] In the afternoon session, Mr. Rutherford was still not present, and the Crown sought a bench warrant and the vacating of the trial date. The court granted the warrant and vacated the trial dates on the basis that Mr. Rutherford had not attended for the second time.

[32] Mr. Rutherford was again arrested on 14 February 2013, and brought to court and then released, again on consent on his own bail with the matter further adjourned to 21 February 2013.

[33] On 21 February, the matter was further adjourned for a second judicial pre-trial to 27 February, in 112 Court.

[34] On 11 March 2013, in 112 Court, the second open court judicial pre-trial was held, and Mr. Rutherford renewed his request for electronic disclosure and "live-streaming" accommodation at trial.

[35] On this occasion, Crown Counsel, Ms. Flynn, confirmed that both forms of accommodation were forthcoming, but that the "live-streaming" request required Mr. Rutherford to provide additional medical evidence of the details of his visual impairment.

[36] On 14 March 2013, the matter was back before Justice Boivin, for a third pre-trial, in 112 Court, and Ms. Flynn confirmed that "live-streaming" of a "real-time" transcription of the proceedings was available for Mr. Rutherford through the Ministry's accommodation office, but that there were further details to be ironed out as to what specific technical requirements would be sufficient to meet Mr. Rutherford's needs.

[37] On this date, Justice Boivin seized himself with the case management of the accommodation issue, and it was agreed that the matter was to be adjourned to 20 March, to finalize the accommodation arrangements, and set a date for the new section 11(b) application.

[38] Unfortunately, on 20 March, Justice Boivin was sick, and he was unable to preside, so the matter was further adjourned to 4 April 2013 before Justice Boivin.

[39] On 4 April, the matter was back before Justice Boivin, with Ms. Flynn for the Crown, and the matter was further adjourned to 18 April before Justice Boivin, for two reasons, to finalize the dates for which the live-streaming transcription services could be provided, and to permit Mr. Rutherford more time to obtain the transcripts of his various court appearances, as part of the 11(b) application record.

[40] On 29 April, the pre-trial continued before Justice Boivin, and the date of 29 August 2013 was set for the 11(b) application.

[41] As a result of this case-management Mr. Rutherford was provided with a certified court reporter, Arlene Finnegan, to provide a "real time live stream" of the court proceedings to Mr. Rutherford's computer for the duration of the trial.

[42] On 29 August 2013, the new 11(b) application commenced before this court.

[43] It is not in dispute that during these second trial proceedings, both the 11(b) application and the trial proper, Mr. Rutherford was provided with the accommodation of electronic disclosure and live-streaming of the proceedings themselves, suitable to Mr. Rutherford's needs.

[44] In this new trial proceeding Mr. Rutherford brought two applications, the first, undated, and a second, dated 8 August 2013, seeking relief, including the exclusion of evidence and a stay of these proceedings on the basis that his rights have been breached, contrary to various Charter-protected rights.

[45] In the first, undated application, Mr. Rutherford alleged breaches under sections 10(b) (to retain and instruct counsel without delay, and to be informed of that right), 15 (disability accommodation) & 9 (over-holding in custody).

[46] In the second, dated 8 August 2013, Mr. Rutherford alleged breach of section 11(b) (to be tried within a reasonable time).

[47] The Crown opposed these applications, and, in addition, opposed the way these very different Charter claims were placed before the court, by the applicant, acting on his own behalf.

[48] On 24 March 2014, the first day scheduled for trial, the respondent crown raised several procedural concerns, including the lack of sufficiency of the enumeration of the heads of Charter breach and the particulars of the allegations of Charter breach, and the appropriateness of the merging of apparently very distinct Charter claims in a blended trial and voir dire hearing.

[49] On that day, after extensive submissions, this court concluded that the application involved allegations of three distinct categories of Charter breach, logically, in terms of time frames, and with respect to existing court practice:

(1) 10(b);

(2) 11(b); and

(3) 9 & 15.

[50] It was agreed and this court ruled that we would proceed to hear the 11(b) application first. It was also agreed and I ruled that, if the 11(b) application was unsuccessful, I would hear the 10(b) application and the trial evidence in a blended hearing, and in the event that the 10(b) application failed, and there was sufficient Crown evidence to make a finding of guilt on the Crown's trial allegations, the court would then entertain the defence section 9 & 15 applications in a third and distinct hearing.

[51] The section 11(b) application was heard on 29 August and 12 & 13 September 2013.

[52] In a judgment released on 14 November 2013, the 11(b) application was dismissed.

[53] The blended trial and 10(b) application was then heard by this court over seven days: 24, 25 & 26 March and 27 & 28 August 2014 & 3 December and 15 January 2015, again, with Mr. Rutherford representing himself.

[54] At the conclusion of the evidence, the trial was adjourned for written submissions. I received Mr. Rutherford's written submissions on 27 April 2015 and the Crown's submissions on 8 May 2015.

[55] In his written argument, Mr. Rutherford, for the first time, raised a new allegation of Charter non-compliance with section 8, in the police investigation and his arrest, with respect to the "reasonable and probable grounds" ("RPG") of the initial arrest, and the grounds for the breath demand, as required by section 254(3) of the Criminal Code, when no field sobriety tests or approved screening device were administered.

[56] In written reply argument on the section 8 Charter breach allegation, the Crown relied on the decision of the Ontario Court of Appeal in R. v. Charette, 2009 ONCA 310, at para. 46, and asked that I not consider the application to exclude the test results pursuant to section 8, as no initial claim for exclusion on this basis was placed before the court at the commencement of the trial.

[57] This court decided that, despite Mr. Rutherford's failure to comply with the clear procedural guidance from our Court of Appeal in Charette, and other cases, the court would hear the section 8 argument as advanced by the defendant as well as the 10(b) claim.

[58] This court concluded that since Mr. Rutherford was representing himself, and he did ask questions of Constable Henry Dyck regarding Constable Dyck's factual grounds for his decision to arrest and to make a breath demand and Mr. Rutherford, himself had also testified regarding these issues during his trial, he did advert to these dual allegations.

[59] In my view, the Crown in this proceeding did have some actual notice, albeit, not written, of Mr. Rutherford's concerns, and his allegations that his section 8 Charter-protections had been breached.

[60] In the result, the trial proceeded, the section 8 argument was presented by Mr. Rutherford, and on 25 May 2015 I dismissed count 1, the allegation of Impaired Driving but made a finding of guilt with respect to count 2, the allegation of operating a motor vehicle with a blood alcohol content in excess of the legal limit, "Over 80".

[61] I will now turn to the current application.

Summary of Facts – Section 15 Application

Shane Rutherford's Disabilities

[62] In this section 15 application, the Crown did not put in issue Mr. Rutherford's inter-related disabilities which I will now summarize.

Attention Deficit Hyperactivity Disorder ("ADHD")

[63] At two and a half years old, Rutherford was diagnosed with hyper kinesis, the precursor to hyper activity. He had and continues to have a very short attention span. As a teenager, doctors subsequently revised the original diagnosis and determined that Mr. Rutherford was suffering from ADHD. Because of his ADHD, Mr. Rutherford has difficulty following routines and sitting still. Certain environments, such as a classroom, a courtroom, and a police station, are disabling for him. He becomes argumentative and aggressive. To aggravate matters, when Shane was arrested on 26 January 2010, the police confiscated his medication upon his arrest and detention, believing it to be ecstasy, and preventing Rutherford from effectively treating himself while in custody.

Chemical Burns

[64] When Mr. Rutherford was 9 years old he was experimenting with science and created some homemade fireworks. After mixing chemicals, Mr. Rutherford took the lid off, and it exploded. He suffered 3rd degree burns to his chest, arm and neck. He also suffered 2nd and 3rd degree burns to his arms and hands. Mr. Rutherford has had to have many reconstructive surgeries since and required significant recuperation time. Due to the significant scarring on his body Mr. Rutherford was extremely uncomfortable being strip-searched upon his arrests on 26 January 2010, 25 January 2013, and 14 February 2013.

[65] In addition, upon his arrest for failure to appear on 14 February 2013, Mr. Rutherford's glasses were confiscated and were not provided for him until he was in the cells at Old City Hall.

[66] Mr. Rutherford deposed and testified that, due to his scarring, and the confiscation of his glasses his loss of dignity was aggravated upon his arrests for failure to appear on the latter two occasions.

Alternating Exotropia

[67] At the age of 13, Mr. Rutherford was diagnosed with alternating exotropia (also called intermittent exotropia), a visual impairment that causes double vision, issues with balance, and hand-eye coordination problems. This condition also causes dizziness and nausea. Mr. Rutherford finds it extremely difficult to focus for longer periods of time and impossible to review any materials unless they are produced in a very large type font. It is also impossible for him to read any cursive (e.g. handwritten) notes. Mr. Rutherford also suffers from strabismus and compound myopic astigmatism in both eyes. To deal with his disabilities, Mr. Rutherford often requires documents with increased contrast such as white type on black paper. Mr. Rutherford's visual impairment made it difficult for him to produce his license and insurance documents on 16 January 2010, upon his first arrest. Both the arresting officers noted him "fumbling" through his documents.

[68] Most recently, in 2010, Mr. Rutherford had reconstructive surgery on his neck area to assist him to properly swallow and breathe.

[69] From the inception of these proceedings, in January of 2010, Mr. Rutherford has been subject to the required procedural obligations to attend court, obtain disclosure and defend himself in the form of the Ontario Court of Justice at Old City Hall in downtown Toronto.

[70] In paragraphs 18 through 41, above, I have summarised Mr. Rutherford's efforts to obtain reasonable accommodation as a self-represented litigant during his second trial proceedings, commencing with his appearance before this court on 25 June 2012.

[71] In addition, the evidence I considered on the application included the Application Record, the Compendium of Transcripts and Documents, Exhibit 2, Mr. Rutherford's affidavits sworn 18 January and 14 April 2016, and the in-court testimony from two witnesses:

(1) Mr. Shane Rutherford; and

(2) Mr. John Rae

[72] Mr. Rutherford testified before me on 22 April and 4 May 2016.

[73] Mr. Rae testified before me on 17 November 2016.

[74] In an oral ruling, on 17 November 2016, I concluded that Mr. Rae was qualified to give opinion evidence, subject to the issues of weight, relevance and probative value for the specific facts of this case.

[75] Mr. Rae's curriculum vitae and his Report were filed as exhibits 6(a) and 6(b) in the Section 15 application hearing.

[76] In addition, filed in support of the Section 15 application, as Exhibit 3(e) were a series of documents:

(1) Letter from Oxford Brookes University – Student Services, dated 2 September 2009;

(2) Letter from Toronto Eye Care, dated 29 March 2010;

(3) Letter from Vision Institute, dated 3 May 2010;

(4) Psycho-educational Assessment dated 3 September 2002, co-authored by Jane Rothschild, M. Ed., a Psycho-educational Consultant. And Pearl Levey, PhD. a Learning Disability Specialist.

[77] After my ruling on 17 November, the Crown chose not to cross-examine Mr. Rae on his report, and chose to simply proceed to argument on all the evidence, including Mr. Rae's filed report, subject to submissions to the court as to the weight and probative value of the report.

Mr. Rutherford's Section 15 Submission

Position of the Applicant:

[78] The Applicant's position, as set out in paragraph 4 of his final revised Factum is as follows:

The Applicant is a person with disabilities, including strabismus and alternating exotropia (also called intermittent exotropia), a visual impairment. The Applicant also suffers from a neurodevelopmental disorder, namely Attention Deficit Hyperactivity Disorder. Finally, as a result of a chemical fire when the Applicant was a child, the Applicant has significant scarring over his body;

In the instant case, the Prosecution and the Accommodations Coordinator required the Applicant to "prove" his disability by requiring that he provide highly personal and private medical information to the Prosecution, his adversary in a criminal proceeding;

Instead, accommodation for the Applicant should have been arranged through the Accessibility Coordinator in accordance with the Ministry of the Attorney General's policy on Accessibility of Persons with Disabilities and not through the Prosecution;

The Prosecution also demanded that the Applicant consult with medical professionals and prove "proof" of his disability at his own cost;

Adding insult to injury, the Prosecution then used the private medical information in its reply submissions to the Applicant's s. 11(b) Charter Application, making the Applicant's private medical information a matter of public record;

While the Accessibility Coordinator subsequently became aware of the Applicant's need for accommodation, the Coordinator failed to advise the judicial officials about the Applicant's need for accommodation in the courtroom (by judicial support staff);

The Applicant was provided with the standard court reminder slips despite his visual impairment and he had great difficulty deciphering the date of his next appearance;

As a result the Applicant failed to appear on two occasions. On February 2013, he was arrested and strip-searched because of his inability to read the standard court reminder slips. He was also charged with one count of Failure to Appear;

The charge of Failure to Appear occurred as a direct result of the Accessibility Coordinator's failure to accommodate the Applicant as a person with a visual impairment;

Being subjected to an unnecessary strip search adversely affected the Applicant's dignity especially in the light of his permanent chemical burn scars;

The impugned conduct and failures constitute differential treatment on an enumerated ground under s. 15 of the Charter;

The differential treatment imposed a burden in a manner that perpetuates the stereotypical or historical views that persons with disabilities are not equally deserving of concern, respect and human dignity.

The appropriate comparator group in this case is that of "able-bodied" defendants.

Summary of Mr. Rutherford's Section 15 Submissions

[79] I have arranged these points in a different manner than paragraph 4, of Mr. Rutherford's Factum, to write these reasons.

[80] In his attempt to comply with these required procedural obligations, Mr. Rutherford asserts that the conduct of various state actors, fell short of constitutional sufficiency in four separate but interconnected ways, with respect to "reasonable accommodation":

(1) Crown's Office

(a) Alternative-format disclosure: large print and electronic disclosure and "live-streaming" technology for Mr. Rutherford at his trial, was not provided in a timely manner;

(b) A Crown attorney was involved in, and asked Mr. Rutherford to provide documentation of his disability in support of his request to have his trial "live streamed" in the courtroom, to enable him to represent himself.

(2) Court Clerks

The court clerks should have provided Mr. Rutherford with alternative-format court reminder slips that he could read, rather than the standard court reminder slips, which were not sufficient to inform Mr. Rutherford of his next court appearance, and resulted in two instances in 2013 in which Mr. Rutherford was arrested and strip searched.

(3) Accessibility Coordinator

The Accessibility Coordinator worked in concert with the Crown attorney to arrange for live-streaming of Mr. Rutherford's trial, and in the process constantly deferred to and required the Crown's instructions and approval, before accommodation was provided.

(4) Police Officers

Police officers arrested Mr. Rutherford pursuant to a bench warrant on 25 January and 14 February 2013 and strip searched him upon arrest. On 25 January Mr. Rutherford spent the night in jail. Mr. Rutherford asserts that his physical scars from the chemical burns he suffered as a child aggravated his personal discomfort in complying with the police arrest procedures.

Legal Issues

[81] In this application Mr. Rutherford, is asserting that because of his disabilities, the standard practices of the Ministry of the Attorney General, and they way those practices were applied to him in this prosecution resulted in substantially differential treatment, prohibited by section 15.

[82] Mr. Rutherford is further asserting that, based on the differential treatment, this court should conclude that the appropriate remedy in this case would be to stay the proceedings.

[83] His Factum emphasizes that the infringement of his Section 15 Charter-protected rights includes the timeliness and independence of the provision of disability accommodation, as well as the lack of disability accommodation with respect to the written format of the reminder slips he was handed in court.

[84] It is part of the argument advanced in the Factum that these factors "caused" him to fail to appear on 24 January and 1 February, thereby necessitation two "unnecessary" strip searches.

[85] The respondent Crown submits that Mr. Rutherford has not met his burden in establishing a section 15 violation.

[86] The Crown also raises a preliminary objection to Mr. Rutherford's characterization of the scope of his proposed Section 15 analysis.

[87] While the Crown concedes that the Toronto police conduct is subject to section 15 Charter scrutiny, the Crown asserts that the case law in Eldridge (see Legal Framework, below) cannot be construed as extending to the actions of the other state actors enumerated in Mr. Rutherford's application, namely the Crown Attorney's and staff, the Court Clerks and the Accessibility Coordinator.

[88] In the alternative, the Crown argues that the conduct of all the enumerated state actors is, in fact, Charter section 15 compliant.

Legal Framework

The Canadian Charter of Rights and Freedoms

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

The Accessibility for Ontarians with Disabilities Act ("AOD Act")

4. This Act applies to every person or organization in the public and private sectors of the Province of Ontario, including the Legislative Assembly of Ontario.

5. This Act binds the Crown.

Integrated Accessibility Standards under the AOD Act (O. Reg. 191/11)

Accessible formats and communication supports

12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a) in a timely manner that takes into account the person's accessibility needs due to disability; and

(b) at a cost that is no more than the regular cost charged to other persons.

(2) The obligated organization shall consult with the person making the request in determining the suitability of an accessible format or communication support.

(3) Every obligated organization shall notify the public about the availability of accessible formats and communication supports. O. Reg. 191/11, s. 12 (3).

(4) Every obligated organization that is required to provide accessible formats or accessible formats and communication supports by section 3, 4, 11, 13, 19, 26, 28, 34, 37, 44 or 64 shall meet the requirements of subsections (1) and (2) but shall do so in accordance with the schedule set out in the referenced section and shall do so only to the extent that the requirements in subsections (1) and (2) are applicable to the requirements set out in the referenced section.

(5) Obligated organizations shall meet the requirements under this section in accordance with the following schedule:

1. For the Government of Ontario and the Legislative Assembly, January 1, 2014.

(Emphasis added)

Case Law

[89] The applicant in this type of application must prove the factual underpinnings of the claim that there has been a breach of Section 15 Charter-protected rights on a balance of probabilities.

[90] In the case of Eldridge v. British Columbia (Attorney General), the appellants were born deaf and their preferred means of communication was sign language. They contended that the absence of interpreters impaired their ability to communicate with their doctors and other health care providers, and thus increases the risk of misdiagnosis and ineffective treatment.

[91] They unsuccessfully sought a declaration in the Supreme Court of British Columbia that the failure to provide sign language interpreters as an insured benefit under the Medical Services Plan violates the section 15(1) of the Canadian Charter of Rights and Freedoms. A majority of the Court of Appeal in British Columbia dismissed an appeal from this judgment. One part of the constitutional argument before the Supreme Court of Canada was whether the decision by particular "entities", hospitals and the Medical Services Commission, not to provide sign language interpreters for the deaf as part of the publicly funded scheme for the provision of medical care breached section 15.

[92] At paragraphs 20 and 21, of the Supreme Court of Canada judgment, Justice Gerald La Forest states:

20 Section 32(1)(b) of the Charter reads as follows:

32. (1) This Charter applies

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

There is no question, of course, that the Charter applies to provincial legislation; see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. There are two ways, however, in which it can do so. First, legislation may be found to be unconstitutional on its face because it violates a Charter right and is not saved by s. 1. In such cases, the legislation will be invalid and the Court compelled to declare it of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. Secondly, the Charter may be infringed, not by the legislation itself, but by the actions of a delegated decision-maker in applying it. In such cases, the legislation remains valid, but a remedy for the unconstitutional action may be sought pursuant to s. 24(1) of the Charter.

21 The s. 32 jurisprudence of this Court has for the most part focused on the first type of Charter violation. There is no doubt, however, that the Charter also applies to action taken under statutory authority. The rationale for this rule flows inexorably from the logical structure of s. 32. As Professor Hogg explains in his Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)), vol. 1, at pp. 34-8.3 and 34-9:

Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.

The sentiment of Lord Atkin in speaking of a constitutional prohibition addressed solely at the legislative branch is also apposite: "The Constitution", he wrote, "is not to be mocked by substituting executive for legislative interference with freedom"; see James v. Cowan, [1932] A.C. 542 (P.C. Australia), at p. 558.

Analysis

The Scope of Section 15 Charter Scrutiny under Eldridge

[93] In my view, the reasoning in Eldridge does apply to the conduct of the Crown Attorney's, their staff, the Court Clerks and the Accessibility Coordinator for the same reasons that the conduct of police officers are subject to Charter scrutiny.

[94] These individuals are exercising their authority under the relevant provincial legislation when they perform their duties.

[95] In this case, they are subject to the Attorney General Act, the Accessibility of Persons with Disabilities Act, and the Criminal Code, as well as the regulations thereto.

[96] In my view, they must exercise their statutory duties, and their discretion in accordance with the law and the regulations and policies that have been developed in the Ministry to implement the law.

[97] As such, in my view, they must be subject to Charter scrutiny, and I so find on the facts of this case.

The Impugned Conduct

The Crown

[98] At the outset of the second trial proceeding, Mr. Rutherford represented himself, and was able to participate with the accommodation of electronic disclosure and "real-time" live-streaming transcription directly available to him by a court reporter sitting at counsel table alongside Mr. Rutherford.

[99] Mr. Rutherford asserts in this application three distinct shortcomings in the Crown's conduct with respect to the way his accommodation was provided:

(1) The eventual accommodation that occurred for the second trial was not provided in a timely fashion;

(2) The Crown's office demanded medical documentation to be provided directly to the Crown, to initiate Mr. Rutherford's accommodation request;

(3) The Crown, in effect, supervised the Accessibility Coordinator in the process of providing the accommodation.

The Timeliness of the Provision of the Accommodation

[100] The transcript evidence in this application confirms that Mr. Rutherford, as a self-represented litigant initially requested alternative format disclosure in his second appearance before the court at the intake procedures in 111 Court, for his second trial, on 28 June 2012.

[101] The evidence would also suggest that this form of disclosure was in place by the time that Justice Boivin provided the trial date for the matter on 29 April 2013, some 10 months after the initial request was made.

[102] The record of the initial judicial pre-trial in 112 Court on 5 December 2012, in preparation for Mr. Rutherford's re-trial in this court also discloses that Mr. Rutherford made his accommodation request on that date for the "live-streaming" of the proceedings during his second trial.

[103] The evidence would also confirm that when the second trial began on 29 August 2013, a period of nine months after that request was made, the "live-streaming" suitable to assist Mr. Rutherford in the conduct of the trial as a self-represented litigant, was in place.

[104] In my view, in this case, the time periods that elapsed were reflective of several variables, not just the two accommodation issues.

[105] These variables included:

(1) The time that Mr. Rutherford, needed to obtain transcripts of his interim appearances, as part of the 11(b) application record;

(2) The fashioning of a "live-streaming" procedure suitable for Mr. Rutherford's specific needs;

(3) The availability of new trial dates, following the vacating of the dates of 14 March (11(b) application) and 1 & 2 May (trial) on 1 February 2013

[106] The language of Section 12(1)(a) of Ontario Regulation 191/11, promulgated under the AOD Act, states:

12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a) in a timely manner that takes into account the person's accessibility needs due to disability;

[107] In addition, Section 12(5) of Ontario Regulation 191/11 provides:

(5) Obligated organizations shall meet the requirements under this section in accordance with the following schedule:

1. For the Government of Ontario and the Legislative Assembly, January 1, 2014.

[108] As set out above, Mr. Rutherford's testimony is that he first raised the issue of alternative form disclosure and disability accommodation on his first appearance in this court on 11 March 2010.

[109] However, he also deposes that the issue was no longer a concern, when Counsel Brian Doody was retained to conduct the matter during his first trial.

[110] The next relevant date is 25 June 2012, when he attended court for his first appearance on his re-trial.

[111] On that date, Mr. Rutherford deposes in his affidavit dated 18 January 2016 that he made his first appearance on the re-trial and again requested alternative format disclosure, unspecified, to permit him to represent himself in these proceedings.

[112] The endorsements on the information and the transcripts disclose that after Mr. Rutherford appeared six further times in 111 Court, between 19 July and 8 November 2012, a judicial pre-trial was set for 5 December 2012.

[113] On that occasion, the Crown was represented by Counsel Eva Flynn, who by that date had seized herself with the matter.

[114] In this hearing, the transcript discloses that Mr. Rutherford indicated that he was seeking, in addition to "large-print" written disclosure, electronic disclosure for use in his computer and "live-streaming" of the proceedings into his computer, during the trial itself.

[115] In this hearing a trial date was set for the 1st and 2nd of May, and a separate 11(b) delay application for 14 March 2013, with a further date of 24 January for the matter to be spoken to, to confirm that the 11(b) application had been perfected, and that accommodation during the application and trial had been finalized.

[116] On 24 January Mr. Rutherford did not appear, was re-arrested on a bench warrant, placed before the court, granted bail, remanded, and then did not attend a second time, on his remand date, 1 February 2013, at which time a second bench warrant was issued and the initial trial dates vacated.

[117] As recounted above, in my initial summary, 29 April 2013 the date of 29 August 2013 was set for the 11(b) application, at which time the disability accommodation was provided.

[118] Let's look at these time periods:

(1) It took from Mr. Rutherford's first appearance for his re-trial, 25 June 2012, to 29 April 2013, for the disability accommodation to be arranged, a period of ten months;

(2) It took another four months for the trial to commence, on 29 August 2013, a total period of fourteen months;

[119] In my view, the language of Regulation 191/11, 12(1)(a) and the facts of this case must be considered to evaluate this submission by Mr. Rutherford.

[120] This consideration is somewhat hampered, in my view, by the lack of jurisprudence that is available concerning the AOD Act and regulation 191/11.

[121] The Ministry of the Attorney General is clearly an "obligated organization" under Section 12.

[122] "Timeliness" is an enumerated consideration in the regulation in Section 12.

[123] Section 12(5) establishes a schedule that establishes a guideline of putting the accommodation in place by 1 January 2014.

[124] I have concluded that the total time for the commencement of trial of fourteen months were not unreasonable, given the complexity of the case.

[125] In my view these time frames respect the language of Ontario Regulation 191/11 and the intent and purpose of the AOD Act.

[126] This, I find that Mr. Rutherford's initial argument on the timeliness of the disability accommodation in this case cannot be sustained.

The Argument that the Crown's involvement in the provision of the disability accommodation and the requirement that Mr. Rutherford "prove" his disability through medical documentation resulted in a Section 15 Breach

[127] This submission also requires the consideration of relationship between the Crown and Accessibility Coordinator.

[128] It contains within a few distinct points:

(1) By the approach taken in this case, Mr. Rutherford, to be accommodated, was required to "document" his disability.

(2) In this process, Mr. Rutherford was required to disclose this documentation to his court adversary, the Crown attorney who was case managing the matter before trial, and ultimately, prosecuting.

(3) The Accessibility Coordinator at Old City Hall was only willing to engage with Mr. Rutherford through the Crown attorney, as an intermediary.

The Requirement that Mr. Rutherford provide Medical Documentation

[129] In my view, the first point is not offensive to the intent and purpose of the AOD Act.

[130] In my view, it was necessary to document the disability, so that Court Services could understand the disability, and provide in-court accommodation suitable for Mr. Rutherford's needs as a self-represented litigant.

The Requirement that Mr. Rutherford provide this Medical Information to his adversary, the prosecutor

[131] I agree with this submission to the extent it reveals the two distinct roles the Ministry of the Attorney General has in Ontario:

(1) Prosecutor;

(2) Court Services Management.

[132] When Mr. Rutherford raised his issues of disability accommodation in his second trial, the Crown prosecutor was an active participant in the accommodation process.

[133] This is unlike another institution Mr. Rutherford has experience with, and testified about, the University of Toronto, where, once the AOD Act was passed in approximately 2005, there were immediate steps by the University to set up an independent process, well removed from the faculty or professors, to arrange accommodation for Mr. Rutherford so that he could study and complete his degree.

[134] In his Report, Exhibit 6, Mr. Rae, discusses the implementation of the AOD Act, after it was passed in 2005.

[135] In his report, Mr. Rae refers to the establishment by the Ministry of the Attorney General of Accessibility Coordinators, in his words "positioned with the Crown's offices at the courthouses".

[136] In his report, Mr. Rae is critical of this practice, as well as the specific circumstances of Mr. Rutherford's situation, that I have documented above.

[137] He is critical of the Crown's office performing the "gatekeeper" function of requiring Mr. Rutherford to, as he described it from his interview with Mr. Rutherford, "proving his disability to his adversary."

[138] On this I agree with Mr. Rutherford, and his witness, Mr. Rae.

[139] However, Mr. Rae goes further in his Report, prepared for this application.

[140] On this point, Mr. Rae states:

Even more troubling is the fact that documentation that Mr. Rutherford provided to the Crown to obtain accommodation for his disabilities was then used by the Crown to oppose a Charter application made by Mr. Rutherford. This inappropriate use of Mr. Rutherford's medical documentation highlights the problem of the Crown taking a gatekeeper function for access to accommodation.

[141] It is unfortunate that Mr. Rae was not crossed on this assertion. I also concede that in this discussion it is, perhaps, self-serving, and somewhat awkward for me to try to evaluate this submission.

[142] In my view, it would be better to have the Accessibility Coordinator fully independent from the Prosecutors.

[143] However, I can give no weight to this assertion in Mr. Rae's Report, regarding what I can conclude, on the record before me, about what actually happened in Mr. Rutherford's case.

[144] In this case, the Crown who case-managed accommodation request did not prosecute the matter when it came to trial.

[145] In fact, there was no abuse of the medical information, in my view, in the conduct of the trial.

[146] My reasons in the trial decision (See R. v. Rutherford, [2015] O.J. No. 2704) specifically addressed the issues of Mr. Rutherford's disability, in his favour, to the extent that could be done, in my view, regarding his comportment, and in deed, the Crown was not able to prove the count of impaired driving, at least partially because of the medical information put before the court by Mr. Rutherford in his defence case, suggested that his disability might cause a non-informed outside observer, to misconstrue his symptoms.

[147] From this vantage point, it is clear to me that the trial Crown did not use the medical information in the manner suggested.

Mr. Rutherford's Independent Access to the Accessibility Coordinator

[148] In Mr. Rutherford's affidavit, paragraph 60 confirms that the Ministry of Attorney General website provides a Toronto phone number 416 327-5622 to contact the appropriate accessibility coordinator at the courthouses in Ontario.

[149] In this proceeding I have no evidence as to whether Mr. Rutherford used that phone access in his case.

[150] However, the transcripts and Mr. Rutherford's affidavit reveal that during the process, the question of whether the Accessibility Coordinator in this building, Roman Haruk, would deal directly with Mr. Rutherford came up repeatedly, (See Mr. Rutherford's affidavit, sworn 14 April 2016, paragraph 46, and transcripts of Mr. Rutherford's court appearances on 14 March, 20 March, 4 April 2013.)

[151] As I have stated, this process was not ideal, but, in this instance, it resulted in the accommodation of "live-streaming" court reporting for Mr. Rutherford at his second trial when he represented himself.

[152] Thus, in this case I have concluded, on the evidence before me, that the existing structure for disability accommodation in this court house, as it worked in practice did not result in a Section 15 infringement, and I so find.

The Court Clerks Should Have Provided Mr. Rutherford with Alternative Format Reminder Slips That He could Read

[153] This is touched on in the Applicants Factum, at paragraph 4, as an example of "differential treatment".

[154] In his affidavit sworn 14 April 2016, Mr. Rutherford adverts to the facts surrounding his failure to attend court in paragraphs 16, 51 through 58, and 65.

[155] It is also discussed in some detail in Mr. Rutherford's examination-in-chief in his testimony before me on 22 April 2016, pages 9 through 16.

[156] During his examination-in-chief he is referred to Exhibit 2, his Compendium of Transcripts and Documents, Tab 28, the handwritten note, written in court by a court clerk and then handed to Mr. Rutherford by duty counsel on his release from custody on 25 January 2013, advising him of the return date of 1 February 2013, at 9:00 AM.

[157] For the purposes of this written ruling, I will describe the note, at Tab 28.

[158] The handwritten note has two distinct portions, in what appear to be different penmanship.

[159] The first entry is in larger block printing, reads:

Next court Date

1 Feb/13

111Crt 9 am

[160] Below that entry, there is another entry, partially in cursive printing, which reads:

12th

2 pm

Ms. Conly Soc Serv

[161] In examination in chief, on 22 April 2016, Mr. Rutherford discusses this note, which in his Compendium of Exhibits, Exhibit 2, at Tab 28, is photocopied on a letter-sized white sheet of paper.

[162] Mr. Rutherford describes this document as a "post it note" and I understand him to be saying it was a yellow piece of paper with an adhesive strip on the back.

[163] At page 10, line 8, through 19:

Q. Mr. Rutherford, you … at the time do you recall for the January 25th, or January 24th date did you receive an alternate reminder slip?

A. Uhmm …

Q. Or do you have … do you have a recollection of that?

A. Or for this … for the second date I received a post it note I believe.

Q. A post it note. Okay and I'm going to ask you just perhaps if you could look at a document and I need to a copy of the compendium of transcripts and documents. And specifically, the 28th tab under that.

[164] The discussion continues at page 13, line 24 through 33:

Q. Okay. And can you tell the court how that happened that you didn't appear on February first?

A. Well when I received this post it note, in court, as a reminder slip and I have to … to say this is a most unusual reminder slip I've ever received. Usually they're on a very large piece of paper and they're written in a very specific format. March the first, 2010. This was a series of numbers. But my focus at that particular point in time, due to the amount of stress that I was under was just to … and I felt it important to go. I took the post it note home. I advised my mother of the next court date as I understood it and we placed it on the refrigerator, which is right beside the coffee maker and it's something that we'll see every single morning. So when I failed to appear again I was …

[165] Further on in his examination-in-chief, at page 16, line 7, Mr. Rutherford explains that he misread this note, and believed his return date was 13 February 2013. The following question from counsel and his answers are reproduced here:

Q. Why did you not appear on February 1st?

A. My understanding based on that note and the date and what I reminded myself and what I communicated to …to my mother was the date. I was shocked and surprised that I had missed another date.

[166] There is some lack of clarity, regarding this note, as there are were no questions asked of Mr. Rutherford about the second entry on the note.

[167] Be that as it may, from this testimony, I am satisfied that Mr. Rutherford did not come to court on 1 February because of his miss-reading of the hand-written note he received in court on 24 January 2013.

[168] Mr. Rutherford's testimony, however, on 22 April 2016, lines 9 through 16, taken as a whole, does not advance the evidentiary findings regarding the standard reminder slips, that the application is seeking.

[169] Mr. Rutherford at page 13, lines 24 through 33 describes Tab 28 as the:

Most unusual reminder slip I've ever received

[170] Mr. Rutherford, in his testimony, contrasts Tab 28 with the clear and apparently, to him, quite readable format of the standard reminder slip he has received on his many other appearances in court:

Usually they're on a very large piece of paper and they're written in a very specific format. March the first, 2010 …

[171] In my view, this might be construed as an endorsement of the standard-form reminder slip Mr. Rutherford received on the rest of his court appearances in this matter.

[172] In my view, it cannot lend credence to the argument, in this case, that the court clerks should have provided Mr. Rutherford with an "alternative format" reminder slip.

[173] In my view, it certainly does not establish that the standard format reminder slip was not sufficient for Mr. Rutherford's purposes, or that he could not read them.

[174] Thus, in my view, there is no evidence before me that there was any causal link between the Accessibility Coordinator's advice and/or lack of advice to the court staff in the bail and set date context with regard to the "standard-form" reminder slips and Mr. Rutherford's missing his two court dates, on 24 January or 1 February 2013.

[175] On the record of this proceeding, I therefore find that the applicant has not established that the provision of the standard format reminder slips to him on his appearances in court in this proceeding infringed his section 15 Charter-protected rights to courtroom accommodation.

The Conduct of Police Officers in an "Unnecessary Strip Search" breached Mr. Rutherford's Section 15 Charter-protected Rights

[176] Mr. Rutherford deposes and testified that he was subject to two strip searches because of his failures to appear on 24 January and 1 February 2013.

[177] The underlying principles in the case law on strip searches is well established. (See R. v. Flintoff, and R. v. Golden 2001 SCC 83)

[178] The police must have "reasonable and probable grounds" to do so.

[179] Briefly, the common law of search incident to arrest, does permit strip searches. But the common law rules require that such searches are only carried out where the police establish reasonable and probable grounds for a strip search for discovering weapons or seizing evidence related to the offence for which the detainee was arrested. Furthermore, the factors set out ensure that when strip searches are carried out as an incident to arrest, they are conducted in a manner that does not interferes with the privacy and dignity of the person being searched.

[180] If this cannot be established by the Crown beyond a reasonable doubt, and if the Crown cannot do so, the search is "unreasonable" offends Section 8 of the Charter and is unnecessary.

[181] This is not, however, how the term "unnecessary" is being used in this application.

[182] The application does not question the "strip search" case law cited above.

[183] In the preamble to his factum, paragraph 4, the applicant is not suggesting that the police lacked the reasonable and probable grounds to strip search him.

[184] In the analysis presented in this application, the term "unnecessary" is directed at the lack of "alternative format" reminder slips.

[185] The reasoning is as follows:

(1) Mr. Rutherford could not decipher the standard reminder slips that are provided in the set-date courts and bail courts at Old City Hall, in which Mr. Rutherford was appearing.

(2) The Accessibility Coordinator should have instructed the clerks' office to prepare "alternative format" reminder slips for Mr. Rutherford.

(3) If Mr. Rutherford had been provided with "alternative format" reminder slips, he would have been able to decipher them.

(4) If he had been able to decipher them, he would not have failed to appear on two occasions, 24 January and 1 February 2013.

(5) If he had not failed to appear, he would not have been subject to arrest by the police.

(6) If he had not been arrested by the police there would have been no necessity to strip search him.

[186] Unfortunately for the applicant, the record in this proceeding does not reflect this interpretation.

[187] As set out above, Mr. Rutherford's testimony, and the evidence presented on this application does not establish that Mr. Rutherford failed to appear because of his inability to read the standard form reminder slips.

[188] In fact, his testimony suggested that he could decipher and did understand the standard form reminder slips, which were given to him during his other court appearances.

[189] His testimony was that he did not understand a hand-written reminder slip that he was given to him on 24 January 2013 that was on a "post it" note.

[190] In my view, the line of reasoning sought in this application, in the particular circumstances documented in this case is faulty, because the applicant has not established that the stand reminder slips issued in this court house were, for him, unreadable.

[191] From the perspective of section 15, the facts do not establish that an alternative format reminder slip was required in the circumstances of this case.

[192] Thus, in my view, the line of reasoning which the applicant is asking this court to adopt begins without a factual foundation.

[193] Therefore, in my view, it is not necessary or justifiable for the court, in this application, to attempt to evaluate Mr. Rutherford's very brief recounting of the searches, failing the establishment of a causal link of those searches to his section 15, Charter-protected interests.

[194] I further find, based upon my reasons above, that the factual portion of the section 15 application regarding the police conduct in searching Mr. Rutherford has not satisfied the court that his Section 15 Charter-protected interests have been infringed by his searches incident to his arrest, following his failures to attend court on 24 January and 1 February 2013.

Conclusion

[195] I am satisfied that this Section 15 Application is properly before this court, as part of Mr. Rutherford's criminal trial proceeding.

[196] I am also satisfied, by the authority of Eldridge v. British Columbia (Attorney General), that the conduct of the Crown Attorney's, their staff, the Court Clerks, the Accessibility Coordinator and the police officers who had reason to exercise their duties and authority under the relevant provincial and federal legislation in this case are subject to Section 15 Charter scrutiny.

[197] I am further satisfied that if the factual foundation of an infringement of Section 15 Charter-protected reasonable disability accommodation rights were proven in an application to this court, a stay of proceedings under 24(1) of the Charter would be a potential available remedy.

[198] However, on the allegations made and the evidence of impugned conduct adduced in this application, I am unable to conclude that such an infringement or infringements took place.

[199] In the result, this application, in its entirety, is dismissed.

Released: 3 April 2017

Signed: "Justice Paul H. Reinhardt"