COURT FILE NO.: 464/12 DATE: 2013-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

BRANDON DONNELLY Applicant

Counsel: J. Cameron & J. Strasberg, for the respondent B. Greenspan & J. Makepeace, for the applicant

HEARD: December 2 – 5 & 9, 2013

Nordheimer J.:

[1] The applicant, Brandon Donnelly, is charged with possession of child pornography for publication; making child pornography and possession of child pornography for exportation. He brings this application for a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms on the basis that his rights under ss. 7, 8, 9 and 10 of the Charter were violated including that he was denied a bail hearing for improper reasons and that he was subjected to gross mistreatment for the time period that he was held in custody.

[2] I intend to outline some basic facts regarding this matter to place this application into context. I will refer to further facts when I come to address the various grounds upon which the application for a stay is based.

[3] The applicant was twenty-six years old at the time of these events. He has suffered from obsessive compulsive disorder (“OCD”) since he was twelve. The applicant has been on medication for this disorder, namely Prozac, since that time. The applicant takes Prozac daily to assist in ameliorating the impacts of this disorder. The applicant varies the amount of Prozac that he takes depending on the severity of the symptoms of OCD that he is experiencing on any given day.

[4] The charges themselves arise out of the applicant’s employment with a company run by another person, Brian Way. That company made videos of different types. It is alleged that within the work done by this company was the production and distribution of child pornography. It is further alleged that the applicant participated in the production of this child pornography by editing raw footage into the finished product. Mr. Way is separately charged with various child pornography offences.

[5] In 2010, the Toronto police became aware of the alleged involvement of Mr. Way’s company through undercover work on the internet where they came into contact with Mr. Way. Mr. Way was known to the police because of past complaints regarding his alleged involvement in the distribution of other films that might constitute child pornography. Given the nature of the activities, the police contacted the United States Postal Inspection Service who also became involved in the investigation. As their investigation continued, the police undertook surveillance of the business address of the company. During that surveillance, the police observed the applicant attend at the company’s premises. The police thought that the applicant might have some connection to the company and its activities. As a consequence, the police investigated the applicant. At a later stage, they also put the applicant under surveillance.

[6] Eventually, the police decided to arrest Mr. Way on child pornography charges. They concluded, at that time, that they did not have sufficient grounds to arrest the applicant because they had insufficient evidence that the applicant actually worked for Mr. Way or his company. As a consequence, officers from the York Regional Police Service had been tasked by the Toronto Police investigators to attend at the home of the parents of the applicant in Aurora where the applicant lived. Those officers were instructed to wait for Mr. Way to be arrested and, upon his arrest, the York Regional Police officers were to knock on the front door of the Donnelly home. The York Regional Police officers were to determine if the applicant worked for Mr. Way’s company. If the applicant admitted working for Mr. Way’s company, the applicant was then also to be arrested.

[7] Mr. Way was, in fact, arrested on May 1, 2011 by Toronto Police officers. The Toronto Police also executed search warrants on the home of Mr. Way and on the company’s premises. While this was happening, there were two groups of York Regional Police officers waiting outside of the Donnelly family home. One group consisted of the detectives who were going to speak to the applicant.[^1] The other group consisted of uniformed officers (including the canine unit) who were present around the perimeter of the home because the police had learned that there were four firearms in the Donnelly residence. Consequently, there were concerns for officer safety.

[8] The York Regional Police officers received radio communication from the Toronto Police that Mr. Way had been arrested. The detectives then knocked on the door of the Donnelly home. One uniformed officer was with them. The applicant’s father answered the door. According to the applicant’s father, the officers suggested that they step inside which he allowed. The officers said that they wanted to speak with the applicant. The applicant’s father left the officers and went downstairs, where the applicant’s room was. The applicant’s father advised him that the police were there and wanted to speak to him.

[9] The applicant came upstairs. The officers asked the applicant if he was Brandon Donnelly and the applicant said that he was. The officers then asked the applicant if he worked for Brian Way. The applicant said that he did. The officers immediately arrested the applicant. The officers advised the applicant that he would be taken to a Toronto Police division where he would probably remain overnight. The applicant’s father told the officers about the applicant’s need for daily medication. The applicant’s father put a number of Prozac pills into a small container and gave it to the officers who indicated that the pills would accompany the applicant. The York Regional Police officers then handcuffed the applicant and walked him to a police vehicle. Uniformed York Regional Police officers then transported the applicant to 22 Division in Toronto. At 22 Division, the applicant was interviewed twice by Toronto Police detectives. Prior to these interviews, the applicant spoke with duty counsel.

[10] The applicant’s father contacted 22 Division and spoke with the detective in charge of the case. The applicant’s father says that he understood from his conversation with the detective that the applicant would be released on bail the next morning. The detective arranged for the applicant’s parents to speak with the applicant. They perceived the applicant to be afraid and upset. The applicant was held in 22 Division overnight.

[11] The next day, May 2, the applicant was taken to court. He was not provided with his medication that morning although the medication did accompany the applicant to court. Prior to being taken to court, however, the applicant, along with other prisoners including Mr. Way, was taken to 23 Division to be fingerprinted and photographed. After being transported to 23 Division, the applicant and the other prisoners were then taken to the 2201 Finch Avenue courthouse.

[12] According to the applicant, when they got to 23 Division, it took some period of time to process Mr. Way and then to process him. The applicant says that the other prisoners in the vehicle were talking about why it was taking so long. The applicant perceived that the other prisoners were suspicious about him and Mr. Way as a consequence of these delays. Also, upon leaving 23 Division, the applicant and Mr. Way were placed in a separate compartment of the vehicle away from the other prisoners. The applicant says that, at this time, he heard the other prisoners talking about him and Mr. Way including talking about their charges. The applicant concluded that the other prisoners had overheard the transport officers talking about their charges.

[13] The applicant got to the Finch Avenue courthouse. His father was present and he had arranged for counsel to be present for the applicant. At court, the prosecutor advised that bail for the applicant would be opposed. Specifically, the prosecutor said that there was a need to adjourn any bail application for three days “so that the police can execute warrants, can search computers and prevent the destruction of evidence in this matter”. Pursuant to s. 516(1) of the Criminal Code, a bail hearing cannot be adjourned for more than three clear days without the consent of the accused person. The applicant’s counsel did not oppose the adjournment, at least in part, because he did not have any disclosure or other information about the case and therefore he did not have any information upon which he could challenge the investigative needs that the prosecutor was asserting. There was also a practical aspect to counsel’s acquiescence to the adjournment and that is that, by the time the matter was addressed in court, it was late in the day and there was no available court to hear a contested bail application.

[14] On May 5, the applicant re-attended at court. On this day, the prosecutor initially indicated that she would again oppose any application for bail. However, after further discussions between the prosecutor and the applicant’s counsel, the prosecutor eventually consented to the applicant’s release. The applicant was, in fact, released towards the end of that day.

[15] Many of the applicant’s complaints regarding the manner in which he was treated between May 1 and May 5 involve the time that he was held in custody. The applicant recounts a number of events that occurred during that time. These events include the following:

(i) He was not given his medication either on May 2 or May 3;

(ii) He was verbally abused on a number of different occasions by various police officers, court officers and prison guards including implied threats and derogatory terms;

(iii) He was struck in the back of the head on one occasion by a prison guard;

(iv) He was intentionally tripped on one occasion by a court officer while in the cell area at the Finch Avenue courthouse;

(v) The nature of the charges that he faced was announced by prison guards to other inmates in the detention facility;

(vi) He was kept in a cell overnight at the detention facility dressed only in his boxer shorts with nothing to keep warm and no mattress to sleep on;

(vii) He was provided with minimal drink and food;

(viii) He was never provided with hygiene products and only at the very end of his stay was he permitted to have a shower.

[16] With that background, I now turn to the individual alleged Charter violations. I will address them in the same order that they appeared in the defence factum beginning with the s. 8 issue.

Section 8 issue

[17] The defence asserts that the conduct of the police in attending at the Donnelly home, entering that home and asking the applicant questions constituted a breach of the applicant’s s. 8 rights under the Charter because the conduct amounted to an unlawful search. In particular, the defence says that the prosecution cannot rely on the “invitation to knock” principle to justify the actions of the police because those actions infringed the reasonable expectation of privacy that the applicant had in his own home.

[18] The applicant places particular reliance on the decision of the Supreme Court of Canada in R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8. For example, the applicant relies on the following observation by Sopinka J. at para. 16:

Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any “waiver” of privacy rights that can be implied through the “invitation to knock” simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.

The defence similarly submits that R. v. Coté, 2011 SCC 46, [2011] 3 S.C.R. 215 is an analogous situation.

[19] I do not agree with the defence position and find their reliance on cases such as Evans and Coté to be misplaced. Both the decision in Evans and in Coté involved efforts by the police to obtain physical evidence. It was not a situation where the police attended at a home for the sole purpose of speaking with the occupant of the home as is the case here. Indeed, the decision in Evans makes that distinction clear, at para. 18, where Sopinka J. said:

As stated above, the implied licence to knock extends only to activities for the purpose of facilitating communication with the occupant. Anything beyond this “licensed purpose” is not authorized by the implied invitation. [emphasis added]

[20] The “invitation to knock” principle entitled the police to approach the Donnelly home for the purpose of communicating with the applicant. The police were entitled to knock on the door and ask to speak to the applicant. The police were entitled to enter the home, if permitted by the occupants of the home, to facilitate that communication. While there is some issue raised as to whether the police lawfully entered the home, I conclude that they did. The applicant’s father clearly allowed the officers into the home. He did not attempt to stop the officers from entering the home and he did not say “No”. While the applicant’s father now says that he only did so because he felt that he had no choice, the fact remains that he did have the choice and he exercised it in favour of allowing the police to enter. The applicant’s father is an accomplished businessman who runs his own company. There is no objective basis to conclude that, merely because of the presence of a number of police officers outside of his home, the applicant’s father lost his ability to make a conscious decision to allow the officers into his home as opposed to asking that they remain outside.

[21] I am aware that many ordinary citizens may not understand that they have the right to deny the police entry to their homes. Many ordinary citizens also naturally feel a desire to co-operate with, and assist, the police. People generally do not want to be uncooperative or confrontational when dealing with the police. People are also generally somewhat intimidated by police officers and consequently tend to be compliant with their requests. This reality was mentioned in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613 where Le Dain J. said, at p. 644:

Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand.

[22] I am sure that all of these factors were operating in the mind of the applicant’s father when he permitted the police officers to enter the home. That fact does not, however, change the legal consequence of the permission granted. The police did not mislead the applicant’s father. They told the applicant’s father that they were investigating Brian Way and that they wanted to talk to the applicant. The applicant’s father knew that his son worked for Mr. Way so it would be perfectly understandable to him why the police would want to talk to the applicant. The applicant’s father made a conscious decision to allow the officers into the home. The fact that the applicant’s father might, with hindsight, not have done so cannot change the situation as it unfolded at the time.

[23] I also reject any suggestion that the police tricked the applicant’s father into permitting them to have access to the house. The police told the applicant’s father why they were there and that they wanted to speak to the applicant. That was true. The police did not say that they were investigating whether the applicant was involved in the criminal activity that they believed Mr. Way was engaged in but they were not obliged to explain that to the applicant or his father. The fact is that the applicant’s father did not ask the police why they wanted to talk to the applicant nor did the applicant ask them. There was no non-disclosure of the purpose of the police attendance. The defence reliance on R. v. Nguyen, [2006] O.J. No. 4393 (S.C.J.) on this point is therefore also misplaced.

[24] The same result obtains with respect to the officers’ questioning of the applicant. The applicant did not have to answer the officers’ questions but he chose to do so. The applicant no doubt also felt some moral or civic compulsion to co-operate with the police but that again does not change the legal consequence of his decision. The applicant was asked two questions: one to confirm his identity and one to establish that he worked for Brian Way. As a result of his answers, he was arrested.

[25] As Sopinka J. noted in Evans, at para. 11:

As a result, not every form of examination conducted by the government will constitute a “search” for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a ‘search” within the meaning of s. 8.

[26] In my view, the actions of the police here did not amount to a search. The rights provided by s. 8 of the Charter were not therefore engaged. It follows that there could not have been any breach of those rights.

Section 10 issue

[27] The defence contends that, at the time that the police officers questioned the applicant, he was detained by them. It is not suggested that the applicant was physically detained but rather that he was psychologically detained. The nature of a psychological detention was set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 where McLachlin C.J.C. and Charron J. said, at para. 31:

The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand.

[28] I do not agree with the defence contention that, at the time that the police questioned him, the applicant was detained. The applicant was in his home. He would have been entirely within his rights to refuse to answer the officers’ questions. The applicant was also able to leave and return to his room downstairs. The fact is that the applicant could have simply said “I do not want to talk to you”, turned around and left.

[29] The situation here is much more akin to the one referred to in Grant where McLachlin C.J.C. and Charron J. said, at para. 37:

Another often-discussed situation is when police officers approach bystanders in the wake of an accident or crime, to determine if they witnessed the event and obtain information that may assist in their investigation. While many people may be happy to assist the police, the law is clear that, subject to specific provisions that may exceptionally govern, the citizen is free to walk away: R. v. Grafe (1987), 1987 CanLII 170 (ON CA), 36 C.C.C. (3d) 267 (Ont. C.A.). Given the existence of such a generally understood right in such circumstances, a reasonable person would not conclude that his or her right to choose whether to cooperate with them has been taken away. This conclusion holds true even if the person may feel compelled to cooperate with the police out of a sense of moral or civic duty.

[30] The applicant says that he “felt” that he had no choice but to answer the officers’ questions but the fact of the matter is that he did have a choice. The applicant made his choice and his choice was to answer the officers’ questions. The issue of detention is not determined by the subjective feelings of the person alleging the detention. Rather, the issue of detention is to be determined objectively – see both Grant and Therens. The question to be asked was expressed by McLachlin C.J.C. and Charron J. in Grant, at para. 31:

The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand.

[31] This is not a situation where the police stopped the applicant on the street or otherwise impeded his normal daily affairs. The officers entered the Donnelly home with the agreement of the applicant’s father, as I have already found. They asked the applicant two questions. Nothing was done by the police that prevented the applicant from asking the officers why they wanted to speak to him. Nothing prevented the applicant from saying that he wanted to seek legal advice before speaking with the officers. And, as I have already said, nothing prevented the applicant from simply saying that he did not wish to speak with the officers and returning to his room in the basement. The applicant was, at the time, twenty-six years old. He is educated. Indeed, he graduated from college with honours. He has been employed since college including starting his own business. There is nothing in the particular characteristics of the applicant, save for his OCD, that would suggest that he was especially vulnerable or susceptible to police direction. I have not heard any evidence that suggested that his OCD made the applicant any more or less vulnerable in such a situation. I note, in addition, that the applicant’s father was present at the time.

[32] I do not accept that the applicant was detained at this point and it therefore follows that his rights under s. 10(b) were not triggered.[^2] As Rosenberg J.A. recently noted in R. v. MacMillan (2013), 2013 ONCA 109, 114 O.R. (3d) 506 (C.A.) at para. 36:

As is made clear in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 23, even where a person is under investigation for criminal activity and is asked questions, the person is not necessarily detained. In the absence of a legal obligation to comply, detention arises where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

[33] However, even if my analysis on this point is in error, and the applicant’s s. 10 rights were breached by the conduct of the police, the remedy that would flow from that breach would be the exclusion of the answer that the applicant gave to the police, that is, that he worked for Mr. Way. The violation of the applicant’s rights in this scenario would not provide a foundation for an order staying the proceedings.

Section 9 issue

[34] The defence submits that the applicant’s arrest was arbitrary because the police did not have reasonable and probable grounds for an arrest. Again, I do not agree. The police knew, prior to May 1, that there was some connection between the applicant, Mr. Way and the company that Mr. Way operated. The police had reasonable and probable grounds to believe that Mr. Way was in the business of producing and distributing child pornography. Initially, the police had a reasonable suspicion that the applicant might be involved in the company and its business from his appearance at the company’s offices. Once the applicant confirmed that he worked for Mr. Way, the police then had reasonable and probable grounds to believe that the applicant was involved in the child pornography enterprise. The police did not have to know the precise role that the applicant performed. For the purposes of forming reasonable and probable grounds, it was sufficient that the police then knew that the applicant was involved in Mr. Way’s business – part of which was the production and/or distribution of child pornography. Whether the applicant edited the films, or filled orders or stocked the shelves, he could still be a party to the criminal activity. The police were therefore within their lawful authority to arrest the applicant without a warrant pursuant to s. 495 of the Criminal Code. I should add that there was no requirement for the police to obtain a Feeney warrant for the arrest of the applicant given that the police were already lawfully inside the Donnelly home when the arrest occurred.

[35] The defence also submits that the applicant’s incarceration between May 2 and May 5 amounted to an arbitrary detention in violation of his s. 9 rights. The defence says that that arbitrary detention arose from the manner in which the prosecution arranged to keep the applicant in custody. Specifically, the defence contends that the prosecution achieved this result by seeking an adjournment of the applicant’s bail hearing on a premise that was entirely false. In that regard, the defence relies on the following observation, as to the application of s. 516(1) of the Criminal Code, found in Trotter, Gary T., The Law of Bail in Canada, looseleaf ed., Carswell, at p. 5-21:

While there is no guidance to be found in the provision itself, to obtain an adjournment of any length of time, it seems reasonable that the prosecutor must offer some legitimate reason for attempting to pre-empt the accused’s right to secure release on bail. An adjournment on behalf of the prosecutor need not be granted merely because it is requested. [emphasis added]

[36] In this case, the prosecutor was told by a detective that a delay in any possible release of the applicant was required in order to ensure that evidence was not destroyed. This concern arose from the fact that the main evidence in this case was believed to be contained on the computer system of Mr. Way’s company and that it might be possible for persons associated with that company to remotely access and erase such evidence from the computer system.

[37] On the surface, the police had a legitimate concern in this regard. Computer systems, smart phones and like devices are all capable of being accessed remotely and, if one can access such devices remotely, the information on them can be altered or erased remotely. Two factors affect the legitimacy of that concern when it comes to the applicant’s position, however.

[38] One is that, by the time of the applicant’s appearance in court on May 2, the police already had control of the company’s computer systems. According to the evidence, the police had already disconnected those computer systems from the internet. Without that connection, there was no longer any prospect of the computers being remotely accessed. Therefore, the real concern that the police originally had, no longer existed.

[39] The other factor is that the police did not make any effort, after they arrested the applicant, to determine if the applicant had any computers in his home and, if he did, whether any of those computers was connected to the internet. They also did not make any effort to determine whether the applicant in fact had remote access to the computer system of Mr. Way’s company. The fact is that the actions of the police, or their inaction, undermine their contention that they had a reasonable concern, if the applicant was released, that he would destroy evidence.

[40] I am cognizant of the fact that the applicant’s counsel (not his current counsel) did not object to the three day adjournment. That fact is not, however, fatal to any contention that the adjournment amounted to a violation of the applicant’s s. 9 rights. I agree with counsel for the applicant that adjournment requests such as this have to be based on a high level of trust and good faith among prosecutors and defence counsel. Defence counsel are entitled to take at face value information relayed by a prosecutor as justifying the need for an adjournment. At this early stage, the defence has virtually no information about the case. All of that information rests with the police and, to the degree that they have passed it along, with the prosecution. This information imbalance leaves defence counsel generally ill-equipped to challenge the reasons offered by the prosecutor for an adjournment.

[41] In addition, from an entirely practical point of view, our system requires that adjournment requests of this type be handled expeditiously. First appearances cannot routinely turn into contested hearings or the system will collapse. This is another reason why there has to be full, fair and frank disclosure of the true state of affairs when an adjournment is requested.

[42] In asking for the adjournment, the prosecutor gave her reasons as follows:

…so that the police can continue their investigation and can execute warrants, can search computers, and prevent the destruction of evidence in this matter.

[43] Counsel for the applicant accepted that statement as accurate and he was entitled to do so. In light of that assertion, counsel for the applicant determined that any opposition to the adjournment request was unlikely to succeed so he took the path of least resistance and agreed to it. Given the circumstances, I believe that counsel’s analysis of the situation was a correct one.

[44] However, it turned out that the reasons given by the prosecutor for seeking an adjournment were based on faulty information. There was no factual basis for any belief that the release of the applicant would interfere with the police investigation or the execution of further search warrants or the search of any computers. The police had already secured the company’s facilities along with Mr. Way’s home and were in the process of downloading information from all of the computers. While this was a laborious exercise that took many days, there was nothing that the applicant could have done to interfere with that process.

[45] It is clear that the most compelling reason for the prosecutor’s request for an adjournment was the asserted potential for the destruction of evidence. As I have already set out, however, by the time that the applicant appeared for his bail hearing, the police had disconnected the computers from the internet and had thereby eliminated any risk of remote access or remote wiping of the computer hard drives. Again, there was nothing that the applicant could have done, if he was released, to destroy any evidence.

[46] The fact is that the prosecutor had been provided with erroneous information regarding the status of the investigation. That erroneous information came from an officer who apparently was not integrally involved in the investigation or, at least, was not fully informed as to its status. While that may be the reason why the erroneous information was provided to the prosecutor, that is not an excuse for providing faulty information. Had the true state of affairs been known by the prosecutor, she would have been aware that there was no threat to the investigation if the applicant was released. The applicant was a relatively young man with no criminal record and a entirely acceptable surety. A consent release should have been forthcoming – a fact that another prosecutor appears to have realized three days later, on May 5, when a consent release was given to the applicant.

[47] The consequence is that the applicant was detained for three days when he ought not to have been. As Iacobucci J. famously remarked in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 47:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

[48] When it comes to the question of bail for an accused person, police and prosecutors must be especially vigilant to ensure that only those persons whose continued detention is essential to the proper administration of justice are detained. Great care must be taken to ensure that any information provided to the court relating to the accused person, and any reasons underlying a request for that continued detention, even for a short period, are as complete and accurate as possible. Neither the immediacy of the matter coming forward, or the complexity of the investigation, or the volume of material, or the number of persons arrested, or any other like matters, can excuse non-compliance with the overarching need to be full, fair and frank with defence counsel and the court.

[49] In this case, the prosecutor, through no fault of her own, put forward reasons for the continued detention of the applicant for three more days that were fundamentally flawed. As a consequence, the applicant lost three days of liberty – a deprivation of liberty that was particularly problematic for the applicant given his OCD. In my view, that deprivation constituted a breach of the applicant’s right under s. 9 of the Charter not to be arbitrarily detained or imprisoned.

Section 7 issue

[50] The defence contends that the abuse and degradation that the applicant suffered while in custody (outlined in paragraph 15 above) amounts to a violation of his s. 7 right to life, liberty and security of the person. In support of this contention, the defence points to existing authority that has held that significant physical harm caused to a prisoner amounts to a violation of s. 7. The defence extrapolates from that authority that significant psychological injury should similarly constitute a violation of s. 7.

[51] At the outset, I will say that I see no principled reason for the purposes of s. 7 to draw a distinction between the effects of physical injury and the effects of psychological injury. Torture, for example, can involve abuse of the body and it can involve abuse of the mind. In either case, a person may be seriously harmed. If state actors intentionally inflict injury on an accused person, it is an intolerable result whether the injury impacts the accused person’s body or his/her mind. I accept therefore as a basic premise that significant psychological injury amounts to a breach of a person’s s. 7 rights in the same fashion that physical injury does.

[52] The issue is then whether the applicant suffered such injury during the time that he was held in custody from the afternoon of May 1, through to the afternoon of May 5, when he was ultimately released on bail. To resolve that issue requires an elaboration of certain events that occurred through that period of time as summarized in paragraph 15 above. I will deal with those events in the same order that they are set out in that paragraph.

[53] The applicant has been on medication for his OCD since he was twelve. His father made sure that the police took some of that medication with them when they arrested the applicant. The only purpose for taking the medication was, obviously, so that the applicant could take it. However, that did not happen.

[54] Despite the fact that the police took the medication, the applicant was not given any medication on May 2 either while he was in the custody of the police or after he was transferred into the custody of the detention facility. It is not clear why the applicant did not receive any medication while he was in the custody of the police. The applicant was not delivered to the detention facility until early in the afternoon of May 2, so there was ample time for the police to have provided the applicant with his medication. There is simply no explanation for why this did not happen.

[55] The detention facility says that the applicant did not receive his medication initially on arrival at the detention facility because it is the policy of the detention facility that they will not administer medication that accompanies a prisoner because the detention facility does not know its source. That is a fair and reasonable policy but only if it carries with it a parallel duty to ensure that replacement medication is provided in a timely fashion. That did not happen in this case. Taking the evidence as favourably to the Crown as is possible, the applicant did not receive his medication until very late in the afternoon or early evening on May 3. By this time, more than forty-eight hours had passed since the applicant had last had his medication – medication that he is supposed to take daily.

[56] The Crown says that this occurred because the applicant did not make any issue about getting his medication. It is true that the applicant did not push this issue. He says that he did not do so because he was in a state of fear arising from other events that had happened to him (and that I will come to shortly) and he was therefore scared that if he made an issue about his medication he would reduce, rather than enhance, his chances of getting it. Regardless of the reason why the applicant did not press this issue, his failure to make an issue about the medication does not excuse the failure of the staff of the detention facility, especially the medical staff, to ensure that the medication was provided. The detention facility had absolute control over the applicant. The staff knew that the applicant was on medication. Indeed, they had the container with the applicant’s medication in it. The medical staff especially should have made direct inquiries of the applicant as to when he had last had his medication and then made provision for him to receive it. There is nothing in the evidence to indicate that this occurred. Rather, it appears that some general inquiries where made about the applicant’s well-being but, because the applicant simply said that he was okay and because he did not demand his medication, the issue was ignored at the detention facility for over twenty-four hours. That is not acceptable. If the state is going to incarcerate people with medical conditions (a result that is inevitable) then they have a positive obligation to deal with medical issues properly, promptly and effectively.

[57] I acknowledge that the applicant did not suffer any physical harm as a result of the delay in getting his medication but it is clear to me that the failure to provide his medication added to the fear and anxiety that the applicant experienced from the situation in which he found himself. I heard the expert evidence of Dr. Antony, a psychologist who treated the applicant after these events, who said very clearly that the applicant would suffer psychologically from the fact that his medication was withheld. I accept Dr. Antony’s view that there is a qualitative difference between a person missing medication by their own choice (e.g. forgetfulness) and missing medication because persons in authority are either withholding it or are perceived to be withholding it. It was entirely reasonable for the applicant to believe, knowing that his medication had accompanied him but that it was not being provided to him, that the authorities were intentionally not providing him with his medication.

[58] The next issue is the verbal abuse. The applicant says that he was called names and was otherwise subject to derogatory remarks throughout the time that he was held in custody. There is a particular alleged incident at 23 Division where the applicant was taken with others for photographs and fingerprints. During that process, the applicant says that the officer taking the prints subjected him to a number of derogatory comments. I heard from the officer who did the fingerprinting and he denies any such conduct. I am not prepared on the evidence that I heard to make a finding that the officer engaged in this conduct. There was nothing in the manner in which the officer gave his evidence that suggests that he was being untruthful about what occurred.[^3] I also consider it likely, given his state of mind at the time, that the applicant may have taken comments made by others and attributed them to this officer. I do expressly reject the applicant’s evidence that the officer called to other officers as they passed the fingerprint room and, in some fashion, held the applicant up to ridicule before them. Not only does that seem like an unlikely event by its nature, the unlikelihood of it occurring is heightened both by the physical layout of that area of 23 Division and the fact that the room is video monitored.

[59] That said, I have no doubt that the applicant was subjected to derogatory comments during the course of the time that he was being moved from 22 Division to 23 Division, and then to the Finch Avenue courthouse and then while held in that courthouse. Unfortunately, common sense and experience strongly support the likelihood that such comments would have been made by some officers given the nature of the charges that the applicant was facing. Further, Mr. Way gave evidence that he was also subject to such comments during this period of time. There is a measure of corroboration to be found in Mr. Way’s evidence as to what the applicant says happened especially since there is no advantage to Mr. Way that would be achieved by him making up such allegations. It remains a regrettable reality that not all officers conduct themselves with the degree of professionalism that we would hope for and, frankly, have the right to expect. The fact that persons are in custody does not give any right to those responsible for handling them to subject prisoners to either physical or verbal abuse.

[60] The applicant also gave evidence of two physical events that occurred while he was in custody. While at the Finch Avenue courthouse, the applicant says that he was tripped by a court officer while he was being walked through the cells. The applicant also says that, while he was at the Toronto West detention facility, a guard struck him in the back of the head for no reason. I accept that both of these events occurred. Neither of these events is of a type that the applicant would misinterpret nor are they the type of events that the applicant might have confusion about arising from his OCD and related symptoms. These are clear and straightforward events and I can find no reason to conclude that the applicant simply made them up. Again, unfortunately, experience demonstrates repeatedly that these type of events occur.

[61] The alleged announcement of the applicant’s charges to other inmates at the detention facility is a matter that is less easy to reach a conclusion about. However, in my view, it is not necessary to reach a conclusion as to whether it occurred in the manner that the applicant describes because it is clear on the evidence that, in one way or another, other inmates did become aware of the applicant’s charges. In fact, it is self-evident that this will occur from the fact that persons charged with such offences are routinely placed into protective custody. That is a procedure that would be unnecessary if there was little likelihood that other inmates would become aware of another inmate’s charges. It is also a reality, inherent in the nature of the process, that it is going to be virtually impossible to keep such information secret.

[62] I accept that the fact that other inmates knew of his charges added to the applicant’s fear regarding his safety. I do not, however, consider that that effect can be blamed on the authorities. As I have said, it is inevitable that such information will become known. It is also a reality that some individuals will react badly to learning that another person is subject to these types of charges. There is little that the authorities can do about those realities other than take the steps that they do which is to place such inmates in protective custody or segregation. The fact that someone in that position will be afraid in those circumstances is understandable but it is not something for which the authorities can, in my view, be held responsible.

[63] I should add on this point that these realities were acknowledged by the supervisor at the Toronto West detention facility when he spoke to the parents of the applicant. While the supervisor in question denied that he had made any comments about the applicant’s safety to his parents, I reject his evidence on that point. I accept the evidence of the applicant’s parents that the supervisor told them that, if their son was in the general population, he would not survive the night and that, even if he was in protective custody, his safety could not be guaranteed. I found the supervisor’s evidence generally unsatisfactory whereas the evidence of the applicant’s parents was given in a direct and straightforward manner. The supervisor’s comments made at the time are, of course, consistent with experience and common knowledge.

[64] I turn next to the allegation by the applicant that he was kept in his boxer shorts with no blanket or mattress overnight on the first night that he was in the detention facility. I accept that this occurred although it may not have lasted to the extent that the applicant remembers. On this point I note two relevant facts. One is that this is an event that the applicant told his father about, somewhat reticently, when he spoke to his parents the next day. The other is that there was evidence that, prior to being put in a segregation cell, inmates are strip searched and then provided with clothing and a mattress “some short time later”. I believe that that short time became a much longer time in the case of the applicant and I believe that this likely occurred as a juvenile way for the guards to express their displeasure regarding the applicant. Both of these facts provide some corroboration for the applicant’s evidence respecting this event.

[65] I will make one further general observation at this stage. The Crown asserts that the evidence of the alleged abuse comes solely from the applicant. That is true but it is not clear to me from whom else the Crown would expect it to come. The applicant is the one being subjected to this treatment. He has no one else “on his side” at these times to observe the events and then come to confirm that they happened. At the same time, I did not hear from any of the guards who were on duty when these events are said to have occurred. I am not suggesting that the Crown had to call them as witnesses. They undoubtedly would say that they have no specific recollection of the applicant and would almost certainly offer general denials of improper conduct. While I do have the records of the detention facility, if improper conduct occurred, of course, it is not going to be laid out in the records. In addition, there are no surveillance videos in these specific areas of the facility to review.

[66] I also appreciate the Crown’s point that it is difficult for them to refute these allegations when they first arise some two and a half years after they are said to have occurred. Of course, persons who are charged with offences that arise out of events that occurred many months or years before can make the same complaint. That does not change the fact that we must still hear and determine such cases, always keeping those considerations in mind.

[67] The applicant says that he was provided with minimal food and drink and that he was denied hygiene products and only provided with a shower at the very end of his stay. The records show that the applicant received all appropriate meals that included drink. I accept the applicant’s evidence that two cells in which he was housed did not have working water fountains. However, it does not appear that the applicant made any real issue about the malfunctioning water fountains and it is difficult to criticize the detention facility for not fixing a problem that they may well not have been aware of. There is also no evidence that the applicant ever made a request for additional drink – a request that I suggest could have been made without invoking any hostility from the guards regarding which the applicant was so concerned.

[68] In terms of the hygiene products and the shower, I heard evidence that the policy of the detention facility is to only provide inmates with showers once every three days. Without commenting on either the desirability or advisability of that policy, it is clear that the applicant was not treated any differently in this regard than any other inmate. It was on the third day that he was offered and took his shower. Nonetheless, I appreciate that, given his OCD, the applicant would react more negatively to the denial of showers and hygiene products than would other inmates. I do not believe, however, that the detention facility can be fixed with the knowledge of how the applicant’s OCD would impact on this issue, given the many different ways that OCD can manifest itself from person to person. The applicant, of course, did not advise anyone of any issue in this respect.

[69] In the end result, I am satisfied that during the time that he was held in custody, the applicant was verbally abused, he was physically abused and he was generally mistreated. The impact of this mistreatment was especially acute for the applicant given his OCD. There is no justification for this conduct. The fact that persons are in custody does not bestow on the authorities responsible for their care, the right to abuse or mistreat inmates simply because they are offended by the nature of the allegations found in the charges that the inmate faces. The requirement that prisoners are to be provided with humane treatment is a longstanding principle that has international application.

[70] I conclude therefore that the applicant’s rights under s. 7 of the Charter were breached by the conduct to which he was subject during the time that he was held in custody.

Remedy

[71] Having concluded that the applicant’s Charter rights were violated, the issue then becomes what remedy is appropriate. The applicant seeks a stay of the charges. In order to obtain a stay, the applicant must satisfy the twin requirements adopted in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 75 (QL):

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice.

[72] The Supreme Court of Canada in O’Connor added an overriding consideration regarding the imposition of a stay. In the words of L’Heureux-Dubé J., at para. 82 (QL):

It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

[73] In my view, the applicant fails to meet either of the O’Connor requirements. The prejudice caused by the abuse in question will not be perpetuated or aggravated by the conduct of the trial. While the trial may hold its own challenges for the applicant given his OCD, those challenges will have to be faced by the applicant regardless of the issues that arose while he was held in custody. Similarly, while there may be ongoing ramifications for the applicant arising from the manner in which he was treated while in custody, those ramifications are ones that he must contend with whether a trial does or does not occur.

[74] There are also other remedies, short of a stay, that could be utilized to address the prejudice that the applicant has sustained. Chief among those is the right of the court to take these matters into consideration on sentencing if the applicant is convicted of any of the charges. State misconduct, even falling short of a Charter breach, can be used to reduce what would otherwise be an appropriate sentence. This form of remedy was approved by the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 where LeBel J. said, at para. 55:

Thus, a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach. Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code, there is simply no need to turn to the Charter for a remedy. However, if a Charter breach has already been alleged and established, a trial judge should not be prevented from reducing the sentence accordingly, so long as the incidents giving rise to the breach are relevant to the usual sentencing regime.

[75] I appreciate that there is a residual category where a stay may still be warranted if the state conduct is such that its continuation in the future would offend society’s sense of justice. However, with respect to that residual category, the Supreme Court of Canada held in Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391 that the first of the twin requirements would still generally have to be met.

[76] The court in Tobiass then clarified the nature of a stay as a remedy. The court said, at para. 96:

A stay is not a form of punishment. It is not a kind of retribution against the state and it is not a general deterrent. If it is appropriate to use punitive language at all, then probably the best way to describe a stay is as a specific deterrent -- a remedy aimed at preventing the perpetuation or aggravation of a particular abuse. Admittedly, if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice. It is conceivable, we suppose, that something so traumatic could be done to an individual in the course of a proceeding that to continue the prosecution of him, even in an otherwise unexceptionable manner, would be unfair.

[77] It is at this point that I should once again refer to the evidence of Dr. Antony, the defence expert psychologist. There are two aspects to Dr. Antony’s opinion that should be mentioned. One is that, given the applicant’s OCD, he would have a greater negative reaction from his experience in custody than would a person who does not suffer from that disorder. Simply put, the applicant’s OCD would amplify the anxiety, depression and fear that a person would experience from being incarcerated. It would also likely increase the applicant’s perception that others were hostile to him even where, in reality, they were not. The other aspect of Dr. Antony’s opinion is his conclusion that the applicant’s experience while incarcerated has not only worsened the applicant’s OCD but has added other concerns to his mental well-being including posttraumatic stress disorder and panic disorder.

[78] If it is not already clear from my reasons, I accept that the applicant was terrified throughout the time that he was held in custody, that he sincerely feared for his safety and that he also reasonably feared being seriously injured or worse. However, having heard Dr. Antony’s evidence, I am satisfied that the applicant would have suffered exacerbations of his mental state, even if he had been treated in an exemplary manner while he was incarcerated. While the actual treatment that the applicant was subjected to has aggravated the effect on him, it is evident that some increased harm to the applicant’s well-being would have resulted from his arrest and incarceration regardless of the added element of mistreatment. The totality of the harm caused cannot, therefore, be solely attributed to the Charter breaches. Another factor impacting on the degree of harm is that Dr. Antony is not prepared to opine that the harm occasioned to the applicant in this regard is permanent. Rather, Dr. Antony says in his report:

Therefore, it is possible that the severity of Mr. Donnelly’s problems will improve once his current life stresses are behind him. However, it is likely that these difficulties will not go away completely.

[79] I have concluded, therefore, that the increased harm suffered by the applicant does not constitute the type of “exceedingly serious abuse” that would warrant a stay of proceedings. The harm visited on the applicant, separated from the impact that these proceeding will inevitably have on him because of his disorder, was not so extreme that it would constitute the continuation of the proceeding as fundamentally unfair. Here the conduct was offensive but it was not so egregious as to require a stay of the proceedings in order to make a statement or to adequately reflect society’s condemnation of the conduct. As the Supreme Court of Canada observed in Tobiass, also at para. 91:

The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings.

[80] There is a strong societal interest in having a determination on the merits of any criminal charge but especially more serious ones. Child pornography is a serious and especially insidious offence because of the nature of the victims. Children are the most vulnerable of our citizens and the most in need of protection. Society has a direct interest in ensuring that allegations of this type of conduct are fully and properly adjudicated.

Conclusion

[81] Before concluding, I note that the Crown asked that I withhold any determination whether a stay should be granted until after the trial is held and the Crown has proven the charges against the applicant. The Crown relied on the decision in R. v. Aziz, [2011] O.J. No. 1260 (O.C.J.), and cases cited therein, for this proposition.

[82] In my view, the Crown misapplies the decision in Aziz to this case. The point made in Aziz relates principally to when applications for a stay in circumstances such as these (i.e. where the issues raised therein are collateral to the issues at trial) should be heard, not when they should be decided. In Aziz, the trial judge said that he would entertain the application for a stay but would not hear and determine it until after a decision was made whether the accused person was guilty of the offence. It is of some importance to the rationale for that decision to note that the charge in Aziz was impaired driving and, therefore, the trial was expected to take no more, and quite possibly less, time than would the application for a stay.

[83] While there is considerable practical merit to the approach taken in Aziz where the time required for the application may dwarf the time required for the trial, that is not this case. Here the application has already been heard and it relates to a trial that is scheduled to take four weeks. In addition, in these circumstances, the remedial benefit of a stay is somewhat lost if that remedy is only granted after the trial is completed since that is, after all, the central proceeding that the accused seeks to shut down.

[84] In any event, the only matter now left is the outcome of the application. I can see nothing that is likely to arise in the course of the trial that would impact on my conclusion whether a stay is an appropriate remedy for the Charter breaches that I have found. Having concluded that a stay is not an appropriate remedy, I do not see any reason to withhold my conclusion for some months until the trial is heard.

[85] The application for a stay of proceedings is dismissed.

NORDHEIMER J.

Released: December 19, 2013

Court File No.: 464/12

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

BRANDON DONNELLY

Applicant

REASONS FOR DECISION

NORDHEIMER J.

RELEASED:

[^1]: These officers were in plain clothes although one of them may have been wearing a “raid jacket” with “POLICE” on it.

[^2]: I note that similar conclusions have been reached in other like cases such as R. v. Esposito (1985), 1985 CanLII 118 (ON CA), 53 O.R. (2d) 356 (C.A.) and R. v. Hicks, 1988 CanLII 7148 (ON CA), [1988] O.J. No. 957 (C.A.).

[^3]: I also note on this point that the officer’s notes from the day show that the fingerprints and photographs of the applicant did not take appreciably more time than did the fingerprints and photographs of any of the other prisoners that day save and except for Brian Way which the officer explained arose from the lengthy list of charges that Mr. Way faced – a fact recorded in the officer’s notes.