Court File and Parties

COURT FILE NO.: CR-16-10000689 DATE: 20190610 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – STEVEN NOWACK

Counsel: Renna Weinberg, for the Crown Paul Slansky, for Steven Nowack

HEARD: May 30, 31, and June 3, 2019

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON BAIL APPLICATION

[1] On April 26 2019 a jury convicted Mr. Nowack of 12 counts of fraud over $5000.00. The total amount of the fraud is about $19 million. After the conviction I cancelled Mr. Nowack’s bail.

[2] On May 6 2019 Mr. Nowack appeared in court. May 16 and 17 2019 were set aside to continue a disclosure motion and to argue an abuse of process motion. Mr. Nowack also asked for bail. He indicated that he needed to be on bail for three reasons: first, on Wednesday of that week (May 9) Mr. Nowack was arguing a civil appeal in the Court of Appeal. Mr. Nowack also stated that he needed to be out of custody to prepare for the post-conviction motions. Finally, Mr. Nowack asked for bail so that he could spend mother’s day with his elderly mother. I did not grant bail.

[3] On May 16 2019 Mr. Nowack continued with his evidence on the disclosure motion. The evidence started at 2:00 pm and continued until 4:30. Mr. Nowack and Mr. Slansky needed the morning to prepare the evidence.

[4] On May 17 2019 Mr. Slansky indicated that Mr. Nowack was not feeling well. Mr. Nowack asked to be taken to the hospital or to be released on bail so he could go to the hospital. I ordered that the court officers take Mr. Nowack directly to the hospital and not take him to the Toronto East Detention Centre, where he is currently in custody. Mr. Nowack was examined by a physician and released later that day. He was then taken back to the Toronto East.

[5] On May 21 2019 Mr. Nowack was brought back to court so that I could receive a report on his medical condition. Mr. Nowack indicated that on the ride from Toronto East to the courthouse he had sustained head and elbow injuries from reckless driving. He asked to be taken again to the hospital. He was concerned that he had a concussion. I ordered that he be taken. New dates for the disclosure and abuse of process motions were also set. May 30 and 31 2019 were set aside.

[6] On May 30 2019 Mr. Slansky, on Mr. Nowack’s behalf, brought another application for bail based on the violation of Mr. Nowack’s s. 7 Charter rights. The abuse in question was the behaviour of the authorities in the face of his illness on May 17 (including the violation of my order to take him directly to the hospital). The abuse included the reckless driving on May 21 that caused Mr. Nowack to sustain a concussion. Most of the court time on May 30 and 31 2019 as well as part of June 3 was taken up with the bail hearing.

[7] For the reasons that follow, the application is dismissed.

BACKGROUND

[8] As I have noted, on April 26 2019 a jury convicted Mr. Nowack of 12 counts of fraud over $5000.

[9] Briefly, Mr. Nowack held himself out as a currency trader. He took in about $19 million from investors. He claimed to be investing the funds and making huge returns. In fact, he kept some of the funds for himself and used the funds of later investors to pay out earlier investors, in part. He lost the rest of the funds trading foreign exchange, but he lied to investors about what was actually happening to their money.

[10] I cancelled Mr. Nowack’s bail when the jury convicted him. At the time I said this:

Mr. Nowack has now been found guilty on all counts, except one the Crown isn’t proceeding on. He no longer enjoys the presumption of innocence. Despite Mr. Slansky’s position, I do find that he has been found guilty of breaching his bail, as well as being in contempt of court and in my view that raises serious concerns. I think that given the concerns I have mentioned about his ongoing habit of failing to comply with court orders, that is very problematic. Each judge who found Mr. Nowack in contempt mentioned that he was did so wilfully and despite many chances to purge his contempt he did not do so. As well, although Mr. Nowack testified at this trial that he gave a full accounting to the Auciello/Montemarano group that is the opposite of what was found by different judges on the contempt.

As well, although Mr. Nowack has indicated that his account in the Isle of Man has been closed, his use of a bank account in an offshore jurisdiction raises further issues of concern. I’m not quite sure how he closed it if he was told that he had to stay here in Canada. As for Mr. Nowack’s ability to deal with the abuse of process motions, I agree that it will make it more difficult for him to do so. That said, I have other concerns – and it is outweighed by other concerns – especially given what I consider to be an extremely weak abuse of process motion. Moreover, the Crown’s case was not just strong, it was overwhelming. In my view, maintaining the reputation of the administration of justice requires that there be a detention order. I find that on the secondary and especially the tertiary ground Mr. Nowack’s detention is required. His bail is therefore cancelled.

[11] Mr. Nowack was convicted of breaching his bail by speaking to an investor. Mr. Slansky described Mr. Nowack’s breach of his bail order as “technical”. With great respect, I do not agree. Mr. Nowack’s bail included a term that he not communicate with any investors. He communicated with Stephen Chan. Mr. Chan dealt with Mr. Nowack on behalf of Mr. Chan’s wife, father-in-law, and aunt. After his arrest and release, Mr. Nowack spoke to Mr. Chan on two occasions. He asked that Mr. Chan not go to the police. Mr. Nowack indicated that he knew he should not be speaking to Mr. Chan. It is true that Madam Justice Green, in the Ontario Court of Justice, convicted Mr. Nowack of some charges and acquitted him of others. She discharged him. Mr. Nowack’s breach was anything but technical. A technical breach would have occurred if Mr. Nowack and Mr. Chan had bumped into each other at a restaurant and chatted about the weather. Mr. Nowack knowingly attempted to persuade Mr. Chan not to participate in a police investigation and then, when he was charged, argued that Mr. Chan was not technically an investor – an argument that Justice Green rejected, in part.

[12] Mr. Nowack has also been found in contempt of court on multiple occasions and incarcerated three times. In civil litigation with the estate of Dr. Greenberg, Mr. Nowack was repeatedly ordered to produce financial records. He did not do so or did so only partially. Justice Morgan found him in contempt of court March 27 2015: Greenberg v. Nowack, 2015 ONSC 2015. Justice Morgan said this at the time (para. 26):

I consider that the Defendant has done everything he could think of to evade his responsibilities to the Plaintiffs and to the court. For a year and a half he has been appearing in court making illogical arguments and trying to muddy the waters with these arguments.

[13] Justice Morgan sentenced Mr. Nowack to 15 days in prison, but held off signing the warrant of committal until April 8 2015 in order to give Mr. Nowack a final chance to produce the documents and purge the contempt. Mr. Nowack did not do so. Accordingly Justice Morgan signed the warrant of committal and Mr. Nowack went into custody.

[14] Justice Dunphy also found Mr. Nowack in contempt in relation to the numbered company associated with Desi Auciello and Rino and Anthony Montemarano: 2363523 Ontario Inc. v. Nowack, 2016 ONSC 2518. As with the Greenbergs, Mr. Nowack was required to produce documents and an accounting. He failed to do so. Justice Dunphy noted that Mr. Nowack’s excuses were similar to those he had given to Justice Morgan. Justice Dunphy said this at paras. 62-63:

In the contempt proceedings before Morgan J. in the Greenberg litigation, a similar sequence of events occurred. Mr. Nowack was ordered to produce financial information. He did not do so. He claimed to be impeded by the seizure of his records and Wagg obligations. He was found guilty of contempt and given an opportunity to purge his contempt. Again, he failed to do so. He was sentenced and asked for a stay to allow him to seek one from the Court of Appeal. In rejecting the request for a stay, Morgan J. made the following comment (at 2015 ONSC 2256 (Ont. S.C.J.) para. 5):

Mr. Nowack also took the opportunity this morning to advise me that he hopes to be in a position to purge his contempt by April 16, 2015. He says that he is in the process of collecting documents from his bank. While I appreciate Mr. Nowack’s assurances that he is making an effort to collect the documents that he was first ordered to produce a year ago, I find it telling that not a single piece of paper has yet been produced by Mr. Nowack since his having been found in contempt, despite the passage of several more weeks.

The comments of Morgan J. could be repeated today with very little amendment required. The documents Mr. Nowack has failed to produce have been the subject of orders made by various judges for years. Paragraph 6 of the Judgment and my own order are merely the latest in a string of orders that have been ignored. While I am punishing Mr. Nowack for his non-compliance with the latest two orders only, the fact that prior orders have been trying to pry the same information out of him since shortly after the funds disappeared is a significant aggravating factor.

[15] Justice C. Brown also found Mr. Nowack in contempt: Greenberg v. Nowack, 2018 ONSC 416. She stated:

Mr. Nowack’s behaviour, which displays a flagrant and concerted effort to avoid the court Orders against him over the past four years, constitutes what D. Brown J. (as he then was) described in Mercedes-Benz Financial v Kovecevic, 2009 CarswellOnt 1142 at para. 10 as “conduct that undermines one of our country’s fundamental principles”. As stated by Morgan J. in his decision of March 27, 2015 “the defendant’s flaunting of court orders is not only a violation of the rights of the plaintiffs, it is an affront to the rule of law”.

[16] It was my view that this history raised very serious concerns about the reputation of the administration of justice if Mr. Nowack remained on bail after being found guilty of a $19 million fraud. I appreciate that the contempt proceedings were not criminal in nature, but it was my view Mr. Nowack’s incarceration pending sentence was required to maintain confidence in the administration of justice. I took into account his history of wilful and flagrant disregard of court orders, his wilful breaching of a bail condition, and his convictions in this case.

ISSUES AND ANALYSIS:

[17] Mr. Slansky did not rely on a material change of circumstances. Instead, he argued that there has been a violation of my May 17 2019 court order. He further argued that the behaviour of the authorities – including the violation of that order – amounted to a violation of the principles of fundamental justice. Mr. Nowack, he argued, has a reasonable expectation that he will not get the treatment he requires from the state. There were serious concerns that the jail authorities at the Toronto East Detention Centre will not take him for his various medical procedures. The violations warrant a remedy under s. 24(1) of the Charter. Mr. Slansky further argues that the appropriate remedy is a bail order so that he can get the treatment he needs. The bail order would also prevent any further risk to Mr. Nowack’s life as a result of the actions of the state.

[18] Respectfully, I do not agree. First, I find that there was no violation of my order of May 17. Second, I do not find that there has been a violation of Mr. Nowack’s s. 7 Charter rights. Even if there had been a violation, the appropriate remedy would not be to grant him bail.

[19] Thus, the three issues before the court are these:

• Was the court order of May 17 2019 violated?
• Have Mr. Nowack’s rights under s. 7 of the Charter been violated?
• Should there be a remedy under s. 24(1) of the Charter?

[20] I turn to the analysis.

(a) Was the court order of May 17 2019 violated?

[21] Mr. Slansky argues that the order of was violated. He says I ordered that Mr. Nowack be taken directly to the hospital. Instead the authorities negligently or deliberately failed to take him for three hours. Court ended at 11:48 am. Mr. Nowack was transported to the hospital at about 2:45 pm. That three-hour delay, he argues, constituted a violation of the order.

[22] Again, with respect, I disagree. My order was not violated. The delay was reasonable under the circumstances.

[23] On May 17 Mr. Nowack’s disclosure motion was scheduled to continue. As I noted, the day before, May 16, I had heard about two hours of evidence on the motion. When court commenced on May 17 Mr. Slansky indicated that Mr. Nowack was not feeling well. He renewed his request for bail so that Mr. Nowack could go to the hospital and attend to various scheduled medical appointments.

[24] After much discussion of the jail procedures, Mr. Nowack addressed me directly. He was not under oath. He indicated that he did not feel well. He was having heart palpitations, he said, which he has had continuously for the past four years.

[25] Mr. Nowack informed me that when he was taken into custody for contempt of court in 2016 he had massive heart palpitations. He indicated that the court officers at that time demeaned him and mocked him. He was taken to Mt. Sinai Hospital. He was not treated well at Mr. Sinai. He said that he met with a resident. The resident was dismissive of his medical condition. Mr. Nowack told him that he wouldn’t be a resident very long if he didn’t see the head of emergency. The head of emergency then saw him. Mr. Nowack had a CT scan and was shackled during the CT scan. They then found a tumour in his chest. They made an appointment with an oncologist for the next day. The jail, however, refused to take him the next day. Security procedures require that the authorities change the date. He did go eventually to the oncologist, in cuffs and shackles. The court officers stood there when he was given his diagnosis. He felt demeaned and undignified. Eventually, he had 31 doses of radiation treatment. At the Toronto East he later told a doctor that he was having heart palpitations and demanded to be taken to the hospital. He stated that the doctor laughed at him, refused, and he was put into solitary confinement. The third time he was incarcerated at Toronto East Mr. Slansky called 911 on his behalf but the authorities would not allow the paramedics in. Mr. Nowack also told me that in January of 2019 he had massive pains in his chest and side at level 10. He told me that in court he was experiencing pain at level 7. He suggested that the hospital was the only place for him to go. He said that it was inappropriate that he be shackled and cuffed at the hospital. He said he was dealing with cancer and a blood clot. He offered to show me all of his medical records. He said he would go to the hospital, get treatment, and return to jail if all was well.

[26] At the end of much discussion, I ordered that Mr. Nowack be taken directly to the hospital without going back to Toronto East. I said this:

Mr. Nowack indicates that is not feeling well and wants to go to the hospital. He points to his previous medical issues. No doubt, those were serious – he has had cancer and ailments that go along with that. He asks for bail so that he can deal with his medical issues.

In dealing with this, I have to balance three factual problems. The first problem is that, frankly, little of what Mr. Nowack says can be taken at face value. Many of the things he says turn out to be inaccurate or exaggerated or simply untrue. The jury clearly did not believe his evidence. They found him not to be credible. Frankly, it was not credible. Ms. Weinberg says he is not an accurate historian – and from what I have seen that is a correct evaluation.

The second problem is that the history of this proceeding has been characterized by attempts to delay or obtain adjournments. This has been evident throughout not only the civil litigation but also the criminal proceedings, as noted by Justice Ducharme. I am also troubled by the fact that although we are in the midst of post-trial motions, more time and energy seems to have been expended on obtaining bail than on preparing for those.

The third, and countervailing problem, is that Mr. Nowack has undoubtedly suffered from very serious and life-threatening health issues in the past including cancer. The fact that he has been an inaccurate historian in the past gives rise to a very real concern that he could be malingering in order to obtain bail. Although the Crown didn’t put it that way, that is thrust of her submissions. I am not, however, prepared to make that finding at this time given that his health problems have clearly been serious and real. In other words, I accept that Mr. Nowack requires medical attention from a hospital and requires it today.

The authorities clearly have a responsibility to ensure the health and safety of inmates in the remand system. They have a responsibility as well to take Mr. Nowack’s health concerns seriously given his past medical history. I am ordering that officers take Mr. Nowack directly from this courthouse to the Toronto General Hospital emergency room directly after court without returning to the Toronto East. When his treatment is finished, he will either be admitted to the hospital or returned to the East. I am also ordering that Mr. Nowack return next week in this court in order to set another date for the hearing of this motion. I will hear whatever submissions are to be made in relation to his health on that date.

[27] Mr. Nowack was brought to the courthouse on May 21 2019. I was informed that Mr. Nowack had told the officers that he had suffered a concussion in the van on the way to court and needed to be taken to the hospital. I ordered that he be taken to the hospital. I was also informed that the paramedics took Mr. Nowack to the hospital on May 17. The staff at the hospital examined him. They medically cleared him that day and he was returned to the Toronto East. We then set May 30 and May 31 aside as two more days to hear the post-verdict motions.

[28] On May 30 2019 the motions did not recommence. Instead, Mr. Slansky brought this application for bail. I heard evidence from Mr. Nowack about the violation of my order of May 17 2019. I also heard evidence of the driving of the prisoner vehicle on May 21 and May 31.

[29] Mr. Nowack testified that that on May 17 he was experiencing chest and abdominal pains. He was taken to the cells after court. He waited there from 11:48, when court ended, until about 2:45 when an ambulance took him to Toronto General Hospital. That was a delay of about three hours. When the paramedics came one of them, according to Mr. Nowack, told him that the authorities had placed his life in grave danger.

[30] Officer Marco Genua was the acting shift supervisor of the court officers on May 17. He testified that Mr. Nowack is classified as a P4 prisoner. A P4 prisoner cannot be in the general population, usually for safety reasons. The officers must transport a P4 prisoner in a compartment by himself. Officer Genua testified that he learned that Mr. Nowack was having heart palpitations. He also learned that I had ordered Mr. Nowack be taken directly to the hospital and not back to Toronto East.

[31] Officer Genua testified that two officers are required to transport a prisoner to the hospital. Three officers are required if the prisoner is considered violent or dangerous. He did not immediately have officers available. He testified that there are staffing shortages among the court officers in Toronto. As a judge in the Superior Court in Toronto, I can confirm that is within my personal knowledge. Officer Genua’s plan was to wait until 1 pm, when courts went down, to assign two officers to escort Mr. Nowack. At 1:13 pm, however, another prisoner in the cells suffered a heart attack. That prisoner collapsed on the floor and stopped breathing. Paramedics came quickly. At 1:51 pm that prisoner was taken to the hospital. Officers from that prisoner’s home institution came to replace the two officers who were going to escort him to the hospital. As a result, two other officers were freed up to escort Mr. Nowack. In cross-examination, Officer Genua explained that when the other prisoner collapsed, he had to make a judgment call about the priorities. His view was that the acute prisoner was a higher priority at that time than Mr. Nowack. Mr. Nowack was not in distress.

[32] At approximately 2:15 pm the officers called paramedics to take Mr. Nowack. Officer Genua explained that it likely took some time to re-organize the officers, do their notes, and restore routine. He testified that he would find out exactly why there was a delay. He denied a suggestion that the court officers specifically ignored Mr. Nowack because they did not believe he was ill.

[33] In my view, officers must be given a reasonable degree of discretion in executing a court order. Once the order has been given, a court should not micromanage how it is carried out: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142. The role of a court on review of a search warrant is to evaluate the reasonableness of the search: R. v. Burke, 2013 ONCA 424. My role here is to evaluate whether the officers exercised their discretion reasonably in the execution of the order.

[34] I find that they did. I find that the explanation for the delay from 11:48 am to 1:13 pm is reasonable. The court simply did not have the staff to free up two officers. It would not be reasonable for the court officers to ask that a court adjourn so that Mr. Nowack could be taken to the hospital immediately. He was not acute. He had been suffering from heart palpitations for four years. His breathing was not laboured and he was conscious. He spoke lucidly in court for a full 15 minutes setting out his medical history in great detail.

[35] At 1:13 pm the officers had to deal with a truly acute case. A prisoner collapsed and stopped breathing. He had suffered a heart attack. He died two days later. I find that it was reasonable for the priority of the officers to shift from Mr. Nowack to this other prisoner. As I mentioned, Mr. Nowack’s case was not acute. Indeed, he was medically cleared later that day and returned to Toronto East.

[36] After the acute case was taken to the hospital, it was about 25 minutes before the authorities were able to call the paramedics to take Mr. Nowack. Although that seems longer than necessary, I find that Officer Genua’s explanation is likely correct, that it took some time to re-organize the officers and to restore routine. In any event, under the circumstances 25 minutes is not inordinately long.

[37] I did not put a time limit on my order. My order was simply that Mr. Nowack be taken directly to the hospital from the jail without going first to Toronto East. I did not order that he be given priority over other cases or other prisoners. The officers did not violate my order to take Mr. Nowack directly to the hospital.

(b) Have Mr. Nowack’s rights under s. 7 of the Charter been violated?

[38] Mr. Slansky argues that Nowack’s s. 7 rights were violated by conduct of agents of the state and the court officers in relation to his treatment at the hospital on May 17 2019. They violated s. 7 of the Charter by refusing to unshackle Mr. Nowack, by violating doctor-patient privilege, and by their abusive behaviour. The reckless and negligent driving on May 21 and on other days placed Mr. Nowack’s life at risk. This reckless and negligent driving was another violation of s. 7 of the Charter.

[39] Again, I must respectfully I disagree despite Mr. Slansky’s forceful argument. I find that the behaviour of the officers at Mount Sinai Hospital on May 17 did not violate Mr. Nowack’s s. 7 Charter rights. I also find that there was no reckless and negligent driving on May 21 2019 and other days.

[40] I will start by reviewing the evidence.

[41] On May 30 2019 Mr. Nowack testified about the events of May 17 2019 and May 21 2019.

[42] On May 17, two officers – a male officer and a female officer – escorted him to the hospital. He testified that he waited on a gurney for 20-30 minutes before being seen. He was taken to a cubicle and given an IV and an EKG. A doctor named Ben Yaakov came in and asked the officers to remove his cuffs. The officers refused. He testified that the doctor asked the officers to leave during the examination and the officers refused. The doctor ordered a CT scan.

[43] I pause to note that Officer Genua testified that TPS protocol requires that in a non-secure area the officers must keep a prisoner handcuffed. He also testified that if a doctor asks the officers to remove the handcuffs they must do so. Officer Genua also testified that an officer must keep a watch over a prisoner for security reasons, even in a hospital setting.

[44] Mr. Nowack testified that he asked the first male officer to take him to the washroom. The officer said: “no, you can pee in the container, asshole”. Mr. Nowack said the officer was violating his human rights. The officer said: “fuck your human rights.

[45] Mr. Nowack further testified that he begged the officers to loosen his cuffs and assist him. He said that one of the officers said: “you’re an asshole, you committed a $19-20 million fraud”. He further testified that a CT scan technician asked the officers to remove the handcuffs. They refused. The officers then spoke to the CT scan technician. After that the CT scan technician began to treat him brutally and in a depraved manner. After the scan, for example, the CT scan technician told him “get up, it’s not a hotel”. Mr. Nowack testified that his pants were around his ankles. Mr. Nowack asked for help but one of the officers told the CT scan technician not to help him. Mr. Nowack also testified that he was required to give a urine sample. The officers refused to take off his cuffs and he urinated on himself. He found that very degrading. At one point he was lying on a bed after being sedated. He was cold and covered with a blanket. The blanket did not fully cover him. He asked the officers for help with being covered. The officers refused and verbally abused him.

[46] Mr. Nowack said that the behaviour of the officers was only three or four steps removed from Auschwitz.

[47] Mr. Nowack testified that Dr. Ben Yaakov told him that he could not see any heart issues, swelling of the lungs, or other adverse issues. The hospital released Mr. Nowack. They medically cleared him to return to Toronto East. A new set of officers drove him to the Toronto East. One of the officers took his cuffs off and said that they were allowed to do that.

[48] Mr. Nowack then testified about the events of May 21 2019. He testified that he was put in the prisoner vehicle and driven to court. The driver was going very recklessly and at high speed. They hit some type of bump and he smashed his head on the ceiling. He was nauseous and his vision was blurred. The driver continued to drive recklessly. At one point the driver slammed on the brakes and Mr. Nowack went flying into the front end of the truck. He smashed his elbow. He prayed that they would make it to the courthouse as he was in fear for his life. The reckless driving continued. Mr. Nowack had a scab on his elbow where it was injured.

[49] Mr. Nowack testified that when the vehicle came to the courthouse the driver took him to the control station in the cells. Mr. Nowack described the officer at the control station as a “large Indian man”. The officer at the control station said “fuck you, fucking throw him in the cell, fuck him.” He went into the cells and laid down on a bench. An officer asked “Nowack are you alive”? Another officer came and said “Nowak if you’re faking you’ll be in trouble – we’re calling the judge – there’s video”. Another officer came and said they had called the paramedics. Officer Genua also indicated to him that the paramedics were present and waiting. In fact there were no paramedics there – they came about twenty minutes later. The paramedics took him to Toronto General Hospital. Before the paramedics took Mr. Nowack to the hospital Officer Genua spoke to him. Officer Genua asked Mr. Nowack not to ask the officers to remove his cuffs. Officer Genua double-locked the cuffs so that they would not cinch and tighten. Officer Genua confirmed that this conversation occurred.

[50] At the hospital Mr. Nowack waited perhaps 30 or 40 minutes before seeing a doctor. The doctor was Dr. Ahmed. Mr. Nowack reported blurred vision, nausea, and soreness. The doctor said “concussion maybe”.

[51] Mr. Nowack testified that the officers were listening to the conversation with Dr. Ahmed. The doctor asked if there were any witnesses to Mr. Nowack’s injury. The female court officer then had a secret clandestine conversation with Dr. Ahmed. Dr. Ahmed ordered a CT scan. There was no bleeding in his brain and no fracture. Dr. Ahmed indicated that Mr. Nowack had a “wicked concussion” and would not feel well for three or four days. He was referred to the Toronto General concussion clinic. Officers then took him back to the Toronto East.

[52] Mr. Nowack testified about his encounters with Dr. Kerr at the Toronto East. Dr. Kerr is the head physician at Toronto East. Dr. Kerr told Mr. Nowack that he told the court not to take him to the hospital. Mr. Nowack asked to see the hospital records. Dr. Kerr indicated that “you’re not allowed to see them”. Dr. Kerr said that Mr. Nowack would not be going to the concussion clinic. Mr. Nowack did testify that he has largely recovered from the concussion, but that his back is hurting and he still gets headaches.

[53] Officer Kevin Chan drove the vehicle on May 21. He testified that he placed Mr. Nowack in his own compartment. He was placed in his own compartment because of his security classification. There were three other prisoners in a different compartment. He testified that he drove normally from the Toronto East to the courthouse. When Mr. Nowack was removed from the vehicle he reported that he hit his head. Mr. Nowack was breathing normally. The other three prisoners did not report any injuries.

[54] Officer Chan testified that the traffic was quite bad on May 21. He took Eglinton Avenue. The traffic was stop-and-start. He did not recall hitting a bump or slamming on his brakes. He testified that he drove as slowly as possible for safety reasons. He also denied a suggestion from Mr. Slansky that he drove recklessly.

[55] I reviewed the videos of Mr. Nowack’s ride from the Toronto East Detention Centre to the courthouse on May 21. There were two cameras in Mr. Nowack’s compartment. The first camera filmed the compartment head on and was aimed at the middle of the bench. The second camera filmed the front of the compartment.

[56] At 7:41 am Mr. Nowack entered the compartment. He was alone. One of the officers asked him if he wanted the heat on. Mr. Nowack said “yes” and thanked the officer. The vehicle moved at 7:42 am. The vehicle appeared to start driving at 7:46 am. The vehicle was clearly vibrating. Mr. Nowack sat with his feet on the floor and his hands together, as he was in handcuffs.

[57] From the first camera I observed the following: at 7:59:45 Mr. Nowack moved his feet so that they were resting on the floor. Just prior to that his right leg was stretched out towards the front of the compartment. He was seated on the bench. At 7:59:47 Mr. Nowack’s body rose up and he said “ow”. He then looked towards the camera. He held onto his head. He said something that was not audible. He sat with his hand on his head for about a minute and then bent forward with his hands together. He occasionally touched or held his head after that. At 6:27:25 Mr. Nowack slid towards the front of the compartment and hit it. It appears that the vehicle decelerated. Mr. Nowack said “ow” several times. The rest of the ride was uneventful. Mr. Nowack held his elbow from time to time. At 9:06 am Mr. Nowack left the compartment. He told one of the officers “I hit my head. I don’t feel well”.

[58] From the second camera I observed the same sequence of events. There was more clarity about the deceleration than from the first camera. Mr. Nowack clearly slid along the bench and hit the front wall of the compartment with his shoulder. He did not, at least to my observation, hit his elbow on the wall of the compartment. It appears that he may have hit is elbow on the bench, but it is difficult to say. It is possible that he did so.

[59] It is impossible for me to say, from reviewing both videos, whether Mr. Nowack actually hit his head on the ceiling of the vehicle. It is certainly possible he did. Officer Chen testified that there is not that much clearance between the top of a prisoner’s head and the ceiling. I accept Mr. Nowack’s evidence that he did hit his head.

[60] When I look at the video carefully, it seems unlikely that Mr. Nowack deliberately moved his body in such a way as to hit his head on purpose, thus faking a head injury. I note that his torso rose off the bench at the same time as his feet. He did not bend his knees. I am certainly no expert on Newton’s first law of motion, but as a lay observer I feel confident about my conclusion based on my review of the videos. I therefore disagree with the Crown’s suggestion that Mr. Nowack’s body moved voluntarily. I find that it was involuntary. Based on similar observations, I also find that Mr. Nowack’s body moved involuntarily when he slid along the bench to the front of the compartment and hit his body.

[61] That said, there is simply no evidence of reckless driving on the video. It is clear to me that the only occasions where there was sufficient force applied to Mr. Nowack’s body to make it move were the two occasions he complains of. Mr. Nowack was not knocked around the vehicle as one would expect if the vehicle was bouncing over objects or potholes at high speed. His body was not sliding back and forth along the bench as if the vehicle were accelerating or decelerating quickly. His body did not suddenly lurch to the sides of the compartment, or back and forth. One might also expect that if the vehicle was weaving in and out of traffic at high speed, as Mr. Nowack testified. There was no evidence of Mr. Nowack’s body coming off the bench more than the one time. Mr. Nowack’s evidence on this point is simply not credible. No other passengers were injured or complained.

[62] I find that Mr. Nowack likely did hit his head and his elbow, but I also find that he has exaggerated the extent of his injuries. The doctors could find no evidence of any issues on either May 17 or May 21. I also find that there was no reckless driving on May 21. Normal driving in heavy traffic can involve sudden stops and starts. I think I can also take judicial notice of the condition of Eglinton Avenue in May 2019, given that I am a judge who lives and works in Toronto. It is an open and notorious fact that the Eglinton Crosstown light rail system is being installed under Eglinton Avenue. This has caused significant construction and tearing up of Eglinton Avenue. No doubt driving over this roadway involves the occasional bounce. Reckless driving is not required for that.

[63] I move now to the analysis of whether Mr. Nowack’s s. 7 Charter rights were violated on May 17 and May 21 2019. A finding under s. 7 requires me to first make findings of fact. Those findings of fact, in turn, rest largely on Mr. Nowack’s credibility. The only direct evidence I have that could corroborate or call into question his credibility is the video of the May 21 2019 transport. That evidence does not corroborate his version of events. In fact, it contradicts it. There was no reckless driving on May 21 2019. When I consider Mr. Nowack’s overall credibility it also casts doubt on his version of events on May 17 2019 and his assertion of reckless driving on May 30.

[64] I also find that Mr. Nowack’s account of his treatment by the guards on May 17 is likely exaggerated. I think it unlikely that TPS officers would be so abusive in a public setting in a major hospital. I also think it is unlikely that the TPS officers convinced a CT scan technician to be rude to Mr. Nowack. Frankly, even if I were to accept his version of events of May 17 it does not rise to the level of a Charter violation. The officers were under no obligation to remove his handcuffs upon request. Officer Genua testified that if a doctor asked the officers to remove the cuffs, they would have done so. I accept his evidence. There is no allegation of physical abuse, except for the refusal to remove the cuffs. The officers did not beat him. They did not deny him access to medical care. At its highest, the officers were very rude to Mr. Nowack. I suspect that the officers did not go out of their way to be nice to him. I have observed Mr. Nowack for some months now. Mr. Nowack can be a very difficult person to deal with. Mr. Nowack’s comment that he told a medical resident that if he didn’t do what he wanted then that resident would not be a resident much longer is an example. With respect, however, even if it is true that the officers were rude that does not amount to a Charter violation.

[65] Unfortunately, Mr. Nowack’s perspective is very skewed. He testified that if he had been given bail, none of these problems would have occurred. That is incorrect. If he had not committed a very major fraud, breached his bail conditions, and been found in contempt of court on multiple occasions then none of these alleged problems would have occurred.

[66] I must also say that Mr. Nowack’s invocation of Auschwitz was deeply offensive. I find it very unlikely that the actions of the Toronto Police court officers were only a few steps removed from concentration camp guards. The officers were at Toronto General Hospital – a large, modern facility busy with staff, patients, and surveillance cameras. The officers were in the public eye. As I have noted, Mr. Nowack does not allege physical abuse other than a refusal to remove handcuffs or assist him. He does not suggest that he was denied medical care. His real complaint, as I said, is that the officers were rude to him.

[67] Mr. Nowack’s comments are reminiscent of Del Zotto v. Her Majesty in Right of Canada, 1997 CarswellNat 818, 147 D.L.R. (4th) 457. In that case, Strayer J.A. of the Federal Court of Appeal commented:

The appellant’s case suffers from verbal excess: the inflation of language which detracts from precise consideration of what is involved here. The factum tells us:

Such inquiries are a hallmark of the worst of the police states that the world has seen.

Much was heard of the Star Chamber, now dead some 350 years but still the stuff of legal rhetoric… [1]

[68] I do not know exactly what happened between the court officers and Mr. Nowack at Toronto General Hospital. It is true that I did not hear from the officers. The comparison to Auschwitz is odious and I reject it as being obviously untrue. It also reflects on Mr. Nowack’s credibility. I find no evidentiary basis upon which a Charter violation can be established.

(c) Should there be a remedy under s. 24(1) of the Charter?

[69] Given that there was no violation of my court order, and no violation of Mr. Nowack’s s. 7 rights, there is no basis for a remedy.

[70] Had there been a violation of the court order then the appropriate remedy would not be bail. The appropriate remedy would have been a hearing to determine whether anyone should be held in contempt. The question of Mr. Nowack’s bail is independent of whether someone else violated a court order. The purpose of a contempt order is to compel obedience and punish disobedience: College of Optometrists of Ontario v. SHS Optical Ltd, 2008 ONCA 685 at para. 106 (Watt J.A.).

[71] I also find that the appropriate remedy for a violation of s. 7, if there had been one, would not necessarily have been bail. This area has received some attention from the courts. In R. v. Brown, 2007 CarswellOnt 9272, [2007] O.J. No. 2830 (Sup.Ct.) the accused were held in custody without a bail hearing. They were statutorily entitled to one. Under the circumstances Nordheimer J. (as he then was) found, on a habeas corpus application, that holding the accused in custody without a bail hearing violated their s. 7 rights. He ordered that the appropriate remedy was that the Crown give priority to their bail hearings. He also ordered costs. I am aware that there are decisions to the contrary, but the Court of Appeal upheld his ruling: R. v. Brown, 2009 ONCA 633.

[72] In considering the appropriate remedy for the violation, Nordheimer J. said this:

The applicants seek their immediate release. I do not consider that remedy to be either a responsible or reasonable one in the circumstances. I am fully aware of the rights of the accused, as I have just mentioned. However, I am equally aware that all other citizens of this community have similar rights. They are entitled to a justice system that ensures, among other things, their protection and safety. Indeed, the protection and safety of the public is an expressed consideration in determining any release.

[73] It makes no sense that bail automatically follows a violation of s. 7 of the Charter. Mr. Nowack is not violent, but he committed a very serious crime. Maintaining confidence in the administration of justice requires his detention. If there is a failure of the authorities to deal with his medical issues, then the appropriate remedy is to ensure that they do so – and hold them to account if they do not.

DISPOSITION

[74] The application for bail is dismissed. The detention order will remain in place.

R.F. Goldstein J.

Released: June 10, 2019

COURT FILE NO.: CR-16-10000689 DATE: 20190610 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – STEVEN NOWACK

REASONS FOR JUDGMENT R.F. Goldstein J.

[1] Strayer J.A. was in dissent but the Court of Appeal was reversed by the Supreme Court of Canada for the reasons given by Strayer J.A.