OSHAWA COURT FILE NO.: CR-17-14582

DATE: 20190107

CORRIGENDA: 20190108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KINGSLEY UGBAJA Applicant/Defendant

Gregory J. Raven, for the Crown

Carlos F. Rippell, for the Applicant/Defendant

HEARD: October 15-19 and November 15, 2018

REASONS FOR DECISION

(TEXT OF ORIGINAL RULING HAS BEEN AMENDED – CHANGES APPENDED)

MCKELVEY J.:

Background

[1] The accused has been charged with a series of offences which include importing heroin, possession of heroin for the purpose of trafficking and dangerous operation of a motor vehicle. The charges arise out of an investigation into the importation of 280 grams of heroin into Canada. The accused was charged on January 14, 2016.

[2] Pending trial, the accused was released on bail. On July 15, 2016, police conducted a number of checks to confirm that he was adhering to the terms of his release. One of the checks was conducted at his wife’s residence. While speaking to the accused’s wife, it was discovered that the accused had jumped out of a window in the house. As a result of this incident, the accused suffered an injury to his left foot.

[3] The accused has brought this application pursuant to ss. 7, 9, 12 and 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings. The grounds relied upon by the applicant are as follows:

1. It is alleged that at the time of his original arrest on January 14, 2016, police used excessive force at the time of his arrest.

2. It is alleged that the Crown failed to provide adequate medical attention following the injury to his left foot, which in turn is alleged to have caused long-term serious physical damage to his foot.

3. It is alleged that the applicant was unlawfully placed in solitary confinement or segregation following his arrest on July 15, 2016.

[4] During the course of argument the accused advised that he was abandoning any relief based on the circumstances of his original arrest on January 14, 2016. This application was therefore limited to the alleged failure to properly treat the accused’s foot fracture and his detention in segregation following his arrest on July 15, 2016. The application proceeded by way of a voir dire in which a number of witnesses and other evidence was called.

Was there a failure to provide adequate medical attention following the accused’s foot injury on July 15, 2016?

[5] This relates to the adequacy of care provided by the Central East Correctional Centre following the injury to his left foot. As the chronology of events relating to the matters in issue on this application is relevant, I have prepared the following chronology:

1. July 15, 2016 – On this date police attended at the home of the accused’s wife as part of a check to confirm whether the accused was breaching the terms of his release. The accused jumped from a window at the home and sustained an injury to his left ankle. He was taken by Durham Regional Police to Lakeridge Hospital. At that hospital he was diagnosed with a left ankle sprain. He was subsequently admitted on July 15 to the Central East Correctional Centre. At p. 193 of the medical record there is an admitting note by Sara Lee who is a Registered Nurse at the correctional centre. Her note confirms that at the time of his admission the accused was complaining of “++ pain” and was wanting a “second opinion” about his injury. In her evidence on the hearing, Ms. Lee testified that it was her decision to put the accused in medical segregation on his admission. She anticipated that he would remain in medical segregation for a couple of days. The Central East Correctional Centre does not have a separate medical segregation area or infirmary. Prisoners in the medical segregation area are kept in their cells 24 hours a day, subject to some time in the yard or to go for a shower. These inmates are housed with other inmates in segregation.

2. July 16, 2016 at 0810 hours – At this time Denise Kerr who is also a Registered Nurse at the correctional centre received a telephone call from Lakeridge Hospital in Oshawa to advise that further investigation at that hospital disclosed that the accused had suffered a comminuted fracture of his left heel. They asked that the inmate be taken to be seen either at Lakeridge or at Ross Memorial Hospital in Lindsay that day. Ms. Kerr testified at the hearing. She stated that a Report was given to the Duty Manager at Central East, Mr. Fraser, who told her there were no staff available for a transfer at that time and that the transfer would take place when staff became available.

3. July 16, 2016 at 1040 hours – At p. 192 of the medical record it is documented that the inmate reported to custodial officers that he had “heart pain” and pain in his left chest that radiated down to his left arm. Shortly after this report, the accused was taken to Ross Memorial Hospital in Lindsay and was assessed in the emergency department for both his chest pain and his left ankle. According to the evidence of the accused, the chest pain was diagnosed at Ross Memorial Hospital as a panic attack. He was also seen and assessed at the emergency department for his left ankle. According to the records of the Ross Memorial Hospital, the accused was diagnosed with an acute comminuted fracture of his left calcaneus. He was referred to see an Orthopedic Surgeon, Dr. Guirguis, at his fracture clinic the following Wednesday, July 20. There was conflicting evidence at the hearing as to whether the accused was told of the specific date for his fracture clinic appointment. According to the accused he was told that he needed surgery and he expected to have this surgery take place in a couple of days. The evidence of Dr. Guirguis, however, which I find more reliable, is that the fracture clinic appointment was not a date scheduled for the surgery itself, but was for an assessment and discussion about the risks and benefits of surgery. It was anticipated that there would be a delay of approximately 2 weeks to get the accused to surgery. It seems unlikely therefore that the accused would be told in the emergency department that the surgeon (who had not yet assessed him at this point) was going to perform surgery when he attended at the fracture clinic appointment. At the emergency department visit on July 16, the accused’s left ankle was placed in what has been described as a “back slab” type cast. He was instructed not to weight bear on his left leg and was given crutches. In his evidence, the accused acknowledged that he had been told not to weight bear on his left foot. He stated, however, that he was not allowed to have his crutches in the cell. According to the accused, he was only allowed access to his crutches when he came out of the cell. There is no institutional record as to whether Mr. Ugbaja was allowed to have crutches in his cell, although the evidence at the hearing was that it was expected that this would be noted. In the absence of any record I am inclined to accept Mr. Ugbaja’s evidence that he was not allowed crutches in his cell. It is clear that the accused was advised not to weight bear on his leg at the time of the emergency visit and there would not be any benefit to the accused in ignoring this advice. There is also the medical evidence which supports a finding that the accused did weight bear on the fracture site which exacerbated the fracture he sustained. Further support for this conclusion comes from the general level of apathy shown by the Central East Correctional Centre to Mr. Ugbaja’s medical issues. The result was that by necessity Mr. Ugbaja had little alternative but to weight bear while in his cell, which in turn exacerbated the fracture in his foot.

4. July 16, 2016 at 2158 hours – At p. 139 of the medical record there is a copy of a fax sent to the correctional centre from Ross Memorial Hospital confirming the fracture clinic referral to see Dr. Guirguis the following Wednesday. In terms of the level of urgency for the clinic visit there is a check mark beside “urgent”. Dr. Brent MacMillan is a Physician on staff at the correctional centre. He gave evidence at the hearing. Dr. MacMillan stated that he made a referral for the fracture clinic appointment. This is referenced in the medical record at p. 191.

5. July 19, 2016 - There is an entry at p. 191 of the medical record that the fracture clinic appointment for July 20 would be cancelled due to a judge’s order for a court appearance which necessitated a transfer. The note concludes that there was to be follow up at the receiving institution. At p. 190 of the medical record there is a note that the accused was transferred from Central East Correctional Centre on July 19. At p. 190 there is a record of the accused being received at the Maplehurst Correctional Centre. In this record it references a need to book an appointment with a physician “Re: meds and C. pain clinic”.

6. July 22, 2016 – It appears that on this date the accused attended in court in Brampton, Ontario.

7. July 25, 2016 – At p. 188 of the medical record there is a note that the accused was transferred back to the Central East Correctional Centre from Maplehurst. The note documents that the inmate needed a follow up with the fracture clinic and the cardiology clinic. The note goes on to state, however, that no appointment was booked as the inmate was to be transferred back to the Maplehurst Correctional Centre prior to the follow up appointments.

8. July 27, 2016 – The accused was transferred back to the Maplehurst Correctional Centre.

9. July 29, 2016 – At p. 183 of the medical record there is a note that the accused was advised of the need to see a doctor at the Maplehurst Correctional Centre in order to get a follow up fracture clinic referral and a referral to the cardiology clinic.

10. August 1, 2016 – At p. 184 of the medical record there is a note by Dr. Milloy at the Maplehurst Correctional Centre who saw the accused on that day. In the note Dr. Milloy charts that he is going to try and get the accused into a fracture clinic “this week”.

11. August 3, 2016 – There is an entry on p.183 of the medical record that an appointment was made for the accused to see Dr. Bischoff on August 10, 2016.

12. August 4, 2016 – At p.181 of the medical record there is a record confirming that the accused was transferred from the Maplehurst Correctional Centre to Central East Correctional Centre on August 4, 2016. It is noted that the inmate had medical appointments and the chart was left for the medical secretary to look after the bookings.

13. August 9, 2016 – At p. 181 of the medical record there is an entry that an appointment had been made for the accused to attend on August 24, 2016 to see Dr. Guirguis. Beside this entry there is a handwritten note “must go”.

14. August 24, 2016 – The accused attended at the Ross Memorial Hospital to see Dr. Guirguis in the fracture clinic. The note of Dr. Guirguis is found at p. 239 of the medical record. In his consult note Dr. Guirguis states that the accused continued to walk with the cast and the plaster on his calcaneus fracture. It also notes the accused did not show up at the fracture clinic appointment he was originally given. In his evidence at the hearing, Dr. Guirguis testified that when the accused attended at the fracture clinic on August 24, it was apparent that he had been walking on the leg with the fracture which made the fracture worse. He also stated in his evidence that by this point it was too late to do surgery as the bone had substantially healed out of position. In his consult note Dr. Guirguis states as follows:

I had a long discussion with Kinsley (sic) today. I think this man has been badly managed regarding the time manner (sic) the patient was in the Fracture Clinic. For some reason Kinsley did not show up in time although we continued to call him from the Fracture Clinic, but he didn’t show up in time to the Fracture Clinic. He continued to walk on his calcaneus and his foot with the cast on it. This made his calcaneus get worse.

This is a bad fracture that has been explained well to him today. It is bad prognosis as well. There is a possibility that he will end up with a fusion later on.

There is a high change (sic) he will need a subtalar arthrodesis later on in the future and this actually is indicated for a Sanders Type 4 and this has been explained well to him, even if we did surgery at the beginning of his injury.

[6] It is apparent that the accused’s injury was properly diagnosed on July 16 at the emergency department of Ross Memorial Hospital. It is also apparent that appropriate follow up arrangements were made for the accused to attend at a fracture clinic the following Wednesday with Dr. Guirguis. At that fracture clinic appointment it is clear from the evidence at the hearing that Dr. Guirguis would have recommended surgery. The urgency of the need to attend at the fracture clinic appointment was made clear to Central East Correctional Centre. It is indeed unfortunate that the accused did not attend at the fracture clinic appointment due to his transfer to Maplehurst Correctional Centre. It must be recognized that there may be situations which mean that an inmate is not able to attend a scheduled medical appointment. However, court appointments may by necessity have to give way to medical priorities depending on the urgency of the situation. If there is a question about the level of urgency it would be reasonable to expect the institution to make some follow-up enquiries. There is no evidence in this case that any enquiries were made by Central East Correctional Centre about the medical needs for the accused. Further it is difficult to understand in this case why there is no record of any follow up by Central East Correctional Centre to reschedule the fracture clinic appointment before August 4. There is also no evidence before me as to why the appointment requested on August 4 was returnable on August 24 which entailed a further delay of almost 3 weeks.

[7] Central East Correctional Centre was well aware of the urgent nature of the fracture clinic appointment scheduled for July 20 and if on August 4th an earlier appointment was not available before August 24, I would expect to see some evidence of an attempt to schedule a clinic appointment with another physician. From the records it is apparent that the Maplehurst Correctional Centre had scheduled an appointment with Dr. Bischoff for August 10. There is no adequate explanation as to why an urgent fracture clinic appointment scheduled for July 20 was allowed to linger over a month until the accused attended to see Dr. Guirguis on August 24. I conclude in the circumstances that the staff at the Central East Correctional Centre failed to take appropriate action to reschedule the accused’s fracture clinic appointment. All of this occurred in a manner which suggests the correctional centre saw no particular urgency in having the accused attend at the fracture clinic despite receiving a notice that this was an urgent referral and an order from Dr. MacMillan that the accused attend at the fracture clinic appointment on July 20.

[8] The evidence adduced at the hearing suggests that the delay in attending at the fracture clinic appointment had serious consequences for the accused. Dr. Charalabos Karabatsos gave evidence at the hearing. Dr. Karabatsos is an Orthopedic Surgeon. Dr. Karabatsos was retained to comment in connection with a civil action commenced by the accused. He gave his evidence in a straight forward manner and his opinions were not seriously called into question in cross-examination.

[9] Dr. Karabatsos stated that with the type of fracture suffered by the accused, the goal of surgery is to elevate the collapsed bone and to allow the foot to stabilize. It also restores the joint’s surface and decreases the risk of arthritis at a later time.

[10] Dr. Karabatsos noted in his evidence that in order to obtain the benefits of surgery, the operation should have been performed within 3 weeks. He did not feel that surgery would have been considered after 30 days post injury. At this point he stated that the outcomes deteriorate rapidly. Dr. Karabatsos expressed the view that the fracture had been very poorly managed and that the prognosis for complete recovery by the accused is very poor. At some point he will require complex reconstructive surgery.

[11] In cross-examination, Dr. Karabatsos could not say precisely what impact the accused’s weight bearing on the fracture site had on the outcome as opposed to the delay in surgery. He stated that he would need to have a close examination of the X-Ray films; however, the outcome he felt would have been much better had surgery been an option. He further stated that a patient with a Sanders type 4 fracture would more likely than not develop arthritis of the subtalar joint. An operation would likely be needed to deal with this. However, without the benefit of earlier surgery, it was more likely that other joints would develop arthritis and the type of surgery contemplated in this situation would be significantly more extensive.

[12] Dr. Karabatsos also acknowledged that had surgery had been done earlier, it is still possible that the fracture site might not have been reconstructable. The nature of the surgery and the ultimate success could not be determined precisely. What is clear from the evidence of Dr. Karabatsos is that a surgical reconstruction of the calcaneus was medically indicated and that the delay in returning the accused to the fracture clinic has likely led to a substantially worse outcome. Mr. Ugbaja has been left with a significant deformity and will likely require major reconstructive surgery within the next 10 years.

[13] In summary, I conclude that there was a serious lack of attention by the staff at the Central East Correctional Centre to ensure that the accused was promptly assessed at a fracture clinic by an Orthopedic Surgeon. This in turn led to a lengthy delay before the accused could be assessed by Dr. Guirguis. The effect of this delay was to deny the accused with appropriate medical care (ie. surgery). The end result is that the accused has been left with a serious left foot deformity and will likely develop arthritis in his foot in the future. In turn this will likely necessitate major reconstructive surgery within the next 10 years. While it is impossible to say with any certainty that remedial surgery would have provided a substantially better outcome, I have concluded on a balance of probabilities that this would have been the case based on the evidence of Dr. Karabatsos.

Was the accused unlawfully or inappropriately placed in solitary confinement for a period of 82 days?

[14] A letter from Rick Camman, Security Manager at Central East Correctional Centre and filed as Exhibit 1 at the hearing confirmed that while confined at the correctional centre, Mr. Ugbaja was housed in segregation during the following time periods:

1. July 15 to July 19, 2016 (which is the date of his transfer to Maplehurst)

2. July 25 to July 27, 2016 (which is the date when he was again transferred to Maplehurst)

3. August 5 to October 17, 2016

[15] The total number of days spent in segregation is approximately 79 days. According to Mr. Camman’s report, the reason for segregation was because Mr. Ugbaja was in need of protection.

[16] It is significant to note that in the Canadian Civil Liberties Association v. Canada, 2017 ONSC 7491, [2017] O.J. No. 6592, Justice Marrocco considered the system of administrative segregation under the Federal Corrections and Conditional Release Act. He found that there was a violation of s. 7 of the Charter under this legislation due to the lack of an independent review and the fact that there is virtually no accountability for the decision to segregate.

[17] Although the decision deals with administrative segregation in a federal institution, a number of Justice Marrocco’s comments are significant in the context of this application.

[18] Section 7 of the Charter provides that,

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[19] Justice Marrocco concluded that administrative segregation did infringe the security of the person and the issue became whether the infringement was in accordance with the principles of fundamental justice. In making this finding Justice Marrocco comments at para. 87 that admitting or maintaining an inmate in administrative segregation amounts to a significant deprivation of liberty. He concludes that it amounts, “to placing the inmate in a prison located within the prison”. He refers to the fact that there has been a growing recognition during the last half century that solitary confinement is a very severe form of incarceration and one that has a lasting psychological impact on prisoners. I accept his analysis in this regard.

[20] In the present case, Mr. Robert Howes was called as a witness during the hearing. He is the Staff Sergeant at the Central East Correctional Centre and at the relevant time was responsible for monitoring the status of the accused as well as other inmates in segregation.

[21] Mr. Howes testified in a forthright and credible manner. I appreciated his candour in giving evidence and recognize that it must have been difficult to address some of the issues he was questioned about. His evidence was, however, very disturbing in relation to the procedures followed at Central East Correctional Centre regarding inmates kept in segregation. Mr. Howes testified that in every administrative segregation pod at Central East Correctional Centre there are inmates who are kept on the pod for medical reasons or because they are a security risk or because they have an order to be placed in segregation due to misconduct. All three types of inmates are kept on the same pod. They are all treated the same except, for those who have been placed in administrative segregation for misconduct, for whom there may be some restriction in their canteen and other privileges.

[22] Inmates in administrative segregation are kept in their cell at all times. They are, however, supposed to be let out for a shower every second day, and they are also to be allowed outside in the yard for up to 20 minutes each day.

[23] The Ontario Ministry has set up a review process to review the status of an inmate in segregation at regular intervals. There is supposed to be an initial placement review which is followed by a 24 hour preliminary review. Then there is supposed to be a review every 5 days. At the end of 30 days and every 30 days thereafter there is supposed to be a special review, the results of which are forwarded to the Minister’s office for review. All of these records (“review records”) are in writing. The correctional centre also requires its staff to maintain observation records while an inmate is in segregation. These forms are to be completed every 20 minutes by correctional staff and are designed so that staff document social interactions with the inmate, whether he or she has had his meds and whether he or she has gone to the yard or taken a shower.

[24] At the hearing, copies of some of the segregation review records were admitted into evidence as exhibits 3 and 4. In reviewing these documents, however, it is significant to note that they only date from August 12, 2016 onwards. There do not appear to be any records relating to the accused’s initial admission on July 15. It is also interesting to note that in all of the documentation contained in Exhibits 3 and 4, the reason given for segregation is “in need of protection – protection from others”. A number of these records suggest that segregation was arranged at the request of the prisoner who was concerned that he would not be able to defend himself in the event of an assault. This rationale is contrary to the evidence given by the accused at the hearing. Mr. Ugbaja stated in his evidence that he did not ask to be in administrative segregation for either medical or protective reasons. He also testified that on several occasions asked to be moved to a general population range

[25] The Crown has submitted that I should question the accused’s credibility. In his evidence, he was referred to entries in the hospital records from Ross Memorial Hospital. In those entries Mr. Ugbaja is reported to have told the emergency department staff that he injured himself while walking on steps. The accused denied having made this statement to hospital staff but they are referenced in the record of the emergency department visit which was admitted into evidence as a business record. I am also mindful that the accused has a direct interest in the outcome of this application.

[26] Ordinarily, I would place considerable reliance on records which were prepared during an accused’s incarceration. However, for the reasons which follow, I find that the correctional centre’s review records are misleading and have little probative value because of the way in which they were prepared. Similarly the observation records have little probative value other than to document the accused’s presence in his cell while in segregation.

[27] The review records are designed to ensure that at least once within each 5 day period a review of the full circumstances relating to the administrative segregation are canvassed with the inmate. For example, turning to the 5 day review form dated August 17, 2016, there is a direction to advise the inmate of the reasons for segregation. In that form it is checked off that the reasons were given to Mr. Ugbaja for his detention in administrative segregation. The form then requires that the inmate must be advised of the opportunity to make a submission to the Superintendent or his designate. On that form it indicates that Mr. Ugbaja declined to make any submission. Under the heading of “Segregation decision” it records,

Inmate remains in segregation for his own protection from others. Inmate feels he would be unable to defend himself if an assault occurred.

[28] The next comment on the form is that staff on the segregation unit were to “encourage inmate to try the integration unit”, which is apparently a step down type of unit.

[29] The difficulty with this form and with all of the others which were completed by Mr. Howes is that he has no recollection of what the inmate was told on any particular occasion. Further, Mr. Howes routinely does his rounds for the reviews at the beginning of his shift which starts at 6:00 a.m. Mr. Howes testified that if, as he does his rounds, the inmate is either asleep or refuses to speak to him, he simply fills in the form based on the information available. This could include information previously recorded in the file. This may explain why most of the forms contain very similar wording in response to the questions. However, the records do not provide any convincing evidence that Mr. Ugbaja was ever specifically told the reasons why he was placed in segregation, nor does it provide any reliable evidence that he was given an opportunity to make submissions in response to his segregation. It also suggests that none of the information contained in the forms whether completed by Mr. Howes or others can be reasonably relied upon for the truth of its contents.

[30] It is also significant in my view that the information contained in the available reviews suggest that the accused was kept in segregation for his own protection. If one goes back to the evidence of Nurse Lee as referenced earlier in these Reasons, she gave evidence that he was placed into segregation for medical reasons. Based on her evidence it was anticipated Mr. Ugbaja was only going to be kept in medical segregation for a short period of time. In fact, he was kept in segregation for a very lengthy period of time without any adequate explanation as to the reasons for the change in the reasons given for his continued detention in segregation.

[31] The accused’s position that he did not ask to be placed in segregation is supported by the 30 day review where there is in fact a record of the accused requesting to go to a normal range. This review is dated September 11, 2016 and contains a comment by the accused where he states, “my leg is okay now. I would like to go to range please”. Despite the expressed wish of Mr. Ugbaja the box “would like to remain in segregation” has been checked off by Mr. Howes on the form. The decision of Staff Sergeant Howes on the 30 day review was that the inmate was to remain in segregation. In his comments he records, “medical/issues. Needs crutches – metal”. In his evidence at the hearing Mr. Howes explained that when an inmate needs crutches, permission to go to the normal range requires clearance through security as crutches could be considered a potential weapon. Mr. Howes stated that he followed up by sending an email to security to see whether security had any concerns about the inmate’s use of crutches. Mr. Howes could not recall if he got a response from security and there is no documentation about the response from security. Mr. Howes agreed in his evidence that he still identified on the 30 day review form that the inmate was being kept in segregation because he was in need of protection from others. He acknowledged that this entry was not accurate.

[32] There are other serious discrepancies in the review records as well. For example, in the 60 day review it states, “Inmate remains in segregation based on In Need of Protection – Protection from others”. It is significant to note that Mr. Ugbaja did not sign the form and Mr. Howes indicated he may have been asleep. Despite this, the 60 day review form, like the others, indicates that the inmate was advised about the reasons for segregation. Under the heading “Reasons for Continued Segregation” the form states,

Inmate remains in segregation based on a need of protection – protection from others. Inmate has tried several units and is unable to find a peer group where they fit in and feel secure. (Emphasis added)

The suggestion that Mr. Ugbaja was placed in other pods outside of segregation where he might feel secure is false and misleading. Exhibit 1, as previously noted is a report from Mr. Rick Camman, the Manager of Security who confirmed that Mr. Ugbaja never left segregation prior to the preparation of this report.

[33] In his evidence Mr. Howes stated that when the new forms were introduced he was never given any training in terms of how to fill the forms out. Having said that the questions on the form are straight forward. I cannot accept this explanation for the misleading and untruthful information recorded on the forms.

[34] Based on the evidence at the hearing, I have reached the following conclusions with respect to Mr. Ugbaja’s detention in administrative segregation:

(a) If one looked only at the review documentation one would not have any serious concerns about Mr. Ugbaja’s stay in segregation. Having listened to the evidence of Mr. Howes, however, the review documentation can only be described as misleading and unreliable.

(b) Mr. Ugbaja was initially detained in administrative segregation for medical reasons. This detention was anticipated to be for a short period of time and was a reasonable response by Nurse Lee.

(c) At some point the stated reasons for his detention in segregation changed to in need of protection and at the request of the inmate. However, the actual reasons for the change remain unknown.

(d) There was conflicting evidence at the hearing about whether an inmate who needed crutches was required to be in segregation. Dr. MacMillan who is a physician associated with Central East Correctional Centre testified that inmates who are not able to weight bear were generally not housed on a regular pod. However, Richard Camman, the Security Manager at the Central East Correctional Centre testified that inmates with crutches can be housed within the general population of the institution but the situation will be assessed to determine whether the crutches pose a security risk. I find the evidence of Mr. Camman on this point to be more reliable given that he is responsible for security within the institution. It is also consistent with the evidence of Mr. Howes. There is no evidence that there was any assessment of any security risk posed by Mr. Ugbaja in connection with his use of the crutches. Similarly there is no evidence before me that administrative segregation was required for Mr. Ugbaja because of his need for the use of crutches. I conclude in these circumstances that apart from the initial placement by Ms. Lee for several days, Mr. Ugbaja’s detention in segregation was not required.

(e) Other than on his 30 day review, I am not satisfied that Mr. Ugbaja was ever advised of the reasons for his detention in segregation, nor was he given an opportunity to make submissions about his continued detention in administrative segregation apart from those which he made on his 30 day review.

(f) As a result of the inaccurate recording of information on the reviews, there could be no effective monitoring of Mr. Ugbaja’s detention in segregation by the Ministry. The documentation provided to the Ministry at 30 day intervals as required by the regulations was inaccurate and misleading.

[35] In his evidence Mr. Ugbaja testified that while in segregation at the Central East Correctional Centre, he was only allowed to shower two times a week and he was never taken to the yard. Inmates in segregation are supposed to be taken to the yard on a daily basis. This is obviously a significant issue given that inmates are otherwise confined 24 hours a day to their cell. I accept Mr. Ugbaja’s evidence that he was never given any yard time while in segregation. His evidence in this regard is supported by the observation records which appear to document that Mr. Ugbaja was in his cell 24 hours a day.

[36] Exhibit 5 is a series of the observation records which date from July 15, 2016, which have been filled out by the correctional officers at 20 minute intervals. The correctional officers are supposed to record any discussions or conversations with inmates and are also supposed to document if the inmate is taken to the yard or has a shower. In reviewing these records, there is only one occasion when his yard privileges are referred to, and that is on August 25, 2016 when it is noted at 1005 that the inmate “refused yard”. There is also no reference in the records to officers initiating any social contact with the inmate. There are, however, references to him being given access to a phone which would have provided some social interaction. When referred to these observation records, Mr. Howes stated that the forms had not been completed appropriately by the correctional officers. His comments about the forms included, “I am shocked – this is totally against policy”, and “this is totally unacceptable”.

Is the accused entitled to a remedy under s. 24(1) of the Charter?

[37] Section 24(1) of the Charter provides:

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

[38] Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[39] The first issue which must be addressed is whether the accused has established a breach of his Charter rights. I have concluded that there was a breach of Mr. Ugbaja’s Charter rights under s. 7, both in respect to the lack of medical care he received and his confinement in administrative segregation.

[40] With respect to the failure to provide adequate medical care, the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, dealt with a case where it was alleged police used excessive force. In considering whether there was a violation of the defendant’s s. 7 Charter rights, the Court stated at para. 38,

The excessive use of force by the police officers, compounded by the failure of those same officers to alert their superiors to the extent of the injuries they inflicted on Mr. Nasogaluak and their failure to ensure that he received medical attention, posed a very real threat to Mr. Nasogaluak’s security of the person that was not in accordance with any principle of fundamental justice. On that evidence and record, we may assume that there was a breach of s. 7 and that there was no limit prescribed by law justifying such a breach.

[41] While the Court’s decision in the Nasogaluak case was based on the excessive use of force by the police and the Court specifically refrained from deciding whether police officers have an affirmative duty to obtain medical assistance for persons under their care, I have concluded that in the present circumstances that the correctional facility had a positive obligation to obtain medical assistance for Mr. Ugbaja. At the relevant time, Mr. Ugbaja was totally under state control within the correctional system. Section 4(1) of Regulation 778 under the Ministry of Correctional Services Act provides as follows:

There shall be one or more health care professionals in each institution to be responsible for the provision of health care services within the institution and to control and direct medical and surgical treatment of all inmates.

[42] In light of Mr. Ugbaja being under state control at the relevant time and in light of its regulatory duties, I conclude that the correctional system did have an affirmative duty to obtain medical assistance for Mr. Ugbaja.

[43] The correctional system and principally the Central East Correctional Centre was well aware that Mr. Ugbaja needed urgent follow-up care at the fracture clinic. This urgent care was delayed from July 16 until August 24, 2016. While I accept that some of the delay was necessitated by a court attendance in Brampton, it is my view that health issues with respect to Mr. Ugbaja should have been clarified before the transfer to Maplehurst Correctional Centre. It would have been open to Central East Correctional Centre staff to confer with the Ross Memorial Hospital about the level of urgency before the transfer of Mr. Ugbaja back to Maplehurst Correctional Centre. In any event, it does not appear that any steps were taken by the Central East Correctional Centre staff to request a further appointment for Mr. Ugbaja until August 4, 2016, following which arrangements were made for the accused to attend on August 24, representing a further delay of almost three weeks. Maplehurst Correctional Centre had previously made arrangements for Mr. Ugbaja to be seen by a Dr. Bischoff on August 10, 2016. However, this appointment was not kept. By the time Mr. Ugbaja attended at the clinic at Ross Memorial Hospital, the window for an operative repair of the fracture had closed. The net result for Mr. Ugbaja is that he has been left with a serious physical disability.

[44] In summary, therefore, I have concluded that there was a serious s. 7 breach based on the failure of the correctional system to arrange for proper medical care to be provided to Mr. Ugbaja.

[45] Similarly, I have concluded that there was a s. 7 breach of Mr. Ugbaja’s rights in connection with his detention in administrative segregation. The Ministry of Correctional Services Act, Regulation 778, contains mandatory policies concerning segregation. Section 34 of Regulation 778 provides as follows:

34(1) The superintendent may place an inmate in segregation if,

(a) in the opinion of the superintendent, the inmate is in need of protection;

(b) in the opinion of the superintendent, the inmate must be segregated to protect the security of the institution or the safety of other inmates;

(c) the inmate is alleged to have committed a misconduct of a serious nature; or

(d) the inmate requested to be placed in segregation.

(2) When an inmate is placed in segregation under clause (1)(c), the superintendent shall conduct a preliminary review of the inmates case within 24 hours after the inmate has been placed in segregation and where the superintendent is of the opinion that the continued segregation of the inmate is not warranted, the superintendent shall release the inmate from segregation.

(3) The superintendent shall review the circumstances of each inmate who is placed in segregation at least once in every 5 day period to determine whether the continued segregation of the inmate is warranted.

(4) An inmate who is placed in segregation under this section retains, as far as practicable, the same benefits and privileges as if the inmate were not placed in segregation.

(5) Where an inmate is placed in segregation for a continuous period of 30 days, the superintendent shall report to the Minister the reasons for the continued segregation of the inmate.

[46] It is apparent from the evidence in this case that there were numerous Charter breaches with respect to the detention of Mr. Ugbaja in administrative segregation. The 5 day reviews for Mr. Ugbaja were not in fact carried out as is apparent from the evidence of Mr. Howes. Similarly, the documentation with respect to these reviews contained false and misleading information. Similarly, false and misleading information was provided to the Minister in the 30 day and 60 day review documentation. The evidence of Mr. Camman, which I have accepted, indicates that Mr. Ugbaja could have been accommodated on a general population range with crutches. The available documentation suggests that Mr. Ugbaja was being kept in segregation at his own request for his own protection. However, in the 30 day review form which was signed and commented on by Mr. Ugbaja, he says, “my leg is ok now. I would like to go to range please”.

[47] All of this evidence leads me to conclude that Mr. Ugbaja’s confinement in segregation was not lawful and in accordance with the regulations. Further, there was no meaningful review as required under the regulations.

[48] A further aggravating factor is the fact that he was not given yard time in accordance with the usual practice for inmates subjected to administrative segregation.

[49] In summary, therefore, Mr. Ugbaja has established there was a serious s. 7 breach of his rights relating to his detention in administrative segregation.

[50] The next issue which must be addressed in what the appropriate remedy is for the Charter breaches which have been established in this case.

[51] The usual approach is to take these breaches into account at the time of sentencing if the accused is convicted. In the Nasogaluak decision, the Supreme Court of Canada comments that incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise. (See para. 48.) The Court goes on to note that the more egregious the breach, the more attention a court will likely pay to it in determining a fit sentence. In the present case, the Crown’s position is that in the event that a Charter breach is found, the appropriate remedy is to take this into account at the time of sentencing. The defence position, however, is that the Charter breaches in this case are so egregious that a stay of the prosecution is required.

[52] In its decision of R. v. Piccirilli, 2014 SCC 16, the Supreme Court of Canada sets out the legal principles which apply to a stay pursuant to s. 24(1) of the Charter. The Court notes that a stay of proceedings is the most drastic remedy a criminal court can order because it permanently halts the prosecution of an accused. In doing so the truth seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. Nevertheless, the Supreme Court has recognized that there are rare occasions when a stay of proceedings for an abuse of process will be warranted. These cases generally fall into two categories:

1. Where state conduct compromises the fairness of an accused’s trial (the “main” category)

2. Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category)

[53] At para. 32 of the Piccirilli decision, the court sets out the test used to determine whether a stay of proceedings is warranted under either category. The test consists of three requirements:

1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still an uncertainty on whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system against “the interests that society has in having a final decision on the merits.

[54] In the present case there is no reason to believe that the state conduct in question has compromised the fairness of the accused’s trial. Therefore, if a stay is to be granted it can only be granted pursuant to the residual category on the basis that proceeding to trial would undermine the integrity of the judicial process.

[55] With respect to the residual category, the Supreme Court has commented in the Piccirilli decision at para. 35 as follows:

By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[56] At the second stage a balancing is required. On the issue of balancing, the Supreme Court states at para. 41 of their decision,

However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.

[57] The court in the Piccirilli decision also makes it clear that where the residual category is invoked, the prejudice to be considered is the prejudice to the integrity of the justice system and remedies must be directed towards that harm. The goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[58] The court also makes it clear that stays should only be granted rarely and in the “clearest of cases”. It is only where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases that a stay of proceedings will be warranted. In other words, does the advantage of staying the charges against the accused outweigh the interest in having the case decided on its merits.

[59] Finally, where there are multiple instances of misconduct an individual approach to each incident will normally be appropriate. However, at para. 73 of its decision in Piccirilli, the court states,

That said, I should not be taken as suggesting that an individualistic approach should always be followed. Indeed, a judge who is required to balance several instances of misconduct against the societal interest in a trial will almost certainly wish to consider the conduct cumulatively and in its full context. As well, there may be cases where the nature and number of incidents, though individually unworthy of a stay, will require one when considered together.

[60] In considering the state conduct in this case, I am satisfied that it meets the first stage of the test; that is that the state has engaged in conduct that is offensive to societal notions of fair play and decency. The accused’s detention while awaiting trial included serious breaches of his Charter rights by the state. I agree with the comments made by Redge J. in the British Columbia Supreme Court decision in R. v. Haevischer, 2014 BCSC 2172, where he adopts the following principle:

Respect for the individual rights of prisoners will remain illusory unless a mechanism is developed to bring home to the Correctional Service the serious consequences of interfering with the integrity of a sentence by mismanaging it. The administration of a sentence is part of the administration of justice. If the Rule of Law is to be brought within the correctional system with full force, the administration of justice must reclaim control of the legality of a sentence.

[61] I therefore conclude that the incidents which occurred during Mr. Ugbaja’s detention while awaiting trial are issues which involve the integrity of the justice system, even though they took place after the police investigation and his arrest for the charges which he is now facing. The Charter breaches in this case severely offend society’s sense of fair play and decency.

[62] I turn now to the balancing stage. I have considered first the Charter breach relating to the failure to provide access to reasonable medical care. In considering this issue, I have concluded that on its own, this Charter breach would not justify a stay of the proceedings against Mr. Ugbaja. In reaching this conclusion I have considered the fact that the state had no involvement in the original injury. The fracture was solely caused by the actions of Mr. Ugbaja. In addition, the actions of the state were not in any way associated with the original investigation and arrest of the accused. I have also taken into account that the type of fracture suffered by the accused was serious and even with remedial surgery there was a significant risk that the accused would suffer a bad outcome from the fracture. It is also significant in my view that the failure to provide adequate medical care was to some extent caused by unusual circumstances where a number of transfers between provincial correctional centres was necessitated due to court appearances which had been scheduled for the accused. As a result, the evidence does not reflect any intentional conduct on the part of the state to inflict harm on the accused, even though there appear to be some serious systemic issues within the institution about accommodating the medical needs of prisoners. When compared to the serious charges that Mr. Ugbaja is facing, I have concluded that at the balancing stage, the access to medical care issue, on its own, does not justify a stay of proceedings.

[63] The seriousness of the charges being faced by the accused is a very important factor in the balancing process. Mr. Ugbaja faces charges including importation heroin and possession of heroin for the purpose of trafficking. As noted by Justice Woollcombe in R. v. Somerville, [2017] O. J. No. 2787, Canadian Courts have repeatedly commented on the pernicious effects of drugs across society. Heroin is among the worst of these drugs. It is also significant to note that there is a strong case against the accused in this case. If convicted, the accused would likely face a lengthy penitentiary term of imprisonment which reflects the seriousness of the offence and the harm heroin causes in society. A stay of proceedings would forever prevent a trial in a case which it seems likely that the accused would otherwise be found guilty. As noted by the court in the Somerville decision, “there are compelling reasons to permit this matter to go to trial and powerful justifications as to why it is in the public interest for a trial on the merits”.

[64] The issue of access to medical care is not, however, the only issue which this court needs to consider. The other issue relates to Mr. Ugbaja’s confinement in administrative segregation. The evidence from the head of security at Central East Correctional Centre, which I have accepted, supports a conclusion that Mr. Ugbaja’s use of crutches was not a situation which necessarily required him to be in administrative segregation. The use of crutches can be accommodated in the general population. Despite this, Mr. Ugbaja was confined to administrative segregation for a lengthy period of time and to make matters worse, he was not given the usual yard time which inmates in administrative segregation are supposed to receive. Even more egregious is the fact that the administrative protections required under the regulations to protect him from unfair treatment were not afforded to Mr. Ugbaja. Equally egregious is the fact that the documentation relating to his confinement to administrative segregation did not accurately reflect the circumstances of his confinement and contained untruthful and misleading information. The fact that these reviews of Mr. Ugbaja’s detention in administrative segregation were likely conducted while he was sleeping created the misleading impression that the regulations had been adhered to and that meaningful reviews occurred, when in fact they had not.

[65] In R. v. Tran (2010), 2010 ONCA 471, 103 O.R. (3d) 131, the Ontario Court of Appeal ordered a stay pursuant to s. 24(1). This case involved excessive use of force by the police and an attempt by the police to cover-up their actions. In their decision, the Court stated at paras. 95-96,

Furthermore, the gratuitous beating to which Tran was subjected, after turning himself in to the authorities, caused him permanent bodily harm. He was denied prompt medical attention. And the members of the Peel Regional Police involved in this abuse attempted to cover-up their shocking conduct by destroying evidence, lying to fellow officers and perjuring themselves before the court during the voir dire.

Even if the state misconduct had ended there, it would, in my view, certainly be open to a trial judge to exercise his or her discretion and grant a stay on the basis that proceeding with the prosecution in the face of it would undermine the public's confidence in the administration of justice as contemplated in Tobiass.

[66] I recognize, of course, that there are significant differences between this case and the facts in Tran. In this case, the accused’s injury was not caused by any state action, but by Mr. Ugbaja himself. Further there was no evidence that any of the correctional officers lied to others or perjured themselves in court.

[67] Having said that, in this case, correctional staff showed a callous disregard for Mr. Ugbaja’s welfare by failing to arrange for a medical referral, which they knew was urgent, and by failing to allow crutches in his cell. He has been left with a permanent injury as a result. Further, correctional staff placed Mr. Ugbaja in segregation which was not required and prepared documentation which was in critical respects false and misleading and which prima facie gave the impression that the administrative segregation was fully justified in the circumstances. The evidence in this case points to serious systemic issues relating to both medical care and the imposition of administrative segregation at this facility. The person responsible for reviewing the accused’s detention in the facility occupied the 3rd highest level of seniority at the Centre; Mr. Howes reported to the Deputy Superintendent of the Centre who in turn reported to the Superintendent.

[68] Society’s understanding of the harm associated with administrative segregation has increased significantly over the last few years together with a recognition of the need to have sufficient procedural protections to ensure that it is not imposed in a manner inconsistent with the principles of fundamental justice. The accused’s confinement in this case was lengthy, without justification and carried out with total disregard for the principles of fundamental justice.

[69] In my view, after considering the s. 7 breaches in relation to the failure to provide adequate medical care and then considering the s. 7 breaches in relation to Mr. Ugbaja’s detention in administrative segregation, the balance in this case favors a stay of proceedings. The court must distance itself from this kind of egregious conduct. I have therefore concluded that this falls within one of the “clearest of cases” where the granting of a stay is justified. The treatment of Mr. Ugbaja while in custody is so offensive to a sense of fair play and decency that society’s interest in a full trial on the merits must give way to a stay.

Justice M. McKelvey

Released: January 7, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KINGSLEY UGBAJA Applicant/Defendant

REASONS FOR DECISION

Justice M. McKelvey

Released: January 7, 2019

AMENDMENTS

1. Paragraph 34 has been amended by adding the words “stated” and “actual” as follows:

At some point the stated reasons for his detention in segregation changed to in need of protection and at the request of the inmate. However, the actual reasons for the change remain unknown.

2. Paragraph 34 has been amended by replacing the word “were” with “was” as follows:

... The documentation provided to the Ministry at 30 day intervals as required by the regulations was inaccurate and misleading.

3. Paragraph [43] has been amended by replacing the word “over” with “almost” as follows:

… In any event, it does not appear that any steps were taken by the Central East Correctional Centre staff to request a further appointment for Mr. Ugbaja until August 4, 2016, following which arrangements were made for the accused to attend on August 24, representing a further delay of almost three weeks. …

4. Paragraph [57] has been amended by replacing the word “evoked” with “invoked” as follows:

The court in the Piccirilli decision also makes it clear that where the residual category is invoked, the prejudice to be considered is the prejudice to the integrity of the justice system and remedies must be directed towards that harm. …

5. Paragraph [62] has been amended by removing the words “within its institution as follows:

… As a result, the evidence does not reflect any intentional conduct on the part of the state to inflict harm on the accused, even though there appear to be some serious systemic issues within the institution about accommodating the medical needs of prisoners within its institutions. …

6. Paragraph [67] has been amended by replacing the period with a semicolon as follows:

… The person responsible for reviewing the accused’s detention in the facility occupied the 3rd highest level of seniority at the Centre; Mr. Howes reported to the Deputy Superintendent of the Centre who in turn reported to the Superintendent.