ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-1000030-0000 DATE: 20200109

BETWEEN:

HER MAJESTY THE QUEEN and MINISTRY OF THE ATTORNEY GENERAL AND MINISTRY OF THE SOLICITOR GENERAL

– and –

SHAUN ROOTENBERG Applicant

COUNSEL: Mitchell Flagg, for the Crown Claudia Brabazon, Counsel for Non-Party, Ministry of the Attorney General representing Ministry of the Solicitor Bryan Badali, for the Applicant

HEARD: September 12, 2019

BEFORE: B.A. Allen J.

REASONS FOR DECISION

(Decision Reopening Stay of Proceedings Application)

BACKGROUND

[1] This is an application by the applicant, Shaun Rootenberg, to re-open a stay application he brought in relation to the underlying trial that commenced on May 6, 2019.

[2] The applicant was arrested on June 6, 2017 and charged with one count of fraud over $5,000.00 in relation to a complainant, Victoria Smith. The charges in relation to another complainant were withdrawn before this trial commenced.

[3] The procedural background to this application is necessary.

[4] The applicant had a first trial date scheduled in July 2018. He was unrepresented at that time. At the start of the first trial the applicant brought an application for an adjournment. The adjournment hearing proceeded over several days. At the hearing, the applicant requested time to retain counsel and the opportunity to be provided with full disclosure to prepare for trial. During the course of the adjournment hearing, disclosure was still being delivered. An adjournment was granted and a mistrial ordered.

[5] The applicant was detained in custody before his first trial until May 2018, during which time he was regularly strip searched by correctional officers as required by law and institutional policy.

[6] The applicant’s second trial proceeded before me on May 6, 2019. He brought an application to stay the proceedings for abuse of process under s. 7 of the Charter on two bases. He claimed violations under s. 8 of the Charter by the correctional officers for the manner in which the strip searches were conducted and for an abuse of process related to the adjournment hearing by the Assistant Crown Attorney assigned to his first trial (“previous Crown counsel”, not the Assistant Crown Attorney on the current trial).

[7] For the stay application, the applicant delivered a substantial application record and affidavit, a factum and a brief of legal authorities. The Ministry of Correctional Services and Safety (“the Ministry”), not a formal party to the criminal proceedings, filed a notice to dismiss the application in which it set out the grounds for its application. The Ministry sought to dismiss the abuse of process application mainly for lack of a complete evidentiary record on the applicant’s allegations against the Ministry. The current Crown also delivered materials addressing the abuse of process allegation against the Ministry of the Attorney General. After some discussion, the parties and the court agreed that the abuse of process application against the Ministry and the Crown should be determined following the decision on the merits.

[8] The trial continued over a period of ten days. A defence was not called. I delivered my decision on the stay application on July 19, 2019 in Reasons for Judgment that included the decision on the trial proper. In relation to the trial on the merits I found, on the basis of evidence from Crown witnesses, that the Crown had proven beyond a reasonable doubt that the applicant had committed the fraud and I convicted the applicant.

[9] My Reasons for Judgment were set out in two parts. In the first part I dismissed the stay application in relation to both the strip search and disclosure-related claims. Following the oral delivery of my Reasons for Judgment, counsel for the applicant rose and submitted that I had dismissed the abuse of process application against the Ministry in error without a full record being before the court. The Crown was in agreement with the applicant’s counsel. After hearing submissions from the parties, I accepted the parties’ position and indicated I was prepared to reconsider my decision on the stay.

[10] Defence counsel offered as a way forward that consideration be given to reopening the stay application to allow a full record to be put before the court. He suggested he would address my authority to reopen the stay application. I agreed with that proposal as did Crown counsel. I indicated I was prepared to reopen the stay application and the matter was scheduled to return on September 12^th.

[11] In the meantime, on August 19^th, the applicant filed an application for a mistrial rather than providing materials on reopening the application. The applicant submitted that a mistrial was the only reasonable remedy. The applicant was of the view that a reasonable apprehension of bias arose from the dismissal of the application absent a full record.

[12] Crown counsel filed materials in response submitting that reopening the abuse of process application against the Ministry and the Crown is the appropriate remedy which is within the court’s jurisdiction to consider. The application for a mistrial proceeded on September 12, 2019.

[13] On October 18, 2019 I dismissed the mistrial application finding this is not one of “the clearest cases” where the extraordinary remedy of a mistrial is warranted. I agreed with Crown counsel that reopening the stay application was an appropriate remedy that would serve the ends of justice.

THE GROUNDS FOR STAY APPLICATION

[14] The applicant seeks a stay of proceedings on the following grounds:

(a) that the correctional officers breached his right to protection against unreasonable searches under s. 8 of the Charter when they strip searched him regularly while he was in pre-trial custody from June 6, 2017 to January 18, 2018 and from February 23, 2018 to May 14, 2018.

(b) that previous Crown counsel conducted herself in an egregiously unfair manner during the adjournment hearing by refusing to consent to an adjournment of the trial under circumstances where the applicant was self-represented attempting to make arrangements for a lawyer and where he was receiving late disclosure even as the adjournment hearing was in progress.

[15] The applicant asserts that the two grounds separately and in combination rise to the level of warranting a stay of proceedings.

THE EVIDENCE

The Witnesses

[16] The applicant testified on the application. The Crown called Travis Williamson, Deputy Superintendent of Security (“Officer Williamson”) at the Toronto South Detention Centre (“the TSDC”), to give evidence about the policies and practices in relation to strip searches of inmates. At the relevant time of the applicant’s detention he was Security Manager of the TSDC.

Violation of Rights Due to Strip Searches

Deputy Superintendent Williamson’s Evidence

[17] The applicant was incarcerated at the TSDC from June 6, 2017, the day he was arrested, to January 18, 2018, when he was briefly released. From February 23, 2018 to May 14, 2018 he was incarcerated at Toronto East Detention Centre.

[18] Officer Williamson testified that Ontario’s correctional centres are governed by the Ministry of Correctional Services Act, R.S.O. 1990, c. M22 (“the Act”) and regulations. Section 23.1(1)(b) of the Act and regulation 778, s. 24(1) authorize the superintendent of the correctional facility to conduct strip searches of inmates and other persons in a prescribed manner, not to be conducted under circumstances that would embarrass or humiliate the subject. Inmates were to be stripped naked, their clothes inspected and returned to them. At least two correctional officers were to be involved in the search.

[19] There are also policies and procedures that govern the institutions. Officer Williamson testified that the applicant was housed in the direct supervision (minimum security) area. He explained that Ministry policies are set down in the Institutional Services Policy and Procedural Manual (“the Policy Manual”) and that the TSDC’s own policies and procedures are contained in “Standing Orders”.

[20] Officer Williamson testified about the purpose for strip searches. He explained that when offenders are first admitted to the facility, officers strip search them to examine for visible injuries and insect infestation and to search body orifices for drugs and weapons. He also confirmed the applicant’s evidence that inmates are strip searched before and after court attendances for similar reasons. He confirmed that according to policy, strip searches require an inmate to be totally naked. Each piece of clothing is not returned to the inmate as the inmate is searched. The clothing is inspected and then returned to the inmate.

[21] Officer Williamson referred to complaints and requests the applicant made while at the TSDC. The facility provides forms that inmates may complete called Inmate Requests and Inmate Statements. On three different dates in June and July 2017, the applicant submitted written requests on two occasions to see a social worker, to see a rabbi/chaplain, to work in the laundry or kitchen and to be able to use plastic spoons rather that sporks. The spoons he requested were kosher. Officer Williamson testified that only direct supervision inmates were permitted to work in the kitchen and he explained that inmates volunteered to do this work. It was not mandatory.

[22] In August and October 2017, the applicant requested face-to-face visits, three clothing exchanges and complained that he was not in a timely manner receiving the newspapers he had paid for. He also re-submitted visit requests asking to meet a police officer on his case.

[23] Requests were approved, although sometimes not in a timely fashion, except for the request to use kosher spoons. That request was denied. Officer Williamson confirmed the applicant’s evidence that inmates who worked in the kitchen were required to be strip searched before and after each shift. He explained that the inmates had to be searched for contraband and kitchen utensils in the interests of safety and security for the inmates and staff.

[24] Where strip searches are conducted there are two parallel rows of stalls facing each other in the Admissions and Discharge area (“the A/D area”). Defence counsel questioned Officer Williamson about the raised platform where staff would be situated in front of and above the strip search area. Defence counsel suggested that the staff’s view of the strip search stalls from the platform would be unobstructed. Officer Williamson disagreed saying that there were often people passing through the area, males and females, in the course of their normal duties. But he accepted that at times the view would be unobstructed.

[25] The nurse’s station which has windows facing the stalls, where nursing staff would be stationed, is also in the area. There is also a desk in front of the strip search stalls and Officer Williamson agreed there would be staff at the desk during the searches. In answer to a question by defence counsel about the consequence of refusing a strip search, he confirmed the applicant’s evidence that an inmate would be sent to segregation if he did not want to comply.

[26] On re-examination by Ministry counsel, Officer Williamson testified that segregation would not in all cases be the first option when an inmate refused a strip search. He explained that officers would first attempt to de-escalate the situation and place the inmate in a cell alone until he settles down rather than immediately sending him to segregation.

[27] Defence counsel questioned Officer Williamson about privacy during strip searches. He testified that there is an element of privacy in the construction of the stalls. The stalls have chest-level walls on three sides. Defence counsel suggested that were the walls to be built up to the ceiling, rather than at chest-level, this could improve privacy.

[28] In answer to Ministry counsel’s question about changes to the construction of the stalls to promote more privacy, Officer Williamson testified that there would be emergency concerns if the walls to the stalls were built up because this would impede officers’ view of the inmates. The fear, he explained, is that an inmate might self-harm with contraband hidden on his person.

[29] Defence counsel asked about privacy in relation to the use of female officers in strip searches. Counsel suggested that it is degrading to male inmates to have women officers present. Officer Williamson explained that “a correctional officer is a correctional officer” and, whether male or female, they are required to undertake the same tasks. He pointed to equity policy concerns which require, during intake searches and searches of inmate cells, that irrespective of the gender of the officer, all officers are required to do their jobs. He explained that the female officers would only be involved up to the point the inmate was stripped down to his underwear. An exception holds for transgendered inmates where the inmate can ask for an officer of the gender they prefer.

[30] In answer to questions from defence counsel on complaints about strip searches, Officer Williamson indicated he is not aware of anyone making that type of complaint. Nor was he aware of anyone except transgendered inmates being specially accommodated in regard to strip searches.

The Applicant’s Evidence

On the Strip Searches

[31] As noted above, the applicant was incarcerated at the TSDC from June 6, 2017 to January 18, 2018. He raises the Charter violations in his application in relation to the time in custody at the TSDC.

[32] The applicant has previously been convicted of fraud and other crimes of dishonesty for which he was incarcerated at federal institutions. He has no criminal antecedents for violent or drug-related crimes.

[33] The applicant testified about being stripped searched on initial admission to the TSDC and then regularly throughout his stay there before and after court attendances, before and after meetings with visitors, during cell searches and before and after his work detail in the kitchen.

[34] The applicant explained that before and after every court attendance, strip searches were conducted in the A/D area. After returning from court, the inmates were put through a scanner and then strip searched. He described the area. He described being strip searched in a stall that was one of 12 adjoined stalls situated in a row facing another row of stalls. He confirmed Officer Williamson’s evidence that the walls of the stalls are chest high on three sides and open in the front. He said three or four, always male, correctional officers would oversee the strip searches which involved him taking off all of his clothes.

[35] The applicant said strip searches would last about seven minutes. The applicant estimated that his naked body would be visible to between 20 and 30 persons on each occasion. He testified he was required to bend down, grab his toes and spread his buttocks cheeks. Several inmates who could observe the other inmates in the opposite bank of stalls would be strip searched at the same time. After he removed his clothes an officer would shake each piece of clothing before he was allowed to put them back on.

[36] In the A/D area while strip searches were being conducted staff would be present or passing by in the course of their duties. He spoke of the raised platform located in the area where several staff were stationed who could observe the strip searches. He said at least one female would be among the staff on the platform and could see into the stalls. Behind the stalls were a row of holding cells where some inmates were lodged and a nursing station is located on a wall at right angles to the stalls. He said nurses were among the staff that would pass through the strip search area.

[37] The applicant also described range-wide searches of inmates’ cells for weapons and drugs. The inmates, the cells and the common areas of the range were searched. He described one occasion when two male officers entered the cell he shared with another inmate. A female officer remained outside the cell. He was strip searched in a shower stall within the view of other inmates on the range and in front of his cellmate. After the search, he and the other inmates were taken in boxer shorts on the range escorted by the female officer to a room for about 15 minutes until the range-wide search was complete.

[38] The applicant acknowledged Officer Williamson’s evidence that eligible inmates could also choose to do a work detail either in the laundry or the kitchen. The applicant chose the kitchen where he worked from 5 a.m. to 12 p.m., six days a week. There were benefits to working in the kitchen. The applicant could move off of his assigned range where circumstances with inmates were more dangerous and into a safer range. There was more freedom which allowed him to work through lockdowns and have more access to showers. As well, cell doors would be left open.

[39] The applicant testified he was strip searched in the A/D area before and after each kitchen shift in the same manner as he was searched before and after attendances to court. He mentioned that on one search he saw a female in civilian clothes, who did not appear to be staff, in the area of the stalls and who he thought could have viewed him being strip searched. Officer Williamson explained that plain clothed trainees would sometimes be in the area.

[40] The Applicant described another occasion where strip searches were conducted. In advance of and after face-to-face visits with professionals such as a doctor or lawyer or other visitors, he would also be strip searched.

[41] The applicant testified he felt completely dehumanized by the constant strip searches. He said he felt like “he was being herded like an animal”.

[42] Counsel for the Ministry cross-examined the applicant about his many inmate statements and requests. She suggested to the applicant that he did not hesitate to complain when he was not satisfied with something or required something. The applicant agreed saying that he would always make requests and follow up on anything he was entitled to.

[43] The applicant testified in-chief that he never complained about strip searches because he feared the consequences of doing so. Counsel for the Ministry questioned the applicant about evidence he gave in-chief, asking him to explain the consequences of refusing to be strip searched.

[44] The applicant explained that he could lose his entitlement to work on kitchen duty. He described an instance when he asked a correctional officer why he had to be strip searched for kitchen duty. The applicant said the officer told him he could go down to segregation if he did not like it. From this he said he came to understand the negative consequences of complaining about something he could not change.

[45] In answer to a question by counsel for the Ministry, the applicant agreed that he had not put the exchange with the officer about segregation in his affidavit. Ministry counsel put to the applicant that he did not complain about the officer’s warning in response to his query about the strip searches and further suggested that the exchange with the officer was an important piece of evidence he ought to have included in his affidavit. The implication here is that the exchange never occurred. The applicant did not accept or deny that suggestion.

[46] The applicant explained that another consequence of complaining about strip searches is that staff would view him in a bad light as a troublemaker. Counsel for the Ministry suggested to the applicant that he did not seem to be concerned about what staff thought of him given the many inmate statements and requests he made and when he escalated and repeated his complaint about not getting face-to-face consultations with a police officer and a correctional officer. The applicant responded that he was desperate to receive disclosure and he was compelled to seek visitations with the officers.

[47] Counsel for the Ministry also put to the applicant that he was at liberty to complain about the repeated strip searches to any judge he appeared before on the many occasions he attended court; but he did not. The applicant responded that he would not complain about something he thought he could not change.

[48] The applicant agreed with counsel for the Ministry that he volunteered to work in the kitchen and that he did not have to. Counsel suggested that he was aware he would be strip searched before and after each shift, meaning he would be subjected to more strip searches than if he had not elected to do work in the kitchen. The applicant agreed and said in making his decision he weighed the costs against the benefits of working in the kitchen and decided the benefits of the kitchen job outweighed the cost of undergoing the many extra strip searches.

[49] The applicant agreed with counsel for the Ministry that there are utensils and other items in the kitchen that could be secreted out of the kitchen and could be harmful to inmates and staff which made it critical that kitchen workers be searched. In spite of understanding the concerns behind strip searches, the applicant insisted, “I don’t know why I was ever strip searched, why they strip searched me at all.” He stressed that he was not violent, was not involved with drugs or guns and had never been written up for any misconduct while in custody.

[50] Counsel for the Crown asked the applicant if he had read the Manual and the Standing Orders to which he responded that he did. He was asked whether he found that the TSDC had followed the proper policy and procedures on strip searches. The applicant indicated that he believed the facility did follow prescribed policy and procedure. In particular, the applicant agreed that the facility complied with the policy that there be two officers present and that female officers were permitted to be present up to the inmate stripping to his underwear. The applicant agreed with counsel for the Ministry that there are violent inmates and those with mental health problems who could pose dangers for other inmates and staff and for that reason strip searches are necessary for safety and security reasons.

On the Conduct of the Previous Crown Attorney at the Adjournment Hearing

Applicant’s Evidence

[51] As noted earlier, the applicant continued to receive late disclosure during the seven days the adjournment hearing was in progress. Outstanding disclosure included police officers’ notes and email communications. The applicant received hundreds of pages of police notes and emails on discs. At a judicial pre-trial before the Ontario Court of Justice, the judge asked the applicant to put his disclosure requests in writing to previous Crown counsel which the applicant did through dictating a letter to his sister which was conveyed to previous Crown counsel. Not until October 2017 did the applicant receive the disclosure emails which the applicant testified were about 1,500 in number.

[52] Further, as noted earlier, the applicant was unrepresented by counsel, his Legal Aid Ontario application and appeals being denied and his Rowbotham application having been denied on June 25, 2018. At the adjournment hearing the applicant informed the court and previous Crown counsel that he was in the process of obtaining community funding to retain counsel.

[53] Previous Crown counsel did not consent to the adjournment. The applicant testified this left him in uncertainty for the duration of the adjournment hearing. He had elected a jury trial and he was uncertain each day whether he would have to prepare for a jury trial unrepresented. He had received some late disclosure during pre-trial proceedings and did not receive other disclosure until the eve of trial.

[54] Current Crown counsel asked for clarification on the applicant’s claim against previous Crown counsel. The applicant posited that his complaint centres on previous Crown counsel’s refusal to consent to an adjournment which in the circumstances he viewed as abusive and unfair conduct.

[55] Current Crown counsel put to the applicant in cross-examination that he was granted an adjournment and was able to retain counsel so he and his counsel had ample opportunity between July 2018 and May 2019 to review the 1,500 emails before trial. The applicant agreed. The Crown further put to the applicant that none of the disclosure at issue was actually used at trial. Much of the disclosure pertained to the charges arising from the case involving the other complainant for which charges against him were withdrawn. The applicant agreed with the Crown’s presentation of the circumstances.

THE LAW

Stay of Proceedings and Abuse of Process

[56] Section 24(1) of the Charter provides that a person whose Charter rights have been violated may apply to “a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. Underlying this protection is the concern that putting a person on trial in the face of rights violations would result in an “abuse of process” and violate the “principles of fundamental justice” under s. 7 of the Charter.

[57] A stay of proceedings for abuse of process is a remedy available under ss. 24(1) and 7 of the Charter. A foundational principle underlying the availability of a stay is the recognition that it is an extraordinary remedy only to be granted in the “clearest of cases”: [R. v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, at para 68, (S.C.C.)].

[58] The Supreme Court of Canada in R. v. Babos identifies two types of state conduct that may warrant a stay. The first is the type of conduct that compromises the fairness of an accused’s trial (the “main” category). The second is the type of conduct that does not threaten trial fairness but risks undermining the integrity of the judicial process (the “residual” category): [R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 3, (S.C.C.)].

[59] Regardless of whether the abuse causes prejudice to the accused because of an unfair trial or harm to the integrity of the justice system, a stay of proceedings will only be appropriate where the following criteria are met:

(a) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome,

(b) there must be no alternative remedy capable of redressing the prejudice, and

(c) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.

[R. v. Babos, at para. 32 and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 54, (S.C.C.)]

[60] The first criterion reflects the fact that a stay of proceedings is a prospective rather than a retrospective remedy. It does not merely compensate a wrong from the past but has as an objective to prevent the perpetuation of a wrong into the future. It is the type of wrong that will continue to adversely affect the parties and the community at large in the future: [R. v. Regan, para. 54].

[61] When the residual category is invoked:

a) The first stage of the test is met when it is established that the state has engaged in conduct that is offensive to societal notions of fair play and decency, and that proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system.

b) At the second stage of the test, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

c) Finally, the court must decide whether staying the proceedings or having a trial despite the impugned conduct better protects the integrity of the justice system. This inquiry requires a balancing exercise. The court must consider such factors 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.

[R. v. Babos, at paras. 38-40]

THE PARTIES’ POSITIONS

Applicant’s Position

Strip Searches

[62] The applicant advances his abuse of process application on the strip searches under the residual category asserting. At the outset, the applicant defined the scope of his claim of violations under s. 8 of the Charter. He did so by explaining what his application is not about.

[63] The applicant explained that he does not dispute that the correctional officers are entitled to conduct strip searches on the inmates. He does not dispute that they have a reasonable basis to do so. He does not question the constitutionality of the Ministry’s policy that governs correctional officers’ authority to conduct strip searches

[64] What the applicant does contend is that his s. 8 rights were violated by the manner in which the strip searches were conducted. The applicant relies on case authority that sets down the parameters of a reasonable search. A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable: [R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 24, (S.C.C.)].

[65] The applicant questions the necessity of conducting the searches in settings where his privacy was not protected, not solely but especially, in circumstances where female correctional officers were present.

[66] The applicant takes the position that the manner of search was not necessary since there is nothing in the legislation, Manual or Standing Orders that mandates that the correctional officers search inmates in settings with such limited privacy. The applicant argues that protecting Charter rights comes with a cost and if there is a cost that comes with correctional facilities becoming Charter-compliant, that is a cost that must be borne by the state.

[67] The applicant submits that contrary to the regulations, correctional officers disregarded their obligation to ensure that he was not subjected to humiliation and embarrassment.

[68] The cases the applicant principally relies on involve developments in the law governing police searches incident to an arrest and strip searches in police stations following an arrest. He does, however, cite two cases involving searches in correctional institutions. One case is a decision of the Ontario Court of Justice and the other a decision by the British Columbia Provincial Court. Both cases found strip searches of inmates to be unreasonable violations of the inmates’ rights. It is important to note that the facts of those cases are quite distinguishable from the case at hand and moreover not binding on this court: [R. v. Magaya, 2014 ONCJ 434 (Ont. C.J.) and R. v. Douglas, 2003 BCPC 392 (B.C.P.C.)]

[69] The applicant also relies on R. v. Golden, the longstanding benchmark decision on strip searches of persons in police custody. The specific focus of the Supreme Court of Canada in that case is on searches incident to arrest and strip searches in police stations. While the Court makes a clear distinction in its ruling between those types of searches and strip searches in correctional institutions, the applicant argues the questions R. v. Golden raises in paragraph 101 are applicable to strip searches of inmates in custody: [R. v. Golden, 2001 SCC 83, 2001 S.C.C 83, at paras. 96, 97 and 101, (S.C.C.)].

[70] It is clear that the questions in paragraph 101 concern police and a police station context. The questions address concerns about health and safety, the number of officers involved in searches, the involvement of supervisory staff and officers of the opposite gender, privacy and speed with which a search is completed, the state of undress of inmate, among other concerns.

[71] The applicant acknowledges the distinction R. v. Golden makes between correctional institution strip searches and police strip searches. The applicant also accepts the Supreme Court’s recognition of a broader mandate to search inmates in an institutional setting because of the greater safety concerns in longer term custody situations. The applicant, however, argues that in spite of the wider authority correctional institutions have in conducting strip searches, institutions should not be treated as Charter-free zones. The applicant asks the court to recognize that there is still an obligation on the state in the institutional context to ensure that the manner of searches is reasonable. The applicant contends that in the case at hand the manner of the strip searches at the TSDC exceeded the broader mandate in not reasonably protecting the applicant’s dignity and privacy.

The Adjournment Hearing

[72] The applicant also claims under the residual category abuse of process in relation to the conduct of previous Crown counsel at the adjournment hearing. The applicant clarified that the stay is not being sought for late disclosure.

[73] The applicant points to previous Crown counsel’s failure to acknowledge that he was without legal representation on the eve of trial and, at the time of the hearing, attempting to arrange to retain counsel. Disclosure was delayed. Disclosure was still being delivered to the applicant over the several days of the adjournment hearing. He was handed a large quantity of disclosure at the last minute.

[74] Previous Crown counsel refused to consent to an adjournment. The applicant argues pursuant to the R. v. Babos factors that the state has engaged in conduct that is offensive to societal notions of fair play and decency, and that to proceed with a trial in the face of that type of conduct would harm the integrity of the justice system. In the applicant’s view no remedy short of a stay will redress the wrong caused by the unfair conduct of previous Crown counsel.

The Positions of the Ministry and the Crown

The Strip Searches

[75] The Ministry and the Crown (“the respondents”) share similar positions in response to the applicant’s claims against the Ministry on the strip searches. Counsel for the Ministry makes a further argument on mootness of the applicant’s s. 8 strip search claim. For the sake of simplicity, I will address their common submissions on strip searches jointly.

[76] There are two threshold considerations.

[77] The respondents point out an issue raised by the retrospectivity of the wrongs claimed by the applicant.

[78] In the respondents’ view, the applicant’s claim does not satisfy the legal tests to obtain a stay under the residual category. They point to the fact the applicant is no longer in custody. The applicant was released about one year before this, the second trial. R. v. Babos provides that the residual category applies prospectively, not retrospectively. To qualify for a stay under the residual category the alleged violation must result in prejudice to the integrity of the justice system that is “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.”

[79] Assuming for the sake of the applicant’s claim that the manner of the search was unreasonable, the respondents argue that the applicant is looking retrospectively at state conduct that came to an end before trial and cannot be regarded as having any ongoing effect on the integrity of the justice system through the trial or its outcome.

[80] As the respondents point out, a stay of proceedings does not merely compensate a wrong from the past but has as an objective to prevent the perpetuation of a wrong into the future. It is the type of wrong that will continue to adversely affect the parties and the community at large in the future. It follows, in the respondents’ view, that the manner of the strip searches conducted on the applicant at the TSDC does not meet the requirements of the residual category.

[81] Counsel for the Ministry argues that the application for a stay under s. 8 of the Charter is moot by reason that he seeks to redress wrongs no longer at play. In support of this view counsel refers to a concern raised by the Supreme Court of Canada which speaks to the reluctance of courts to decide moot Charter challenges. In Phillips v. Nova Scotia, the Supreme Court posits:

The policy which dictates restraint in constitutional cases is sound. It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen...

This practice applies, a fortiori, when the substratum on which the case was based ceases to exist. The court is then required to opine on a hypothetical situation and not a real controversy. This engages the doctrine of mootness pursuant to which the court will decline to exercise its discretion to rule on moot questions unless, inter alia, there is a pressing issue which will be evasive of review.

[Phillips. v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), (1995) 1995 CanLII 86 (SCC), 2 S. C. R. 97, paras. 9 and 12, (S. C. C.)]

[82] The respondents argue in the alternative the merits of the application.

[83] The respondents argue that the strip searches were in compliance with the legislation, Policy Manual and Standing Orders and as such were conducted in a reasonable manner. They refer to Officer Williamson’s evidence that inmates cannot be allowed complete privacy due to legitimate safety concerns related to the inmate himself, other inmates and staff. They argue the frequency with which strip searches are conducted before and after attendances at court, during range searches, before and after face-to-face visits and before and after kitchen shifts were reasonably necessary for safety and security reasons.

[84] The respondents’ view is that the safety and security concerns related to prison institutions require policies and procedures that differ from those that govern police searches which are conducted during short-term detentions of arrestées at police stations or during searches incident to arrests. The respondents’ perspective on the questions raised in R. v. Golden is that the inquiries are directed toward assessing the reasonableness of searches of persons in police stations and are not intended to apply to searches in a prison context. The questions clearly reference police authority and the context of a police station.

[85] On the question of women being present for strip searches, the applicant does not claim that women strip searched him. He is concerned with the presence of women in the A/D area during his strip searches and of a woman officer walking him to a cell while he was in his boxer shorts. The respondents cited a court case involving strip searches in a federal institution in which the Supreme Court of Canada speaks of the expectation of privacy and the involvement of women correctional officers in searches:

Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and the prisoner cannot thus hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play; nor is s. 7 implicated:

[Weatherall v. Canada, (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S. C. R. 872, at para 5, (S. C. C.)]

[86] Counsel for the Ministry makes the further argument that there is a lack of intersectionality between the applicant’s complaints about the manner and frequency of strip searches at the TSDC and his rights as a defendant in a criminal trial.

[87] Counsel for the Ministry cites by distinction a recent case where, in exceptional circumstances, the rights of the accused at trial were impacted by the conditions of his incarceration. In that case the defence tendered uncontested evidence that the accused’s memory had been damaged due to his confinement in segregation before his trial for homicide. The poor state of his memory rendered him unable to assist in his own defence. That was determined to be an exceptional circumstance where a stay of proceedings under s. 24(1) was appropriate: [R. v. Capay, [2019] O. J. No. 1025 (Ont. S. C. J.)].

[88] In the respondents’ view the strip searches were done is accordance with prescribed policy and procedure in consideration of safety and security concerns. What follows, in the respondents’ view is, since there is no expectation of privacy, the searches were not conducted in an unreasonable manner. The case at hand is not one of those exceptional cases.

The Crown’s Position on the Adjournment Hearing

[89] Crown counsel does not dispute that Crown conduct and tactics are reviewable under the abuse of process framework. Crown counsel takes the position that previous Crown counsel did not operate in such an egregious manner as to cause ongoing harm to the integrity of the criminal justice system. Crown counsel cites authority for the proposition that an application for a stay of proceedings for breach of a Crown’s disclosure obligations will only result in a stay of proceedings when the applicant can demonstrate that he suffered irreparable prejudice to their right to make full answer and defence: [R. v. Kift, 2016 ONCA 374, at paras. 5-8, (Ont. C. A.)]

[90] Crown counsel does not dispute that the applicant received disclosure during the adjournment hearing and days before the first trial. He submits however that the late disclosure was inadvertent. It did not occur as a result of bad faith by previous Crown counsel. Crown counsel points out that the transcripts of the adjournment hearing and other proceedings show that the officer-in-charge had mistakenly believed he had already disclosed the copies of both his typed and handwritten notes. The officer had also failed to disclose to previous Crown counsel numerous email communications, unknown to previous Crown counsel. It appeared from the adjournment hearing that the officer was aware that previous Crown also thought the material in question had been disclosed.

[91] On the self-representation issue, Crown counsel again refers to the transcripts of previous proceedings where it appears from remarks by judges that the applicant was quite adept at understanding the law and court procedure and making submissions on his own behalf. One such judge commented that the applicant actually acquitted himself better than some defence counsel who have appeared before him. I think the suggestion here is that the applicant did not require an adjournment to retain counsel.

[92] Crown counsel argues that ultimately the applicant suffered no prejudice. He obtained the adjournment he sought which allowed him to retain counsel and permitted him and his lawyer time to prepare for trial. Further, the disclosure he sought as it turned out was not utilized at trial as it was not relevant to trial issues.

A Stay as the Appropriate Remedy

[93] Both Crown counsel and counsel for the Ministry argue this is not one of the clearest of cases where a stay is the only appropriate remedy. Counsel for the Ministry advanced a number of alternative remedies within the detention system, in the criminal justice system and in the civil proceedings context.

[94] Counsel for the Ministry argues that the applicant might have reduced the impact of the strip searches in terms of numbers if he were to have terminated his voluntary work in the kitchen. He worked there six days a week and would be strip searched twice a day, before and after a shift, over the months he was in custody. Counsel also put to the applicant, and he agreed, that among his many institutional complaints he did not make a complaint about the lack of privacy during the searches when this is a route he might have taken. As noted above, the applicant did present reasons why he did not take that route.

[95] Counsel for the Ministry further contends in the context of the criminal justice system, that any violations that might have arisen in relation to the adjournment issue or strip searches would best be remedied in the determination of a fit sentence. Counsel cited cases where Charter violations by corrections and police authorities were raised by accused as a ground to obtain reductions in sentence: [R. v. Donnelly, 2016 ONCA 988, at para. 158, (Ont. C.A.) and R. v. Nasogaluak, 2010 SCC 6, at para. 5, (S.C.C.)].

[96] Counsel also suggested that the applicant might have petitioned the court through a writ of habeas corpus to seek an order that he be brought before the court for a determination whether the custodian of the TSDC is acting beyond their authority in the manner in which strip searches were conducted. Counsel further suggested that the applicant might also have raised at a bail review his concerns about his treatment during strip searches as an argument for release.

[97] Counsel for the Ministry also argued that in addition to internal detention centre remedies and other criminal remedies the applicant could pursue the civil litigation and administrative tribunal routes. Counsel suggested it is open to the applicant to make a claim for civil damages and other relief through the courts or for remedies available through a claim before the Ontario Human Rights Tribunal.

[98] Counsel for the Ministry cited a recent decision of this court for the proposition that grievances about policy and procedural matters at correctional facilities are not best placed before criminal courts:

A lack of a system for classifying remand inmates, the dearth of recreational facilities and educational programs at the TSDC and other detention centres in Ontario, the constant lockdowns, strip searches, etc. have all formed part of the evidentiary record to date. To now spend more time learning about the historic governmental decisions leading to the planning and construction of the TSDC, not to mention the construction of super-jails in Lindsay and Penetanguishene where Mr. Charley has never set foot, will be a lengthy distraction from the task at hand.

To be clear, it is my view that the broad policy issues raised in the Application are very important issues that somewhere and at some time deserve to be canvassed. But the present criminal proceeding is not the time or place.

[R. v. Charley, [2018] O. J. No 935, [QL], at paras. 50-51, (Ont. S.C.J.); Ontario Court of Appeal in R. v. Charley, 2019 ONCA 726, 2019 CarswellOnt 14753 dealt with cap on 11(b) delay and did not disturb the above observation by Morgan, J.]

[99] The applicant submitted in response that he is not seeking declaratory relief or a remedy in damages. He is seeking a traditional remedy under criminal law, a stay of proceedings for egregious violations of his constitutional rights. That is the only remedy in the applicant’s view capable of redressing the abuses of process and violations of the principles of fundamental justice protected under ss. 7 and 8 of the Charter.

[100] In the applicant’s view previous Crown counsel’s conduct in relation to the adjournment application and the institution’s conduct in strip searches were sufficiently egregious abuses of process that it would cause a reasonably informed observer to lose faith in the fairness of the criminal justice system and its obligation to uphold Charter protections. For this, the applicant submits, the court must dissociate itself from the conduct by ordering a stay as the only remedy strong enough to reflect the court’s disapproval.

ANALYSIS

Scope of Decision

[101] After careful consideration of all parties’ able arguments, I have arrived at the conclusion that this is not one of the clearest cases where a stay of proceedings is the appropriate remedy. This is not to say that I do not recognize that there could be improvements in the way strip searches are conducted at the TSDC or that previous Crown counsel might have otherwise exercised her discretion. I have reached my determination from a number of vantage points.

[102] There are two threshold barriers to the applicant succeeding on this application. The first regards the doctrine of mootness. The second concerns whether on its face the application meets the tests for a stay of proceedings under the residual category.

Mootness

[103] On the mootness issue, the Supreme Court of Canada has made clear its view that courts should avoid constitutional pronouncements in the area of the Charter of Rights when unnecessary. I repeat a portion of the above-cited passage from Phillips v. Nova Scotia has stated:

This court has said on numerous occasions that it should not decide issues of law that are not necessary to a resolution of an appeal. This is particularly true with respect to constitutional issues and the principle applies with even greater emphasis in circumstances in which the foundation upon which the proceedings were launched has ceased to exist.

[Phillips v. Nova Scotia, at para. 6]

[104] In the case of the claim against the correctional facility the strip searches were no longer a live concern at the time of release about a year before the trial commenced. Neither is there a basis upon which one could say there is an inter-connectivity between his conditions at the TSDC and his position as a defendant in the criminal trial.

[105] In the case of the conduct of previous Crown counsel at the adjournment hearing, the applicant ultimately obtained the adjournment previous Crown counsel had opposed. He had the opportunity to retain counsel and he received the late disclosure he sought which in the end was not utilized at trial.

[106] The rationale for the policy of restraint in hearing moot cases is based in the considering fairness in the adversarial system and in concerns for judicial economy. In the appropriate case, the court may exercise its discretion to hear a moot case when collateral consequences justify a decision on the merits or when the special circumstances of the case make it worthwhile to apply scarce judicial resources to its resolution. The concern with safeguarding judicial resources is somewhat assuaged in cases that have become moot if the court’s decision will have some practical effect on the rights of the parties. Such situations for example may include cases where the decision will have a practical effect on the rights of the parties: [R. v. Borowski, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at paras. 34 and 35, (S.C.C.)].

[107] In the case before me, I decided to reopen my decision on the stay of proceedings because of the practical effect on the rights of the parties, in order to allow a full record before the court, to allow viva voce evidence. I think in this circumstance fairness behooved me to proceed accordingly and determine the applicant’s Charter claims on their merits.

Threshold Failure to Satisfy Residual Category Test

[108] I agree with the respondents’ position that the applicant’s claims of state violation of his rights in relation to his treatment in the correctional facility and in relation to the adjournment hearing do not meet the tests for the residual category.

[109] It is evident on the face of things that the applicant’s claims are not captured by the residual category. The applicant seeks to enlist the residual category retrospectively, not prospectively, to two areas of state conduct that occurred in the past, that were not in play at the time of trial or through the trial and its outcome. I find on a prima facie basis that the applicant has not discharged his obligation to show conduct by the state that prejudiced the integrity of the justice system that is “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.”

[110] However, in the circumstances reopening the stay application and for completeness, I will move beyond the threshold issue and address the applicant’s claims on the merits.

On the Merits

The Strip Searches

[111] The applicant does not contend that the correctional officers that searched him failed to follow the prescribed policies and procedures. He does not dispute that the correctional officers are entitled to conduct strip searches on the inmates. He does not dispute that the officers have a reasonable basis to do so. The applicant does not question the constitutionality of the Ministry’s policy that governs correctional officers’ authority to conduct strip searches. The applicant challenges the manner of the strip searches.

[112] On the frequency of the searches, I do not find it lies with the applicant to complain about this when he made a choice to work in the kitchen aware that this choice would require more strip searches. In taking the position in the kitchen, he signed up for at least two additional strip searches a day, six days a week over the several months he was in custody. The applicant weighed the benefits of more liberty and security on kitchen duty against having more of the treatment he found humiliating and embarrassing. And he chose the latter. He was not forced to have the many, perhaps even the majority, of the strip searches he underwent while in custody.

[113] The applicant’s main concern is the lack of privacy during strip searches and the presence of female officers. There is no question that strip searches in any situation are degrading and embarrassing and particularly so in the presence of the opposite gender and where there is the presence of other staff in the area of the strip search stalls. The applicant points to the structure of the strip search stalls which have three walls that expose an inmate’s body from the chest up and are open in the front. The applicant has not claimed that female officers conducted strip searches. He complains about their presence while male officers conduct the searches.

[114] The other side of the issue is expressed through the evidence of Officer Williamson. He stressed the health, security and safety concerns that counterbalance the privacy interests of inmates. Secreted contraband like firearms, other weapons and drugs are an ever-present threat in correctional facilities. Correctional facilities house some of the nation’s most dangerous people and this cannot be underestimated in balancing inmates’ rights.

[115] I find it is not unreasonable that inmates are subjected to searches of their cells and their persons. I accept Officer Williamson’s evidence about the gender equity considerations and the policy that requires correctional officers, no matter what gender, being required to undertake the tasks of their jobs, appropriately stopping short of female officers conducting strip searches on male inmates.

[116] I find safety and security outweighs the interest in privacy and reduces an inmate’s expectation of privacy.

[117] Here I rely on the Supreme Court of Canada case cited above by counsel for the Ministry:

A substantially reduced level of privacy is present in this setting and the prisoner cannot thus hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play; nor is s. 7 implicated.

[Weatherall v. Canada, at para. 5]

[118] Although that decision involves a federal institution, I find the underlying principles apply to provincial correctional institutions like the TSDC.

[119] I find in the circumstances that the strip searches were conducted in compliance with the legislation and the policies and procedures set down in the Manual and Standing Orders. The manner of searches rightly accords with the paramount concern for safety and security of everyone in the facility and the public. This is not to say that the circumstances at TSDC are perfect. There is most assuredly much room for improvement. I agree with the observations made in R. v. Charley that the matter of strip searches is a very important issue “that somewhere and at some time deserves to be canvassed. But the present criminal proceeding is not the time or place”: [R. v. Charley, at para. 51].

[120] I find there was no violation of the applicant’s rights under s. 8 of the Charter. This is not one of the clearest of cases where a stay of proceedings is the appropriate remedy.

Previous Crown’s Conduct on the Adjournment Hearing

[121] Previous Crown counsel refused to consent to an adjournment when the applicant was unrepresented and continued to be in receipt of late disclosure up to the date of trial. I however accept on the facts that there was no bad faith or ill-intent on the part of previous Crown counsel in relation to the late disclosure. The record shows there was an unfortunate failure of communication between the officer-in-charge and previous Crown counsel.

[122] Previous Crown counsel exercised her discretion not to consent to an adjournment. Courts have recognized the prosecution’s broad discretion in making day-to-day decisions throughout the course of the criminal justice process. The Supreme Court of Canada has observed:

Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion.

[R. v. Beare,1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at pp. 410- 411, (S.C.C.) and R. v. Power,1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601 (S.C.C.)]

[123] L’Heureux-Dubé J., writing for the majority of the Supreme Court of Canada in R. v. Power, went on to stress the limitations on judicial review of prosecutorial discretion:

I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court’s process but only in the “clearest of cases”, which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.

Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.

[R. v. Power, at p. 615]

[124] The courts require more than an applicant establishing that the process is not as it ought to have been: [R. v. D. N., 2004 NLCA 44, at para. 12, (N.L.C.A.]. What is required is a showing that to proceed in the face of the impugned conduct would so offend any notion of decency that the court must intervene to prevent an abuse of process.

[125] The applicant, and for good reason, preferred that the Crown consent to the adjournment. But she exercised her discretion not to do so. I find this does not closely approximate one of the “clearest cases” of prosecutorial conduct deserving the degree of judicial censure that a stay of proceedings represents.

[126] I find no breach of the applicant’s rights under s. 7 of the Charter. This is not conduct “which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.”

Alternate Remedies Short of a Stay of Proceedings

[127] I find in considering possible alternative remedies that seeking a reduction of sentence is a viable remedy to consider provided that the requirements for such relief are met.

[128] The Supreme Court of Canada in R. v. Nasogaluak determined that the Criminal Code allows judges to consider state actions and the actions of the accused, and where state misconduct relates to the circumstances of the offence or the accused, a trial judge may properly take the relevant facts into account when crafting a fit sentence without directly using s. 24(1): [R. v. Nasogaluak, at para. 47].

[129] I have found no Charter violations in the case before me. This however does not end the applicant’s ability to seek redress through reduction in sentence. R. v. Nasogaluak extends the entitlement to sentence relief beyond the offender’s ability to establish a Charter violation. As the Court held: “It is important to note that a sentence can be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach”: [R. v. Nasogaluak, at para. 53].

[130] That avenue of redress, if appropriate in this case, could go some distance to recognize any personal violations of the applicant’s rights. But it will not answer his broad policy concerns regarding privacy or his complaints about the construction of the strip search area of the facility. I repeat the words from R. v. Charley. The present criminal proceeding is not the time or place.

[131] There are also civil remedies the applicant is at liberty to pursue. The applicant has not succeeded in obtaining a remedy through the regular criminal trial process. The applicant was express in his desire not to seek civil damages for any losses or injuries he has sustained. But that avenue is available. Or the applicant may seek a declaratory judgment by which he may request a court to conclusively rule on and affirm his rights and/or the obligations of the state agents.

[132] Resort might also be had to the human rights administrative tribunal process. The applicant may apply to the Ontario Human Rights Tribunal for relief for violations of his rights while in pre-trial custody at the TSDC.

CONCLUSION

[133] I find declining a stay of proceedings better protects the integrity of the justice system. I take direction from the third stage in the R. v. Babos inquiry into whether a stay of proceedings is the appropriate avenue to address violations by state actors: [R. v. Babos, at para. 40].

[134] I must consider the nature and seriousness of the state conduct. As I found above, the state conduct by both the corrections authorities and previous Crown counsel were not continuous, were no longer in play or connected to the trial. I also must consider the applicant’s circumstances and the nature of the charges he faces. On that factor, I find the applicant’s offence and the underlying facts are very serious. I find the applicant’s conduct in taking advantage of the romantic affections of a woman he met on a social media dating site and defrauding her of over a half-million dollars is a serious crime deserving of a trial of the charge on the merits.

DISPOSITION

[135] In the result, I decline to grant a stay of proceedings. Accordingly, the conviction stands.

B.A. Allen J.

Released: January 9, 2020

COURT FILE NO.: CR-19-1000030-0000 DATE: 20200109

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN and MINISTRY OF THE ATTORNEY GENERAL AND MINISTRY OF THE SOLICITOR GENERAL

– and –

SHAUN ROOTENBERG Applicant

REASONS FOR decision

B.A. Allen J.

Released: January 9, 2020