Court File and Parties
COURT FILE NO.: CR-18-946-00 DATE: 2020 01 13 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN E. Taylor, J. Sone, for the Peel Crown Attorneys’ Office A. Bolieiro and B. Whitehead, for the Attorney General of Ontario
- and -
DAVID BAICHOO L. Shemesh and M. Little for the Defendant
Heard: January 30, 31, February 13, April 3, May 1, June 4, September 3, 2019
D.E. HARRIS J.
Reasons
[1] On the initial day of Mr. Baichoo’s first degree murder trial, he was brought into the prisoner’s box covered only by a “security gown.” He was naked underneath. He wore neither underwear nor socks.
[2] He had been sent to court in the security gown from the Toronto South Detention Centre (TSDC). Ironically, arrangements had been made by Deputy Superintendent J. Aspiotis at the TSDC to ensure that Mr. Baichoo was dressed in a suit for his appearance in front of the jury deciding his fate. The staff had not complied with this directive.
[3] A security gown is used in correctional institutions across Ontario for individuals on suicide watch or for those suspected of having contraband secreted in their rectum. In Mr. Baichoo’s case, he had allegedly scanned positive for contraband. Subsequent evidence has demonstrated that the scans were unreliable.
[4] The appearance of an accused person in the prisoner’s box covered only by a security gown was more than just a passing irregularity. One immediate consequence was that the first day of the trial was lost. The jury could not see Mr. Baichoo in the security gown without irreparable prejudice to his right to a fair trial. In resource strapped Brampton, losing the first day of the trial was more than just a minor inconvenience.
[5] More importantly, the basic dignity and humanity of the proceeding was compromised. Assistant Crown Attorney Eric Taylor spoke for everyone in the courtroom when he immediately commented that the situation was “pretty shocking and pretty appalling, in a lot of ways.” [1]
[6] A security gown is enormous. It has no sleeves. Two of Mr. Baichoo--a slight man--could have fit into the gown. It is one-size fits none. It is made of a rip stop nylon fabric to prevent it being torn into ligatures to be used for self-harm.
[7] Security gowns are sometimes referred to in correctional institutions euphemistically as “baby dolls.” Baby dolls was a term in the 1950’s and 60’s for the negligees in vogue at the time. Security gowns actually bear little resemblance to a nightgown or negligee.
Mr. Baichoo walking in the Brampton courthouse sally port covered by the security gown.
[8] The scene with Mr. Baichoo sitting in the prisoner’s box covered by the security gown bore little resemblance to a Canadian courtroom. A reasonable observer with no knowledge of our usual procedures or juridical culture, seeing Mr. Baichoo sitting in the prisoner’s box in the security gown, could only have concluded that the justice system goes to great pains to thoroughly humiliate those accused of serious crimes. Such an observer could only anticipate with horror what the next step for Mr. Baichoo would be.
[9] This spectacle was profoundly troubling. A prisoner has probably never appeared in Brampton Superior Court in only a security gown, let alone on the first day of his murder trial. It has happened on rare occasions in the Ontario Court of Justice for brief appearances in bail court or assignment court.
[10] An inquiry into how this could happen was held with viva voce evidence and written submissions and continued over a number of days spread over several months. The defence, casting around for an after-the-fact remedy, eventually settled on an application for costs.
[11] Meanwhile, Mr. Baichoo’s murder trial ultimately ended in a hung jury. However, while the inquiry remained ongoing, Mr. Baichoo was tried again and this time convicted of first degree murder. In the aftermath, before final argument but after the parties had filed extensive written argument, the government privately acknowledged its fault and, in return, the costs application was abandoned by Mr. Baichoo.
[12] As the parties were informed at the time the issue was settled, despite the resolution between the parties, it is important that this episode not be allowed to pass without comment. The public has the right to know what happened and why it happened. That is the purpose of these reasons.
[13] In ruling that Paul Bernardo should have a lawyer to argue his appeal, Justice Doherty stated a seminal principle of criminal justice (R. v. Bernardo, 1997 CarswellOnt 4956, [1997] O.J. No. 5091, 105 O.A.C. 244, 121 C.C.C. (3d) 123, 12 C.R. (5th) 310):
32 … In a real sense, it is in the most iniquitous of cases that the dispassionate fairness of the criminal justice system is most severely tested. It must meet that challenge. To do otherwise, would be to discredit the very system of justice that demands that the appellant be held accountable for his acts.
[14] In the moment that Mr. Baichoo appeared in the prisoner’s box covered by the security gown, our system of justice manifestly failed to meet the most basic expectations of decency, respect and fairness. This is not a matter of merely incidental importance or of “good optics.” We are not a country that debases those accused (or convicted for that matter) of criminal offences. Proper treatment of those accused of crimes is of fundamental importance to the lifeblood of criminal justice and to our constitutional democracy. It is a basic ingredient of the rule of law. Maltreating accused persons is deeply offensive to our foundational values and cannot be tolerated.
[15] It is particularly unfortunate that Mr. Baichoo was charged with the most serious crime in the Criminal Code. The appearance may well have been left that he was purposely humiliated because of the serious allegations he was facing.
[16] Although this incident was an aberration, as it has never happened before, there are lessons to be learned from it. What follows is a summary of what happened and why.
Mr. Baichoo’s History at The Toronto South Detention Centre (TSDC) in the Two Weeks before the Commencement of his Trial
[17] Mr. Baichoo had been subject to disciplinary action at the Toronto South Detention Centre (TSDC) in the days immediately before the trial. On January 11, 2019, an inmate had thrown a shampoo bottle with liquified feces in it at a correctional officer at the South. Many inmates, according to the affidavit from the Deputy Superintendent filed by the Crown on this application, had cheered on the perpetrator and derided the person cleaning up afterwards. Some inmate statements implicated Mr. Baichoo as having handed the bottle to the perpetrator. Mr. Baichoo and five other inmates were placed in administrative segregation.
[18] Mr. Baichoo was found guilty of misconduct by a Staff Sergeant in the prison. Mr. Baichoo was not charged criminally. He received a prison disciplinary sentence of 15 days segregation commencing January 12, 2019. This would have him remain in segregation right up to the commencement of his firstdegree murder trial on January 28, 2019.
[19] The prison disciplinary process was followed. This process does not purport to provide the procedural safeguards of a court of law: R. v. Shubley, [1990] 1 S.C.R. 3, [1990] S.C.J. No. 1 at paras. 37-38. That would be unrealistic and unworkable. In any case, whether Mr. Baichoo was indeed guilty of this assault is of no importance.
[20] Shortly after the finding of guilt, counsel for Mr. Baichoo, Ms. Shemesh, was rebuffed in her efforts to hold a meeting with her client at the South Detention Centre. On January 14, 2019, with the criminal trial being only two weeks away, Ms. Shemesh and a lawyer working with her were denied access to her client at the TSDC for a meeting she had scheduled as required 24 hours before. After several delays, counsel was informed that the movement of prisoners made it too difficult for the accused to attend. Efforts to speak to management proved unsuccessful.
[21] As a result, a habeus corpus application was filed, returnable January 18, 2019 in Brampton Superior Court challenging the denial of the accused’s right to consult with counsel for his firstdegree murder trial. Two correctional officers who had been working that day were subpoenaed to explain what had occurred. They were required to bring all pertinent documentation with them to court.
[22] Thanks to the intervention of Justice Durno of the Brampton Superior Court and Mr. Whitehead, counsel for the Attorney General on behalf of TSDC, the burgeoning crisis was averted. Counsel was permitted to meet with the accused in an interview room at the TSDC soon after the application was filed. As a result, counsel did not pursue the habeus corpus application.
[23] The allegation of Mr. Baichoo’s malfeasance and the difficulty Ms. Shemesh experienced meeting with her client may partially explain how it came to be that Mr. Baichoo appeared in the security gown. This history could suggest that the security gown episode was not wholly arbitrary.
[24] It is unnecessary to come to a firm conclusion on this question. This background, however, is of some importance in putting the security gown incident into its full context.
The Body Scans Were Unreliable
[25] The evidence in this case demonstrates that either the body scans themselves are unreliable or that staff at the TSDC do not know how to properly read the scans.
[26] This is the evidence leading to this finding. After attending for the first day of trial on January 28, 2019, Mr. Baichoo scanned positive for contraband in his rectum upon readmission to the institution. Mr. Baichoo had scanned positive and been put on dry cell protocol previously. The dry cell protocol involves imprisonment in a cell without running water and covered by a security gown so that any alleged contraband evacuated cannot be easily disposed of. The positive scanning and dry cell protocol had occurred on January 12 and 14. No contraband had been found on either of these occasions.
[27] On January 29, 2019, Mr. Baichoo arrived in TSDC Admissions and Discharge to be transported directly from dry cell protocol in a security gown. He scanned positive again at TSDC that morning. When a question was asked whether Mr. Baichoo should be brought, I informed the authorities that he should be. He was permitted to change out of the security gown and into court clothes prior to his transport to the Brampton courthouse. Upon his arrival, the discussion in court quickly turned to whether the alleged foreign material which had been secreted was thought to be a weapon. The Crown Attorneys communicated by email with a Deputy Superintendent at the institution. It was ascertained by 11:30 a.m. that the object or objects seen in the scan were definitely not weapons.
[28] The possession of a weapon being the only real concern, the court day proceeded normally with Mr. Baichoo dressed in a suit and, with the consent of the Crown, sitting next to his counsel at counsel table. Jury selection continued. Nothing untoward occurred. Jury selection was completed and all participants were poised to begin the calling of evidence the next court day.
[29] Mr. Baichoo scanned positive again when returned to the TSDC on January 29, 2019. He was again put on a dry cell protocol. A scan before court the next morning, January 30, 2019, was again positive. A judicial request was made that he should be brought to court nonetheless. Again, it was reasonably clear that the positive scan did not involve an allegation of the secretion of weapons.
[30] When Mr. Baichoo appeared in the security gown in court on January 30, 2019, as mentioned previously, the opening of the case in front of the jury could not proceed. The inquiry commenced that day with the evidence of Sergeant Arsalan Muir of the TSDC and a focus on the scans.
[31] Sgt. Munir was an honest, well-meaning witness. He has special expertise with the scanner. He was one of the main scanners and was often called upon at TSDC for his opinion on images produced by the scanner.
[32] The scanned images of Mr. Baichoo in which contraband was said to be visible were projected in court as part of Sgt. Munir’s evidence. The first scan shown purportedly displaying contraband was the one from the day before, January 29, 2019 at 8:32 a.m. Over several pages of transcript, detailed questions were asked by Mr. Whitehead and answers given by Sgt. Munir. The contraband was identified in the projected scan and there was some discussion of what it might have been. It was reiterated that it was not a weapon. A weapon would show up as a distinct and clear shape.
[33] A second scan was then shown on the screen in court. This one was said to be taken after the first one. Sgt. Munir pointing to it, testified that the contraband was not as concentrated as it in the previous image, it has been broken apart to make it look smaller in an effort to attempt to deceive the scanner. According to his evidence, to make it smaller, Mr. Baichoo would have had to take it out of his rectum, get rid of some of the contraband, and re-insert it. In Sgt. Munir’s view, the contraband was changing size. It now had a “tail” on it.
[34] When questions were asked about why the stamped time on the second scan was the same as on the first scan, Sgt. Munir testified that it might just have been the time it was saved on the computer. However, these questions led Sgt. Munir to realize that the true answer was that this image was actually the same as the first scan. They were the exact same image. Sgt. Munir had merely changed the exposure slightly on the second image to highlight some aspects of it. It appeared lighter but it was the same photographic image. He had forgotten that he had done this.
[35] Sgt. Munir admitted that he had made a mistake. The contraband had not been moved, it had not become smaller, there was not a tail on it now when before there had not been. It was the exact same.
[36] This was not a momentary lapse. Sgt. Munir is one of the most experienced officers at TSDC in reading scans. Yet he spent considerable time in court labouring over the second image and explaining how it showed some major differences. It was only when it was pointed out to him that the digital times recorded on the images were the same that he became aware of his error.
[37] This was a persuasive demonstration of the unreliability of the reading of body scans. Other evidence reinforces this conclusion.
[38] Mr. Whitehead, appearing for the Attorney General in an unrelated case in Central East Region while the inquiry in Mr. Baichoo’s case was still ongoing, explained to a judge that positive scan readings were one of the reasons for chronic delays in bringing inmates to court. He said:
Some staff had made allegations that some of the inmates were testing positive through a scan… I think it’s acknowledged that it’s a subjective thing when a staff person reads the scan, they may see something positive, somebody else may not … [There is an ongoing investigation] to figure out whether those were really positive findings that an inmate might have contraband within their body that showed up on the scan or not.
(Emphasis Added)
(R. v. K.K.D. Newmarket, March 25, 2019, before R.S.J. Fuerst)
[39] The government concession in the above quote that reading scans is subjective and hence unreliable, together with Sgt. Munir’s evidence in court, leaves no doubt that the conclusion Mr. Baichoo scanned positive for contraband at the TSDC was unreliable.
[40] In conclusion, Mr. Baichoo was required to don the security gown because he allegedly had secreted contraband in his body. The basis for the allegation was the unreliable and subjective reading of body scans of him. There was no evidence of contraband other than the scans. No contraband was ever recovered from his body despite extensive time spent in dry cell segregation.
[41] Based on all the evidence and looked at in retrospect, the grounds for believing that Mr. Baichoo had contraband in his body were not objectively reasonable. Nor was it justified.
Why was Mr. Baichoo Placed on the Court Wagon at the TSDC in a Security Gown and Without his Clothes?
[42] There is no TSDC administrative order with respect to sending inmates to court in security gowns. There is however a standing order at the TSDC with respect to sending inmates to court generally. It stipulates that inmates will not be sent to court in orange jumpsuits unless in an emergency situation or for security reasons (Section 03 05 01). If an inmate does not have suitable clothing, then ministry-issued grey pants and white t-shirts will be provided.
[43] On the morning of January 25, 2019, the Friday before the commencement of Mr. Baichoo’s murder trial scheduled for January 28, 2019, Deputy Superintendent J. Aspiotis of the TSDC sent an email to the Admission and Discharge Managers, Deputy Superintendents and Property Officers in the institution. There were about 20 recipients in all. The email stated that Mr. Baichoo was starting a first degree murder trial on Monday the 28th of January lasting for approximately three weeks. A special clothing exchange process had been established for him. Mr. Baichoo was authorized to have two suits and five shirts in his property for the purposes of his trial. The email ended with this:
This clothing exchange must take place, regardless of the status of the request. Contact me if there are any issues immediately.
Please ensure it happens and confirm with me once it is complete as there are pressing issues surrounding his appearance in court.
[44] One of the recipients of the email was Sgt. Grzegorz Polanski who was the operational manager in Admissions and Discharge. He was the person in charge when Mr. Baichoo was taken from the TSDC in the security gown and put on the court wagon to be transported to Brampton for the January 30, 2019 continuation of his murder trial. At the time, Sgt. Polanski had been acting in this role for three or four months.
[45] Sgt. Polanski testified on the inquiry January 31, 2019, the day after Mr. Baichoo appeared in the security gown. He confirmed that Mr. Baichoo was transported to court in the security gown wearing no underwear or socks. Other evidence tendered at the inquiry indicated it was one of the coldest days of the year, -22 degrees C as a low, -15 degrees C as a high. It did not bother Sgt. Polanski that he was being sent this way, “He’s a grown man, he can ask for anything he wants…” Mr. Baichoo never asked for anything. Sgt. Polanski said that he “did not have time to ask [questions of] every single person.”
[46] It was Sgt. Polanski’s evidence that when an inmate like Mr. Baichoo scanned “dirty” which he did several times the morning of the 30th, the policy is that he would not normally go to court. Sgt. Polanski claimed that he was breaking policy to send him to court at all. It should be noted that no where in the TSDC policies is there any indication that someone who scans positive should not be brought to court.
[47] Sgt. Polanski told the Peel Police court officers who arrived to transport Mr. Baichoo to court on the 30th that Mr. Baichoo had failed the scan. Sgt. Polanski denied that the Peel officers told him that Mr. Baichoo needed clothes for court. They never asked for clothing to bring with him to court. Specific suggestions were repeatedly put to him in cross-examination by defence counsel but Sgt. Polanski maintained his position that nothing had been requested or said.
[48] Sgt. Polanski testified that he had never sent a person in security gown to court who was not a suicide risk. He knew that Mr. Baichoo was not a suicide risk. When asked whether he had information from the transit documentation that Mr. Baichoo had a jury trial and needed clothing, Sgt. Polanski said that although he could get that information, “that’s not important to me what I do in the mornings.”
[49] According to Sgt. Polanski, the Peel police told him there was an order to bring Mr. Baichoo to court despite the positive scan. This was the first time this had occurred according to him. Sgt. Polanski said that he was never told that the positive scan had excluded the possibility of Mr. Baichoo harbouring a weapon in his body.
[50] When asked in cross-examination whether Sgt. Polanski knew that Mr. Baichoo was transported wearing his clothes for court the day before, January 29, 2019, Sgt. Polanski said that he was aware of it. He testified that it was something that slipped right by him; he did not catch that Mr. Baichoo had been taken to court the day before wearing regular clothes, despite the positive scan.
[51] Questioned about whether there was any prejudice or bias against Mr. Baichoo at the TSDC, he replied that there was not as far as he knew. He did not even know who he was. He was “just another offender in my institution.” It was necessary to correct Sgt. Polanski and inform him that because Mr. Baichoo had not been convicted and was presumed innocent, it was incorrect to call him an offender.
[52] Sgt. Polanski was reluctant to agree with the information that the supposed contraband shown on the scan was not a weapon, saying that the opinion from the TSDC was only an “estimated guess.”
[53] Unfortunately, because the January 25, 2019 email from Deputy Superintendent J. Aspiotis had not yet come to light on the day of his testimony, January 31, 2019, Sgt. Polanski was not confronted with the fact that just days before, he had been informed by his superior about Mr. Baichoo and his need for clothing during his murder trial.
[54] Sgt. Polanski’s evidence about what happened at the court wagon was directly contradicted by Anthony Romita, the Peel Regional Police employee in charge of the court wagon transporting Mr. Baichoo from the TSDC to the Brampton courthouse. Mr. Romita was called by the defence at the inquiry.
[55] After loading the other 19 prisoners, Mr. Romita noticed that the last prisoner, Mr. Baichoo, was in a security gown. He knew that Mr. Baichoo had a jury trial and his common sense told him that he could not appear in a security gown. Mr. Romita asked the Sgt. whether he had a clothing change, and the Sgt. told him that when they fail a scan, this is what they wear. Mr. Romita advised the Sgt. that Mr. Baichoo had a jury trial and he would need some clothing. The Sgt. reiterated that when they failed a scan, this is what a prisoner was given. Clothes for Mr. Baichoo were never provided or offered.
[56] Mr. Romita knew there would be an issue at court but he was not about to debate it with the TSDC management. He had to get the prisoner to court promptly. Mr. Romita called his supervisor at the Peel courthouse and advised him of the situation.
[57] Mr. Romita gave a description of Sgt. Polanski which, although general, matched him to a tee. Mr. Whitehead, in the circumstances, did not appear to dispute that Mr. Romita’s interaction that day was with Sgt. Polanski.
[58] Brian Barrett of the Peel Regional Police supervises the Prisoner Escort Bureau. He testified that it was shocking that Mr. Baichoo was brought in a security gown for his Superior Court jury trial. He did not recall that ever happening before in his 25 years of escorting prisoners in Brampton. He accepted, however, that people are not normally sent to court if they scan positive.
[59] In conclusion, it is no small irony that after the Deputy Superintendent’s sincere and urgent efforts to ensure that Mr. Baichoo was properly attired in a suit for his murder trial, Mr. Baichoo was brought to court for the first day of the trial in a shocking state of dishabille.
[60] In determining how this could have happened, I have no hesitation in accepting Mr. Romita’s evidence over Sgt. Polanski’s. There was no reason whatsoever for Mr. Romita to distort his interaction with Sgt. Polanski. Sgt. Polanski, on the other hand, was in an unenviable position. He had a strong motive to absolve himself of responsibility and mitigate his blame for consequences that were widely criticized and led to the loss of the first day of a firstdegree murder jury trial. He did not know that Mr. Baichoo was going to court for trial; he did not know that he had court clothes; he was not told anything about this by Mr. Romita. This is entirely unlikely.
[61] Furthermore, Sgt. Polanski was told of the importance of Mr. Baichoo’s dress for his murder trial by his superior in an emphatic email. Yet just five days later, he put Mr. Baichoo on the court wagon in a security gown. Sgt. Polanski admitted knowing that Mr. Baichoo had been sent to court the previous day despite positive scans.
[62] Sgt. Polanski’s attitude was perturbing. He said that he did not have time to ensure that Mr. Baichoo was properly dressed. There matters were of no importance to him. Beyond mere indifference and depersonalization, the lack of respect and outright contempt for the people under his authority and, in turn, for the judicial system, reflects poorly on corrections.
[63] Furthermore, I find it implausible that Sgt. Polanski did not know Mr. Baichoo prior to sending him off in the security gown. Sgt. Polanski had put Mr. Baichoo on the court wagon the day before. Mr. Baichoo had been accused and found guilty of a malicious offence against a fellow officer just days before. His counsel’s solicitor client visits had been frustrated on the eve of his trial. Counsel, in order to maintain access to her client for the constitutionally guaranteed purpose of preparing him for his first degree murder trial had subpoenaed several of Sgt. Polanski’s fellow correctional officers and the necessary documentation for a habeus corpus application. The Deputy Superintendent got involved to ensure that visits with counsel continued. This history supports the conclusion that Mr. Baichoo had achieved some degree of notoriety amongst the TSDC staff.
[64] I am driven to the conclusion that Sgt. Polanski was told by Mr. Romita about Mr. Baichoo being engaged in a jury trial and requiring clothes. There is every possibility that he was already aware of this from the email. He chose to send Mr. Baichoo despite this knowledge, for whatever reason. I am convinced on the totality of the record that he knew sending Mr. Baichoo in the security gown was grossly inappropriate. But he did it anyhow.
[65] It must not be forgotten that, in conjunction with the security gown, Sgt. Polanski also failed to ensure, as he no doubt could have, that Mr. Baichoo’s clothes be sent with him. At least if that had occurred, the humiliation in court and the loss of one court day would have been avoided.
Conclusions
[66] The Scan: a. Mr. Baichoo was put in the security gown because of the positive scans. Mr. Whitehead, in another case, stated that scans are unreliable. Sgt. Munir’s evidence graphically illustrated this. Looked at in retrospect, Mr. Baichoo should not have been in the security gown in the first place.
Sending Mr. Baichoo to Court in the Security Gown Without his Clothes: a. It was inexplicable that Mr. Baichoo arrived in court in the security gown as the day before, in the exact same situation—a positive scan but with the indication that he did not have a weapon—he had appeared in his formal court clothes. Nothing untoward having occurred, one would have thought that the second day in this situation would have led to the same response. b. Mr. Romita told Sgt. Polanski that Mr. Baichoo could not be in the security gown as he was in a jury trial. When he asked for clothes for Mr. Baichoo, Sgt. Polanski was uninterested and made no effort to retrieve them. This information did not lead Sgt. Polanski to rethink his actions, to change Mr. Baichoo out of the security gown or to send his clothes along with him. c. Mr. Baichoo’s history in the institution and the special provisions that were made to ensure his proper appearance before the jury, together with the other circumstances, gives rise to a realistic apprehension that his appearance in the security gown was not merely bad luck. d. It is true that it was an unusual situation that an inmate scanned positive but that, notwithstanding this, the judicial authorities required that he be brought to court. Nonetheless, there ought to have been a chorus of alarm bells going off in the collective minds of the TSDC staff as they sent a man to court in a security gown. For example, if sending inmates in orange jumpsuits is prohibited, why should a person be sent in a security gown? Regular standards of humanity and decency ought to have prevailed.
[67] Counsel for the Attorney General argued that the security gown appearance was an “inadvertent error.” The evidence does not support this characterization. An inadvertent error implies a pure accident or innocuous mistake. Here, for the reasons specified above, the conduct of the TSDC lay somewhere on a spectrum between negligence and deliberate and knowing misconduct. In the circumstances, it is unnecessary to go further and situate where exactly on the spectrum the conduct ought to be placed.
[68] Sgt. Polanski was told that Mr. Baichoo was appearing before a jury and needed his clothes. He was, at best, indifferent to the situation. In the end, the TSDC failed to live up to its duty to ensure that the inmates in their institution were treated with humanity and dignity and were sent to court in a condition to permit judicial proceedings in a first degree murder case to continue. This duty was owed to Mr. Baichoo but it was also owed in a broader sense to the administration of justice and to the public.
[69] There were a number of errors which led to this deplorable situation. There was not just one cause. Although it could be said that the TSDC staff faced a somewhat unusual situation with the positive scan and the judicial order to bring the accused to court, there was no possible justification for sending Mr. Baichoo to court in the security gown and without his clothes.
[70] Finally, it should be added that there have been some positive changes in response to this incident. On January 31, 2019, the Deputy Superintendent issued a memo stating that clients are not to wear security gowns to court unless authorized by a Deputy Superintendent or Senior Administrator. Another memo from January 31, 2019 states that even if there is a positive scan, the TSDC has an obligation to make the client available to court and the client is to be issued their own clothing for court.
“original signed by”
D.E. HARRIS J.
Released: January 13, 2020