R. v. Jayaraj, 2020 ONSC 7055

COURT FILE NO.: CR-20-60000324-00BR

DATE: 20201118

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

DAVID JAYARAJ Applicant

M. Atkin, for the Respondent

D. Jayaraj, self-represented

HEARD: October 23, November 16, 2020

REASONS FOR DECISION

SCHRECK J.:

1David Jayaraj, who is representing himself on charges of dangerous driving and assault with a weapon, wishes to audio record all of his routine set date court appearances to supplement his notes. He believes, mistakenly, that he can do so even when told not to by the presiding jurist For reasons that are difficult to understand, rather than simply grant Mr. Jayaraj permission to make recordings, a Justice of the Peace and a judge of the Ontario Court of Justice insisted that he cease recording. When he refused, the judge took drastic action that resulted in Mr. Jayaraj spending at least two days in custody. He was later released on a recognizance which included a condition that he not record any court proceedings without permission.

2Mr. Jayaraj has applied to this court to vary his bail, including the deletion of the condition respecting recording in court. The Crown initially opposed the application, but has now consented. I would have granted the application regardless of the Crown’s consent. Following are my reasons for doing so in the event that issues regarding Mr. Jayaraj’s court appearances arise again in the future.

I. HISTORY OF THE PROCEEDINGS

A. The January 8, 2020 Appearance and the Fail to Attend Charge

3The applicant is charged with dangerous driving and assault with a weapon. His matters are ongoing in the Ontario Court of Justice at the Old City Hall courthouse in Toronto. On January 8, 2020, he appeared in Courtroom 111, the set date court, before a Justice of the Peace. For reasons that are unclear, Crown counsel asked the Justice of the Peace to inquire of the applicant whether he was recording the proceedings. The Justice of the Peace did so and the applicant advised him that he was recording for the purpose of supplementing his notes. The Justice of the Peace told the applicant to stop recording. The applicant stated that he had the right to record, based on a Practice Direction issued by “the Chief Justice of the Ontario Courts of Justice.” Duty counsel who was present took the position that he was correct. As outlined later in these reasons, such a Practice Direction does exist.

4Notwithstanding duty counsel’s submission, the Justice of the Peace again ordered the applicant to stop recording and refused to proceed unless he did so. The applicant continued to insist that he had the right to record the proceedings. Finally, the Justice of the Peace ordered the matter to be traversed to Courtroom 112, which is presided over by a judge of the Ontario Court of Justice. For reasons that are unclear from the record before this court, the applicant apparently did not appear in Courtroom 112. As a result, a bench warrant was issued. The applicant turned himself in on January 13, 2020 and was released the same day. He was charged with failing to appear in court. I am advised that the Crown has now decided to withdraw that charge.

B. The January 29, 2020 Appearance and the Issuance of a Bench Warrant

5The applicant had another appearance on January 29, 2020, the sole purpose of which was to set dates for his trial. His matter was again traversed to Courtroom 112, although it is unclear whether this had anything to do with his recording the proceedings.

6As soon as the applicant’s matter was called in Courtroom 112, he advised the presiding judge that he was recording the proceedings with his phone to supplement his notes. Crown counsel advised the Court that she took no position on whether the applicant should be permitted to record the proceedings. Nevertheless, the judge told the applicant to stop recording. The applicant insisted that he had the right to record the proceedings. The judge then told him that unless he stopped recording, he would have to leave the courtroom. The applicant continued to argue that he had the right to record, whereupon he was directed to leave the courtroom.

7After the applicant left the courtroom, the presiding judge indicated that she intended to traverse his matter back to Courtroom 111. Crown counsel expressed a concern about doing so in the applicant’s absence, so the judge directed her to go into the hallway to locate the applicant. She did so but was unable to find him.

8The applicant later returned to the courtroom. He continued to insist that he did not need permission to record the proceedings. At this point, Crown counsel suggested that the presiding judge issue a bench warrant unless the applicant stopped recording. As explained later in these reasons, there was no basis for issuing a bench warrant and the Crown should never have made such a suggestion. Rather than question the legal basis for the suggestion, the judge accepted it, as is clear from the following exchange:

THE COURT: I directed that you not have your phone on. You’re refusing to do that.

THE APPLICANT: I --

THE COURT: So then ---

THE APPLICANT: I will show you the rules. I have the right to record.

THE COURT: Sir, you have to make a request to record.

THE APPLICANT: The rule does not say that I have to make a request. You can see the rules, and then you can decide. If you want, I will wait outside while you see the rules.

THE COURT: I’ve read the rules sir.

THE APPLICANT: Which rule you read, Your Honour?

THE COURT: I’m not here to answer your questions, sir.

THE APPLICANT: Okay.

THE COURT: So either you turn the phone off, or I’m considering that you’re not obeying the rules of the court and that you’re not properly attending, and I’ll issue a bench warrant.

THE APPLICANT: No, no, I am properly attending, but you are doing whatever you like. I cannot force you to change your mind, I am following all the laws of the country. It is you who are breaking the law.¹

As outlined below, the applicant was correct. According to an Ontario Court of Justice Protocol, he did not need to make a request before recording the proceedings.

9The presiding judge then ordered the applicant to give his phone to one of the court officers. The applicant refused to do so and indicated that he would view any attempt by the court officer to take the phone as an act of theft. At this point, the presiding judge decided to issue a bench warrant. She stated:

Sir, you’re not attending Court properly, in my view, in these circumstances, so I’ll issue a bench warrant for your arrest.²

The applicant was arrested on the bench warrant and brought before a Justice of the Peace the following day for a bail hearing.

C. The Bail Hearing

10At the bail hearing, Crown counsel advised the Justice of the Peace that he would consent to the applicant’s release, but only if the applicant agreed to a bail condition which prohibited him from recording court proceedings without the permission of the court. Crown counsel explained that he wished to have this condition in order to foreclose the applicant being able to argue that he had a legal right to record the proceedings. The applicant did not agree. However, a bail hearing was not held as the matter was not reached. The following day, the applicant advised the Justice of the Peace that he was willing to agree to the proposed condition. He was released on a recognizance, which included the impugned condition.

II. RELEVANT LEGISLATION AND PRACTICE DIRECTIONS

A. The Courts of Justice Act

11Section 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) provides as follows:

136 (1) Subject to subsections (2) and (3), no person shall,

(a) take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise,

(i) at a court hearing,

(2) Nothing in subsection (1),

(b) prohibits a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes.

B. The Ontario Court of Justice Protocol

12In 2013, the Ontario Court of Justice created a “Protocol Regarding the Use of Electronic Communication Devices in Court Proceedings”, s. 3 of which provides as follows:

(3) The use of electronic communication devices in silent or vibrate mode is permitted, except as follows:

i. The presiding judicial officer orders otherwise.

ii. Legislation … or a court order restricts public attendance.

iv. Audio recording of proceedings is permitted by counsel, paralegals licensed by the Law Society of Ontario, court staff, members of the media, and litigants for note-taking purposes only but the presiding judicial officer must be advised before the recording is commenced. Members of the public are also permitted to make audio recordings for note-taking purposes only if the express permission of the presiding judicial officer is first obtained. These audio recordings cannot be transmitted. [Emphasis added].

The Protocol clearly draws a distinction between litigants and members of the public. The latter are required to obtain permission from the presiding jurist before recording while the former do not. The Protocol, which was created by the court, provides them with the approval referred to in s. 136(2)(b) of the CJA.³

13Section 5 of the Protocol states:

(5) The presiding judicial officer retains overriding responsibility to maintain courtroom decorum and to ensure that court proceedings are conducted in a manner consistent with the proper administration of justice. In deciding whether to restrict the use of electronic communication devices, the presiding judicial officer may consider whether there is evidence regarding factors such as:

i. whether the use of electronic communication devices would disrupt the court proceedings or interfere with the proper functioning of the court electronic equipment; or

ii. whether the use of electronic communication devices would interfere with witness testimony, or unreasonably infringe anyone’s privacy or security.

III. ANALYSIS

A. The Applicant’s Recording of the Proceedings

14The applicant is deeply suspicious of the justice system. In addition to insisting on being allowed to record the proceedings, he repeatedly complained that he was being discriminated against. At one point, he provided the presiding judge with documentation regarding some type of complaint he had made against a Regional Senior Judge of the Superior Court. At the outset of the hearing of this application, he demanded that I recuse myself on the basis of bias. He suggested that I had been selected to hear the application because it was known that I would rule against him. He also demanded that his trial be traversed to Montreal as no Ontario courts would be fair to him. He demanded that I make orders imprisoning a number of people involved in his case whom he believes have wronged him and viewed my failure to do so as further evidence of bias.

15The applicant’s numerous complaints make his court appearances challenging for the jurists who deal with him. However, based on my reading of the CJA and the Ontario Court of Justice Protocol, the applicant was correct that he did not have to request permission before recording the proceedings to supplement his notes, provided that he informed the presiding jurist that he was doing so, which he did. There is no evidence that the applicant wished to use the recordings for an improper purpose.

16While the judge clearly had the authority to order the applicant to stop recording, she gave no reason for doing so. Neither of the factors set out in s. 5 of the Protocol applied. The applicant’s recording was not disrupting the proceedings or interfering with anybody’s privacy. This was a routine set date appearance, and it is difficult to understand why the presiding judge thought it necessary to instigate a confrontation with the applicant on this issue. Of course, once the applicant was ordered to stop recording, he ought to have done so, even though the order was, in my view, unjustified. However, the ensuing battle of wills was both predictable and avoidable.

B. The Bench Warrant

17A judge faced with a deliberate refusal to follow his or her direction is not powerless and may resort to the court’s common law contempt power. However, it is a power that must be used sparingly and with great restraint: R. v. Glasner (1994), 1994 CanLII 3444 (ON CA), 19 O.R. (3d) 739 (C.A.); R. v. Kopyto (1987), 1987 CanLII 176 (ON CA), 62 O.R. (2d) 449 (C.A.). The set date judge did not exercise her contempt power in this case, but instead issued a bench warrant on the basis that the applicant had “failed to appear properly.” The effect was the same: the applicant was arrested and imprisoned because he failed to follow the court’s direction.

18There was, in my view, no basis for issuing a bench warrant. Such warrants are issued pursuant to s. 512(2) of the Criminal Code, which provides as follows:

512. (2) Where

(a) service of a summons is proved and the accused fails to attend court in accordance with the summons,

(b) an appearance notice or undertaking has been confirmed under subsection 508(1) and the accused fails to attend court in accordance with it in order to be dealt with according to law, …

a justice may issue a warrant for the arrest of the accused.

It is clear that a warrant may only be issued if an accused “fails to attend court.” The applicant did attend court. There is no mention in s. 512(2) of “attending properly.” An accused need only attend “in order to be dealt with according to law”, which in this case was to set dates for trial, something the applicant was prepared to do.

19If the judge wanted to have the applicant imprisoned for refusing to stop recording the proceeding, her only option was to exercise her contempt power. In my view, this was manifestly not one of those cases where such action was warranted. This was to be a brief court appearance that would have been completed in a matter of minutes. The applicant was not harming anybody by recording the proceedings. While he clearly became disrespectful and belligerent once he was ordered to stop recording, the better option in these circumstances was to not “take the bait”: R. v. Faulkner, 2013 ONSC 2182, at para. 17.

20The judge’s decision to issue a bench warrant without any basis to punish the applicant for his insistence on recording the proceedings was, with respect, wrong in law, heavy-handed and unnecessary. While the applicant was clearly a challenging litigant, he did not deserve to lose his liberty.

C. The Impugned Bail Condition

21The fact that the applicant did not fail to appear is relevant to the propriety of the bail condition under review for two reasons. First, as noted earlier, the bench warrant ought not to have been issued and the bail hearing should never have taken place. Second, the Crown sought to have that condition imposed as being necessary to address concerns under the primary ground in s. 515(10)(a) of the Criminal Code, that is, “to ensure his attendance in court.” The applicant did attend court, and this is no less true because he did so while recording the proceedings.

22As recently noted in R. v. Zora, 2020 SCC 14, at para. 84, “[o]nly conditions which target those specific s. 515(10) risk(s) are necessary.” This was manifestly not such a condition. Indeed, the Crown did not seek to have this condition imposed to ensure the applicant’s attendance in court, but rather to prevent him from making an argument about his entitlement to record the proceedings without first seeking permission. That is not what the bail provisions of the Criminal Code are for. Furthermore, as explained, the applicant was correct on this issue. The Justice of the Peace should never have acceded to the Crown’s request to have this condition imposed, let alone force the applicant to spend an additional night in custody because of it.

IV. DISPOSITION

23For the foregoing reasons, the application is granted and the applicant’s recognizance is to be varied in accordance with terms agreed upon by him and the Crown, including deletion of the term prohibiting him for recording court proceedings.

24With respect to any future court appearances by the applicant, including his trial, I would suggest that the presiding jurist give serious consideration to allowing the applicant to record the proceedings to supplement his notes.

Footnotes

1. 1Transcript – January 29, 2020, p.10, l.18-p.11, l.12.
2. 2Transcript – January 29, 2020, p.12, ll.7-9.
3. 3There is a similar Practice Direction for the Superior Court of Justice allowing counsel, litigants and the media to record proceedings without first obtaining permission, subject to certain restrictions. Unlike the Ontario Court of Justice Protocol, there is no requirement that the presiding jurist be informed: Consolidated Provincial Practice Direction (July 1, 2014), s.100.