Court File and Parties

COURT FILE NO.: CR-22-50000248 DATE: 20230509

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – DIPESH PATEL Applicant

Counsel: Brian Whitehead for the Ministry of Solicitor General Michael Wilson, for the Crown Dipesh Patel, self-represented Applicant, Amicus – Marissa Etwaroo

HEARD: April 11, 12 and 19, 2023

Restriction on Publication

NOTICE: Pursuant to s. 648(1) of the Criminal Code this ruling is subject to a publication ban and shall not be transmitted, reproduced or broadcast in any manner until the jury is sequestered or a further order of this court.

Ruling for Access to the Internet While in Custody

B.P. O’MARRA J.

Overview

[1] The applicant faces a series of charges alleging violent sexual assaults with offence dates between June 28, 2015 and November 1, 2019 inclusive. Results of DNA testing will play a significant role in his jury trial that is scheduled to proceed on June 5, 2023. The applicant has been in custody since his arrest on November 2, 2019.

[2] The applicant has chosen to be self-represented for reasons that I will outline below. Amicus counsel was appointed by the court in February 2022 to help him prepare for trial and on this application.

[3] The applicant currently has access to for legal research. He now applies to have more broad access to the internet and e-mails as he prepares for trial.

[4] On April 19, 2023 I dismissed the application. These are my reasons.

Evidence on the Application

[5] The applicant filed his own affidavit and testified. His evidence included the following:

• He has had bad experiences with lawyers and distrusts them.
• He may retain a lawyer for his trial but wants to do his own research of various issues on the internet to help him pick the best lawyer.
• Amicus may assist him, but he still wants to do his own research.
• His current access to a computer has had problems from the outset. It is limited to reviewing his disclosure and not for research.
• He has only limited access to a room for his use of a computer.
• He needs to research legal as well as technical and scientific issues in preparation for his trial. The issues include DNA and extraction of cell phone records.
• There will be complex legal and technical issues at his trial.
• Access to e-mails would allow him to contact counsel who may represent him as well as experts in various fields relevant to his trial.
• He appreciates the help of current Amicus counsel but she is too busy to spend much time with him as she has many other clients.

[6] Leon Watson is a Security Manager at the Toronto South Detention Centre (TSDC) and has held that position since 2017. He is part of a team responsible for monitoring the inmate population for security risks and investigating information brought into the correctional institution. His sworn affidavit was filed on this application and he also testified viva voce. His evidence included the following:

• The applicant faces a number of very serious sexual assault allegations: He is subject to a non-communication order with respect to seven women complainants.
• The applicant has been provided with two laptops for the purpose of reviewing his disclosure and preparing for trial. He also has limited access to the internet for legal research.
• Inmates have access to phones and interview rooms to communicate with counsel.
• Self-represented inmates can order books, including legal texts and scientific materials. Correctional staff review any such material to make sure the content is not inappropriate.
• Inmates also have access to Legal Aid Ontario (LAO) staff, volunteer organizations and social workers to assist them in research or efforts to retain counsel.
• Correctional staff do not have the technical ability or resources to effectively monitor broader internet or e-mail activity by an inmate. It is impossible to control who an inmate communicates with over the internet.
• An inmate who did have broader access to the internet and e-mails could be subject to pressure or threats by other inmates to make communications on their behalf. This could potentially put inmates and/or staff at risk.
• There would be the potential for an inmate to research the outstanding charges or other antecedents of other inmates. This could place inmates at risk.

[7] Vanessa Wingrove is the Manager of the Information Unit, Operational Support, for the Ontario Ministry of the Solicitor General. In or around January 14, 2021 she reached out to all of her provincial counterparts and the Correctional Service of Canada (CSC) to ask whether inmates in their respective correctional institutions have access to the internet while in custody. She later received responses from British Columbia, Alberta, Manitoba, Nova Scotia, Quebec and the CSC that they do not permit inmates to access the internet while in custody. Manitoba advised that there were a couple of instances where a court ordered an inmate to be provided access to online legal resources. The other provinces did not respond.

Analysis

[8] At the outset of this hearing the applicant declared with the assistance of Amicus that he was not seeking a remedy under the Charter. Rather, he sought to invoke the court’s inherent jurisdiction to make the order and grant the relief he seeks.

[9] The applicant cross examined witnesses and made submissions at this hearing. He presented as a highly intelligent and articulate person. He invokes his right to represent himself at trial in support of the relief he seeks. He is not prepared to delegate or rely on the assistance of Amicus or trial counsel in preparation for his trial. He has discharged three prior counsel for various reasons.

[10] The applicant is entitled to represent himself at trial. However, that does not mean that he is entitled to prepare or participate at his trial in all aspects as if he were counsel. There are significant qualifications to his right to represent himself. An accused person is not entitled to personally cross examine certain witnesses, including complainants in sexual assault trials. The Criminal Code ss. 486.3 provides that the court appoint counsel to conduct such cross examinations.

[11] In R. v. Jordan, [2002] O.J. No. 5350 the accused was in custody, self-represented and faced very serious charges. He applied for an order releasing him from custody or for provision of a computer, internet access and access to a law library. He had been provided with access to a special holding cell as well as legal texts to prepare for his trial in isolation from other persons in custody. His applications were dismissed. At paras 26-27 Justice Nordheimer (as he then was) indicated as follows:

The situation in which Mr. Jordan finds himself is clearly not to his liking. He wishes to be in the same position as a person who is not in custody. But the fact is that he is in custody. And there are restrictions that naturally flow from that fact. The conditions to which Mr. Jordan is subject also flow from the fact that Mr. Jordan has chosen to act for himself. He has that right, of course, but there are again consequences that flow from the exercise of that right.

Mr. Jordan cannot, in my view, choose to reject counsel and at the same time insist that he be treated exactly the same way as he would be if he had counsel. There are limits to the accommodations that can be realistically provided to someone in Mr. Jordan’s position, and within those limits, everything has been done and will continue to be done to provide Mr. Jordan with all of the tools necessary to defend himself. While he is entitled to nothing less, he is not entitled to anything more.

[12] The applicant can readily enlist Amicus to research any legal, scientific or technical issues that may assist him at his trial. He can discuss those issues in confidence with Amicus.

[13] Before leaving this matter I confirm that when I dismissed the application on April 19, 2023 I reminded the applicant that he must move expeditiously if he wants to be represented by counsel at trial. Amicus can be of great assistance to him on that if he so chooses.

Result

The application is dismissed.

B.P. O’Marra J.

Released: May 09, 2023