R. v. Jerace, 2011 ABQB 50

Court of Queen ’ s Bench of Alberta Citation: R. v. Jerace, 2011 ABQB 50 Date: 20110127 Docket: 070429808Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Michael Joseph Jerace _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.P. Marceau _______________________________________________________ Introduction [ 1 ] I found Mr. Michael Jerace guilty of one count of attempted sexual assault and one count of unlawful confinement after a trial before me, sitting alone.

The facts were extensively reviewed in my Oral Reasons for Judgment delivered December 7, 2010. The complainant in each count, a 15-year old girl, was found shoplifting by Mr. Jerace, who was 36 years of age at the time, April 11, 2007. He stopped her and told her he was with mall security and over a one-hour period he controlled her movements within the shopping mall, attempting to extort money and sexual favours from her in return for not turning her over to mall security or the police. No money was paid by the girl and no sexual favours were, in fact, obtained from her. The Charter Application

[ 2 ] However, before a conviction was entered, the Defence sought a finding that Mr. Jerace’s s. 7, 8 and 12 rights under the Charter of Rights and Freedoms were breached by the police on his arrest and by the conditions he endured while incarcerated at three different remand centres: the Edmonton Remand Centre (ERC), the Calgary Remand Centre (CRC), and the Red Deer Remand Centre (RDRC). He was in remand from the time of his arrest on April 12, 2007 until his release on March 11, 2008, and then from May 16, 2009 to May 27, 2009 (on another charge later stayed). Mr.

Jerace seeks a stay of proceedings on the two counts as a remedy under s. 24(1) of the Charter . Alternatively, he seeks a reduction of sentence. [ 3 ] Mr. Jerace was the only witness the Defence called with respect to the alleged Charter violations. On the application, he testified in-chief for 3 ½ days and then in cross-examination for 1 day. I have serious concerns about his credibility. His criminal record contains seven crimes of dishonesty from 1988 to 2005, mostly theft. In addition, in 1999 he plead guilty to two counts of sexual assault and one count of forcible confinement.

In each of the historic counts, his modus operandi was very similar to this case; he posed as security, accused young women or their companions of shoplifting, and then extorted, or attempted to extort, sexual favours. While these are not per se crimes of dishonesty, they involve posing fraudulently as mall security to extort sexual favours in return for deflecting prosecution. That is essentially dishonest and manipulative. [ 4 ] Further, his evidence seemed to me to be overly melodramatic.

He seemed able to turn on tears at will and to alter the passion with which he gave his evidence to suit the occasion he was relating.

He alternated between portraying himself as a victim, who was overwhelmed by the dangers he faced in the Remand Centre, fearful for his life, and mentally unable to cope with the conditions of incarceration, and on the other hand, as a tough professional boxer, who responded to veiled threats by shutting the mouths of those who spread rumours about him, i.e. he beat them up. [ 5 ] At one point in cross-examination, he took the opportunity afforded him by the Crown’s questioning to declare his innocence of the charges, stating he had not intended to pursue what he had started with the victim.

His evidence was not entirely clear, but I gather his training in a sexual offender program at the penitentiary had convinced him not to go through with the sexual assault. He elected not to testify at his trial and this claim of innocence is inconsistent with the evidence at trial and most inconsistent with his several attempts to extort money or sexual favours from the complainant over approximately a one-hour period. Speaking plainly, this part of his testimony was unbelievable and reflects badly on his credibility. [ 6 ] There is also something inexplicable about Mr. Jerace’s life at the time of the offence.

He told the Court that he had been steadily employed up to that time and that his girlfriend was pregnant. Yet, when incarcerated on April 12, 2007, he had no funds, and immediately applied for and obtained counsel on Legal Aid. He was impecunious throughout the time of his incarceration. On January 30, 2008, when he was finally granted bail, which required a $500.00 cash deposit, he was unable to find a friend or family member to pay the $500.00.

Eventually, he was released when the cash requirement was removed from the bail conditions. [ 7 ] Given his incredibility generally, I view with a great deal of skepticism any evidence he has given which cannot be independently verified by other witnesses or by the records kept by the remand institutions, including the 70 requests for information (RFIs) submitted by him to remand authorities. [ 8 ] With regard to the RFIs, he claims that many, as many as one-quarter, of the RFIs he submitted did not show up in the records produced by the ERC.

Given that the RFIs in the record are consistent, without any apparent gap in the narrative, I am not satisfied that there are missing RFIs, except to the extent that there may have been some overlapping RFIs regarding the same question or issue that were answered only once. [ 9 ] Mr. Jerace complains about: 1. The housing conditions in the dormitories in the ERC from April 12, 2007 to June 12, 2007; 2. The assault upon him by an inmate in the Long Term Remand Unit (“LTRU”) at the ERC; 3. The periods in administrative segregation whenever he was at the ERC.

I note that according to the records, this was only for short periods to accommodate court appearances, including bail hearings, and the preliminary inquiry.

4. The authorities’ refusal to grant his request to be located where his friends, girlfriend, and mother could visit him (the ERC), evenif it meant administrative segregation for his protection; 5. Being placed in the general population in the CRC after being assured at the ERC that he would not be so placed when he arrivedat the CRC on November 5, 2007; 6. The quality and quantity of food, the discomfort of transport in the vans, lack of exercise and fresh air, being placed in a cell witha person who had worms crawling in the area of his crotch. and strip searches at the CRC; 7. Medical care; 8.

His inability to reach his lawyers (three in all) while incarcerated at the RDRC and the CRC; 9. His illegal arrest without a warrant on the morning of August 12, 2007, by forcibly entering his dwelling to arrest him. Analysis of the Complaints [10] I will deal with each of the above complaints separately. 1. The housing conditions in the dormitories in the ERC from April 12, 2007 to June 12, 2007 [11] For the first two months, Mr. Jerace was housed in the dormitories on the basement level of the ERC.

These were designedfor use as a holding area for prisoners attending court, because it is in the admitting and discharge area (A&

D) which connects to thevans and the tunnels to the Law Courts. By 2007, it was being used as a holding area, pending space being found elsewhere; a kind ofclassification area. [12] Mr. Jerace stated that prisoners spent almost all their time in the dormitory area (52 beds per side) with very little fresh air orrecreational opportunities. He organized exercises, and I gather the inmates were allowed pretty much the run of their side of thedormitory, as opposed to being locked up. Mr. Jerace also complained about the food, but no evidence was led that the food did not meeta minimum nutritional standard.

Apparently, drunks and other persons high on drugs, filthy and vomiting, were also placed on matsbetween the beds during the night to sleep off their problems. The smell was offensive. [13] The general principles surrounding the application of s. 12 of the Charter to conditions experienced in custody werediscussed in Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6, 475 A.R. 1 at para. 985, and I concluded that the samecriteria applied to punishment are applicable to incarceration conditions. (See also, for example, R. v. Munoz, 2006 ABQB 901, 411A.R. 257). The Supreme Court in R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, set out the test for whether a punishment iscruel and unusual: is the punishment so excessive that it outrages standards of decency? To make that determination, the Court indicatedthat the punishment must not be grossly disproportionate.

In Smith, Lamer J., for the majority, indicated that the personal characteristicsof the offender were relevant to determining whether the sentence was disproportionate, noting at paras. 55-56: In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personalcharacteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would havebeen appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. (Emphasis added)

[ 14 ] The conditions in the dormitories are difficult and depending on the individual, even two months of being housed in the dormitories may rise to the level of a s. 12 breach. The kind of individual I have in mind is one who, perhaps because of a lack of social skills or physical prowess or because he is picked upon by the more aggressive individuals or sexual predators, would find even a few days of these conditions to be beyond his capacity. [ 15 ] Mr.

Jerace, on the other hand, is a professional boxer, admired by many for his physical prowess, an organizer of group exercise, who possessed considerable, albeit manipulative, social skills. In my view, he cannot be regarded as finding the conditions at the dormitories over a two-month period to rise to the level of a s. 12 breach. [ 16 ] I acknowledge that within that period he complained of being in need of counselling for depression, alleging now that the depression was caused by the ERC conditions. But Mr.

Jerace’s situation – no money, a pregnant girlfriend, no one appealing the bail refusal, no one apparently ready to raise some bail money, and facing a charge which would, if convicted, characterize him as an non- rehabilitated sexual predator – all point to a situation of serious stress not brought on by the conditions at the ERC. 2. The assault upon him by an inmate in the Long Term Remand Unit at the ERC [ 17 ] Mr. Jerace had a brother who was a correctional officer at the Fort Saskatchewan Correctional Centre (FSCC) and another brother who was a sheriff working out of the Law Courts. Mr.

Jerace was concerned that once these facts became known in a prisoner population, he would be in danger because he might be viewed as “undercover”. [ 18 ] He testified that on June 12, 2007 he was moved to the LTRU on the recommendation of Officer Du Perron, who told him that the conditions on the LTRU were much better than elsewhere in the ERC (more time out of cells, more exercise, more fresh air, etc.) and that the inmates there were more friendly. According to Mr. Jerace, he told Officer Du Perron about his brothers, and Officer Du Perron assured him he would be safe. [ 19 ] Mr.

Jerace testified that on the day he was moved to the LTRU, an inmate came to talk to him in his cell and then violently attacked him with two pencils, scraping off his skin in the area of his jugular vein and his sternum, over his heart, and cutting his navel. He fought off the attacker, apparently breaking, or nearly breaking his middle finger on his left hand in the process. He testified that he did not report the injuries at the time because he was afraid he would be labelled a rat. [ 20 ] There was some commotion involving Mr. Jerace according to the ERC records at the time, but I am not satisfied that Mr.

Jerace was ever attacked as he described. First, the record made by Officer Killips COII reads: Check off of I/M JERACE, Michael #114630. At approx. 1945 hrs, I overheard a number of inmates yelling at I/M JERACE, M #114630. I entered the unit and it seemed as though their arguement (sic) was escalating, so I ordered a unit lockup. Upon speaking with the inmates involved, I/M JERACE stated that the other inmates thought he owed them money and they know that he has brothers who are a sherriff (sic) and a guard. He informed us that he no longer felt safe on the unit and wished to move. [ 21 ] Mr.

Jerace was then interviewed by Officer Zub, and made no mention of being attacked. His stated reason for not telling Officer Zub about the pencil attack (i.e. not wanting to be called a rat) makes no sense in light of the fact that he did tell Officer Zub about his brothers and the fact that he was confronted about that by other inmates. Officer Zub told him he would be placed in administrative segregation, and then sent to another institution.

[ 22 ] Mr. Jerace testified that on June 15, 2007, while waiting in the A&D area for transfer to the RDRC, Officer Du Perron came by and, according to Mr. Jerace, apologized. He then showed Officer Du Perron the injuries to his torso, and Officer Du Perron, in apparent horror, went to get a nurse. [ 23 ] Officer Du Perron testified that he had no recollection of being told about Mr. Jerace’s brothers before recommending LTRU, of seeing Mr. Jerace in A&D, or of getting a nurse. [ 24 ] The nurse’s notes indicate she saw Mr. Jerace in A&D on June 15, 2007, the day of his transfer.

But the only complaint recorded was of a sore, possibly broken, finger. The nurse’s notes indicate he had not reported the finger injury for four days “for fear of repercussions from other inmates”. It makes no sense that having now reported the incident, he made no complaint of injuries to his neck and torso. [ 25 ] It further makes no sense that no one could corroborate that Mr. Jerace suffered injuries consistent with an attempt on his life. Officer Du Perron would, one would expect, have noticed something that dramatic, as would a nurse. Moreover, Mr.

Jerace described the friction with the other inmates because of his brothers to Officer Zub, and it would have been reasonable to have said something to him then about the attack. [ 26 ] Mr. Jerace expressed no concern about security issues because of his brothers in the form he signed to apply for LTRU status. In any event, unless there was specific knowledge of some dangerous person in the LTRU, no one would have been particularly concerned since Mr. Jerace had been in the ERC dormitories for two months and a few days in general population, and nothing untoward had happened.

Even if he was stabbed as alleged, I do not make a finding of gross negligence on the part of the ERC in placing him in the LTRU. 3. The periods in administrative segregation whenever he was at the ERC. I note that according to the records, this was only for short periods to accommodate court appearances, including bail hearings, and the preliminary inquiry 4. The authorities’ refusal to grant his request to be located where his friends, girlfriend, and mother could visit him (the ERC), even if it meant administrative segregation for his protection [ 27 ] These two complaints are closely related. Mr.

Jerace complains about the conditions he had to endure in the ERC in administrative segregation, and at the same time complains about having been transferred to the CRC and the RDRC where his mother, girlfriend, and eventually infant child, could not afford to travel in order to visit him. Because of lack of contact with his family and friends while outside of Edmonton, he asked frequently (by RFI) to be transferred back to the ERC, even if it meant enduring the harsh conditions in administrative segregation.

He also complains about never having had an “open” visit, as all his visits were behind glass, including a visit with his newborn child. He says that this had a profound and damaging effect on him. [ 28 ] In all, Mr. Jerace spent 80 days between ERC6 and ERC5D, but in practice these periods were always administrative segregation which was 23 hours in cells and two ½ hour periods per day out of the cell. Mr. Jerace testified that this was barely enough time to clean his cell and attend to personal matters such as phone calls.

Some recreation was provided during this time at the ERC and he did see visitors, but not in open visits. [ 29 ] Mr. Jerace complained bitterly about being housed in the CRC or the RDRC where his visitors, mainly his mother, the mother of his child, born September 2007, and his child, could not visit because they could not afford the cost of travel to Red Deer or Calgary. He wrote RFIs pleading to stay at the ERC in administrative segregation, rather than the RDRC or the CRC in the general population where the amount of time out of cells was greater.

The decision not to house him in the ERC seems to have been made mainly

on the recommendation of Officer Zub, who testified in this matter. Clearly, after the confrontation by other inmates in the LTRU, the ERC staff had to address concerns about Mr. Jerace’s safety. [ 30 ] I find the decision to house him in administrative segregation while in Edmonton was probably the only reasonable solution, given that his request for bail required that he return to Edmonton. Of course, being in lock-up 23 hours a day is not reasonable if other solutions may be found, and they were found in this case by transferring him to the CRC and the RDRC. [ 31 ] Although Mr.

Jerace had some initial confrontations in the RDRC and one major incident at the CRC, by his own admission he found his time at the CRC to be satisfactory in terms of lock-up, exercise, fresh air, and he actually had praise for the staff and conditions at the RDRC. He spent 108 days in the RDRC in the general population and 21 days in the CRC MAX, but in the general population.

Admittedly, he missed his mother and contact with his child and his girlfriend, but his safety had become an issue in Edmonton. [ 32 ] With one exception, for the two days in CRC MAX (lock-up), I find the decisions made by the Remand Centre concerning housing to have been reasonable. In Edmonton, he was in considerable danger because of his brothers; in Calgary, the fact that his brothers were a guard and a sheriff eventually became known and he had to be moved from there. It is also noteworthy that between July 30, 2007 and March 13, 2008, Mr.

Jerace was at the ERC on twelve occasions for periods ranging from three days to eleven days. In those periods he could, and did, receive visitors. [ 33 ] Mr. Jerace suggested that the facts about his brothers and the fight in the ERC LTRU became known in Red Deer, but he was able to handle it by “shutting some mouths”. I was left with the impression that what happened in Red Deer was a power struggle between some “toughs” and Mr. Jerace. When the “toughs” were moved elsewhere, it seems Mr. Jerace took control using his boxing skills. [ 34 ] Mr. Jerace relies heavily on the decision of McEwan J. in Bacon v.

Surrey Pretrial Services Centre , 2010 BCSC 805 . In particular, he argues that as in Bacon , “inhumane treatment cannot be justified on the basis of a choice between physical safety and psychological integrity.” (at para. 296). Bacon was subject to strikingly different circumstances than those of Mr. Jerace. From the first day at the Surrey Pretrial Services Centre (SPSC), Bacon was isolated in “separate confinement” because of threats to his life and because he was deemed to be a threat to others. Further restrictions were imposed upon him based on “police suspicions”.

He was locked up in his cell for 23 hours a day, with the lights on all day; he was only permitted to call his lawyer and no one else; he had no access, and then sporadic access to the gym and exercise; he was not allowed to speak to other prisoners; and his visitors were restricted to his parents and his lawyer. These restrictions were in place for the entire 8-14 months he was in the SPSC until McEwan J.’s decision was issued. [ 35 ] Mr. Jerace was only in segregation and 23-hour-a-day lock-up in the ERC for a few days at a time, never months on end.

He was entitled to visits, and in fact had visits, during the entire period of his incarceration. Finances made it impossible for his family to visit when he was in Red Deer and Calgary, but that is not the fault of the remand centres. The authorities transferred him to safer facilities for his protection. He was able to use the phone to call whoever he wished, but when he was out of Edmonton he was required to call collect; that caused some problems for his girlfriend who could only accept such calls at his mother’s house. But, again, that is not the fault of the remand centres.

Even while in the ERC dormitories, he was able to implement an exercise program, and most of his time was spent in the CRC and the RDRC where he had access to the gym. [ 36 ] The decision in Bacon is distinguishable . 5. Being placed in the general population in the CRC after being assured at the ERC that he would not be so placed when he arrived at the CRC on November 5, 2007 [ 37 ] On October 23, 2007, Mr. Jerace sent an RFI to the CRC stating that someone at CRC was inquiring about the fight in Edmonton, and for the first time indicated that he had been stabbed while in the LTRU. Mr.

Jerace said that he was not in danger just then, because he was going to Edmonton for a bail hearing. He indicated he might need to be on a different unit when he came back to

Calgary. He was in the ERC from October 25 to November 5, 2007. [ 38 ] When he was being returned to the CRC, Mr. Jerace said he raised a big ruckus at the ERC A&D because he would be in danger if placed back in the CRC MAX, which he understood was where he was going. He testified that someone from ERC assured him that they had phoned the CRC who would look after his protection. There is no record of this “ruckus” in Edmonton, but there is no evidence that it did not occur either.

Clearly, when he got back to the CRC, he voiced his concerns and was locked in his cell for his protection in MAX and within a couple of days he was moved off that unit. [ 39 ] I have no reason to disbelieve his evidence that excrement was thrown into his cell and that some inmates planned an attack on him, which was nearly successful. I believe Mr. Jerace rightly feared for his life on this occasion. There may have been some mis- communication from the ERC to the CRC, but the CRC did treat his concerns as requiring protection and they did respond to the situation.

The incident was regrettable, but I cannot infer that there was anything approaching a nonchalant or uncaring attitude on the part of the administration in the CRC. 6. The quality and quantity of food, the discomfort of transport in the vans, lack of exercise and fresh air, being placed in a cell with a person who had worms crawling in the area of his crotch and strip searches at the CRC [ 40 ] Mr. Jerace testified that the food was terrible at the ERC, somewhat better at the CRC and quite acceptable at the RDRC.

There was no evidence that the food did not meet the minimum standard as far as preparation and nutrition are concerned. [ 41 ] When he went to ERC for a period of eleven days in May of 2009, his mouth was wired shut because his jaw had been broken while training for a fight. He was prescribed a liquid diet which he found inadequate. He claimed the staff agreed, because they brought him puréed food from home. He says he lost weight.

There is no expert evidence that his diet was inadequate and his weight loss is not corroborated. [ 42 ] The lack of exercise and fresh air are general complaints which do not seem to be about the CRC or the RDRC. At the ERC the complaints are a little vague since there was some exercise and fresh air in the dormitories and when in administrative segregation. The administrative segregation periods were usually short and never exceeded eleven days. Evidence of this complaint does not indicate a breach of s. 12. [ 43 ] Transport in the vans was in the solitary confinement

section at the back of the vans. The trips to Red Deer were about 2 ½ hours and when the trip was from Edmonton to Calgary or Calgary to Edmonton, it was broken up by a stop in Red Deer. There is no question he was uncomfortable in the van, but there was no evidence he was in pain, except for the time he said he nearly froze his feet.

In the absence of any medical evidence that he sought or required medical care for this incident and the fact that the incident did not give rise to a complaint by way of an RFI (he filed 70 RFIs in his 11 ½ months of incarceration), I do not put much stock in this complaint. [ 44 ] Mr.

Jerace also argues that his transport in the vans was arbitrary because “there was no reason to treat him this way.” This complaint does not specify what was arbitrary about the transportation, but I note that it was necessary to transport him to other remand centres for his own safety, that prisoner transport is accomplished in the Remand Centre vans, and that it was reasonable to place him in the solitary compartment of the van because of security issues. [ 45 ] Mr. Jerace also complains that there was only limited access to media while in the ERC.

In particular, he notes that the TVs only carried one channel, there were no radios in the dormitories, and on 5D there were too few newspapers and no magazines. There were some books. Given the time periods involved at the ERC, this does not give rise to a s. 12 breach. [ 46 ] I appreciate that he was housed with an inmate who, according to Mr. Jerace, had worms crawling in the area of his crotch. There is no evidence to corroborate Mr. Jerace’s testimony. There is no evidence that the ERC staff knew about this problem before placing that inmate in Mr. Jerace’s cell. According to Mr.

Jerace, the inmate was moved out as soon as Mr. Jerace complained. There is

no evidence of a Charter breach because of this incident. [ 47 ] Other general conditions Mr. Jerace complains about include not being able to wear the clothing permitted on the LTRU, when he was not on the LTRU. He argues that since it was not his fault he could not remain on the LTRU, he should not be penalized by not being permitted to wear the LTRU clothes which were more comfortable. He argues that these clothing issues should be considered as part of the cumulative conditions which, added together, amount to a Charter breach. He also complained about the inadequate shoes, and guard attitudes.

I find no basis for concluding that these are sufficient to be a breach of s. 12. [ 48 ] The complaint about strip searches is only with respect to admission at the CRC which appears to have happened only three times. Mr. Jerace says he had to strip off his clothing and then walk down a corridor to get new clothes and on these walks other inmates and, of course, correctional officers, could see him naked. He said he was uncomfortable the first two times, but he got used to it after that. I did not get a clear picture of just how the procedure was carried out. [ 49 ] In Vancouver (City) v.

Ward , 2010 SCC 27 , [2010] 2 S.C.R. 28 and R. v. Golden , 2001 SCC 83 , [2001] 3 S.C.R. 679 , two decisions cited by Mr. Jerace, the issue was strip searches of persons who were not yet charged and are thus distinguishable. In the trial decision, Ward v. Vancouver (City) , 2007 BCSC 3 , 63 B.C.L.R. (4th) 361 , Tysoe J. held that Mr. Ward’s Charter rights were breached because it “was unreasonable to permit strip searches of persons being held for a breach of the peace in the absence of any threat to the safety and security of the Jail” (at para. 86).

That finding was not challenged at the Supreme Court. [ 50 ] In Golden , the Supreme Court was dealing with the reasonableness of a strip search in the course of an arrest, and in the course of those reasons discussed the difference between a search on arrest and searches in custodial settings (paras. 96-97): It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting.

We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment ... The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells...

The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter ... which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving.

Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. (Emphasis added) [ 51 ] Thus, while the factors considered by the Court as to the seriousness of strip search harm in Ward may be relevant, they must be considered in the context of the remand centre setting where Mr.

Jerace was leaving one remand centre and entering another. Mr. Jerace cites the Court in Ward for the very broad proposition that strip searches are “inherently humiliating and thus constitute a significant injury to an individual’s intangible interests regardless of the manner in which they are carried out.” However, the Court then went on to address a number of factors that affected the seriousness of the damage to Mr. Ward’s interests (at para. 71-72 ): That said, the present search was relatively brief and not extremely disrespectful, as strip searches go. It did not involve the removal of Mr.

Ward’s underwear or the exposure of his genitals. Mr. Ward was never touched during the search and there is no indication that he suffered any resulting physical or psychological injury. While Mr.

Ward’s injury was serious, it cannot be said to be at the high end of the spectrum... ...That said, the officers’ action was not intentional, in that it was not malicious, high-handed or oppressive. [ 52 ] Considering these factors, and keeping in mind that the Court was considering them in the context of assessing damages, not whether there was a breach of Charter rights, I note that on the evidence here the searches appeared to have been brief, were not disrespectful, did not involve touching, and there is no indication of resulting physical or psychological harm. Further, the correctional

officer’s actions were not malicious, high-handed or oppressive. [53] Mr. Jerace’s specific complaint appears to be that he was required to appear naked before other inmates and correctionalofficers other than those conducting the search. He relies on the Supreme Court of Canada decision in R. v. Simmons, (SCC), [1988] 2 S.C.R. 495 for the proposition that embarrassing strip searches must be performed in private search rooms so as not tobe in breach s. 8. Simmons was a border-crossing case and dealt with strip searches in the context of customs officers.

It is clearlydistinguishable from the situation here. [54] Of course, strip searches are demeaning and every effort must be made to minimize discomfiture, but on this evidence alone Iam not satisfied that a Charter breach has been proven. 7. Medical care [55] This complaint is in two parts. First, there is the complaint that he was not treated by psychiatrists for his depression in atimely manner. I have looked at the RFIs and his evidence.

As far as I can ascertain, there was only one occasion when arecommendation was made that he see a psychiatrist, but he was transferred to the RDRC before an appointment could be set up inEdmonton. Viewed generally, he had access to a psychiatrist in a timely fashion and antidepressant drugs prescribed to him which weregiven to him free of charge. [56] Chelsea Farrant, Mr. Jerace’s former girlfriend, testified that Mr. Jerace told her he would have been out of the ERC sooner,but he was trying to build a case against the ERC and that he was faking his depression. I put very little or no weight on Ms.

Farrant’sevidence that Mr. Jerace orchestrated his fake mental illness for the purpose of providing evidence for a lawsuit against the ERC. MeganHarkus, a friend of Ms. Farrant, testified in rebuttal to Ms. Farrant’s evidence, suggesting that Ms. Farrant was not credible. While I givevery little weight to Ms. Farrant’s evidence, I also give little weight to Mr. Harkus’ evidence as well. [57] Therefore, I have no reason to disbelieve Mr. Jerace’s statement that he was depressed and needed treatment.

As defencecounsel has pointed out, psychiatrists and especially psychiatrists who treat the prison population, are always on the alert for fakers evenif the clinical impression is formed mainly from the self-report of the patient. In any event, I find that Mr.

Jerace received adequatepsychiatric and psychological care. [58] The second major aspect of his medical complaint is that the ERC nursing staff failed to provide him with appropriate painmedication when he had his first dental problem immediately after admission on April 12, 2007, and that similarly the staff at the RDRCin February 2008 also failed to provide adequate pain medication. In particular, he complains that he was not given Tylenol 3 for dentalpain. [59] On April 13, 2007, Mr.

Jerace sent an RFI saying “My molar back tooth is split in half and root nerve is exposed causing lotsof pain.” He highlighted the word “Dentist”. In reply, a dental appointment was booked for April 19, 2007. On the same day, he sent a second RFI asking for painkillers. The response on April 17th was that a dental appointment was booked for April 19, 2007. TheOffender History form signed by Mr. Jerace on April 12, 2007 indicates he reported the sore tooth on that day and the nurse noted “commence on Motrin”.

My reading of the nurse’s medication chart is that he was given the painkiller Motrin from April 12th to April 19th and then the painkiller, “Tylenol 3, PRN” from April 19th to April 24th. Therefore, he was given pain medication virtuallyimmediately upon his complaint, albeit not Tylenol 3. The term PRN is a Latin contraction translated as “as the thing is needed”. Thereare no nurse’s entries for April 19 to April 24, which means he did not request Tylenol for this period. [60] It is well known, as attested to by Mr.

Jerace, that remand centres house many drug addicts who will try to obtain narcotics toproduce a high. Tylenol 3 contains the narcotic codeine. The nursing staff must be careful when dispensing a drug with codeine in it, butthey do so. I am not prepared to second-guess the nursing staff who gave him the non-narcotic painkiller, Motrin, initially, and thenfollowed the instruction of the dentist to give him Tylenol 3 for a 5-day period, if requested. His assertion that he was not given Tylenol3 is untrue; he was prescribed Tylenol 3 as needed, once he was seen by the dentist.

This was reasonable. [61] In February 2008 while at the RDRC, Mr. Jerace testified that he had tooth pain so severe that he tried to remove the tooth bycrude surgery, and apparently broke the tooth. The first medical note is at February 20, 2008 at 19:00 hours. The RFI of that date reads

in part: My top right molar is acting up severly (sic), last night a guard brought me two Tylenol which did absolutely nothing. I need this tooth removed ASAP. If not could you bring me something stronger? The answer to the RFI was: We have no dentist at this facility. If you request, you can go to CRC or ERC to have your tooth taken care of. For now, we can give you Motrin PRN or Orajel. [ 62 ] The next medical nursing staff note is made at 16:45 hours on February 21, 2008. It reads: I/M states another tooth broke off earlier today. ++ pain. Motrin 600 mg. given PO.

Will give Tylenol #3 later this evening as per S.O. Head nurse will arrange emergency dental appointment in the AM.” [ 63 ] Further, the medication notes indicate that on February 20, 2008, he was given 14 tablets of Motrin 200 mg. and 28 tablets of penicillin. The nurse’s notes also show he was given Tylenol 3 on February 21, 2008 in the evening and then, after he saw the dentist on February 22 nd , he was treated with Tylenol 3 for several more days. The crude attempt at surgery certainly was foolish and may have aggravated his condition.

Again, based on this evidence, I do not accept his evidence that he was given no Tylenol 3. [ 64 ] His complaints of poor medical care, including dental care, are simply not borne out by the documentation which shows that he was properly treated for all his ailments. 8. His ability to reach his lawyers (three in all) while incarcerated at the RDRC and the CRC [ 65 ] Mr. Jerace also complains that he had difficulty maintaining contact with his lawyers, and accessing people and agencies in relation to his legal situation, including raising money for bail.

He says that these problems were the result of the transfers out of Edmonton and the phone system in place at the remand centres which prevented him from making long-distance calls unless they were made collect. [ 66 ] There is evidence of a bail refusal in Provincial Court on May 24, 2007. There is no evidence of a hearing in the Court of Queen’s Bench until Mr. Jerace himself booked a hearing for late October 2007. From June 15 th to July 30 th , Mr. Jerace was in the RDRC. His evidence was that he could not phone his lawyer because he could not call him collect.

Review of the RDRC records reveals an RFI dated June 20, 2007, which shows that he was permitted to call his lawyer on June 21, 2007, without having to do so collect. RFIs on June 25 and June 26, 2007 informed him that his lawyer could be placed on the “free call” list with the lawyer’s permission, and by July 3 rd his lawyer’s number was on the free call list at the RDRC. [ 67 ] On July 23, 2007, Mr. Jerace sent an RFI to the RDRC requesting a transcript of his July 18, 2007 bail hearing in Edmonton. At trial, Mr.

Jerace did not seem to recall this bail hearing and he was obviously not in Edmonton on July 18, 2007. If a bail application was made, it was not successful. Mr. Jerace wrote in the RFI that he was not asking his lawyer for the transcript “for various and personal reasons”. From July 30, 2007 to August 3, 2007, he was in Edmonton and there are no RFIs indicating any problem talking to his lawyer. [ 68 ] He later encountered the same problem telephoning his new lawyer when he was at the CRC. There, also, his lawyer’s number was put on the free call list.

When he decided his lawyer was not getting a bail application going, he was permitted to talk directly to a Court of Queen’s Bench clerk in Edmonton, and after that, he was able to set up a system where he called the Court of

Queen’s Bench in Calgary (not long distance from the CRC) who then patched him through to the Court of Queen’s Bench in Edmonton.Also, the records show that he was at the ERC from August 9 to 14, 2007; September 7 to 13, 2007; September 20 to October 3, 2007;October 25 to November 5, 2007; December 3 to December 6, 2007, and then January 9 to 16, 2008 and January 29 to February 1, 2008.He was granted a bail order on January 30, 2008.

During these periods, his telephone calls to lawyers and his family would not have beenlong distance and there is no apparent reason for not being able to talk to his lawyers. [69] Mr. Jerace testified that with respect to the second lawyer, he kept leaving messages at his office, highlighting the word“bail”. Mr. Jerace complained bitterly that his lawyers, at least the first two, would not return his calls and would not put a bailapplication in place. The third lawyer did make the bail application on January 30, 2008 and when Mr.

Jerace could not raise the $500.00cash bail (an amount he had told his lawyer he could raise) that lawyer was able to have a judge remove the cash deposit requirement sothat Mr. Jerace was released on March 13, 2008. As far as the records are concerned, every time Mr. Jerace asked to make telephonecalls to his lawyers from the CRC or the RDRC (long distance calls), he was put on the free call list. There is no evidence that he was notpermitted to call his lawyers. There is plenty of evidence that Mr.

Jerace was unhappy with the service provided by his first two lawyers,but the remand centres bear no responsibility for that. No s. 12 breach of the Charter is made out. 9. His illegal arrest without a warrant on the morning of August 12, 2007, by forcibly entering his dwelling to arrest him [70] Four policemen, including Constable Branco, all in uniform, came to the door of Mr. Jerace’s apartment. He had told hisgirlfriend that the police would probably be coming because of an incident.

The policemen did not identify themselves, and stood to theside of the door of the apartment and his girlfriend told them that he was not there. They then used the subterfuge of saying that someoneneeded help. Mr. Jerace opened the door and, according to Mr. Jerace, he was immediately rushed by all of the policemen and placedunder arrest. He asked to be able to dress properly, as he was in shorts, and they allowed him to dress.

He said that after he was clothed,Constable Branco threw him against the wall, handcuffed him and told him he was under arrest, and then he was read his rights. [71] Constable Branco was the only one of the four policemen who testified, and he denied that they rushed Mr. Jerace, but headmitted that when Mr. Jerace saw the policemen, he tried to close the door and was prevented from doing so by one of the constables.The only difference in the evidence is that at this point Constable Branco said that Mr. Jerace invited the policemen in, and Mr. Jeracesaid that he was rushed and overpowered.

Constable Branco also denied that he used any force when handcuffing Mr. Jerace. [72] I will not comment upon whether the police are permitted, by giving false information, to entice a person out of his privatedwelling for the purpose of arresting him without a warrant, but I find as a fact that when Mr. Jerace proceeded to close the door toprevent the police from entering his private dwelling, the police acted illegally, breaching ss. 529 and 529.3 of the Criminal Code andalso breaching his s. 9 Charter rights.

The sight of four police officers obviously banded together would be a powerful show of force,and given that the other three policemen were not called, I prefer the evidence of Mr. Jerace over that of Constable Branco on the issueof whether Mr. Jerace ever invited the policemen into his apartment. [73] On this basis, the arrest without warrant was contrary to the Supreme Court of Canada’s decision in R. v.

Feeney, (SCC), [1997] 2 S.C.R. 13 at paragraph 51, where the Court set out the following: To summarize, in general, the following requirements must be met before an arrest for an indictable offence in a private dwelling islegal: a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within thepremises in question; and proper announcement must be made before entering. An exception to this rule occurs where there is a case ofhot pursuit.

Whether or not there is an exception for exigent circumstances generally has not been fully addressed by this Court, nor doesit need to be decided in the present case given my view that exigent circumstances did not exist when the arrest was made. I willelaborate on this last point presently. [74] The rules in Feeney have since been codified in the Criminal Code in ss. 529-529.5 which read as follows: 529.

(1) A warrant to arrest or apprehend a person issued by a judge or justice under this or any other Act of Parliament may authorize apeace officer, subject to subsection (2), to enter a dwelling-house described in the warrant for the purpose of arresting or apprehendingthe person if the judge or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the personis or will be present in the dwelling-house.

... 529.1 A judge or justice may issue a warrant in Form 7.1 authorizing a peace officer to enter a dwelling-house described in the warrantfor the purpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied byinformation on oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that (

a) a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada; (

b) grounds exist to arrest the person without warrant under paragraph 495(1)(

a) or (

b) or

section 672.91; or (

c) grounds exist to arrest or apprehend without warrant the person under

an Act of Parliament, other than this Act. 529.3

(1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law,the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to insection 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in thedwelling-house, and the conditions for obtaining a warrant under

section 529.1 exist but by reason of exigent circumstances it would beimpracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to anyperson; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in thedwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. [75] I find that the arrest was unlawful and contrary to ss. 529 and 529.3 of the Criminal Code and contrary to s. 9 of the Charter,and I will deal with that breach as part of the sentencing process. If

Section 12 is not Breached, do the Described Conditions Breach

Section 7? [76]

Section 7 of the Charter reads as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [77] Mr. Jerace asserts, rightfully, that he has some remaining liberty rights. As noted by Cory J. in Winters v. Legal ServicesSociety, (SCC), [1999] 3 S.C.R. 160 (at para. 63): In Martineau No. 2, supra, and the trilogy of R. v. Miller, (SCC), [1985] 2 S.C.R. 613, Cardinal v. Director of KentInstitution, (SCC), [1985] 2 S.C.R. 643, and Morin v.

National Special Handling Unit Review Committee, (SCC), [1985] 2 S.C.R. 662, it has been specifically determined that incarcerated persons continue to possess a residual libertyinterest that can be implicated by institutional action. For example in Miller, supra, at p. 637, Le Dain J. wrote: "In effect, a prisoner hasthe right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution." ...Although prisoners have been deprived in large measure of the liberty enjoyed by most citizens, they continue to possess the liberty

enjoyed by the general penitentiary population. [78] Mr. Jerace’s argument continues that he has been deprived of these residual liberty interests and of his right to security of theperson in a manner that does not accord with the principles of fundamental justice. He relies, in part, on the residuary theory of s. 7 setout in Reference re Motor Vehicle Act (British Columbia) S. 94(2), (SCC), [1985] 2 S.C.R. 486. That theory holdsthat the legal rights set out in ss. 8-14 are simply illustrations of s. 7. He relies on an

article by Sanjeev Anand, “ReasonableChastisement: A Critique of the Supreme Court’s Decision in the Spanking Case”, (41 Alta. L.R. 871) who discussed this theory, noting(at 873): ... even when a legislative provision does not infringe ss. 8-14, because of the relatively precise language used to articulate these sectionsof the Charter, the residual elements of these rights may inform a s. 7 analysis. [79] As an example, Anand references Thomson Newspapers v. Canada, (SCC), [1990] 1 S.C.R. 425, in whichcorporate officers objected to oral examination under anti-competition legislation. The Court held that while the provisions against self-incrimination under ss. 11(

c) and 13 of the Charter were not applicable, the principles of fundamental justice in s. 7 contained someresidual elements of this right. [80] Under this reasoning, Mr. Jerace suggests that even if the conditions he experienced do not amount to a breach of s. 12because they are not grossly disproportionate, they may still breach s. 7. [81] In Trang v.

Alberta (Edmonton Remand Centre), 2010 ABQB 6, 475 A.R. 1, I discussed the applicability of s. 7 to theremand setting, noting (at paras. 956-957) : The Supreme Court of Canada in Reference re Motor Vehicle Act (British Columbia) S. 94(2), (SCC), [1985] 2 S.C.R.486 analyzed s. 7, noting the following: a. the words "principles of fundamental justice" is a qualifier to the protected right not to be deprived of "life, liberty and security ofthe person"; its function is to set the parameters of that right; b.

"Fundamental justice" is not the equivalent of "natural justice", as it would strip the protected interests of most of their contentand be inconsistent with the affirmative purposive expression of those rights. c. Sections 8 to 14 of the Charter address specific deprivations of the right to life, liberty and security of the person in breach of theprinciples of fundamental justice, and as such, are violations of s. 7. These sections are illustrative of the meaning of "principles offundamental justice" in criminal or penal law. d.

These principles are not limited to procedural guarantees; whether any given principle may be said to be a principle offundamental justice rests on an analysis of the nature, sources, rationale and essential role of that principle within the judicial process andin our evolving legal system. e. The words "principles of fundamental justice", therefore, cannot be given any exhaustive content or simple enumerativedefinition but will take on concrete meaning as the courts address alleged violations of s. 7. The Supreme Court has since gone on to say in R. v.

Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74 (at para. 113) and CanadianFoundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4 (at para. 8) that for a ruleor principle to constitute a principle of fundamental justice for the purposes of s. 7 it must meet three criteria:

(1) it must be a legal principle; (2) there must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and (3) it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. [ 82 ] I went on to discuss whether there was a principle of fundamental justice at issue separate and apart from s. 12, noting (at para. 958): The Court in Malmo-Levine addressed this question in relation to the same Charter sections here, ss. 7 and 12.

The Court there was looking at punishment, as opposed to treatment, under s. 12, and held that the principle of fundamental justice at issue was the proportionality of the punishment in question. It went on to consider whether s. 7 could set a different standard than s. 12 (at para. 160): Is there then a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment that does not infringe s. 12? We do not think so.

To find that gross and excessive disproportionality of punishment is required under s. 12 but a lesser degree of proportionality suffices under s. 7 would render incoherent the scheme of interconnected "legal rights" set out in ss. 7 to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter. Such a result, in our view, would be unacceptable. [ 83 ] I am bound by that conclusion by the Supreme Court, and by the statement by Slatter J.A. who stated in Trang v.

Alberta (Edmonton Remand Centre) , 2010 ABQB 6 , 475 A.R. 1 (at para. 37 ): The mechanics of incarceration do not however engage fundamental principles of justice.

In Malmo-Levine at para. 113 the Court stated: In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

Specific conditions that might prevail in prisons and prison vans from time to time do not engage fundamental assumptions about how the judicial system should operate. [ 84 ] Thus, unless Mr. Jerace can identify the breach of some principle of fundamental justice, his argument on this point must fail. [ 85 ] In Bacon , McEwan J. found a breach of Mr. Bacon’s s. 7 rights, but that finding was based on a s. 7 analysis that identified a distinct principle of fundamental justice beyond the conditions he experienced. Mr.

Bacon was subjected to numerous restrictions on his liberty and threats to the security of his person through psychological stress, based on police suspicions that he might be a threat; this deprived him of any due process. McEwan J. considered the Correction Act Regulation that mandated that these kinds of restrictions be imposed on the basis of actual behaviour by the inmate. Mr.

Bacon had no ability to respond to the police suspicions and make a case for himself (at para. 322): In implementing restrictions based on police suspicions, the respondent negated any meaningful resort to due process by effectively substituting new and much more onerous tests than those she was required to apply under the Correction Act Regulation. There, the mandate focuses on harm to the institution or others on the basis of actual behaviour in, or emanating from, the institution.

The restrictions the respondent imposed made it impossible for the petitioner to demonstrate adherence to the appropriate standard, which meant he had no means to improve his situation. When the basis for deprivation is "the police believe you might try something", and paper reviews are conducted on the mantra that "they still think so", there can be no semblance of fundamental justice.

[ 86 ] While there have been restrictions on Mr. Jerace’s residual liberty interests, they have not been imposed in a manner that implicates a principle of fundamental justice. The restrictions he complains of, lack of access to his family, the ERC living conditions generally, in segregation and in the dormitories, and placements in the CRC and the RDRC, do not implicate some failure of due process, but are the result of transparent and fair processes. [ 87 ] Mr.

Jerace has not identified a legal principle about which there is a consensus that it is fundamental to the fair operation of the legal system with sufficient precision to yield a manageable standard against which to measure deprivations of liberty and security of the person. I conclude that there has been no breach of s. 7 of the Charter in the conditions Mr. Jerace experienced. Conclusion [ 88 ] I therefore find that the conditions experienced by Mr. Jerace at the ERC, the CRC and the RDRC did not breach his Charter right.

His arrest, however, was unlawful and in breach of ss. 529 and 529.3 of the Criminal Code and his s. 9 Charter rights. The impact of this breach will be addressed in sentencing. Heard from the 7 th – 17 th days of December, 2010. Dated at the City of Edmonton, Alberta this 26 th day of January, 2010. R.P. Marceau J.C.Q.B.A. Appearances: Robert A. Fata and Megan Rosborough for the Crown Thomas Engel for the Accused