HER MAJESTY THE QUEEN — v. —, 2020 ONCJ 412

CITATION : R. v. Gledhill , 2020 ONCJ 412 DATE : September 15, 2020 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MARK GLEDHILL Before Justice John North Reasons for Judgment September 15, 2020 C. Ponesse................................................................................................... counsel for the Crown M. Gledhill............................................................................................................. self-represented NORTH J.: I.

INTRODUCTION [ 1 ] Mark Gledhill is charged with six counts of refusing to comply with the boundary condition of a probation order, contrary to s. 733.1(1) of the Criminal Code . It is alleged that Mr. Gledhill violated the boundary condition on the following dates in 2017: October 11 th ; October 27 th ; October 30 th (x2); November 3 rd ; and November 6 th . [ 2 ] Mr. Gledhill is also charged with one count of failing to attend court on September 26, 2016, contrary to s. 145(2) (

a) of the Criminal Code . [ 3 ] The Crown elected to proceed summarily on all counts. [ 4 ] The matter proceeded as a blended Charter application and trial. With the exception of Mr. Gledhill’s testimony, the evidence of all of the witnesses was admissible on the Charter application and the trial proper. Mr. Gledhill testified twice – first, on the Charter application and then on the trial proper. It was agreed that Mr. Gledhill’s testimony on the Charter application was not admissible on the trial proper. [ 5 ] Mr. Gledhill argued that his rights under ss. 7, 8, 9 and 11(

d) of the Charter had been violated. I previously dismissed the Charter application, with reasons to follow. I found that, on one occasion, Mr. Gledhill’s rights under s. 9 had been infringed. I concluded that there was no merit to any of the other Charter arguments. I found that there was no basis to either exclude any evidence under s. 24(2) or enter a stay the proceedings under s. 24(1) of the Charter . [ 6 ] These are my reasons on both the Charter application and the trial proper. [ 7 ] Mr. Gledhill was self-represented throughout the trial. However, counsel was appointed pursuant to s. 486.3(3) of the

Criminal Code to conduct the cross-examination of a complainant in an assault with a weapon charge. Later in the trial, at the request of the Crown, the assault with a weapon charge was dismissed. [ 8 ] The primary focus of Mr. Gledhill’s defence, apart from the Charter issues, was the argument that the Crown had not established the requisite mens rea for any of the alleged offences. [ 9 ] At the outset, it may be helpful to set out three of my conclusions.

I will explain why I arrived at these conclusions later in the reasons. [ 10 ] First, I found that all of the security guards and police officers who were called as witnesses by the Crown provided credible and reliable evidence. [ 11 ] Second, the evidence clearly established that Mr. Gledhill was within the area that was subject to the boundary condition on all of the dates that he was alleged to have violated that condition. [ 12 ] Third, the evidence clearly established that Mr.

Gledhill did not enter the courtroom for his trial on September 26, 2016. [ 13 ] A relatively large number of witnesses testified at this trial. It is not necessary to conduct a detailed review of the testimony of all of the witnesses. [ 14 ] In the following section, I provide some additional background and a brief

summary of much of the evidence. After that, I review, in greater detail, the evidence of three witnesses: Jesus Rodriguez Santiago, Constable Steven Delottinville and Mr. Gledhill. Following that, I set out my credibility and reliability findings. Finally, I address the Charter issues and the issues on the trial proper. II. EVIDENCE [ 15 ] On April 2, 2015, after being found guilty of mischief contrary to s. 430(4) of the Criminal Code , Mr. Gledhill was sentenced by Zuker J. of the Ontario Court of Justice to a $500 fine and a three-year probation order.

The probation order included a condition which required Mr. Gledhill to report to a probation officer within two working days. The probation order also included a boundary condition. The boundary condition provided as follows: “Not to be in the area bounded by Bloor Street to the north, King Street to the south, University Avenue to the west and Yonge Street to the east except with the prior permission of probation, for medical emergencies or attending court.” [ 16 ] Mr. Gledhill did not sign this probation order. Mr.

Gledhill testified during this trial that a clerk of the court refused to provide him with an unsigned copy of the probation order. [ 17 ] On January 9, 2016, Mr. Gledhill was arrested and charged with failing to comply with the probation order by not reporting to a probation officer within two working days. During this trial, Mr. Gledhill acknowledged that he did not report to a probation officer. Mr. Gledhill testified that he was not aware that the April 2, 2015 probation order included a reporting condition or a boundary condition. [ 18 ] Mr.

Gledhill testified that he did not receive a copy of the April 2, 2015 probation order until January, 2016, when it was included in the disclosure that he was given by the Crown for the charge of failing to report to a probation officer. Mr. Gledhill was self- represented on that matter. [ 19 ] The failing to report to a probation officer charge was withdrawn by the Crown on July 17, 2018. [ 20 ] During this trial, a number of CCTV recordings were introduced into evidence. During cross-examination, Mr.

Gledhill stated as follows, “[t]he video surveillance says that I’m – says I’m there, but that doesn’t prove intent to breach probation. That’s what I’ve been saying all along.” Even without Mr. Gledhill’s position on this issue, based on all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Gledhill appears in each of these CCTV recordings in the locations and on the dates alleged by the Crown. A. Fail to Attend Court – September 26, 2016 [ 21 ] On January 10, 2016, the day after he was arrested for failing to report to a probation officer, Mr. Gledhill was released on a recognizance.

The recognizance required him to attend court on February 17, 2016, and “thereafter as required by the court in order to be dealt with according to law.” On September 7, 2016, the court set a two-day trial to commence on September 26, 2016 in courtroom 123 at the Old City Hall courthouse. [ 22 ] The Crown alleges that Mr. Gledhill failed to attend court for his trial on September 26, 2016. On that day, a bench warrant was issued for his arrest. During cross-examination on the trial proper, Mr.

Gledhill testified that he was in the Old City Hall courthouse on September 26, 2016, but that he did not enter courtroom 123. [ 23 ] Constables Steven Casasola and Tom Leney are Toronto Police Service (TPS) officers. Both testified at this trial. They were at the Old City Hall courthouse on September 26, 2016 to be witnesses on Mr. Gledhill’s trial for the charge of failing to report to a probation officer. [ 24 ] Both officers testified that they saw Mr. Gledhill outside of courtroom 123 before 10 a.m. According to the officers, they entered courtroom 123 when the trial judge arrived.

Both officers testified that Mr. Gledhill was told on a number of occasions that he was required to enter the courtroom. However, Mr. Gledhill did not enter the courtroom. The trial judge requested that someone step into the hallway to tell Mr. Gledhill to enter the courtroom.

[ 25 ] Constable Leney testified that he walked out of the courtroom to convey the trial judge’s direction, but Mr. Gledhill was no longer in the hallway. Constable Leney reported to the trial judge that he did not see Mr. Gledhill outside of the courtroom. [ 26 ] The trial judge asked if someone would walk around the courthouse to see if Mr. Gledhill was still in the building. The officers spent about 30 minutes looking for Mr. Gledhill. After that, they advised the trial judge that they did not find him. The trial judge issued a bench warrant for Mr. Gledhill’s arrest. [ 27 ] I will review Mr.

Gledhill’s evidence as it relates to this count later in these reasons. B. Fail to Comply with the Boundary Condition – October 11 th , 27 th . 30 th . (x2); November 3 rd . and 6 th , 2017 1. October 11, 2017 – Bay Adelaide Centre [ 28 ] On October 11, 2017, Jesus Rodriguez Santiago called 911 and reported that he had been assaulted by an unknown man in a public washroom located in the underground PATH system. The alleged assault occurred at 333 Bay Street, which is part of the Bay Adelaide Centre. [ 29 ] Mr. Santiago testified that he took a photograph of the alleged assailant while they were in the washroom.

It is not disputed that the person depicted in the photograph was Mr. Gledhill. [ 30 ] CCTV recordings that were introduced into evidence show Mr. Gledhill and Mr. Santiago in the Bay Adelaide Center after they left the public washroom. [ 31 ] Ermine Marshall, who was a security guard working at the Bay Adelaide Centre on October 11, 2017, testified that she dealt with Mr. Gledhill and Mr.

Santiago while she was at the security desk on the main floor of 333 Bay Street. [ 32 ] The evidence establishes that both the public washroom and the security desk at 333 Bay Street were in the area that was subject to the boundary condition. [ 33 ] Mr. Santiago spoke with uniformed police officers about this matter. On October 19, 2017, he gave a statement to Constable Steven Delottinville of the TPS. 2. October 19, 2017 – Statement by Mr. Santiago to Constable Delottinville [ 34 ] On October 19, 2017, Mr. Santiago met with Constable Delottinville of the TPS, who had been assigned to investigate this matter.

Mr. Santiago provided Constable Delottinville with a statement and an electronic copy of the photograph that he had taken of the man who allegedly assaulted him. [ 35 ] In an effort to identify the suspect, Constable Delottinville prepared a TPS news release which included a photograph of the suspect.

The news release stated that the TPS “requests assistance identifying a man wanted in an assault with a weapon investigation.” The news release included other information about the alleged assault and a description of the suspect. [ 36 ] Constable Delottinville submitted a draft version of the news release to the Corporate Communications department of the TPS on October 25, 2017. It appears that this news release was added to TPSnews.ca on October 26, 2017. TPSnews.ca is a website operated by the TPS. [ 37 ] As previously stated, I will review the evidence of Mr. Santiago, Constable Delottinville and Mr.

Gledhill in more detail in the next section. 3. October 27, 2017 – Canadian Tire, 65 Dundas Street West [ 38 ] On October 27, 2017, security staff at the Eaton Centre were contacted by a store manager at Mark’s Warehouse. The manager advised that there was a man in the store who was wanted by the TPS. When a security guard, Charles Abrahams, arrived at Mark’s Warehouse, the manager showed him the TPS news release regarding the alleged assault on October 11, 2017. The manager pointed to a man in the store. Mr. Abrahams testified that this man was the person whose photograph appeared in the TPS news release.

The man in the store was Mr. Gledhill. Mr. Abrahams radioed the main security office and asked that uniformed paid duty TPS officers, who were working at the Eaton Centre, attend the store. [ 39 ] Mr. Abrahams followed Mr. Gledhill to the Canadian Tire store, at 65 Dundas Street West. This is just west of Mark’s Warehouse. Two uniformed paid duty TPS officers arrived at the scene. [ 40 ] Constables Balaza Zanati and Marcel Lewis testified that they detained Mr. Gledhill as he was about to leave the Canadian Tire store. A short time later, Mr.

Gledhill was placed under arrest and transported to 52 Division. [ 41 ] Mr. Gledhill was charged with assault with a weapon. The evidence establishes that the Canadian Tire store at 65 Dundas Street West is within the area that was subject to the boundary condition. [ 42 ] Much of the interaction between the two TPS officers and Mr. Gledhill was captured by a Canadian Tire CCTV camera. This recording was introduced into evidence. 4.

October 30, 2017 – Bay Adelaide Centre [ 43 ] Ajay Gaud, a security guard who was working at the Bay Adelaide Centre on October 30, 2017, testified that at approximately 6:00 p.m. he had a conversation with a man who had just walked out of a public washroom. The man complained to Mr. Gaud that he had witnessed sexual activities occurring in the washroom. Mr. Gaud reported this complaint to a supervisor.

[ 44 ] Later that evening, Mr. Gaud and his supervisor reviewed CCTV recordings taken from cameras located outside of the public washroom. Mr. Gaud testified that his supervisor recognized the man who had made the complaint. Bay Adelaide Center security had a “lookout” for this man, which stated that the police were to be called if the man was seen. The lookout included a photograph of the man. During cross-examination by Mr. Gledhill, Mr.

Gaud testified that he believed that the lookout was created because “something happened on our property with you.” [ 45 ] CCTV recordings from the Bay Adelaide Centre were introduced into evidence. The CCTV recordings show Mr. Gledhill near a public washroom in the Bay Adelaide Center on October 30, 2017. This was in the area that was subject to the boundary condition. 5. October 30, 2017 – Canadian Tire, 65 Dundas Street West [ 46 ] It is alleged that on October 30, 2017, Mr. Gledhill attended the Canadian Tire store at 65 Dundas Street West.

Josip Martinovic, who is the manager of the Canadian Tire at that location, testified that Mr. Gledhill arrived at the store and requested to speak with him. Mr. Martinovic stated that Mr. Gledhill asked for a copy of the CCTV recording from the day he was arrested in the Canadian Tire. Mr. Martinovic testified that he told Mr. Gledhill that Canadian Tire would not provide him with a copy of the CCTV recording. Mr. Martinovic told Mr. Gledhill that he should contact the police. [ 47 ] In court, Mr. Martinovic identified Mr. Gledhill as the man who requested the CCTV recording on October 30, 2017. 6.

November 2, 2017 – Mr. Gledhill Attends 52 Division [ 48 ] On November 2, 2017, Mr. Gledhill went to the front desk at 52 Division. He asked to speak to Constable Delottinville. This was the first time that Constable Delottinville met Mr. Gledhill. Constable Delottinville testified that during this conversation he told Mr. Gledhill that he would be arrested if he continued to enter the area that was subject to the boundary condition in his probation order. At trial, Mr. Gledhill asserted that Constable Delottinville told him that he would be arrested if he returned to 52 Division.

In cross- examination, Constable Delottinville denied that he said that. Constable Delottinville did not charge Mr. Gledhill that day with breaching the boundary condition. [ 49 ] I will address the evidence about what occurred on this day in more detail later in these reasons. 7. November 3, 2017 – 121 King Street, The Exchange Tower and The Bay Adelaide Centre [ 50 ] David Kingston and Mohamed Isse testified that they saw Mr. Gledhill at 121 King Street West on November 3, 2017. 121 King Street West is an office building that is connected to the underground PATH system. Mr. Kingston and Mr.

Isse are security guards who work at 121 King Street West. 121 King Street West is on the south side of King Street. It is not in the area that was subject to the boundary condition. [ 51 ] Mr. Kingston was working on November 3, 2017. He testified that Christopher Sowa told him that he had just seen a man tearing down “wanted posters” in a nearby location. Mr. Sowa told Mr. Kingston that these posters had a photograph of the man who was tearing them down. [ 52 ] Mr. Kingston testified that, at the time, he recalled reading “a similar article” on a Toronto news website about a man who was wanted by police. Mr.

Kingston testified that he pulled up a picture of the “wanted man” from a website and showed it to Mr. Sowa. Mr. Sowa confirmed that it was the same man that he had just seen. Mr. Kingston called the police. [ 53 ] Using the CCTV system in the building, Mr. Kingston saw this man “on the concourse going towards the men’s washroom.” Mr. Kingston added that he later saw this man “going towards the Exchange Tower.” [ 54 ] Two recordings taken by CCTV cameras in 121 King Street West from November 3, 2017 were introduced into evidence. Mr.

Kingston confirmed that he viewed those recordings on November 3, 2017. [ 55 ] The camera that captured the first recording was located in the concourse level of 121 King Street West. The camera was pointed towards a short walkway that leads to public washrooms. Mr. Kingston testified that in this recording Mr. Gledhill can be seen walking out of the men’s washroom and that Mr. Isse is holding a nearby door open. [ 56 ] The camera that captured the second recording was also located in concourse area of 121 King Street West. It was pointed in the direction of the Exchange Tower Tunnel.

This tunnel connects 121 King Street West with the Exchange Tower. The tunnel is located beneath King Street. The Exchange Tower is located north of King Street West. [ 57 ] Mr. Kingston testified that Mr. Gledhill and Mr. Isse can also be seen in the second recording. In this recording, Mr. Gledhill is walking north into the Exchange Tower Tunnel. Mr. Isse is walking a short distance behind Mr. Gledhill. [ 58 ] Mr. Isse testified that just after lunch he was asked by Mr.

Kingston to go to the men’s washroom in the concourse area to monitor a suspect with a beard who was wearing a red t-shirt, blue jeans and white shoes. [ 59 ] Mr. Isse testified that he waited around the washroom area for about 30 minutes. When a man who matched that description came out of the washroom, Mr. Kingston notified Mr. Isse by radio that this was the suspect. [ 60 ] Mr. Isse testified that he followed Mr. Gledhill. According to Mr. Isse, Mr. Gledhill walked to the Exchange Tower and then to the Bay and Adelaide Centre. [ 61 ] In court, Mr. Isse identified Mr.

Gledhill as the man he followed to the Bay Adelaide Centre. Mr. Gledhill acknowledged that he was the person in the two CCTV recordings.

[ 62 ] Mr. Kingston called the TPS and advised that this man had just been at 121 King Street West. [ 63 ] The Exchange Tower and the Bay Adelaide Centre are in the area that was subject to the boundary condition. 8. November 6, 2017 – 121 King Street West, The Exchange Centre and Scotia Plaza [ 64 ] On November 6, 2017, security guards at 121 King Street West had reason to believe that Mr. Gledhill had returned to the same public washroom. [ 65 ] Mr. Isse testified that he went into the washroom and saw shoes sticking out of a stall. Mr. Isse exited the washroom and waited outside. [ 66 ] Mr.

Isse testified that about 35 minutes later, Mr. Gledhill walked out of the washroom. A CCTV recording shows Mr. Gledhill exiting the washroom, with Mr. Isse standing nearby. Mr. Isse was wearing his uniform. [ 67 ] Mr. Isse testified that he followed Mr. Gledhill as he walked north into the Exchange Tower Tunnel. A CCTV recording shows Mr. Gledhill walking into the Exchange Tower Tunnel, with Mr. Isse a short distance behind. [ 68 ] Mr. Isse testified that Mr. Gledhill entered the concourse level of the Exchange Tower and First Canadian Place. According to Mr. Isse, Mr.

Gledhill noticed that he was being followed and “kind of sprinted towards 40 King Street West.” Mr. Isse testified that he stopped following Mr. Gledhill on the First Canadian Place side of the PATH tunnel to Scotia Plaza. 9. November 7, 2017 – Date of Arrest [ 69 ] Mr. Kingston testified that on November 7, 2017, he had reason to believe that Mr. Gledhill was in a public washroom at 121 King Street West. Using the CCTV system, Mr. Kingston confirmed that Mr. Gledhill had entered the washroom. Mr. Kingston called Constable Delottinville to advise that Mr. Gledhill was in the building. Mr.

Kingston testified that “we were told to call them directly when we saw Mr. Gledhill and they were going to arrest him.” [ 70 ] A short time later, Constable Delottinville and his partner arrived at 121 King Street West and entered the washroom. Two security guards stood outside to prevent anyone from entering. Constable Delottinville and his partner placed Mr. Gledhill under arrest. Mr. Gledhill was charged with breaching the boundary condition of the probation order. III. EVIDENCE OF JESUS RODRIGUEZ SANTIAGO, STEVEN DELOTTINVILLE AND MARK GLEDHILL A. Evidence of Jesus Rodriguez Santiago [ 71 ] Mr.

Jesus Rodriguez Santiago testified that shortly after 6:00 p.m. on October 11, 2017 he was walking in the underground PATH system in downtown Toronto. He entered a public washroom located in the PATH system. [ 72 ] Mr. Santiago testified that there were three men the washroom when he entered it. Mr. Santiago testified that one of the men was “standing up doing absolutely nothing, facing toward the mirror…”. Mr. Santiago said this man was rubbing his chin or goatee with his right hand. Mr. Santiago had never seen this man before.

The second man was standing at a urinal and the third man was washing his hands at a sink. [ 73 ] According to Mr. Santiago, after a few seconds, the first man started yelling, “you can’t do this in here you faggots.” Mr. Santiago testified that the first man repeatedly used this derogatory term. Mr. Santiago testified that this man also said things like, “I should die, I shall die, I shall not be able to live.” According to Mr. Santiago, he was standing at a urinal when this happened. By this point, the second man and third men were standing closer to each other.

One of these men, quickly buttoned up his pants, and left the washroom. According to Mr. Santiago, the third man “was doing up his pants in a very quick manner.” Mr. Santiago did not observe what, if anything, the second man and third man had been doing before this. [ 74 ] Mr. Santiago testified that he was scared and didn’t know what was going on. He was not sure whether the first man’s anger was just directed at the other two men or at all of them. Mr. Santiago testified that he initially pretended that nothing was happening, and he attempted to slowly exit the washroom. [ 75 ] Mr.

Santiago said that he found the man’s comments uncomfortable and offensive. Mr. Santiago testified that as he was walking towards the exit to the washroom he told the man that he shouldn’t be making derogatory remarks of that nature. According to Mr. Santiago, when he said this, he “raised his voice a little” but he was not aggressive. [ 76 ] Mr. Santiago testified that he had his cell phone in his hand and took “a quick picture” of the man. He told the man that he was going to “report this.” [ 77 ] Mr.

Santiago testified that the man “came towards me and I wasn’t 100% sure he will be punching me or do anything.” In cross-examination, Mr. Santiago agreed that, at one point, the man either said “you can’t take a picture or me” or “don’t take a picture of me.” [ 78 ] Mr. Santiago testified the man “kept telling at me all these words and then somehow he was more aggressive, more angry.” According to Mr. Santiago, he told the man to stay away from him. [ 79 ] Mr. Santiago testified that the man had a “backpack or something” on his right shoulder. According to Mr.

Santiago, while holding the strap of the backpack, the man made a motion using his right arm and the bag that Mr. Santiago perceived as aggressive and intimidating. Mr. Santiago testified that the man “tried to hit me twice.” Mr. Santiago testified that the man “somehow tried to use the bag as a weapon.” According to Mr. Santiago, when the man did this, he was within an arm’s length of Mr. Santiago.

[ 80 ] Mr. Santiago testified that the man and the backpack did not actually make contact with him. Later in his testimony, Mr. Santiago conceded that he did not know whether the man actually wanted to hit him or was just attempting to intimidate him. [ 81 ] Mr. Santiago testified that he left the washroom and walked down a hallway to get away from the man. He said that he did know if the man was going to escalate the situation. According to Mr. Santiago, he wanted to find someone to help him. [ 82 ] Mr. Santiago said that as he walked down the hallway, he believes that the man made contact with Mr.

Santiago’s left wrist or sleeve, but he was not sure. According to Mr. Santiago, the man was still angry and continued to make the same derogatory remarks. [ 83 ] Mr. Santiago testified that when they were in the hallway, the man made another motion with his body and his bag. Mr. Santiago interpreted this as an aggressive act and “some kind of an attack.” [ 84 ] Mr. Santiago told the man that he was calling the police and to stay away from him. According to Mr. Santiago, the man went back towards the washroom. [ 85 ] Mr. Santiago called 911 and spoke to an operator.

He testified that as he was speaking to the 911 operator, the man walked by him and made another derogatory comment. [ 86 ] Mr. Santiago followed the man from a distance and told the 911 operator where the man was located. Mr. Santiago testified that the man took an escalator to the main floor and walked to a security desk. The man spoke to a woman who was sitting at a security desk. Mr. Santiago testified that, after that, the man walked out of the building through a nearby exit. [ 87 ] Mr. Santiago spoke with security officers about this incident before making a statement to the police. Mr.

Santiago did not tell the security officers that the man had physically assaulted him. [ 88 ] Mr. Santiago was on the phone with the 911 operator for approximately nine minutes. Early in the call, Mr. Santiago told the 911 operator that he was being verbally harassed and a man was making derogatory comments. Towards the end of the call, he said that the man had used his bag to threaten him. [ 89 ] When he testified, Mr. Santiago was shown some CCTV videos. Mr. Santiago identified himself and the man who had been in the washroom with him. The videos show Mr. Santiago and the man after they left the washroom.

At trial, it was not disputed that the other man who left the washroom and walked to the security desk at 333 Bay Street was Mr. Gledhill. The CCTV recordings from that day clearly show that the other man was Mr. Gledhill. [ 90 ] Mr. Santiago testified that the public washroom was about a block north of King Street, between Bay Street and Yonge Street. Using a map of the PATH system, Mr. Santiago identified the location of the washroom. B. Evidence of Steven Delottinville [ 91 ] Steven Delottinville has been a constable with the TPS for over 20 years.

In the fall of 2017, he was working in the Major Crime Unit at 52 Division. He was assigned to investigate an alleged assault that occurred on October 11, 2017. He received an occurrence that had been prepared by two uniformed TPS officers. Constable Delottinville testified that the information contained in the occurrence was “pretty bare bones at that point.” He knew the name of the complainant and had a description of the suspect. [ 92 ] On October 19, 2017, Constable Delottinville met with the complainant, Mr. Santiago. Constable Delottinville took a cautioned and sworn video statement from Mr. Santiago. Mr.

Santiago told the Constable Delottinville that a man had assaulted him in a public washroom. [ 93 ] Constable Delottinville testified that Mr. Santiago told him that, using his cell phone, he had taken a photograph of the person who had assaulted him. Mr. Santiago sent Constable Delottinville an electronic copy of the photograph. [ 94 ] In an effort to identify the suspect, Constable Delottinville prepared a draft press release which included the photograph. On October 25 th he submitted the draft press release to TPS Corporate Communications.

It appears that the press release was added to TPSnews.ca on October 26, 2017. [ 95 ] Constable Delottinville took scheduled leave from October 27 nd to November 1 st . [ 96 ] While he was away from work, Constable Delottinville was contacted by people who told him that the “guy in your press release” had been arrested by TPS officers and charged with assault with a weapon. Constable Delottinville was told that the man’s name was Mark Gledhill. At the time, Constable Delottinville did not know Mr.

Gledhill. [ 97 ] While Constable Delottinville was away from work, a number of people, including a bail supervisor and police officers, sent Constable Delottinville emails and other forms of communication in which they advised that they recognized Mark Gledhill as the person in the photograph from the press release. [ 98 ] Constable Delottinville returned to work on November 2, 2017. He testified that the information that he received from people who had contacted him while he was away from work did not lead to the arrest of Mr. Gledhill. [ 99 ] Constable Delottinville testified that he first met Mr.

Gledhill on November 2, 2017. Mr. Gledhill arrived at the front desk at 52 Division and said that he wanted to speak with Constable Delottinville. Mr. Gledhill told Constable Delottinville that he wanted him to obtain the video from his arrest at the Canadian Tire store. [ 100 ] Constable Delottinville testified that Mr. Gledhill told him that he had gone to the Canadian Tire store on 65 Dundas Street after he was arrested. Constable Delottinville testified that this was the first time that he was knew that Mr. Gledhill had violated the

boundary condition of his probation order. According to Constable Delottinville, he told Mr. Gledhill that he could not go back to Canadian Tire because “it’s within your boundary.” Constable Delottinville testified that he told Mr. Gledhill: “…you need to stop going inside the boundary. If I find out you’ve been going in that boundary again, you’re going to be placed under arrest for breach of probation.” [ 101 ] Constable Delottinville testified that he exercised his discretion that day and did not immediately arrest Mr.

Gledhill. [ 102 ] In cross-examination, Constable Delottinville denied that he had threatened to arrest Mr. Gledhill for being at 52 Division. The 52 Division Police Station is not within the area that was subject to the boundary condition. [ 103 ] Constable Delottinville testified that he later obtained information that Mr. Gledhill had violated the boundary condition on other occasions. Some of these alleged breaches occurred after Constable Delottinville had cautioned Mr. Gledhill not to enter the area covered by the boundary condition.

Constable Delottinville testified that the investigation shifted after he obtained this information. [ 104 ] According to Constable Delottinville, on November 6, 2017, David Kingston, a security guard at 121 King Street West, contacted police to advise that the man in the “wanted poster” had just been in the building. Constable Delottinville later reviewed the report that was prepared by the officers who responded to that call. [ 105 ] Constable Delottinville testified that he met Mr. Kingston on November 7 th at 121 King Street West.

According to Constable Delottinville, he was there to interview witnesses and pick up CCTV recordings. Constable Delottinville testified that during this conversation Mr. Kingston told him that he was aware that Mr. Gledhill had been in the building on two occasions: November 3, 2017 and November 6, 2017. [ 106 ] Constable Delottinville testified that Mr. Kingston said that he had previously called the police about Mr. Gledhill but that police officers had not arrived at 121 King Street West before Mr. Gledhill left the area. Constable Delottinville told Mr.

Kingston to call him directly when security guards saw this man. Constable Delottinville returned to 52 Division. [ 107 ] Later that day, Constable Delottinville received a call from Mr. Kingston, who advised that Mr. Gledhill was at 121 King Street West. As a result of receiving that information, Constable Delottinville went back to 121 King Street West. He was joined by his partner, Constable Mark Kennedy. [ 108 ] When the officers arrived at 121 King Street West, they met Mr. Kingston in the lobby. Mr. Kingston took the officers down to the washroom area.

Constable Delottinville testified that he and Constable Kennedy entered the washroom and found Mr. Gledhill inside. They placed Mr. Gledhill under arrest for breaching the boundary condition of his April 2, 2015 probation order. [ 109 ] Constable Delottinville testified that he made the decision to arrest Mr. Gledhill on November 7, 2017 as Mr. Gledhill continued to violate the boundary condition. C. Evidence of Mark Gledhill 1. Mr. Gledhill’s Testimony on the Charter Application [ 110 ] Mr. Gledhill testified on the Charter voir dire . Notwithstanding the guidance provided by the Court, much of Mr.

Gledhill’s testimony on the Charter application was made in the form of submissions on his

interpretation of the law. [ 111 ] In cross-examination, Mr. Gledhill agreed that on October 11, 2017, he was involved in a dispute with Mr. Santiago that started in a public washroom in the downtown area. He testified that during this dispute, Mr. Santiago took a photo of him while they were inside the washroom. Mr. Gledhill agreed that he was not in a stall when the photo was taken. Mr. Gledhill testified that, at the time the photo was taken, he was standing in front of a mirror. [ 112 ] Mr.

Gledhill stated that while he was in that washroom he was attempting “to prevent unlawful activity from being perpetrated in front of me.” Mr. Gledhill testified that if he sees men engaged in activities that he perceives as inappropriate in public washrooms he will “have something to say about that” and when he does: “…the smart gay guys leave. They don’t provoke further incident which is what Rodriguez [Santiago] did on that day, by taking my photograph.” [ 113 ] In cross-examination, Mr.

Gledhill explained that it was his position there had been an “unlawful search”, because the police used his photographic likeness, which was taken in a public washroom without his consent, in the press release. Mr. Gledhill asserted that the police “could’ve used video surveillance from the property to do that. They didn’t have to use my photographic likeness.” Mr. Gledhill also testified that the police could not “use a photograph that they know was taken in an area where there is no video surveillance.” 2. Mr. Gledhill’s Testimony on the Trial Proper [ 114 ] I will address Mr.

Gledhill’s testimony as it relates to the fail to attend court charge later in these reasons. [ 115 ] Mr. Gledhill testified that on October 27, 2017 he was arrested and charged by the TPS. [ 116 ] Mr. Gledhill testified that on November 1, 2017 he went to a downtown property located at 55 University Avenue. While there, he saw a piece of paper (or a “notice”) taped inside three washroom stalls. The notice was a copy of the TPS news release that had been posted to TPSNews.ca.

[ 117 ] Mr. Gledhill testified that copies of this were posted at 55 University Avenue in November and December, 2017. Mr. Gledhill testified that, as he had already been arrested for the alleged assault, he did not know who had posted these notices or for what purpose. [ 118 ] Mr. Gledhill said that someone had taken the photograph which appeared in the TPS news release and included it in a “notice”, which was posted in Scotia Plaza. This notice stated “[p]reviously sought by police for assault” and mentioned information that had been contained in the TPS Bulletin. Mr.

Gledhill testified that this notice had been posted in Scotia Plaza on numerous occasions in late 2017 to early 2018. He did not know who had posted these notices. He testified that he removed all of the notices. [ 119 ] Mr. Gledhill suggested that the people responsible for leaving those notices might have been “members of the public who are guests to the property” who were upset that he had been “interfering with their…purported right to engage in unlawful activity.” Mr. Gledhill explained that he had been “challenging” people who were engaged in sexual activities in public washrooms in the PATH system.

It was Mr. Gledhill’s view that whoever posted these notices were “aided and abetted by the police and occupiers to post notices that defame me and interfere with matters before this court.” [ 120 ] Mr. Gledhill testified that he did not comply with the conditions of the probation order because he did not know about them. According to Mr. Gledhill, he was never properly informed about the conditions in the probation order. He testified as follows: “…the Crown Attorney’s office didn’t see fit to follow the Criminal Code respecting, you know, taking all reasonable steps to inform me.

They passed the buck to MCSCS Probation, who they presumed would inform me of the contents of this, of this document [probation order].” [ 121 ] Mr. Gledhill testified that he understood that he had an obligation to be in court on April 2, 2015 to be sentenced before Zuker J. He agreed that he appeared in court that day. [ 122 ] He disagreed with Crown counsel’s suggestion that on April 2, 2015 he heard the terms of the probation order being read out. [ 123 ] In cross-examination, Crown counsel read a portion of the April 2, 2015 transcript to Mr. Gledhill.

The following excerpt from the transcript of April 2, 2015 was put to Mr. Gledhill: Mr. Flaherty (Crown): … judge, sir. So, what, what, sir, just so you know, maybe Madam Clerk, you can read out the conditions to Mr. Gledhill? Mr. Gledhill, stay, if you want to you can hear that there are exceptions to the boundaries that His Honour has ordered and so perhaps we could read that out, Madam Clerk? Mr. Gledhill: Well, I don’t… Court Clerk: Okay. Mr. Gledhill: … I don’t see any – counsel, I don’t see any reason for exceptions to the boundaries.

The boundaries should be clearly defined, 777 Bay Street, as per the T.P.A. notice that I was unlawfully issued, 777 Bay Street, College Park. Mr. Flaherty: Okay. Mr. Gledhill: Nothing else. Mr. Flaherty: So, so why don’t we do this? Uh, Madam Clerk… Mr. Gledhill: That’s the boundary. Mr. Flaherty: Sir, can you - would it be possible for Madam Clerk to read out the whole condition to you? Mr. Gledhill: Okay. Court Clerk: Okay. Mr. Flaherty: Thank you.

Court Clerk: Not to be in the area bound by Bloor Street to the north, King Street to the south, University Avenue to the west, Yonge Street to the east, except with the prior permission of probation… Mr. Gledhill: Nope. Court Clerk: …for, for medical emergencies or attendance at court. Mr. Gledhill: Nope, that's absent duty of care. I don't agree to that. So, issue your endorsement, Justice Zuker, and it’s gonna end up in front of the Civil Court judge, okay. [Emphasis added.] [ 124 ] Mr.

Gledhill testified that he was arrested on January 9, 2016 and charged with breaching a condition of the April 2, 2015 probation order by not reporting to a probation officer within two working days. He represented himself on that matter. He testified that he received the disclosure for that case in January, 2016. That disclosure included a copy of the April 2, 2015 probation order. Mr.

Gledhill testified that “when I was arrested and charged [in January, 2016], and I was provided with the disclosure, that’s when the Crown made me aware of the probation order .” [Emphasis added.] [ 125 ] During cross-examination, Mr. Gledhill confirmed on more than one occasion that he received and read the April 2, 2015

probation order in January, 2016. He acknowledged that he was made aware of the boundary condition long before October, 2017. Mr. Gledhill testified as follows: “But January 2016, that’s when I received notification about the – that’s – that’s when I had – that’s when I gained knowledge of the contents of the probation order… on – in January 2016 , not April 2, 2015.” [Emphasis added.] [ 126 ] In cross-examination, Mr.

Gledhill testified that he attended 65 Dundas Street West (Canadian Tire), 22 Adelaide Street West (Bay Adelaide Centre), 130 King Street West (Exchange Tower) and 44 King Street West (Scotia Plaza) between April 2, 2015 and April 2, 2018. IV. CREDIBILITY AND RELIABILITY FINDINGS A. Crown Witnesses [ 127 ] While a criminal trial is not a credibility contest, my assessment of the credibility of the witnesses is important and will affect the central findings that I am required to make. [ 128 ] With one exception, I found all of the witnesses called by the Crown were entirely credible and reliable.

I will deal with the one exception in a moment. No significant inconsistencies in the evidence of the other witnesses called by the Crown were revealed. Their evidence made sense. I found no basis to conclude that any of these witnesses had embellished their evidence or colluded with other witnesses. The testimony of a number of the witnesses called by the Crown was corroborated by CCTV recordings. The cross- examination of these witnesses did not reveal any problems that impacted on my assessment of their credibility or the reliability of their evidence.

These witnesses were in positions to make the observations that they testified about. They were able to recount their evidence in a manner which supported the reliability of the evidence. All of the witnesses called by the Crown provided answers that were responsive to the questions that were asked in cross-examination. [ 129 ] Mr. Gledhill argued that a number of the witnesses called by the Crown were not credible and that I should not rely on their evidence.

He alleged that some of the security guards were “colluding and conspiring with each other.” I found no basis in the evidence to make such a finding. [ 130 ] Before I deal with the one Crown witness whose evidence, in one area, caused me some concern, I will address the evidence of Constable Matthew MacInnis. Mr. Gledhill, not Crown counsel, called Constable Matthew MacInnis as a witness to establish that his s. 9 rights had been violated on June 2, 2016. At times, Constable MacInnis appeared to be annoyed by some of Mr. Gledhill’s questions.

There were occasions when Constable MacInnis answered a question with a question, when no clarification appeared to be necessary. At times, he seemed to be sparring with Mr. Gledhill. To be fair, some of Mr. Gledhill’s questions were long and difficult to follow. Further, Mr. Gledhill made at least one insulting comment that was directed at Constable MacInnis when the officer was testifying. While I found a s. 9 violation, I did not disbelieve the officer’s account of what occurred that day. [ 131 ] Mr. Santiago was the only witness called by the Crown whose testimony, in one area, I had some concerns about.

His evidence about whether Mr. Gledhill made physical contact appeared somewhat inconsistent. The

summary of the alleged assault, as described in the TPS news release, stated that the assailant struck Mr. Santiago several times with a black bag. During cross-examination by the lawyer appointed under s. 486.3(3), Mr. Santiago agreed that the man’s black bag did not make contact with Mr. Santiago’s body. At one point during his testimony, Mr. Santiago stated, “if I remember well he might have grabbed me from my sweater or something.” Later in his testimony, Mr.

Santiago acknowledged that, as there were a lot of things happening in that moment, he could not be certain that the unknown man actually grabbed his sweater or wrist. [ 132 ] It is possible that Mr. Gledhill made contact with Mr. Santiago. However, on a balance of probabilities, I am not satisfied that there was physical contact. In my view, the uncertainty in this part of Mr. Santiago’s evidence was likely the product of the stressful and frightening nature of the incident which occurred over 10 months before he testified. In my view, Mr. Santiago’s ability to recall, with certainty, whether or not Mr.

Gledhill actually made contact with him was affected by those circumstances. Having heard and considered Mr. Santiago’s testimony, I have concluded this was not a credibility issue – it was a reliability issue. [ 133 ] However, I accept that Mr. Gledhill initiated the confrontation in the public washroom. I accept that Mr. Gledhill was angry, yelling and aggressive. Mr. Gledhill made derogatory, homophobic and threatening comments to Mr. Santiago. I accept Mr. Santiago’s testimony that Mr. Gledhill repeatedly referred to Mr.

Santiago as a “fucking faggot” and said “…you shall die, you have no reason to live.” [ 134 ] I accept Mr. Santiago’s evidence that he told Mr. Gledhill to stay away from him. I believe Mr. Santiago’s testimony that Mr. Gledhill, using his upper body or his black shoulder bag, made a physically aggressive move towards Mr. Santiago. I accept that Mr. Santiago was threatened by Mr. Gledhill’s behaviour and comments. There is some evidence to corroborate Mr. Santiago’s testimony on these matters. Mr. Santiago called the police when he left the washroom. He was clearly upset. A CCTV video shows Mr.

Gledhill, as he walked out of the hallway from the washroom area, quickly leaned forward in an aggressive manner at Mr. Santiago. At the time, Mr. Santiago was speaking on his cell phone with the 911 operator. When he leaned forward, Mr. Gledhill was inches from Mr. Santiago’s face. [ 135 ] I believe Constable Delottinville’s testimony that he included the photograph that was provided by Mr. Santiago in the TPS news release in an effort to identify the unknown suspect of an alleged assault in a public washroom.

I accept that Constable Delottinville was conducting a bona fide investigation and, subjectively, had reasonable grounds to believe that an assault with a weapon had occurred. B. Mark Gledhill 1. Charter Application

[136] As I previously mentioned, Mr. Gledhill’s testimony on the Charter application was primarily submissions on legal arguments. I did not consider Mr. Gledhill’s testimony on the Charter application for any purpose on the trial proper, including my assessment of hiscredibility on the trial issues. I also did not consider Mr. Gledhill’s testimony on the trial proper for any purpose on the Charterapplication. 2. Trial Proper [137] For a number of reasons, I have concluded that Mr. Gledhill was not a credible witness. [138] In cross-examination, Mr.

Gledhill provided a number of answers that were not responsive to clear questions that were asked byCrown counsel. On more than one occasion, Mr. Gledhill had to be reminded by the Court to provide responsive answers. Some ofthese answers were very lengthy. On several occasions, he used questions as an opportunity to make speeches, rather than provideresponsive answers. Several answers were argumentative. [139] Some of Mr. Gledhill’s answers were evasive. For example, in cross-examination, Crown counsel read a passage from thetranscript of the April 2, 2015 sentencing hearing. Mr.

Gledhill was asked whether he would agree, having had the passage from thetranscript read to him, that he was in the courtroom on April 2, 2015 and that he heard the boundary condition that was read out by thecourt clerk. In response to that question, which was asked more than once, Mr. Gledhill smiled and repeatedly responded “If you sayso.” It is my conclusion that Mr. Gledhill did not want to provide a responsive answer to this question because he believed that it wouldbe detrimental to his position that the Crown had not proven mens rea on the breach of probation charges. [140] At times, Mr.

Gledhill’s evidence was inconsistent. For example, Mr. Gledhill provided a number of inconsistent explanationsfor why he did not enter courtroom 123 on September 26, 2016. I will address those inconsistencies later in these reasons. [141] On a number of occasions, Mr. Gledhill suggested that Zuker J. imposed a discharge after finding him guilty of mischief. It isunclear to me why Mr. Gledhill believes that. The transcript from the sentencing hearing, the certified copy of the information and anagreed statement of facts all indicate that Zuker J. sentenced Mr. Gledhill to a $500 fine and probation for three years.

In assessing Mr.Gledhill’s credibility, I give no weight to Mr. Gledhill’s apparent belief that Zuker J. imposed a discharge. While Mr. Gledhill’s criminalrecord is a relevant factor in assessing his credibility, I gave it very little weight. [142] In the reasons that follow, I will make more specific credibility findings. [143] While I have found that Mr. Gledhill was not a credible witness, a criminal trial is not a credibility contest. As Mr. Gledhilltestified, I must follow the approach set out in R. v.

W.(D.) (SCC), [1991] 1 SCR 742, in assessing whether or not theCrown has proven his guilt beyond a reasonable doubt. V. THE CHARTER APPLICATION A. Introduction [144] Mr. Gledhill argued that his Charter rights under ss. 7, 8, 9 and 11(

d) had been infringed. Mr. Gledhill took the position thatthe appropriate remedy for the alleged Charter violations was a stay of proceedings under s. 24(1) of the Charter. Alternatively, Mr.Gledhill argued that the Court should exclude “all Crown actus reus evidence”, pursuant to s. 24(2) of the Charter. This evidenceincludes CCTV recordings and viva voce evidence from Crown witnesses. [145] Mr. Gledhill filed multiple Charter Application Records. Ultimately, Mr.

Gledhill relied on the written arguments he made inan Application Record dated September 27, 2019 and his oral arguments made on September 17, 2019 and October 1, 2019. On September 17th, Mr. Gledhill stated that the Court could “set aside” all of the written applications and materials that he previously filed in support of his Charter arguments, as the factum dated September 16th “superseded” all earlier written arguments. [146] During the course of the trial, Mr. Gledhill raised Charter issues that he did not appear to pursue during his final written andoral submissions. Given Mr.

Gledhill’s position on September 17, 2017, it is not necessary to address every issue that Mr. Gledhillbrought up during this trial. However, it was not entirely clear to me whether Mr. Gledhill abandoned certain arguments. Where that isthe case, out of an abundance of caution, I will address those arguments. [147] At the outset, I should note that Mr. Gledhill’s position on the admissibility of the CCTV recordings evolved. Initially, he wasseeking to have all of the CCTV the recordings excluded.

However, on the day that counsel appointed under s. 486.3(3) attended, I wasadvised by the s. 486.3(3) counsel that: “So I was able to discuss with Mr. Gledhill his application to exclude surveillance video, for October the 11th that is. So he will not beproceeding with that application and he has permitted me to advise you that the defence, in accordance with the materials that he hasprovided you, is with respect to his knowledge of being bound by that probation order, and that’s why exclusion of the video wouldn’t,wouldn’t advance that defence.

But it would be helpful with respect to the assault with a weapon charge and cross-examining the civilian witness. And so he’s not making the application to exclude the surveillance on October the 11th.” [Emphasis added.] [148] In assessing credibility issues on a Charter application, the principles set out in R. v. W.(D.), do not apply. On a Charterapplication, the guilt or innocence of an accused is not being decided and the criminal standard of proof does not apply: R. v. Stewart,2019 ONCJ 78, at para. 8. B.

Section 8 [149] Mr. Gledhill advanced several arguments in support of his s. 8 application.

1. The Photograph and the TPS Press Release [150] Mr. Gledhill argued that his rights under s. 8 of the Charter had been infringed because the police used the photograph that wastaken by Mr. Santiago in a TPS press release. [151] He argued that police should not have used this photograph in the press release, as it was taken without his consent, incircumstances where he had a reasonable expectation of privacy. Mr. Gledhill asserted that “I have a reasonable expectation of privacy –there’s a reasonable expectation of privacy when I’m in a public washroom.” [152] Mr.

Gledhill argued that the only reason the breach of probation charges were brought: “…was because the police used my photographic likeness and posted it to social media and that’s how they identified me. They didn’tidentify me through proper means. They identified me through improper means.” [153] Mr. Gledhill argued that the CCTV recordings were “improperly obtained evidence”, and should be excluded. Law [154]

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” [155]

Section 8 is only engaged if there has been a “state action” that implicated a person’s reasonable expectation of privacy: R. v.Drakes, 2009 ONCA 560, at para. 13; R. v. Cole, 2012 SCC 53 , [2012] 3 SCR 34, at para. 34. [156] Once it has been determined that state action was involved, there are two stages to a s. 8 analysis: R. v.

Jones, 2017 SCC 60, [2017] 2 SCR 696, at para. 11. [157] At the first stage, an applicant must show that “a state act constituted a search or seizure because it invaded his or herreasonable expectation of privacy in the subject matter of the search”: Jones, at para. 11. [158] State conduct will be considered a search or a seizure within the meaning of s. 8 where a court concludes that an applicant had areasonable expectation of privacy in the subject matter: R. v. Spencer, 2014 SCC 43 , [2014] 2 SCR 212, at para. 16.

In otherwords, “…there is no ‘search and seizure’ within the meaning of s. 8 if the claimant cannot demonstrate a reasonable expectation ofprivacy”: R. v. Mills, 2019 SCC 22, at para. 12. [159] In determining whether an applicant’s subjective expectation of privacy is objectively reasonable, a court must consider the“totality of circumstances”: Jones, at para. 13.; R. v. Edwards, (SCC), [1996] 1 SCR 128, at paras. 31 and 45. This isso, “whether the claim involves aspects of personal privacy, territorial privacy or informational privacy”: R. v. Patrick, 2009 SCC 17, [2009] 1 SCR 579, at para. 26.

The analysis “always requires close attention to context”: Patrick, at para. 26. [160] The need for privacy “can vary with the nature of the matter sought to be protected, the circumstances in which and the placewhere the state intrusion occurs, and the purposes of the intrusion”: R. v. Colarusso, (SCC), [1994] 1 SCR 20, at p. 53.See also Patrick, at para. 38. [161] The reasonable expectation of privacy standard is not a purely factual inquiry: Spencer, at para. 18.

The standard is normative,and while factual context is important, the analysis is “laden with value judgments about the long-term consequences of governmentaction for the protection of privacy”: Patrick, at para. 14. [162] At the second stage, the “claimant must show that the search or seizure was itself unreasonable”: Jones, at para. 11. Areasonable expectation of privacy can only be subject to state intrusion under the authority of a reasonable law: Cole, at para. 9.

A searchor seizure will be reasonable if it was authorized by law, the law itself was reasonable, and the search or seizure was carried out in areasonable manner: R. v. Collins, (SCC), [1987] 1 SCR 265, at p. 278; Spencer, at para. 68. The party seeking to justifya warrantless search bears the onus of rebutting the presumption of unreasonableness: Hunter v. Southam, (SCC), [1984]2 SCR 145. There Was No Search or Seizure for the Purposes of

Section 8 [163] Mr. Santiago was not acting as an agent of the state when he took Mr. Gledhill’s photo. The photo was not taken at thedirection or request of the TPS. Assuming, without deciding, that the police using the photo in the press release constituted state actionfor the purposes of s. 8, I have concluded that Mr. Gledhill had no reasonable expectation of privacy and his s. 8 rights were notinfringed. [164] There is no question that a person has a “high reasonable expectation of privacy in a washroom stall”: R. v. Williams, 2019ONSC 5583, at para. 22.

The police “cannot go around randomly peering into occupied stalls with a view to investigating criminalactivity”: Williams, at para. 22. That is not what happened here. [165] The content of a photo, and how it was taken, are relevant to the question of whether the photo was obtained and used in breachof privacy interests that would reasonably arise. In my view, the content of the photo taken by Mr. Santiago does not support theconclusion that it was taken - and later used by the TPS - in circumstances in which Mr. Gledhill had a reasonable expectation ofprivacy. The photo did not depict Mr.

Gledhill involved in a highly personal or otherwise embarrassing activity. Mr. Gledhill was fullyclothed. The photo did not depict intimate parts of his body. The photo had no sexual aspect to it. The photo was not taken inside awashroom stall. Mr. Gledhill was standing near the exit of a public washroom. [166] The photo did not depict highly revealing and meaningful information about Mr. Gledhill’s personal life. The photo did notinvolve information that went to the biographical core of Mr. Gledhill’s personal information.

[167] Other circumstances surrounding the taking of the photograph support the conclusion that Mr. Gledhill had no reasonableexpectation of privacy. I have concluded that Mr. Gledhill initiated the confrontation in the public washroom. Mr. Gledhill madedemeaning and homophobic remarks that were directed at Mr. Santiago. He was yelling and aggressive. As Mr. Gledhill was beingverbally abusive, he made a quick physical movement forward, while in close proximity to Mr. Santiago. It is my conclusion that Mr.Gledhill intended to intimidate and threaten Mr. Gledhill. I accept Mr.

Santiago’s evidence that he was fearful. It is not objectivelyreasonable for Mr. Gledhill to have an expectation of privacy in those circumstances. [168] After Mr. Santiago provided a statement to Constable Delottinville, the officer had reasonable grounds to believe that an assaultwith a weapon had occurred. [169] Having found that Mr. Gledhill had no reasonable expectation of privacy, it is not necessary to consider the second stage of thes. 8 analysis. [170] Mr. Gledhill’s rights under s. 8 were not infringed by the TPS including his photograph in the press release. 2.

CCTV Recordings from 121 King Street West [171] Mr. Gledhill made two s. 8 arguments that were specific to the CCTV recordings from 121 King Street West. The firstargument was that his s. 8 rights were infringed because security guards at 121 King Street West used the building’s CCTV system tomonitor his activities and then reported what they saw to the police. Mr.

Gledhill argued that the police were required to obtain priorjudicial authorization to “surveil my comings and goings” at 121 King Street West. [172] For the following reasons, I do not accept this argument. [173] First, the security guards were not acting as agents of the state. This was not a situation where the state installed or directed theinstallation of cameras. The CCTV cameras would have been recording even if the police had never spoken to the security guards. Thesecurity guards had information about a person who was suspected to have committed a crime in a location not far from 121 King StreetWest.

This would reasonably have been of interest to security guards at 121 King Street. During the course of their duties as securityofficers they saw Mr. Gledhill and contacted the police. This did not make the security guards agents of the state. [174] Second, Mr. Gledhill did not have a reasonable expectation of privacy in these circumstances. Some kinds of visual recordingsin public places are to be expected: R. v. Jarvis, 2019 SCC 10 , [2019] 1 SCR 488, at para. 62.

However, whether a person canreasonably expect privacy is not determined simply on the basis of whether there was a risk that the person would be observed orrecorded: Jarvis, at para. 68. [175] Having said that, in my view, an important consideration in the analysis is that, by 2017, most people understood that in a publicsetting like the underground PATH system they may be subjected to video surveillance from security cameras: R. v. Yu, 2019 ONSC 942, 2019 ONCS 942, at para. 124. [176] I have concluded that, given all of the circumstances, Mr.

Gledhill did not have a reasonable expectation of privacy. [177] In any event, even if I had concluded that Mr. Gledhill’s rights under s. 8 had been violated as a result of the police notobtaining prior judicial authorization at 121 King Street West, I would not have excluded any evidence under s. 24(2): Yu, at paras. 144-156. [178] The second s. 8 argument made by Mr.

Gledhill regarding the CCTV videos from 121 King Street West was that it would becontrary to public policy, and a violation of his s. 8 rights, for the court to rely on CCTV recordings that were obtained as a result ofinformation that was provided to the police from a complainant in an assault charge that was dismissed at the request of the Crown. Mr.Gledhill argued that to permit the Crown to make use of the CCTV recordings “supports public mischief and mischief to property” as thecomplainant was a “liar.” I do not agree. First, I did not conclude that Mr.

Santiago was a “liar.” Second, the police are entitled, as partof a bona fide investigation, to rely on information provided to them by a person who is later found to have credibility or reliabilityissues. At the time Constable Delottinville obtained the statement and photograph from Mr. Santiago, he had no reason to doubt theaccuracy of Mr. Santiago’s account. C.

Section 9 [179] Mr. Gledhill argued that he was arbitrarily detained on June 2, 2016, contrary to s. 9 of the Charter. [180] On that day, officers from the TPS attended Commerce Court at 199 Bay Street in response to a radio call. A security officercalled 911 and advised that a “possible wanted person” was at that location. Constable Matthew MacInnis, one of the officers whoresponded, testified that at the time the radio call was received he did not know why the person was “wanted.” [181] Mr. Gledhill was initially detained by police officers to determine if there was a warrant for his arrest.

Constable MacInnistestified that when it was determined that there were no warrants outstanding, “that detention ended.” Mr. Gledhill does not suggest thatthe detention to this point was arbitrary. However, as Constable MacInnis agreed, the detention continued for a few minutes after it wasdetermined that there were no outstanding arrest warrants. [182] Constable MacInnis testified that a security guard told Mr. Gledhill that he was going to be served with a Trespass to PropertyAct notice with a one-year prohibition. According to Constable MacInnis, Mr.

Gledhill told the security guard that they cannot “trespasshim and that he doesn’t recognize their authority.” Constable MacInnis told Mr. Gledhill that the security guard had the authority toissue the notice. Constable MacInnis testified that Mr. Gledhill made some comments in response. During the cross-examination ofConstable MacInnis, Mr. Gledhill denied making any of the statements attributed to him. [183] According to Constable MacInnis, upon hearing what Mr. Gledhill said, the security guard served a trespass notice on Mr.

Gledhill with a three-year prohibition. [184] In explaining why Mr. Gledhill’s detention continued after it was determined that there were no outstanding warrants,Constable MacInnis testified as follows during the cross-examination by Mr. Gledhill: • “…in good faith I stood by and kept the peace while he [the security officer] conducted his job.” • “I stood by, detained you and for the investigation of trespassing they issued your notice.” • “I facilitated them [the security officers] investigating you regarding being on their property.” • “They wanted to deal with a trespassing issue.

I facilitated it as a peace officer, then I left.” [185] I was not pointed to a specific statutory authority that authorized the second detention. [186] The onus is on the Crown on both stages of the ancillary powers doctrine: Fleming v. Ontario, 2019 SCC 45, at paras. 46-48. [187] I accept that Mr. Gledhill was upset that a security officer was attempting to issue a trespass notice. Given the circumstances,Constable MacInnis was fulfilling his duty to preserve the peace by remaining in the area.

However, based on the evidence andarguments that I heard, the Crown did not discharge its onus under the ancillary powers doctrine. [188] I am not satisfied that there was a lawful statutory or common law power that authorized the continuation of the detention bythe police after the conclusion of the Criminal Code investigation. I have concluded that Mr. Gledhill’s s. 9 rights were violated. D. Sections 7, 11(

d) and Abuse of Process [189] Mr. Gledhill made a number of arguments in support of his position that there had been an abuse of process in this case and thathis rights under ss. 7 and 11(

d) of the Charter had been violated. [190] I will deal with each of those arguments in this section. [191] In short, I found no basis to find that Mr. Gledhill’s rights under s. 7 or s. 11(

d) had been infringed. There was no foundation toestablish either category of abuse of process: R. v. Nixon, 2011 SCC 34 , [2011] 2 SCR 566, at paras. 38-42. Argument One [192] Mr. Gledhill suggested that members of the TPS and the Crown Attorney’s office had, over the course of several years, engagedin an abuse of process by charging and prosecuting Mr. Gledhill for similar offences that they knew were without merit. [193] Mr. Gledhill pointed to the fact the Crown had withdrawn charges of a similar nature against him in the past. Mr.

Gledhillargued that this supports his position that the police and the Crown engaged in improper conduct in this case. He asserted that thesecharges were brought in an effort to make him “cave” and ultimately plead guilty. [194] There is no reasonable evidentiary basis to conclude that the actions of the police or the Crown in any of these cases, includingthe charges in the case at bar, were motivated by improper purposes. In these circumstances, there is no merit to the suggestion that theCourt should draw a negative inference based on the Crown withdrawing charges against Mr. Gledhill on other occasions.

To make sucha finding would require the court to engage in speculation. In my view, Weiler J.A’s reasoning in R. v. Thompson, 2015 ONCA 800, atparagraph 50 is applicable to this case: “Drawing a negative inference from the withdrawal of charges against Mr. Simpson would require this court to engage in speculation,because the Crown is not obliged to give reasons for the exercise of its prosecutorial discretion: see R. v. Beare, (SCC),[1988] 2 S.C.R. 387, at pp. 410-11. Such speculation cannot establish arbitrary or improper motives for which a s. 24 Charter remedywould lie: see R. v.

Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 36.” Argument Two [195] Mr. Gledhill asserted that his Charter rights were violated on October 27, 2017 by two uniformed TPS officers who wereworking a “paid duty” shift at the Eaton Centre. These officers responded to a request for assistance at Mark’s Warehouse. This call ledthem to the Canadian Tire store. [196] Mr. Gledhill argued that when the officers arrested him they were acting outside of the scope of their authority as paid dutyofficers who had been contracted by Cadillac Fairview. By the end of the trial, it was unclear to me whether Mr.

Gledhill had abandonedthis argument. In the event that he did not abandon this argument, for the following reasons, I reject it. [197] First, the fact that the TPS officers were working a paid-duty shift at the Eaton Centre did not negate their authority andresponsibilities under the Police Services Act. They were still police officers. A police officer has the authority to enter a businessestablishment that is open to the public with an implied invitation to enter: R. v. Lam, 2014 ONSC 3538, at para. 280; R. v. Fitt, 1995NSCA 47 , [1995] N.S.J. No. 83 (NSCA), at paras. 12, aff’d (SCC), [1996] SCJ 6; R. v.

Kouyas, 1994 NSCA244 , [1994] N.S.J. No. 567, at paras. 13-14, aff’d [1996] SCJ 6. [198] Based on information the TPS officers received, the officers had a lawful basis to arrest Mr. Gledhill when he was in theCanadian Tire store. [199] During the cross-examination of Constable Marcel Lewis, Mr. Gledhill initially took the position that a uniformed TPS officerwho was working a paid duty shift at the Eaton Center could not cross the street to provide assistance to a person who needed it. That

position is obviously devoid of any merit. Indeed, Mr. Gledhill later stated, “of course” he was not taking this position. Mr. Gledhill went on to state that within the context of this case “the only enforcement authority that the TPS has is under the Provincial Offences Act and the Trespass to Property Act .” [ 200 ] Second , both Constable Lewis and Constable Zanati testified that when they reported for their paid duty shift they were told to conduct a general patrol in the main area of the Eaton Center, Mark’s Warehouse and Canadian Tire. I accept their evidence.

On October 27, 2017, both officers were being paid by Cadillac Fairview to patrol these areas. [ 201 ] Third , Josip Martinovic, the General Manager of the Canadian Tire store at 65 Dundas Street West, testified that the owner of the store prepared a letter, many years ago, which stated that “the police are welcome to be on our property.” I accept his evidence. [ 202 ] There is simply no reasonable basis to conclude that the TPS officers were acting outside their lawful authority when they entered the Canadian Tire store and arrested Mr. Gledhill.

Argument Three [ 203 ] The third argument is similar to the second argument. Mr. Gledhill took the position that, “[t]he only authority that TPS has on private property, in my view, is Provincial Offences Officer [sic].” The private property that Mr. Gledhill was referring to includes the Canadian Tire store on Dundas Street, the underground PATH system and public areas of office towers in downtown Toronto. [ 204 ] There is no merit to this argument. These areas are open to the public. I see no basis to conclude that the police officers in this case were unlawfully in any of the locations mentioned by Mr.

Gledhill. Once again, a police officer is lawfully permitted to enter an area of a premises to which the public is impliedly invited. [ 205 ] Further, there was no evidence that any of the owners objected to the police officers entering their property. Argument Four [ 206 ] Mr. Gledhill argued that a number of the witnesses who were not police officers had been involved in “many facets of misconduct.” As I understand his position, this argument was relevant to an assessment of both the credibility of some of these witnesses and to the Charter application. [ 207 ] Mr.

Gledhill asserted that that Nicola Lisi, who was employed by the Private Security and Investigative Services Branch of the Ministry of Solicitor General, failed to comply with rules and regulations regarding security guards. There was no basis to make such a finding. [ 208 ] Mr. Gledhill took the position that a number of security guards who were witnesses in this case had engaged in unlawful behavior.

Assuming that any of these witnesses could be considered state actors for the purpose of the Charter , I found no basis to conclude that any of them engaged in any form of misconduct or violated any statutory provisions that applied to them. Again, I found all of these witnesses were credible and provided reliable evidence. [ 209 ] Mr. Gledhill argued that security guards had improperly given statements to the police about him. During the cross- examination of Constable Delottinville, Mr.

Gledhill took the position that security guards are not permitted to supply the police with information about Criminal Code investigations unless the investigation relates to “public mischief and interference to property.” Mr. Gledhill asserted that security guards are “not supposed to be telling you [the police] stories about me when I haven’t been convicted of anything and I’m presumed innocent…”. There is no merit to this argument. The security guards that Mr. Gledhill takes issue with were witnesses in a criminal investigation.

There is no reason why the security guards could not speak to the police about these matters. [ 210 ] During the cross-examination of Mr. Isse, Mr. Gledhill suggested that Mr. Isse had peered into a washroom stall that Mr. Gledhill was using. In response to this suggestion, Mr. Isse stated, “I would never –that’s unprofessional, I would never do that.” I accept Mr. Isse’s evidence. I find that Mr. Isse did not peer into Mr. Gledhill’s stall. [ 211 ] In considering this issue as it relates to 121 King Street West, some additional context may be helpful. Concerns had been expressed about Mr.

Gledhill’s frequent presence and conduct in a public washroom at 121 King Street West. Security guards had received a report that Mr. Gledhill had been seen in a nearby building tearing notices down - these notices indicated that the TPS was seeking assistance to identify a man wanted for assault in a public washroom in the PATH system. Later, the security guards were advised that the police were going to arrest Mr. Gledhill. The security guards at 121 King Street West had a reasonable basis to maintain an awareness of Mr. Gledhill’s presence in that building.

As I stated when I addressed the s. 8 claim, I have concluded that the security guards at 121 King Street West were not acting as agents of the state. None of the actions of the security guards at 121 King Street West were unlawful or inappropriate. Argument Five [ 212 ] Mr. Gledhill asserted that the conduct of the TPS and the Crown Attorney’s office resulted in an abuse of process by charging and prosecuting Mr. Gledhill for offences that they knew could not be proven because there was no evidence of mens rea . Mr.

Gledhill argued that the Court should enter a stay of proceedings because the prosecution was a “vexatious abuse of the Court’s process of s. 7 and 11(

d) of the Charter. ” I do not accept this argument. As I will explain in more detail when I address the trial proper issues, I am satisfied that there is admissible evidence of mens rea . Argument Six [ 213 ] Mr. Gledhill asserted that the police and the Crown had been “vexatious” by charging and prosecuting him, on multiple occasions, for breaching the boundary condition of his probation order. Mr. Gledhill argued that it was an abuse of process to charge him “again and again with the same offence.” Mr. Gledhill argued that that there was state misconduct because:

“…you don’t go around having the police file multiple charges subsequent to a charge that has already been filed and hasn’t beendisposed of yet.” [214] Mr. Gledhill also asserted as follows: “The vexatiousness comes in with the repeated charges being laid when you know that there’s a matter before the court that’s supposedto address that specific issue.” [215] I do not accept this argument. The police had reasonable and probable grounds to believe that Mr. Gledhill had committed acriminal offence for each alleged breach of the boundary condition.

Where there are reasonable grounds to believe that a person hasrepeatedly violated the same condition of a probation order, the police are not required to wait until the conclusion of the trial on the firstalleged breach before charging the person for subsequent breaches. There was nothing vexatious about the conduct of the police or theCrown. Argument Seven [216] Mr.

Gledhill argued that there had been an abuse of process because, during the course of the investigation, security guards hadspoken to police officers about this matter and because police went on “private property” to speak with security officers “about mattersthat are before the court.” [217] Mr. Gledhill asserted that by asking potential witnesses if they knew or recognized a person who was suspected of committing acriminal offence, the police had engaged in inappropriate behaviour. Mr. Gledhill also argued that the police had no right to tell others,including a security guard at 121 King Street West, that Mr.

Gledhill was breaching his probation order by being on a particularproperty. Mr. Gledhill asserted that “they don’t have any right to do that. That’s abuse of process.” [218] I do not agree with this argument. To perform their lawful duties, police officers are required to speak with potential witnesses.That is a fundamental part of their job. I found no basis to conclude that any of the communications between the police officers andsecurity guards was improper. None of the police officers in this case attempted to improperly influence the testimony of otherwitnesses.

I do not accept that the police officers provided any of the witnesses with inappropriate directions. There is no basis to findthat communications that occurred between the police officers and other witnesses tainted or otherwise impacted on the integrity of theevidence given by those witnesses. Argument Eight [219] Mr. Gledhill alleged that the police officers involved in this case had engaged in other forms of misconduct. [220] While I found that Mr.

Gledhill’s s. 9 rights had been violated, given the nature of, and circumstances surrounding, thisinfringement, the actions of Constable MacInnis do not even approach what I would characterize as police “misconduct.” [221] I do not need to decide whether it would be inappropriate and/or violate Mr. Gledhill’s rights under the Charter if a TPS officerposted a copy of the TPS press release or the other “notice” in a public washroom in the PATH system. There is simply no evidence thatanyone from the TPS posted the press release or the other “notice” in a public washroom in the PATH system.

There is no evidence thatany TPS officer encouraged anyone else to post these items in a public washroom. Argument Nine [222] Mr. Gledhill argued that his s. 11(

d) rights had been violated because Crown counsel failed to give him sufficient notice that theCrown would seek to have three defence witnesses excused, pursuant to s. 700(2). It was also suggested that this resulted in an abuse ofprocess. [223] After Mr. Gledhill obtained subpoenas for three witnesses, Crown counsel applied pursuant to s. 700(2) of the Criminal Codeto have these witnesses excused.

In the end, I was not required to make a ruling on the Crown’s application because “in the interest oftime management” the Crown agreed that imposing time limits on the evidence of these witnesses would satisfy the Crown’s concerns. [224] Mr. Gledhill argued that “when the Crown makes an application and doesn’t follow the rules for service in advance, it’sbreaching s. 11(d), that’s an abuse of process.” [225] Having re

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