A Brampton judge is the latest to slam the Toronto South Detention Centre, this time for the “profoundly troubling” spectacle of sending a prisoner to court for the start of his jury trial wearing only a huge “security gown,” without socks or underwear.
“We are not a country that debases those accused (or convicted for that matter) of criminal offences,” Superior Court Justice David E. Harris wrote in a scathing decision released Monday, finding there was “no possible justification” for sending inmate David Baichoo to court without clothes.
“A prisoner has probably never appeared in Brampton Superior Court in only a security gown, let alone on the first day of his murder trial,” Harris wrote. “Proper treatment of those accused of crimes is of fundamental importance to the lifeblood of criminal justice and to our constitutional democracy. It is a basic ingredient of the rule of law. Maltreating accused persons is deeply offensive to our foundational values and cannot be tolerated.”
Harris joins several GTA judges who have criticized the conditions at the Toronto South. In a sentencing decision just last week, Toronto Superior Court Justice Andras Schreck accused the Ontario government of “deliberate state misconduct” for failing to improve the “inhumane” conditions at the notorious jail, which has been plagued with problems since it opened in January 2014
Harris’s 22-page ruling is a summary of what he learned after Baichoo arrived in court for the start of his first-degree murder trial last Jan. 30 naked save for jail-issue shoes and an enormous, sleeveless security gown — an item so large two of him could have fit inside, the judge noted.
Security gowns — they are sometimes called “baby dolls” in jailhouse parlance, although they bear little resemblance to the style of woman’s nightgown, Harris wrote — are used in correctional institutions across Ontario for individuals on suicide watch or for those suspected of hiding contraband inside their rectums.
According to the ruling, jail staff said Baichoo had scanned positive for contraband before he was sent to court, but Harris rejected that evidence as unreliable, noting that “no contraband was ever recovered from his body.”
It was “particularly unfortunate,” Harris wrote, that the seriousness of Baichoo’s charges, and the fact he had been found guilty of misconduct against a jail guard days before the start of his trial, left the appearance that he had been “purposely humiliated.”
Provincial jails are used to house people who are awaiting trial but have not received bail, as well as any person who has been convicted and sentenced to less than two years.
Jail staff are responsible for preparing inmates for court.
“There ought to have been a chorus of alarm bells going off in the collective minds of (Toronto South) staff as they sent a man to court in a security gown. For example, if sending inmates in orange jumpsuits is prohibited, why should a person be sent in a security gown? Regular standards of humanity and decency ought to have prevailed,” Harris wrote.
As a result of Baichoo’s attire — on a frigid January day — his trial had to be postponed a day. “The jury could not see Mr. Baichoo in the security gown without irreparable prejudice to this right to a fair trial,” Harris wrote.
In court, Crown attorney Eric Taylor called the situation, “pretty shocking and pretty appalling in a lot of ways.”
After the incident, Baichoo’s defence lawyer, Leora Shemesh, brought an application arguing his rights under the Charter of Rights and Freedoms had been violated and that he should have his sentence reduced or be awarded damages of $10,000.
A series of hearings were held last year to determine what had happened and what should be done about it. According to Harris’s ruling, the government ultimately “privately acknowledged its fault” and reached an undisclosed settlement with Baichoo.
Reached Tuesday, Shemesh would not discuss the terms of that settlement but did, however, say that not only did her client lose “a sense of his dignity that day,” taxpayers literally paid for the lost court time, while jurors were inconvenienced and sent home.
In his ruling, Harris noted that while the episode was settled last year, it is important for the public to know what happened.
During his inquiry, Harris heard from a number of witnesses including the operational manager in admissions and discharge at the Toronto South jail. The judge wrote he was perturbed to hear the officer’s “attitude” that “he did not have time to ensure that Mr. Baichoo was properly dressed.”
According to Harris’s ruling, counsel for the Attorney General of Ontario argued the incident was an “inadvertent error,” a claim the judge said was not supported by the evidence. The hearings, he wrote, led him to conclude the jail’s conduct fell “somewhere on a spectrum between negligence and deliberate and knowing misconduct.”
Harris wrote: “Beyond mere indifference and depersonalization, the lack of respect and outright contempt for the people under his authority and, in turn, for the judicial system, reflects poorly on corrections.”
In the end, he wrote, the Toronto South “failed to live up to its duty to ensure that the inmates in their institution were treated with humanity and dignity and were sent to court in a condition to permit judicial proceedings in a first-degree murder case to continue.”
Since the incident, Harris noted some positive changes at the jail, such as a memo by the deputy superintendent that no one should wear a security gown to court unless authorized by senior staff.
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In the meantime, Baichoo’s trial for first-degree murder in the 2016 death of Nam Pham continued and ultimately ended in a hung jury.
Baichoo has since been tried again and was convicted, a verdict he is appealing.
In his decision last week, Schreck, the judge who accused the province of misconduct, cited 14 judge’s rulings since 2015 that have criticized harsh conditions at the Toronto South.