Court File and Parties
Court File No.: Central East Region-Newmarket 10-01178 Date: 2012-05-03 Ontario Court of Justice
Between: Her Majesty the Queen — and — Stephanie Mok
Before: Justice Peter C. West
Heard on: January 11 and August 9, 2011 Oral submissions heard on: March 26, 2012 Reasons for Judgment released on: May 3, 2012
Counsel:
- Mr. B. Warcop, for the Crown
- Mr. T. Edmund Chan, for the accused Stephanie Mok
WEST J.:
Charges and Overview
1Ms. Mok was charged that, on January 25, 2010, she operated a motor vehicle while her ability to do so was impaired by the consumption of alcohol and that, having consumed alcohol, her blood exceeded 80 mg of alcohol in 100 ml of blood, contrary to section 253(1)(a) and (b) of the Criminal Code of Canada.
2The Crown called four police officers, P.C. Ward, the arresting officer; Staff Sgt. Clarke, the releasing officer; Sgt. Cummins, the Acting Staff Sergeant in charge of 2 District York Region Police; and P.C. Patricia Kroustallis, an officer who conducted a search of Ms. Mok at the police station. Ms. Mok testified on the voir dire on the Charter application.
3There were two issues raised by Mr. Chan on the Charter application: first, were Ms. Mok's rights pursuant to sections 7 and 9 of the Charter infringed as a result of her being detained in custody for approximately 9 hours after the second sample of her breath was taken by the qualified breath technician; and second, was Ms. Mok's reasonable expectation of privacy infringed as a result of her being detained in a police holding cell where the video surveillance recorded all of her activities, including the use of the toilet. If I find that Ms. Mok's Charter rights under sections 7, 8, and 9 were infringed, should the charges be stayed pursuant to section 24(1)? If this is not a "clearest of cases", is there some other remedy, short of a stay of proceedings, which would be appropriate.
4I have received from counsel very detailed and helpful written submissions concerning these two issues. What follows is my judgment respecting the Charter application brought by the defence for a stay of proceedings, pursuant to section 24(1) of the Charter, as a result of Ms. Mok's Charter rights being infringed.
The Factual Background
5Mr. Chan, on behalf of Ms. Mok, does not allege that the police officers involved in Ms. Mok's arrest, or in the taking of samples of her breath, infringed any of Ms. Mok's Charter rights. Consequently, I will only briefly describe the observations of P.C. Ward, which afforded him with reasonable and probable grounds to arrest Ms. Mok for impaired driving. P.C. Ward observed Ms. Mok operating her vehicle in the northbound lanes while she was proceeding southbound on Yonge Street after leaving Archibald's Pub. She almost hit a median on Yonge Street as she turned eastbound, without signalling, onto High Tech Road, and after making the turn she did strike the median on High Tech. P.C. Ward activated his emergency lights; however, Ms. Mok did not respond by pulling over. Instead, she continued driving her vehicle up a hill and went into the oncoming westbound lanes. The officer then drove beside Ms. Mok's vehicle on its left and, without making contact, forced her back into the eastbound lanes. P.C. Ward then caused Ms. Mok to stop her car at the right curb.
6P.C. Ward went to the driver's door and opened it, reached in and removed the keys from the ignition. He detected a strong smell of alcohol coming from Ms. Mok's mouth. Ms. Mok appeared dazed, her eyes were extremely glossy. When she finally exited the vehicle she was very unsteady on her feet and the officer had to hold her up so she would not fall down. P.C. Ward formed grounds and arrested Ms. Mok for impaired driving.
7Ms. Mok was read her right to counsel, she was cautioned about saying anything and she was read a breath demand. P.C. Kroustallis did a cursory search at the roadside as she arrived on scene to assist P.C. Ward. P.C. Kroustallis also conducted a more thorough search of Ms. Mok at 2 District YRP, in Richmond Hill.
8Ms. Mok was paraded before Sgt. Cummins, who was the Acting Staff Sergeant in charge of the station. He advised Ms. Mok that she would be subject to being video recorded while she was in the police station.
9P.C. Ward testified that video surveillance occurs in the police station, including the holding cells, for prisoner safety and officer safety. He testified that they are monitored in the cells to ensure that they do not injure themselves or cause any damage.
10At 2:27 a.m., P.C. Ward contacted duty counsel for Ms. Mok. At 2:59 a.m., duty counsel, Mr. Sherman, returned the call and he was allowed to speak to Ms. Mok in private. At 3:05 a.m., Ms. Mok was turned over to the qualified breath technician, P.C. Simmonds. At 3:11 a.m., the first sample resulted in a reading of 296 mg of alcohol in 100 ml of blood. If Ms. Mok had reached 300 mg she would have been immediately transported to the hospital as a reading that high is considered a medical emergency. The second reading of 284 mg was obtained at 3:32 a.m. Ms. Mok was returned to the cell she had been lodged in earlier. P.C. Ward was preparing the necessary paperwork.
11It was P.C. Ward's view that Ms. Mok could not be released right away after the breath samples were obtained because her readings were too high. She would not be able to care for herself and she could not stand up. P.C. Ward testified he would be concerned that if she was released she could walk into traffic and be hurt. He advised Sgt. Cummins, the officer in charge of the station, of Ms. Mok's readings.
12P.C. Ward served various documents on Ms. Mok at 5 a.m. The Certificate of a Qualified Breath Technician, which was served on Ms. Mok by P.C. Ward, was filed as Exhibit 1. Ms. Mok was served as well with a document entitled Notice to Accused Person regarding cell area DCCTV recording retention periods. This document was filed as Exhibit 2. It was P.C. Ward's recollection that he had to wake Ms. Mok up in order to serve her with the documents and she appeared to be "groggy". If it had been P.C. Ward's decision to make, he would not have released Ms. Mok from custody as it was his opinion she was still too impaired.
13In cross-examination, P.C. Ward agreed that he was satisfied, at the scene, concerning Ms. Mok's identification. He did not ask her for the names or phone numbers of any family members. P.C. Ward agreed that Ms. Mok was searched further at the station in a private room, by a female officer, where there was no video camera. He knew that ultimately Ms. Mok would be released from the station on a promise to appear. Ms. Mok was kept in cell 2D8, which had a metal bench, a sink and a toilet. There was a video camera in the ceiling, which could monitor all of her activities in the cell, including the use of the toilet. The front desk staff would be monitoring her activities. P.C. Ward was unaware if the staff would be male or female and it was his evidence that there was no policy by YRP requiring female officers to monitor female prisoners.
14Sgt. Cummins agreed that he attended the cell area for the purpose of lodging Ms. Mok into a cell. When booking Ms. Mok, Sgt. Cummins advised her about there being video cameras in the entire police facility and he would point at them. This can be observed during the videotape of Ms. Mok's booking. Sgt. Cummins advised her that everything in the police station was being videotaped, the primary reason being for safety, both for the police and the public, and to record events that take place.
15It was Sgt. Cummins opinion, after his dealings with Ms. Mok at the booking desk, that she appeared to be impaired. He formed this opinion from observing her physical appearance and the way she was leaning against the wall when things were being explained to her. He also observed that she was uneasy on her feet.
16Sgt. Cummins can be seen on the video putting Ms. Mok into cell 2D8. He motioned with his hand to explain "how to work the water", "she can get water from the sink and she's welcome to use the toilet." Sgt. Cummins knew that the toilet area of all cells, including 2D8, was recorded by video camera. It was Sgt. Cummins evidence that if Ms. Mok had requested to use another toilet he would have told her that she was "welcome to hold it until you're released from custody." He would not bring any prisoner to a public area to use the public washroom because of concerns for the prisoner's safety, police safety and the public's safety.
17Sgt. Cummins testified that the video camera in the ceiling was the same as the ones he pointed out to her in the booking area. It is a small black half circle about 3-4 inches across and can be readily seen on the white ceiling.
18Sgt. Cummins was aware of Ms. Mok's breath readings and described them as "exceptionally high." He testified that persons with readings close to 300 mg would be considered a high risk prisoner and they would be physically checked every fifteen minutes and every half hour on video. He was not prepared to release Ms. Mok and it would be up to the day shift Staff Sergeant to make that decision. Sgt. Cummins finished his shift at 5 a.m. He would have briefed the person relieving him and would have advised that Ms. Mok was a high risk prisoner because of her breath readings.
19It was Sgt. Cummins' opinion that Ms. Mok would not have the capacity to understand the conditions of her release because of her high readings. In terms of when she could be released from custody, he used 15 mgs of alcohol every hour as the elimination rate and would wait until the prisoner was under 100 mgs of alcohol. Sgt. Cummins was of the opinion that Ms. Mok was a "high risk" prisoner because of her breath readings.
20In cross-examination, Sgt. Cummins agreed he did not have any further dealings with Ms. Mok after 2:36 a.m. when he placed her into the cell. He did not tell Ms. Mok that the cell was under video surveillance. He was unaware that, between 2:39 and 2:51 a.m., she was knocking on the cell door trying to get someone's attention. Sgt. Cummins agreed that searching prisoners should be done in a private room, without video surveillance, with an officer of the same sex, to afford the prisoner some "dignity". He did not agree that there was anything wrong with videotaping prisoners using the toilet, nor did it matter if the prisoner was monitored by an officer of the opposite sex.
21Sgt. Cummins did not attempt to ascertain Ms. Mok's ability or capacity to understand the release papers before he went off duty. It was Sgt. Cummins' position that he would not have released Ms. Mok into the care of a family member at 5 a.m. because her impairment was so high. Sgt. Cummins testified that prisoners in police custody should expect no privacy.
22Sgt. Cummins did not recall if he asked Ms. Mok any questions about her parents or who she was living with. He recorded her birth date and her address in Richmond Hill.
23S/Sgt. Clarke was the platoon commander at 2 District and started his shift at 5 a.m. on January 25, 2010. He released Ms. Mok on a promise to appear at 12:40 p.m. that same day. He was aware when he started his shift that Ms. Mok was in custody, for impaired driving and over 80, and that her readings were quite high. He "wanted to make sure that she was sober enough to understand the nature and quality of the release before she made the promise to appear." It was his belief that he received information about Ms. Mok from "the release forms, the alcohol influence report or verbal", when he was briefed by his predecessor in the morning.
24He testified that he "wasn't satisfied just based on the readings and the time the tests were taken…when I start my shift [he] was satisfied she be held the length of time so [she] could understand the nature of the promise to the court that [she was] making."
25There was no evidence called by the Crown as to whether anyone checked on Ms. Mok after she was served by P.C. Ward at 5 a.m., although S/Sgt. Clarke believed that Sgt. Mitchell, who relieved him during his daily morning briefing with the unit commanders, would have checked on Ms. Mok between 8:00 a.m. and 10:30 a.m. while he was in this meeting. If Ms. Mok could have been released Sgt. Mitchell would have advised him, but that did not occur.
26S/Sgt. Clarke also testified he would have ensured that the front desk officers monitor Ms. Mok in her cell because of her high readings. He did not personally check on Ms. Mok.
27S/Sgt. Clarke uses 15 mg per hour as a "dissipate (sic) number". He became satisfied that Ms. Mok could be released "probably before noon" that day. He would not have released her to a family member because she has to understand personally the nature and quality of the release. His concern is for the safety of the detainee being released. He would not want an impaired person put out onto a public street or into a cab if they were still exhibiting signs of impairment as they might reoffend. There are many reasons to hold an individual but the major one for him, and especially in this case, was her ability to be able to understand the nature of the release.
28All of the cells have video surveillance and there is no policy requiring a female officer to monitor a female prisoner. When asked why the video camera could not be set up in such a way that it would not record the use of the toilet in the cell, he indicated it was a "corporate — departmental policy" that he had no control over.
29S/Sgt. Clarke advised that day shifts are very busy and one can get distracted but he would have attended to Ms. Mok as soon as he could have. It was his position that it is within his discretion when to release a prisoner. He exercised his discretion based on his experience and judgment.
30Ms. Mok testified that she had been drinking at Archibald's Pub. She suffers from alcoholism and has attended programs at CAMH (Centre for Addiction and Mental Health), Renascent for Women and Teen Challenge. She has abstained from alcohol since April 11, 2011. She was arrested by police when she was driving home. For the most part, she cannot remember much about what happened that night. She agreed that Sgt. Cummins told her when she was placed in the cell that she could use the toilet there. At 2:39 a.m. she was knocking on the cell door as she wanted to make a phone call to her mom or dad, as she was confused. She knocked on the door at other times but no one came.
31At 2:51 a.m., she knocked on the door and spoke to someone behind the door. She did not remember the response but she sat back down and waited. She used the toilet on two occasions, at 2:43:05 a.m. and at 3:34:26 a.m., without knowing she was under video surveillance. As a result of finding out from the disclosure this had been recorded she felt, "Humiliated, upset, disgusted and ashamed".
32She was returned to the cell after the breath samples were taken and did not know what was going to happen next or when she would be released. She eventually cried herself to sleep after being put back into the cell. The next time she was taken out of the cell was when she was released.
33In cross-examination she admitted that she had no recollection of any interaction with P.C. Ward at 5 a.m. when he served her with documents. She identified her signature on the documents and that the time they were served was 5 a.m. She agreed that she had no recollection of that occurring and that this was probably because she was intoxicated at that time. She had no recollection of P.C. Ward being the officer who arrested her, even though he is 6'3" and a large man. Ms. Mok could not recall if she ever mentioned to any police officer that someone was available to pick her up. Further, she could not say whether anyone would have been available to pick her up from the station.
34On the video, which was played in court, when Ms. Mok was first put into the cell, the officer, Sgt. Cummins, can be overheard telling her that they are putting her in the cell while they are waiting for a lawyer to call. She had no recollection of being told this. In fact, she does not remember very much from that evening and early morning because of the alcohol she had consumed.
35Ms. Mok agreed that had she been sober she probably would have looked up and seen the video camera in the ceiling of the cell she was in. She maintained however, that she did not think there would be video surveillance where there was a toilet. She agreed that at 2:51 a.m. she did speak to an officer through the door of the cell but she did not recall what she talked to him about.
36Ms. Mok agreed that she was incorrect in her evidence in-chief when she testified she was searched by the female officer at the booking desk. It is clear from the video that she was in fact taken into a private room beside the booking desk to be searched. She agreed that her hazy memory is due to the amount of alcohol she had consumed.
Analysis
Was Ms. Mok's s. 9 right under the Charter breached?
37It is clear that the continued detention of Ms. Mok, which lasted approximately 7 ½ hours (5 a.m. to 12:40 p.m.), occurred after the breath samples were obtained and the police investigation was complete. Ms. Mok's use of the toilet in the police cell, which was videotaped, occurred before and after the breath samples were taken by the qualified breath technician. Mr. Chan argues, relying on a reference in R. v. Iseler, 2004 CanLII 34583 (ON CA), to an excerpt from R. v. O'Connor v. The Queen (1995), 1995 CanLII 51 (SCC), at para. 82, that there are two routes available to ordering a stay of proceedings pursuant to s. 24(1) of the Charter; namely, "where the prejudice to the accused's right to full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued." Mr. Chan concedes that the first route is not applicable to the facts of this case and relies on the second route.
38Section 9 of the Charter guarantees that everyone has the right to be free from arbitrary detention. The burden is upon the applicant to present a prima facie case that calls for an answer by the Crown. The length of the detention itself may establish a prima facie case where the duration is considerable: R. v. Iseler, supra, at para 22.
39The Court of Appeal, in R. v. Iseler, supra, held that in a case where a person was detained for 11 hours after his breath tests were completed, with no assessment by the officer in charge of the station as to when the accused could properly be released, his detention was arbitrary and a breach of section 9 of the Charter. However, the Court upheld the lower courts' refusal to order a stay. Armstrong J.A. held:
While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence."
40Section 498(1.1) of the Criminal Code states that:
"The officer in charge or peace officer shall not release a person ... if the officer in charge or peace officer believes, on reasonable grounds,
(a) That it is necessary in the public interest the person be detained in custody ... having regard to all of the circumstances including the need to
(i) Establish the identity of the person
(ii) Secure or preserve evidence of or relating to the offence
(iii) Prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) Ensure the safety and security of any victim of or witness to the offence; or
(b) That, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
41Section 498 mandates the release of an arrested person as soon as practicable, unless it is believed on reasonable grounds that it is necessary in the public interest that the person be detained to prevent the continuation or repetition of the offence or the commission of another offence. (See s. 498(1) and (1.1)(a)(iii)) Reasonable public interest grounds include the need to detain charged intoxicated persons until they are sober and safe to be released: R. v. Sapusak, supra; R. v. Coulter; R. v. Padda; R. v. Gaudette; R. v. Kisil, 2009 ONCJ 424 (CanLII); and R. v. Prentice, 2009 ONCJ 708 (CanLII); R. v. Key and R. v. Baxter.
42Ms. Mok had been identified; there was no issue in regard to the securing or preserving of evidence that would have justified her continued detention and similarly, no issue in regard to ensuring the safety or security of any victim or witness. There was no belief by any officer that Ms. Mok would not attend court as required. However, it was the evidence of three police officers that given Ms. Mok's breath readings of 296 mgs and 284 mgs, which were more than three times the legal limit, it was in the public interest not to release her from custody until her blood/alcohol level would have been below 100 mg, using a benchmark of 15 mgs per hour elimination. Further, both of the officers in charge of the police station were of the view that they could not release Ms. Mok until such time as her blood/alcohol level was at a level that she would be able to understand the terms and conditions of her release papers.
43I was also directed to Justice Durno's decision in R. v. Price, 2010 ONSC 1898 (CanLII), an appeal of the trial judge's decision, which found a breach of s. 9 of the Charter after the accused was detained for approximately 6 ½ hours after the second reading. The officer did not consider alternatives to detention and allowed the breath readings to foreclose consideration of any other circumstances. The officer focused exclusively on the accused's breath readings. The trial judge assumed that there was a breach of s. 9 but did not order a stay as he was of the view that the "over-holding" was a "minor wrong".
44Justice Durno, in his usual thorough analysis, held that where an officer focuses on the blood/alcohol level as the sole determinant as to whether to release an accused, this is too narrow a focus and will result in a breach of s. 9. Justice Durno held, at para. 93,
The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.
45Ms. Mok was detained primarily because of her exceedingly high breath readings, which in the opinion of the officers would have affected her ability to understand and comprehend the conditions of her release. It is clear in examining the evidence closely that both Sgt. Cummins and S/Sgt. Clarke considered other circumstances in determining that Ms. Mok could not be released for a considerable period of time.
46Sgt. Cummins, who was the officer-in-charge of the police station when Ms. Mok was first brought into the booking area, formed the opinion from his observations that Ms. Mok was impaired by alcohol. He was also of the view that because of her exceptionally high breath readings that she would not have had the capacity to understand the conditions of her release. Ms. Mok was considered to be a "high risk" prisoner because of her breath readings and it was his practice to use 15 mgs as an hourly elimination rate to determine when it was appropriate to release a detainee. It was his opinion that Ms. Mok was in no condition to be released, even into the care of a member of her family given her high level of impairment, prior to his shift ending at 5:00 a.m.
47Sgt. Cummins testified that he would have briefed S/Sgt. Clarke, who came on duty at 5:00 a.m., about all of the prisoners who were currently in the cells, including Ms. Mok. He would have advised S/Sgt. Clarke what Ms. Mok's readings were and the circumstances of her arrest.
48P.C. Ward was of the opinion that if he had the authority to release Ms. Mok he would not have released her given her level of impairment and her high breath readings. When he served Ms. Mok with numerous documents at 5:00 a.m., he had to awaken her and she was groggy. He would not have released her at that time as, in his opinion, she was still too impaired.
49S/Sgt. Clarke testified he was briefed about Ms. Mok by his predecessor by "the release forms, the alcohol influence report or verbal" and he was aware that she was charged with impaired driving and over 80 and that her readings were quite high. He determined that she could be released around 12 noon by using an elimination rate of 15 mgs an hour. He agreed that sometimes things get busy and he could be distracted but he attended to Ms. Mok's release as soon as he was able and did release her at 12:40 p.m.
50Ms. Mok testified that she was unable to recall very much of what took place after she was taken to the police station because she was intoxicated. She had no recollection of P.C. Ward serving her documents at 5:00 a.m., nor did she even recognize P.C. Ward when he testified. She did not recall telling any officer that her parents could come and pick her up; in fact, she did not know if there would have been anyone available to come if the police had called them. She did not recall the officer who first put her in the cell advising her that she was being put in the cell to await the return call from a lawyer.
51She knocked on the door as she wanted to call her parents because she was confused. She agreed that at 2:51 a.m. she spoke to an officer through the door but she could not recall what the conversation was about.
52Ms. Mok was held for approximately nine hours after her second reading, at 3:32 a.m., of 284 mgs of alcohol in 100 ml of blood. At the time of her release at 12:40 a.m., assuming an elimination rate of 15 mgs of alcohol per hour, her blood/alcohol level would still have been 149 mgs of alcohol in 100 ml of blood.
53Section 498 of the Criminal Code mandates that an officer in charge "shall not release a person under subsection (1) if the officer in charge…believes, on reasonable grounds, that it is necessary in the public interest that the person be detained in custody,…having regard to all the circumstances…" The section sets out a number of enumerated considerations but they are by no means an exhaustive list. In my view, it is important for the officer to consider "all of the circumstances."
54I am unable to conclude that either Sgt. Cummins or S/Sgt. Clarke acted arbitrarily in detaining Ms. Mok until she was sober enough to understand the conditions of her release. Ms. Mok, in her evidence, described herself as intoxicated and admitted that she did not recall most of the events after her arrest because of the alcohol she had consumed. Her breath readings were exceptionally high. It does not follow that the detention of an intoxicated person with readings over three times the legal limit is arbitrary, particularly given the cogent evidence which demonstrated that she already had made a poor decision to drive when she was so clearly intoxicated as the result of consuming alcohol.
55Both Sgt. Cummins and S/Sgt. Clarke used a widely accepted elimination rate to calculate when Ms. Mok could properly be released. An elimination rate of 15 mgs of alcohol per hour was used by both officers. In R. v. Paszczenko and R. v. Lima 2010 ONCA 615 (CanLII), at para. 61, the Court held that judges are entitled to take judicial notice "of the fact that the majority of human beings eliminate alcohol in a range of 10-20 milligrams of alcohol per 100 millilitres of blood per hour". They applied that elimination rate to Ms. Mok's situation and S/Sgt. Clarke made the individualized assessment that Ms. Mok could be released around noon. He then assessed her ability to understand the conditions of her release at noon and, upon being satisfied that she did comprehend those conditions, he released her. Sgt. Cummins' decision to detain Ms. Mok due to her high readings and S/Sgt. Clarke's decision to continue that detention are in my view anything but arbitrary considering the fact that Ms. Mok's readings were more than three times the legal limit and my finding that both officers assessed Ms. Mok's specific circumstances.
56In many of the reported cases, officers in charge of the station exercised their discretion not to release an accused pursuant to s. 498(1.1) of the Criminal Code because of the level of the accused's breath readings and estimated the time of release based on a similar rate of elimination. Consequently, in my view, the use by both officers of this rate of elimination to determine when Ms. Mok could be released is not unreasonable.
57Further, Ms. Mok's blood/alcohol level at 12:40 p.m. would have been 149 mgs in 100 ml of blood using 15 mgs as an elimination rate. In fact, using the 15 mgs as an elimination rate could have resulted in Ms. Mok being detained for a further 5 hours to ensure that her blood/alcohol level would have been below the legal limit of 80 mgs. In my view, this demonstrates the decision of S/Sgt. Clarke to release Ms. Mok at 12:40 p.m. was based on her specific circumstances. I find that he was attempting to deal fairly with Ms. Mok and her specific circumstances. As he testified, if she had not been able to comprehend the conditions of her release he would have continued to hold her until she was able to understand her obligations to attend court and to attend for fingerprints.
58Mr. Chan has argued that, on the evidence, it would appear Ms. Mok did understand everything she was instructed to do (she provided suitable samples of her breath, she signed the notices she was served by P.C. Ward at 5:00 a.m.). I adopt the reasoning of Justice Robertson in R. v. Key, supra, at para. 81, where he held:
Although the presence of signs of continuing impairment may be important to include in the calculus of determining whether an accused should continue to be held, the absence of outward signs of impairment is in my view largely irrelevant. Many individuals do not show outward signs of impairment but this does not mean they do not continue to be impaired or they do not continue to pose a risk to the public.
59In my view, a lack of outward signs of impairment does not assist in assessing whether an accused is capable of understanding and comprehending the conditions of their release. Ms. Mok testified that she was intoxicated when she was at the police station and has very little memory of what occurred while she was there. In fact, she had no memory of being served at 5:00 a.m. by P.C. Ward with any of the papers that she identified her signature on. It was P.C. Ward's opinion that he would not have released Ms. Mok after he served her with papers as she was still too impaired.
60S/Sgt. Clarke testified that when he released Ms. Mok at 12:40 p.m. he was observing her "physicals, her comprehension, her conversation, whatever that I'm satisfied she was not exhibiting any undue influence of alcohol in order to understand the release." If she had not been able to comprehend the conditions of release when he was about to release her, he testified that he would have held her for a longer period of time.
61I find that many of the circumstances identified by Justice Durno in Price, supra, were considered by the officers who had the authority to release her in this case; namely, Ms. Mok was charged with impaired operation of a motor vehicle, her readings were more than three times the legal limit, her level of comprehension was addressed, there was a concern that because of her level of intoxication she was in danger of reoffending and there was a concern for her own safety. Both officers testified they would not have released her into the care of a responsible family member because she had to be able to personally understand the conditions of her release, her promise to appear in court and for fingerprints.
62I find that the decision by Sgt. Cummins not to release Ms. Mok at 5:00 a.m. and S/Sgt. Clarke's decision to continue Ms. Mok's detention until her blood/alcohol level was significantly lower, to be entirely reasonable, not contrary to s. 498, and not an arbitrary detention under the Charter.
63Even if I am wrong in my determination that Ms. Mok's detention was not arbitrary, the facts in this case would not justify the drastic remedy of a stay under s. 24(1) of the Charter. This is not one of the clearest of cases.
64In my view, the argument put forward by the defence, as it relates to the s. 9 breach, is fully answered by R. v. Sapusak, supra, and R. v. Iseler, supra.
65In Sapusak, the Court of Appeal found that, considering the high readings, the police were justified in detaining the accused for his own protection. The readings in Sapusak were 130 mgs of alcohol in 100 ml of blood, which are considerably less than in Ms. Mok's case. Even if the Court had concluded the detention was arbitrary, the Court held there was no justification for excluding the breath readings as there was no temporal or causal connection between the breach and the obtaining of the evidence and that a stay of proceedings was not appropriate as it was not one of the clearest of cases.
66As indicated above, in Iseler, supra, the Court of Appeal found that in the holding of Mr. Iseler for 11 hours, with no assessment by the officer in charge of the station as to when Mr. Iseler could properly be released, in those circumstances his detention was arbitrary and a breach of section 9 of the Charter. The breach, however, was entirely post-offence and had nothing to do with the investigation and the gathering of evidence against Mr. Iseler. Armstrong J.A. cited Sapusak where the officer had made an assessment of the accused and determined that he could be released when his blood/alcohol was below 50 mgs. In Iseler there was no assessment and he was held until his blood/alcohol level would have been near zero. Consequently, his s. 9 Charter right not to be arbitrarily detained was infringed. Despite this breach, the Court of Appeal held that a stay pursuant to s. 24(1) of the Charter was not the appropriate remedy.
67A judicial stay of proceedings is an exceptional remedy that is reserved for the clearest of cases. The leading authorities are generally recognized as R. v. O'Connor, 1995 CanLII 51 (SCC), Canada (M.C.I.) v. Tobiass, 1997 CanLII 322 (SCC), and R. v. Regan, 2002 SCC 12 (CanLII). The principles that emerge from these three cases have very recently been summarized by the Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, at paras. 57:
(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.
(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:
(iii) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and
(iv) no other remedy is reasonably capable of removing that prejudice.
(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.
68The claim before me clearly falls within the "residual category" of cases that may attract the remedy of a judicial stay. The defence concedes this. In such cases, as said by the Supreme Court in an oft-quoted passage from Tobiass, supra, at para. 91 (and re-affirmed in Regan, supra, at para. 55):
The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice.
As restated by the Court of Appeal in Zarinchang, at para. 58, the concern is "not ... about continuing prejudice to the applicant by proceeding with the prosecution" but, "[r]ather, ... for the integrity of the justice system".
69Importantly, the Court of Appeal continues:
However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits?
70Accordingly, the Court notes, at para. 60, judges hearing residual category applications, as here, "will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion". This balancing, the Court then explains, commands regard for
... the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.
71In my view, a proper balancing of these factors militates against the remedy of a stay of proceedings. There is a strong public interest in having drinking-and-driving offences resolved on their merits. Even if Ms. Mok's s. 9 Charter right had been breached, one cannot ignore the fact that the officers, who determined that she should be detained after her breath readings were completed, were acting in good faith. The breach, if it occurred, was that they focused their assessment too narrowly on the high blood/alcohol readings. The breach occurred after the commission of the offence and the gathering of evidence. It was in no way related to the offence or evidence gathering. In those circumstances, in my opinion, the over-holding should not result in a stay of proceedings.
Were Ms. Mok's s. 8 rights under the Charter breached by the videotaping of her activities while in the police cell?
72Ms. Mok was advised by Sgt. Cummins when he booked her into the station that everything in the police station was being videotaped; the primary reason was for safety, both for the police and the public, and to record the events that took place while she was in custody. Sgt. Cummins pointed out several video cameras (small black half circles, 3-4 inches in diameter), which were in the booking area of the station. Sgt. Cummins did not specifically advise Ms. Mok that her activities inside the police cell were being videotaped. The video camera in the ceiling of the police cell was the same as the cameras he had pointed out previously. Sgt. Cummins also expressed a concern that accused persons under arrest often attempt to dispose of contraband or weapons down the toilets in the holding cells. This was why there were no walls, which could afford a detainee some modicum of privacy when they decided to use the toilet.
73Ms. Mok testified that she was unaware there was a video camera in the police cell she was placed into. She agreed that if she had not been so intoxicated she would have seen the video camera in the ceiling. She testified that when she discovered from the disclosure that her use of the toilet had been recorded she felt, "Humiliated, upset, disgusted and ashamed".
74Sgt. Cummins testified that persons in custody in a police station should not expect any privacy. He saw nothing wrong in videotaping accused persons in police holding cells, even if they were using the toilet. Further, it did not matter if the monitoring was done by an officer of the opposite sex. S/Sgt. Clarke indicated that the videotaping of accused's persons in police cells was a "corporate — departmental policy" that he had no control over. The videotaping of police cells is for safety reasons for the detainee who is in custody, to ensure that they do not dispose of illegal contraband, weapons or illicit substances and there is no policy that detainees should be monitored by officers of the same sex.
75Both Sgt. Cummins and S/Sgt. Clarke testified that they would have instructed the officers monitoring the cells by video that Ms. Mok was a "high risk" detainee because of her exceptionally high breath readings.
76Sgt. Cummins agreed that when a pat down search was conducted on Ms. Mok at the police station it was done by a female officer in a private room and it was not videotaped. He indicated that this was to provide the accused person some "dignity".
77The defence argues that Ms. Mok's privacy interests under s. 8 of the Charter were breached by her activities being videotaped while she was lodged in police cell 2D8, particularly her use of the toilet on two occasions. Ms. Mok used the toilet at 2:43:05 a.m., prior to the breath tests and at 3:34:26 a.m., which was after the second breath test was completed at 3:32 a.m.
78The Crown argues that the courts have recognized a substantially reduced expectation of privacy for persons who are in custody. Consequently, it is the Crown's argument that s. 8 of the Charter does not come into play. Further, the videotaping of Ms. Mok using the toilet is not connected in any way to the taking of the samples of her breath.
79There have been a number of cases dealing with the issue of whether a detainee has a reasonable expectation of privacy while they are in police custody. I have been unable to find any case directly on point dealing with the videotaping of detainees in a police holding cell being videotaped using the toilet which is available and in full view of the video camera.
80In R. v. Wong, 1990 CanLII 56 (SCC), at para. 10, the Supreme Court of Canada held that video surveillance could, in appropriate circumstances, constitute a search within the meaning of s. 8 of the Charter, but that result would only follow where the person who was the object of the intrusion had a reasonable expectation of privacy. That case involved the surreptitious unauthorized video recordings of a hotel room rented by the accused. Chief Justice Lamer, who wrote a concurring judgment to the majority, made the following observations at para. 47:
I agree with my colleague that unauthorized surreptitious electronic surveillance may, in certain circumstances, violate an individual's rights under s. 8. I agree that such surveillance will violate s. 8 where the target of the surveillance has a reasonable expectation of privacy. However, in my view, the consideration of whether an individual has a reasonable expectation of privacy can only be decided within the particular factual context of the surveillance, not by reference to a general notion of privacy in a free and democratic society which an individual enjoys at all times. A person has the right, under s. 8, to be free from unauthorized surreptitious electronic surveillance where that person has a reasonable expectation that the agents of the state will not be watching or recording private activity nor monitoring or recording private conversations. Whether such an expectation is reasonable will depend on the particular circumstances; a person does not necessarily enjoy this right in all circumstances.
81The present case is distinguishable from Wong, since Ms. Mok was advised by Sgt. Cummins that the entire police station was under video surveillance and he pointed out some of the cameras in the booking area. Sgt. Cummins' comments can be heard on the video recording of the booking area in Exhibit 4. It is, however, important to note that at the time of the booking by Sgt. Cummins, which was approximately an hour prior to Ms. Mok's first breath test, her breath reading would likely have been in excess of 300 mgs of alcohol in 100 ml of blood. Ms. Mok was never asked by either counsel whether she recalled Sgt. Cummins advising her that the police station was under video surveillance.
82It is clear from Wong that if the target of the video surveillance has no reasonable expectation of privacy, s. 8 of the Charter is not engaged. There are a number of decisions in the Supreme Court of Canada which had commented on whether a person in custody has a reasonable expectation of privacy.
83In Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), at para. 5, Justice LaForest held:
Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play; nor is s. 7 implicated.
84In an earlier decision, R. v. Beare; R. v. Higgins, 1988 CanLII 126 (SCC), at para. 59, Justice LaForest, on behalf of the court, held that an arrested person
…must expect a significant loss of personal privacy. He must expect that incidental to his being taken in custody he will be subjected to observation, to physical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it.
85In R. v. Stillman, 1997 CanLII 384 (SCC), at para. 61, Justice Cory, for the majority, made this observation:
Obviously an accused person will have a lower expectation of privacy following his or her arrest and subsequent custody. That expectation of privacy will be even lower when serving a sentence after conviction. Therefore, it may well be that certain kinds of searches and seizures may validly be performed on a person in custody which could not validly be performed on persons who have not yet been arrested or convicted. Nevertheless, I am of the view that the appellant's expectation of privacy in this instance, although lower after his arrest, was not so low as to permit the seizure of the tissue. The privacy expectation should not be reduced to such an extent as to justify seizures of bodily samples without consent, particularly for those who are detained while they are still presumed to be innocent.
86In R. v. Ramsoondar, [2001] O.J. No. 897 (Ont. Ct. J.), Justice Kastner dealt with an application to exclude the videotape of the accused's interactions with the breath technician in the breath room at the police station. Mr. Ramsoondar had been advised that he was being videotaped on two occasions and the cameras were pointed out to him. At no time did the accused object or complain about the videotaping. It was the position of the defence that in order to videotape Mr. Ramsoondar, the police would have to obtain a prior judicial authorization or Mr. Ramsoondar's consent. Justice Kastner found that in the circumstances of that case, Mr. Ramsoondar had no reasonable expectation of privacy and s. 8 of the Charter was not engaged.
87In referencing the Stillman decision, and in particular the above-noted excerpt, Justice Kastner made the following observation at para. 17:
One distils from that decision that although a person does not possess a complete lack of any reasonable expectation of privacy in a police station, such an expectation is lower than that of persons out of custody. Clearly situations are contemplated where there is some expectation of privacy in the police station, such as privileged communications with counsel, visits to the rest facilities, and bodily samples without consent.
88Mr. Chan relies on Justice Kastner's comment that even in a police station an accused person has some expectation of privacy, particularly in respect of their use of the washroom facilities. This view is consistent with the comments of the Supreme Court of Canada holding that accused persons in custody have a substantially reduced expectation of privacy. The Court did not hold that accused persons in custody have no expectation of privacy.
89As Justice Kastner indicated, an accused in custody, in a police station, has the right to consult with counsel in private. Pursuant to Stillman, supra, a detainee has an expectation of privacy respecting bodily substances. A secondary search (a more thorough search done by an officer of the same sex at the station) of an accused should be done in a private room and not be videotaped, as was done in this case, in order to provide the accused some "dignity". If the police have reasonable and probable grounds to believe that a strip search should be conducted this should also be done in a private room by a police officer of the same sex and not videotaped. (See R. v. Samuels, 2008 ONCJ 85 (CanLII))
90There are numerous cases involving detainees who are being held in custody for short periods of time in order to sober up who have been strip searched, resulting in a judicial stay pursuant to s. 24(1). What emerges from these decisions is the importance of assessing each case on its merits. Where the detainee is not going to be integrated with other prisoners, it cannot be presumed that a strip search is necessary in order to check for contraband or weapons. The individual assessment of all the appropriate factors is critical in ensuring that the privacy and integrity of the detainee is respected.
91Sgt. Cummins testified that a person in custody does not have a right to privacy. He saw nothing wrong with videotaping detainees using the toilet, nor did it matter if the prisoner was monitored by an officer of the opposite sex. In my opinion, this view is contrary to the dicta of the Supreme Court of Canada. He attempted to justify videotaping every activity of an accused person who was detained in a police holding cell by suggesting that if the video camera did not allow for monitoring of accused persons using the toilet, valuable evidence, namely contraband or weapons, might be lost. He also expressed concern for someone like Ms. Mok, who was a "high risk" detainee because of her exceptionally high breath readings. Video monitoring was necessary to ensure the safety of the accused person who was in police custody.
92At first blush these arguments appear to be persuasive; however, when one examines them more closely the arguments' deficiencies become immediately apparent. If Sgt. Cummins' position is correct then every person arrested by police and brought to a police station could be strip searched. Of course that view is completely contrary to the decision in R. v. Golden.
93Ms. Mok was a first offender, based on the evidence she gave, which was not challenged by the Crown. She was charged with impaired driving and over 80, which although serious are not offences involving violence, nor do they provide an officer with probable grounds that Ms. Mok may be secreting some illegal substance on her person. Ms. Mok was completely cooperative and polite with the police and was not aggressive in any way. There was nothing that would have given any air of reality to a concern by police that she might be hiding contraband or weapons in some cavity of her body.
94I find there were no justifiable safety concerns about Ms. Mok potentially having a weapon or passing off contraband to other prisoners. I come to this conclusion for the following reasons: (1) the nature of the offences she was charged with; (2) she was searched on two occasions, at the scene (level one) and at the station, in private, by a female officer (level two); (3) she had no prior criminal record or contact with the police, she was cooperative and polite in her dealings with the police, nothing known by the police would have supported the possibility that she had something secreted on her body; and (4) there was no intention to intermingle her with other detainees, and once she sobered up it was the intention of the officer in charge to release her.
95Why then was it necessary to monitor and videotape every activity that Ms. Mok engaged in while she was in the police holding cell? Why was it necessary for male police officers to observe her pulling down her pants and thereby fully exposing herself before she sat on the toilet?
96I understand and appreciate the need to monitor detainees for their own safety while they are in the custody of the police, especially someone like Ms. Mok whose blood/alcohol level was close to being toxic and requiring police to call an ambulance to bring her to a hospital. There is no doubt that the characterization by Sgt. Cummins that she was a "high risk" accused was appropriate. It does not follow, however, that it was necessary for her safety and protection to observe her using the toilet, unobstructed, fully exposed to the camera.
97I was advised by Sgt. Cummins that all of the York Regional Police holding cells are exactly the same as the cell Ms. Mok was put into at 2 District Station. This leads to the reasonable conclusion that no detainee is afforded any privacy when they have to use a toilet while they are in police custody. It also leads to the conclusion that this is a systemic practice within York Regional Police which will continue into the foreseeable future unless there are some measures taken to afford detainees privacy while they are using the toilet in the holding cell.
98I have watched the videotape of Ms. Mok's detention in the police holding cell at 2 District YRP. She is first placed into the cell by Sgt. Cummins at 2:38:34 a.m. He pointed out the toilet and sink and explained how to turn on the water and flush the toilet. He did not draw Ms. Mok's attention to the video camera in the ceiling. At 2:39:09 a.m., Ms. Mok gets up from the metal bench and knocks on the door. She did this on two separate occasions, knocking approximately a minute each time. No one responded to her knocking. The toilet is completely out in the open on the video; it is metal and has no toilet seat. At 2:34:04 Ms. Mok removed a piece of toilet paper from the toilet paper roll, which was located on the metal bench. The sink is between the toilet and the bench. She then lowered her pants to her ankles and the video camera captured a full frontal view of Ms. Mok before she turned and sat on the toilet. The video camera had an unobstructed view of Ms. Mok sitting on the toilet.
99What is particularly offensive and abhorrent in the circumstances of this case is that the toilet paper roll was not on the wall beside the toilet. It was sitting 8 feet away on the metal bench which is against the wall opposite to where the toilet is located. After sitting on the toilet for approximately 5 minutes, Ms. Mok realized that the roll of paper was on the other side of the cell. She had to stand up, with her pants at her ankles and take 2 steps in order to retrieve the paper and then return to sitting on the toilet. The video camera had an unobstructed view of Ms. Mok using the toilet paper to finish her use of the toilet. At 2:50:32 she stood up to put the toilet paper roll onto the sink and then turned to reach behind and pushed the button to flush the toilet. At 2:50:38 a.m., she turned and faced the metal bench and pulled up her undergarment and then reached down again to pull up her pants. She was fully exposed to the video camera.
100The video camera had an unobstructed view of everything that Ms. Mok did. She was fully exposed to the video camera on several occasions. The fact that male and female police officers were monitoring Ms. Mok when she used the toilet, and that her activities in using the toilet were recorded on videotape, can only be described as extremely degrading. It is clear from Ms. Mok's actions on the video that she was completely unaware that her activities in the holding cell were being videotaped.
101At 2:53:59 a.m., Ms. Mok was removed from the holding cell and she did not return until 3:33:51 a.m., after she had provided two samples of her breath. At 3:34:11 a.m., she again placed toilet paper on the front of the metal toilet bowl. At 3:34:20 a.m. she pulled down her pants and undergarment and sat on the toilet. The video ends at 3:34:40 a.m. with Ms. Mok sitting on the toilet. There is no further video footage of Ms. Mok inside the holding cell despite the fact that she was not released until 12:40 p.m., approximately nine hours later.
102At the time Ms. Mok was monitored and videotaped she was only charged with impaired operation and over 80. At that stage of the criminal process she was presumed to be innocent; the onus was upon the Crown to prove her guilt beyond a reasonable doubt, after a trial. She is not, nor should she be, in the same position of an accused that has pleaded guilty or been found guilty after a trial. In my view, a convicted accused has a lower expectation of privacy than an arrested accused that is being held for a short duration. Custodial institutions have the right to conduct strip searches of a convicted accused before they are placed into the general population. Custodial institutions have the right to search inmate letters and listen to inmate telephone calls or to listen in on visits with family and friends. Ms. Mok was not in that position. She was presumed innocent of the charges she was facing, yet she was dealt with as if she had already been convicted.
103In my view, the monitoring and videotaping of detainees using the cell toilet by police officers of the opposite sex is a highly intrusive invasion of privacy and is offensive. Ms. Mok, or any other detainee, was entitled to be afforded some measure of human dignity when they are using a toilet while being detained in custody after arrest. The practice of monitoring and videotaping detainees using the toilet, without some measure of privacy, is both demeaning and contrary to human decency. If a level two search should be conducted in a private room, without being videotaped, by a same sex officer, in order to afford a detainee some "dignity", why shouldn't the same "dignity" be afforded to a detainee when it is necessary for them to use a toilet? I find that any right-thinking member of the public would view this practice as shocking and humiliating.
104Consequently, I find that the practice of monitoring and videotaping accused persons using the toilet in a holding cell at the police station violates s. 8 of the Charter. In the present case, it breached Ms. Mok's s. 8 Charter rights to be secure from unreasonable search or seizure. Further, it occurred prior to her providing samples of her breath into an approved instrument and to that extent there is a temporal and causal connection to the investigation and gathering of evidence by the police.
105A case that has some similarities to the present case is R. v. Bouchard, [2011] O.J. No. 5409 (Ont. Ct. J.), where the arresting police required Ms. Bouchard to remove her bra before she was placed into the holding cell prior to her providing samples of her breath. The justification provided by the police officer for routinely engaging in this practice with female accused persons was that Ms. Bouchard might decide to use her bra to commit suicide while she was detained in the holding cell. Ms. Bouchard was charged with drinking and driving offences, she had no prior criminal record and there was no evidence to suggest that she was suicidal. The trial judge found this practice to be a highly intrusive invasion of Ms. Bouchard's expectation of privacy and he found that her s. 8 Charter rights had been violated. He excluded the evidence pursuant to s. 24(2) of the Charter. Justice Fraser commented that Ms. Bouchard testified in a compelling way about the significant emotional impact this seizure had on her sense of dignity.
106I am also concerned that there is a possibility that the videotape of Ms. Mok in the holding cell, which was entered as Exhibit 4 in these proceedings, could be obtained by a representative of the media and played during a news broadcast or on the internet. This video is part of the public record in this trial. In my view, the possibility of this video being released on the internet would offend society's sense of justice and would damage the justice system's integrity. One only has to view the video of Ms. Mok using the toilet to fully understand and appreciate her humiliation, her upset and her shame.
107This relates to the residual category referred to in Zarinchang, supra. I have previously set out the oft-quoted passage from Tobiass, supra, at para. 91 (and re-affirmed in Regan, supra, at para. 55), which I reproduce again:
The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice.
108The practice of monitoring and videotaping detainees using the toilet, potentially by police officers of the opposite sex, who are under arrest in police holding cells by York Regional Police, will continue in the future. Sgt. Cummins testified that if Ms. Mok had requested to use a washroom that afforded her privacy, without being videotaped, he would have told her that she was "welcome to hold it until [she was] released from custody." I find that this comment showed a complete lack of understanding of the highly intrusive invasion of privacy that is created by monitoring and videotaping detainees going to the bathroom. Ms. Mok was detained for more than nine hours after she had completed providing suitable samples of her breath. How was she supposed to "hold it"?
109The sole reason for her detention was to ensure that her blood/alcohol level was reduced so that she would be able to comprehend her conditions of release, not be placed in any danger because of her degree of intoxication and to prevent the possibility that she might re-offend.
110In Zaringchan, supra, the Court noted, at para. 60, judges hearing residual category applications, "will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion". This balancing, the Court then explains, commands regard for
... the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.
111A stay is a powerful tool as a remedy under the Charter. The cases in the Ontario Court of Appeal and the Supreme Court of Canada refer to it as a remedy of last resort, rarely granted, because both the accused and the community are entitled to a verdict on the merits and one that can only be made in the clearest of cases.
112Unlike the circumstances surrounding Ms. Mok's continued detention, a balancing of the above factors set out in Zaringchan, in my opinion, leads to the conclusion that a stay of proceedings is the appropriate remedy in the circumstances of the present case. Despite the strong public interest in having drinking and driving offences resolved on their merits, the unjustifiable manner in which the police monitor and videotape accused persons using a toilet, fully exposed, with no measure of any privacy, would shock the conscience of right-thinking members of the public.
113It has been argued that another option is to consider potential remedy in the civil courts for damages. In R. v. Samuels, supra, Justice Nakatsuru addressed this issue while referring to R. v. Golden, supra, and I agree with his analysis. He stated at paragraphs 73 and 74 of the Judgment as follows:
73 In the same vein, the Crown has emphasized other potential remedies in the civil courts including damages. However, such a remedy is again largely illusionary. The practical obstacles to an effective civil remedy were commented on by Iacobucci and Arbour JJ. in Golden itself when they highlighted the lack of Canadian cases that dealt with strip searches (at para. 67):
- Prior to the advent of s. 8 of the Charter, the only possible remedy for an unlawful strip search would have been a tort action for assault, battery or false imprisonment. The cost of bringing such an action, the low amount of damages potentially recoverable and the ineffectiveness of civil actions as a remedy when real evidence was seized through an unlawful search likely explains the dearth of case law. Recent cases illustrate that damage awards in tort for unlawful strip searches remain low, and the costs of bringing a civil action would far exceed the nominal damages awarded.
74 Thus, in assessing the issue of remedy, I am inclined to agree with the defence position. Looking at the range of practical remedies available to Mr. Samuels, aside from a stay of proceedings, there is really no other way to address the wrong done to him. Naturally, this does not automatically mean a stay should be granted, but it is certainly a factor in support of it. A right without a remedy is a hollow one. A judicial system that is unable or unwilling to remedy constitutional wrongs done to those who appear before it, may suffer prejudice to its repute.
114In R. v. Price, supra, Justice Duncan found that a stay of proceedings, as a result of a breach of s. 9 of the Charter because of over-holding by the police, was not an appropriate remedy. Instead, he exercised his discretion, which was approved of by Justice Durno on appeal, to impose a sentence of time served (the 6 ½ hours spent in custody) and refusing to impose the minimum fine of $600.00. Notwithstanding Justice Duncan's attempt to ameliorate the prejudice caused to Mr. Price as a result of his being arbitrarily detained, I believe that the Supreme Court of Canada has now decided this issue in R. v. Nasogaluak, 2010 SCC 6 (CanLII), at para. 6, where the Court declined a sentence reduction outside statutory limits except for some exceptional circumstances:
Save in exceptional cases, these constraints also apply where the remedial power of the court under the Charter is invoked. A sentence reduction outside statutory limits does not generally constitute an "appropriate" remedy within the meaning of s. 24(1), unless the constitutionality of the statutory limit itself is challenged. However, the remedial power of the court under s. 24(1) is broad. I therefore do not foreclose the possibility that, in some exceptional cases, a sentence reduction outside statutory limits may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and the offender. However, this is not such a case.
115I find that the prejudice suffered by Ms. Mok, which is directly attributable to the s. 8 Charter breach, is substantial. I have set out previously, in paragraphs 98 to 101, explicit details of what was captured by the video camera and what may have been monitored by male police officers to demonstrate the substantial nature of how Ms. Mok's expectation of privacy was breached and violated. It cannot be remedied, in my view, by anything less than a stay of proceedings. What is most troubling is that the circumstances Ms. Mok found herself in at 2 District will continue to exist in the foreseeable future for every detainee held in custody by York Regional Police. Based on the evidence before me, I infer that every detainee is at risk of being subjected to the same degrading, humiliating, abhorrent and demeaning invasion of privacy that Ms. Mok was subjected to. This is a matter that needs to be remedied immediately by the York Regional Police so that the s. 8 Charter rights of other detainees are not breached.
116Consequently, the charges of impaired operation and over 80 facing Ms. Mok are stayed pursuant to s. 24(1) of the Charter. This, however, does not end this matter. In R. v. Dunn, [2009] O.J. No. 6296 (Ont. Ct. J.) stayed charges of impaired operation and over 80 against Mr. Dunn because of a number of Charter breaches. He then exercised his common law jurisdiction to impose a common law peace bond for a period of one year with conditions that Mr. Dunn not be in the driver's seat of a motor vehicle with alcohol in his body and not to be operating any motor vehicle that was not equipped with a properly installed, properly functioning ignition interlock device.
117Ms. Mok, in your evidence, as part of the voir dire, you advised me that this incident caused you to realize that you have a serious problem with the consumption of alcohol and you admitted to being an alcoholic. I believe that you have taken a very positive step in your life. I am also concerned about you operating a motor vehicle in the future and as part of my common law preventative justice power I am ordering that you sign a common law peace bond for a period of 1 year, in the amount of $2000.00, without deposit, without surety and with the following terms:
Keep the peace and be of good behaviour;
You are not to be in the driver's seat of a motor vehicle with alcohol in your body; and
You are not to be operating any motor vehicle that is not equipped with a properly installed, properly functioning ignition interlock device.
I want you to understand that this is a court order and it is a very serious offence to breach a court order. If you are found guilty of breaching a court order you would very likely be sentenced to a period of incarceration.
Released: May 3, 2012
Signed: "Justice Peter C. West"
