Court Information
Court: Ontario Court of Justice Location: Wellington County (Guelph) Date: November 6, 2018
Before: Justice C.A. Parry
Heard: April 19 and October 9, 2018
Reasons for Judgment Released: November 6, 2018
Parties
Crown: Her Majesty the Queen
Counsel for the Crown: Judith MacDonald
Defendant: Chantell Rowan
Counsel for the Defendant: Stephen Mezies
I. INTRODUCTION
1Ms. Rowan is charged with having a blood alcohol content over the legal limit when moving her car from one friend's driveway to another on March 18, 2017.
2The police came upon her by happenstance, while responding to a complaint about a suspicious vehicle in the vicinity of the rural home she had been visiting that evening.
3She had been at a stag and doe party with numerous friends. Several of them returned to the home of one particular friend. Someone asked her to move her car to a neighbouring driveway. She obliged and as she did so, she came to the attention of three police officers who arrived in the area in two different cruisers.
4Upon speaking to Ms. Rowan, one of the officers demanded that she provide a roadside screening breath sample. Ms. Rowan failed that roadside screening test, and was arrested and taken to the Fergus OPP detachment. During the course of her stay there, she blew over the legal limit in both of her breath tests. She was also twice captured on video urinating in her prisoner-cell toilet.
5Ms. Rowan took no issue with the lawfulness of the police stop, which was apparently performed for the purpose of investigating the suspicious person complaint. She also takes no issue with the fact that she was operating and had care and control of a motor vehicle at the time the prosecution alleges her blood alcohol level was over the legal limit.
6However, Ms. Rowan challenges the admissibility of the Intoxilyzer results that establish her blood alcohol level at the time of driving. To that end, she alleges two breaches of her right against unreasonable searches and seizures.
7First, Ms. Rowan alleges that the roadside screening device demand was not taken "forthwith" and that the police therefore unlawfully compelled her participation in the roadside screening. Ms. Rowan argues that unlawful screening procedure rendered the subsequent breath tests at the detachment unlawful. Consequently, she argues that her breath readings ought to be excluded from the evidence. This Charter challenge did not form part of the Notice of Application that was served and filed in advance of the trial. It was first raised in submissions by counsel. However, the defence had placed the reasonableness of the breath seizures in issue in its Notice of Application. Also, the seizure was admittedly warrantless and the Crown therefore bore the burden of proving the seizure to be a reasonable one. Accordingly, the Crown squarely addressed the timeliness of the demand in its examination of the Crown witnesses. The Crown also thoroughly addressed the issue in its submissions. I am therefore prepared to address the issue on its merits.
8Mr. Rowan also alleges that by videotaping her cell-room urination at the police station, the police violated her right to privacy. As a remedy for that violation, she seeks either a stay of proceedings or the exclusion of her Intoxilyzer results from the trial.
9Given the deliberate and unjustified decision of the police to briefly delay the making of an ASD demand, given the failure of the police to obtain an unequivocal waiver of Ms. Rowan's right to privacy while using her cell toilet, and given the impact of the videotaping of Ms. Rowan's use of the toilet upon her dignity, I have concluded that the evidence of Ms. Rowan's breath readings ought to be excluded from the trial. I will explain further below.
II. THE FORTHWITH ISSUE
A. THE COMMON NARRATIVE OF THE THREE POLICE OFFICERS
10Three officers interacted with Ms. Rowan during the initial traffic stop: Officer Nymeyer, Officer Euler, and Officer Thornton.
11Nymeyer drove alone that night. She arrived at the scene of Ms. Rowan's arrest slightly before the arrival of Euler and Thornton, who arrived together in a single cruiser. Thornton drove that cruiser.
12Nymeyer testified that she observed Ms. Rowan pull out of one driveway and turn into a nearby driveway. She activated her cruiser lights and pulled in behind Ms. Rowan and approached her car. Nymeyer testified that Constables Thornton and Euler arrived in their cruiser about a minute or two later. Neither Thornton nor Euler saw Ms. Rowan pull out of the first driveway, which suggests Nymeyer had a bit of a head start on their cruiser. However, both testified seeing Nymeyer stop Ms. Rowan as she pulled into the second driveway. All three officers testified that Nymeyer was the first officer to interact with Ms. Rowan, but there remains a question about the gap in time between Nymeyer's initial interaction with the accused and the subsequent arrival of the other two officers at Ms. Rowan's car.
13Nymeyer testified that, after a relatively brief discussion with Ms. Rowan, she believed Ms. Rowan had alcohol in her body. She came to this conclusion in part because she smelled the odour of alcohol coming from the interior of the car, which was also occupied by two passengers [one of whom lived at the address of the stop]. She also came to this conclusion because Ms. Rowan admitted to having consumed one drink [albeit only one drink, because she was allegedly the designated driver]. According to Nymeyer, by the time she formed her suspicion, she knew Euler was on scene. Euler was a new officer. Given Euler's relative inexperience, Nymeyer decided to hand over the investigation to Euler. Both Euler and Thornton generally concur with this narrative.
14According to Euler and Thornton, Euler took over the reins of the impaired investigation. After a brief interaction with Ms. Rowan, Euler formed her own suspicion and made an ASD demand. On Euler's evidence, the ASD demand was made immediately after Euler formed her own suspicion – somewhere between 2:12 and 2:15 a.m. On Euler's evidence, she obtained compliance with the demand at 2:17 a.m. – in under four minutes from the making of the demand. By the time the demand had been made, Thornton's attention had turned to an unruly party-goer who had come from the house. Nevertheless, Thornton concurred with Euler about the time of the Fail result on the screening test: 2:17 a.m. Both Thornton and Euler testified that this result was obtained within 5 minutes of the time of their arrival at Ms. Rowan's car: 2:12 a.m. In other words, both Thornton and Euler testified that Euler's investigation moved from a request for documents, to conversation, to the forming of a suspicion, to the making of a demand, and finally to the taking of a breath sample in the space of about 5 minutes or less.
15To sum up, all three police witnesses describe a brief pre-arrest engagement with the accused. Nymeyer spoke to the accused first, but was then joined by Euler and Thornton. Nymeyer's reasonable suspicion was followed by Euler's reasonable suspicion. Only Euler acted on her suspicion, because Nymeyer wanted to give the less experienced Euler a chance to gain experience. However, once Euler formed her suspicion, she moved immediately to making an ASD demand and to obtaining compliance with it. While this general framework seems clear, the precise times of key events in the chronology do not. I will turn to now to this area of the evidence.
B. THE ALLEGED TIME DISCREPANCIES
16Much was made of the somewhat unsatisfactory record keeping of the officers in this case and for good reason.
17Because compliance with the forthwith requirement has become an issue, the timing of Nymeyer's initial stop of the accused and timing of the formation of her ASD grounds very shortly thereafter becomes extremely important. Unfortunately, the evidence of the three officers confuses rather than clarifies this issue.
18Nymeyer believes she stopped the accused at 2:05 a.m. However, this belief does not stand on entirely solid ground. This belief is based upon the CAD [computer assisted dispatch] details, rather than any notes made by Nymeyer in her own notebook. Nymeyer made few if any notations about times, because her watch battery was dead and she did not trust her cruiser's computer or display to provide the times. Having said that, Nymeyer appears to believe she is the source of the 2:05 time stamp in the CAD and appears to have treated this entry as a past recollection recorded. This evidence significantly adds confusion to the issue of the police compliance with the "forthwith" requirement.
19Euler and Thornton's recollection of the timing of the stop is at odds with Nymeyer's. Both purport to have been witness to the stop, but both purport to have arrived on scene at 2:12 a.m., having just finished questioning another nearby motorist [between 1:39 and 2:07 a.m.] in furtherance of the suspicious person investigation stemming from the party Ms. Rowan attended. Unless they were able to witness Ms. Rowan's stop while dealing with the other nearby motorist, it is impossible to reconcile their 2:12 time stamp with Nymeyer's 2:05 time stamp.
20Having said that, I am not sure that the time that they stopped the cruiser can be treated as synonymous with the time they exited the cruiser and approached Ms. Rowan's car door. The officers would appear to perceive the time of the cruiser stop as synonymous with their arrival at Ms. Rowan's car door, but other aspects of their evidence cast doubt on the reliability of this perception. Thornton testified in-chief that he and Euler approached the car with Nymeyer, a position that suggests Nymeyer stopped the accused at 2:12 a.m. This evidence contradicted Nymeyer's evidence she was alone with the accused's vehicle for a minute or two prior to the arrival of Euler and Thornton. It also contradicts Nymeyer's belief that the stop occurred at 2:05 a.m. In cross-examination, Thornton agreed that Nymeyer had been questioning the accused prior to his and Euler's arrival at her car. This concession mitigated the apparent inconsistency between his evidence and Nymeyer's, and allowed for the possibility that Euler and Thornton did not immediately exit their cruiser and join Nymeyer, even if they were close by. Similarly, Euler testified that Nymeyer had already been questioning the accused and her passengers when she and Thornton walked up to the car. It is also unclear how Thornton would have known [as Nymeyer says he did] that this particular stop would be a good learning opportunity for Euler unless Nymeyer had already communicated with Thornton about the nature of the stop and the nature of her suspicions. As will be discussed below, Ms. Rowan also suggested that Nymeyer spoke to her and her passengers on her own for a while, prior to the arrival of Nymeyer and Euler.
C. MS. ROWAN'S NARRATIVE OF THE ROADSIDE INVESTIGATION
21Ms. Rowan suggested that the police questioned her for about 20-25 minutes prior to making a breath demand. Essentially, she suggests that, given her near immediate admission of alcohol consumption, any prolonged questioning following that admission gave rise to an unacceptable delay between the forming of a suspicion by Nymeyer and the ultimate making of a demand by Euler.
22Ms. Rowan testified that Nymeyer spoke to her about five minutes before the arrival of Thornton and Euler outside her car door. Upon their arrival, Thornton asked her to exit the car. She testified that Thornton then asked similar questions to those put forth by Nymeyer – what she was doing, where she came from, who she was with, and the amount of alcohol consumed. Thornton then allowed Euler to make similar inquiries.
23Interestingly, Nymeyer testified to passing off the investigation to Euler for the purpose of giving Euler some experience in this kind of investigation. This testimony tends to corroborate Ms. Rowan's characterization of the investigation as a bit of a training exercise.
24Having said that, Ms. Rowan provided only sparse details about the nature of the questioning – nothing from which I might reliably assess the accuracy of her assessment of the duration of the questioning. Ms. Rowan also did not purport to be looking at any time piece [her watch, car clock, or cell phone] as the questioning progressed. Ms. Rowan presented as a novice in criminal justice matters – her Charter affidavit discloses she has no criminal record. It does not surprise me that she perceived the questioning as being lengthy, perhaps even more than it actually was. As with the evidence of the police, I cannot conclude with any accuracy the precise length of the questioning she describes.
25In an effort to corroborate her time assessment, Ms. Rowan called some friends as witnesses. These friends provided a vague estimate of their time of arrival home from the stag and doe party. This evidence appears to have been called for the purpose of establishing that the initial police stop took place much earlier than the time suggested by the police. However, neither Ms. Rowan nor her friends provided any precise description of the actual time of her initial interaction with the police.
26I turn now to focus on Mr. Rowan's account of Euler's questioning. As noted, Ms. Rowan has Euler asking questions similar to that of the other officers, which ultimately led Euler to make an ASD demand. Nothing about Ms. Rowan's evidence suggests that Euler failed to make her demand forthwith after forming her suspicion.
27I want to make one final note about Ms. Rowan's narrative of the events. At first blush, it seems odd that she was joined by two friends as she moved her car from one driveway to a neighbouring driveway. When coupled with Ms. Rowan's alleged assertion to Nymeyer about being the designated driver, the presence of passengers in the vehicle tends to suggest that Ms. Rowan was still in the process of driving home from the stag and doe party – and not just moving the car from one driveway to another. However, Travis Martin and Shawnie Hough provided evidence to corroborate Ms. Rowan's claim – evidence that went unchallenged by the Crown. Also, Nymeyer purported to see Ms. Rowan pull out of one driveway and drive over to the neighbouring driveway.
D. FINDINGS OF FACT
28I will start by saying that I found all of the witnesses to be well meaning and credible, even if each one suffered from their own reliability shortcomings.
29Having regard to all of the above-noted evidence, I am prepared to accept on a balance of probabilities that the roadside investigation had the trappings of a training exercise, one which involved two officers demonstrating their technique for the benefit of the newer officer, who was the last in a sequence of three officers to pose some questions to Ms. Rowan. This conclusion is in keeping with Ms. Rowan's evidence and mostly corroborated by the evidence of the three officers. While none of the officers describe Thornton as playing much of a role in the questioning, none of them squarely discounted the possibility that Thornton played a role in asking questions. And the evidence clearly establishes that it was Thornton who ordered Ms. Rowan out of the car.
30I should also note that I infer that Euler knowingly took part in this ASD training exercise. Whatever was said between the officers, they all seemed to work in a coordinated fashion with each other, which leads me to conclude the purpose and focus of Euler's involvement was implicitly understood at its outset.
31I am also prepared to accept that Nymeyer began asking questions before the arrival of Thornton and Euler at the driver's side of Ms. Rowan's car – which itself leads to the conclusion that Thornton and Euler did not rush to join Nymeyer at the side of Ms. Rowan's car, despite having been close enough to the situation to witness the stop. This conclusion is supported by the evidence of Nymeyer and Ms. Rowan, and to a certain extent by Euler and Thornton. I am also prepared to accept Ms. Rowan's assertion that each of the three officers took turns asking her questions before the last ultimately made an ASD demand. I conclude Nymeyer spoke alone with the accused for a while before Euler and Thornton decided to join the conversation and conduct their own discrete sets of inquiries. I accept on a balance of probabilities that Thornton and then Euler asked questions of the accused, despite the fact that Nymeyer had already formed a suspicion, because Nymyer decided that this incident would provide a good learning opportunity for Euler.
32Nymeyer also makes it clear that Thornton had communicated to her his belief that this particular traffic stop would be a good learning opportunity for Euler. It appears he knew this even before he asked Ms. Rowan to exit the vehicle. I infer from these circumstances that Nymeyer must have communicated her suspicions to Thornton before Thornton and Euler were in a position to make their own independent investigations, and likely before they arrived at Ms. Rowan's car. What remains unclear is the duration of time that elapsed between Nymeyer's initial interaction with the accused [which resulted in the formation of her suspicion and communication of it to Thornton] and the arrival Thornton and Euler at Ms. Rowan's car door.
33Having concluded that there is a gap between the arrival of Nymeyer at Ms. Rowan's car door and the subsequent arrival of Euler and Thornton at the door, I then pause to wonder about the "2:12" time notation of Euler and Thornton. I note here that Euler and Thornton both describe their arrival at the call as being at 2:12. Euler, however, made different notations when creating the synopsis for the case, wherein she noted the stop occurred at 1:25 a.m. This erroneously stemmed from the time of the initial dispatch, which actually occurred at 1:28 but was mistakenly recorded as 1:25 when being mistakenly used to indicate the time of the traffic stop. This less than ideal record keeping causes me to have serious concerns about Euler's reliability. I am concerned that Thornton and Euler's arrival at the scene may not have been at 2:12, given my acceptance of the fact that Nymeyer questioned the accused and her passengers for a period of time before Thornton and Euler joined Nymeyer at the accused's car and conducted their own questioning for a few minutes. Three minutes between time of arrival of the 2nd cruiser and the time of the roadside breath demand appears to be an extremely small period of time in which Nymeyer could conduct her independent inquiries and then Thornton and Euler could conduct their subsequent inquiries. The numbers just do not seem to add up. I suspect that 2:12 marks the time that Euler and Thornton decided to get out of their car and join Nymeyer. Given the compelling evidence of the staggered arrival of Nymeyer and the other two officers, I infer that Euler and Thornton exited their cruiser and walked up to Ms. Rowan's vehicle because Nymeyer had decided that her investigation would be a good learning opportunity for Euler and had communicated this decision to Thornton. I infer they were most likely already on scene for a brief period of time before exiting their cruiser to assist in the investigation that Nymeyer had already been conducting for a brief period of time. I am concerned that Euler and Thornton conflated the time they stopped their cruiser with the time they began interacting with Ms. Rowan. These concerns arise from the Nymeyer's belief that she arrived to speak with Ms. Rowan at 2:05 a.m., from the evidence of the later arrival of the other two officers, from the evidence of the sequential questioning of Ms. Rowan by all three officers, and from the evidence that the demand was ultimately made only 3 minutes after 2:12 a.m.
34I am also prepared to find on a balance of probabilities that questions posed by Thornton and Euler took some time to be asked and answered. I cannot precisely quantify the time, but I accept that Thornton and Euler's attendance at the car and their subsequent tag-team questioning must have taken some minutes to occur.
35I am not prepared to conclude that the inquisition lasted as long as Ms. Rowan estimates, despite the fact I accept that she felt like the questioning lasted a long time. On the other hand, I am not prepared to accept the suggestion by the officers that the inquisition was as brief as they suggested. More probably, the truth lies somewhere in between the two extremes.
36Ultimately, because this was a warrantless search, the Crown bears the burden of proving that the ASD was made forthwith. For the reasons just indicated, I cannot be satisfied on a balance of probabilities that that the Euler's demand followed as quickly after the formation of Nymeyer's suspicion as Nymeyer would suggest. The delay between the formation of Nymeyer's suspicion and the ultimate ASD demand could have been brief but it also could have been up to about 10 minutes in duration. The Crown has failed to establish where in this spectrum the truth lies. And the burden rests on the Crown. Whatever the duration of the delay I am satisfied to an absolute certainty that it was caused by Nymeyer's conscious decision to refrain from making a demand, despite having the grounds to make one, so that Euler could gain experience.
37So what flows from these findings? First, I do not conclude that Nymeyer was prepared to let a fish off the line in the event that Euler failed to land it. Nymeyer testified that but for the arrival of Euler and Thornton, she would have administered the ASD demand. I therefore conclude that she merely deferred making an ASD demand to allow Euler the opportunity to form her own suspicion and make her own demand. Had Euler been unable to form the requisite suspicion, I do not for a moment believe that Nymeyer would have let Ms. Rowan go. Instead, I conclude that Nymeyer fully intended to reel in her own catch.
38To switch from metaphor to simile, I conclude that Nymeyer and Thornton ran this traffic stop like doctors run a teaching hospital. Given Nymeyer's stated intention to make an ASD demand if Euler failed to do so, I conclude that Nymeyer chose to make Euler her understudy and chose to make Euler her agent for the purposes of this investigation. This situation did not involve Nymeyer forgetting to make her demand. Rather, she suspended making her demand to allow her understudy to make one in her stead. I infer that Nymeyer deliberately chose to ignore the "forthwith" requirement for the sake of a teaching opportunity.
E. ANALYSIS AND CONCLUSION
39The ASD procedure constituted a search and seizure, within the meaning of section 8 of the Charter. This procedure was done without a warrant. The seizure of the accused's roadside breath sample was therefore prima facie unreasonable. The Crown bears the burden of establishing the reasonableness of this seizure.
40In order to establish that the seizure of the roadside breath sample was a reasonable one, the Crown must establish that the seizure was authorized by law. To that end, the Crown places its reliance solely on section 254(2).
41Section 254(2) requires that the officer make the ASD demand forthwith after forming her suspicion and to obtain compliance with that demand forthwith after the making of the demand. Forthwith means "immediately" or "without delay." Although section 254(2) authorizes an infringement of sections 8, 9, and 10 of the Charter, the "forthwith" requirement renders those infringements justifiable in a free and democratic society. It is the time period in which these Charter rights are justifiably infringed.
42In unusual circumstances "forthwith" may be given a more flexible interpretation than its ordinary meaning strictly suggests. However, the brief delays contemplated by the authorities are ones that are reasonably necessary for the officer to accomplish the objectives of s. 254(2).
43In the Quansah decision, the Court of Appeal for Ontario provides a succinct description of the appropriate approach in the assessment of an officer's compliance with the forthwith requirement:
In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
Third"forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met. [Emphasis mine. The court makes it clear that this factor is not a condition precedent for a finding that a sample was not made forthwith, but it is a relevant factor].
44In the case before me, I have concluded that Officer Nymeyer deliberately chose not to make her ASD demand promptly after forming her suspicion. Instead, she chose to embark on a training exercise. She thereby contemplated and created a delay in the making of a demand. The Crown has failed to establish on a balance of probabilities that this delay was trivial or inconsequential in length. The evidence clearly establishes that Nymeyer's delay was not reasonably necessary to discharge the duty contemplated by section 254(2). Therefore, while I cannot pinpoint the delay as being one, three, five, or seven minutes, for example, I can be certain that Nymeyer has not established that she made her demand forthwith following the formation of her suspicion.
45I do not believe Nymeyer's delay in making her demand was cured by the fact that Euler promptly made her demand after forming her own suspicion. Euler was acting under the direction and tutelage of Nymeyer and Thornton. This was Nymeyer's detention. Although the detention was initially in furtherance of investigating a suspicious persons complaint, it almost immediately became an impaired driving inquiry. Nymeyer maintained an intention to assume authority over its outcome. If Euler failed to make a demand, Nymeyer intended to make her own. The detention was therefore going to last for as long as it took one of them to make a demand and obtain compliance with it. Nymeyer's decision to provide a training opportunity and Euler's willing participation in that training opportunity gave rise to a prolonged pre-demand detention that was not reasonably necessary to fulfill the objectives of section 254(2).
46I find this situation distinguishable from the case of Guenter, a case upon which the Crown did not rely, but a case which I feel it necessary to address. First, I would note that Guenter deals with the validity of a post-arrest breath demand, not a roadside screening demand whose constitutional validity depends upon the brevity of the inquiry, a brevity created by the forthwith requirement. The officer in Guenter had the post-arrest authority to remove the arrestee from the roadside and possessed statutory authority to hold the arrestee for the purpose of gathering evidence and/or preserving evidence. Second, I would note that Guenter addresses the situation where the arresting officer forgot to make a demand at the roadside – and thus did not make a demand as soon as practicable. In Guenter, the breath technician, upon realizing the error and obtaining subjective grounds to make a demand, then promptly made a demand. In that scenario, the arresting officer did not deliberately orchestrate a delay. Also, in that scenario, the breath technician was not a party to the delay orchestrated by the investigating officer. Finally, in that scenario, the powers of arrest authorized Guenter's continued detention for the purpose of collecting/preserving evidence – irrespective of the existence of a valid demand: see s. 497(1.1) of the Criminal Code. In a similar vein, the court in Guenter noted that the statute permitted as much as a three hour time gap between the formation of an officer's subjective grounds to make a demand and the preceding driving offence: "Moreover, the larger objective of the Criminal Code's breathalyzer scheme of forcing prompt police investigation was held to be promoted by the three hour limit in s. 254(3)." The arrest of Guenter and his transport to the station was therefore constitutionally valid even if there had been an oversight in making an earlier formal demand. On the other hand, in the case before me, Nymeyer's decision to delay a demand was not reasonably necessary to achieve the objectives sanctioned by 254(2). As a result, the prolongation of the accused's detention for a purpose unrelated to the objectives of s. 254(2) was not only premeditated, it was also arbitrary. Euler's participation in the training opportunity occurred during the course of this arbitrary detention. She had been delegated a task by the officer who still assumed ultimate authority over the roadside detention – and still intended to make an ASD demand if all else failed. Euler was thus Nymeyer's delegate. This delegation was unlawful, because it was not reasonably necessary to achieve the objectives of section 254(2) and because it therefore occurred during the course of an arbitrary detention. Therefore, despite the fact that Euler made her demand after independently forming her own suspicion, I nevertheless conclude that the Guenter decision does not apply to "cure" Nymeyer's deliberate decision to delay making an ASD demand.
47For all of the above reasons, I conclude that the demand in this case was not made forthwith. I therefore conclude that Ms. Rowan has established that the ASD breath sample seizure was not authorized by law. Having come to this conclusion, I find that the police violated Ms. Rowan's right against unreasonable searches and seizures.
III. THE ALLEGED S. 8 BREACH THAT STEMS FROM THE VIDEOTAPING OF MS. ROWAN WHILE SHE URINATED
A. THE UNDISPUTED FACTS
48Video footage from the cell block of the OPP detachment indisputably establishes that when Cst. Euler first brought Ms. Rowan into the cell block area, she nearly immediately began to show Ms. Rowan a sign that contained a written summary of an arrestee's right to counsel. The video footage also clearly shows Cst. Euler pointing to the video camera to demonstratively communicate that Ms. Rowan was being videotaped while at the station.
49The evidence unequivocally establishes that Ms. Rowan needed to urinate very soon after entering the cell block of the OPP detachment. Both Cst. Euler and Ms. Rowan testified to this fact. Constable Euler stated that she uncuffed Ms. Rowan for the purpose of allowing her to use the toilet. The video footage from the cell block shows Ms. Rowan fidgeting around the time Cst. Euler uncuffed her. Immediately after Euler uncuffed Ms. Rowan, she escorted Ms. Rowan to a cell for the purpose of allowing Ms. Rowan to urinate.
50A video camera with recording capabilities was operating in Ms. Rowan's cell. It had fairly high resolution and provided colour footage. The camera was running when she entered it. The video footage from the cell camera points in the direction of the cell toilet and the adjacent cell door. When Ms. Rowan first entered the cell she immediately proceeded to the toilet, where she pulled down her pants and underwear and sat on the toilet. She then urinated. After urinating, she took some toilet paper and wiped herself.
51The cell bed is visible at the bottom left of the footage of the cell video. Blankets were visible on the cell bed. Ms. Rowan at times moved the blankets and used them to lie on and under them.
52Later, nearer to the time of Ms. Rowan's release, she again used the toilet to urinate. Prior to using the toilet, she approached the cell door and appeared to attempt to look out its window and also appeared to consider knocking. After a brief pause, she then went to the toilet. Just as she was about to stand up and pull up her pants, Officer Thornton opened the cell door for the purpose of completing her release in the nearby booking area. He saw her pulling up her pants and quickly turned away. She hastily pulled up her pants upon realizing he had opened the door.
53The videotaping of Ms. Rowan's cell did not employ technology that blurred or obscured the portion of the cell that contained the toilet. In response to court decisions such as R. v. Mok, the OPP opted to provide detainees with the option of using a privacy sheet. The privacy sheet resembles a sleeveless hospital gown, with an open slit down the back of the gown, which allows detainees to urinate and defecate while wearing the gown and sitting on the toilet. Provided one is sitting down while performing these functions and cleaning oneself thereafter, the privacy sheet covers the detainee's anal and genital regions. The privacy sheet does not, however, prevent the police from observing the detainee performing these extremely intimate functions.
54On the wall of Ms. Rowan's cell, there was a large painted notice which indicated that activities in the cell were subject to video surveillance. This signage was almost immediately beside the toilet.
B. THE DISPUTED FACTS
55Officer Euler testified that she told Ms. Rowan about the existence of privacy sheets around the time she was reviewing the right to counsel in the booking area – around the time that Ms. Rowan so obviously needed to use a bathroom. Constable Euler made a note in her checklist of telling Ms. Rowan about the privacy sheet. However, Constable Euler did not present any sheet to Ms. Rowan. She also did not recall whether Ms. Rowan made any response to the alleged offer of a privacy sheet.
56Ms. Rowan testified that she did not recall being told about the privacy sheet. She also testified that she did not recall being told about the videotaping at the police station, but later acknowledged being told about videotaping in the station. In addition, she testified that she did not notice the signage in her cell indicating that she had been videotaped. She also testified that had she known about the privacy sheets, she would not have urinated without one.
57Ms. Rowan's affidavit in support of her Charter motion clearly deposes to an awareness of the cameras in the station and in her cell. In this same affidavit, she deposed that she urinated out of necessity, despite her reluctance to being videotaped.
58The Crown implicitly contended in its cross-examination of Ms. Rowan and in its submissions that Ms. Rowan was not concerned about being videotaped and that she did not suffer a violation of her dignity as a result of being videotaped while urinating. Ms. Rowan, on the other hand, purports to be extremely embarrassed and upset by the ordeal. Through her evidence, Ms. Rowan implicitly asserts that she did not consent to having her acts of urination videotaped and that she did not waive her right to have privacy while urinating.
C. FINDINGS OF FACT REGARDING TO THE DISPUTED FACTS
59I accept that Euler told Ms. Rowan about the privacy sheet. The fact that Euler made a contemporaneous note of this fact provides strong corroboration for it. However, I am mindful that Ms. Rowan had a fairly urgent need to urinate when told of this fact. I also note that Ms. Rowan had very high alcohol readings. I would also not be surprised if Ms. Rowan had no idea what Euler meant by a privacy sheet and failed to register what Euler was telling her. Indeed, Constable Euler did not make note of any response to the information provided about the privacy sheet and did not present a sheet to her. Also, Euler certainly does not purport that Ms. Rowan declined the offer of a privacy sheet. I therefore accept Ms. Rowan's evidence that she did not know of the existence of a privacy sheet. I also accept that she did not knowingly and explicitly waive whatever token protection that privacy sheet may have offered.
60Ms. Rowan provided somewhat contradictory evidence on her awareness of the video surveillance. Frankly, she seemed confused on the subject when testifying and her memory seemed poor. In her affidavit filed in support of the Charter motion, she stated an awareness of the videotaping both inside and outside her cell. Her behaviour on the video suggests to me that she was quite aware of the video surveillance in the cell. In that regard, I note that on the second occasion she used the toilet, she seemed hesitant to use it, and moved to knock on the door of the cell before turning to use the toilet. I also note that the signage in her cell was virtually inescapable. Also, the booking area footage demonstrably establishes that Euler advised her at least generally about video surveillance. However, I do not conclude she has been deliberately dishonest with the court on this subject. Instead, I conclude that she suffered from reliability issues when giving her viva voce. I find on a balance of probabilities that she was aware of the video surveillance in her cell while she was in her cell.
61Having heard Ms. Rowan testify, I accept that Ms. Rowan, having had the post-arrest opportunity to review disclosure and see for herself the contents of her cell video, is genuinely mortified and embarrassed about the degree to which her use of the toilet was visible to any officers at the station who chose to watch the footage. I reject any suggestion that she voluntarily exposed herself and her bodily functions to anyone observing the video surveillance. I find that her use of the facilities was the product of necessity, not the product of an informed consent to have her bodily functions become the subject of recorded video surveillance. She simply acquiesced to a situation outside of her control.
D. ANALYSIS
62The evaluation of the Ms. Rowan's allegation of a section 8 breach must begin with a determination of whether or not she enjoyed a reasonable expectation of privacy. Section 8 of the Charter only safeguards reasonable expectations of privacy. Where no such reasonable expectation exists, the applicant has no standing to allege a breach. The accused bears the burden of proving on a balance of probabilities the existence of a reasonable expectation of privacy.
63Recent jurisprudence has made it clear that arrestees do in fact enjoy a reasonable expectation of privacy in their use of police station washrooms, albeit a reduced expectation of privacy. This expectation of privacy exists despite the clear public interest in having police detention facilities monitored by video surveillance cameras. This same case law makes it clear that videotaped surveillance of accused's persons using toilets in police facilities constitutes a search within the meaning of section 8 of the Charter.
64In Ms. Rowan's case the police videotaped Ms. Rowan using the toilet twice. On each occasion, she pulled down her jeans and underwear, sat on the toilet, urinated, and then proceeded to wipe herself. During each exercise, one can see Ms. Rowan's buttocks and thong, but not her genital or anal regions. On its face, the evidence clearly establishes that the police intruded upon Ms. Rowan's reasonable of privacy when videotaping her use of the toilet. The evidence also clearly establishes that this search and seizure was conducted without a warrant.
65The question then becomes whether or not this search and seizure was reasonable.
66Because it was a warrantless search, it was prima facie unreasonable. The Crown therefore bears the onus of establishing that the search was reasonable. To do so, the Crown must establish that the search was authorized by law. The Crown has not, however, provided any statutory basis for the search. Similarly, it has failed to establish a common law power to conduct the search. For example, no exigent circumstances existed to justify the search. This was not a dangerous prisoner who might want to harm herself. This was not a prisoner for which the police had grounds to suspect was concealing drugs or other evidence. This was also not a prisoner whose level of intoxication put her in any medical danger. This was a young adult charged with an Over 80 offence that the police eventually released on a Promise to Appear – as routine as it gets. She was caught by a blanket policy, despite not raising any of the concerns the policy was designed to address.
67The Crown argues that the search was reasonable because Ms. Rowan waived her right to privacy. Put another way, the Crown argues that although a reasonable person might expect privacy in Ms. Rowan's situation, Ms. Rowan no longer had a subjective expectation of privacy.
68I agree that individuals may choose to waive their reasonable expectation of privacy. In those circumstances, they no longer have a subjective expectation of privacy. When individuals make a valid waiver, they lose standing to make an allegation of a breach of any rights that would otherwise have been protected by section 8 of the Charter. However, a waiver will only be valid if the person making it is fully informed of the right being waived and of the consequences of waiving that right. An uniformed acquiescence to a privacy intrusion or an uninformed waiver of a privacy interest cannot deprive an individual of standing, nor can it shield the state from constitutional scrutiny of its intrusion on the privacy interests of that individual. When waiver becomes an issue, the Crown bears the burden of establishing on a balance of probabilities the existence of a constitutionally valid waiver.
69The Crown implicitly if not explicitly contends that Ms. Rowan waived her reasonable expectation of privacy when she (1) failed to avail herself of the use of the privacy sheet and (2) knowingly urinated in front of the camera without the benefit of that sheet or any of the blankets on her bunk. I disagree.
70Let me explain. As noted, I accept that Ms. Rowan was unaware of the offer of a privacy sheet. I accept that the words of Euler simply did not register with her. Her failure to use the sheet was born of ignorance, not of a conscious decision. She never explicitly and knowing waived the offer of it. A valid waiver of a constitutional right requires a clear and unequivocal waiver. There was none.
71Before moving on to my other reasons for disagreeing with the Crown's contention, I wish to make one more observation. Constable Euler could have added clarity to the situation by simply handing the privacy sheet to Ms. Rowan and advising her of its purpose prior to placing her in the cell. Any confusion about the nature of the communication between the two of them could have be put to rest. She also could have added clarity to the situation by insisting upon a clear and unequivocal response to the offer. Constitutionally valid waivers require clarity. The burden of providing that clarity rests upon the state, not the accused. Constable Euler's inattention to this aspect of her investigation was unfortunate. In future, it would be helpful if OPP procedures addressed the need to obtain an unequivocal waiver of the use of the privacy sheet.
72Moving on, I will address my next concern with the Crown's waiver argument. I do not believe that the failure to use an instrument that was incapable of protecting a breach of a privacy interest can be construed as a waiver of that privacy interest. Even if she had donned the privacy sheet, both episodes of urination and the necessary post urination clean-up would still have been visible. The privacy sheet served only as a fig leaf that covered genital and anal regions. It did would not have served as a blind to protect Ms. Rowan from the indignity of having others watch her perform her intimate bodily functions. For the same reason, I reject the Crown's contention that a failure to employ the bunk blankets in an effort to cover-up constitutes a valid waiver of Ms. Rowan's privacy interests. I have trouble conceiving how this young woman could have pulled down her tight jeans in an attempt to use the toilet and then used the toilet while simultaneously holding a blanket, except perhaps if she held the blanket in her teeth. I also have trouble conceiving how the blanket would protect any viewer observing Ms. Rowan wiping her nether regions upon completion of her use of the toilet. The failure to use an illusory protection does not render the protection real.
73I recognize that the OPP's privacy-sheet procedure has found some acceptance at the trial court level. In particular, I note the OPP's reliance upon R. v. Lyndon, an unreported decision of Justice Maund of the Ontario Court of Justice, made on September 8, 2015. In that decision, Justice Maund considered the use of privacy sheets to be a reasonable compromise and declined to find a section 8 breach. I have not been provided with the complete decision by counsel, only excerpts in the OPP affidavit. Nevertheless, I find myself in respectful disagreement with Justice Maund's conclusion that privacy sheets offer any substantial alleviation of the indignity an accused must endure when having others watch the performance of her bodily functions. The OPP also place reliance upon the appeal decision in R. v. Griffen, 2015 ONSC 927, where Justice Dawson found that an evidentiary basis existed for the trial judge's conclusion that, since the breach of Griffen's rights, the OPP were "following the issue in the courts" and "taking the matter seriously". While the court agreed that the trial judge's finding was "a reasonable one", the court was not asked to adjudicate upon the sufficiency of privacy sheets in the preservation of an arrestee's right to privacy. Having reviewed the authorities provided to me by counsel and the authorities mentioned in exhibit 8, it would appear that there does not yet exist any binding appellate decision on the sufficiency of privacy sheets in the protection of an arrestee's privacy while using the toilet. With the release Ms. Rowan's judgment, there will now exist a conflict between lower court decisions on the privacy sheet issue.
74Before moving on to the next aspect of the Crown's submissions, I will make some comments on the privacy sheet issue. Case law discloses that other police forces have opted for a more reliable and complete solutions to this privacy issue. The Guelph Police Service, who operate in the same county as the Fergus OPP detachment that dealt with Ms. Rowan, utilize a digital "privacy masking" that digitally blocks out the toilet on the cell footage. In Newmarket [the jurisdiction that heard the Mok case], the police also utilize digital blocking. This blocking method fully addresses the concerns raised by the Mok decision. It negates the need to obtain a drunk person's waiver of a constitutional right [a dicey endeavour] and it provides complete privacy without compromising legitimate police concerns about the safety and security of those in custody. Neither party called any evidence to explain why the OPP chose their "privacy sheet" method over what appears to be a definitively complete solution to the issue.
75I have one final point about my privacy sheet observations before moving on. My conclusions about the suitability of this procedure are, strictly speaking, not necessary to my section 8 findings. Having found that the Crown failed to establish the accused waived or was even aware of the protection, the suitability of that protection is rendered irrelevant to the analysis. However, I did not wish this judgment to be viewed as condoning the OPP privacy sheet policy.
76I now consider the Crown's contention that Ms. Rowan knowingly and willingly urinated in full view of the cameras and thus waived her right to privacy. While I agree that there can and will be occasions where the evidence will establish that the subject of the video had no concern about the existence of an audience, this occasion is not one of them. Indeed, Ms. Rowan's hesitation prior to her second urination suggests a level of unease; as does her response to Thornton opening the cell door. Does the fact that Ms. Rowan had to have known she was being taped vitiate her reasonable expectation of privacy? No, it does not. We do not always have the luxury of choosing when to urinate. We cannot always "hold it", as the saying goes. The video footage in this case shows Ms. Rowan being quite fidgety upon her entry to the station. It is clear that she was in some discomfort and could not hold it. The officer hastily uncuffed her and brought her to the cell so Ms. Rowan could urinate. It is around this time that Officer Euler informed Ms. Rowan of the privacy sheet. However, I have accepted that Ms. Rowan was unaware of the offer and never declined it. On the first occasion, Ms. Rowan used the toilet at a time of apparent need. In my view, her urgent use of the toilet in view of the cameras while locked in her cell cannot be said in any way to amount to a voluntary waiver of a privacy interest. Her second use of the toilet discloses a similar situation. She went to the door before using the toilet. She even appears to have considered knocking on it. She also seemed to be attempting to see if anyone was nearby. She showed hesitation before ultimately giving in and using the toilet for a second time. And she had no choice but to urinate in her cell – she was locked in. In these circumstances, I do not conclude that the use of the toilet in front of the camera was a voluntary waiver of her privacy interest, but was instead a capitulation to a call of nature while in captivity. She acquiesced to a situation out of her control. She did not waive her Charter right.
77Consequently, I conclude that the Crown has failed to establish that Ms. Rowan made a valid unequivocal waiver of her right to privacy.
78Having concluded that Ms. Rowan has established an intrusion upon her reasonable expectation of privacy, having concluding that the Crown has failed to establish a lawful basis for this intrusion, and having concluded that the Crown has failed to establish that Ms. Rowan waived her expectation of privacy, I conclude that the Crown has failed to establish on a balance of probabilities that the search was a reasonable one. Ms. Rowan has therefore established a breach of section 8 of the Charter.
IV. ANALYSIS OF THE APPROPRIATE REMEDY FOR THE BREACHES, PURSUANT TO SECTION 24 OF THE CHARTER
79The defence asks for a stay of proceedings, pursuant to section 24(1) of the Charter, or, in the alternative, exclusion of Ms. Rowan's breath samples, pursuant to section 24(2) of the Charter.
80A stay of proceedings must only be granted in the clearest of cases. This is not one of those cases. Cumulatively, the videotaping breach and the "forthwith" breach do not so gravely affect the fairness of Ms. Rowan's trial or so gravely contravene society's notions of justice that the prejudice caused by the violations will be aggravated by the conduct of the trial or its outcome.
81In the case at bar, the contents of the affidavit, marked as exhibit 8, disclose that the OPP developed a protocol that they believed was responsive to the developing jurisprudence governing the filming of toilet facilities. While I do not consider their response adequate, it was reasonable for them to conclude that their measures would be considered sufficient by the courts. I therefore conclude that the police acted in extremely good faith when devising their privacy sheet solution. The arresting officer in this case offered the use of a privacy sheet. She does not appear to have insisted on a clear and unequivocal response to that offer, but this would seem to be a product of her inexperience. On the evidence before me, she treated Ms. Rowan courteously and respectfully throughout the arrest. Nothing about her conduct could be described as abusive.
82The "forthwith" violation was born of good intentions: the desire to give a newer officer some much needed experience. It was a violation that was brief in duration, a matter of minutes and had little impact upon Ms. Rowan's expectation of privacy. During the time period of the breach, Ms. Rowan would not even have had an opportunity to obtain meaningful legal advice.
83Accordingly, I am unable to conclude that the defence has established that the violation of Ms. Rowan's privacy interests constitutes one of those clearest of cases that warrants a stay of proceedings.
84As an alternative to a stay of proceedings, the defence seeks an exclusion of Ms. Rowan's breath samples, pursuant to section 24(2).
85In its application to exclude evidence, the defence bears the burden of proving that the breath samples were obtained in a manner that infringed a Charter protected right. In my view the evidence establishes a strong temporal and contextual connection between the breaches and the collection of the breath samples. There is also a direct causal connection between the ASD procedure and the compulsion of the subsequent breath samples. I am therefore satisfied that the evidence was obtained in a manner that infringed a Charter protected right.
86Having found that the breath tests were obtained in a manner that breached a Charter right, I must now assess and balance the seriousness of the Charter infringing state conduct, the impact upon the Charter protected rights of the accused, and society's interests in a trial on the merits of the case.
87With regard to the question of the seriousness of the state's charter infringing conduct, I note that the "forthwith" breach was a momentary one, a matter of several minutes at most. The traffic stop that lead to the arrest was still a relatively brief one. During this brief delay, Ms. Rowan would not have had a reasonable opportunity to obtain meaningful legal advice. However, it does concern me that an officer who purported to give a newer officer a chance to learn would, during that learning opportunity, set a very bad example by ignoring an aspect of the statutory provision that was the subject of the lesson. Nymeyer's decision to refrain from making her own immediate demand was a deliberate one. While, there is no evidence to suggest this lapse was part of a larger pattern of indifference to the "forthwith" requirement, deliberate neglect of a statutory requirement, even if only for a few minutes, is not conduct that the courts should condone.
88Turning to the seriousness of the police conduct during the videotaping breach, I repeat what I have already said. The police acted in extreme good faith when creating their privacy sheet policy. The OPP examined the jurisprudence and prepared a protocol that they believed was responsive to it. While I disagree with their particular choice of a response, it had support from some of my fellow justices from the Ontario Court. As already noted, my finding of a breach stems not from the police privacy sheet procedure, but from Officer Euler's implementation of that procedure. While I am not concerned about the good faith of the OPP in creating their policy, I am concerned about Constable Euler's less than fastidious effort in confirming Ms. Rowan's awareness of and waiver of the use of a privacy sheet. Inattention to detail gave rise to a failure to obtain either an unequivocal waiver or an acceptance of the ostensible privacy protection afforded by the sheet. However, Constable Euler's inattention to detail appears to have been the product of inexperience, not indifference or maliciousness. She struck me as someone who was doing her best to get things right, even if she fell short here. Consequently, I do not view the state's Charter infringing conduct to be overly serious, but it is still a factor that slightly favours exclusion of the evidence.
89I do, however, regard the impact upon the Charter protected rights of the accused to be somewhat serious, at least with regard to the videotaping breach. A reasonable person would be forgiven for feeling a great sense of personal violation in circumstances where their bodily functions could be viewed by any officer who chose to look at the video screen. Ms. Rowan testified to feeling greatly embarrassed. I accept this evidence. While not every detainee may feel humiliated, this is a reasonable response. In the circumstances, I come to the conclusion that the impact of the videotaping breach upon Ms. Rowan's charter protected rights favours the exclusion of the evidence.
90I come to a different conclusion about the "forthwith" breach, though. I do not view the "forthwith" breach as having a significant impact upon Ms. Rowan's Charter protected right to privacy. Our Court of Appeal has affirmed that breath samples only minimally invade an arrestee's Charter protected right to privacy. This minimal impact does not favour exclusion.
91When I consider society's interest in the trial of this case on its merits, I must have regard to the long recognized societal concern about the dangers of impaired driving. Drinking and driving continue to cause significant danger, damage, and death on our roadways. Society has a strong interest in seeing these types of cases tried on the merits of the evidence. The breath readings are highly reliable evidence that are essential to the Crown's prosecution on the Over 80 charge. Given that the police declined to lay an Impaired Driving charge, exclusion of the evidence will be fatal to the Crown's case. At that same time, this particular offence falls closer to the low end of the spectrum of seriousness for this type of offence. I say this despite the high readings, which were so high that the Criminal Code mandates the readings to be considered an aggravating factor. Although the readings were high, the driving was merely momentary. Ms. Rowan was moving her car from one driveway to another nearby driveway. During this fleeting criminal driving conduct, she did not disclose any aberrant driving. Nevertheless, the risk created by Ms. Rowan's excessive consumption of alcohol was real. Sometimes bad consequences can occur over very short distances. Having said that, it is clear that Ms. Rowan had done her best to take precautionary steps prior to her ill-fated decision to move her car: she had taken a cab to and from her stag and doe party and she had made arrangements to sleep over. She also has no criminal record for this type of behaviour. From a sentencing perspective, this offence falls nearer to the lower end of the spectrum for offences of this kind. With all of these considerations in mind, I come to the conclusion that consideration of society's interests in a trial on the merits still favours admission of the evidence.
92Having regard to the deliberate albeit brief non-compliance with the forthwith requirement, having regard to the police inattentiveness to ensuring the accused's knowledge and/or waiver of her right to privately use the toilet, and having regard to the impact of the videotaping of that toilet use on the accused's right to privacy, I have concluded on a balance of probabilities that the long term interests of justice favour exclusion of the evidence. The evidence will be excluded.
Released: November 6, 2018
Signed: Justice C.A. Parry
