Court File and Parties

Court File No.: BARRIE 11-7245 Date: 2013-11-20 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jennifer Deveau

Before: Justice C.M. Harpur

Heard on: July 13, 2012; December 20, 2012; February 4, 2013; August 15, 2013

Reasons for Judgment released on: November 20, 2013

Counsel:

• Mr. Cameron Peters, for the Crown
• Mr. Douglas Lent, for the Defendant

HARPUR J.:

Overview and Issues

[1] Ms. Deveau is charged with care or control of a motor vehicle with excess blood alcohol on November 19, 2011. That morning, shortly after midnight, Ms. Deveau, then twenty-three years old, was in the process of driving herself and two friends in her mother's car from Sticky Fingers Bar and Grill in Barrie to their respective homes. Ms. Deveau travelled from Sticky Fingers on Essa Road to the ramp to Highway 400 south. On the ramp she lost control of the car. It jumped the ramp curb and became stuck in a grassy median beside the ramp. A tow truck came to the scene, followed by O.P.P. Constable Jack Harrison. P.C. Harrison eventually concluded that Ms. Deveau had been the operator of the car at the time of the accident. He suspected her to have alcohol in her body. He made a roadside screen demand, obtained a suitable sample and a "fail" reading on the approved screening device, arrested Ms. Deveau for the offence under s. 253(1)(b) C.C. and demanded that she accompany him to provide samples of breath pursuant to s. 254(3) C.C.. Ms. Deveau was taken to the O.P.P. detachment at 20 Rose Street in Barrie. At 2:20 a.m. on November 19, 2011 she provided a sample analyzed as 135 milligrams of alcohol in 100 millilitres of blood. At 2:45 a.m., Ms. Deveau provided a second sample analyzed as 127 milligrams of alcohol in 100 millilitres of blood.

[2] The trial of Ms. Deveau's charge took place over several widely-spread days: July 13, 2012, December 20, 2012, February 4, 2013 and August 15, 2013. Prior to trial, Mr. Lent for Ms. Deveau served two applications seeking Charter relief. The issues to which those applications gave rise were the following:

(i) Has the Crown proven beyond a reasonable doubt that P.C. Harrison had reasonable grounds to suspect that, within the preceding three hours, Ms. Deveau had had the care or control of her mother's car?

The defence says that the Crown's case does not provide this proof, with the result that P.C. Harrison had no legal basis to demand a sample for analysis by the roadside screening device and, absent its result, no basis for the s. 254(2) C.C. demand. Mr. Lent accordingly submits that the taking of samples for Intoxilyzer analysis later in the morning of November 19, 2011 was in breach of Ms. Deveau's right to be secure against unreasonable search and seizure under Charter s. 8 and that evidence of the Intoxilyzer analyses should be excluded under Charter s. 24(2);

(ii) Did P.C. Harrison's failure to notify Ms. Deveau of her right to retain and instruct counsel, at the point where the officer began to investigate whether she was the driver of the car at the time of the accident, constitute a breach of Ms. Deveau's rights under either Charter s. 7 or s. 10(b)?

Mr. Lent submits that such breaches occurred. The result, he says, is that the two utterances made by Ms. Deveau to P.C. Harrison, namely (i) that she was indeed the driver of the car when the accident occurred and (ii) that she had had two drinks containing alcohol earlier in the evening, should be excluded. If the evidence of these utterances is excluded, the defence argues, again, the s. 254(3) C.C. demand was baseless, the Intoxilyzer results were obtained in breach of Charter s. 8 and they ought not to be admitted. Mr. Lent alternatively seeks a stay of the proceeding against Ms. Deveau under Charter s. 24(1) on the basis of this alleged s. 10(b) breach;

(iii) Did the police fail to provide to Ms. Deveau a proper setting in which to exercise her right to retain and instruct counsel once she was in custody at the Barrie O.P.P. detachment and, if so, was this a breach of her right under Charter s. 10(b) which should result in a stay?; and

(iv) Did the fact that Ms. Deveau was camera-monitored and camera-recorded while in the cell at the detachment, and used the toilet in that cell in view of the camera twice prior to providing her Intoxilyzer samples and twice following them, constitute a breach of her right to security of the person under Charter s. 7 or her right to be secure against unreasonable search and seizure under Charter s. 8 or her right not to be arbitrarily detained or imprisoned under Charter s. 9?

The defence position is that the lack of privacy does indeed constitute a Charter breach and should result either in a stay or an exclusion of the Intoxilyzer results.

[3] Apart from the Charter questions, a live issue in this case is whether the Crown has proven that Ms. Deveau's blood alcohol concentration at the time of her care or control of her mother's car was in excess of 80 milligrams of alcohol in 100 millilitres of blood. Mr. Peters for the Crown did not seek to rely on the presumption of identity in s. 258(1)(c) C.C. since the first sample was taken at 2:20 a.m. and the Crown was uncertain of its ability to prove that Ms. Deveau's care or control was within two hours of that time. Rather, Mr. Peters called as a witness Ruth Wallage, a forensic toxicologist with the Centre for Forensic Science. Ms. Wallage took into account Ms. Deveau's Intoxilyzer readings, hypothesized care or control at shortly after midnight and, making certain further assumptions, opined that the subject she was considering would have had an excessive blood alcohol concentration at the time of her care or control.

[4] Mr. Lent submits that one of Ms. Wallage's assumptions in reaching her conclusion, namely, an absence of bolus drinking by the subject, has not been proven about Ms. Deveau by the Crown with the result that she may have had a legal blood alcohol concentration at the time of the care or control despite the excessive levels at the time she gave her Intoxilyzer samples.

[5] While making no admissions, the defence did not submit that the Crown's case was deficient in the areas of the wording of the demands or the timeliness of the taking of samples or the functioning of either the approved screening device or the Intoxilyzer. I was satisfied that these matters were proven and do not propose to review the evidence concerning them.

[6] The trial was blended with the voir dire concerning the Charter issues. Mr. Peters called P.C. Harrison, Ms. Deveau's companions and passengers on November 19, 2011, Amy Serwetnyk and Daniel Long, the qualified breath technician, P.C. Greg Crowe, Ms. Wallage and Sgt. Brian Morris, an O.P.P. officer versed in O.P.P. policy and history relating to the use of audio/video equipment in the Barrie O.P.P. detachment prisoner cells. Mr. Lent called no trial evidence; Ms. Deveau testified on the Charter voir dire only.

[7] Since Ms. Deveau need not rely on alleged Charter breaches if the Crown's substantive case has not been made out, I propose to turn first to the issue of proof of an excessive blood alcohol concentration at the time of care or control.

Did the Crown Prove Excessive Blood Alcohol Concentration?

[8] Ms. Wallage's report to the Crown dated December 6, 2011 – Exhibit 14 – contained the following assumptions:

1. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the time of the incident.

2. No consumption of alcoholic beverages after the incident and before the breath tests.

3. A rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour (mg/100mL/hr).

4. Allowance for a plateau of up to two hours.

[9] The first of these, what is often termed the "no-bolus-drinking" assumption, was the subject of considerable questioning at trial by both Mr. Peters in chief and in re-examination and by Mr. Lent in cross-examination. Mr. Peters acknowledged that, given the proximity of Sticky Fingers to the accident scene and the brevity of the period between Ms. Deveau's being at the bar and losing control of her mother's car, the bolus drinking issue is in play here and the onus is the Crown's.

[10] The extensive questioning of Ms. Wallage established that there are several hypothetical circumstances in which Ms. Deveau's blood alcohol concentration at the time of care or control would not be legally excessive, namely:

(i) if Ms. Deveau weighed 120 lbs. on November 19, 2011 and drank 18 ounces of 5% alcohol beer in the fifteen minutes prior to care or control, the low end of the range of her projected blood alcohol concentration at the time of care or control would be 80 milligrams of alcohol in 100 millilitres of blood;

(ii) if Ms. Deveau weighed 120 lbs. on November 19, 2011 and drank 18 ounces of 5% alcohol beer and 1 ounce of 40% alcohol tequila in the thirty minutes prior to care or control, the low end of her projected range of blood alcohol concentration at the time of care or control would be 55 milligrams of alcohol in 100 millilitres of blood;

(iii) if Ms. Deveau weighed 110 lbs. on November 19, 2011 and drank 18 ounces of 5% alcohol beer in the fifteen minutes prior to care or control, the low end of her projected blood alcohol concentration at the time of care or control would be 75 milligrams of alcohol in 100 millilitres of blood; and

(iv) if Ms. Deveau weighed 110 lbs. on November 19, 2011 and drank 18 ounces of 5% alcohol beer and 1 ounce 40% alcohol tequila within the thirty minutes prior to care or control, the low end of her projected range of blood alcohol concentration at the time of care or control would be 45 milligrams of alcohol in 100 millilitres of blood.

[11] Mr. Lent has advanced two arguments based on Ms. Wallage's opinions at trial concerning these hypotheticals. The first is that the Crown led no evidence as to Ms. Deveau's weight as at November 19, 2011, that, according to Ms. Wallage, weight is a factor in her opinions about the effect of bolus drinking in the hypotheticals and that, accordingly, none of those opinions can be seen as having an adequate foundation.

[12] Mr. Peters responds that I was able to view Ms. Deveau's person as at November 19, 2011 from the video recording made on that date, as well as seeing her during the trial, and that the court is thus able to draw a conclusion as to whether Ms. Deveau's weight was something significantly different from the 110-120 lb. hypothetical person analyzed by Ms. Wallage.

[13] I accept the Crown's argument on this point. It seems to me that, just as a trial court may fairly draw a conclusion as to whether the accused before it is the perpetrator of a crime shown in video evidence (see, for example R. v. Nikolovski, [1996] 3 S.C.R. 1197), so may it draw a conclusion about the approximate physical characteristics of an accused on the basis of observations of her in court and in an out-of-court, clear depiction. In Ms. Deveau's case, both at trial and in the video made by the police, she appeared to be a fit, slim young woman of average height. While I have no expertise in judging people's weights, common experience leads me to the conclusion that the opinions being expressed by Ms. Wallage about bolus drinking by a woman in a weight range of 110-120 lbs. are consistent with a person such as Ms. Deveau and, thus, are of probative value. It was clear to me that Ms. Deveau did not weigh less than 110 lbs. back on November 19, 2011, the only circumstance which might undermine the low ends of the ranges projected by Ms. Wallage.

[14] Mr. Lent's second argument in this regard was that the Crown has not eliminated beyond a reasonable doubt all of the four bolus drinking scenarios referred to in paragraph ten above. Specifically, Mr. Lent submits that the record does not unequivocally negate the prospect of Ms. Deveau having consumed sufficient 5% alcohol beer in the fifteen minutes prior to the accident - or it, in combination with a significant quantity of 40% alcohol tequila in the thirty minutes preceding the accident - to elevate her blood alcohol concentration to the levels recorded at the time of the Intoxilyzer samplings despite her remaining at 80 milligrams of alcohol in 100 millilitres of blood or less at the time of the accident.

[15] It seems to me that this factual issue turns on the evidence of Ms. Serwetnyk. Mr. Young was unable to testify as to when Ms. Deveau had consumed her drinks at Sticky Fingers and Ms. Deveau did not testify.

[16] Ms. Serwetnyk said she herself drank two and one-half pints of beer (accepted to be 18 ounces) and 1 shot of tequila (accepted to be 1 ounce) during the course of her evening at the bar. She said that the evening began at approximately 10:00 p.m. Ms. Serwetnyk said she stayed in the bar for approximately two hours. She said she bought a first round of pints of beer for herself and Ms. Deveau shortly after arriving at the bar. She said she and Ms. Deveau both consumed their beers and that Ms. Deveau then went to the bar and bought an additional pint of beer for Ms. Serwetnyk and herself as well as a single tequila shot for the two of them and two other table-mates. She said she and Ms. Deveau proceeded to drink their second beers and their shots. Ms. Serwetnyk said she then returned to the bar and bought two more pints of beer for Ms. Deveau and herself. She said that she and Ms. Deveau had consumed approximately half of their final pints before leaving the bar and that they stopped drinking those beers five to ten minutes before they left. Ms. Serwetnyk described Ms. Deveau's consumption pattern as being like her own, that is, both drank at the same speed and their pace "wasn't fast".

[17] In cross-examination, Ms. Serwetnyk acknowledged that she was unsure when Ms. Deveau had her last drink from her third pint prior to their leaving. She did say, however, that the two of them used the bar washroom prior to leaving and did not consume any of their drinks while doing so.

[18] From this evidence, Mr. Lent submits that the real possibility of bolus drinking and a lawful blood alcohol concentration at the time of the accident remains open. I cannot agree. The "not fast" pace of drinking described by Ms. Serwetnyk for her and Ms. Deveau and the seemingly evenly-paced consumption by the two of them of two and one-half pints of beer and one ounce of tequila over a two hour period are inconsistent with either of the two scenarios the defence urges are plausible. These are, in effect: (i) a gulping of the last one-half of the second beer and the first one-half of the third beer in the approximate ten minutes preceding the accident, the record suggesting that it took some five minutes for Ms. Deveau and her two friends to leave Sticky Fingers and reach the 400 south ramp; or (ii) the consumption of the shot of tequila, the last half of the second pint of beer and the first half of the third pint of beer within the approximate twenty-five minute period preceding the accident, again taking into account the approximate five minutes described by Ms. Serwetnyk and Mr. Young as consumed in departing Sticky Fingers and travelling to the ramp.

[19] I find that the no-bolus-drinking assumption of Ms. Wallage has been proven by the Crown. Her opinion is probative of Ms. Deveau's guilt.

[20] The resolution of this issue in the Crown's favour necessitates consideration of the Charter issues.

Charter Issue One: Did P.C. Harrison have reasonable grounds to suspect that Ms. Deveau had had care or control of a motor vehicle within the previous three hours?

[21] Section 259(2) C.C. provides two pre-conditions to a roadside screening demand by a peace officer: (i) reasonable grounds to suspect that the person being investigated has alcohol or a drug in his or her body; and (ii) reasonable grounds to suspect that, within the preceding three hours, the person has had care or control of a motor vehicle. The threshold for reasonable suspicion is not high but the Crown must adduce evidence of the existence of the suspicion by the peace officer and that suspicion must be objectively reasonable: R. v. Beechinor, [2004] S.J. No. 187 (Sask. Prov. Ct.).

[22] Here, P.C. Harrison testified to receiving a radio call from dispatch at 12:23 a.m. of a collision at the Essa Road ramp to Highway 400 south and the arrival there of a tow truck. P.C. Harrison said he arrived at the scene at 12:42 a.m.. He said he made his s. 254(2) C.C. demand of Ms. Deveau at 1:05 a.m after forming the suspicion that she had alcohol in her body. He did not testify explicitly about any conclusion as to when the accident took place. Mr. Lent submits that this omission is fatal.

[23] I do not agree. The circumstantial evidence here is sufficient to establish the timeliness of P.C. Harrison's suspicion. He was on scene within twenty minutes of the call from dispatch. The Essa Road ramp and Ms. Deveau's off-road car were conspicuous, according to P.C. Crowe's evidence, for drivers of cars travelling south on Highway 400 and even shortly after midnight on a November night, Highway 400 southbound is a busy thoroughfare. P.C. Harrison said dispatch was reporting a "recent" accident. There continued to be a tow truck on scene. There was nothing objectively unreasonable about his conclusion that he was dealing with care or control within three hours.

[24] As I regard the Crown to have proven the propriety of the approved screening device demand, and that demand having provided the "fail" reading at the roadside (which P.C. Harrison duly said signified a blood alcohol concentration of at least 100 milligrams of alcohol in 100 millilitres of blood), I do not regard the consequent s. 254(3) C.C. demand as unjustified or the eventual taking of the Intoxilyzer samples as an unreasonable search and seizure in this regard. I would dismiss this aspect of Ms. Deveau's Charter application.

Charter Issue Two: Should the ASD result – and thus the Intoxilyzer samples - be excluded or the charge be stayed because Ms. Deveau's admissions of being the driver and of having consumed alcohol were either (i) made under the compulsion of the Highway Traffic Act and offended the principle of self-incrimination under Charter s. 7; or (ii) made in the absence of Ms. Deveau having been afforded her right to counsel under Charter s. 10(b)?

[25] I would answer these questions in the negative.

[26] P.C. Harrison's evidence makes clear that he did not provide Charter s. 10 rights to Ms. Deveau prior to eliciting the information from her about being the driver and having consumed alcohol. However, there is nothing in the record to suggest that P.C. Harrison was dilatory in his investigation to and including the point where he questioned Ms. Deveau about her involvement. He had been misled by Mr. Young's earlier, untruthful assertion that Mr. Young was the driver. He only focused on Ms. Deveau once Mr. Young recanted. Absent any undue delay in the investigation, his questioning of Ms. Deveau is shielded from characterisation as a s. 10(b) violation: R. v. Elias; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3

[27] As to the alleged Charter s. 7 breach, Mr. Peters' two submissions in response appear to me to be complete answers. First, the Crown cites R. v. Soules, [2011] O.J. No. 2529 (O.C.A) which makes clear that there is a pre-requisite to s. 7 relief in this kind of application, as follows:

At the Supreme Court, Iacobucci J. for the majority held at para. 30 that "[s]tatements made under compulsion of s. 61 of the Motor Vehicle Act are inadmissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination." In particular he held that: the relationship between a driver and an officer receiving an accident report is potentially adversarial, because of the officer's dual role in receiving reports and investigation crime; the prospect of unreliable confessions in quite real because of the strong incentive to provide a false statement; and there is danger of abusive conduct by the state.

In order to claim the protection of s. 7 of the Charter, Iacobucci J. held at para. 75 that a driver must establish on a balance of probabilities an "honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given".

[28] Here, Ms. Deveau gave no evidence on the voir dire as to why she disclosed to P.C. Harrison the facts that she was the driver and had consumed alcohol. P.C. Harrison's testimony did not make any reference to a reason given by Ms. Deveau. In the absence of such evidence, I do not regard Ms. Deveau as having brought herself within the protection of this Charter right.

[29] Secondly, I agree with Mr. Peters that it cannot be said in this case, as it could in Soules, that absent Ms. Deveau's admissions to P.C. Harrison, he would not have had a basis to make the s. 254(3) C.C. demand. P.C. Harrison already had Mr. Young's late-breaking revelation that Ms. Deveau was the driver. He had detected the odour of alcohol coming from her mouth. Again, the bar for reasonable suspicion is not set high and it would have been met for P.C. Harrison even without consideration of Ms. Deveau's disclosures.

[30] Thus, I would not exclude the evidence of the Intoxilyzer readings either on the basis of this alleged s. 10(b) or s. 7 breach of the Charter and it follows that I would not stay the charges for these reasons.

Charter Issue Three: Did the police fail to provide to Ms. Deveau a proper setting in which to exercise her right to speak to counsel at the detachment? If so, should this result in a stay or an exclusion of the Intoxilyzer samples?

[31] The evidence on this point comprised the video recording of Ms. Deveau's stay at the Barrie O.P.P. detachment, as well as her voir dire evidence and that of P.C. Harrison, P.C. Crowe and Sgt. Morris. All of these indicate that the means by which Ms. Deveau was permitted to speak to duty counsel after her request to do so was a telephone located on a windowsill outside the bars of her cell, the hand piece of which was passed to her through the cell bars. P.C. Harrison's uncontradicted evidence was that he had exited the cell and that the steel door to the cell from the detachment corridor was closed when she was on the phone. Ms. Deveau said she was able to hear police officers talking beyond the steel door between her cell and the corridor at the time of her call. P.C. Harrison said he has never been able to hear the voice of an occupant of the cell through the steel door unless the occupant is yelling.

[32] The detachment had an audio monitor of Ms. Deveau's cell as well as the video camera. The video camera both monitors and records. Barrie O.P.P. was employing civilian guards – male or female - for cell monitoring in November 2011, although on the morning of November 19, 2011 only P.C. Harrison, P.C. Crowe and a female officer, P.C. Stringer, were present at the detachment. The O.P.P. policy described by Sgt. Morris is to ensure that the audio monitor is off during calls with legal counsel. No evidence was led to the contrary. The camera, however, recorded Ms. Deveau as she participated in her call with duty counsel.

[33] There are signs posted within the detachment, including one in the main cell area, which say "Notice. These cells are monitored by closed circuit audio/video equipment". P.C. Harrison said he gave this information to Ms. Deveau. Ms. Deveau testified that she was unaware of this information.

[34] Mr. Lent submits that, even if I find that Ms. Deveau was given audio privacy during her call, the fact that her call was both video monitored and recorded establishes a breach of her right to privacy in her consultation with counsel. The defence relies on R. v. Keast, an unreported decision of the Ontario Court of Justice released on November 7, 2006, in which Pugsley, J. made the following observations:

It is perhaps not unreasonable to maintain an ability to check on a defendant's condition while he speaks to counsel to make sure he or she is safe. Doubtless some defendants are in a state of impairment such that they could injure themselves and require help. Audio privacy must of course be present, and the call must be on an unmonitored and unrecorded telephone line. What happened here was different, an apparent practice of video routine recording, and monitoring of a private telephone conversation such that its use as evidence in the case becomes inevitable. This is no longer a private setting, and the right to consult with counsel in private has been breached by the police. Privacy is not a difficult concept for most people to contemplate. Being continually video recorded while doing something is the antithesis of privacy.

[35] Mr. Peters for the Crown counters with the decisions of the Ontario Court of Appeal in R. v. Cairns, [2004] O.J. No. 210, and of the Ontario Court of Justice in R. v. Sirelpuu, [2011] O.J. No. 208 and R. v. Hume, 2013 ONCJ 380, [2013] O.J. No. 3243. Mr. Peters' submission is that an applicant must prove on a balance of probabilities his or her reasonable belief at the time that his or her privacy was incomplete. He submits that Ms. Deveau has provided no such proof.

[36] Certainly, Cairns, Sirelpuu and Hume hold that a reasonably perceived lack of privacy can constitute a s. 10(b) breach. However, these cases also establish that an actual, even if unperceived, lack of privacy may equally violate s. 10(b).

[37] Here, Ms. Deveau testified that she felt her privacy to be incomplete in the sense of concern about the audibility of the sound of police officers' voices outside cell. She said this made her feel uncomfortable speaking to duty counsel. The record does not suggest that she mentioned any concern at the time or that she believed her own conversation with counsel could be heard. She testified that she was unaware until after her release from custody that she had been video monitored and recorded during the call.

[38] Mr. Lent submits that the facts of the sound permeability of the cell, the video monitoring and recording and the possibility of audio monitoring have established actual lack of privacy.

[39] I do not agree. P.C. Harrison said he consciously closed a steel door and stayed at a distance from Ms. Deveau's cell to give her privacy. He said he was unaware of the possibility of audio monitoring. Sgt. Morris said that audio monitoring of Ms. Deveau's cell was possible but that police policy was to ensure that it was turned off during calls with counsel. No evidence was led that this was not the case. Without contradiction, Sgt. Morris described the cell video monitoring procedure as designed primarily for prisoner safety, cell damage and loss-of-evidence concerns. He said the video recording procedure was designed for officer misconduct and disclosure issues. He said that neither was an evidence-gathering tool. I find no basis here to find, as the Court did in Keast, that the O.P.P. video monitoring of Ms. Deveau on November 19, 2011 involved bad faith.

[40] I do accept that the conditions in which Ms. Deveau spoke to duty counsel were less than optimal. I also accept that the Crown runs a considerable risk to its prosecutions where either full audio and visual privacy are not afforded to a prisoner for this important step in the procedure or where the prisoner ultimately provides proof of having been constrained in discussions with counsel. However, I do not regard the evidence of discomfort from hearing a police officer's voice during Ms. Deveau's counsel call, together with the unperceived fact of potential monitoring and recording by a camera placed and activated for security purposes, without more, to establish a breach of her s. 10(b) rights. There can be no exclusion of the Intoxilyzer results or a stay on this basis.

Charter Issue Four: Did the camera-monitoring and recording of Ms. Deveau using the toilet in her cell breach her Charter ss. 7, 8 or 9 rights and, if so, should the charge be stayed or the readings excluded?

[41] Ms. Deveau is seen in Exhibit 11 using the toilet at the video times 1:24 a.m., 1:56 a.m., 2:45 a.m., and 3:38 a.m.

[42] The privacy Ms. Deveau would expect in her everyday life was unquestionably intruded upon by the monitoring and recording of her use of the toilet. Mr. Lent submits that the intrusion should result either in a stay or an exclusion of the Intoxilyzer readings. Mr. Peters says Ms. Deveau's privacy interest as a prisoner was modest and has not been proven by her to have been unduly compromised by a necessary safety precaution in the form of a video monitor and recording. In the alternative, Mr. Peters says that, if there has been a breach, it merits neither a stay nor an exclusion of the readings.

[43] Mr. Lent relies on the decisions of West, J. in this court in R. v. Mok, 2012 ONCJ 291, [2012] O.J. No. 2117 and in R. v. Chasovskikh, [2013] O.J. No. 16, in both of which stays were imposed. Mr. Peters relies on the decisions of the Supreme Court of Canada in Weatherall v. Canada (Attorney General), [1993] S.C.J. No. 81 and in R. v. Edwards, [1996] S.C.J. No. 11, and of the British Columbia Superior Court in R. v. Pickton, 2006 BCSC 383, [2006] B.C.J. No. 3663.

[44] Although Ms. Deveau's application cites ss. 7, 8 and 9 of the Charter in respect of the video monitoring and recordings, I regard her allegation as most appropriately framed by s. 8 since, as was stated in Pickton, "the purpose of this provision is to protect individuals from unjustified state intrusions into their privacy".

[45] In Pickton, the court was responding to Mr. Pickton's application to exclude evidence of certain audio and video intercepts while he was in RCMP custody on the basis of a breach of his Charter s. 8 rights. The court drew certain conclusions about when observations of the individual by the state become a s. 8 "search", as follows:

As important as the right to privacy may be, it is not absolute and must be balanced against the legitimate countervailing concerns of safety, security, and the investigation and suppression of crime. For this reason, the protection from state intrusion is circumscribed by the word "unreasonable" in s. 8, as described in Hunter v. Southam Inc., supra, at p. 108:

The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.

Consequently, not every form of examination conducted by the state will constitute a "search" for the purposes of s. 8. Rather, only where those state examinations intrude upon a reasonable privacy interest does the conduct in question constitute a "search" within the meaning of s. 8: R. v. Tessling, supra. Thus, it is only where the applicant is able to establish a reasonable expectation of privacy that the inquiry proceeds to the second stage of determining whether the search was conducted in a reasonable manner.

[46] Framed by s. 8, the issue presented by this aspect of Ms. Deveau's claim for Charter relief becomes whether she had a reasonable expectation of privacy when using the cell toilet. The Edwards decision cited by Mr. Peters provides a series of non-exhaustive factors to consider in such a determination, namely: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.

[47] Pickton holds that it is the last two of these factors which are of the greatest significance. Certainly, when the privacy right in issue relates to one's person, the other factors concerning proprietorship and control are a given.

[48] Here, Ms. Deveau testified that she was unaware of the presence of a camera or microphone in her cell. She said she had no recollection of being told that she would be audio or video monitored or recorded while in the police detachment, nor of having her attention drawn to a sign in the detachment which said these things or of herself observing such a sign. She said she would have preferred the use of a private toilet but was not offered one. She said the discovery that her use of the toilet could "potentially be watched by male police officers" made her feel "not very good, very embarrassing".

[49] I accept Ms. Deveau's evidence that she was not aware of being monitored or recorded in the cell. The most compelling corroborating evidence was the recording of her brief but impressive performance of a hand-stand and hand-walk on the bench within the cell. She said she did these things to relieve her nervousness. Her overall deportment when with the police was self-effacing. If she had understood that she was being watched or recorded while in the cell, it is unlikely she would have engaged in these gymnastics.

[50] P.C. Harrison said, and I also accept, that he had advised Ms. Deveau of the camera. However, the message was apparently not received and, subjectively, there was an expectation of privacy.

[51] Thus, using the Edwards factors, the determinative question on the issue of this alleged breach of Ms. Deveau's s. 8 right is whether her subjective expectation of privacy while using the toilet was reasonable. That expectation must be seen as limited to freedom from monitoring and recording. It is clear from Exhibit 11 that Ms. Deveau could not expect that no one would come to the door of her cell and potentially see her using the toilet if she did so. Indeed, while Ms. Deveau was in custody prior to her first use of the toilet at 1:24 a.m., P.C. Stringer attends at Ms. Deveau's cell, provides her with a roll of toilet paper and leaves.

[52] It is, however, one thing to proceed with one's private business recognizing the risk of an intrusion while so engaged. It is quite another to use a toilet when one's sounds may be monitored elsewhere and one's sights both so monitored and recorded.

[53] The Crown cites Weatherall and Pickton in support of its submission that Ms. Deveau's privacy interest was too reduced to have been affected. The passage particularly on point in Weatherall is the following:

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.

[54] Weatherall, however, involved an inmate incarcerated in a federal penitentiary following conviction, not a person imprisoned in a holding cell following arrest and still presumed innocent. As pointed out by West, J. in Mok, the kind of privacy loss to be expected by a person in the latter situation is distinct and was described in the following manner by the Supreme Court of Canada in R. v. Beare; R. v. Wiggins, [1987] S.C.J. No. 92 at para. 59:

It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or a person against whom a case for issuing a summons or warrant, or confirming an appearance notice has been made out, 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.

[55] The common law has not established a precise formulation against which all manner of privacy interests can be measured but certain broad principles which serve as a guide are summarized at para. 45 of Pickton, as follows:

Privacy was described as a "protean concept" by Binnie J. in R. v. Tessling, supra at para. 25. It is a broad construct that touches upon human dignity, integrity and autonomy (R. v. Plant, 84 C.C.C. (3d) 203 (S.C.C.)), and was defined by La Forest J. in R. v. Duarte, supra, at p. 12, as "the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself". It has been described as "the right to be let alone by other people" (Hunter v. Southam Inc., supra, quoting from the Katz v. United States (1967), 389 U.S. 347 (U.S. Sup. Ct.)). Privacy protects "people, not places": ibid.

[56] To these principles, I would add and re-emphasize (i) the characterization in Beare, supra of intrusions into privacy by the state which are non-breaching as "insubstantial, of very short duration, and [leaving] no lasting impression"; and (ii) the observation in Pickton that "while an inmate's privacy is by necessity curtailed, he or she is entitled to expect that that privacy will not be intruded upon except to the extent necessary for institutional and personal security" [my emphasis].

[57] In Pickton, the accused was an arrestee only at the time the British Columbia Superior Court gave the ruling in his case. There, the court finds that video monitoring (and by necessary implication, video recording) of an arrestee in a cell, even when he is engaged in private functions, falls within the range of activities in which the state can reasonably engage without violating the arrestee's s. 8 right. J.W. Williams, J; concludes as follows in this regard at paras. 69 and 78:

69 Thus, while an inmate's privacy is by necessity curtailed, he or she is entitled to expect that that privacy will not be intruded upon except to the extent necessary for institutional and personal security. Violence, intimidation and suicide are running concerns for detention facilities. Nothing, however, suggests that those concerns necessitate the blanket interception of cell communications. The balance between the maintenance of institutional security on the one hand and the privacy interests of the inmates on the other is reasonably achieved through video monitoring, a common feature in many such facilities.

78 The defence submits that even once Mr. Pickton became aware of the camera, a distinction must be drawn between his expectation that his movements would be monitored and an expectation that a permanent record of those movements would be made. It points to the fact that he partially disrobed and attended to private personal functions as contrary to an inference that he knew he was being recorded. I am not prepared to conclude on that basis that Mr. Pickton drew any such distinction between monitoring and recording. Individuals who are aware of the presence of a video camera must reasonably be taken to expect that their movements are being recorded. That is, after all, the primary function of a video camera. While it may be that considerations are different where video surveillance is conducted surreptitiously as in R. v. Wong, supra, that was not the situation here.

[58] The court in Pickton goes on to find that Mr. Pickton had been warned of the fact of audio and video monitoring and recording, that the cell camera was in plain view, and that there were signs posted in the detachment of video surveillance. For these reasons the Court regarded as unreasonable any expectation by Mr. Pickton of the absence of the monitoring or recording.

[59] So in Ms. Deveau's case can the Crown point to P.C. Harrison's uncontradicted evidence that he pointed out to Ms. Deveau signs in the detachment stating that she would be video recorded.

[60] However in my view, "objective reasonableness", whether of the arrestee's perception of privacy or the state's denial of privacy, involves other considerations as well. Here, the police witnesses acknowledged that Ms. Deveau never said anything or behaved in such a way as to suggest that she was harbouring contraband or weapons. She had been pat-searched over clothes at the station. Unlike the accused in Mok, Ms. Deveau was not unsteady on her feet at the scene and, as her gymnastics make clear, was not otherwise lacking in physical control while in custody. She had no criminal record. In the video of Ms. Deveau in the cell and the detachment hallways, she is calm and compliant. She was being placed in a cell on her own and was thus not a risk to, or at risk from, any cellmates. The detachment was quiet - P.C. Crowe said, of the detachment that morning, "In my notes I don't have a lot that was going on". Indeed, Ms. Deveau appeared on the video to be either the only prisoner in the building or one of very few. The gist of the evidence was that she was cooperative and polite, that she gave no cause for concern to the police about secreting weapons or contraband or that she was at risk of causing or sustaining harm, and that there was little to interfere with police attention to her.

[61] For all of these reasons, one could fairly regard Ms. Deveau as residing at the extreme low end of the spectrum of risk and conclude that, if an individual prisoner might reasonably be offered privacy to attend to potentially embarrassing personal matters, it would be she. Was such an offer reasonable in her case?

[62] Sgt. Morris said private men's and women's washrooms existed in the detachment but were not available to prisoners. No reason was advanced for this policy but I infer that it is based on the difficulty of escorting prisoners from and back to cells and of maintaining some oversight while they are using the washrooms. I accept that this might well be an unmanageable difficulty if necessary in the case of every prisoner. However, no evidence was called as to why, in a given case involving a cooperative, apparently rational and risk-free detainee in a quiet detachment, the detainee could not be given washroom privacy. Rather, the evidence of Sgt. Morris was simply that prisoners use cell toilets, period. There was no suggestion in the officer's evidence that there could be exceptions.

[63] No doubt there are salutary aspects of such a policy including, generally, minimizing risks to officer and prisoner safety and leaving officers free to carry out their more important duties. However, its negative aspect – requiring a detainee who presents no threat to the security of the detachment or its occupants to endure the indignity of being video monitored and video recorded while using the toilet, an indignity rightly described in Mok as "both demeaning and contrary to human decency" - represents a ponderous counter-weight.

[64] Considered in the light of the dicta of LaForest, J. in Beare, supra, describing privacy intrusions which do not violate Charter s. 8 as "insubstantial", and of J.W. Williams, J. in Pickton, supra to the effect that the outer limit of intrusion is "[necessity] for institutional and personal security", I regard the failure of the police to afford to Ms. Deveau toilet privacy while she was detained on November 19, 2011 as objectively unreasonable and, thus, a breach of her s. 8 right.

The Appropriate Remedy

[65] Mr. Lent submits that the s. 8 breach should result either in a stay pursuant to Charter s. 24(1) or an exclusion of the Intoxilyzer readings pursuant to Charter s. 24(2). In Mok, West, J. regarded the monitoring and recording of Ms. Mok using the cell toilet to be state action which "would shock the conscience of right-thinking members of the public". He found that proceeding to judgment in the face of this conduct would undermine the integrity of the judicial process and imposed a stay. The sole remedy sought by Ms. Mok in that case was a stay. Here, Ms. Deveau seeks the alternative of an exclusion of evidence.

[66] I am not satisfied that the breach of Ms. Deveau's s. 8 right is the "clearest of cases" (R. v. Knox, [2006] O.J. No. 1976 (O.C.A)) or constitutes an "irremediable prejudice to the integrity of the justice system" (R. v. O'Connor, [1995] S.C.J. No. 98 (S.C.C.)). The intrusion into Ms. Deveau's privacy by way of an inflexible policy about toilet use by prisoners was not reasonable but is not without any rational basis and cannot be characterized as egregious. There was no bad faith in evidence concerning the adoption of the policy. Nor did the video or viva voce evidence suggest that the use of the audio/video equipment on the night in question in respect of Ms. Deveau went beyond the monitoring function for which it was designed. Nor, as one would expect, did the direct police dealings with Ms. Deveau – such as P.C. Stringer's delivery of toilet paper - appear to be intentionally impolite or to compromise Ms. Deveau's personal security or privacy more than circumstances required. Accordingly, I would not impose a stay in this case.

[67] However, in my view, this is an appropriate case to exclude evidence "obtained in a manner that infringed or denied" pursuant to s. 24(2).

[68] The initial inquiry under this latter Charter section must be whether the evidence which Ms. Deveau seeks to exclude – her incriminating Intoxilyzer breath samples – is evidence so obtained; there must be a nexus between the infringement or denial and the obtaining of the evidence. In the recent decision of the Ontario Court of Appeal in R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977, Watt, J.A. described the nature of the required nexus as follows:

Section 24(2) of the Charter only excludes evidence where an accused has demonstrated, on a balance of probabilities, an infringement or denial of his or her enumerated Charter rights or freedoms, and that the evidence proposed for admission was "obtained in a manner" that infringed or denied the accused's Charter right or freedom. This latter requirement insists that there be a nexus, expressed in the language "obtained in a manner" in s. 24(2), between the infringement and the evidence proposed for admission. In the absence of a nexus, or of an infringement, s. 24(2) has no application and the admissibility issue must be resolved otherwise.

To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis: Simon, at para. 69. Courts have adopted a purposive and generous approach to the nexus requirement: Wittwer, at para. 21. An accused need not establish a strict causal relationship between the breach and the subsequent evidence. The subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct: Wittwer, at para. 21; R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1005. The essential nexus between the breach and the evidence acquired later may be temporal, contextual, causal, or the three in combination: Plaha, at para. 45; Wittwer, at para. 21; and R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40. Remote or tenous connections fall short of establishing the necessary nexus; Goldhart, at para. 40; Plaha, at para. 45; Wittwer, at para. 21.

As a general rule, a temporal connection between the Charter breach and the acquisition of the evidence will suffice to make out the nexus requirement under s. 24(2). But the temporal connection involves more than simply counting up the time that has elapsed between the two events. What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha, at para. 49.

[69] Here, two of Ms. Deveau's video-monitored and recorded uses of the cell toilet preceded her provision of breath samples. In my view, whether on the basis of the time connection or on the basis that the cell detentions and giving of samples are all part of the s. 254(3) C.C. "transaction", the nexus described in Manchulenko exists. There is no causal connection between the toilet use and the subsequent breath sampling but that is not a requirement. It follows that s. 24(2) has potential application to this breach.

[70] Applying the first of the factors for consideration from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.), I would place the unreasonable "seizure" comprising the monitoring and recording of Ms. Deveau somewhat beyond midway on the seriousness spectrum. The state conduct was deliberate in the sense that the detachment policy was bound to perpetrate the indignity on all detainees regardless of their circumstances. It was also institutionally ingrained: Sgt. Morris testified that it had persisted from November 19, 2011 until trial and that, from his perspective as officer-in-charge of the monitoring and recording, a detainee's reaction to the absence of privacy was not a concern. On the other hand, the absence of bad faith militates against exclusion. So too does the fact that, as at November 19, 2011, no well-known principle existed equating video monitoring and recording of cell toilet use with a s. 8 breach (Mok, Chasovskikh, supra, and R. v. King, [2013] O.J. No. 2574 have all since sounded clear warnings to this effect). However, I do not regard the mitigating features of the breach as detracting substantially from the seriousness of the policy's indifference to individual circumstances. That seriousness favours exclusion.

[71] As to the second Grant factor, s. 8 is, broadly speaking, directed at the protection of human dignity. An invasion of privacy which compromises human dignity is a significant matter. In this case, a permanent or semi-permanent record obtained by the state of a highly private act is not a fleeting or unimportant incursion into those things the citizen would wish to keep to him or herself. I regard impact as high and favouring exclusion.

[72] Turning to the third Grant factor, the Intoxilyzer results are presumptively reliable evidence and are essential to the Crown's proof of this charge. Drinking and driving offences are, cumulatively, a disaster for our communities and, more generally, as the majority commented in Grant, "society generally expects that a criminal allegation will be adjudicated on its merits".

[73] Balancing the Grant factors leads me to exclude the breath samples. The seriousness of the privacy intrusion and its impact in the form of humiliation and embarrassment for Ms. Deveau strike me as outweighing the benefit to society to be derived from my proceeding to consider the case on its merits and, given the Crown's proof of the substantive offence, to make a finding of guilt. Given the affront to dignity which the s. 8 breach involved, this is not a case where, in the words of Doherty, J.A. in R. v. Kikaitchik, 166 C.C.C. (3d) 14 (O.C.A.) cited in Grant, "the vindication of the specific Charter violation through the exclusion of evidence exacts too high a toll on the truth-seeking goal of the criminal trial".

[74] Without resort to the Intoxilyzer readings, an essential component of Ms. Wallage's opinion is lacking and the Crown is unable to prove excess blood alcohol at the time of Ms. Deveau's care or control. The charge is dismissed.

Released: November 20, 2013

"Justice C.M. Harpur"