Court File and Parties

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Angela Smith

Before: Justice Paul H. Reinhardt

Heard on: 27 March, 17, 18 June, 13 August 2013 & 22 January 2014

Reasons for Ruling on Application released on: 17 March 2014

Counsel:

Mary-Anne Mackett, for the Crown

Lorne Sabsay, for the accused

REINHARDT J.:

1: Introduction

[1] The Applicant, Angela Smith stands charged that on or about 19 May 2012, she did operate a motor vehicle while impaired and having consumed alcohol in such a quantity that the concentration of alcohol in her system exceeded eighty milligrams of alcohol in one-hundred millilitres of blood, contrary to the Criminal Code.

[2] On 14 March 2013 defence counsel for the applicant requested disclosure of the digital video recording taken by a CCTV camera in the cell in which Ms. Smith was detained, at the Ontario Provincial Police ("OPP") Toronto detachment during her detention at the time of her arrest and her providing breath samples into an approved instrument.

[3] Ms. Smith was arraigned on 27 March 2013 before this court and entered a plea of not guilty. I heard evidence on that day, from two Crown witnesses, Karen Reid and Constable Mark Kowalyk.

[4] The first Crown witness was a civilian witness, Karen Reid, who described travelling westbound from Oshawa on Highway 401, as a passenger in a car being driven by her husband, at which time they both noticed a white van, going in the same direction.

[5] She testified that her attention and that of her husband was initially drawn by the fact that the van moved into their lane in front of them without signalling, and cut them off.

[6] Ms. Reid testified that the same van then moved across three lanes towards the express lanes and after they had driven past the van, it moved back across three lanes again, to the collectors.

[7] Ms. Reid testified that she and her husband decided to slow down their vehicle and get the licence plate of the van, which they did, and then they called 911.

[8] Ms. Reid stated that they felt they should now follow the van at a discreet distance, and they did so, and observed further unusual driving.

[9] Ms. Reid testified that at approximately the Brimley Road overpass, the van slowed almost to a stop and crossed over three lanes to leave the highway at the Kennedy Road exit.

[10] Ms. Reid testified that while she was still on her phone to the O.P.P., she and her husband followed the van north on Kennedy Road, where it turned left and entered a residential driveway.

[11] Ms. Reid testified that at this point she observed an O.P.P. cruiser with its red lights flashing arrive on the scene where the police cruiser followed the van into the driveway and parked directly behind the white van.

[12] Ms. Reid summarized her evidence by stating that she and her husband called 911 because in their opinion the driving exhibited by the white van was so erratic that they feared that there might be an accident.

[13] In cross-examination Ms. Reid conceded that the driving they observed on the 401 May have, at least in part, have been caused by the driver of the van being unfamiliar with the Toronto road system and trying to find the Kennedy Road exit.

[14] In cross-examination she also conceded that all the driving she observed once the van was off the 401 was appropriate and there was no speeding or other driving errors while she and her husband followed the car to the residential drive way.

[15] The second Crown witness, Constable Mark Kowalyk, testified that he was responding to a radio dispatch at 9:49 P.M. on 19 May 2012 for what was characterized as a "possible impaired driver" in a White Dodge Caravan travelling westbound in the collectors and exiting onto Kennedy Road.

[16] Constable Kowalyk testified that he arrived at the scene just as the White Dodge Caravan was making a left-hand turn into the driveway.

[17] Constable Kowalyk testified that he pulled into the driveway behind the van and spoke to Ms. Smith, who was getting out of the vehicle.

[18] Constable Kowalyk testified that he immediately observed both the strong odour of alcohol and bloodshot eyes.

[19] Constable Kowalyk testified that he requested Ms. Smith show him her driver's licence and other documents, and Ms. Smith could initially provide only her driver's licence and insurance, but not her ownership.

[20] Constable Kowalyk testified that he explained to Ms. Smith that the O.P.P. were responding to a citizen complaint about her driving, and asked her to accompany him to his scout car, where he made an approved screening device ("ASD") demand.

[21] Constable Kowalyk described Ms. Smith as cooperative and compliant, and she used the ASD properly and it registered an "F" or fail reading.

[22] Constable Kowalyk testified that based upon the ASD reading he believed he had the grounds to arrest her for "Over 80" and the civilian evidence coupled with his initial observations provided him with the subjective factual basis for an additional charge of "Impaired Driving".

[23] Constable Kowalyk testified that he then placed Ms. Smith under arrest and after reading to her "her-rights-to-counsel", and speaking to Constable Papiorek, who had arrived on the scene, at 10:28 P.M. he placed Ms. Smith in the rear of his scout car and headed directly back to the Toronto O.P.P. detachment, 2682 Keele Street, arriving at 10:45 P.M.

[24] Constable Kowalyk testified that Ms. Smith was booked and her property itemized at the station and at 10:54 she was placed in holding Cell #1.

[25] Through Constable Kowalyk, the Crown placed before the court fifteen exhibits supporting the "Over 80" allegation, and also relied on the Crown witnesses and Exhibit 8, the Breath Tech Room DVD, as evidence in support of the "Impaired" count.

[26] In cross-examination Constable Kowalyk testified that Ms. Smith had no difficulty getting out of the van and some of her symptoms, such as her red eyes and shakiness could have been at least partially due to factors other than her intake of alcohol, such as her being very tried after a long drive, and the often noted reaction of a person with no previous involvement with the police being investigated and then placed under arrest.

[27] In addition, Constable Kowalyk informed the court during cross-examination that for the entire time Ms. Smith was in detention in Cell #1, she was being watched by a digital closed circuit ("CCTV") video camera placed just outside the open front bars of her cell.

[28] In cross-examination, Constable Kowalyk testified that, while she was in Cell #1, the CCTV camera provided a clear and unobstructed view of the entire cell, allowing the officers at the station to monitor Ms. Smith's actions while in her cell.

[29] Constable Kowalyk also testified that all the images of Ms. Smith during the entire time she was lodged in her cell prior to her release on a Promise to Appear from the station at 1:42 A.M, were recorded by the digital camera and saved to a hard drive.

[30] Constable Kowalyk testified that Cell #1 was a conventional eight foot wide by eight foot deep holding cell with open bars at the front containing a barred gate or door which permitted male and female officers to walk by and observe the entire interior of the cell without having to open the door.

[31] Constable Kowalyk also testified that at approximately half-way into the cell there is a steel toilet facing at a diagonal away from the cell so that a person using the toilet can be seen by the camera, and by officers standing outside the front of the cell but provides some measure of privacy to a detainee while they are using the toilet if they are sitting down.

[32] Constable Kowalyk testified that Cell #1 at the O.P.P. Toronto Detachment at 2682 Keele Street in Toronto was located fifteen to twenty feet from the Breath Room, and is one of three holding cells at the detachment.

[33] Constable Kowalyk testified that to his knowledge both male and female officers can visually monitor all of the activity by detainees in the cells at the detachment, including Cell #1 by viewing a large forty-inch monitor on the southwest wall in the Constable's office.

[34] Constable Kowalyk also testified that and that there are other monitors in the building by which officers can view any activity in the cells that all these monitors, are for the safety of detainees, officer safety and to collect and preserve evidence.

[35] Constable Kowalyk testified that the cell cameras are part of a network of security cameras in the building that produce retrievable digital recordings that are stored and held for two or three years at a central O.P.P. repository or server in Orillia.

[36] Constable Kowalyk testified that these digital recordings may be viewed by O.P.P. officers at the Toronto detachment in real time, as well as after the fact, for a host of reasons, including the accused safety, officer safety, possible evidence of a continuing offences and also may provide a defence in the event of an allegation of police misconduct, after the fact.

[37] Constable Kowalyk testified that these digital recordings that are stored at Ontario OPP Headquarters in Orillia are not destroyed, as a matter of O.P.P. policy, for all of the above law enforcement reasons and to avoid the loss of potential evidence in court proceedings.

[38] Constable Kowalyk testified that he had no notes about Ms. Smith being likely to hurt herself, but could also say that from his recollection there was no concern that Ms. Smith might hurt herself, and that she was not the subject of any specific safety concerns, while in detention at the Toronto O.P.P. detachment.

[39] Constable Kowalyk testified that he personally did not view the monitor of the Cell #1 camera while Ms. Smith was being held in detention, but that two other officers on duty, Staff Sergeant Kathy McCormick and Constable Dominike Papiorek, both female officers, might have done so.

[40] On the first day of trial, based on the testimony of Constable Kowalyk, and the submissions of counsel, I concluded that the tape of Ms. Smith, while in custody was relevant to issues in the trial, including the Crown allegation of impaired operation, and ordered the Crown to make every effort to produce a digital tape of Ms. Smith's time in detention in Cell #1 at the Toronto O.P.P. detachment be disclosed to the defence, and adjourned the matter for further evidence to 17 June 2013.

[41] As a result of the digital recording not being disclosed in a timely manner, on 9 May 2013, the defence served an application on the Crown seeking a stay of these proceedings based on two Charter infringements, relating to the digital recording, and monitoring of Ms. Smith while in Cell #1:

(1) An unlawful search contrary to section 8;

(2) A loss or destruction of evidence contrary to sections 7 & 11(d)

2: Evidence on the Application

[42] At the commencement of the Application hearing on 17 June 2013, it was agreed that the evidence heard from the first two Crown witnesses, Karen Reid and Constable Mark Kowalyk, would be applied to the Application.

2.1 Loss of Material Evidence

[43] It was further agreed that a three-page memorandum of Inspector Luis Mendoza, Commander of the Toronto Detachment of the OPP, dated 7 June 2013, prepared at the request of the Toronto Region Crowns Office, regarding the use of video-monitoring cameras at the Toronto Detachment, along with the Affidavit of Emma Choi, sworn 13 June 2013 would form part of the Application record and be part of the evidence I could consider on the Application.

[44] The initial defence request for disclosure of the Cell #1 Video was made to the Crown on 14 March 2013, according to the Choi affidavit.

[45] It was further conceded as a fact in this proceeding that the Crown was unable to comply with the 27 March 2013 court request that the Crown make effort to produce and disclose to the defence the digital video recording from the CCTV camera used to monitor Ms. Smith while in her cell at the Toronto Detachment on 19 May 2012.

[46] The Crown efforts to make inquiries of the O.P.P. and to produce the video footage from the camera in Cell #1, did not, in fact, result in the disclosure of that video footage.

The Memorandum of O.P.P. Inspector Luis Mendoza, dated 7 June 2013

[47] In his memorandum, signed 7 June 2013, Inspector Mendoza states that he became Inspector and Detachment Commander at the Toronto O.P.P. detachment in November of 2012.

[48] Inspector Mendoza stated that in February of 2013, he received a number of inquiries from the Toronto Crown's Office in various different cases regarding the audio-visual recording capabilities within the cell areas of the Toronto O.P.P. detachment for the period beginning in June of 2011.

[49] Inspector Mendoza stated that when he investigated this he was initially informed that although cameras were in place since at least June of 2010, in order to insure the security and safety of prisoners, these cameras were for observation on video monitors only, and had no recording capacity.

[50] Inspector Mendoza stated that based on his understanding at the time he instructed the supervisor of the detachment court office to inform the Toronto Crown's Office that no digital recordings had been created or preserved as of early March of 2013.

[51] However, Inspector Mendoza, in the fourth paragraph of his memorandum then goes on to state that subsequent to this information being provide to the Crown in March of 2013, he learned that the equipment video cameras and equipment that were in place and used for monitoring the cells had recording capabilities beginning in June of 2010.

[52] Inspector Mendoza, in his memorandum states that, because of his original incorrect-information, that he had provided to the Crown in March of 2013, he made additional inquiries with the O.P.P. Risk management unit and the O.P.P. Communications and Technology Services Bureau and learned the following:

(1) In March 2009 the O.P.P. purchased equipment to enable it to implement a method for recording data with C.C.T.V. cameras at all O.P.P. detachments throughout Ontario, with new, state-of-the-art technology as part of "The Milestone Project".

(2) As of 14 June 2010, as part of a "pilot project" in the Toronto Region, four digital cameras with recording capabilities were placed in the Sally Port and cells 1, 2 and 3 at the Toronto detachment.

(3) As of that date, these cameras were actively monitoring the cells and automatically recording the cell activity onto a local server hard drive.

(4) Inspector Mendoza notes that few and possibly none of the personnel working at the Toronto detachment actually knew of the simultaneous recording function that was taking place, and believed that the cameras were simply being used to watch the cells and to insure the safety of prisoners in the cells.

(5) In July 2012 additional enhancements were made to the Toronto detachment surveillance capacity to include audio recording capability and cameras were placed in various other locations in addition to the cells.

(6) In July of 2012 the supervisor of the court office distributed a message to all members of the Toronto detachment advising that any activity captured by the cameras was being recorded to a hard drive. As of August 2012 all detachment personnel had been advised of the recording capabilities of the equipment. Until July of 2012 there was a lack of general awareness in the detachment that it was possible to download and preserve a recording that had been automatically stored on the local server. There was also generally no knowledge as to the process of retrieving recordings and preserving them if required to provide evidence in court.

(7) As of August 2012, after the installation of the additional cameras, all detachment personnel had been advised of the recording capabilities of the equipment and the supervisor of the court office and other officers were provided with training and instructions on how to retrieve and make copies of recordings for disclosure purposes.

(8) As of June 2013, the equipment at the Toronto detachment remains capable of recording and storing the audio-visual images from the cell cameras, the program for the equipment will overwrite the existing information approximately nine to ten months before the system begins to overwrite previous recordings.

(9) When a copy of a recording is required, a request must be made to download a copy of the recording from the local server within the nine to ten month period.

(10) Inspector Mendoza also notes that until July of 2012, there was a lack of awareness in the detachment that it was possible to download and preserve a recording that had been automatically recorded on a local server.

(11) Inspector Mendoza further notes that until July of 2012 there was no knowledge at the detachment of the process for retrieving recordings and preserving them if required.

(12) Finally, Inspector Mendoza notes that during the implementation of the "Milestone" audiovisual monitoring surveillance system, the Toronto detachment saw an overwhelming turnover of court personnel, supervisory and command positions, which had a direct effect on the dissemination of information about the recording capabilities of the Milestone equipment.

2.2: Detention Cell Surveillance Cameras

Constable Dominike Papiorek

[53] O.P.P. Constable Dominike Papiorek was the third witness called by the Crown; the first after the Application was served and filed with the court.

[54] Again, by agreement of counsel, her evidence was tendered as part of the Crown's case at the trial proper, and as reply to the Application.

[55] Constable Papiorek testified that on 19 May 2012, at 10:10, she became involved in the investigation in assisting Constable Kowalyk with the arrest of Ms. Smith.

[56] Constable Papiorek testified that while Constable Kowalyk transported Ms. Smith to the Toronto O.P.P. Detachment, she remained on scene and searched the white minivan belonging to the accused and arranged for the vehicle to be towed.

[57] Constable Papiorek further testified that she then went herself to the Toronto O.P.P. detachment and at 10:55 began setting up an Intoxiliser 8000 C to prepare for the administration of a breath test to Ms. Smith.

[58] By 11:33 she had done the Diagnostic and Calibration checks and also testified the machine with her own breath sample, and concluded that the machine was in proper working order.

[59] Constable Papiorek testified that she received two proper samples into the machine, and recorded readings of 225 and 220 milligrams of alcohol in 100 millilitres of blood at 11:49 P.M. and 12:11 P.M. respectively.

[60] Constable Papiorek testified that she also conducted an alcohol influence interview and prepared a report, in which she recorded that Ms. Smith's face was red, she had bloodshot eyes and her speech was good.

[61] Constable Papiorek testified that Ms. Smith was, at all times cooperative, and her walking and motor skills were also good.

[62] Constable Papiorek testified that she learned that Ms. Smith had driven that day from her residence in Gatineau, Quebec, and had consumed alcohol both at her home in Gatineau and during her journey before being stopped by the police.

[63] Constable Papiorek testified that when she had completed her interview with Ms. Smith she was lodged in a holding cell.

[64] Constable Papiorek testified that she took her to one of the holding cells at the detachment, and she believes that Ms. Smith may have been lodged in holding cell #3, which has a metal door and no bars, and is generally reserved for females or young persons who are being kept in custody.

[65] Constable Papiorek testified that to her knowledge all the cells at the O.P.P. Toronto detachment had security cameras directed at the inside of the cells to monitor the prisoners for officer safety, the safety of the prisoners and potentially to discover evidence, or discover an attempt to dispose of evidence.

[66] Constable Papiorek testified that sometimes prisoners are "uncooperative" or make "allegations" about their treatment in custody, and the video recordings of this could provide evidence to respond to these types of situations.

[67] Constable Papiorek was then asked by the Crown if she was sure that the cell cameras were recording and not just monitoring, in May of 2012, when Ms. Smith was being held in detention.

[68] Constable Papiorek testified that she knew the cameras could record both video images and audio sounds, but that they had changed over time and she was not sure of the dates when they started recording visual images and audio sounds.

[69] Constable Papiorek also testified that people sometimes conceal contraband such as drugs and weapons in body cavities that would not be accessible to a pat-down search, and might attempt to dispose of some or all of this contraband in the toilet, to avoid prosecution.

[70] Constable Papiorek also testified that detention cell cameras would allow officers monitoring the cells to situations where a prisoner might attempt to harm themselves.

[71] Constable Papiorek testified that to her knowledge the holding cell cameras are all connected to a monitor in the southwest corner of the O.P.P. constables office, and portray a top angle view of the respective cells and these views are both recorded and shown on the office video screen which is divided into four different cameras at any given time and which "scrolls" through, on these divided partitions all the footage that is taken each day.

[72] Constable Papiorek was also shown the Breath Room DVD, from the CCTV camera in that room, which permitted her to review the breath-testing procedure.

[73] Constable Papiorek testified that while in her custody, Ms. Smith had not complained to her about any aspect of the arrest or her time in custody, including no requests to use a toilet in a private washroom, complaints about her use of the cell toilet, or for her need for feminine hygiene products.

[74] In cross-examination Constable Papiorek testified that she did not strip search Ms. Smith because she had no concerns regarding the concealment of contraband such as drugs or weapons.

[75] Constable Papiorek testified that to her knowledge, Ms. Smith was the only person in custody at the O.P.P. detachment and the only person in her cell that night and part of the morning.

[76] Constable Papiorek testified that to her recollection the there was also a monitor in the Staff Sergeant, Kathy McCormick's office, but was not sure if that monitor also was able to view the footage of the cell cameras.

[77] Constable Papiorek testified that the furniture found in each cell included a stainless steel bench, a toilet and a one piece sink.

[78] She testified that the back of the toilet was positioned at a diagonal so that there would be some privacy from the cell door view, but so that the camera could view a side-angle or profile of the person while they were using the toilet.

[79] In cross-examination, Constable Papiorek stated that she "couldn't disagree" with defence counsel, and the Crown did not challenge the assertion that the cell cameras had been installed on 14 June 2010 and that all O.P.P. officers and staff had been given a memo in July of 2012 confirming that the cameras were in place and recording all activity in the holding cells.

[80] Constable Papiorek testified all arrestees are required to use the cell toilet to relieve themselves, and that all officers, both male and female have access to all areas of the cells, and to the monitors in the constable and sergeant offices that contain the images recorded by the cell cameras.

Angela Smith

[81] Ms. Smith testified that she is an Ottawa Wellness Practitioner, and doctor of chiropractic, who has practiced for thirteen years in the Ottawa region.

[82] She testified that she resides in Gatineau, Quebec, and has no criminal record.

[83] Ms. Smith testified that when she arrived at the Toronto O.P.P. Detachment on 19 May 2012 she immediately asked Constable Kowalyk to be permitted to use the washroom.

[84] Ms. Smith testified that the only response she received from Constable Kowalyk was a quick non-verbal gesture pointing her to the toilet in the cell in which she was lodged, Cell #1.

[85] Ms. Smith testified that when she used the toilet, she was required to take off the pants she was wearing that evening, her jogging pants, and remove a short skirt and underwear.

[86] Ms. Smith testified that as she squatted down and began to use the toilet to urinate she looked up to see that there was a CCTV camera facing her, and because of the camera angle and the location of the toilet, this camera appeared to fully capture her naked lower torso and her fully exposed private parts.

[87] Ms. Smith testified that she also realized while using the toilet that there was no toilet paper or feminine hygiene products, which were needed by her because of menstrual cycle and the time of the month.

[88] Ms. Smith testified that she therefore had to partially re-clothe herself and go to the cell door and request something with which to wipe herself.

[89] Ms. Smith testified that she was eventually given something to wipe herself but not a tampon.

[90] Ms. Smith testified that, as a result of the camera being focused on her through all of this, she was surprised, and embarrassed, and immediately became upset.

[91] Ms. Smith testified that she immediately said to herself:

Oh, my, I am being videotaped!

[92] Ms. Smith testified that as a wellness practitioner, she is fully aware of the impact of stress and psychological violation on the body and how an individual responds to situations of stress, violation and emotional "wounding".

[93] Ms. Smith testified that when she was still squatting and urinating and then turned towards the camera and suddenly realized that there was a CCTV camera focused on her exposed body, she found that her lower body immediately became rigid, her breathing became restricted and she experienced a shortness of breath.

[94] Ms. Smith further testified that she was horrified and confused that her personal privacy could be violated in this way while in custody in a holding cell, which she had believed was a relatively private space.

[95] In cross-examination Ms. Smith testified that she was aware of a CCTV system in the Booking & Breath Tech room, but had no idea that there would be a CCTV camera in the holding cell.

[96] In cross-examination Ms. Smith was asked why she did not inform Constable Papiorek, the Breath technician, of her sense of "wounding" when Constable Papiorek informed her in the breath tech room that she was being monitored by a camera, and further asked her if she was "ill" or "sick" before taking the first sample of her breath.

[97] Ms. Smith testified that in her mind, a "menstrual cycle" and feminine hygiene needs are not a "disease" but a normal part of a woman's life.

[98] Ms. Smith testified that her concern was for her loss of personal privacy and she expected to be provided the very same privacy using the toilet in her cell that she would have in a washroom cubicle.

[99] Ms. Smith also testified that she would expect privacy for both men and women using a toilet in a holding cell.

[100] Ms. Smith was challenged by the Crown on her ability to remember accurately what happened while she was in custody because of the large volume of wine she admittedly consumed that evening, which she estimated to be a number of glasses.

[101] Ms. Smith responded that, indeed she had quite a bit of wine, but that she was able to remember the matters she testified to in court.

[102] Ms. Smith, during a long series of questions from the Crown regarding her profession as a wellness practitioner, stated that her school training and practice with her patients is to always respect their personal privacy and bodily integrity, while they are stretching, being massaged or having their limbs manipulated.

[103] Ms. Smith was also asked if she was not more stressed by the fact of her drinking and driving, and being caught on camera in a very inebriated state, rather than the fact of the camera recording her actions in the cell.

[104] Ms. Smith stated that the entire evening of her arrest and detention was very stressful for her, but the videotaping was very aggravating because she was not told of the camera in the cell, she had not consented to be videotaped, and she was very surprised when she suddenly became aware of the camera pointing at her while she was squatting and urinating.

Constable Mark Kowalyk's E-mail Testimony (Exhibit 14) in Reply To Application

[105] Constable Kowalyk acknowledged that Ms. Smith had informed him that she "had to pee" and told her that she would be able to "go" when they reached the station.

[106] Constable Kowalyk could not recall if she had renewed her request when being placed in the holding cell, but stated that, as a general rule, "people" are "notified" that the cell area is under surveillance, and, in addition this fact is "posted".

[107] Constable Kowalyk responded in his e-mail that he "vaguely" remembered Ms. Smith asking him for a feminine hygiene product, that he asked Constable Papiorek is she knew of anything, but did not recall providing anything to Ms. Smith.

3: The Legal Framework

3.1: The Loss of Relevant Crown Evidence Contrary to Section 7

[108] It is clear that the loss of material evidence may result in a successful application for a stay at trial.

The Crown "Stinchcombe" Duty to Disclose

[109] In R. v. Stinchcombe, [1991] S.C.J. No. 83, Justice John Sopinka explained the Crown's duty to disclose is a constitutional requirement protected by the Charter section 7 guarantees not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice, which include the right to make "full answer and defence".

[110] Justice Sopinka explained that where the parties disagree as to the proper subject-matter of a disclosure request, it is the trial judge who must decide what must be disclosed:

22 The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege. The trial judge might also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. The trial judge may also review the decision of the Crown to withhold or delay production of information by reason of concern for the security or safety of witnesses or persons who have supplied information to the investigation. In such circumstances, while much leeway must be accorded to the exercise of the discretion of the counsel for the Crown with respect to the manner and timing of the disclosure, the absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure.

[111] In the leading case of R. v. Carosella, [1997] S.C.J. No. 12, Justice Sopinka further set out the principles that guide this process, and in that case upheld a trial judge's entry of a stay to the proceedings in a trial for gross indecency where the trial judge found that the notes taken in an initial one and one-half hour statement made by the complainant at a Sexual Assault Crisis Centre prior to her first attendance at a police station had been shredded by the Centre as a deliberate policy not to make any such statements at the Centre available for court proceedings.

[112] The Ontario Court of Appeal reversed the trial judge's order of a stay, and ordered a new trial, but the stay order was restored on appeal to the S.C.C.

[113] In the Supreme Court of Canada, Justice John Sopinka found that the trial judge was correct in concluding that the accused's right to cross-examine the complainant had been fatally compromised and there was no alternative remedy to the stay of proceedings on the facts.

[114] In his reasons, Justice Sopinka sets out that disclosure of evidence is a Charter-protected right of the accused:

25 The Court of Appeal agreed with the appellant that production of the files of the Centre for review by the trial judge was a non-issue and that it was not necessary to consider whether the threshold test for production and review by the trial judge had been met. The Court of Appeal disagreed with the finding of the trial judge that the appellant's constitutional rights were breached because, "[t]he issue is not whether the Centre's file should have been ordered to have been produced, but rather whether the Centre's inability to produce all of its original file contents resulted in the likelihood of prejudice to the accused that would compromise the defendant's Charter right to make full answer and defence" (p. 215).

26 With respect, this is a misapplication of the burden which rested on the appellant and confuses the obligation to establish a breach of the right with the burden resting on the appellant in seeking a stay. The entitlement of an accused person to production either from the Crown or third parties is a constitutional right. See R. v. Stinchcombe, [1991] 3 S.C.R. 326, and R. v. O'Connor, [1995] 4 S.C.R. 411. Breach of this right entitles the accused person to a remedy under s. 24(1) of the Charter. Remedies range from one or several adjournments to a stay of proceedings. To require the accused to show that the conduct of his or her defence was prejudiced would foredoom any application for even the most modest remedy where the material has not been produced. It would require the accused to show how the defence would be affected by the absence of material which the accused has not seen.

[115] Justice Sopinka makes clear that it is only at the stage of fashioning an appropriate remedy for the Crown's breach of the disclosure obligation that the court must consider the prejudice to the accused's Charter right to make full answer and defence.

[116] In R. v. Stephens, [2000] O.J. No. 2589, the Ontario Court of Appeal heard a "loss of evidence" appeal in a trial for arson, where the Crown's theory was that the accused had deliberately started the fire by setting a mattress on fire and the Crown could not produce the mattress because it was destroyed and not available at the time of trial.

[117] At trial, the presiding judge found that there had been a section 7 breach, but did not grant a stay.

[118] On appeal the court concluded that the inability of Crown to produce the mattress, although a breach of Section 7, should not result in a stay:

In these circumstances where there was no evidence such as to give the defence of accident an air of reality, and where there was overwhelming evidence that the fire was deliberately set, we cannot describe the flammability of the mattress as central to the question of whether the fire was intentionally set, although we accept that it had some relevance to that issue. Further, in the circumstances, we do not agree that there was a realistic possibility that testing of the mattress could have benefitted the appellant. It is simply speculative to suggest what the results of any such testing might have been.

[119] In the more recent case, R. v. Delude, [2004], O.J. No. 3576, the Ontario Court of Appeal again did the exercise of considering the appropriate remedy and concluded that stay entered by the trial judge was not the appropriate remedy where the breath tech room security video, which included only still photos, and periodic capture of images, were not produced by the police.

[120] In speaking for the court, Justice John Laskin concluded that the Breath Tech Room video itself was of marginal relevance because of the camera's limited recording program, which only took periodic still photos, which meant it had limited probative value on the issue of signs of impairment or the functioning of the machine.

[121] Justice Laskin also found that there was no deliberate attempt to destroy relevant evidence and therefore the stay granted was not the appropriate remedy.

3.2: Cases on Excessive Invasion of Privacy, Contrary to Section 8

The Protected Interest

[122] The protection of the citizen against unwarranted state interference with personal privacy and bodily integrity has long been established in our law as the most important aspect of privacy protected by the Charter. Two of Canada's most respected jurists make this clear in the following two quotes.

[123] In R. v. Tessling, [2004] 3 S.C.J. No. 63, Justice Ian Binnie stated:

13 Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. As La Forest J. stated in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-28, "[t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state."

14 The midnight knock on the door is the nightmare image of the police state. Thus it was in 1763 that in a speech before the British Parliament, William Pitt (the Elder) famously extolled the right of everyone to exclude from his private domain the forces of the King:

The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail -- its roof may shake -- the wind may blow through it -- the storm may enter -- the rain may enter -- but the King of England cannot enter! -- all his force dares not cross the threshold of the ruined tenement!

(Lord H. Brougham, Historical Sketches of Statesmen Who Flourished in the Time of George III (1855), vol. I, at p. 42)

[124] The principle of bodily integrity was directly addressed by Justice Peter Cory in R. v. Stillman, [1997] S.C.J. No. 34:

I agree with that position. It has often been clearly and forcefully expressed that state interference with a person's bodily integrity is a breach of a person's privacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification. In R. v. Pohoretsky, [1987] 1 S.C.R. 945, at p. 949, Lamer J., as he then was, noted that, "a violation of the sanctity of a person's body is much more serious than that of his office or even of his home".

3.3 The Remedy of a Stay – Analytical Framework

[125] The Ontario Court of Appeal's ruling in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 provides an analytical framework for considering whether a stay should be granted under Sections 7 & 8 of the Charter. The court's analysis is set out in their decision starting at paragraph 57:

57 From the above cases in the Supreme Court, the following principles emerge:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

58 Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.

59 When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity.

60 However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

61 Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category.

3.4: Cases on Loss of Evidence

[126] In R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952, the appellant was stopped by police while driving on the Queen Elizabeth Highway (Q.E.W.) and noted to have symptoms of impairment. On arrest, he said that he did not want to contact counsel at that time. At the detachment, he said he wanted to speak to counsel, Randall Baran. The officer gave the appellant back his cell phone, placed him in a cell and let him use the phone. The officer looked for Mr. Baran's number as well without success. The appellant never spoke to Mr. Baran, but did speak to Duty Counsel. He testified he was dissatisfied with the advice he received from duty counsel and told the officers that he was not happy about not speaking to his lawyer. They denied he made the comment.

[127] The video recording of the cell area where the officer said the appellant lost his balance was erased, according to police policy, within 7 days of the incident. The audio portion of the recording from the breath room malfunctioned, although the video was played at the trial. Two officers were told about the problem by the special constable who copied the appellant's recording for disclosure, four days after the arrest.

[128] The trial judge, based upon her findings of credibility and fact, dismissed the accused disclosure application and his request for a stay because of, inter alia, the loss of the video and convicted.

[129] Justice Bruce Durno, sitting as a Summary Conviction Appeal Court, dismissed the appellant's application on the basis that the trial judge provided cogent reasons for rejecting the appellant's evidence.

[130] In R. v. Khan, [2010] O.J. No. 2855, the accused appealed his conviction and sentence for refusing to provide a breath sample on the grounds that the trial judge erred in failing to find that the failure of the police to videotape the breathalyser process was a breach of the accused's Charter rights, that he misapprehended, misconstrued or overlooked evidence and that he erred in treating the accused's conduct as a clear refusal.

[131] Justice Ian MacDonnell, sitting as a Summary Conviction Appeal Court dismissed this ground of the accused's appeal. The evidence from the Crown at trial was that although there was a functioning video camera and equipment in the breath room, they had run out of tapes. Justice MacDonnell found no basis to interfere with the trial judge's determination that the failure to videotape the breathalyser proceedings did not infringe the accused's Charter rights. The police were not obligated to make a videotape of the breath testing process and the lack of a videotape of the proceedings in the breathalyser room did not deprive the accused of a fair trial as there was sufficient evidence from the police and the accused for the trial judge to make the relevant determinations. Justice MacDonnell also found that the failure of the police to videotape the breathalyser proceedings could not be used to draw an adverse inference against the credibility of the officer who conducted the process as he did not make a choice not to record the proceedings.

[132] In R. v. Zhu, [2007] O.J. No. 4775, Justice Sheila Ray on this court granted a stay in a trial where the Crown only called the arresting officer where the accused was charged with Impaired Driving, Over 80 and dangerous driving.

[133] Justice Ray heard that in York Region accused person, when released, are advised in writing that the videos of the accused at the station was destroyed after sixty days if he did not request a copy. In the case, counsel made a very early request for the video, but it was after the sixty days and the videos had been destroyed. Justice Ray found that the station videos would have assisted her in evaluating the credibility of the one Crown witness. She also found that this very early destruction of the station videos was a problem throughout the York Region, and stayed the proceeding.

3.5: Cases of Bodily Integrity – Surveillance & Search

[134] The two recent cases in Ontario on unobstructed video surveillance while using a toilet in police custody, as presented by counsel, where a stay was granted, are those of my colleague Justice Peter West, sitting in Newmarket, in his judgments of R. v. Mok, 2012 ONCJ 291, [2012] O. J. No. 2117 and R. v. Chasovskikh, [2013] O.J. No. 16.

[135] In Mok, Justice West found that the accused Mok charged with drinking and driving offences, was recorded on a holding cell digital CCTV camera and monitor using the toilet fully exposed to the camera. Justice West found that there were no legitimate safety concerns that could justify recording her activities using the toilet in the cells. He concluded that the recording of her activities, despite her lack of awareness at the time of being recorded, was contrary to her right to privacy under Section 8, and also extremely degrading and contrary to human decency.

[136] Justice West concluded, on all the facts, that the appropriate remedy was a stay.

[137] In Chasovskikh, Justice West found that similar principles applied to Ms. Chasovskikh, who also faced drinking and driving charges. Ms. Chasovskikh was captured on the breath room video camera using the toilet in the breath room. In addition, a female police officer stood directly in front of her and watched her pull down her pants, expose her private parts, sit on the toilet and again stand up, and again exposing herself, in order to pull up her pants.

[138] In Chasovskikh, Justice West again found a breach of Section 8, and stayed the charges.

[139] On appeal, Justice West was overturned in Mok by Justice R. Cary Boswell, sitting as a judge alone in the Summary Conviction Appeals court. On a decision released in January, Justice Boswell allowed the appeal in part, agreeing that Ms. Mok's Charter-protected right to privacy had been breached, but concluding that a stay was not the appropriate remedy.

[140] Using the analytical framework found in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, above, Justice Boswell concluded that, although the section 8 breach of the accused's privacy interest in Mok was serious, a stay would give insufficient weight to the public interest to have a trial on the merits.

[141] Justice Boswell also concluded that because of the systematic recording of the "in-cell" activities of detainees by the York Regional Police, a change in police surveillance practices in police stations and holding cells was, indeed, needed, as Justice West had stated, but a "stay" of the proceedings was, in Boswell's opinion, not required to achieve a change in the way the police monitored cells.

[142] Justice Boswell stated at paragraph 98:

98 While I do not disagree with the trial judge's conclusions as noted, it does not follow that a stay of the charges against Ms. Mok is necessary to achieve a change in the way the police monitor their cells. The videotaping of police holding cells, including the toilet area, has not previously been challenged. Apparently, not just by York Region detainees, but not by detainees in other police stations across the country either. I would hope, and expect, that with the Court's guidance, the YRPS executive will make the decision to effect change in the way they monitor detainees in their cells. The "fix" is relatively minor. It can be achieved either with repositioning the video cameras, or by installing modesty screens that cover the lower part of a person's body while using the toilet.

[143] Relying on the good faith of the York Regional Police to adjust their practices as a response to the concerns expressed in the judicial rulings, Justice Boswell concluded therefore that the facts in Mok were not the "clearest of cases" because Justice West had not considered that it was a case of first instance, that the testimony before Justice West that such video surveillance was done as a matter of policy did not represent the view of the police executive, and finally that the breach had not been egregious, at least partially because Ms. Mok was unaware at the time that she was being videotaped.

[144] A similar result occurred in the recent case of R. v. King, [2012] O.J. No. 2574, which was decided after Justice West's trial decision in Mok.

[145] In King, my colleague, Justice Alan Cooper found that the video and audio regarding of a male accused urinating in a toilet in the holding cells was a violation of his Section 8 Charter rights, but concluded that the facts did not make out either such an egregious breach as Justice West found in Mok nor did they justify a stay. Justice Cooper explained:

31 Getting back to the case of Mr. King, it is obvious that audio-visual surveillance can prevent suicide or other self-harm to a prisoner. Here, Mr. King testified that he was not aware that he was being electronically monitored in his cell, and would have asked for privacy when he was urinating had he known this. He has no criminal record to my knowledge, and was not obviously suicidal or trying to harm himself in his cell. Officer Reid agreed in cross-examination that Mr. King was acting quietly and cooperatively.

32 Comparing Ms. Mok's case to Mr. King's, they each had no criminal record, and were behaving properly in custody. Ms. Mok's driving was far worse than Mr. King's, but there was no police evidence in Mr. King's trial similar to that in Ms. Mok's. Neither officer in the King case gave an opinion as to whether the practice ought to exist or not; it was simply part of the system they were expected to operate in. Both Ms. Mok and Mr. King testified that they were unaware their cell was under audio-visual surveillance, but the police evidence was that Ms. Mok was specifically told about it before she was lodged in the cell.

33 Because the police evidence is not the same as in R. v. Mok, it is my view that a judicial stay of proceedings ought not be entered in the case before me. The Ontario Provincial Police, and other police forces, deserve an opportunity to be apprised of the concerns of West J., and to reassess the current practice of videotaping prisoners using cell toilets. This issue will arise again.

[146] Finally, in another relatively recent decision reviewing the granting of a stay at trial buy my brother Justice Howard Borenstein, in a case involving a strip search, R. v. Chowdhury, [2011] O.J. No. 2171, Justice P.C. Hennessy, sitting as a Summary Conviction Appeal Court judge, applied the reasoning of the Ontario Court of Appeal in Zarinchang, above, and upheld the stay granted at trial:

1 P.C. HENNESSY J.:— On this appeal, the Crown-appellant argued that the trial judge had not engaged in the balancing exercise presumed to be necessary when considering the residual category of stays (R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548). The decision to grant the stay is a discretionary one and appellate intervention is only justified where the trial judge misdirected himself or made a decision so clearly wrong as to amount to an injustice.

2 In this case, the trial judge carefully considered the facts before the court, especially in light of the S.C.C. decision in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. He found that notwithstanding the clear message to police in that case, the police continued to follow strip search policies without regard to individual circumstances. At trial, the Crown conceded the s. 8 breach. They now argue that a lesser remedy than a stay should have been imposed.

3 For the following reasons, the appeal is dismissed. No reasonable alternative remedy was proposed to the trial judge. In particular there was no argument that a s. 24(2) exclusion of the breath sample evidence was a more appropriate or more proportionate remedy. In any event, given that the breath samples were obtained prior to the strip search there is no logical connection, no causal connection and no legal reason for excluding them because of the strip search.

4 The Crown argues that there was no evidence before the trial judge that the police were continuing to apply their strip search policy following the very explicit message delivered to this particular Division in the R. v. Samuels, 2008 ONCJ 85, [2008] O.J. No. 786, case. This is because the Samuels decision was released only 5 days before Mr. Chowdhury's arrest. However, it was up to the Crown to bring evidence at the stay motion 13 months later, if they wished to argue that in fact they had changed their practices and that the police conduct towards Mr. Chowdhury was an aberration.

5 The trial judge made very clear findings in his analysis. He found the breach to be most serious, that there was an invasive violation of Mr. C(howdhury)'s privacy and dignity. He considered the question of remedy, and especially whether a lesser remedy would be appropriate. He explicitly rejected the option of a lesser remedy, referencing the need to impose a stay to have a prospective impact. There was no uncertainty expressed by the trial judge, even though he did not explicitly articulate that the impaired and over 80 charges were serious. We know that there was no accident, no injuries, no property damage. The reasons adequately demonstrate that the trial judge appreciated all of the facts, directed himself appropriately and explained his perception that as a result of the many times the police have been directed to modify their approach to strip searches, they had not done so. The trial judge was not obliged to use the word balancing. He appreciated that he was imposing the most serious remedy and he made it clear why he was doing so. He did not misdirect himself in any way. The balancing exercise is only necessary where there is uncertainty with respect to whether the abuse is sufficient to warrant a stay. (R. v. Tran, 2010 ONCA 471, [2010] O.J. No. 2785, para. 105).

6 There was no uncertainty on the part of this trial judge. There is no basis to intervene with his decision.

4: Findings of Fact

Were Ms. Smith's Charter-Protected Rights Breached?

4.1: The Crown Loss of The Video Evidence, Contrary to Section 7

[147] As stated at the outset, it was conceded by the Crown that they could not produce for trial the Cell # 1 digital video recording made while Ms. Smith was in detention on 19 May 2012.

[148] I find that the evidence supports the conclusion and I am satisfied, that at the time of her confinement in the holding cell, Ms. Smith's using of the toilet was both being recorded and the visual images were available for police scrutiny on a number of monitors in the Toronto O.P.P Police detachment.

[149] As a result, for the purposes of this application, at least, I find that the footage has been lost.

[150] The only evidence the Crown was able to present to the court on the "Lost Evidence" portion of the application was the Memorandum of O.P.P. Inspector Luis Mendoza, dated 7 June 2013.

[151] I further find based upon the memorandum of Toronto detachment commander Inspector Luis Mendoza that the defence request for disclosure on 14 March 2013 was within the time-frame of nine to ten months during which all video recordings were stored in the hard drive of the Toronto detachment server.

[152] I thus am satisfied and find that at the time of the defence request, the video footage of Ms. Smith using the toilet was still in existence and capable of being produced for disclosure and potential use in court, by the defence.

[153] Perhaps more importantly, I further find that, as of the dated of the disclosure request, both officers on the case who testified knew that a recording had been made and was available for disclosure to the defence.

[154] I further find as a fact in this proceeding that this video would have been likely to provide evidence on two distinct issues:

(1) Whether Ms. Smith was impaired; and

(2) The invasion of her privacy interest, part of the subject matter of this application.

[155] This distinguishes this case from the facts dealt with by Justice MacDonnell in Khan where the loss of the tapes was due to no tape being in the machine at the time of the taking of the breath samples.

The Crown Evidence on Incorrect Information Regarding the Cameras

[156] The Memorandum of O.P.P. Inspector Luis Mendoza, dated 7 June 2013, stated that although the "recording capability" had been in place at the Toronto detachment since June of 2010, somehow the staff were not told of this, and were under the impression that the cameras were simply being used to watch the cells, and insure prisoner safety.

[157] The Memorandum of O.P.P. Inspector Luis Mendoza, dated 7 June 2013, stated that as late as March of 2013, at the time of the defence disclosure request, the Crown was being provided with "incorrect information" that the cell cameras at the Toronto detachment had "no recording capabilities", whereas, in fact, such capability had been in place at the Toronto detachment from June of 2010.

[158] Inspector Mendoza, in his memorandum, attributes this "mistake" to:

An overwhelming turnover of court personnel, supervisory and command positions, which had a direct effect on the dissemination of information ( about digital video recording capabilities and procedures).

[159] However, I am satisfied in this case that the two officers who testified were aware of the recording and retrieval capabilities of the CCTV cameras in the cells.

[160] The Crown witness Constables Kowalyk was very clear in his evidence that the recordings were being made and were being stored for up to "two to three years" on a computer system, at the time of Ms. Smith's arrest and detention.

[161] The Crown witness Papiorek initially seemed to confirm this in her evidence by stating that the cameras would be used to respond to allegations of abuse while detainees were in the cells.

[162] I am therefore satisfied, for the purposes of this application that at least the arresting officer, Constable Papiorek was aware of the recording and storage of the digital camera that was being used in Ms. Smith's holding cell.

4.2 Excessive Invasion of Privacy, Contrary to Section 8

[163] The accused, Angela Smith is a licenced chiropractor and wellness practitioner who comes before this court with no criminal record.

[164] I find the testimony of Ms. Smith in this application as to what happened during her detention to be credible and reliable.

[165] I am satisfied on a balance of probabilities by her testimony and find as a fact that she had a subjective "reasonable expectation of privacy" when using the toilet in her cells on the evening of 19 May 2012.

[166] I am also satisfied based upon her testimony and the testimony of the Crown witnesses Constables Kowalyk and Papiorek and other Crown evidence, that she was, in fact, the subject of a surveillance video while using the toilet in Cell #1 at the Toronto O.P.P. detachment at 1682 Keele Street in Toronto.

[167] I am also satisfied by the testimony of the two officers that there was no legitimate basis for that CCTV video surveillance of Ms. Smith, while she was using the toiler, as I was told she posed no security or safety concern to the police and the facts of the case did not involve the possibility of the loss of evidence or other law enforcement need for the camera to be running.

[168] I am further satisfied that Ms. Smith was aware that there was a camera directed at her private parts while she was using the toilet in her holding cell, and that her knowledge that a camera was pointed at her caused her significant stress and trauma both at the time, and subsequently, when she testified in court, and was asked to reflect back on her experience in her examination and cross-examination.

[169] I further find that this stress and trauma, which was patently clear from her testimony, exists independently of the presentation of the video as an exhibit in this proceeding, or even the continued existence of the video recording at this time, which is not clear based upon the evidence.

[170] I therefore conclude that this personal subjective awareness by Ms. Smith of the CCTV video camera distinguishes this case from the facts in Mok, and King.

Summary of Findings

[171] I therefore find that Ms. Smith's Charter-protected rights were breached in two distinct ways.

[172] First, her right to full disclosure of the video evidence she wished to place before the court regarding her trial for Impaired Driving and her Section 8 application was breached when that video footage was not produced in a timely fashion, contrary to Section 7 of the Charter.

[173] Secondly, I find that her reasonable expectation of privacy while using the toilet in the holding cell at the Toronto Detachment was breached by the surveillance camera on the day of her arrest, contrary to Section 8 of the Charter.

3.2: Should Ms. Smith Be Granted the Remedy of a Stay?

[174] The finding of the section 7 breach, due to the loss of the detention cell video has an effect on trial fairness.

[175] In the cases discussed above, only two, Carosella & Chu resulted in stays.

[176] In Carosella the court found that the initial statements to the Crisis Centre were essential to full answer and defence.

[177] In Chu, again, the court found that the video recordings of the accused at the York Region station were essential for that purpose.

[178] In both cases there was a general institutional-wide policy of the destruction of evidence without consideration as to the impact on trial fairness.

[179] In my view, because Ms. Smith did not receive disclosure of the digital recording of her while in detention, just after she arrived at the O.P.P. detachment, she lost a potential tool to resist the Crown evidence as to her demeanour and behaviour as testified to by the two Constables.

[180] In my view, this would assist the Court in weighing the evidence of the witnesses, and weighing the value of the Breath Tech video, to a greater extent than, for example, the video discussed by Justice Laskin in Delude.

[181] In this case, while the lost cell video would assist in cross-examination, at trial, and would have significant evidentiary value in Ms. Smith's section 8 Charter application, I think it would be stretching it to suggest it was essential to the defence or as important to the as the evidence that was destroyed in Carosella & Chu above. (See Khan, above.)

[182] It should be pointed out that there was a Breath Room DVD that the Crown did tender, as Exhibit 8 was made almost concurrently with the Holding Cell recording which was not produced.

[183] In my view, the loss of the Holding Cell video, taken alone, as a basis for a stay of proceeding, would therefore not succeed, relying on Justice MacDonnell's reason in Khan.

[184] However, this does not deal with the Section 8 breach, and Ms. Smith's right to be protected from state conduct that contravenes her fundamental right to privacy, bodily integrity and personal dignity.

[185] Let me first deal with the Crown's argument that, with respect to the Section 8 breach, this is not the most egregious of Charter-breach cases, and therefore should not attract the remedy of a stay.

[186] In this case, I find that Ms. Smith's personal circumstances, namely her testimony of her subjective awareness and response to the invasion of her personal privacy, was very different than the other cases that have been reviewed by the courts under the "residual category".

[187] Her awareness that she was being taped distinguishes her case from both the cases of Mok and King where the trial judges found that the accused were unaware they were being videotaped.

[188] In addition, of course, I have her evidence as to her not being supplied with either toilet paper or a tampon while she was in her menstrual period and in need of feminine hygiene products.

[189] I also find that the evidence of both Constables Kowalyk and Papiorek on this point was very unsatisfactory and unsettling. They both responded in a very casual and off-hand manner to both the Crown and the defence questioning on Ms. Smith's use of the toilet and her need to both wipe herself and use a feminine hygiene product, as if these personal issues didn't merit much time or thought.

[190] This was confirmed in my view, when Constable Papiorek testified that the Toronto detachment had a Cell # 3 that was specifically designed for female and youthful offenders, and she thought but was not sure that Ms. Smith had been placed in that cell because of her gender.

[191] I also concluded from their evidence that, in fact, the Toronto O.P.P. detachment, as of 19 May 2012, did not have a plan or facilities to accommodate female accused that are in need of feminine hygiene products, or personal privacy while using the toilet.

[192] In my view, this makes the Section 8 violation, as a matter to be considered under the residual category, more egregious.

[193] The Crown has also argued that the testimony of the two Constables, Kowalyk and Papiorek, and the memorandum of the O.P.P. Toronto Detachment Commander, Inspector Luis Mendoza, when he describes the video recording system and its use at the detachment, does not reflect O.P.P. police "policy" but only Toronto O.P.P. Detachment police "practice", and therefore the Charter remedy of a stay was not appropriate.

[194] This submission, in my view, does not reflect the evidence before the court that the Toronto O.P.P. detachment practice of recording all activity in the holding cells is a continuing and on-going breach in a circumstance of a reasonable expectation of privacy since 14 June 2010.

[195] In my view, in this circumstance, the applicant need not prove it is a policy, when the practice has been in place for such an extended period of time, and is known to the officers who are arresting and detaining the citizen.

[196] In my view, the Mendoza Memorandum coupled with the other evidence before the court suggests a flagrant and continuing failure by the Toronto O.P.P. detachment to respect the privacy and dignity of citizens who are in holding cells and under arrest, or to respond to judicial opinion as to the serious nature of the section 8 breach this practice creates.

[197] This flagrant and continuing failure to provide personal privacy for person using the toilet has now been commented on in a number of judgments by judges in Ontario, as set out above.

[198] As such, it also cannot be characterized in May of 2012 as being a "case of first instance" (See, Mok [2014] O.J. No. 2117, paragraph 93, and King [2012] O.J. No. 2574, paragraph 33).

[199] To briefly review the case referred to above involving surreptitious surveillance of detainees, in terms of when they arose, Chasovskikh was a case involving a surveillance video camera for a detained person used by the York Regional Police Officers in the York Region on 1 November 2010.

[200] Mok involved a surveillance camera for a detained person used by the York Regional Police in the York Region on 25 January 2010.

[201] King involved a surveillance camera for a detained person used by the O.P.P. at the Burlington Detachment on 21 November 2009.

[202] Ms. Smith was arrested and detained on 19 May 2012, thirty months after the O.P.P. in Burlington arrested Mr. King, twenty-eight months after the York Regional Police arrested Ms. Mok and sixteen months after the York Regional Police arrested Ms. Chasovskikh.

[203] In my view, the Smith case cannot properly be considered a case of "first instance" today.

[204] Previous courts, in a number of thoughtful and careful decisions, including Mok, King and Chowdhury have either granted stays due to the Section 8 breaches revealed in the evidence before them, or suggested that the police forces in question modify their practices to respect the reasonable privacy expectations of citizens.

[205] The remedy of a stay, as stated in the case law, must be forward looking, and granted only in the "clearest of cases".

[206] In my view, this is just such a situation where a forward-looking remedy is the only remedy that will suffice to address and protect the two inter-related Charter-protected interests that have been infringed here:

(1) Section 7 & 11(d) trial fairness; and

(2) Section 8 Privacy interests, in circumstances where citizens while in detention are being videotaped when it is not called for.

[207] On the findings of facts I have made in his application, because of the dual impacts on trial fairness and personal privacy, the latter of which was perceived as such by the detained accused, and in a circumstance where the officers who had detained her failed to properly consider her personal privacy and personal toilet necessities, this is indeed, the "clearest of cases".

[208] The factors above, in my view, therefore suggest that a stay should be granted in this case.

[209] However, continuing the analytical framework in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, I wish to turn to the question of whether in the societal interest in having a trial on the merits should weigh against a stay that the court would otherwise consider the appropriate remedy.

[210] It is important to point out that Ms. Smith's alleged criminal conduct is serious and requires vigorous law enforcement attention.

[211] If convicted Ms. Smith would face loss of her driving privileges for at least a year and a substantial fine.

[212] However, it is also important to state that it is precisely Ms. Smith's otherwise unblemished personal history and her lack of any criminal antecedents which makes Ms. Smith's circumstance similar to Ms. Mok, Mr. King and to a great many people who, for the first times in their lives are arrested, detained and are potentially subject to having to use an open toilet while being monitored and recorded on surveillance cameras.

[213] In weighing the public interest in having these charges decided on the merits, the court must also weight the public interest in having citizens who are arrested and taken into custody receive a fair trial and be treated with dignity and respect.

[214] When looked at in light of the fact the state agents in this case breached Ms. Smith's Charter-protected rights in two distinct ways, involving both trial fairness, and her privacy interest, based upon a systemic problem that is clearly chronic and on-going, I have concluded that, on the particular facts of this case, the only appropriate remedy is a stay.

[215] There will be a stay.

Released: 17 March 2014

Signed: "Justice Paul H. Reinhardt"