Court Information

Court: Ontario Court of Justice Location: Halton (Burlington and Hamilton) Date: 2014-04-22 Judge: Justice M. Speyer

Parties

Crown: Her Majesty the Queen Counsel for Crown: Brett Moody

Accused: Aislyn Griffin Counsel for Accused: Patrick Metzler

Hearing Information

Heard: January 28 and 29, 2014 in Burlington Reasons for Judgment Released: April 22, 2014 in Hamilton

I. INTRODUCTION

[1] Aislyn Griffin is charged with one count of operating a motor vehicle while impaired by alcohol contrary to section 253(1)(a) of the Criminal Code and one count of operating a motor vehicle with a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Code. Both offences are alleged to have occurred on September 15, 2012 in the city of Oakville.

[2] The defendant argues that her rights under s. 8 of the Charter of Rights and Freedoms to be free from unreasonable search and seizure have been violated by the police. While detained in a holding cell at the Burlington OPP detachment, Ms. Griffin was video and audio recorded using the toilet. She seeks a stay of the charges against her pursuant to s. 24(1) of the Charter. In the alternative, she seeks an order pursuant 24(2) excluding the evidence of her breath samples.

[3] On consent of the parties, the s. 8 application proceeded in a manner that blended voir dire and trial evidence. All evidence heard on the voir dire that is ruled admissible applies as trial evidence. I will deal with the s. 8 Charter application first as it applies to both counts.

II. SECTION 8: APPLICATION TO STAY OR EXCLUDE EVIDENCE

[4] Section 8 of the Charter guarantees that everyone has the right to be secure against unreasonable search or seizure. Courts have long recognized that rights are not static and that a determination of whether an individual's rights have been breached by state conduct must be considered contextually. Individual rights are also not absolute and frequently conflict with other competing societal interests. Courts must examine each claim to a Charter right in the particular context of the case and balance it against other recognized and valid societal interests. It is therefore important to set out in some detail the evidence presented in this case.

1. The Factual Context

[5] On September 15, 2012, at 2:27 a.m., OPP Constable Kevin Winiarski stopped Ms. Griffin, the driver and sole occupant of a motor vehicle, at Dorval Drive and Monastery Drive in Oakville. The officer stopped Ms. Griffin in response to a 911 call concerning a possible impaired driver. Following a brief conversation with Ms. Griffin he formed a reasonable suspicion that she had alcohol in her body. The officer made a roadside screening demand. Ms. Griffin failed the screening test. At 2:35 a.m. P.C. Winiarski arrested her on reasonable and probable grounds that she was operating a motor vehicle with over 80 mg of alcohol in her blood. He made a demand pursuant to s. 254(3) of the Code that she accompany him to the nearest OPP detachment to provide a sample of her breath for analysis.

[6] Following her arrest and prior to being placed in P.C. Winiarski's police cruiser, OPP Sgt. Belinda Rose conducted a pat down search of Ms. Griffin to ensure she did not have any weapons or other harmful objects. Sgt. Rose testified that she performed the search on Ms. Griffin because she is a female officer and it is the OPP's policy that whenever possible, officers of the same gender should conduct prisoner searches.

[7] P.C. Winiarski took Ms. Griffin to the Burlington OPP detachment. At the detachment, P.C. Winiarski advised Ms. Griffin that the booking area and holding cell were monitored by audio and video surveillance and everything she did and said would be recorded. Additionally, P.C. Winiarski and Sgt. Rose testified that there are signs advising that the area is under video and audio surveillance. Ms. Griffin acknowledges in her affidavit that she was aware that her activities in the cell were being recorded.

[8] Prior to being placed in the cell, P.C. Aspden, a female officer and the breathalyser technician on duty, did a second pat down search of Ms. Griffin to ensure she had no weapons or harmful objects. All Crown witnesses testified that Ms. Griffin was polite and cooperative.

[9] At 3:16 a.m. Ms. Griffin was placed in holding cell #1. This cell contains a bench which occupies half of the cell. A bench pad and a folded sheet are on the bench. On the wall opposite the bench, there is a toilet and sink unit. The toilet is angled on a diagonal towards the cell door. The interior of the cell is visible from the outside. The cell is equipped with a closed circuit television camera that both monitors and records the entire cell area. The position of the camera is on the wall above the bench and opposite the toilet. The cell is very small and the camera captures all activity and sounds in the cell.

[10] A videotape of Ms. Griffin's activities inside the cell was disclosed to the defence and was made an exhibit in these proceedings. The following is a description of the relevant segments of the video:

• At 03:33 Ms. Griffin calls out "excuse me, hello, hello". Within moments P.C. Winiarski comes to the cell door.

• Ms. Griffin asks P.C. Winiarski if it is possible to use a toilet other than the one in the cell.

• P.C. Winiarski advises her that this is not possible. P.C. Winiarski tells her that he will give her toilet paper if she wants to use the cell toilet. He tells her to holler when she is finished. Ms. Griffin responds "ok, thank you". Part of this conversation cannot be heard because of audio interference.

• At 03:35 P.C. Winiarski returns with a roll of paper and hands it to Ms. Griffin through the bars and leaves.

• At 03:36, Ms. Griffin takes the toilet paper and wipes down the seat. She puts the toilet paper roll next to her on the bench. She then turns away from the camera, pulls up her dress and pulls down her underwear. Her naked upper right buttock is momentarily exposed and visible as she pulls down her underwear. She sits on the toilet and urinates into the toilet. Her upper right thigh is visible while she is urinating. The video captures the sound of her urinating.

• At 03:37:01 Ms. Griffin takes the toilet paper and wipes herself. She then stands up, quickly pulls up her underwear and pulls down her dress.

• At 03:37:25 Ms. Griffin takes more toilet paper from the roll, reaches under her dress and appears to wipe the inside of her thighs. She then throws that paper into the toilet.

• At 03:37:49, Ms. Griffin calls to P.C. Winiarski that she is done. He returns to the cell door and takes the toilet paper roll from her. He also flushes the toilet remotely from outside the cell.

[11] In her affidavit, Ms. Griffin states that privacy was important to her and she wanted privacy when she asked if she could use a toilet somewhere other than the one in the cell. She further states that she was "shocked and embarrassed" when she learned that her use of the toilet was recorded and disclosed to her counsel and the Crown Attorney's office. She feels degraded and humiliated by the OPP's recording of this intimate bodily function. She was dismayed to learn that her use of the toilet was distributed as part of the disclosure material.

[12] P.C. Winiarski testified that the detachment is equipped with staff and public washrooms which are not under video surveillance. However, for officer and prisoner safety, persons held in detention are not permitted to use those facilities. This was confirmed by Sgt. Rose and P.C. Aspden. P.C. Winiarski testified that in his experience, even polite prisoners can turn violent.

[13] The Crown filed as an exhibit the affidavit of OPP Inspector Allison Jevons, the inspector and detachment commander for the OPP in Burlington. Inspector Jevons advised the court that the OPP have installed video monitoring and recording equipment in all detachments and cell areas in Ontario in accordance with recommendations made by four separate Coroner's Inquests into the deaths of prisoners while in OPP custody. One of the recommendations made by the Coroner's jury in the 2008 inquest into the death of John Scott urged the OPP to continue to aggressively pursue uninterrupted video surveillance of in-cell/holding areas of all detachments on a 24 hour, 7 days per week basis. Similar recommendations were made in 2009 and 2010.

[14] The following additional facts were agreed upon between Defence and Crown counsel:

• The video feed from the camera in cell #1 to the monitors in the Constable's room and the Staff Sergeant's office were not working. The equipment to repair this has been on back order for some time now.

• The video feed from the camera in cell #1 was recorded on a computer locked in a cage in the fingerprint room. The computer is equipped with a small monitor.

[15] Ms. Griffin was in police custody at the OPP station for approximately 2 hours and 20 minutes. While Ms. Griffin's activities in the cell were recorded, due to the malfunctioning of the equipment, no officer was able to monitor those activities. The point that bears emphasis is that no one saw Ms. Griffin urinating on the morning of her arrest. The first time she is observed using the toilet is when the DVD of the holding cell was disclosed to Defence and Crown counsel.

[16] As of September 15, 2012 neither P.C. Winiarski, P.C. Aspden or Sgt. Rose were aware of any cases in which courts had held that it was a breach of a detainee's right to privacy to videotape them while using the toilet in the cells. In her affidavit, Inspector Jevons states that in September of 2013 she met with the Halton and Hamilton Crown Attorneys to discuss possible solutions to this issue. On September 7, 2013, she sent an email to all Burlington officers advising them that a sign be posted in the cell area stating:

"You are being audio and video recorded at ALL times in this area. You are permitted to cover yourself with the blanket provided if you are using the toilet."

She instructed the officers that effective immediately they are to read the sign to every prisoner lodged into a cell and provide them with a blanket on request. Inspector Jevons swore in the affidavit that she is aware of the Mok summary appeal decision from Newmarket and was meeting with regional command to discuss Justice Boswell's recommendations on the subject. She states that the OPP are taking the matter seriously.

2. Was there a breach of the defendant's section 8 rights?

[17] Defence argues that Ms. Griffin had an expectation of privacy while in the OPP holding cell and that the state violated that right when it videotaped her using the toilet. Counsel relies on R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44 (SCJ); R. v. Smith, 2014 ONCJ 133, [2014] O.J. No. 1370 (OCJ); R. v. Chasovskikh, [2013] O.J. No. 16 (OCJ); R. v. Deveau, 2013 ONCJ 644; and R. v. King, [2012] O.J. No. 2574. In all of these cases, the courts have held that the practice of videotaping a detainee using the toilet in holding cells is an unreasonable intrusion of a person's right to privacy.

[18] Crown counsel concedes that this practice has been held to violate the accused's s. 8 rights. However, he urges the court to reject both a stay of proceedings under s. 24(1) of the Charter or exclusion of evidence under s. 24(2). He argues that the accused's lowered expectation of privacy when compared to the state's legitimate and compelling interest in ensuring officer and prisoner safety does not merit either remedy.

[19] Notwithstanding the Crown's concession, it is important to review the jurisprudence and the evidence in this case to determine the extent, if any, that the police's conduct violated Ms. Griffin's s. 8 rights.

[20] The purpose of section 8 is to protect individuals from unjustified state intrusions into their privacy: Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97. In R. v. Tessling 2004 SCC 67, [2004] 3 S.C.R. 432, the Supreme Court identified a spectrum of interests protected by s. 8. These include personal privacy, territorial privacy and informational privacy. At paragraph 13 of that case, Justice Binnie observed: "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".

[21] The protection of personal privacy is of the highest concern. As Justice Cory clearly stated in R. v. Stillman, [1997] S.C.J. No. 39 at para. 42:

"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...a violation of the sanctity of a person's body is much more serious than that of his office or even of his home."

[22] Any discussion about whether state conduct is or is not a breach of a person's s. 8 rights, must begin with a consideration of whether, contextually, the individual had an objectively reasonable expectation of privacy in the thing that is searched or seized. In R. v. Wong, [1990] S.C.J. No. 118 the Supreme Court held that video surveillance can constitute a search within the meaning of s. 8 of the Charter. The target of the surveillance must, however, have had a reasonable expectation of privacy. Former Chief Justice Lamer stated at para. 47:

"A person has the right, under s. 8, to be free from unauthorized surreptitious electronic surveillance where that person has a reasonable expectation that the agents of the state will not be watching or recording private activity nor monitoring or recording private conversations. Whether such an expectation is reasonable will depend on the particular circumstances; a person does not necessarily enjoy this right in all circumstances."

[23] In R v. Edwards, [1996] S.C.J. No. 11, Justice Cory J. described the need to consider the "totality of circumstances" in determining whether there a reasonable expectation of privacy exists in a particular situation. He put particular emphasis on two elements: (1) the existence of a subjective expectation of privacy; and (2) the objective reasonableness of that expectation.

[24] The Supreme Court has held that persons detained in police custody have a reduced expectation of privacy. In R. v. Beare; R. v. Higgins, [1997] S.C.J. No. 92, the court upheld the constitutionality of police practice of fingerprinting persons who have been arrested and charged with an offence, but not yet convicted. In that case, Justice LaForest observed at paragraph 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.

[25] R. v. Stillman, supra, Justice Corey held at paragraph 61:

"Obviously an accused person will have a lower expectation of privacy following his or her arrest and subsequent custody. That expectation of privacy will be even lower when serving a sentence after conviction. Therefore, it may well be that certain kinds of searches and seizures may validly be performed on a person in custody which could not validly be performed on persons who have not yet been arrested or convicted. Nevertheless, I am of the view that the appellant's expectation of privacy in this instance, although lower after his arrest, was not so low as to permit the seizure of the tissue. The privacy expectation should not be reduced to such an extent as to justify seizures of bodily samples without consent, particularly for those who are detained while they are still presumed to be innocent."

[26] Following a review of the jurisprudence on this issue, Justice Boswell in R. v. Mok, supra, at paragraph 66 concluded that while detainees have a lowered expectation of privacy while in police custody, "it is reasonable for detainees to expect at least some minimal level of privacy, notwithstanding being taken into custody, particularly when the presumption of innocence remains in place."

[27] Justice Boswell in R. v. Mok, supra, paragraph 72, rejects the argument that advising a detainee that their movements and activities in the cell are under surveillance is a complete answer to an alleged s. 8 breach. He concludes that if notification was all that was necessary to justify a search, then the balancing of individual rights and the interests of the state would again be undermined. However, Justice Boswell also points out at paragraph 73, that the detainee's knowledge that the area is under surveillance may be an important factor where there is evidence that the detainee had a choice as to whether to use the toilet and the manner in which they use it.

Ms. Griffin's Expectation of Privacy

[28] Ms. Griffin testified, and I accept, that privacy was important to her. Nonetheless, she was aware of the camera and was aware that her activities in the cell were being recorded, including the use of the toilet. I do not accept her evidence that she did not know that the police were recording her use of the toilet. This is contrary to her affidavit evidence and contrary to what she had been told by P.C. Winiarski. Ms. Griffin was also aware that the cell was open to the outside. For all of these reasons, she asked to use another toilet.

[29] Ms. Griffin testified that she would have tried to avoid urinating at all if she had known that it would become part of the public record. Ms. Griffin was in police custody for close to 3 hours. It is reasonable to assume that at some point the need to urinate would overcome any embarrassment she may have about being recorded. Ms. Griffin had no choice but to use the cell toilet. All she could do was make the best of it by exposing as little of herself as possible. On the evidence before me, I am satisfied that Ms. Griffin had a subjective expectation of privacy, albeit extremely low, given her awareness of her situation. Moreover, for the reasons stated by Justice Boswell in R. v. Mok, supra, at paragraph 66, I am satisfied that this expectation was objectively reasonable.

Reasonableness of police conduct

[30] The next issue to be addressed is whether the state's conduct was an unreasonable infringement of Ms. Griffin's expectation of privacy, no matter how low. The reasonableness of the OPP's practice of videotaping all activity in the holding cells must be viewed in light of four Coroner's Inquests that have recommended such practices. As observed by Justice Boswell at paragraph 76 in R. v. Mok, supra:

"Sometimes bad things happen when a person is in custody. Sometimes detainees attempt to hurt other detainees. Sometimes they attempt to hurt the police officers charged with their care. Sometimes they allege police brutality. Sometimes they attempt to hurt themselves. Sometimes they suffer from a medical emergency. The ability of the police to monitor detainees in their cells is an important one in terms of ensuring the safety of the detainee and others coming into contact with him or her."

[31] Defence counsel argues that the Crown's rationale for recording Ms. Griffin's activity in the cells is undermined by the fact that no one was actually watching or monitoring her to ensure her safety. I do not accept this submission. An accurate and complete record of all activity in police cell is an important safety tool. It preserves evidence of any police or prisoner misconduct; it acts to deter police officers from abusing prisoners; and it protects officers against false allegations of police brutality.

[32] I am satisfied on the evidence of Inspector Jevons that the OPP's practice of recording all activity in the cells is based on sound and valid public policy principles. The practice is meant to ensure the safety of officers and prisoners. The fact that the equipment was broken and that Ms. Griffin was recorded, but not monitored, does not diminish the value of the practice. The OPP are correct in taking the recommendations of four separate Coroner's Inquests seriously and implementing the practice across the province.

[33] On the other hand, the court must still consider whether the manner in which legitimate public policies are implemented infringe on the accused's s. 8 rights. In R. v. Mok, supra, at paragraph 77, Justice Boswell concluded that the worthiness and reasonableness of videotaping everything that happens in a detention cell for safety reasons does not justify the surveillance and recording of the use of the toilet in the cell. He recommended that police use a modesty screen to protect the lower part of a person's body while using the toilet. He held that using such a device would not significantly hamper the ability of the police to monitor the health and safety of anyone inside the cell while at preserving the dignity and bodily integrity of the detainee.

[34] At paragraph 81, Justice Boswell concluded as follows:

"I agree with the trial judge's conclusion that the monitoring and videotaping of detainees using the cell toilet by police officers of either gender is a 'highly intrusive invasion of privacy'. On the other hand, the state's legitimate interests in monitoring cells for safety and preservation of evidence are not so compelling that they ought not to give way to at least a modesty screen that partially blocks the camera's view of the toilet. The detainee's expectation of privacy in the cell area is not so significant as to warrant a finding that any surveillance is inappropriate. But it is sufficient to require that the police do not monitor and record the use of the toilet by detainees."

[35] In the result, I find that although Ms. Griffin's expectation of privacy in custody was greatly reduced, she nonetheless had the right to a modicum of privacy while using the toilet. Notwithstanding the police's legitimate interest in monitoring and recording cell activity, they should at least have given her visual privacy by using a screen or a blanket to cover herself as suggested by Justice Boswell in R. v. Mok, supra. In failing to do so, they breached Ms. Griffin's s. 8 rights.

3. Should the charges be stayed pursuant to s. 24(1)?

[36] The applicant requests a stay of proceedings on the basis that this is the only remedy that will properly address the state's misconduct and ensure that it does not continue in the future. Moreover, a stay in these circumstances will not offend society's sense of justice. The Crown resists such a remedy as this is not one of the "clearest of cases" where a stay is warranted.

[37] A judicial stay of proceedings is an exceptional remedy reserved for the clearest of cases. The legal principles applicable to a request for a stay of proceeding were summarized by the Ontario Court of Appeal in R. v. Zaringchang, 2010 ONCA 286 at paragraph 57:

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

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

   (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.

[38] The case before me falls into the residual category of cases: State conduct that contravenes fundamental notions of justice, which undermines the integrity of the justice system.

In R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 Justice Lebel held at paragraph 53:

"A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: 'that ultimate remedy', as this Court in Tobiass, supra, at para. 86, called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: 'the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the 'clearest of cases'."

[39] In the circumstances of the case before me, I am not satisfied that a stay is an appropriate remedy. I come to this conclusion because of the following factors:

[40] First, the OPP's practice of monitoring and recording all activities in police holding cells is based on sound public policy. Four separate Coroner's juries have recommended this practice.

[41] Two, the officers who dealt with Ms. Griffin were respectful of her personal dignity and tried to give her as much privacy as possible. For example, only female officers conducted pat down searches of Ms. Griffin. More importantly, no one observed Ms. Griffin as she was using the toilet. P.C. Winiarski moved away from the cell and returned only when Ms. Griffin was finished. The use of the toilet only came to light as a result of disclosure of the DVD. While it is part of the record, only a few select individuals have had access to the DVD or seen its contents. The DVD is also subject to a publication ban to further protect Ms. Griffin's privacy.

[42] Three, while this is not a case of first instance, at the time of Ms. Griffin's arrest on September 15, 2012, the law on this issue was not settled. Indeed, the law is still in a state of uncertainty. The trial decision in R. v. Mok, was released on May 3, 2012, three months prior to Ms. Griffin's arrest. The summary conviction appeal decision of that case by Justice Boswell was released on January 7, 2014 and is now under appeal to the Ontario Court of Appeal. R. v. King, [2012] O.J. No. 2574, a trial decision from this jurisdiction, was released on May 31, 2012. In that case, Justice Cooper held that the OPP practice of videotaping the use of cell toilets violates the accused's right to privacy. However, he was not prepared to enter a judicial stay as the police needed time to be apprised of the concerns raised by the courts and to reassess their practices. On September 25, 2012, Justice Zabel (OCJ) ruled in R. v. Teixeira, that the practice did not violate the accused's s. 8 rights.

[43] Four, based on the affidavit of Inspector Jevons, I am satisfied that the OPP are taking this matter seriously. The OPP has made changes to its practices in accordance with the recommendations of Justice Boswell in R. v. Mok, supra. As stated previously, the practice of videotaping cell activity was implemented as a result of recommendations from four Coroner's juries. It is therefore not unreasonable for the OPP to wait for guidance from the appellate courts before making changes to their practices. This is not a case where a stay is required to ensure that state misconduct does not continue in the future.

[44] Five, I am not satisfied that the misconduct by the police is sufficiently serious to warrant a stay when weighed against the public's interest in having these charges resolved on their merits. Drinking and driving offences are serious and there is a high expectation in the community that such charges will be tried on their merits. Given Ms. Griffin's greatly reduced expectation of privacy, I do not view this as one of those rare cases where continued prosecution would offend society's sense of justice. Accordingly, her application for a judicial stay is dismissed.

4. Should the evidence of the breath tests be excluded pursuant to s. 24(2)?

[45] Ms. Griffin argues in the alternative that the breath test results should be excluded from the trial as they were obtained in "a manner" that infringed her s. 8 right to privacy. She relies on the case of R. v. Deveau, [2013] O.J. No. 5424 (O.C.J.) wherein the trial judge dismissed an application for a stay, but excluded the evidence of the breath tests because the police had videotaped Ms. Deveau using the toilet in the holding cell. I agree with Justice Harpur in R. v. Deveau, supra, that there is a sufficient nexus between the state's misconduct and the obtaining of the evidence that a remedy under s. 24(2) is available. However, for the reasons stated herein, I am not satisfied that the evidence should be excluded in the circumstances of this case.

[46] An application to exclude evidence entails an assessment of the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society's interest in the adjudication of the matter on its merits.

[47] At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[48] As already stated, the OPP's practice of recording all activity in the cells is based on sound public policy principles. The fact that no one monitored Ms. Griffin does not undermine the validity of the practice. Rather, the fault lies in the manner in which these policies were implemented. In failing to provide a screen or some other covering to give Ms. Griffin visual privacy from the camera, the police violated her s. 8 rights. Nonetheless, I am satisfied that Constable Winiarski acted in good faith and in accordance with well-founded safety policies that were in place at the time. This was not serious Charter-infringing misconduct.

[49] The second factor to consider is the impact of the breach on the Charter-protected interests of the accused. This calls for an evaluation of the extent to which the breach actually undermined the interests protected by the Charter. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[50] Section 8 aims to protect Ms. Griffin's personal human dignity. An infringement of that privacy is a serious matter. On the other hand, in the circumstances of this case, the state's misconduct did not significantly impact on Ms. Griffin's Charter-protected rights. Ms. Griffin knew she was being recorded and exposed as little of herself as possible. Indeed, the camera captured Ms. Griffin's bare buttock for only a fleeting moment. As already pointed out, no one observed Ms. Griffin as she was urinating. Her use of the cell toilet was recorded and disclosed as part of the evidence in this case. Accordingly, it was observed by only a few individuals. The impact on her privacy is further lessened by the publication ban I imposed on the DVD. I regard the impact of the state's misconduct on Ms. Griffin's privacy rights to be negligible. This favours inclusion of the evidence.

[51] Lastly, the court must consider society's interest in the adjudication of the matter on its merits. The carnage caused by drinking and driving cases on our roads is well known. The community has a strong interest in an adjudication of these cases on their merits. The Intoxilyzer test results are presumptively reliable and are essential to the Crown's proof of the "over 80" charge. This must be weighed against Ms. Griffin's considerably lowered expectation of privacy while at the police station. I find that this factor favours inclusion of the evidence.

[52] On a consideration of all of the Grant factors, I am satisfied that the admission of the breath test results will not bring the administration of justice into disrepute. Accordingly, the Certificate of Analysis and the evidence of P.C. Aspden are admitted at trial.

III. TRIAL ISSUES

Count 1: Impaired Operation of a Motor Vehicle

[53] Has the Crown proven beyond a reasonable doubt that Ms. Griffin operated her motor vehicle while impaired by alcohol? On all of the evidence before me, I am not so satisfied.

[54] In the early morning hours of September 15, 2012, Mr. Joseph Pellegrino was driving west-bound on the Queen Elizabeth Way from Kipling Avenue in Toronto towards Oakville when he observed a Lexus motor vehicle travelling in the same direction ahead of him. The vehicle caught his attention because it was weaving between lanes and straddling the lines marking the lanes. The speed of the Lexus was approximately 120 to 130 km/h. Traffic on the highway was light.

[55] Mr. Pellegrino called 911 and notified the police of what he was observing. The tape of Mr. Pellegrino's conversation with the 911 operator was recorded and produced as an exhibit. Mr. Pellegrino told the 911 operator that it appeared to him that the driver of the Lexus was, "either on his phone or texting or he's had too much to drink." Mr. Pellegrino testified he did not see the driver of the Lexus and did not see the driver use a cell phone.

[56] Mr. Pellegrino followed the Lexus to the Kerr Street exit where he reported to the 911 operator that it "blew the stop sign" at the top of the exit ramp. In cross examination he conceded that the vehicle slowed down before proceeding through the intersection and that there were no on-coming vehicles. Mr. Pellegrino continued to follow the car to the intersection of Dorval Drive and Old Abbey Lane, where it stopped at the red light. When the light turned green, the Lexus proceeded normally through the intersection and continued driving on Dorval Drive until it was stopped by the police.

[57] OPP Constable Winiarski testified that he stopped Ms. Griffin at 2:27 a.m. as she drove on Dorval Drive. He followed her for less than a kilometer before stopping it on Monastery Drive. He testified that he observed the Lexus weaving slightly within its lane of travel but conceded that this was not in his notes and that he observed the car for only a short time.

[58] P.C. Winiarski testified that when he spoke to Ms. Griffin at her car, he observed that she had an odour of alcohol on her breath and she had glassy eyes with dilated pupils. She admitted to consuming two glasses of wine. He saw a bottle of white wine on the floor behind the driver's seat. On the basis of these observations, he was suspicious that she was operating a motor vehicle with alcohol in her blood and he made demand for a sample of her breath into an approved screening device. Ms. Griffin was polite and cooperative and provided a sample of her breath which registered a "fail". On this basis P.C. Winiarski had reasonable and probable grounds to believe that Ms. Griffin had a blood alcohol concentration of more than 80 mg of alcohol per 100 ml of blood and at 2:35 a.m. he arrested her for this offence. He then made a demand for a breathalyser test and transported her to the OPP detachment in Burlington to complete the tests.

[59] Sgt Belinda Rose of the OPP also responded to the 911 call. She attended at Dorval and Monastery Road shortly after P.C. Winiarski. She conducted a pat down search of Ms. Griffin. She did not smell any alcohol on Ms. Griffin's breath and did not observe any symptoms that would be consistent with impairment by alcohol.

[60] Ms. Griffin was transported to the Burlington OPP detachment and was placed in a holding cell while she waited to speak to a lawyer and provide samples of her breath. Ms. Griffin was in the detachment from approximately 3:05 a.m. until her release at about 5:25 a.m. Constable Winiarski testified that Ms. Griffin remained polite and cooperative and that he did not observe any additional symptoms of impairment during this time.

[61] OPP Constable Aspden is a qualified breathalyser technician. She conducted two breathalyser tests on Ms. Griffin which were also video recorded. The first one was at 3:59 a.m. and resulted in a reading of 130 mg of alcohol per 100 ml of blood. The second test was at at 4:21 a.m. and it resulted in a reading of 120 mg of alcohol per 100 ml of blood. P.C. Aspden testified that during her interactions with Ms. Griffin, she observed her to have an odour of alcohol on her breath and watery and glassy eyes. P.C. Aspden did not observe any other symptoms of impairment and described Ms. Griffin as polite with normal demeanour.

[62] Other than while was speaking in private with duty counsel, Ms. Griffin's detention at the OPP station was video recorded almost in its entirety. I observed Ms. Griffin's comportment at the detachment as recorded on the videotape. She did not appear to have any problems with mobility or balance. She spoke clearly and coherently and appeared very much aware of her surroundings.

[63] Case law establishes the following general legal principles in impaired driving offences:

• The Crown has the onus of proof beyond a reasonable doubt that the accused's ability to drive is impaired to some degree by alcohol or a drug.

• The impairment of the ability to drive must be caused by the consumption of alcohol or a drug.

• The impairment of the ability to drive need not be to a marked degree, and any degree of impairment will be sufficient proof of the offence.

• Observations of the accused's conduct can amount to proof of impairment of the ability to drive, if those observations establish a sufficient departure from conduct of unimpaired or normal individuals. Inference of any degree of impairment of the ability to drive can reasonably be drawn from conduct that exhibits a marked departure from the norm.

• When the Crown is relying on circumstantial evidence to prove impairment, all evidence must be considered, including physical symptoms, conduct and manner of driving. Items of circumstantial evidence are not to be viewed in isolation. The entirety of the evidence must be considered, including evidence of non-impairment, in determining whether the Crown has discharged its onus.

• Where circumstantial or equivocal evidence is relied on to prove impairment of ability to operate a motor vehicle, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment to drive, slight or otherwise.

(See: R. v. Stellato, [1994] 2 S.C.R. 478; R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (ABCA), leave to appeal to SCC refused [1996] S.C.C.A. No. 115; R. v. McKenzie, [1955] A.J. No. 38 (Dist. Ct.); R. v. Singh [1997] O.J. No. 1164 (OCJ – GD); R. v. Palanacki, [2001] O.J. No. 5194 (SCJ))

[64] The Crown relies on the evidence of Mr. Pellegrino regarding the manner in which Ms. Griffin operated her motor vehicle and argues that this is a marked departure from normal driving. The Crown also points to Ms. Griffin's physical symptoms of impairment as observed by P.C. Winiarski and P.C. Aspden. Mr. Metzler argues that the Crown's evidence is equivocal and does not rise to the level of proof beyond a reasonable doubt.

[65] I am not satisfied beyond a reasonable doubt that Ms. Griffin's ability to operate a motor vehicle was impaired by the consumption of alcohol. I agree with defence counsel's submissions that the Crown evidence is equivocal, and when considered along with evidence of non-impairment, it is not sufficient to prove the offence beyond a reasonable doubt.

[66] The odour of alcohol on Ms. Griffin's breath establishes that she had consumed alcohol at some point prior to being stopped by the police. The only physical symptom consistent with impairment was her glassy, watery eyes. However, I must weigh that evidence against other evidence tending to show non-impairment, such as her normal speech, comportment, balance, dexterity and awareness.

[67] The Crown also relies on the evidence of Mr. Pellegrino regarding the manner in which Ms. Griffin drove her vehicle. His testimony that the Lexus was weaving on the QEW is capable of establishing that Ms. Griffin drove her car in a manner that was a marked departure from what we expect of normal or unimpaired drivers. However, Mr. Pellegrino testified that he wasn't sure if the Lexus was weaving because the driver was texting, or was on the phone, or had been drinking. His observations could support each one of those inferences and I am left in doubt by this evidence.

[68] Mr. Pellegrino also observed fairly normal driving. For example, he reported to the 911 operator that the speed of the Lexus was normal. I agree with him. Speeds of 120 to 130 km/h on the QEW are not a marked departure from the norm, especially when traffic is light. Ms. Griffin also did not stop at a stop sign. However, she slowed down before entering the intersection and there were no oncoming vehicles. Given the time of day, I do not consider this to be a marked departure from normal driving practices.

[69] On considering the entirety of the evidence, including the evidence of non-impairment, I am not satisfied beyond a reasonable doubt that Ms. Griffin's ability to operate a motor vehicle was impaired by alcohol. Count one dismissed.

Count 2: Driving with Over 80 mgs of Alcohol

[70] Counsel for Ms. Griffin conceded that if the evidence of the breath test results is admissible, then the Crown has proven this count beyond a reasonable doubt. I have ruled that the evidence is admissible.

[71] Ms. Griffin provided two suitable samples of her breath into an approved instrument. The first sample was taken at 3:59 a.m. and resulted in a reading of 130 mg of alcohol per 100 ml of blood. The second sample was taken at 4:21 a.m. and resulted in a reading of 120 mg of alcohol per 100 ml of blood. I am satisfied that the samples were taken in accordance with the conditions set out in s. 258(1)(c) of the Criminal Code and that Ms. Griffin was operating her motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood. There is a finding of guilt on count two.

Released: April 22, 2014

Signed: Justice M. Speyer

[1] On January 28, 2014, I ordered a ban on the publication of this videotape.

[2] R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44 (SCJ)