Court File and Parties

Court File No.: Central East - Newmarket 13-05964 Date: 2014-06-02 Ontario Court of Justice

Between: Her Majesty the Queen — and — Alex Arbelo

Before: Justice P.N. Bourque

Judgment Released on June 2, 2014

Counsel:

• Shambavi Kumaresan for the Crown
• Elm G. Schmid for the Applicant

BOURQUE J.:

Overview

[1] The defendant defends this charge of driving with excess alcohol (on August 2, 2013), by raising two Charter issues, namely: that his section 8 and 9 rights were violated as the officer did not have the requisite authority to stop his vehicle and detain him, and in addition, a video taken of him while in the cells of the police station (while using the toilet) breached his section 8 rights.

P.C. Sirr

[2] P.C. Sirr is a York Regional Police officer with less than a year's experience. He was on general patrol doing traffic duties while uniformed in a marked police cruiser. He stated that he saw a motor vehicle moving at a high rate of speed (he did not clock the speed but felt it was in excess of the speed limit) and he followed him through several suburban streets. He decided to stop him to speak to him about his driving and he activated his lights. He stated that at the same time, the defendant slowed to a stop.

[3] He went up to the defendant's car and spoke to the driver who had gotten out of his car before the officer arrived. In the conversation, the defendant said that he had consumed two beers and his last drink was 30 minutes to one hour ago. The officer smelled an odour of alcohol and noticed that the defendant's eyes were red. The officer had a belief that the defendant had alcohol in his body and he made a demand for a breath sample. Due perhaps to his inexperience, the officer read him the Breathalyzer demand and not the roadside demand. The officer had a conversation with the defendant about the ramifications of not taking the breathalyzer test. The defendant consented to take the test and the device registered a fail.

[4] The officer felt he had grounds to arrest the defendant for driving with excessive alcohol, and he arrested the defendant, gave him his rights to counsel, caution and breath demand.

[5] The officer transported the defendant to the station and lodged him in a cell. He called duty counsel and the defendant spoke to duty counsel before being turned over to the breath technician. The defendant was returned and the officer then served documents upon the defendant including a copy of the breath certificate. The readings on the certificate were 120 milligrams of alcohol in 100 millilitres of blood.

[6] The certificate was tendered into evidence for the truth of its contents subject only to the charter challenges noted above.

[7] Filed as Exhibit 2 was an in-car video showing a partial view of the officer following the defendant's car and all of the interaction at the roadside. It shows the officer and the officer coach stopping behind the defendant's car which had stopped. The defendant is seen getting out of the car as the two officers approach and while he faces the officers for a moment, he begins to walk away from the front of his car. One of the officers clearly touches his arm when the defendant has turned away and the defendant turns back and engages the officers. Of some note is the conversation between the defendant and the officers, and specifically the defendant (after being given the breathalyzer demand) where the defendant actually denies that he had been driving the motor vehicle. Such an obvious attempt to mislead at the scene impacts negatively on his credibility.

[8] The officer stated that reason that he was followed and stopped was because of his speeding in a suburban neighbourhood. The officer admitted that as he had not been able to clock the vehicle, he would only have given the defendant a warning. The officer believed that the speed limit in the suburban neighbourhood was 40 kilometers an hour but he did not know for sure. He also, in his notes, at the end of the drive indicated that the defendant was "driving fine". It was the officer's evidence that the reference to "fine" was regard to issues such as weaving, for the purpose of whether there were issues of impaired driving. The officer indicated that the video system only recorded the events 30 seconds before he put on his emergency lights. The speediest portion of the driving was before the recording started. When queried as to why he waited to put on his emergency lights, the officer indicated that it was part of his training that he not put on his lights until he was closer to the subject car as it may just try to flee. He also indicated (and I believe it is borne out on watching the video) that he was having some difficulty in getting close to the subject vehicle.

[9] As the officers interacted with the defendant, and there was a smell of alcohol, the officers then continued with an investigation for drinking and driving.

[10] The officer was asked about the scene at the police station and specifically his knowledge of the video recording system. He described it as covering the individual cells, the hallways, the sally port and the booking area. He described that the view of the cell included a view of the sink and toilet. The prisoner in the cell would be seen using either. He noted that the video system has subsequently been changed so that the view of the toilet area of the cell is blocked out. He also believed that the video was made for prisoner and officer safety but this witness does not know all the policy reasons behind the video nor does he know all of its working details.

Alex Arbelo

[11] The defendant gave evidence by way of an Affidavit sworn February 11, 2014, and viva voce testimony. It was his testimony that he was not speeding and that he voluntarily stopped his car to see why the police were following. He stated that notwithstanding his stated reason for stopping, he "had to walk away". He complains of being forcefully pulled back by the police.

[12] The defendant also spoke of being "shocked and appalled" when he found out later he was being videotaped using the toilet. He said he felt humiliated and degraded, and if he had known about the videotaping, he would have asked to use another toilet. He denied knowing anything about the videotaping when he was at the police station.

Were the defendant's section 8 rights infringed at the time of the stopping?

[13] The defendant argues that the officers did not have any reason to stop the defendant and detain him. Without such reason, the stop was arbitrary and therefore following the logic set out in R. v. Mughal, there is a section 9 breach (unreasonable detention) and the evidence of the breath readings should be excluded under sec. 24(2) of the Charter.

[14] The officer did indeed state why he stopped the vehicle, that is, he felt that the defendant was speeding and wanted to stop him and give him a caution. He also stated that when he stopped him, he would as a matter of course, check his licence, ownership and insurance. The defence points out several reasons that I should not accept the officer's evidence, including: he did not stop the defendant right away but followed him for a period of time before stopping.

[15] I accept the officer's evidence as to why it took a little time for him to get close enough to the subject vehicle to put on his lights and stop him. I do not accept that this time was such as to put in doubt the officer's stated reason for stopping the vehicle.

[16] I accept the officer's evidence that he thought the defendant was speeding. I don't need to reject the defendant's assertion that he was not speeding, but if I had to, I would do so. The defendant told an obvious lie to the police officers (noted above). He only relented in his lie when the officers told him he was on a video recording.

[17] In any event, the officer's assertion was not shaken and in my opinion, he had reasonable grounds. In my opinion, the stopping was entirely lawful under the Highway Traffic Act, as was the subsequent interview to obtain the defendant's ownership, licence and insurance documents. As this was progressing lawfully, the officers were justified in detaining the defendant as this was proceeding. As the defendant answered affirmatively to the question as to whether he had been drinking, and the officers could smell alcohol, the officers were also justified in shifting the focus of their attention to the issue of whether there was a drinking and driving offence.

[18] I also note the case of R. v. Ladouceur, where random stopping of motor vehicles by the police for the investigation of sobriety and driving related offences while arbitrary is saved by section 1 of the Charter. As long as it is focused and brief and is not done for reasons of race, gender or other invalid purpose, and that is not the case here.

[19] In its totality, I do not see how there has been any breach in the defendant's section 8 or 9 rights. The stopping was lawful and the investigation was, in my opinion being carried out in a lawful fashion.

[20] I dismiss this application by the defendant.

[21] During the investigation, the officer indicated that he believed that the defendant had been consuming alcohol and, in fact, the defendant said he had consumed two beers. The fact that the officer indicated that he believed that the defendant may have had more than 80 milligrams of alcohol in his blood does not affect what was essentially a reasonable suspicion that the defendant had alcohol in his body. There would, of course, be little practical purpose in having the driver blow into the roadside device if it was not possible that he also might be over the legal limit.

[22] I also note that the officer read the breathalyzer demand when he should have read the demand for the ASD. As the defendant complied and provided a sample, I do not think that anything turns on this. It may have been different if the defendant refused to provide a roadside sample and was charged for that offence.

Does the video of the defendant in the cell using the toilet violate his section 8 rights?

[23] The evidence discloses that a video was taken of the defendant while he was in his cell and standing in front of the toilet and probably urinating. The video is from the side and back and at no time are his genitals visible. The defendant did not pull down his trousers. No underclothing is visible. The camera itself is on the ceiling of the cell. I accept the defendant's assertion that he was humiliated.

[24] In coming to a conclusion in this matter, I believe that I am compelled to follow the decision in R. v. Mok, that the videotaping of a person in a prison cell while going to the toilet is a violation of their section 8 right to privacy. Boswell J. stated at paragraph 77:

In my view, the worthiness and reasonableness of videotaping everything that happens in a detention cell for safety reasons does not necessitate the surveillance and recording of the use of the toilet in the cell. The use of a modesty screen that protects the lower part of a persons body while using the toilet would not significantly hamper the ability of the police to monitor the health and safety of anyone inside the cell. At the same time it would preserve the dignity and bodily integrity of the detainee.

[25] Indeed, the same conclusion was reached in R. v. Deveau. Even though in our case there was no exposure of the private parts of the defendant to view, I feel that the thrust of the case law is to consider the essential dignity of the individual and the essential need for privacy when performing such private functions. All the cases weighed this need for human dignity against the legitimate needs of the police to monitor detainees, and it is clear that in the circumstances of a person being held in custody during the investigation of a drinking and driving offence, the need for human dignity and privacy (as expressed in Section 8) outweighs these other factors.

There is a breach of the section 8 right to privacy, what is the remedy?

[26] The cases cited to me indicate that there are two possible remedies, namely a stay, or an exclusion of the breath test results under section 24(2).

[27] In R v. Mok, while the Ontario Court and the Superior Court disagreed on the final outcome, they implicitly agree that a stay is the only remedy. I note that in both levels of court, any alternative remedy is not even discussed.

[28] With regard to a stay, I must decide whether this is the "clearest of cases" which would warrant a stay. The factors favouring a stay are as follows:

(a) There is a section 8 breach

(b) This is not the first case in Ontario (R. v. Mok in the Ontario Court of Justice, R. v. King, R. v. Smith).

[29] I accept the defendant's evidence that he was not aware (either through not being told or too upset to have the information register on him) that he was being videotaped in the cell.

[30] The factors which would not lead to a stay are as follows:

(a) Of all the cases cited, this situation was in my opinion the least undignified scene.

(b) The view of the defendant was from behind and there was no view of underclothing or any private parts

[31] As a result of the Superior Court decision in R. v. Mok (released in January, 2014), the police have modified their video system and the toilet area is blurred to reduce significantly the loss of dignity.

[32] As stated in R. v. Lebel: "...A stay is reserved for only those cases of abuse where a very high threshold is met: ....the clearest of cases".

[33] Taking all of these factors into account, I do not think that this reaches that level of the clearest of cases and I do not enter a stay.

[34] The defendant argues that in R. v. Deveau, Harpur J. accepted that there was a significant enough nexus between the breach and the taking of the breath results that he could consider the remedy of an exclusion of the breath results. In our case, the only possible nexus is the fact that the breach occurred before the breath tests. That may be so, but the breach did not in any way lead to the taking of the breath test (such as a demand lacking in reasonable and probably grounds) or an essential step in taking the breath test (providing rights to counsel and an opportunity to consult with counsel). As I have noted, Mok, does not even consider it as a remedy. I do not believe that it is a remedy.

[35] I am prepared, however, to consider that I may be incorrect in my assessment and will consider, on the assumption the remedy is available, whether I should exclude the breath test results.

[36] Using the analysis in R. v. Grant, I first consider the seriousness of the breach. It is serious. The fact that the police, as a result of the Superior Court Decision in Mok are changing their procedures is proof of the seriousness of the breach, but it is also proof that the police are prepared to accept the directions of the court and change their procedures. I contrast their attitude to this issue as opposed to their historical difficulty in maintaining police station videos. On balance, I take their change of video procedure as on balance a positive one for the Grant analysis.

[37] The second item is the seriousness of the breach upon the Charter protected interests of the defendant. In this regard, while serious, I point out that this is a much less serious set of facts than in Mok or Deveau.

[38] Finally, on the third inquiry, the courts have long considered breath test results to be reliable evidence and the risk of error inherent in depriving the trier of fact of the evidence. It is clear that a greater intrusion upon a person's bodily integrity will blunt the admissibility of this reliable evidence.

[39] On balance, I feel that all of these factors would lead to an inclusion of the breath test evidence, not its exclusion.

Conclusion

[40] I have not found a section 9 breach (the validity of the detention). I have found a section 8 breach (the video of the cell), but I have found this not to be the clearest of cases where a stay is appropriate. I also feel that if the remedy of exclusion is available, I would not exclude the evidence upon the section 24(2) analysis.

[41] The Charter applications having failed, I find the defendant guilty of the offence of operating a motor vehicle on August 2, 2013 with a blood alcohol level of 120 milligrams of alcohol in 100 millilitres of blood.

Signed: "Justice P.N. Bourque"

Released: June 2, 2014