Court File and Parties
Date: December 1, 2014
Court File No.: 13-8960
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Shawna Orenchuk
Before: Justice Paul F. Monahan
Heard on: October 28, 2014
Judgment Released on: December 1, 2014
Counsel:
- Ms. A. MacArthur, for the Crown
- Mr. A. Little, for the defendant Shawna Orenchuk
MONAHAN J.:
Introduction and Overview
[1] Ms. Shawna Orenchuk is charged that on or about September 11, 2013 she had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code (the "Code").
[2] On October 27, 2014, the accused brought an application to stay the prosecution on the basis that her rights under s. 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") had been violated; namely the right to be tried within a reasonable time. For oral reasons delivered by me on October 27, 2014, I dismissed the s. 11(b) application.
[3] Thereafter, the trial of this case was heard before me on October 28, 2014.
[4] At trial, Ms. Orenchuk brought a further Charter application. The written application filed with the Court sought a stay of the prosecution under s. 24(1) of the Charter or to exclude evidence under s. 24(2) of the Charter on the basis that her rights under ss. 7, 8, 9, 10(a) and 10(b) of the Charter had been violated. In the alternative, Ms. Orenchuk sought a remedy under s. 24(1) for an order that the Crown not be able to rely on the presumption of identity under s. 258(1)(c) of the Code.
[5] A blended trial and Charter voir dire was held. Ms. Orenchuk testified only on the Charter voir dire. The defence called no evidence on the trial proper.
[6] During closing submissions at trial, defence counsel advised that he was abandoning all of the remaining Charter arguments except for one: namely that there had been a s. 8 Charter violation and that there should be a s. 24(1) Charter remedy of a stay of proceedings or, in the alternative, an order that the Crown should not be able to rely on the presumption of identity under s. 258(1)(c) of the Code. The basis for the submission that there should be a s. 24(1) remedy was that the police had videotaped Ms. Orenchuk using the toilet while she was in the cell at the police station. In the video recorded in the holding cell which was marked as an exhibit at trial, Ms. Orenchuk's buttocks and pelvic area are briefly exposed.
[7] Defence counsel also submitted in closing argument that there could be no exclusion of evidence under s. 24(2) as the videotaping occurred after the breath samples had already been given. He stated that he could not demonstrate that the evidence had been "obtained in a manner" that infringed his client's Charter rights.
[8] Finally, defence counsel submitted that in the event that the Court did not grant either of the two Charter remedies sought then, based on the evidence on the trial proper, the Court should find the accused guilty of the offence of "over 80" as charged. He further submitted that in the event of a conviction, no more than the mandatory minimum penalties should be imposed.
[9] The Crown acknowledged that by reason of the videotaping of Ms. Orenchuk while she was using the toilet in the cell, there had been a s. 8 Charter violation of Ms. Orenchuk's rights. The Crown submitted that a stay was not warranted under s. 24(1) and that no other remedy should be granted to Ms. Orenchuk.
[10] In summary, the principal issues before me are whether the parties are correct when they submit that there was a s. 8 violation of Ms. Orenchuk's rights and, if so, what remedy, if any, should be granted for the Charter violation.
Facts
[11] The facts are not contested. On September 11, 2013, Constable Brandon Stratham and Constable Darren Peel, both of the Peel Regional Police force, were on patrol in the City of Brampton. At 1:47 am, they noticed a vehicle in the Dixie Road and Clark Boulevard area traveling 40 km an hour in a 60 km/h zone. The vehicle had apparently made an abrupt lane change.
[12] Constable Stratham was concerned about sobriety, the slow speed and the abrupt lane change and so the police pulled the vehicle over. The accused, Ms. Orenchuk, was driving the vehicle. Constable Stratham spoke to Ms. Orenchuk. He noticed that she had watery bloodshot eyes and he detected a strong odour of an alcoholic beverage on her breath. The arresting officer formed a reasonable suspicion that the accused had alcohol in her body while operating a motor vehicle in the previous three hours and made a demand pursuant to s. 254(2)(b) of the Code that she provide a sample of her breath to allow a proper analysis to be made by an approved screening device. At 1:55 a.m., the accused did so and registered a "fail". She was placed under arrest for the offence of "over 80" contrary to s. 253(1)(b) of the Code. She was read her right to counsel, a caution was given to her and a breath demand made pursuant to s. 254(3)(a)(i) of the Code. There is no dispute that Constable Stratham had reasonable and probable grounds for the arrest and the breath demand.
[13] The accused was taken to Peel 21 Division. The accused spoke to duty counsel. Thereafter, at 3:04 a.m. and 3:27 a.m. respectively, she provided two breath samples in accordance with s. 258(1)(c) of the Code. The analysis of the breath samples was made by an approved instrument operated by a qualified technician. The readings on the first and second breath samples were 180 mg of alcohol in 100 ml of blood and 160 mg of alcohol in 100 ml of blood respectively.
[14] At 3:05 a.m., after the first breath sample was given but before the second one was given, Ms. Orenchuk was permitted to use the bathroom in the lodging area. It is common ground that this is a private bathroom which is not subject to videotaping.
[15] After both breath samples had been given, Ms. Orenchuk was placed in a holding cell. At 4:10 a.m., she was served with the certificate provided for under s. 258(7) of the Code.
[16] As noted above in the introduction and overview, it is admitted by the defence that the foregoing facts constitute proof beyond a reasonable doubt that all of the elements of the offence of "over 80" contrary to s. 253(1)(b) are made out. The only issue is whether the alleged s. 8 Charter violation should give rise to the issuance of a stay of proceedings or an order that the Crown cannot rely upon the presumption of identity contained in s. 258(1)(c).
Facts on the Charter Voir Dire
[17] Two witnesses testified on the voir dire: Staff Sergeant Scott Clair and Ms. Orenchuk. I have no issue with the credibility of either of these two witnesses and accept their evidence as the facts on the voir dire for the purpose of considering Ms. Orenchuk's s. 8 Charter violation claim.
[18] Sergeant Clair has been with the Peel Regional Police since 1987. He attained the rank of Sergeant 9 to 10 years ago and he has been Staff Sergeant at 21 Division since June 2013. He testified that he did not think he had any direct involvement with Ms. Orenchuk's detention at 21 Division but he was not sure.
[19] Sergeant Clair testified as to the practice of video monitoring and recording of persons in custody at 21 Division. He testified that 21 Division was a new division in or about 2008 and that from the time that 21 Division opened, prisoners were video monitored (but not initially video recorded) in the cells. He noted as well that Peel's 22 Division has been video-monitoring prisoners since at least 1987. The video recording (as opposed to mere monitoring) of prisoners at 21 Division started in September 2009 and continues to the present day.
[20] There are 12 cells at 21 Division which can house a total of 13 to 14 prisoners at one time. Three of the cells are for female prisoners.
[21] Sergeant Clair testified about a written policy concerning videotaping which covered 21 Division although the written policy was not marked as an exhibit at trial. He stated that the underlying reasons for the videotaping and monitoring were police and prisoner protection alike. He testified that the policy was that the monitoring and videotaping of the cells was to be operational at all times. Sergeant Clair did not know whether there were signs at 21 Division warning prisoners that they were being videotaped.
[22] He said that there were two monitors outside of the cell area: one was located on the Staff Sergeant's desk (occupied by Sergeant Clair or his alternate) and the other was on a desk just outside the Staff Sergeant's office which is monitored by a security console operator who is a civilian person. Apparently, all of the civilian security console operators at 21 Division are female, although the record is not clear as to how many were working there in September 2013. When the civilian security console operators are off-duty, they are replaced by male or female police officers. The monitoring screen in the Staff Sergeant's office and on the civilian security monitor's desk depicts the same thing. It shows all 12 cells on a split screen at one time.
[23] The policy does not require that female persons monitor only female prisoners and male persons monitor only male prisoners. Sergeant Clair said he thought there might be something in the policy that said "where practical" there should be monitoring of prisoners by persons of their same gender. He then went on to say that he did not think it was practical at 21 Division, since each of the monitor screens showed all of the cells.
[24] Sergeant Clair said that there was a general statement in the policy that police officers should be cognizant of a prisoner's personal privacy. There are no specific instructions on how the personal privacy of prisoners should be respected concerning videotaping and monitoring. From Sergeant Clair's perspective, he said that if the prisoner was using the toilet and that was apparent on the monitor screen then one would not permit other police officers involved in other business around the screens to be in a position to view the screen at that time. In addition, when he is responsible for monitoring, Sergeant Clair makes a point of not staring at the prisoner while they are using the toilet.
[25] Sergeant Clair indicated that when a physical search is done of a female prisoner, it is generally done by a female officer off-camera for privacy reasons. He did say that infrequently it does occur that an officer is involved in a physical search of a prisoner of a different gender than the officer.
[26] There are a number of rooms off the lodging area where persons in custody are first taken on arrival at 21 Division. There is a room where breath samples are taken and another room where persons can speak to counsel. There is also a private bathroom with a door which is not monitored or recorded by video. When persons like Ms. Orenchuk are brought in they can use the private bathroom in the lodging area while they are in the process of consulting counsel or giving breath samples. Sergeant Clair said that there are safety concerns with persons in custody in the lodging area using this washroom, but that it is nevertheless the practice to allow such persons to do so.
[27] After counsel is consulted and breath samples provided (if any), generally speaking, persons in the position of Ms. Orenchuk are placed in holding cells for varying periods of time, depending on their level of sobriety and other circumstances. Once prisoners are in the cell area, they have no other option than to use the toilet in the cell. They are not given the option of leaving the cells to use the toilet in the booking area. He said that given the number of prisoners there could be at any one time, it is not practical to give prisoners in the cells the option of using the private washroom in the lodging area.
[28] Sergeant Clair testified that a change in the monitoring and videotaping practices was implemented at 21 Division on January 22, 2014 (after the events of this case). He said that on that day he received an email from up the "chain of command" that the toilet areas in the cells had to be obscured. He said that this was as a result of a "court case". Accordingly, in the afternoon that day, he and a colleague used opaque scotch tape to block out the toilet area being monitored. I understood him to say that the opaque scotch tape was placed on the camera lens. The effect of whatever was done that day was to provide for the obscuring of the monitoring and videotaping of persons while they are using the toilets in the cells. By February 24, 2014, the information and technology persons responsible for 21 Division implemented a "technological fix". The effect of the technological fix was similar to the scotch tape solution. If the prisoner were sitting on the toilet in one of the cells they would be obscured from their head down to their feet. That is the system that remains in place.
[29] Prior to the email of January 22, 2014, Sergeant Clair was not aware of any privacy issues associated with the monitoring and videotaping of prisoners at 21 Division using the toilet while in the cells, although he indicated that he was not particularly close to the issue.
[30] Ms. Orenchuk also testified on the voir dire. She is 28 years old. She testified that she was not aware that there was any videotaping in the holding cells and that she was certainly not aware that there was any videotaping when she was using the toilet. She said that she only learned of the videotaping during the course of this proceeding when she watched the video at her lawyer's office. She said she was disgusted and upset by the video of her using the toilet. She said that if she had known that she was being videotaped, she would have asked to use the private washroom. She was upset that others had seen the video in the course of this proceeding.
[31] Ms. Orenchuk used the toilet twice when she was in the holding cell: once at approximately 4:49 a.m. and a second time at approximately 5:49 a.m. The videos of Ms. Orenchuk using the toilet were viewed by the Court on the voir dire. A brief summary of what is depicted on the video during these two events is as follows:
i. At or about 4:49 a.m., Ms. Orenchuk begins to clean the toilet using toilet paper. Shortly thereafter she pulls down her pants and squats over the toilet. Her genitals are not visible on the video at any time. About 40 seconds later, she wipes herself and pulls up her pants. For approximately one second, part of her left buttock is exposed to the camera. It is also partly obscured by the bars on the cell.
ii. At or about 5:49 a.m., Ms. Orenchuk cleans the toilet using toilet paper, pulls down her pants and squats over the toilet. Shortly thereafter she wipes herself and then stands up and pulls up her pants. In the process of standing and pulling up her pants and with her body turned slightly sideways from the camera, her left hip, upper thigh and pelvic area are briefly exposed to the camera for 1 to 2 seconds. As in the first circumstance above, her body is partly obscured by the bars in the cell. Her genitals are not visible on the video at any time.
[32] It is not clear from the record whether Ms. Orenchuk was in fact being observed by anyone when she was using the toilet in the cells. It was certainly the practice for all persons in custody to be monitored by either the Staff Sergeant and/or the security console operator so it is fair inference that she was monitored by one or the other or both. It is unclear from the record whether she was monitored by a male or a female or both.
Issues
[33] Accordingly, the following three issues arise in this case.
Issue 1 – As submitted by Ms. Orenchuk and conceded by the Crown, has there been a s. 8 Charter violation?
Issue 2 - Assuming the Court agrees that there has been violation of Ms. Orenchuk's s. 8 Charter rights, should a stay of proceedings be issued?
Issue 3 - In the alternative, assuming a s. 8 Charter violation, should the Crown be prevented from relying upon the presumption of identity under s. 258(1)(c) of the Code?
Issue 1 – As submitted by Ms. Orenchuk and conceded by the Crown, has there been a s. 8 Charter violation?
[34] I have had the benefit of reviewing numerous decisions of my fellow judicial colleagues on the Ontario Court of Justice and the Superior Court of Justice who have considered whether the videotaping of an accused person in circumstances similar to the case at bar constitutes a s. 8 Charter violation. While each case is dependent on its own facts, the weight of authority certainly favours a finding that a s. 8 violation occurs where an accused person is videotaped using the toilet in a holding cell.
[35] The question of whether there is a s. 8 violation in any given case requires a consideration of the "totality of the circumstances" including (1) the claimant's subjective expectation of privacy; and (2) the objective reasonableness of that expectation.
[36] It is well accepted in the case law that a person who is arrested on reasonable and probable grounds that he or she has committed a serious crime, should expect a significant loss of personal privacy as a consequence of being in custody.
[37] In the case at bar, Ms. Orenchuk testified on the Charter voir dire that she had no idea she was being videotaped in the cell at all. She certainly did not think that her use of the toilet was being monitored and videotaped by the police. Further, there is no evidence that she was told by anyone that she was being videotaped nor is there any evidence of any signage advising her that she was being videotaped in the cell.
[38] On the other hand, it is worth noting that the toilet in the cell in which Ms. Orenchuk was kept was clearly visible in a well-lit cell and the cell doors were made up of bars through which anyone walking by could see.
[39] Ms. Orenchuk clearly had a subjective expectation of some level of privacy while she was in the cell. Her subjective expectation was broader in its scope however than that to which she was objectively entitled, in the sense that she had no thought that she was being videotaped in her cell at all. I do not consider it to be objectively reasonable for her to think that she was not being videotaped at all.
[40] However, I do consider that Ms. Orenchuk objectively and reasonably expected that police officers were not watching and videotaping her when she was using the toilet. The clear evidence is that she was not told that she was being videotaped and monitored and this lends strength to the reasonableness of her expectation of some limited privacy in the circumstances.
[41] Accordingly, I agree with the submissions of the Crown and the defence that Ms. Orenchuk's s. 8 Charter rights were violated when she was videotaped using the toilet in the cell. I will have more to say about the severity of the violation when I consider the potential remedies below.
Issue 2 - Assuming the Court agrees that there has been violation of Ms. Orenchuk's s. 8 Charter rights, should a stay of proceedings be issued?
The Law with Respect to Stays of Proceedings
[42] The defence seeks a stay of proceedings under s. 24(1) of the Charter. The law with respect to stays of proceedings is well-established. According to the Supreme Court of Canada, it is the most drastic remedy a criminal court can order. When a stay is ordered, the truth seeking function of the Court is effectively shut down, the public is prevented from seeing justice done by way of a trial on the merits and alleged victims of crime are deprived of their day in court.
[43] However, the Supreme Court of Canada has made it clear that on "rare occasions" and in "the clearest of cases" a stay of proceedings will be warranted for an abuse of process. There are two such categories of cases: (1) where the state conduct compromises the fairness of the accused's trial; or (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category).
[44] Whether one is dealing with the first or second category described above, the Supreme Court of Canada has stated that there are three requirements which must be met in order for a stay be granted:
There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome";
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits".
[45] The Supreme Court has stated that where the residual category is invoked, at the first stage of the test, the following analysis applies:
…the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.
[46] As concerns the second stage of the test, where the residual category is involved, the remedy must be aimed at the harm. The goal is not to provide a remedy for the accused for a wrong that is been done to him or her. The question is whether an alternate remedy, short of a stay of proceedings, will adequately dissociate the justice system from the offending state conduct going forward.
[47] As concerns the third stage of the test in the residual category, the Supreme Court of Canada has stated:
[W]hen the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process.
[48] Finally, the Supreme Court has made it clear that the accused who seeks a stay of proceedings in the residual category faces an onerous burden. A stay will only be entered where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases."
[49] In R. v. Bellusci, the Supreme Court of Canada upheld the issuance of a stay of proceedings for state misconduct in the residual category. In that case, the accused prisoner was charged with assaulting a prison guard as well as intimidating him with threats. The trial judge acquitted the accused of the assault charges but found that he was guilty of the intimidation which was comprised of threats by the accused prisoner against the prison guard, which had been "recklessly provoked" by the prison guard. In response to the threats by the accused prisoner, the prison guard had grievously assaulted the accused prisoner while he was shackled and handcuffed in order the make the accused "pay physically" for the threats against the guard. The Supreme Court of Canada upheld the issuance by the trial judge of a stay of proceedings on the basis that the trial judge had followed the correct principles and undertook the necessary balancing exercise, and that a stay was appropriate in the circumstances.
[50] R. v. Babos is the Supreme Court of Canada's most recent pronouncement on stays of proceedings. In Babos, the Supreme Court of Canada set aside a trial judge's issuance of a stay of proceedings. That case involved, among other things, a finding of collusion police witnesses concerning their evidence at trial, and threatening conduct by a Crown Attorney towards an accused by attempting to intimidate the accused into pleading guilty, failing which he would face additional charges. The Supreme Court of Canada stated that the police collusion could be addressed through the exclusion of evidence found in the accused car. Further, the Crown Attorney's conduct, which the Supreme Court of Canada described as "reprehensible", did not provide the type of "shocking conduct needed to justify a stay".
[51] R. v. Iseler was a case considered by the Ontario Court of Appeal where an accused person had been arrested for a drinking and driving offence and provided breath samples. Thereafter, the accused was placed in a holding cell and ignored for 11 hours. The Court of Appeal found that the accused's s. 9 Charter rights were breached which the Court of Appeal called "inexcusable". Notwithstanding that finding, the Court of Appeal held that it was not one of the "clearest of cases" warranting a stay of proceedings. In arriving at this conclusion the Court stated:
[I]t is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence". I am accordingly satisfied that this is not "the clearest of cases" warranting the grant of a stay of proceedings.
Decisions of Other Courts in Videotaping Cases
[52] A number of my colleagues on the Ontario Court of Justice have been called upon to consider s. 8 Charter issues and the potential application of s. 24(1) and (2) Charter remedies where accused persons have been videotaped using the toilet in a holding cell. I will only make specific reference here to the two cases that have been considered by the Superior Court of Justice, one of which is now under appeal to the Ontario Court of Appeal.
[53] In R. v. Mok, an accused person charged with a drinking and driving offence was videotaped using the toilet in a holding cell before giving her first breath sample and again after giving a second sample. On May 3, 2012, the trial judge released reasons in the case and found a s. 8 breach and granted a stay of proceedings under s. 24(1) of the Charter.
[54] The Mok case was appealed to the Superior Court. In reasons released on January 7, 2014, Justice Boswell agreed with the s. 8 violation finding but set aside the stay on the basis that, among other reasons, a stay was only a remedy of last resort, the decision was a "case of first instance" and there was a strong public interest in proceeding with a trial on the merits. I note as well that Justice Boswell suggested that the "fix" required to avoid a s. 8 Charter violation was relatively minor. He recommended that a solution could be achieved by repositioning the video cameras or by installing modesty screens that cover the lower part of a person's body while they are using the toilet. Defence counsel in the case at bar advises that the decision of Justice Boswell has been appealed to the Ontario Court of Appeal.
[55] In R. v. Deveau, the accused was charged with a drinking and driving offence and was videotaped in the holding cell before giving her two breath samples. In reasons released on November 20, 2013, Justice Harpur of the Ontario Court of Justice found a s. 8 violation. He declined to issue a stay under s. 24(1) of the Charter on the grounds that it was not the clearest of cases. Justice Harpur chose to exclude the evidence under s. 24(2). His decision was upheld in all respects on appeal by Justice Howden of the Ontario Superior Court, for reasons released on June 23, 2014.
Application of the Stay of Proceedings Law to the Case at Bar
[56] In my view, this is not the rare and exceptionally clear case that merits the issuance of a stay of proceedings. In arriving at this conclusion, I have followed the three part test for the consideration of a stay most recently confirmed by the Supreme Court of Canada in Babos. I reach this conclusion for the reasons set out below.
[57] Dealing with stage one of the test, there is no question that in this case the accused's right to a fair trial was not impacted by reason of the videotaping. The question is whether there will be prejudice to the integrity of the justice system by proceeding with the trial. This requires a consideration of whether the state conduct is so offensive to society's concept of fair play and decency that proceeding with the trial would be harmful to the integrity of the justice system. In my view, there would not be prejudice to the justice system of the nature and degree required by the test if this case is permitted to proceed to a judgment on the merits.
[58] While I have found there to be a s. 8 violation, I do not consider it to be of an egregious nature. I reach this conclusion for five reasons. First, the reasonable expectation of privacy in the circumstances in which Ms. Orenchuk found herself was very low.
[59] Second, the police policy of videotaping in holding cells is rooted in a valid public policy objective, namely the protection of prisoners and police alike. Defence counsel does not challenge the state's right to videotape prisoners in the cells. He fairly objects to the videotaping of his client while she was using the toilet. The s. 8 violation arose because the videotaping policy was not implemented in a manner that was sensitive to the limited privacy expectations that persons in custody reasonably hold.
[60] Third, while the video does undermine Ms. Orenchuk's dignity and privacy, it is not that intrusive or offensive. Her use of the toilet is relatively brief and her buttocks and pelvic area are only exposed for about 2 seconds. I do appreciate and understand that Ms. Orenchuk is nonetheless upset by the video.
[61] Fourth, the law in this area is still evolving and is not settled. Defence counsel directed some submissions to the question of whether or not this was a case of "first instance", the point being that, in the defence's submission, this was not a case of first instance and that the issue ought to been known to the police and properly addressed since at least the time of the trial judge's decision in Mok in May 2012. In effect, the submission is that the changes made in January 2014 were made too late, and that the failure to make them earlier exacerbates the breaches that occurred in the interim. I agree with defence counsel that this is not a case of first instance. However, I also agree with the comments of my colleague Justice Speyer in R. v. Griffin that the law in this area is not settled. Accordingly, in my view, the fact that the law is still in flux assists the Crown and makes the breach less egregious. It is also makes the fact that the practice was not changed until January 2014 of no great consequence.
[62] Fifth, I consider that the breach is not egregious as there is no evidence of bad faith or intentional misconduct on the part of the police in the implementation of the policy.
[63] Separate and apart from the Court's finding that the breach was not egregious is the police's change in practice. As previously noted, shortly after Justice Boswell's decision in R. v. Mok was issued in January 2014, Peel Regional Police changed their practice with respect to the videotaping of persons using the toilet in holding cells. In January 2014, the "fix" was initially to place a piece of opaque tape over the lens of the camera so as to obscure the image of the person being videotaped using the toilet and to provide them with some level of privacy. A few weeks later, a "technological" change was made such that the prisoner in the cell is obscured from the head down when he/she is sitting using the toilet. In short, the videotaping practice at issue in the case at bar has been changed and it is obvious that the police are attempting to be responsive to the types of privacy concerns being raised in this and other cases.
[64] In summary, this case does not pass the first stage of the test for a stay because permitting the case to proceed to a judgment on the merits will not prejudice the justice system in the manner required for a stay. I reach this conclusion on the basis of my finding that the breach was not egregious for the reasons given and, importantly, the police practice of videotaping prisoners using the toilet in the cells has now changed.
[65] Turning to the second and third stages of the test, I am also not satisfied that there is any requirement to consider these stages of the test as the first stage of the test has not been met. Nevertheless, it is instructive to briefly consider the third stage of the test where the Court must balance the potential prejudice to the integrity of the justice system and the interests of society in having the charge disposed of on the merits. The Supreme Court of Canada speaks of whether proceeding with the trial notwithstanding the misconduct would have the effect of "shocking the community's conscience". In my view, considering all the facts of this case, it would not shock the community's conscience if this case proceeded to be dealt with on the merits. Indeed, given the low level of privacy that one can expect when one is in police custody, the nature of the misconduct, the serious nature of the charge in this case, and the changes that have been implemented by the police, I think it would in fact surprise the community if the misconduct in this case lead to a staying of the charge.
Issue 3 - In the alternative, assuming a s. 8 Charter violation, should the Crown be prevented from relying upon the presumption of identity under s. 258(1)(c) of the Code?
[66] In the alternative, the defence requests that the Court provide a different s. 24(1) Charter remedy, namely an order preventing the Crown from relying on the presumption of identity in s. 258(1)(c) of the Code. S. 258(1)(c) provides in part as follows:
- (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; (emphasis added)
[67] While s. 258(1)(c) is commonly referred to as a "presumption of identity", it is more than a simple presumption. It is direction by Parliament that provided certain circumstances exist, there is "conclusive proof" beyond a reasonable doubt of the "over 80" element of a s. 253(1)(b) offence at the time the offence is alleged to have been committed. There is no element of discretion in the application of the presumption. The Court does not "permit" the Crown to "rely" on it. There is a test in s. 258(1)(c) as set out above and if the factual and legal components of the test are made out (including the absence of evidence tending to show the malfunctioning and related points as provided for in the section), then the direction from Parliament is operative, conclusive and binding. If the requirements of the test are not met, then the provision is not operative. In this case, all of the components of the test in s. 258(1)(c) have been proven. Indeed, the elements which support the test are admitted by the defence in that the defence invited the Court to make a finding of guilt if the Charter remedies sought were rejected. Accordingly, it is not open to the Court in these circumstances to grant a remedy under s. 24(1) of the Charter to say that the conclusive proof direction from Parliament in s. 258(1)(c) of the Code shall have no application when the direction itself is not constitutionally challenged. I note further that it is common ground that s. 258(1)(c) in its current form in the Code has been found by the Supreme Court of Canada to be constitutionally valid.
[68] I should add that no higher court authority was provided in support of the defence submission that I could order under s. 24(1) of the Charter that the Crown not be permitted to rely upon the presumption of identity in s. 258(1)(c) of the Code.
[69] In my view, the issue is somewhat analogous to the Supreme Court of Canada's decision in R. v. Nasoguluak where the Court held that, save in exceptional circumstances, in the event of a Charter breach a trial judge cannot use s. 24(1) of the Charter to give less than a mandatory minimum sentence where the mandatory minimum penalty itself is not constitutionally challenged.
[70] If I am wrong and it would be open to this Court to simply say that the conclusive proof direction under s. 258(1)(c) does not apply, I find that it would not be an "appropriate and just remedy in all of the circumstances" as s. 24(1) of the Charter requires. Considering that the s. 8 breach was not egregious, the subsequent change in practice by the police and the interests of society in a trial on the merits in a serious case, such a remedy would not be appropriate and just.
[71] Defence counsel submitted that if I did not grant either of the two primary Charter remedies sought, I should consider imposing a fine of no higher than the mandatory minimums. The fact that Ms. Orenchuk had blood alcohol readings which were 160 mg of alcohol in 100 ml of blood is an aggravating factor which I must consider in sentencing and which would normally lead to penalties above the mandatory minimums. Neither the Crown nor the defence made detailed sentencing submissions as there was not yet any finding of guilt at the time of the closing submissions at trial. Nevertheless, I am inclined to view that given the s. 8 Charter violation, Ms. Orenchuk should receive some leniency on sentencing. This would be a just and appropriate remedy under s. 24(1) of the Charter. I will wait to give both counsel the opportunity to review these reasons and make further brief sentencing submissions before imposing a sentence.
Conclusion
[72] In conclusion, I have determined that this is not an appropriate case for a stay of proceedings or for an order providing that the Crown cannot rely upon s. 258(1)(c) of the Code. There will therefore be a finding of guilt against Ms. Orenchuk on the offence of having the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Code.
[73] The Court is grateful to counsel for their helpful submissions concerning an evolving area of the law.
Released: December 1, 2014
Justice Paul F. Monahan