Court Information
Court: Ontario Court of Justice
Date: April 26, 2017
Central East Region: Newmarket
Court File: 14-04068
Parties
Between:
Her Majesty the Queen
— And —
Angelyne Suyat-Pavalaraj
Before the Court
Justice: Peter C. West
Evidence Heard on: January 13, June 9 and November 1, 2016 and January 11, 2017
Oral Submissions Heard on: January 11, 2017
Reasons for Judgment Released on: April 26, 2017
Counsel
For the Crown: Ms. A. Barkin
For the Accused: Mr. N. Schachter
Judgment
Introduction
[1] On January 13, 2016, Ms. Suyat-Pavalaraj pleaded not guilty to a charge of over 80 from May 18, 2014 and a trial was commenced. The trial was scheduled for one day. A Charter application was filed by the defence and it was agreed by both counsel to proceed on that application by way of a blended hearing. The trial did not complete in the time allotted and a further one day, June 9, 2016, was set by counsel, despite my suggestion that at least two days be set for continuation. On June 9, 2016, it was discovered that the Crown had not subpoenaed the qualified breath technician and a further day was set for November 1, 2016 to complete the evidence. The Crown's case was completed at the end of the day and defence counsel advised he intended to call his client on the blended hearing and he had two additional witnesses to call respecting the s. 9 overholding argument. Consequently, a further day, January 11, 2017, was set aside to complete the defence evidence on the blending hearing and to hear argument.
[2] The Crown called four witnesses, P.C. Vera Kogevnikov, the investigating officer; Staff Sergeant Stuart Garner, the booking Staff Sergeant at 4 District YRP when Ms. Suyat-Pavalaraj was first brought to the police station; P.C. Stuart Goodall, the qualified breath technician; and Sergeant Edward Jones, the acting Staff Sergeant at 4 District YRP, who released Ms. Suyat-Pavalaraj. Ms. Suyat-Pavalaraj testified on the blended hearing relating to the Charter application. An agreed statement of fact was filed as an Exhibit, which obviated the necessity of the defence calling the two additional witnesses.
[3] Initially the defence brought a section 10(b) Charter application; however, this application was abandoned on November 1, 2016 by Mr. Schachter. Mr. Schachter also advised on January 11, 2017, he was no longer arguing a s. 8 breach based on the arresting officer not having reasonable and probable grounds to arrest Ms. Suyat-Pavalaraj. The only two issues remaining in the Charter application is a s. 8 breach relating to the video-taping of Ms. Suyat-Pavalaraj using the toilet in the cell and a s. 9 breach relating to Ms. Suyat-Pavalaraj being detained too long after her breath tests were obtained.
Factual Background
[4] At approximately 3:43 a.m., on May 18, 2014, P.C. Kogevnikov, a YRP officer for two and a half years, observed the accused's vehicle driving southbound on Keele Street. The vehicle slowed down as it approached a red light but failed to stop, proceeding through the red light. The vehicle continued southbound and drove through another red light at which point the officer effected a traffic stop. This occurred near Ronrose Drive in Vaughan.
[5] When the officer activated her emergency lights she observed the accused's vehicle come to a sudden stop. There were two women in the front seats of the vehicle. The driver, who was identified later as the accused, Angelyne Suyat-Pavalaraj was looking straight ahead and only rolled the window down half way. When she was requested to roll the window down completely she did so.
[6] As the officer spoke to the driver she detected an odour of alcohol coming from the driver's mouth. The officer asked the driver if she had consumed any alcohol and the driver indicated she had consumed two shots earlier in the evening.
[7] After identifying the driver from her driver's license, P.C. Kogevnikov requested the driver turn off the vehicle and exit it. The driver was not wearing shoes. When the driver was outside the vehicle the officer could still detect an odour of alcohol coming from her mouth and as a result formed a reasonable suspicion the driver had alcohol in her body. At 3:47 a.m., the officer read the approved screening device (ASD) demand. Mr. Schachter advised the wording of the ASD demand was not in issue.
[8] P.C. Kogevnikov demonstrated the ASD and after 20 attempts by Ms. Suyat-Pavalaraj she provided a suitable sample of her breath and the ASD registered a "Fail." The ASD used by P.C. Kogevnikov was tested on May 14, 2014 by YRP traffic unit, badge #1983. The officer testified she believed the ASD was working properly, as she had tested it herself prior to providing it to the driver. She believed it had been properly calibrated.
[9] P.C. Kogevnikov placed Ms. Suyat-Pavalaraj under arrest for operating a motor vehicle with over 80 milligrams of alcohol in 100 millitres of blood. She handcuffed the accused and placed her into the rear seat of the police cruiser. The officer advised the accused the in-car camera was running. At approximately 4:00 a.m., Ms. Suyat-Pavalaraj was read her right to counsel by the officer from the back of her police notebook.
[10] P.C. Kogevnikov then read Ms. Suyat-Pavalaraj the caution, which she said she understood. The officer then read a breath demand from the back of her police notebook, which Ms. Suyat-Pavalaraj indicated she understood as well. At 4:09 a.m., the officer drove the accused to 4 District YRP at 2700 Rutherford Road, Vaughan. They arrived at the police station at 4:18 a.m. They waited in the sally port for a period of time until the Staff Sergeant advised he was ready for them to come into the booking hall. The DVD of the in-car camera video was marked as Exhibit 1 and Ms. Barkin undertook to provide a transcript, which was filed on the next appearance and marked as Exhibit 1A.
[11] At 4:24 a.m., Ms. Suyat-Pavalaraj was paraded before Staff Sergeant Garner. During the booking Ms. Suyat-Pavalaraj indicated she wanted to speak to a lawyer, legal aid duty counsel. She did not have her own lawyer so a call was made to duty counsel. P.C. Kogevnikov called duty counsel at 4:35 a.m. and a return call was received from duty counsel, Mr. Tiltins, at 4:53 a.m.
[12] Staff Sgt. Garner testified in chief he told Ms. Suyat-Pavalaraj that the cell area was video-taped, however, in cross-examination he testified he did not have any recollection of advising Ms. Suyat-Pavalaraj that the cell was video-taped and he did not have anything noted in his police notes. His evidence in-chief was this was his usual practice. Staff Sgt. Garner also testified he was advised by the Crown before he testified that one of the issues in this case was whether Ms. Suyat-Pavalaraj was advised the cell was video-taped before she was placed into the bullpen. He agreed all he remembered about Ms. Suyat-Pavalaraj was that he booked her when she arrived at the station and nothing else.
[13] Ms. Suyat-Pavalaraj was placed in the bullpen cell because there were a large number of individuals in custody at 4 District on this early morning. The bullpen cell does not have a solid door with a small window as do the individual cells, rather, there are bars separating the hallway and booking area from the bullpen, with a door that also has bars, so that anyone outside the bullpen can see into the bullpen with the only obstruction being the metal bars. There are two cameras which show the bullpen cell area, one outside the bars looking in (called bullpen vestibule) and the other camera inside the bullpen (called bullpen).
[14] Ms. Suyat-Pavalaraj was searched on two occasions before being placed into this cell, initially at the scene and P.C. Kogevnikov searched her more thoroughly again when she arrived in the booking area. According to P.C. Kogevnikov and Staff Sgt. Garner, there were no enhanced officer safety concerns regarding Ms. Suyat-Pavalaraj. Both officers agreed Ms. Suyat-Pavalaraj was not advised she could use a private washroom if she wanted to when she was placed in the bullpen cell.
[15] There was a video camera in the bullpen cell. P.C. Kogevnikov could not recall if she advised Ms. Suyat-Pavalaraj the bullpen cell was being video-taped. There are monitors at the main desk of 4 District and at the booking desk. There is a toilet in the bullpen cell. The toilet area is pixelated in the vestibule camera video but if an individual steps out of this pixelated area you can see clearly what is happening. The bullpen video is not pixelated and consequently, a detainee can be observed pulling down their pants and underwear and their private areas would be exposed to the camera. When they are sitting on the toilet their legs are visible and their private area would once again be exposed to the camera when they stand up to pull up their underwear and pants. P.C. Kogevnikov could not recall if there is a sign in the cells advising of the videotaping.
[16] At around 4:55 a.m., Ms. Suyat-Pavalaraj was turned over to the qualified breath technician, P.C. Stuart Goodall. Prior to Ms. Suyat-Pavalaraj being brought to the breath room, P.C. Kogevnikov provided her grounds for arresting Ms. Suyat-Pavalaraj to the qualified breath technician.
[17] At 4:40 a.m., P.C. Stuart Goodall, the qualified breath technician, was ready to receive breath samples from Ms. Suyat-Pavalaraj. Exhibit 5 are the printouts from the Intoxilyzer 8000C for the diagnostic, calibration and the self-test results as well as the two breath tests obtained from Ms. Suyat-Pavalaraj. When P.C. Goodall completed the breath tests, P.C. Kogevnikov returned to the breath room to take Ms. Suyat-Pavalaraj back to the bullpen cell. Just prior to leaving the breath room, Ms. Suyat-Pavalaraj indicated on the video, Exhibit 4 and in the transcript Exhibit 4A, that she was concerned about spending time in the cell. P.C. Goodall asked her if she had someone who could come and pick her up. Ms. Suyat-Pavalaraj advised P.C. Goodall and P.C. Kogevnikov that she did have someone who would come to pick her up and she wanted to call them.
[18] P.C. Goodall testified he told Ms. Suyat-Pavalaraj she should not be kept longer than two hours before being released. He testified he told her this because of her readings, his interactions with her, her demeanor and his experience in dealing with other persons charged with impaired and over 80. In fact, P.C. Goodall told Ms. Suyat-Pavalaraj he expected her to be released as soon as the paperwork was completed. He expected the officer in charge, P.C. Kogevnikov, would call the person Ms. Suyat-Pavalaraj had indicated could pick her up. In fact, P.C. Goodall testified he recalled speaking to Sgt. Jones, the acting day staff sergeant, telling him that Ms. Suyat-Pavalaraj was suitable for release when he advised what her breath readings were. He recalled this conversation happening prior to 6 a.m.
[19] At 5:52 a.m., P.C. Kogevnikov served various documents, including a notice that the police station was subject to video and audio recording, on Ms. Suyat-Pavalaraj. The arresting officer testified she would have advised Ms. Suyat-Pavalaraj at this time there was video recording in all areas of the police station, including the cell area. This notice was marked as Exhibit 2. The officer testified Ms. Suyat-Pavalaraj had no difficulties in understanding any of the documents that were served. I would question why such a document is not signed when a detainee first appears in front of the booking sergeant as opposed to when they are about to be released.
[20] P.C. Kogevnikov served the Certificate of a Qualified Breath Technician on Ms. Suyat-Pavalaraj, which indicated her breath readings were 130 mgs of alcohol in 100 ml of blood and 120 mg of alcohol in 100 ml of blood. The Certificate was filed as Exhibit 3.
[21] P.C. Kogevnikov was not involved in the release of Ms. Suyat-Pavalaraj. Her shift ended at 7 a.m. and she testified she did not know why Ms. Suyat-Pavalaraj was not released before she went off shift. P.C. Kogevnikov prepared the Promise to Appear, which was the release document for Ms. Suyat-Pavalaraj. The officer in charge of the police station, Staff Sgt. Garner, would have been responsible for releasing Ms. Suyat-Pavalaraj, unless there was a shift change. It was P.C. Kogevnikov's understanding Ms. Suyat-Pavalaraj was going to be released as soon as she sobered up a little bit.
[22] Sgt. Edward Jones was the acting staff sergeant that took over from Sgt. Adamson. The previous shift had two supervisors, Staff Sgt. Garner and Sgt. Adamson. Sgt. Jones shift was from 5 a.m. to 5 p.m., on May 18, 2014. There was a short briefing between the preceding supervisor and himself where he was advised of the number of prisoners in the cells. When Sgt. Jones took over there were seven prisoners in the cells at 4 District. There are six single cells and a multiple-person cell that is called the bullpen.
[23] Sgt. Jones testified that persons arrested for impaired or over 80 offences would be released after the passage of time, which is determined by their breath readings, when the readings were taken and a calculation for the elimination of 15 mg of alcohol per hour to get their reading below 80 mg. The reason for this calculation is for the person's safety in terms of their being released from the police station. If the shift is busy a supervisor can request another supervisor to assist in booking or releasing prisoners.
[24] He learned about Ms. Suyat-Pavalaraj when he was briefed. She was still being investigated when he started his shift. He had not received any paperwork at that point. Sgt. Jones was responsible for two parades of officers, the early shift at six o'clock and the late shift at seven o'clock. At seven thirty he was back in his office. He released the first prisoner at 8:37 a.m., which was an individual who was charged with impaired. A total of five prisoners were released prior to Ms. Suyat-Pavalaraj being released. There was also an individual who was booked into the station for a domestic assault after the 8:37 release. Some of the prisoners were released to the court officers to be brought to court for show cause hearings.
[25] Ms. Suyat-Pavalaraj was released by Sgt. Jones at 10:21 a.m. The prisoner released prior to Ms. Suyat-Pavalaraj was argumentative and his release took longer than normal. It started at 9:30 but was not completed until 10:00 a.m. Sgt. Jones testified he worked in the cell block from 8:30 to 10:30 and did not believe he needed to bring in another supervisor from other duties to assist him in releasing the prisoners.
[26] Sgt. Jones did not have any recollection of anyone advising him about Ms. Suyat-Pavalaraj having someone who could pick her up. He testified he did not have direct conversation with P.C. Goodall about Ms. Suyat-Pavalaraj. The first time he met her was when he had her sign the release papers. The bullpen cell is directly across from the booking desk. He did not recall if she asked him to be released. It was Sgt. Jones evidence in-chief that her release time would have been between 9:30 and 10:00, based on his calculation. However, in cross-examination he agreed Ms. Suyat-Pavalaraj's release time, solely based on his calculation, should have been 8:30 a.m.
[27] Sgt. Jones testified, in his experience, there has only been one or two instances of someone being prepared to pick up a person charged from the police station who was in custody. He did not recall any conversation with anyone about there being someone who would come to pick up Ms. Suyat-Pavalaraj.
[28] Sgt. Jones testified every cell has a video camera and there is an area by the toilet that is blocked out or pixelated. If a prisoner used the toilet they would not be seen because of this blocked out area, which appears as a grey box.
[29] Anyone behind the front desk at the 4 District can see the monitors which display the seven cells. There are also cell monitors at the booking desk, which can be viewed by any officer standing at the booking desk. Prior to the pixelation, anyone who viewed these cell monitors could see a prisoner use the toilet and nothing would prevent the observation of a prisoner's private area. Since pixelation was introduced, as long as a prisoner stays in the area covered by the pixelation, a prisoner's private area is not exposed. However, if they step outside of the pixelated area they are exposed and can be seen.
[30] It was Sgt. Jones' position in cross, if P.C. Goodall testified he spoke to Sgt. Jones about Ms. Suyat-Pavalaraj at 6 a.m., then he did. Sgt. Jones did not recall P.C. Goodall advising him Ms. Suyat-Pavalaraj was eligible for release. Sgt. Jones did not recall if P.C. Kogevnikov advised he had served Ms. Suyat-Pavalaraj her paperwork at 5:52 a.m. Sgt. Jones agreed he had limited, if any, conversation with Ms. Suyat-Pavalaraj after she finished her breath tests at 5:35 a.m. and her release at 10:21 a.m.
[31] Ms. Suyat-Pavalaraj testified she was not advised by anyone when she was booked into 4 District about video-taping throughout the police station. There was a sign at the booking desk which she believed indicated the booking area was video-taped. She was not advised the cell area was video-taped by anyone and if she had been told this she would not have used the toilet. She did not become aware the cell was video-taped until she saw the cell video disclosure.
[32] Ms. Suyat-Pavalaraj described her feelings after seeing the video disclosure:
When I saw myself using the bathroom I – I was embarrassed. I felt dehumanized and I felt – I was just appalled that I was even being recorded in the first place. And if I had known I would've never done it. I'm a very private person. I was – I was traumatized by what I seen just the fact that I was – I was basically, like, I wasn't only for myself, everyone else could've seen it as well. And just from being, like, traumatized by it, I – I, like, had nightmares about it and it was just very embarrassing and I – I just couldn't believe what – what I seen.
[33] She described seeing herself "pulling down my pants, sitting, squatting over the toilet for quite some time. Me pull – me standing up with my pants and my underwear off and me just pulling it up and then I just – I rea – I just really – I was very appalled by it. I was just so embarrassed and ashamed."
[34] The video clearly shows Ms. Suyat-Pavalaraj being put into the bullpen cell. She watches the door being closed and then walks over to the toilet, which is recessed into the wall. She turns in front of the toilet, pulls down her pants and underwear and sits on the toilet. While she is sitting on the toilet her legs are visible with her pants and underwear at her feet. She then stands directly in front of the toilet and she is fully visible with her pants and underwear by her feet. She can be seen to bend over and pull up her underwear and then her pants. This area is not pixelated on the video marked bullpen cell area, whereas it is pixelated on the video marked bullpen vestibule (see Exhibit 4). Ms. Suyat-Pavalaraj used the toilet prior to providing samples of her breath with the qualified breath technician.
[35] Staff Sgt. Garner testified he was aware if a person stood up after sitting on the toilet in the bullpen a part of them (namely, their private area, as shown in the video of Ms. Suyat-Pavalaraj) would be visible on the video-tape or on the monitors, as it is not pixelated. P.C. Kogevnikov testified she was aware if an individual moves even slightly away from the toilet that person can be clearly seen. This was also confirmed by Sgt. Jones.
[36] Exhibit 6 was filed as an agreed statement facts detailing how two responsible individuals, Janet Kweku-Teye, Ms. Suyat-Pavalaraj's cousin and Cynthia Looloo, a close friend, were available and would have picked up Ms. Suyat-Pavalaraj at 4 District. Ms. Kweku-Teye was the passenger when Ms. Suyat-Pavalaraj was stopped by police. She spoke with the female officer and inquired where the police station was and when Ms. Suyat-Pavalaraj might be released. She advised the officer she would come to the station to pick up Ms. Suyat-Pavalaraj and the officer told her Ms. Suyat-Pavalaraj would call when she was being released and ready to be picked up.
Analysis
Was Ms. Suyat-Pavalaraj's s. 9 right under the Charter breached?
[37] It is clear that the continued detention of Ms. Suyat-Pavalaraj, which lasted approximately 4 1/2 hours (5:52 a.m. to 10:21 a.m.), occurred after the breath samples were obtained and the police investigation was complete.
[38] Section 9 of the Charter guarantees that everyone has the right to be free from arbitrary detention. The burden is upon the applicant to present a prima facie case that calls for an answer by the Crown. The length of the detention itself may establish a prima facie case where the duration is considerable: R. v. Iseler, [2003] O.J. No. 5648 at para 22.
[39] The Court of Appeal, in R. v. Iseler, supra, held that in a case where a person was detained for 11 hours after his breath tests were completed, with no assessment by the officer in charge of the station as to when the accused could properly be released, his detention was arbitrary and a breach of section 9 of the Charter. However, the Court upheld the lower courts' refusal to order a stay, Armstrong J.A. held:
While the police conduct in failing to monitor the accused was inexcusable, it 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."
[40] Section 498(1.1) of the Criminal Code states that:
The officer in charge or peace officer shall not release a person ... if the officer in charge or peace officer believes, on reasonable grounds,
(a) That it is necessary in the public interest the person be detained in custody ... having regard to all of the circumstances including the need to
(i) Establish the identity of the person
(ii) Secure or preserve evidence of or relating to the offence
(iii) Prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) Ensure the safety and security of any victim of or witness to the offence; or
(b) That, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
[41] Section 498 mandates the release of an arrested person as soon as practicable, unless it is believed on reasonable grounds that it is necessary in the public interest that the person be detained to prevent the continuation or repetition of the offence or the commission of another offence. Reasonable public interest grounds include the need to detain charged intoxicated persons until they are sober and safe to be released: R. v. Sapusak, [1998] O.J. No. 3299, supra; R. v. Coulter, [2000] O.J. No. 3452 (Ont. C.J.), affirmed [2001] O.J. No. 5608 (Sup. Ct. J.); R. v. Padda, [2003] O.J. No. 5502 (Ont. C.J.); R. v. Gaudette, [2005] O.J. No. 2399 (Ont. C.J.), reversed for other reasons, [2006] O.J. No. 3732 (Sup. Ct. J); R. v. Kisil, 2009 ONCJ 424, [2009] O.J. No. 3821 (Ont. C.J.); and R. v. Prentice, 2009 ONCJ 708, [2009] O.J. No 6001 (Ont. C.J.); R. v. Key, [2011] O.J. No. 5972 (Ont. C.J.) and R. v. Baxter, [2012] O.J. No. 796 (Ont. C.J.).
[42] Ms. Suyat-Pavalaraj had been identified; there was no issue in regard to the securing or preserving of evidence that would have justified her continued detention and similarly, no issue in regard to ensuring the safety or security of any victim or witness. There was no belief by any officer that Ms. Suyat-Pavalaraj would not attend court as required. P.C. Goodall and P.C. Kogevnikov both testified Ms. Suyat-Pavalaraj was suitable for release in their opinion as a result of their interaction with her.
[43] I was also directed to Justice Durno's decision in R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (Ont. Sup.Ct.), an appeal of the trial judge's decision, which found a breach of s. 9 of the Charter after the accused was detained for approximately 6 ½ hours after the second reading. The officer did not consider alternatives to detention and allowed the breath readings to foreclose consideration of any other circumstances. The officer focused exclusively on the accused's breath readings. The trial judge assumed that there was a breach of s. 9 but did not order a stay as he was of the view that the "over-holding" was a "minor wrong".
[44] Justice Durno, in his usual thorough analysis, held that where an officer focuses on the blood/alcohol level as the sole determinant as to whether to release an accused, this is too narrow a focus and will result in a breach of s. 9. Justice Durno held, at para. 93,
The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.
[45] In this case the evidence establishes that Sgt. Jones placed reliance only on the blood/alcohol readings of Ms. Suyat-Pavalaraj. Sgt. Jones used a widely accepted elimination rate to calculate when Ms. Suyat-Pavalaraj could properly be released. In R. v. Paszczenko and R. v. Lima, 2010 ONCA 615, [2010] O.J. 3974 (Ont. C.A.), at para. 61, the Court held that judges are entitled to take judicial notice "of the fact that the majority of human beings eliminate alcohol in a range of 10-20 milligrams of alcohol per 100 millilitres of blood per hour." In many of the reported cases, officers in charge of the station have exercised their discretion not to release an accused pursuant to s. 498(1.1) of the Criminal Code because of the level of the accused's breath readings and estimated the time of release based on a similar rate of elimination. Consequently, in my view, the use by Sgt. Jones of this rate of elimination to determine when Ms. Suyat-Pavalaraj could be released was not unreasonable. However, at no time did Sgt. Jones speak directly with Ms. Suyat-Pavalaraj in order to assess her ability to understand the terms of release. He also testified he was concerned Ms. Suyat-Pavalaraj would be able to appreciate and understand her obligations respecting the release given her high blood/alcohol readings; however, P.C. Goodall testified he spoke to Sgt. Jones shortly after Ms. Suyat-Pavalaraj had completed providing the breath samples and advised Sgt. Jones she was releasable in his opinion. I would also note, in my view Ms. Suyat-Pavalaraj's breath readings were not "high," as characterized by the Crown.
[46] Further, Ms. Suyat-Pavalaraj had advised P.C. Goodall she had friends and family who would come to pick her up at the police station. I am cognizant this was a busy shift for Sgt. Jones, with a large number of persons in custody to be released or transported to the court for bail hearings. However, I am also aware that Sgt. Jones could have delegated the release of prisoners to others or could have delegated the parades be performed by other supervisors to ensure those in detention who could be released were released. Further, complying with the provisions of the Criminal Code and reported decisions like Price are more important than the administrative duties Sgt. Jones testified he did prior to even addressing his mind to the releasing of individuals who had been detained the previous shift.
[47] In all of the circumstances, I find there was a breach of Ms. Suyat-Pavalaraj's s. 9 Charter rights. Sgt. Jones should have completed his own assessment of whether Ms. Suyat-Pavalaraj should be released or detained further until her blood/alcohol level was sufficiently reduced. Ms. Suyat-Pavalaraj was not charged with impaired driving. She had been co-operative and polite with all of the officers who had dealt with her. Her breath readings, although over 80 mgs, were not at the level where a further period of detention before release might be reasonable. Ms. Suyat-Pavalaraj did not have a prior criminal record and did not have any outstanding charges. Sgt. Jones did not speak to Ms. Suyat-Pavalaraj to assess for himself her level of intoxication. Sgt. Jones based his decision not to release Ms. Suyat-Pavalaraj solely on the breath readings with no other assessment. Sgt. Jones initially testified no one spoke to him about Ms. Suyat-Pavalaraj, yet in cross-examination he conceded if P.C. Goodall testified he spoke to Sgt. Jones about Ms. Suyat-Pavalaraj then he did. I am also of the view Sgt. Jones attempted to justify his overholding of Ms. Suyat-Pavalaraj by indicating in his experience there is no one available to pick up detainees from the police station. I do not accept his evidence on this issue. There was no objective assessment by Sgt. Jones considering all of the circumstances in coming to his decision to continue Ms. Suyat-Pavalaraj's detention. This is precisely what Justice Durno indicates would lead to a breach of s. 9 of the Charter and consequently, I find Ms. Suyat-Pavalaraj was arbitrarily detained.
Were Ms. Suyat-Pavalaraj's s. 8 rights under the Charter breached by the videotaping of her activities while in the police cell?
[48] Ms. Suyat-Pavalaraj testified she was not advised there was a camera in the cell she was placed in that would record all of her activities, including if she used the toilet. I accept her evidence on this issue.
[49] Staff Sgt. Garner initially testified he advised Ms. Suyat-Pavalaraj all areas of the police station were video-taped and he specifically testified he had advised her the cell was video-taped. However, in cross-examination he conceded he was speaking about his general practice and he had no recollection of any of the conversations he had with Ms. Suyat-Pavalaraj and did not include any conversations with her in his notes. Further, he admitted the Crown had discussed with him, prior to his testifying, that one of the main issues in Ms. Suyat-Pavalaraj's case was whether she was advised prior to being placed in the cells that she would be monitored and video-taped in the cell.
[50] In York Regional police stations the booking area is only equipped with video monitoring and recording. The equipment used by YRP has no audio recording capability, which would detail the conversations between detainees and the booking sergeant or arresting officer. It is difficult to understand and frankly, it is unacceptable in our technologically modern society, why this practice continues. It is my understanding from cases I have heard in Toronto and Oshawa that booking areas in police stations in those jurisdictions are both video and audio recorded. It is my view adding audio to the recording of the booking area should be seriously considered by YRP given the number of occasions when an audio recording would establish exactly what was said by the booking sergeant and the accused.
[51] Monitoring of the individual cells and the bullpen cell are done by the Staff Sergeant, the officer responsible for monitoring prisoners in the cells and the police and civilian staff operating the front desk of the police station. These individuals can be both female or male officers and civilians.
[52] Ms. Suyat-Pavalaraj was subjected to a brief pat-down search by P.C. Kogevnikov, the female investigating officer, at the scene. Upon arrival at the police station Ms. Suyat-Pavalaraj was brought into a private room where a more intrusive search was conducted by P.C. Kogevnikov. This room is not video-taped. The reason a private room is used to conduct such a search is to afford the detainee some privacy. Further, it is always a same sex police officer who conducts this search.
[53] I was advised that the monitoring and video-taping of detainees in custody is done throughout the different areas of the police station out of a concern for the safety of persons in police custody, such as a heart attack or suicide, and a concern that persons in custody may have weapons or illegal contraband secreted on their person. I do not take issue with the safety rational for monitoring and videotaping persons detained in custody.
[54] As I indicated in R. v. Mok, 2012 ONCJ 291, [2012] O.J. No. 2117, at para. 92, "At first blush these arguments appear to be persuasive; however, when one examines them more closely the arguments' deficiencies become immediately apparent." I agree that the police should be able to monitor prisoners to ensure their safety while in police custody, to ensure the safety of police officers who interact with detainees, to ensure detainees do not have weapons or illicit substances secreted on or in their bodies and to ensure that prisoners do not damage police property. In Mok, the blood/alcohol levels were close to being toxic, almost 300 mg of alcohol in 100 ml of blood and the need to monitor Ms. Mok for her own safety was quite clear given she was considered to be a high risk prisoner. Further, I agree that often the video of a prisoner can have some evidentiary value. However, if monitoring and video-taping prisoners using the toilet can be justified solely on the basis of safety concerns or that the prisoner may be secreting contraband or weapons on or within their body, then strip searches would be justified in the case of every person brought into a police station under arrest. It is my opinion that this would be completely contrary to the decision in Golden, 2001 SCC 83, [2001] 3 S.C.R.679.
[55] Ms. Suyat-Pavalaraj did not have a criminal record, in fact, she had never been in trouble with the police previously. She was polite and co-operative with the police officers she came into contact with. There was no evidence before me that the police had any concerns she was secreting a weapon or contraband on her person. There was nothing that would have given any air of reality to a concern by police that she might be hiding contraband or weapons in some cavity of her body.
[56] In the appeal to the Ontario Superior Court, R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44, Boswell, J. found, at paras. 81-82:
81 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.
82 In the result, I find, as the trial judge did, that Ms. Mok's s. 8 right was violated when the police videotaped her using the toilet in her cell. I find that she had a subjective expectation of privacy and that her subjective expectation was reasonably held in all the circumstances. The reasonableness of her expectation is supported by a balancing of her individual interest in privacy, dignity, integrity and autonomy, against the state's legitimate interests in monitoring the cell area for safety concerns and the preservation of evidence.
[57] In refusing to grant leave of this Mok decision, the Ontario Court of Appeal did not disturb the finding of a breach of the section 8 rights of the appellant, R. v. Mok, [2015] O.J. No. 4702 (Ont. C.A.).
[58] As a result of the Mok decision, York Regional Police pixelated the area around the toilet on the video-recording cameras that were installed in the individual cells. There are two cameras that video-tape the bullpen cell and both take in the toilet area. The vestibule camera is pixelated so that an individual using the toilet cannot be seen on the video recording; however, the bullpen camera is not pixelated and an individual can be observed on the video recording when they are standing in front of the toilet. When an individual pulls down their clothes their private area is exposed to the camera and is recorded or monitored. When the person sits on the toilet their legs can be seen from their thighs down with their clothing at their ankles. When they stand up to finish and pull up their clothes their private area is again exposed to the camera and is recorded and monitored. All of the officers who testified were aware this one camera was not pixelated in the area of the toilet. All of the officers indicated they were aware a person could be viewed standing in front of the toilet and pulling down the pants and under garments exposing their private area to the camera. No explanation was provided for why this deficiency has not been corrected.
[59] There have been a significant number of cases which address this issue and as a result, YRP and other police forces have taken steps to correct this "highly intrusive invasion of privacy." The fact that one of the cameras in 4 District has not been pixelated despite senior officers being aware of this deficiency, in my view, exacerbates the seriousness of the breach of s. 8 of the Charter that occurred in Ms. Suyat-Pavalaraj's case. Consequently, I find there has been a breach of Ms. Suyat-Pavalaraj's s. 8 Charter rights. I find that she had a subjective expectation of privacy and that her subjective expectation was reasonably held in all the circumstances.
[60] Further, as I found in R. v. Mok, 2012 ONCJ 291, [2012] O.J. No. 2117 and as expressed by Boswell J. in 2014 ONSC 64, [2014] O.J. No. 44, at para. 82, "The reasonableness of her expectation is supported by a balancing of her individual interest in privacy, dignity, integrity and autonomy, against the state's legitimate interests in monitoring the cell area for safety concerns and the preservation of evidence."
[61] The Crown, in her written submissions, conceded the s. 8 Charter breach but argues the evidence of the breath readings should not be excluded pursuant to s. 24(2) of the Charter.
[62] The defence argued in his written submissions I should exclude the breath readings because of the two Charter breaches under s. 8 and 9, taken cumulatively, particularly in light of R. v. Deveau, [2013] O.J. No. 5424, affirmed [2014] O.J. No. 3034 (SCJ, Howden J.) and R. v. Pino, 2016 ONCA 389, [2016] O.J. No. 2656 (C.A.).
Should the breath readings be excluded pursuant to s. 24(2)?
[63] The first issue to be determined is whether the breath samples were "obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter." In this case I have found two breaches of Ms. Suyat-Pavalaraj's Charter rights that were breached by the conduct of the police. This involves determining whether there is a nexus between the breach and the evidence obtained, or put another way, whether the breach and the evidence obtained are part of the same transaction or chain of events or course of conduct. This nexus may be temporal, contextual, causal or the three in combination. There is no need to establish a causal connection between the breach and the subsequent evidence. If there is no nexus then s. 24(2) has no application.
[64] Once the nexus has been determined the next issue is whether it has been established that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. This involves a consideration and balancing of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.).
[65] In R. v. Deveau, supra, Harpur J. found, in the circumstances of that case, the videotaping of a detainee's use of the cell toilet was a breach of s. 8, which necessitated the exclusion of evidence "obtained in a manner that infringed or denied" pursuant to s. 24(2). He relied on a decision of the Ontario Court of Appeal in R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (C.A.) where Watt J. held at paras. 71-73:
Section 24(2) of the Charter only excludes evidence where an accused has demonstrated, on a balance of probabilities, an infringement or denial of his or her enumerated Charter rights or freedoms, and that the evidence proposed for admission was "obtained in a manner" that infringed or denied the accused's Charter right or freedom. This latter requirement insists that there be a nexus, expressed in the language "obtained in a manner" in s. 24(2), between the infringement and the evidence proposed for admission. In the absence of a nexus, or of an infringement, s. 24(2) has no application and the admissibility issue must be resolved otherwise.
To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis: Simon, 2008 ONCA 578, at para. 69. Courts have adopted a purposive and generous approach to the nexus requirement: Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21. An accused need not establish a strict causal relationship between the breach and the subsequent evidence. The subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct: Wittwer, at para. 21; R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1005. The essential nexus between the breach and the evidence acquired later may be temporal, contextual, causal, or the three in combination: Plaha, (2004), 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45; Wittwer, at para. 21; and R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40. Remote or tenuous connections fall short of establishing the necessary nexus; Goldhart, at para. 40; Plaha, at para. 45; Wittwer, at para. 21.
As a general rule, a temporal connection between the Charter breach and the acquisition of the evidence will suffice to make out the nexus requirement under s. 24(2). But the temporal connection involves more than simply counting up the time that has elapsed between the two events. What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha, at para. 49.
[66] Justice Harpur held:
Here, two of Ms. Deveau's video-monitored and recorded uses of the cell toilet preceded her provision of breath samples. In my view, whether on the basis of the time connection or on the basis that the cell detentions and giving of samples are all part of the s. 254(3) C.C. "transaction", the nexus described in Manchulenko exists. There is no causal connection between the toilet use and the subsequent breath sampling but that is not a requirement. It follows that s. 24(2) has potential application to this breach.
[67] Applying the three factors in R. v. Grant, supra, Harpur J. found the first two factors favoured exclusion and the third factor favoured admission and found the administration of justice would be brought into disrepute if the breath readings were admitted. Justice Harpur's analysis was upheld on appeal by Howden J., [2014] O.J. No. 3034 (S.C.J.).
[68] Recently in R. v. Pino, supra, the Ontario Court of Appeal held the following considerations should guide a trial judge's approach to the "obtained in a manner" requirement in s. 24(2):
The approach should be generous, consistent with the purpose of s. 24(2);
The court should consider the entire "chain of events" between the accused and the police;
The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections;
But the connection cannot be either too tenuous or too remote.
[69] Consequently, in Ms. Suyat-Pavalaraj's case, I find the two Charter breaches referred to above were part of the "chain of events" or same transaction or course of conduct, in terms of her arrest and detention at 4 District YRP station and the subsequent taking of her breath samples. Based on the above cases: R. v. Manchulenko, R. v. Plaha, R. v. Wittwer and R. v. Pino, there is no requirement of a causal connection between the videotaping of her use of the toilet or the overholding and the obtaining of Ms. Suyat-Pavalaraj's breath samples.
[70] This leads to a determination, pursuant to s. 24(2), as to whether the admission of the breath samples into evidence would bring the administration of justice into disrepute, which engages the three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term forward-looking and societal perspective. In R. v. Taylor, 2014 SCC 50, [2014] S.C.J. No. 50, the Supreme Court held:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on the public's confidence in the justice system, having regard to "the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits": R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 85.
[71] It goes without saying that the public has an interest in criminal matters being adjudicated on their merits, especially where the evidence sought to be excluded is reliable and essential to the Crown's case. The Supreme Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, at para. 80, the public also has an interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences".
The Seriousness of the State Conduct
[72] It is my view the videotaping of a detainee using the toilet without putting in place some form of pixelation or digitally blocking the area around the toilet can only be viewed as serious Charter-infringing conduct by the police. In response to the two Mok decisions (OCJ and SCJ), which found a serious breach of Ms. Mok's s. 8 Charter right to privacy that touched on her dignity and worth as a human being, YRP pixelated or blocked all of their cell cameras from being able to videotape a detainee using the toilet. That is, except the bullpen camera at 4 District YRP station. The two staff sergeants and two uniformed officers who testified on this trial were all aware of this deficiency in the bullpen's camera. It is my view this heightens the seriousness of the Charter-infringing conduct and shows bad faith on the part of those responsible for monitoring and videotaping different areas of the police station.
[73] What is also important to note is that there is not a door with a small window leading into the bullpen cell, rather, there are bars floor to ceiling which provide an unobstructed view from the booking area, the breath room door and the hallway that officers utilize when prisoners are brought into the station to be booked.
[74] The Crown argues that Ms. Suyat-Pavalaraj could only be seen for a short period of time when she stood up and pulled up her underwear and pants. I do not agree with the Crown's assertion that Ms. Suyat-Pavalaraj's private area is not captured by the camera. I agree it was brief, however, in my view this does not justify or lessen the seriousness of the failure of YRP to pixelate or block the bullpen's camera's view of the toilet area. The fact all of the police officers were aware of this deficiency also raises the question of how did they become aware it was not pixelated as every other cell camera in the station was pixelated? It is my view the seriousness of this Charter breach alone favours exclusion.
[75] The Crown relies on R. v. Singh, [2016] O.J. No. 933 (SCJ) to support her submission that the state conduct was not that serious and therefore the breath readings should be admitted. Yet Justice Campbell in Singh agreed with the trial judge's assessment that the first factor in Grant favoured exclusion. "Without prior judicial authorization, or any specific reasonable and probable grounds to do so, the police videotaped the respondent in the 41 Division station engaged in the private act of urination" (para. 35). Campbell J. held the first factor "tends, at least slightly, to favour exclusion" (para. 37).
[76] In Ms. Suyat-Pavalaraj's case there is also a second Charter breach under s. 9, in terms of the failure of Sgt. Jones in assessing and looking in on Ms. Suyat-Pavalaraj to determine whether she was releasable as he was required to do pursuant to s. 498(1.1) and the case of R. v. Price, which was decided in 2010, yet officers in charge of police stations routinely base their decision to release a detainee solely on the breath readings. Sgt. Jones only relied on Ms. Suyat-Pavalaraj's breath readings. He was completely unaware of his obligation to consider all of the factors set out in Price. He made no notes of P.C. Goodall, the breath technician, advising him that Ms. Suyat-Pavalaraj was releasable, although conceded if P.C. Goodall said he did then he did. There were two individuals who were prepared to come to the station to pick Ms. Suyat-Pavalaraj up, one had confirmed this with P.C. Kogevnikov at the scene, yet no phone calls were made. Ms. Suyat-Pavalaraj had asked P.C. Goodall when she would be released and he advised her it would be as soon as the paperwork was prepared. She told P.C. Goodall about her friends who would pick her up. P.C. Kogevnikov finished the paperwork at 5:52 a.m. Ms. Suyat-Pavalaraj was not charged with impaired driving and she did not appear to be under the influence of alcohol in the videos played by the Crown in the evidence. She was polite and cooperative with the police. She did not have a criminal record and had never been in trouble with the police previously. She was not released until 10:21 a.m.
[77] The failure of Sgt. Jones to properly assess when Ms. Suyat-Pavalaraj could be released is serious given the opinion of the breath technician she was releasable. Further, his justification for not properly assessing her condition or inquiring whether someone would pick her up, namely, in his experience no one comes to pick up persons in police custody, was completely without merit. As I indicated previously, I do not accept his evidence on this issue. This means as the officer in charge of the station, according to Sgt. Jones' view, he does not have to comply with the provisions of the Criminal Code simply because he believes no one will attend to drive the person home.
[78] It is my view the combination of these two Charter breaches increase the seriousness of the Charter-infringing state conduct and in my view the first factor favours exclusion.
The Impact of the Charter breach on the Accused's Charter-protected interests
[79] In R. v. Grant, supra, at paras. 76-78, the majority in the Supreme Court held:
76 This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) -- all stemming from the principle against self-incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. 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.
78 Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [Emphasis added]
[80] The Crown relied on R. v. Singh to argue the second factor in Grant favoured admission of the breath test results. In R. v. Singh, supra, Campbell J. agreed with the trial judge that there was a "clear temporal connection" between the videotaping of the accused using the toilet in the cell and the Intoxilyzer results of the accused's breath samples. Accordingly, the Intoxilyzer results could properly be described as having been "obtained in a manner" that infringed or denied the constitutional rights of the accused, thereby triggering the operation of s. 24(2) of the Charter. His criticism of the trial judge's exclusion of the evidence had to do with the trial judge's analysis of the second factor in Grant, the impact of the Charter violation on the accused's Charter-protected interests.
[81] Justice Campbell gave four reasons why he believed the trial judge's assessment of the impact on Mr. Singh as being high was incorrect and did not accord with the evidence. First, Mr. Singh was fully clothed and was seen on camera from the back with none of his private body parts being observed or recorded. Second, because the video was of Mr. Singh fully clothed apparently urinating, it had very little impact on his privacy interests, although it had the potential of having a significant impact. Third, Justice Campbell found there was no causal connection between the violation of Mr. Singh's Charter rights and the evidence excluded. He relied upon certain portions of para. 122 in Grant to support his position. Justice Campbell found the trial judge's failure to consider the absence of any causal relationship between the s. 8 violation and the police obtaining the breath samples for analysis meant the trial judge failed to consider "all of the circumstances" of the case as required by s. 24(2).
[82] In para. 50, Justice Campbell held:
Of course, in the factual circumstances of the present case, while there is a clear temporal connection between the Charter violation and the Intoxilyzer results of the respondent's breath samples, there is no causal connection whatsoever. They were entirely independent events. The fact that the police violated the respondent's s. 8 Charter rights by video recording him urinating in an unused cell had no causal connection to the respondent providing his breath samples to the police for Intoxilyzer analysis. This reality suggests that the Charter violation had a truly minimal impact upon the respondent, in that the Charter violation did not causally result in the police gathering any incriminating evidence against the respondent.
[83] The fourth reason proffered was that the breath samples were taken by an "approved instrument" within the meaning of s. 254(1) of the Criminal Code. He notes, "This procedure has long been recognized as a relatively non-intrusive procedure, which has no more than a slight impact upon the Charter-protected interests of motorists" (at para. 51). As a result he concluded on the facts in Singh, the second factor in Grant favoured admission.
[84] The Supreme Court focused the second inquiry on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. In setting out the scope of the second inquiry under s. 24(2) there is no requirement there be a causal connection between the Charter breach and the evidence sought to be excluded. In fact, in determining where the evidence was obtained in a manner that infringed or denied any rights or freedoms, the Supreme Court of Canada in Wittwer and the Ontario Court of Appeal in Manchulenko and Pino held it was not necessary for there to be a "strict causal relationship" between the Charter breach and the evidence obtained.
[85] Further, it is my opinion, both Charter breaches are to some extent causally related to the taking of the breath samples. First, Ms. Suyat-Pavalaraj would not be in the police station had she not been arrested for over 80. The police have obligations to respect and ensure a detainee's Charter-protected interests and rights are protected. The monitoring and videotaping of detainees is done as part of a policy decision by the police. A decision was made to install toilets in police cells, without privacy walls thereby exposing the detainee to having their private areas of their body observed and recorded by police officers and civilian employees of either gender. Bathrooms could have been constructed in an area adjacent to the cells but which afforded the detainee privacy.
[86] There is no doubt the obtaining of breath samples is a minimally intrusive procedure, which has no more than a slight impact upon the Charter-protected interests of motorists. However, exposing the private areas of detainees' bodies to a camera so they can be observed and recorded is not minimally intrusive.
[87] The facts in Singh are significantly different from the case at bar. Justice Campbell himself referred to those cases where monitoring and recording of a detainees private area occurred and he concedes the s. 8 Charter breach in those cases had a significant impact on the Charter-protected interests of the accused (at para. 42).
In cases where the evidence has been properly excluded under s. 24(2) of the Charter, the impact upon the accused has been far greater, with the video recordings of their washroom activities capturing much more intrusive images of the naked private body parts of the accused. See, for example, R. v. Smith, [2015] O.J. No. 3828 (C.J.), at paras. 70-75, 104, 132-135; R. v. Joseph, 2014 ONCJ 559, 322 C.R.R. (2d) 6, at paras. 20-21, 42. Those types of cases stand in marked contrast to the factual circumstances disclosed in the present case.
[88] As I have already indicated, in Ms. Suyat-Pavalaraj's case there are two Charter breaches. Ms. Suyat-Pavalaraj's private area was exposed to the camera. Had the bullpen camera been pixelated as every other camera had in 4 District, it is highly unlikely Ms. Suyat-Pavalaraj would have been exposed. No explanation was provided as to why this deficiency existed. In my view the videotaping and monitoring of a detainee using a toilet that exposes their private area to the camera is a serious invasion of that individual's privacy rights. As found by Justice Boswell, "the monitoring and videotaping of detainees using the cell toilet by police officers and civilian employees of either gender is a "highly intrusive invasion of privacy"."
[89] Justice Howden refers in his decision affirming Justice Harpur's exclusion of the breath readings in Deveau to the seriousness of the impact of Ms. Deveau being videotaped using the toilet (at para. 20):
Ms. Deveau is in a cell probably for the first time in her life. She is denied a basic right to privacy which touches on her dignity and worth as an individual. In that hour and a half between the incarceration and the breath samples being taken, she is treated as no better than a convicted prisoner even though she has not been tried, and she is entitled to the presumption of innocence that any detainee before trial is entitled to. The deprivation of her right to privacy for her most basic human functions becomes one transaction in time, in experience, and no doubt in her consciousness with having then to provide samples of her breath to the police, another taking from her though not as invasive as being video and audio-recorded while urinating or excreting her waste substances open to view of anyone who wandered in and to those monitoring the recording equipment.
[90] It is my view the admission of this evidence would signal to the public that Charter rights are of little value to citizens, breeding public cynicism and bringing the administration of justice into disrepute. As I indicated earlier in these reasons, videotaping a person only charged with an offence, presumed to be innocent is a serious s. 8 breach and comes very close to the police engaging in strip searches on a routine basis for every person brought to a police station under arrest. The need to ensure the safety of police officers and detainees does not outweigh the privacy rights of a person under arrest in a police cell. It is clear accommodations were able to be instituted to protect privacy rights without sacrificing the safety issues justifying monitoring and videotaping in the first place.
[91] Consequently, I am of the view the second factor in Grant favours exclusion of the breath samples.
Society's interest in the adjudication of the case on its merits
[92] The third factor "asks whether the truth seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion." Courts have recognized that "the reliability of the evidence is important in this line of inquiry." Breath readings that result from an approved instrument, operated properly, are reliable evidence, which is crucial to the Crown's case. "Drinking and driving cases" continue to present a serious danger to our communities and users of roadways, and society has a great interest in seeing such matters tried on their merits. In my view this factor favours admission of the evidence.
Conclusion
[93] The final task is to balance each of these factors and determine whether in all of the circumstances of this case if the admission of the evidence would result in bringing the administration of justice into disrepute. It is the defence's burden to establish this on a balance of probabilities. Considering the two Charter breaches I have found, which resulted in a significant loss of human dignity and deprivation of liberty not in compliance with s. 498(1) of the Criminal Code and for more than a transient period of time, I am of the opinion the administration of justice would be brought into disrepute by the admission of the breath readings. The defence has met its burden.
[94] Consequently, the breath readings are excluded. This being the only evidence relating to whether Ms. Suyat-Pavalaraj was over the legal limit the charge of operating a motor vehicle with greater than 80 mg of alcohol in 100 ml of blood is dismissed.
[95] In light of my exclusion of the breath readings pursuant to s. 24(2) it is not necessary for me to address whether s. 24(1) would require a stay of proceedings.
Released: April 26, 2017
Signed: Justice Peter C. West