Court File and Parties
Date: March 29, 2018
Court File No.: Brampton 16-7998
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Suharshani Wijesuriya
Before: Justice Paul F. Monahan
Heard on: January 30 and 31, 2018
Reasons for Judgment
Released on: March 29, 2018
Counsel:
Ms. G. Gill — for the Crown
Mr. C. Angelini — for the Defendant
MONAHAN J.:
Introduction and Overview
[1] Ms. Suharshani Wijesuriya is charged that on or about June 19, 2016 that she did operate 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] The trial was held on January 30 and 31, 2018. The defence brought a Charter application at trial alleging a section 8 Charter violation. It was the submission of the defence that the section 8 violation arose because, while the defendant was in short term police custody, the police did not respect her privacy interests because police watched her while she used the toilet on two occasions. As a result, the defence submits that the breath samples should be excluded pursuant to s. 24(2) of the Charter.
[3] The defence also submitted at trial that the breath samples were not obtained as soon as practicable and that therefore the presumption of identity could not be relied upon. Apart from the as soon as practicable point, it was established that two breath samples of 160 and 143 mg of alcohol in 100 ml of blood respectively were obtained within the parameters of s. 258(1)(c) of the Code.
[4] The trial proper and the Charter application were held, on consent, on a blended basis.
[5] The Crown called two witnesses at trial: Officer Darla Samms, the arresting officer and Officer Dane Pallett, the breath technician. Officer Samms had been a police officer with Peel Regional Police for approximately one year when the arrest took place. Officer Pallett of the Peel Regional Police was qualified as a breath technician in 2012. He was the more senior of the two officers.
[6] The defence called Ms. Wijesuriya as a witness on the Charter application only.
[7] I review the evidence and find facts in the context of the issues below.
Issues
[8] The issues that arise on the evidence and the arguments of counsel are as follows:
Issue I – Were the defendant's section 8 Charter rights violated in connection with her use of the toilet while in police custody?
Issue 2 – If there was a section 8 Charter violation, should the breath samples be excluded pursuant to section 24(2) of the Charter?
Issue 3 – Were the breath samples obtained as soon as practicable?
[9] I will examine each issue in turn.
Issue I – Were the defendant's section 8 Charter rights violated in connection with her use of the toilet while in police custody?
Factual Overview
[10] By way of introduction, I will briefly summarize the evidence on this point as well as my findings with respect to contested facts. I will expand upon some of the facts in my analysis of the issues below.
[11] There is no dispute that Ms. Wijesuriya asked and was permitted to use the washroom on two occasions while she was held in custody at Peel Regional Police's 22 division. These two occasions were at approximately 1:23 AM and just before 1:46 AM, before she gave her breath samples. She was in the direct custody of Officer Samms at 22 Division when she used the toilet.
[12] Officer Samms explained that at 22 division when prisoners are in the lodging area they use toilets which are essentially separate washrooms with no door on them located down a corridor. The toilet faces outwards. There was conflicting evidence on the distance of the toilet to the door but I find that the toilet was approximately 10 feet into the washroom from the doorway. It may have been slightly less or slightly more. There are two washrooms like this in the corridor.
[13] I note that Officer Samms testified that at 11 Division (another police station in Peel), more privacy is afforded persons in short term police custody. Such persons are permitted to use a bathroom with a door which is closed but kept ajar by the police officer's foot so that the door is not completely closed.
[14] Ms. Wijesuriya testified that when she first used the washroom, Officer Samms "kept looking at me". Ms. Wijesuriya said she felt "really embarrassed" and did not feel comfortable pulling her underwear down in front of someone else and that she was menstruating at the time which made matters worse from her perspective. She testified that she was wearing a short dress (which is confirmed by the breath room video) and that she tried to cover herself up but that it was difficult. She said that Officer Samms watched her in such a manner that she could "see my parts. Like you can see what I'm doing". She testified that she complained to Officer Samms at the time and that the two of them were "arguing … back and forth" with Ms. Wijesuriya telling the officer that she wanted privacy and that she did not want to be watched while she used the toilet. Notwithstanding the concerns that she raised with her, Officer Samms continued to monitor and view her while she was using washroom. To the extent that Officer Samms stepped away, Ms. Wijesuriya said "she kept coming back". It wasn't continuous viewing but it occurred throughout her use of the washroom and she did not succeed in using washroom the first time she tried.
[15] Officer Samms testified that it was part of her training "to maintain observation from the initial point of contact with her on the roadside, to the completion of the breath tests". She said this was for Ms. Wijesuriya's safety and the officer's safety and that it applied in particular to "intox prisoners". There was no real dispute from Officer Samms that she considered that her obligation to monitor prisoners included when they were using the toilet and that this was for investigatory purposes as well. As to how she actually monitors prisoners, including Ms. Wijesuriya when they used the toilet, she said that this involves facing the prisoner for at least part of the time when they used the toilet, and that they were not afforded any privacy gown or screen.
[16] Officer Samms had no notes pertaining to her monitoring of Ms. Wijesuriya when she was using the toilet other than that the times were noted. She had no note of Ms. Wijesuriya complaining about it but she did not seriously dispute that matters had unfolded as Ms. Wijesuriya said they did and in my view there would be no basis to contest what Ms. Wijesuriya said happened. When Officer Samms was asked in chief what her orientation was towards Ms. Wijesuriya when she was using the toilet, she stated "I don't recall exactly, but I'd imagine I could have been facing her or could have turned my back at one point as well". Similarly, in cross-examination she said "yes, so I didn't recall if I was facing or I had my back turned at some point towards the bathroom". I note that the emphasis of Officer Samms' evidence was that she thought she would have faced Ms. Wijesuriya while she used the toilet and that she might have turned her back at some point. This is consistent with the testimony of Ms. Wijesuriya. To summarize, I find that Officer Samms watched Ms. Wijesuriya directly when she used the toilet and that she did so at least in part for investigatory purposes. The emphasis of the monitoring by Officer Samms was on facing Ms. Wijesuriya. To be clear, I reject any suggestion that Officer Samms was only viewing Ms. Wijesuriya through her peripheral vision.
[17] I will explain what transpired when Ms. Wijesuriya complained to the breath technician about the lack of privacy when she used the toilet but suffice it to say at this stage that she used the washroom again just before 1:46 AM under the supervision Officer Samms. Ms. Wijesuriya did not recall precisely what had occurred on that second occasion other than she knew Officer Samms accompanied her and again stood across from her when she was using washroom. She essentially said that she had to urinate so badly by that point in time (having not succeeded the first time) that she simply did so and was unable to recall further details as to how Officer Samms monitored her on the second visit to the washroom. Officer Samms testified that she could not recall what had happened on the second visit to the toilet.
[18] I infer from the evidence that essentially the same thing happened just before 1:46 AM as had happened at 1:23 AM namely that Officer Samms, as part of her practice of monitoring prisoners in her custody, monitored and viewed Ms. Wijesuriya while she used the toilet just before 1:46 AM. It was not continuous monitoring or viewing but she did directly view her for a considerable period of time while she used the toilet just as she had done at 1:23 AM.
[19] Officer Samms said that at no time did she see Ms. Wijesuriya's genitals. She said she would have remembered that. In my view, she may well have seen Ms. Wijesuriya's genitals; she was certainly in a position to do so given her vantage point and her monitoring of Ms. Wijesuriya. I will discuss this point further in the analysis below.
[20] I note as well that male officers were nearby and were free to, and could have, walked by in front of the open doorway to the toilet when Ms. Wijesuriya was using it but there is no evidence that that occurred.
[21] After her first visit to the toilet at 1:23 AM and before her second visit at just before 1:46 AM, Ms. Wijesuriya complained to the breath technician, Officer Pallett, about the fact that Officer Samms was watching her while she was using toilet. This complaint is captured on the breath room video close to the beginning of the video. Officer Pallett, as indicated above, was an officer who was senior to Officer Samms. The following is a transcription of what occurred on the breath room video concerning this point:
SW: can I go to the washroom please?
OP: you'll have to wait until the officer comes back.
SW: and how come I can't go to the washroom where the door is closed?
OP: cause that's the rules here.
SW: Well the last time, since you guys have all my information, the last time that I got arrested here I was able to go to the washroom where there was a door that was closed.
OP: well I guess things must be different now, aren't they?
SW: so how come you guys don't have any doors that are closed, like what if a female is not comfortable with that ?
OP: that would be your problem now, wouldn't it?
SW: yeah clearly. I'm just asking you a question.
OP: well because we deal with people who lock themselves in bathrooms and try and kill themselves while they're in our custody, so we eliminate that by taking away the door. We don't stand there and watch you, and if the person has a problem with urinating or using the bathroom like it would be like using a urinal, say for a man, and you've got a problem doing that in an open area, then I guess you'll just have to hold it. Nobody is sitting there watching you. There's no video camera in there.
SW: well she was there while I was using the washroom. It was very uncomfortable .
OP: Ok. (emphasis added)
Law and Analysis
[22] The defendant submits that her section 8 Charter rights were violated when she was watched by the arresting officer while she used the toilet in police custody. As a result, the defence submits that the breath sample evidence should be excluded pursuant to section 24(2) of the Charter.
[23] The Crown submits that there was no section 8 violation because, among other things, there was no videotaping of the defendant using the toilet and limited viewing of the defendant while she was using the toilet. In the alternative, this Crown submits that if there was a section 8 violation there should be no exclusion of evidence.
[24] The majority of, or perhaps all, cases involving alleged section 8 Charter violations for police monitoring persons using the washroom or toilet while in police custody also involve police videotaping persons in custody while they use the washroom/toilet: see for example R. v. Mok, 2012 ONCJ 291, appeal allowed 2014 ONSC 64, leave to appeal refused [2015] O.J. No. 4702 (C.A.); R. v. Noel, 2015 ONSC 1757; and R. v. Griffin, 2015 ONSC 927.
[25] In Mok, Justice West of this Court found a section 8 violation by reason of the monitoring and videotaping of a woman using the toilet in police custody on a drinking and driving charge. He granted a stay of proceedings pursuant to section 24(1) of the Charter. On appeal of Justice West's decision, Justice Boswell of the Superior Court upheld the finding of a breach of section 8 but set aside the s. 24(1) stay. He did so for a number of reasons including that the case was one of first instance meaning that it was a new issue not previously identified in the case law and that therefore the police could not be faulted to the same degree as might be the case were it to have been a settled legal issue. He recommended that the situation be remedied by police repositioning the video cameras or installing privacy screens (see para. 98 of Justice Boswell's decision at 2014 ONSC 64).
[26] The Court of Appeal in Mok refused leave to appeal in the case because, among other reasons, the York Regional Police Force involved in the Mok case had since taken steps "to ensure that prisoners' privacy while using the toilet is now protected from both viewing and videotaping" (my emphasis). The Court of Appeal noted that other police forces had taken similar steps and in this regard cited R. v. Orenchuk, 2014 ONCJ 650 involving Peel Regional Police among other cases (see para 5 of the Court of Appeal's decision in Mok). For a review of some of the other washroom/toilet cases in which stays under s. 24(1) and the exclusion of evidence under s. 24(2) have been variously refused and granted see footnote 17 of Orenchuk, supra.
[27] It is in the foregoing context that this case arises. In the case at bar, the defence submits that a section 8 violation occurred because there was monitoring and viewing although no videotaping of the defendant while she was using the toilet in police custody.
[28] The question of whether there is a section 8 Charter privacy 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: R. v. Edwards at para 45. I recognize as well that a person's reasonable expectation of privacy is less once they are under arrest and less still after they had been convicted and are serving a sentence: see R. v. Stillman at para. 61.
[29] I note as well that in the strip search context a distinction is drawn between the privacy interests of persons who are entering the general prison population and those persons who are simply being held in a police holding cell for a short term pending release from the police station. In particular, see Justice Duncan's decision in R. v. Coulter, 2000 O.J. 3452 which was approved of by the Supreme Court of Canada in R. v. Golden, 2001 SCC 83 at para 97 where the Supreme Court said that "we recognize that police officers have legitimate concerns that short-term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by case basis and cannot justify routine strip searches of all arrestees".
[30] I also acknowledge that the practice of monitoring and recording activities of persons in police custody is based on sound public policy: see for example R. v. Griffin, supra at para. 35.
[31] I recognize that someone being watched by police for safety and investigatory purposes while they use the toilet is not the same as a strip search. However, I do consider that it is on the same continuum. I further consider that the same point that Justice Duncan made in Coulter and the Supreme Court made in Golden applies here namely that persons held in short term police custody for crimes they are presumed innocent of are in an entirely different category than persons entering the general prison population. In my view, the police could no more routinely view Ms. Wijesuriya while she pulled down her underwear and used the toilet than they could strip search her.
[32] In my view, it is beyond question that the defendant's section 8 Charter rights were violated in this case. While the primary focus in Mok and the other so-called washroom/toilet cases was on the question of videotaping, those same cases make it abundantly clear that police are not to engage in wholesale automatic viewing of all persons in short term police custody while those persons are using the toilet. The Court of Appeal in Mok stated that there was a need to protect prisoners' section 8 Charter rights from both "viewing and videotaping" (my emphasis) when they are using the toilet in police custody. Further, I adopt and accept the point that Justice Boswell of the Superior Court made in Mok namely that the "monitoring and videotaping by police officers of either gender is a highly intrusive invasion of privacy" (see Boswell J. at para 81 at 2014 ONSC 64).
[33] In my view, persons in short-term police custody must be accorded basic privacy when using the toilet. I understand and appreciate that police have to monitor carefully the actions of persons in their custody so as to protect both the detainee and the police. However, here there was no need to be directly viewing Ms. Wijesuriya while she was using the toilet. She was in police custody and was being held on a short term basis. She was presumed innocent of the over 80 charge for which she was under investigation and would ultimately be charged. She was searched at the time of her arrest. There was no reasonable evidentiary basis for believing that she was a risk to herself or anyone else. At a minimum, she should have been given a privacy gown or blanket to wrap around her waist and have the police officer face away from her while she used the toilet.
[34] Officer Pallet told Ms. Wijesuriya on the breath room video, in effect, that she was being treated appropriately because she was being treated the same as a man using a urinal in a public washroom. This is not correct. The issue of male detainees using the washroom in police custody has been subject of judicial commentary to the effect that while it will likely be a violation of section 8 of the Charter to watch a man in police custody use a urinal, it will not usually been seen as a serious breach and the impact on the person will usually be limited because it is the same as occurs in public washrooms for persons of the male gender: see R. v. Singh 2016 ONSC 1144 (per K.L. Campbell J.). In my view, the situation with male detainees required to use a urinal in police custody much the same way they would in any public washroom has no application to female detainees. Persons identifying with the female gender are not expected to use toilet stalls with open doors in public washrooms and to have other females watch them while they do so.
[35] To summarize, in the case of persons charged with crimes for which they are presumed innocent and being held in short-term police custody, the automatic viewing of prisoners using the toilet in these circumstances without being able to establish that there is a reasonable basis for the viewing (beyond saying that all persons charged with drinking and driving are monitored in this way), and without permitting the prisoner to option to cover up is a violation of section 8 of the Charter. Such persons, including Ms. Wijesuriya, have a subjective expectation that this should not occur and that expectation is objectively reasonable. It is my view that the case law is clear that such viewing of persons using the toilet without permitting them to use some form of privacy screen or gown is a violation of section 8 of the Charter.
Issue 2 – If there was a section 8 Charter violation, should the breath samples be excluded pursuant to section 24(2) of the Charter?
[36] Having found a section 8 violation, the Court must consider the framework laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. Section 24(2) provides in part that where a "court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
[37] The Grant test requires that this Court consider (i) the seriousness of the Charter infringing conduct; (ii) the impact of the breach on the Charter protected interests of Ms. Wijesuriya; and (iii) society's interest in adjudication on the merits. The Court must balance and consider each one of the Grant factors in order to determine whether, considering all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
"Obtained in a Manner"
[38] Before engaging in the Grant analysis, it is necessary to determine whether the breath samples can be said to have been "obtained in a manner" that infringed Ms. Wijesuriya's section 8 Charter rights. If not, then they could not be excluded under section 24(2) of the Charter. If so, then they may potentially be excluded depending on the Grant analysis.
[39] In this case, the two section 8 Charter breaches came before the providing of the breath samples. In any event, recent case law from the Ontario Court of Appeal makes it clear that there is no requirement that the Charter violation come before the obtaining of the evidence sought to be excluded under section 24(2). In particular, in R. v. Pino, 2016 ONCA 389 at para. 72, Justice Laskin for the Court of Appeal stated as follows as concerning the determination of the "obtained in a manner" issue:
The approach should be generous, consistent with the purpose of section 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 of the Charter breach is part of the same transaction or course of conduct.
The connection between the evidence and the breach may be causal, temporal or contextual or a combination of these three connections.
The connection cannot be either too tenuous or remote
[40] In my view, the provision of the breath samples in this case was temporally and contextually connected to the two breaches of Ms. Wijesuriya's section 8 Charter rights and was not remote. While there was no causal connection between the section 8 breaches and the provision of the breath samples, there does not have to be in order for there to be an exclusion order under section 24(2). In my view, there was a close association between the section 8 breaches of privacy and the taking of the breath samples in that they occurred close in time to one another and as part of the same general process. The first section 8 breach happened immediately before she entered the breath room. The second section 8 occurred after she had entered the breath room and complained about the lack of privacy and then asked to use the toilet again.
[41] In my view, the breath samples were obtained in a manner that infringed Ms. Wijesuriya's section 8 Charter rights. I turn to the Grant analysis.
(i) The Seriousness of the Charter Infringing Conduct
[42] In my view, the Charter infringing conduct in this case was serious. Looked at in a narrow sense, the arresting officer did not personally act in bad faith as she was apparently following her training. However, that is much too narrow a view of the matter and does not properly consider the overall police conduct. It is the fact that Officer Samms testified that she was following her training that is so troublesome in light of the case law. In my view, officers should not be trained to view all persons in short-term police custody when they are using the toilet in the absence of an articulable reasonable basis for doing so in connection with that particular prisoner beyond saying that it is done with all persons charged with drinking and driving offences.
[43] The fact that the uncontested evidence was that the officer said she was following her training when she viewed and monitored Ms. Wijesuriya on two occasions when she used the toilet establishes that the problem is a systemic one. Further and importantly, the case at bar is no longer a case of "first instance" as it was in the Mok case and the other washroom/toilet cases from several years ago including Orenchuk, supra, which involved the Peel Regional Police. The lesson, among others, from the Mok decisions and other cases in this area is, in my view, that the automatic viewing or monitoring of all prisoners in short-term custody while they are using the toilet, without according the person some reasonable degree of privacy, is a clear section 8 Charter violation. Further, the Crown has sought to avoid stays and the exclusion of evidence in cases like Mok because they indicated to the Courts hearing those cases that police forces around the province had taken steps to remedy this problem. This same argument seems to have been used, among other arguments, to oppose leave being granted to the Court of Appeal in the Mok case. It is evident from the evidence in the case at bar that Peel Regional Police have not taken sufficient steps to properly respond to the Mok line of cases. The arresting officer in this case, a relatively new recruit at the time of the events giving rise to the case, made it clear that the viewing of prisoners in short term police custody using the bathroom is apparently occurring as a matter of course and as matter of police training. I note as well that the structural arrangements at 22 division appear to permit male officers to walk by the toilet being used by women detainees like Ms. Wijesuriya which exacerbates the problem. Finally, I note that while it did not happen in this case, Officer Samms also testified to the lack of privacy for detainees using the toilet in the actual cells as oppose to the toilet in the corridor. She said that "at any given time an officer can be walking through the cell area and a prisoner can be on the toilet… that's just the way the setup is of the toilet in the cells". No privacy gown is afforded these persons.
[44] Following the Mok line of cases, the Peel Regional Police should have ensured that in the absence of specific and justifiable reasons for doing so in a given case, officers were trained not to view prisoners in short-term custody while they use the toilet without giving them an opportunity to cover themselves with a gown or a blanket at a minimum. Peel Regional Police's failure to do so signals a systemic training problem and a lack of good faith.
[45] The conduct of the arresting officer in this case was exacerbated by the actions of Officer Pallett. As I indicated above, Officer Pallet was the breath technician and was the more senior officer involved in this case. Watching the breath room video, it is apparent to me that he treated Ms. Wijesuriya in a dismissive and high-handed manner both in connection with the washroom/toilet privacy issue and other issues. As concerns the privacy issue, I have been over what he said above. The full force of what he said cannot be simply read as words on a page but need to be listened to on the breath room video to get the full tone that he used with Ms. Wijesuriya. The bottom line was that he told her that if she didn't like it "I guess you'll just have to hold it". He asserted that there was "nobody sitting there watching you" and when Ms. Wijesuriya specifically responded to this incorrect assertion and said that the arresting officer "was there while I was using washroom" he took no steps to respond to her legitimate privacy concerns.
[46] In addition to being dismissive of her privacy concerns he also made personal comments to her which in my view have no place in the breath room. When Ms. Wijesuriya said she had asthma, he made a comment a few minutes later "you being claustrophobic, you having asthma, you having a bad attitude problem, none of that is my problem. I don't care." When she made the statement that she was upset that night because her boyfriend had cheated on her, he made the statement multiply times to the effect that "people always have a reason to cheat".
[47] To be fair to Officer Pallet, Ms. Wijesuriya used crude language throughout her discussions with him. She made improper comments about Officer Pallett and Officer Samms. She told Officer Pallett that Officer Samms was "stupid" for not letting her use the toilet privately. She referred to having a need to urinate as "taking a piss". She told Officer Pallett that he would or should "give a shit" about her personal issues. On the other hand, it was Officer Pallett who was the state actor in this case. He had Ms. Wijesuriya in his custody and she was obliged to provide breath sample evidence against herself to Officer Pallett pursuant to the relevant Criminal Code provisions. It was Officer Pallett who started with the dismissive tone on the breath room video when Ms. Wijesuriya first asked him about having privacy when she used the toilet. Regardless of the language she used with him, Officer Pallett had an obligation to act professionally in his approach to her and I don't think that he did so as fully as he should have.
[48] At trial, Officer Pallet explained his personal comments to Ms. Wijesuriya. He said that his comment about people always having a reason to cheat was just a "the truth hurts" point and that while his demeanour may have been "abrasive" he said that this was because he does not have sympathy for people in custody charged with criminal offences – he has sympathy for victims.
[49] In my view, Officer Pallet's overall approach to Ms. Wijesuriya can be explained by his last comment about having no sympathy for people in police custody but rather having sympathy for people who are victims of crime. It appears to me that he was dismissive of Ms. Wijesuriya and was rude to her during the course of the breath room video because as far as he was concerned, she was guilty. He had no obligation to have sympathy for her. However, he was obliged to treat her fairly and with respect regardless of any offence she was to be charged with or whether he thought she was guilty.
[50] To summarize and to be clear, Officer Pallett's personal comments about cheating and the like did not amount to a section 8 Charter violation in my view but they provide some context for the dismissive manner in which he dealt with the section 8 Charter violation that was raised with him concerning Ms. Wijesuriya's use of the toilet. To repeat, the Charter offending conduct occurred when the arresting officer followed her training and watched Ms. Wijesuriya while she used the toilet on two occasions. When Ms. Wijesuriya's privacy concerns were raised with Officer Pallett, he dismissed them and this exacerbated the breaches in my view.
[51] For the reasons outlined above and in particular fact that the viewing of Ms. Wijesuriya while she used the toilet was done pursuant to police training notwithstanding the Mok line of cases and other cases in this area, the shortcomings of the actions of the police in this case make the Charter infringing conduct serious. In my view, this factor favours exclusion of the evidence.
(ii) Impact of the Breach on the Charter Protected Rights of Ms. Wijesuriya
[52] In my view, there was a moderate impact on the Charter protected rights of Ms. Wijesuriya and I will explain why.
[53] Ms. Wijesuriya used the toilet twice with the officer in charge looking at her while she used it. On the first occasion at 1:23 AM, I accept Ms. Wijesuriya's testimony that she told the officer not to watch her and that the officer may have looked away briefly but that she returned and continued to watch her. I have also found as a fact that notwithstanding that Ms. Wijesuriya could not recall all of the details of the second visit to the toilet just before 1:46 AM, essentially the same thing occurred again and that this occurred after Ms. Wijesuriya had complained to the breath technician about the problem with the first visit to the washroom. I also accept Ms. Wijesuriya's evidence that she was menstruating at the time and that she tried to cover herself up but that it was difficult to do so given that she was wearing a short dress.
[54] When one reads the many washroom/toilet cases one gets the impression that in at least some cases the privacy concern about videotaping or viewing while a prisoner is using the washroom is something that arises later after they have been charged and retained counsel. That was not the case here. Ms. Wijesuriya immediately registered her concerns first with the arresting officer when it happened and then with the breath technician as captured on the breath room video. This lends strong support to her evidence that she felt very embarrassed by being watched while she used the toilet.
[55] In my view, the impact on her Charter rights was exacerbated by the fact that the viewing of her using the toilet happened twice and by the dismissive way in which Officer Pallet dealt with her privacy concerns by basically telling her that if she did not like it, she was going to have to "hold it".
[56] Officer Samms said that she did not see Ms. Wijesuriya's genitals. When asked in cross-examination how Officer Samms knew that, she said that she would have remembered it. There is no doubt that the way in which Ms. Wijesuriya was left to use the toilet, her genitals would very likely have been exposed to the officer and the officer may well have seen them. As Ms. Wijesuriya testified, Officer Samms could "see my parts. Like you can see what I'm doing". In a sense, it is a bit beside the point as to whether or not Officer Samms actually saw Ms. Wijesuriya's genitals. Ms. Wijesuriya was not afforded any privacy while she used the toilet twice and her genitals were very likely exposed to the officer. She complained about it to the officer in charge and to the breath technician, all to no avail. Worse still, she was essentially berated by Officer Pallett for even raising it. I note as well that Officer Samms had no note of the complaints that Ms. Wijesuriya registered with her even though there is no doubt in my view that she did complain to Officer Samms at the time.
[57] I consider the fact that there was no videotaping of Ms. Wijesuriya when she used the toilet makes this case not as serious as some of the videotaping cases. In my view, it is worse to videotape someone while they use the toilet as a record is then in existence and could be viewed by others. Further, I recognize that the officer viewing Ms. Wijesuriya when she used the toilet was of the same gender. Perhaps this is not as bad as being viewed by someone of the opposite gender but it is nevertheless improper and a breach of privacy and the case law makes this point clear.
[58] I also acknowledge that the breath samples obtained in this case have been held by higher courts to be minimally intrusive: see R. v. Grant, 2009 SCC 32 at paras. 106-111; see also the recent decision of the Ontario Court of Appeal in R. v. Jennings 2018 ONCA 260 at paras. 24-34.
[59] In Jennings, Justice Miller, speaking for the Court of Appeal, allowed an appeal from an acquittal by the trial judge, upheld on summary conviction appeal, on an over 80 charge. A conviction was entered by the Court of Appeal and the case remanded to the trial judge for sentencing. The Court of Appeal found that the trial judge erred when he ruled that there was no reasonable and probable grounds for the arrest because the arresting officer did not have objectively reasonable grounds to believe that the approved screening device ("ASD") was functioning properly. The Court of Appeal found the trial judge failed to properly recognize that the arresting officer knew that the device would not accept a sample if it was not properly calibrated and accuracy checked. The Court of Appeal also said that the fact that the arresting officer acted contrary to his training because he did a self-test (which registered zero) at the roadside instead of at the beginning of the shift should have made no difference to the trial judge's reasonable and probable grounds analysis.
[60] The Court of Appeal went on in Jennings to make further observations on the s. 24(2) analysis. The Court said that even if there was a problem with reasonable and probable grounds for the arrest, the error was not serious and the officer acted in good faith. Accordingly, the first Grant factor favoured the admission of the evidence. As to the second Grant factor, the Court emphasized that the trial judge erred by considering not just the breath sample procedure but also the entire police interaction post arrest which was viewed as having a serious impact on the accused's rights. The Court of Appeal suggested that in considering the second Grant factor the trial judge should have focused on the minimally intrusive nature of the breath samples thereby concluding that the second Grant factor also favoured admission. Finally, the third Grant factor favoured admission as well and the breath samples should not have been excluded even if there was a section 8 breach associated with the ASD.
[61] I do not read the Ontario Court of Appeal in Jennings as saying that breath sample evidence will always be admissible notwithstanding a Charter breach. In my view, what the Court in Jennings was saying was that where there is a section 8 Charter breach which is not serious it will not usually be the case that the breath sample evidence will be excluded. That was the case in Jennings where the Court found no Charter breach but said that even if there was a Charter breach, it was not serious. In furtherance of this point, the Court of Appeal in Jennings referred to R. v. Guenter, 2016 O.J. 3857 at para. 98 where the Court of Appeal also said that if there was a Charter breach in that case it was not serious and that the breath sample evidence was minimally intrusive and the final Grant factor favoured inclusion. The Court of Appeal in Guenter upheld the trial judge's decision not to exclude the breath sample evidence in that case. Of course, the Court of Appeal's comments in Jennings and Guenter rely on the same point made by the Supreme Court of Canada in Grant where the Court said as follows at para 111:
While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. (emphasis added)
[62] I note as well that the Supreme Court in Grant also stated at para. 114 that "an unjustified strip search or body cavity search is demeaning to the suspect's human dignity and will be viewed as extremely serious". While I have already made this point it bears repeating at this juncture that while the viewing of persons using the toilet is not a strip search per se, it is on the same continuum in my view and carries with it some of the same characteristics. Ms. Wijesuriya was essentially watched by police for safety and investigatory purposes while she pulled down her underwear with the officer standing close by. She was then left to exercise her bodily functions with the officer looking at her. As has been noted, she was menstruating at the time. It happened twice notwithstanding her objections at the time and her appeal to a more senior officer which was dealt with in a dismissive fashion.
[63] I also note that Justice Doherty's reasons for the Court of Appeal in R. v. Orlandis-Habsburgo 2017 ONCA 649 at para. 133 demonstrate that in some cases the second Grant factor, the impact on the Charter protected rights of the defendant, will need to be approached from more than one perspective. Orlandis-Habsburgo was an entirely different case than the one at bar but the s. 24(2) analysis, particularly on the second Grant factor, is relevant. That case involved a marijuana grow operation discovered by the police after receiving data from the defendant's energy service provider without authorization. There was a reasonable expectation of privacy in the data and a s. 8 breach. The police did not know they were acting illegally and had obtained a warrant which was defective because the data from the service provider, on which the warrant was based at least in part, was not properly received by the police. Justice Doherty said that the first Grant factor did not disclose improper police conduct. Police relied on the state of the law known at the time which indicated that they could review the data. They obtained a warrant and honestly believed they could search the residence. Under the first Grant factor, the Charter infringing conduct was not serious.
[64] More importantly for the case at bar, Justice Doherty said at para 133 that the second Grant factor "should be approached from two perspectives". First, the Court needed to look at the search of the home which the Court concluded was a serious invasion of privacy. Second, the Court needed to look at the examination of the data which was also a section 8 breach. Justice Doherty said that while there was a reasonable expectation of privacy with respect to the data, there were no personal details in the data and the expectation of privacy with respect to it was attenuated. The bottom line was that on the second Grant factor the Court found there was a serious impact on the Charter protected rights of the defendant notwithstanding that some aspects of the s. 8 violation (the review of data) did not have much of an impact on the Charter protected rights of the defendant. In balancing all three Grant factors, the Court held that the evidence should not be excluded.
[65] I consider that the case at bar is entirely different than Jennings. In Jennings, the arresting officer testified that he knew that the ASD would not accept a sample if it was not properly calibrated and accuracy checked and he did a proper self-test at the roadside rather than at the beginning of his shift. With all due respect, for the trial judge to say that there was no reasonable and probable grounds for the arrest was incorrect and the Court of Appeal said so. Any error by the arresting officer in Jennings was very minor and did not even come close to undermining reasonable and probable grounds in my view. In the case at bar, we have the breath samples just as in Jennings, but there is something more in this case: there are the two serious s. 8 Charter breaches of privacy.
[66] In my view, like the case of Orlandis-Habsburgo, the second Grant factor in this case must be approached from two perspectives. Apart from the impact of the search that took place by the actual obtaining of breath samples which was minimally intrusive and taken pursuant to the relevant Criminal Code provisions, I must consider what I have found to be the serious violation of her privacy in the search that took place (twice) when Ms. Wijesuriya used the bathroom. Taking into account both perspectives, even though the breath samples are minimally intrusive, the same cannot be said about the searches that took place when she was using the bathroom. On the facts of this case, a balance of the impacts leads me to conclude that there was at least a moderate impact on the Charter protected rights of Ms. Wijesuriya because of the section 8 violations. In my view, the second Grant factor points somewhat towards exclusion. I note that this approach of balancing the impacted Charter interests is precisely the way Justice Doherty approached the second Grant factor in Orlandis-Habsburgo (see para. 135 of that decision).
(iii) Society's Interest in Adjudication on the Merits
[67] Drinking and driving cases such as this one are serious although thankfully there was no accident or injuries to anyone in this case. The breath samples are critical to the Crown's case. There can be no doubt that this factor favours admission of the breath sample evidence.
Balancing the Grant Factors
[68] Justice Doherty for the Court of Appeal in R. v. McGuffie, 2016 ONCA 365 at para. 62-63, explained how trial judges should balance the three Grant factors:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, at paras. 33-34
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, at paras. 81-89; R. v. Morelli, 2010 SCC 8, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140. (emphasis added)
[69] In this case, the first Grant factor points strongly towards exclusion. I consider that the impact on the Charter protected interests under the second Grant factor is moderate and points somewhat towards exclusion. Even if the second Grant factor is viewed as neutral (which it is not in my view), McGuffie directs that one must look at the first two Grant factors together. When one does that in this case the seriousness of the Charter infringing conduct is prominent in my view. I recognize that the significant pull of the third Grant factor is towards inclusion. Nevertheless, this is where the question of balancing the three Grant factors arises. In my view, the long-term interests of the justice system will be best served by the exclusion of the breath sample evidence. The admission into evidence of the breath samples would bring the administration of justice into disrepute by ignoring the police misconduct. I am particularly concerned that the actions of the police in this case came after the Mok line of cases and other similar cases which made it clear that the viewing of all persons in short-term police custody while they are using the toilet without affording them some privacy by, for example, permitting them to cover themselves, is a violation of section 8 of the Charter. It is very concerning that it would appear to be part of the police training to act in this manner. As I have indicated multiple times, the privacy breach was raised by Ms. Wijesuriya at the time with both the arresting officer and the breath technician and her concerns were treated by Officer Pallett in a rude and dismissive manner, rather than by taking the time to ensure that Officer Samms was properly respecting Ms. Wijesuriya's Charter protected privacy rights. A further s. 8 breach then happened again just before 1:46 AM.
[70] For the foregoing reasons and balancing all of the Grant factors, I conclude that the admission into evidence of the breath samples would bring the administration of justice into disrepute and there will be an order pursuant to section 24(2) that the breath sample evidence be excluded.
Issue 3 – Were the breath samples obtained as soon as practicable?
[71] Given my conclusion on the Charter issue, it is not necessary that I address the "as soon as practicable" argument but I will do so for the sake of completeness.
[72] Section 258(1)(c) of the Code contemplates that the breath samples must be obtained "as soon as practicable". In order to rely upon the presumption of identity, the Crown must prove the as soon as practicable point beyond a reasonable doubt. The case law is clear that "as soon as practicable" means that the test must be taken "within a reasonably prompt time under the circumstances". There is no requirement that the tests be taken as soon as possible. The question is always whether the police acted reasonably. Further, the trial judge must look at the entire chain of events and recognize that the Code permits an outside limit of two hours from the time of the offence to the taking of the first test. Further, the Crown does not need to provide a detailed explanation of what occurred during every minute: R. v. Vanderbruggen (2006), C.C.C. (3d) 489 (Ont. C.A.) at paras. 12-13.
[73] I will state at the outset of this issue that I consider that the Crown has proved beyond a reasonable doubt that the breath samples were obtained as soon as practicable. I will explain why.
[74] The defence raises two time periods where it says that the Crown has not established that the breath samples were taken as soon as practicable: 12:27 AM to 12:51 AM; and from 1:30 AM to 1:46 AM.
[75] In order to understand the defence's submissions it is necessary to briefly set it out the chronology of events that occurred:
12:18 AM: The defendant is pulled over at a RIDE stop.
12:19 AM: There is an ASD demand made after the defendant indicates that she has been drinking.
12:24 AM: On the tenth try there fail is registered with the ASD.
12:25 AM: The defendant is placed under arrest.
12:25-27 AM: Rights to counsel are given.
12:27 AM: An Approved instrument demand is made.
12:30 AM: The arresting officer calls for the tow truck and asks dispatch where they should go for a breath technician.
12:30 to 12:51 AM: The arresting officer and the accused are sitting in the patrol vehicle. The officer said she was getting "descriptors" such as name and address.
12:34 AM: The breath technician Officer Pallet gets the call that he is needed to take breath tests. He heads to 22 division.
12:51 AM: The tow truck arrives. Officer Samms says that at this same time they are told to go to 22 division for the breath technician and they depart at that time.
12:59 AM: Officer Pallett arrives at 22 division.
1:02 AM: The arresting officer and the defendant arrive at 22 division.
1:02 AM: Constable Pallet enters 22 Division and begins to run tests on the Intoxilyzer. By 1:10 AM, the machine is apparently ready to receive a sample.
1:05 AM: The arresting officer and the accused are in the sally port at 22 Division. Thereafter, Officer Samms is involved in lodging the prisoner.
1:15 AM: A call is made to counsel of choice (Christian Angelini). This ultimately leads to a call from Jillian Carrington who the officer in charge thinks is a lawyer namely an associate of the counsel of choice. A private call is arranged with defendant.
1:20-23 AM: There is a private call with Jillian Carrington and the defendant.
1:23 AM: The toilet is used by the defendant.
1:26 AM: Grounds are provided by the arresting officer to the breath technician.
1:30 AM: Custody of the defendant is handed over to the breath technician. Besides the complaint about a lack of privacy when using the washroom outlined above, there is also a discussion with the breath technician about counsel. The accused says that she has spoken to a "secretary" of her counsel of choice. The breath technician suggests that perhaps she had spoken to an associate of her counsel of choice. Ms. Wijesuriya says that she has not received any legal advice and when asked by the breath technician if she would like to speak to duty counsel, the defendant says yes.
1:30 AM: Shortly after this time, Constable Pallet tells Constable Samms to get duty counsel on the phone and she goes off to do that.
1:38 AM: The defendant is taken out to speak to duty counsel which she does and she uses the toilet again just before 1:46 AM.
1:48 AM: By this time, the defendant is back in the breath room.
1:49 AM: An approved instrument demand is made.
1:51 AM: The defendant starts trying to give a sample.
2 AM: The first sample is provided which is 160 mg of alcohol in 100 mL of blood.
2:22 AM: The second sample is provided which is 143 mg of alcohol in 100 mL of blood.
[76] Let me address the two time periods that the defence is concerned about. The first is right after rights to counsel were completed at 12:27 AM through to 12:51 AM. It is the defence's argument that there should have been a breath technician available either on site at the RIDE check or closer by than 22 Division. In my view, this is not a reasonable argument. The Court does not direct the police as to how they are going to staff RIDE stops or where they are going to station breath technicians. The police deploy their resources as they see fit and Court decides, among other things, whether the time requirements of s. 258(1)(c) are met.
[77] I do have a concern that from 12:27 AM through to 12:51 AM, Officer Samms may have been simply waiting at the roadside for the tow truck before heading to 22 division. It seems slightly coincidental to me that the tow truck arrives at 12:51 AM and Officer Samms is told to go to 22 division also at 12:51 AM. On the other hand, the breath technician, Officer Pallett, was on his way to 22 division and knows that he is needed there as of 12:34 AM. It seems likely to me that Officer Samms knew she would be going to 22 division as of 12:34 AM. If she did not know, dispatch could have and should have told her that earlier than 12:51 AM because they had already directed that Officer Pallett go there at 12:34 AM. It seems likely to me that Officer Samms waited around for the tow truck until 12:51 AM instead of having the tow dealt with by other officers who were present at the RIDE check. Officer Samms still arrived at 22 division at about the same time as Officer Pallett. However, Officer Samms could have arrived earlier if someone else had dealt with the tow. There were other officers working at the RIDE check. If Officer Samms and the defendant had arrived at the police station earlier, Officer Samms could have dealt with the lodging and duty counsel earlier than she did. I will return to this point below.
[78] The second area of complaint is from approximately 1:30 AM to 1:46 AM. The defence's argument is that Ms. Wijesuriya should not have had to consult with duty counsel because she had already spoken to a lawyer who was an associate of counsel of choice (Ms. Carrington). However, this is not a fair characterization of what occurred. It was Ms. Wijesuriya who suggested that she had spoken to a secretary and Ms. Wijesuriya said that she had received no legal advice. It is not in evidence as to whether or not Ms. Carrington (who she did speak to) is a lawyer or not. It was not the police's obligation to figure out whether Ms. Wijesuriya had spoken to a lawyer, an associate or a legal assistant. Ms. Wijesuriya was telling them that she had received no legal advice and then said she wanted to speak to duty counsel. She was in effect saying that she was not satisfied with her consultation with Ms. Carrington (whether she was a lawyer or not) and she wanted to speak to duty counsel. The police cannot be faulted for facilitating the consultation with duty counsel in the "as soon as practicable" analysis or in any other analysis.
[79] I return to the 12:27 to 12:51 AM timeframe. While I do have some concerns that Officer Samms was waiting for the tow truck and not waiting to find out where she was going to get the breath technician, it is important to keep the big picture in mind. In this case, the arrest was made at about 12:25 AM. The first breath sample was provided at 2 AM and would have been provided at about 1:51 AM if Ms. Wijesuriya had successfully blown at that time. The police cannot be faulted for her failure to successfully blow at 1:51 AM. The big picture point is this: the police had her under arrest at 12:25 AM and were in a position to receive a breath sample approximately less than one and a half hours later after two consultations with counsel and two bathroom visits. If Officer Samms had not waited for the tow truck by the side of the road, the breath samples could likely have been obtained earlier. However, that is not the test. The breath samples were still obtained in a reasonably prompt time in the circumstances. The Crown has established that the breath samples were obtained as soon as practicable and could have relied upon the presumption of identity but for my conclusion on the Charter issue.
Conclusion
[80] In light of my conclusion that the breath sample evidence should be excluded pursuant to section 24(2) of the Charter, there is no evidence upon which the Crown can proceed with the over 80 charge. In the circumstances, there will be an acquittal on the over 80 charge.
Released: March 29, 2018
Justice Paul F. Monahan
