COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mok, 2015 ONCA 608

DATE: 20150914

DOCKET: C58167

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephanie Mok

Appellant

Lori Anne Thomas, for the appellant

Frank Au, for the respondent

Heard: September 8, 2015

On appeal from the decision of the summary conviction appeal court dated January 7, 2014 by Justice R. Cary Boswell of the Superior Court of Justice, with reasons reported at 2014 ONSC 64, allowing the appeal from the stay entered on May 3, 2012 by Justice Peter C. West of the Ontario Court of Justice, with reasons reported at 2012 ONCJ 291.

ENDORSEMENT

[1] The appellant seeks leave to appeal and, if leave is granted, appeals the decision of the Superior Court judge on a summary conviction appeal. The judge upheld the decision of the trial judge that found that the appellant’s s. 8 Charter rights were breached when she was observed and videotaped in her holding cell on arrest while using the toilet in her cell. However, he set aside the remedy granted by the trial judge under s. 24(1), which was a stay of the proceedings.

[2] The issue of whether leave to appeal should be granted under s. 839 of the Criminal Code, R.S.C. 1990, c. C-46 was argued first. After hearing the submissions of counsel on the leave issue, the court determined that this was not an appropriate case for leave to appeal to be granted. The court announced its decision with reasons to follow. These are the reasons.

[3] The two criteria for granting leave to appeal from a summary conviction appeal decision, provided in R. v. R.R, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 32, are:

1. where the merits of a proposed question of law are arguable, if not strong, and the issue has significance to the administration of justice generally; or

2. where there appears to be a clear error in the particular case

[4] Leave to appeal in this case was sought on both grounds. As both courts below found a breach of s. 8 of the Charter, the only issue on appeal was whether a stay was the appropriate remedy for the breach.

[5] The stay was originally granted by the trial judge as the remedy in this case based on the evidence that this was not a unique incident. At the time, the York Regional Police viewed and videotaped all prisoners using the toilets in their cells as a matter of policy. However, on this appeal, the court was told that since the decision of the summary conviction appeal judge upholding the finding of a s. 8 breach, steps have been taken by the York Regional Police to ensure that prisoners’ privacy while using the toilet is now protected from both viewing and videotaping. This information confirmed the findings made by a number of other trial courts recently faced with the same issue, who declined to order stays: see R. v. Arbelo, 2014 ONCJ 257, at para. 31 on changes to York Regional Police’s videotaping practices; see also R. v. Orenchuk, 2014 ONCJ 650, at para. 63, and R. v. Griffin, 2015 ONSC 927, at paras. 10-11, on changes in practice at other police forces.

[6] As a stay of proceedings is only to be granted in the clearest of cases (see most recently, R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309), we see no error in the decision of the summary conviction appeal judge. Furthermore, since the decisions of the lower courts in this case have been acted upon by the York Regional Police and have had their intended effect on the administration of justice, there is no need to grant leave on the first ground under the R.R. test.

[7] The appellant also argued, relying on R. v. O’Meara, 2012 ONCA 420, at para. 25, and R .v. MacKay, 2012 ONCA 671, at paras. 21-22, that leave to appeal ought to be granted given that this was the appellant’s first appeal on this matter, as the appeal to the summary conviction appeal court was a Crown appeal. While this may be a relevant consideration, in each of O’Meara and MacKay, this court also found that the issues raised in the appeal had significance to the administration of justice beyond the facts of the case: O’Meara, at para. 24 and MacKay, at para. 23. That is not the case on this appeal.

[8] In the result, leave to appeal is denied.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“B. Miller J.A.”