Court File and Parties

Court File No.: 09-1928 (Halton Region, Central West Region)

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Richard King

Before: Justice Alan D. Cooper

Heard: March 10, August 15, 2011 & January 11, 2012

Reasons for Judgment Released: May 31, 2012

Counsel:

• Stephen B. Collinson for the Crown
• Douglas R. Lent for the accused Richard King

Case History

[1] Richard King was charged on November 21, 2009, in Burlington with impaired driving and with operating a motor vehicle after having consumed alcohol in excess of the legal limit. The Crown proceeded only on the impaired driving charge.

[2] An application was brought by the defence which alleged an unreasonable delay violation under section 11(b) of the Charter of Rights and Freedoms. This was dismissed on January 11, 2012.

[3] A separate Charter application alleged violations of sections 7, 8, 9, 10(a) and 10(b). The remedy sought is a stay of proceedings under section 24(1). The only defence submission made on the Charter was under section 7, based on the fact that Mr. King was placed in a cell with a toilet, and the cell was video and audio recorded. The defendant was not advised of this and his private parts were exposed as he urinated. This was captured on the video. The defence argued this was a breach of privacy and permitted male and female police officers and civilian employees to see males or females urinating or defecating.

Facts

[4] A male civilian witness named Ion Petroianu was driving westbound on the Queen Elizabeth Way in the middle lane when he came up behind a Lexus SUV in the same lane. It was veering outside its lane on the left by half a car length, then going back into its own lane, then back again into part of the left lane. Then the car was operated normally for a short while, and then it drifted outside of its own lane. Mr. Petroianu called the police on his cell phone.

[5] Two officers from the Ontario Provincial Police, Alan Reid and David Gruber, responded and waited ahead at Appleby Line, but Mr. King exited onto Burloak Drive, east of Appleby. Mr. Petroianu also exited and the defendant drove north on Burloak until it curved to the left and became Upper Middle Road, which runs westerly at this juncture. The police ended up passing Mr. Petroianu and stopping Mr. King on Upper Middle Road.

[6] Constable Reid had received the radio call about this possibly impaired driver at 11:36pm, and at 11:47pm, he caught up to the Lexus on Upper Middle Road, where he saw it drifting toward the right curb and making a jerky corrective action. Mr. King was the sole occupant and when he rolled down his window, there was a strong odour of alcohol coming from within. Mr. King retrieved his driver's and vehicle documents very slowly and methodically, and his eyes were glassy and his pupils dilated. His speech was slurred and he said he had been to a Maple Leaf hockey game in Toronto.

[7] When Mr. King exited his vehicle, he stumbled to the right into his driver's door. When he walked to the cruiser, he walked in a left-right zig zag manner for one car length. There was a strong smell of alcohol coming from him and at 11:50pm, the officer formed the opinion that the defendant's ability to operate his motor vehicle was impaired by the consumption of alcohol, and he was placed under arrest. He was put in the cruiser and given his right to counsel information and the standard police caution. He said he would speak to duty counsel.

[8] They left the scene at 11:57pm and got to the Burlington detachment at 12:05am. When walking up the outside stairs into the station, Mr. King walked in the same zig zag fashion and missed the second step from the top. Inside he spoke to duty counsel in a closed room, and officer Reid said he heard none of the conversation. He turned the defendant over to officer Gruber, who also happened to be the qualified breath technician. He got Mr. King back from Gruber at 1:10am and released him at 1:46am.

[9] In cross-examination, officer Reid agreed that Mr. King was handcuffed as he walked up the outside steps. The cell video was played, except when the defendant was urinating, and officer Gruber also agreed that Mr. King took off his coat without difficulty and was quiet and cooperative. There is no dispute that the audio-visual surveillance clearly captures Mr. King urinating in his cell toilet.

[10] Officer Gruber testified that when he saw Mr. King on Upper Middle Road after he was stopped, he saw him exit his SUV and walk with a one inch sway. There was a strong odour of alcohol on his breath, and his eyes were glossy. At the station, officer Gruber was the qualified breath technician in this matter. He gave evidence that the Burlington detachment cells are subject to continuous audio and video surveillance which are not monitored by a specific person. Instead the sound and images are put into a computer server. He said Mr. King never complained about this surveillance.

[11] Richard King testified on his own behalf and was the sole defence witness. He is a chief financial officer for an investment company. He took the Queen Elizabeth Highway home to Burlington from the hockey game in Toronto. He gave evidence that he was drifting off from fatigue. Because of this his SUV was veering and he would have to correct it. His Lexus was eleven years old and he said the wheel alignment was somewhat deficient.

[12] At the game, he drank three 16 ounce beers and one vodka over four hours and thought he could safely drive home. He said he turned off at Burloak Drive, because it was a shortcut to his home and not because he knew he was being followed by the civilian witness.

[13] Mr. King disagreed with the police evidence that he was stumbling or swaying as he walked, and did not recall missing one step as he walked up the outside stairs at the police station. He did not know he was being videotaped and audiotaped in his cell and would have asked for privacy when he was urinating, had he known this beforehand.

[14] Under cross-examination, he said he chose not to pull off the highway, even though he was nodding off. He said he only nodded off and veered twice, to the best of his recollection.

Submissions

[15] For the defence, Mr. Lent submits that when driving, Mr. King was tired but not impaired.

[16] He further argues for a stay of proceedings under sections 7 and 24(1) of the Charter because his client can be seen urinating in his cell on the audio-video tape introduced into evidence. Male or female officers and civilian employees, or anyone watching the computer server, would be able to see this happening. Mr. King was also unaware he was subject to this surveillance, and if known he could have asked for privacy. He could cite no cases on point, and until very recently, there were none of which the court was aware.

[17] Mr. Lent submits that a stay is the appropriate remedy because on an impaired driving charge, a court is unable to reduce the length of a driving prohibition, which is automatically imposed by Provincial law, whether a conviction or a discharge is imposed.

[18] Mr. Collinson, for the Crown, argues that the evidence of impairment has been made out by the evidence of the civilian witness, and by the police evidence.

[19] Mr. Collinson also submits that the electronic cell surveillance is to prevent a prisoner from harming himself and contends that the general public would not be shocked to learn of this police practice. Therefore, there has been no breach of the Charter and there ought to be no stay of proceedings.

Analysis

[20] I am mindful that the onus is on the Crown, on the trial proper, to prove the guilt of the defendant beyond a reasonable doubt.

[21] On the Charter application, the onus is on the defendant to establish a breach on a balance of probabilities, and that a stay of proceedings should only be granted as a last resort when no other lesser remedy will suffice.

[22] Since Mr. King testified on his own behalf, I must and do apply the principles set out in R. v. W. (D), [1991] 1 S.C.R. 742.

[23] I find as a fact that the evidence of impairment is overwhelming and that the Crown has proven beyond a reasonable doubt that Mr. King's ability to operate his motor vehicle was impaired by his consumption of alcohol. The bad driving, the strong odour of alcohol on his breath, the condition of his eyes, and his stumbling and poor physical coordination are classic signs of such impairment. I do not believe Mr. King's evidence on the issue of impairment, and am not left in a state of reasonable doubt by any other evidence.

[24] After submissions were made on January 11, 2012, West J., sitting in the Ontario Court of Justice in Newmarket, in the case of R. v. Mok, 2012 ONCJ 291, on May 3, 2012, ordered a stay of proceedings in a factual situation similar to the one at bar.

[25] Ms. Mok was charged with impaired driving and operating a motor vehicle after having consumed alcohol in excess of the legal limit. She was put in a police station cell and videotaped when using the cell toilet on two occasions. This could be observed by male police officers. She had no criminal record, and was polite, cooperative, and not acting aggressively. Although the defendant testified that she did not know she was being videotaped, the police evidence was that she was made aware of this. It is clear that Ms. Mok may not have been aware of the video due to her level of intoxication.

[26] West J. found this to be a violation of section 8 of the Charter and ordered a stay of proceedings. At paragraph 103 of his judgment, he says the following:

"In my view, the monitoring and videotaping of detainees using the cell toilet by police officers of the opposite sex is a highly intrusive invasion of privacy and is offensive. Ms. Mok, or any other detainee, was entitled to be afforded some measure of human dignity when they are using a toilet while being detained in custody after arrest. The practice of monitoring and videotaping detainees using the toilet, without some measure of privacy, is both demeaning and contrary to human decency. If a level two search should be conducted in a private room, without being videotaped, by a same sex officer, in order to afford a detainee some "dignity", why shouldn't the same "dignity" be afforded to a detainee when it is necessary for them to use a toilet? I find that any right-thinking member of the public would view this practice as shocking and humiliating."

[27] After entering the stay, West J. relied on R. v. Dunn, [2009] O.J. No. 6296 (O.C.J.), a decision of Campling J., and had the defendant enter into a common law peace bond with three terms:

1. Keep the peace and be of good behavior.
2. Not be in the driver's seat of a motor vehicle after having consumed alcohol.
3. Not to operate a motor vehicle not equipped with a properly installed, properly functioning ignition interlock device.

[28] As to whether a stay is appropriate or not, West J. stated the following:

67 A judicial stay of proceedings is an exceptional remedy that is reserved for the clearest of cases. The leading authorities are generally recognized as R. v. O'Connor, [1995] 4 S.C.R. 411, Canada (M.C.I.) v. Tobiass, [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. The principles that emerge from these three cases have very recently been summarized by the Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, at paras. 57:

• (1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

• (2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

• (iii) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

• (iv) no other remedy is reasonably capable of removing that prejudice.

• (3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

68 The claim before me clearly falls within the "residual category" of cases that may attract the remedy of a judicial stay. The defence concedes this. In such cases, as said by the Supreme Court in an oft-quoted passage from Tobiass, supra, at para. 91 (and re-affirmed in Regan, supra, at para. 55):

The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. [Emphasis added]

As restated by the Court of Appeal in Zarinchang, at para. 58, the concern is "not ... about continuing prejudice to the applicant by proceeding with the prosecution" but, "[r]ather, ... for the integrity of the justice system".

69 Importantly, the Court of Appeal continues:

However, the "residual category" is not an open-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits?

70 Accordingly, the Court notes, at para. 60, judges hearing residual category applications, as here, "will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion". This balancing, the Court then explains, commands regard for

... the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

[29] West J. was of the view that accused persons in custody have a substantially reduced expectation of privacy, rather than no expectation of privacy. However, this was not the same view held by police witnesses who testified before him:

74 Sgt. Cummins testified that persons in custody in a police station should not expect any privacy. He saw nothing wrong in videotaping accused persons in police holding cells, even if they were using the toilet. Further, it did not matter if the monitoring was done by an officer of the opposite sex. S/Sgt. Clarke indicated that the videotaping of accused persons in police cells was a "corporate -- departmental policy" that he had no control over. The videotaping of police cells is for safety reasons for the detainee who is in custody, to ensure that they do not dispose of illegal contraband, weapons or illicit substances and there is no policy that detainees should be monitored by officers of the same sex.

97 I was advised by Sgt. Cummins that all of the York Regional Police holding cells are exactly the same as the cell Ms. Mok was put into at 2 District Station. This leads to the reasonable conclusion that no detainee is afforded any privacy when they have to use a toilet while they are in police custody. It also leads to the conclusion that this is a systemic practice within York Regional Police which will continue into the foreseeable future unless there are some measures taken to afford detainees privacy while they are using the toilet in the holding cell.

[30] West J., in view of such police evidence, decided to enter a stay of proceedings because if he did not, he believed that such state misconduct would likely continue in the future.

[31] Getting back to the case of Mr. King, it is obvious that audio-visual surveillance can prevent suicide or other self-harm to a prisoner. Here, Mr. King testified that he was not aware that he was being electronically monitored in his cell, and would have asked for privacy when he was urinating had he known this. He has no criminal record to my knowledge, and was not obviously suicidal or trying to harm himself in his cell. Officer Reid agreed in cross-examination that Mr. King was acting quietly and cooperatively.

[32] Comparing Ms. Mok's case to Mr. King's, they each had no criminal record, and were behaving properly in custody. Ms. Mok's driving was far worse than Mr. King's, but there was no police evidence in Mr. King's trial similar to that in Ms. Mok's. Neither officer in the King case gave an opinion as to whether the practice ought to exist or not; it was simply part of the system they were expected to operate in. Both Ms. Mok and Mr. King testified that they were unaware their cell was under audio-visual surveillance, but the police evidence was that Ms. Mok was specifically told about it before she was lodged in the cell.

[33] Because the police evidence is not the same as in R. v. Mok, it is my view that a judicial stay of proceedings ought not be entered in the case before me. The Ontario Provincial Police, and other police forces, deserve an opportunity to be apprised of the concerns of West J., and to reassess the current practice of videotaping prisoners using cell toilets. This issue will arise again.

[34] A very valid reason why this practice ought to be replaced by privacy screens, or by giving the prisoner an opportunity to use a private toilet after having been advised of the electronic surveillance, whenever it can reasonably be done, is set out by West J. in his judgment:

106 I am also concerned that there is a possibility that the videotape of Ms. Mok in the holding cell, which was entered as Exhibit 4 in these proceedings, could be obtained by a representative of the media and played during a news broadcast or on the internet. This video is part of the public record in this trial. In my view, the possibility of this video being released on the internet would offend society's sense of justice and would damage the justice system's integrity. One only has to view the video of Ms. Mok using the toilet to fully understand and appreciate her humiliation, her upset and her shame.

[35] For the above reasons, the Charter application is dismissed. As was previously stated, the Crown has proven the guilt of Mr. King beyond a reasonable doubt on the impaired driving charge.

Conclusion

[36] The defendant is found guilty of the offence as charged.

Released: May 31, 2012

Signed: "Justice Alan D. Cooper"