Court File and Parties
Court File No.: 2811 998 12 12458 00 Date: September 25, 2014
Ontario Court of Justice
(Central East Region)
Between:
Her Majesty The Queen
K. Saliwonchyk, Counsel for the Crown
- and -
Elizabeth Robb
B. Scott, Counsel for the Defendant
Heard: November 7, 2013, June 20, 2013, February 14, 2014, May 8, 2014, August 26, 2014
Judgment
BLOCK, J:
Facts and Charge
[1] Elizabeth Robb is charged with having care and control of a motor vehicle while the concentration of alcohol in her body exceeded 80 mg in 100 mL of blood on May 18, 2012. At 1:37 am Constable Eric Namers saw a car driven by the defendant leave a parking lot located close to several downtown bars. He was on general patrol in downtown Whitby. He followed the car and saw that the validation sticker had expired. He stopped the car and spoke to the driver. There was an odor of alcohol on her breath and she admitted consumption of alcoholic beverages. PC Namers demanded that the defendant provide a sample into an approved screening device. The machine registered an "F" for fail and she was arrested for the offence before this court.
[2] She provided two samples into an approved instrument at 17 Division. Her readings, taken in a manner appropriate to the relevant sections of the criminal code, were 132 mg of alcohol in 100 mL of blood and 143 mg of alcohol in 100 mL of blood. These readings were truncated to readings of 130 mgs of alcohol in 100 ml of blood and 140 mg of alcohol in 100 ml of blood in the certificate introduced as evidence of her blood alcohol concentration at the time of care and control. It is common ground that Ms. Robb was polite and cooperative throughout her contact with the police in this matter.
Issues
[3] There are two issues:
Were Ms. Robb's rights under sections 7, 8 and 9 of the Canadian Charter of Rights and Freedoms violated when she used the toilet in a cell monitored by video?
Were Ms. Robb's rights under sections 7, 8 and 9 of the Canadian Charter of Rights and Freedoms violated by the requirement that she remove her underwire bra for inspection by the police?
[4] Counsel submits in her behalf that a stay of proceedings is warranted pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms. In the alternative, counsel asks the court to exclude from evidence the breath readings at the core of the crown's case. There is no issue that, absent a stay of proceedings or the exclusion of evidence of the breath readings, Ms. Robb is guilty of the offence before the court.
Issue 1: Video Surveillance of Toilet Use
[5] Ms. Robb was lodged in cell 11 before and after her first breath test. Every cell at 17 Division is video-monitored by the officer in charge of the station as well as other officers responsible for the safety and supervision of prisoners.
[6] The Applicant noticed the video camera in front of the door and expressed concern that she might be observed while using the toilet. Special Constable Menzie assured her that "we can tell you're sitting on the toilet, but we can't see you per se". This advice was accurate.
[7] A video recording of Ms. Robb's stay in cell 11 was introduced at trial. This recording depicts the view available to the officers monitoring the cell. The resolution is very poor. The illumination is very poor. The top and bottom parts of the cell door are separated by what appears to be a 6 inch wide horizontal metal plate. The metal plate completely masks the image on the video of the toilet at and immediately above the level of the toilet seat. It is possible to tell that Ms. Robb is using the toilet on two occasions. She walks from the bench to the toilet, manipulates her clothing and sits down. No undergarments are ever visible. No skin below her neckline is visible. None of her private parts are visible. The viewer is simply aware that Ms Robb is using the toilet. In the circumstances of this case the video surveillance of Ms. Robb while she used the toilet in cell 11 does not constitute a breach of the Charter.
Issue 2: Removal and Inspection of Underwire Bra
[8] Prior to escorting the defendant to the cell, Special Constable Menzie conducted a pat down search of her in a small room that has no window or video surveillance. The door was closed. The search disclosed that Ms. Robb wore an underwire bra. On Menzie's instruction, Ms. Robb removed her bra from under her shirt and handed it to her. I find that Ms. Menzie did not touch or see Ms. Robb's breasts during their contact.
[9] The Applicant told the court that she was "extremely uncomfortable" when Ms. Menzie searched her upper body and required her to surrender her bra.
[10] During a portion of the booking-area video recorded shortly before her release, Ms. Robb offered to put her bra on in front of several male officers in the parade area instead of the privacy of the search room. By way of explanation, she testified that by this time she felt "embarrassed, humiliated and … at the end of my rope". She told the court that she was anxious to get her bra back on as fast as possible. In the recording however, she appeared unconcerned, relaxed and nonchalant.
[11] The police personnel who dealt with Ms. Robb that morning were entirely appropriate and professional. But that does not end the inquiry. The evidence indicates that the removal of Ms. Robb's bra was police policy at that time. The reason for the policy was that underwire bras, such as that worn by the defendant, have wire that can be used as a ligature, as a weapon and as an escape tool if removed from the bra. However, Ms. Menzie tactile examination of the edges of the bra, while it was worn by Ms. Robb, showed that it was intact. The internal wire cannot be quickly or readily removed from an intact bra.
[12] Ms. Robb's behavior was entirely appropriate. There were no indications that she was a danger to herself or police personnel. There was no evidence that she was an escape risk. Obviously, the removal of the bra in this situation had no relation to the search for evidence in this matter. The policy that required the removal of underwire bras from all detainees was unreasonable. It has since been changed by the Durham Regional Police Service. Officers are now required to use consider if the detainee is potentially suicidal or assaultive before requiring that these undergarments be removed for inspection.
[13] In Her Majesty the Queen v Lee, 2013 ONSC 1000, the accused was required to remove her underwire bra for inspection. As in the case before me, this was required by an inflexible policy. Justice Fuerst found the inspection of the bra to be a strip search within the meaning of Her Majesty the Queen v Golden, 2001 SCC 16. She ruled that the appropriate test to be applied by the trial judge was whether the police had reasonable and probable grounds for concluding that this strip search was necessary in the particular circumstances of the applicant. I am bound by this ruling. As there is no suggestion that it was based on reasonable and probable grounds, the removal and inspection of Ms. Robb's bra was a violation of her section 8 right to be free from unreasonable search and seizure.
Analysis: Stay of Proceedings and Exclusion of Evidence
[14] I have concluded that this breach does not meet the test for a stay of proceedings reiterated by the Supreme Court of Canada in Her Majesty the Queen v Babos 2014 SCC 16. As in our case, Babos dealt with the residual category in which the state conduct creates no threat to the defendant's right to a fair trial. The court outlined a three-part test for determining the applicability of a stay in these cases.
Is the impugned behaviour is so offensive to society's sense of fair play and decency that to allow even a fair trial to continue risks tainting the justice system with the misconduct? Ordinarily society will not be offended unless the misconduct is apt to continue.
How will the court address the prejudice to the integrity of the justice system? Will an alternate remedy short of a stay of proceedings disassociate the system from the impugned state conduct going forward?
The trial court must balance the competing interests. Will the integrity of the justice system be best protected by a stay or by the continuation of the trial? This component has added significance for the determination of cases under the residual category. In determining the issue the court must consider: the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges and the interests of society in having the charges disposed of on the merits.
[15] The Supreme Court, at paragraph 41 in Babos, put the balancing process in the following context:
Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
[16] Finally, the Supreme Court reaffirmed that, in the residual category, cases warranting a stay of proceedings will be "exceptional" and "very rare".
[17] In the case before me the violation fell well short of egregious. Ms. Robb was treated with courtesy throughout her detention. There was no brutality, humiliating treatment or dishonest violation of the trial process by the police. The police error had no trace of cynical or wilfully wrong behaviour. The misconduct has since been addressed by a change of policy. A remedy can be devised to disassociate the administration of justice from the breach short of terminating the prosecution. Finally, there is a strong public interest in determining the merits of drinking and driving cases. The integrity of the system can best be preserved by acknowledging the wrong and adjusting the penalty to reflect it.
[18] I do not accept that the exclusion of the evidence of the breath tests is appropriate. While the breach is serious, it occurred before the binding appellate authority in Lee, supra, characterized the impugned police action as a strip search. The police conduct was wooden and arbitrary, not offensive or degrading. The effect on Ms. Robb's Charter protected interests was not grave. No evidence was produced or sought through the breach. Once again, there is a strong public interest in the adjudication of drinking and driving cases on their merits. There will be a finding of guilt. I will address Ms. Robb's remedy by way of sentence adjustment.
Mr. Justice M. Block Ontario Court of Justice