Court Information
Ontario Court of Justice Old City Hall - Toronto
Between: Her Majesty the Queen And: Delon Joseph
Counsel:
- C. Tomusiak, for the Crown
- J. Rosenthal, for the Defendant
Heard: April 17 and August 11 and 28, 2014
Released: October 28, 2014
Reasons for Judgement
Justice Melvyn Green
A. INTRODUCTION
[1] Delon Joseph was driving on Highway 401 in Toronto in the early hours of April 14, 2013. He was pulled over by the Ontario Provincial Police (OPP) for speeding. Roadside testing by way of an approved screening device (ASD) soon followed. Joseph registered a "Fail". He complied with a subsequent Breathalyzer demand, registering blood alcohol concentration (BAC) readings beyond the legal limit. In the result, he faces charges of impaired operation of a motor vehicle and operating the vehicle with a legally excessive BAC.
[2] Joseph (hereafter, the defendant) claims that the offence of impaired driving is simply not made out. He also alleges that, in the circumstances, the seizure and analysis of his breath though both the ASD and the Breathalyzer infringed his Charter s. 8 rights to be secure against unreasonable search and seizure, and that the appropriate and just remedy for such breaches is the exclusion of the results of these testing procedures. He alleges, further, that the video monitoring and recording of his use of the toilet and, if briefly, his genitalia while housed in a holding cell at an OPP detachment also violated his Charter s. 8 right to privacy, independently warranting a stay of proceedings or, at minimum, exclusion of the subsequent Breathalyzer readings by way of remedy.
[3] The trial proceeded by way of a blended hearing. The Crown called the two officers involved in the defendant's arrest and subsequent custody, a qualified breath technician and a senior officer with policy and oversight responsibilities respecting the video monitoring and recording of persons detained by the OPP. The defendant testified, but solely in regard to issues material to his Charter claims. As the impugned searches and seizures were warrantless, the Crown bears the burden, on a balance of probabilities, of establishing their "reasonableness". The burden rests, on the same standard, on the defendant to prove the propriety of the remedy sought should any of the claimed constitutional breaches be found. As in all criminal prosecutions, no conviction may be registered unless and until the Crown meets its ultimate onus of proving beyond reasonable doubt each element of each offence charged.
[4] To be clear, the points at issue are here narrower than this initial canvass might suggest. At the conclusion of the evidence I indicated that I entertained a reasonable doubt that the defendant's ability to drive was impaired. Accordingly, he was acquitted of that offence, with reasons to follow. Further, Crown counsel fairly conceded that the police videotaping of the defendant's toilet functions amounts to a breach of his s. 8 rights. As a result of these two developments, the exceptional remedy of a stay of proceedings need not be considered. Instead, the disposition of the "over 80" charge rests on my determination of whether exclusion of the Breathalyzer results is warranted upon application of s. 24(2) of the Charter. I turn, then, to a review of the evidence and my reasons respecting these and several related matters.
B. EVIDENCE
(a) Introduction
[5] The chronology of the police investigation and the Charter issues advanced by the defence lend themselves to certain natural narrative divisions, as reflected in the headings that follow.
(b) The Driving and Roadside Investigation
[6] OPP Csts. Mark Kowalyk and Dominika Papiorek were on traffic duty while driving eastbound on Highway 401 in Toronto in the early hours of April 14, 2013. It was a clear night with light traffic. Kowalyk had only been an officer for about a year. He was driving a "ghost" SUV, an inconspicuous vehicle with subdued police markings. Papiorek, in direct examination, placed herself and Kowalyk in a fully marked, black and white cruiser with "OPP" plainly visible on its side and an emergency light-rack on top of the vehicle. Only when pressed in cross-examination did she acknowledge she was mistaken, having confused the ghost SUV she shared with Kowalyk with the vehicle in which she had begun her shift.
[7] According to Kowalyk, a car approached quickly from behind, passed the officers' vehicle and then quickly shifted lanes. Kowalyk got behind the car and paced it at 132 kph in a 100-kph zone. As it approached Dufferin Street the car accelerated to 152 kph. Kowalyk paced it for a further 1.1 kilometers while the car moved between lanes, finally exiting southbound at Avenue Road. Although it hit speeds amounting, on Kowalyk's evidence, to the offence of "stunt driving", he did not activate his emergency equipment or otherwise try to stop the car until after it was on Avenue Road. The car pulled over when signaled. It was 1:43am. Papiorek's account of the driving events is very similar, except for her firm recall that Kowalyk activated his emergency lights while the pursued car was still on the 401 and before it exited onto Avenue Road.
[8] Kowalyk authored the related police "synopsis" on April 21st, a week after the defendant's arrest. He agreed that accuracy was important in preparing this document. Nonetheless, the synopsis asserted that the defendant was "cutting off motorists" during the police pursuit – a representation Kowalyk agreed was "just not true" as the defendant's driving had not affected any other drivers. In re-examination, Kowalyk explained that he had used a template in preparing the synopsis in the case before me and, apparently, had not bothered to edit it to conform to the allegations pertinent to the defendant's investigation.
[9] The defendant, who identified himself with a proper driver's licence, was behind the wheel of the car. A woman occupied the front passenger seat. Kowalyk explained that he had stopped the defendant for speeding. The defendant, he said, fumbled while retrieving his documents, had an odour of alcohol on his breath and had red and apparently bloodshot eyes. Asked if he had consumed any alcohol, the defendant acknowledged drinking two beers at a church function at about 10pm, some 3¾ hours earlier. Papiorek also referred to the defendant's eyes being red and bloodshot. She did not, however, observe him fumble with any documents. Nor did she ever detect an odour of alcohol on the defendant's breath, despite being in the same car during the ride to the OPP detachment. Further, she testified that Kowalyk never said anything to her about an alcoholic odour. The defendant appeared, she said, slow to answer Kowalyk's questions, but she was not party to their conversation and heard little of its content. Kowalyk, meantime, never testified to anything slow or inappropriate in the defendant's responsiveness.
[10] Kowalyk began to write-up the notes in his police notebook sometime after he first called duty counsel at 2:28am. These notes were premised, he said, on "dash-pad notes" (produced for the first time at trial) that he prepared "as the events [were] unfolding". The dash-pad notes contained no reference to the defendant's driving speeds, the police pacing of his vehicle, the odour of alcohol, the defendant's eyes, any fumbling or other indicia of impairment or the defendant's assertion that he had last consumed alcohol nearly four hours before his detention.
[11] Pressed, Kowalyk testified that his practice was to write notations respecting driving speeds and pacing distances on his hand while in the course of a pursuit. He was, however, uncertain whether he had done so in the instant case. It was also unclear why it was any easier or more convenient to jot these notations on his hand than on a notepad on his dashboard. In any event, and as already noted, Kowalyk's recall of specific speeds, distances, signs of impairment, the odour of alcohol and the full exchange with the defendant are first recorded and preserved in the notebook entries he began at least an hour and a half after the material events.
[12] Kowalyk formed the belief that the defendant "had been consuming alcohol and had alcohol in his system at that time". Accordingly, he made an ASD demand of the defendant at 1:46am. He explained the procedure to the defendant and confirmed the currency of the device's calibration. The defendant's first two attempts resulted in error messages and, at 1:53am, he registered a "Fail". Kowalyk acknowledged that, in the context of a potential charge of refusal or fail to comply with an ASD demand, the error message information "would be really important". Yet, there is no reference in his dash-pad notes to the occurrence and timing of one of the two ASD error messages included in his notebook. Asked if he could "explain why that's not in your dash-pad note", his answer was a simple "Nope".
[13] Armed with the "Fail", Kowalyk formed reasonable grounds to believe the defendant had a legally excessive amount of alcohol in his system. Based as well on "the driving evidence and the high speeds", the "odour of alcohol" and the "fumbling the documents and being over 80" (a mischaracterization, it appears, of the ASD results), he also believed the defendant had been driving while "physically impaired". Accordingly, he arrested the defendant for both "over 80" and impaired operation of a motor vehicle at 1:54am. The defendant was never charged with speeding or any other Highway Traffic Act (HTA) offence.
[14] In cross-examination Kowalyk agreed that he was engaged in a drinking and driving investigation as soon he smelled the odour of alcohol and, as a result, was looking for signs of impairment. He agreed that there was "nothing out of the ordinary" about the defendant's speech or balance, that he walked "in a perfectly normal manner", that he had no difficulty getting in or out of his own and the police vehicle, that he was polite and cooperative, that his eyes were not glassy, contracted or dilated, and that there could be a number of benign reasons for their bloodshot appearance.
[15] Kowalyk, again in cross-examination, conceded that he was not initially certain that the defendant was impaired. The defendant, as put by Kowalyk, was "still speaking fine" and the officer "gave him the benefit of the doubt" respecting his claim to have only had two drinks. He would not have made an ASD demand had he already believed the defendant's ability to drive was impaired.
[16] Rights to counsel and the conventional cautions followed the defendant's arrest, as did, at 1:57am, an approved instrument breath demand. By 2:00am the defendant was being transported to the OPP detachment at Keele and the 401, arriving there at 2:07am.
(c) Events at the OPP Detachment
(i) Lodging the Defendant in a Holding Cell
[17] The defendant was processed through the booking room and lodged in a holding cell within five to ten minutes of his arrival at the detachment. Kowalyk agreed that the defendant was polite and not a security risk. Further, a CPIC check proved negative for conventional risk factors such as suicide, violence, escape and mental health.
[18] There are three holding cells in the detachment, two with vertical metal bars and a third with a solid metal door. Signage across from each of the two barred cells advises that the area is under video surveillance. The third cell is in a separate area. It is equipped with an overhead CCTV camera in a dome fitted to the ceiling. There is no signage cautioning detainees about video surveillance in or around this third cell. The defendant was placed in this third cell at 2:31am. The cell was empty, as were the two other cells. Irrespective of the detainee's gender, there is a constant live feed from the cell cameras to a large video monitor in the "constables' room" at the detachment. Six to eight officers, both male and female, occupy this room at any given time, as do, on occasion, Ministry of Transport, emergency and towing personnel. The video panel is also visible to anyone passing the room.
[19] There is a washroom between the booking room and the holding cell with the solid steel door. The washroom is not equipped with video surveillance. Kowalyk allowed that before he lodged the defendant in a cell he, the defendant, may have asked to use a toilet. If so, Kowalyk placed the defendant in the cell with the steel door (which contains a toilet) rather than escorting him to the adjacent washroom. Kowalyk testified in re-examination that no police policy prevented him from permitting the defendant to use the non-monitored washroom. At no time did Kowalyk inform the defendant of the CCTV camera in his cell.
[20] As stipulated in an Agreed Statement of Fact, the frame of vision of the overhead camera in the defendant's cell includes an unobstructed view of the toilet. The video captures the defendant pulling down his pants and sitting on the toilet for about two minutes. An image, if somewhat blurry, of the defendant's penis is visible for about six seconds. It cannot be said with certainty what bodily function, if any, the defendant performed. It does not appear that any toilet paper was used.
(ii) The Defendant's Evidence
[21] The defendant testified exclusively respecting the Charter issues arising from the video taping of his use of the cell toilet. He was 33, employed and co-parented three sons with his common-law spouse. He had no criminal record. No one, he says, ever informed him that his cell was subject to video monitoring, and the Crown concedes the absence of any contradictory evidence. The defendant had asked to use a toilet before being locked up and assumed that he was lodged in a cell with a steel door because it afforded a measure of privacy. There was no blanket in the cell. He first learned that that his use of the toilet and his penis had been monitored when his lawyer showed him the video recording some months after his arrest. He felt angry, disgusted and violated.
(iii) Physical Monitoring of the Defendant's Cell
[22] There was a standing order at the OPP detachment that persons lodged in the cells be physically checked on a routine basis. Kowalyk believed that the prescribed maximum interval between such checks was fifteen minutes. He testified to having personally conducted the requisite physical checks of the defendant and, as further required by the order, entered and initialed the time in a "Prisoner Security Check" log that, in turn, was to be produced to a supervising officer who signed off on the entries. It was, Kowalyk testified, a serious disciplinary offence to improperly fill out the log.
[23] Apart from those occasions when the defendant was removed and returned to his cell, Kowalyk's log entries, confirmed by his initials, reflect exact quarter-hour intervals between his physical visits to the defendant's cell. These include attendances at 3:50am and 4:05am. Kowalyk's notation "Sitting in Cell" appears next to each entry. However, motion-activated video surveillance of the cell vestibule area demonstrates (as later conceded by the Crown) that neither Kowalyk nor any other officer attended at the defendant's cell at any time between 3:31am and 4:11am, a period of some 40 minutes. Upon watching the vestibule video, Kowalyk agreed that two of his log entries were "false". He could not explain why he had made these false entries.
(iv) The Breath Room
[24] Kowalyk delivered the defendant to Cst. David Brown, a qualified breath technician, at 2:27am. He told Brown that his "grounds" for arresting the defendant for impaired driving included his failing an ASD test and, by way of other indicia, poor driving behaviour (speeding and weaving), slow motor skills, an odour of alcohol and the admission of alcohol consumption. Kowalyk also recalled expressly telling the breath technician that the defendant had fumbled his documents. Brown did not recall Kowalyk attributing any fumbling to the defendant, nor saying anything about the defendant's eyes. Kowalyk conceded his mistaken recall only on viewing a videotape of his breath room exchange with Brown, which confirmed Brown's account.
[25] The legal limit for a driver's BAC is 80 milligrams of alcohol in 100 millilitres of blood. The defendant recorded Breathalyzer results of 143 and 144 at 2:53am and 3:14am, respectively. Other than a slight odour of alcohol and bloodshot eyes, the defendant appeared "perfectly normal" to Brown – including his speech, balance and dexterity. Nonetheless, Brown, following receipt of the test results, concluded that the defendant's ability to operate a motor vehicle was impaired. Unusually, his opinion in this regard was not recorded on that portion of the Alcohol Influence Report reserved for such assessments.
(d) OPP Holding Cell Surveillance and Monitoring Protocols
[26] The installation of standardized video surveillance of the cells in OPP detachments is a product of the unfortunate deaths of several prisoners in OPP custody between 2008 and 2010. Responding to the recommendations of inquest juries and the patent need to better safeguard prisoners, the OPP, commencing in 2009, implemented a province-wide program of video monitoring of detainees. As of September 30, 2010, the force was able to report that, "all [146] OPP detachment locations equipped with cells have had the new Digital Video Recorder (DVR) Servers and supporting equipment installed to ensure constant video surveillance and recording of prisoners".
[27] Staff Sgt. Ian Borden has been the Manager of the Policy Unit of the Information Management Section of the Business Management Bureau of the OPP since 2012. Borden was aware of Ontario Court of Justice jurisprudence commencing in May 2012 respecting claims of infringement of prisoners' privacy interests as a result of the video recording of their use of toilets while in OPP custody. As explained by Borden, the initial court challenges generated mixed results. The OPP did not respond to the constitutional concerns recognized by most of the engaged jurists until after early-January 2014 when an Ontario Superior Court of Justice appellate decision (R. v. Mok, infra) affirmed that the videotaping of a prisoner's use of a cell toilet was a "highly intrusive invasion of privacy". The force then amended its policy to ensure prisoner notification of his or her surveillance while lodged in an OPP cell and, in April of 2014, a project involving the provision of paper medical gowns was piloted in some regions.
[28] Borden confirmed the existence of a general OPP policy requiring physical cell checks of prisoners at least every 30 minutes. These physical checks are to be contemporaneously logged. A failure to conduct the checks or log their occurrence in the prescribed manner is a serious violation that could result in a prosecution of the offending officer under the Police Act. The advent of video surveillance was not intended to replace an officer's timely physical check of each prisoner lodged in an OPP detachment's cell.
C. ANALYSIS
(a) Introduction
[29] The preceding detailed review of the evidence informs the legal inquiry that follows. The s. 24(2) analysis, in particular, commands a nuanced approach to the evidence and, unlike many comparable cases, one that involves an assessment of the reliability of the police evidence and the good faith of the lead officer, Cst. Kowalyk.
[30] I begin with the reasoning that supports my acquittal of the defendant on the charge of impaired operation of a motor vehicle. My findings in this regard have some bearing on the Charter considerations that follow and, in particular, the question of an appropriate and just remedy for the privacy breach rightly conceded by the Crown.
(b) Impaired Operation of a Motor Vehicle
[31] Pursuant to s. 253(1)(a) of the Criminal Code, any person "who operates a motor vehicle … while the person's ability to operate the vehicle … is impaired by alcohol" commits an offence. The degree of impairment is immaterial. As said in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.); affd., [1994] 2 S.C.R. 478, if proven to the requisite standard any degree of alcohol-induced impairment, "from slight to great", is sufficient to make out the offence. However tenuous, I am satisfied that the evidence of an odour of alcohol on the defendant's breath establishes the defendant's prior consumption of alcohol. To be clear, however, the question is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The issue is addressed in R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 21, 22, 33; leave to appeal refd. 106 C.C.C. (3d) vi (S.C.C), which adopts and explains the reasoning in Stellato:
… [I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. …
The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.
… It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where …the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.
[32] Unlike many more prosaic activities, driving demands a high degree of intellectual and motor-co-ordination. I bear this in mind in assessing, as a matter of fact, whether the inference of an alcohol-induced impaired ability to drive is satisfied beyond a reasonable doubt on the basis of the constellation of circumstantial evidence before me. Or as said by the Alberta Court of Appeal in Andrews, supra, at para. 30:
… The question is simply whether the totality of the accused's conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. Common sense dictates that the greater the departure from the norm, the greater the indication that the person's ability to drive is impaired. … In the end the test remains, is the ability to drive of the person impaired [by alcohol]? [Underscoring in original.]
[33] The "totality" of the evidence here bearing on the defendant's "conduct and condition" is relatively circumscribed. There is certainly no evidence of gross impairment. Instead, and at highest, there is some evidence, which I accept, of speeding and weaving between lanes (although not such as to endanger or interfere with other traffic), bloodshot (but not glassy or dilated) eyes, and an odour of alcohol (otherwise unqualified by Kowalyk, unrecognized by his escort Papiorek, and characterized as only "slight" by the breath technician Brown). In addition, Kowalyk alone testified to the defendant "fumbling" with some documents. This latter evidence must be read in the context of both Kowalyk's and Brown's evidence that the defendant's speech, balance, mobility, dexterity and co-ordination were "perfectly normal". The "fumbling", if such it was, appears a singular event and one entirely inconsistent with the defendant's physical and mental agility over the course of the next several hours of sustained police observation. My doubts about the occurrence of any probatively significant fumbling is enhanced by Papiorek's failure to notice any similar behaviour and, more importantly, by Kowalyk's neglect to even mention this observation to Brown when affording him his "grounds" for the defendant's arrest. I also discount Papiorek's reference to the defendant's apparently slow exchange with Kowalyk in view of her distance from this conversation and Kowalyk's failure to notice anything untoward in this same regard.
[34] I appreciate, of course, that both Kowalyk and Brown advanced the opinion that the defendant's ability to drive was impaired. Kowalyk's did not crystallize until after the defendant registered a "fail" on the ASD. Brown, likewise, had the Breathalyzer results in hand when he formed his opinion. More telling is Brown's failure to record his opinion in the space earmarked for this very matter in his Alcohol Influence Report, an omission that casts some doubt on the reliability of his appraisal of the defendant's impairment. Whatever weight the officers assigned the breath test results in reaching their respective opinions, it is settled law that absent expert toxicological evidence (and there is none before me), even approved instrument test results have no probative value other than to confirm the prior consumption of alcohol, an issue not here in dispute: see R. v. Ostrowski (1958), 122 C.C.C. 196 (Ont. H.C.J.); R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.), at para. 22; R. v. Nandlall, [2009] O.J. No. 3452, esp. at para. 6; and R. v. Selvarajah, 2011 ONCJ 468, at para. 17. While Kowalyk and Brown may have subjectively believed that the defendant was impaired, I find the totality of the evidence bearing on this question far less convincing. Put otherwise, the evidence of indicia of impairment falls short of satisfying me beyond reasonable doubt that the defendant's ability to drive was impaired as a result of his consumption of alcohol. As said in Andrews, "if", as I indeed find, "the totality of the evidence is ambiguous in that regard, the onus will not be met". Accordingly, the defendant is not guilty of the charge of "impaired operation".
(c) The Admissibility of the Breathalyzer Test Results: Applying s. 24(2) of the Charter
(i) Introduction
[35] Proof of the second charge on which the defendant was arraigned, that of driving with a legally excessive BAC, depends on the admissibility of the evidence respecting the defendant's Breathalyzer readings. The Crown acknowledges an infringement of the defendant's s. 8 privacy rights as a result of the videotaping of his use of the toilet while in a holding cell at the OPP detachment. This invasion of the defendant's privacy interests occurred before his BAC readings were obtained, thus establishing a temporal connection between the breach and the impugned evidence. The remaining issue, then, is whether the admission of this evidence would "having regard to all the circumstances … bring the administration of justice into disrepute": Charter, s. 24(2).
[36] The s. 24(2) evaluation is primarily guided by the analytical framework directed by the Supreme Court in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1. As summarized at para. 71 of that decision:
[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages 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. … [A] court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
(ii) The First Inquiry: The Seriousness of the Charter-Infringing State Conduct
[37] The breach of the defendant's privacy interests was, in my view both unnecessary and avoidable. The OPP's installation of video-monitoring of cells in the force's detachments was undoubtedly well-intended. There are situations where concerns respecting prisoner health and safety, institutional security and the preservation of evidence justify the constant video surveillance of detainees. It is unclear, however, why every prisoner's toilet functions and genitalia need be closely scrutinized and digitally preserved. Evidentiary concerns can generally be tackled by way of searches conducted before being lodged in a cell including, as is hardly uncommon, non-videotaped strip-searches by officers of the same gender as the detainee. Modesty screens (such, for example, as that described in R. v. Robb, 2014 ONCJ 514, at para. 7), hospital gowns or the provision of other coverings could readily mitigate the predictable privacy claims arising from the routine taping of prisoners' use of a toilet. Nor, as with search-level determinations, does every prisoner present such degree of concern or jeopardy as to warrant constant video surveillance. (The defendant, by way of immediate example, was documented as negative for any health, safety or security risks and was polite and co-operative throughout the investigation.)
[38] It is at least arguable that the video-taping of prisoners' use of a toilet is even more invasive than strip searches in so far as the privacy violation is exposed to an unknown number of others and indefinitely preserved. In view of the express guidance afforded by R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, esp. at para. 97 and, in particular, R. v. Flintoff (1998), 126 C.C.C. (3d) 321 (Ont. C.A.), esp. at paras. 23 and 38, it is most perplexing that the OPP did not factor individualized risk assessment into the design of it cell-monitoring policy or, at minimum, provide some measure of modesty protection. Finally, having been alerted to judicial expressions of concern respecting constitutional improprieties at least a year before the defendant's arrest, it is almost incomprehensible that the force awaited appellate authority before recalibrating the balance between safety and privacy. These systematic or institutional considerations clearly argue against admission of the defendant's BAC results: see R. v. Flintoff, supra, at para. 43. Like the treatment wing of a hospital, the holding cells area of a police station is not "a Charter-free zone": R. v. Taylor, infra, at para. 34.
[39] A review of the conduct of the Cst. Kowalyk only adds weight to the exclusionary side of the fulcrum. The defendant, I find, advised Kowalyk that he needed to use a washroom before he was lodged in a cell. Kowalyk knew that the defendant was not a security risk. He knew that all of the cells at the detachment were subject to video surveillance. He knew, or ought to have known (as did his escort Papiorek), that all three cells at the detachment were empty and that the one in which he intended to lodge the defendant was the only one that had no signage advising prisoners of video surveillance. He also knew that there was an unmonitored washroom contiguous to that cell and that no policy prohibited prisoners from using that washroom. Kowalyk could, in short, have allowed the defendant to use the non-monitored washroom. He could, instead, have placed him in a cell with appropriate signage. At minimum, he could have advised the defendant that the cell in which he did lodge him was subject to video monitoring and that his use of the toilet would be surveilled and captured by that means. Said directly, the basis for the s. 8 breach could readily have been avoided or least mitigated if Kowalyk, at no risk to prisoner safety or police security, had taken any of these alternatives. He did not, nor has he or the Crown advanced any explanation for his failing to do so.
[40] Kowalyk's indifference to the truth is also a matter of some concern respecting the appropriate remedy. More than once Kowalyk made factual assertions under oath from which he was forced to resile in the face of contrary video evidence. He testified, for example, that, as part of his grounds for the arrest he had apprised Brown, the breath technician, that the defendant had fumbled his documents. Brown did not recall receiving this information and a videotape of their exchange affirmed his recall. More significantly, Kowalyk testified that, as mandated by a standing order, he had personally conducted physical checks of the defendant's cell every 15 minutes and, again as required, recorded these checks in a log at the detachment. As a videotaped recording of the cell hallway disclosed, and as Kowalyk was ultimately compelled to concede, he breached the standing order and did not check the defendant's cell on at least two occasions when he falsely reported having done so. He then compounded his fraud by purporting, in the course of his sworn evidence at this trial, to having made these physical checks.
[41] Papiorek, in whose evidence I have much more confidence, directly contradicted Kowalyk's account of when he activated his vehicle's emergency lights. The synopsis Kowalyk prepared for the court file and the instruction of the Crown maintained that the defendant's driving conduct included "cutting off motorists", an averment he was forced to concede was "just not true". And, if not quite finally, I find that Kowalyk's testimonial reconstruction of the preparation of his notes – retreating from dash-pad notations, to markings on his hand to a bald memory of critical times and distances and ASD error messages – increasingly preposterous. Were it not for Brown's confirmation of an odour (if slight) of alcohol, I would have concluded that Kowalyk's evidence was so unreliable that I could not find a lawful basis for the roadside breath demand he made of the defendant, thus rendering the entire chain of subsequent searches and seizures unreasonable.
(iii) The Second Inquiry: The Impact of the Breach on the Defendant's Charter-Protected Interests
[42] The video recording of any prisoner's toilet functions is violative of his or her personal dignity and bodily integrity. It is, as said in R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44 (S.C.), at para. 81, a "highly intrusive invasion of privacy". The defendant's evidence affirms this impact. He had never previously been in police custody. He assumed his cell's solid steel door afforded him a measure of privacy. No one suggested otherwise. He was left feeling angry, disgusted and personally violated when he learned, only through disclosure, that his use of a toilet and images of his penis had been displayed indiscriminately to police and possibly other personnel in the detachment's common room and permanently preserved on videotape. Like the first line of inquiry under s. 24(2), the "impact" factor favours an exclusionary remedy.
(iv) The Third Inquiry: Society's Interest in an Adjudication of the Case on its Merits
[43] Recently, in R. v. Taylor, 2014 SCC 50, the Supreme Court had occasion to re-visit the admissibility of breath test results following the breach of an accused's Charter rights, in particular his s. 10(b) rights to counsel. Addressing the third line of inquiry, Abella J., on behalf of a unanimous court, wrote, at para. 38:
It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this 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".
[44] As in Taylor, the evidence before me is reliable and its exclusion would eviscerate the Crown's case. Nonetheless, as said at para. 84 in R. v. Grant, supra, in language that clearly resonates though Taylor:
Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, … it is the long-term repute of the justice system that is s. 24(2)'s focus. … The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
While I conclude that the societal interest factor ultimately weighs on the side of receipt of the challenged evidence (see Grant, supra, at para. 110), the systemic and individual contributions to the instant breach are of profound concern in maintaining the repute of the justice system – considerations best left to the final, balancing phase of the s. 24(2) exercise.
(v) The Balancing
[45] As explained in Grant, at para. 85:
Having made these [three] inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
[46] The defendant's BAC readings were excessive. However, as found, his driving conduct did not amount to alcohol-impaired operation of a motor vehicle. There was no accident, no evidence of actual endangerment of other vehicles and, for whatever reason, no related charge under the HTA.
[47] Unlike the case of R. v. Wilding (2007), 2007 ONCA 853, 229 C.C.C. (3d) 507 (Ont. C.A.), at para. 17, the evidence before me does substantiate a finding of institutional indifference to individual rights. It also substantiates indifference by the responsible officer to both the defendant's right to privacy and his obligation to be frank, forthright and honest with this court. A similar issue arose in R. v. Harrison (2009), 2009 SCC 34, 245 C.C.C. (3d) 86, a sister-case to Grant. As here, a crucial officer's in-court testimony – "while not part of the Charter breach itself" – was found to be misleading. The Supreme Court, at para. 26, adopted the reasoning of Cronk J.A., dissenting in the Ontario Court of Appeal, to exclude some 35 kilograms of cocaine:
As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority".
[48] As directed by Grant, at paras. 68-70, it is "long-term", "prospective" and "societal" interests that inform the ultimate assessment. Mindful of these considerations, I find myself in harmony with the conclusion reached in the Taylor case, at para. 42:
After weighing all the relevant considerations, … the seriousness of the Charter breach and the impact of the police conduct on [the defendant's] interests are such that the admission of the evidence would so impair public confidence in the administration of justice as to warrant the exclusion of the evidence.
In the result, the evidence of the Breathalyzer results is excluded. As the Crown's case respecting driving with an excessive BAC is dependent on this evidence, an acquittal must follow.
D. CONCLUSION
[49] For the reasons here set out, I find the defendant not guilty of the two charges on which he was arraigned.
Released on October 28, 2014
Justice Melvyn Green