Court File and Parties

Court File No.: Halton 121112001981 Date: 2015-04-24 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Shelby Clucas

Before: Justice D.A. Harris

Heard on: November 10, 12, 18, 20, 2014, February 11, 2015

Reasons for Judgment released on: April 24, 2015

Counsel:

• Maureen McGuigan, for the Crown
• Edwin Boeve, for the defendant Shelby Clucas

HARRIS J.:

Charges

[1] Shelby Clucas is charged with operating a motor vehicle in the City of Burlington on June 24, 2012 when:

1. her ability to operate a motor vehicle was impaired by alcohol, and

2. her blood/alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] It was agreed that Ms. Clucas was operating her motor vehicle in Burlington on June 24, 2012.

[3] It was also agreed that she provided two samples of her breath into an Intoxilyzer and that the Intoxilyzer was operational and functional and operated in a proper manner. The Notice of Intention to file the Certificate of a Qualified Technician was entered into evidence. The Certificate was also entered as Exhibit B, subject only to my rulings with respect to the Charter application referred to below.

[4] That Certificate showed truncated results of 120 milligrams of alcohol in 100 millilitres of blood at 4:39 a.m. and 110 milligrams of alcohol in 100 millilitres of blood at 5:06 a.m.

Issues

[5] The issues before me are:

1. Whether the charges should be stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms;

2. whether the results of the breath tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms;

3. whether the presumption set out in section 258(1)(c)(ii) of the Criminal Code, relating the breath readings back to the time of driving, does not apply if the Crown has not proven beyond a reasonable doubt that the breath tests were conducted as soon as practicable or that the first breath test was completed within two hours of the time when Ms. Clucas last operated her motor vehicle;

4. whether the Crown has proven beyond a reasonable doubt that Ms. Clucas' ability to operate a motor vehicle was impaired by alcohol.

[6] More particularly with respect to the Charter applications, counsel for Ms. Clucas argued that the proceedings should be stayed as a result of infringements of her right to privacy as guaranteed by sections 7, 8 and 15 of the Canadian Charter of Rights and Freedoms. These infringements occurred when the police monitored and recorded her by means of video surveillance while she was being searched and later while she was using the toilet in her cell.

[7] In the alternative, counsel for Ms. Clucas argued that her breath readings should be excluded as a result of these infringements of her rights. Furthermore, counsel for Ms. Clucas argued that her breath readings should be excluded on the basis that the police did not have reasonable and probable grounds to arrest Ms. Clucas or to make a breath demand, contrary to sections 7, 8 and 9 of the Charter.

[8] I will address these issues in the following order:

1. The Charter application based on the absence of reasonable and probable grounds;

2. The Charter applications based on the alleged infringements of Ms. Clucas' privacy rights;

3. Whether the breath tests were conducted as soon as practicable or that the first breath test was completed within two hours of the time when Ms. Clucas last operated her motor vehicle;

4. Whether the Crown has proven beyond a reasonable doubt that Ms. Clucas' ability to operate a motor vehicle was impaired by alcohol.

[9] But first, I will provide a brief summary of the pertinent facts in this case.

FACTS

[10] Dillon Flanagan and Kaden Simmons were two teenagers drinking beer in Mr. Simmons' back yard. They heard a big crash sound, like a car hitting something. They both ran out to the street. On Maple Avenue they saw a car crashed into a pole. The vehicle was damaged and the car was not drivable. There were two people in the vehicle. The female was in the driver's seat. She tried to drive away but the car did not get too far.

[11] They called 911 on a cell phone to report the accident. They ran away because they were afraid of the male passenger. They returned to the scene after the police arrived.

[12] They gave varying estimates as to how much time passed between when they heard the bang and when the first police car arrived. Mr. Flanagan said 40 minutes and Mr. Simmons said 15 minutes. Ms. Clucas said that the first police officer arrived within 10 minutes of her driving the vehicle.

[13] Halton Regional Police Constables Hughes and Schwoob each received a dispatch with respect to this incident and responded to that. Constable Hughes received the dispatch at 3:08 a.m. and Constable Schwoob received it at 3:05 a.m.

[14] The dispatcher had communicated witness information about a motor vehicle collision with a sign and further driving thereafter, in good weather conditions.

[15] Constable Hughes arrived at the scene at 3:25 and Constable Schwoob arrived at 3:28. Both noted damage to the Clucas motor vehicle.

[16] Constable Hughes dealt with the driver, Ms. Clucas. Constable Schwoob dealt with the passenger, Shane Moodie. Two other police officers, Sergeant Repta and Constable Tutte, arrived as well but I heard no evidence of any direct involvement by them with Ms. Clucas.

[17] Ms. Clucas testified that she and Mr. Moodie had dinner together the previous evening. Later, they drove together to a bar. Well into cross-examination, she stated that she had driven there in her car and that Mr. Moodie had driven there on his moped. He was already belligerently drunk.

[18] She testified that she had planned to take a taxi home from the bar since she would be drinking there. However, Mr. Moodie left the bar, got on his moped and began to drive away. She saw him fall twice and so she went after him and got him into her car. She was driving him to Joseph Brant Memorial Hospital when Mr. Moodie grabbed the wheel and jerked it to the side causing the car to go off of the road and across the grass boulevard where it either struck or almost struck a pole.

[19] Following the initial accident, the two boys appeared and used their cell phone to call 911. Despite the fact that help would be on its way as a result of this, she chose to drive the car around the corner. She and Mr. Moodie were in the car there when the police arrived.

[20] Constable Hughes was the police officer who dealt with her at the scene. She said that he was polite and respectful with her.

[21] Constable Hughes testified that he noted an immediate strong odour of alcohol on the breath of Ms. Clucas. She was visibly upset. She was crying and had red eyes. She was verbally upset speaking loudly with slightly slurred speech.

[22] Constable Hughes formed the opinion that Ms. Clucas had been operating her motor vehicle very recently and that her ability to do so was impaired by alcohol.

[23] He informed her that she was under arrest, placed hands on her and told her to put her hands behind her back so that he could handcuff her.

[24] She refused repeatedly to put her hands behind her back. She resisted when he physically took hold of her hands. She told him to "keep his hands off of her". She was loud and angry and emotional and upset with him.

[25] Eventually, he succeeded in putting handcuffs on her and placed her in the back seat of his cruiser.

[26] He left her alone in his cruiser briefly. When he returned, she had removed the handcuffs. As he approached her, she threw them onto the seat beside her. She refused to get out of the cruiser and he had to take hold of her physically to get her out. This time she told him, "Don't fucking touch me".

[27] She resisted him when he tried to replace the handcuffs on her. She only relented when Sergeant Repta began to walk towards them. However she continued to refuse to get back in the cruiser until Constable Hughes physically placed her there.

[28] Ms. Clucas testified that she was angry at Mr. Moodie and at the situation and so she was probably a little loud. Her words might have been a little slurred because she was angry and emotional. However she was not yelling at Constable Hughes or being rude. She was not struggling with him.

[29] While she was in the cruiser, a police officer came and asked for her father's telephone number because he was the registered owner of the car. She did not want to give it to them because she did not want to wake him up. So they had to come back a couple of times. She was crying and asked for a Kleenex and the policeman said "yes" and "taunted" her with it "waved it in her face". She finally gave them her father's number and they left. She wanted to wipe her face and so she removed the handcuffs and placed them on the seat beside her. She never threw them on the seat.

[30] She did resist "a bit" when he tried to get her out of the cruiser and replace the handcuffs on her.

[31] Constable Hughes testified that he inquired as to the location of the closest breath technician and was told that there were none in his division. Instead, he was directed to go to the Burlington Ontario Provincial Police station which was a two minute drive from his location.

[32] He was met there at the back door and took Ms. Clucas directly to the cell area.

[33] Constable Hughes then enlisted the assistance of Constable Cheeseman, an experienced female Ontario Provincial Police officer to conduct a frisk or pat down search on Ms. Clucas. This was all recorded and I was able to watch this on a DVD. I will go into the facts regarding this in more detail later in these Reasons for Judgment.

[34] The DVD then shows Ms. Clucas state that she needed to use the toilet. Constable Cheeseman informed her that she would have to use the toilet in the cell. She asked Ms. Clucas to wait a couple seconds while she ensured that no male officers were nearby. Then she left too. Her final words to Ms. Clucas were "give me a yell when you are done".

[35] Ms. Clucas then used the toilet. I will also deal with this and her subsequent use of the toilet in more detail later.

[36] She was then turned over to Constable Tihor, the breath technician, and provided the first sample of her breath into the Intoxilyzer.

[37] She returned to her cell where she again used the toilet.

[38] She then returned to the breath room and provided the second sample of her breath into the Intoxilyzer.

[39] As I stated earlier counsel agreed that the Intoxilyzer was operational and functional and operated in a proper manner. The Notice of Intention to file the Certificate of a Qualified Technician was entered as an exhibit, on consent. The Certificate was also entered as Exhibit B, subject only to my rulings with respect to the Charter application referred to below.

[40] That Certificate showed truncated results of 120 milligrams of alcohol in 100 millilitres of blood at 4:39 a.m. and 110 milligrams of alcohol in 100 millilitres of blood at 5:06 a.m.

CREDIBILITY / RELIABILITY OF MS. CLUCAS' EVIDENCE

[41] Ms. Clucas testified and disputed much of what Constable Hughes and other witnesses said but I did not believe Ms. Clucas. Nor did her evidence leave me with a reasonable doubt as to what had happened. She was a totally unreliable historian and at times her evidence made no sense at all.

[42] Ms. Clucas had been drinking that day. She was imprecise with respect to how much she drank or when she drank, but she had consumed sufficient alcohol that her blood alcohol concentration later that morning was 110 milligrams of alcohol in 100 millilitres of blood. Many of her actions that night were consistent with her being impaired by alcohol.

[43] Her evidence was inconsistent and at times defied common sense.

[44] Ms. Clucas testified that she and her boyfriend Mr. Moodie had driven to the bar together that night. She was well into cross-examination when she stated that she had driven there in her car and that Mr. Moodie had driven there on his moped.

[45] She testified that she planned to take a taxi home from the bar since she would be drinking there. She never explained why she would not take a taxi rather than drive to the bar in the first place if she was not going to be driving home afterwards. She also provided no explanation for what they planned to do with Mr. Moodie's moped.

[46] She also never explained why she was even going to the bar with him in the first place since according to her he was already belligerently drunk.

[47] All of these decisions by her even before she went to the bar are indicative of poor judgment on her part, consistent with impairment by alcohol.

[48] The same can be said for her decision to drive after Mr. Moodie. Yes she had seen him fall twice from his moped as he tried to drive away. However, she said that she had drank enough at the bar that she was still planning to take a taxi home although she denied being impaired in any way.

[49] I note as well that she never explained what happened to the moped after she got Mr. Moodie into her car and raced off towards Joseph Brant Memorial Hospital.

[50] Following the initial accident, the two boys appeared and used their cell phone to call 911. Despite the fact that help would be on its way as a result of this, she chose to drive the car around the corner. This too showed bad judgment consistent with impairment by alcohol.

[51] Constable Hughes was the police officer who dealt with her at the scene. She said that he was polite and respectful with her.

[52] Despite this, she refused repeatedly to put her hands behind her back. She resisted when he physical took hold of her hands. She told him to "keep his hands off of her". She was loud, angry and emotional and upset with him.

[53] He left her alone in his cruiser briefly. When he returned, she had removed the handcuffs. As he approached her, she threw them onto the seat beside her. She refused to get out of the cruiser and he had to take hold of her physically to get her out. This time she told him "Don't fucking touch me".

[54] She resisted him when he tried to replace the handcuffs on her. She only relented when Sergeant Repta began to walk towards them. However she refused to get back in the cruiser.

[55] Her evidence denying most of this was inconsistent with that given by Constable Hughes.

[56] I accept his evidence. He behaved in a professional manner in his dealings with Ms. Clucas and in his testimony in court. He showed no malice towards her. There was certainly no apparent motive for him to be making things up in order to get at her. He did not overstate the facts. On the contrary he quite candidly agreed that Ms. Clucas had not displayed a number of things that might be described as usual indicia of impairment.

[57] His evidence was consistent with that of the other witnesses and also corroborated by the DVD recording.

[58] Ms. Clucas' evidence with respect to a police officer taunting her with a Kleenex was incredible. She never identified the officer who supposedly did this. She said that it was not Constable Hughes. I was unclear whether she was suggesting that it was Constable Schwoob. He testified that he had no dealings with her. He was not cross-examined on that. Neither Constables Hughes nor Schwoob made any reference to the other officers at the scene having anything to do with Ms. Clucas. There was certainly no reason for them to do so. There was no reason why any officer would be taunting her in any event. I am satisfied that this story was a fiction made up by Ms. Clucas in order to somehow justify her removing her handcuffs.

[59] Ms. Clucas testified that she behaved badly when dealing with police officers at the police station but that she did so because she was upset when they tried to take her mother's engagement ring away from her. That may have been the trigger that set her off again but whatever the reason, her behaviour then was consistent with that which Constable Hughes described as happening earlier on at the scene.

[60] Ms. Clucas admitted in court that this behaviour was out of character for her but disagreed that it might have been the result of impairment by alcohol.

[61] With respect to other evidence, she initially claimed that Constable Cheeseman had searched her in an inappropriate fashion. She changed her position somewhat after we had all seen the video showing exactly what had happened but I would describe her acquiescence in this as grudging.

[62] Ms. Clucas did not keep a written or other record of the events of that night.

[63] Finally, I note that Ms. Clucas had ample motive to remember the events in the way that she did.

[64] In light of all of the above, I did not find Ms. Clucas to be a credible witness.

[65] I will now address the various legal issues.

REASONABLE AND PROBABLE GROUNDS

[66] Police Constable Hughes of the Halton Regional Police Service testified that he subjectively believed that Ms. Clucas operating a motor vehicle up until just before he arrived, (i.e. within two hours), and that Ms. Clucas' ability to operate a motor vehicle was impaired by alcohol.

[67] I am satisfied that his belief was objectively reasonable.

[68] The dispatcher had communicated witness information about a collision with a sign and further driving thereafter, in good weather conditions. The vehicle he found had fresh damage consistent with this and was no longer driveable in the view of Constable Hughes.

[69] Continuing to drive a vehicle in this condition after a collision is consistent with impairment.

[70] The rest of the surrounding circumstances provided nothing whatsoever at that time to explain the collision or to exclude impairment as a factor in it.

[71] Constable Hughes noted an immediate strong odour of alcohol on the breath of Ms. Clucas, slightly slurred speech and red eyes.

[72] Taking into account this "constellation of objectively discernible facts," I am satisfied that Constable Hughes had reasonable and probable grounds to arrest Ms. Clucas and to make the breath demand. He did not infringe her rights in any way while doing this.

VIDEO SURVEILLANCE OF THE HOLDING CELL

[73] I intend to combine the two issues involving allegations of infringements of Ms. Clucas' right to privacy since much of the law and some of the facts surrounding both incidents overlap.

[74] There was little judicial direction with respect to the issue of a detainee's privacy rights at the time that Ms. Clucas was arrested. That has changed since then. I am very thankful for the direction provided by Justice Speyer of the Ontario Court of Justice and Justice Dawson of the Superior Court of Justice in R. v. Griffin. Their Reasons for Judgment have been very helpful in my assessment of the relevant law and its application to the facts of this case which are set out in the following paragraphs.

[75] Section 8 of the Canadian Charter of Rights and Freedoms guarantees that everyone has the right to be secure against unreasonable search or seizure.

[76] Individual rights, however, are not absolute and frequently conflict with other competing societal interests. Courts must examine each claim to a Charter right in the particular context of the case and balance it against other recognized and valid societal interests. It is therefore important to set out in some detail the evidence presented in this case.

[77] Dealing firstly with the search of Ms. Clucas, Constable Hughes enlisted Constable Cheeseman to do this. Constable Cheeseman was an experienced female Ontario Provincial Police officer who had 18 years of service and filled in as the acting sergeant when the sergeant for her shift was not working.

[78] The search was a type of pat down search with a small amount of under the clothing sweeping and lasted a little over a minute. Ms. Clucas' clothes were not removed or disturbed. Constable Cheeseman explained what she was doing and that it was done for officer and detainee safety.

[79] Ms. Clucas stood against the wall of the cell, with the camera at an angle behind her and off to the side. Constable Cheeseman's body blocked the view of some of the search, as did Ms. Clucas' own body. Constable Cheeseman said that she kept the back of a detainee to the camera during a search unless there were safety concerns. This assists with privacy. She may or may not have to lift up a detainee's shirt when searching, depending on what the search presents.

[80] This was a routine function for Constable Cheeseman. She did not have notes of the search, as she was busy with a prisoner of her own. She testified about these events almost two and a half years later. She refreshed her memory from the video and the audio that accompanied it, and explained her conduct as portrayed therein.

[81] Wherever Constable Cheeseman conducts such a search, it is her standard practice that this is recorded. A video provides a complete record of what she is doing and safeguards both the officer and the detainee. Doing a search of this nature off camera could lead to questions of impropriety. So could holding a privacy blanket up between the search and the camera.

[82] Constable Cheeseman takes a different approach entirely during a strip search.

[83] With respect to Ms. Clucas' use of the toilet, I watched the video recording.

[84] Ms. Clucas stated that she needed to use the toilet. Constable Cheeseman informed her that she would have to use the toilet in the cell. She asked Ms. Clucas to wait a couple seconds while she ensured that no male officers were nearby. Then she left too. Her final words to Ms. Clucas were "give me a yell when you are done".

[85] Ms. Clucas then used the toilet. She placed toilet paper around the rim of the toilet. She stood with her back to the toilet, and in one motion raised the hem of her dress slightly, lowered her underwear and sat down. She apparently urinated and then she wiped herself. Throughout this time her right outer thigh and hip were exposed. When she stood up, she turned so that her bare buttocks were exposed for a very brief moment. Contrary to the submissions of her counsel, her "front private area" was never visible. The entire process from when she began to sit down until her dress was back in place lasted 56 seconds.

[86] When Ms. Clucas used the toilet the second time, she did not turn so as to expose her buttocks to the camera and the entire process lasted only 33 seconds. She testified that, in the meantime, Constable Tihor had informed her of the presence of the video camera.

[87] About 30 seconds later, Ms. Clucas faced the camera and waved to get the attention of a police officer. No police officer responded suggesting that no one was monitoring her activities at that time.

[88] The quality of the video is not very high. In the absence of someone telling me who was shown in it, I would have found it difficult to identify that person as Ms. Clucas, even during the very few occasions when she was actually facing the camera.

[89] Constable Pierrette Roy testified as to the recording system used in the Burlington Ontario Provincial Police detachment. She has been the administrator of the digital video recording system there since 2008.

[90] A DVD recorder has been utilized since 2007 to record detainees in both the cellblock and the breathalyzer area.

[91] In October 2008, an issue was raised by the Halton Crown Attorney's office that a detainee's rights to counsel were read within the cellblock area and the DVD had not been downloaded or provided for disclosure. As a result of this incident, a protocol agreement was entered into and the detachment began to download all cellblock encounters and provide them for review.

[92] In March 2009, a new DVR system was installed. The new system runs in a continuous loop 24 hours per day. The recordings are downloaded off the system as soon as practicable by the detachment administrator. The DVDs are provided to the Crown attorney for review and disclosure.

[93] The Burlington detachment is equipped with two TV monitors, one in the constables' office and one in the sergeant's office would show video feed of the cell area and the breath room. There is no capacity to control the camera, for example starting and stopping, moving the camera or zooming in.

[94] There is one administrator of the prisoner monitoring and recording system and one assistant administrator.

[95] The master copy of each DVD is stored in a locked cabinet within the detachment operations manager's office which is also locked when not in use. Two additional copies are provided to the Crown Attorney through the detachment court case managers.

[96] Individual officers do not have the system authority to watch or download DVR recordings, nor are they provided with a copy of the recording once downloaded.

[97] Burlington detachment has two posted signs in the cells area indicating that "this room is being monitored by video and audio surveillance". Since September 2013 additional signs of been posted in the cell area stating "You are being audio and video recorded at all times in this area. You are permitted to cover yourself with the blanket provided if you are using the toilet".

[98] Since January 2014 all prisoners are advised when they are lodged that if they would like some privacy when using the toilet in the cell area, a privacy cover is available upon request.

[99] As of October 2014 the breath technician receives only a copy of coverage from the breath room.

[100] Tapes are kept indefinitely even after the case is completed. At some point they will be destroyed, that she does not know when.

[101] All of this was in accordance with Ontario Provincial Police policy.

[102] Sergeant Amy L. Ramsay of the Policy and Procedure Information Management Section of the Business Management Bureau of the Ontario Provincial Police testified to the following.

[103] The Ontario Provincial Police policy with respect to video monitoring of detainees developed over the years in response to four separate coroner's inquests into the deaths of inmates. Each of the four coroner's juries recommended video recording of all detainees while they are in cells and "24/7" monitoring of same.

[104] As a result, in September of 2010, the Ontario Provincial Police implemented a province-wide, standardized system of video monitoring detainees persons, using motion activated DVR technology. The videos are stored to a hard drive that is password protected with only 1 to 3 persons at a detachment having access to the video. Apart from court proceedings the video would not be made available to police or to members of the public.

[105] All detainees in Ontario Provincial Police cells are subject to video surveillance.

[106] It is not an option for any detainee to use a private washroom. There are items in such washrooms which might a detainee might use to harm themselves or someone else. As a result of past experience, the Ontario Provincial Police recognize that they cannot be certain as to what is in the mind of a particular detainee.

[107] Safety and prevention of deaths take priority over privacy. The Ontario Provincial Police are prepared to consider any option which would allow them to accomplish both goals.

[108] Justice West of the Ontario Court of Justice released his decision in R. v. Mok on May 3, 2012. The summary conviction appeal ruling by Justice Boswell was released on January 7, 2014. Since then, the Ontario Provincial Police have changed their policy and practice by which they video monitor detainees.

[109] On February 6th, 2014 Deputy Commissioner (now Commissioner) Vince Hawkes sent an interim directive to all detachments wherein he ordered the following with respect to all detainees:

• When placing a person in a cell, the officer should be seen on camera actively pointing to the camera to ensure the detainee is fully aware that his or her actions are being videotaped, including the use of the toilet

• Make verbal notification that the cell is video monitored

• Ensure proper posting of all signs indicating that video monitoring is in place and make the detainee aware of those signs

• Make a written notation of the steps taken to ensure the detainee is aware the cell is videotaped

• If the individual detainee is entitled to a blanket in accordance with current Ontario Provincial Police policy, they may use it for privacy

• If toilet paper is left in the cell area, it should be left near the toilet

• Ensure video is only available to those who require access. (e.g. for court purposes) and

• Notify Risk Management of each case in which the cell videotaping issue is brought before the court

[110] In addition, the Ontario Provincial Police initiated a then "pilot project" (adopted province wide as of August 2014) involving 12 detachments. One of the new changes called for providing a paper privacy gown to a detainee, who might want to use the cell toilet. The paper gown, something like a hospital gown is capable of tearing, and therefore could not be fashioned into a noose, alleviating any concern that detainees could harm themselves.

[111] Privacy gowns were determined to be most effective in providing privacy, while addressing safety concerns. They were more effective than using "privacy screens" or a "pixilation" process of the video.

[112] So, was there a breach of Ms. Clucas' section 8 rights in this case?

[113] Her counsel argued that Ms. Clucas had an expectation of privacy while in the police holding cell and that the state violated that right when it video-recorded her being searched and while using the toilet.

[114] With respect to the search, I am unaware of any previous court ruling that establishes a reasonable expectation of privacy with respect to videotaping this category of search at a police station.

[115] Searches incident to arrest must be conducted reasonably.

[116] Constable Cheeseman conducted the search here in an efficient, appropriate and reasonable manner. Recording this search did not render it unreasonable.

[117] Ms. Clucas' body was not exposed any more than she had already chosen to expose it by her choice of clothing. The search lasted no more than one minute. The expectation of privacy in a police station is limited. The public interest in videotaping the search far outweighs any intrusion upon the privacy of a detainee.

[118] I note here that the news, over the past several months, has been full of stories wherein there have been allegations of police misconduct. The response to these stories has been repeated calls by the public for greater use of cameras by police officers so as to ensure transparency in their activities involving interaction with a member of the public.

[119] In this case, Ms. Clucas claimed that Constable Cheeseman had searched her in a fashion that infringed her rights. Without the video record, I would have been left with the viva voce evidence of Ms. Clucas and that of Constable Cheeseman. The latter would have been undermined here by the fact that the search did not involve Constable Cheeseman's own detainee and was so routine that she would not have a specific recollection of the event.

[120] If anything, this case underscores the importance of recording activities such as pat down or frisk searches of detainees.

[121] I am not satisfied that Ms. Clucas had an expectation of privacy with respect to the recording of her being searched by Constable Cheeseman.

[122] I commented earlier that I was unaware of any previous court ruling that establishes a reasonable expectation of privacy with respect to videotaping this category of search at a police station. The situation is very different with regard to cases involving video surveillance of detainees using a toilet while in a holding cell.

[123] Counsel for Ms. Clucas relied on a number of decisions in which the courts have held that the practice of video-recording a detainee using the toilet in holding cells is an unreasonable intrusion of a person's right to privacy.

[124] It is not clear from the written submissions if Crown counsel is arguing that there was no infringement of Ms. Clucas' privacy right here. I note that I am only aware of three cases in which the court found that there was no such breach. All of these cases involved male detainees who were standing with their backs to the camera while they used the toilet.

[125] She did argue that I should reject both a stay of proceedings under section 24(1) of the Charter or exclusion of evidence under section 24(2).

[126] For either purpose, it is essential to review the jurisprudence and the evidence in this case to determine the extent, if any, to which the police conduct violated Ms. Clucas' rights.

[127] The law is very clear on the purpose of section 8. It is to protect individuals from unjustified state intrusions into their privacy.

[128] The protection of personal privacy is of the highest concern. As Justice Cory stated in R. v. Stillman:

It has often been clearly and forcefully expressed that state interference with a person's bodily integrity is a breach of a person's privacy and an affront to human dignity ... a violation of the sanctity of a person's body is much more serious than that of his office or even of his home.

[129] Video surveillance can constitute a search within the meaning of s. 8 of the Charter. The target of the surveillance must, however, have had a reasonable expectation of privacy. Whether such an expectation is reasonable will depend on the particular circumstances. The subjective expectation of privacy must also be objectively reasonable.

[130] Persons detained in police custody have a reduced expectation of privacy.

[131] Following a review of the jurisprudence on this issue, Justice Boswell concluded, in R. v. Mok, that while detainees have a lowered expectation of privacy while in police custody, "it is reasonable for detainees to expect at least some minimal level of privacy, notwithstanding being taken into custody, particularly when the presumption of innocence remains in place".

[132] He further rejected the argument that advising a detainee that her movements and activities in the cell are under surveillance is a complete answer to an alleged s. 8 breach. He concludes that if notification was all that was necessary to justify a search, then the balancing of individual rights and the interests of the state would again be undermined. However, the detainee's knowledge that the area is under surveillance may be an important factor where there is evidence that the detainee had a choice as to whether to use the toilet and the manner in which they use it.

[133] I do note the following.

[134] There were signs posted at the entrance to and in the cell area. They stated very clearly, "This room is being monitored by video and audio surveillance".

[135] The camera in the cell is also very obvious.

[136] Ms. Clucas said that she did not see either of these. It was suggested that this might have been because she was not wearing glasses at the time. It might also have been the result of her being impaired by alcohol. Whatever her reason, there were obvious signs that video surveillance was occurring.

[137] Further, it would be obvious to anyone that the cell was not a private room. The front wall had many open spaces between bars such that anyone standing there would be able to see in.

[138] On the evidence before me, I am satisfied that Ms. Clucas had a subjective expectation of privacy, albeit extremely low, given her awareness of her situation. Moreover, I am satisfied that this expectation was objectively reasonable.

[139] I must then determine whether what was done here was an unreasonable infringement of Ms. Clucas' expectation of privacy. I am taking into account here the reasonableness of the Ontario Provincial Police practice of videotaping all activity in the holding cells.

[140] This practice was implemented in response to the recommendations following four separate coroner's inquests.

[141] An accurate and complete record of all activity in police cell is an important safety tool. It preserves evidence of any police or prisoner misconduct. It can act to deter police officers from abusing prisoners. It protects officers against false allegations of police brutality.

[142] I am satisfied that the Ontario Provincial Police practice of recording all activity in the cells is based on sound and valid public policy principles.

[143] I am also satisfied that in light of Ms. Clucas' behaviour when dealing with Constable Hughes at the scene and her subsequent behaviour when she was first being placed in the cell, it was reasonable for the police to monitor her continuously while she remained in their custody.

[144] If I was wrong in my earlier finding that Ms. Clucas had no expectation of privacy with respect to the videotaping of her being searched by Constable Cheeseman, then I am satisfied that what was done was not an unreasonable infringement of that expectation.

[145] With respect to her use of the toilet, I find that although Ms. Clucas' expectation of privacy in custody was greatly reduced, she nonetheless had the right to a modicum of privacy while using the toilet and she should have been given a blanket or something else to cover herself. In failing to do this, the police infringed her rights.

[146] I must now address the issue of whether the proceedings should be stayed or the evidence excluded.

STAY OF PROCEEDINGS / EXCLUSION OF EVIDENCE

[147] Counsel for Ms. Clucas requested a stay of proceedings.

[148] A judicial stay of proceedings is an exceptional remedy reserved for the clearest of cases.

[149] These cases generally fall into two categories:

1. where state conduct compromises the fairness of an accused's trial (the "main" category); and

2. where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category)

[150] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits.

[151] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. The issue is not one of concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.

[152] The case before me falls into the residual category of cases. State conduct that contravenes fundamental notions of justice, which undermines the integrity of the justice system.

[153] In the circumstances of the case before me, I am not satisfied that a stay would be an appropriate remedy. I come to this conclusion because of the following five factors.

[154] Firstly, the Ontario Provincial Police practice of monitoring and recording all activities in police holding cells is based on sound public policy. Four separate coroner's juries have recommended this practice.

[155] Secondly, the officers who dealt with Ms. Clucas were respectful of her personal dignity and tried to give her as much privacy as possible. No one observed her directly as she was using the toilet.

[156] The recording of her use of the toilet only came to light as a result of disclosure of the DVD.

[157] I note that this issue has arisen only in drinking/driving cases. That struck me as odd until I considered the possibility that these are the only cases where counsel routinely request the production of holding cell videos as part of the disclosure and so these are the only cases where the video image of the accused using a toilet is seen by anyone. That leads me to the further observation that the alleged violation of Ms. Clucas' privacy rights only occurred as a result of compliance with her right to full disclosure which is also guaranteed by the Charter.

[158] The evidence before me is that only a few select individuals have had access to the DVD or seen its contents. These include Ms. Clucas, her counsel, Crown counsel and me. The limited access to the DVD is the result of Ontario Provincial Police policy.

[159] I must comment that I for one would not have watched this video but for the specific request by Ms. Clucas through her counsel that I do so in order to better assess the degree to which her right to privacy had been infringed. In those circumstances, I am uncertain as to whether to classify my seeing the video as part of the ongoing invasion of Ms. Clucas' privacy or as something apart from that.

[160] I also note that Constable Tihor testified that he did not view these portions of the video.

[161] These portions of the video were not played in court and the exhibit has been sealed so as to prevent access to it without an express order by a court of competent jurisdiction.

[162] I note that Ms. Clucas expressed a belief that there are virtually no limits on access to the DVD's and she was concerned that police officers would access them and show them to others. I wish to point out that her belief is contrary to the evidence before me. Further there is absolutely no evidentiary basis for her expressed concern that any of the police officers in this case would have any interest in accessing and sharing the video record of her using the toilet.

[163] I am satisfied that the Ontario Provincial Police have attempted to address the safety concerns expressed by the various coroner's juries by ensuring that a video record of all detainees is kept in case it might be needed for some valid purpose. At the same time, they have attempted to address privacy issues by ensuring that no one would ever see these videos except for these valid purposes.

[164] Thirdly, at the time of Ms. Clucas' arrest on June 24, 2012, the trial decision in R. v. Mok, had just been released on May 3, 2012. The Reasons for Judgment in R. v. King had been released on May 31, 2012. Given that the policy of the Ontario Provincial Police with respect to the video surveillance had been developed over time and in response to the recommendations of four separate coroner's juries, it is not reasonable to expect that the Ontario Provincial Police would have revised that policy within 60 days of one or two decisions by the Ontario Court of Justice rather than wait for guidance from appellate courts.

[165] To put this in perspective, I note that the reasons of the summary conviction appeal from R. v. Mok were released on January 7, 2014 and that this decision is now under further appeal to the Ontario Court of Appeal. Other court cases decided after R. v. Mok reveal that the law is far from settled. So the courts have certainly been unable to respond to the issue with anywhere near the dispatch that counsel for Ms. Clucas argues that the Ontario Provincial Police should have shown.

[166] Fourthly, based on the evidence of Sergeant Ramsay, I am satisfied that the Ontario Provincial Police are taking this matter seriously. The Ontario Provincial Police has made changes to its practices in accordance with the recommendations of Justice Boswell in R. v. Mok. Accordingly, a stay is not required to ensure that state misconduct does not continue in the future.

[167] Finally, I am not satisfied that the alleged misconduct by the police is sufficiently serious to warrant a stay when weighed against the public's interest in having these charges resolved on their merits. Drinking and driving offences are serious and there is a high expectation in the community that such charges will be tried on their merits. Given Ms. Clucas' greatly reduced expectation of privacy, I do not view this as one of those rare cases where continued prosecution would offend society's sense of justice.

[168] Accordingly, her application for a judicial stay is dismissed.

[169] Should the evidence of the breath tests be excluded pursuant to s. 24(2)?

[170] Counsel for Ms. Clucas argued in the alternative that the breath test results should be excluded from the trial as they were obtained in "a manner" that infringed her section 8 right to privacy. Counsel relied on the reasons in R. v. Deveau wherein the trial judge dismissed an application for a stay, but excluded the evidence of the breath tests because the police had videotaped Ms. Deveau using the toilet in the holding cell.

[171] I agree with Justice Harpur in R. v. Deveau, that there is a sufficient nexus between the alleged misconduct and the obtaining of the evidence that a remedy under s. 24(2) is available. However, for the reasons stated herein, I am not satisfied that the evidence should be excluded in the circumstances of this case.

[172] In order to determine whether I should exclude the evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, I must apply the test set out in R. v. Grant wherein the Supreme Court of Canada stated that 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,

(2) the impact of the breach on the Charter-protected interests of the accused, and

(3) society's interest in the adjudication of the case on its merits.

[173] My role on a section 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.

[174] So I must consider all of the circumstances and assess and balance each of the three factors enumerated above.

[175] With respect to the first factor, I must consider the nature of the police conduct that infringed the Charter. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[176] As already stated, the Ontario Provincial Police practice of recording all activity in the cells is based on sound public policy principles.

[177] While failing to provide a screen or some other covering to give Ms. Clucas visual privacy from the camera, the police acted in good faith in that they acted in accordance with well-founded safety policies that were in place at the time. They had also taken the prescribed steps to restrict access to the video record.

[178] This favours inclusion of the evidence.

[179] Moving on to the second factor, I must consider the extent to which the breaches actually undermined the interests protected by the infringed rights. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[180] Section 8 aims to protect Ms. Clucas' personal human dignity. An infringement of her privacy is a serious matter.

[181] However, as already pointed out, no one observed her directly as she was urinating. Her use of the cell toilet was recorded and disclosed as part of the evidence in this case. Accordingly, it was observed by only a very few individuals. I regard the impact of the state's misconduct on Ms. Clucas' privacy rights to be negligible. This favours inclusion of the evidence.

[182] As for the third factor, the offences are recognized to be serious ones. The carnage caused by drinking and driving cases on our roads is well known. The societal interest in having a trial on the merits would usually favour admission here.

[183] I must also consider the fact that the evidence which counsel for Ms. Clucas seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by … intoxilyzers are generally considered reliable evidence." The Intoxilyzer test results are certainly presumptively reliable.

[184] They are also essential to the Crown's proof of the "over 80" charge.

[185] I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.

[186] Following consideration of all of these factors, I am satisfied that the admission of the breath test results would not bring the administration of justice into disrepute. I dismiss the application to exclude the evidence.

AS SOON AS PRACTICABLE / WITHIN TWO HOURS

[187] The relevant portions of section 258(1)(c)(ii) of the Criminal Code read as follows:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses.

[188] A failure to prove beyond a reasonable doubt that both samples were taken as soon as practicable and that the first sample was taken within two hours of the time of driving would act so as to deprive the Crown of the presumption relating the readings back to the time of driving.

[189] As set out earlier in these reasons, Dillon Flanagan and Kaden Simmons heard a big crash sound, like a car hitting something. They both ran out to the street where they saw a damaged car that had crashed into a pole. The female driver tried to drive away but the car did not get too far.

[190] They called 911 on a cell phone to report the accident. They ran away because they were afraid of the male passenger. They returned to the scene after the police arrived.

[191] They gave varying estimates as to how much time passed between when they heard the bang and when the first police car arrived. Mr. Flanagan said 40 minutes and Mr. Simmons said 15 minutes. Ms. Clucas said that the first police officer arrived within 10 minutes of her driving the vehicle.

[192] Constable Hughes arrived at 3:25 and Constable Schwoob arrived at 3:28.

[193] Combining Mr. Flanagan's evidence of 40 minutes elapsing with Constable Hughes' arrival at 3:25 creates a worst case scenario of the driving ending at 2:45. The first sample was taken at 4:39, less than two hours after that. Using the evidence of either Ms. Clucas or Mr. Simmons results in even less delay with the last act of driving occurring at 3:15 or 3:10 respectively.

[194] In addition, Ms. Clucas testified that she was still operating the car while the boys were on the cell phone. Constable Hughes testified that he was told that the 911 caller was still on the line while Constable Hughes was driving to the scene. In that case, the driving ended sometime after 3:08, the time when Constable Hughes received the dispatch. That would be somewhere in the middle of the times given by Ms. Clucas and Mr. Simmons.

[195] I am satisfied that the Crown has proven beyond a reasonable doubt that the first breath sample was taken within two hours of the time Ms. Clucas last drove her car.

[196] With regard to the requirement that both samples be taken as soon as practicable, the Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time.

[197] In deciding whether the tests are taken as soon as practicable I must look at the entire chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied reasonably. The Crown is obligated to demonstrate that in all the circumstances the breath samples were taken within a reasonably prompt time, but there is no requirement that the Crown provide a detailed examination of what occurred during every minute that the accused is in custody.

[198] In this case, both samples were taken within two hours of Ms. Clucas driving.

[199] The alleged delay at the scene was fully explained by Ms. Clucas' uncooperative behaviour and by the need for Constable Hughes to be informed of the nearest available breath technician. In regard to that last point, I note that he was sent to the Burlington Ontario Provincial Police station which was only two minutes away from his location.

[200] There are no unexplained or unjustified delays in the chronology of events at the Ontario Provincial Police station.

[201] Constable Hughes and Ms. Clucas arrived at the station at 3:57. She was processed and searched and placed in the cell. Constable Cheeseman left her so that she could use the toilet at 4:13.

[202] Constable Tihor testified that he began the tests necessary to prepare the Intoxilyzer at 4:04. At 4:11 he was entering information into the Alcohol Influence Report. At 4:22, Constable Hughes informed him of his grounds for arresting Ms. Clucas.

[203] At 4:26, Ms. Clucas was turned over to him and he received further information that he needed from her. He began to take the first sample of her breath at 4:39.

[204] In the circumstances, the samples were taken within a reasonably prompt time.

[205] I am satisfied that the Crown has proven beyond a reasonable doubt that both samples were taken as soon as practicable.

ABILITY TO OPERATE A MOTOR VEHICLE IMPAIRED BY ALCOHOL?

[206] I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Clucas' ability to operate a motor vehicle was impaired by alcohol.

[207] I base this partly on the observations of Constables Hughes, Schwoob and Tihor but I also am relying heavily upon Ms. Clucas' actions.

[208] Ms. Clucas testified that she and her boyfriend Mr. Moodie had driven to the bar together that night. Later, she stated that she had driven there in her car and that Mr. Moodie had driven there on his moped.

[209] She testified that she planned to take a taxi home from the bar since she would be drinking there. She never explained why she would not take a taxi rather drive to the bar in the first place if she was not going to be driving home afterwards. She also provided no explanation for what she planned on doing with Mr. Moodie's moped.

[210] She also never explained why she was even going to the bar with him in the first place since according to her he was already belligerently drunk.

[211] All of these decisions by her even before she went to the bar are indicative of poor judgment on her part, consistent with impairment by alcohol.

[212] The same can be said for her decision to drive after Mr. Moodie. Yes she had seen him fall twice from his moped as he tried to drive away. However, she said that she had drank enough at the bar that she was still planning to take a taxi home although she denied being impaired in any way.

[213] I note as well that she never explained what happened to the moped after she got Mr. Moodie into her car and raced off towards Joseph Brant Memorial Hospital.

[214] She then drove her car off of the road, across the grass boulevard and either struck or almost struck a pole.

[215] She said that this occurred because Mr. Moodie grabbed the wheel and jerked it to the side. As I said earlier, I did not believe Ms. Clucas generally. She was a totally unreliable witness. However, given what the other witnesses said about Mr. Moodie and his behaviour that night, I am giving her the benefit of the doubt with respect to the cause of the accident.

[216] That was followed, however, by more bad judgment calls which were consistent with impairment by alcohol.

[217] Following the initial accident, the two boys appeared and used their cell phone to call 911. Despite the fact that help would be on its way as a result of this, she chose to drive the car around the corner. This too showed bad judgment consistent with impairment by alcohol.

[218] Constable Hughes was the police officer who dealt with her at the scene. She said that he was polite and respectful with her.

[219] Despite this, she refused repeatedly to put her hands behind her back. She resisted when he physical took hold of her hands. She told him to "keep his hands off of her". She was loud and angry and emotional and upset with him.

[220] He left her alone in his cruiser briefly. When he returned, she had removed the handcuffs. As he approached her, she threw them onto the seat beside her. She refused to get out of the cruiser and he had to take hold of her physically to get her out. This time she told him, "Don't fucking touch me".

[221] She resisted him when he tried to replace the handcuffs on her. She only relented when Sergeant Repta began to walk towards them. However she refused to get back in the cruiser.

[222] She testified that her behaviour was bad but not nearly as bad as Constable Hughes described. She disagreed with the suggestion that she had in fact behaved this way and that she had done so while impaired by alcohol.

[223] She behaved in a similar fashion however when dealing with police officers at the police station. She testified that she did so because she was upset when they tried to take her mother's engagement ring from her. That may have been the trigger that set her off again but frankly her behaviour was consistent with that at the scene as described by Constable Hughes. It also was consistent with impairment by alcohol.

[224] Ms. Clucas admitted in court that this behaviour was out of character for her but disagreed that it might have been the result of impairment by alcohol.

[225] With respect to other evidence, she initially claimed that Constable Cheeseman had searched her in an inappropriate fashion. She changed her position somewhat after we had all seen the video showing exactly what had happened, but I would describe her acquiescence in this as grudging.

[226] I also note that her faulty memory is also consistent with her being impaired by alcohol that night.

[227] So too is her failure to see either the signs informing her that the room was being monitored by video and audio surveillance or to see the camera itself.

[228] As I stated earlier, Constable Hughes testified that he noted an immediate strong odour of alcohol on the breath of Ms. Clucas. She was visibly upset. She was crying and had red eyes. She was verbally upset speaking loudly with slightly slurred speech. He formed the opinion that her ability to operate a motor vehicle was impaired by alcohol.

[229] Constable Tihor testified that there was an odour of an alcoholic beverage on her breath. Her face was flushed. Her eyes were watery and bloodshot. Her speech was good, not slurred. She was polite and courteous. He thought that the effects of alcohol were obvious and that her ability to operate a motor vehicle was impaired by alcohol.

[230] Both police officers agreed that Ms. Clucas never displayed any problems with her balance either while standing or while walking. With Constable Tihor, she had no trouble following directions or opening the sealed package around her mouthpiece or with inserting the mouthpiece.

[231] I note however that a person's ability to operate a motor vehicle may be impaired by alcohol without that person exhibiting each and every one of the "usual indicia" of impairment.

[232] Taking into account all of the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Clucas' ability to operate a motor vehicle was impaired by alcohol.

CONCLUSION

[233] The Charter applications are dismissed.

[234] Exhibit B, the Certificate of a Qualified Technician, will be entered into evidence as Exhibit 12.

[235] I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Clucas was guilty of the both offences charged. Accordingly, I find her guilty of both.

[236] As per the request of Crown counsel, a conviction will be registered with respect to the impaired driving charge. The over 80 charge will be conditionally stayed.

Released: April 24, 2015

Signed: "Justice D.A. Harris"