Court File and Parties
Court File No.: St. Catharines - 2111-998-12-N1252-00; Halton - 1211-998-15-112-00
Date: 2015-04-24
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Benjamin Clarke
Before: Justice D.A. Harris
Heard on: January 14, 2014, April 16, 2014, August 20, 2014, December 5, 2014, and March 24, 2015
Released: April 24, 2015
Counsel
A. Brown — counsel for the Crown
A. Fazari — counsel for the defendant, Benjamin Clarke
Reasons for Judgment
HARRIS J.:
Introduction
[1] Benjamin Clarke is charged with operating a motor vehicle in the City of Thorold on March 18, 2012 when his blood/alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[2] It is agreed that Mr. Clarke was operating his motor vehicle in Thorold on March 18, 2012.
[3] It is also agreed that he provided two samples of his breath into an Intoxilyzer producing truncated results of 170 milligrams of alcohol in 100 millilitres of blood on both occasions.
[4] The only issues before me are:
whether the charge should be stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms;
whether the results of those breath tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms;
whether the presumption set out in section 258(1)(c)(ii) of the Criminal Code does not apply since the breath tests were not conducted as soon as practicable.
[5] Counsel for Mr. Clarke argued that the police infringed a number of Mr. Clarke's rights including rights guaranteed pursuant to sections 7, 8, 9 and 10(b) of the Charter. These infringements of Mr. Clarke's rights are as follows:
The police did not have reasonable and probable grounds to arrest Mr. Clarke or to make the breath demand, in violation of sections 7, 8 and 9;
The police did not inform Mr. Clarke promptly of the reason for this arrest, in violation of section 10(a);
The police did not obtain the breath samples as soon as practicable, in violation of section 8;
The police did not allow Mr. Clarke to consult with counsel in private, in violation of section 10(b);
The police failed to videotape the breath tests, in violation of sections 7 and 11(d);
The police monitored and recorded Mr. Clarke, including his use of the toilet, by means of video surveillance, in violation of sections 7 and 8.
[6] I will deal with these issues in the same order that they are set out above.
Reasonable and Probable Grounds / Reasons for Arrest
[7] I am addressing these issues together as they are somewhat intermingled.
[8] Sergeant Whitehorne testified as follows.
[9] He had been an officer with the Ontario Provincial Police since 1994. At the time of the incident he held the rank of provincial constable.
[10] He set up a RIDE spot check on the Highway 58 southbound off ramp to Collier Road in Thorold, a high traffic area between the downtown core of St. Catharines and the residential area of Thorold with a large number of persons expected to be partaking in St. Patrick's Day weekend celebrations. He intended to check "the sobriety of every driver that came through the spot check".
[11] He was operating a "marked cruiser" and had its "rear lights activated, flashing intermittent blue and red." Additionally the police cruiser had an amber arrow bar which directs traffic away from the car, and away from the shoulder. Constable Whitehorne was standing outside his cruiser, in uniform, with a flashlight and wearing a lime green florescent traffic safety vest. The vest had reflective striping on it with the word "police" on the front.
[12] As Mr. Clarke's vehicle approached the RIDE spot check, Constable Whitehorne had a flashlight in his left hand and motioned the vehicle to stop. He said to Mr. Clarke that he was conducting a RIDE spot check, checking for drinking and driving and asked "What time was your last drink?"
[13] Constable Whitehorne noticed "a strong odour of an alcoholic beverage" emanating from Mr. Clarke's breath and Mr. Clarke said that he had consumed three beers and the last one was at 12:30 a.m.
[14] Constable Whitehorne formed the suspicion that Mr. Clarke had alcohol in his body and that he was operating a motor vehicle at the time. He asked Mr. Clarke to pull his vehicle to the right shoulder so as not to impede traffic. He then read him the demand for the approved screening device.
[15] Mr. Clarke accompanied him to his cruiser where Mr. Clarke registered an "F" or fail on his fifth attempt to provide a breath sample into an approved screening device. The first four attempts were unsuccessful as Mr. Clarke provided insufficient samples.
[16] "F" means fail. A fail, along with his other observations, provided Constable Whitehorne with reasonable grounds to believe that Mr. Clarke had been operating a motor vehicle with more than 100 milligrams of alcohol in 100 millilitres of blood. He arrested Mr. Clarke for operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.
[17] Mr. Clarke testified and contradicted much of what Constable Whitehorne had said but I did not believe Mr. Clarke. Nor did his evidence leave me with a reasonable doubt as to what had happened.
[18] Mr. Clarke had been drinking that day. He did not remember how much he drank at certain times while remembering what he drank at other times. In any event, he had consumed sufficient alcohol that his blood/alcohol concentration was 170 milligrams of alcohol in 100 millilitres of blood.
[19] Further, as far as I am aware, although he had been stopped previously in RIDE programs, he had never been arrested before and did not have a prior understanding of that process or any idea as to what to expect. He had no reason to concentrate on what exactly was said and done or to remember any of that.
[20] He did not keep any record of what happened.
[21] He had ample motive to recall the events in the fashion that he did.
[22] I accept the evidence of Constable Whitehorne. It was clear that he was recounting what for him were the events of just another day at work. He had no particular animus towards Mr. Clarke and no reason to make anything up. He behaved like an experienced and professional police officer on the stand and I fully accept that he did so at the scene as well.
[23] I am satisfied that the Crown has proven beyond a reasonable doubt that Constable Whitehorne acted lawfully when he stopped Mr. Clarke's vehicle.
[24] He informed Mr. Clarke of the reason for the stop.
[25] The demand for an approved screening device sample was lawful. The approved screening device was functioning properly. The "F" or "fail" result provided Constable Whitehorne with reasonable and probable grounds to arrest Mr. Clarke and to make the Intoxilyzer demand.
[26] Constable Whitehorne clearly informed Mr. Clarke of the reasons for this arrest.
[27] Constable Whitehorne did not infringe any of Mr. Clarke's rights in any way during this stage of the proceedings.
As Soon as Practicable
[28] I was somewhat surprised to see this advanced as an alleged violation of Mr. Clarke's rights. I was and still am unaware of any right to have the breath tests taken as soon as practicable.
[29] I am aware of section 258(1)(c)(ii) of the Criminal Code. The relevant portions of that section are as follows:
- (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 …
[30] A failure to comply with that provision does not infringe upon a person's rights.
[31] A failure to prove beyond a reasonable doubt that the tests were taken as soon as practicable would however act so as to deprive the Crown of the presumption relating the readings back to the time of driving.
[32] In that regard 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.
[33] 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.
[34] In this case, both tests were taken within one hour and 32 minutes of Mr. Clarke being stopped by Constable Whitehorne. There are no unexplained or unjustified delays in the chronology of events. In the circumstances, the tests were taken within a reasonably prompt time.
[35] I am satisfied that the Crown has proven beyond a reasonable doubt that both tests were taken as soon as practicable.
Consultation with Counsel in Private
[36] The law in this area is clear. Everyone has the right to consult counsel and to do so privately. This is guaranteed by section 10(b) of the Charter. A failure to provide privacy is a breach of this right.
[37] Even where privacy has been provided, there may still be a breach of the right where an accused establishes that he believed that he could not retain and instruct counsel in private and further that such a belief was reasonably held in the circumstances.
[38] I must examine the totality of the circumstances in assessing whether there has been a breach based on an absence of privacy.
[39] Constable Whitehorne described the cell area at the Niagara Ontario Provincial Police detachment as follows.
[40] There is a hallway that leads to the cell area and breath room area. These areas are directly across from one another.
[41] There is a phone right inside the door of the breath room. Calls from duty counsel would be answered by Constable Whitehorne on that phone. He would answer any questions from duty counsel and then would transfer the call to the cell area.
[42] At the time of this incident, there was a phone in a lock box on the wall in the cell area. The phone would ring, the handset would be picked up, and it would be handed to the person in the cell, in this case to Mr. Clarke. The cord of the telephone handset was stretched into the cell. The officer handing the phone to him would ask him to give a shout or yell when finished. The officer would tell him to wait and then the officer would leave the area and close the door behind him. This is a large steel door with a small square window in it. The door is closed to provide privacy for the detainee to speak to counsel in private.
[43] Police officers might look through the small window to see if the detainee was still on the phone. It was quite possible that there were police personnel in the hallway outside the cell area but one cannot hear someone talking through the door. If the detainee yells, sometimes one can hear this and sometimes not.
[44] Constable Whitehorne and Constable Sloan, the breath technician, both testified that they were not outside the door and that they did not hear any of Mr. Clarke's telephone conversation. They did not see any other police officer standing outside the door and the door was completely closed.
[45] Mr. Clarke never complained to Constable Whitehorne or to anyone else that he had any privacy concerns about using the telephone in this manner.
[46] This was the telephone arrangement at the police station in March of 2012 and to Constable Whitehorne's knowledge had been the arrangement since he began working in Niagara in 2000.
[47] There is now a new arrangement for telephone calls in the cell area. This involved the conversion of an existing shower/eyewash station in the cell area into a cinderblock telephone booth with a steel door. This door also has a window so the person can be observed from the outside. A light, when turned on also activates a fan to dull any noise that may come through that door, which is a little bit of a thinner door than the big old 1950's one that was on the other. If the phone is hung up or the call is disconnected, the phone in the breath room will ring to show that the call has ended.
[48] Mr. Clarke testified that when the officer handed him the phone, he said he would be in the other room and closed the door most of the way but it was open at least an inch or two. He could hear other police officers talking amongst each other within the office just outside the door. He could not make out the precise conversation.
[49] He never testified that he was not satisfied with the advice that he received from the duty counsel. He never said that he was inhibited in speaking freely with the duty counsel. He in fact said that he had never asked to speak to duty counsel and did not know who duty counsel was. Rather, he wanted to speak to his own lawyer. However, he did not bring any of this to the attention of the police officers. He was just following the process that they were leading him through and did not think anything of it.
[50] I commented earlier on the reliability of Mr. Clarke's evidence. Those comments are equally applicable here. I did not accept his evidence there and I do not accept it here.
[51] I do accept the evidence of Constable Whitehorne that the door was closed and no one could hear through it. Constable Whitehorne was in the breath room and could see across the hall if the door had not been closed. He could hear nothing when Mr. Clarke was on the phone. Constable Sloan testified that he has never been able to hear a conversation of a person in custody.
[52] Mr. Clarke has failed to satisfy me on a balance of probabilities that he was not provided with privacy or that he reasonably believed that he could not speak to counsel in private or that his right to counsel was infringed in any way.
Failure to Video-Record the Taking of the Breath Tests
[53] Counsel for Mr. Clarke has provided me with no authority stating that the police must video-record the breath tests. He has provided me with obiter comments by various jurists suggesting that doing so would be the best practice.
[54] Philosophically, I agree wholeheartedly with that suggestion. I believe that the breath testing process should be video-recorded. I believe that it should be recorded in such a way that one can see clearly what is happening.
[55] Having said that, I too am unaware of any authority stating that the police must do this and I am not prepared to rule that the failure to do so here infringed upon Mr. Clarke's rights.
Video Surveillance of the Holding Cell
[56] There was little if any judicial direction with respect to this issue at the time that Mr. Clarke 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.
[57] Section 8 of the Canadian Charter of Rights and Freedoms guarantees that everyone has the right to be secure against unreasonable search or seizure.
[58] 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.
[59] I have already set out the evidence with regard to the events leading up to Mr. Clarke's arrest and I will not repeat them here.
[60] Constable Whitehorne transported Mr. Clarke to the Ontario Provincial Police station and placed him in a cell there.
[61] A frisk or pat down search was conducted on Mr. Clarke.
[62] Constable Whitehorne testified that the police video-recorded detainees for their safety so they cannot cause harm to themselves. There is no audio recording. Physical checks were done every 15 minutes.
[63] All of this was in accordance with Ontario Provincial Police policy.
[64] Staff Sergeant Ian Borden, Manager of Policy and Procedure, Business Management Bureau, of the Ontario Provincial Police testified to the following.
[65] The Ontario Provincial Police service has 146 detachments across the province with approximately 523 cells.
[66] Use of staff toilets is not an option for any detainees for safety reasons. Cell toilets are made of steel, with no glass or mirrors. Staff toilets are porcelain, with locking doors resulting in possible self-harm or the harming of others.
[67] 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.
[68] As a result, in September of 2010, the Ontario Provincial Police implemented a province-wide, standardized system of video monitoring detainees, using motion activated DVR technology. Cell videos do not include audio. The videos are stored to a hard drive that is password protected with only one to three 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.
[69] Recorded cell video information, if not requested for disclosure purposes, is automatically recorded over after 365 days.
[70] Physical checks of the cells were supposed to occur at a maximum of every 30 minutes, although police are encouraged to do physical checks every 15 minutes.
[71] Constable Whitehorne testified that there were signs in place advising detainees that the cells were being videotaped. Constable Sloan did not think that such signs had been installed by then. Mr. Clarke testified that there were no signs and that no one told him that he was being recorded in any way.
[72] In light of this conflicting evidence, I am proceeding on the basis that there were no such signs.
[73] Constable Whitehorne described the camera as "quite obvious", a "big old security camera that has a steel and plexiglas case around it" located in the upper corner of each cell.
[74] Recording starts automatically as soon as someone enters a cell. Monitoring is not constant and may be done by an officer in another part of the detachment where paperwork is often done. Only police have access to the area where the monitor is located. On the night of the incident there were only four Ontario Provincial Police officers working in the entire Niagara Region, and no civilian staff were working.
[75] Prior to the day of the trial Constable Whitehorne had not seen the cell video concerning Mr. Clarke.
[76] Mr. Clarke admitted in cross examination with respect to the camera being plainly visible in the cell: "Well, yeah, after seeing the footage and seeing the video that's been brought to the case, like, it makes sense it's up in the corner there." He added that he was upset and had his head down and did not see it.
[77] Mr. Clarke can be seen using the toilet on two occasions. He appears to be urinating. I say, appears to be because I could not see any part of the front of his body. He did however look like countless men I have previously seen standing at a urinal in a public washroom, apparently urinating. A portion of his upper buttocks is visible while he does this. No one else was in the cell when Mr. Clarke was using the toilet.
[78] The cell video also disclosed Mr. Clarke drinking water while in the cell. As he bent over to drink, one can again see part of his upper buttocks.
[79] Mr. Clarke testified that when he used the toilet, he "figured it was just like a public bathroom". He was, however, aware that the front of the cell was open to view by anyone standing outside it. This is why he stood at an angle when he urinated in the toilet.
[80] Mr. Clarke agreed that he was wearing loose fitting shorts, that had a zipper. Although his belt had been taken away, he could have held up his pants while urinating.
[81] It did not enter his mind to use the blanket in the cell to cover himself while urinating.
[82] He had no knowledge of the video recording and when he saw the video he felt, "violated, embarrassed and humiliated."
[83] 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.
[84] On February 6, 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.
[85] 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.
[86] 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.
[87] A Quality Assurance Unit is tasked with auditing the detachments across the province. If something is found to be missing or deficient such as signage regarding video-recording, the audit unit would identify and direct that changes be made in order to ensure compliance. Audits are conducted quarterly.
Was There a Breach of Section 8 Rights?
[88] So, was there a breach of Mr. Clarke's section 8 rights in this case?
[89] His counsel argued that Mr. Clarke had an expectation of privacy while in the police holding cell and that the state violated that right when it video-recorded him using the toilet. Counsel relies 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.
[90] Crown counsel argued that there was no breach of Mr. Clarke's much-reduced privacy right here because, while exercising his normal bodily function, there was no exposure of his genitals to anyone's view.
[91] Alternatively, he argued that I should reject both the request for a stay of proceedings under section 24(1) or the request for exclusion of evidence under section 24(2).
[92] 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 infringed Mr. Clarke's rights.
[93] The law is very clear on the purpose of section 8. It is to protect individuals from unjustified state intrusions into their privacy.
[94] 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.
[95] Video surveillance can constitute a search within the meaning of section 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.
[96] Persons detained in police custody have a reduced expectation of privacy.
[97] Following a review of the jurisprudence on this issue, Justice Boswell concluded, in R. v. Mok, that while detainees have a lower 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".
[98] 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 section 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.
[99] On the evidence before me, I am not satisfied that Mr. Clarke had a subjective expectation of privacy that such an expectation would have been objectively reasonable.
[100] He was in police custody. The front of the cell was open to view by anyone standing outside of it. He used the toilet much the way one would use a urinal in a men's washroom. He used it in such a way that his genital area was not visible to anyone watching the video.
[101] He did not make the effort to hold his pants up sufficiently to avoid exposing the top portion of his buttocks. I conclude that he did not make that effort because he was not particularly concerned that someone might see that.
[102] I note that he made no request through his counsel to limit the showing of the video in court or to limit access to it as an exhibit.
[103] I am not satisfied that he felt, "violated, embarrassed and humiliated" by the video. I would fully accept that he could well have felt embarrassed and humiliated by the entire process of being arrested and taken into custody. It certainly would have been objectively reasonable for him to have felt embarrassed and humiliated by that process.
[104] I am also taking into account here the reasonableness of the Ontario Provincial Police practice of videotaping all activity in the holding cells.
[105] This practice was implemented in response to the recommendations following four separate coroner's inquests.
[106] An accurate and complete record of all activity in a police cell is an important safety tool. It preserves evidence of any police or prisoner misconduct. It can deter police officers from abusing prisoners while protecting them against false allegations of brutality.
[107] 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.
[108] I am further satisfied that the Ontario Provincial Police practice of recording all activity in the cells is based on sound and valid public policy principles.
[109] In the specific circumstances of this case, I find that there was no infringement of Mr. Clarke's section 8 rights.
[110] Since, however, the law in this area has not yet been addressed by the Ontario Court of Appeal, I will address the issue of whether the proceedings should be stayed or the evidence excluded just in case I am wrong and there was an infringement of those rights.
Stay of Proceedings / Exclusion of Evidence
[111] Counsel for Mr. Clarke requested a stay of proceedings.
[112] A judicial stay of proceedings is an exceptional remedy reserved for the clearest of cases.
[113] These cases generally fall into two categories:
where state conduct compromises the fairness of an accused's trial (the "main" category); and
where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category).
[114] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
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;
There must be no alternative remedy capable of redressing the prejudice; and
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.
[115] 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.
[116] 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.
[117] 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.
[118] 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.
[119] Secondly, the officers who dealt with Mr. Clarke were respectful of his personal dignity and tried to give him as much privacy as possible. No one observed him directly as he was using the toilet.
[120] The use of the toilet only came to light as a result of disclosure of the DVD. While it is part of the record, only a few select individuals have had access to the DVD or seen its contents.
[121] I note that this issue has arisen only in drinking and 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 Mr. Clarke's privacy rights only occurred as a result of compliance with his right to full disclosure.
[122] Thirdly, at the time of Mr. Clarke's arrest on March 18, 2012, the trial decision in R. v. Mok, had not been released. The summary conviction appeal decision of that case by Justice Boswell was released on January 7, 2014 and is now under appeal to the Ontario Court of Appeal. Other court cases decided after R. v. Mok reveal that the law is far from settled.
[123] Fourthly, based on the evidence of Staff Sergeant Borden, 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.
[124] As stated previously, the practice of videotaping cell activity was implemented as a result of recommendations from four coroner's juries. It is therefore not unreasonable for the Ontario Provincial Police to wait for guidance from the appellate courts before making changes to their practices. This is not a case where a stay is required to ensure that state misconduct does not continue in the future.
[125] 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 Mr. Clarke's 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.
[126] Accordingly, his application for a judicial stay would be dismissed in any event.
Should the Evidence of the Breath Tests Be Excluded Pursuant to Section 24(2)?
[127] Should the evidence of the breath tests be excluded pursuant to section 24(2)?
[128] Counsel for Mr. Clarke argued in the alternative that the breath test results should be excluded from the trial as they were obtained in "a manner" that infringed his 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.
[129] 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 section 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.
[130] 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.
[131] 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.
[132] So I must consider all of the circumstances and assess and balance each of the three factors enumerated above.
[133] 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.
[134] As already stated, the Ontario Provincial Police practice of recording all activity in the cells is based on sound public policy principles. While failing to provide a screen or some other covering to give Mr. Clarke 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.
[135] This favours inclusion of the evidence.
[136] 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 infringement, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
[137] Section 8 aims to protect Mr. Clarke's personal human dignity. An infringement of his privacy is a serious matter. On the other hand, in the circumstances of this case, there was little impact on Mr. Clarke's rights. He knew that he was not in a private room and exposed very little of himself. Indeed, the camera captured only part of his bare buttocks for only a fleeting moment. Mr. Clarke could have prevented that simply by holding his shorts up higher.
[138] As already pointed out, no one observed him directly as he was urinating. His use of the cell toilet was recorded and disclosed as part of the evidence in this case. Accordingly, it was observed by only a few individuals. I regard the impact of the state's misconduct on Mr. Clarke's privacy rights to be negligible. This favours inclusion of the evidence.
[139] As for the third factor, the offence is recognized to be a serious one. 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.
[140] I must also consider the fact that the evidence which counsel for Mr. Clarke 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.
[141] They are also essential to the Crown's proof of the "over 80" charge.
[142] I find then that the truth-seeking function would be better served by the admission of the evidence than by its exclusion.
[143] Following consideration of all of these factors, I am satisfied that the admission of the breath test results would not have brought the administration of justice into disrepute. I would not have excluded the evidence.
Conclusion
[144] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Clarke was guilty of the offence charged. Accordingly, I find him guilty and a conviction will be registered.
Released: April 24, 2015
Signed: "Justice D.A. Harris"
Justice D.A. Harris
Footnotes
[1] R. v. Vanderbruggen, at paras. 12 and 13.
[2] R. v. Cairns, at para. 10.
[3] R. v. Burley, at para. 24.
[4] For a list of related judgments reported since then, see those referred to in Footnotes 5, 9 and 10.
[5] R. v. Griffin, 2014 ONCJ 2029 per Speyer J. affirmed at 2015 ONSC 927 per Dawson J.
[6] An observation made by me while waiting my own turn to use the urinal and not as part of any active research.
[7] R. v. Mok, 2012 ONCJ 291 per West J.
[8] R. v. Mok, 2014 ONSC 64 per Boswell J.
[9] R. v. Griffin; R. v. King, 2012 ONCJ 2574 per Cooper J.; R. v. Chasovskikh, 2013 ONCJ 16 per West J.; R. v. Mok; R. v. Smith, 2014 ONCJ 133 per Reinhardt J.; R. v. Arbelo, 2014 ONCJ 275 per Bourque J.; R. v. Deveau, 2014 ONSC 3034 per Howden J.; R. v. Joseph, 2014 ONCJ 5091 per Green J.; R. v. Orenchuk, 2014 ONCJ 650 per Monahan J. To that list can be added R. v. Shelby Clucas, an unreported decision of Harris J. in the Ontario Court of Justice at Milton on April 24, 2015.
[10] R. v. Fletcher, 2014 ONCJ 726 per Pugsley J.; R. v. Teixeira, 2012 ONCJ 6653 per Zabel J.
[11] Hunter v. Southam Inc..
[12] R. v. Stillman per Cory J. at para. 42.
[13] R. v. Wong per Lamer C.J. at para. 47.
[14] R. v. Edwards per Cory J. at para. 45.
[15] R. v. Beare; R. v. Higgins per LaForest J. at para. 59; R. v. Stillman, at para. 61.
[16] R. v. Mok, at para. 66.
[17] Ibid, para. 72.
[18] Ibid, para. 73.
[19] I understand that R. v. Mok has been appealed to the Ontario Court of Appeal but at the time of argument before me, the appeal had not even been perfected.
[20] R. v. Babos, 2014 SCC 16 per Moldaver J. at para. 31; R. v. Zarinchang, 2010 ONCA 286 at para. 57.
[21] R. v. Babos, at para. 32; R. v. Zarinchang at para. 57.
[22] R. v. Zarinchang at para. 58.
[23] Judgment in that case was released May 3, 2012.
[24] Again, a list of these cases can be found by reference to Footnotes 5, 9 and 10.
[25] R. v. Grant, 2009 SCC 32, at para. 71.
[26] R. v. Bryce, 2009 ONSC 3640 per Hill J. at paras. 64 and 65.