Information No. 14-219

ONTARIO COURT OF JUSTICE

Her Majesty the Queen

v.

Paul Bondy

Reasons for Judgment/Sentence

Before the Honourable Justice G.J. Brophy

on May 11, 2015, at Goderich, Ontario

Appearances

T. Donnelly – Counsel for the Crown

A. Fiszauf – Counsel for Paul Bondy

Proceedings

Monday, May 11, 2015

Reasons for Judgment

BROPHY, J. (Orally):

Charge and Background

In this matter, Paul Albert Bondy has been charged with an over 80 offence. It is alleged that on the 18th of March, 2014, he operated a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

This matter was originally called for trial on the 15th of September, 2014. It then continued on the 18th of December, 2014, and then argument took place on the 23rd of March, 2015. Part of the reason for the extension of time in this matter was Mr. Fiszauf's very busy schedule.

Having said that, Mr. Fiszauf, on behalf of Mr. Bondy, brought a Charter Application, essentially a Section 8 issue related to privacy. The matter proceeded on the basis of a blended hearing, and the evidence was received in order. The Charter Application and the other issue in the case were argued at the conclusion.

Issues

The issues in this matter are twofold.

The first issue is a matter that was identified by Mr. Fiszauf as a result of the trial evidence: a concern about whether or not the breath testing was conducted as soon as practicable as that is set out in the legislation.

The second issue is a Section 8 privacy issue related to the videotaping, or video recording, of the cell area with reference to Mr. Bondy—that is to say, his need to use the cell area toilet to relieve himself—and that this was captured on video, with a corollary to that being that a police officer was present as well.

Preliminary Concessions

I think it is fair, and Mr. Fiszauf was very careful about this, to note certain basic concessions made at the outset of the trial. Mr. Fiszauf conceded that there was no issue with reference to reasonable and probable grounds for the arrest, and he had no issues at the outset of the trial with reference to service of documents and the documentation that was employed by the Crown.

Having said that, through the course of the trial, Mr. Fiszauf also raised no challenges, as I recall his submissions, related to the actual taking of the breath samples and the resultant reports that came back saying what the breath test results were. In other words, there was no technical argument related to those matters.

As a last prefatory remark, I would indicate that on the privacy issue, when I was reading the cases, there seems to be two branches to the issue. The first one is whether or not there should be a stay pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms. And then the second issue, of course, is whether or not the evidence should be excluded on the basis of the temporal connection between the privacy issue being raised and the breath tests being conducted—that is, a request to exclude under Section 24(2).

In this case, Mr. Fiszauf quite bravely, I think, said that on the basis of the evidence that had been provided and the scenario that had been set out by the police, the Section 24(1) request for a stay was untenable, and he did not press that issue.

Facts

The facts in this case are as follows, and I do not think they are significantly in dispute.

The event that was in play was, of course, in Goderich on March 18th, 2014. A police officer with the OPP in Huron County at the time, Neil Huber, was on patrol. He was involved in a RIDE program near Britannia Street and Victoria. He noted and saw Mr. Bondy's vehicle at 12:32 a.m. and decided to follow that vehicle because he thought Mr. Bondy—and it is conceded Mr. Bondy was the operator of the motor vehicle, a pick-up truck, heavy duty as I understand it—drove in a manner that suggested that he was trying to avoid the RIDE program. He was in a left turn lane and he turned right onto a right turning lane and went in the opposite direction of the RIDE program.

Be that as it may, Officer Huber decided to follow Mr. Bondy. He went down several streets in Goderich, pulled Mr. Bondy over, and there was a brief discussion. Officer Huber had noted the vehicle driven by Mr. Bondy at one of the bars in town here, Paddy's on The Square, earlier in the evening. He had a conversation with Mr. Bondy. There was some minor admission of alcohol consumption. He smelled alcohol coming from the driver, and as a result, at 12:37 a.m., he made an approved screening device demand, having reasonably believed or suspected that Mr. Bondy had alcohol in his body. That was not challenged, as I have indicated already by Mr. Fiszauf.

There was the appropriate demonstration of the device, and at 12:42 a.m., by my notes, Mr. Bondy had produced a fail. This was after a number of attempts on his part, but ultimately he produced an appropriate sample into the device and produced a fail, which in Officer Huber's understanding meant that according to the approved screening device there was something over 100 milligrams of alcohol in 100 millilitres of blood in the body of Mr. Bondy. As a function of that, Officer Huber then arrested Mr. Bondy for the offence of operating a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood. I think it is at that point that Mr. Fiszauf says, well, that is fine—there is reasonable grounds for that arrest.

That arrest took place at 12:44 a.m., and things proceeded rapidly after that. There was a breath demand at 12:46, rights to counsel at 12:48, and I should note that Mr. Bondy indicated he wanted to speak to a lawyer. At 12:49, there was a caution provided, and then they left the scene in the Town of Goderich and proceeded south to the highway detachment of the Ontario Provincial Police, arriving there in short order at 12:55 a.m.

The Cell Area and Privacy Incident

At that point, Mr. Bondy was taken into the station in the ordinary manner, taken into the booking room, and some very preliminary matters were being dealt with. However, Mr. Bondy indicated that he needed to urinate somewhat urgently, and as a function of that, the officer decided it was necessary then to take Mr. Bondy into a cell. As I understand the facts, at 12:59 a.m., he was placed in cell number one where there was a toilet.

The cell itself is a relatively confined area in the sense that there are four cells in this area—two on one side and two across the hall. The officer's evidence was that Mr. Bondy could not see into cell number two. Mr. Bondy could see across the hall through an open door, if the door was left open, into cell number three, but there was nobody in cell number three. So it was just basically Officer Huber and Mr. Bondy.

As the facts continue, however, what happened is that Mr. Bondy needed to use the toilet to urinate. There is a cell video related to this that was filed as an exhibit in the proceedings, and I have watched that for the purposes of this analysis. It was presented in evidence and commented upon thoroughly by counsel. What then happened was simply that Officer Huber spoke to Mr. Bondy, telling him about the video surveillance. He pointed up and behind Mr. Bondy to show him where the camera was. Mr. Bondy looked over his shoulder, I presume saw the camera, and adjusted his body so his back was to the camera. Officer Huber was standing in the entrance to the cell and Officer Huber very quickly and in short order left the area, but not until after Mr. Bondy had, from what we can tell by his movements, commenced urinating into the toilet.

So the issue related to privacy is twofold. One is the presence of the camera in the first instance, but secondly, it is the presence of Officer Huber as Mr. Bondy began to urinate. As I have indicated, Officer Huber was not intent on staying. He did not stand there and take a long observation of Mr. Bondy as he was urinating. He simply did what he had to do in terms of pointing and identifying the fact that the cell was under video surveillance, and then he went to leave and in fact did leave, but not until after Mr. Bondy, who was operating with some urgency, had commenced urinating.

Rights to Counsel

Subsequent to that, and in the effort to continue to assist Mr. Bondy with his rights to counsel, Officer Huber became involved. From 1:06 a.m. through to 1:18 a.m.—some 12 minutes—efforts were made to locate counsel for Mr. Bondy so he could speak to counsel. Mr. Bondy had indicated he did not wish to speak to duty counsel. The officers then provided him with a list of local lawyers. In that list, Mr. Bondy initially indicated he wished to speak to Mr. McLean, Kim McLean. An attempt was made to call Mr. McLean, which was unsuccessful. Then he asked to speak to a Ms. Amy Robern. That call was placed and was unsuccessful. There was an attempt to call Mary Cull, which was unsuccessful. But ultimately, there was a call placed to Frank Cameron, and Mr. Cameron, in the evidence of Officer Huber, agreed to speak to Mr. Bondy. As a result, at 1:18, Mr. Bondy was able to speak to Mr. Cameron in the privacy booth at the OPP detachment on the highway in Huron County.

Mr. Bondy spoke to Mr. Cameron in that privacy booth and received his legal advice. He was in the privacy booth from 1:18 to 1:26 a.m., a period of time of eight minutes. At 1:26, then, he was out of the privacy booth, briefly back into the cell, and then taken by Officer Huber to Officer Grainger, who was going to be the breath technician. The breath room is, according to a sketch I have received, literally around the corner—in other words, very close. The evidence of Officer Huber is that at 1:29 he was delivered up to Officer Grainger. Officer Grainger's evidence is that it was 1:28, and that is a difference with no meaning.

Privacy Signage and OPP Policy

Before I leave the cell area and so I do not overlook these facts, it is important to move backwards just a little bit and, before I get into the facts related to the "as soon as practicable" argument, to make several comments about the privacy issue.

First of all, Officer Huber's evidence is that there was signage in the detachment which was of some weight. I think there were as many as four, possibly five signs in different areas indicating to any persons that come into the area that video surveillance was going to be happening. That fact is clear in the evidence of Officer Huber and I do not think it is disputed by Mr. Bondy when he gave his evidence.

Having said that, the importance of that is that that is in compliance with the OPP directions that were issued with reference to R. v. Mok, 2014 ONSC 64—a case related to privacy issues. So the signage is important. In addition, Officer Huber complied with the policy directives by the Ontario Provincial Police administration with reference to speaking to Mr. Bondy in the cell, pointing to the camera, and telling Mr. Bondy that video surveillance was taking place, and also verbally telling him that and pointing to the camera.

The final comment on that, and from an evidentiary perspective, is that Officer Huber also indicated that with reference to the video surveillance that is taking place in this detachment, it is generally in compliance with the OPP policy directives. I will speak about that in just a moment with reference to the Sergeant for the OPP who testified, Sergeant Ian Borden. But Officer Huber's evidence is that it was his understanding that the video that was captured in that cell stayed on the hard drive of a computer, was not viewable after the fact, so to speak. In other words, it was a monitoring situation where somebody could monitor what was happening in the cell. The video that was captured stayed on the computer and it was provided to counsel if there was a specific request for it that was given to the police through the Crown's office. In other words, if defence made a request for that disclosure. The point of that is simply that it is not a video which is then disseminated to the public at large. It is not disseminated, handed out, or viewed by other persons in the police station at will. It is something which is only accessed if the Crown requests it.

The important point of the surveillance to comply with OPP policy was to provide for the safety of prisoners, both with reference to medical matters and other issues, and also to record interactions between the prisoners and the police officers to deal with public policy issues concerning possible abuse or other issues related to police officers and prisoners. So the monitoring is the key part in terms of being able to know what is going on in the cell, and that is a function of response by the Ontario Provincial Police to various inquests that have been held. That is what Officer Borden spoke about, and the capture of the video is maintained in house in the sense that it is not viewable after the fact by anybody. The monitoring is there, but the video stays on the computer until somebody requests it. That is an important factor I think in this case.

Sergeant Borden's Evidence on OPP Policy

Sergeant Ian Borden testified and also provided an affidavit. Sergeant Borden is with the Business Management Bureau of the Ontario Provincial Police. He is a staff Sergeant in the policy unit, and he has gone around the Province testifying with reference to the OPP response to, firstly, the inquests with reference to prisoners who have died while in custody, and then secondly, with reference to the Mok privacy issues under Section 8 of the Charter.

I do not need to review Officer Borden's evidence in detail; it is similar evidence that has been called on a number of occasions. Officer Borden has indicated he has testified multiple times related to this issue, and indeed, when you read the cases that counsel then have provided to me, his name is referenced in some of those cases.

But the issue is simply this: sometime ago—and not a long time ago, but back I think starting prior to 2010, indeed I think it was perhaps in 2008 when this began—but in any event, the upshot is this: there were a number of incidents involving prisoners who died in police custody for a number of varied reasons, as one might expect, and there were inquests conducted related to those individuals. The inquests produced recommendations that were made. A key component of the recommendations in every inquest was video surveillance of prisoners so that they could be monitored properly to ensure their safety and also an improvement of that video monitoring capability from time to time. That was referenced by Officer Borden throughout.

In addition, however, the Ontario Provincial Police obviously became aware of the Mok decision, which dealt with issues related to privacy. The Mok decision was a decision in the Ontario Superior Court of Justice, a summary conviction appeal matter, and it was released January 7th of 2014. It dealt with privacy issues, Section 8 breaches, and what the outcome of that should be. In Mok specifically, a 24(1) stay of the proceedings was considered, which, if I understand the case correctly, was not granted given the egregious circumstances of the facts in the case. But that sort of set the wheels in motion in terms of consideration of this issue.

Officer Borden's evidence then dealt with the response the Ontario Provincial Police had to that development. It set out the staged response which moved all the way down to the improved signage which we have spoken about in terms of the Goderich OPP detachment, the directions to officers to definitely point to the presence of a video camera in the cells so the detained person would know it is there, and the verbal notification that surveillance was taking place.

It also went further than that in terms of the OPP developing a policy to deal with the use of shrouding devices—my words, nobody else's words. That is to say, if there is a blanket in the cell that could be used as a screen for somebody if they needed to use the toilet and privacy was going to be an issue for them. So that was in play, and then most recently, if I understand the officer's evidence correctly, there is the attempt—I do not know how fully it has been implemented yet—but there is an attempt to use medical gowns, if I will call them that, but paper products which would be provided to a person who is in a cell which they could use again to screen themselves if necessary for the purpose of using the toilet.

Breath Testing Room

Continuing with the facts, then, it is now necessary to move to the breath room and what was happening in the breath room. Simply put, Officer Huber accompanied Mr. Bondy into the breath testing room, and Officer Kevin Grainger then took over as the breath technician. Officer Grainger's involvement was very pro forma, if I can call it that, in the sense that he was simply using the machinery in the proper manner. The actual mechanical aspect of that machinery was not contested.

With reference to the timeline associated with this, as I have indicated already, Officer Huber delivered Mr. Bondy to Officer Grainger at 1:28, 1:29, and the first test that was conducted and completed was at 1:42 a.m. So there is a 14-minute gap between the time that Mr. Bondy entered the breath room and the first test was completed. The second test was completed at 2:05 a.m.

I should indicate that the test results themselves were as follows: the results on the first test was 120 milligrams of alcohol in 100 millilitres of blood; the second test was 110 milligrams of alcohol in 100 millilitres of blood.

Analysis of "As Soon as Practicable" Issue

With reference to the issue related to "as soon as practicable," the focus is on the fact that the machinery, and Officer Grainger testified to this effect, was ready to be used at 1:22 a.m. Officer Grainger also gave evidence that all of his quality assurance tests were not fully complete until 1:28 a.m. The point of that, then, is that the issue is raised about what happened between 1:22 through to 1:42.

Well, the first factor that has to be noted is that Mr. Bondy was not out of the privacy booth speaking to Mr. Cameron until 1:26, so that reduces the timeline associated with that. So, though the machine might have been ready at 1:22, Mr. Bondy was not ready until 1:26, and then he did not come into the breath room until 1:28. We are talking about very small increments of time here.

The next relevant fact for our purposes is this: when Mr. Bondy came into the breath room, Officer Grainger then conducted appropriate inquiries that in his view were necessary and needed to be dealt with. For example, he indicated he got the grounds for the arrest from Officer Huber, so those grounds and details were necessary. He also made his own breath demand with reference to providing the sample. He then also made inquiries about the rights to counsel to ensure that had been completed, and then he made inquiries with reference to, not made inquiries but rather again provided the appropriate cautions to Mr. Bondy. He then made some inquiries with reference to personal health related to Mr. Bondy—the obvious questions being was he on any medication and matters of that nature—and that was, in Officer Grainger's view, to ensure that there was no physical reason why Mr. Bondy could not do the test. And perhaps not last, perhaps this was happening as all of this was taking place, he was inputting data into the breathalyzer machine. The breathalyzer is one of the machines that requires data to be inputted. This was in fact an Intoxilyzer 8000C, a very sophisticated machine, but the point of that is simply that it requires data to be placed into the record of the machine.

So Officer Grainger's evidence is that he conducted all of those inquiries and fact-seeking questions at the outset when Mr. Bondy first came in at 1:28, and then the first test was implemented and completed at 1:42. Clearly, again, it might have been completed at 1:42, but there was a lead up to that which would have consumed a brief period of time to get that test result.

Officer Grainger's evidence is that then there was the mandated time period between the two tests. The machine, as I understand it, and this is not from evidence I have received in this trial, but the Code says a 15-minute gap. The machine, if I understand the history of these things, mandates a 17-minute gap. Be that as it may, the second test was at 2:05, and that was a 23-minute gap between the first test and the second test. In that period of time, Officer Grainger also made inquiries with Mr. Bondy about how much he had had to drink, where he had been, and matters of that nature. Mr. Bondy properly, in the evidence of Officer Grainger, said effectively no comment, or would not answer those questions. Officer Grainger's evidence is that that was a response by Mr. Bondy that was related to the legal advice he had received. So that all took place, and then the second test was completed at 2:05 a.m. and produced the results that I have described.

A Certificate of a Technician was prepared and it was served, and as I have indicated at the outset, Mr. Fiszauf takes no issue with the service of that certificate, and the certificate was received in evidence.

Washroom Facilities

An additional factor dealing with the issue of the privacy rights, however, that I should comment on because it played a role in Mr. Fiszauf's cross-examination is that Mr. Fiszauf asked about what other washroom or toilet facilities were available in this station. The officers responded simply by saying that there was a public washroom in the public entranceway to the detachment. The evidence was not completely clear on that. My understanding of the evidence, or interpretation of it, was that it was a single room that was effectively unisex and was available to the public. But in any event, it was a closed door—you went in and shut the door behind you and you were private in that room.

The other washroom facility that is available is the staff washroom. I did not get good information about any gender balance related to that, but be that as it may, for males there was a series of urinals available in that staff washroom. The officers indicated that prisoners are not directed to the public washrooms and staff washroom, if I can call it that, and that is for the obvious safety reasons that the officers expressed. They did not elaborate upon those safety reasons, but it is easy to understand that those facilities would be not as secure, not as strong, and that there would be, I think, one of the officers indicated, porcelain toilets that were capable of being broken and matters of that nature.

Demeanour of the Accused

There was a question asked by Mr. Fiszauf of both officers with reference to Mr. Bondy's demeanour. Mr. Bondy was, in the evidence of Officer Huber, cooperative throughout. In the evidence of Officer Grainger, there was a noted resistance or dislike of what was happening when Officer Grainger was dealing with Mr. Bondy at the beginning, but Mr. Bondy quickly settled into a cooperative mode and presented no difficulties.

The point of those questions is that, and the officers I think said this and it is fair, that they had no particularized safety concerns with reference to Mr. Bondy, but there are certainly standard protocols that they have to follow, and they have to be alert. That explained in their minds why the public washroom and the staff washroom was not made available to Mr. Bondy, but rather he was directed to the cell toilet.

Legal Analysis

"As Soon as Practicable" Standard

I will deal firstly with the "as soon as practicable" argument, and I think deal with that in a fairly quick manner.

Mr. Fiszauf used the phrase classicus locus, which I complimented him on when we were referring to R. v. Vanderbruggen, because Vanderbruggen is the case that sets the appropriate bar and standard for assessing the "as soon as practicable" argument.

There is another line of cases that crept into the analysis, particularly as set out in R. v. Blacklock, which was emanating out of R. v. Bugler, [1997] O.J. No. 2283 (C.A.) from 1997. However, the Ontario Court of Appeal very recently, April 17th, 2014, in R. v. Singh, 2014 ONCA 293, reasserted the Vanderbruggen analysis. They effectively said that Vanderbruggen was the case that had to be looked at in these matters. Vanderbruggen is from 2006, and counsel are very familiar with it because it is, as Mr. Fiszauf indicates, a major case on this point.

At the risk of being protracted, I think I will have to quote from paragraphs 12 and 13 of Vanderbruggen as follows:

Paragraph 12 states:

"That leaves the question that is at the heart of this appeal, the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible, the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

Paragraph 13 states:

"In deciding whether the tests were taken as soon as practicable, the trial judge shall look at the whole 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 with reason. In particular, while the Crown is obligated to demonstrate that in all the circumstances, the breath samples were taken within a reasonably prompt time there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody."

Vanderbruggen goes on to make two other comments that I will just touch on. First of all, the timeline in Vanderbruggen was an hour and 15 minutes. In our case here, it was an hour and 21 minutes—that is to say, from the time of arrest to the time the breath samples were provided and the matter was complete. So it is very comparable, I think, in that sense.

The second thing is that Mr. Fiszauf, in his argument, talked about protocols in a sense of what was supposed to be done when. Mr. Fiszauf's principle argument in this regard is that the alcohol influence report, which is effectively what Officer Grainger was preparing, is typically completed in most of its detail between the two tests because there is a gap in time there where this can be done easily.

Having said that, as an example, Mr. Fiszauf would argue that it is not necessary for the officer to take some of this information in advance, thus slowing down the implementation of the first test. But I think that this is, I say this carefully, I think that is a stylistic matter. I have presided in criminal court in a number of different jurisdictions with a number of different police services, and the services vary as to the style in which these matters are conducted.

For example, the most obvious example is that in many jurisdictions the arresting officer does not stay in the breath room. In Huron County, the arresting officer, I think for the most part, at least in the cases I have seen so far, stays in the breath room. I do not think there is anything good or bad about that. It is something that officers adopt as being the appropriate way to go.

In some instances, the breath technician does not reread the breath demand because they assume that upon arrest the breath demand has been made. Other officers, breath technicians, will reread the breath demand because they want to be very careful to make sure there has not been any gap in the information or the protocols have been followed previously. I do not think there is any law that says that that is right or wrong. It is simply a cautionary approach by officers, and that in effect is what Officer Grainger did in this instance.

The third example I will point to, and not really an alcohol influence report matter, but is the question of receiving grounds. Mr. Fiszauf points out that there is nothing in the law that says the breath technician has to receive grounds from the investigating officer, but in my experience, it is extremely common that that happen. Nobody challenges it as a practice, and I point out in paragraph 14 of the Vanderbruggen decision that Justice Rosenberg, in writing that decision, accepted that the conveying the information as to the grounds for the breath demand was an appropriate procedure that was followed by a breath technician.

So all of this, it seems to me, goes back to the question that is at the heart of the "as soon as practicable" argument: were the police officers functioning in a manner that was attentive to the task? Were they reasonable in the way they went about doing their business? Were they reasonably prompt in what they were doing, recognizing that there is a two-hour window to accomplish all of these tasks? And was it under the circumstances rational for them to proceed in the way they did?

I think, looking at Vanderbruggen and as it has been reemphasized by Singh, it is absolutely clear that in this case the efforts by Officer Grainger to provide the appropriate services to Mr. Bondy and to take the appropriate breath test samples was appropriate under the circumstances of the case.

I see nothing improper about what took place. The officers were not devoted to anything else. They were not distracted. There were not multiple tests being prepared. Simply put, they were, and particularly Officer Grainger, trying to ensure that the best possible job was done, and he did that in a reasonably efficient manner. So the "as soon as practicable" argument is not successful.

Privacy Issue Analysis

That then turns to the question of the privacy issue. The privacy issue is quite interesting on a theoretical basis because it is a clash of principles, if I can call it that. There is clearly a policy imperative to ensure that prisoners are safe while in custody, whether this is pre-conviction or post-conviction, or even if they have not been charged with anything yet and it is an investigatory stage. They are under arrest for an offence, but the investigation continues, and the presumption of innocence obviously applies. But be that as it may, there is a legal protocol that is being followed. There are steps being taken, and those steps have to be complied with, which means that an individual is detained and they are in police custody.

While they are in police custody, based upon the evidence of Officer Borden and the history that has been presented, it is absolutely clear that officers need to be careful with reference to the safety of the persons they are dealing with, and they have to ensure that those public policy concerns are addressed. I do not need to go into that in any great detail because Officer Borden's evidence speaks to that. But also, the acceptance of that public policy imperative appears in every one of the cases. None of the judges in any of the cases say this does not matter and it is an abuse to use video. Rather, they say it is a legitimate public policy concern.

Be that as it may, what it clashes with is the privacy rights of an individual while they are in custody. Again, it is important to remember there is a presumption of innocence. The person has a personal dignity that they want to maintain, and that it is acknowledged. The first case, of course, being Mok, it is acknowledged that that is a significant concern. It is a societal concern that everyone has to be aware of, and we have to be conscious of that. And of course, it can take on different aspects depending upon the extent of the way in which the state intrudes on the individual's privacy.

Merely by being videotaped while you are sitting in the cell, I suppose, is an invasion of some privacy interests that the individual might have. But it is understood, and the cases all speak to this as well, that there is a lower expectation of privacy if you are in custody. That seems obvious and does not have to be stated too dramatically.

So there is a lower expectation of privacy, but there remains some privacy interests. The Ontario Provincial Police has tried to address that. But at some point, the two interests clash. There is just no denying that.

Case Law on Privacy Breaches

Having said that, the case law then has gone in several different directions. As I indicated at the outset, and Mr. Fiszauf was very candid about this, the initial response, and it is set out in the Mok decision, is it was a 24(1) issue—that is to say, there should be a stay of the proceedings because the breach of that person's privacy interest was of such a nature that the proceedings should not continue. That was debated at length in a number of cases, and in a couple of cases, there were stays granted. I think most noteworthy of those cases was a decision of Justice Green of the Ontario Court of Justice, R. v. Joseph, [2014] O.J. No. 5091 (Ont. C.J.). That decision was, I am sorry, no, R. v. Arbelo, 2014 ONCJ 275, a decision of Justice Bourque of the Ontario Court of Justice, who entered a stay. The other decisions, for the most part, indicate that the stays were not appropriate, but there could be circumstances where stays were appropriate.

The argument seems to now have changed slightly because of the OPP response and the efforts on the part of the Provincial Police and perhaps other police services to do what can be done to maintain the dignity of an individual and their privacy rights. The issue, then, has begun to turn on the 24(2) analysis and whether or not the evidence should be excluded.

With reference to that and the Mok decision, the other factor that plays into it is the question of whether or not there has been a breach of the Section 8 rights. Mok said there was. Many of the other cases say there were. Most notably for our purposes, I think, is the trial decision of R. v. Griffin, 2012 ONSC 2378, which also said that there was a breach of the privacy interests of the individual. The Griffin decision is perhaps the most thoroughly canvassed decision. It is a decision in the Ontario Court of Justice by Justice Speyer, and after a long and extensive analysis, the decision turned on the basis that there was a breach of the privacy interests of the individual. But when the 24(1) analysis was made, there was no stay granted, and a 24(2) analysis was entered into, and there was no exclusion of the evidence.

That decision, and the reason it is of weight, is that it is post-Mok, but also was appealed. There was a summary conviction appeal, and Justice Dawson of the Superior Court of Justice upheld Justice Speyer. That decision came down February 10th, 2015. And it was upheld on the basis that, yes, there was a breach of the privacy rights. That was not challenged. In fact, obviously, the defence would say that should be in play. The Crown in the appeal decision tried to argue that was not the case, but Justice Dawson simply said that Justice Speyer was entitled to make that decision. But most importantly, the 24(2) analysis of Justice Speyer in the trial decision in Griffin determined that the evidence should not be excluded.

There are many other cases, and since this matter was argued in March, I have noted two other cases that have come through that have spoken to this case. One is R. v. Noel, 2015 ONSC 2140, a decision of Justice Goldstein of the Ontario Superior Court of Justice. It is an appellate decision. I think it is most noteworthy for the fact that it describes this as a non-gender-specific breach. In other words, simply because of gender, there is no significant difference in the privacy interests of the individual involved. That is something that can be discussed in terms of facts related to each individual case, but as a principle, the principle remains the same. Simply because it is a male as opposed to a female, it does not change the basic analysis.

The other decision, which is most hot off the press, is the decision of Justice Harris in the Ontario Court of Justice, R. v. Benjamin Clarke, 2015 ONCJ 228, and that is a decision which goes into a lengthy discussion of all of the issues that I have commented upon already. It is useful in that regard. I should point out that in that decision and in the decision of Justice Pugsley in R. v. Fletcher, 2014 ONCJ 726, a 2014 decision released December 16th, 2014, on the basis of the facts in those two cases, the judges sitting on these matters decided that there was no breach of Section 8 privacy interests.

This is a fine line, and the reason I say that is because if you go all the way back to Mok, the breach in that instance was significant. There was an exposure of the frontal portion of the lower part of the body. There was significant involvement related to the use of the toilet, and it was egregious in that sense that this was being videotaped. Whereas in the Fletcher decision and in the Clarke decision, there was basically a man turning his back on a camera and urinating—you would think—but you obviously have to make that assumption because you are told it happened, but you did not see it happen. That is essentially it.

In our case, we have that set of facts which matches up with Fletcher and Clarke, but in addition to that, in our case, we have the presence of Officer Huber who had not quite left the scene yet when Mr. Bondy felt compelled to commence urinating.

Finding on Section 8 Breach

So, when I look at all of that information, I am confronted with this: the first question is was there a breach of the Section 8 rights. I am not convinced there was, and the reason I say that is firstly because Mr. Bondy, who testified, simply said he felt uncomfortable because he was being videoed. But simply put, I thought that was a very pro forma response on his part. I did not take from his evidence that this was something that he had thought about at the time or that gave him any great trouble after the fact. It was something simply when he sort of was thinking about the case at large that he thought this was not a comfortable situation for him. And I appreciate that, but of course, it is not being comfortable being in jail at all, and I think that cuts into it as well.

The second reason is because there was no intent or malintent by Officer Huber whatsoever, and indeed, he was following the policies that he was directed to follow and did it in a very straightforward manner.

If I recall the evidence of Officer Borden, that policy directive was only made, I think, in or about February 6th, if I have the date in my mind correct. And here on March 18th, Officer Huber is following that policy directive in terms of pointing out the camera and verbally telling Mr. Bondy that he is under video surveillance.

And then when I also note that in the Griffin decision at trial, Justice Speyer made an order banning publication, if you will, of the video so that it could not be disseminated in any event, not that it would be, but nevertheless she made that order. And I note in the Clarke decision by Justice Harris that he comments on that and says that it cuts away the basis for the complaint when there is no request that the video be embargoed and not made available to public.

So those reasons are in the background. But in addition, what I have is Mr. Bondy fully aware of his surroundings, knowing he is being videotaped, consciously and physically—you can see it in the video—turning his back to the camera to shield himself. And I am saying to myself, this is no different in a sense than if he had taken that blanket and had screened himself or had taken that paper gown and had screened himself. Effectively, what he did is he preserved his privacy to the extent that he could preserve his privacy. And I think that that speaks to the effectiveness of the policy of the Ontario Provincial Police and the fact that Mr. Bondy responded to that policy the way one would expect.

That leaves the question of yes, but Officer Huber was still there. Simply based upon the evidence that I have looked at, including the evidence of Mr. Bondy, who, although I did not necessarily accept his profession of concern with reference to what happened, he confirms in his evidence that the officer turned and left very quickly. And what I take from that is that there was a conjunction of the fact that Mr. Bondy needed to relieve himself. It was urgent. Officer Huber was accommodating that and getting him into an area where he could do that very thing—deal with his bodily functions. And after this very brief commentary about the camera being there and you are being videotaped, Officer Huber tried to leave and in fact did leave. And Mr. Bondy, in a sense out of desperation, commenced urinating without allowing Officer Huber to leave the room and shut the door.

It seems to me that the police officer, Officer Huber, cannot be faulted for what he did. He did the best he could under the circumstances, and I think that that is the proper response on his part. And I am of the view that, having been said and looking at all of those facts taken as a whole, that there is no breach of the Section 8 privacy rights.

Section 24(2) Analysis

Having said that, I will very quickly reference the issue related to the Section 24(2) analysis, and I only say that because I want to be clear about this. With reference to the 24(2) analysis, the factors set out in R. v. Grant, 2009 SCC 32 are clear. I firstly have to consider the nature of the police conduct that infringed the Charter. Then I must consider the extent to which the breaches actually undermine the interest protected by the infringed rights. And then thirdly, I need to concern myself with the seriousness of the case, if you will.

Now, I have collapsed those just a little bit, and so that there is no misunderstanding related to that, I reference paragraph 46 of the Griffin decision at the trial level, where Justice Speyer set out in a very careful manner the issue in the Grant decision. Then she went through the various aspects of the case in paragraphs 45 through to 52 with reference to the exclusion of the evidence under Section 24(2). And I adopt that analysis. I think it is completely correct, and it is supported by the decision of Justice Dawson at the Superior Court upholding Justice Speyer.

But to be clear on this: with reference to this case and the seriousness of the Charter-infringing state conduct, if I am wrong in that there was a breach of the Section 8 privacy rights of Mr. Bondy, it seems to me that the Ontario Provincial Police has done everything they possibly can to maintain his privacy and the dignity inherent in that privacy. And that Officer Huber tried to implement that policy in an effective manner. He was there a little longer than he should have been under the circumstances, but he had no intention of staying. He wanted to leave, and in fact, he did leave.

So it seems to me that this, in terms of seriousness, is not at the high end. By that, I mean to say that this is a situation where we have got this clash, as I have indicated at the outset of these reasons, between public policy, which is valuable, and the privacy of an individual, which is immensely important. It is a clash, and it is, to a certain extent, irresolvable. There has to be some give on these points. And what we have here is a situation where the police services have attempted to respond and have not been casual or neglectful in their approach towards this matter.

With reference to the impact of the breach on the Charter-protected interest of the accused, if there is a Charter breach and the privacy rights of Mr. Bondy have been impacted, then I think that is a fair comment. But I do not think they have been impacted in a profound way. By that, I mean to say that Mr. Bondy knew his bigger problem in the moment was the alcohol-related driving. That is really what was at stake here. Mr. Bondy would obviously be well aware of that.

Having said that, yes, he would be discomforted and perhaps embarrassed by the fact that he was having to use the toilet in the cell and there was a video of that protocol being followed. But he was able to shield himself. He was able to deal with it in a way which was not, in my view, intrusive in any significant manner. I just do not think the impact on his Charter-protected interest, albeit it was real, was not of great consequence in the moment.

And lastly, society has an interest in the adjudication of cases on their merits. It was interesting what Justice Dawson said in the Superior Court decision Griffin—that is, that simply having the trial on the merits does not mean someone is going to be convicted, but rather it is an opportunity to examine the case on the basis of the evidence that is available. And the case should be decided on the basis of that evidence. And it is not predetermined that if the evidence, in this case it might be because of the nature of the evidence, there is no response to it. But the point is that the cases are important, and they have to be, or they should be decided on their merits. And in this case, it seems to me all of these three factors, when you look at them, all weigh in favour of admitting the evidence. And I do not think that there is any risk that the truth-seeking function would be improperly served by the admission of the evidence.

In other words, its exclusion would detract from the truth-seeking function of the court process. And I think we should proceed on the basis that the evidence is admissible.

So, having said all of that, I find that even if there had been a Charter breach, the evidence should not be excluded under Section 24(2).

Verdict

So, with all of that having been said and with the issues raised by the defence responded to, the evidence taken at large proves the case beyond a reasonable doubt, and there will be a finding of guilt.

Reasons for Sentence

BROPHY, J. (Orally):

Having said that, it is a minimum situation. Mr. Bondy's entitled to a trial. We have tried to give him the best trial we could. Having said that, I see no reason to increase the penalty. The readings were not on the deemed aggravating level, and there will therefore be a $1,000 fine.

This is post-amendment to the victim fine surcharge, so I am required to impose the $300 victim fine surcharge. I will give Mr. Bondy perhaps nine months to pay that so he can stage that over a lengthy period of time.

And with reference to the driving prohibition order pursuant to Section 259, there will be a driving prohibition prohibiting Mr. Bondy from operating a motor vehicle on any street, road, highway, or other public place in Canada for a period of one year from today's date. I say nothing about the interlock program, and if he qualifies for the interlock program, then so be it.

And that is the decision, Mr. Bondy. I wish you good luck in the future, sir.

Matter Concluded

Certificate of Transcript

I, Lindsay Gionet, certify that this document is a true and accurate transcription of the recording of R. v. Paul Bondy, in the Ontario Court of Justice, held at Goderich, Ontario, on May 11, 2015, taken from Recording Number 1411_CrtRm2_20150511_100000.

Transcript Ordered: May 15, 2015

Transcript Completed: June 15, 2015

Ordering Party Notified: June 15, 2015