Ontario Court of Justice

Central West Region Brampton, Ontario

Between:

HER MAJESTY THE QUEEN

-and-

NATALIA KORZH (No. 2)

REASONS FOR RULING

Duncan J.

Facts and Charges

[1] The defendant is charged with impaired driving, exceed 80 and breach of recognizance, offence date October 5, 2013.

[2] The defendant has raised a number of Charter issues arising during her time in custody at the police station before and after her testing on the Intoxilizer. It is contended that:

a. The defendant was assaulted by a police officer.

b. The defendant was subjected to an unreasonable search.

c. The defendant's right to counsel was denied.

d. The defendant was subjected to unreasonable video surveillance and recording while held in custody after the breath testing.

[3] I will deal with these arguments chronologically, that is, in the order in which the events giving rise to the issues occurred.

The "Assault"

[4] The video of the booking area shows the defendant to be quite animated, demonstrative and restless, constantly gesticulating, moving or fidgeting. At one point while standing she leaned over as if to pick up something off the floor. One of the three or four police officers present reached out with his hand and made contact with her. She fell to the floor.

[5] It is contended that this incident was an assault by the officer. I don't see it that way. I think it more likely that the officer was reaching to attempt to keep the balance-challenged defendant from falling, though he was not successful. It would make no sense for him to have assaulted the defendant in the circumstances. I am far from satisfied that an assault occurred.

Section 8 – Strip Search

[6] Following arrest and transport to the police station, the female defendant was subjected to a more fulsome search by a female police officer. The search occurred in a small room off the booking area. The door to the room had a small window. The area outside the room was video but not audio monitored.

[7] There was conflict between the defendant and the searching female officer as to the nature of the search that was conducted. In particular the defendant testified that among other things, she was required to remove her blouse and bra. She was asked to lift her breasts. The bra was examined and then returned to her. The female officer, who was pressed into service because she was the only female officer at the Division at the time, said that no clothing was removed in the search. The defendant was patted down above her clothing, including around the breast area. Her hair clips and jewelry were taken. She said that the defendant was hysterical, would not follow directions and at one point fell on her butt.

[8] During the course of the search, a male officer looked through the window into the room on three occasions. While that officer was identified by name, he was not called as a witness. His first time at the window was brief but the second and third times were prolonged – close to a minute each. During much of each time he had his hand on the door handle as if he was about to enter, which he ultimately did, followed by two other male officers. After some time the defendant was lead out in handcuffs (she had not been cuffed when she went in the room). In total the defendant had been in the room for approximately 8 minutes.

[9] The search described by the defendant constituted a strip search: R v Lee. If it occurred, even if authorized by law[1], the manner in which it was carried out - that is, with male observation – would render it unreasonable.[2]

[10] The pivotal question therefore is whether a strip search occurred. Who bears the onus? The Crown bears the onus of showing that a warrantless search was reasonable, but the defendant bears the initial onus of showing that she was subjected to a warrantless search. Does she have to go further and show that she was subjected to a warrantless strip search? I don't think so. It is common ground that the defendant was subjected to a search of some sort without warrant. The Crown bears the burden of showing that the search was carried out in a reasonable manner including that it did not extend into removal of clothing and if it did, and such removal was carried out reasonably, that is, in privacy.

[11] Has the Crown discharged its onus? I think it has – though barely so. If the standard was proof beyond reasonable doubt and the rule in WD was applicable, the finding would be otherwise.[3] But on balance I accept the searching officer's evidence that there was no removal of clothing as being more probable than the defendant's version. While the officer had no notes of the event, she did have a recollection including specifically that the defendant was difficult and would not follow directions. The officer also recalled that it was later brought to her attention that she had neglected to check the defendant's pockets for money. No strip search had been authorized by the officer in charge and there was no reason why the searching officer would take it upon herself to do such a search.

[12] My conclusion is that no strip search occurred.

Right to Counsel

[13] When the defendant was first arrested, she was read her 10(b) rights and asked if she wished to call a lawyer. She answered "No". Despite this response, on arrival at the police Division the arresting officer called the duty counsel number and requested that Russian speaking counsel return the call.[4]

[14] The call to duty counsel was placed at 3:05 am. A Russian speaking lawyer called back and the defendant spoke to him between 3:18 and 3:25 am. At 3:35 the defendant was taken into the breath room. The video recording shows the defendant to be talkative and excited, ranting about the Russian mafia, standing and sitting and generally appearing agitated and restless. She argued with the qualified technician about whether she could have her cell phone back. When asked, she agreed that she had just spoken to a Russian speaking lawyer but said he only told her to call him back tomorrow. She was asked if she had received any advice and she said "no he just said to call him back tomorrow". She did not ask for a further opportunity to speak to the same or any other lawyer.[5]

[15] The arresting officer testified that he did not know whether what the defendant was saying was true or not but in any case felt that he had put her in touch with a Russian speaking lawyer and had fulfilled his obligations. The qualified technician testified that while she said "No" when asked if she understood the lawyer's advice, "she said 'No" to everything". He felt that if a second call was made she wouldn't understand that either and to attempt to connect with another Russian speaking lawyer at 3:30 am would be difficult and serve no purpose.

[16] Does the above described scenario disclose an infringement by the state of the defendant's right to counsel? My first impression was that it does and, in particular that the police should have made further inquiries of the defendant to determine whether she had received proper legal advice. However, on further reflection, I have changed my view and reached a different conclusion. As a practical matter, the police are not well positioned to determine the truth of what they are being told by the detainee about what transpired in the consultation with counsel. Any probing or questioning by the police would almost immediately encroach on privilege. Further even if they acquired further information as to the extent of the advice received, they are ill-suited to make a determination of the suitability or sufficiency of that advice. For example, to change the facts somewhat, suppose that the detainee reported that "all he said was to blow and call him in the morning". Would that advice be sufficient?

[17] In this case, on the basis of the information available to them, the police were entitled to consider the implausibility that a lawyer responding to a call from a detainee in the breath testing scenario would give no advice about that very matter. They were entitled to consider that the consultation lasted 7 minutes and that something other than that claimed by the defendant would obviously have been discussed to fill that period of time. They could consider that the defendant while in custody had shown herself to be frequently if not uniformly unfocussed and distracted. Even if they concluded that the defendant came away from the consultation with no more than that she should call the lawyer in the morning, they were entitled to conclude that the limited comprehension or retention stemmed from the defendant herself and that a further consultation was not likely to assist. I think this is the conclusion that the police did reach and in my view they were not wrong to do so.

[18] The Charter guarantees that a detainee has access to counsel and an opportunity to acquire advice. It cannot guarantee that the advice will be understood, retained or followed.[6]

[19] It should also be noted that there is a body of case law holding that time expended in arranging contact with counsel when it has not been requested by the detainee can result in a finding that breath tests have not been taken as soon as practicable: See cases referred to in Kenkel: Impaired Driving in Canada 2012-13 ed P 233. I am generally unsympathetic to this argument and prefer the view of Fairgrieve J in R v Litwin at least when the time taken is not excessive. But that would not have been the case here. The time required to contact counsel would be significant, if contact was even possible. Were the police obliged to go hunting for a second Russian speaking lawyer at 3:30 in the morning when the defendant had never requested a lawyer at all? I don't think so.

[20] I am not persuaded that the defendant's right to counsel was infringed in the circumstances of this case.

Video Recording of Cells – The Mok Issue

[21] After breath testing, the defendant was held for several hours in police holding cells which were video monitored and recorded. At one point she was recorded changing her tampon which she did standing up beside the "bed", then discarding into the toilet. She was then recorded apparently urinating in the toilet.[7]

[22] The defendant was not specifically told that she would be monitored while in cells. The only relevant signs were ones posted on doors leading from the sally port and from the main public area into the booking office announcing that the "facility" was under video surveillance. Given the limited signage and the defendant's minimal grasp of English even if she had seen one of the signs, I find that she was not aware that she was being monitored and recorded while in cells.

[23] Video surveillance of holding cells is lawful and necessary. It came about decades ago spurred by recommendations by coroner's juries following a number of unmonitored deaths in cells. Peel Region has monitored all cells since at least 1987; recording was instituted at the various divisions in 2009 and 2010.[8] The issue of detainee privacy for private toilet functions does not appear to have been considered by those juries nor in the policies and procedures that were consequently implemented by police and correctional institutions. After years of blanket surveillance, the practice was first questioned in R v Mok, 2012 ONCJ 291, where West J noted (para 79) that the issue did not appear to have been dealt with in any earlier case. After a thorough and careful analysis he concluded that the monitoring and recording of the female detainee using the cell toilet in the circumstances of that case constituted a breach of section 8 and one of sufficient gravity to justify a stay of proceedings. On appeal, the section 8 finding was affirmed, though the stay was set aside: R v Mok, 2014 ONSC 64 (Sup Crt Boswell J).

[24] Since Mok, a number of other decisions from this Court have reached the same conclusion on section 8 – indeed they are pretty much bound by stare decisis to do so. However it should not be thought that the issue is completely settled. Mok itself is presently before the Court of Appeal for Ontario after which lies the potential for further appeal to the Supreme Court of Canada. The ultimate outcome is not a foregone conclusion. It is still arguable that providing any area or type of privacy in holding cells will create some exposure to the dangers and evils that monitoring was designed to prevent in the first place. Further in balancing individual privacy interests against security in a jail, the Supreme Court of Canada has given very little weight to privacy: see Conway v AG Canada, 83 CCC3d 1.

[25] In any event, regardless of where the law eventually takes us, Mok has been accepted as sufficiently authoritative and persuasive that police have adjusted their practices and have taken various steps to provide for some measure of toilet privacy for monitored detainees. OPP detachments provide a sort of paper burqa for privacy while using the toilet. In Peel Region the toilet areas have been blocked from camera view – initially accomplished by simply placing tape over part of the camera lens and later by the more high tech method of electronic shading of the toilet area. These steps were taken within 2 weeks of the Mok appeal decision.[9]

[26] While part of the new procedure requires that detainees entering cells have their attention specifically directed to the presence of cameras and the ongoing monitoring, the detainees in Peel are not informed that the toilet area is an exception and provides some degree of privacy. Possibly the police do not want the detainee to know or think there is an area where he can misbehave, a stance that would be consistent with the otherwise difficult to understand rejection of a simple screen as a privacy solution.[10] Since in this case there was no area of privacy at all, further more refined issues re zones of privacy and knowledge of them don't arise.

[27] The Crown concedes a section 8 breach. I accept that concession. The issue is what remedy should be granted. The defendant seeks a stay or alternatively the exclusion of breath test results. With respect to a stay, the law is conveniently summarized in the Mok appeal decision para 87 – 104. There must be state conduct that seriously undermines the integrity of the administration of justice that cannot be adequately addressed by any other remedy. A stay is to be reserved for the clearest of cases.

[28] In this case there are some aggravating circumstances that might tend to favour a stay. In particular the defendant spent about ½ hour trying first to get the attention of a cells officer, then explaining her need and finally acquiring a tampon. So the police knew that the defendant had to and was about to engage in a very private function that would be monitored and recorded. Would it not have been appropriate to escort her to the washroom for that purpose? Or at least advise or remind her that she was being monitored so she could do what she could to be more guarded and discrete? In other words, the situation called for a little case specific application of respect and decency, quite apart from wider general issues about cell monitoring.

[29] On the other hand there are features going the other way that militate against a stay. The reasons given on appeal in Mok provide strong if not strictly binding authority against the appropriateness of a stay. But counsel submits that there is a distinction here in that Mok was a case of a novel issue being dealt with for the first time whereas the present case arose in October 2013 – over a year after the trial decision in Mok (May 2012). The police had more than ample time to respond to Mok. Failure to do so after having been alerted to the problem renders the breach very serious. But I don't think police are required to immediately adjust their procedures and policies in response to every court decision, regardless of territorial jurisdiction or level of court. This is particularly so when the decision presents a novel prohibition on a longstanding unquestioned practice, and where there is at least something to be said for the opposing view. I think the response here immediately after the appeal decision was released was appropriate and failure to respond to the trial decision does not significantly aggravate the breach in this case.

[30] The incursion on the defendant's privacy was minimal and mitigated. The evidence was that all the live monitor personnel at 21 Division at the time were female. As for the recording, only two people viewed the video – Crown counsel Ms Stackhouse and defence counsel's female assistant. The defendant herself had not been aware that she had been monitored and recorded until the day the issue was presented at trial. Any embarrassment, apprehension or anxiety about a video being "out there" was minimized.

[31] Almost by definition, if there are circumstances both for and against the imposition of a stay, it cannot be the clearest of cases. In any event in my view the balance favours rejection of a stay of proceedings as an appropriate and just remedy in the circumstances of this case.

[32] As for exclusion of evidence, I am unaware of any decision in Charter jurisprudence where exclusion under section 24(2) has resulted from a breach of a Charter right wholly occurring significantly after the evidence in question had been obtained or gathered. The wording of section 24(2) - "evidence was obtained in a manner that infringed or denied" – would seem to foreclose such a possibility. In the present context, exclusion of evidence was granted the case of R v Deveau, but the Charter infringing cell monitoring occurred in that case while the defendant was being held in cells pending breath testing. In related contexts, in R v Flintoff, the defendant was strip searched when brought to the police station for breath testing. The Court of Appeal found a section 8 violation and excluded the breath tests but would not exclude evidence of impairment gathered on arrest and before the offending search took place. Finally, in a case of over-holding of a breath test subject, Durno J. in R v Price, 2010 ONSC 1898 affirmed this Court's decision rejecting exclusion of evidence saying at para 94:

As the Court of Appeal did in Iseler, the trial judge properly considered that the breach occurred after the commission of the offence and the gathering of evidence. It was not related to the offence or evidence gathering. In the circumstances, the over-holding should not result in a stay of proceedings. That was an conclusion open to His Honour.

[33] In my view the treatment of the defendant while in custody is most properly taken into account on sentencing should there be a finding of guilt.

Conclusion

[34] In the result, on the four issues enumerated at the outset of this ruling, I have found no Charter violation in respect of the first three. On the fourth issue a section 8 violation is found but neither a stay of proceedings nor exclusion of evidence is found to be appropriate.

September 11, 2015

B Duncan J

S Stackhouse for the Crown

E Ashurov for the defendant

Footnotes

[1] It was likely that the defendant would be held for a show cause hearing since she was also under arrest for breach of recognizance. A strip search could be conducted in those circumstances: R v Golden, 2001 SCC 83.

[2] If a strip search occurred I don't think it is necessary to find that the male officer actually saw the defendant in a state of undress. The lack of privacy in itself would render the search unreasonable.

[3] The rule in WD has no application on a Charter application where the onus is on a balance of probabilities: R v Ram at para 84.

[4] The officer said that he routinely does this, even if not requested. When duty counsel calls back he presents the phone to the detained person who can then decline again if he wishes. He said that he does this because he wants the person to understand his legal rights when arrested for a serious offence.

[5] The flavour of this exchange can only be appreciated by viewing the video. The defendant appears to me to be rather flippant, dismissive and not particularly interested in the whole business of lawyers and legal advice.

[6] Apart from language considerations. I discussed this issue at somewhat greater length in R v Ayo Campbell April 7 2015.

[7] An agreed statement of fact was presented by counsel providing greater detail with respect to the surrounding circumstances. Such detail does not alter the legalities of the situation so is not reproduced here.

[8] Statement of Staff Sergeant Scott Clair, ex 12 at trial.

[9] Statement of St Sgt Clair, ibid.

[10] Toilet area screens were in the cells in Conway. That case questioned, inter alia, random walk through checks by female corrections officers in a male penitentiary.