Court File and Parties

Court File No.: St. Catharines - 2111-998-14-S1057-00

Date: 2015-06-17

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Matthew Smith

Before: Justice N. Gregson

Heard on: January 13, 2015; February 27, 2015; March 3, 2015; April 14, 2015

Ruling on Voir Dire: June 17, 2015

Counsel:

S. McCartan — counsel for the Crown

R. Jourard — counsel for the accused, Matthew Smith

Ruling on Voir Dire

GREGSON J.:

Overview

[1] Mr. Matthew Smith was charged on March 16, 2014 with drive over 80 milligrams contrary to s. 253(1)(b) of the Criminal Code of Canada. Mr. Smith pled not guilty to this offence and evidence was heard over a three-day period.

[2] It was agreed by counsel the evidence on the voir dire to determine the Charter Applications would be applied to the trial proper.

Charter Applications

[3] Counsel for Mr. Smith brought a Notice of Application and a Supplementary Notice of Application for an order pursuant to ss. 24(1) and 24(2) for a stay of the charges or the exclusion of the breath tests on the basis that Mr. Smith's ss. 8, 9 and 10(b) rights under the Canadian Charter of Rights and Freedoms ("Charter") were breached. The request for a remedy under s. 24(1) was abandoned during written submissions.

Issues to Be Determined

[4] The issues before me are as follows:

1. Was the roadside demand administered forthwith or was there a s. 10(b) Charter breach?

2. Were the rights to counsel provided immediately upon arrest or was there a s. 10(b) Charter breach?

3. Was the breath demand made as soon as practicable or was there a s. 8 and a s. 9 Charter breach?

4. Did the video recording of Mr. Smith urinating in his cell breach his s. 8 Charter rights?

5. Was there an issue of overholding leading to a s. 9 Charter breach?

6. Was there a s. 10(b) Charter breach as a result of the holding off requirement?

7. If any Charter breach exists, should the breath tests be excluded pursuant to s. 24(2) of the Charter?

Summary of Evidence

Constable Ryan Attoe

[5] Officer Attoe has been a police officer since May, 2011. He initially worked in Toronto. He is currently employed with the Niagara Regional Police. He testified that on Sunday, March 16, 2014 he was assigned to One District in St. Catharines, more specifically to a RIDE program set up by the Special Enforcement Unit. They initially performed a RIDE spot check in Niagara Falls and later that evening they performed a RIDE spot check in St. Catharines near the downtown area. According to Officer Attoe there were several police cruisers and a Special Enforcement Unit van carrying some equipment and all vehicles had their lights activated and they had a RIDE spot check sign at the rear of all of the vehicles as well as several flares and cones.

[6] Officer Attoe recalled that at about 1:55 a.m., he was standing on the centre median of the roadway. A 2008 Ford Escape came up to him. The driver who was later identified as Mr. Smith had already put down his window. There were no passengers. Officer Attoe noticed the driver to have wide eyes and he was looking straight ahead although Officer Attoe could not recall if the driver looked straight ahead when he spoke to him. He asked the driver if he had anything to drink and he stated he had one beer. The driver advised him he consumed the beer one hour prior to the stop. As a result, Officer Attoe testified he had a suspicion the driver had alcohol in his bloodstream while operating his motor vehicle. He demanded that Mr. Smith pull his vehicle off to the side behind the police van in the curb lane where he asked for Mr. Smith's driver's licence and requested a roadside breath demand. Officer Attoe could not recall if there were other signs of impairment he would have observed prior to making the roadside breath demand. The roadside breath demand was made at 1:56 a.m. Mr. Smith indicated he understood the demand.

[7] There were a number of roadside screening devices in the police van. Officer Attoe retrieved the Alcotest 7410 GLC. He believed the device to be operating properly and he had checked the calibration date. However, as it was a cold night, it took some time for the device to warm up. The device was ready for the breath test at 2:11 a.m. and Mr. Smith provided a suitable sample which registered a fail or a sample over the legal limit. As a result, Officer Attoe arrested Mr. Smith for driving a motor vehicle with over 80 milligrams of alcohol. He walked Mr. Smith to his police cruiser, handcuffed him, gave him a pat down search and placed him in the rear seat. He then began writing down some details at that time which included the Niagara Regional Police Services Impaired Driving Offence Notes and subsequently read Mr. Smith his rights to counsel, a caution and the breath sample demand.

[8] During cross-examination, Officer Attoe acknowledged, Mr. Smith's face colour appeared normal. Mr. Smith was cooperative and polite. Mr. Smith had also understood the instructions for the approved screening device ("ASD") and provided a suitable sample on the first attempt.

[9] Officer Attoe testified he provided Mr. Smith with his rights to counsel at 2:21 a.m. Mr. Smith understood his rights and wanted to call a lawyer. Officer Attoe immediately read him the caution and at 2:22 a.m. read the breath sample demand. Thereafter, Officer Attoe left the scene 14 minutes later at 2:36 a.m. and transported Mr. Smith to One District in St. Catharines. Officer Attoe explained that during the 14 minutes lapse of time he made arrangements for the towing of Mr. Smith's vehicle; arrangements to have a breath technician at the station; went back to retrieve the serial number from the approved screening device and also filled out some paperwork which was slowed down by the cold. He also asked Mr. Smith some questions.

[10] During cross-examination, Officer Attoe was asked whether he would be permitted to ask questions of an accused to get further evidence in relation to the offence if they have stated they wish to speak to a lawyer. Officer Attoe indicated the following at page 33 of the transcript:

A. My understanding is that once the individual's cautioned regarding any of his statements being used as evidence against him that I'm allowed to continue speaking to him and asking questions.

Q. So, nobody told you that you have to hold off on collecting evidence until they have actually had a chance to speak to a lawyer?

A. I couldn't say whether someone told me that or not, but if they did, if that's the case, then I've forgotten it.

[11] They arrived at the police station at 2:40 a.m. They drove into the garage bay that is adjacent to the cells area. He informed Staff Sergeant Carter and the other civilians working there who he was bringing in and why so they could begin their paperwork. He eventually brought Mr. Smith in to the parade hall to speak to Staff Sergeant Carter. The parade hall has television screens on the wall that show the cells. The Staff Sergeant is usually present in the parade hall and a few cell security officers. Eventually, Officer Attoe and a cell security officer escorted Mr. Smith to his cell.

[12] Officer Attoe indicated there are cameras in the cells area and he believed they were visible to the people being held in the cells. The cameras are domes and have a white circular base with a black almost tinted glass consistent with any security camera that one would see in stores or government buildings. The cameras are located in the parade hall, the hallway and the cells. The only area which would not have a video would be in the telephone area.

[13] Officer Attoe testified the television screens in the parade hall/booking room were about 50 to 60 inches each as he believed there were two of them mounted on the wall across the desk from the Staff Sergeant. Accordingly, when an accused is turned around after speaking to the Staff Sergeant, they would place their hands on the wall to be searched and they would be underneath the large television screens. The screens are divided to show each cell area. Officer Attoe also stated during cross-examination there were further feeds for those cameras inside the Staff Sergeant's office. Only the Staff Sergeant and anyone he permits into his office would be able to see the monitors in the office. Out in the parade area, police, an arrested person, civilian personnel, cell officers and the Staff Sergeant would be able to see the television screens. Officer Attoe indicated these individuals could include females however he did not recall if there were any females in the parade area on the night in question.

[14] Officer Attoe also confirmed he did not tell Mr. Smith the cells were being monitored and videotaped. Officer Attoe noted it did not become common practice until "quite fairly recently".

[15] Officer Attoe indicated there had been a change since March 14, 2014 but could not recall the exact date of the change. He indicated the television screens show the same camera angle but now there are blacked out sections. The blacked out sections are over the toilet area in each cell and this is to provide privacy for people who are under arrest who need to use the bathroom.

[16] Officer Attoe was asked if there were signs up to indicate to an accused person whether they are being recorded. Officer Attoe stated the following:

A. Now there are, I don't recall if there were at the time of this offence, but there has been a change where its, it's very, very purposely indicated to the accused now that they are on camera, they are being audio and video recorded. There's a, very noticeable green light that's on when that recording's happening in that area. It's, it's a very deliberate change in policy that I've notice.

[17] A call was placed to duty counsel at 2:48 a.m. and Mr. Smith spoke to duty counsel David Eisenkrein at or about 2:57 a.m. Thereafter, Officer Attoe provided his grounds for arrest to Officer Choy, the qualified breath technician. Officer Attoe advised Officer Choy Mr. Smith had been stopped at the RIDE spot check and had advised him he had consumed an alcoholic beverage that evening. The ASD demand was read and a suitable sample was provided indicating a fail. There were additional observations which included the fact Mr. Smith's walk was deliberate and very controlled as he walked to the police cruiser. He had also observed Mr. Smith's speech to be slightly slurred and while walking him back to his police cruiser he observed an odour of alcohol on Mr. Smith's breath. These observations had been made after the ASD demand.

[18] During cross-examination, Officer Attoe conceded Mr. Smith was not falling down drunk, he was just slightly impaired.

[19] Officer Attoe then introduced Mr. Smith to Officer Choy at 3:06 a.m. Prior to finishing his shift, Officer Attoe served several documents on Mr. Smith. Officer Attoe advised he provided Mr. Smith the various documents at 4:40 a.m., however, Mr. Smith refused to sign the documents. Officer Attoe believed Mr. Smith was concerned there might be some kind of consequences for signing it.

[20] During cross-examination, Officer Attoe was asked whether he enquired of Mr. Smith if there was a responsible adult that could pick him up. He replied he did not and he was not aware of anyone else asking Mr. Smith.

David Eisenkrein

[21] Mr. Eisenkrein is a member of the Law Society of Upper Canada and was called to the bar in 1993 and practices law in Toronto, Ontario as a sole practitioner. He works part-time as a duty counsel lawyer for the 1-800 duty counsel phone line operated by the Legal Assistance Division of Sykes Assistance Services Corporation and he has been employed by them on a part-time basis since 1993.

[22] Mr. Eisenkrein testified that he was working the entire evening from March 15, 2014 at 7:00 p.m. to March 16, 2014 at 3:00 a.m., fielding calls in his capacity as duty counsel.

[23] Mr. Eisenkrein has no independent recollection of this matter. He testified he received a voicemail message on an impaired call at 2:47 a.m. from a Police Officer Attoe on the internal voicemail system. He returned the call to the Niagara Regional Police shortly before 2:53 a.m. According to his notes, he received some additional information from Officer Attoe. Thereafter, he spoke with Mr. Smith at approximately 2:58 a.m. until 3:05 a.m.

[24] Mr. Eisenkrein stated that although all of his consultations have been with detainees at a police station, some are conducted with individuals at mobile RIDE units from the mobile police unit's private phone facilities, and a few have been conducted with detainees at the roadside sitting in the rear of a police cruiser and speaking on a cell phone with the officer outside of and away from the vehicle to facilitate a private conversation.

Ahmad Batook

[25] Mr. Batook testified he has known Mr. Smith since they attended Brock University in 2011. He was aware Mr. Smith was living with some students in a shared student house on Glendale Avenue in St. Catharines during the time of the offence.

[26] Mr. Batook has no criminal record and recently completed his undergraduate studies. In March, 2014, he was working at Brock University as a teaching assistant.

[27] Mr. Batook stated he was at a restaurant in downtown St. Catharines around midnight when he was contacted by Mr. Smith. Mr. Smith asked him where he was and joined him at the restaurant and had a bite. Mr. Smith advised him he had been out with friends having some drinks. They left and each had their own vehicles. Mr. Batook stated he was not concerned about Mr. Smith as he appeared fine to him.

[28] Mr. Batook stated that while driving he lost track of Mr. Smith. He then called him to make sure he was safe but there was no response. He drove by Mr. Smith's home and then drove back into town towards the restaurant in an attempt to locate his friend. He then saw what appeared to be Mr. Smith's car at the RIDE check stop at Westchester. He did not see Mr. Smith and assumed he got arrested.

[29] Thereafter, Mr. Batook stated he called the police station in St. Catharines. He spoke to a female and advised her he had a friend and he assumed "he got caught" and he wanted to know if he was all right. This officer told Mr. Batook she could not give him any information but he could go down to the police station. Mr. Batook then met a friend downtown and went to the police station. They arrived between 2:45 and 3:00 a.m. He advised the front desk person that he had a friend who he assumed "got caught" downtown and he wanted to know if he was the one, if he was at the station, as he was concerned about him. The front desk person told him that if Mr. Smith was there he was in good hands and he could speak to him the following day. At that point, Mr. Batook left.

[30] Mr. Batook finally heard from Mr. Smith the following day when he called him and advised him he had been arrested.

Constable Ray Choy

[31] Officer Choy has been employed with the Niagara Regional Police since June of 2007.

[32] He testified that he was working the afternoon shift from 6:00 p.m. to 6:00 a.m. ending on March 16, 2014. He was assigned to the Special Enforcement Unit and he was the qualified designated breath technician for the evening.

[33] At 2:33 a.m. on March 16, 2014, he was involved in a RIDE spot check located at the intersection of Westchester Avenue and St. Paul Street in St. Catharines. He was stopping random cars through that area to check on the driver's sobriety.

[34] He was advised that another officer at the RIDE spot check had made an arrest and that he was required to complete the breath test. He proceeded to One District located at 68 Church Street in St. Catharines arriving at 2:36 a.m. He received the grounds for the arrest from Constable Ryan Attoe at 2:53 a.m. He was advised by Officer Attoe that he had stopped a driver and had a conversation with him. The driver noted he had consumed one beer. Officer Attoe read him the ASD demand. The driver claimed to have consumed the beer one hour prior to the stop. The driver provided a sample of his breath into the approved screening device and an "F" was displayed on the first attempt. As a result, he was arrested for "Over 80".

[35] Officer Choy proceeded with the breath tests. There was a video and audio recording of the breath room and the DVD was shown and marked as an exhibit. Officer Choy confirmed Officer Attoe escorted Mr. Smith into the breath room at 3:06 a.m. Although Officer Choy himself had arrived at One District at 2:36 a.m. he had to wait for Mr. Smith to be transported. During this time he also performed the necessary checks of the breath instrument to make sure it was in proper working order.

[36] The first sample was provided at 3:14 a.m. and the second sample was provided at 3:37 a.m. The samples registered at 137 and 135 milligrams in 100 millilitres of blood, respectively.

[37] During the time Mr. Smith was in the breath room, he requested to go to the washroom. Officer Choy escorted him to the washroom located in his cell. He stood outside the cell while Mr. Smith was using the toilet. Mr. Smith was facing the wall as he urinated. It was Officer Choy's belief that no one would have seen Mr. Smith if they had been walking outside past the cell.

[38] Officer Choy testified that at that time, the entire cell area was being videotaped. However, he was uncertain whether there was any signage to advise an accused they were being videotaped in their cell.

[39] Officer Choy made the following observations of Mr. Smith during his interaction with him: eyes appeared bloodshot, face was slightly red and an odour of alcoholic beverage on his breath.

[40] During cross-examination Officer Choy noted he had indicated in the Alcohol Influence Report Mr. Smith's speech was fair and there was no unusual action. Officer Choy confirmed Mr. Smith was polite and cooperative. Mr. Smith also stated he understood the primary and secondary cautions, the breath demand and the information about release procedures.

[41] When Mr. Smith asked when he would be released Officer Choy advised him it would be when he was sober and at the discretion of the officer in charge of the station. He was advised he would be released on a promise to appear. Mr. Smith asked for clarification about that. When Mr. Smith asked at what time he could be released, Officer Choy stated to him that based on his test results of 137 and 135 milligrams he would lose about 15 milligrams of alcohol every hour so he would have to wait for a few hours. Officer Choy agreed Mr. Smith's readings were truncated at 130 milligrams.

[42] Officer Choy testified during cross-examination that he was familiar with the layout of One District. He agreed there was an area where the staff who deal with the public are behind a glass divider. There is a counter which has a divider and behind the staff area there is the sergeant's office. Officer Choy went on to state there were two large screens on the wall and they capture video feeds from cameras throughout the station including the cell area.

Staff Sergeant Tim Carter

[43] Staff Sergeant Tim Carter is employed with the Niagara Regional Police. In March of 2014 he was a uniform patrol Staff Sergeant in St. Catharines, One District.

[44] On Saturday, March 15, 2014 he was working the 5:00 a.m. to 5:00 p.m. shift. He was the officer in charge of the station and responsible for the platoon. He was responsible for receiving and releasing prisoners. Sergeant Carter recalled going down to the cells area on Sunday, March 16, 2014 at 10:30 a.m. and releasing Mr. Smith at 10:35 a.m. on an officer-in-charge undertaking and promise to appear.

[45] Sergeant Carter could not recall why Mr. Smith was specifically released at that time. He could not recall if it was when the file was processed by the charge coordinator. However, he did recall that when he came in on his shift there were 10 people in custody which was a usual amount after a Saturday night.

[46] Sergeant Carter was made aware Mr. Smith was in the cells after being charged with impaired operation of a motor vehicle. Sergeant Carter testified they normally wait to release an accused until they are down to a level where the impairment is not going to be an issue for understanding the release documents or any subsequent problems. However, he had no specific recollection of this case in this regard.

[47] In describing the layout of when a person comes into the booking areas at One District, Sergeant Carter indicated there was a garage where the vehicles drive in. The officers get out. There is a door that opens and leads into the booking area which is a large sort of hall room, with a desk with either one or two security officers there. He would be standing off to the side. Then the officer or officers, depending how many there were, would bring in the prisoner. They would be booked in and from there they are guided to their cell.

[48] Sergeant Carter confirmed there are cameras everywhere. The two cell officers monitor the cell cameras from their desks located in the booking area. There is also a backup set of monitors in his office.

[49] Sergeant Carter explained when the accused is brought into the booking area, there is a desk and the prisoner would come in front of the desk. Behind them on the wall are where the monitors are located for the cell officers.

[50] In regards to the cells, Sergeant Carter explained when you come into the male cell area, there is a hallway running directly in line with the doors. The doors which are sliding steel barred doors with lexan all face the hallway. The cell officers walk up and down the hallways while there are prisoners in the cells.

[51] Each cell is monitored by video for the safety and security of the prisoner and for subsequent investigation in case of an allegation of assault.

[52] Since March, 2014 there have been changes to the videotaping procedure. The IT department has now composed a black mask over the toilet area. Sergeant Carter stated it was installed due to privacy issues which arose from a court decision.

[53] Sergeant Carter indicated he felt prisoners should know they are being videotaped. There is a sign in the booking area which is about 8 x 12 inches. However since March, 2014 they have installed additional signage. An accused could also see a noticeable camera housing in the cell itself.

[54] Sergeant Carter stated that since March, 2014, the entire organization has been changed in that they formed a centralized cell management unit with people dedicated to that unit. They do all of the booking and releases. Therefore there is one group working and focusing on one task rather than on seven or eight things.

[55] During cross-examination Sergeant Carter confirmed if you were standing at the front desk you could position yourself in a way to see the television screen in the Staff Sergeant's office through a glass window.

[56] Sergeant Carter noted Mr. Smith would be held in custody until his blood alcohol level was below 80 at a minimum. Sergeant Carter agreed there was a rough formula of elimination of 15 milligrams per hour however he could not say whether they used 80, 50 or zero as to when a person is released. At the time of Mr. Smith's offence, the police would wait until the blood alcohol level got down to a point where they are confident they are not going to cause any problems and would comprehend their release documents. There is an onus upon the police to ensure a person does not get released too soon and harm themselves or others. Sergeant Carter went on to state they do a rough calculation but he would rely on the cell officers to determine the time of release.

[57] When I asked Sergeant Carter why it was Mr. Smith was only released at 10:30 a.m. rather than an earlier time he responded "Correct, but a lot of it's just all the other things going on; trying to find a spot to – and that's one of the reasons the whole process was changed, so that you have two people looking after one thing. There's actually two Sergeants down in the cells who look after making sure they get booked in and booked out and that's all they have to deal with."

Matthew Smith

[58] Mr. Smith testified he is 23 years old. He is currently working on his MBA at Brock University at the Goodman School of Business. He completed his undergraduate studies at Brock University although his family is from Stouffville, Ontario.

[59] Mr. Smith will be looking for employment in the Marketing field. He has no criminal record.

[60] On March 16, 2014, he was stopped at a RIDE spot check. He had a working cell phone with him at the time. Mr. Smith testified that had Officer Attoe told him he could speak to a lawyer while waiting for the roadside screening device to warm up he would have called one prior to taking the roadside test. He demonstrated for the court how he would have used Google for 24/7 drinking and driving lawyers and how he could have easily spoken to a lawyer at 1:55 a.m. to obtain legal advice.

[61] Mr. Smith noted in his Affidavit sworn June 9, 2014 which formed part of the evidence that after he was arrested, Officer Attoe handcuffed him and had him sit in the back of his police cruiser. He left stating "I'll be right back, just hang tight" and went to speak to another officer.

[62] Mr. Smith was asked why he spoke to duty counsel once he was at the police station rather than a private lawyer. Mr. Smith responded that once he was brought into the police station whoever at the desk stated "I hear you'd like to speak to duty counsel". He said "yes" as he felt it was implied and the only option he had. No one had asked him whether he would like to call a lawyer at that point; they simply said, "I understand you'd like to speak to duty counsel." Since he had his cellular telephone he could have quickly retrieved the name and number of a lawyer who dealt with impaired driving cases.

[63] Mr. Smith was shown part of the DVD from the booking process and was asked about the sign on the door as he entered the booking area. The sign stated "this area is video and audio recorded". The sign is about waist height.

[64] The video also showed Mr. Smith was directed to place his hands over his head on a wall in the booking area to be searched. The television screens which are on the wall could not be seen as they were above Mr. Smith's head. Mr. Smith indicated he did not see the monitors. Mr. Smith wears glasses and his glasses had been taken from him when he was being booked in. They were returned to him when he went to speak with duty counsel. He again provided his glasses back to the cell officer at about 3:41 a.m. Mr. Smith explained during his cross-examination that he is not legally blind but it is very difficult for him to see without his glasses.

[65] Mr. Smith testified that he was concerned about the fact he was urinating in his cell and police could walk by in the corridor outside of his cell. As a result, rather than sitting down to urinate, he stood up. There was no seat on the toilet. He had his back towards the cell door in an attempt to cover his private areas.

[66] Mr. Smith indicated he attempted to sleep however there were other prisoners who were yelling and hollering. He was wearing jeans, socks and undergarments. He had to use his long-sleeved shirt as a pillow therefore he was cold.

[67] Mr. Smith testified that while he was in the fingerprinting room he was asked if there was somebody who could pick him up and he advised them of Ahmad Batook. Mr. Smith advised he had Mr. Batook's phone number in his phone. There was no follow up to access his telephone.

[68] According to Mr. Smith's Affidavit sworn June 9, 2014, he asked police after the breath tests were completed when he would be released. He was told "It's going to be a while" as they had to wait for his "levels to go down". He was also asked for an emergency contact person. He provided them with Ahmad Batook's name and told them he had his number.

[69] During cross-examination Mr. Smith indicated it was only when he was retrieving his belongings and putting on his glasses at 10:30 a.m. that he noticed the television monitors on the wall of the booking room.

Agreed Statement of Facts

[70] Counsel tendered an Agreed Statement of Facts which outlined specific details regarding Mr. Smith's urinating in his cell rather than playing the DVD recording in open court. The DVD recording was also tendered as an exhibit.

[71] From 2:46:37 a.m. to 2:47:09 a.m. prior to the breath tests, Mr. Smith is observed opening his pants. He removes his penis and holds it while he urinates. From 2:49:32 a.m. to 2:50:53 a.m. he induces himself to vomit in the sink and then attempts to scoop it out into the toilet.

[72] After the first breath test, Mr. Smith is observed urinating from 3:16:07 a.m. to 3:16:30 a.m. Mr. Smith is observed opening his pants, removing his penis and holding it while he urinates.

[73] After the second breath test, Mr. Smith is seen urinating from 3:42:17 a.m. to 3:42:50 a.m. and again at 4:22:26 to 4:23:08. Mr. Smith's penis is clearly visible. At one point he is picking his nose with both of his hands while his penis is hanging out.

[74] He urinated again from 8:06:39 a.m. to 8:08 a.m. and again from 10:06:02 a.m. to 10:07 a.m. During this last occasion Mr. Smith was examining his wrists for marks left by the handcuffs while he urinated and his penis was dangling.

[75] The video of Mr. Smith's toilet was unobscured. His penis was clearly visible on each and every occasion that he urinated.

Analysis

1. Was there a warrantless search? Was the ASD demand made forthwith?

[76] It was alleged by Defence counsel police seized samples of Mr. Smith's breath without a warrant and such a warrantless search is prima facie unreasonable.

[77] The Crown responded there was no Charter breach as the officer had a reasonable suspicion Mr. Smith was operating a motor vehicle with alcohol in his body within the three preceding hours. The officer stopped the vehicle on the basis of a RIDE program and pursuant to s. 216(1) of the Highway Traffic Act. The arresting officer detected a strong odour of alcohol on Mr. Smith's breath which gave him reasonable and probable grounds to ask Mr. Smith if he had been consuming alcohol that night. Mr. Smith admitted he had. Mr. Smith's failure of the ASD test confirmed to Officer Attoe his suspicion and he formed the requisite reasonable and probable grounds on both a subjective and objective basis to arrest Mr. Smith and demand a sample of his breath.

[78] I concur with the Crown that Officer Attoe had a suspicion to believe Mr. Smith had alcohol in his body and could proceed with a roadside breath screening demand. Once Mr. Smith produced a fail reading of his breath analysis, Officer Attoe appropriately formed the reasonable and probable grounds to arrest Mr. Smith for driving with over 80 milligrams of alcohol.

[79] Defence counsel alleged that the roadside screening device test was not conducted "forthwith" as Mr. Smith who was stopped at the RIDE check point had a realistic opportunity to consult counsel before its administration. Mr. Smith was stopped at 1:56 a.m. and the roadside test was administered 15 minutes later at 2:11 a.m., at which time Mr. Smith failed the test and was arrested.

[80] The Crown submitted Mr. Smith's s. 10(b) Charter rights were not violated. A person subject to an ASD demand does not have the right to counsel as the officer had the grounds to make an ASD demand. The determination of whether the ASD test has been administered "forthwith" requires a consideration of all relevant circumstances including whether a detainee had a realistic opportunity to contact, seek and receive advice from counsel at roadside considering it was also Sunday at 1:55 a.m.

[81] The Crown also submitted that the ASD demand was made at 1:56 a.m. and the test was administered at 2:11 a.m. which resulted in a fail reading. The calculation of time between the initial demand and the administration of the test should exclude the time spent on preparation, explanation and demonstration of the use of the instrument. Accordingly Officer Attoe did comply with the forthwith requirement mandated by s. 254(2)(b) of the Criminal Code. The Crown argued Mr. Smith's s. 10(b) Charter rights were not breached.

[82] Defence counsel argued Mr. Smith had a cell phone on his person and could have spoken to a lawyer from the RIDE check stop if given the opportunity.

[83] Defence counsel submitted the roadside screening device test was not conducted "forthwith" as Mr. Smith had a realistic opportunity to contact, receive and seek advice (as per R. v. Torsney, 2007 ONCA 67) from duty counsel before the administration of the ASD, taking into account the time required to prepare, explain and demonstrate the instrument's use. Accordingly there was a breach of Mr. Smith's s. 10(b) Charter rights.

[84] Defence counsel relied on R. v. George, wherein breath readings were excluded where 18 minutes passed from the time of the roadside demand to the taking of the screening device sample. He also relied on R. v. Caruso, [2011] O.J. No. 2030 (C.J.) where the court held there was a s. 10(b) breach of Charter rights as the accused could have consulted counsel during a 13 to 14 minute period from the time the ASD demand was made and the actual test.

[85] In my view, the delay between the issuance of a roadside breath demand and the production of the breath sample is a question of fact and circumstances. Officer Attoe provided a sufficient explanation as to the delay. It was a cold night and although he had not previously experienced difficulties with the ASD warming up, it did in fact take some time for the device to warm up and become operational. The 15 minute lapse of time was a combination of waiting for the device to warm up, providing instructions to Mr. Smith and conducting the roadside screening test.

[86] Despite some lapse of time, I believe the requirement of conducting the roadside breath test "forthwith" has been met and there was no breach of Mr. Smith's s. 10(b) Charter rights.

2. Rights to Counsel

[87] After Mr. Smith was arrested for "Over 80" at 2:11 a.m., he was handcuffed, placed in the rear of the police cruiser and was told to "hang tight" while the arresting officer went to speak to another officer. Mr. Smith was given both his rights to counsel and caution 10 minutes later at 2:21 a.m.

[88] Pursuant to R. v. Suberu, 2009 SCC 33 rights to counsel were not provided immediately upon arrest and Defence counsel argued this was a breach of Mr. Smith's s. 10(b) Charter rights.

[89] There was no explanation provided by Officer Attoe as to why he waited 10 minutes to provide Mr. Smith with his rights to counsel. The fact that he had to converse with another officer and may have had to write particular details about the arrest does not provide a reasonable justification for not providing rights to counsel immediately upon arrest.

[90] In my view, Mr. Smith's s. 10(b) Charter rights were breached as a result.

3. Breath Demand

[91] At 2:22 a.m. Officer Attoe made the breath demand. Defence counsel argued the demand was not made "as soon as practicable" as per s. 254(3) of the Criminal Code and was therefore unlawful and breached Mr. Smith's ss. 8 and 9 Charter rights.

[92] Pursuant to s. 254(3) of the Criminal Code, a breath demand must be made as soon as practicable after the officer forms the belief on reasonable grounds that the person is committing, or at any time within the preceding three hours has committed, an offence under s. 253 as a result of the consumption of alcohol. The words "as soon as practicable" has been interpreted to mean "within a reasonable prompt time" and not "as soon as possible". The determination must be made on a case-specific basis. The test is whether the police provided a "suitable explanation" for the delay. See R. v. Dhaliwal, [2005] O.J. No. 1129 (S.C.), paras. 15-17.

[93] The delay for rights to counsel was 10 minutes in this matter and the breath demand was 11 minutes. Defence counsel relied on several recent cases which led to the exclusion of the breath test results with similar time line delays. For example, see R. v. Hawkins, [2013] O.J. No. 1103 (C.J.).

[94] I agree with Defence counsel. There was no suitable and/or reasonable explanation provided by Officer Attoe as to why he waited 11 minutes to make the breath demand to Mr. Smith as he sat handcuffed in the back of the police cruiser after being arrested. In my view the breath demand was not made "as soon as practicable" and does not comply with s. 254(3) of the Criminal Code.

[95] There was a breach of Mr. Smith's ss. 8 and 9 Charter rights.

4. Video Recording and Monitoring

[96] Police brought Mr. Smith to the police station arriving at 2:40 a.m. He was subject to a pat-down search. A sign at the entrance to the booking area stated the area was video and audio recorded. It should be noted however that the signage on the door was quite small. Moreover, the DVD recording in the booking area showed that Mr. Smith walked past the sign without noticing it as the door was open when he walked through the entryway.

[97] According to the duty counsel report, police left a phone message for duty counsel at 2:47 a.m. Duty counsel returned the call at 2:53 a.m. and spoke to Mr. Smith from 2:58 a.m. to 3:05 a.m. It took 13 minutes to get duty counsel on the telephone to have Mr. Smith obtain legal advice. In the event Defence counsel felt this was a Charter breach, I believe the steps taken to secure duty counsel for Mr. Smith were reasonable. There was no mention of a Charter breach for Mr. Smith having to speak with duty counsel rather than counsel of choice despite the fact Mr. Smith felt it was implied that he should simply speak to duty counsel.

[98] Mr. Smith was lodged in a cell pending breath tests and the exercise of his rights to counsel.

[99] At 2:46 a.m. before the first intoxilyzer test, Mr. Smith urinated in the cell toilet. He opened his pants, removed his penis and held it while urinating. At 2:49 a.m. he induced himself to vomit into the sink in a misguided attempt to eliminate alcohol from his body.

[100] Mr. Smith was unaware he was being videotaped in his cell. He was shocked to learn his toilet use was recorded.

[101] The Crown submitted Mr. Smith's privacy rights were not breached. In the event the court found a breach, the breach would not warrant a stay of proceedings and would not warrant the exclusion of evidence as the breach would be deemed minimal.

[102] Defence counsel argued, the video recording of Mr. Smith was a breach of his s. 8 Charter rights. He relied on R. v. Deveau, [2013] O.J. No. 5424 (C.J.), affirmed [2014] O.J. No. 3034 (S.C.) at paras. 60-61, wherein it was noted the applicant was at the "extreme low end of the spectrum of risk" and could reasonably have been offered privacy for his use of the toilet. In the case at bar, Mr. Smith was only slightly impaired, was cooperative, polite and had no criminal record. He was not a safety risk.

[103] It was noted by Defence counsel in R. v. Chasovskikh, [2013] O.J. No. 16 (C.J.), at para. 113 that the "practice of monitoring and video-taping detainees using a toilet, either in a breath room or in a holding cell, which exposes the detainee's private areas of their body, is analogous to police officers strip searching a detainee without proper grounds".

[104] I am aware of several cases in which the court found there was no Charter breach when an accused was video recorded using the toilet. All of these cases involved male detainees who were standing with their backs to the camera while they used the toilet. See R. v. Fletcher, 2014 ONCJ 726, [2014] O.J. No. 6366 (C.J.) per Pugsley J.; R. v. Teixeira, [2012] O.J. No. 6653 (C.J.) per Zabel J.; R. v. Clarke, 2015 ONCJ 228, a decision of Harris J. of the Ontario Court of Justice at Milton, delivered April 24, 2015.

[105] The law is very clear the purpose of s. 8 is to protect individuals from unjustified state intrusions into their privacy.

[106] As noted by Justice D.A. Harris in R. v. Clucas, 2015 ONCJ 227, decided on April 24, 2015, the protection of personal privacy is of the highest concern. As Justice Cory stated in R. v. Stillman, [1997] S.C.J. No. 34 (S.C.C.) at para. 42:

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 his home.

[107] In R. v. Clucas, supra, Justice D.A. Harris had difficulties with Ms. Clucas' credibility. Moreover, it was noted by Justice Harris that Ms. Clucas' right outer thigh and hip were exposed while she urinated. When she stood up, she turned so that her bare buttocks were exposed for a very brief moment. Her private area was never visible. The entirety of the video lasted 56 seconds. When Ms. Clucas used the toilet for the second time, she did not turn so as to expose her buttocks to the camera and the entire process lasted 33 seconds. Ms. Clucas testified that, in the interim, Constable Tihor had informed her of the presence of the video camera and about 30 seconds later Ms. Clucas faced the camera and waved to get the attention of a police officer.

[108] Justice Harris notes the following at paras. 106 to 108 of his decision:

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

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

Justice West of the Ontario Court of Justice released his decision in R. v. Mok 2012 ONCJ 291, [2012] O.J. No. 2117 (Ont. C.J.) on May 3, 2012. The summary conviction appeal ruling by Justice Boswell in R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44 (Ont. S.C.J.) was released on January 7, 2014. Since then, the Ontario Provincial Police have changed their policy and practice by which they video monitor detainees.

[109] Justice Harris noted at para. 145 of his decision that although he found Ms. Clucas' expectation of privacy while in custody was greatly reduced, she nonetheless had the right to a modicum of privacy while using the toilet and she should have been given a blanket or something else to cover herself. As such, the police infringed her rights.

[110] Despite the s. 8 Charter breach of Ms. Clucas' rights, Justice Harris felt the evidence of the breath tests should not be excluded in the circumstances of that case.

[111] In the particular circumstances of this case I note the following facts which should be considered:

1. Mr. Smith did not see the signage on the door that he would be video recorded;

2. No person or officer directed Mr. Smith's attention to it;

3. Mr. Smith did not have his glasses on and has reduced vision;

4. The large screen monitors in the booking room were well above his head. Mr. Smith would have faced the monitors when he had a pat down search but for a brief moment and he did not have his glasses on;

5. The fact Mr. Smith induced himself to vomit and scooped the vomit out of the sink into the toilet gives credence to the fact he was unaware he was being videotaped;

6. Mr. Smith would be deemed as low risk.

7. Mr. Smith urinated six times. It was not of brief duration and his penis was visible while he urinated each time.

[112] Although detainees have a lowered expectation of privacy while in custody, they are permitted a minimal level of privacy. Mr. Smith should have been explicitly told about the video recording when he was placed into his cell or when he was about to urinate. He could have been provided with a blanket to ensure his ongoing privacy.

[113] In my view Mr. Smith's s. 8 Charter rights have been breached.

5. Overholding

[114] Defence counsel argued a breach of Mr. Smith's s. 9 Charter rights was caused by overholding. Police did not make any inquiries into whether someone could come get Mr. Smith from the station. He was not released until 10:35 a.m. Applying an average elimination rate of 15 milligrams per cent per hour, his blood alcohol concentration would have dropped below 80 within 3.7 hours from his last breath test which was at 3:37 a.m. A close friend was available to pick up Mr. Smith.

[115] The Crown submitted in response there was no breach of Mr. Smith's s. 9 Charter rights. Police have an obligation to hold a person impaired by alcohol in their custody until they are satisfied that the person is sufficiently sober that when they are released, they will not pose a danger to the community or themselves.

[116] I am inclined to agree with the Crown. Although I agree it would have been preferable for Sergeant Carter to release Mr. Smith by 7:30 a.m. rather than 10:30 a.m. in the custody of Mr. Smith's friend, the fact that Mr. Smith spent a further three hours in custody as a result of all that was transpiring at the police station in my view was not a breach of Mr. Smith's s. 9 Charter rights.

6. Holding-off Requirement

[117] There was evidence, Officer Attoe questioned Mr. Smith at the roadside regarding the offence immediately after he indicated he wished to speak to counsel and prior to being given the opportunity to do so. As a result, Defence counsel argued Officer Attoe's actions breached Mr. Smith's s. 10(b) Charter rights.

[118] Defence counsel argued that police must refrain from eliciting incriminatory evidence from a detainee until he has had a reasonable opportunity to reach counsel as noted in R. v. Prosper.

[119] It was Officer Attoe's evidence that he felt he could elicit information and question Mr. Smith as he had cautioned him.

[120] At page 31 of the court transcript Officer Attoe indicated he asked a series of questions of Mr. Smith at 2:23 a.m. including whether he had been drinking, in what quantities; when did he start drinking; when was his last drink, where was he going; what time did he leave; did he feel impaired; on a scale of one to ten, what did he feel his level of impairment to be.

[121] I agree with Defence counsel there is a breach of Mr. Smith's s. 10(b) rights. This issue was raised in R. v. Manninen, [1987] 1 S.C.R. 1233 (S.C.C.). Justice Lamer, writing for the majority stated the following at para. 23:

Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not [page1243] more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.

[122] Justice Lamer goes on to state that he discussed the duty imposed on the police in the context of a breathalyzer demand in R. v. Therens, [1985] 1 S.C.R. 613, at p. 624 and noted:

… s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.

[123] Mr. Smith made it clear he wished to speak to counsel. Officer Attoe was under the mistaken assumption that as long as he had cautioned Mr. Smith he could continue to ask questions for his investigation.

7. Charter Remedy - Exclusion of Evidence

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

[125] To make this determination, I must apply the test set out in R. v. Grant, 2009 SCC 32 at para. 71 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.

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

[127] In my view the impugned evidence was obtained in a manner that infringed Mr. Smith's ss. 8, 9 and 10(b) Charter rights. While no causal link exists, a temporal connection between the Charter breach and the collection of the evidence generally suffices (see R. v. Deveau, [2014] O.J. No. 3034 (S.C.), paras. 13-21; R. v. Mian, 2014 SCC 54, para. 83).

Factor 1 – The Seriousness of the Charter-infringing State Conduct

[128] The breaches in my view are serious.

[129] In regards to the video recording and monitoring of an accused's use of the toilet, the Niagara Regional Police has now taken remedial steps as of May, 2012 when the privacy issue was raised in R. v. Mok, 2012 ONCJ 291, [2012] O.J. No. 2117 (C.J.), a case involving York Regional Police and R. v. King, [2012] O.J. No. 2574 (C.J.), a case involving the Ontario Provincial Police.

[130] However, at the time of Mr. Smith's offence, no action was taken on the part of any officer to advise Mr. Smith he was being video recorded. He was entitled to some level of privacy when he used the toilet facilities in his cell.

[131] Considering the delay in providing Mr. Smith with his rights to counsel and breath demand as well as eliciting information from him prior to permitting him to speak to counsel these breaches add to the seriousness of the Charter-infringing police conduct and overwhelmingly supports exclusion of the breath tests.

Factor 2 - The Impact on Mr. Smith's Charter-protected Interests

[132] In my view the breach had a significant impact on Mr. Smith. As noted by the trial judge in R. v. Deveau, supra at para. 71: "An invasion of privacy which compromises human dignity is a significant matter. In this case, a permanent or semi-permanent record obtained by the state of a highly private act is not a fleeting or unimportant incursion into those things the citizen would wish to keep to him or herself. I regard impact as high and favouring exclusion."

[133] In R. v. Arbelo, 2014 ONCJ 275, [2014] O.J. No. 2765 (C.J.), where no remedy was granted for the breach of s. 8 stemming from videotaping the accused's toilet use before his tests were completed, the video was from "the side and back" and his genitals were not visible. By contrast, Mr. Smith is seen removing his penis and holding it while urinating, not just once, but six times, including twice prior to the breath tests being completed.

[134] In R. v. Griffin, [2014] O.J. No. 2029 (C.J.), the court held that the accused had a reduced expectation of privacy because she was aware of the camera in the cell. The camera captured only her "bare buttock" for but a fleeting moment. This is in sharp contrast to the case at bar.

[135] Considering there were four separate Charter breaches, this factor also strongly favours exclusion of the breath tests.

Factor 3 - Society's Interest in an Adjudication on the Merits

[136] In regards to the third factor of the Grant analysis, the intoxilyzer results are presumptively reliable evidence that is essential to the Crown's proof of this charge. Since drinking and driving offences are a serious threat to public safety, society has an interest in seeing such charges adjudicated on their merits.

[137] However, I agree Grant specifically recognizes another aspect of societal interest which is systemic concerns. As such, s. 24(2) focuses on the broad impact of admission of the evidence on the long-term repute of the justice system. Although the seriousness of the charge remains a valid consideration, it "must not take on disproportionate significance" (R. v. Grant, supra, paras. 70, 84).

[138] As indicated by Defence counsel, in R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44 (S.C.) one of the factors that led the summary conviction appeal court judge to vacate the stay imposed at trial for the s. 8 breach was the serious nature of the accused's offence as she was driving on the wrong side of the road with a blood alcohol concentration close to 300 milligrams. In Mok, the accused used the toilet twice, including once before the breath test and once after the tests. By contrast, the allegations in this case are not nearly as serious as there was no evidence of bad driving and no impaired driving charge was laid.

[139] I agree with the Crown that the recording and the monitoring of detainees is rooted in public policy and stem in particular from the death of accused individuals while in the protective custody of police. Obviously, over the years, courts have sent a clear message to state that although detainees have a lower expectation of privacy they should have a modest amount. As a result, since R. v. Mok, supra, was decided, police forces have made policy changes to address the issue of privacy.

[140] I really do not understand why Officer Attoe did not attend to providing Mr. Smith his rights to counsel and make the breath demand immediately upon arrest. What is more egregious is the fact Officer Attoe was under the impression he could continue to ask questions of Mr. Smith prior to speaking to counsel based on the fact he had cautioned Mr. Smith – despite the fact Mr. Smith had stated he wished to speak with counsel.

[141] Considering the number of Charter breaches in this matter, I have concluded this factor favours exclusion of the breath tests.

Final Conclusion and Ruling

[142] The case for exclusion of the breath test results is amplified by the cumulative effect of the violations of the accused's ss. 8, 9 and 10(b) rights of the Charter.

[143] The Charter Application to exclude the breath test results from the evidence at this trial is granted.

Released: June 17, 2015

Signed: "Justice N. Gregson"

Justice N. Gregson