Court Information and Parties

Information No.: 14-13200

Ontario Court of Justice

Her Majesty the Queen v. Tania Scott

Before: The Honourable Justice M. S. Felix

Date: January 18, 2016, at Oshawa, Ontario

Appearances:

• K. Kennedy, Counsel for the Crown
• E. Chan, Counsel for Ms. Scott

Reasons for Judgment

FELIX, J. (Orally):

Introduction

Tania Scott is charged with impaired driving contrary to section 253(1)(a) of the Criminal Code of Canada. The Crown withdrew an allegation of Refuse Breath Sample contrary to section 254(1) of the Criminal Code of Canada at the outset of the trial.

She brought an application for a stay of proceedings pursuant to section 24(1) of the Charter of Rights and Freedoms because of submitted violations of section 8, 9 and 10(b) of the Charter of Rights and Freedoms.

The trial proceeded before me by way of a blended application and trial. Ms. Scott testified and it was agreed that her evidence would apply only to the application.

Alleged Charter Breaches

The applicant asserts the following Charter breaches:

1. Section 8 of the Charter was infringed by police video surveillance in the cell block including while Ms. Scott used the toilet facilities in her cell;

2. Section 10(b) was infringed by the police because they did not give Ms. Scott a reasonable opportunity to seek legal counsel of her choice;

3. Section 9 of the Charter was infringed because Ms. Scott was subject to "over-holding," that is to say she was unjustly held after the completion of the police investigation.

The applicant submitted that only a stay of proceedings pursuant to section 24(1) of the Charter could properly address the magnitude of the Charter violations.

Having considered the evidence and the submissions of counsel, I will commence with a review of the evidence in support of the impaired driving allegation. Then I will address the merits of the Charter application concerning the alleged breaches of section 8, 9 and 10(b).

Impaired Operation

During submissions counsel focused their efforts on the Charter application rather on the issue of whether the Crown had proven the allegation beyond a reasonable doubt. I find that the evidence of the two civilian witnesses, in combination with the evidence from PC McCurdie, leave no doubt that Ms. Scott operated a motor vehicle while her ability to do so was impaired by alcohol.

Ms. Scott was observed by both civilian witnesses within the bar that night. She was in the company of a large group of persons who were intoxicated at the bar. Both civilian witnesses thought that she was intoxicated by the consumption of alcohol. She next came to the attention of the witnesses when they observed her wandering down the street in the early hours of the morning at closing time. Her apparent ride home courtesy of friends had left. The two witnesses retrieved her from the roadway and undertook to ensure she was safe out a sense of responsibility. Ms. Scott was described as heavily intoxicated and neither witness wanted her to drive home. She told them that she would not drive home, that she would use a designated driver service to get home. A service where a sober driver drives your car home for you. The witnesses drove her to her car and resolved to wait until that service arrived to make sure that Ms. Scott did not drive home.

During the car ride from the bar to the location where she had parked her car, Ms. Scott was described by these civilian witnesses as drunk and argumentative with someone over the phone. Her speech was slurred and she was confused at times, according to one of the witnesses.

When they arrived at her vehicle, Ms. Scott got out of the vehicle for some privacy while continuing her telephone call. She then got into her car. Both witnesses cautioned her not to drive. One witness stood in front of her vehicle in an attempt to stop her from driving. The other witness was going to block in her car to prevent her from driving but before that could occur Ms. Scott reversed her vehicle and drove away.

Ms. Scott's driving was described by the two civilian witnesses as punctuated by periods of sporadic acceleration and deceleration across the parking lot.

The witnesses followed her in their car from a safe distance and described Ms. Scott's vehicle as swerving all over the road across all lanes of travel and she even bumped against a curb.

According to the two civilian witnesses, after approximately 5 to 8 minutes of driving, the police stopped Ms. Scott.

Constable McCurdie was the officer assigned to pursue the civilian complainant about an impaired driver.

He pulled in behind the vehicle, and activated his emergency lights. In response the vehicle accelerated quickly away from him and began swerving to the right and almost struck the curb on two occasions.

Ms. Scott was the sole occupant and driver of this vehicle. She was slumped over the wheel when he encountered her. She had droopy, glassy eyes, and speech that was slow, deliberate, and slurred. There was a strong odour of alcohol coming from the vehicle that was eventually determined to be coming from her breath.

Ms. Scott almost fell head-first into the roadway and PC McCurdie had to catch her when she got out of the motor vehicle. She was assisted by him to the grassy side of the road for her own safety. She was arrested at 3:08 a.m. for impaired operation.

There is no doubt in my mind that Ms. Scott operated a motor vehicle while her ability to do so was impaired by the consumption of alcohol. I will now examine the Charter applications to determine whether she should be convicted or whether a stay of proceedings should be ordered.

Section 8 of the Charter – The "Mok Issue"

The applicant, Ms. Scott, was taken to a police station for the purpose of obtaining samples of her breath pursuant to a lawful breath demand.

She specifically asserts the following:

1. She was subjected to video surveillance while using the toilet facilities in her cell at 17 Division Durham Regional Police;

2. She was embarrassed to have to use the toilet in full view of the camera;

3. She was not given the alternative of using a private bathroom not subject to video surveillance; and

4. She repeatedly called for assistance, as she did not have toilet paper after using the toilet at one point in time. When no one came to assist her, she urinated and pulled up her pants without using toilet paper.

The applicant seeks a stay pursuant to section 24(1) of the Charter. No other remedy is sought.

The focus of the applicant's assertion relies on the argument that the Durham Regional police Service (unlike the Ontario Provincial Police or York Regional Police Service for example) has failed to respond to the guidance provided by the Courts in R. v. Mok, 2014 ONSC 64 (Ont. S.C.J.), leave denied, 2015 ONCA 608. In this case, it is submitted that the Durham Regional Police Service have not taken steps to address the decision in Mok. As such, it is submitted that this conduct meets the test for a stay of proceedings per section 24(1) of the Charter.

The Crown argues that there has been no breach of section 8 and that the circumstances do not warrant a stay of proceedings pursuant to section 24(1).

Cellblock Video Surveillance

The respondent did not call any evidence concerning the official policies or procedures of the Durham Regional Police Service as it relates to operations in the cells or video surveillance practices.

The respondent called the officer in charge of the case – PC McCurdie. PC McCurdie is an experienced officer with 17 years' service with the Durham Regional Police. He has been in the particular cell block many times and has acted as a supervisory sergeant. Based on his evidence, I make the following findings:

1. The cellblock video surveillance system is operated and maintained by the Durham Regional Police Service.

2. The purpose of video surveillance in the cellblock is for the safety and protection of detainees including as a result of attempted suicides and successful suicides in police cells.

3. There are notices on the wall explaining that the cell block premises are subject to video surveillance.

4. When detainees are paraded before the supervisory cell sergeant they are told that premises are subject to video and audio surveillance as part as an established standard practise.

5. The video surveillance footage is not accessible at large to the general public or to the members of the police service at large.

6. The video surveillance is captured and maintained subject to retention periods.

7. There is a specialized video disclosure unit charged with producing video footage for disclosure purposes.

8. The entire police division is subject to video surveillance and is also audio-taped in some areas.

9. All of the cells within the cell block are equally subject to video surveillance.

10. Every detainee is subject to video surveillance.

11. The toilet area of each cell is subject to video surveillance.

12. Video surveillance from all cells is channeled to a monitor proximate to the responsible cell office in charge. Normally, the monitor will have approximately 20 cells displayed at the same time in a grid format with miniature pictures so that all of the cells are viewable by those charged with monitoring the cellblock. There is the technical capability to access one particular cell by clicking on it and enlarging the picture although this is not done in the experience of PC McCurdie.

13. Any person proximate to the monitor may potentially view the video footage. There is no segregation based on sex. There is no policy or procedure whereby female officers monitor female detainees and male officers monitor male detainees.

14. According to PC McCurdie, the monitors show body movement but are not sophisticated enough to show genitalia. The cameras cannot be "zoomed in."

15. PC McCurdie told Ms. Scott that the cells were subject to video and audio surveillance.

16. PC McCurdie was not personally aware of any directive or explicit official change in Durham Regional Police Service policy as a result of the decisions in Mok. However, prisoners are now told that all areas of the police facility are subject to video surveillance and specifically that they are monitored while using the toilet.

17. While other bathrooms are available, detainees do not have an option or choice in using the toilet facilities. They must use the facilities in their cell.

Video Surveillance Footage Findings

I make the following findings of fact based on my review of the particular video surveillance footage in this case marked as an Exhibit:

1. There is no audio component to the video surveillance.

2. The video is in colour.

3. The video is not of high definition or high resolution.

4. The camera is positioned outside of the cell facing into the cell.

5. The perspective of the camera is slightly elevated in height.

6. The camera perspective is partially obscured by the metal bars of the cell.

7. The applicant used the toilet or sat on the toilet on several occasions.

8. The applicant's thighs and buttocks are partially visible when she used the toilet. I find that the resolution of the video surveillance is such that no genitalia were exposed.

9. The applicant was clearly aware of the fact that the cells were videotaped. She is observed giving "the finger", also known as middle finger salute to the camera. At one point she walks directly towards the camera and appears to be looking up at the camera and uttering words that are not discernable as there is no audio.

10. Immediately upon entering the cell, the applicant pulled down her pants and used the toilet in front of the female officer who placed her in the cell.

11. The applicant did not make any effort to conceal her use of the toilet by way of a large cardigan type sweater she had in the cell.

Does Section 8 of the Charter Apply?

Section 8 of the Charter protects against unreasonable search and seizure where the object of the search possesses a reasonable expectation of privacy: Hunter v. Southam Inc., [1984] 2 S.C.R. 145.

A contextual analysis is required considering all of the surrounding circumstances and the existence of a subjective expectation of privacy and the objective reasonableness of that expectation: R. v. Edwards, [1996] 1 S.C.R. 128.

In R. v. Mok, 2014 ONSC 64 (ONSC) Mr. Justice Boswell, sitting as a summary conviction appeal court, provided guidance on this issue. He found that, objectively speaking, detainees enjoy a lowered expectation of privacy, and that it was reasonable to expect a minimal level of privacy: Mok, 2014 ONSC 64, para. 66.

Ms. Scott presented unchallenged evidence that the experience was humiliating, demeaning and implicitly unnecessary.

Unlike Ms. Mok, Ms. Scott was told that her cell toilet area was under video surveillance. While Ms. Scott was aware of the video surveillance this notification was not sufficient to address her section 8 Charter interest because she had no option or choice in the matter: Mok, 2014 ONSC 64, paras. 68-73. The video capture of her using the toilet in these circumstances was a breach of section 8 of the Charter.

Remedy: Section 24(1) of the Charter

The applicant seeks a stay of proceedings pursuant to section 24(1) of the Charter for the breach of section 8 of the Charter.

Section 24(1) of the Charter provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The applicant submits that only a stay of proceedings is appropriate and just in the circumstances.

The test was set out in R. v. Babos, [2014] 1 S.C.R. at paras. 30-32:

A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

Nonetheless, this Court has recognized that there are rare occasions – 'the clearest of cases' – when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories:

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

2. Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73).

The impugned conduct in this case does not implicate the main category. Rather it falls squarely within the latter category.

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

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that 'will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome' (Regan, at para. 54);

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

3. Where there is still uncertainty over whether a stay is warrant after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against 'the interest that society has in having a final decision on the merits' (Ibid, at para. 57).

The applicant did not assert support for the "main category" and instead focused on the "residual category". I must determine whether the impugned state conduct risks undermining the integrity of the judicial process.

Prejudice

The applicant did not seriously press this branch of the test. There is no issue with the fair trial considerations of Ms. Scott. The integrity of the justice system has not been compromised by the conduct of the trial nor will the justice system become compromised by the outcome.

Alternative Remedies

There are alternative remedies available short of a stay of proceedings. None were requested in this case. The applicant submitted that a stay of proceedings was the only appropriate and just remedy.

Balancing Test

Arguably the first two Babos requirements are absent in this case. Nevertheless, I will press on and consider the balancing test engaged by the third requirement.

Persons who are detained in police stations for the purpose of further investigation are presumed innocent and should be treated humanely and respectfully. Persons detained for the purposes of breath tests are sourced from every strata of society. The issues surrounding the cell surveillance privacy issue have been discussed in the many cases I read and I am indebted to counsel and to Mr. Chan for the cases provided, and I need not labour to survey all of their findings in this judgment.

One side of the balancing ledger does not reflect well on the police and the circumstances in this case. Ms. Scott is a mother of three children. She has never been in trouble before. She has no criminal record. She is a nurse. She is a contributing member of our society. Ms. Scott was not having a good evening on the night in question. There were obviously some personal circumstances that night and, one would only be human if one accorded her some sympathy. To what extent did her medical circumstances impact her behaviour? To what extent did intoxicating amounts of alcohol impact her behaviour? Was there a combination of both issues? It was an upsetting and difficult event for her.

The objective of video surveillance based on the record in this case is safety in the cells. Ms. Scott was requesting assistance and no one came to her aide. She was apparently ill and vomiting. No one came to assist her. She ran out of toilet paper, no one came to assist her. No right-minded person would conclude that she deserved this treatment.

On the other side of the balancing ledger, when I think of all the cases that I have read in this area, there are certain general objective realities. While I must recognize I have limited evidence concerning the purpose of video surveillance in the cells, I do not believe that I must ignore a generalized rationale relied on in all of the relevant cases on point. The cases have recognized that videotaping in the cells is or was common. The police have a duty to protect those who they have detained. Those detained may be a risk to themselves or to others. Unfortunate experiences, public inquiries, coroner juries, and legal actions have contributed, it appears, to the drive towards video surveillance.

In an era where the public demand oversight and the police services boards and police management seek to oversee, it is entirely understandable why police services have taken steps to create an objective permanent record of the interactions between the police and the community. This month the Toronto Police Service commenced a pilot project concerning lapel cameras. The debate will continue.

Particular to this case, however, Ms. Scott appeared to be quite intoxicated to the persons who interacted with her that night. There were two civilian witnesses who provided evidence of her demeanour and intoxication. They unsuccessfully attempted to persuade her from operating her vehicle while impaired by alcohol. Constable McCurdie describe her as belligerent and uncooperative. Listening to Ms. Scott testify here in court, it is difficult to see that in her. She was quiet, respectful, and emotional when testifying. Nevertheless, I prefer the evidence of the civilian witnesses and Constable McCurdie as to her demeanour and indicia of alcohol consumption on the night in question.

In this case, as in many other similar cases, the applicant was lawfully under arrest and detained in the police station for the purpose of breath samples.

Unlike Ms. Mok, Ms. Scott was aware that the cell toilet was subject to video surveillance. Ms. Mok was unaware of the surveillance and was fully exposed on video. Ms. Scott was not fully exposed in this case.

Constable McCurdie testified, albeit during re-examination, that Ms. Scott was told that she was subject to video surveillance even while using the toilet in her cell. Ms. Scott made her state of knowledge clear with a "middle-finger salute" to the camera.

Ms. Scott knew about the video surveillance but really did not have any choice in where to use the toilet. There was no other option for her.

I do not know if this issue is best resolved by engaging in an extensive hyper-analysis of the video surveillance. I do not think this issue should be resolved by judicial scrutiny to determine whether genitalia can be seen with the naked eye. I am not sure that the analysis should fall to gendered findings as to whether police officers of the opposite sex could possibly catch a fleeting glance of someone's genitalia.

A range of solutions to this issue have already been outlined in other cases. The OPP, the York Regional Police Service, and the Peel Regional Police Service for example have already adjusted their practices: See for example: R. v. Orenchuk, 2014 ONCJ 650 at para. 28; R. v. Clarke, 2015 ONCJ 228, [2015] O.J. No 2122 at para. 84-87; R. v. Sytsma, 2015 ONCJ 517 para. 17.

In a recent case concerning the impact of the Ontario Court of Appeal's decision in Mok Mr. Justice Bruce Duncan stated that, in effect, the Ontario Court of Appeal has held that a stay is no longer even arguable absent other aggravating factors: R. v. Grewal, 2015 ONCJ 517 para. 17.

The core element of the applicant's assertion rests upon the apparent lack of response by the Durham Regional Police Service to the decision in Mok. This argument belies a concern that the York Regional Police Service, the Ontario Provincial Police and other police services have taken steps to mitigate this issue, yet the Durham Regional Police Service has failed to adjust their practices.

Nevertheless, the applicant has not satisfied me that it is appropriate and just to stay these proceedings.

First of all, while the applicant has established a breach of section 8 of the Charter, the applicant has not established affirmative evidence that the Durham Regional Police Service has ignored or failed to respond to the decision in Mok. I recognize that the Crown did not call any evidence as to the "official" response from the Durham Regional Police Service on this issue. However, police Constable McCurdie testified that there has been in fact been a change – detainees are now told that the video surveillance includes the toilet area. I recognize that PC McCurdie could not and did not seek to provide the official position of the Durham Regional Police Service. I recognize as well that notice is not a complete answer to the section 8 argument. See: R. v. Mok.

Second, I am not satisfied that there has been sufficient time for the Durham Regional Police Service to consider and absorb the implications of Mok. Mr. Justice West's decision in R. v. Mok, 2012 ONCJ 291 was rendered on May 3rd, 2012.

Mr. Justice Boswell's summary conviction appeal decision in R. v. Mok, [2014] O.J. No. 44 (ONSC summary conviction appeal) was rendered on January 7th, 2014.

The Ontario Court of Appeal heard the appeal in Mok on September the 8th, 2015.

On September the 14th, 2015, the Court of Appeal provided a decision denying leave to appeal: R. v. Mok, 2015 ONCA 608.

The offence date in this matter was August 1st, 2014.

Counsel have not provided, nor has my research revealed, any decision addressing the "Mok issue" as it relates to the Durham Regional Police Service prior to the offence date in this case.

Mr. Justice Block provided a decision in the R. v. Robb, 2014, ONCJ 514 on September the 25th, 2014.

Mr. Justice F. Javed provided a decision in R. v. Kyle Wrightly, unreported, on July the 16th, 2015. A stay of proceedings was not ordered in either case.

One of the errors cited by Mr. Justice Boswell in the summary conviction appeal decision in Mok was the failure to appreciate that the police had been videotaping in the cells for years without complaint and that the argument in Mok was a "first instance" complaint: R. v. Mok, supra, para. 93. The Ontario Court of Appeal denied leave to appeal partly because they were satisfied that there was evidence that the police had adjusted their practices. While there is an argument that the Durham Regional Police Service has had an adequate opportunity to absorb the guidance provided by Mok – a case out of the Central East Judicial Region, I am not satisfied that the timeline permits the irrefutable conclusion that the Durham Regional Police Service has deliberately ignored Mok.

The law has been unsettled in this area: See R. v. Griffen, 2015 ONSC 927 at para. 31. The unsettled nature of the law governing this case has now been clarified by the Ontario Court of Appeal decision in Mok. Surely, all police services will adjust their practices in response. Even prior to the Ontario Court of Appeal decision in Mok, a survey of the case law in this area revealed evidence that the Ontario Provincial Police, the York Regional Police, and the Peel Regional Police had adjusted their practices.

As observed by the summary conviction appeal court in Mok, the police could put measures in place to address this issue: See Mok, supra, para. 81. It is no accident that the various police services put video surveillance systems in place in the first place. It remains to be seen how the police services marry these changes with the original purposes and goals video surveillance was designed to achieve.

Lastly, when I balance the interests in granting a stay against society's interest in a trial, I would not stay these proceedings because (1) of the great public interest in the adjudication in drinking and driving cases; (2) there is no real nexus between the impaired driving evidence and the video surveillance of the applicant while using the cell toilet; and (3) the police conduct is not an ongoing systemic problem: See Babos, supra, para. 41.

While the police conduct in this case is of concern, it is not so egregious that the Court must dissociate itself from it. The breach of Ms. Scott's section 8 rights was minor. I may reasonably expect that the management of the Durham Regional Police Service will absorb the guidance provided by the Ontario Court of Appeal in Mok and just like several other professional police services, make the changes required.

Finally, put starkly, if an informed and objective member of our community or if informed and objective members of our community were to consider the circumstances of Ms. Scott's driving that night, and the circumstances of video surveillance in the police cells, I respectfully and sincerely doubt that anyone would suggest that the criminal prosecution should cease.

While I have great sympathy for the personal circumstances of Ms. Scott, and I accept that she is a good person, I am confident that any objective members of our community would be offended by the notice of staying these proceedings.

When I balance all of these factors, notwithstanding that a finding that a breach of section 8 has occurred, I cannot find that this is one of those clearest cases for a stay of proceedings per section 24(1) of the Charter.

Section 10(b) – Right to Counsel of Choice

Section 10(b) of the Charter requires that immediately upon arrest or detention the police:

1. Inform the detainee of the right to retain and instruct counsel without delay and the existence and availability of duty counsel;

2. Provide a reasonable opportunity to exercise the right if requested; and

3. Refrain from eliciting evidence until the detainee has had that reasonable opportunity: R. v. Bartle, [1994] 3 S.C.R. 173 (S.C.C.).

The applicant asserts that she specifically requested to speak to counsel of choice and this request was not facilitated by the police.

She testified that the phone number for counsel was in her cellphone but she realized that she must have left her cellphone in her car. She also testified that the police indicated that they could not locate the person she identified as counsel. She then decided to speak to Duty Counsel.

The core of this assertion is Ms. Scott's testimony that prior to speaking with duty counsel she specifically requested counsel of choice. She explained that an officer went to check her purse with the purpose of providing her cellphone to her but the cellphone was not in her purse and she realized she must have left her cellphone in her car. She explained that an officer, at her request, made efforts to look up a lawyer named Michelle Gibbs. This officer indicated that he was not successful and told her there was no such person. Ms. Scott says it was then that she relented and spoke to duty counsel.

I find that the applicant has failed to establish a breach of section 10(b) of the Charter for the following reasons:

1. I am satisfied that PC McCurdie properly administered the informational component of the rights to counsel;

2. I am satisfied that Constable McCurdie made reasonable attempts to facilitate access to counsel of choice;

3. Ms. Scott has not satisfied me that she requested access to counsel of choice from other responsible police personnel and I thereby do not accept that other responsible police personnel failed to facilitate access to counsel of choice;

4. I find that Ms. Scott was not diligent in exercising her right to access counsel of choice; and

5. I find that Ms. Scott spoke to duty counsel.

Informational Component of the Rights to Counsel

As I indicated, I find that Constable McCurdie properly administered her rights to counsel at the roadside upon arrest.

Facilitation of Access to Counsel

Constable McCurdie testified that Ms. Scott was intoxicated and belligerent when dealing with him at the roadside. He testified that the applicant demanded to know his first name before providing the name of her counsel of choice. She refused to provide the name of her lawyer until he provided his first name to her. He testified that he declined to provide his first name. She refused to provide the name of her lawyer to him. He told her that if she wished to access her lawyer she was required to provide the name of her lawyer.

According to PC McCurdie, the applicant request duty counsel when paraded before the sergeant in the cells. He said he made a specific notation of this occurrence. The parade video has not been presented in evidence before me. PC McCurdie testified that he could not recall if he advised the cell sergeant of Ms. Scott's wish to speak to a particular, albeit unknown, lawyer. He did not get a directory of lawyers or address this issue further because once Ms. Scott made the request to access duty counsel he had believed that she had made her choice to use duty counsel.

Request to Speak to Counsel of Choice

I am not satisfied that Ms. Scott requested access to a specific lawyer. Ms. Scott is unreliable on this issue. When I evaluated her evidence it was unclear to me when this request could have occurred. At one point she was shown video surveillance of herself in the cells and she indicated at 5:47 a.m. on the video that the video perhaps showed her providing the name of counsel to police personnel. At another point in her testimony she said that the request occurred prior to access to duty counsel. If this was so, she would have been in the custody of PC McCurdie.

As I heard in evidence, PC McCurdie was the arresting officer and the only officer that had major interaction with her and had custody of her up until breath tests.

Yet PC McCurdie says that she refused to provide the name of her lawyer until he provided his first name. He says this occurred more than once if I accept his evidence on this point. I also heard from Ms. Scott when she testified that she did not provide the name of her lawyer to PC McCurdie. She also said she provided the name of the lawyer to officers other than PC McCurdie but Ms. Scott could not and did not establish the identity of the officer who she says made efforts on her behalf nor was any evidence presented from this officer. I looked at the record and there was no corroborative support for her assertion, for example, the video surveillance. PC McCurdie, the officer in charge of the case, testified that no other officers in the police station advised him of requests to speak to counsel of choice on the part of Ms. Scott.

Diligence

Ms. Scott was described by PC McCurdie as belligerent, uncooperative, and under the influence of alcohol that night. He explained that she repeatedly refused to provide the name of her lawyer until he provided his first name.

This is an odd occurrence. It suggests to me that Ms. Scott was not acting in a sensible way perhaps due to a combination of factors that night.

Ms. Scott acknowledged when she testified that she did not provide the name of her counsel to PC McCurdie. On point, she specified when she testified that she did not know why she acted in this fashion but that she guessed that was "being difficult". By refusing to provide the name of her lawyer in this fashion until PC McCurdie provided his first name, Ms. Scott was not diligent in seeking access to counsel of choice. See: R. v. Tremblay, [1987] 2 S.C.R. 435 at para. 9; R. v. Van Binnendyk, [2007] O.J. No. 2899 (Ont. C.A.); R. v. Clarke (2005), 196 C.C.C. (3d) 426 (Ont. C.A.) at paras. 31-33; R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.).

Access to Duty Counsel

I am satisfied that Ms. Scott did in fact receive access to duty counsel.

There was no circumstance in the evidentiary record before me wherein the police had an obligation to provide another opportunity for further consultation with counsel: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310.

There was no evidence within the application record that established that the defendant did not understand the advice provided by duty counsel and in the absence of evidence to the contrary there is a presumption in law that proper legal advice was provided: R. v. I(L.R.) (1993), 86 C.C.C. (3d) 289 (S.C.C.).

Conclusion on Section 10(b)

In sum, Ms. Scott testified that she believed that she did in fact provide the name of her lawyer to an officer or officers. She does not know who she told. She could not identify the officer or officers she told. She was not sure if she told PC McCurdie or not. At one point in her evidence and at another point in her evidence she was clear she did not tell him.

I was not satisfied with her evidence on this issue. I find that it is more of a question of the reliability of her evidence rather than an issue with her ability to tell the truth. Her recall of the events is deficient. Further, I found PC McCurdie's evidence more persuasive on the issue.

The allegation of a breach of section 10(b) is dismissed.

Section 9 – "Over-Holding"

The applicant submits that she was arbitrarily detained after the completion of her breath samples.

I note as I've outlined that she was belligerent and not cooperative with officers in the cells and was still asking for her lawyer and still would not provide the name of her lawyer according to the evidence of Constable McCurdie.

Ms. Scott testified that she was told that she could be released but that she needed someone to pick her up. She asked that her husband be contacted. I infer that he was because the police told her on her evidence that they had already contacted her husband and he said essentially he was not coming to get her.

At approximately 7:30 in the morning a police employee called a cab at her request and she went home.

I have reviewed the video capture of the time spent by Ms. Scott while in the cells in Exhibit 1. She was detained in the cells after the completion of breath tests from approximately 5:44 a.m. until approximately 7:30 a.m.

The respondent did not call any evidence concerning the policies and practices of the Durham Regional Police Service concerning the release of prisoners. The cell sergeant or responsible releasing officer was not called to give evidence concerning Ms. Scott and why she was detained in the cells. There was no evidence presented by the respondent touching on this issue.

I think it is helpful to quote from the summary conviction appeal decision of Mr. Justice Durno in R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (ONSC) at para. 93:

The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

In this case I know that it was alleged that Ms. Scott refused or failed to provide samples of her breath but other than that I have no evidence that this analysis was done in this case.

Further, there is no evidence that an individualized assessment was performed on Ms. Scott: See R. v. Iseler, [2004] O.J. No. 4332 (Ont. CA) at para. 18.

I find that the applicant has presented a prima facie case of arbitrary detention.

On this record, with no response presented on this issue, the unexplained detention of Ms. Scott was a breach of section 9 of the Charter.

Analysis: Section 24(1) of the Charter

I have set out the test in Babos, supra earlier in this judgment.

There was no prejudice to the fair trial considerations of Ms. Scott as a result of the detention in this case. There are alternative remedies short of a stay of proceedings – none were requested in this case.

Having regard to the balancing of interests, I would not stay these proceedings pursuant to section 24(1) for the following reasons:

1. The breach has really nothing to do with the evidence gathered in support of the impaired driving allegations.

2. The breach did not impact trial fairness.

3. There is some evidence that the police attempted or were attempting to facilitate her release to a responsible person. This was not unreasonable having regard to the evidence that I have heard about her demeanour and the fact that her husband was not willing to come and secure her.

4. The length of time was short.

As such, I conclude that is not one of those "clearest of cases": Babos, supra.

Conclusion

The Charter application is dismissed.

The Crown has established Ms. Scott's guilt beyond a reasonable doubt. She will be found guilty of impaired operation.

Released: January 18, 2016

FELIX, J.

Certificate of Transcript

Form 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Amber Lihou, certify that this document is a true and accurate transcript of the recording of January 18, 2016 in the Ontario Court of Justice, held at 150 Bond St. E., Oshawa, ON, taken from Recording #2812_207_20160118_090654__10_FELIXMA which has been certified in Form 1.