Court File and Parties

Court File No.: Central East - Newmarket 12-07614

Date: 2016-11-18

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

David Topper

Before: Justice P.N. Bourque

Counsel:

• L. O'Neill, for the Crown
• J. Rosenthal, for the Defendant

Reasons for Judgment

Released on November 18, 2016

Overview

[1] The defendant is charged with driving with excess alcohol from the events of September 8, 2012. The defendant asserts that his Charter rights have been violated in that the officer did not have reasonable and probable grounds to arrest him and further that he was kept in the cells for too long after the investigation, and was videotaped while he was using the toilet in the cells.

The Crown's Evidence

Adrienne Wenzler

[2] …was an OPP officer with some 3 years' experience at the time of these events. She was on duty at the time and records the following events:

Time	Event
15:20	She receives a traffic complaint of a blue BMW motor vehicle on Highway 400 southbound which was weaving. She also got another complaint from a tow truck operator. The officer set up on Highway 400 southbound near King Road. She saw the described car with the same licence plate going south and followed and saw it weave in lane and go 90 kilometres in a 100 kilometre an hour zone. The officer activated emergency lights after passing through a construction zone and the BMW moved slowly into the curb lane but did not stop. The officer sounded her air horn and the vehicle stopped.
15:37	The BMW stopped and the officer went up to passenger side. Smell of alcohol coming from inside car with only defendant in car as driver. Asked for documents and defendant was slow to retrieve his licence. Identified the driver and asked if he had anything to drink and he said "not today" but he was drinking last night. The officer asked him out of the vehicle and smelled odour of alcohol on his breath. She made the ASD demand.
15:41	The officer made the formal ASD demand. Defendant returned to officer vehicle, takes the ASD and registers a fail. The ASD is a Alcotest 7410 Draeger and was calibrated on August 26, 2012.
15:48 to 15:50	The officer read the rights to counsel, the caution and the breath demand.
15:57	The officer left for the detachment.
16:20	Arrived at the detachment.
16:27	The defendant calls his lawyer and leaves a message.
16:34	The officer called the lawyer and was able to make contact and defendant allowed to speak in private to lawyer.
16:38	The defendant was taken to the breath technician.
17:14	The defendant had completed the breath tests (184 and 182). The officer charged the defendant with driving with excess alcohol and with impaired driving.

[3] The officer was extensively cross-examined about her note taking. In her notebook, she made notes as she was performing various tasks and then at the station she started again with more detailed notes. I find nothing wrong with this as it would appear that her "scratch notes" and final notes are in one place. It was pointed out to the officer that some details are in her final notes but not in her first version. That does not surprise me as clearly she was taking more time with the second notes and it gave her an opportunity to add detail.

[4] There was one point where her recitation of a time in her detailed notes may have described an impossible action as it did not accord with the video record. She did not have any real explanation for this and she is clearly in error. This was the point where she said she told the defendant about the two charges he was facing. That discrepancy may bring into doubt that entry, or at least the time it was made. The defence suggests that it should bring into doubt other aspects of the officer's notes. I do not think I would go that far. For the most part, the officer's actions are confirmed in other ways. Secondly, I have already found that there is no difficulty with the officer expanding on her initial notes.

[5] With regard to the over holding issue, the officer said that she spoke to the sergeant and informed him of the breath readings. She did not know if he visited the defendant. She was not sure if she told the defendant he would be in custody some 5 to 6 hours as per the advice of the breath technician. She knew the defendant was married and lived close to the police station. She believed that there were many issues which would dictate that a person stay in custody until their breath readings were lower including officer safety, the defendant's safety, and the prevention of the commission of another offence.

Dwight Young

[6] ...is an OPP officer with about 10 years' experience at the time of these offences. He is a breath technician. He performed the following functions:

Time	Event
15:48	The officer was dispatched to the OPP district to perform a breath test for officer Wenzler.
15:51	He attended at the district and conducted the diagnostic test (Exhibit 1), the calibration test (Exhibit 2) and a self-test (Exhibit 3).
16:31	He assisted Officer Wenzler with lodging the defendant in the cells. The defendant wished to call his brother-in-law who was a lawyer and the officer assisted him in getting his cell phone and allowed the defendant to make the call.
16:39	The defendant was handed over to the officer and the officer entered the information on the breath machine.
16:42	The officer read the secondary caution and the breath demand. The officer had received the grounds from Wenzler (including the failed ASD) and was satisfied with the grounds. The officer demonstrated the use of the device.
16:44	The defendant provided a suitable sample directly into the device and the first reading was 184 milligrams of alcohol in 100 millilitres of blood.
17:05	The second sample was taken and the reading was 182 milligrams of alcohol in 100 millilitres of blood.

[7] The certificate of the qualified technician was filed as Exhibit 4.

[8] The officer was of the opinion, based upon the high readings that the defendant should be charged with the offence of impaired driving. He discussed this with officer Wenzler. He did not discuss the new charge with the defendant.

[9] The officer spoke of the cameras in the detachment. He stated that there were cameras in the cells and that there were monitors located in the constable's room. He stated that officers had access to the room and some civilian employees of the police also would have access to the room.

[10] He stated there were signs in the building notifying the use of the cameras and stated that there were more signs installed later. He also indicated that there was a change of procedure and now persons in the cells are given a blanket to cover themselves when they use the toilet.

Brian Luscombe

[11] ...was the sergeant at the detachment on September 8, 2012, and is a 27 year veteran of the Ontario Provincial Police. He stated that he had no notes of this particular arrest and had no memory of these events.

[12] He stated that there are cameras in the cells (it was visible) and in the hallways and the booking hall. He stated that upon entry into the building and on into the booking hall, there were at the time, 3 separate signs telling anyone entering (through the passages that the defendant entered) that they are being observed by video and audio recording. He did not think that the camera in the sally port or halls were operating but was not sure about the booking hall camera.

[13] He stated that he did not know if there are more signs now as he left the detachment in May 2015. He stated that the camera monitor was in the constable room and police officers have access to the monitors.

[14] He also stated that he would make the decision as to whether and when to release a person from custody. With regard to drinking and driving offences, he believed that a reading of over 180 milligrams of alcohol in 100 millilitres of blood spoke of significant impairment of judgment. In that regard, he believed that a person would be at risk of injuring himself or indeed committing another offence. He used as an example a person who is picked up by a family member and then decides to drive. He did not make any notes and could not say that he had any other considerations on the issue of release other than the breath readings.

Sergeant Amy Ramsay

[15] ...has been a member of the Ontario Provincial Police for 28 years. She is Sergeant, Policy and Procedures, Information Management Section of the Business Management Bureau. She filed an Affidavit (Exhibit 7) and gave oral testimony which speaks about the video recording systems in OPP detachments.

[16] The officer stated that there has been a move to put audio and video in police stations to address safety concerns for detainees (in response to several recommendations of coroners and juries arising from deaths of persons by suicide) while in police custody. She cited the recommendations of several juries that "the OPP continue to aggressively pursue the standardization of in-cell/holding area 24/7 video surveillance at the detachment level". The OPP responded to several of the jury recommendations by stating that they would move install detachment cell cameras.

[17] The installation of cameras started in 2010. By 2012, cameras were installed in detachments including the cells. The present DVR equipment allows constant video surveillance and recording of prisoners, but cannot be stopped for the purpose of rewinding and reviewing at any time during the live feed. The setting is 3 frames per second. The camera ceases to record after 3 seconds of no motion. The master DVD is kept within the detachment vault and at this time, the access is very limited.

[18] She cited several cases decided in 2012 which raised the issue of a Charter violation of the rights of the defendant in custody who is subject to a video being made of them using the toilet in the cell. The cases at the Ontario Court of Justice level were divided on whether this was or was not a Charter violation. A review of the issue was commenced by the Ontario Provincial Police. As a result of the Superior Court decision in R. v. Mok, the Ontario Provincial Police took interim steps which included pointing out to the detainee the existence of the camera, posting of signs warning of video monitoring, provide a blanket for use for the detainee and other matters. In April 1, 2014, a pilot project was started to provide paper medical gowns for prisoner use and stencil an image of a video camera behind the toilet in every cell. The pilot project was expanded to all OPP detachments starting in July 24, 2014.

[19] On March 4, 2016, the OPP published a revised Prisoner Care & Control policy. It has been expanded to include privacy and confirms the protocols already in place. As a result of a court decision where the policy was not carried out, the OPP released an updated memorandum which reminds the member of the importance of following the directions set out in the "Privacy cover for prisoners – instructions", and reiterates that all persons are to be advised that a privacy gown may be made available to them to be used for privacy purposes while using the toilet.

[20] The witness in cross-examination admitted that as of the date of this offence (September 8, 2012), the policy was to have signs in various areas of the detachment but not in the cells, warning of the videotaping of persons in the detachment. In fact, some of the signs would be as small as the size of an 8-½" by 11" piece of paper.

Defence Evidence

[21] The defendant testified on the Charter applications. He stated that he is an executive and has never been arrested before. He stated that he did not recall anyone telling him about there being cameras in the cells and he did not believe that there were signs in the detachment as he could not remember seeing any. He stated that when he was in the cell, for over 7 hours, he never saw the camera. For the purpose of this application, I do not find that any of the signs were brought to his attention, and in any event, there was no sign in the cells which would alert him to the fact he would be on camera while using the toilet in the cells.

[22] He stated that he felt "fine" and could not understand why he was kept in custody until just before midnight, over 7 hours. He states that his house is about 25 kilometres from the police detachment.

[23] He stated that when he discovered through his lawyer that he had been on a video camera (on many occasions going to the bathroom and exposing his private parts) he was "shocked". He was (and is afraid that even after these 4 years since) fearful that this video will get out into the public and therefore he will be subject to a shaming by his family and his associates and friends. He said that he would often check the internet (once every two months or so) and even though he has seen nothing in these 4 years, he still fears for this eventuality.

Frances Topper

[24] ...is the spouse of the defendant. She testified that on the evening of September 8, 2012, she was at home and received a call from a female OPP officer at 5:00 p.m. and informed her that her husband was under arrest at the detachment and that he would not be released for several hours until "his blood alcohol levels had come down". At the time, she did not think that this was an unreasonable thing, and it made sense. She would have gotten him at any time and eventually was called by the police and she went down and picked him up.

Did the Arresting Officer Have Reasonable and Probable Grounds to Arrest the Defendant and Make the Breath Demand?

[25] The defendant states that without reasonable and probable grounds to arrest, the defendant's section 8 Charter rights were infringed and pursuant to section 24(2) of the Charter, the results of the breath tests should be excluded.

[26] In this case, because the result of the ASD was a fail, the issue to be decided is whether the officer had a "reasonable suspicion" that the defendant had alcohol in his body, and secondly, whether the officer could rely upon the "fail".

[27] With regard to the reasonable suspicion, the defendant asks me to discount the evidence of the officer that she smelled alcohol on the breath of the defendant. He points to some difficulties in her notes (she had an initial few notes made at the scene and her final notes made later at the station) and says I should not rely on her evidence. I disagree. The officer's notes were not without blemish, but on the whole, she set out with some detail the activities of that afternoon. Her evidence on these issues was not contradicted. I find that I accept the following evidence:

(i) the officer had a report of a driver who was weaving in his lane;

(ii) the officer observed some weaving and a slow speed, and the defendant was slow to stop;

(iii) the officer smelled alcohol coming from a car which had only the defendant as an occupant;

(iv) the officer smelled alcohol from the breath of the defendant;

(v) the defendant denied drinking that day but admitted to drinking the night before;

(vi) there was no other evidence pointing to impairment.

[28] The test for making a demand for an ASD is not an onerous one. The test is for the consumption of alcohol alone and not its amount or behavioural consequences. The officer need not believe that the defendant has committed any offence. As I have accepted the officer's evidence that she smelled alcohol, I believe that constitutes sufficient evidence about the presence of alcohol in the body of the defendant to support the reasonable suspicion.

[29] In our case, the officer made an inquiry as to the timing of the defendant's drinking. The defendant told her he had not had anything to drink since the night before. It matters not that the officer may not believe the defendant. It matters that the defendant has not brought any information to the attention of the officer that there is a real possibility of mouth alcohol. A smell of alcohol tells you nothing about the amount of alcohol consumed and even less about when it was consumed. There was no open bottle of alcohol found in the car. There was no issue raised about whether the officer should have waited 15 minutes before conducting the ASD, and I find there is no such issue.

[30] I cannot see any reason to doubt the officer's subjective belief that the results of the ASD would be accurate, and therefore provide the officer had reasonable and probable grounds to arrest the defendant and make the breath demand.

[31] I reject this Charter application on the part of the defendant.

Is There a Breach of the Section 8 Right to Privacy in That the Defendant Was Shown Using the Toilet in the Cells?

[32] Filed as Exhibit 6 is a video of the defendant in the cells from 3:10 p.m. (as per the clock on the exhibit which was an hour slow) until 11:08. The camera is in the right rear of the cell (looking out) and shows a small square room with a stone ledge for sitting or reclining and a combination toilet and lavatory. The defendant is dressed in shorts and a T-shirt. He is seen pacing in the space. He makes some use of the toilet about 14 times. For 8 of the times, the defendant's back is to the camera and no private parts of the defendant are visible. On 4 occasions, his pubic area is exposed and it is possible to see his penis on 3 occasions. On one occasion, his buttocks are exposed. In contrast to some other cases (R. v. Arbelo, for example), this was a complete exposure of his private parts and the exposure was on several different times. I find it is serious and for the fact he was in the cells for a long period of time, it was prolonged, and the failure to respect his privacy was aggravated.

[33] There are a plethora of cases in the Ontario Court which discuss this issue. Some find a Section 8 breach and some do not.

[34] I believe that the only case decided on an appeal to the Superior Court in this region is R. v. Mok. That case involved a woman who in a similar investigation, exposed her private parts to a cell camera while using the toilet. Without delving into the details of the court's reasoning, he came to the conclusion that the section 8 rights of the applicant had been breached. The court stated:

I agree with the trial judge's conclusion that the monitoring and videotaping of detainees using the cell toilet by police officers of either gender is a "highly intrusive invasion of privacy". On the other hand, the state's legitimate interests in monitoring cells for safety and preservation of evidence are not so compelling that they ought not to give way to at least a modesty screen that partially blocks the camera's view of the toilet. The detainee's expectation of privacy in the cell area is not so significant as to warrant a finding that any surveillance is inappropriate. But it is sufficient to require that the police do not monitor and record the use of the toilet by detainees.

In the result, I find, as the trial judge did, that Ms. Mok's section 8 right was violated when the police videotaped her using the toilet in her cell. I find that she had a subjective expectation of privacy and that her subjective expectation was reasonably held in all the circumstances. The reasonableness of her expectation is supported by a balancing of her individual interest in privacy, dignity, integrity and autonomy, against the state's legitimate interests in monitoring the cell area for safety concerns and the preservation of evidence.

[35] In refusing to grant leave of this Mok decision, the Ontario Court of Appeal did not disturb the finding of a breach of the section 8 rights of the appellant.

[36] In the recent decision of R. v. Singh, Justice Campbell of the Superior Court came to a similar conclusion of breach with somewhat similar facts. I also come to the same conclusion and I find that there has been a breach.

[37] The real and difficult issue to be decided is the nature of any remedy that can be granted as a result of the breach.

[38] For various reasons, the court in Mok refused to grant a stay as it was not the clearest of cases and the police were taking active steps to change their procedures.

[39] In coming to my conclusion on this issue, I take into account the following relevant factors:

(i) The defendant was under arrest for driving with excess alcohol and the defendant exhibited few if any signs of impairment but had breath readings of 180 milligrams of alcohol in 100 millilitres of blood;

(ii) The defendant was placed in a cell and remained there for upwards of 9 hours in total;

(iii) The defendant in using the toilet, exposed his private parts to the surveillance camera some 4 to 5 times.

[40] I accept and take judicial notice (as expressed in many cases) that the videotaping of the cells is for security of the cell occupants and for the security of the police and others using the police station.

[41] There were signs in the building warning persons that they would be video and audiotaped although there was no specific sign in the cell.

[42] This matter occurred in 2012 and there is evidence that the Ontario Provincial Police have changed their procedures by offering a blanket to persons in the cells so they can cover themselves, and by placing more warning signs in the building. I note, however, that in contrast to the steps taken by the York Regional Police, their actions only started after the Superior Court decision in R. v. Mok, supra.

[43] The monitor for these cameras is contained in the constables' room and all officers and any civilian employees of the Ontario Provincial Police could possibly see the screens.

[44] I conclude that this is not one of the "clearest of cases" and thus I decline to enter a stay under sec 24(1) of the Charter.

The defendant asks that even if I do not do a "stay", I can and I should exclude the breath result evidence from the trial. He relies upon R. v. Devau and other cases, and the recent case of R. v. Pino.

[45] I will discuss this issue after I have decided whether there was a breach of the defendant's section 9 rights by "overholding" him in the cells.

Section 9 "Overholding" Application

[46] The defendant asserts that his lodging in the cells after his arrest constitutes an arbitrary detention and could not be justified. He therefore states that as a result, I should grant him relief under sections 9 and 24(1) of the Charter and "stay" the charge against him. The breath tests were complete at 17:05 and the defendant was arrested at 17:14. The defendant remained in the cells until 00:08, until he was finally released from custody. That was some 7 hours from the time of the arrest.

[47] In R. v. Sapusak, the Ontario Court of Appeal held that the retaining of a person in custody until his breath readings were down to a safe level for his own protection, did not constitute arbitrary detention. In R. v. Iseler, where an accused was held in detention after arrest for some 11 hours without any police contact, the court was prepared to say that a charter violation was made out. However, the court did not grant a stay.

[48] In R. v. Price, Durno, J. stated that just basing the detention upon the blood alcohol reading was "too narrow a focus". He referred to other considerations including:

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 licence 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.

[49] In our case, the officer gave evidence that the breath readings were the substantial concern. He did not get any information about the defendant's personal circumstances and did not seek out any such information. He did have great concern about the fact that with those very high readings, that the defendant had made the poor decision to drive an automobile. While I have expressed in the past my sympathy with the duty sergeant's concern about the readings and their experience with such high readings, and the fear of making poor decisions, not just that they may commit further crimes, but that harm may come to them if released with such high readings, I think that Price (and the more recent case of R. v. Waisanen), indicates that without some further inquiries, then a Charter breach can be made out. I do however note, and I do consider, that even following the Sergeant's rough calculation of the elimination rate, this defendant should have been released about 1 hour earlier than he was released. That indicates to me that while I appreciate the officer's concerns, he was lax about following through with them.

[50] I have reviewed several cases both at the Ontario Court and Superior Court level and I feel that the facts in this matter disclose a section 9 breach.

[51] The real issue is the issue of remedy. The remedy of a stay is only to be granted in the clearest of cases. In my opinion, this is not one of the clearest of cases. There are a plethora of cases with overholding of up to 11 hours, where the trial (or appellate court judge) has found that the length of time did not make it the clearest of cases. I cannot say that this case (while having some differences to other cases) is so egregious that I should grant a stay.

[52] The defendant argues that even if I do not grant a stay, I should however grant the remedy under 24(2) of an exclusion of the breath results.

Considering Both Breaches Together and Cumulatively

[53] Before the decision in R. v. Pino, supra, I was of the view that the breaches noted above did not trigger the exclusion of evidence under section 24(2) of the Charter, as the evidence (in this case the breath readings) was not "obtained in a manner", and thus this remedy was not available. Justice Harpur in R. v. Devau, was of a different opinion and he was upheld by the summary conviction appeal court.

[54] As per Pino, I must consider the following in deciding whether there is a section 24(2) remedy:

(i) The approach should be generous, consistent with the purpose of s. 24(2);

(ii) The court should consider the entire "chain of events" between the accused and the police;

(iii) The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;

(iv) The connection between the evidence and the breach may be casual, temporal, or contextual, or any combination of these three connections;

(v) But the connection cannot be either too tenuous or remote.

[55] With regard to the "Mok" breach, I find that there is a temporal connection in that the videotaping started as soon as the defendant was placed in the cells and the videotaping of his private functions occurred (in some cases) before the taking of the breath tests. I do find that it is part of the "chain of events" between the accused and the police and I find that the connection is not too tenuous or remote.

[56] With regard to the "overholding" breach, I cannot come to the same conclusion. The overholding did not start, until not only the completion of the breath tests, but sometime after that, considering that even if he was to be released it would have taken some period of time (up to an hour in any event) to process him. In that sense, there is no "temporal connection" and while there is a continuum of the events, it was quite a separate event and a decision made by the sergeant of the detachment, whose focus was on the running of the detachment, and not the investigation of this particular offence. I find that those factors make it too remote.

[57] However, I believe that in performing an analysis under section 24(2) of the Charter, I can (and in fact are obliged) to take into account all of the actions of the police and that would include a Charter breach which, in and of itself would not lead to a consideration (on its own) of an exclusion of evidence.

[58] R. v. Grant provides that in deciding whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term forward-looking and societal perspective. I must have regard to one, the seriousness of the Charter-infringing state conduct (an admission may send the message that justice system condones serious state misconduct), two, the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and three, society's interest in the adjudication of the case on its merits: see Impaired Driving In Canada - The Charter Cases - Kenkel J., page 305.

[59] With regard to the first inquiry, the seriousness of the state infringing conduct, the fact that there are two separate breaches, by itself will increase the seriousness of the conduct. With regard to the section 8 (Mok) breach, I find that it was one of the more serious factual situations in that there was not just a single time when his private parts were exposed, but there were several. The fact that the monitor was available for the viewing of anyone in the secure part of the police station also adds to the seriousness. I am mindful that the police had good reason to video the cells and I am mindful that at the time, there were conflicting decisions on the issues (R. v. Mok had been decided by the Ontario Court and was under appeal), however, clearly the OPP was being notified that these issues were not going away, and perhaps taking some minimal steps in the interim to help to preserve the dignity of persons in their custody may have been appropriate. Such steps (providing a blanket and placing warning signs right in the cells) do not strike me as "budget busting" moves.

[60] With regard to the overholding issue, Justice Durno's decision in Price had been issued in 2010. The few extra steps taken to comply with these requirements should not prevent the police from carrying them out. I note that Price does not say that the breath readings need not be the determining factor, only that other factors should be considered. The police are still free to rely principally on the blood-alcohol readings in making the decision when to release.

[61] As I have already noted, the overholding made the Mok breach more serious, as it increased the number of times that the defendant had to relieve himself while under video surveillance.

[62] Cumulatively, I find that the breaches are serious.

[63] With regard to the second inquiry, the impact of the breach on the Charter-protected interests of the defendant, for many of the same reasons noted above, I find there is a real impact. The Criminal Code provides to the police an obligation to consider release. That is for good purpose as, in this case, the presumption of innocence applies. With regard to the Mok factors, dignity is an important aspect of human existence.

[64] With regard to the third inquiry, society's interest in the adjudication of the case on its merits, I find that drinking and driving cases are all serious in that the potential for human harm and misery which is the result of drinking and driving is well known. That there was no accident and no injury or property damage, is more a case of good luck than good management. This fact would of course, favour inclusion rather than exclusion of the evidence.

Conclusion

[65] Having found two Charter breaches, and having found that one of them is such that I can consider an exclusion of evidence, and having performed the analysis as mandated under Grant, I am of the opinion that the combined effect of these breaches has led directly to a significant loss of human dignity and the deprivation of liberty for more than a transient period of time. It leads me to the conclusion that the admission of the breath test results would bring the administration of Justice into disrepute.

[66] I exclude the breath test results and find the defendant not guilty of the offence as charged.

Signed: "Justice P.N. Bourque"

Released: November 18, 2016