R. v. Dos Santos, 2019 ONCJ 126

CITATION: R. v. Dos Santos, 2019 ONCJ 126

DATE: 2019-01-30

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

THIAGO DOS SANTOS

Before Justice M. Greene

Reasons for judgment sections 8, 9, 24(1) and 24(2) of the Charter

Ms. Verboom and Mr. Janzen ………………………………………………… for the Crown

Mr. Warsoff ….………….………………………………………………… for Mr. Dos Santos

[1] Mr. Dos Santos is charged with driving while having over 80 mg of alcohol in 100ml of his blood. He was also charged with driving while his ability to do so was impaired by alcohol but the Crown invited the court to dismiss this charge at the close of the Crown’s case due to the absence of evidence of actual impairment.

[2] There is no dispute that Mr. Dos Santos was operating a motor vehicle on February 18, 2016 and that his blood alcohol concentration was well over 80, having blown 200mg in 100ml of blood and 190 mg of alcohol in 100ml of blood approximately one and a half hours after operating his motor vehicle. The only issues raised at trial relate to alleged Charter breaches and the potential remedy for these breaches.

[3] Counsel for Mr. Dos Santos argued at trial that the police violated Mr. Dos Santos’ section 8 and 9 Charter rights. First, by keeping him in custody long after it was safe to release him and second, by recording him using the washroom on two occasions without offering him a privacy gown.

[4] Crown counsel argued that the police did not violate Mr. Dos Santos’ section 9 Charter rights when he was held for approximately seven hours. This continued detention was necessary for Mr. Dos Santos’ safety. Crown counsel did concede that Mr. Dos Santos’ section 8 rights were violated when he was recorded using the toilet in his cell but argued that the remedy should not be exclusion of the evidence or a stay of proceedings.

Summary of the Evidence

[5] On February 18, 2016, Mr. Dos Santos was seen driving his motor vehicle at Dovercourt Road and Dundas Street West in Toronto. He was pulled over because he had been speeding. During the stop, the officer detected an odor of alcohol on Mr. Dos Santos’ breath and made a demand that Mr. Dos Santos provide a sample of his breath into an ASD. Mr. Dos Santos provided the sample and it registered as a fail. As a result, Mr. Dos Santos was arrested for operating a motor vehicle while having over 80mg of alcohol in his blood.

[6] Mr. Dos Santos was taken to traffic services where he provided two samples of his breath into the Breathalyzer. He registered a reading of 200 mg of alcohol in 100ml of blood at 2:18 am and a reading of 190mg of alcohol in 100 ml of blood at 2:40 am. The arresting officer then completed the paper work for Mr. Dos Santos’ release. At 3:33 am. Sgt. Lima decided that Mr. Dos Santos could not be released due to his level of intoxication. Mr. Dos Santos was taken to14 division to be held until he sobered up. Upon arriving at 14 division, he briefly spoke to the officer in charge of the station and then was lodged in a cell.

[7] The cells in 14 division are recorded and the video feed from the cell is displayed on monitors in different areas of the division so that officers and civilian employees can see what is taking place in the cells. On February 18, 2016 there was a policy in place that every detainee was to be told about the recording devices in the cells and they were to be offered a privacy gown to use if they had to use the toilet. In the case at bar, Mr. Dos Santos was provided with the usual caution upon entry into the station about general recording within the division. He was not given the additional caution about recording devices in the cells nor was he provided any information about the privacy gown.

[8] On two occasions, while detained in the cell, Mr. Dos Santos used the toilet. Once to urinate and once to defecate. This was captured on camera, displayed on the monitors in the division and recorded. At one point, Mr. Dos Santos waved at the camera in order to capture the attention of one of the police officers. When an officer finally noticed him, Mr. Dos Santos asked for some toilet paper. Despite it now being obvious that Mr. Dos Santos was going to use the toilet, the officer still failed to offer him a privacy gown. Mr. Dos Santos was then captured on the recording using the toilet to defecate.

Issues raised at trial

[9] The issues at trial were as follows:

a) Were Mr. Dos Santos’ rights as guaranteed by section 9 of the Charter violated when the police failed to release him from the station after providing his last breath sample?

b) Was Mr. Dos Santos’ right to privacy as guaranteed by section 8 of the Charter violated when he was recorded using the toilet in his cell on two occasions?

c) What remedy, if any, should be granted as a result of the Charter breaches?

Section 9 of the Charter – Over holding

[10] Mr. Dos Santos was arrested at 1:17 a.m. He was taken to Traffic Services and provided two samples of his breath with his last sample being taken at 2:40 a.m. Mr. Dos Santos’ readings were very high. As a result of his high readings, his unsteadiness on his feet and his slow speech, Sgt. Lima decided that Mr. Dos Santos could not be released on his own. Either someone had to pick him up or he had to remain in custody until it was safe to release him.

[11] Sgt. Lima asked Mr. Dos Santos if he wanted to call anyone to pick him up. Mr. Dos Santos asked for his cellular telephone so he could contact someone. Sgt. Lima asked another officer to retrieve Mr. Dos Santos’ phone. None of the officers that testified at trial could recall whom, if anyone, did in fact retrieve Mr. Dos Santos’ telephone. Mr. Dos Santos testified that his phone was not provided to him nor was he given any opportunity to contact a family member or friend to pick him up. Sgt. Lima testified, however, that he was told by an officer that no one could pick up Mr. Dos Santos. After receiving this information Sgt. Lima made the order for Mr. Dos Santos to be held in custody until he was sober enough to get home safely. Once this decision was made, Mr. Dos Santos was transported to 14 division.

[12] Det. Hanlon was the officer in charge at 14 division. She saw Mr. Dos Santos briefly when he was brought in at 3:44 a.m. She did not assess him for his level of intoxication as the decision had already been made to hold him. She, however, from her brief interaction with Mr. Dos Santos had no safety concerns when she saw him. She did not notice any unsteadiness on his feet, slurred speech, or unpredictable behaviour. Det. Hanlon testified that once Mr. Dos Santos was lodged in a cell, it was not her responsibility to monitor him. He was to be checked on every 30 minutes by the booker.

[13] The booker, however, did not testify at trial. A video of the cell where Mr. Dos Santos was lodged was reviewed by counsel. According to an agreed statement of fact filed with the court, an officer attended at the cell at 4:16 a.m. At 7:49 a.m. and again at 7:54 a.m., Mr. Dos Santos is seen on the video waving in the direction of the camera in the cell. At 7:56 a.m. an officer attended at the cell, provided Mr. Dos Santos some toilet paper and within 30 seconds left. No one else attended at the cell again until 9:48 a.m. when Mr. Dos Santos was released.

[14] Mr. Dos Santos was effectively detained at 14 division for six hours and was only checked on once – at 4:15 a.m.

[15] Pursuant to section 498 of the Criminal Code, an arrested person must be released from custody as soon as practicable unless the police have reasonable grounds to believe that the arrestee’s continued detention is necessary in the public interest. It is well accepted that it is permissible for the police to detain a person charged with impaired driving who is too intoxicated to get home safely. In determining whether it is necessary to hold an intoxicated detainee, the officer in charge must consider all the circumstances. In the case at bar, Sgt. Lima testified that Mr. Dos Santos’ readings were very high, he was unsteady on his feet and had slurred speech. Moreover, when asked if he was alright, Mr. Dos Santos indicated that he was unsure. I am satisfied that Sgt. Lima had sufficient ground to detain Mr. Dos Santos when he assessed him shortly after the breath readings were obtained. I appreciate that no one could recall the details around Mr. Dos Santos’ obtaining his telephone to call someone for a ride. Nonetheless I am satisfied that Sgt. Lima properly believed that no one could pick him up. Sgt. Lima instructed an officer to obtain Mr. Dos Santos’ phone and he was later told that no one could pick him up. While Mr. Dos Santos could not recall having an opportunity to call a family member or friend, given his level of intoxication at the time, it is my view that his evidence on this point is not reliable.

[16] I find, however, that there is no evidence that Mr. Dos Santos’ detention was necessary in the public interest for the entirety of the six hours that he was detained at 14 division. This is because no one at 14 division appears to have made any assessment of Mr. Dos Santos and as such there was no evidence that during the entirety of these six hours he was too intoxicated to be released safely.

[17] Det. Hanlon testified that she did not assess his level of intoxication or his ability to be safely released when he arrived at 14 division. She also testified that she did not check on him while he was in her custody. No other officer testified about checking on Mr. Dos Santos and according to the video of the cell where Mr. Dos Santos was detained, during his six hours in a cell there, he was only seen twice. Once at 4:15 when he was seen for three minutes and once after 7:00 am when he was provided toilet paper. In my view, the brief encounter at 7:00 am does not amount to an attempt to assess Mr. Dos Santos’ ability to get home safely. This was a 30 second exchange where Mr. Dos Santos was handed some toilet paper. I therefore find that from 4:15 a.m. until his release at 9:48 a.m., no one attempted to assess whether it was in the public interest to continue the detention of Mr. Dos Santos.

[18] As I understand the law, having made the decision to hold Mr. Dos Santos in custody for his own safety, the police were required to assess him at reasonable intervals so that he could be released as soon as practicable – that is within a reasonable time of the safety concerns related to his level of intoxication abating (R. v. Iseler, 2004 34583 (ON CA), [2004] O.J. No. 4332 (CA).) In R. v. Iseler, the Court of Appeal stated that it was inexcusable that the police failed to monitor Mr. Iseler at all during the 11 hours that he was in custody (R. v. Iseler, supra at paragraph 31). In light of the complete absence of any assessment or monitoring of Mr. Dos Santos after 4:15 a.m., I am satisfied that Mr. Dos Santos has met his burden and established an arbitrary detention for a portion of the time that he was detained at 14 division. I appreciate that in the case at bar, Mr. Dos Santos was only at 14 division for approximately six hours and had not been monitored for only 5 ½ hours. I also appreciate that the police do not have to release a detainee at the exact moment that the detainee becomes sober enough to travel home on his/her own. While this may reduce the seriousness of the Charter breach and the impact that breach had on Mr. Dos Santos, it does not make the detention lawful. A lot can change in five hours. The police were required to monitor Mr. Dos Santos at regular intervals so that he could be released as soon as practicable. This was not done in the case at bar.

[19] While I have found a section 9 breach, in my view this is a relatively minor breach that would not have resulted in a remedy under either section 24(1) or 24(2) of the Charter.

Section 8 of the Charter

[20] In the case at bar, the Crown conceded that Mr. Dos Santos’ rights as guaranteed by section 8 of the Charter were violated when he was recorded using the toilet in his cell on two occasions without being offered a privacy shield. This concession is reasonable given the decision in R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44 (S.C.J.), where it was held that videotaping a detainee using the washroom where their genitalia is exposed is a violation of section 8 of the Charter. Despite this concession, it is still important to review the police action that amounts to the breach. Det. Hanlon testified that, according to a recent policy, she was required to inform a detainee that the cells are recorded and offer a detainee a privacy gown to cover him/herself while using the toilet in the cell. Det. Hanlon failed to advise Mr. Dos Santos of the recording and failed to advise him about the privacy gown. She testified that the policy was new and she mistakenly forget to do this, though she had checked her notes and did make this offer to other detainees (though it was unclear if she made this offer to all other detainees). At no point during the rest of her shift did it dawn on the Detective that she should check on Mr. Dos Santos to see if he needed a privacy gown despite the fact that he was in a cell for six hours. Moreover, and in my view more problematic, later that morning an officer clearly knew that Mr. Dos Santos was about use the toilet because he brought Mr. Dos Santos toilet paper yet this officer did not ask Mr. Dos Santos if he required a privacy gown. It appears that no one at 14 division turned their mind to Mr. Dos Santos’ privacy rights during his six hour detention there.

[21] According to an agreed statement of fact, Mr. Dos Santos was not specifically told that the cells were being recorded (though Mr. Dos Santos clearly knew that there was a camera in the cell). The recording of the cell captured Mr. Dos Santos urinating at 7:43 a.m. It also captured Mr. Dos Santos trying to get someone’s attention at 7:49 a.m. and 7:54 a.m. The video also captured an officer bringing Mr. Dos Santos toilet paper at 7:56 a.m. and then as soon as the officer leaves, Mr. Dos Santos is captured on camera using the toilet to defecate from 7:56 a.m. until 7:59 a.m. According to the agreed statement of facts, Mr. Dos Santos’ genitalia and buttocks are visible at times and he was observed wiping his buttocks from both the front and back position.

Section 24(2) of the Charter

[22] In order to obtain a remedy under section 24(2) of the Charter, the Applicant must first establish that evidence was obtained in a manner that infringed the Charter. In R. v. Pino, 2016 ONCA 389, the Court of Appeal held that a causal connection between the Charter infringing conduct and the evidence is not required under 24(2). A temporal connection can be sufficient. In R. v. Cheema, 2018 ONSC 229, [2018] O.J. No. 121 (S.C.J.), however, applying the reasoning from R. v. Iseler, supra, Justice Barnes held that Charter breaches linked to the over holding of a defendant after an arrest for impaired driving are not causally or temporally linked to the breath readings obtained hours earlier and as such, a section 24(2) remedy is unavailable.

[23] In the case at bar, like in both the above cases, the Charter offending conduct took place hours after the breath readings were obtained. I cannot find that there is a temporal or causal link between the offending conduct and the breath readings. Moreover, the admission of the breath readings does not affect the fairness of the trial. I therefore find that a remedy under section 24(2) of the Charter is not available.

Section 24(1) of the Charter

[24] Counsel for Mr. Dos Santos argued that given the presence of two Charter breaches and the seriousness of the section 8 breach, the only appropriate remedy is a stay of proceedings. Crown counsel argued that a stay of proceedings is not appropriate given the limited harm suffered by Mr. Dos Santos, the fact that it was a good faith error and the absence of any evidence of a systemic problem.

[25] The test for a stay of proceedings was summarized by the Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (CA) at paragraph 57,

(1)There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

[26] The section 8 breach involved in the case at bar falls under the residual category of cases that may attract a stay of proceedings. (R. v. Mok, 2012 ONCJ 291, [2012] O.J. No. 2117 (O.C.J.)). When dealing with the residual category, a stay of proceedings will only be appropriate where “the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice” (See also R. v. Reagan, 2002 SCC 12, [2002] 1 S.C.R. 297). Moreover, a stay of proceeding is generally reserved for only the clearest of cases where no other remedy will suffice.

[27] In R. v. Mok, supra, Boswell J. held that despite the fact that Ms. Mok was fully exposed in the video, that she did not know she was being recorded and that she suffered a significant invasion of her privacy, a stay of proceeding was inappropriate. In reaching this conclusion, the court noted that Ms. Mok was highly intoxicated and that had she not been so intoxicated, she likely would not have been so exposed while using the toilet. The court also noted that this was the first case where the police were being advised that it was contrary to the Charter to video record detainees in their cells while using the washroom. Finally, the court noted that there is a strong societal interest in having a trial on its merits given the gravity of the offence before the court.

[28] To some extent the facts in the case at bar can be distinguished from the facts in R. v. Mok in a way that suggests the breach in the case at bar is less serious than the breach in Mok. Firstly, in the case at bar, Mr. Dos Santos appears to have had some appreciation that he was being monitored when he used the toilet and secondly, he was not as intoxicated as Ms. Mok. In my view the fact that Mr. Dos Santos knew there was a camera in his cell does not significantly detract from the seriousness of the Charter breach. Mr. Dos Santos testified that he felt that he had no choice but to use the washroom the way he did. He had to use the toilet, he felt that he was unable to use his coat to effectively cover himself and he had no other means to protect his privacy as he had no way of knowing that he could ask for a privacy gown.

[29] On the other hand, by the time Mr. Dos Santos was arrested the decision in R. v. Mok condemning this police practice had already been released and steps had been taken to change the police practice of video-taping detainees using the toilet in their cells by requiring officers to make available a privacy gown to all detainees. This procedure was just not followed in the case at bar. Moreover, the section 8 breach occurred at a time when Mr. Dos Santos was already being unlawfully detained at the station.

[30] In my view, the following factors are particularly relevant and make this breach very serious:

a) While I accept that detective Hanlon forgot to tell Mr. Dos Santos about the privacy gown, in my view this was an important step that she forgot and shows a lack of concern for Mr. Dos Santos’ privacy.

b) At the time that Det. Hanlon failed to mention the privacy gown, this same officer also failed to independently assess whether Mr. Dos Santos still needed to be detained for his own safety and failed to ensure that he was being regularly assessed so that he could be released as soon as it was safe to do so.

c) Another officer clearly knew that Mr. Dos Santos was going to use the toilet because Mr. Dos Santos called out for him in order to obtain some toilet paper, yet this officer also failed to turn his mind to providing Mr. Dos Santos with a privacy gown.

d) There is no evidence that any officer checked on Mr. Dos Santos between the hours of 4:30 a.m. and 9:50 am to see if he was able to get home safely.

[31] In my view, this evidence as a whole shows a blatant disregard by the officers working that morning towards Mr. Dos Santos’ Charter rights. It is shocking that the two officers that had contact with Mr. Dos Santos at 14 division both failed to turn their minds to Mr. Dos Santos’ privacy rights and his need for a privacy gown. The first error may fall under the adage of “mistakes happen” but when a second officer shows the same lack of concern for Mr. Dos Santos’ privacy, in my view, a pattern starts to emerge.

[32] I am mindful that there are a number of factors that support the Crown’s position that a stay of proceedings is not warranted. These include the seriousness of the offence and the high societal need for a trial on its merits; the fact that the fairness of the trial is not affected by the breaches and the fact that there is no suggestion that this is a broader systemic issue. Moreover, I further note that Mr. Dos Santos, while clearly harmed by the breaches, does not appear to have suffered severe psychological harm as a result of these breaches. Despite these factors, the pattern of disregard for Mr. Dos Santos’ privacy rights and the nature of the breach is so serious that a stay of proceedings is necessary. In my view, the combined breaches are so serious that moving forward with this prosecution would offend society’s sense of justice. Not only is it troubling that two officers failed to offer Mr. Dos Santos a privacy gown but it is also problematic that there is no mechanism in place like a check list or a reminder sheet to protect against this kind of error. When I consider all the factors, in my view this is one of the clearest of cases where a stay of proceedings is the appropriate remedy. I therefore grant the defendant’s application and order a Stay of Proceedings.

Released January 30, 2019 __________________________

Justice M. Greene