Court File and Parties

Date: April 29, 2019

Court File No.: Toronto 4815-998-18-27814

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Lincoln Carr

Before: Justice Paul H. Reinhardt

Heard on: 13, 14 February, 12, 15 March 2019

Reasons for Judgment released on: 29 April 2019

Counsel:

• Stuart Rothman, for the Crown
• Mayssia Ahmed El-Ajami, for the accused

REINHARDT J.:

Charges

[1] Lincoln Carr is charged that on or about 28 January 2018, at the City of Toronto, in the Toronto Region:

(1) While his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle and thereby commit an offence under Section 253, subsection (1), clause (a) of the Criminal Code of Canada; and further,

(2) Having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary and thereby commit an offence under Section 253, subsection (1), clause (b) of the Criminal Code of Canada.

Evidence Heard

[2] In this proceeding I heard evidence from:

(1) Grazia Consagra; (2) O.P.P Constable Daniel Terriss, Badge #14276; (3) Marcus Kirton; (4) O.P.P. Constable Kevin Noh, Badge #14557; (5) O.P.P. Constable Troy Noakes, Badge #14556; (6) O.P.P. Constable Jun Choe, Badge #12304; (7) Lincoln Carr;

Exhibits

[3] As part of the evidence, the following exhibits were filed:

(1) Toxicology Letter of Opinion, Karryn Wall, B.Sc., Forensic Scientist, Toxicology, Centre of Forensic Sciences;

(2) Booking/Breath Room/Cells O.P.P. Detachment, DVD Video;

(3) Still Shots from Cell 2, DVD Video:

• (a) (4:51:46) Constable Choe at Cell 2 bars, Mr. Carr on Cell bed in conversation;
• (b) (4:51:48) Constable Choe pointing to Cell 2 Camera, while speaking to Mr. Carr;
• (c) (6:09:56) Mr. Carr, in Cell 2, urinating in toilet, with blanket protecting his privacy;

Findings and Disposition

[4] I have reviewed the evidence and concluded that the Crown has not proven Count 1, but has made out its case against Mr. Carr to the Criminal standard, on Count 2. As a result, Count 1 is dismissed, and I have made a finding of guilt on Count 2. Let me explain how I have reached this result.

ISSUES IN DISPUTE

Defence

[5] In this proceeding, the defence submits that the Crown has not proven that Mr. Carr ability to operate his motor vehicle was impaired.

[6] In addition, the defence has brought an Application under the Canadian Charter of Rights and Freedoms, alleging that:

The Arrest: Sections 8, 9 & 24(2)

The defence submits that during the first interaction with Mr. Carr, Constable Terriss:

(a) did not have reasonable and probable grounds ("RPG") to arrest Mr. Carr for impaired driving;

The defence therefore seeks exclusion of the Intoxilizer readings;

The In-Cell # 2 Camera Surveillance: Sections 7, 8 & 24(1)

The defence submits that Mr. Carr's right to personal privacy and security of his person was violated when he was videotaped while urinating in the O.P.P. Detachment cells.

The defence therefore seeks a stay of the proceedings, or in the alternative, the exclusion of the Intoxilizer readings;

[7] Accordingly, the defence is seeking relief pursuant to Section 24(2) and 24(1) of the Charter.

[8] The defence submits that if the "In Cell Camera" Charter application establishes a breach, but this Court is not inclined to grant a stay, that the lesser remedy of the exclusion of the Breath Room Intoxilizer readings, Breath technician observations and utterances by Mr. Carr be granted under Section 24(2).

[9] The defence does not dispute the findings in the Toxicology Letter of Karryn Wall, Exhibit 1, and concedes that if the two-part Charter application is not successful in obtaining remedial relief, that the Crown has proven Count 2, "Over 80".

Crown

[10] The Crown resists the two Charter applications.

[11] The Crown submits that the trial evidence proves that the arresting officer, Constable Terriss had the requisite RPG to arrest Mr. Carr for impaired driving, and thus there was no roadside Charter breaches, but if there have been, the section 24(2) Remedy of exclusion of evidence should not be granted.

[12] The Crown further submits that the defence has not established on a balance of probabilities that Mr. Carr's right to personal privacy was breached in the O.P.P. detachment cells.

[13] The Crown further submits that if the court finds that there was a breach, that the remedy of a stay should not be granted, nor evidence excluded.

[14] The Crown submits that the Crown witnesses provided credible and reliable evidence, informed Mr. Carr that he was under video surveillance when he used the cell toilet, and provided him with the means to protect his privacy, with a privacy gown & blankets.

[15] The Crown further submits that the trial evidence proves to the criminal standard that Mr. Carr was guilty of both counts on which he was arraigned.

SUMMARY OF THE EVIDENCE

Charter Application & Over 80

Section 254 (3) RPG – Impaired Driving

[16] The initial testimony called in this trial concerned the events at the scene of the accident, including the testimony of Grazia Consagna who witnessed the initial crash and called 911, the testimony of paramedic Marcus Kirton, who attempted, with limited success, to assess Mr. Carr's possible injuries and provide emergency medical assistance at the roadside, as well as the testimony of OPP constables Kevin Noh and Troy Nookes, who arrived on scene and were attempting to secure the area, while Constable Terriss dealt directly with Mr. Carr.

Constable Daniel Terriss

[17] Constable Terriss testified that in the early morning hours of 28 January 2018 he was on general patrol without an escort, driving his service vehicle in the area of Rexdale and Derry Road.

[18] He testified that at 3:13 in the morning he received information from his dispatcher that there was a 911 caller who reported a single vehicle roll-over in which the driver was walking in the vicinity of the vehicle, and was possibly impaired, at the Highway 427 Northbound access ramp near Derry Road.

[19] Constable Terriss testified that he arrived on scene at 3:23 A.M. and observed debris in the centre and right lanes of the 427 and a black SUV motor vehicle, precariously balanced upside down on its roof.

[20] Constable Terriss testified that he there was no other vehicle involved, and no collision.

[21] He testified that he observed that the driver's door was open, all windows shattered, and the vehicle appeared completely demolished.

[22] Constable Terriss testified that when he arrived there were fire, EMS, and MTO vehicles and personnel already at the scene.

[23] He testified that he observed Mr. Carr seated in a muddy, grassy area of the right shoulder of the 427 northbound, where Rexdale Boulevard westbound on-ramp entered on to the 427, speaking to police officers, Constables Noh and Noakes.

[24] Constable Terriss testified that he next observed Mr. Carr stand up, leaving the officers and walk over to the vehicle, where he crawled on his stomach over glass and debris through the driver's side door frame of the crushed, unstable vehicle.

[25] Constable Terriss testified that as Mr. Carr did this he was yelling that he had to get his phone.

[26] Constable Terriss testified that he, in turn, attempted to get Mr. Carr's attention, and told him repeatedly to get out of the vehicle for his own safety.

[27] Constable Terriss testified that Mr. Carr ignored him, despite the fact that the car lights were on, and the vehicle unstable.

[28] Constable Terriss testified that after a brief pause in his activity inside his overturned vehicle, Mr. Carr crawled back out, quickly jumped up and began yelling profanities at the officers, claiming he was afraid he was going to be shot.

[29] Constable Terriss testified that he was at this point right next to Mr. Carr, facing him, approximately two feet to an arm's length away, and trying to calm him down.

[30] Constable Terriss testified that he could smell a strong odour of alcohol on Mr. Carr's breath, and observed his eyes to be bloodshot and watery and his speech slow and slurred.

[31] Constable Terriss testified that Mr. Carr then began to back away from him, and over the next five to eight minutes resisted all efforts by the firefighters, EMS paramedics and police to assist or interview him.

[32] Constable Terriss testified that at 3:31, some eight minutes after he had arrived on scene, he formed the subjective grounds to arrest and told Mr. Carr that he was under arrest for impaired driving.

[33] Constable Terriss testified that he did not handcuff Mr. Carr at this point, and did not have a concern about officer safety, but did have an immediate concern for Mr. Carr's safety due to the very serious accident and his observed erratic behaviour thereafter.

The In-Cell Camera & Section 8 Cell Toilet Privacy

[34] OPP Downsview detachment, 2682 Keele Street, Toronto, has a 24/7 video surveillance system which records most of what happens at the detachment. During the time an accused person is in custody, during the arrival, booking, investigation and lodging at the detachment, the citizen is always under surveillance by video cameras.

[35] Most of the video surveillance is only recording visual images.

[36] Only certain video surveillance locations, namely the booking desk and the breath room include audio recording.

[37] Thus, the rest of the footage, including Booking Room 2, and the Cell 2 camera footage, only depicts and records photographic images, without audio recording.

[38] For the purposes of this trial proceeding, the Crown, as part of the evidence, filed as Exhibits 2 & 3, Booking, Breath Room and Cell 2 DVD video footage, much of which was examined and testified about during this proceeding.

[39] These exhibits were played in court, and commented on by witnesses who were depicted in the video footage.

[40] Exhibits 2 & 3 therefore include footage of Mr. Carr urinating in his cell toilet as well as much of his interaction with the Crown witnesses Terriss & Choe at the detachment.

[41] This video footage is relied upon by both the Crown and the defence, and as trial evidence records the sequence of events both before and during Mr. Carr's use of the toilet in his cell, Cell 2 at the OPP Downsview Detachment.

[42] This video footage is a record of the impugned activity in the defence's Charter Application, herein, as well as footage of some of the interaction between Mr. Carr and police constables Terriss and Choe at material times surrounding the impugned activity.

[43] To summarise, the Cell 2 Video footage depicts the following regarding Mr. Carr's use of his cell toilet:

(1) [4:21:19 to 4:22] – Mr. Carr can be seen urinating in the toilet, with his genitals in full view of the camera;

(2) [5:27:53 to 5:28:29] – Mr. Carr is again urinating with his genitals in full view of the camera;

(3) [6:09:44 to 6:10:39] – Mr. Carr goes toward the toilet, appears to take notice of the camera, and turns his back to the camera, before urinating, his genitals not in camera view;

Constable Daniel Terriss

[44] Constable Terriss testified that he left the scene of the accident with Mr. Carr at 3:54 A.M. and arrived at the Toronto O.P.P. Detachment at 4:07 A.M.

[45] Constable Terriss testified that he took Mr. Carr into Booking Room 2 at the detachment, where he carried out a number of tasks including the reading to Mr. Carr three cautions.

[46] Constable Terriss testified that the final caution was a "Video Surveillance" caution which included forming Mr. Carr that at all times that he is in the cell area he will be video-recorded and that this includes when he is using the cell toilet.

[47] Constable Terriss testified that after he read Mr. Carr this caution he showed Mr. Carr a privacy gown which covers up the prisoner and allows the detainee to use the toilet in the cell without exposing themselves on camera.

[48] Constable Terriss testified that during the explanation Mr. Carr made no direct response, regarding the gown, but asserted that the law was there to "fuck people over".

[49] After Constable Terriss initially testified as to the "Video Surveillance" caution, the Crown played in court portions of the video surveillance footage, including those portions summarized above.

Constable Jun Choe

[50] Constable Jun Choe is a qualified breath technician and on 28 January 2018 he was working in that capacity in the breath room at the OPP Downsview detachment, 2682 Keele Street, Toronto.

[51] Constable Choe testified that at 4:15 AM Mr. Carr was brought into the OPP breath room, and he was cautioned on the fact he was under arrest for the two counts before the court, and had the right to remain silent, and to speak to a duty counsel or a lawyer of his choice.

[52] Constable Choe testified that Mr. Carr initially advised him that he did not wish to speak to duty counsel, but did wish to speak to his wife and obtain a lawyer, with her assistance, prior to proceeding with the testing.

[53] Constable Choe testified that he asked that Constable Terriss make contact with Mr. Carr's wife to allow Mr. Carr to speak to her, prior to any breath testing.

[54] Constable Choe testified that after speaking to his wife, Mr. Carr returned to the breath room and advised that he wished to speak to duty counsel, and was afforded that opportunity, prior to proceeding with any tests.

[55] Constable Choe testified that Constable Terriss contacted duty counsel and Mr. Carr spoke to duty counsel before commencing with the breath tests.

[56] Constable Choe testified that during the course of his time with Mr. Carr, he found Mr. Carr to be slurring his words, and in his opinion, Mr. Carr was drunk.

[57] Constable Choe also testified that, in his opinion, Mr. Carr's ability to operate a motor vehicle was impaired by the consumption of alcohol.

[58] Constable Choe also testified that he obtained two suitable samples of Mr. Carr's breath, at 5:15 and 5:38 AM, respectively, of 138 and 122 milligrams of alcohol in 100 millilitres of blood.

The In-Cell Camera & Section 8 Cell Toilet Privacy

[59] Constable Choe testified that prior to his administration of the two breath tests to Mr. Carr, he lodged Mr. Carr in Cell 2, and told him of the location of the Cell 2 camera.

[60] Constable Choe testified that during this explanation, for Mr. Carr's understanding, he pointed to the actual location of the video camera lens outside the cell, proper.

[61] Constable Choe testified that he explained to Mr. Carr that everything he did in the cell would be captured by the Cell 2 camera.

[62] Constable Choe testified that he told Mr. Carr that if he had to use the toilet, he should use the "privacy gown" provided to him.

[63] Constable Choe testified that he also told Mr. Carr, at this time, that if he had concerns with this arrangement, he could request to use a private washroom nearby.

Lincoln Carr

The Section 7, 8 & 24 Charter Voir Dire

[64] In this proceeding Mr. Lincoln Carr testified in a Charter Voir Dire Hearing in support of his application to stay the proceedings, or in the alternative, exclude his breathalyser readings, due to the Cell 2 Camera videotaped capture of his alleged unintentional exposing of his genitals, twice, while urinating in his cell toilet, while in custody.

[65] Mr. Carr is fifty-one years old, with an Engineering degree from De Vrie University.

[66] He has been in a common-law relationship for twenty years, the father of five children, and lives with his family in Brampton.

[67] Mr. Carr testified that the driving accident that brings him to court was very traumatic, and he continues to suffer from flashbacks and trauma due to the accident.

[68] Mr. Carr testified that when he arrived at the OPP Detachment he immediately advised Constable Terriss that he had to use the bathroom facilities and Constable Terriss told him he would have to wait until "we get there".

[69] Mr. Carr testified that he recalls being taken to a room inside the detachment and asked to remove his belt, jacket and shoes.

[70] Mr. Carr testified that during the initial stages of his detention at the OPP detachment he was disoriented and trying to comprehend what had happened back on the highway.

[71] He testified that, in his own words, he was in shock, "up and down" and couldn't "think straight".

[72] Mr. Carr testified that he recalls initially being told by Constable Terriss when he arrived at the detachment that there were recording cameras in the detachment, but was not initially told there were cameras in the cell area.

[73] Mr. Carr testified that he couldn't remember clearly what Constable Terriss said to him, on a later occasion, but "vaguely" recalls Terriss opening a drawer in the room to which he had been taken sometime later, and being shown what he believed was a blanket.

[74] Mr. Carr testified that he recalls being told he could use the blanket when he was in his holding cell, but did not believe it was ever explained to him that the blanket was to protect his private parts from view by the video surveillance camera, when he was using the cell toilet.

[75] Mr. Carr testified that he was then taken to the holding Cell 2, and he needed to immediately use the toilet, and did so, without shielding his private parts.

[76] Mr. Carr, in chief, was asked by his counsel when he first became aware that his activities in the cell were being recorded by a camera.

[77] Mr. Carr told his counsel that at some point, later on, when he was in Cell 2, he became aware that there was a camera pointing at him, because he could see the "shadow" of a camera behind a glass fitting, outside the cell.

[78] When asked by his counsel as to when he realized he was being recorded in his cell he told counsel that he recalled Constable Terriss telling him that there were cameras in the cell area, recording him.

[79] Mr. Carr testified that, once he saw the "shadow", he was able to figure it out that what he saw behind the glass fitting was, in fact, a camera, recording him, while he was in the cell.

[80] His counsel then asked Mr. Carr whether he had ever watched the footage of what the camera recorded of his activities while in the cell at the detachment.

[81] Mr. Carr testified in court that when the case was coming to trial he watched with counsel the disclosure footage and felt it was degrading.

[82] Mr. Carr testified that when he realized he was captured on camera twice, while urinating, he was shocked and devastated.

[83] Mr. Carr testified that in his work as an engineer, he is very aware that surveillance cameras are monitored, periodically, by security staff, and this increased his devastation.

[84] His counsel then asked Mr. Carr whether he had, while under arrest at the OPP Detachment, taken any steps to hide his private parts, once he realized there was a camera facing the interior of his cell.

[85] Mr. Carr testified and confirmed the video evidence in Exhibits 2 & 3 that on the third occasion he had need of relieving himself, in the cell, he had covered himself with a blanket, and turned his back to the camera, to avoid the surveillance camera.

[86] In response to further questions in chief, by counsel, Mr. Carr testified that he does not normally expose his body parts, and thus feared that the cell footage might end up on "You Tube".

[87] His counsel then asked Mr. Carr where he had obtained the blanket that he used to shield his private parts on the third occasion that he had used the toilet in the cell.

[88] Mr. Carr testified that when Constable Terriss had initially taken him to his cell, Terriss had placed his shoes, belt and jacket and the blanket in question in a "bin", outside the cell.

[89] Mr. Carr initially testified in chief that he was positive that it was he, not Constable Terriss, who brought the blanket into the cell that he used to protect his privacy.

[90] On further questioning from his counsel, Mr. Carr could not say, what if anything Constable Terriss brought into the cell when he first was placed in Cell 2.

[91] His counsel also asked Mr. Carr to tell the court what the Breath Tech, Constable Choe, had told him about the video camera recording him while he was in the cell.

[92] Mr. Carr testified that Constable Choe, in his words:

"He said the same thing as Constable Terriss, but not where the camera was"

[93] Mr. Carr testified that Constable Choe took him back to the cell twice, but could not recall anything being said the second time.

[94] In cross-examination, Mr. Carr testified that Constable Terriss did not tell him about a privacy gown initially, only about a blanket.

[95] He further asserted that he did not recollect Constable Terriss placing anything in the cell area, but only items on a bin outside the cell.

[96] Under further cross-examination, he conceded that Constable Terriss could have placed items in the cell, itself, but because of his trauma, head and leg injury, he may have not recalled accurately what had happened.

[97] Under further cross-examination, he also conceded that Constable Terriss may have told him that he was being video recorded while in his cell.

[98] Later in cross-examination, Mr. Carr was shown a screen shot, Exhibit 3(b) at 4:51:48, which depicted Constable Choe pointing to the Cell 2 camera, while in conversation with Mr. Carr.

[99] Mr. Carr conceded to counsel that it was after being told this by Constable Choe, that he used the toilet for the second time, without concealing his private parts from the camera.

LEGAL FRAMEWORK

The Relevant Statutory Provisions

Criminal Code Provisions

Section 253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

Charter of Rights and Freedoms

Legal Rights

Life, liberty and security of person

Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Search or seizure

Section 8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

Section 9. Everyone has the right not to be arbitrarily detained or imprisoned.

Enforcement

Enforcement of guaranteed rights and freedoms

Section 24(1). 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.

Exclusion of evidence bringing administration of justice into disrepute

Section 24(2). Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

CASE LAW

Cases on Excessive Invasion of Privacy, Contrary to Section 8

The Protected Interest

[100] The protection of the citizen against unwarranted state interference with personal privacy and bodily integrity has long been established in our law as the most important aspect of privacy protected by the Charter. Two of Canada's most respected jurists make this clear in the following two quotes.

[101] In R. v. Tessling, 2004 SCC 67, Justice Ian Binnie stated:

Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. As La Forest J. stated in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-28, "[t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state."

The midnight knock on the door is the nightmare image of the police state. Thus it was in 1763 that in a speech before the British Parliament, William Pitt (the Elder) famously extolled the right of everyone to exclude from his private domain the forces of the King:

The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail -- its roof may shake -- the wind may blow through it -- the storm may enter -- the rain may enter -- but the King of England cannot enter! -- all his force dares not cross the threshold of the ruined tenement!

(Lord H. Brougham, Historical Sketches of Statesmen Who Flourished in the Time of George III (1855), vol. I, at p. 42)

[102] The principle of bodily integrity was directly addressed by Justice Peter Cory in R. v. Stillman, [1997] S.C.J. No. 34:

I agree with that position. It has often been clearly and forcefully expressed that state interference with a person's bodily integrity is a breach of a person's privacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification. In R. v. Pohoretsky, [1987] 1 S.C.R. 945, at p. 949, Lamer J., as he then was, noted that, "a violation of the sanctity of a person's body is much more serious than that of his office or even of his home".

The Remedy of a Stay – Analytical Framework

[103] The Ontario Court of Appeal's per curia ruling in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 provides an analytical framework for considering whether a stay should be granted under Sections 7 & 8 of the Charter. The court's analysis is set out in their decision starting at paragraph 57:

57 From the above cases in the Supreme Court, the following principles emerge:

(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.

[58] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.

[59] When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity.

[60] However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

[61] Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category.

The Exclusionary Principles under 24(2)

[104] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, at paragraph 71, Chief Justice McLachlin and Justice Louise Charron enumerate the principles that must be applied when considering exclusion under s. 24(2) of the Charter:

71 A review of the authorities suggests that 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. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) 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

(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[105] In the first example of the Supreme Court of Canada applying these principles to exclude, in R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, released at the same time as R. v. Grant, supra, Chief Justice Beverley McLachlin applied the principles and concluded that the weighing of the factors favored exclusion. She stated at paragraph 3 of her decision:

3 Applying the framework in Grant to these facts, I am satisfied that the balance mandated by s. 24(2) favours exclusion of the evidence. It is true that the public interest in having the case adjudicated on its merits favours the admission of the evidence, particularly in light of its reliability. On the other hand, the impact on the accused's rights, while not egregious, was significant. Bulking even larger, however, was the police misconduct involved in obtaining the evidence. This was far from a technical or trivial breach. Rather, it involved a "brazen and flagrant" disregard, to quote the trial judge, of the appellant's Charter rights against arbitrary detention and unreasonable search and seizure. These are protections that law-abiding Canadians take for granted and courts must play a role in safeguarding them even where the beneficiaries are involved in unlawful activity. In the circumstances of this case, it is my view that the admission of the evidence would bring the administration of justice into disrepute. I conclude that the evidence should have been excluded pursuant to s. 24(2) of the Charter. I would therefore allow the appeal and enter an acquittal.

[106] In her reasons, the Chief Justice stated that the Charter breaches were a significant, if not egregious intrusion on the accused Charter-protected interests. She stated that the trial judge's reasoning transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence. She stated that he placed undue emphasis on the third line of inquiry while neglecting the importance of the other two, particularly the need to dissociate the justice system from flagrant breaches of Charter rights. Because the evidence in question was essential to the Crown's case, the accused should be acquitted. She concluded that the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards.

Cases of Bodily Integrity – Surveillance & Search

[107] Two often cited Ontario cases on unobstructed video surveillance while using a toilet in police custody, where stays were granted, at trial, are those of my colleague Justice Peter West, sitting in Newmarket, in his judgments of R. v. Mok, 2012 ONCJ 291, [2012] O. J. No. 2117 and R. v. Chasovskikh, 2013 ONCJ 16.

[108] In Mok, Justice West found that the accused Mok charged with drinking and driving offences, was recorded on a holding cell digital CCTV camera and monitor using the toilet fully exposed to the camera. Justice West found that there were no legitimate safety concerns that could justify recording her activities using the toilet in the cells. He concluded that the recording of her activities, despite her lack of awareness at the time of being recorded, was contrary to her right to privacy under Section 8, and also extremely degrading and contrary to human decency.

[109] Justice West concluded, on all the facts, that the appropriate remedy was a stay.

[110] In Chasovskikh, Justice West found that similar principles applied to Ms. Chasovskikh, who also faced drinking and driving charges. Ms. Chasovskikh was captured on the breath room video camera using the toilet in the breath room. In addition, a female police officer stood directly in front of her and watched her pull down her pants, expose her private parts, sit on the toilet and again stand up, and again exposing herself, in order to pull up her pants.

[111] In Chasovskikh, Justice West again found a breach of Section 8, and stayed the charges.

[112] On appeal, on the issue of the appropriate remedy for the Charter breach, the stay in Mok was overturned by Justice R. Cary Boswell, sitting as a judge alone in the Summary Conviction Appeals court. On a decision released in January of 2014, Justice Boswell allowed the appeal in part, agreeing that Ms. Mok's Charter-protected right to privacy had been breached, but concluding that a stay was not the appropriate remedy.

[113] Using the analytical framework found in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, above, Justice Boswell concluded that, although the section 8 breach of the accused's privacy interest in Mok was serious, a stay would give insufficient weight to the public interest to have a trial on the merits.

[114] Justice Boswell also concluded that because of the systematic recording of the "in-cell" activities of detainees by the York Regional Police, a change in police surveillance practices in police stations and holding cells was, indeed, needed, as Justice West had stated, but a "stay" of the proceedings was, in Boswell's opinion, not required to achieve a change in the way the police monitored cells.

[115] Justice Boswell stated at paragraph 98:

98 While I do not disagree with the trial judge's conclusions as noted, it does not follow that a stay of the charges against Ms. Mok is necessary to achieve a change in the way the police monitor their cells. The videotaping of police holding cells, including the toilet area, has not previously been challenged. Apparently, not just by York Region detainees, but not by detainees in other police stations across the country either. I would hope, and expect, that with the Court's guidance, the YRPS executive will make the decision to effect change in the way they monitor detainees in their cells. The "fix" is relatively minor. It can be achieved either with repositioning the video cameras, or by installing modesty screens that cover the lower part of a person's body while using the toilet.

[116] Relying on the good faith of the York Regional Police and other forces to adjust their practices as a response to the concerns expressed in the judicial rulings, Justice Boswell concluded therefore that the facts in Mok were not the "clearest of cases" because Justice West had not considered that it was a case of first instance, that the testimony before Justice West that such video surveillance was done as a matter of policy did not represent the view of the police executive, and finally that the breach had not been egregious, at least partially because Ms. Mok was unaware at the time that she was being videotaped.

[117] A similar result occurred in the case of R. v. King, 2012 ONCJ 2574, which was decided after Justice West's trial decision in Mok.

[118] In King, my colleague, Justice Alan Cooper found that the video and audio regarding a male accused urinating in a toilet in the holding cells was a violation of his Section 8 Charter rights, but concluded that the facts did not make out either such an egregious breach as Justice West found in Mok nor did they justify a stay. Justice Cooper explained:

31 Getting back to the case of Mr. King, it is obvious that audio-visual surveillance can prevent suicide or other self-harm to a prisoner. Here, Mr. King testified that he was not aware that he was being electronically monitored in his cell, and would have asked for privacy when he was urinating had he known this. He has no criminal record to my knowledge, and was not obviously suicidal or trying to harm himself in his cell. Officer Reid agreed in cross-examination that Mr. King was acting quietly and cooperatively.

32 Comparing Ms. Mok's case to Mr. King's, they each had no criminal record, and were behaving properly in custody. Ms. Mok's driving was far worse than Mr. King's, but there was no police evidence in Mr. King's trial similar to that in Ms. Mok's. Neither officer in the King case gave an opinion as to whether the practice ought to exist or not; it was simply part of the system they were expected to operate in. Both Ms. Mok and Mr. King testified that they were unaware their cell was under audio-visual surveillance, but the police evidence was that Ms. Mok was specifically told about it before she was lodged in the cell.

33 Because the police evidence is not the same as in R. v. Mok, it is my view that a judicial stay of proceedings ought not be entered in the case before me. The Ontario Provincial Police, and other police forces, deserve an opportunity to be apprised of the concerns of West J., and to reassess the current practice of videotaping prisoners using cell toilets. This issue will arise again.

General Principles

Burden of Proof

[119] The burden is on the citizen to establish the Charter violation on a balance of probabilities. (R. v. Lundrigan, 33 Man. R. (2d) 286 (C.A.)).

Impairment

[120] In R. v. Stellato, [1993], O. J. No. 18, (Ont. C. of A.), the issue to be decided was whether the trial judge had erred where the trial judge found that the accused was impaired, where the impairment was not a "marked departure" from normal driving behaviour. Justice Jean-Marc Labrosse, speaking for the court, stated:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (Emphasis added)

In the present case, the trial judge applied the correct test for impairment. There was sufficient evidence adduced at trial from which he could find that the Crown had proved, beyond a reasonable doubt, that the appellant's ability to operate a motor vehicle was impaired by alcohol at the material time. Consequently, the Summary Conviction Appeal court did not err in dismissing the appellant's appeal.

ANALYSIS OF THE EVIDENCE IN SUPPORT OF COUNT 1

Count 1 – The Allegation of "Impaired Driving"

Section 254 (3) Reasonable and Probable Grounds to Arrest

[121] I agree with the Crown submission that signs of impaired operation under s. 253 need not be marked or significant. Even a small or slight impairment will satisfy the offence. Officers must observe some reduced ability to perform a complex motor function; whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road.

[122] In R v Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at paragraphs 46, 47 & 48, Justice Bruce Durno (ad hoc) speaking for the Ontario Court of Appeal states:

46 In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 (Ont. C.A.) at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43.

47 There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (Ont. C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (Ont. C.A.), aff'd, [1994] 2 S.C.R. 478 (S.C.C.). Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.

48 The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd, [1994] 2 S.C.R. 478 (S.C.C.); Moreno-Baches and Wang, at para. 17. Where appellate courts are called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard of correctness: Wang at para. 18.

[123] The initial defence argument at trial was that the arresting office, Constable Daniel Terriss, did not have sufficient grounds to arrest Mr. Carr at the roadside.

[124] The witnesses from the scene of the accident provide the objective facts and the initial foundation for Mr. Carr's arrest by Constable Terriss.

[125] This initial testimony included that of Grazia Consagna who witnessed the initial crash and called 911, the testimony of paramedic Marcus Kirton, who attempted, with limited success, to assess Mr. Carr's possible injuries and provide emergency medical assistance at the roadside, as well as the testimony of OPP constables Kevin Noh and Troy Nookes, who arrived on scene and were attempting to secure the area, while Constable Terriss dealt directly with Mr. Carr.

[126] They provided the factual foundation of what had transpired prior to Constable Terriss's observation when he arrived, which included the serious motor vehicle accident, Mr. Carr's erratic behaviour and his apparent reckless lack of concern for his own personal safety.

[127] In my view, Constable Terriss had sufficient subjective grounds once he arrived on the scene.

[128] He was initially advised by his dispatch at 3:13 AM of a single vehicle roll-over, at Highway 427 and Derry Road, with the driver, possibly impaired, walking in the vicinity.

[129] When he arrived at the scene at 3:23 AM he observed the rolled-over vehicle completely demolished, precariously positioned upside down, on its roof.

[130] Constable Terriss initially observed Mr. Carr seated in a muddy, grassy area, close by the overturned vehicle, speaking to officers Noh and Noakes.

[131] Constable Terriss next observed Mr. Carr leave the officers to walk over to the vehicle and crawl inside the front driver's side door, stating he was looking for his phone.

[132] Constable Terriss approached Mr. Carr but was initially unable to convince him to get out of the unstable vehicle.

[133] Constable Terriss testified that when Mr. Carr did crawl back out of the vehicle, and stood up, he approached Mr. Carr, and from a distance of no more than an arm's length away, could smell a strong odour of alcohol, observe bloodshot and watery eyes, and slow and slurred speech.

[134] Constable Terriss testified that, for the next five to eight minutes, he and the other police at the scene attempted to calm Mr. Carr down, and urged him to accept emergency assistance.

[135] Constable Terriss testified that Mr. Carr resisted all efforts by emergency personnel to assist him.

[136] At approximately 3:31 AM Constable Terriss placed Mr. Carr under arrest for impaired driving.

[137] I am satisfied on the evidence that there were sufficient grounds, both subjective and objective, for Constable Terriss to make the arrest, based upon the principles enumerated in Bush.

Proof of Count 1, Impaired Driving

[138] However, I am not satisfied that the Crown has proven Count 1 to the criminal standard.

[139] All the observations of Mr. Carr at the scene were after he been in a serious accident, in which his car was demolished, and he was behaving in an extremely erratic manner.

[140] Although he had consumed alcohol, I am left with doubt that his driving was impaired at the time of the accident, or shortly thereafter the accident, when arrested at the scene.

Analysis of the Evidence in Support of Count 2

Count 2 – Over 80

[141] Subject to the granting of a Charter remedy, the defence does not dispute the evidence of the Breath Tech, Constable Choe, as to Mr. Carr's tests and the results of those tests, and the Toxicology Letter of Karryn Wall, Centre of Forensic Sciences, as proving Count 2 to the criminal standard.

THE CHARTER APPLICATION

The Current State of the Law & Police Practices in Ontario

[142] It is clear from the case law I have cited previously, that video surveillance of a detainee urinating may constitute a violation of section 8 of the Charter. (See Justice West's and Justice Boswell's decisions in R v Mok, 2014 ONSC 64, [2014] O.J. No. 44).

[143] However, the case law also recognizes the need to balance the privacy interests of the detainee with the valid security risks that exist at detention centers. (See R. v Clarke, 2015 ONCJ 228, [2015] O.J. No. 2122, and R. v. Bondy, 2015 ONCJ 329, [2015] O.J. No. 3143)

[144] In R. v. Mok, Boswell, J. at paragraph 77, suggested that offering a privacy screen that:

"protects the lower part of a person's body while using the toilet would not significantly hamper the ability of the police to monitor the health and safety of anyone inside the cell. At the same time, it would preserve the dignity and bodily integrity of the detainee:"

[145] Since Mok and the initial series of cases regarding video surveillance of citizens while under lawful arrest in police stations and detachments, the Ontario Provincial Police has adopted measures to deal with the problem.

[146] As cited in Justice D. A. Harris' decision in R. v. Clarke, 2015 ONCJ 228, [2015] O.J. No. 2122, at paragraphs 84 to 86, the Ontario Provincial Police have responded as follows:

84 On February 6, 2014, Deputy Commissioner (now Commissioner) Vince Hawkes sent an interim directive to all detachments wherein he ordered the following with respect to all detainees:

• When placing a person in a cell, the officer should be seen on camera actively pointing to the camera to ensure the detainee is fully aware that his or her actions are being videotaped, including the use of the toilet

• Make verbal notification that the cell is video monitored

• Ensure proper posting of all signs indicating that video monitoring is in place and make the detainee aware of those signs

• Make a written notation of the steps taken to ensure the detainee is aware the cell is videotaped

• If the individual detainee is entitled to a blanket in accordance with current Ontario Provincial Police policy, they may use it for privacy

• If toilet paper is left in the cell area, it should be left near the toilet

• Ensure video is only available to those who require access (e.g. for court purposes) and

• Notify Risk Management of each case in which the cell videotaping issue is brought before the court.

85 In addition, the Ontario Provincial Police initiated a then "pilot project" (adopted province wide as of August 2014) involving 12 detachments. One of the new changes called for providing a paper privacy gown to a detainee, who might want to use the cell toilet. The paper gown, something like a hospital gown is capable of tearing, and therefore could not be fashioned into a noose, alleviating any concern that detainees could harm themselves.

86 Privacy gowns were determined to be most effective in providing privacy, while addressing safety concerns. They were more effective than using "privacy screens" or a "pixilation" process of the video.

Were Mr. Carr's Charter-Protected Sections 7 & 8 Privacy Rights Breached?

[147] The burden is on the citizen to establish the Charter violation on a balance of probabilities. (R. v. Lundrigan, 33 Man. R. (2d) 286 (C.A.)).

[148] In this trial, I have concluded that Mr. Carr's sections 7 & 8 Charter-protected right to privacy while in detention was, in fact, breached.

[149] It is not in dispute that the OPP Downsview Cell 2 Video footage depicts the following regarding Mr. Carr's use of his cell toilet:

(1) [4:21:19 to 4:22] – Mr. Carr can be seen urinating in the toilet, with his genitals in full view of the camera;

(2) [5:27:53 to 5:28:29] – Mr. Carr is again urinating with his genitals in full view of the camera;

(3) [6:09:44 to 6:10:39] – Mr. Carr goes toward the toilet, appears to take notice of the camera, and turns his back to the camera, before urinating, his genitals not in camera view;

[150] In my view, the recorded footage (1) and (2) provides the basis for a finding that Mr. Carr's Charter-protected privacy rights were breached.

[151] The Crown, in its well-written Response, paragraphs 27 to 31, submits, in support of the argument that there was no breach, that the applicant:

(1) was made aware by two different officers that there was a video camera recording his activity in Cell 2, including his use of the cell toilet; and,

(2) was provided with a privacy shield; and,

(3) elected not to use it.

[152] I have concluded on the evidence that this argument must fail.

[153] The trial evidence, including Mr. Carr's sworn evidence on this point was that he did not realize he was under surveillance until, just prior to his third use of the toilet, he saw that there was a surveillance camera pointing at him, because he could see "shadow" of the camera, just outside the cell, and recalled what Constable Terriss had told him about the fact he would be recorded while in the holding cell.

[154] In my view, his next step of turning his back to the camera and wrapping himself in a cell blanket was an assertion of his right to privacy.

[155] Moreover, I consider his earlier use of the cell toilet, without covering his private parts, was understandable, due to the effects of the serious car accident, and his testimony that he was in shock, "up and down" and couldn't "think straight'.

[156] In the video recordings at the station, Mr. Carr often appears in distress, holds his head in his hands, seems distracted and talks to himself.

[157] Exhibit 2 thus reveals, at several points in time, disconnected behaviour and evidence of confusion during Mr. Carr's video-recorded encounters with Constables Terriss & Choe.

[158] I have thus concluded that during his initial two uses of the cell toilet, he had not understood or taken in what I find the officers had told him, and therefore was not aware of his loss of personal privacy in the cell.

[159] For those reasons, I am satisfied that there was a breach of Mr. Carr's Charter-protected right to personal privacy.

[160] However, the more difficult assessment is whether the Applicant should be granted either of the remedies he is seeking.

[161] In my view, neither of the remedies sought in this application should be granted.

The Remedy of a Stay

[162] As summarized by the Ontario Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, reviews the judgment in Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (S.C.C.), in which a stay was granted, and concluded that the following factors must be weighed in deciding whether a stay should be granted:

57 From the above cases in the Supreme Court, the following principles emerge:

(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.

[163] Thus in in R. v. Zarinchang, the Court concluded that the two categories:

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.

must be weighed against society's interest in trial fairness.

[164] In concluding that a stay was not appropriate on the facts in Mok, Justice Boswell used the analytical framework found in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, above, to conclude that, although the section 8 breach of the accused's privacy interest in Mok was serious, a stay would give insufficient weight to the public interest to have a trial on the merits.

[165] Justice Boswell also concluded that because of the systematic recording of the "in-cell" activities of detainees by the York Regional Police, a change in police surveillance practices in police stations and holding cells was, indeed, needed, as Justice West had stated, but a "stay" of the proceedings was, in Boswell's opinion, not required to achieve a change in the way the police monitored cells.

[166] Justice Boswell stated at paragraph 98:

98 While I do not disagree with the trial judge's conclusions as noted, it does not follow that a stay of the charges against Ms. Mok is necessary to achieve a change in the way the police monitor their cells. The videotaping of police holding cells, including the toilet area, has not previously been challenged. Apparently, not just by York Region detainees, but not by detainees in other police stations across the country either. I would hope, and expect, that with the Court's guidance, the YRPS executive will make the decision to effect change in the way they monitor detainees in their cells. The "fix" is relatively minor. It can be achieved either with repositioning the video cameras, or by installing modesty screens that cover the lower part of a person's body while using the toilet.

[167] Justice Boswell concluded therefore that the facts in Mok were not the "clearest of cases" because Justice West had not considered that it was a case of first instance, that the testimony before Justice West that such video surveillance was done as a matter of policy did not represent the view of the police executive, and finally that the breach had not been egregious, at least partially because Ms. Mok was unaware at the time that she was being videotaped.

[168] In my view, I find that the facts in the case at bar were not "the clearest of cases" for the following reasons.

[169] I have before me considerable trial evidence of the remedial institutional steps that have been taken by the OPP, since the rulings at the time of Mok.

[170] I find that the OPP have initiated a remedial policies and procedures, including provisions for video cautions and privacy garments that permit the detained person to protect their privacy while using toilet facilities while in custody.

[171] I further find that, based upon the testimony of the two officers, these remedial procedures were attempted in good faith in this case by Constables Terriss and Choe.

[172] In reaching my conclusion as to what transpired, I was assisted by Exhibits 2 & 3, which documented much of what the officers did and testified about.

The Video Caution & Potential Use of the Privacy Gown

[173] I find that Exhibits 2 & 3 as applied to the application, corroborate the officers' testimony and not Mr. Carr's testimony as to the material times when remedial measures were undertaken by the officers, to advise Mr. Carr regarding Video surveillance at the detachment, including the "Video Caution" and use of a privacy gown.

[174] I further find that Mr. Carr, to a significant extent, by his own admissions, and also by a review of Exhibits 2 & 3, was not a reliable reporter as to portions of his interaction with the officers at the Downsview Detachment.

[175] It was clear on the evidence that due to the motor vehicle accident, he was both shocked and distracted at the scene and later at the detachment due to the serious and potentially fatal car crash he had just experienced, and I find that his resulting recollection of events was compromised.

[176] I have concluded that he failed to recall material information, including what he was told by the two officers, regarding the surveillance in Cell 2, and the availability and potential use of the privacy gown.

[177] The testimony from both Constables Terriss and Choe was that they told Mr. Carr when they took him to Cell 2 that he was under video surveillance while in the cell and when using the toilet.

[178] Based upon their testimony, and the times disclosed by the video records, I find that Constable Terriss's video caution occurred prior to Mr. Carr's first use of the cell toilet, and Constable Choe's video caution occurred prior to Mr. Carr's second use of the cell toilet, as corroborated by footage in Exhibits 2 & 3.

[179] Constable Terriss testified that he showed Mr. Carr a privacy gown that Mr. Carr could use to protect his privacy, in Booking Room 2.

[180] I find that Constable Terriss's testimony is corroborated by the Booking Room 2 Camera footage that forms part of Exhibit 2 and was played in Court at trial (See footage from Room 2 Camera, 4:10:05 to 4:11:18).

[181] This occurred prior to Mr. Carr's first use of his cell toilet as recorded on the Cell 2 Video camera at 4:22:19 and following.

[182] Constable Choe testified that he had he showed Mr. Carr the surveillance camera when he took him to Cell 2.

[183] This testimony by Constable Choe is also corroborated by the Cell 2 Video footage in Exhibit 2, and the Screen Shots in Exhibit 3. (See footage from Cell 2 Camera, 4:51:24 to 4:52:12)

[184] This occurred prior to Mr. Carr's second use of the cell toilet at 5:27:53 and following.

[185] In his testimony on the Charter Voir Dire, Mr. Carr initially told his counsel that he was not told that he would be under video surveillance in Cell 2.

[186] However, later, in chief, he told counsel he was told about the video surveillance at the detachment by Constable Terriss.

[187] In cross-examination, he went further, and conceded that Constable Terriss may have told him that he would be under surveillance in Cell 2.

[188] Mr. Carr told his counsel that it was only on his third, and final use of the Cell 2 toilet that he realized he was under video surveillance, and shielded his private parts by surrounding himself with the blanket and turning his back to the camera.

[189] While his actions in the third sequence does demonstrate that, at that point, while in custody, he had a concern about his personal privacy, it cannot, in my view, assist in seeking either of the remedies being sought in the Charter application.

[190] I accept Mr. Carr's testimony that he was distracted and perhaps unable to take in all that was happening while he was in custody, due the shock and aftermath of his serious car accident.

[191] Mr. Carr was clearly in distress during much of his time at the detachment.

[192] After hearing his testimony, I had a residual concern that the officers should perhaps have spent more time with this seriously traumatized and perhaps injured individual, to confirm his understanding of their video cautions prior to his first two uses of the cell toilet.

[193] However, having weighed the evidence of the officers' conduct as a whole, and their repeated attempts to explain to Mr. Carr that he was under video surveillance at all times at the detachment, I am not prepared to find, on the evidence before me in the trial and Application, that he did not receive reasonable notice, as I set out in detail, above.

[194] To summarize, in my view, the evidence in this trial, in its totality, is not sufficient to establish the basis for Charter relief under either 24(1) or 24(2).

[195] I therefore find that trial evidence establishes that the police officers acted in good faith and took the necessary steps to protect his privacy, prior to using the cell toilet without shielding his private parts:

(1) He was alerted to the video surveillance in Cell 2, by both officers, and;

(2) On both occasions informed that he could shield himself while using the cell toilet.

[196] I further find that the OPP initiative of 6 February 2014, was an institutional response that reflects well on the OPP generally and was respected and carried out in this case, by Constables Terriss and Choe, in an effort to avoid the breach of Mr. Carr's Charter-protected right to privacy.

[197] Thus I have concluded that, on the facts of this case, the police conduct should attract neither a stay nor the exclusion of the Intoxilizer readings.

[198] In my view the section 8 breach does not engage trial fairness.

[199] As well, I find there is little likelihood of prospective prejudice, due to the factors set out above, including the establishment of the OPP protocol in 2014, and the compliance with that protocol in the case at bar.

[200] There is an ongoing societal interest in cases involving drinking and driving in having a trial on the merits, and the facts of this case dramatically support the reason for that interest in this case.

The Remedy of Exclusion of the Readings

[201] Similar considerations apply to a consideration of the exclusion of the readings.

[202] Although the breach was serious, in my view, and Mr. Carr's testimony on this point, although, in part speculative, was supportive of his sense of loss of personal dignity, the state conduct that gave rise to the breach could not be considered as very serious.

[203] I have found that Mr. Carr was afforded sufficient information and resources by the officers to shield his private parts from video scrutiny, and protect his privacy interest, prior to the capture of his image by the Cell 2 camera.

[204] I also find that Mr. Carr's testimonial fear that the video clips of his use of the cell toilet might find their way onto You Tube, would require a different set of facts, and in this case is pure speculation.

[205] The well-accepted standard for exclusion is whether the admission of the evidence would bring the administration of justice into disrepute.

[206] In my view this is not such a case.

[207] In my view, society's interest in having a trial on the merits must prevail against the remedy of the exclusion of the readings.

[208] Thus, the applicant has not established the factual basis for either form of relief.

CONCLUSION

[209] As a result, Count 1 will be dismissed, and Mr. Carr will be found guilty of Count 2.

Released: 29 April 2019

Signed: "Justice Paul H. Reinhardt"