Court Information
Ontario Court of Justice
Date: May 7, 2019
Court File No.: 18-74
Parties
Between:
Her Majesty the Queen
— And —
Bhavandip Moondi
Judicial Officer and Counsel
Before: Justice Robert S. Gee
Heard on: March 28, 2019
Reasons for Judgment released on: May 7, 2019
Counsel:
- S. Hickingbotton — counsel for the Crown
- G. Gill — counsel for the accused
Introduction
[1] Shortly after 1:00 am on January 19, 2018, near Simcoe, Ontario, the accused Bhavandip Moondi lost control of his pick-up truck and entered a ditch. The police arrived to investigate and as a result of that investigation Mr. Moondi was charged with operating his motor vehicle while having an excessive amount of alcohol in his blood.
[2] Mr. Moondi alleged that the police violated his s. 8 and 10(b) Charter rights during their investigation and as a remedy seeks the exclusion of the results of the analysis of his breath samples he provided that night.
[3] The trial proceeded in a blended fashion. The Crown called five witnesses, three OPP officers involved in the investigation, a civilian employee of the OPP that was working at the station that night as well as a witness who observed Mr. Moondi driving. The defence called only Mr. Moondi and his testimony was limited to the issues relevant to the voir dire aspect of the trial and his allegation of Charter breaches.
[4] At the conclusion of the trial, the defence abandoned their allegation that Mr. Moondi's s. 10(b) Charter rights were violated and focussed on the s. 8 issue.
[5] The balance of these reasons will explain why I find that Mr. Moondi's Charter rights were violated that night and that the appropriate remedy for that violation is an exclusion of the results of the analysis of his breath samples. Given there was no other evidence capable of supporting a finding of guilt, the charge against Mr. Moondi will therefore be dismissed.
Facts
[6] Since the essence of this case was distilled down to an allegation of a s. 8 Charter breach and given the nature of that alleged breach, most of the facts in this case are not in dispute. The nature of the breach is that while detained at the OPP station during the course of this investigation and prior to his release later that night, Mr. Moondi was twice captured on the cell area video surveillance going to the washroom. The first time came within minutes of his arrival at the station and the second came after he was lodged in a cell following the breath sampling procedure.
[7] The first time was not long after Mr. Moondi was brought into the police station. During his search and processing he asked to use the washroom. He was escorted to an empty holding cell. A police officer stood just outside the cell. He was close enough that he and Mr. Moondi could see each other while Mr. Moondi relieved himself. From the proximity of the camera and the quality of the video, Mr. Moondi could clearly be observed urinating.
[8] The second occasion took place following the breath sampling procedure. Mr. Moondi was lodged in a cell, this time with another detainee. Again given the camera angle and the video quality, Mr. Moondi was again recorded relieving himself.
[9] The arresting officer, Petra Hell, testified that upon arrival at the police station all prisoners are advised that the booking and cell areas are under constant video surveillance. Officer Hell also testified that upon being lodged into a cell, all prisoners are provided with a privacy gown and are advised that the cell area, including the toilet area is subject to video monitoring. She advised in this case she provided Mr. Moondi a privacy gown and explained to him that the washroom area of the cell is subject to video monitoring. However, she did not recall the exact words she used during this explanation, nor did she give him any explanation as to how one would use the privacy gown. In addition to this, painted on the wall over the toilet in each cell, is a warning that the cell and toilet area are video recorded.
[10] Anthony Mullen was the officer who escorted Mr. Moondi to use the toilet the first time. He had arrested another person shortly before Mr. Moondi's arrival at the police station and was in the booking area when Officer Hell brought in Mr. Moondi. Since Officer Hell is female, Officer Mullen was tasked to search Mr. Moondi upon his arrival at the station. It was during that initial search in the booking area when Mr. Moondi asked to use the toilet.
[11] From the evidence of the officers, the policy upon arrival and processing at this OPP station is to advise a detainee of the fact they are under video surveillance at all times and of the availability of a privacy gown. The privacy gown itself is not offered until the person is being lodged in the cell, after processing and any other necessary step taken by the police. In this case that meant after Mr. Moondi was processed, spoke to counsel and provided his breath samples.
[12] It is clear that the initial processing of Mr. Moondi was interrupted by his request to use the toilet. Officer Mullen was unable to remember what if any conversation he had with Mr. Moondi at this time. He is unable to recall if he advised Mr. Moondi of the presence of video cameras or if he advised him of the option of using a privacy gown. It is clear from the video, that Mr. Moondi did not have one when he entered the cell to urinate the first time.
[13] For Mr. Moondi's part he recalls as being led into the station by Officer Hell her mentioning everything was being videotaped. However, while being escorted to use the toilet the first time he does not recall any conversation between him and Officer Mullen nor were any of the cameras pointed out to him. When asked, he stated he assumed the area was under video surveillance, but did not think that extended to videotaping persons as they used the toilet.
[14] After the breath sample procedure, Mr. Moondi recalls being taken to a cell. He stated he asked for and was given a blanket as opposed to a privacy gown but does not recall any explanation for its use in order to protect his privacy while using the toilet in the cell.
The Law
[15] The police use of video surveillance to monitor and record the activities of individuals can amount to a search for the purposes of s. 8 of the Charter. The issue becomes whether the person under surveillance has a reasonable expectation of privacy in the circumstances. A growing body of jurisprudence has moved a number of the issues in cases such as this beyond debate.
[16] The police have a legitimate need to monitor persons under their control and monitoring them by video is a reasoned means of doing so. However, individuals have a reasonable expectation of privacy when it comes to using toilet facilities for the purpose of normal bodily functions. Although that expectation of privacy is reduced when detained under these circumstances, it is not forfeited by the mere fact the police have taken them into custody.
[17] These issues were discussed and articulated beginning with the case of R. v. Mok, 2014 ONSC 64, leave to appeal refused 2015 ONCA 608. The tension between the detainee's expectation of privacy in the circumstances and the legitimate need of the police to monitor detained persons was discussed in paragraphs 66 to 82 of Mok. The court concluded the discussion about the tension between these two interests in paragraph 81 as follows:
… 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.
[18] Since Mok, other courts have made similar findings. See for example R. v. Deveau, 2014 ONSC 3756, R. v. Singh, 2016 ONSC 1144, R. v. Rowan, 2018 ONCJ 777, R. v. Lacku, 2019 ONCJ 88 and R. v. Wijesuriya, 2018 ONCJ 211. As a result of this jurisprudential guidance, many police services began to take steps to balance these competing interests between the detainee's expectation of privacy and the state's legitimate need to monitor persons in its custody. For instance, the use of privacy gowns as mentioned here, or privacy screens or the pixilation of the videos themselves are some of the methods used to attempt to strike an appropriate balance in this situation.
[19] Once a s. 8 breach is established in these circumstances the focus turns to the appropriate remedy. Initially stays were sought, but courts have shied away from granting this remedy. See Mok for instance. Now it is becoming more established to seek an exclusion of the results of the breath samples pursuant to s. 24(2) of the Charter. The resort to this remedy was initially resisted by the Crown on the basis there was no casual connection between the breach and the obtaining of the breath samples. However, it is clear a causal connection is not required. A temporal connection sufficient so that the breach and the breath samples can be said to be part of the same transaction or course of conduct is all that is required to make the exclusion of the evidence an available remedy (see Deveau paragraphs 15 to 19).
Analysis
[20] I am satisfied the defence has established that the video taping of Mr. Moondi urinating in police custody two times, constitutes a search. Since that search was warrantless, the burden shifts to the Crown to establish it was allowed by law and conducted in a reasonable manner. As noted, the videotaping of detainees by police in these circumstances is lawful. The issue in this matter turns on the reasonableness of the police efforts to balance that legitimate police activity, with the privacy rights of Mr. Moondi.
[21] The defence argued in this case that it is not the OPP policy in place that is under attack, but it is the implementation of that policy that has failed here. The provision of and proper use of privacy gowns or blankets can strike a proper balance between the police need to video tape detainees and the detainees' expectations of privacy in these situations. I agree. It is the failure to properly follow the policy in this case that resulted in a breach of Mr. Moondi's s. 8 Charter rights.
[22] In brief, the Crown position was that the police acted properly. They advised Mr. Moondi he was being videotaped at all times, even while using the toilet and they provided or offered the privacy gown to him and that he chose not to avail himself of it.
[23] I do not accept this argument. Officer Hell testified she advised Mr. Moondi upon arrival at the station that he would be under video surveillance at all times. It is not clear if during the course of this warning though she advised this also extended to videotaping persons using the toilet. Mr. Moondi testified he was advised that the area was being monitored by video. He stated as a small business person he was not surprised by that. He said he assumed it would be similar to his small business where they as well had video surveillance of their premises but did not video tape persons in the washroom. This strikes me as a reasonable interpretation. Video surveillance is ubiquitous in this day and age and people have generally come to realize that. However, people generally assume that this does not extend to them being videotaped in washroom facilities. People who are unfamiliar with police procedures and facilities, especially if it is their first time in custody, could reasonably be unaware that a warning such as the one given by Officer Hell upon arrival at the station, extended to the toilet area.
[24] She stated later, apparently after the breath sampling procedure was completed as he was about to be lodged into a cell, that she provided him with a privacy gown and advised the cell was monitored by video. She stated she advised him as a result of the videotaping he could use the gown when going to the washroom. She conceded though she could not remember exactly what she stated to Mr. Moondi in regard to the gown. She stated she did not show it to him or demonstrate its use. She stated they offer the gowns to detainees and say they can be used for going to the washroom as the cells are monitored by video.
[25] The Crown argument is that given the initial warning on arrival by Officer Hell, her further warning when lodging that the cells were videotaped, the provision of the gown and advice that it can be used while going to the washroom and further in light of the spray painted warning above the toilet itself, that the police acted reasonably and no breach resulted. Mr. Moondi's decision to use the toilet as he did, in the face of these warnings, means he did so voluntarily.
[26] I find the OPP implementation of their policy in this case was flawed and resulted in a breach of Mr. Moondi's rights. Since this was a warrantless search, it is for the Crown to demonstrate the reasonableness of the search itself. As will be recalled, Mr. Moondi went to the washroom twice. The first time was within minutes of arrival at the station. The processing of Mr. Moondi was interrupted by his need to use the toilet. He was escorted to the toilet on this occasion by Officer Mullen. It is clear at this time from the video, Mr. Moondi did not have a privacy gown nor was one offered or made available to him.
[27] Officer Mullen's recollection of this part of the investigation is non-existent. Not only did he not recall any discussion with Mr. Moondi about the use of a privacy gown he did not recall any conversation he had with him and did not even recall he had escorted Mr. Moondi while he used the toilet until he saw the video recording of it at trial.
[28] In relation to this first incident, the Crown has failed to establish any reasonable steps were taken to accommodate Mr. Moondi's privacy. Officer Hell's warning upon arrival that the station was monitored is insufficient, Officer Mullen's evidence was unhelpful and as for the warning sign over the toilet, I would make two observations. He stated he did not notice it and there's no evidence Officer Mullen pointed it out, but even if Mr. Moondi saw it or it was pointed out, I would find it still makes no difference as Mr. Moondi was not provided with any other option at this point.
[29] The second time Mr. Moondi used the toilet I again find breached his Charter rights. The reliance by the Crown on Officer Hell's evidence is not sufficient. At best her evidence was vague and she had no real or clear recollection of what she did or said to Mr. Moondi on this issue. Even on a balance of probabilities I find that I am not satisfied that the policy was implemented reasonably here. At best she gave him a gown and said he could use it while going to the washroom as the cells were videotaped. No explanation as to how to use it or demonstration was provided.
[30] This is insufficient. This is by its very nature a highly stressful situation for the detainee, especially if one has never been in police custody before. Often as well, these are persons who are agitated, suffering from some form of mental illness, or are under the influence of drugs or alcohol. On this latter point, by the time Mr. Moondi was placed in the cell Officer Hell knew the analysis of his breath samples showed a blood alcohol concentration of 185 and 187. She would have known he was drunk. What she did on this night, with this detainee, under these circumstances, was simply not enough. To a detainee who finds him or herself in a situation like this, how they would use a gown to maintain their privacy and dignity, is not likely intuitive. A brief explanation or demonstration on its proper use is not overly burdensome or too much to expect.
[31] As such I find that both times Mr. Moondi used the toilet that night, his s. 8 Charter rights were breached.
[32] The issue now turns to whether as a result of these breaches the result of the analysis of Mr. Moondi's breath samples should be excluded. To do this I must balance the following three factors to determine if the admission of the evidence would bring the administration of justice into disrepute. First is the seriousness of the Charter infringing conduct; second is the impact of the breach on the Charter protected interests of the accused; and third is society's interest in the adjudication of the case on its merits. The three factors to be considered are fact specific. (See: R. v. Grant, 2009 SCC 32).
[33] In relation to the first part of the Grant test, I find that this is a serious breach that favours exclusion. This is no longer a novel issue. That the police have to make reasonable accommodations for the privacy and dignity of detainees while they use the toilet has been subject to judicial scrutiny now for at least six years since Mok was before the courts. It is obvious this OPP detachment is aware of the need to make such accommodations since the privacy gown is a feature of their detainee processing procedures. However, in this case at least, not much more than the bare minimum was attempted. No real effort was made to address or accommodate the underlying dignity concerns of Mr. Moondi that the policy was meant to address. There needs to be more than a rote recitation of a few words so a box can be checked off on a form indicating that another in the long line of steps required for processing each detainee has been taken.
[34] The second part of the Grant test I also find favours exclusion. This was a serious breach of Mr. Moondi's privacy and dignity. He was videotaped not once but twice. On this branch of the test courts have often focused on how intrusive the video recordings were. This usually devolves into a dissection of the videos to determine how much of the accused's genitalia were visible and for how long. Courts have held that the more intrusive the videos, the more serious the breach (see Singh paragraph 59).
[35] I acknowledge the more intrusive the video the more serious is the breach, but I would add it is getting to the point where it is unseemly for courts to have to continue to undertake such an analysis. I do not want to have to watch the video in cases such as this to see for instance if Mr. Moondi's penis was visible and if so for how long. I no longer want to have to listen to witnesses being asked as we did in this case, if they saw Mr. Moondi's penis on the videos. I no longer want to be told as I was in this case by the Crown that he watched the videotape several times in preparation to see if he could see Mr. Moondi's penis. This is unseemly and only exacerbates the affront to the dignity of a person like Mr. Moondi. For what it's worth in this case, especially the first time he used the toilet, the video depicted a grown man standing in a cell, open to the hallway, with an officer standing nearby, with people walking by, while he was clearly urinating. His urine stream was visible as was his penis. This would have been a highly embarrassing and uncomfortable situation for anyone to be put in. It is for these reasons I find this was a significant and serious breach of Mr. Moondi's privacy and dignity and this branch also favours exclusion.
[36] The third branch of the Grant test almost always favours inclusion. This case is no different. The results of the analysis of Mr. Moondi's breath are very reliable and are the only evidence in this matter that's supportive of his guilt. In addition drinking and driving is a serious matter that still happens far too frequently with far too often tragic results. Luckily in this case even though there was a single vehicle accident, no one was killed or injured other than Mr. Moondi. In a case like this the public rightly expects the matter to be decided on its merits. As such this branch of the test favours inclusion.
[37] In this case, on balance I find that the administration of justice would be brought into disrepute if the evidence was admitted. There was serious indifference to both the policy of the OPP and to the effect of their actions by the Officers on the dignity of Mr. Moondi so much so that these factors outweigh society's interest in having this matter determined on its merits, in spite of how serious it is. As such, the results of the analysis of Mr. Moondi's breath sample will be excluded.
Conclusion
[38] Since I have found that the results of the analysis of Mr. Moondi's breath sample are inadmissible against him and since there was no other evidence capable of supporting a finding of guilt, the charge will be dismissed.
Signed: Justice Robert S. Gee