Ontario Court of Justice

Date: 2019-07-12

Court File No.: Central East - Newmarket 4911-998-18-07738

Between:

Her Majesty the Queen

— AND —

Jian Ping Liu

Before: Justice P.N. Bourque

Counsel:

• M. Hsiung, for the Crown
• R. Tsang, for the Defendant

Reasons for Judgment

Released on July 12, 2019

Overview

[1] A civilian witness saw the defendant asleep in his car which had pulled into a maintenance yard in the late hours of September 4, 2018. The defendant has been charged with impaired driving and driving with excess alcohol. The defendant states that while in police custody, he was observed urinating into the toilet in his cell. He states that either all of the evidence against him should be excluded or the charges should be stayed.

Matthew Hill

[2] ...works for a company which is responsible for maintenance on several 400 series highways. He was leaving a yard in Richmond Hill at 11:30 on September 4, 2018 when he saw a vehicle parked in the entrance to the yard. The vehicle was stopped and the person inside was in the driver's seat and slumped over the centre console. The witness walked up to the vehicle and yelled and knocked at the window and after a time the person rolled down his window. There was vomit all down the driver's side door and eventually the driver opened the window to the inquiry by the witness as to whether he was alright, the driver said "go away" or so the witness thought.

[3] The car then proceeded to drive into the yard and the witness saw its rear lights moving through the yard. The witness heard the sound of banging which to him indicated that the vehicle was striking other metal objects in the yard. The witness was on the phone to 911 and a police car came within 5 minutes. The witness gave a description of the car and driver to 911 and the licence number. He saw a police car come into the yard and eventually stop the car and then interact with the driver.

Natalie Naughton

[4] …is a York Regional Police officer. Her timeline is as follows, from her viva voce evidence and from viewing the in-car camera video:

Time	Event
23:46	P.C. Naughton received a dispatch which indicated a man was passed out in a vehicle and was driving around, a man had puked all over and the man was slim Asian 50 to 60 years old with vehicle licence BXSH 952. The vehicle had backed in ditch and crashed.
23:46	The officer arrived at the scene and she saw the vehicle as described including the licence number. The vehicle was moving in the yard and she followed it with her lights on and the vehicle stopped. She went up to the vehicle and was knocking on the window and calling but the driver could not roll down the window. He eventually opened the door and she smelled vomit and alcohol. There was vomit on the door and seat and on the driver. His face was flushed and red, eyes were glossy and he kept moving his hands and head as if he was confused. The sounds from his mouth were unrecognizable. He was mumbling. He tried to put his keys into the ignition and the officer took the keys from him. The officer asked for the wallet and she took it from him. She told him to get out of the car and he stumbled on getting out.
23:52	The defendant was arrested for impaired driving. The officer was shown photos taken later of the defendant car which shows the vomit on the car and they also show some dents to the car.
23:53	The witness took the defendant to the side of her cruiser and asked him if he spoke Mandarin or Cantonese and he said Cantonese. The defendant is searched and put in the back of the cruiser.
23:56	The officer reads the caution and rights to counsel in English. The defendant does not respond. The officer calls for a Cantonese speaking officer and she plans to meet the officer at the station.
00:00	The officer leaves for the station.
00:08	The officer arrives at the station. The defendant is taken to the booking room and searched and then put in Cell 9.
00:24	The Cantonese speaking officer arrives.
00:33	The defendant is given the caution, rights to counsel and breath demand in Cantonese. The defendant says he does not wish to speak to a lawyer but wants to speak to his daughter. After several attempts, the officer speaks to the daughter and the daughter calls back with a name of a lawyer. The officer calls the lawyer and puts the defendant on the phone to the first lawyer. After the call, the defendant gives the name of another lawyer he wants to speak to, so the officer contacts that lawyer and the defendant is put back into a private room and speaks with that lawyer.

Maryam Alikhani

[5] …is a Sergeant and has been with the York Regional Police for 17 years. She was the acting Staff Sergeant that night. She was in the booking room. She confirms that she booked the defendant in and as he did not speak English. She did not review the issue of all of the detachment being subject to videotaping. She did indicate that the video cameras throughout the station are visible. She also noted that there are many signs (including one on the booking desk) which has a large depiction of a video camera.

[6] She was shown the video of the defendant in the cells that evening. I could view the video for myself.

[7] The defendant stands and is probably urinating on three occasions.

[8] The York Regional Police have a system whereby the video of the cell area has a portion which is blacked out with a "grey screen". The officer indicated that it was designed to cover the toilet and sink area. In the video of this cell, the grey screen is somewhat down and to the right on the toilet area. Thus it did not cover the main part of the toilet area. The witness did not know why this was the case and indicated that this was the first time that this was ever brought to her attention. She also indicated that no one at the station was capable of moving or adjusting the "grey screen".

[9] With regard to each instance I noted the following:

Time	Event
00:30:24	The defendant can be seen going up to the toilet. His back and shoulders are largely covering any view of any his private parts and one cannot see any private parts or buttocks, or indeed any underwear.
01:08:14	The defendant can be seen again going up to the toilet. The view is virtually identical to the first scene.
02:04:59	The defendant is seen being returned to his cell and he can be seen over the toilet. There is still no view of any of his privates but on close inspection one can see a urine stream going into the toilet.

Jennifer Wong

[10] …is a York Regional Police officer and speaks Cantonese. She translated the rights to counsel, caution and breath demand. She also assisted in fulfilling the defendant's rights to counsel to facilitate contact with his daughter and then two lawyers. She did not recall telling the defendant that there were video cameras in the station including the cell area.

Patrick Mahon

[11] …is a York Regional Police Sergeant and is a qualified breath technician. He testified that the first breath test resulted in a reading of 100 milligrams of alcohol in 100 millilitres of blood and the second reading resulted in a reading of 95 milligrams of alcohol in 100 millilitres of blood.

[12] Filed on consent was a report from a toxicologist which indicated that the time of last driving, the blood alcohol readings were between 95 and 145 milligrams of alcohol in 100 millilitres of blood.

The Defence

Jian Ping Liu

[13] The defendant testified on the Charter issue only. He testified that he has been in Canada since 1998. He said he had never been arrested for any offence before this. He said that when his lawyer told him about this, he felt shameful and uncomfortable. He also said that his daughter saw the video at the lawyer's office. He stated that he was never told about any recording and he denied seeing any cameras in the station and denied ever seeing any signs in the detachment which indicates that there were cameras there. He was cross-examined extensively about his feelings of shame especially since it was obvious from the video exhibit that at one point, he should have been aware that an officer was standing at an open door.

[14] I find that the defendant was clearly tailoring his evidence with regard to this issue. However, I accept that no one could be comfortable with a recording made of them using the toilet facilities. As stated by O'Dea J., in R. v. McLaren, [2015] O.J. No. 6412, at paragraph 40:

…In any event, it would be impossible to make findings related to the thickness of one person's skin in relation to another, any such evidence would be ultimately self-serving.

Analysis

[15] The defendant states that his section 7 and 8 Charter rights have been infringed. The defendant states that even if these breaches of his personal dignity do not make this one of the clearest of cases that a stay can be ordered under sec 24(1), then I should order that the breath test results and perhaps all of the previous evidence of impairment at the roadside be ruled inadmissible.

[16] As stated in R. v. Singh, 2016 ONSC 1144:

[27] While detained and arrested individuals who are in custody in a police station certainly have a significantly reduced expectation of privacy, they still maintain some limited measure of privacy, and the police must respect that minimal element of privacy. This includes a modicum of privacy in taking care of basic bodily functions. The important police interest in maintaining safe and secure custody over such individuals in order to ensure the overall security of the station and all persons therein, and to preserve any relevant evidence, does not justify the wholesale video monitoring and recording of the entire station, including the use of washroom facilities.

[28] This conclusion is supported by the great weight of the jurisprudence in this area. Indeed, most judicial authorities hold that the warrantless video recording of an individual using toilet facilities while in police custody amounts to an unreasonable search in violation of s. 8 of the Charter. See R. v. Mok, 2012 ONCJ 291, 34 M.V.R. (6th) 116, at paras. 72-105, affirmed on this issue, 2014 ONSC 64, 59 M.V.R. (6th) 234, at paras. 48-82; R. v. Arbelo, 2014 ONCJ 275, [2014] O.J. No. 2765, at paras. 23-25; R. v. Deveau, 2013 ONCJ 644, 58 M.V.R. (6th) 151, at paras. 41-64, affirmed, 2014 ONSC 3756, 74 M.V.R. (6th) 329, at para. 8; R. v. Griffin, 2014 ONCJ 204, 309 C.R.R. (2d) 329, at paras. 17-35, affirmed, 2015 ONSC 927, 74 M.V.R. (6th) 88, at para. 12; R. v. Smith, 2014 ONCJ 133, [2014] O.J. No. 1370, at paras. 134-146, 163-173; R. v. Noel, 2015 ONSC 2140, 79 M.V.R. (6th) 245, at paras. 42-45; R. v. Provo, 2015 ONCJ 311, 80 M.V.R. (6th) 295, at paras. 23-24. As Boswell J. stated in R. v. Mok, at para. 81:

…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.

[17] I believe that is the correct view. In that sense, I believe that what the screen was trying to do was appropriate and should have been sufficient to protect the modesty sufficiently to pass scrutiny. Unfortunately, in this case, the screen was not entirely in the right position and it allowed a greater viewing of the body of the defendant. Using the test in R. v. Mok, I would have to find that this constituted a Charter breach. In quite similar fact circumstances in R. v. Arbelo, 2014 ONCJ 275, I ruled that I was bound by the reasoning in R. v. Mok and thus there would be a Charter breach.

[18] The only real issue to be decided is whether there is a remedy. I note that the court in Mok suggested that a partial modesty screen that partially blocks the camera's view of the toilet, would not lead to the breach.

[19] The question is whether the remedy of a stay is appropriate for this breach. As per R. v. Babos, 2014 SCC 16, [2014] 1 SCR 309, a stay can be appropriate where there is prejudice to the accused's right to a fair trial or integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome, there must be no alternative remedy capable of redressing the prejudice; and where there is uncertainty, then the court would balance the interests in favour of a stay such as denouncing misconduct and preserving the integrity of the justice system against the interest that society has on having a final decision on the merits.

[20] As per the above cases, I do not feel that this is the clearest of cases for which a stay could be ordered. The police did indeed put into place an electronic means to prevent the ultimate degradation of an exposure of a detainee's private parts. While it was not functioning as it should have, it still afforded some protection and, in any event, in our circumstance, none of the defendant's private parts or underclothing was exposed. While the police were unaware of the difficulty until this complaint was brought to their attention, there is evidence that the matter has been remedied. In fact, many of the factors which I will discuss below in the Grant analysis, would also apply to the determination that this is not the clearest of cases for a stay of the charges.

[21] With regard to whether there should be some relief under section 24(2) of the Charter, I compare this case to the decision in R. v. Topper, [2016] O.J. No. 6331. In that case the affront to the dignity of the defendant was much greater and in addition the Charter breach of over-holding. In this case, there is no such extra breach.

[22] With regard to the Grant factors, firstly dealing with the seriousness of the state conduct, I find that it is not that serious. The state was indeed taking steps to ameliorate the issue. The incomplete nature of the "fix" was due to some error or negligence and not to any deliberate affront to the Charter-protected interests of the defendant. In fact, a system had been set up to block the view. There was no evidence of a significant long-term malfunction. Indeed all the Crown officers were surprised that this issue existed in this case. I also note that there were clearly signs, in the booking area and in other areas of the police station, which would have put anyone on notice that they were liable to being videotaped anywhere in the facility. I also note the very professional steps taken by the arresting officer to arrange for a Cantonese speaking officer to attend at the station and provide the defendant his rights and demands. I also note the exemplary way the officer attended to the 10(b) rights of the defendant in calling the defendant's daughter and then to contact and put the defendant into contact with two lawyers of his choice.

[23] With regard to the Charter-protected interests of the defendant, I also find that this was not a great infringement. There was no view of the defendant's private parts or his underclothing. I accept that he felt some shame and discomfort knowing that this had occurred.

[24] With regard to the 3rd plank of the Grant test, it has been stated many times that breath tests are reliable. The crown's case would be gutted (at least on the over 80 count) without them. This ground would favour admission.

[25] On balancing the 3 planks of R. v. Grant, I find that it would favour admission of the breath test results, and I therefore admit the results of the breath tests into evidence and that would include the report of the toxicologist, including any opinion of the toxicologist on the issue of impairment.

[26] I therefore find the defendant guilty of the offence of operating a motor vehicle with a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood.

Has the Crown Proven That the Defendant Was Impaired?

[27] I find that the signs of impairment consisted of the following:

(i) The defendant was asleep in his car leaning over the counsel and was so fast asleep that it was difficult to awaken him;

(ii) I find that he vomited to a great degree and soiled himself and the interior of his automobile;

(iii) I find that he drove somewhat aimlessly in the maintenance yard and struck at least one other object. The pictures which are Exhibit 1 confirm the evidence of the civilian that he heard the vehicle striking other objects;

(iv) I find that he stumbled on exiting his automobile;

(v) I find that he smelled of alcohol, had a red face flushed with glossy eyes and he was moving in a manner which was consistent with a confused state;

(vi) I find that the opinion of the toxicologist indicates that with his blood alcohol level he would be impaired and this opinion is consistent with the other evidence.

[28] As per R. v. Stellato, and other cases, I must be satisfied that the Crown has proven beyond a reasonable doubt that the defendant was impaired, to any extent.

[29] I find that based upon the totality of the evidence, the Crown has met its burden and I find the defendant guilty of the offence of impaired driving.

Released: July 12, 2019

Signed: "Justice P.N. Bourque"