ONTARIO COURT OF JUSTICE

CITATION: R. v. Lacku, 2019 ONCJ 88

DATE: 2019 02 13

COURT FILE No.: Niagara Region 998 18 S0354

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Emil Lacku

Before Justice J. De Filippis

Heard on August 23 & October 31, 2018

Reasons for Judgment released on February 13, 2019

Mr. H. Limheng.................................................................................... counsel for the Crown

Mr. V. Paskarou........................................................................... counsel for the defendant

De Filippis, J.:

INTRODUCTION

[1] The defendant is charged with operating a motor vehicle with a blood alcohol level that exceeded the legal limit (”Over 80”). I have concluded that the charge should be dismissed. These are my reasons.

[2] On January 13, 2018 at 11:35 PM the defendant operated a Mercedes Benz on the Queen Elizabeth Way, with his wife as a passenger. P.C. Thourson, a member of the Ontario Provincial Police (O.P.P.), caused that motor vehicle to stop as he determined that his speed was 142 km/hour in a posted zone of 100 km/hour. In speaking to the defendant the officer detected an odour of alcohol emanating from his breath and demanded that he provide a sample of his breath into an approved screening device. The defendant did so and registered a fail. He was immediately arrested at 11:45 PM. At 11:54 PM the officer informed the defendant of his right to counsel, including the availability of duty counsel. The defendant stated that he would like to contact Mr. Theodor Furtado and identified him as a commercial lawyer from Woodbridge.

[3] At 11:56 PM, the defendant was cautioned and subjected to a breath demand. At 11:59 PM, the officer transported the defendant to a nearby O.P.P. station, arriving at 12:17 AM. At his request, the defendant was immediately taken to a washroom. He used the facilities again later that evening. At 12:21 AM, the defendant spoke privately with duty counsel. Afterwards, P.C. Prikken, a qualified technician obtained two suitable samples of the defendant’s breath with the use of an approved instrument. The resulting readings were 120 and 100; that is, the defendant had a blood alcohol level that was above the legal limit. Before the breath samples were seized P.C. Prikken asked the defendant if he had consulted a lawyer. The defendant replied that he had spoken to duty counsel. The officer did not ask if he was satisfied with that advice and the defendant did not complain about it. The defendant elected not to respond to any other questions put to him by the officer.

[4] There is no dispute about the integrity of the breath test results. The Defence in this case rests on the assertion that this evidence should be excluded because the defendant’s rights, as set out in sections 8 and 10(b) of the Charter of Rights and Freedoms were violated. The section 8 claim arises because the defendant was video recorded as he urinated at the station. The section 10(b) claim is two-fold; that the defendant was not provided with his right to counsel immediately and that he was dissuaded from speaking to counsel of choice. I will deal with the right to counsel issues first.

[5] Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search or seizure”. Section 10(b) states that “Everyone has the right on arrest or detention….to retain and instruct counsel without delay and to be informed of that right”. Section 24 sets out the remedy available to persons whose rights have been violated by the Crown and its agents:

(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.

(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.

[6] Where, as here, there has been a warrantless search, the Crown caries the burden of proof to rebut the section 8 claim. The defendant must prove the section 10(b) violation (on a balance of probabilities).

WAS THE DEFENDANT PROVIDED WITH HIS RIGHT TO COUNSEL IMMEDIATELY?

[7] P.C. Thourson arrested the defendant at 11:45 PM. The officer noted that the defendant was polite and respectful during the events that followed. He conducted a pat-down search and emptied the defendant’s pockets. This yielded cash and a cellular telephone which, after discussion with the parties, he turned over to the defendant’s wife. The latter had questions for the officer. She was, no doubt, upset and confused. The officer testified that in answering all questions he explained the arrest to her as well as the next steps in the process. Having done so, nine minutes after the arrest, the officer advised the defendant of his right to counsel. P.C. Thourson testified that he understands that he is obligated to provide the detainee with his/her rights to counsel “as soon as practicable”. That is his usual practice. The defendant testified that he appreciated the officer took time to explain the situation to his wife and that he was treated fairly by the officer.

[8] In R. v. Suberu, 2009 SCC 33, it was held that a person arrested or detained must be provided with his/ her rights to counsel immediately (at paras. 40-41). The Defence argues that nine minutes is not immediately and that the officer’s practice of doing so as soon as practicable is contrary to what the Supreme Court of Canada directed. The Defence submits that it should have been obvious that the officer was not dealing with a violent individual and there were no concerns for officer safety. Counsel concluded as follows: “PC Thourson simply chose to engage in other non-essential tasks, such as having a conversation with the defendant’s wife, rather than providing the defendant with his rights to counsel”.

[9] With the benefit of hindsight it is easy to conclude the defendant was not a security risk. It does not follow that, at the time, this “was obvious”. Polite and outwardly calm people can do bad things. The arresting officer acted properly in addressing safety issues. Moreover, I am not troubled by the fact that he characterized his duty to inform a detainee of the right to counsel to mean “as soon as practicable”. It is reasonable to conclude that what he meant was “immediate except in certain circumstances”. This is the correct approach. The requirement that the police advise a person under arrest or detention of the right to counsel without delay is subject to concerns for officer or public safety or such other lawful reasons (Suberu, para 42).

[10] The Crown submits that actions in delaying rights to counsel fall within the ambit of “concerns for officer or public safety” and was therefore justified. Counsel fairly described the events, as follows:

P.C. Thourson had arrested Mr. Lacku and was to secure him in his cruiser. A search incident to arrest was conducted for officer safety purposes. It is entirely logical, that if PC Thourson is going to keep Mr. Lacku in his cruiser that he ascertain if Mr. Lacku had any items which could be used as a weapon or means of escape, especially if being handcuffed to the front, prior to engaging in what can be a complicated conversation regarding rights to counsel. It is also perfectly logical that PC Thourson would have to deal with whatever was found pursuant to the search, in this case relatively benign personal possessions, but nonetheless, needed to be dealt with. It was a mutual decision to allow Mr. Lacku’s wife to keep possession of the items. Likewise, a conversation ensued with Mr. Lacku’s wife to explain what was going on with Mr. Lacku

[11] The Charter motion, based on the nine-minute delay described above, is without merit. It is not prudent for the police to proceed immediately to the informational component of section 10(b) without regard to what is happening around them – and the law does not require this; see R. v. Bernard, [2018] O.J. No. 4580 (Sup Ct). In any event, I reject the submission that P.C. Thourson violated our Charter values because he took a few minutes to explain to an anxious person what was about to happen as a result of her husband’s arrest. He was

WAS THE DEFENDANT DISSUADED FROM CONTACTING COUNSEL OF CHOICE?

[12] Once informed of his rights, the defendant told P.C. Thourson that he wished to contact, Mr. Furtado, his commercial lawyer in Woodbridge, Ontario. The officer testified that during the drive to the station, he changed his mind and said he wanted to speak to duty counsel. The officer denied the suggestion that he caused the defendant to change his mind. He agreed that his notes about the conversation in the cruiser are limited and added, “I can absolutely tell you I never suggest or refer or direct a detainee to a particular lawyer….I never suggest anything or give any legal advice as I am not qualified to do so”.

[13] The defendant is 40 years old. He is an American citizen with landed status in Canada. He has been here for 19 years and operates a business, based in Oakville that insulates custom made homes. He testified that he recalls the evening well as he has never been arrested before. The police stopped him after he and his wife left Niagara Falls after celebrating their wedding anniversary. He testified that as he was being transported to the station he engaged in “small talk” with the officer about matters unrelated to his arrest. He also stated that the officer “wanted to help me out and said this is a criminal matter and I should speak to a criminal lawyer”. He explained that this is why he spoke to duty counsel; “I was scared, it all happened quickly, all I wanted to do is cooperate with the police…without the conversation with the officer at the scene I would have gone with my gut and spoken to Furtado. The defendant added that, “without getting into specifics”, he was not satisfied with his discussion with duty counsel.

[14] Defence counsel argues that P.C. Thourson’s account of this discussion is unreliable because of his failure to make detailed notes of it. Counsel noted, by contrast, that the defendant testified,

….in a forthright, logical and sincere fashion…. he does not have a criminal record or anything else that might impact on his credibility as a witness…. Finally, this incident was an unforgettable event for Mr. Lacku. This was the first and only time that he had ever been arrested, placed in handcuffs and taken to the police station. For all of these reasons, Mr. Lacku’s evidence should be preferred over that of PC Thourson.

[15] I have no doubt that this was a memorable evening for the accused. I believe him to the extent that there was a discussion about duty counsel. I accept that the officer told the defendant that duty counsel are trained in criminal law, or words to that effect. Such a conversation can undermine a detainee’s confidence in counsel of choice or otherwise lead to a violation of section 10(b). Counsel of choice is a fundament right and police officers have no business interfering with a decision by a detainee about that choice: R. v. Lewis, 2015 ONSC 6957.

[16] The fact that PC Thourson spoke about duty counsel does not mean the Charter claim succeeds. There is no reason to disbelieve the officer’s assertion that he would never direct a detainee to a particular lawyer. I do not accept the suggestion that arises in some other trial decisions brought to my attention that a section 10(b) rights are compromised by the mere fact that there is a discussion about the right to counsel after a detainee has identified counsel of choice. Context is important. In this case, I reject the submission that the defendant “was in no position to insist in speaking to Mr. Furtado”. Indeed, I reject the defendant’s evidence that he spoke to duty counsel only because he was frightened and wanted to cooperate with the police. I find the defendant was not reasonably diligent in exercising his right to counsel (of choice). I come to this conclusion for several reasons.

[17] The defendant presented as an intelligent and articulate person. In cross-examination, he did not shy away from challenging the Crown by responding with rhetorical questions. I do not suggest this was inappropriate but to point out that he was not intimidated by being a witness in a courtroom. At the time of these events, the defendant was lucid and courteous. He appreciated the officer’s efforts to calm down his wife and felt he was being treated fairly. He was obviously upset at being arrested but nothing he did or said suggests that he was overwhelmed or frightened. For example, the defendant (perhaps, on the advice of duty counsel) chose not to answer questions put to him during the breath testing procedure.

[18] I am confident the defendant exaggerates his fear and confusion. I am equally confident that his decision to speak to duty counsel, rather than Mr. Furtado, was freely made, without improper interference by the police. In this regard, I am not impressed by the defendant’s claim to be dissatisfied with duty counsel. He did not complain about this at the time. Defence counsel points out that this is not a bar to raising the issue at trial. Quite true. But the fact that it is raised for the first time at trial is something I can consider in determining whether to believe him. Moreover, he testified about the claim “without getting into details”. Well, details matter. For example, it could be that the defendant was dissatisfied with duty counsel simply because he did not like the legally sound advice he was given.

[19] The defendant has not persuaded me that his right to counsel of choice was infringed.

WAS THE DEFENDANT’S RIGHT TO PRIVACY VIOLATED BY THE VIDEO RECORDING IN THE WASHROOM?

[20] P.C. Thourson testified that during the drive to the police station, the defendant said he needed to use the washroom. On arrival, he was immediately taken to the cells and the officer pointed to the toilet. The defendant urinated. This is captured on camera. On the wall above the toilet is a large sign that states the cell is under video surveillance.

[21] The defendant testified that he was first advised of the existence of the camera later that evening, by P.C. Prikken, the technician who took his breath samples. He added that he did not notice the sign on the cell wall the first time he used the facilities as he had an urgent need to urinate. I accept this evidence. My review of the video, about which I will say more in a moment, demonstrates that the defendant went about the business of urinating without attention to his surroundings. The defendant used the washroom a second time later in the evening. By this time, he was aware of the video monitoring.

[22] According to P.C. Thourson, detainees must use the toilet located in the cell. There is no other option. He testified that the surveillance camera in that cell is occasionally live monitored at the front desk of the station. The video record is retained in the event there is an incident and for disclosure purposes.

[23] The video record shows the following: The cell door is open and a steel toilet is set against the wall opposite that door. A large sign warning about video surveillance is on that back wall, above the toilet. At 12:18 AM, the defendant enters the cell and stands at the toilet. As such, his back blocks the view two officers who walk by the open cell door. It would be obvious to them that the defendant is urinating but they cannot see the act. In any event, neither officer stops to look. The camera angle captures and records the defendant from the side and front. The hand that holds his penis is clearly visible, as is the urine stream into the toilet bowl. When he has finished, I can see his hand shake his penis and place it in his pants. The defendant then zippers up his pants and washes his hands. On the second occasion that the defendant used this toilet, his genitals are not seen as he used his other hand to partially block the camera angle. It remains obvious, however, that he is urinating.

[24] The Defence is correct that the defendant’s right to privacy is engaged in this case. Commencing about seven years ago, trial judges ruled that video recording a person while using the toilet, without reasonable discretionary measures, violates section 8 of the Charter. This view has been upheld by summary conviction courts of appeal: R. v. Deveau, 2014 ONSC 3756; R. v. Mok, 2014 ONSC 64; and R. v. Singh, [2016] O.J. No. 933.

[25] In R. v. Singh, supra, the headnote to the reported case accurately summarizes the decision by Justice Campbell:

Appeal by the Crown from the trial judge's finding the accused's s. 8 Charter rights were violated, exclusion of breathalyzer evidence, and acquittal from driving with blood alcohol over .08. The accused was stopped by RIDE program and failed the ASD test, so was arrested and taken to the detachment, where he provided breathalyzer samples showing 217 and 207 mg of alcohol per 100 ml of blood. The accused was advised that certain areas in the station were recorded by security video. Once before giving the samples, and twice after, the accused had to urinate, so was escorted by an officer to an empty cell with a toilet area to do so. The accused was not told this area was under video surveillance, and a video recording was taken of him urinating. The video only showed his clothed back, but it was clear that he was engaged in urination. The trial judge recognized the lower expectation of privacy in detention but found a minimal level was still reasonably expected, and the fact the accused's private parts were not seen did not detract from his privacy interest in this highly personal activity. The trial judge found his s. 8 Charter rights were violated, and excluded the evidence on the grounds the violation was serious, had a high impact on the accused, and the embarrassment and shame to the accused outweighed society's interest in a trial on the merits. Without the breath samples, there was no evidence on the driving with blood alcohol over .08 count, so the accused was acquitted.

HELD: Appeal allowed.

The recordings certainly touched up the accused's privacy, dignity and autonomy, and the evidence supported the trial judge's finding he was unaware he would be recorded while engaging in urination. The police still had to respect a minimal level of privacy for detainees, and security and safety interests did not justify wholesale recording of the entire station. This conclusion was supported by the weight of jurisprudence. The trial judge's conclusion on the s. 8 violation was correct.

SHOULD THE EVIDENCE BE EXCLDUED?

[26] In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors must be considered: (1) The seriousness of the Charter- infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society's interest in the adjudication of the case on its merits. The three factors to be considered are fact specific. After considering these factors, a court must then balance the assessments under each line of inquiry in determining whether admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, 2009 SCC 32.

[27] I agree with the Defence that the evidence of the breath samples should be excluded in this case. In this regard, I return to, and begin with, the headnote in R. v. Singh, supra:

…….The trial judge's conclusion on the s. 8 violation was correct. However, the trial judge erred in his s. 24(2) analysis, even on application of the deferential standard of review. On the first prong, the trial judge's finding the seriousness of the violation favoured exclusion was reasonable, though the police acted in good faith with respect to the overall policy and safety and security concerns. The trial judge's finding the impact on the accused was high was unreasonable. The accused's private parts were not observed or recorded even momentarily. This was truly the most innocuous way the accused's s. 8 rights could have been violated. Being observed from behind while urinating was similar to using a public washroom. In cases where evidence had been excluded, the videos had been much more intrusive. The trial judge also failed to consider the face the violation was not connected in any way to the evidence excluded. The trial judge thus failed to consider all circumstances as required by s. 24(2). Proper analysis under the second prong of the test favoured inclusion. Under the third prong, the trial judge correctly observed the breath results were reliable and drinking and driving presented a serious danger to society. The trial judge failed to expressly consider the fact the samples were vital to the Crown's case, though he did rightly conclude the third prong favoured inclusion. A proper balancing of all three factors in the circumstances of the case led to the conclusion the trial judge erred in excluding the evidence. The acquittal was set aside and a new trial ordered.

[28] The Defence asserts that the Ontario Provincial Police at this station adopted a “one size fits all policy” in which all detainees must use a toilet that is under surveillance. This, it is said, is particularly egregious because the defendant does not have a criminal record, was polite and cooperative throughout, and did not pose a safety risk to himself or others. With the benefit of hindsight, this submission is accurate. However, the police do not have the benefit of hindsight. They must take precautions to avoid harm and surveillance cameras are effective tools to do so. In R. v. Clarke, 2015 ONCJ 228, the court noted the public policy rationales underscoring the practice of using surveillance cameras in places of detention, including the recommendation by a coroner’s inquiry that cells be constantly video recorded.

[29] The police cannot be faulted for using surveillance cameras to monitor the activities of all detainees, notwithstanding how they present themselves. But they must do so with due regard to their dignity. That was not done in this case. Significantly, this issue is not a novel one. As noted, for at least seven years, courts have held that the police must take reasonable steps to afford a measure of privacy to detainees using the toilet. Some of these decisions have also suggested options for the police to consider. Several police forces have changed their practices accordingly. For example, the York Regional Police Service responded to the decision in Mok by digitally blacking out the toilet in the cell. The Guelph Police Service has done the same. In this case, that would have allowed the police to monitor the defendant’s activities in the cell without revealing and creating a video record of his genitals. I do not suggest such technology must be used. There are other options available. My point is that the O.P.P., at least at the detachment in question, has elected to do nothing in response to the judicial commentary with the result that the genitals of detainees, including this defendant, are routinely monitored and recorded as they use the toilet.

[30] This matter has arisen many times across the province, including at O.P.P. detachments; see R. v. Rowan, 2018 ONCJ 777. For this reason, the first branch of the Grant analysis favours exclusion of the evidence. In coming to this conclusion, I reject the Crown’s submission that the seriousness of the section 8 breach is mitigated by the fact that the defendant used the toilet a second time – when he knew the cell was under video surveillance. Indeed, I find that the notice of video surveillance above the toilet is irrelevant because there is no other option available to detainees. They must use this toilet.

[31] In dealing with the second branch of the Grant analysis, the Crown relies on R. v. Singh, supra, in arguing that the impact of the breach on the defendant’s Charter protected interests is not significant. However, the facts in that case are distinguishable: Mr. Singh was videotaped using the toilet with his back to the camera. His genitals were not captured on video. Justice Campbell acknowledged that the impact is far greater “where the video recordings of their washroom activities captured much more intrusive images of the naked private body parts of the accused” (para 42). The Crown also argues that the section 8 breach is unrelated to the seizure of the breath samples. That is true. However, a direct causal connection is not required to advance a Charter claim. A temporal one can suffice. Accordingly, on a traditional analysis of section 24(2) the second branch in Grant favours exclusion. On this approach, it is clear that when the first two branches favour exclusion, it will be a rare case in which the third branch – society’s interest in adjudication on the merits – will trump the result. That is so notwithstanding that the breath test results are highly reliable, that exclusion of the evidence is fatal to the prosecution, and that every person who drives while impaired and/or with a blood alcohol level above the legal limit is a risk to public safety.

[32] In the preceding paragraph I referred to the “traditional approach’ in determining if evidence should be excluded. That is because the Court of Appeal for Ontario recently re-visited how the section 24(2) analysis is undertaken when the evidence in question is a breath sample. In R. v. Jennings, 2018 ONCA 260, the OCA noted that the seizure of breath samples is minimally intrusive with respect to step two in Grant.

[33] In R. v. Howie, 2018 ONCJ 259, I explained why I consider Jennings to be significant (at paragraphs 40 – 41):

In balancing the interests mandated by Grant, the decision of the Court of Appeal in R. v. McGuffie, 2016 ONCA 365, [2016] 336 CCC (3d) 486, said the following:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

In my opinion, Jennings points to a different calculus when the evidence is the result of breath tests. In such cases, the first two inquiries may not work in tandem. As already noted, where a defendant seeks to exclude breath test results, the important question is how to weigh the result in the first stage in Grant in comparison with the others. That follows from the fact that the other two lines of inquiry will usually favour inclusion; the seizure of breath samples must be treated as minimally intrusive (stage two) and the nature of such evidence can always be said to be trustworthy and critical (stage three). The practical result is that in most over 80 cases, exclusion of the breath test results will require a finding of state misconduct that is significant or otherwise particularly troubling.[^1]

[34] I mention Jennings because it was addressed by counsel in submissions. However, assuming I am correct in my interpretation of it, the decision does not assist the Crown in this case. As I have explained, the Charter infringing state misconduct occurred against the background of repeated judicial pronouncements, over several years, about the issue in question. As such, it is particularly troubling and trumps the other factors in the Grant analysis.

RESULT

[35] The police did not violate the defendant’s rights to counsel. They did breach his privacy rights. The latter is sufficiently serious to warrant exclusion of the evidence needed by the Crown to prove guilt. The charge is dismissed.

Released: February 13, 2019

Signed: Justice J. De Filippis

[^1]: An appeal from this decision was dismissed, without reference to my comments about Jennings: R. v. Howie, 2019 ONSC 426.