Court File and Parties

Ontario Court of Justice

Date: February 21, 2020

Court File No.: Guelph # 19/759

Between:

Her Majesty the Queen

— and —

Ewa Niedbala

Before: Justice M.K. Wendl

Heard: January 22 and 23, 2020

Reasons for Judgment Released: February 21, 2020

Counsel

J. MacDonald — counsel for the Crown

I. Isenstein — counsel for the defendant Ewa Niedbala

Judgment

WENDL J.:

Introduction

[1] Ewa Niedbala is charged with operating a conveyance with a blood alcohol level equal to or exceeding 80 mg of alcohol in 100 mL of blood.

[2] Ms. Niedbala raises four issues in her defence:

1. The reliance by Constable Longo on the ASD failure was not objectively reasonable.
2. The manner in which she was detained, that being held in the cells, after her last breath sample at 2:19 am, until she was brought out to sign her promise to appear at 3:33 am, was arbitrary.
3. Her right against unreasonable search and seizure was violated because she was videotaped going to the washroom, in her cell, with a privacy blanket covering her.
4. Her right to counsel was violated because she was funnelled to duty counsel.

Background Facts

[3] Ewa Niedbala spent the afternoon of February 16th, 2019 snowboarding. Afterwards, she went to a friend's home in Guelph. There, she had a few drinks and made the decision to drive home. On her way home, at 1:06 am, she was stopped by a RIDE program on the Hanlon Parkway. Constable Longo detected the odor of alcohol coming from Ms. Niedbala. Ms. Niedbala also admitted to the consumption of alcohol and had red glossy eyes. At 1:07 am, Constable Longo formed a reasonable suspicion that Ms. Niedbala had alcohol in her system. At 1:08 am, Constable Longo made a roadside demand to Ms. Niedbala and administered the approved screening device.

[4] Ms. Niedbala failed, she was arrested for operating a conveyance with a blood alcohol level equal to or exceeding 80 mg of alcohol in 100 mL of blood at 1:10 am. Constable Longo then read to Ms. Niedbala the right to counsel, which she declined, and the breath demand, which she understood. At 1:16 am, Ms. Niedbala was transported to the police station. They arrived at 1:33 am.

[5] At the station, Constable Longo reiterated Ms. Niedbala's right to counsel and advised her that since she does not have a lawyer, she can speak to a free one i.e. duty counsel. Ms. Niedbala accepted and duty counsel was called at 1:38 am. The call lasted from 1:42 am to 1:49 am.

[6] When asked if she was satisfied with the advice she received from duty counsel she said, "I guess so" and then proceeded to try and explain what was told to her. Constable Longo interrupted at that point, because it is inappropriate for the police to solicit what advice an accused has received, and asked again if she was satisfied, yes or no. Ms. Niedbala advised that, yes, she was satisfied.

[7] The first breath sample was taken at 1:56 am and the second breath sample was taken at 2:19 am. She blew over the legal limit both times. She was then taken to the cell area. At around 2:24 am Ms. Niedbala, who was covering herself with the privacy blanket, went to the washroom. This was caught on videotape.

[8] At 2:29 am, Ms. Niedbala called a friend to pick her up. By 3:14 am he was not there, so Constable Longo invited her to call again and find out when he would get there. Ms. Niedbala was brought out of her cell at 3:33 am to sign her promise to appear. Ms. Niedbala left the station at 3:40 am with her ride.

Issue 1: Was Constable Longo's Reliance on the ASD Fail Objectively Reasonable?

[9] Yes. First, Constable Longo took note of the calibration date and the accuracy check of the ASD device, they were both within range. Second, she performed a self-test prior to administering the ASD. Third, she was aware that the ASD is calibrated to fail at 100 mg of alcohol in 100 mL of blood. Constable Longo had appreciation for the workings of the ASD device.

[10] The applicant, however, takes issue with the fact that Constable Longo made no inquiries about recent consumption of food or sugary juices. This, the applicant posits, undermines the objective reasonableness of Constable Longo's belief.

[11] I disagree. Constable Longo saw no evidence of the recent consumption of food or sugary juices that would undermine her subjective belief, or the objective reasonableness of that belief, that the reading from the ASD device was accurate. Moreover, there is no constitutional requirement to inquire about the recent consumption of food or sugary juices. As I stated in Dickson:

As the Court of Appeal recently re-articulated in Notaro, there is no constitutional obligation to inquire about the presence of mouth alcohol, by implication there is no constitutional duty to inquire about food or sugary juice.

[12] Simply put, without some evidence of recent consumption of food or sugary juices, the subjective/objective reasonableness of Constable Longo's belief cannot be undermined.

Issue 2: Was Ms. Niedbala's Detention in the Cells Between 2:20 am and 3:33 am Arbitrary?

[13] Initially, in her application, Ms. Niedbala argued that she was overheld. Counsel properly conceded that this was not the case. A phone call was made for a ride home almost immediately after the final breath test and the reasons Ms. Niedbala remained in custody was the time it took for that ride to get there and for Constable Longo to finish the paperwork to release her.

[14] However, counsel now argues that she should not have been held in the cells while waiting for that ride. This is a novel argument for this court. Neither counsel provided me with appellate authority to guide this analysis.

[15] Constable Longo advised that it is her policy to detain accused persons in the cells. She testified that it is for their own safety. She is responsible for arrestees in her custody. Ms. Niedbala, at this point in the investigation, and to the knowledge of Constable Longo, had blown over the legal limit and shown poor judgement by driving over that limit. Her sobriety was a veritable concern.

[16] Constable Longo also testified that after Ms. Niedbala completed her breath test, it was Constable Longo's task to organize a ride home for Ms. Niedbala and to finish the police paperwork so Ms. Niedbala could be released. Effectively, by placing Ms. Niedbala in the cells, which are video recorded, Constable Longo testified that she could ensure her supervision, make sure she was safe and make sure she did not wander off while she finished the paperwork. Fundamentally, this guaranteed that Ms. Niedbala was in a safe place and allowed Constable Longo to complete her tasks with expediency, which she did.

[17] In undertaking this analysis, it must be remembered that Ms. Niedbala was validly under arrest until she signed the promise to appear sometime after 3:33 am and before 3:40 am. The fact that Ms. Niedbala could be arrested for the charge of "80 plus" was not challenged. Arrest is defined as "seize (someone) by legal authority and take into custody." Effectively, while under arrest, Ms. Niedbala was in the control and custody of the police. By necessary implication, this involves the restraint of her liberty.

[18] Without having guidance from appellate authority as to what would constitute an arbitrary detention in relation to the manner of detention, I believe that, on the face of it, placing someone in a cell after a valid arrest is not arbitrary as long as the detention is not longer than necessary, and the conditions are acceptable. Basically, an arrest involves the restraint of liberty and police control over it. That is what happens when one is put in a cell, police enforce control over the detainee's liberty. For counsel to be successful in their argument that Ms. Niedbala should not have been held in the cell, they would need to argue that she should not have been arrested and only charged. That was not done.

[19] Leaving that aside, Constable Longo had ample reason to keep Ms. Niedbala in the cell after the second breath test, even with Ms. Niedbala's noted co-operation and politeness. Constable Longo made the decision to release Ms. Niedbala shortly after her second breath test. This is evidenced by the fact that a ride was called for her at around 2:30 am, around ten minutes after the second breath test. Therefore, two things were keeping her in custody at this point: (1) Constable Longo's decision to release her to a responsible person and (2) finishing the paperwork.

[20] First, Constable Longo's decision to release Ms. Niedbala to a responsible person was reasonable and prudent. Ms. Niedbala was over the legal limit, she exercised poor judgment in driving and the arrest was clearly an emotional situation for her. Furthermore, Constable Longo undertook that exercise with alacrity, she took steps to get Ms. Niedbala out of the cells and out of detention as quickly as she could. Moreover, when Ms. Niedbala's ride was not there by 3:14 am, she had Ms. Niedbala call and follow up. Constable Longo's conduct must be viewed as diligent in this regard.

[21] Second, Constable Longo had to finish the paperwork so that Ms. Niedbala could be released. Again, that was done quickly. It was ready for Ms. Niedbala when she was ready for release. Ensuring Ms. Niedbala was properly supervised allowed her to make sure she was released as quickly as possible.

[22] Moreover, there is nothing in the evidence that leads me to believe that the cell conditions were anything but acceptable.

[23] To summarize, in my view, a valid arrest allows the police to place an arrestee in a cell, subject to it not being longer than necessary and that the conditions are acceptable. Leaving that aside, Constable Longo had valid reasons to keep Ms. Niedbala in a cell between 2:20 am and 3:33 am. Essentially, keeping Ms. Niedbala in the cells ensured that she was properly supervised, it kept her safe from potential hazard found at a police station, and ensured she would not leave without having someone there to pick her up. Finally, and significantly, Constable Longo acted with dispatch to get Ms. Niedbala home and out of the cells.

Issue 3: Was Ms. Niedbala's Right Against Unreasonable Search and Seizure Violated Because She Was Videotaped Going to the Washroom in Her Cell with a Privacy Blanket Covering Her?

[24] Constable Ron Smith testified that the policy of videotaping at the OPP station was developed in response to several Inquiries about detainee safety. As a result, detained persons, while in cells, were being videotaped going to the washrooms. In Mok, the court found that to be an intrusion into the privacy of the detainee and a breach of Section 8 of the Charter.

[25] In response to that issue, the OPP developed a policy of pointing out the cameras to the detainees and providing them with a privacy blanket so they could cover themselves up while going to the washroom.

[26] Ms. Niedbala went to the bathroom in her cell. She covered herself up with the privacy blanket, she was otherwise fully covered except for part of her leg which showed for a brief moment. She was aware of the video cameras.

[27] The applicant argues that despite the precautions of pointing out the videotaping and the privacy blanket, I am bound by Singh and there is a breach. In Singh, a summary conviction appeal, the accused was caught on video urinating, his back was to the camera and he was fully clothed at the time. The accused, in that case, testified that he was not aware that the cells, where he urinated, were videotaped. He was not offered a privacy blanket and there was no washroom privacy policy at the time of his arrest.

[28] The summary conviction appeal court engaged in the following analysis. First, it found that the accused had a direct and personal interest in his private washroom activities. Second, the court found that he had a subjective expectation of privacy since he was not aware that he was being videotaped while urinating. Third, the court found an objective expectation of privacy in taking care of basic bodily functions. Campbell J. relied on the following quote from Mok:

I agree with the trial judge's conclusion that 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.

[29] In the instant case the facts are different. First, Ms. Niedbala was aware of the videotaping where Mr. Singh was not, impacting her subjective expectation of privacy. Second, Ms. Niedbala received a privacy blanket, which she used. This is important. In finding an objective expectation of privacy Campbell J. relied upon the above quote from Mok, wherein Boswell J. appears to posit that modesty screen would be sufficient to protect the privacy interest of the accused.

[30] In my view, Ms. Niedbala's awareness of being videotaped and the use of the privacy blanket sufficiently protects Ms. Niedbala's privacy interest against that of the state's interest in monitoring its detainees in custody. I find no breach.

Issue 4: Was Ms. Niedbala Funnelled to Duty Counsel?

[31] Based on the facts that came out in this case, counsel appropriately conceded that this Court was bound by Ruscica. However, based on these same facts I feel it is incumbent upon me to comment on the following practice by police: asking the accused if they are satisfied with the advice they received from duty counsel.

[32] After speaking to duty counsel, Ms. Niedbala was asked if she was satisfied with the advice she received from duty counsel. She responded, "I guess so". When asked during the voir dire why she responded in that manner, she stated she had never been in a situation like this and did not know what to expect, a very understandable response for someone who has never been arrested before or has had to seek a criminal lawyer's advice. Ms. Niedbala, also understandably, based on the question as to whether she was satisfied with the advice she received, began telling the officer what it was until Constable Longo told her to stop.

[33] The quality of advice from counsel is not a proper matter for police inquiry.

While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided.

[34] Asking detainees if they are satisfied with advice they receive from counsel invites exactly what happened here, the accused wanting to discuss the advice they received with the police.

[35] Moreover, it is not necessarily helpful to the courts. The legal issue the courts have oversight for is not the quality of advice received from counsel, but the reasonable opportunity to access counsel.

[36] In my view, if the police are to ask a question it should be geared to the opportunity to speak with counsel not to the quality of advice received. Some variation of "are you satisfied with your opportunity to speak with counsel" or "do you feel you had a chance to speak with a lawyer" is more appropriate.

Conclusion

[37] Since I find no breach of Ms. Niedbala's rights and the certificate of analysis is otherwise admissible, I find Ms. Niedbala guilty of operating a conveyance with a blood alcohol level equal to or exceeding 80 mg of alcohol in 100 mL of blood.

Released: February 21st, 2020

Signed: Justice M.K. Wendl