CITATION: R. v. Dos Santos-Freitas, 2021 ONCJ 490
DATE: September 8, 2021
Information No. 1211-998-18-3105
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
WANDERSON DOS-SANTOS-FREITAS
CHARTER RULING AND REASONS FOR JUDGMENT
REMOTELY BEFORE THE HONOURABLE JUSTICE S. N. LATIMER
on September 8, 2021, for a MILTON, Ontario proceeding
APPEARANCES:
R. Mahoney Counsel for the Crown
D. Marcovitch Counsel for Wanderson Dos-Santos-Freitas
WEDNESDAY, SEPTEMBER 8, 2021
CHARTER RULING AND REASONS FOR JUDGMENT
LATIMER J. (Orally):
These are my reasons for decision with regard to the following:
A Crown application to have a witness testify remotely.
A defence application to exclude evidence under the Charter.
After having addressed these motions, I will provide reasons for judgment regarding the two charges Mr. Dos-Santos-Freitas faces.
First, what follows are my reasons for decision with regard to the Crown's application to have a civilian witness testify remotely during this impaired driving trial.
...PROCEEDINGS HEARD BUT NOT TRANSCRIBED AS PER ORDER FOR TRANSCRIPT
CHARTER RULING
Next, I will address the Charter application. Mr. Dos Santos Freitas alleges that the police violated his Charter rights in two discrete ways. First, that he was arrested without reasonable and probable grounds, and secondly, that his Section 8 privacy interests were infringed when he was videotaped at the police station in his cell area.
I will address the grounds issue first. The law in this area is well known and likely does not bear repeating. I will determine what information was in the arresting officer's mind when he made the decision to arrest Mr. Dos Santos Freitas and then consider whether the officer's subjective belief was objectively reasonable.
Constable Westhead was an officer for the OPP on patrol on the Queen Elizabeth Highway when he received a radio call relaying a driver complaint about a truck being "all over the road" and almost hitting a guard rail. The truck's likely current location was discerned, and the officer attempted a traffic stop. He described his lights and siren failing to get the driver's attention in heavy traffic. Ultimately, he drove his cruiser next to the applicant, who was the driver, to the right of the vehicle. He described the applicant "looking slowly over at me with a vacant look in his face".
The officer motioned Mr. Dos Santos Freitas to pull over, which he did in what was described as a "leisurely manner".
I will pause here to make two relevant findings. First, I do not believe I can place any weight on the alleged leisurely manner in which the applicant pulled off the road once alerted to the officer's presence. The road was filled with traffic and it was a major highway. One person's descriptor of "leisurely" might be another person's "safely". I do, however, accept the officer's evidence about the vacant look on the applicant's face and contrary to the defence submission believe in context that it is a reasonable point for the officer to rely upon. He was looking for an impaired driver who was operating his vehicle poorly on the roadway. The applicant did not notice the lights and siren and seemed unaware of the officer while looking at him. I am satisfied that perceived disorientation is a factor that a trained police officer can consider in assessing grounds, and I accept that is what occurred here.
Returning to the traffic stop, the officer described a strong odour of alcohol on the applicant's breath as well as red, bloodshot eyes. There was also a thick accent but no slurring of words, nor was there any evidence of slow reactions during the traffic stop interaction or the applicant fumbling with documents. He told Officer Westhead that he had "only two Coronas". He was driving the car without a shirt or shoes. At this point, an arrest for impaired driving occurred.
I am satisfied there was an objectively reasonable basis to conduct that arrest. The combination of bad driving evidence, the applicant's vacant expression, and demonstrated lack of awareness about the flashing lights and siren behind him, his general state of disrepair - that is driving without shoes - and the strong odour of alcohol on his breath all contribute to establishing a credibly based probability that he was driving his truck on the QEW while impaired by alcohol. I appreciate there was also information available to the officer that did not suggest impairment. Some of this information I have already reviewed. But the absence of these other potential indicators of impairment do not render this officer's conclusion unreasonable.
I am satisfied on the whole of the evidence that Officer Westhead, an experienced officer, considered everything he was obliged to consider and made a lawful discretionary decision to conduct an impaired driving arrest. He was under no obligation to conduct roadside testing before making such a decision. I am satisfied that given the information available to him at the time of the arrest his decision was reasonable. The arrest was Charter compliant.
I will now move on to the next Charter issue relating to the recording of the applicant in the cell area. This issue is commonly referred to as the Mok issue, after a leading case in this area. The applicant raises this issue in this case because the police recorded him washing his hands in his cell area while not wearing a T-shirt and with shorts that sat low on his waist. The result is that the top portion of his buttocks area, what the officer accurately described as "part of the top of his bottom" was visible on the surveillance camera.
The applicant's testimony is that this recording stripped him of his dignity. His legal position is that this part of his body was recorded by the state in part due to the fact that he had not received his T-shirt sooner from the police as requested. It is submitted that he has a reasonable expectation of privacy in the circumstances, and that the videotaping in these circumstances unreasonably infringed upon his Section 8 right. Further, it is submitted that the violation should result in exclusion of his subsequent breath readings.
Assessing this issue is always a fact specific exercise. It is important for a trial judge to scrutinize, among other things, (1) the information conveyed to a detainee about the existence and location of recording devices, (2) the detainees understanding of that information and their corresponding conduct, and (3) the particular body part and activity caught on video. For the reasons that follow, I do not accept that Mr. Dos Santos Freitas's Charter rights were violated when he washed his hands in the sink in his cell area and, in so doing, bent over slightly at the waist revealing the top portion of his buttocks.
I note that the evidence in this case is considerably different than what was pled in the applicant's materials, which alleged that "the upper half of his anal orifice could be seen while he was washing his face". The anal orifice, or anus, is commonly understood in medical terms to be the lower opening of the digestive tract through which fecal matter is excreted. At no point was this area of the buttocks, or anywhere close to it, visible on the recording. What is visible is part of the top of the buttocks, what I believe someone in this proceeding referred to as the dimples that sit somewhere between where the torso ends and the buttocks begins.
I have listened to the evidence in this case and considered the submissions of counsel and come to the following factual conclusions in this matter.
- I cannot accept Mr. Dos Santos Freitas's evidence on many of the important aspects of this issue.
I do accept he had been working all day in the hot sun cutting trees with his friend and having "a few drinks" and that he thereafter drove to the LCBO and then home. On the day he testified in court he said it was a "very hot day like today". I noted on that day that the current temperature was in excess of 30 degrees Celsius. It was a truly hot day. This heat and Mr. Dos Santos Freitas's exertion cutting trees helps explain why he was shirtless driving his vehicle when he was stopped by the police. I do not accept his testimony about the police physically preventing him from putting his shirt on during the traffic stop. First, because it makes no real sense. Why would the officer care if his shirt was on or off? Second, I found Officer Westhead a credible officer and one who was corroborated by Officer Flynn regarding the shirt. I accept Westhead when he said that he did not prevent the applicant from putting his shirt on, nor did he deny him access to the shirt. I accept Officer Westhead asked Officer Flynn to get the shirt. We see the shirt on the video in booking. My acceptance of Officer Westhead's corroborated evidence on this point caused me to reject the applicant's evidence about being prevented from wearing his shirt.
Additionally, my distrust of the applicant's testimony causes me to reject his entire version of events at the roadside. His description of trying to put his shirt on is hard to follow. There is no explanation offered for why he would drive without shoes, which is strange behaviour. I reject his suggestion that Westhead would not answer his questions about why he was stopped and his testimony that he was not driving in the manner described by Westhead. I accept that he was.
- I find that Mr. Dos Santos Freitas was aware that he was being recorded while in the booking area and while in the cell area.
First, he agreed that he knew he was. In cross-examination, he was asked if he had been told about the videotaping and he agreed that he had been told. I note this answer is inconsistent with what he said in-Chief, when he testified he did not recall whether he was told about cameras. I further accept that he knew he was being recorded because I accept the officer's evidence, corroborated by my view of the video and the signage at the station both inside and outside of the cell.
While the officers spoke to Mr. Dos Santos Freitas in English, I am satisfied he would have understood and did understand. I note during his testimony at trial he answered several questions in English without the assistance of the Spanish interpreter. I find that he knew he would be recorded in the cell area.
INTERPRETER: Your Honour, it's Portuguese interpreter.
THE COURT: Portuguese. Forgive me. I'm sorry, I, I knew.
- I further find as a fact that he was provided a blanket for warmth and actively chose to essentially discard it once he entered the cell.
I do not accept his testimony about modesty concerns because if he had such concerns, the blanket was a ready solution to the problem. His casual approach to the blanket undermines his testimony in this area.
- I further find as a fact that there are relevant safety concerns that justify video monitoring of detainees in a police station.
Officer Westhead testified to prisoner safety concerns. These concerns are reasonable. What the caselaw makes clear, however, is that the police must make reasonable accommodation in the circumstances to ensure that the video recording of detainees does not intrude upon their reasonable expectation of privacy which, while diminished, still exists in this context.
- I further accept the applicant was told about the availability of a privacy gown but did not specifically request one.
While I am sympathetic to the defence argument that the police should be more proactive on this particular point, for example, 'Here is a privacy gown, take it with you, this is how you use it,' I do not believe this point to be of much relevance to the present facts. I find that had such a gown been given proactively, as it should as a best practice, in this case it nevertheless would have been treated by the applicant in the same casual manner as the blanket.
- Most significantly, the act of washing one's hands - even in the present context, that is, shirtless, slightly bent over while wearing shorts - is in no way comparable to the private act of urination or defecation. I would not describe it as a private act. It certainly does not meet the definition of "a highly intrusive invasion of privacy". (R. v. Mok, 2014 ONSC 64, at para. 81)
The applicant was recorded on camera washing his hands in a cell sink in circumstances where the top part of his buttocks was partially exposed. This is neither a private act nor a particularly private part of the body.
This case is materially different from Singh, 2016 ONSC 1144. First, Mr. Singh was not aware of the recording; Mr. Dos Santos Freitas was. Second, Mr. Singh was urinating; Mr. Dos-Santos-Freitas was washing his hands. I do not accept that such an act attracts an objectively reasonable expectation of privacy in this context. Further, I do not accept that Mr. Dos Santos Freitas had a subjective expectation of privacy, despite his testimony that he did. If he was so concerned about his dignity, he would have made use of the blanket he was provided. I find he was not so concerned.
I find on the facts of this case that Mr. Dos Santos Freitas has not established a reasonable expectation of privacy that was infringed upon by the state action of videotaping him in the cell area. His Section 8 argument fails.
In the event I am wrong on this point, I can advise that I would not have stayed the proceedings or excluded the breath samples on the basis of the videorecording in this case. The applicant was aware of the recording and did not specifically ask for a privacy gown. The police obtained his shirt for him which he freely was not wearing while driving. The intrusion, if it existed, was minimal. There is an absence of a causal connection between the recording and the breath samples. See Walker, 2020 ONSC 2139 paragraphs 113 through 114.
Finally, there is a strong societal interest in the admission of this reliable evidence in a case of a vehicle being driven on a heavily populated 400-series highway. Ultimately, the applicant's request for a Charter remedy is dismissed.
END OF CHARTER RULING
REASONS FOR JUDGMENT
Upon admission of the evidence, I find him guilty of the over 80 offence. All elements of the offence have been made out.
With regard to the impaired operation count, I can summarily advise this charge has not been proven by the Crown beyond a reasonable doubt. In my view,
while Officer Westhead was justified in relying upon the information he received at the time that he received it, following cross-examination Ms. Rici's evidence - the civilian witness - was diminished.
Further, the one part of Mr. Dos Santos Freitas's evidence that I do accept is his fatigue from cutting trees all day. Given the entirety of the evidentiary record, I am not certain that the impaired count has been proven. I find I have a doubt. There will be an acquittal on that count.
Disposition
Mr. Dos Santos Freitas is guilty of driving over 80. He is not guilty of impaired operation.
Those are my reasons.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Laura Rowsell, certify that this document is a true and accurate transcript of the recording of R. v. Wanderson Dos-Santos-Freitas, in the Ontario Court of Justice held on September 8, 2021 at 491 Steeles Avenue East, Milton, Ontario, taken from Recording No. 1211_15_20210908_091629__6_LATIMESC.dcr, which has been certified in Form 1.
Date: September 24, 2021
“ELECTRONIC COPY”
Laura Rowsell, Authorized Court Transcriptionist #1611571159
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