DATE: May 11, 2021 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario

B E T W E E N :

HER MAJESTY THE QUEEN

-and-

TODD BUSCH

REASONS FOR JUDGMENT

Duncan J.

[1] The defendant is charged with impaired and exceed BAC. A pretrial 11b application has been dismissed. [1] On the trial he has raised Charter issues under sections 8 and 10b relating to police procedures on arrest and a further section 8 issue relating to monitoring and recording of his use of the toilet while in cells – a so-called Mok issue.

Evidence:

[2] Just after one o’clock in the afternoon of March 19 2019 the defendant was driving southbound on Dixie Road and failed to negotiate a right hand turn onto an intersecting street, Golden Orchard. Instead, he mounted the median and struck the traffic light pole.

[3] The incident was witnessed by another motorist who immediately stopped at the scene. He described the defendant driver trying to move the car, but it was hung up on the median and the tires just kept spinning. A tow truck was also almost immediately on scene. The police were called.

[4] Police officers from the marine unit, PCs Nichols and Shannon happened to be in the vicinity when they heard the dispatch and took a slight detour to the scene. On arrival they saw that the defendant was still in the driver’s seat and the engine was still running, He moved the car forward a short distance; the officers told him to stop. One of them reached in and took the keys from the ignition. The defendant was told to get out of the car. When he stepped out, he was unsteady on his feet.

[5] The two officers walked the defendant to the curb and had a brief interaction with him. They both formed the opinion that he was impaired and placed him under arrest and in handcuffs. Just about then an ambulance arrived. The police walked the defendant to the ambulance to have him checked out by paramedics.

[6] After about 15 minutes, the paramedics medically cleared the defendant and handed him back to the two marine officers. They in turn walked him over to the cruiser of Cst. Carvalho and turned him over, advising Carvalho that the defendant was under arrest for impaired driving and his rights to counsel had not yet been read. They then left the scene.

[7] Carvalho read the defendant his rights. He then read a breath demand. Carvalho then transported the defendant to the police station where he was put in touch with duty counsel. Following that call he was taken for testing to the breath room. He confirmed on video that he was satisfied with his consultation with duty counsel.

[8] The defendant provided samples of his breath at 2:36 and 3:00 pm each betraying a remarkable 280 mgs of alcohol in 100 millilitres of blood.

[9] Following the breath tests the defendant was held for about 4 hours in cells. During that time, he was under constant video watch and recording. He sat on the toilet on four occasions apparently defecating.

Section 8: Validity of breath demand

[10] It is argued that the demand for breath samples was not lawful because P.C. Carvalho could not recall when he received grounds from P.C. Shannon and conceded that it could have been either before or after making the demand.

[11] While Carvalho did make that concession, there was also evidence that the two marine officers left the scene immediately after the hand-off to Carvalho, who then took a couple of minutes before starting the RTC’s followed by making the breath demand. I accept that evidence and accordingly I am satisfied that despite Carvalho’s uncertainty, the information and grounds must necessarily have been received from Shannon before the demand. It could not have been after because Shannon was gone by then.

[12] Further, it is clear that officer Shannon, senior in years on the force, had told Carvalho that he had arrested the defendant and believed him to be impaired. That information conveyed to Carvalho that he, Shannon, had grounds for arrest and therefore also for a demand. In my view Carvalho was entitled to rely on this and was not required to gain his own grounds. In R v Debot, [1986] OJ No 994 30 CCC 3d 207 (CA) Martin J.A. in a closely analogous situation said: (P 221 CCC):

Frequently, in modern times, the particular police officer making an arrest or conducting a search is not the only officer concerned in the investigation out of which the search or arrest arose. It seems to me to be unrealistic and incompatible with effective law enforcement and crime prevention, when a police officer is requested by a superior or fellow officer to arrest or search a person suspected of the commission of a crime and to be fleeing from the scene, to require that police officer to obtain from his or her superior or fellow officer sufficient information about the underlying facts to enable him or her to form an independent judgment that there are reasonable grounds upon which to arrest or search the suspect

[13] Finally, even if there was a violation, it was a matter of no significance. The grounds were present, a demand could lawfully be made. The defendant was legally “searchable” for blood alcohol content. The fact that it was one officer rather than the other who made the demand had no effect on the defendant’s section 8 right to be secure against unreasonable search or seizure. Under 24(2) there could be no valid argument in favour of exclusion: See R v Padavattan, [2007] OJ No 2003 at para 77 (Sup Crt Ducharme J).

Section 10b: Delay in reading RTC

[14] It is argued that the delay in reading the rights to counsel following arrest constituted non-compliance with the immediacy requirement for the giving of that advice.

[15] The delay was about 20 minutes. The defendant was arrested at 1:25. He was immediately taken to the ambulance for assessment by paramedics. They cleared him at 1:42. He was transferred from the marine officers to Carvalho at 1:44. The marine officers left the scene. The rights were read to the defendant within two minutes of Carvalho taking custody. [2]

[16] It was perfectly reasonable for the police to proceed as they did. The defendant had been in a significant accident. A check of his physical condition deserved priority over rights to counsel. Delaying the medical check until after the RTC had been read (or skipping the med check altogether) could be potentially problematic from the standpoint of the defendant’s health and the officers’ liability if the defendant did have some latent injury or condition (like a stroke) that required immediate attention. Apart from that, delaying the medical check until after the RTCs (which sometimes takes a while) would unnecessarily detain the ambulance and crew and keep them from attending other duties or calls.

[17] These Charter violations considered singly or together could not possibly result in exclusion of evidence. The police acted reasonably throughout, and the defendant’s Charter protected interests suffered no deleterious impact.

The “Mok” Issue:

[18] Following the taking of breath samples, the defendant was held in cells for almost 4 hours before being released. During that time, he used the toilet in his cell to defecate on four occasions.

[19] The defendant’s cell was continuously live monitored and video recorded. The video shows a small narrow cell – my estimate around 12 x 5 feet - with a concrete and tile slab to sit or lie on and a toilet/sink combination at the rear left corner. The toilet faces the camera.

[20] In the recorded video the camera is mounted about seven feet high on the wall across a small hallway and looks down on the cell. This angle presents an image of the front of the cell at the bottom of the screen and the rear of the cell at the top. The front, lower part of the image is quite clear. The rear upper part of the image is not so clear. It is seen as through a light haze or fog. I initially thought that this was simply due to less lighting toward the back of the cell and/or poor camera quality. But having now viewed the recording several times, I am satisfied that the fog was an intentional attempt to obscure the view of the rear area of the cell, including the toilet. To my eye, the thickness of the fog seems to fluctuate slightly from moment to moment. The toilet area is also partially obscured by the bars of the cell.

[21] The defendant was provided with a “blanket” – an opaque yellow plastic sheet - within a couple of minutes of being put into the cell. He said that he was not told that it could be used as a privacy screen when using the toilet. The video shows the giving of the blanket to be a brief interaction. There was no demonstration.

[22] The defendant testified that he was not aware that he was being video monitored and recorded. If there were warning signs, they were not drawn to his attention and he did not notice them. It did not occur to the defendant that his toilet use was being monitored. However, he said he was aware of the possibility of being seen by anyone walking by the cell and attempted to minimize his exposure as a result. He is seen pulling down his pants to above the knees and quickly sitting and, when finished, standing and quickly pulling them up. He did not wipe himself because there was no toilet paper. [3] Despite the full-frontal camera angle, his genitals are not seen – possibly because of the way he moved, the length of his shirt, his keeping his pants high on his legs - and the fog.

[23] The Crown called no evidence in response to the application. There was no evidence as to any directives or procedures that were in place at that Division (12); no evidence as to signage except at the sallyport entrance into the station and no evidence as to what the defendant specifically was told or what detainees are routinely told about monitoring and recording.

[24] In the leading case of R v Mok 2014 ONSC 64 (Boswell J) the Court held that a person held in police custody or otherwise incarcerated has a reduced expectation of privacy but nevertheless retains a limited right of privacy against being monitored and recorded while using the toilet in a cell. The Court concluded:

[77] In my view, the worthiness and reasonableness of videotaping everything that happens in a detention cell for safety reasons does not necessitate the surveillance and recording of the use of the toilet in the cell. The use of a modesty screen that protects the lower part of a person’s body while using the toilet would not significantly hamper the ability of the police to monitor the health and safety of anyone inside the cell. At the same time, it would preserve the dignity and bodily integrity of the detainee.

[82] In the result, I find, as the trial judge did, that Ms. Mok’s s. 8 right was violated when the police videotaped her using the toilet in her cell. I find that she had a subjective expectation of privacy and that her subjective expectation was reasonably held in all the circumstances. The reasonableness of her expectation is supported by a balancing of her individual interest in privacy, dignity, integrity and autonomy, against the state’s legitimate interests in monitoring the cell area for safety concerns and the preservation of evidence.

[25] The Court then went on to review the trial Judge’s decision to stay proceedings. While the female accused in Mok had been fully exposed in a highly embarrassing way, the Court held that a stay of proceedings as entered by the judge at first instance was NOT appropriate. Having regard to the uniqueness of the issue and other factors, the Court held that it was not the “clearest of cases” that would justify a stay.

[26] The Court of Appeal later refused leave, noting that the problem had been corrected by police measures taken after Justice Boswell’s decision. [4]

Section 8:

[27] Mok was a case that, on its facts, decided that unrestricted video monitoring and recording of the toilet area in a cell violates section 8. To avoid violation, there must be some restriction of the view. Boswell J in Mok suggested that a “modesty screen shielding the lower part of the body” while using the toilet would provide a good balance between police security interests and the detainee’s right to preserve his dignity and bodily integrity. (para 77, 98). The Court of Appeal in refusing leave in Mok referred with apparent approval to the measures mentioned in Griffen [5] (paper privacy gown) and Orenchuk [6] (photographic obscuring from head to feet of person sitting on toilet.)

[28] In this case there were two measures taken – provision of a blanket and the blurring or fogging of the video. Were they enough?

[29] As for the blanket, I accept the defendant’s evidence that there was no explanation as to how it could be used and the video confirms that there was no demonstration (See R v Moondi 2019 ONCJ 293). Further, even if the defendant had thought on his own to employ it as a privacy shield it would require more than a little dexterity, with only two hands, to hold it up as a shield while at the same time doing the other things that needed doing: (see R v Marty 2020 ABPC 167). A blanket is not the same as a disposable gown which would not require use of the hands to hold it in place. Finally, as the defendant pointed out, there are some hygiene concerns with using a blanket around a toilet and then using it for a covering to sleep.

[30] As for the fogging, its sufficiency I think turns on the question of what exactly it is that should be kept private? Most cases comment on whether the detainee’s genitals could be seen. But I agree with Justice Gee in Moondi, supra that it is unseemly for the court to get involved in the exercise of trying to spot the naughty bits. Apart from unseemliness, it seems to me that focussing on genital exposure somewhat misses the point of the privacy interest involved.

[31] In my view it is the act of using the toilet, particularly for defecation, that is considered highly private and the breach of that privacy highly offensive and corrosive of personal human dignity. Privacy for this act is almost without exception sought, expected, and granted in our society and culture. Even couples and partners who have been together for years expect privacy from the other and lock or at least close the bathroom door for such moments. If this is a correct identification of the protected zone of privacy, then I consider that the fogging or blurring of the video image in this case was inadequate to provide that protection. A viewer can see everything that he is doing – it is just indistinct. I do not think that is good enough. The act for which there is a reasonable expectation of privacy was not sufficiently obscured.

[32] I must emphasize that the Crown did not call any evidence to attempt to justify the extent of the exposure of the defendant as being necessary for reasons of prisoner safety or security. Without such evidence I am left to draw a conclusion that otherwise might not have been drawn if some reasonable justification or explanation had been presented.

[33] Further, I do not think the provision of the blanket makes up for the inadequacy of the fogging in the circumstances of this case where there was no specific alert given to the defendant as to the pervasive surveillance and no explanation provided to him as to how the blanket could be used to attempt some degree of privacy. In these circumstances, the two measures do not enhance each other and even in combination were inadequate.

[34] I conclude that the monitoring and recording of the defendant using the toilet without providing adequate measures to ensure a reasonable degree of privacy was an infringement of his rights under Charter section 8.

Remedy:

[35] Counsel for the defendant seeks a stay of proceedings or exclusion of pretty much all of the evidence in the case.

[36] As for a stay, Mok held in similar circumstances, that a stay of proceedings was not appropriate. That holding has been followed in many cases and is binding upon me unless it can be distinguished. One possible distinction is that we are now many years down the road from Mok and arguably, if the same section 8 breach is still occurring, the argument for a stronger and prospective remedy is enhanced: see for example: R v Dos Santos 2019 ONCJ 126 M Greene J. I agree with that sentiment but observe that the facts in that case were much more serious than in this case. This is not a case where the issue of the detainee’s privacy and the decisions of the courts were completely ignored. Efforts were made to provide privacy to the defendant – although I have found those efforts to have fallen somewhat short. I have no evidence that this was a systemic or habitual shortcoming. For all I know this was a one-off situation. It is not the clearest of cases.

[37] As an aside, it seems to me that there is an inconsistency in our Charter remedy law between the high hurdle for a stay as compared to other remedies, particularly exclusion of evidence. If a stay is considered “drastic” and reserved for the “clearest of cases” and “too high a price to pay” for a section 8 breach of this nature in a serious drink/drive case, [7] shouldn’t exclusion of crucial evidence be similarly circumscribed? How can it be that a stay is so unpalatable yet exclusion of evidence, often equally fatal to the prosecution, is not similarly regarded?

[38] In any event, as for exclusion, it first must be established that the evidence – the breath tests and, going further back, the evidence of impairment at the scene of the accident – were obtained in a manner that infringed or denied a Charter right. Since R v Pino (2016) 2016 ONCA 389, 337 CCC3d 402 (Ont CA), evidence obtained prior to a subsequent Charter infringement can satisfy this test if “the obtaining of the evidence and the Charter breach are part of the same transaction or course of conduct, the connection - causal, temporal, contextual or some combination - not too remote or tenuous”: see King infra para 52.

[39] There have been several Mok-type cases that have found such a connection between the obtaining of breath samples and the Charter breach. However most if not all of these have involved Mok violations occurring before as well as (usually) after the breath tests were conducted. In those cases there was a clear temporal connection: R v Moondi 2019 ONCJ 293, 2019ONCJ 293 (Gee J); R v Wijesuriya 2018 ONCJ 211 (Monahan J); R v Wong 2020 ONCJ 665 (Kenkel J) [8]; R v Singh 2016 ONSC 1144; and most recently R v Walker 2020 ONSC 2139.

[40] On the other hand, in Dos Santos supra, a case where the Mok violation occurred only well after (5 hours) the breath testing, the Court found that the “obtained in the manner” test had not been satisfied.

[41] Finally, in R v King 2019 ONSC 5748 the Court found the necessary connection. But King was an arbitrary detention and over-holding section 9 case, not a section 8 Mok violation. The connection in King was that the breath results provided the only ostensible basis for his detention at all. [9] There was therefore a clear causal connection. [10]

[42] In my view this case is similar to Dos Santos and like that case, lacks the necessary connection between the violation and the obtaining of the breath sample evidence, much less the evidence at the scene. The two events are simply not part of the same transaction. There is no connection.

[43] Having reached this conclusion, it is unnecessary to conduct a Grant analysis to determine admission/exclusion under 24(2).

[44] In the result, the Charter application is allowed in part. While there was a section 8 violation, it would not be appropriate to stay proceedings or exclude evidence. An appropriate remedy may be a reduction in penalty as in R v Orenchuk 2014 ONCJ 650. I will hear counsel’s submissions on this point at the time of sentencing.

The exceed BAC count:

[45] There is no other defence raised to the exceed count and all necessary elements have been proven. The defendant is found guilty of the offence of driving with excess alcohol in his blood.

The impaired count:

[46] The driving speaks loudly as to the defendant’s ability to drive being impaired. He was unable to negotiate a simple right hand turn without smashing into the median and light pole. He displayed significant indicia of impairment. He admitted in the breath room that he had had a lot to drink. The evidence establishes impairment going well beyond the Stellato standard.

[47] The defendant is found guilty of impaired operation.

[48] The exceed BAC count will be stayed on the Kienapple principle.

Footnotes

[1] R v Busch 2021 ONCJ 200 [2] The times varied slightly from one officer to the other. [3] In many of the reported cases there is no toilet paper. The pettiness of this small but routine and unnecessary deprivation does not reflect well on the police. [4] R v Mok 2015 ONCA 608 [5] R v Griffen, 2015 ONSC 927 [6] R v Orenchuk, 2014 ONCJ 650 [7] R v Mok para 104 [8] This case is noteworthy in that the court excluded the breath test results but not the earlier gathered evidence of impairment. [9] The detention was determined to have been arbitrary because it was not shown to have been based on a consideration of many of the relevant factors for the hold or release decision. [10] King was cited with approval in Walker supra, a Mok case but a “before and after” one. King was also distinguished in R v Brar 2020 ONSC 4740 as a case where the Charter violation of arbitrary detention began immediately after the breath testing occurred: see para 66.

May 11 2021 B Duncan J R Raeesi for the Crown R Singh Bal for the defendant