Court Information

Date: April 22, 2022 Ontario Court of Justice Old City Hall – Toronto

Parties

BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL ASSEFA

Counsel

For the Crown: D. Parry For the Defendant: J. Weisz and D. Paton

Heard: October 22, 2021; February 2, March 4, April 11, 2022

Charter Ruling

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] On November 28, 2015, Mr. Assefa was arrested by the Ontario Provincial Police and eventually charged with impaired driving and “over 80”.

[2] Shortly after his arrest, Mr. Assefa was taken to the Toronto Detachment of the OPP where he was held in custody pending the administration of three breathalyzer tests, whose results were 250, 227, and 235 mgs/100mls. of blood.

[3] While in the holding cell, Mr. Assefa urinated twice in a toilet in the cell. These two events were live monitored and video recorded.

[4] Mr. Assefa alleges that the monitoring and recording in question were both breaches of his s. 8 Charter right to be secure against unreasonable search and seizure. He has applied for an order pursuant to s. 24(1) of the Charter for a stay of proceedings. In the alternative he has applied for an order pursuant to s. 24(2) of the Charter, excluding the breathalyzer results.

[5] Mr. Parry, for the Crown, concedes the Charter breach but argues against both proposed remedies.

B. Evidence

(a) Introduction

[6] The Crown called the arresting officer, P.C. Scott Mulville, through whom were filed videos of Mr. Assefa’s booking procedure, including his urination.

[7] Mr. Assefa did not testify. He called one witness, Sgt. Kevin Winiarski, and during the cross-examination of P.C. Mulville filed several relevant documents.

(b) The testimony of P.C. Mulville

[8] At the time of the investigation into Mr. Assefa on November 28, 2015, P.C. Mulville was working in uniform for the Highway Safety Division of the OPP. He had, by then, been involved in approximately 100 drinking and driving investigations.

[9] P.C. Mulville, responding to an impaired driving complaint, observed Mr. Assefa’s erratic driving on Hwy. 401 and stopped him. P.C. Mulville, believing Mr. Assefa to be an impaired driver, arrested him and took him to the Toronto Detachment of the OPP, arriving there around 2 am.

[10] Upon arrival, P.C. Mulville drew Mr. Assefa’s attention to signs in the booking hall that tell the reader that “the area is being videotaped”.

[11] P.C. Mulville said that he had heard the term “privacy cover” but was not familiar with what the term referred to. He was aware that blankets were sometimes provided to female prisoners and that sometimes female officers would hold them up for women prisoners so that they could use the toilet without being seen by male officers.

[12] When P.C. Mulville took Mr. Assefa to the cell he pointed out the toilet and told him that “if there was any problem” he should call out. Nothing else was said or done as concerns the use of the toilet, or the fact that its use was monitored and videotaped. At that time, P.C. Mulville was not aware of any OPP policy concerning the privacy of prisoners using the toilet in OPP holding cells.

[13] P.C. Mulville recalled reading an article in the Toronto Star where a former commanding officer of his, Sgt. Fenske, had given an interview regarding a case named R. v Griffin, 2014 ONCJ 204, that had been litigated concerning the failure of police to respect prisoners’ privacy when they use the toilet in their cells. Sgt. Fenske had told the Star reporter in the article that the OPP had instituted a new policy of providing privacy smocks to prisoners. Mr. Weisz showed P.C. Mulville a March 20, 2015, article from the Star (Exhibit #3). P.C. Mulville finally admitted that this was the article he had read and was referring to in his testimony. He at first maintained that he must have read the March 20, 2015 article after his dealings with Mr. Assefa in November 2015. Had he read it before dealing with Mr. Assefa he would have looked for a privacy smock for Mr. Assefa. The fact that he did not do so was, in his mind, proof that he had not yet read the article. He then changed his testimony, admitting that it was likely he read the article before the November 2015 encounter with Mr. Assefa. He was equally inconsistent as to how carefully he read the article.

[14] P.C. Mulville testified that he had trouble understanding why someone charged with a crime (a serious matter) would be bothered by something so minor as whether he/she could be seen or was being videotaped using the toilet. In his view, Mr. Assefa was a “grown adult” and could have complained to the officers at the detachment if he was concerned about privacy while urinating.

(c) The documentary and video evidence

[15] The booking hall video is comprised of several camera views, some of which clearly show the holding cell and the toilet inside.

[16] Mr. Assefa can be seen using the toilet almost immediately after being placed alone in the holding cell shortly after 2 am. He is clearly seen in profile, standing in front of the toilet for just over a minute emitting a stream of urine.

[17] At approximately 3:18 am he is monitored and recorded urinating again, this time from an angle where the viewer can see him undoing his pants, holding his penis, and urinating.

[18] The parties agree that as of summer 2015, several months before Mr. Assefa’s encounter with P.C. Mulville, it was official OPP policy to alert all prisoners that their use of the toilet would be videotaped and to offer them a privacy smock. A copy of this policy was filed as an exhibit.

[19] P.C. Mulville claimed not to be aware of this policy and he could not explain why he was not. He said that an important policy change such as this would have been posted and he simply must have not read it. Yet, he had never seen any of his fellow officers comply with the new directive, nor heard any of them talking about it.

(d) The testimony of Sgt. Kevin Winiarski

[20] Sgt. Winiarski was not directly involved in Mr. Assefa’s booking at the detachment but was the officer who signed off on Sgt. Mulville’s custody report (LE 204).

[21] Sgt. Winiarski was aware of the new policy directive regarding toilet privacy and believed that it was in place at the time of Mr. Assefa’s arrest. Yet, the custody report forms had not yet been revised to reflect this change. He attributed the lack of any mention in the Assefa custody report of obeying the protocol to his personal oversight.

C. Analysis

(a) Introduction

[22] That Mr. Assefa’s suffered an infringement of his s. 8 Charter rights is conceded by the Crown, as it must be. The law is clear on this issue and has been for almost eight years. A prisoner in police custody has a reasonable expectation of privacy in his use of the toilet and while police are entitled to video monitor and record prisoners, even while they use the toilet, police must take steps to provide their prisoners with a modicum of privacy. See R. v. Mok, 2014 ONSC 64; R. v. Singh, 2016 ONSC 1144, and countless other cases. The contentious aspect of Mr. Assefa’s case is the decision as to what remedy ought to be accorded to him, if any.

[23] In Mr. Assefa’s case, police took no steps whatsoever to protect his privacy rights, even though the OPP had instituted a policy change in response to the caselaw that had been developing for almost two years. As can be seen in my analysis of the witnesses’ credibility, the degree to which this policy had made its way to the Toronto Detachment is a matter of conflicting evidence.

(b) The witnesses’ credibility

[24] I found much of the testimony of both police witnesses difficult to accept. P.C. Mulville’s testimony was rife with contradictions. Sgt. Winiarski’s testimony contradicted P.C. Mulville’s testimony in many respects. As a result, making findings of fact is challenging.

(c) Critical findings of fact

[25] Despite the lack of clarity in the evidence, I make the following findings of fact.

[26] The OPP developed a force-wide, written policy in the summer of 2015 in response to R. v. Mok, supra.

[27] P.C. Mulville’s testimony, to the effect that this new important policy would have been brought to everyone’s attention at the Toronto Detachment, as well as that of Sgt. Winiarski, lead me to conclude that this new policy had been communicated to the Toronto Detachment well prior to the date of Mr. Assefa’s arrest.

[28] P.C. Mulville, contrary to his testimony, learned about the new policy. After all, although he denied reading the policy itself, he finally admitted having learned about it from the Toronto Star article he had read prior to his dealings with Mr. Assefa.

[29] I also accept P.C. Mulville’s testimony that he never saw any of his fellow officers follow this policy at the Toronto Detachment. Despite having read the comments of Sgt. Fenske in the Toronto Star article, P.C. Mulville never asked any of his superiors or colleagues why the new policy wasn’t being followed at the Toronto Detachment. Not surprisingly, no officer in attendance when Mr. Assefa was booked into the Toronto Detachment did anything in furtherance of this policy.

[30] All of this leads me to conclude that when Mr. Assefa was brought into the station that day, not only were his privacy needs not attended to, but all the officers there that night knew about the new OPP policy, knew that it was in response to the Court’s recognition of prisoners’ Charter rights and yet chose to disregard the new policy, P.C. Mulville included.

[31] There is not sufficient evidence to support a finding that any of the officers who dealt with Mr. Assefa that night consciously and intentionally deprived Mr. Assefa of his Charter rights. Rather, I find that all the officers, including P.C. Mulville, completely forgot about the new policy because it did not strike them as important. I suspect that P.C. Mulville’s testimony as to his attitude towards prisoners’ privacy concern was shared by many of his colleagues.

[32] These findings of fact lead to the inevitable conclusion that the OPP was negligent in not taking steps to ensure that the new policy was indeed being executed at the Toronto Detachment.

(d) Should the evidence be excluded?

(i) Introduction

[33] Section 24(2) of the Charter reads as follows:

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.

[34] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 at para. 71:

[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

(ii) The seriousness of the breach

[35] The breach of Mr. Assefa’s s.8 Charter rights, although not intentionally aimed at Mr. Assefa on the night in question, is nonetheless at the serious end of the spectrum. The OPP failed as an institution. The officers at the Toronto Detachment all failed to listen to orders, and essentially thumbed their noses at what the Courts and their commanding officers had clearly identified as a serious concern. P.C. Mulville couldn’t have cared less about the issue, even though he knew all about it. The seriousness of this breach weighs heavily in favour of exclusion of the breath readings.

(iii) The impact of the breach on the Charter-protected interests of the accused

[36] Mr. Assefa did not testify. I thus have no evidence that Mr. Assefa suffered any peculiar effects from the Charter breach. Yet, it is axiomatic, and the caselaw recognizes, that being recorded while urinating is a significant affront to one’s dignity. R. v. Stillman (1997), 113 C.C.C. (3d) 321; R. v. Mok, supra.

[37] This factor favours exclusion of the evidence.

(iv) Society’s interest in the adjudication of the case on its merits

[38] The Supreme Court in Harrison, supra, at paras. 33 and 34, deals with this factor as follows:

At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.

The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

[39] I find, and both parties agree, that the third Grant factor favours admission of the evidence.

(v) Balancing the three Grant factors

[40] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[41] Justice Doherty, in R. v. McGuffie, 2016 ONCA 365 at para. 63, added this to the analysis: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”.

[42] The breach of Mr. Assefa’s Charter rights was serious, and its impact on Mr. Assefa was significant.

[43] Notwithstanding the reliability of the evidence, its importance to the Crown’s case and the public interest in an adjudication of this case on its merits, I find that the admission of the evidence would nonetheless bring the administration of justice into disrepute. To admit the evidence would appear to condone a serious and systemic Charter breach. Harrison, supra.

[44] There is a sufficient temporal and factual nexus between the Charter breach and the gathering of the evidence in question to support a finding that the “evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by” the Charter. The taking of Mr. Assefa’s breath samples took place while he was in police custody. The Charter breach took place while he was in the very same custodial circumstances. See R. v. Pino, 2016 ONCA 389.

[45] The breath readings are excluded.

(e) Should the proceedings be stayed?

[46] Mr. Assefa seeks a stay of proceedings. The leading authority as concerns the imposition of a stay of proceedings as a remedy for a Charter breach is R. v. Babos, 2014 SCC 16.

31 …[T]his Court has recognized that there are rare occasions -the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73)…

32. The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[47] Mr. Assefa’s case falls into the second, or residual category. In Canada (Minister of Citizenship and Immigration) v. Tobiass [1997] 3 S.C.R. 39, at para. 91, the Supreme Court described this category as follows:

For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well - society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.

[48] I am not convinced that the misconduct of the officers at the Toronto Detachment, nor of the OPP commanding officers, is likely to continue. In fact, I take notice of the fact that police in Ontario are currently respecting the law on toilet privacy for prisoners, with rare exception.

[49] Nor is this a case where an alternative remedy is unavailable. Indeed, I have ruled that the breath readings are inadmissible as a remedy for the breach in this case.

[50] I note as well that the breach, while closely linked to the taking of breath samples from Mr. Assefa, is significantly divorced from the alleged impaired driving, which if proved beyond a reasonable doubt, is serious.

[51] Finally, this is not the clearest of cases where the misconduct of the police is “so egregious that the mere fact of going forward in the light of it will be offensive”.

[52] The stay application is dismissed.

D. Conclusion

[53] Mr. Assefa’s Charter application is granted in part. His request for a stay of proceedings is dismissed. The breath readings are excluded.

[54] Pursuant to counsels’ agreement, the “over 80” count will be dismissed. The trial of the impaired driving count will continue August 9, 2022.

Released on April 22, 2022

Justice Russell Silverstein