R. v. Simpson, 2022 ONCJ 262
CITATION: R. v. Simpson, 2022 ONCJ 262
DATE: June 8, 2022
INFORMATION NO. 12000423
ONTARIO COURT OF JUSTICE
(TORONTO REGION)
HER MAJESTY THE QUEEN
Respondent
- AND –
MICHELLE SIMPSON
Applicant
Reasons for Judgment
Heard: Feb 22-23, 2022, April 29, 2022; Reasons: June 8, 2022
(110 paras.)
Counsel for the Crown: L. Zhao
Counsel for the Defendant: R. Singh Bal
Libman J: -
Introduction
[1] The Ontario Provincial Police [OPP] have been enforcing the Highway Traffic Act of Ontario for well over 70 years, including administering breathalyzer testing since 1956. In its OPP Museum brochure, it proudly sets out historical highlights between 1909-2009, which include technological achievements such as installing the most modern police radio system of its time in 1947 and introducing laser fingerprint detection to the world 30 years later, in 1977. Presently, the OPP is tasked with policing almost one million square kilometres of land, over 110 thousand square kilometres of waterways, and more than 130 thousand kilometres of provincial highways.
[2] Despite these notable accomplishments, there is one area of technology and policing in which the OPP stubbornly clings to its past and refuses to modernize and improve its practices: its persistent refusal to put in place any audio recording of the booking/lodging and interview procedure with prisoners when they are brought into its detachments. Such audio recording of the booking/lodging area is commonplace at police stations throughout the Toronto Region and elsewhere. As a result, it will never be known and preserved in evidence what precisely a detained person is told, when they enter the OPP Toronto Downsview detachment, as to being lodged in a jail cell and their privacy in using the washroom, which is on camera, and is the subject matter in dispute in this case. Audio recording is provided, though, for evidence gathering, in the adjacent interview/report room and the breath testing room. These rooms are all on the same floor, mere meters apart. While video recording is provided in all instances, evidence of what is said only in the booking/lodging area depends entirely on the recollection and notes of the subject officer. Here there is a period of just under three years from the time of arrest until conclusion of the trial. Not surprisingly, the officers have very little memory of this portion of the investigation and their notes do not particularly assist them, as nothing was recorded in this regard.
[3] So in this case, Ms. Simpson, who was clearly under the influence of alcohol and arrested for impaired driving, was lodged in her jail cell by two male police officers, after being allowed to use the private washroom nearby beforehand. A privacy gown was placed in her cell, but never explained to her or unfolded. She had never put one on before. What, if anything, was said to her previously about using the toilet in her cell is unknown, as it was never recorded at the booking area, and none of the officers can say for certain. Subsequently, when no one came to her cell when she requested another bathroom break, she fumbled in putting on the privacy gown, ultimately wearing it like a jacket around her dress. She was then recorded on video sitting on the toilet with her buttocks exposed, her underpants lowered to her knees. When she got up, her genitalia were thus uncovered and in plain view of the camera.
[4] The defendant first learned of this video recording as she prepared for her (in-person) trial. It was played in open court during her testimony. She stated that she did not realize the camera was recording her, as opposed to merely monitoring her. In cross-examination, she was questioned by the Crown as to what part of her body was uncovered and showing or not, and endured having the tape played again, while being asked to point out what parts of her genitals were visible or not.
[5] The conduct of the police in not properly informing the defendant of its recording her using the washroom in the cells, nor explaining at all the use of a privacy gown, is egregious on its own. It is contrary to the OPP’s own policy requiring its officers to do so. And to then subject a defendant to the humiliation of playing this video tape of her using the washroom in open court and then forcing the party to point out and describe the private body parts of one’s body that are displayed for all to see, is an affront to human decency and dignity. Courts should play no part in such unseemly conduct and disassociate the administration of justice from it. A stay of proceedings is the only remedy that is appropriate and just in these circumstances.
The Police Investigation and Arrest of the Defendant
[6] On the evening of June 29, 2019, Bartolinj Babk, a tow truck operator, noticed a motor vehicle with its hazard lights on, while he was driving on Highway 401. He could not recall the exact time this happened, nor the location or make of the vehicle. When he pulled up to the scene, a woman was outside of the car, standing on the shoulder. She flagged him down and asked for help. As a result, he called the OPP.
[7] Mr. Babk was unable to identify the party in court, other than describing the driver as being a woman in her early to mid 20’s and Caucasian. He recalled there was excessive damage to the vehicle as it had contacted the concrete divider on the highway. The airbags had deployed. There was no one else in the area. He noted the driver was “panicked” and not calm; there was an odour of alcohol on her. After the police arrived and took the woman into custody, he towed her motor vehicle away from the scene.
[8] Constable Ryan O’Connell and his partner Constable Nathaniel Saunders received a radio call at 2:17a.m. on the date in question to respond to a single motor vehicle collision on Highway 401 East at Avenue Road. They arrived on scene at 2:38a.m. The accident location was just west of Avenue Road. The two left lanes were blocked by a motor vehicle against the barrier. Toronto Fire was on the scene as was the tow truck driver who called in the collision. The roads were wet at the time as it had been raining. There was minimal traffic on the road at that time. The officers parked their cruiser ahead of where the accident occurred and approached the tow truck so as to speak to the female driver who was standing outside it.
[9] After determining that the party was all right and did not require medical treatment, Constable O’Connell testified that the woman stated she was cut off by another vehicle, which caused her to lose control and strike the wall. She was “extremely talkative” and he detected an odour of alcohol coming from her. This led him to caution her for an impaired driving investigation. The officer also noted that her eyes were very glassy and bloodshot. She admitted consuming alcohol earlier that evening. She was also smoking a cigarette at this time.
[10] After making these observations, Officer O’Connell returned to his cruiser and retrieved the approved screening device to take a roadside sample from the party, who he had not yet identified. He told Constable Saunders to administer the test. At that time she was unable to maintain her balance while standing next to the tow truck. After determining that the equipment was in proper working order, she registered a fail reading at 2:45a.m. She was then arrested for driving over the legal limit and given her rights to counsel and cautioned. A breathalyzer demand was also read to her. As there were no other officers in the area, they waited for the tow truck to remove the motor vehicle from the highway. At 3:23a.m, they were able to leave the scene and return to their detachment.
[11] Constable Saunders testified as well. This was his first drinking and driving investigation; Constable O’Connell was the lead officer. Officer Saunders recalled first seeing the female sitting inside the tow truck with the door open. He then made his way towards her. He observed that she had cuts and scrapes on her legs and was smoking a cigarette. She did not otherwise appear to be suffering from any “major injury”. The officer also detected an odour of alcohol on her breath. She declined medical treatment for her injuries but was “very talkative” and had difficulty focusing while the police officers were investigating her at the scene.
[12] The defendant identified herself as Michelle Simpson and was the registered owner of the motor vehicle, a Cadillac sedan. Her address was in Thornhill, Ontario. There was no one else present in the vehicle or in the immediate vicinity. Given his observations of the defendant’s demeanour, Constable Saunders believed that she may have consumed an alcoholic beverage prior to driving the motor vehicle which was heavily damaged and in contact with the guardrail and blocking a live lane of traffic. As a result, he made a demand that she provide a breath sample into the roadside screening device.
[13] After conducting a self-check on the screening device to ensure it was working properly, the officer presented the machine to the defendant. She registered a fail result, as noted by Constable O’Connell. Her arrest and rights to counsel, caution and breath demand followed suit. She appeared to understand everything that she was told.
Arrival and Lodging of the Defendant at the Toronto OPP Detachment
[14] The officers arrived at the OPP Downsview Detachment at 3:30a.m. The defendant was “extremely talkative” during the ride there and was unable to sit still in the back of the cruiser, according to Constable O’Connell. Upon arrival, they brought the female into the lodging area and advised her of the audio and recording in the area. There were placards on the wall advising of this which they all read together; she was also advised of privacy gowns which were available upon request and would be issued in the cell. There was also a warning of damaging the premises and drug or substance use on the premises. However, the officer could tell that she was not paying attention and was unable to stand still.
[15] Constable O’Connell was shown photographs of three placards which were stated to be posted on the wall in the lodging area of the detachment. The first (from bottom to top) advised of the use of audio/video recording in the station; the second indicated that privacy gowns were available upon request. The third cautioned against the use of drugs or substances on the premises. By this point, the defendant had been identified by her photo identification on her driver’s licence. The video recording of this interaction in the lodging area was played in court – without audio – while the officer testified that it showed the defendant unable to stand still and follow the directions he was attempting to explain.
[16] Subsequently, he opened the door to a private washroom where there were no cameras so that the defendant could use it before going into the breath room. She then returned to the booking area where they finished the paperwork for lodging her. She requested to speak to a lawyer, prior to being placed in the cell. According to Constable O’Connell, he grabbed a privacy gown from the desk and brought it into the cell and placed it on a bench where he pointed it out to her.
[17] In cross-examination, the officer acknowledged that he did not know when the photographs of the placards at the Toronto OPP detachment were taken, or if these were the ones that the defendant read over with him. In fact, the red button adjacent to the top photograph warning of the ingestion of drugs or substances was not present in the video recording of the lodging area which was played in court. He did recall, though, that she was not paying attention to the placards that were present at the time.
[18] With respect to the privacy gown he placed on the bench in the cell where the defendant was lodged, Constable O’Connell agreed he never told her what it was, or opened it up and demonstrated how to put it on. He simply showed it to her. He was aware that the current practice of the OPP is to demonstrate how privacy gowns are to be worn, and that it is explained to prisoners that their “primary purpose” is to provide privacy while using the cell. There was nothing in his notes indicating that he explained the privacy gown to the defendant. The only time it was mentioned to her was when they read the placards in the detachment together.
[19] Once the defendant was placed in the jail cell, he did not have much interaction with her. He returned to the constables’ area. If the defendant was trying to get his attention, he would not be able to hear her. His next involvement with Ms. Simpson was when she was being released.
[20] Constable Saunders also described the defendant as being “very talkative” and not following directions when they arrived at the police station. She had difficulty standing still and was being flirtatious; she kept trying to touch Constable O’Connell. However, when the witness was asked to describe their conversation in the lodging area, he could not remember what was said. He did recall, though, when the videotape of the area showing the placards was played in court, that they would have read together the notice of audio and video recording in the area, privacy covers and prohibition against ingestion of drugs at the detachment. He did not know when the photographs of these placards were taken. He agreed that they were not set up the same way on the day in question. As for anything that the defendant said at the time, he recollected only that she requested to speak to duty counsel at 3:40a.m.
[21] The officer testified in cross-examination that he was under the impression that the booking hall area of the detachment was audiotaped. He was not aware of any reason why it wouldn’t be. He was certain that the cells were videotaped and recorded. He recollected that there was a conversation with the defendant prior to the breath tests but could not say what it was about. He just remembered placing a call to duty counsel at 3:42a.m. Had the defendant been calling out for the officers from her cell, he was certain they would hear her from the constables’ area of the detachment and see her from the video, but Constable Saunders had no recollection of that happening. He did not notice her trying to get their attention after she was placed in the cell, apart from being “very fidgety and active.” However, when the videotape of the defendant standing at the front of her cell at 4:56a.m. was played in court, he agreed it appeared she was trying to get the officers’ attention although she did not seem to be in any distress.
[22] Constable Saunders was asked how the defendant would have been able to ask the officers any questions she had about the privacy gown. He replied that she could have done so from her cell. She could also do so during prisoner checks; the privacy gown was explained as well to her prior to being lodged. However, when asked what she was told at that time, he could not recall verbatim. He also acknowledged that when she was given the privacy gown in the cell by Constable O’Connell, he did not physically open it and show it to her. He was aware that this was now the police policy but did not know when it changed.
Breathalyzer Testing and Release of the Defendant from the OPP Detachment
[23] Constable Saunders informed the Qualified Technician, Sgt. Krozalic, of his grounds for arrest of the defendant at 4:00a.m, and turned custody of the defendant over to this officer shortly thereafter. The results of the two breath tests, taken at 4:17a.m and 4:41a.m, was 170 mgs. Thereafter, Ms. Simpson was served with copies of the testing documents and Certificate of Qualified Technician.
[24] The officer described the defendant as continuing to be “extremely talkative” after the breath testing procedure and not following instructions. He also noticed that she still had glassy eyes. At approximately 6:00a.m, she was released on a promise to appear and escorted to the front of the detachment where she was picked up by her fiancé.
OPP Communications and Technology Bureau Evidence
[25] The final witness called by the Crown was Constable Mian of the OPP Communications and Technology Bureau, based out of Orillia. He is the Manager of this Department. His responsibilities include overseeing the video and voice services and telephone systems at OPP detachments across the province, including the equipment the overlooks prison cells.
[26] According to Officer Mian, prison cells at OPP detachments are equipped with fixed cameras that are positioned behind a safety shield. There are also cameras in the halls and interview rooms. They are all connected to a central location. An on-site server records all the data that is transmitted.
[27] As for audio recording, it is present only in interview rooms where it is activated and deactivated. There is no audio recording in any other rooms. This is the set-up in all OPP detachments. Consequently, there is no audio in the booking area.
[28] In cross-examination, the witness was asked if he was aware of any future plans for booking halls to be equipped with audio. He replied in the negative. He also explained that the videos that are recorded at the station, including cell video recordings, are now retained for a longer period of time before being discarded.
[29] Following the officer’s questioning by counsel, I inquired if he was aware of the rationale for the OPP policy of not audio-taping the booking/lodging process. His response was that he was unable to explain this but noted that all of the discussions that take place with prisoners at this time are documented on forms, so microphones are not necessary. Constable Mian was also not aware whether other police forces in the province engaged in this practice as well. There were no follow-up questions by counsel for the officer. With that, the Crown closed its case.
Testimony of the Defendant on Charter of Rights Application
[30] Ms. Simpson gave evidence on the Charter application in respect of her s.8 right to be secure against unreasonable search and seizure. She is 31 years old and works in the automobile leasing business. On the evening in question, she recalled being brought to the OPP detachment following her arrest where she was uncuffed and her belongings collected by the officers. They advised her that they were being audio and video recorded and pointed to the signs on the wall indicating this. It was a brief discussion. After that she asked to use the private washroom which did not have a camera in it. She was allowed to do so. She was then taken to her cell.
[31] When the officer placed her there, he pointed to the camera and indicated that she was on camera. He did not say, though, that it would be recording her. He also gave her a privacy gown to put on in case she needed to use the washroom. However, he did not explain how to use it; neither was it opened or unfolded. The defendant remained in the cell, other than when she spoke to duty counsel and provided the two breath tests.
[32] At one point while she was in the cell she had to go to the washroom. Ms. Simpson wished to use the private washroom again and tried to get the officers’ attention by standing by the bars and calling out to them. However, no one came. As a result, she proceeded to use the toilet in the cell. She picked up the privacy gown and tried to cover herself with it. She had never used one before and did not know how to put it on. It was only after her daughter’s birth that she first wore one. When asked why she requested the use of a private washroom, she replied that the officers had allowed her to use it previously and she figured she could use it again; she also did not want to be on camera using the toilet.
[33] The defendant only became aware that she was recorded going to the washroom in her cell when she was preparing for trial and watched it in counsel’s office. When asked how that made her feel, she answered, “extremely embarrassed, shocked and humiliated.” She had no idea that the camera was actually recording her, as opposed to monitoring her. Had she realized this, she stated that she would have waited to use the private washroom. She did not know how to put on the privacy cover. She subsequently realized that she had put it on backwards and it did not fit right. However, no one at the station had told her how to use it.
[34] Ms. Simpson was shown the video recording of herself in the cell area. She entered it at 3:41a.m. Within a 30 second interval, the officer produced the privacy gown to her, put it down and pointed at the camera. He then left. It was at 4:54a.m. that she went to the cell doors and yelled out to get the officers’ attention about using the private washroom. A few minutes later, at 4:57a.m., when no one had responded to her, she decided to use the toilet in her cell. The camera showed her at 4:57a.m. sitting on the toilet with her buttocks exposed and wiping herself afterwards. Her privacy gown was not done up at all. The defendant lowered her head in court while watching this and was clearly upset. She told counsel that she felt embarrassed watching this. She had no idea that she was being fully recorded by the camera at the time. She remained in the cell for some time afterwards before being released.
[35] In cross-examination, the defendant acknowledged that when she entered the detachment, she was advised by the officers that cameras were in use on the premises and that there were signs that provided notice to this effect. She did not remember, however, the sign in the booking room about privacy gowns. Her recollection at the time was that the officer “just briefly” pointed to the signs and advised her of the use of audio and video recording and her right to speak to duty counsel. There were signs, she acknowledged, posted on the walls and that had been admitted into evidence, including one stating that privacy gowns were available upon request.
[36] With respect to the time she was placed in the cell, Ms. Simpson agreed she was told that there was a camera present. However, she did not realize that she would be recorded by it as opposed to monitored. The officer had just pointed to the camera and said she was on camera. She disagreed that it would be natural to assume she would also be recorded by it. At the time she was also not thinking about whether she was being recorded as she needed to use the washroom. The defendant agreed she did not ask the officer any questions about the camera.
[37] Crown counsel proceeded to ask her about the time she used the toilet in her cell. By this point she had provided her two breath samples. Ms. Simpson testified that she was not aware of what the white item was that the officer had placed on the bed in the cell. She did not realize it was a privacy gown; she thought it was a pad cover. She agreed, however, that she decided to use it to cover herself as she was in a kind of “survival mode” and needed to go to the washroom.
[38] The defendant acknowledged that Constable O’Connell had provided her with a privacy gown. She disagreed, however, with the Crown’s suggestion that it covered her genitalia. As she put it, “not exactly”, as she did not know how to use it properly. Ms. Zhao then asked the defendant what didn’t it cover? She replied, “the most important part”. The Crown’s follow-up question was, “What is that?”. The defendant’s response was “the back side”. She was then asked if anything was showing on her front side. Ms. Simpson answered that the way she put on the privacy gown was as if she was wearing a jacket; it was not explained to her how to use it, so it did not cover her properly.
[39] At this juncture, Ms. Zhao played the video recording for the defendant and asked her to point out what was covered by the privacy gown and what was not covered. Ms. Simpson stated that it showed her using the toilet with her back exposed. She now knows from childbirth it should have covered her rear. She was next asked if her front was exposed. The defendant pointed out that her front was visible as well after she got up from the toilet. The time of the video at this juncture was 4:57:44. Ms. Simpson stated “oh dear” at this point in her evidence and appeared to be visibly upset. The video was then stopped. She agreed that at the time she was using the toilet no one walked by her cell.
Position of the Parties
[40] On behalf of the defendant it is stated that the defendant’s Charter s.8 rights were violated by her being provided with a privacy gown, but there being no redaction in the video segment showing her using the toilet in her jail cell. Relying on the decision in R v Mok, 2014 ONSC 64, leave to appeal denied, 2015 ONCA 608, the defendant asserts that monitoring detainee’s use of a toilet by police officers of either gender is a highly intrusive invasion of privacy and a violation of the detainee’s reasonable expectation of privacy.
[41] Defence counsel asserts that the defendant’s s.8 Charter rights were thus breached when she was videotaped in her holding cell while using the toilet in her cell. It is noted in this regard that none of the front-facing cameras appear to have been redacted; in these circumstances the privacy gown was of little to no utility in safeguarding the defendant’s privacy interests. Moreover, there was no indication that she had been equipped with the knowledge that the cell areas were being audio or video recorded from the officers’ notes or otherwise. The humiliation and embarrassment that was thereby caused to the female defendant “in real time” could have been avoided. Such conduct amounts to a Charter violation which mandates a stay of proceedings under s.24(1) or exclusion of the evidence of impairment at the detachment and the breath samples under s.24(2)
[42] In further support of its position, the defence submits that the videotaping of the defendant using the toilet in her cell amounts to a warrantless search which the Crown has not justified as being reasonable. At no time was Ms. Simpson explained how to use the privacy gown or advised that the camera would be recording her, as opposed to being a monitor only. In the circumstances, no real effort was made to address or accommodate “the underlying dignity concerns” of the defendant, contrary to the police policy that was in place to do so: see R v Moondi, 2019 ONCJ 293 at para 33.
[43] Crown counsel, on the other hand, submits that there was no breach of sections 7 and/or 8 of the Charter (Mok) as the defendant was advised of the cell video and a privacy cover was provided and explained. At no time, she further asserts, were Ms. Simpson’s genitalia exposed. In the event a Charter violation did occur, it is submitted an order excluding evidence is not warranted, nor is this one of the “clearest of cases” justifying a stay of proceedings.
[44] The Crown seeks to distinguish the Moondi decision as in that case the defendant was observed and videotaped urinating in police custody two times. Thus, the magnitude of the breach there was greater than for Ms. Simpson whose use of the washroom while being observed in the cell was limited to one time only.
[45] It is further submitted in this regard that not every case of a person using the toilet in their holding cell mandates a Charter remedy of exclusion of evidence and/or a stay of proceedings. By way of example, the Crown cites R v Edgecombe, 2015 ONCJ 403 where the defendant, who was herself a police officer, was found to have been aware that she was being monitored while using the toilet. The Court declined to exclude the evidence or stay the proceedings in these circumstances. Likewise, in R v Scott, 2016 ONCJ 177, no Charter remedy was granted where the defendant made rude gestures to the camera, evidencing her awareness that she was being viewed, and she used the toilet in front of the officer who placed her in the cell. Neither did she make any effort to conceal her use of the toilet by means of the covering she had in the cell. A stay of proceedings was held not to be warranted as a result.
Analysis
The Mok decision
[46] The “Mok” issue, as it has come to be known, involves a balancing of the responsibility placed on police services to safely monitor and protect accused persons who are in their custody, and the privacy interests of such individuals when they perform basic human functions and needs, such as the use of a toilet in one’s cell, in a manner that is both safe and respectful at the same time. The task is made no easier by the fact that in the case of drinking and driving motorists, the person in custody is often not well equipped to make sound decisions at the time, or at least not ones that might be more readily apparent were they are in a sober state. Hence the police are tasked with protecting the person in their custody both from themselves and others, all at once and the same time.
[47] This issue is no longer a novel one. The decision in Mok at first instance was rendered over 10 years ago: see R v Mok, 2012 ONCJ 291. In that case, like the one before me, Ms. Mok, following her arrest for drinking and driving charges, was placed in a police holding cell where the video surveillance recorded all of her activities, including the use of the toilet. The defence claimed that this amounted to a violation of her Charter s. 8 right, and a stay of proceedings was warranted.
[48] The trial judge, Justice West, agreed and granted this remedy. In coming to this conclusion, he noted that the police officer in question did not specifically advise the defendant that her activities inside the police cell were being videotaped, although he did point out that the entire police station was under video surveillance. Ms. Mok, in turn, testified that she was unaware that there was a video camera in the cell she was placed into. She blamed this on her highly intoxicated state at the time. When she realized upon reviewing the disclosure that her use of the toilet had been recorded, she felt humiliated, upset, disgusted and ashamed.
[49] Justice West acknowledged the need for the police to monitor detainees for their own safety while they are in the custody of the police. This was especially so for a person like Ms. Mok whose blood alcohol level was close to being toxic and required the police to call an ambulance to bring her to a hospital. On the other hand, he rejected the argument that a person in custody does not have a right to privacy. In particular, he held there was no basis to conclude that it was necessary for her safety and protection to observe her using the toilet “unobstructed, fully exposed to the camera”: Mok at para. 96. According to the camera footage, she was “fully exposed” on several occasions; male and female officers were monitoring her while she used the toilet. It was clear by her actions that she was “completely unaware” that her activities in the holding cell were being videotaped.
[50] The Court went on to conclude that the practice of monitoring and videotaping accused persons using the toilet in a holding cell at the police station violated s.8 of the Charter of Rights. It did so by breaching the defendant’s right to be secure from unreasonable search or seizure. Justice West noted, further, that the practice in question would continue in the future, and potentially by police officers of the opposite sex. He considered that this unjustifiable manner in which the police monitor and videotape accused persons using a toilet, fully exposed, with no measure of any privacy, would shock the conscience of right-thinking members of the public. Thus, every detainee in the jurisdiction, York Region, was at risk of being subjected to the same “degrading, humiliating, abhorrent and demeaning invasion of privacy” as the defendant: Mok, at para. 115. A stay of proceedings was therefore granted.
[51] Justice West’s decision granting the Charter stay was overturned on appeal. What was not reversed, however, was his finding that the defendant’s s.8 right against unreasonable search or seizure was violated by the police practice of monitoring her use of the toilet over video surveillance: R v Mok, 2014 ONSC 64.
[52] Boswell J., the summary conviction appeal court judge, considered that while detainees have a significantly reduced expectation of privacy while in police custody, it remains reasonable for detainees to expect “at least some minimal level of privacy” while they are in such custody, particularly when the presumption of innocence remains in place: Mok, at para. 66. Hence, the worthiness and reasonableness of videotaping everything that happens in a detention cell for safety reasons did not necessitate the surveillance and recording of the use of the toilet in the cell. It was observed in this regard that the use of a “modesty screen” protecting 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 detainee’s dignity and bodily integrity.
[53] It was not disputed, thus, that the monitoring and videotaping of detainees using the cell toilet by police officers of either gender constituted a “highly intrusive invasion of privacy.” At the same time, the detainee’s expectation of privacy in the cell area was not so significant as to warrant a finding that any level of surveillance was inappropriate. But it was sufficient to require that the police do not monitor and record the use of the toilet by detainees.
[54] As for the Charter remedy for this breach of the s.8 right to be secure against unreasonable search or seizure, Justice Boswell concluded that a stay of proceedings was not an appropriate remedy in this instance. It was considered, in this regard, that this appeared to be the first instance where the conduct of the police service in videotaping their cell areas, which had been the practice for a considerable period of time without complaint, was the subject of a Charter challenge. There were no comparable cases on point. Neither did the views or practices of the police officers in the case represent the views of the police service executive. Consequently, the trial judge was found to have erred in considering that there was a likelihood that breaches of the type in question would continue in the future. While it would be right for members of the public to be concerned about the defendant’s breach of privacy, the Court did not consider this to be egregious or shocking, such that a stay of proceedings was warranted.
[55] Significantly, Justice Boswell took into account that with the Court’s guidance, it was to be expected that the executive of the police service would make the decision to effect change in the way they monitor detainees in their cells. The “fix” was relatively minor: it could be achieved either with repositioning the video cameras, or by installing modesty screens that cover the lower portion of a person’s body while using the toilet. Considering that a stay is a remedy of “last resort”, it was appropriate to give the police the opportunity to effect the appropriate changes. In the result, the stay of proceedings was set aside, and a new trial ordered.
[56] An application for leave to appeal to the Ontario Court of Appeal was brought by the defendant. It was dismissed: R v Mok, 2015 ONCA 608.
[57] In its brief endorsement, the Court of Appeal observed that as both the trial judge and appeal court judge found a breach of the Charter s.8 right, the only issue on appeal was whether a stay was the appropriate remedy for the breach. However, at the time the stay of proceedings was imposed by the trial judge, the York Regional Police viewed and videotaped all prisoners using the toilets in their cells as a matter of policy. Since the time of the summary conviction appeal judge’s decision, steps had been taken by the police to ensure that prisoners’ privacy while using the toilet was now protected from both viewing and videotaping. As a result, the decisions of the lower courts in the case had been acted upon by the York Regional Police and had had their intended effect on the administration of justice. There was therefore no need to grant leave to appeal on the basis that the issue in question had significance to the administration of justice generally.
Application of Mok to Other Cases
[58] The “Mok” issue has thus had the imprimatur of the highest court in this province for several years now. It can hardly be considered to be novel. Police forces have had ample time to respond to it. Indeed, in York Region such changes were made by the time the decision in Mok was brought before the Ontario Court of Appeal.
[59] This is not to say that all cases involving videotaping detainees using the toilet in their cell, particularly around the time Mok was decided, necessarily led to Charter remedies being granted, whether exclusion of evidence or a stay of proceedings.
[60] Indeed, as evidenced in the cases relied upon by the Crown, Edgecombe and Scott, courts have declined to grant such relief. In the former, while the OPP detachment (in St. Catharines) did not follow its own procedures with respect to video recording of the cells, the defendant was a police officer herself, and was aware from her job that it was common practice to record prisoners for officer safety and for prisoner safety. Even if that finding had not been made, the Court considered that exclusion of the breath tests or a stay of proceedings was not an appropriate remedy. Likewise, in the latter, Justice Felix took into account that it could reasonably be expected that the management of the Durham Regional Police Service would “absorb the guidance” provided by the Ontario Court of Appeal in Mok, and like other professional police services make the required changes. This militated against granting a stay of proceedings, notwithstanding the breach of the defendant’s Charter s.8 rights in being observed going to the bathroom.
[61] Neither have all accused persons who have been observed going to the washroom in their cell been found to have been impacted in a manner that is disconcerting. Hence, in R v Stennett, 2016 ONCJ 77, Schreck J. noted that while the defendant was seen standing in front of the toilet and urinating, his back was to the camera and no part of his buttocks or genitalia were visible. The impact of this breach of his s.8 Charter rights was therefore found to be minimal. The defendant did not give evidence of having suffered any impact whatsoever and no private portion of his body was exposed. The view of his back that could be seen on video in these circumstances was found by the Court to be much like the view that could be seen in any public male washroom.
[62] A similar result obtained in R v Singh, 2016 ONSC 1144, where the recorded images of the defendant urinating in the toilet were from his back only and while he was fully clothed, a view that would be observable to “any number of random male strangers” using “public washrooms across the country”: Singh, at para. 41. The exclusion of evidence was reversed on appeal.
[63] That said, other courts have considered that the situation with male detainees who are required to use a urinal in police custody in much the same way they would do in any public washroom has no application to female detainees. As Monahan J explained in R v Wijesuriya, 2018 ONCJ 211, at para. 34, “Persons identifying with the female gender are not expected to use toilet stalls with open doors in public washrooms and to have other females watch them while they do so.” Likewise, in the case of a male detainee, despite the position of the camera’s angle to one’s side and front, and the position of one’s hands to block their genitals, it may well remain obvious to all that the person is urinating while being video recorded: see R v Lacku, 2019 ONCJ 88, at para. 23. In both these cases the evidence was excluded.
[64] In R v Liu, 2019 ONCJ 513, a “modesty screen” which was set up in the defendant’s cell was not positioned correctly, such that it provided a greater viewing of his body than was intended. While the screen was not functioning as it should have, it still afforded some protection. None of the defendant’s private parts or underclothing was exposed. When the police were made aware of the problem, steps were taken to remedy the matter. The Court ruled that this was not the clearest of cases in which a stay of proceedings was warranted.
[65] In another instance, R v Beckford- Johnson, 2018 ONSC 2766, the accused used the toilet in the corner of her cell on eight occasions over a period of six hours. The holding cell was monitored at all times by a closed circuit television camera, including the area of the cell where the toilet was located; the camera was equipped with a masking device that blurred the area of the cell where the person would otherwise be observed while using the toilet. However, the defendant alleged that she was never warned that the closed circuit camera would be monitoring or videotaping her if and when she used the toilet in her cell. There was signage on the walls, though, indicating that detainees were on video in the cells and in the booking area. The defendant also did not use the warming blanket that she was given to cover herself when she was using the toilet. While finding that the defendant was not entitled to a Charter remedy in these circumstances, Emery J. did comment that the signage should tell occupants that the entire cell was being monitored by a closed circuit television camera and that all movement was being videotaped, including those times when people use the toilets. It was also recommended that prisoners be given a modesty paper gown to use when going to the toilet.
[66] The failure of a detainee to avail oneself of the privacy gown or blanket given to them when using the toilet in plain view of the camera has been found in other cases as well not to result in a breach of s.8 of the Charter: see R v Persaud, 2017 ONCJ 799 at para. 30; R v Tomaselli, [2019] O.J. 447 (C.J.) at para. 35; R v Sweers, 2021 ONCJ 271 at para. 73.
[67] Barnes J. reversed the trial judge’s decision to exclude evidence due to a privacy breach when the accused was observed using the toilet in her cell in R v Rowan, 2019 ONSC 7099. The police officer in this case told the defendant that her cell was under video surveillance and informed her that she could use a privacy sheet, should she need to use the washroom. She proceeded to use the washroom on two occasions without the privacy sheet and was videotaped both times. It was found by the trial judge that while the officer advised the defendant of the existence of the privacy sheet, the officer did not offer the privacy sheet. However, the officer was inexperienced and there was no indifference or maliciousness on her part. The appeal judge also took into account that, at the time, there was no evidence of a policy for police to do anything more than advise the detainee of the availability of the privacy sheet.
[68] To be sure, there are numerous instances in which “Mok” violations have resulted in exclusion of evidence or stays of proceedings. The farther one goes from the time of the decision’s release and considering the longer the period the police have had to comport with the dictates of privacy protocols for detainees using the toilet in their cells, this might well be expected. After all, the authorities have had increasingly longer to ensure that their practices in monitoring prisoners’ privacy are Charter compliant.
[69] An example of this line of authority is R v Walker, 2020 ONSC 2139 where Coroza J., as he then was, upheld the exclusion of the defendant’s breath samples imposed at trial due to his being video recorded using a toilet in his holding cell at the police station. During the booking procedure, the defendant was provided with a blanket and a privacy screen. He was videotaped using the toilet in his cell. The video captured him having a bowel movement and wiping himself. His buttocks were also recorded on tape.
[70] In this case, the defendant was given a privacy screen, which is a thin, paper-like mesh sheet, and instructed on how to use it when they have to go to the toilet in their cells. The Prisoner Custody Record form was also tendered into evidence as an exhibit. It indicated that the defendant was notified of the video monitoring, that a privacy screen was issued and that he was instructed on the use of the screen. The defendant testified that he had to have a bowel movement as soon as he entered the cell. He did not use the privacy screen. As he was not given toilet paper, he used his hands to wipe himself. All of this was captured on the video recording.
[71] The trial judge found that it was the police officer’s duty to confirm that the defendant was fully aware that he could be videotaped using the toilet in his cell. He specifically accepted the defendant’s evidence that he only understood that the station was being video recorded. In excluding the evidence, the trial judge considered that the police conduct in not making sure that the defendant fully understood what he was being told about the privacy blanket and video recording in the cell was a very serious violation of the Charter; this infringement also had a significant impact on the defendant: his buttocks were exposed and the fact that he was recorded having a bowel movement and wiping himself with his hand was very humiliating and had a serious impact on his Charter rights. In the result, the profound breach of the defendant’s protected privacy interest was found to have properly led to the exclusion of the evidence.
[72] Another case of exclusion of such breath testing evidence following a breach of the defendant’s privacy while using the toilet in his cell is illustrated by R v Wong, 2020 ONCJ 665. This decision involved the same jurisdiction as in Mok. In this instance, while the defendant was given graphic and written notice of video surveillance, and subsequently verbal notice, he was not advised of the availability of a privacy blanket. He was videotaped while urinating in his cell. Justice Kenkel observed in this regard that while the cell video was less intrusive than others that have been considered by the courts, the breach was “a serious one given the time since the Newmarket Mok decision and the failure in this case to implement the relevant policy”: Wong, at para. 28. It was held that to admit evidence where the accused’s privacy right was not protected despite consistent guidance from the courts would bring the administration of justice into disrepute.
[73] Two other cases that are particularly instructive are R v McLaren, [2015] O.J. 6412 (C.J.) and R v Griffin, 2015 ONSC 927, where each Court had before it evidence as to how the OPP responded to the Mok decision in an effort to comply with the need to furnish greater privacy to detainees in their cells when using the toilet, while also ensuring their safety. In Griffin, this evidence was partially adduced in the form of fresh evidence, meaning that it had not been available to the trial judge. While Dawson J. ultimately declined to admit the evidence on appeal, reference was made to it, as well as the evidence that was properly brought before the trial judge in this regard. Accordingly, these decisions particularly assist in understanding how the authorities post-Mok are to be informing detainees of their privacy rights and implementing such policies, according to the police leadership itself.
[74] I will commence with the Griffin decision, then, as it is the earliest of the two in terms of the OPP response. The accused in this case was video and audio recorded while using the toilet in a holding cell at the Burlington detachment of the OPP. The trial judge found that the recording violated the accused’s reasonable expectation of privacy and constituted a violation of s.8 of the Charter of Rights. However, she declined to grant a stay of proceedings or exclude the evidence.
[75] The trial judge in this case was provided, in this regard, with an affidavit from the Detachment Commander at Burlington. It indicated that the OPP policy concerning the video recording of all prisoner activity was the result of the recommendations from four separate Coroner’s inquests into deaths of persons in OPP custody. According to the affidavit, officers in the Region were instructed to ensure that all detainees were advised they were being recorded at all times and that they were permitted to cover themselves with a blanket when using the toilet. Blankets were to be available for this purpose. It was further indicated that the OPP leadership was aware of the decision of Boswell J. in the summary conviction appeal in Mok, and the Court’s recommendations about the manner in which privacy might be provided to detainees while using the toilet, were being taken seriously.
[76] A further affidavit, not tendered at trial, was sought to be introduced on appeal by the Crown. This affidavit reiterated the evidence that was brought before the trial judge but went on to add information about what the OPP had been doing since the trial to respond to the privacy concerns raised in the case. It indicated that the OPP was in the process of rolling out a program to which almost all detainees would be provided with disposable paper hospital gowns which they could use to cover themselves while using the toilet.
[77] As the trial judge had declined to stay the proceedings due to the privacy breach, the appeal court was concerned that the Crown, in seeking to uphold the ruling, was impermissibly seeking to expand the record on appeal. The Crown was, after all, the respondent, on appeal. Consequently, after considering cross-examination on the fresh aspects of the proposed evidence, Dawson J. ruled against receiving the fresh evidence. The court went on to uphold the finding of the trial judge, noting that the officers who dealt with the defendant were respectful of her dignity and tried to give her as much privacy as possible. She was searched by female officers, no one directly observed her using the toilet, the recording was available only to a few people and there was a publication ban respecting the video.
[78] In McLaren, the accused was captured on surveillance having two bowel movements on a toilet in his cell. Justice O’Dea agreed that this amounted to a Charter violation and ordered a stay of proceedings. The Court began its analysis by making reference to the four Coroner’s inquests recommendations that were mentioned in the Griffin decision. It was noted that prior to 2009, the OPP rarely videotaped detainees in their holding cells. As a result of the inquests, the police pursued the standardization of in-cell/holding areas with 24/7 video surveillance as well as the constant monitoring of detainees in their cells. Each cell in every OPP detachment was thus equipped for constant audio and video monitoring. The affidavit evidence to this effect was tendered by the same officer whose evidence was not admitted on appeal by Justice Dawson in Griffin.
[79] In early 2014, in response to Justice Boswell’s decision in R v Mok, the affidavit indicated that the OPP Commissioner developed policies to be implemented province-wide regarding accommodations for detainees using toilets in a cell. It was considered that making a private washroom available to a detainee was inconsistent with the inquest recommendations. In balancing the detainee’s right to privacy, even while using a toilet, against the broad public interest of preserving the detainee’s physical and emotional well-being and the preservation of evidence, absolute privacy could not be accommodated. In the result, use of a toilet in a cell was unavoidable. It followed that some level of embarrassment as a result of being required to use a toilet while being monitored would ensue.
[80] The OPP response to detainee embarrassment was next addressed in the affidavit. The policy described was to be implemented at every detachment in July of 2014. It required officers to do the following:
. clearly advise every detainee he/she is being monitored in their cell;
. clearly advise that the monitoring will not cease if the toilet is being used;
. assure these instructions are well documented;
. post signage above each toilet confirming the scope of the monitoring;
. make available gowns or possibly other coverings to be used by a detainee while on the toilet;
. limit the distribution of any recordings where a detainee is captured using a toilet
[81] O’Dea J., proceeded to observe that whether the policy would work as intended was yet to be seen, given its recent implementation. The Court noted that it appeared to be a “proactive” policy as written; however, it was noted that how notice to detainees of the accommodations offered, and how to access them, was not set out in it.
[82] Indeed, in the case at bar, none of the steps that were to be taken under the policy was followed by the breath technician. The policy had been in force for four months at the time. Had this province-wide policy been observed, it would have mandated these measures to have been taken: every officer who placed a detainee into a cell area was required to be seen on camera pointing to the camera in the cell to prove the officer had notified the detainee the cell was monitored; every officer was required to stress that the camera also captured the detainee’s use of the toilet and make a note of such advice in his/her notes; ensure the proper posting of stenciled signs in the area of the toilet reminding of video monitoring and to show that sign to the detainee; and provide paper medical gowns to detainee’s who need to use the toilet.
[83] The final case I wish to mention where evidence was excluded due to a “Mok” infringement is Justice Gee’s decision in R v Moondi, 2019 ONCJ 293. This matter involved the OPP station in Simcoe. The accused was twice captured on the cell area video surveillance going to the washroom. The first time a police officer stood just outside the cell and was close enough to see the defendant while he relieved himself. He could clearly be observed urinating. On the second occasion, the defendant was lodged in a cell with another detainee. He was again recorded relieving himself.
[84] There was evidence from the police officers that the defendant had been provided with a privacy gown and told the washroom area of the cell was subject to video monitoring. However, the officer who told him this could not recall the exact words she used during this explanation, nor did she give him any instructions as to how one would use the privacy gown. The privacy gown itself was not offered until the person is lodged in the cell, after processing and any other necessary steps taken by the police, such as speaking to counsel. The video showed, in fact, that the first time the defendant entered the cell and urinated he did not have the privacy gown with him. Moreover, he said he was given a blanket, not a privacy gown, to have in the cell, without any explanation for its use in order to protect his privacy while using the toilet in his cell. It was also his evidence that he assumed the area was under video surveillance but did not think that extended to videotaping persons as they used the toilet.
[85] Gee J. noted that following the Mok decision and its jurisprudential guidance, many police services began to take steps to balance the competing interests between the detainee’s expectation of privacy and the state’s legitimate need to monitor persons in custody. This included the use of privacy gowns, privacy screens or the pixilation of the videos themselves as being some of the methods used to attempt to strike an appropriate balance in this situation.
[86] The Court went on to find, in concert with the jurisprudence that has emerged following Mok, that the video taping of the defendant constituted a search. Accordingly, since such a search was warrantless, the burden shifts to the Crown to establish it was allowed by law and conducted in a reasonable manner. As for the former, the videotaping of detainees by police in these circumstances is lawful. With respect to the latter, however, the issue turns on the reasonableness of the police efforts to balance that legitimate police activity with the privacy rights of the defendant.
[87] Justice Gee observed that in the case at bar it was not the OPP policy in place that was under attack, but its implementation. The provision of and proper use of privacy gowns or blankets can strike a proper balance between the police need to video tape detainees and the detainees’ expectation of privacy in such situations. However, it was the failure by the police to follow the policy in this case that resulted in the defendant’s s.8 Charter rights being violated.
[88] In this instance, it was not at all clear that upon arrival at the station that the defendant was specifically advised the videotaping on the premises extended to videotaping persons using the toilet. The defendant, who operated his own small business, stated that he assumed videotaping at the police station would be similar to the video taping used at his business, which did not include videotaping persons using the washroom. Gee. J. stated in this regard:
This strikes me as a reasonable interpretation. Video surveillance is ubiquitous in this day and age and people have generally come to realize that. However, people generally assume that this does not extend to them being videotaped in washroom facilities. People who are unfamiliar with police procedures and facilities, especially if it is their first time in custody, could reasonably be unaware that a warning such as the one given by Officer Hell upon arrival at the station, extended to the toilet area. (Moondi, at para. 23)
[89] The officer who first dealt with the defendant upon his arrival at the station acknowledged that she could not remember exactly what she said to him in regard to the privacy gown. She agreed that she did not show it to him or demonstrate its use. She indicated that gowns are offered to detainees, and it is stated that they can be used for going to the washroom as the cells are monitored by video.
[90] It was held that the OPP implementation of their policy in these circumstances was flawed. It resulted in a violation of the defendant’s rights. It was clear that he was never provided with a privacy gown or that one was offered or made available to him. Indeed, the officer who escorted the defendant to his cell could not recall any discussion with him at all. At best, if the defendant was subsequently given a privacy gown and told he could use it while going to the washroom as the cells were videotaped, no explanation as to how to use it or demonstration was provided.
[91] The Court went on to note that being in custody is by its nature “a highly stressful situation for the detainee, especially if one has never been in police custody before.” (Moondi, at para. 30) Often such individuals are under the influence of alcohol or drugs, and not in the best position to make decisions. In the case of this defendant, his blood alcohol concentration was in excess of twice the legal limit. The police knew he was drunk. For a detainee who finds himself/herself in such a situation, Gee. J. commented, “how they would use a gown to maintain their privacy and dignity, is not likely intuitive. A brief explanation or demonstration on its proper use is not overly burdensome or too much to expect.” (Moondi, at para. 30).
[92] Turning to the issue of whether or not the results of the breath samples ought to be excluded, it was held that the breaches in question of the defendant’s privacy were serious. The issue was no longer a novel one. The authorities had at least six years since Mok to make reasonable accommodations for the privacy and dignity of detainees while they use the toilet. However, in this case, not much more than “the bare minimum” was attempted, and “no real effort” was made to address or accommodate the underlying dignity concerns of the defendant that the policy was intended to address. There was also a serious infringement of his privacy and dignity. Mr. Moondi was videotaped on two separate occasions using the toilet in his cell.
[93] Justice Gee proceeded to make these observations:
I acknowledge the more intrusive the video the more serious is the breach, but I would add it is getting to the point where it is unseemly for courts to have to continue to undertake such an analysis. I do not want to have to watch the video in cases such as this to see for instance if Mr. Moondi’s penis was visible and if so for how long. I no longer want to have to listen to witnesses being asked as we did in this case, if they saw Mr. Moondi’s penis. I no longer want to be told as I was in this case by the Crown that he watched the videotape several times in preparation to see if he could see Mr. Moondi’s penis. This is unseemly and only exacerbates the affront to the dignity of a person like Mr. Moondi, For what it’s worth in this case, especially the first time he used the toilet, the video depicted a grown man standing in a cell, open to the hallway, with an officer standing nearby, with people walking by, while he was clearly urinating. His urine stream was visible as was his penis. This would have been a highly embarrassing and uncomfortable situation for anyone to be put in. It is for these reasons I find this was a significant and serious breach of Mr. Moondi’s privacy and this branch also favours exclusion.
[94] In the result it was held that, on balance, the administration of justice would be brought into disrepute if the evidence was admitted. There was serious indifference to both the policy of the OPP and to the effect of their actions by the officers on the dignity of the defendant. These factors were held to outweigh the societal interest in having a trial on the merits.
Application of Mok to the Facts of the Case at Bar
[95] It can readily be seen that there are many similarities to the Mok decision itself to this case. Ms. Simpson was clearly under the influence of alcohol and there was an obvious need to assist her in both monitoring her safety while in police custody and ensuring her privacy and dignity in the holding cell when using the toilet. Both officers who investigated her commented that she had trouble following their instructions and paying attention. She was “extremely talkative” throughout. It would be apparent that her level of intoxication would also impair her ability to understand and process information respecting the presence of video recording devices, the very same concern noted by Justice Boswell in Mok (at para. 69). This called, then, for much more than cursory interaction and simply pointing to a camera in her cell and leaving the privacy gown for her, with absolutely no explanation or demonstration or indication as to how to use it.
[96] The stated policies of the police were thus given scant attention in their implementation in this regard. Nothing was recorded in any of the officer’s notes about what this defendant was told about being monitored in the cell or given a privacy gown. There is, of course, no audio, as to anything she or anyone else said beforehand. No Prisoner Custody Record detailing prisoner checks and the officer’s duties as they relate to notifying the defendant of video recording and issuing her a privacy gown has been produced. Such instructions, then, provided to the defendant which are to be “well documented” were, in fact, not documented at all. Given the very brief period of time the officer was in her cell and pointed to the camera, I accept Ms. Simpson’s evidence that she had no reason to believe she was being recorded as opposed to monitored. Further, it is not in dispute that the privacy gown was never opened or explained to her.
[97] The video recording in this case shows Ms. Simpson, prior to her using the toilet in her cell, standing at the bars and apparently calling for the officers. They were only a short distance away. It is difficult to understand how the officers did not either hear or see her on camera. In any event, it appears the officers had simply decided they had enough of engaging with her, and this is indicative of the brief time they were in the holding cell with her, pointing to the camera and dropping off the privacy gown without anything more.
[98] The result is apparent, unfortunately, for all to see. The defendant had no idea how to put on the privacy gown. She was not even sure what it was as it looked like a pad cover. A person who is given no instruction as to how to do so, and is in a stressful environment, a jail cell, and under the influence of alcohol, can hardly be faulted for fumbling with their privacy gown and wearing it backwards, thereby exposing their naked body and genitalia. It is not an intuitive matter to put on such a covering. In short, the way that Ms. Simpson was treated by the police was callous and insensitive. Her dignity and privacy interests were not respected at all.
[99] It follows that there was a very serious violation of the defendant’s s.8 Charter rights in these circumstances. The ubiquitous camera in her cell recorded her exposed buttocks as she relieved herself on the toilet. She was recorded wiping herself afterwards. When she stood up, as the privacy gown was on backwards and undone, her private parts and under-clothing were revealed. This was a deeply upsetting and humiliating experience for the defendant. There was an audible gasp by her in the courtroom as she watched the videotape replayed for her and was asked by the Crown to point out where and what body parts were exposed.
[100] Moreover, as Justice Kenkel noted in this regard in R v Wong, 2020 ONCJ 665, at para. 26, the fact that a permanent record was made of this private activity in the police cell is not only highly embarrassing but having to litigate the issue at court “perpetuates the invasion of privacy.” Playing the video in open court adds to this embarrassment: see R v Edgecombe, 2015 ONCJ 403, at para. 298.
[101] Justice Gee in the Moondi decision commented on the unseemliness of such video recordings being played in court and the parties asked to point out where they can see one’s genitals or not. This does exacerbate the affront to the dignity of the party in question. I well appreciate the Court’s comment in Moondi that it did not want to have to watch the video in such cases to see, for instance, if the defendant’s penis was visible and if so for how long. To this I would only add that neither should any justice system participant want to have to observe this. It is deeply offensive for all concerned. The defendant, in particular, should not be expected to come to court to rely on their constitutional right to have a trial and the presumption of innocence, only to be made to feel “extremely embarrassed, shocked and humiliated,” in Ms. Simpson’s words, simply for doing so. Prosecutors can still be effective advocates and press their positions without asking deeply personal and offensive questions, such as telling Ms. Simpson to stop the tape when her genitalia were exposed and point this out, and then challenge her as to explain why she feels embarrassed. At a minimum, her lack of privacy while in police custody was uncontested in this case, and could have proceeded as an admission or agreed statement of fact, namely, that the defendant was given a privacy gown without any explanation or instruction how to wear it, was recorded using the toilet while exposed, and no record was made of any explanation she was given. Trials may not be tea parties, but there is no reason for them to be offensive where one’s dignity and privacy is concerned.
[102] A stay of proceedings is the only remedy that is appropriate and just in the circumstances of this case. There were multiple failures by the OPP officers to follow their own policies that have been on the books since July of 2014. Eight years have passed since then. Clearly the officers here were aware of the use of privacy gowns, as they produced one for the defendant. After doing so, however, they completely ignored her and made absolutely no effort to ensure her dignity in the cell while using the toilet, as they are charged with doing. The authorities are thus well aware of their responsibilities and duties in complying with the Mok decision. It was given, though, the absolute bare minimum of adherence. Not one officer who gave evidence in the proceedings made a single note about what was told to the defendant about her privacy rights, a blatant violation of the requirement to properly document such instructions. In such an instance, a stay of proceedings is necessary and prospective; it is not being imposed for merely punitive purposes. It is the former and not the latter as it is to ensure that state misconduct in video recording persons using the toilet while in detention does not continue.
[103] A stay of proceedings is well understood only to be imposed in the clearest of cases: see R v Regan, 2002 SCC 12. One such instance, as stated in R v Babos, 2014 SCC 16, is where there has been prejudice to the integrity of the justice system, where no other remedy will adequately address the prejudice or dissociate the justice system from the impugned conduct. It is within this residual category that a stay of proceedings must be ordered, as the integrity of the judicial process would be undermined by proceeding with a trial in the face of conduct that is offensive to societal notions of fair play and decency: Babos, at para. 35.
[104] This is precisely the case here. A stay of proceedings is required to prevent the implementation of a police policy in a way that continues to be fundamentally flawed. It is constitutionally offensive because no real effort is being made to address the underlying dignity concerns of detainees that the policy is designed to address.
A Final Comment. Again.
[105] I wish to conclude this judgment where I began. By noting the unnecessary and completely avoidable difficulties that arise when a police service refuses to audio tape its booking procedures and fails to record anything, that anybody says, to anyone, at this most important part of the police process: when a detainee enters the police station and is kept in custody under the total control and care of the authorities.
[106] In a previous decision, involving this same OPP Toronto detachment, a similar problem arose. The sole issue was whether the defendant voluntarily removed his pants for safety reasons, as the police claimed, or against his wishes, as the defendant asserted, prior to breath testing when he was lodged by the police. I noted that had an audio recording been made available of this interaction, the issue would certainly have been resolved, and perhaps a trial adverted entirely: see R v Uhuangho, 2018 ONCJ 599, at paras. 159-162.
[107] Courts preside now in a post-R v Jordan, 2016 SCC 27, post pandemic (thankfully) world. Trial time is more precious than ever. While our criminal trial courts have remained open during the entirety of the pandemic, the rate of trials has slowed considerably due to capacity limits and other restrictions in the courtrooms that are only now being slowly lifted. The trial in question, conducted entirely in person, took four days to conclude over a five-month period.
[108] Once again, had audio been available of the booking procedure, the issue of what the authorities said, or didn’t say, to Ms. Simpson about being video recorded in her cell and the availability of a privacy gown would not have been in dispute. The trial would have been streamlined on this most important issue. There would be no need to present the officers with pictures of placards on the wall in the booking area or watch a silent tape to see if this jogged their memories of what was stated to each other at the time. As Justice Coroza, as he then was, pointed out in R v Walker, 2020 ONSC 2139, at para. 22, the absence of any audio recording during the booking process makes it “difficult” for the trier to assess what a defendant is told by the police prior to being lodged in a cell and the privacy afforded to him/her. There is no good reason for such a difficulty to exist in the technological age in which we now preside and practice, sometimes virtually and by remote access in order to facilitate access to justice. Indeed, it would be tantamount to conducting a zoom trial while all the parties remain on mute.
[109] Jordan implores all justice system participants, including the police, to work in concert so as to achieve speedier trials, since everyone stands to benefit from such measures: Jordan, para. 116. The OPP officer who is the Manager of Communications and Technology and was called to give evidence on the lack of audio recording at OPP detachments could not himself explain the rationale for failing to equip the lodging area with both audio and video recording. He thought it had something to do with the forms that were filled out at the time. And one of the officers who testified in this trial thought the booking area was audio recorded and stated he could not think of a reason for it not to be. The rooms immediately adjacent to this area, mere steps away, are in fact so outfitted for both sound and video. It is hard to understand, then, this persistent practice of failing to equip the booking area with sound. Everyone would stand to benefit from doing so: the police, in particular, where their evidence is challenged; prosecutors who are left to present these sounds of silent evidence; and the defence and their clients who have no disclosure of that which is not preserved in evidence and cannot therefore be disclosed. Had this defendant been stopped on Avenue Road, rather than by the ramp on the highway to Avenue Road, such evidence would have been available.
[110] It is thus well past time, in my respectful opinion, that this archaic practice of failing to record with audio the booking procedure be discarded, and changes be made to bring it into the present, not the future. The current process of videotaping alone, without audio, is not a function of modern policing. It needs to stop. Stated shortly, the booking/lodging procedure at OPP detachments ought to be fully recorded with both video and audio recording and preserved in this manner as evidence. Nothing more is required; nothing less should suffice. Just enable and activate the sound button. Please.
R. Libman J.
8 June 2022