Ontario Court of Justice

Citation: R. v. Reid, 2023 ONCJ 134 Date: 2023-03-22 Information Number: 21 - 45003250

Between:

His Majesty the King

— and —

Dennis Reid

Before: Justice David Porter Reasons for Judgment on Charter Voir Dire Released on: March 22, 2023

Counsel: Ovais Ahmad, for the Crown Dennis Reid, self-represented, for the Accused

Reasons for Judgment

Porter J.:

OVERVIEW

[1] Dennis Orlando Reid (“Mr. Reid”) is charged that on September 19, 2021 in Toronto that he operated a conveyance while his ability to operate it was impaired to any degree by alcohol or a drug or both contrary to section 320.14 (1)(a) of the Criminal Code.

[2] On the same date, he is also charged, as a result of the same incident, of having a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance contrary to section 320.14 (1)(b) of the Criminal Code.

[3] The Crown proceeded summarily, and Mr. Reid entered a plea of not guilty to the charges. He represented himself in the trial.

[4] Upon inquiring of the Crown if any Charter issues were anticipated, Crown counsel Mr. Ahmad, fairly advised that there may be a s. 7 Charter compliance issue, and it was agreed that the matter would proceed as a blended voir dire. The voir dire focused on whether Mr. Reid’s s. 7 Charter rights were breached as a result of the indifference shown by the police to his request to urinate when he was arrested for impaired driving, and the failure of the police to provide dry clothing in a timely way when, after his arrest, he urinated himself while being transported to the police station to provide breath samples.

[5] These are my reasons on the voir dire addressing the alleged breach of s. 7 of the Charter.

[6] The arresting officer, Officer Allen Weeks (“Officer Weeks”) testified that on September 19, 2021 he observed a car, later shown to be driven by Mr. Reid, fail to stop at a three-way stop intersection in the area of Driftwood Avenue and Grand Ravine Drive. Officer Weeks made this observation at some distance, and then drove to the intersection, and followed Mr. Reid’s car which had failed to stop as it proceeded northbound on Driftwood Avenue.

[7] His in-car camera, filed in evidence, showed that as the car proceeded northbound, it had its left turn signal on, it was weaving as Mr. Reid drove slowly up the street, and crossed the opposite lane in the road, mounted the curb and drove on the grass median between the road and the sidewalk, veered to avoid a tree and Bell telephone box, and re-entered the roadway.

[8] Mr. Reid proceeded northbound and turned left at a 3-way stop at Yorkwoods Gate, without stopping, at which point Officer Weeks activated his emergency lights. Mr. Reid pulled his car to a stop adjacent to a playground.

[9] Officer Weeks spoke to Mr. Reid while he was seated in his car. Officer Weeks testified that in his discussion with Mr. Reid, he noticed that his speech was slurred. This was confirmed by Officer Weeks’ body-worn camera footage filed in evidence.

[10] Officer Weeks noted that Mr. Reid had bloodshot eyes and he smelled a strong odour of alcohol on his breath. Another officer who attended the scene, Constable Seguin, commented to Officer Weeks on the body-worn camera that he could also smell alcohol from Mr. Reid.

[11] Officer Weeks testified that based on his observation of Mr. Reid’s driving, including drifting across the opposite lane, mounting the curb, driving for a period of time on the boulevard, before swerving back onto the street narrowly missing a tree and Bell telephone box, along with the glassy bloodshot eyes and the strong odour of alcohol from Mr. Reid’s mouth, that he had reasonable grounds to believe that Mr. Reid’s ability to operate a conveyance was impaired by alcohol.

[12] He contacted police dispatch and received information that the closest breath technician was at 23 Division at Kipling and Finch.

[13] At 12:57 a.m., he asked Mr. Reid to exit the car. Mr. Reid got out of the car and stated, “I want to pee” and reiterated this request as Officer Weeks was about to arrest him and handcuff him. The body camera of Officer Weeks shows that these statements were made in the presence of the 2 officers who later transported Mr. Reid to 23 Division.

[14] Officer Weeks indicated to Mr. Reid that he did not know where he could assist Mr. Reid with his request to urinate. Mr. Reid stated that he lived nearby. Officer Reid replied that he could not take Mr. Reid home.

[15] In his evidence, Officer Weeks testified that he did not think it appropriate to give Mr. Reid an opportunity to urinate in the playground. He acknowledged that wooded areas were available in the area, but acknowledged that he did not consider taking Mr. Reid there. When this alternative was suggested to him in his evidence, he testified such a location could not be used safely to allow Mr. Reid to urinate.

[16] When asked if there was a police station nearby to allow this to occur, he acknowledged that 31 Division was less than 10 minutes away, but for unknown reasons was on “prisoner re-direct”, so he gave no consideration to taking Mr. Reid there.

[17] I conclude on the evidence that Officer Weeks gave no thought to options to deal with Mr. Reid’s request to urinate, other than to have him transported to 23 Division where the breathalyzer technician was available.

[18] Mr. Reid was relatively polite and cooperative with the police prior to his arrest, saying that he respected the police, while protesting that he was not drunk and that he was really tired having worked a very long day. After he was arrested became belligerent, accusing the police of being liars, wicked racists, and uttering numerous profanities to the officers. He indicated with a string of profanities that he was not interested in hearing Officer Weeks when he attempted to provide him with his rights to counsel and the breathalyzer demand.

[19] Officer Weeks did a pat down search and Mr. Reid was placed in the back of the transport officers’ police car.

[20] The transport officers left the scene at 1:10 a.m. and arrived at 23 Division at 1:25 a.m. The in-car camera video filed in evidence showed that Mr. Reid was distraught, combative, agitated, and constantly shouting profanities and allegations of racism and other improprieties against the police during his transport. At 1:28 a.m., Mr. Reid is heard on the in-car camera saying “I want to pee.”

[21] Officer Weeks received information from the transport Officer Vondercrome that Mr. Reid had urinated himself while seated in the rear of the scout car after the transport officers had arrived at 23 Division while waiting for the sallyport garage to open. There was no evidence of the officers asking for any special accommodation, or priority, to address the fact that Mr. Reid was now in urine-soaked clothing.

[22] Officer Weeks testified that at 1:32 a.m. the transport car was admitted into the sallyport. The booking video filed in evidence showed Mr. Reid exiting the transport car at 1:36 a.m. Mr. Reid approached the booking sergeant’s desk at 1:36 a.m. continuing to yell constantly stating that the police were racist, and lying against him. It is apparent on the booking video that Mr Reid was extremely distraught, and he appears to be crying, when he entered the booking hall at 23 Division. The front of his trousers appear wet.

[23] There is no evidence on the booking video, or from Officer Weeks that he, or any other officer, informed the booking sergeant that Mr. Reid had urinated himself prior to arriving at the booking hall. While this may have been apparent to the booking sergeant neither he or any of the other officers refer to it, and it is unclear whether the booking sergeant was aware of this. In any event, I find as a fact that neither Officer Weeks nor the transport officers advised the booking sergeant that Mr. Reid had urinated himself in his clothing. If the booking sergeant was aware of it by observing Mr. Reid, he did nothing to address it.

[24] After making some brief attempts to get Mr. Reid to calm down and stop yelling, the booking sergeant instructed the officers to do a search of Mr. Reid, stating “we will throw him into an interview room”. Mr. Reid continued to utter profanities towards the police.

[25] Officer Weeks testified that he did not consider offering Mr. Reid a change of clothes at the booking hall, having regard to the difficulties in dealing with Mr. Reid who was belligerent and uncooperative throughout the booking process. He testified that if Mr. Reid had asked for a change of clothes he would have made best efforts to accommodate it.

[26] Police Constable Vondercrome was one of the transporting officers and testified that he could not recall being informed by Officer Weeks that Mr. Reid needed to urinate before transporting Mr. Reid to 23 Division.

[27] It was clear from his evidence that nothing was done by the transport officers to address this issue. Throughout the transportation to 23 Division, Mr. Reid continued to yell at the transporting officers, who apart from driving to 23 Division, did nothing to address his need to urinate, even though Mr. Reid can be heard on the in car camera stating at 1:28 a.m. “I want to pee.”

[28] PC Vondercrome became aware that Mr. Reid had urinated in his clothing, but did nothing to offer him clothing at 23 Division, although he was aware that jumpsuits were available at the station and may be offered by the officer-in-charge or the Booking Sergeant.

[29] He testified that he did not recall informing anyone at the booking hall that Mr. Reid had urinated in his clothing. He claimed a poor recall of exactly what was said at the booking hall.

[30] I conclude based on all of the evidence, including the booking hall video, that no one informed the booking sergeant that Mr. Reid had urinated in his clothing. I also conclude based on all of the evidence that no one offered Mr. Reid dry clothes at the booking hall, and that Mr. Reid continued to appear distraught and combative, and did not specifically request that he be provided with dry clothes. There was no evidence on the voir dire that he was aware that dry clothes were available at the station.

[31] At 1:58 a.m., Officer Weeks placed a call to Duty Counsel and transferred the call to Mr. Reid in the interview room where he had been placed, but Mr. Reid did not want to speak to Duty Counsel.

[32] The breath technician, Andrew Taylor, testified that prior to conducting the breathalyzer examination he tried to speak to Mr. Reid in the interview room and observed that he was yelling, and slapping his hand on a metal table, and was extremely distraught. He was not aggressive with Officer Taylor but appeared upset and distraught.

[33] Mr. Reid entered the breathalyzer room at 2:09 a.m., and in the course of conducting the breathalyzer examination, Officer Taylor noted that Mr. Reid had obviously urinated all over himself. It was obvious to him by the odour of urine and the substantial wet mark on his clothing.

[34] Officer Taylor was aware that a change of clothes are generally available at the station but made no effort to provide Mr. Reid with a change of clothes. Mr. Reid did not ask him for a change of clothing. It was clear to Officer Taylor that Mr. Reid was upset in general, but Mr. Reid said nothing to him specifically about having urinated in his clothing and did not ask for a change of clothing. Mr. Reid co-operated in providing breath samples.

[35] The certificate of a qualified technician dated September 19, 2021 was filed in evidence on the voir dire. It established that at 2:24 a.m. the first breath sample was taken with results showing 180 mg of alcohol in 100 mL of blood. At 2:50 a.m., the second sample was taken showing 170 mg of alcohol in 100 mL of blood.

[36] After the completion of the breathalyzer tests, Mr. Reid was returned to interview room number three, where he remained until 3:56 a.m. when he was transported to 32 Division for processing. He arrived at 32 Division at 4:15 a.m. and was placed into an individual cell. Officer Weeks testified at 4:29 a.m. he offered to get Mr. Reid a clean dry jumpsuit, but he refused it, saying that Officer Weeks was harassing him and that he just wanted to sleep.

[37] Mr. Reid testified on the voir dire that he felt upset by the police officers ignoring his request that he needed to urinate. In total, he felt that he was treated as “less than human”, “like an animal”. He testified that he “felt like a nobody” as a result of his treatment in having his request to urinate ignored, and not being given dry clothing at 32 Division.

[38] He testified that as a result of the police ignoring the fact that he had urinated in his clothing at the station, he started to not believe in the system. He admitted in cross-examination that his vitriol and profanities in constant yelling at the police was a reflection of the fact that he was angry because he was arrested. He also indicated that he was angry because he had asked to use the washroom and this request was totally ignored. He testified that, having urinated in his clothes while seated in the rear of the police car, when he arrived at the booking hall at 23 Division, he had reached the point that he didn’t care anymore. Since the police seemed to not care about him, he stopped caring about himself.

[39] Mr. Reid testified that he was embarrassed by his conduct on the video stating that the person that he became in his interactions with the police that night was “not him”, that he did not generally regard the police as racist and felt embarrassed for the negative things that he had said.

[40] Mr. Reid testified that he did indicate to the transport officers before he arrived at the station that he needed to urinate, but they did not respond to him. His request to urinate is captured on the in-car camera video at 1:28 a.m. He testified that he perceived the officers to be laughing at him during the trip to 23 Division.

[41] He confirmed that nobody said anything about getting dry clothes at 23 Division either in the booking hall or thereafter. He could not recall being offered dry clothes at 4:29 a.m. by Officer Weeks at 32 Division. He acknowledged he was very tired at the time but did not recall being offered dry clothes.

[42] He confirmed that at no time did anyone ever offer him the opportunity to clean himself up. His entire interaction with the police made him feel like he was “not a person”. He testified that he is 53 years of age, has been in Canada for 23 years and had never been through anything like this before.

Analysis

[43] Section 7 of the Charter states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[44] Section 24 (1) of the Charter states:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[45] The Supreme Court of Canada summarized the protection provided by s. 7’s guarantee of security of the person in N.B. (Minister of Health) v. G.(J) 1999 653 (SCC), [1999] 3 S.C.R. 46 at para.65:

“…the restrictions on liberty and security of the person that s. 7 is concerned with are those that occur as a result of an individual’s interaction with the justice system and its administration. In other words, the subject matter of s. 7 is the state’s conduct in the course of enforcing and securing compliance with the law, where the state’s conduct deprives an individual of his or her right to life, liberty, or security of the person.”

[46] At paras.58-60, the Court stated:

“This Court has held on a number of occasions that the right to security of the person protects “both the physical and psychological integrity of the individual”: see R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, at p. 173 (per Wilson J.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, 1990 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1177; Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, at pp. 587-88.

Delineating the boundaries protecting the individual’s psychological integrity from state interference is an inexact science. Dickson C.J. in Morgentaler, supra, at p. 56, suggested that security of the person would be restricted through “serious state-imposed psychological stress” (emphasis added). Dickson C. J. was trying to convey something qualitative about the type of state interference that would rise to the level of an infringement of this right. It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. ….

For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.”

[47] In my opinion, the totality of the police conduct towards Mr. Reid demonstrated an indifference to his dignity and personal security, and an indifference to the inevitable humiliation he, and any reasonable person, would feel from having a request to urinate totally ignored, and after being forced to urinate in his own clothing, receiving no offer to use the available dry clothing upon his arrival at the 23 Division booking hall.

[48] In my opinion, Mr. Reid’s conclusion that his treatment was the result of racism by the police officers involved is not justified based on the evidence before me. Officer Weeks, with whom he dealt the most, was invariably polite in his interactions with Mr. Reid as recorded on the in-car camera and body-camera video.

[49] It is indeed unfortunate that Mr. Reid chose to respond to his circumstances by his string of profanities and what I consider to be unfounded allegations of lying and racism against the officers with whom he interacted.

[50] While I cannot conclude that the officers were motivated by racism, it is understandable that Mr. Reid, a black man, might reach that conclusion as a result of having his request to urinate ignored, and being forced by the officers’ indifference to his request, to urinate in his clothes while seated in the scout car with his hands in handcuffs behind his back.

[51] In my opinion, Mr. Reid’s extreme response to the situation was, in part, a response to the humiliation he experienced of having a simple request to urinate totally ignored, and then when forced to urinate into his own clothes, to have no action taken upon arrival at the 23 Division booking hall to remedy the situation.

[52] His failure to make a specific request for dry clothing is explained in my opinion by his understandable but troubling conclusion that, as he testified, when he arrived at 23 Division, the officers had shown that they did not care about him, so he stopped caring for himself. The police were in control of the situation and were obliged to treat Mr. Reid with professionalism, and common human decency. In my opinion, there was no obligation on Mr. Reid to ask for clothing to trigger an obligation on the police to provide it. It appears that it never occurred to the police that Mr. Reid’s yelling and complaining might have been, in part, an understandable expression of outrage at being treated without common decency, and that an appropriate response would be to try to calm him by giving him the dry clothes that were available when they arrived at 23 Division.

[53] Officer Weeks failed completely, in my view, to even consider whether Mr. Reid’s dignity and security of the person could have been adequately and safely addressed when Mr. Reid first asked to urinate, when he was arrested by, for example, attending at 31 Division, to use a police station washroom.

[54] While the officer understood that there was a prisoner re-direct, it was excessively rigid of the officer to dismiss the idea of just attending with Mr. Reid, not to book him into custody there, but to simply use a washroom, accompanied by the officers to address officer safety and security issues.

[55] Other possible options such as escorting Mr. Reid into a washroom at a public hospital or other facility appear to never have been considered. Attendance by police at a hospital with persons in custody who are injured is common. There was no evidence that Officer Weeks even considered that as an option in this case, rather than leaving it to chance that somehow Mr. Reid would not be forced to urinate into his clothes by the inaction of the police in response to his request.

[56] In my opinion, at least giving reasonable consideration to attending at an available facility, in the presence of the officers, when an accused under arrest expresses need to urinate, is a reasonable requirement of section 7 of the Charter and its obligation to provide to persons in custody treatment consistent with basic human decency and respect. The reasonableness of such a request will depend on the particular circumstances but, in this case, where Mr. Reid was under arrest for a non-violent offence, impaired driving, and had been searched to ensure officer safety, it should have been seriously considered.

[57] In my opinion, when an accused in police custody asks to be able to urinate, when an option is reasonably available to attend a washroom, with the police, after the accused has been searched for officer safety, common human decency and the security of the person guaranteed by s.7 of the Charter requires that this be done.

[58] Where such accommodation has not been possible, and the person in police custody urinates in their clothing, in my opinion, a minimum requirement of the humane and dignified treatment of persons in custody, guaranteed by s.7 of the Charter, is that available dry clothing be provided to the person at the first reasonable opportunity.

[59] This does not require a specific request from the person in custody, as common decency and humanity essential to maintaining the dignity of the accused person requires that they be given the timely opportunity to change into dry clothing after urinating in their clothes while in police custody.

[60] In this case, such an opportunity was upon arrival at the Booking Hall at 23 Division.

[61] I accept that Mr. Reid’s conduct in continuing to yell and reject communication from the police in this instance made the circumstances more challenging for the police officers. However, it is striking that neither the transporting officers nor Officer Weeks even informed the booking sergeant that Mr. Reid had urinated in his clothing. In any event, all the booking sergeant did was lose patience with Mr. Reid and order him to be searched and “thrown” into the interview room. As a result, for the next 2 hours, Mr. Reid interacted with Officer Weeks and the breathalyzer technician in his urine-soaked clothing.

[62] The simple and obvious solution to prevent humiliating Mr. Reid, and respecting his dignity, was to show the common decency of giving him the available dry clothing that the evidence showed was available at 23 Division. This was not done by any of the officers in the over 2 hours that he interacted with the officers at 23 Division. The offer of dry clothing Officer Weeks said he made at 4:29 a.m., after transporting Mr. Reid to 32 Division, was in my opinion too late to reasonably address the humiliation Mr. Reid had already experienced in his interactions with the police since his first request to urinate at about 12:57 a.m.

[63] The officers in this case did not engage in this conduct in the absence of any judicial guidance as to the entitlement of persons under arrest for impaired driving who need to urinate, or who have urinated themselves, to the essential human dignity of being provided with access to a washroom, or if, the person urinates in their clothing, to being given dry clothing, as an aspect of the humane and dignified treatment required for persons in custody.

[64] In R. v. Sathymoorthy, 2014 ONCJ 318, Feldman J. found the accused’s section 7 Charter rights to be breached in circumstances where, after arriving at the police station under arrest, the accused was placed in his urine-soaked clothing in a cold cell, and was never offered a change of clothing or even a blanket to stay warm over a period of 10 hours in which he was detained. Justice Feldman stated with respect to the evidence in that case at paragraph 23:

“It is also open to be inferred on this evidence, given the absence of thought or effort here by any officer to minimize the defendant’s discomfort, that what appears to be wilful indifference to the condition of detainees in soiled clothing, was inherent in the attitude of those involved. It would not have required much for at least one officer, for example, the supervisor of the cells, to take minimal steps to improve the accused’s state. While the actions of drinking drivers need not be accorded respect, their treatment during investigation and while in custody must be handled responsibly and with reasonable consideration. That standard was not met here.”

[65] On the facts of that case, Justice Feldman concluded that there was a breach of section 7 of the Charter, and that a stay of proceedings was appropriate. He stated at paragraph 35:

“Very little was required of the police to respect and accommodate the security interests of their detainee, which included, as noted earlier, providing him a change of clothing or at least a blanket to keep him warm, calling a family member to bring in dry clothes or releasing the accused earlier to a friend or relative. It is open to be inferred that in the casual opinion of the booker, the field officers and the cell supervisor this was for the accused part of the cost of drinking and driving, a mindset and that in my view chips away at the integrity of the justice system and should be discouraged.”

[66] Similarly, in R. v. Stoney, 2015 ONCJ 740, Duncan J. stayed proceedings against the accused as a result of a breach of section 7 of the Charter in similar circumstances. In that case, as in the case at bar, after the accused was arrested for impaired driving, he indicated that he had to go to the bathroom. Upon arrival at the police station the accused was kept waiting at the door from the sallyport to the booking area for 25 minutes. The accused again indicated he had to go to the washroom, but he was told to “hold it in”. He tried to do so but eventually could no longer hold it and urinated in his pants.

[67] The police were very aware that he had done so. He subsequently provided breath tests but at no time was he provided with a change of clothes or alternate cover and remained in his wet jeans throughout.

[68] On the facts of this case, Justice Duncan stated at paragraphs 7, 9 and 10:

“Here the defendant twice told the police that he had to go to the bathroom yet was told to hold it in and was kept waiting while a bathroom and relief were mere steps away. The rationale for keeping him waiting – that only one prisoner at a time is permitted in the booking area – seems rather thin even as a general policy. How problematic could it be to have more than one handcuffed arrestee in the area? But even if it is a generally sound policy, it can’t be inflexible and must bend to at least temporarily accommodate particular circumstances such as those presented here….

After failing to accommodate the defendant’s need to urinate, the situation was aggravated by subsequent actions and non - actions by the police. First, the urination situation was not unique and clothing changes or “bunny suits” were available at the station. Yet the defendant was not offered or given one. The arresting officers say they told the custodial officers that the defendant had wet himself (as did the defendant) but the information was either overlooked or ignored.

Again, it is suggested that the defendant should have been more vocal. But I think it is understandable that he would not want to draw additional attention to his embarrassing situation particularly when he likely would not know that a change of clothing was available”.

[69] On the facts of that case, which also included a denial of food and a lengthy period of detention of almost 12 hours, Justice Duncan concluded at paragraph 16:

“In my view the totality of this neglect amounted to failure of the police to meet their obligation to ensure fair, humane and dignified treatment of a person held in their custody. It was offensive to societal notions of fairness and decency”.

The charges were stayed for a breach of s.7 of the Charter.

[70] Of particular significance in the case at bar, is the decision of Grossman J. in R. v. Samayoa, [2018] O.J. No.6041, in which the court found that Officer Weeks, the same arresting officer as was the arresting officer in the case at bar, breached section 7 of the Charter by denying reasonable access of the accused to a washroom, resulting in the accused in that case urinating in his pants. Officer Weeks failed to ever provide the accused with a change of clothing.

[71] In that case, the accused was arrested for impaired care or control by Officer Weeks. At 11 p.m., the accused requested the opportunity to urinate and was not given the opportunity until 12:02 a.m. By that time, he had already urinated in his pants: R. v. Samayoa, supra, at para.7.

[72] In that case, the accused arrived at the 22 Division sallyport at 11:32 p.m., asked again to urinate and was told he could go once he was inside. At 11:38 p.m., he again requested an opportunity to urinate, and the officer replied he would be inside in a few minutes. They were required to wait in the sallyport for several minutes, and upon attending inside before the booking officer, Officer Weeks said nothing about the accused’s need to urinate. The accused asked again if he can urinate, and the booking officer told him he can in a few minutes as soon as they were done. Officer Weeks testified there is a washroom near the booking hall but the accused is not allowed to use it until he was searched.

[73] The booking process began at 11:48 p.m., a level II search was conducted, and the accused was taken to the washroom at 12:02 a.m. By that time, he had urinated in his pants. Officer Weeks testified that he could have done a pat down search earlier, namely in the sallyport, but it was up to the booking sergeant to determine the level of search. The booking sergeant did not testify at trial.

[74] Justice Grossman stated at paragraph 21 of R. v. Samayoa, supra:

“Officer Weeks testified, notwithstanding his observation of a substantial wet spot covering most of the crotch area, he never offered the accused a change of clothing or jump suit and never asked the booking Sergeant or anyone else whether he could get a jump suit. He could not recall offering to call anyone for a change of clothing. He agreed he did nothing to address the soiled clothing issue. When asked why he did not call someone to bring clean clothes, he stated he did not know who to call. He did, however, agree if he encountered the situation in the future, he would make note of it in his memo book and mention it.”

[75] The charges in that case were stayed. Justice Grossman stated at paragraphs 53-54:

“I adopt and share the views expressed by Feldman J. and Duncan J. both very accomplished and experienced veterans of this Court. Justice must appear to be done. Indifference to personal integrity cannot be overlooked. Indifference to personal humiliation and discomfort cannot be condoned. The Court must encourage respect for the security interests of all and send the message that educates the institutional attitude.

Officer Weeks claimed the decision regarding washroom use and clothing was that of the Staff Sergeant. But the Staff Sergeant did not testify nor was there a booking hall video. I was informed this was due to human error. The breath technician testified the decision regarding clothing was that of the arresting officer. The decision to exer -cise common decency and simple civility was passed from one to the other. Officer Weeks, to his credit, acknowledged if this situation were to occur again in the future, he would mention it and do it differently. Perhaps, next time will not involve “human error”.”

[76] In my opinion, it is important for the analysis in this case that the same arresting officer is involved in the case at bar as was informed by the court in its decision in R. v. Samayoa that his conduct in failing to respond compassionately to the accused’s request to urinate, and thereafter his failure to provide dry clothing in a timely way, resulted in a violation of the accused’s Charter rights. Yet again Officer Weeks finds himself in court in this case seeking to justify similar failings on his part.

[77] Just as he did in the case in R. v. Samayoa, Officer Weeks testified before me, with respect to the suggestion that he consider reasonable alternatives to facilitate an accused finding some opportunity to urinate, that he would consider this in the future. This promise appears particularly disingenuous given his similar commitment to be more prudent in addressing this issue in the future before Justice Grossman in 2018.

[78] Just as occurred in R. v. Samayoa, Officer Weeks sought to assign to the booking sergeant the responsibility of deciding when and if clothes should be offered to an accused. But in this case, he did not even draw to the booking sergeant’s attention that Mr. Reid had urinated in his clothing in the rear of the scout car. Officer Weeks sought in his evidence to assign responsibility to the booking sergeant once Mr. Reid was in the booking hall. However, there was no explanation given for failing to address Mr. Reid’s situation by informing the booking sergeant that Mr. Reid had urinated in his clothing, to ensure the booking sergeant had an opportunity to address it. For no good reason, Officer Weeks remained silent on the issue.

[79] It is similarly concerning that not one of the other officers who interacted with Mr. Reid, including the transport officers, or the breath technician, took the initiative to speak to the booking sergeant about Mr. Reid’s need for dry clothing, or took any steps to obtain it for him.

[80] There is now a substantial line of authority in this court informing the police of their need to ensure that they not humiliate an accused by denying reasonable access to facilities to urinate when an accused requests it, and by providing dry clothing to an accused who urinates into their own clothing while in police custody.

[81] Accordingly, I conclude that Officer Weeks’ conduct, and the conduct of the other officers in this case, reflects a systemic and ongoing failure to appropriately attend to these issues to avoid the personal humiliation and the unnecessary affront to the dignity of accused persons by delaying unreasonably, or denying, access to a washroom to urinate, and failing to provide dry clothing in a timely way for accused persons who have been denied access to washroom facilities and, as a result, have urinated in their own clothing.

[82] On the facts of this case, I find that, as a result of the totality of the police conduct in ignoring Mr. Reid’s request to urinate, and failing to provide dry clothing upon his arrival at 23 Division, the police breached Mr. Reid’s s. 7 Charter right to security of the person. The impact of this breach upon him was reflected in his statement that, as a result of the police ignoring his request to urinate, and being presented in the booking hall in his urinated clothing, he felt he was treated like an animal, as sub-human, and that he didn’t care anymore because the police had shown they did not care about him.

[83] In the circumstances of this case, I adopt the comments of Justice Grossman at paragraph 55 of R. v. Samayoa and find a breach of Mr. Reid’s s.7 Charter right to security of the person. Justice Grossman stated in R. v. Samayoa:

“I am satisfied the factual circumstances attract the same considerations set out in R. v. Sathymoorthy (supra) and R. v. Stoney (supra). I find the totality of events amounted to a failure of the police authorities to meet their obligation to ensure fair, humane and dignified treatment of a person held in their custody. As Duncan J. stated at paragraph 16 “it was offensive to societal notions of fairness and decency.””

A breach of s.7 of the Charter was found, and a stay was granted in that case

The Remedy

[84] The Crown submits that, if a breach of s.7 of the Charter is found a stay of proceedings is not justified as it is not one of the rare “clearest of cases” where such a remedy is appropriate. If I find a breach of s.7, the Crown urges on the court a reduction in penalty by excluding the breath samples under s. 24(1), leaving Mr. Reid potentially liable for only a conviction for impaired driving, and the minimum sentence, rather than the $2,000 fine for the 80 and over offence which is required by the high breathalyzer readings in this case.

[85] In R. v. Babos, 2014 SCC 16, the Supreme Court of Canada has established the test for a stay of proceedings for abuse of process applicable where state conduct risks undermining the integrity of the judicial process. The majority stated at paras 30-32:

[30] A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

[31] Nonetheless, this 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 51 (SCC), [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). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

[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).

[86] The majority in R. v. Babos, supra, described at para. 35 the circumstances in which the first stage of the test is met in cases falling into the residual category of abuse of process:

“By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.”

[87] As the Supreme Court noted in Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, at para. 91:

“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”.

[88] In commenting on the Court’s description of the test for a stay in Canada v. Tobiass, supra, Moldaver, J. stated for the majority in R. v. Babos, supra, at para. 38:

“Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.”

[89] In assessing whether any remedy short of a stay is sufficient, the focus is on whether any remedy less than a stay sufficiently dissociates the justice system from the impugned state conduct going forward.

[90] As the majority states in R. v. Babos, supra, at para. 39:

“It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.”

[91] Where there is any uncertainty after steps one and two whether a stay is warranted, the court is required to balance the interests of denouncing the misconduct and dissociating the court from the impugned conduct against society’s interest in having a final decision on the merits of the case. The majority in R. v. Babos, supra, stated at para. 41:

“However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.[5] Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.”

[92] In my opinion, the conduct of the police in this case prejudices the integrity of the justice system by denying to the accused fair, humane and dignified treatment notwithstanding judicial sanctioning in the past for similar misconduct in decisions over the past 9 years. It is offensive to societal notions of fair play and decency.

[93] In my opinion, the conduct of the police in this case reflects a systemic indifference to persons in police custody who are in need of the use of a bathroom to avoid the humiliation of urinating in their own clothing. I reach this conclusion in light of the previous cases in Toronto over the last nine years in which police indifference in this area has been sanctioned by the court, and yet the indifference continues. Of particular concern is the fact that the same arresting officer whose conduct was found in R. v. Samayoa to breach s. 7 of the Charter has, once again, failed to provide timely access to a washroom, and timely access to dry clothing, of an accused who urinates in his clothing in police custody.

[94] In the circumstances of this case, I am satisfied that it is one of the “clearest of cases” in which there is no alternative remedy than a stay capable of remedying the prejudice to the integrity of the justice system should these proceedings be permitted to continue. In light of the serious breach of societal notions of fair play and decency, and the continuation of police indifference to accused’s requests to urinate, and to the timely provision of dry clothing where needed, notwithstanding the previous decisions sanctioning this indifference, proceeding with the trial would lend judicial condonation to this continuing conduct.

[95] As directed by the Court in R. v. Babos, I have balanced the prejudice to the integrity of the justice system if the prosecution continues, with society’s interest in having this case determined on the merits. While all cases of alleged impaired driving are serious, I note that the driving at issue occurred late at night on quiet residential streets at a slow speed. There was no collision or injury. I have concluded that the impugned conduct reflects a systemic and ongoing problem in light of the fact that, notwithstanding prior decisions of this court finding a breach of s.7 of the Charter for similar police misconduct, the impugned conduct continues. Having balanced these interests, I conclude that there is no remedy other than a stay which can remedy the prejudice to the integrity of the judicial system in this case.

[96] Accordingly, I order that the criminal proceedings against Mr. Reid be stayed pursuant to s.24(1) of the Charter.

Dated: March 22, 2023

Justice David Porter