BARRIE

COURT FILE NO.: 13-232

DATE: 20140620

CORRECTED DATE: 20140623

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JENNIFER DEVEAU

Respondent

J. Armenise, for the Crown

D.R. Lent, for the Respondent

HEARD: June 16, 2014

REASONS FOR DECISION

Corrected decision: The text of the original Reasons for Decision were

corrected on June 23, 2014 and the description of the correction

is appended.

On appeal from the decision of Mr. Justice M. Harpur

dated November 20, 2013

HOWDEN J.:

[1] This is an appeal by the Crown from the acquittal on November 20, 2013 of the respondent Jennifer Deveau on one count of having care and control of a motor vehicle while her blood alcohol level exceeded 80 mg of alcohol in 100 ml of blood. The alleged offence date was November 19, 2011. Her alcohol level was measured at 2:20 and 2:45 a.m. at 135 and 127 mg per 100 mg of blood.

[2] During her trial certain motions were brought by the defence for relief under the Charter of Rights and Freedoms. It was as a result of one of these Charter voir dires that Ms. Deveau was acquitted. Absent the Charter relief, the trial judge, Mr. Justice Michael Harpur found that the Crown had proven its case. All Charter issues but for the breach of Ms. Deveau’s right to personal privacy under s. 8 were decided in the Crown’s favour.

[3] The factual matrix for the impugned decision arose out of the continuous video monitoring of the cell in which Ms. Deveau was locked at the OPP detachment in Barrie pending her breathalyser testing. She had arrived at the detachment at 1:20 a.m. On arrival, the respondent was subjected to a pat-down search by a female officer. She was placed in one of the cells. There was a toilet in the cell. There is a video camera aimed at the cell which is there to monitor prisoners. The purpose of the monitoring is to safeguard the prisoners for their own safety, the safety of the officers who must deal with them, prevention of damage to the cell area and preservation of evidence. The monitoring system is manned by civilian guards so the police can do their own work. The person controlling the video system could be male or female. No toilet paper is kept in the cells. When toilet paper is needed, it is brought to the inmate. When the tapes are completed, they are stored in a locked vault at the detachment and not provided for viewing unless the person requesting the tape has a legitimate justice-related interest. This evidence was all before Harpur J and provided in the oral testimony of Sgt. Morris.

[4] The main door to the cell area is kept shut most of the time. An officer did attend the cell to shut the door at a time when the respondent was using the cell toilet. He said he turned his back to her. He said that if anyone were watching the cell area, that person would be able to see Ms. Deveau on the toilet.

[5] There are men’s and women’s washrooms in the detachment; they just were not available for prisoners. No reason was given for this policy even though female prisoners, when strip-searched, were taken to a room where no video monitoring was going on and in privacy, a female officer or officers would search her.

[6] Regarding safety concerns for an accused or the police, Ms. Deveau was searched. She exhibited no unsteadiness at the scene and was in control of herself physically throughout. She had no criminal record, no outstanding charges and in all probability had never been in police custody or a holding cell before. She did what she was told and was responsive and compliant with police. She was placed in a cell by herself. There was no evidence whatsoever to indicate that she was a risk to herself or anyone else and no one was in her cell so there was no risk from another inmate.

[7] The respondent said that she was unaware of the camera or microphone in her cell. She had no recollection of being told that she was being video and audio recorded while in the detachment; PC Harrison’s evidence, accepted by Harpur J, was that he had told her of the camera but she did not receive that message as far as recording toilet use. Ms. Deveau said that the fact that officers could watch her using the toilet did not make her feel good and that if she had known of the recording, she would not have used the toilet.

[8] On this appeal, the crown takes no issue with any findings of fact by the trial judge, nor does the Crown take issue with his finding that the respondent’s s. 8 right to privacy was infringed by failure of the police to afford Ms. Deveau toilet privacy while she was detained that night. He found this refusal to allow privacy to this respondent to be objectively unreasonable and a breach of her right to privacy under s. 8 of the Charter of Rights and Freedoms. It is s. 8 that, as Harpur J. pointed out, even in a custodial situation, touches upon human dignity, integrity and autonomy. R. v. Plant (1993), 1993 70 (SCC), 84 CCC (3d) 203 (SCC). In a custodial situation, of course a detainee must expect a significant loss of privacy; he or she will be the object of observation, measurement and the like. However the detainee is entitled even so to expect that privacy will not be intruded upon except to the extent necessary for institutional and personal security. R. v. Pickton, 2006 BCSC 383, [2006] BCJ No. 3663 (BCSC).

[9] Harpur J. found no evidence that was put before him to explain why, in a given case involving a cooperative, apparently rational and risk-free detainee in a quiet detachment that detainee could not be afforded a few moments of privacy to use the toilet in the cell. As Boswell J. pointed out in R. v. Mok, 2014 ONSC 64, [2014] O.J. No. 44 (SCJ), a privacy screen protecting the individual’s privacy while using the toilet would preserve the person’s dignity and integrity, though I do not agree with Boswell J’s reduction of it to protecting only the lower part of the person’s body. Or, as with a strip-search done in a non-monitored room, escorting the detainee to one of the detachment washrooms on a quiet night like the one in question would also be a solution. Or directing the camera away from the toilet area. But no, as Harpur J. also stated, “Rather, the evidence of Sgt. Morris was simply that prisoners use cell toilets, period.” And apparently without any privacy screen and cessation of audio recording.

[10] The Crown’s position is that:

(i) The trial judge’s finding that the breath sample readings should be excluded is a question of mixed fact and law; a reviewing court is entitled to overturn the conclusion of a trial judge on the issue of the S. 24(2) remedy where there has been an error in principle or an unreasonable finding. R. v. Buhay 2003 SCC 30, [2003] SCJ No. 30 (SCC), paras. 44-5;

(ii) The trial judge erred in misapplying the first factor in the R. v. Grant analysis to evidence that had no rational connection to the evidence he excluded, and in doing so, he misconstrued the test of whether the admission of evidence would bring the administration of justice into disrepute. The first factor is the seriousness of the Charter-infringing state conduct.

[11] In R. v. Grant, 2009 SCC 32, [2009] SCJ No. 32, the Supreme Court of Canada re-framed the analysis necessary in a s. 24(2) Charter case. Unlike R. v. Mok, 2014 ONSC 64, [2014] O.J. No.44 (SCJ), a similar but far from identical case on the issue of remedy which was determined under s. 24(1), Harpur J. rejected the application of s. 24(1) to this case. A stay of proceedings was reserved for the clearest of cases and he did not see this case falling within that limited category. The analysis under s. 24(2) within the Grant principles must take in the following:

(i) the seriousness of the Charter-infringing conduct,

(ii) the impact of the breach on the Charter-protected interests of the person charged, and

(iii) society’s interest in the adjudication of the case on its merits.

[12] Section 24(2) reads:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[13] As the counsel for the Crown did before me, Harpur J. started the analysis with R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (Ont. CA). The Ontario Court of Appeal in that case stated that s. 24(2) eschews presumptive rules. There is no over-arching rule that governs how the balance is to be struck in a particular case. “Each case requires a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or of admission” (at para. 93).

[14] Watt J. in Manchulenko, stated that the essential intent of s. 24(2) is to exclude only evidence that was obtained in a manner that infringed or denied the accused’s Charter rights. This means that there must be a nexus between the infringement and the evidence proposed for admission. Without that nexus, s. 24(2) has no application. A case-specific and contextual analysis is required.

[15] The appellant here suggests that the trial judge found only a connection in time without articulating how that constituted a connection. Both in submissions before me and in the factum, the Crown counsel states that a temporal connection involves more than counting up the time between two events and a nexus must involve some element of causality (App’s Factum, para. 28).

[16] It is here that I find the appellant’s argument fails. The framework of principles for the nexus required by s. 24(2) specifically states that no element of causality is necessary. The actual explanation following the proposition that nexus is more than counting up time is not that an element of causality is required. What Watt J. actually wrote, following his “more than counting up the time” was: “What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha, at para 49” (Manchulenko, at para. 73).

[17] In R. v. Plaha, the case cited approvingly by Watt J.A. in Manchulenko, the subject of the nexus necessary to be shown on a balance of probabilities is explained in terms of the principles so far developed. They manifestly do not state what Crown counsel submits to me is necessary to the nexus principle.

[18] In R. v. Plaha, the Ontario Court of Appeal stated the following as the principles it followed in its analysis, the same principles that Watt J.A. expounded upon in Manchulenko:

45 The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart (1996), 1996 214 (SCC), 107 C.C.C. (3d) 481 at 492-97 (S.C.C.). [Emphasis added.]

46 As I read the trial judge's reasons, he held that as statement #4 was not tainted or induced by the earlier statements or a continuation of those statements, it could not be said to be obtained in a manner that infringed the appellant's right to counsel. I cannot agree with this interpretation. Whether one statement is tainted by another is essentially a causation inquiry: R. v. Caputo (1997), 1997 1636 (ON CA), 114 C.C.C. (3d) 1 at 13 (Ont. C.A.). The determination of whether statement #4 was obtained in a manner that infringed the appellant's right to counsel required a consideration of the temporal, contextual and causal connections between statement #4 and the earlier statements taken in violation of the appellant's s. 10(b) rights. The entire chain of events from the arrest of the appellant to the end of his interrogation, some 15 hours later, must be considered in deciding whether statement #4 was obtained in a manner that infringed the appellant's right to counsel: R. v. Ricketts (2000), 2000 4859 (ON CA), 144 C.C.C. (3d) 152 at 157 (Ont. C.A.); R. v. Caputo, supra; R. v. Robinson (2000), 2000 BCCA 75, 142 C.C.C. (3d) 521 at 534 (B.C.C.A.).

47 The appellant's consultation with counsel was part of that chain of events. A consultation with counsel can sometimes have the effect of severing a subsequent statement from an earlier breach of the right to counsel. It does not, however, automatically immunize the subsequent statements from that earlier Charter breach. The effect of that consultation on the question of whether the subsequent statement was obtained in a manner that infringed the accused's right to counsel must be a case-specific inquiry: R. v. T.(E.), supra, at p. 305; R. v. Caputo, supra, at p. 16.

48. A temporal connection between the Charter breach and the subsequent obtaining of a statement will usually suffice to bring the statement within the ambit of s. 24(2): R. v. Caputo, supra, at pp. 13-14. In this case, statement #4 was made about six and a half hours after the last breach of the appellant's right to counsel. This was considerably longer than the time gap between the breach and the subsequent statement in cases like R. v. Caputo, supra; R. v. Ricketts, supra; and R. v. McIntosh (1999), 1999 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 81, 146 C.C.C. (3d) vi. It was, however, considerably shorter than the gap in R. v. T.(E.), supra, where the challenged statement was made the day after the breach, and after the accused had spoken with counsel twice. Sopinka J., at p. 307, referred to the "close temporal relationship" between the statement and the prior breach in holding the statement should have been excluded under s. 24(2).

49 The measurement of the temporal connection between a breach and a subsequent statement requires more than simply counting the minutes or hours between the two. Events that occur during the time interval can colour the significance of the passage of time. Here, the appellant was sitting by himself in a small interview room for almost the entire six and a half hours. He was under the total control of the authorities and his contact with the rest of the world was exclusively through the authorities and subject to their control. Virtually nothing had changed in the six and a half hours between the last breach of the appellant's right to counsel and statement #4. I do not think time passed for the appellant in the same way it would for someone who was not in custody. To a large extent, time was frozen for the appellant. In such circumstances, the mere ticking of the unheard clock cannot distance statement #4 from the earlier events.

50 The trial judge referred to the six and a half hour gap between the last breach of the appellant's right to counsel and the commencement of statement #4. He did so, however, in the context of considering whether statement #4 was "tainted" by the earlier statements. He did not consider whether there was a sufficient temporal connection, apart from any tainting, to warrant the conclusion that statement #4 was obtained in a manner that breached s. 10(b) of the Charter. I think a sufficient temporal connection did exist to warrant that conclusion.

51 There was, however, much more than a temporal connection between the earlier breaches of s. 10(b) and statement #4. ...

R. v. Plaha (2004), 2004 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. CA).

[19] I have reviewed the analysis of Harpur J. and I find that it followed the principles in Manchulenko and Plaha, albeit this case is quite different factually from the others. This case is not a statement case. The Crown is correct - there is no causal connection between the lack of privacy afforded Ms. Deveau’s toilet use and the collection of breath samples. Nor does there have to be. The temporal connection is clearly made out in the close relation in time between these events.

[20] I agree that it is not a hugely significant factor in the overall analysis under s. 24(2) but the connection in time and context is there. Ms. Deveau is in a cell probably for the first time in her life. She is denied a basic right to privacy which touches on her dignity and worth as an individual. In that hour and a half between the incarceration and the breath samples being taken, she is treated as no better than a convicted prisoner even though she has not been tried, and she is entitled to the presumption of innocence that any detainee before trial is entitled to. The deprivation of her right to privacy for her most basic human functions becomes one transaction in time, in experience, and no doubt in her consciousness with having then to provide samples of her breath to the police, another taking from her though not as invasive as being video and audio-recorded while urinating or excreting her waste substances open to view of anyone who wandered in and to those monitoring the recording equipment.

[21] Harpur J. finds there is the temporal connection I have just dealt with. He follows the three-pronged Grant analysis. He found that though in 2011 the privacy issue in the context of detainee toilet use was new to the police and therefore bad faith was not present, the state conduct was deliberate “in the sense that the detachment policy was bound to perpetrate the indignity on all detainees regardless of their circumstances. It was also institutionally ingrained” (Harpur J., at para. 70, so that a detainee’s reaction against it to an officer like Sgt. Morris would be simply ignored as of no concern. Harpur J. found that the mitigating features of the breach do not detract substantially from the seriousness of the policy’s indifference to individual circumstances, and that seriousness militates toward exclusion.

[22] The appellant accepts the trial judge’s analysis on the second and third of the grant factors. The trial judge found the impact on the individual Charter-protected interests as high and favouring exclusion and the third societal factor as favouring admission. On balance, in my view, he rightly excluded the breath samples.

[23] I should add that I am well aware that in the recent appellate decision by Boswell J. in R. v. Mok, he emphasized the importance of the drinking and driving laws and their adjudication and enforcement. He wrote, citing Cory J. in R. v. Bernshaw (1995), 1995 150 (SCC), 95 CCC (3d) 193 (SCC), “In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.”

[24] Boswell J. then described Ms. Mok’s condition as not having enough control to avoid swerving over and driving on the wrong side of the road and her alcohol intake as 3.5 times the legal limit of 80 mg. She was clearly a danger to herself and to others. He stated: “This was a serious crime. Staying these charges is a cost that is too high a price to pay...” (para. 104). Ms. Mok was charged with impaired driving. Ms. Deveau faced a charge of having a blood alcohol level over 80. Unlike Ms. Mok, her condition and behaviour was controlled and compliant. While no case of drinking and driving is not serious, this case simply does not reach the same imperative of adjudication in the societal interest.

[25] For the reasons given, I find no error in the analysis of the trial judge. The appeal is dismissed.

HOWDEN J.

Released: June 23, 2014

Correction made to the spelling of the Trial Judge’s surname from Harper to Harpur.

P. 1 Heading

P. 1 – para. 2

P. 2 – paras. 3, 7, 8 and 9

P. 3 – paras. 9 and 11

P. 4 – para. 13

P. 6 – para. 19

P. 7 – para. 21