Her Majesty the Queen v. Stephanie Mok, 2014 ONSC 64

COURT FILE NO.: 10-01178

DATE: 20140107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEPHANIE MOK

Respondent

Bradley Juriansz, for the Crown/Appellant

Lori Anne Thomas, for the Respondent

HEARD: July 4 and August 2, 2013

ruling on summary conviction appeal

boswell j.

I. OVERVIEW

[1] The respondent was arrested for impaired driving. She had a very high blood alcohol content and was detained by the police until she sobered up. She was placed in a cell at a local police station. The cell was under video surveillance. She used a toilet located in the cell on two occasions, not appreciating that she was being videotaped. When she received disclosure from the Crown she was distraught and humiliated to learn of the videotape. She applied for a ruling that her s. 8 Charter right to be free from unreasonable search and seizure had been violated. The trial judge agreed and further agreed that a stay of proceedings was the only sufficient remedy.

[2] The Crown appeals both the finding of breach and the stay imposed. While I agree with the trial judge that the respondent’s s. 8 right was violated, I find that a stay of proceedings was unwarranted in this instance and allow the appeal on that basis.

[3] A procedural issue was raised by the respondent. She submitted that she was never personally served with the Crown’s notice of appeal and that, in the result, the Court does not have the jurisdiction to hear the appeal. I will address the procedural issue first, then the substantive issues.

II. JURISDICTION

The Crown’s Method of Service

[4] The trial judge stayed the charges against the respondent on May 3, 2012. On May 18, 2012, the Crown purported to serve the respondent by faxing the notice of appeal to the respondent’s trial counsel. He was not retained to act for the respondent on the appeal. Indeed, the respondent did not obtain appeal counsel until after a funding order had been made in March 2013. The appeal was perfected on August 31, 2012. Personal service was never completed upon the respondent.

[5] The Crown counsel who originally had carriage of this appeal – Ms. Jennifer Gleitman – testified on a voir dire conducted before me on the jurisdictional issue. She testified that she has been an assistant Crown for over six years. She has been doing appeal work for three. She indicated that the practice in the Crown’s office has been, in her tenure there, to serve trial counsel with any notice of appeal. If trial counsel object, they will then serve the notice on the respondent personally. That said, she indicated that no one had ever objected in her experience, prior to this case.

[6] Ms. Gleitman testified that in this case she served trial counsel, Mr. Chan, with the notice of appeal and other materials relating to the appeal. He advised her that Ms. Mok wished to retain Ms. Thomas to argue the appeal and that he would pass the materials on to Ms. Thomas. There is no issue that Ms. Thomas received the materials, and that they came to the attention of the respondent.

[7] The respondent asserts, however, that the notice of appeal was not properly served and that, absent proper service, this Court has no jurisdiction to hear the appeal.

The Rules

[8] The starting point for an examination of the issue of service is s. 815 of the Criminal Code which provides as follows:

(1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court.

(2) The appeal court or a judge thereof may extend the time within which notice of appeal may be given.

[9] In Ontario, the applicable rules of court, for the purposes of s. 815(1) and more particularly this appeal, are the Criminal Proceedings Rules for the Superior Court of Justice, SI/2012-7 (the “Rules”), which came into effect on March 1, 2012. Rules 5.01(3) and 40.05 are directly applicable and provide as follows:

5.01(3) Where the appellant is the Attorney General…the notice of appeal shall be served personally on each person in respect of whom an appeal is brought against an acquittal, order of dismissal of or staying proceedings on an information, sentence or other final order or other determination, as the case may be.

40.05 (1) An appellant shall serve and file the notice of appeal,

(a) where the appeal is from a conviction or sentence or both, within 30 days after the day on which the sentence was imposed…

[10] The Rules expressly provide, however, for the extension of time periods otherwise prescribed. Rule 3.02 states:

3.02 (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order in accordance with rule 2.01, on such terms as are just.

(2) An application for an order extending time may be made before or after the expiration of the time prescribed.

[11] Moreover, provision is made for the validation of non-compliant service. Rule 5.08 provides:

5.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that:

(a) the document came to the notice of the person to be served…

[12] In some instances, compliance with the Rules may be altogether dispensed with. Rule 2.01 states:

2.01 A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.

[13] The Crown has never formally brought an application seeking an order validating their form of service, nor have they sought an order for substitutional service, or to extend the time for service. Crown counsel did ask the Court, at the hearing of the appeal, to make an order validating service as completed.

Positions of the Parties

[14] The respondent’s position is that service has not been completed within the requirements of the Rules. Proper service is required before this Court has jurisdiction to hear the appeal. Relying on R. v. Holmes (1982), 1982 1977 (ON CA), 2 C.C.C. (3d) 471 (C.A.) (“Holmes”), the respondent submits that this Court does not have jurisdiction to ratify the service retroactively. While it is conceded that an extension of the time for service could be granted, an extension would still require service of the notice of appeal on the respondent – something which has never been done. In the circumstances, the respondent argues that service is a nullity and the Court has no jurisdiction to hear the appeal.

[15] The Crown argues that the equities in the circumstances favour its position. The Crown has always had a bona fide intention to appeal. Notice was delivered to trial counsel within the prescribed period and came to the attention of the respondent. The respondent has not been prejudiced in any way. The Crown suggests that the Rules have been amended since Holmes was decided and points to Rule 5.08 which changes the landscape by permitting the Court to validate service. The Crown asks that service be validated and that the matter proceed to be dealt with on its merits. The interests of justice demand no less.

Discussion

[16] In my view, a careful reading of the Court of Appeal’s decision in Holmes demonstrates that the case stands for the following propositions:

(a) Where a notice of appeal is not served upon the respondent within the prescribed time, in the absence of a valid order extending the time for service, the summary conviction appeal court does not have jurisdiction to entertain the appeal (page 478);

(b) A judge extending the time for service is not empowered to validate the prior service of a notice of appeal made out of time. In other words, an extension cannot be made nunc pro tunc (page 479; see also R. v. Bouchard, 2012 ONSC 7174); and,

(c) Where service of a notice of appeal is out of time and thereafter an order is made extending the time for service, the notice of appeal must be served within the extended time (page 479-480).

[17] It is important to take note of the outcome in Holmes. The case involved an appeal to the Court of Appeal of a decision of a summary conviction appeal court judge. Despite finding that the summary conviction appeal judge technically lacked jurisdiction because of irregular service, the Court of Appeal nevertheless refused to grant the appellant leave to appeal on the jurisdictional ground. Martin J.A. made the following comments at pages 481-482:

There was no fundamental unfairness attaching to the appeal heard by Judge Mullen. Notice of appeal was served upon the respondent (appellant in these proceedings), albeit, two days out of time. The appellant was represented on the appeal before Judge Mullen by competent counsel, indeed by the same counsel who represented him throughout the course of the several proceedings, and the appeal was argued before Judge Mullen on the merits. The defects in the service of the notice of appeal were technical in nature in the sense that they in no way deprived the appellant of a fair hearing.

[18] The notice of appeal in this instance was not served personally on the respondent within the prescribed time. Indeed, it has never been personally served upon her. If I were to extend the time for service, and in accordance with the ruling in Holmes, the Crown would have to serve the respondent personally within the extended time period, before the Court would have jurisdiction to hear the appeal. But in the circumstances of this case, it is clear that the respondent already has the entire appeal record. She retained and instructed highly competent counsel and fulsome submissions have been made on her behalf. Extending the time for service and requiring the Crown to serve the respondent personally so that we might then be in a position to rehear all of the submissions already made would be an artificial and wasteful exercise. It would be the ultimate example of putting form above substance.

[19] Rule 1.04 (1) of the Rules expresses their fundamental purpose: “These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”

[20] The Criminal Code requires that a notice of appeal be served in a manner prescribed by the Rules. The Rules prescribe personal service, but they also allow for the validation of service that does not otherwise comply, provided that the Court is satisfied that service came to the attention of the appropriate party.

[21] The Rules are meant to be complied with. But it is important to be mindful, at all times, that the Rules are meant to facilitate the interests of justice, not frustrate them. As Sharpe J.A. recently held in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, albeit in the context of the Rules of Civil Procedure:

Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master…We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. (para. 19).

[22] In Ms. Mok’s case, there is no question that the Crown at all times demonstrated a bona fide intention to appeal. The Crown proceeded within the appropriate timelines and otherwise in a diligent manner. There is no dispute that the notice of appeal came to the attention of Ms. Mok in a timely way. She was able to bring an application for a funding order, retain competent counsel, prepare for the appeal thoroughly, and argue it fully on its merits.

[23] This is not a case like R. v. Holmes where service was completed out of time. This is a case where service was completed within the prescribed time limit, but in a manner not prescribed by the Rules. The Court has express jurisdiction, by Rule 5.08, to validate service where it has been completed in a manner other than that authorized. The discretion to validate service must be exercised in the interests of justice and in keeping with the overarching principle set out in Rule 1.04(1). In my view, the interests of justice in this case clearly favour the validation of service.

[24] In the result, service upon Mr. Chan, as completed on May 18, 2012 is hereby validated. I will proceed to examine the merits of the appeal, commencing with an exploration of its factual context.

III. THE FACTUAL CONTEXT

[25] Charter rights are not static. They demand different things at different times. An assessment of the limits of a right guaranteed by the Charter and whether those limits have been breached is contextually driven: see for instance R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C. J. No. 28, 174 D.L.R. (4th) 111, 135 C.C.C. (3d) 257, at para. 45 and R. v. Edwards, 1996 255 (SCC), [1996] S.C. J. No. 11, 1 S.C.R. 128, 26 O.R. (3d) 736, 132 D.L.R. (4th) 31, 104 C.C.C. (3d) 136, also at para. 45.

[26] Charter rights are not absolute. They frequently bump up against other, competing principles, or other important societal interests. In each case, it is necessary to determine what the Charter right demands in the particular context and then balance it against any other competing interests that present themselves within that context. An appropriate first step in the analysis is, therefore, to examine the context in which the alleged breach occurred.

The Roadside Stop

[27] The respondent was so intoxicated when she left Archibald’s Pub in Richmond Hill that staff tried to prevent her from driving. When that failed, they called York Region Police Service (“YRPS”). Detective Constable James Ward observed her, not far from Archibald’s, driving southbound on Yonge Street. Unfortunately, and one must observe, dangerously, she was driving in the northbound lanes. She turned eastbound onto High Tech Road, without signalling. She almost struck a median. Officer Ward activated his emergency lights, but the respondent did not pull over. Instead, she once again veered into oncoming lanes of traffic. Officer Ward pulled up beside her and forced her back into the eastbound lanes and caused her to stop her vehicle. The officer noted a constellation of signs of impairment and concluded that the respondent was, in his words, “loaded”. He arrested her and conveyed her to 2 District station in Richmond Hill.

The Breath Tests

[28] After speaking with duty counsel, the respondent provided two samples of her breath. The first sample returned a reading of 296 mg of alcohol in 100 ml of blood. The second sample was obtained just over 20 minutes later. It returned a reading of 284 mg of alcohol in 100 ml of blood. To state the obvious, these readings were 3 ½ times the limit beyond which it is illegal to operate a motor vehicle. Officer Ward’s preliminary observation was correct: the respondent was loaded.

The Detention

[29] Acting Staff Sergeant Anthony Cummins was in charge of the police station the night that the respondent was brought in. He formed the opinion that it would be unsafe to release her in her intoxicated state. Moreover he did not believe she would be able to fully comprehend the terms of her release, which was necessary before she could make an informed promise to appear. In the result, the respondent was detained in custody for roughly 9 hours after samples of her breath had been obtained.

[30] The respondent was lodged in a cell at the police station. The cell had a metal bench, a sink and a toilet. There was a video camera in the ceiling which monitored (and recorded) all activities in the cell. No part of the cell escaped its watchful eye.

The Video Surveillance

[31] When the respondent was initially paraded before the booking sergeant she was advised that there were video cameras throughout the entire police station and that everything in the station was being videotaped. He pointed at some of the cameras. He did not point out the camera in her cell when he lodged her in it, but the camera was clearly visible and appeared the same as the others that had been pointed out. The respondent testified that she was not aware that there was a video camera in the ceiling of the cell.

[32] I have not seen the video of the respondent’s activities in the cell. The trial judge described the video contents as follows, at paras. 98-99 of his decision:

At 2:39:09 a.m., Ms. Mok gets up from the metal bench and knocks on the door. She did this on two separate occasions, knocking approximately a minute each time. No one responded to her knocking. The toilet is completely out in the open on the video; it is metal and has no toilet seat. At 2:34:04 Ms. Mok removed a piece of toilet paper from the toilet paper roll, which was located on the metal bench. The sink is between the toilet and the bench. She then lowered her pants to her ankles and the video camera captured a full frontal view of Ms. Mok before she turned and sat on the toilet. The video camera had an unobstructed view of Ms. Mok sitting on the toilet.

What is particularly offensive and abhorrent in the circumstances of this case is that the toilet paper roll was not on the wall beside the toilet. It was sitting 8 feet away on the metal bench which is against the wall opposite to where the toilet is located. After sitting on the toilet for approximately 5 minutes, Ms. Mok realised that the roll of paper was on the other side of the cell. She had to stand up, with her pants at her ankles and take 2 steps in order to retrieve the paper and then return to sitting on the toilet. The video camera had an unobstructed view of Ms. Mok using the toilet paper to finish her use of the toilet. At 2:50:32 she stood up to put the toilet paper roll on the sink and then returned to reach behind and pushed the button to flush the toilet. At 2:50:38, a.m., she turned and faced the metal bench and pulled up her undergarment and then reached down again to pull up her pants. She was fully exposed to the video camera.

[33] There was a second use of the toilet as well, but for the purposes of this appeal no additional description is necessary.

The Evidence of Sergeant Cummins

[34] Sergeant Cummins gave fairly extensive evidence on the pre-trial applications. The trial judge referred to his evidence in some detail and, in my view, it had a significant impact on the outcome of the Charter applications.

[35] As the trial judge noted at para. 91 of his decision, “Sergeant Cummins testified that a person in custody does not have a right to privacy. He saw nothing wrong with videotaping detainees using the toilet, nor did it matter if the prisoner was monitored by an officer of the opposite sex.”

[36] Further, at para. 97 of his decision, the trial judge observed that Sergeant Cummins had testified that all YRPS holding cells are exactly the same as the cell occupied by the respondent in this instance. He drew two conclusions from this evidence:

(a) No detainee is afforded any privacy when they have to use a toilet while they are in police custody; and,

(b) Videotaping detainees using the toilets in the holding cells is a systemic practice within YRPS which will continue into the foreseeable future unless there are some measures taken to afford detainees privacy while they are using the toilet in the holding cell.

[37] It is significant, in my view, to note that when Sergeant Cummins was asked why video cameras could not be set up in such a fashion that they would not record the use of toilets in the cells, he said it was “corporate-departmental policy” which he had no control over.

[38] I mention this last bit of evidence by Sergeant Cummins because it is significant to recognize that the views he expressed before the trial judge are not necessarily the views of the Chief of Police. Moreover, as he conceded, he has no control over departmental policy decisions. This is an important factor in my decision, as elaborated on below.

IV. CONCLUSIONS OF THE TRIAL JUDGE

[39] Ms. Mok’s counsel argued that she had been arbitrarily detained and that her s. 7 and s. 9 Charter rights had been infringed. The trial judge found that she had not established a breach of those rights on a balance of probabilities. She does not appeal those findings. Her counsel further argued that her s. 8 right to be free from unreasonable search and seizure had been violated because she had been videotaped while using the toilet in her cell. He asserted that the only reasonable remedy was a stay of the proceedings against her. The trial judge agreed, on both counts.

[40] The trial judge held that a person in custody has a lowered expectation of privacy, but not a complete loss of expectation. An expectation of privacy remains in certain circumstances, he found, including the use of the toilet. He found that there were no justifiable safety concerns with respect to the respondent having contraband or a weapon. He accepted that there were legitimate concerns about her personal health and safety, given her level of intoxication, but did not accept that those concerns justified observing her using the toilet.

[41] Having found a breach of the respondent’s s. 8 right, he proceeded to consider the matter of the appropriate remedy. He recognized, correctly, that a judicial stay of proceedings is an exceptional remedy that is reserved for the clearest of cases. He concluded that the circumstances of this case fell into the “clearest of cases” category. The basis for his conclusion was set out in para. 115 of his decision:

I find that the prejudice suffered by Ms. Mok, which is directly attributable to the s. 8 Charter breach, is substantial…It cannot be remedied, in my view, by anything less than a stay of proceedings. What is most troubling is that the circumstances Ms. Mok found herself in at 2 District will continue to exist in the foreseeable future for every detainee held in custody by York Regional Police. Based on the evidence before me, I infer that every detainee is at risk of being subjected to the same degrading, humiliating, abhorrent and demeaning invasion of privacy that Ms. Mok was subjected to. This is a matter that needs to be remedied immediately by the York Region Police so that the s. 8 Charter rights of other detainees are not breached.

[42] It is apparent that the trial judge concluded that a strong message needed to be sent to the police that their practice of videotaping the toilet area of their detention cells was wrong and not consistent with the Charter. Undoubtedly his view was informed by the evidence given by Sergeant Cummins. He appears to have concluded that, absent a strong message, the impugned videotaping practice would continue unabated. Further, that only a stay would send a message sufficiently strong enough that immediate action was taken to remedy the problem.

V. POSITIONS OF THE PARTIES

The Position of the Appellant

[43] The Crown argues that the trial judge erred both in his finding that there was a s. 8 breach and in the imposition of a stay.

[44] In terms of s. 8, the Crown submits that s. 8 protects only reasonable expectations of privacy. That is, subjectively held expectations that are also objectively reasonable. In this instance, the Crown asserts that the respondent could not have had a subjective expectation of privacy in the circumstances, given that Sergeant Cummins told her that everything in the police station was videotaped and because there was a window in the door to her cell. Moreover, even if she did have a subjective expectation of privacy, it would not be objectively reasonable given the reduced expectation of privacy that individuals have when in custody.

[45] In terms of the remedy imposed, the Crown submits that this was not one of the “clearest of cases” in which a stay was necessary. The trial judge erred, in the submission of the Crown, in not considering the wide range of other remedies that were more appropriate in the circumstances.

The Position of the Respondent

[46] The respondent takes the position that the trial judge made no error. She asserts that she had a subjective expectation of privacy in the circumstances. Her actions in the cell support that assertion. She says that her subjective expectation is objectively reasonable in the circumstances as well. There was no justifiable reason for YRPS to videotape her using the toilet. The trial judge carefully reviewed the facts and the law and concluded, correctly in her view, that the only reasonable remedy was a stay of proceedings. He made no error in doing so and this Court is not justified in interfering with his findings and conclusions.

VI. ANALYSIS

The Breach

[47] The Crown asserts that the trial judge misdirected himself and consequently made a reversible error in finding that the respondent’s section 8 right was infringed. I disagree. While I agree with the trial judge’s conclusion regarding the Charter breach, my analysis is a little different than his. Even though the result of the appeal turns on the issue of remedy, in view of the importance of the breach issue, I think it worthwhile to set out my analysis.

Privacy

[48] Privacy has come to be recognized as the dominant organizing principle animating s. 8 of the Charter. Canadian courts have identified a spectrum of privacy interests protected by section 8. These include personal privacy, territorial privacy and informational privacy: R v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, 189 C.C.C. (3d) 129, at para. 20.

[49] Ms. Mok’s assertion is that her right to personal privacy was breached when she was videotaped using the toilet in her cell. The video surveillance and permanent record of her pulling down her pants, exposing her genitalia and using the toilet has, she argues, humiliated and degraded her.

[50] The Supreme Court has recognized that the right to be free from unreasonable search and seizure directly engages concerns for human dignity, integrity and autonomy: R. v. Plant (1993), 1993 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.) at para. 17.

[51] The power of the state to encroach upon the privacy of its citizens is a well-recognized concern. As Justice Binnie observed in R. v. Tessling, as above, at para. 13:

Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. As La Forest J. stated in R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, at pp. 427-28, "[t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

[52] The protection of personal privacy is of the highest concern. As Justice Cory clearly stated in R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 at para. 42,

It has often been clearly and forcefully expressed that state interference with a person’s bodily integrity is a breach of a person’s privacy and an affront to human dignity…a violation of the sanctity of a person’s body is much more serious than that of his office or even of his home.

Limits on the Right to Privacy

[53] Not all conceivable privacy interests - even personal privacy interests - are afforded constitutional security. The section 8 guarantee against unreasonable search and seizure protects only reasonable expectations of privacy: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at page 159.

[54] As the trial judge observed, the Supreme Court of Canada held in R. v. Wong, 1990 56 (SCC), [1990] S.C.J. No. 118, 60 C.C.C. (3d) 460 that video surveillance can, in appropriate circumstances, constitute a search within the meaning of section 8 of the Charter. The target of the surveillance must, however, have had a reasonable expectation of privacy. Former Chief Justice Lamer commented, at para. 47 of Wong,

A person has the right, under s. 8, to be free from unauthorized surreptitious electronic surveillance where that person has a reasonable expectation that the agents of the state will not be watching or recording private activity nor monitoring or recording private conversations. Whether such an expectation is reasonable will depend on the particular circumstances; a person does not necessarily enjoy this right in all circumstances.

[55] Determining whether a reasonable expectation of privacy exists is not to be done in the abstract. There is no catalogue of what is or is not permitted under s. 8. Whether a particular search offends s. 8 must be determined contextually, by looking at all of the surrounding circumstances: see R v. Edwards, as above, at para. 45 and R. v. Tessling, as above, at para. 19. In R. v. Edwards, Cory J. described the need to consider the “totality of circumstances”. He put particular emphasis on two elements: (1) the existence of a subjective expectation of privacy; and (2) the objective reasonableness of that expectation.

A Subjective Expectation

[56] Establishing a subjective expectation of privacy is not a high hurdle. Indeed, it may at times be readily presumed from all the circumstances: see R. v. Patrick, 2009 SCC 17 at para. 37 and R. v. Little, 2009 41212 (ON SC), [2009] O.J. No 3278 (S.C.J.) at para. 120. Reasonableness is not engaged at this first stage. For instance, while one might argue that it was not reasonable for Ms. Mok to have a belief that she was not being videotaped using the toilet, given Sergeant Cummins’ advice to her that everything at the station is videotaped, such arguments are the proper domain of the next stage of the analysis.

[57] Ms. Mok testified before the trial judge that she was not aware that there was a video camera in the cell she was placed in. Her actions inside the cell reflect such a lack of awareness. At one point while using the toilet she realized that the toilet paper was on the other side of the cell. Without any attempt to cover herself up, she walked across the cell, with her pants around her ankles, exposed, retrieved the toilet paper and made her way back to the toilet.

[58] These circumstances are sufficient, in my view, to establish that she had a subjective expectation of privacy.

Objective Reasonableness

[59] Sergeant Cummins gave evidence that it is necessary to monitor detainees in their cells for reasons that include safety and the preservation of evidence. These are undoubtedly legitimate concerns. At the same time, it is understandable why a young woman in detention would wish to be free of video surveillance that records her use of the toilet, which is acknowledged as a particularly private bodily function according to western civilization standards. The interests of the state and of the individual are in conflict. As Justice LaForest noted in R. v. Duarte (1990), 1990 150 (SCC), 53 C.C.C. (3d) 1 at para. 24, “it thus becomes necessary to strike a reasonable balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement.”

[60] Whether, in all the circumstances, the respondent’s subjective expectation of privacy was objectively reasonable, depends on the striking of the balance between individual and state interests. The objective reasonableness of Ms. Mok’s expectation of privacy while in a jail cell was the central issue on this appeal.

[61] Sergeant Cummins expressed the view that persons in custody should expect no privacy. This is clearly wrong. If he were right, then, taken to its reductio ad absurdum, the police could assemble en masse in the cells area to watch as a female detainee is strip searched. Such a grotesque affront to the privacy, dignity and integrity of the detainee would never be tolerated in Canadian society. Clearly, detainees retain some measure of privacy even while in police custody.

[62] Contrary to the views of Sergeant Cummins, as Cory J. held in R. v. Stillman, as above, at para. 47, “When they are carrying out their duties as highly respected and admired agents of the state [the police] must respect the dignity and bodily integrity of all who are arrested.”

[63] It is important to remember that persons detained after arrest retain the presumption of innocence. A finding that a detainee has no reasonable expectation of any privacy while in police custody would undermine the requisite balancing act by tilting the analysis entirely in the favour of the objectives of law enforcement, with no regard for the interests of detainees. At the same time, of course, it must be acknowledged that there is a significantly reduced expectation of privacy while in police custody.

[64] In 1987, the Supreme Court considered the matter of the constitutionality of the police practice of fingerprinting detainees who have been arrested and charged with an offence, but who have not been convicted: see R. v. Beare; R. v Higgins, 1988 126 (SCC), [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, 45 C.C.C. (3d) 57. The practice was ultimately determined to be constitutionally valid. LaForest J. commented on the reduced expectation of privacy that detainees have, when he said, at para. 59,

It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or a person against whom a case for issuing a summons or warrant, or confirming an appearance notice has been made out, must expect a significant loss of personal privacy. He must expect that incidental to his being taken in custody he will be subjected to observation, to physical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it.

[65] Subsequently, in R. v Stillman, as above, Cory J. held, at para. 61,

Obviously an accused person will have a lower expectation of privacy following his or her arrest and subsequent custody. That expectation of privacy will be even lower when serving a sentence after conviction. Therefore, it may well be that certain kinds of searches and seizures may validly be performed on a person in custody which could not validly be performed on persons who have not yet been arrested or convicted. Nevertheless, I am of the view that the appellant's expectation of privacy in this instance, although lower after his arrest, was not so low as to permit the seizure of the tissue. The privacy expectation should not be reduced to such an extent as to justify seizures of bodily samples without consent, particularly for those who are detained while they are still presumed to be innocent.

[66] What is clear from the jurisprudence is that detainees must, objectively, have a lowered expectation of privacy while in police custody. Nevertheless, it remains reasonable for detainees to expect at least some minimal level of privacy, notwithstanding being taken into custody, particularly when the presumption of innocence remains in place.

[67] Crown counsel argued that the respondent could not possibly have had an objectively reasonable expectation of privacy in this instance because she was told that everything in the police station was videotaped. Moreover, there was a window in her cell door.

[68] I do not accept the Crown’s assertion that being advised of the presence of video cameras in the police station is a complete answer to the respondent’s allegation of breach.

[69] First, Ms. Mok was really, really drunk. So drunk that Sergeant Cummins made the decision to hold her for nine hours, fearing that she would be unable to understand the terms of a promise to appear. It follows that her level of intoxication would also impair her ability to process information regarding the presence of video recording devices.

[70] Second, though Sergeant Cummins told Ms. Mok that everything in the police station was video recorded, he could not have meant for her to take that literally. For instance, prior to being placed in a cell, Ms. Mok was taken to a private room where she was searched by a female officer, off camera. Someone in her position might be forgiven for drawing the inference that some level of privacy was still to be afforded to those in custody for the purposes of modesty and dignity. I also expect that there is no video surveillance in the public washrooms or those washrooms dedicated for use by staff. In other words, not everything in the station was being video recorded, despite Sergeant Cummins’ overstatement to the contrary.

[71] Third, Ms. Mok was placed into a cell by herself. Though there was a window in the cell, Ms. Mok banged on it for some time prior to the first use of the toilet, with no response. In other words, it would have been apparent to her that there was no one on the other side of that window.

[72] Finally, it cannot possibly be a complete answer to an alleged s. 8 breach to say that the target of the search was notified in advance that there would be video surveillance. If notification was all that was necessary to justify a search, then the balancing of individual rights and the interests of the state would again be undermined.

[73] Notification might be a more persuasive answer were there some option open to the detainee not to enter the videotaped cell, or not to use the toilet that was subject to videotaping. Recall that s. 8 directly engages issues of personal autonomy. By way of analogy, a reasonable person would recognize that s/he is going to be subjected to a personal search if s/he attempts to enter the departure lounge at an international airport. Leaving aside all of the other factors that bear upon the reasonableness of airport searches, one would be hard-pressed to argue that s/he had a reasonable expectation that s/he would not be subjected to a search in those conditions, when the obligation to submit to a search is clearly posted at the airport and in any event well known generally. That said, the traveller is free to elect not to fly and hence, not be subjected to the search. This freedom of choice is an important factor in the balancing of individual versus state interests. In Ms. Mok’s case, even if she was aware that there was a video recording device in the ceiling of her cell, she had no option to refuse to go into the cell. Nor, reasonably, to avoid using the toilet. She was in the cell for nine hours after having consumed substantial amounts of alcohol. Sergeant Cummins’ opinion that she could “hold it” if she did not want to be seen using the toilet on video cannot be taken seriously. In my view, the forced submission to the search (the video surveillance) is an important factor to consider in the s. 8 analysis.

[74] I come now to the balancing of the individual’s interest in privacy against the state’s legitimate law enforcement interests.

[75] Sergeant Cummins testified that cells are subject to surveillance for reasons of safety and preservation of evidence. There is no doubt that these are legitimate concerns. The question is whether they are so pressing that the individual’s right to personal privacy when using the toilet must give way to them entirely. I find that they are not.

[76] Sometimes bad things happen when a person is in custody. Sometimes detainees attempt to hurt other detainees. Sometimes they attempt to hurt the police officers charged with their care. Sometimes they allege police brutality. Sometimes they attempt to hurt themselves. Sometimes they suffer from a medical emergency. The ability of the police to monitor detainees in their cells is an important one in terms of ensuring the safety of the detainee and others coming into contact with him or her. In Ms. Mok’s case specifically, she was considered a high risk, health wise, because of her level of intoxication. It was important that the police were able to keep an eye on her condition.

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

[78] Sometimes detainees attempt to dispose of evidence. For instance, a male accused of sexual assault, involving intercourse, may attempt to wash his genitals in the cell using water from the sink or toilet. Likewise, a detainee may have blood or gunshot residue on his or her body that he or she attempts to wash off before it can be swabbed. Another may have contraband hidden in a body cavity that has not been located by a prior search.

[79] Preservation of evidence is a worthy concern. Videotaping the cell area may not, however, be a very efficient method of preservation. Rather than preserve evidence, it is more effective at creating a visual record of a detainee destroying or disposing of potential evidence. It does not take the place of a proper search. There may be better ways to preserve evidence. For instance, temporarily turning off the water supply to the cells area, or to a particular cell, or keeping a detainee segregated and in the direct presence of an officer, pending receipt of any necessary warrants and the collection of evidence by a forensic identification officer.

[80] Again, the presence of a limited modesty screen blocking the camera’s view of the toilet would have little impact on the preservation of evidence. It may, of course, block the recording of a person’s attempts to dispose of evidence. But with or without the screen a person could take steps in the cells area to dispose of or destroy evidence. If the police have a serious concern about the loss of evidence, there are other steps they can, and should, take to ensure preservation.

[81] I agree with the trial judge’s conclusion that the monitoring and videotaping of detainees using the cell toilet by police officers of either gender is a “highly intrusive invasion of privacy”. On the other hand, the state’s legitimate interests in monitoring cells for safety and preservation of evidence are not so compelling that they ought not to give way to at least a modesty screen that partially blocks the camera’s view of the toilet. The detainee’s expectation of privacy in the cell area is not so significant as to warrant a finding that any surveillance is inappropriate. But it is sufficient to require that the police do not monitor and record the use of the toilet by detainees.

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

[83] Having found the s. 8 breach, I go on to consider the matter of the remedy for that breach and whether the imposition of a stay was appropriate.

The Remedy

The Standard of Review

[84] I have already indicated that, in my view, the imposition of a stay was not an appropriate remedy in this instance. Before I continue to explain why, it is worth recalling the standard of review to be applied in the circumstances.

[85] The standard of review of a trial judge’s decision to grant a remedy under s. 24(1) of the Charter is well-settled. As Binnie J. observed in a dissenting judgment in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 139,

…[T]he standard of review of the trial judge's decision to grant a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms was authoritatively stated by Gonthier J. in Elsom v. Elsom, 1989 100 (SCC), [1989] 1 S.C.R. 1367, at p. 1375, as follows: "[A]n appellate court will be justified in intervening in a trial judge's exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice"; see also R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, at para. 48.

[86] This standard has been repeated and adopted on numerous occasions including, recently, R. v. Melo, 2013 ONSC 4338 (SCJ), at para. 44 and R. v. Singh 2013 ONCA 750 (C.A.), at para. 34.

The Granting of a Stay

[87] I accept that the trial judge correctly stated the law in relation to the granting of a stay of proceedings. He referenced the decision of the Court of Appeal in R. v. Zarinchang, 2010 ONSC 394, [2010] O.J. No 154, where the Court summarized the principles arising from a number of Supreme Court decisions[^1] as follows, at para. 57,

From the above cases in the Supreme Court, the following principles emerge:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

[88] There is no doubt that this case does not fall into the first category of cases that may attract a stay. Trial fairness issues are not engaged by the conduct of the state on this occasion. The trial judge correctly noted that this case falls within the second, residual, category: state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

[89] With the greatest of respect to this experienced and thoughtful trial judge, I am of the view that while he correctly identified the legal principles applicable to the stay application in this case, he erred in their application.

[90] As Justice Lebel held in R. v. Regan, as above, at para. 53,

A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: "that ultimate remedy", as this Court in Tobiass, supra, at para. 86, called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: "the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the 'clearest of cases'.

[91] When assessing whether any case is one of the “clearest of cases” requiring a stay, the Court must keep in mind that a stay of proceedings is a prospective remedy. This Court must follow the instruction of the Supreme Court, as set out at para. 91 of Tobiass, as above,

A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O'Connor, at para. 82…The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. 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.

[92] In my view, the trial judge’s conclusion that this was one of the clearest of cases that necessitates a stay was based on a number of errors.

[93] First, the trial judge failed to consider that this was a case of first instance. In other words, York Region Police have been videotaping their cell areas for a considerable period of time without complaint. Moreover, counsel were unable to provide me with any authority directly on point. The closest they came was the decision of British Columbia Supreme Court judge J. W. Williams in R. v. Pickton, 2006 BCSC 383, 259 C.C.C. (3d) 254. That case involved the video monitoring and recording of communications in a cell between Mr. Pickton and an undercover officer. At issue was the admissibility of audio and visual recordings taken from the cell. The videotaping of the use of the toilet was not squarely in issue.

[94] All this is to say, this was a difficult balancing of state and individual interests, in a context where there is clearly a significantly reduced expectation of privacy. While I find there to have been a breach of Ms. Mok’s rights, I do not consider it egregious under the circumstances, particularly because it is a case of first instance.

[95] Second, the trial judge failed to consider that the views of Sergeant Cummins do not represent the views of the YRPS executive. Indeed, he admitted in evidence that he had no control over administrative or policy decisions.

[96] If Sergeant Cummins’ views were taken as representative of the views of the YRPS generally, then one might reasonably be concerned about the likelihood that breaches of the type found here would continue into the future, unless a very strong message was sent.

[97] The trial judge concluded, at para. 97 of his decision:

I was advised by Sergeant Cummins that all of the York Regional Police holding cells are exactly the same as the cell Ms. Mok was put into at 2 District Station. This leads to the reasonable conclusion that no detainee is afforded any privacy when they have to use a toilet while they are in police custody. It also leads to the conclusion that this is a systemic practice within York Regional Police which will continue into the foreseeable future unless there are some measures taken to afford detainees privacy while they are using the toilet in the holding cell.

[98] While I do not disagree with the trial judge’s conclusions as noted, it does not follow that a stay of the charges against Ms. Mok is necessary to achieve a change in the way the police monitor their cells. The videotaping of police holding cells, including the toilet area, has not previously been challenged. Apparently, not just by York Region detainees, but not by detainees in other police stations across the country either. I would hope, and expect, that with the Court’s guidance, the YRPS executive will make the decision to effect change in the way they monitor detainees in their cells. The “fix” is relatively minor. It can be achieved either with repositioning the video cameras, or by installing modesty screens that cover the lower part of a person’s body while using the toilet.

[99] Considering that a stay is a remedy of “last resort”, the police ought to be afforded the opportunity to effect appropriate changes.

[100] Third, I disagree that the circumstances of this case would “shock the conscience of right-thinking members of the public”. The trial judge, in my view, put undue emphasis on the fact that Ms. Mok walked across the cell area with her pants around her ankles to retrieve the toilet paper. The fact that she did so was likely a function of her level of intoxication. Had she been sober, she may have had the foresight to bring the toilet paper roll over to the toilet with her. Alternatively, she may have thought it better to pull up her pants as she walked across the room. It would be right for members of the public to be concerned about this breach of privacy, but again, in my view, it was not egregious.

[101] Fourth, the trial judge based his decision, at least in part, on an assessment of what other remedies might be available to compensate Ms. Mok for the prejudice done to her. He examined and rejected the possibility of a civil suit, on the basis that the right to sue for damages is a largely illusory remedy (para. 113). He went on to observe that the prejudice suffered by Ms. Mok was substantial and could not be remedied by anything less than a stay.

[102] But of course, the imposition of a stay is meant as a prospective remedy. It is not to be used to compensate Ms. Mok for past prejudice caused to her.

[103] Finally, the trial judge did not, in my view, give sufficient weight to the public interest in having this particular impaired driving charge resolved on its merits. As Cory J. held in R. v. Bernshaw, (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193, at pages 204-05,

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. 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.

[104] The breath samples taken from Ms. Mok while she was detained read close to 300 mg. of alcohol in 100 ml. of blood. I have already set out the observations of Officer Ward who pulled her over. Should these facts be established at trial, then Ms. Mok represented a very significant danger to herself and anyone else using the road. This was a serious crime. Staying these charges is a cost that is too high a price to pay for the s. 8 breach in this instance, where the police have not yet had an opportunity to respond to the finding of breach and make adjustments to the manner in which they monitor their cells.

Conclusion:

[105] In the result, the appeal is allowed. The stay of proceedings is set aside. The respondent shall have 7 days to surrender to YRPS officers at 2 District station in Richmond Hill, failing which a warrant shall issue for her arrest.

Boswell J.

Released: January 7, 2014