COURT FILE NO.: CRM J(P)1948/16
DATE: 2018 05 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESY THE QUEEN
Christine Sibian for the Crown
Respondent
- and -
CHEQUERA BECKFORD-JOHNSON
Cecilia Fearon-Forbes and Dina Zalkind for the Applicant
Applicant
HEARD: October 31, November 1, 2, 3 and December 21, 2017, at Brampton
REASONS FOR DECISION
Emery J.
[1] There is no dispute that a physical altercation occurred between Chequera Beckford-Johnson (the “Applicant”) and Keaish Junior just after two o’clock in the afternoon on August 4, 2015.
[2] There is also no dispute that Ms. Beckford-Johnson and Ms. Keaish Junior each made separate telephone calls to Peel Regional Police immediately thereafter to report the altercation to police.
[3] Later that day, Ms. Beckford-Johnson was charged with committing an aggravated assault on Ms. Junior, contrary to section 268(1) of the Criminal Code of Canada. It is alleged that Ms. Beckford-Johnson wounded Ms. Junior just above her eye with a pair of scissors.
[4] Ms. Beckford-Johnson’s trial for the charge was scheduled to begin before this court on January 29, 2018. She brought this application to stay the charge under section 24(1) of the Charter of Rights and Freedoms on six grounds that her rights under sections 8 and 10 of the Charter were breached. Those grounds are described in paragraphs 3 and 4 of her factum as follows:
There are two (2) violations of the applicant’s s. 8 Charter rights. The first is that Sgt. Whidden conducted a strip search of the applicant- a female- without authority and in an unreasonable manner in a public place, with two (2) male officers and other residents observing. The second relates to videotaping the Applicant in cells using the toilet eight (8) times.
There are four (4) violations of the Applicant’s s. 10 Charter rights:
Re: s. 10(a)─upon being detained by Sgt. Whidden and prior to the strip search of her person, the Applicant was not provided with the reason for her detention despite her request to be advised of such;
Re: s. 10(b)─upon being detained, Sgt. Whidden questioned the Applicant that she was a suspect in a stabbing, or that she was under arrest or investigative detention;
Re: s. 10(b)─upon being arrested by Officer Mulholland and transported to 21 Division, the police failed to implement the Applicant’s s. 10(b) rights to speak with counsel until two (2) hours and forty (40) minutes had elapsed and questioning commenced; and
Re: s. 10(b)─upon being allowed the opportunity to speak with duty counsel, the police video and audio recorded a portion of the Applicant’s conversation with duty counsel, thereby violating her right to consult with counsel in private.
[5] The application was heard on October 31, and on November 1, 2, and 3, 2017. Because of the pending trial date, I delivered judgment allowing the application in part on December 21, 2017, for reasons to follow. These are those reasons.
Officers
[6] Ms. Beckford-Johnson filed an affidavit sworn on October 30, 2017 that contained evidence of her version of interactions with various officers of the Peel Regional Police on August 4, 2015 that formed the basis for this application. Ms. Beckford-Johnson also testified at the hearing of the application.
[7] The following officers and police department personnel were called at the hearing of the application to provide the Crown’s version of the facts:
Sergeant Leslie Whidden. Sergeant Whidden was on duty at the Malton station on the afternoon of August 4, 2015 when Ms. Junior called, and then attended in person at the station to report the assault. Sergeant Whidden also responded in a marked police cruiser to a location on Darcel Avenue in Mississauga at which time she interacted with the applicant. Sergeant Whidden was the police officer who searched the person of Chequera Beckford-Johnson at the scene before she was transported to 21 Division.
Officer Lance Mulholland. Officer Mulholland was the arresting officer who arrested the Applicant at the scene. He took custody of the Applicant from Sergeant Whidden and transported her to 21 Division.
Officer Brian Woodgate, who attended the scene on Darcel Avenue at or about the time Sergeant Whidden searched the Applicant’s person.
Officer Casey Graham. Officer Graham was the officer in charge of the K-9 unit used to search the scene for the scissors that Ms. Junior attributed to the Applicant.
Staff Sergeant Kim Taylor. Staff Sergeant Taylor assisted the Applicant when she was brought into 21 Division by Officer Mulholland. Staff Sergeant Taylor facilitated the booking of the Applicant when she was charged.
Officer Lisa Moses interviewed the Applicant in an interview room after the Applicant was charged with aggravated assault.
Officer Sean Bitmanis was the officer in charge of the audio visual equipment operating to monitor and tape proceedings in the interview room both when Officer Moses was interviewing the Applicant, and also when the Applicant was waiting for Officer Moses to return to the room, and when the Applicant was provided a telephone to speak with Duty Counsel.
Officer Nigel Gonsalvas was called to testify about the policy of Peel Regional in 2014 about detainees in custody at 21 Division concerning any warning that would be given to a detainee, and the fact that the holding cells for female detainees were monitored by closed circuit TV and were videotaped.
Background Narrative
[8] Acting Sergeant Whidden of Peel Regional Police was on duty at the Malton Community Station on August 4, 2015 when she received a radio call reporting an assault. Shortly thereafter, Keaish Junior attended at the Malton Community Station suffering from a seven centimeter laceration to her left shoulder. Ms. Junior told Sergeant Whidden that she had been stabbed in the shoulder outside of her townhouse at 7280 Darcel Avenue in Mississauga by “Lisa Beckford”. Ms. Junior provided a detailed description of Ms. Beckford’s clothing including purple tights, multi-colored top and that she was wearing her hair in braids.
[9] Sergeant Whidden also received a call that afternoon through the 911 dispatcher from another female caller to report an assault. This caller described how she had been “jumped”, struck in the eye and beaten up. This caller identified herself as Chequera Beckford-Johnson. The caller gave Sergeant Whidden her current location where she was standing on Darcel Avenue, just north of Morningstar Drive in Mississauga,
[10] Sergeant Whidden drove from the Malton Community Station to Darcel Avenue in a marked police cruiser to respond to the second call. Sergeant Whidden arrived at the location described by Ms. Beckford-Johnson. She parked her cruiser in the northbound lane of Darcel Avenue just in front of “Our Lady of the Airways” church.
[11] After Sergeant Whidden arrived, Ms. Beckford-Johnson crossed the southbound lane from the eastside of Darcel Avenue where she had been waiting under a grove of trees for the police to arrive. Sergeant Whidden climbed out of the cruiser to speak with Ms. Beckford-Johnson, who informed Sergeant Whidden that she had been poked in the eye by another female with her fingernail. Around this time, Officer Woodgate and Officer Mulholland arrived at the scene in separate cruisers.
[12] Once Sergeant Whidden identified Ms. Beckford-Johnson as the person Ms. Junior had reported as her assailant, Sergeant Whidden conducted a search of the applicant to determine if a pair of scissors was concealed anywhere in her clothing or on her person. Sergeant Whidden refers to this search as a “pat down” search.
[13] Sergeant Whidden gave evidence that this search was conducted for officer safety purposes before Officer Mulholland arrested Ms. Beckford-Johnson and took her into custody to transport to 21 Division for booking. This was the search that the applicant describes as a “strip search”. This search is the basis for Ms. Beckford-Johnson’s application for a remedy with respect to the alleged unreasonable search she experienced, in breach of her rights under s. 8 of the Charter.
[14] After Officer Mulholland had driven the applicant away in his cruiser, Sergeant Whidden arranged for the K-9 Unit to search the vicinity for the scissors Ms. Junior alleged the applicant had wielded as a weapon. Those scissors were never found by the K-9 Unit that day.
[15] The applicant was seated in Officer Mulholland’s cruiser and driven to 21 Division. On two occasions, Officer Mulholland read the applicant her rights to counsel during this trip. He gave the applicant her rights when she was under “investigative detention” before driving her to 21 Division. He again read Ms. Beckford-Johnson after he received a radio call advising him that Ms. Junior had lost blood as a result of the alleged assault and it became apparent that the applicant would be charged with aggravated assault.
[16] The fact that Sergeant Whidden never cautioned the applicant before searching her, and the manner and timing of the cautions given by Officer Mulholland forms the basis of the applicants’ allegations that her rights under section 10(a) and (b) of the Charter were breached.
[17] Upon arriving at 21 Division, Officer Mulholland transferred custody of Ms. Beckford-Johnson to Officer Bitmanis and Officer Moses.
[18] At 5:29 pm, Officer Moses began questioning the applicant in an interview room. This questioning was recorded by video. At 5:54 pm, Officer Moses provided the applicant with a telephone and the privacy of the interview room to consult with duty counsel over the telephone. After the applicant had spoken to duty counsel, Officer Moses continued questioning the applicant, who then provided a video statement.
[19] After questioning, the applicant was taken to holding cells for female detainees. While in her cell, the applicant used the toilet in the corner of the cell on eight occasions. The holding cell is monitored at all times by a closed circuit television camera, including that area of the cell where the toilet is located. The camera is equipped with a masking device that blurs the area of the cell where a person would otherwise be observed while using the toilet. The masking device provides an opaque or pixelized image to obscure the front part of a person’s body when using the toilet.
[20] The applicant alleges that she was never warned that a closed circuit camera would be monitoring or videotaping her if and when she used the toilet in the cell. This is the basis for the applicants allegation that she was subjected to an unreasonable search and that her privacy was invaded under section 8 of the Charter.
[21] The applicant was ultimately released later that evening on a promise to appear and Undertaking.
Analysis
[22] Each instance of state misconduct alleged against one or more officers of Peel Regional Police that the applicant claims as a breach of her rights under the Charter were argued as compartments of misconduct amounting to a breach under a particular section of the Charter. The evidence relevant to those compartments and the corresponding breach alleged by Ms. Beckford-Johnson of her Charter rights are as follows:
- The search of the Applicant’s person conducted by Sergeant Whidden was an unreasonable search, contrary to section 8.
[23] It must be remembered that Sergeant Whidden was responding to a call for assistance made by the applicant herself. Once Sergeant Whidden connected Ms. Beckford-Johnson as the other party involved in the same incident with the complaint made by Ms. Junior, Sergeant Whidden conducted a search of Ms. Beckford-Johnson’s person to locate any scissors for officer safety purposes.
Nature of the Search
[24] Sergeant Whidden’s evidence is consistent with the evidence of Officer Mulholland that the search took no more than 30-40 seconds before Officer Mulholland took custody of Ms. Beckford-Johnson. Sergeant Whidden intended to conduct a “pat down” search which consisted of lifting the brassiere worn by Ms. Beckford-Johnson away from her torso to allow for any scissors that were concealed to drop to the ground.
[25] Unfortunately, the search performed by Sergeant Whidden crossed the line between a “frisk search” and a “strip search” within the meaning of that term as it is defined in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. I base this finding on the evidence of Ms. Beckford-Johnson that Sergeant Whidden lifted her blouse to expose her middrift, and that her brassiere became unhooked in the process. The unhooking of the brassiere was confirmed by Sergeant Kim Taylor’s evidence and the video footage recorded later at Division 21 that Ms. Beckford-Johnson’s brassiere was unhooked at the time of her arrival.
[26] In R. v. Golden, the Supreme Court of Canada defined the meaning of the term “strip search” in paragraph 47 as follows:
The appellant submits that the term “strip search” is properly defined as follows: the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments. This definition in essence reflects the definition of a strip search that has been adopted in various statutory materials and policy manuals in Canada and other jurisdictions (see for example: Toronto Police Service, Policy & Procedure Manual: Search of Persons, Arrest & Release (1999), at p. 3; Crimes Act 1914 (Austl.), Part 1AA, c. 3C, s. 1 “strip search”; Cal. Penal Code § 4030 (West 2000); Colo. Rev. Stat. Ann. § 16-3-405 (West 1998); Wash. Rev. Code Ann. § 10.79.070(1) (West 1990)). In our view, this definition accurately captures the meaning of the term “strip search” and we adopt it for the purpose of these reasons. This definition distinguishes strip searches from less intrusive “frisk” or “pat-down” searches, which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of the detainee’s genital or anal regions. While the mouth is a body cavity, it is not encompassed by the term “body cavity search”. Searches of the mouth do not involve the same privacy concerns, although they may raise other health concerns for both the detainee and for those conducting the search.
[27] According to the submissions of the applicant, a “strip search” occurs when it results in the removal or rearrangement of some or all of the clothing of a person to permit a visual inspection of a person’s private areas, namely, genitals, buttocks or breasts (in the case of a female) or undergarments. Any search that strays into exposure of that nature will be considered a “strip search”, an act that is distinct in nature from a less intrusive “frisk” or “pat down” search. Once the applicant established that she was subject to a strip search, the onus shifted to the Crown to show that the search was reasonable and did not offend or breach the applicant’s rights under section 8 of the Charter.
[28] Sergeant Whidden’s search of Ms. Bedford-Johnson involved an inadvertent unhooking of her brassiere in the back, and the exposure of the top of her breasts and the midriff of her stomach in the present of Officer Mulholland and Officer Brian Woodgate. No scissors or other instrument that could be construed as a weapon was found. This search was conducted in a manner that was more intrusive than a search of a person for officer safety reasons would require: R. v. Andrade, 2016 ONCA 13, [2016] O.J. No. 68.
[29] It is beyond dispute that Sergeant Whidden did not give Ms. Beckford-Johnson a caution, nor did she advise her of her right to counsel even though there is some evidence that she was under investigative detention. On the authority of R. v. Golden, and in particular paragraphs 94-96 and at paragraphs 101 and 102, the search Sergeant Whidden of Ms. Beckford-Johnson, no matter if inadvertent, was a strip search that was conducted in the field without giving Ms. Beckford-Johnson first a caution or her right to counsel. On the evidence, a search of this nature without a caution constituted a breach of Ms. Beckford-Johnson’s section 8 rights against unreasonable search and seizure.
Admissibility of the Applicant’s Out of Court Statement
[30] An issue arose in the course of the trial about the admissibility of a statement made by Ms. Beckford-Johnson out of court to Officer Mulholland. Specifically, the court was asked to rule on whether counsel for the Crown could ask Officer Mulholland for his evidence on an unsolicited statement he reported hearing Ms. Beckford-Johnson make in the hallway during a recess. The statement made by Ms. Beckford-Johnson allegedly occurred at the time Officer Mulholland was first on the stand, and giving his evidence in chief.
[31] I do not know at what stage of the day this alleged statement was made to Constable Mulholland. I do not know at what point in his evidence the recess was called during which the statement was apparently made. I do not know what other circumstances may have surrounded the making of the statement. However, I am advised by counsel for the Crown that the statement is relevant to the issue of what kind of search was conducted on Ms. Beckford-Johnson on the day in question.
[32] Submissions were made by counsel for the Crown that the statement Ms. Beckford-Johnson made to Officer Mulholland outside of the courtroom should be admissible because it was an admission made by her against interest, and not hearsay. The applicant argued that the statement could be construed as a prior consistent statement, and would certainly be unfair to Ms. Beckford-Johnson unless there was a legal basis to permit the Crown to ask Officer Mulholland about it. The court therefore engaged in a voir dire to determine whether the Crown should be permitted to ask Officer Mulholland about what had been said to him.
[33] The evidentiary record before the court already contained the affidavit of Ms. Beckford-Johnson sworn on October 30, 2017 that set out her evidence on the manner of the search. The court had already heard the evidence of Sergeant Whidden by the time Officer Mulholland was called to give evidence.
[34] The precise nature of the question before the court is whether counsel for the Crown can ask Officer Mulholland, when it comes time to re-examine him, about the statement he heard Ms. Beckford-Johnson make, that she was nodding when he gave his evidence in chief because she agreed with everything he was saying.
[35] In my view, any statement that is to be given by a witness must be relevant to the question before the court. To be relevant, the statement must also relate to the credibility of the witnesses having different recollections on the same fact or occurrence. In this case, that evidence must relate to the nature of the search of the applicant’s person by Sergeant Whidden on August 4, 2015.
[36] I find there is a credibility issue with respect to the description of that search. The evidence Officer Mulholland might give on the point relates to the evidence Ms. Beckford-Johnson gave in her affidavit, and the evidence Sergeant Whidden had given at the hearing. Although it may be relevant, the question then becomes, is it hearsay?
[37] For a legal basis to answer the hearsay question, I rely on the decision of Justice Fairburn, as she then was, in R v. D.D., 2015 ONSC 3667, [2015] O.J. 3020. In particular, I rely upon Justice Fairburn’s discussion of post-offence conduct in paragraphs 15-21, and how it relates to the hearsay rule, and exceptions to the hearsay rule. In particular, Justice Fairburn states at paragraph 19 that:
- As it relates to admissions by a party litigant, whether made before or after a crime, it has been a long standing rule that they can be tendered into evidence without the need to meet the criteria of necessity and reliability under the principled approach to hearsay.
[38] In support of this principle, Justice Fairburn cites R. v. Foreman, and R. v. Asmar as authorities.
[39] Justice Sopinka in R. v. Evans, describes why admissions are considered on a different basis than other exceptions to the hearsay rule. Justice Sopinka, speaking for the Supreme Court of Canada, questioned whether such statements are evidence that should be considered hearsay at all.
[40] As I stated to the parties at the time, this is a debate for another day, and for another case.
[41] In the result, I gave a ruling that counsel for the Crown shall be permitted to ask Officer Mulholland about the statement he actually heard, if indeed he heard Ms. Beckford-Johnson make it on the occasion at issue. These questions would include asking Officer Mulholland about the circumstances in which the statement was made, the time it was made, and the place in his evidence that had been reached by the time he heard Ms. Beckford-Johnson make the statement alleged.
[42] I made it clear that the evidence Officer Mulholland could give in this respect would only go to the admissibility of the statement insofar as proving the fact that a statement was made, if any. The fact that the statement was made would not go to the truth of its contents. It would not be considered by this court to be oath helping or that it somehow bolsters Officer Mulholland’s own credibility. However, it would provide the Crown with the ability to cross-examine Ms. Beckford-Johnson if she was called to give evidence on this application, as well as on the contents of her affidavit.
[43] I therefore ruled that if Officer Mulholland testifies about the statement upon re-examination, counsel for Ms. Beckford-Johnson would then have an opportunity to further cross-examine Officer Mulholland, restricted to the subject matter of the statement and the circumstances in which it was uttered.
[44] Of course, it would then be open for Ms. Beckford-Johnson to give evidence about whether the statement was made and if it was made, the circumstances in which it was made if she was called as a witness.
- Sergeant Whidden failed to caution the Applicant prior to the search of her person, contrary to section 10(a).
[45] Sergeant Whidden’s failure to provide a caution or to advise Ms. Beckford-Johnson of her right to counsel was an element in finding that the strip search of her person was unreasonable.
[46] The finding above has already subsumed that failure as an implicit breach, having regard to the rapid sequence of events when Sergeant Whidden was searching Ms. Beckford-Johnson for a weapon before transferring custody of her to Officer Mulholland. I do not consider Sergeant Whidden’s failure to provide a caution or to advise Ms. Beckford-Johnson of her right to counsel as a separate breach of her rights under section 10(a) of the Charter. I make this finding in view of the fact that Officer Mulholland took immediate custody of her and advised her of her right to counsel on two occasions once she was in the police cruiser.
- Sergeant Whidden failed to provide the Applicant with a caution once she was under “investigative detention” to advise her she was a suspect and was entitled to counsel, contrary to section 10(b).
[47] I make the same findings I made when Sergeant Whidden failed to provide Ms. Beckford-Johnson with a caution, or to advise her of the right to counsel prior to conducting the search of her person.
- Officer Mulholland failed to caution the Applicant in a timely way upon arresting her, contrary to section 10(b).
[48] Ms. Beckford-Johnson was told during the trip between Darcel Avenue and 21 Division that she was under investigative detention for aggravated assault.
[49] Officer Mulholland testified that he gave Ms. Beckford-Johnson a caution that she had the right to remain silent once he considered her to be under investigative detention.
[50] Officer Mulholland placed Ms. Beckford-Johnson under arrest once he learned over the car radio that the injury suffered by Ms. Junior had caused effusive bleeding. He immediately advised Ms. Beckford-Johnson of her right to counsel, to which she replied “I cannot afford a lawyer”.
[51] When Officer Mulholland explained to Ms. Beckford-Johnson that Legal Aid would provide a lawyer for her to speak with, and asked her if she wanted to speak to Duty Counsel, it was then that she replied “I’ll think about it”.
[52] I find on the evidence that Officer Mulholland did caution Ms. Beckford-Johnson with the right to remain silent, and did advise her of her right to counsel upon placing her under arrest. Ms. Beckford-Johnson was equivocal about the evidence she gave during this exchange, whereas Officer Mulholland was clear and forthright in his evidence. I therefore prefer the evidence given by Officer Mulholland.
[53] I also accept Officer Mulholland’s evidence that Ms. Beckford-Johnson did not waive her right to speak to a lawyer.
[54] Officer Mulholland arrived at 21 Division with Ms. Beckford-Johnson at approximately 3:36 that afternoon, at which time she was taken from his custody and booked.
[55] I find that Ms. Beckford-Johnson’s rights under section 10(a) and (b) of the Charter were not breached while she was transported from Darcel Avenue to 21 Division in Officer Mulholland’s cruiser.
- Officer Bitmanis and Peel Regional Police failed to provide the Applicant with a right to counsel in privacy when part of her telephone conversation with duty counsel was recorded, contrary to section 10(b).
[56] The Crown does not contest the fact that approximately 35 seconds of a telephone conversation Ms. Beckford-Johnson was having with duty counsel in the interview room was wrongfully monitored and recorded.
[57] The police officers having responsibility for the recording equipment in the interview room have already expressed regret about this intrusion into Ms. Beckford-Johnson’s privacy, and her right to counsel. It would appear from the evidence that this surreptitious eavesdropping event was inadvertent, and occurred either because of human error, or the result of some mal-function of the equipment itself.
[58] Regardless of the reason for this improper recording, Ms. Beckford-Johnson suffered a breach of her right to speak to counsel in private. Her rights to counsel under section 10(b) of the Charter were breached as a result.
- Officer Gonsalvas and Peel Regional Police failed to warn the Applicant, and subjected her to an unreasonable search, when she was monitored and videotaped while using the toilet in her holding cell, contrary to section 8.
[59] Officer Gonsalvas testified that the policy directive of Peel Regional Police for “Prisoner Care and Control” was introduced in September 2014. The stated mandate for the policy directive is to provide dignity to persons using the toilet in cells. The directive was designed to address the prior issue that cameras monitoring the cells had no filter to protect the privacy of persons by obscuring their genital areas while using the toilet in the cells.
[60] The cameras that were monitoring the cells on August 4, 2015 and that videotaped activities in the cells utilized an opaque square that blocked out parts of a person’s body when using the toilet. Cameras are necessary to monitor persons in cells, including those times when the toilet is being used, to ensure prisoner safety. This is necessary from both a self-harm point of view, and to prevent harm between prisoners
[61] This practice is known as cell masking, and was in place on August 4, 2015.
[62] Officer Gonsalvas also testified that there is signage on the walls that “You are on video in the cells and in the booking area”.
[63] Ms. Beckford-Johnson was videotaped between approximately 7:04 pm to 1:26 am the following morning. Over those 6 ½ hours, she used the toilet eight times. This activity was not only monitored, but recorded on video.
[64] Ms. Beckford-Johnson took the warming blanket that Officer Moses had given to her in the interview room with her into the holding cell. She left the warming blanket on the bed in the cell when she was using the toilet.
[65] On the recording, the vicinity around the toilet area is darkened to a certain extent by what appears to be a thin blue film. It was the position of the applicant that the camera masking does not render this area opaque because the metal toilet can be seen through it.
[66] The applicant concedes that her genital area cannot be seen on the video. However, she argues that her actions when using the toilet were visible, including the act of lowing her pants and her underwear to use the toilet. She is also seen reaching for and taking tissue paper to wipe herself in the course of using the toilet. She states that her naked legs and underwear were visible at times.
[67] The applicant also submits that she did not realize that she was being monitored while using the toilet in the holding cell, or that her actions were being recorded at the time.
[68] The leading case in Ontario on videotaping persons in holding cells, and particularly when using the toilet in a holding cell is R. v. Mok, 2012 ONCJ 291. At trial before the Ontario Court of Justice, the accused in Mok argued that her section 8 right against reasonable search and seizure had been violated as a result of a video recording of her use of the toilet while lodged in a holding cell.
[69] The trial judge stayed proceedings against Ms. Mok. The court held that, while individuals in police custody have a reduced expectation of privacy, they did not lose it completely. The trial judge held that “the practice of monitoring and videotaping detainees using the toilet, without some measure of privacy, is both demeaning and contrary to human decency.” The trial judge therefore found that the monitoring and videotaping of the accused by closed circuit camera’s in that instance constituted a violation of her rights under section 8 of the Charter, and stayed the charges against her.
[70] The Crown’s appeal of the trial decision in R. v. Mok was allowed in part. Justice Boswell held that a stay was not the appropriate remedy in the circumstances of that case. He held that detainees retained a reasonable expectation of privacy while they are in police custody, and he affirmed that the videotaping of Ms. Mok using the toilet in her cell violated her section 8 rights.
[71] The Court of Appeal denied leave to appeal, largely because the court was advised that, since the trial decision, York Regional Police had changed its practices “to ensure that prisoner’s privacy while using the toilet is now protected from both viewing and videotaping”: R. v. Mok 2015 ONCA 608.
[72] The evidence of the policy directive implemented in September 2014 by Peel Regional Police is consistent with those updated facilities introduced by York Regional Police in R. v. Mok. In certain cases, courts have generally held that videotaping individuals using toilets may amount to breach of section 8 rights. In other cases, the courts have refused to impose stays for that violation alone.
[73] I would recommend that better signage in plain, visible language be placed not only in the booking room but also in the cell area visible to all cells. This signage should tell the occupants that the entire cell is being monitored by a closed circuit television camera and that all movement is being videotaped, including those times when people use the toilets. I further recommend that people be given a modesty paper gown to use when going to the toilet, much like those protections discussed in R. v. McLaren, [2015] O.J. 6412.
Appropriate Remedy
[74] The unreasonable search of Ms. Beckford-Johnson conducted by Sergeant Whidden violated her section 8 rights under the Charter. The search was upsetting to her, and clearly objectionable to the court.
[75] The denial of Ms. Beckford-Johnson’s right to confer with counsel privately when she was left in the interview room by Constable Moses was unfortunate. The unlawful monitoring of Ms. Beckford-Johnson’s side of that call and its recording was a clear breach of her rights under section 10(b) of the Charter. The police have already expressed remorse for this occurrence.
[76] The applicant submits that the effect of either breach or the combined effect of those breaches warrant a stay of the charge of aggravated assault against her.
[77] I made my ruling on December 21, 2017 after considering whether a stay is warranted, having regard to the three part test restated by Justice Moldaver in R. v. Babos, 2014 SCC 16:
[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).
[78] I concluded that each breach of Ms. Beckford-Johnson’s rights, standing alone or considered together, are deserving of a remedy. However, this is not one of the clearest of cases discussed by Justice Moldaver in Babos, and by the court in R. v. Reagan, 2002 SCC 12.
[79] The facts in this case are similar to those in R. v. Griffen, 2015 ONSC 927. In Griffen, the trial judge found that the rights of the accused under section 8 of the Charter were violated, but did not grant a stay as a remedy. Although the appeal of that judgment was dismissed, neither party challenged the trial judge’s decision on appeal as it related to the breach of section 8 rights.
Conclusion
[80] For those reasons, the application was allowed in part.
[81] Therefore, I granted the following remedies under section 24(2):
For the violation of the Applicant’s rights under section 8 of the Charter relating to the search of her person in the field by Sergeant Whidden, all utterances made by Ms. Beckford-Johnson in the presence of Sergeant Whidden are excluded.
For the violation of Ms. Beckford-Johnson’s rights under section 10(b) of the Charter for the wrongful recording of her side of her conversation with duty counsel, those parts of her conversation with counsel that were overheard, recorded or videotaped during that telephone call and any transcript of those parts are also excluded.
[82] The applicant’s request for a stay of the charge of aggravated assault on Keaish Junior as a remedy for any violation or violations of her Charter rights was dismissed.
[83] The application with respect to the other four alleged breaches of the applicant’s rights under section 8 and 10 of the Charter was also dismissed.
[84] Ms. Beckford-Johnson was subsequently remanded out of custody to trial readiness court at 10:00 am on January 19, 2018.
EMERY J.
Released: May 8, 2018
COURT FILE NO.: CRM J(P)1948/16
DATE: 2018 05 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
CHEQUERA BECKFORD-JOHNSON
REASONS FOR DECISION
Emery J.
Released: May 8, 2018
COURT FILE NO.: CRM J(P)1948/16
DATE: 2017 06 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESY THE QUEEN
Christine Sibian for the Crown
Respondent
- and -
CHEQUERA BECKFORD-JOHNSON
Cecilia Fearon-Forbes and Dina Zalkind for the Applicant
Applicant
HEARD: October 31, November 1, 2, 3 and December 21, 2017, at Brampton
Corrigendum
Emery J.
[85] Paragraph 3 of the Reasons for Decision released on May 8, 2018 is corrected to read that it was alleged that Ms. Beckford-Johnson wounded Ms. Junior in the shoulder with a pair of scissors.
EMERY J.
Released: June 12, 2018
COURT FILE NO.: CRM J(P)1948/16
DATE: 2018 06 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
CHEQUERA BECKFORD-JOHNSON
Corrigendum
Emery J.
Released: June 12, 2018