Court File and Parties

COURT FILE NO.: Milton SCA 124/18 DATE: 2020 04 07

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

Arish Khoorshed for the Appellant, Her Majesty the Queen

- and -

CAMERON WALKER Respondent

Janani Shanmuganathan for the Respondent, Cameron Walker

HEARD: in Milton June 26, 2019

REASONS FOR JUDGMENT

[On appeal from the judgment of Justice Cooper Dated July 19, 2018]

COROZA J.

INTRODUCTION

[1] Cameron Walker was acquitted of driving his car with a blood-alcohol concentration in his blood over the legal limit. The Crown’s case depended entirely on samples of his breath that were seized by the police. He provided these samples at a police station.

[2] Mr. Walker brought a motion before trial to exclude the breath samples on the ground that the police had violated his constitutional rights under the Canadian Charter of Rights and Freedoms by video recording his use of a toilet in his holding cell at the police station.

[3] The trial judge found that the video monitoring of Mr. Walker's use of the toilet was humiliating and unreasonable, contrary to s. 8 of the Charter. He concluded that although the seizure of the breath samples was not directly connected to the video recording, it was nevertheless obtained in a manner that infringed Mr. Walker's rights. After balancing the relevant considerations, the trial judge concluded that admitting the evidence of the breath samples in these circumstances would bring the administration of justice into disrepute. As a result of the order excluding the evidence from the trial, Mr. Walker was acquitted.

[4] The Crown appeals and raises two main issues:

(1) Did the trial judge err by finding a violation of s. 8 of the Charter?

(2) If the trial judge was correct in finding a violation, did he err by excluding the breath readings under s. 24(2) of the Charter?

[5] In my view, the trial judge did not err by finding that the police violated Mr. Walker’s s. 8 Charter right. Furthermore, in light of this breach, I agree with the trial judge’s conclusion that the admission of Mr. Walker’s breath samples would bring the administration of justice into disrepute. I would therefore dismiss the Crown's appeal.

FACTUAL BACKGROUND

a) Introduction

[6] On May 18, 2017, Mr. Walker was charged with operating his car with a blood-alcohol concentration over the legal limit in the Town of Oakville. He was arrested at about 11:15 p.m. and transported to a police station at 11:29 p.m. by the arresting officer. The officer testified that he did not have any concerns about weapons, drugs or Mr. Walker being a danger to himself.

[7] Once he arrived at the station, Mr. Walker was turned over to Sgt. Todd, who was responsible for booking in people who are in the custody of the police. This booking procedure was videotaped but not audiotaped. During the procedure, the video captured the police providing Mr. Walker with a blanket and a privacy screen. A privacy screen is a cloth screen composed of gauze and mesh that is placed on the lower part of a detainees' body when they use the toilets in their cells.

[8] After the booking process was complete, Mr. Walker was lodged into a cell at the station. He was videotaped using the toilet in his cell from 11:50 p.m. to 11:52 p.m. At 11:58 p.m. Mr. Walker was escorted from his cell to another room and turned over to a breath technician to provide a sample of his breath. The first breath sample was taken at 12:06 a.m. and the second breath sample was taken at 12:26 a.m.

[9] There is no dispute that the video captured Mr. Walker having a bowel movement and wiping himself. The video also captured Mr. Walker’s buttocks.

b) Evidence of Booking Officer

[10] Sgt. Todd was the booking officer. He testified that a detainee who is brought before him is told that they are continuously being monitored including at the booking desk, in the cells and in the hallways. He testified that there are signs informing detainees that they are being video monitored.

[11] Sgt. Todd testified that he told Mr. Walker that he was being video monitored everywhere, including in the booking area and in the cell area. He testified that he had no concerns about Mr. Walker's ability to understand. He also explained that he directed Mr. Walker’s attention to a sign to the same effect that was behind the booking desk as soon as he walked in.

[12] The cells at the police station were video monitored by a camera. Sgt. Todd testified that the cameras are live monitored for safety reasons and medical reasons.

[13] Each cell has a bed and a toilet. Toilet paper was not provided. Sgt. Todd testified that every prisoner is given a privacy screen, which is a thin, paper-like mesh sheet, and he explains to each detainee that they have to cover themselves up when they have to use the toilet in the cells. He also testified that Mr. Walker was instructed on how to use the privacy screen.

[14] Sgt. Todd acknowledged that he did not have any notes recording specifically what he told Mr. Walker or whether Mr. Walker said anything to him. He was relying on his recollection of the interaction and the Prisoner Custody Record form that he fills out for every prisoner booked into the station. That form was filed as an exhibit and discloses that Mr. Walker was notified of the video monitoring, that a privacy screen was issued, and that Mr. Walker was instructed on the use of the screen.

c) Mr. Walker’s Testimony

[15] Mr. Walker testified. He acknowledged that he was told that the police station was being video recorded. However, he contended that he was not told that a specific camera would be video monitoring his cell.

[16] Mr. Walker also acknowledged that he was given a privacy screen, but he testified he was not told what it was for or how to use it. He thought it was a blanket.

[17] When he was placed in his cell, he was told that if he needed toilet paper, he could call out for it.

[18] According to Mr. Walker, as soon as he entered his cell, he had to have a bowel movement and he sat on the toilet. He did not use the privacy screen. After he was finished, he looked around for something to wipe himself but no toilet paper had been provided. He did not call the officer for toilet paper because he felt uncomfortable. Mr. Walker decided to use his hands. Regrettably, the video monitoring captured Mr. Walker wiping himself with his hands and with his buttocks exposed.

[19] Eventually Mr. Walker was removed from his cell and taken to the breath technician to provide samples of his breath. The breath samples form the basis for the charge. After providing the samples, Mr. Walker was escorted back to his cell.

[20] According to Mr. Walker, the first time he discovered that he was video recorded using the toilet in his cell was when he reviewed the recording with his counsel as part of the Crown’s disclosure.

THE TRIAL JUDGE'S RULINGS

[21] The trial judge ruled that the police had infringed Mr. Walker's reasonable expectation of privacy by video recording his bowel movement and that this violated his s. 8 Charter rights.

[22] In his reasons for judgment, he noted that the absence of any audio recording during the booking process made it difficult for him to assess what Mr. Walker was told by Sgt. Todd. Although he accepted Sgt. Todd’s evidence that he told Mr. Walker that his cell would be video monitored and how to use the privacy screen, at the same time, he held that Mr. Walker did not comprehend what he was told. Therefore, the trial judge held that Mr. Walker had received no notice at all because it was Sgt. Todd's duty to confirm that Mr. Walker was fully aware that he could be videotaped using the toilet in his cell. He specifically accepted Mr. Walker’s evidence that he only understood that the station was being video recorded.

[23] When considering the issue of remedy, the trial judge applied the three-part test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The trial judge found that there was a temporal and contextual connection between the breach and the seizure of the breath samples. He specifically accepted the argument advanced by Mr. Walker’s counsel at trial that Mr. Walker was under the complete control of the police while in their custody and that the time from when he was stopped at the roadside until he provided the samples of his breath constituted one transaction.

[24] The trial judge also made three other important findings.

[25] First, the police conduct was a very serious violation of the Charter. He held that the invasive nature of video monitoring Mr. Walker’s bowel movement could have been avoided if Sgt. Todd had made sure that Mr. Walker fully understood what he was being told about the privacy blanket and video recording in the cell.

[26] Second, the violation had a significant impact on Mr. Walker. He noted that Mr. Walker's buttocks were exposed and the fact that he was recorded having a bowel movement and wiping himself with his hand was very humiliating and had a serious impact on his Charter rights.

[27] Third, the evidence of the breath samples was reliable evidence and the procedure of obtaining breath results was minimally intrusive. This factor weighed heavily in favour of admitting the evidence.

[28] After balancing the factors, the trial judge concluded that the admission of the samples would bring the administration of justice into disrepute and he excluded the readings of the breath samples.

ANALYSIS

a) The Standard of Review

[29] Before I deal with the specific issues raised by the Crown, I will briefly summarize the standard of review that I must apply on this appeal. The threshold for interfering with the trial judge's factual findings is stringent. While I may not have reached the same conclusions on the facts as the trial judge, appellate intervention is only permitted where the trial judge has made a "palpable and overriding error". This standard applies in respect of a trial judge's findings of credibility: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10.

[30] Furthermore, a trial judge's decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination: see Grant, at paras. 86, 127; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82; R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 72; and R. v. Peterkin, 2015 ONCA 8, 319 C.C.C. (3d) 191, at para. 75.

b) The Trial Judge did not Err in Finding a s. 8 Breach

[31] The Crown contends that the police must have the ability to monitor detainees in their cells to ensure the safety of any prisoner and others who come into contact with that prisoner. In order to balance this need against the detainee's privacy interests, when the police inform the detainee of the video monitoring and provide them with a privacy screen to cover the lower half of their bodies while using the toilet, the Crown argues that the police have complied with s. 8 of the Charter.

[32] To provide some context for this submission, I will review three summary conviction appeal decisions that deal with the video recording of detainees in their cells.

(i) R. v. Mok, 2014 ONSC 64

[33] The leading case as to whether video recording in cells violates s. 8 of the Charter is Boswell J.’s decision in R. v. Mok, 2014 ONSC 64 (leave to appeal denied 2015 ONCA 608).

[34] Ms. Mok was arrested for impaired driving after registering a blood-alcohol level of more than three times the legal limit. She was detained at the police station for nine hours. Due to her state of intoxication, the police believed it would be unsafe to release her and that she would be unable to fully comprehend the terms of her release, which was necessary before she could make an informed promise to appear. She was placed in a cell, which was under video surveillance.

[35] Ms. Mok was advised that there were video cameras throughout the entire police station and that everything in the station was being videotaped. Some of the video cameras were pointed out to her but the one in her cell was not, though the camera was clearly visible.

[36] Ms. Mok used a toilet located in the cell on two occasions, not appreciating that she was being videotaped. The videotape recorded her lowering her pants, using the toilet, walking across the cell with her pants at her ankles to retrieve and return the toilet paper, turning to flush the toilet, and pulling up her undergarment and pants. The video camera captured a full-frontal view of Ms. Mok, who was fully exposed.

[37] There was evidence that a policy was in place of recording all activity in the cells and the case law suggested that no similar complaint about this policy had been raised in this police station or any other across the country.

[38] The trial judge found that the recording violated Ms. Mok’s s. 8 Charter rights and that a stay of proceedings was the only sufficient remedy. The finding of a violation was upheld on appeal but Boswell J. found that the trial judge had erred in staying the proceedings.

[39] Boswell J. found that Ms. Mok had a subjective expectation of privacy on the basis that her actions in the cell demonstrated a lack of awareness that she was being video recorded. In particular, Boswell J. noted that "[a]t 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": Mok, at para. 57.

[40] Further, her expectation of privacy was objectively reasonable. Boswell J. found that the jurisprudence is clear that while "detainees must, objectively, have a lowered expectation of privacy while in police custody […] 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.": Mok, at para. 66.

[41] The Crown in Mok argued that she could not have an objectively reasonable expectation of privacy because she was advised of the presence of video cameras. Boswell J. rejected this submission for four reasons.

[42] First, Ms. Mok was "really, really drunk" and her intoxication would have impaired her ability to process the information about the presence of video cameras.

[43] Second, the police could not have meant for Ms. Mok to take literally the statement that "everything" was being recorded. For one, she was taken to a private room and searched off camera. She might also have reasonably thought that public or staff washrooms were not being recorded.

[44] Third, she was placed in a cell by herself and, while there was a window on the cell door, when she banged on the cell door before using the toilet, no one answered. Therefore, it was apparent to her that no one was on the other side of the window.

[45] Finally, Boswell J. found that "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.": Mok, at para. 72.

[46] In his view, notification would have been more persuasive if there were some option for the detainee to avoid entering the videotaped cell or avoid using the videotaped toilet. For example, customers who may be searched at an airport have the option to elect not to fly. The forced submission to the search was an important factor in the analysis.

[47] Boswell J. concluded that the state's legitimate concerns about safety and the preservation of evidence were not so pressing that the individual's right to privacy when using the toilet must give way to them entirely. These state interests could have been adequately protected by other means, such as using a modesty screen.

[48] Therefore, Ms. Mok had a reasonable expectation of privacy in the cells, which was violated by the recording of her washroom activities.

[49] Although Boswell J. upheld the trial judge's finding of a s. 8 breach, he then explained that the trial judge had erred in several respects in deciding to stay the proceedings. The appeal was allowed and the stay of proceedings set aside.

[50] Significantly, Mok is not a case where the remedy sought was the exclusion of evidence.

(ii) R. v. Singh, 2016 ONSC 1144

[51] However, such a remedy was sought in R. v. Singh, 2016 ONSC 1144, a summary conviction appeal case decided by Campbell J.

[52] Mr. Singh was charged with impaired driving and driving over 80 after registering a "fail" on an approved screening device administered at a RIDE checkpoint. At the police station, he was told that sections of the police station, including the booking area, were being electronically monitored by audio and video surveillance. A sign was also posted prominently in the booking area to the same effect.

[53] Mr. Singh provided the two required breath samples into an approved instrument, which revealed a blood alcohol content of more than twice the legal limit. Once before providing these breath samples and twice afterwards, Mr. Singh was permitted to use the toilet facilities in an unoccupied cell in the police station. He was escorted by an officer who remained nearby while he used the facilities.

[54] On each occasion, Mr. Singh was recorded by a video camera positioned outside the cell. In each recording, once he was facing the toilet and sink, the recorded images only recorded the back of his body. He was at all times fully clothed in the recording and none of his private body parts were ever exposed, though it was clear that Mr. Singh was urinating.

[55] The trial judge concluded that these recordings constituted a breach of Mr. Singh’s s. 8 Charter rights and, as a remedy, the trial judge excluded the blood samples. The accused was acquitted, and the Crown appealed.

[56] On appeal, Campbell J. agreed with the trial judge's conclusion that Mr. Singh's s. 8 Charter rights had been violated but held that the trial judge erred in excluding the evidence under s. 24(2) of the Charter.

[57] Campbell J. found that there was no error in finding that Mr. Singh's s. 8 Charter rights had been violated. His direct personal interest in his private washroom activities was easily established and the recordings touched on his personal dignity, integrity and autonomy. While Mr. Singh knew his washroom activities were being monitored by his police escort, it was open to the trial judge to find that he had a subjective expectation of privacy and that he did not know his washroom activities were being video recorded. Finally, there was a "great weight" of jurisprudence supporting the objective reasonableness of an individual's expectation of privacy while using toilet facilities in police custody: Singh, at para. 28.

[58] However, Campbell J. found that the trial judge erred in determining the appropriate remedy for this violation. The trial judge erred primarily in the second prong of the s. 24(2) analysis: the impact of the breach on the accused's Charter-protected interests. While the trial judge found that the breach had an especially significant impact on Mr. Singh's protected privacy interests, Campbell J. found that the impact could only have had a "negligible" impact: Singh, at para. 40.

[59] Campbell J. noted that the recording depicted nothing more than the "mundane bodily functions" observable to "any number of random male strangers" using "public washrooms across the country": Singh, at para. 41. The court concluded that "it is hard to imagine how being observed from behind, fully clothed, engaged in such a mundane but common and regular bodily function could have caused the respondent any "significant" measure of embarrassment, humiliation, or shame": Singh, at para. 41, emphasis in original.

[60] Nor did Campbell J. agree that the creation of a permanent or semi-permanent record of this activity itself had a significant impact on the accused's protected privacy interests. The recording was stored in police archives almost immediately and was not to be made public. Thus, while the video had the potential to have a significant impact on the respondent's privacy interests, it in fact had little impact.

[61] The trial judge also failed to consider the fact that the police violation of Mr. Singh’s s. 8 rights was not causally connected to the excluded evidence in any way. While the breath sample results were obtained as part of the same chain of events and therefore could be described as having been "obtained in a manner" that violated the Charter, there was no causal relationship. Campbell J. explained that the absence of a causal connection between the evidence and the Charter breach "suggests that the Charter violation had a truly minimal impact upon the respondent, in that the Charter violation did not causally result in the police gathering any incriminating evidence against the respondent": Singh, at para. 50.

[62] Lastly, Campbell J. noted that it was "not insignificant" that the breath samples were collected by means of an approved instrument within the meaning of s. 254(1) of the Criminal Code: Singh, at para. 51. Collecting evidence in this fashion has long been recognized as a relatively non-intrusive procedure having no more than a slight impact on the Charter-protected interests of motorists.

[63] Campbell J. agreed with the trial judge's assessment under the first prong of the analysis that the seriousness of the violation – the recording of a private act without prior judicial authorization or any specific reasonable and probable grounds – was sufficient to favour exclusion. While the trial judge failed to expressly consider the fact that, under the third prong, the evidence was "absolutely vital" to the Crown's case, Campbell J. agreed with the ultimate conclusion that this aspect of the analysis strongly favoured admission.

[64] The trial judge's inaccurate and unreasonable assessment of the second prong of the s. 24(2) analysis resulted in an error in the final decision to exclude the evidence. With both the second and third factors of the s. 24(2) test favouring admission, Campbell J. concluded that the evidence should not be excluded. He allowed the appeal, set aside the acquittal, and ordered a new trial.

(iii) R. v. Griffin, 2015 ONSC 927

[65] The final case I will review is R. v. Griffin, 2015 ONSC 927, a decision of Dawson J. sitting as a summary conviction appeal judge.

[66] Ms. Griffin was charged with impaired driving and then video and audio recorded using the toilet while detained in a holding cell. The trial judge found that the recording constituted a violation of Ms. Griffin’s rights under s. 8 of the Charter. However, the trial judge declined to grant a stay of proceedings pursuant to s. 24(1) of the Charter or to exclude the evidence pursuant to s. 24(2). Ms. Griffin appealed, arguing that the trial judge erred with respect to both remedies. Dawson J. dismissed the appeal, finding that the trial judge had not erred with respect to either remedy.

[67] At the police station, Ms. Griffin was advised that all of her activities would be video and audio recorded, including in the cell area, and there were signs posted to this effect. She was placed in a holding cell which had a toilet angled toward the cell door and toward a camera mounted on the well. After being placed in the cell, Ms. Griffin called out to an officer and asked to use the toilet in a private area but was advised that this request could not be accommodated. An officer provided her with a roll of toilet paper and left the area to give her as much privacy as possible.

[68] The camera recorded Ms. Griffin wiping down the toilet seat, turning away from the camera, pulling up her dress, and pulling down her underwear. Her naked upper right buttock was briefly exposed, but there was no indication that her genital area was exposed to the camera at any time. The sound of her urination could be heard and her upper right thigh was visible while she was urinating. The camera also recorded her wiping herself with toilet paper, pulling up her underwear, and pulling down her dress.

[69] The trial judge heard evidence that the O.P.P. policy concerning the video recording of all prisoner activity was the result of the recommendations from four separate Coroner's inquests into deaths of persons in O.P.P. custody. The trial judge also heard evidence of the steps the O.P.P. had taken in response to the privacy concerns raised in this case and two prior cases. Officers had been instructed to ensure that all detainees were advised they were being recorded at all times and that they were permitted to cover themselves with a blanket when using the toilet. The O.P.P. had also held meetings in response to the decision of Boswell J. in Mok. The court declined to admit fresh evidence of additional steps taken by the O.P.P. since the trial decision, primarily on the basis that the trial judge's decision could not be reviewed based on events that had not occurred by the date of trial.

[70] Dawson J. agreed with the trial judge that the video and audio recording violated Ms. Griffin's s. 8 Charter rights. In declining to stay the proceedings pursuant to s. 24(1), the trial judge relied on five factors, which were paraphrased in Dawson J.'s decision, at para. 31, as follows:

(1) The O.P.P. practice of monitoring and recording all activities in holding cells is based on sound public policy flowing from the recommendations of four Coroner's juries.

(2) The officers who dealt with the appellant were respectful of her dignity and tried to give her as much privacy as possible. She was searched by female officers, no one directly observed her using the toilet, the recording was available only to a few people and there was a publication ban respecting the video.

(3) While this was not a case of "first instance" the law on the issue was unsettled at the time and remained so at the time of trial with a number of conflicting decisions.

(4) Based on Inspector Jevons' affidavit the O.P.P. was taking the matter seriously and was responding to the concerns about privacy expressed in the emerging case law.

(5) The police misconduct was not sufficiently serious to warrant a stay when weighed against the public's interest in a resolution of the appellant's charges on the merits, having regard to the seriousness of drinking and driving charges to the community and the appellant's reduced expectation of privacy while under lawful detention.

[71] Dawson J. was not persuaded that the trial judge erred in her analysis of any of these factors and noted Ms. Griffin was effectively asking the court to retry the case: Griffin, at para. 37.

[72] With respect to the decision not to exclude the evidence pursuant to s. 24(2), Dawson J. also found no error in the trial judge's decision, for reasons similar to those addressed under s. 24(1). The breach was deliberate in the sense that it was a policy, but the officers were not acting in bad faith because they were simply following that policy. While different judges may have come to different conclusions on the impact of the breach on Ms. Griffin’s rights, the trial judge's conclusion that the impact was minimal was "certainly within the range of reasonable conclusions based on this evidence": Griffin, at para. 60. Lastly, Ms. Griffin argued that the trial judge erred by effectively stating that all drinking and driving cases are serious and by not considering the context of this specific case. However, Dawson J. rejected this submission, finding that "[t]here is no doubt the community generally considers drinking and driving offences to be serious. This was a factor the trial judge was not only entitled but required to take into account.": Griffin, at para. 62. The appeal was therefore dismissed.

[73] Having reviewed these cases, I would not interfere with the trial judge's finding that there was a breach of Mr. Walker's s. 8 Charter rights. In my view, the trial judge’s decision is consistent with the decisions that I have summarized.

[74] Video recording detainees at a police station using the toilet can amount to a "highly intrusive invasion of privacy". The cases that I have summarized recognize that on the one hand there are significant policy considerations for ensuring that detainees are safe in the cell areas of a police station. 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 notice of this monitoring and the use of a modesty screen that partially blocks the camera's view of the toilet: see Mok, at para. 81.

[75] The Crown contends that the trial judge’s reasons are internally inconsistent because although he found that the police had followed all the directives given to them by the jurisprudence, he still held the police responsible for Mr. Walker's failure to listen attentively.

[76] Respectfully, I do not read his reasons that way. The trial judge recognized that there were procedures in place to provide Mr. Walker with notice. However, he noted that the booking procedure was not audio recorded. He was troubled by the absence of any audio recording of Sgt. Todd’s interaction with Mr. Walker because there was a gap in the evidence concerning what was said to Mr. Walker. As I read his reasons, the trial judge resolved this gap in Mr. Walker’s favour. He accepted that Sgt. Todd said what he did but noted that Sgt. Todd may have done so quickly, without confirming that Mr. Walker understood. It was open for the trial judge to make that finding in the absence of the audio recording.

[77] There is ample evidence on this record that supports the trial judge’s conclusion that Mr. Walker did not understand what he was being told. The evidence includes the following facts.

[78] First, Mr. Walker used the toilet almost immediately upon entering the cell.

[79] Second, Mr. Walker did not use the privacy screen, despite it being in his possession when he entered his cell.

[80] Third, Mr. Walker did not ask for toilet paper from the officer. He testified that he was embarrassed after he had just had a bowel movement and was uncomfortable.

[81] Fourth, Mr. Walker used his hands to wipe himself. He also actually covered up his bowel movement in the toilet. He explained that the toilet would not flush (it was on an automatic timer) and it would be less embarrassing when officers came back into the cell.

[82] I note that Mr. Walker’s level of intoxication was not so high (his blood-alcohol readings were relatively low – rounded to 100 milligrams of alcohol) to suggest that he was so inebriated that he was not in possession of his faculties. Therefore, it was certainly open to the trial judge to accept Mr. Walker’s submission that it would not have made any sense for him to act the way he did if he understood what Sgt. Todd had told him.

[83] Counsel for Mr. Walker on this appeal submits that since Mr. Walker had no choice but to use the bathroom in a cell that was being videotaped, he was under the complete control of the police. In these circumstances, counsel argues that for the search to be lawful, either the monitoring must have been conducted in a reasonable way that respected his privacy or Mr. Walker must have waived the right to be free from an unreasonable search. Since Mr. Walker did not use the privacy screen, counsel contends that the question before the trial judge was whether he waived his right to privacy. According to counsel, the trial judge’s finding that it was not enough for the police to simply utter words to Mr. Walker was reasonable. The officers were obligated to ensure that Mr. Walker understood the right he was forfeiting.

[84] The logic of these submissions and the trial judge’s findings cannot be denied. I agree that it is helpful to draw on the jurisprudence that deals with the issue of consent to search pursuant to s. 8 and the waiver of a right to counsel under s. 10 of the Charter: see R. v. Atkinson, 2012 ONCA 380, 110 OR (3d) 721; R. v. Manninen, [1987] 1 S.C.R. 1233. For example, a consent to search is only legitimate if it is voluntary and informed. The jurisprudence holds that to be informed the consenting party must be aware of (i) the nature of the police conduct to which the consent relates; (ii) the right to refuse; and (iii) the potential consequences of giving consent.

[85] With respect to the right to counsel as provided for in s. 10(b), the jurisprudence sets out that the police must comply with an informational element that requires them to inform the detainee of their right to counsel and the availability of duty counsel. After this information is provided, the police ask the detainee if they have understood their rights.

[86] The trial judge accepted that the booking officer told Mr. Walker about videotaping and the privacy blanket. However, the trial judge held that the officer did not confirm that Mr. Walker understood. In these circumstances, the trial judge held the officer was under a duty to ensure that Mr. Walker understood that he would be videotaped in his cell and that if he used the toilet in his cell, he could use the privacy blanket to shield his lower half from the video camera. He held that the police did not discharge their duty and found this was a serious breach of s. 8. I would defer to his finding.

[87] This ground of appeal fails.

c) The Trial Judge's s. 24(2) Ruling

(i) A threshold issue: is the evidence "obtained in a manner"?

[88] Evidence that is "obtained in a manner" that violated a Charter-protected right triggers the application of s. 24(2) of the Charter. The violation must have a connection to the evidence to be excluded.

[89] The samples of Mr. Walker's breath were obtained after his bowel movement was videotaped. Although there was some dispute on this appeal about the timing of the bowel movement, I agree with counsel for Mr. Walker that the breach preceded the gathering of the breath samples. The bowel movement was captured on video from 11:50 p.m. to 11:52 p.m. At 11:58 p.m. the police removed Mr. Walker from his cell to attend to the breath room to provide his first sample.

[90] The trial judge accepted the submission made by Mr. Walker's counsel that the video recording of Mr. Walker’s bowel movement was one event in a chain of events forming one transaction. This transaction ran from the time Mr. Walker was stopped on the roadside until he provided his second breath sample. The trial judge held that there was a "temporal" and "contextual" connection between the breach and the taking of the breath samples. His finding is consistent with a recent summary conviction appeal decision decided by this court after this appeal was argued.

(ii) R. v. King, 2019 ONSC 5748

[91] While this decision was on reserve, the decision of Dennison J. in R v. King, 2019 ONSC 5748, was released. I asked for supplementary written submissions from the parties on the impact of this decision. I am grateful to counsel for their submissions. In my view, King fortifies the trial judge's conclusion.

[92] Mr. King was convicted of driving a motor vehicle with a blood-alcohol concentration over the legal limit. After failing his breath tests, he told the arresting officer that he had no one to pick him up from the station. He was detained for approximately five hours from the time of arrest to his release. The police could provide no evidence as to why Mr. King was detained because an inexperienced officer had not taken detailed notes.

[93] The trial judge found that the police breached Mr. King's ss. 7, 9, and 11(d) Charter rights. However, the trial judge held that this was not an appropriate case to stay the charges pursuant to s. 24(1) and that remedies under s. 24(2) could not be considered because the breath samples were not "obtained in a manner" that violated the Charter.

[94] On appeal, Dennison J. upheld the trial judge's finding that a stay under s. 24(1) was inappropriate. However, she found that the trial judge had erred in not considering remedies under s. 24(2). After conducting her own s. 24(2) analysis, Dennison J. concluded that admitting the evidence would not bring the administration of justice into disrepute and upheld the conviction.

[95] Dennison J. recognized that Laskin J.A.’s interpretation of “obtained in a manner” in R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, includes consideration of Charter breaches that occur after evidence is gathered.

[96] In Pino, Laskin J.A. held that the court must look at the "chain of events" between the police and the accused and consider whether the evidence and Charter breach occurred during the "the same transaction or course of conduct." As Dennison J. noted, this is a case-by-case assessment: King, at para. 50.

[97] The obtaining of the evidence and the Charter breach must be part of the same transaction or course of conduct and the connection – whether causal, temporal, contextual, or some combination – must not be too remote or too tenuous: King, at para. 52.

[98] Ultimately, the strength of the connection between the evidence and the Charter breach should be decided on a case-by-case basis. Determining whether evidence was "obtained in a manner" that violates the Charter is a threshold issue and therefore should be defined generously: King, at para. 68.

[99] Dennison J. held that there was a significant contextual and temporal connection between Mr. King's breath test results and the Charter breach. Had the breath test results been insufficient to charge Mr. King, there would have been no basis for the police to detain him. The temporal connection of six hours was also strong. The breath test results were therefore "obtained in a manner" as required by s. 24(2) of the Charter.

[100] In this case, I would not disturb the trial judge's finding. In my view, the trial judge was correct in holding that the breath samples were obtained in a manner that breached the Charter. Applying the framework set out in King to these facts, the trial judge's finding that there was a significant contextual and temporal connection was correct. The time from Mr. Walker’s arrest at the roadside to the time he provided his second breath sample can only be fairly characterized as a single transaction. The recording of his bowel movement was a link in that chain of events and the transaction had not been completed because Mr. Walker was at that time waiting for the police to escort him to the breath technician.

(iii) The Breath Samples were Obtained in a Manner

[101] To conclude, the early jurisprudence suggested that no s. 24(2) relief was available for detainees who were filmed using the toilet because of a restrictive view of the connection required to meet the "obtained in a manner" threshold. However, it is now well settled that evidence "obtained in a manner" that violates the Charter can include breaches that are causally, temporally, or contextually related to the breach. However, the issue of causation may still be a relevant consideration on the second prong of the Grant analysis.

(iv) The Trial Judge's Balancing of the Grant Factors

[102] The Crown argues that the trial judge's conclusion that the breath readings should be excluded pursuant to s. 24(2) of the Charter is unreasonable and tainted by error. Again, the trial judge's decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination.

[103] I find that this ground of appeal fails. The trial judge applied the three-prong test in Grant. I agree with his conclusion that the admission of the breath readings which were temporally and contextually connected to the breach would bring the administration of justice into disrepute.

[104] The first prong of Grant requires consideration of the seriousness of the Charter-infringing conduct.

[105] On the one hand, there is nothing that suggests that the police set out deliberately to video monitor Mr. Walker. The trial judge found that Sgt. Todd told Mr. Walker that the cell was videotaped and how to use the privacy blanket.

[106] At the same time, the trial judge held that the officer should have ensured that Mr. Walker understood what he was being told. The trial judge found that the officer did not confirm that Mr. Walker understood what he was being told. The trial judge noted this could have easily been resolved by audiotaping the booking process. Implicit in that finding is that there was a gap in the evidence.

[107] The trial judge concluded that this unfortunate incident could have been avoided if the officer had ensured that Mr. Walker understood what could happen if he used the toilet and that the breach was serious. It was open to him to reach that conclusion and I would not disturb that finding. Therefore, the first Grant factor pulls toward exclusion.

[108] The second prong of Grant examines the impact of the breach on the Charter-protected interests of the accused. The trial judge concluded that the Charter breach had a significant impact on Mr. Walker's constitutionally protected right to privacy. I agree with this finding.

[109] I do not think it can be seriously contested that being videotaped while on the toilet having a bowel movement with your buttocks exposed is an egregious intrusion on personal privacy. Mr. Walker was also video monitored wiping himself with his hand. The trial judge found the whole incident to be humiliating for Mr. Walker.

[110] The Crown's primary submission is that the trial judge ignored the fact that the recording of the bowel movement was not causally connected to the taking of the breath samples. Relying on Singh, the Crown submits that the failure to consider this factor skewed the trial judge's analysis of the Grant factors.

[111] In Singh, Campbell J. found that the trial judge erred in his analysis of s. 24(2) by failing to consider the fact that the police violation of Mr. Singh’s rights was not causally connected to the seizure of the breath samples. Campbell J. noted that this was a significant factor that attenuated the breach. He also noted that the recording depicted nothing more than the "mundane bodily functions" observable to "any number of random male strangers" using "public washrooms across the country": Singh, at para. 41.

[112] I believe this case is different. Bowel movements in public bathrooms happen in private stalls. This is not a case where other people were observing Mr. Walker from behind, fully clothed, engaged in a regular bodily function at a urinal. This is a case where the trial judge found that Mr. Walker suffered a significant measure of embarrassment, humiliation, or shame.

[113] The trial judge does seem to have ignored the fact that there was no causal connection between the breach and the seizure of the breath samples. As the Crown points out, Mr. Walker was obligated to provide the samples having been arrested for driving over the legal limit. The trial judge does not appear to have addressed this in his reasons. I accept that this was an error in principle. That said, this specific error does not entitle me to disregard the other careful findings of the trial judge that are not tainted by the errors. These other findings are entitled to deference.

[114] Therefore, in this case, even if the lack of causal connection suggests that the impact on Mr. Walker’s Charter-protected interest is minimal, the lack of a causal connection does not outweigh the profound breach of Mr. Walker’s protected privacy interest.

[115] As noted above, the Crown relies on Campbell J.’s comments in Singh where he finds that the lack of a causal connection suggests that the impact is truly minimal. Again, in my view, the impact on privacy here is much more profound than in Singh. I have concluded that the second prong of Grant points toward exclusion.

[116] The third prong of Grant considers society's interest in an adjudication on the merits. No issue is taken with the trial judge’s finding that the third prong of Grant points toward inclusion because the evidence was reliable and the nature of the testing to obtain breath samples is minimally intrusive.

[117] Ultimately, the exercise under s. 24(2) is a question of balancing the appropriate factors. After balancing the factors, the trial judge found that exclusion was the appropriate remedy. In this case, the trial judge’s decision was not unreasonable. Even after accounting for the lack of a causal connection between the breach and the seizure, I find that the trial judge reached the right result. This ground of appeal fails.

CONCLUSION

[118] For the reasons outlined above, the appeal is dismissed.

Coroza J. Released: April 7, 2020