COURT FILE NO.: 172/21 (London Court)
DATE: 20220826
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Alicia VanBree
Defendant
G. Christakos, for the Crown
R. Ellis, for the Defendant
HEARD: April 20, 21 and 22, and July 25, 2022
RULING ON VOIR DIRE ON THE CHARTER APPLICATION
Carroccia j.
[1] Section 8 of the Charter of Rights and Freedoms protects an individual’s reasonable expectation of privacy from unreasonable intrusions by the state.[^1]
[2] The jurisprudence that has developed in this area of the law recognizes that there are various forms of privacy protected by s. 8. One aspect of individual privacy is personal privacy.
[3] The accused, Alicia VanBree, is charged with Impaired Operation Causing Bodily Harm contrary to s. 320.14(2) of the Criminal Code R.S.C. 1985, c. C-46, Impaired Operation of a Conveyance Causing Death contrary to s. 320.14(3) of the Code, and Operating a Conveyance Within Two Hours of Having a Blood Alcohol Concentration that was Equal to or Exceeding 80 mg. of Alcohol in 100 ml. of Blood, contrary to s. 320.14(1)(b) of the Code.
[4] Ms. VanBree has filed an Application seeking a remedy pursuant to s. 24(1) and s. 24(2) of the Charter as a result of an alleged violation of her rights under s. 8 of the Charter when she was subjected to video surveillance while detained in custody following her arrest. This is my ruling on the voir dire that was conducted on this Application.
The Arrest of the Accused
[5] The circumstances surrounding the arrest of the accused are not contested. Ontario Provincial Police (OPP) Constable Bruce Stafford, an officer of 26 years experience was on routine patrol on July 17, 2020. At 9:54 p.m. that evening, he was dispatched to a motor vehicle accident that had occurred at the intersection of Hickory Drive and Egremont Drive in the municipality of Strathroy-Caradoc. He arrived at 10:03 p.m. and observed two vehicles which had apparently been involved in a collision and there was a number of persons injured. PC Stafford’s attention was drawn to a silver SUV which was involved in the collision because a woman was yelling for help for her child who was in the backseat of the vehicle. He described the scene as chaotic.
[6] PC Stafford found a young female child, who appeared to be about eight years old on the floor of the rear passenger seat of the silver SUV who was flailing uncontrollably. He removed her from the vehicle because he was afraid the vehicle might catch fire, and PC Stafford had some difficulty keeping the child still on the ground while awaiting the arrival of an ambulance. Once the child was attended to by paramedics and put into the ambulance, PC Stafford turned his attention to a woman wearing a black dress who was identified as the driver of the other vehicle involved in the collision. There is no issue as to identity and she was later identified as the accused, Alicia VanBree, who appeared to be hysterical.
[7] Other officers arrived at the scene and dealt with the accused, and PC Stafford was directed to attend Strathroy Hospital where he arrived at about 10:30 p.m. He later accompanied an ambulance which transported the injured child to Victoria Hospital in London, Ontario for treatment. He arrived back at the Strathroy Detachment of the OPP at approximately 1:40 a.m.
[8] Police Constable (PC) Michael Piunno received information regarding a two-vehicle collision at 9:54 p.m. While enroute, he received an update from PC Stafford, who sounded upset and asked for Emergency Medical Services to expedite. He arrived at the scene at 10:07 p.m. and initially assisted PC Stafford loading a small child on a stretcher into an ambulance. Then he turned his attention to Ms. VanBree who had been identified by PC Stafford as one of the drivers involved in the collision. He asked her if she had any injuries. She complained of ankle pain, but she declined to be assessed by ambulance personnel.
[9] He asked the accused if she had been drinking. She answered no, but PC Piunno smelled the odour of alcohol emanating from her breath. He noticed her eyes were red and glossy. She was visibly upset. He asked her to accompany him to his vehicle, and while speaking to her, he formed the opinion that he had reasonable grounds to believe that she had an amount of alcohol in her blood that impaired her ability to operate a motor vehicle and as a result, he arrested her at 10:18 p.m. She was placed in handcuffs to the rear, but was not searched, because there was no female officer available to do so. Ms. VanBree became quite upset and told PC Piunno that she had very bad anxiety and did not want to be in the back of the cruiser. He moved her handcuffs to the front, to accommodate that, which seemed to help. He read her her rights to counsel and caution along with a breath demand. She appeared to understand, and he transported her to the Strathroy OPP Detachment arriving at 10:35 p.m.
At the OPP Detachment
[10] PC Piunno brought Ms. VanBree, under arrest, into the cell lodging area at the OPP Detachment in Strathroy where there are two cells for detainees and a breath test room. He asked the accused to sit on a bench in the prisoner lodging area while he made some notes. He then notified her that the entire area where the cells and the breath room are located, including the toilet areas in each of the cells, are equipped with cameras and recorded at all times. PC Piunno testified that he told Ms. VanBree that a privacy screen was available, that is a paper gown that goes over the body and that if she wanted a privacy gown, she could ask for one. He recorded this in his notebook.
[11] In addition, there is signage in the area to make detainees aware that the entire area is audio and video recorded including the toilets. PC Piunno testified that there is a painted stencil on the wall inside the cell above the toilet advising prisoners of the existence of the video cameras and which includes a depiction of a camera.
[12] According to PC Piunno, the audio/video recording in the breath room is not on constantly, but is activated by a switch which, when turned on, operates a microphone which records conversations in the room in addition to the camera which records video. Some conversations outside of the breath room are captured by the microphone, as they were in this case. When a prisoner is in cells, he or she can be monitored by an officer from another room through that video surveillance system and a recording is made which is retained for a period of one year.
[13] Each cell is equipped with a concrete bench, a stainless-steel toilet, a camera in the ceiling and signage on the wall. Cell #1 where the accused was lodged also contained a small mattress pad and a blanket. PC Piunno testified that the signage exists to make prisoners aware that they are being monitored both in the lodging area and in each cell. The video recording system exists to monitor the safety of prisoners.
[14] According to this officer, OPP policy requires him to advise prisoners of the existence of the recording equipment, including in the area where the toilet is located, and of the existence of privacy gowns, but the policy does not indicate the way they should make people aware of it. His practice is to advise prisoners of the existence of the cameras and notify them that they are always being audio and video recorded while in cells and make them aware of the availability of privacy gowns that go over their body and give them privacy when they use the toilet.
[15] PC Piunno indicated that ordinarily he offers the privacy gown when he is completing his Prisoner Custody Report. He described the privacy gown as a paper gown that goes over the head and clothing to offer individuals privacy when using the toilet while in custody. He completed a Prisoner Custody Report which indicates that the privacy cover was explained to Ms. VanBree, that the cell was searched prior to lodging her and that she was advised of cell video and audio recording. PC Piunno confirmed that he explained to Ms. VanBree that the cell was subject to video surveillance including the toilet area and he testified that he made her aware that they had privacy gowns for her use at her request, if she wanted one. He testified that he told her that it was a paper gown that goes over her body when she uses the toilet. Further, he testified that she was responsive to his questions, and he was able to carry on a conversation with her. She appeared to understand him, and he indicated that throughout their interactions she responded appropriately.
[16] PC Piunno confirmed that at one point, he attended at the cell door and put the key in the door, and he stopped abruptly before entering the cell when he realized that the accused was using the toilet. He did not observe the accused at that time. The cell is equipped with a large metal door with a small plexiglass window to see into the cell.
[17] After the breathalyzer test was conducted by the breathalyzer technician, the accused was lodged into cell #1. The cell contained a blanket and a thin mattress over the concrete bench.
[18] PC Piunno was advised of the results of the test, and that her readings were over 80. He also received information at about 11:47 p.m. that one of the passengers in the accident had received serious injuries and that the child who was seriously injured was without vital signs, so he placed the accused under arrest for Impaired Causing Bodily Harm and Operating a Vehicle with Over 80 mgs. of Alcohol in 100 ml. of Blood. He read her her rights to counsel again as well as the caution, she indicated she understood, and he asked if she wished to contact counsel and she declined.
[19] At about 12:30 a.m. while speaking to the accused, after advising her of the 90-day administrative licence suspension, Ms. VanBree indicated that she would rather die than not have her licence.
[20] At 1:42 a.m., Ms. VanBree knocked on the cell door to get PC Piunno’s attention and she complained that her ankle was swollen and requested a medical assessment and as a result, PC Piunno requested the attendance of EMS. They attended about ten minutes later, at which time she was covered with the blanket which was on the concrete bench.
[21] After she was lodged in the cell, PC Piunno attended at cell #1 and spoke to the accused on three separate occasions. At no time did the accused request a privacy gown or express concern about her privacy in the cell to any of the officers. A photograph taken by PC Piunno in September of 2021 of the signage over the toilet in the cell was introduced into evidence. The sign depicts a camera and states “the cell and toilet area are being video recorded” in both English and French.
[22] In cross-examination, PC Piunno was asked about training in relation to privacy gowns. He indicated that he did not recall specifically how he was trained but did receive training. He indicated that police officers do not automatically have access to the videos that are recorded but must seek authorization to do so. He confirmed that other than concern about the accused being emotionally distraught and crying, there were no safety concerns related to Ms. VanBree.
[23] He confirmed that after walking into the cell on the first occasion and realizing that Ms. VanBree was using the toilet and backing out, he looked into the cell through the window before entering thereafter. He acknowledged that he did not give her a privacy gown, but that it appeared that she was not concerned about her privacy, and she did not request one.
[24] PC Anthony Scarpelli, the breathalyzer technician, arrived at the Strathroy OPP Detachment at 10:29 p.m. because he was required to perform a breath test after first attending at the scene of the accident. He received the grounds for arrest at 10:40 p.m. and obtained two samples of breath from the accused, the first at 10:58 p.m. resulted in a reading of 153 mg. of alcohol in 100 ml. of blood and the second test taken at 11:21 p.m., produced a result of 146 mg. of alcohol in 100 ml. of blood.
[25] PC Scarpelli activated the audio recording in the breath room so his interactions with the accused are both audio and video recorded, for the most part. He is observed interacting with Ms. VanBree. She is offered an opportunity to speak to counsel and she responds, “I don’t need to”. She replies “I get it” after provided with the caution. She is emotional on the video and crying and complains of soreness in her ankle. The conversation between the accused and the police officers is thereafter recorded.
[26] PC Scarpelli asked questions of the accused which she answered appropriately. He asked her whether she required medical attention for her ankle. She is advised that everything in the breath room is audio and video recorded. She discusses medication she takes for anxiety. She denies that she suffered a head injury. She answered the questions about where she was going and whether she had anything to drink. She inquired about what would happen to her vehicle and the stuff in it and is concerned about a “Yeti cooler”. She also states that she is not even drunk. The officer had no concern about whether she understood his instructions. She asked the officer whether she was going home, and he told her that after the test was completed, she would be permitted to call someone to come pick her up. Upon completion of the breath test the switch which controls the audio is turned off. Throughout their interactions, PC Scarpelli spoke to her politely and professionally.
[27] PC Scarpelli lodged the accused into cell #1 upon completion of the breath test. He testified that when he brought her to her cell, he explained the audio/video recording and told the accused that she could be provided a privacy gown because even the toilet area is recorded. He pointed to the toilet and described by showing on his body how the gown would cover her body. He was 100% certain that he offered her a privacy gown and she quickly shook her head no. She then asked him “why am I here?”
[28] PC Scarpelli indicated that at that time, only he and PC Piunno were in the Detachment. He testified that the video monitoring is conducted for the safety of the detainees and any kind of mischief they may cause. His practice is to make people aware that the cell area is subject to recording and monitoring, and this is OPP policy as well. He indicated that ordinarily toilet paper is not left in the cell, but for safety reasons is usually provided upon request.
[29] Under cross-examination, counsel did not take issue that the officer told the accused about the privacy gown and “mimed” how it goes on a person. The policy is that officers are to advise detainees of the availability of privacy gowns. The officer was familiar with the caselaw in this area. When pressed, he maintained that he informed Ms. VanBree about the availability of a privacy gown, and she provided a non-verbal response by shaking her head. The policy is not to provide the gown until requested in the event that someone may use it to commit suicide. The cell is equipped with a blanket and a mattress as well.
[30] PC Stafford was cross-examined regarding any contact he had with the accused at the Detachment. He testified that he arrived at the Detachment at 1:40 a.m. and was walking past the cell block when he heard banging and approached the cell door (the video which records this interaction shows the time as about one minute earlier than that). It was suggested to him during cross-examination that when he spoke to the accused at this time, he used words to the effect of: “Stop fucking knocking on the door, we’re sick of hearing it!” To his credit, PC Stafford, did not deny the suggestion, but testified that he had no recollection of the words he used and could not dispute that was what he said and that he used angry words with her. This interaction took place after the breath tests were conducted.
[31] He further acknowledged that he does not recall whether he said: “you’re not getting out soon, if you’re uncomfortable, too bad, you don’t know the shit you caused”.
[32] He was asked about the OPP policy regarding providing prisoners with privacy gowns and he replied that he is familiar with the policy at the Detachment, which is that the lodging officer is to provide one if requested. He testified that when he lodges a prisoner in cells, which he does not often do, he always asks them whether they have ingested any drugs and advises them that if they use the washroom, they are being recorded, so if they want privacy, they will be provided with a gown to use. When asked about his understanding as to why the surveillance of prisoners is necessary, he indicated that it was for the purpose of making observations of them, so they do not hurt themselves while they are in custody.
[33] Ms. VanBree re-attended at the Strathroy Detachment on the following day, after her release, after receiving a phone call from PC Damaris Mackie who was following up on the investigation. She was asked to come in and was re-arrested for Impaired Operation Causing Death, following the death of the child who succumbed to her injuries. PC Mackie activated the audio and video recording in the interview room where the accused was brought. Ms. VanBree was visibly upset. She was lodged into cells and provided with a privacy gown by PC Mackie’s partner, PC William Elliot, who also pointed to the camera and to the stencilled sign over the toilet.
[34] PC Elliot testified that it is his practice to provide detainees with a privacy gown and he did so in this case, and he also pointed to the stencilled sign and the camera and advised Ms. VanBree that the room is subject to video recording including the toilet area. He indicated that she gave him no reason not to give her the gown. The officer indicated that the OPP policy has been evolving as a result of “caselaw”.
[35] Staff Sergeant Calum Rankin of the London Detachment of the Middlesex County of the Ontario Provincial Police is currently Acting Operations Manager. He provided an affidavit which was introduced into evidence on consent, and he testified on the voir dire by Zoom. He attests in his affidavit that in March 2011, digital video recording equipment was installed in all OPP Detachments “to ensure 24/7 video recording of detainees in cells”. This video surveillance allows for recording of detainees but does not allow the viewer to rewind and review during the recording process.
[36] Each Detachment has a Prisoner Monitoring and Recording Unit (PMR) comprised of no more than three administrators who evaluate all requests for audio/video downloads and are subject to supervision. Each recorded DVD is securely stored in the Detachment PMR vault.
[37] The affidavit indicates that in response to the decision in Regina v. Mok 2014 ONSC 64, then Deputy Commissioner Hawkes released a memorandum which implemented certain procedures, namely:
a) when placing a detainee in a cell, the officer should be seen on camera actively pointing to the camera to ensure that the detainee is fully aware that their actions are being videotaped including the use of the toilet;
b) officers should make verbal notification that the cell is video monitored;
c) officers should ensure that there is proper posting of all signs indicating that video monitoring is in place and make the detainee aware of those signs;
d) Officers should make written notation of steps taken to ensure the detainee is aware the cell is videotaped;
e) if the individual detainee is entitled to a blanket in accordance with the current OPP policy, they may use it for privacy, (if there is no safety concern with providing the detainee with a blanket);
f) if toilet paper is left in the cell area, it should be left near the toilet;
g) ensure that the video is only available to those who require access i.e. for court purposes;
h) Officers must notify Risk Management of each case in which the cell videotaping issue is brought before the court.
[38] In July 2014, following a three-month pilot project, the Commissioners Committee of the OPP directed the use of paper medical gowns, referred to as “privacy covers” be expanded to all Detachments across the province along with the stenciling of an image of a video camera behind the toilet in every cell. As of September 2021, the date when Sergeant Rankin’s affidavit was sworn, the OPP were evaluating the availability of technology and software that may provide other options to enhance the privacy of detainees in cells.
[39] Staff Sergeant Rankin testified that OPP policy required “prisoners” (as he called them) to be advised of the video recording system in place throughout the Detachment. When someone comes into custody, they are advised that they are always video recorded, but not always audio recorded.
[40] In addition, there are signs posted in all cells in all Detachments in Middlesex County that warn individuals of the video monitoring. It is expected that officers receiving persons into custody will complete a Prisoner Custody Report which records whether the detainee was advised of the video recording system and whether they were advised of the availability of a privacy gown.
[41] Staff Sergeant Rankin testified that the current OPP policy does not require that detainees be provided with gowns “automatically” but detainees must be made aware of the availability of the gowns. They are single use gowns that are meant to go over clothing. This officer has sworn other affidavits regarding the policy and follows the results of court cases related to this issue to be proactive and to “do better”.
[42] Staff Sergeant Rankin indicated that the stencilled sign over the toilet has not been changed to his knowledge, but that other signage in the Detachment is often changed when the wording is reviewed and updated.
[43] In cross-examination, Staff Sergeant Rankin acknowledged that officers could develop their own practice which includes providing gowns to all detainees before they request one, as long as that practice complies with the OPP policy.
The Video Recording
[44] The video recording of Ms. VanBree from the time she arrived at the OPP Detachment until after the point at which she uses the toilet facilities in the cell was introduced into evidence and marked as an exhibit.
[45] The following areas of the video are particularly relevant:
- between 10:36:24 and 10:37:34, PC Piunno is going through the booking procedure with the accused;
- at 10:37:43, PC Piunno is observed pointing to signage on the wall regarding disclosure of drug or other substance ingestion;
- between 10:38:05 and 10:46:38, Ms. VanBree is observed crying on the video and can be heard once the microphone is activated in the breath room, asking for the handcuffs to be taken off;
- between 10:46:00 and 11:21:56, the interaction between Ms. VanBree and PC Scarpelli, including their conversations before and during the taking of the breath samples is captured on audio and video;
- she is asked if she wants to speak to a lawyer and answers “No, do I need one?”;
- she asks for Kleenex, she says she has a bloody nose;
- at 10:57:16, PC Scarpelli can be heard advising Ms. Van Bree that “everything back here is audio/video recorded”;
- PC Piunno can be heard relating the grounds for the arrest to PC Scarpelli and the accused is introduced to him;
- between 11:21:58 and 11:22:59, PC Scarpelli is observed at the door of the cell, gesturing from the top of his chest to his legs as if demonstrating what part of the body the privacy gown covers;
- between 11:33:18 and 11:34:46, Ms. VanBree is observed using the toilet in the cell (private areas of her body are not visible). At 11:34:35, PC Piunno opened the cell door to speak to the accused, but he did not enter or cross the threshold, and he stepped back because he realized she required privacy;
- at 11:35:33. PC Piunno attended at the cell and is observed speaking to Ms. VanBree and he asks her whether she can call someone to pick her up;
- between 11:58:04 and 12:02:19, PC Piunno attended at the cell again and spoke to Ms. VanBree at which time he re-arrested her;
- between 12:23:02 and 12:25:26, PC Piunno re-attends at the cell because Ms. VanBree was knocking on the door to get his attention. They had a discussion during which they spoke about the administrative loss of her driver’s licence, and she told him that if she did not have her licence, she would rather die, so he engaged in discussions with her to attempt to evaluate her mental health. He continues to talk to her until about 12:37:47, over 14 minutes, during which she requested tissue which was provided to her;
- between 1:36:26 and 1:39:27, PC Piunno reattended at the cell on two occasions in response to a knock on the door by Ms. VanBree who requested medical attention for her ankle;
- at 1:40:08 to 1:40:39, PC Stafford is observed opening the cell door and speaking to Ms. VanBree;
- at 1:43:24, Ms. VanBree is observed in the cell, laying on the concrete bench with a blanket around her;
- between 1:55:20 and 1:56:29, paramedics attend and assess Ms. VanBree and she is released from custody because they wished to take her to the hospital for further treatment;
- later that same morning on July 18, 2020, between 10:59:57 and 11:06:30, Ms. VanBree is observed being lodged in cells and being provided a privacy gown by PC Elliot.
[46] Ms. VanBree gave evidence on the voir dire as well. She testified that she is currently 35 years of age and was 33 years old on the date of the events in question. She was born in London, Ontario and educated at Seneca College in Toronto. She graduated from Medix in London where she became a certified Personal Support Worker (PSW). She is employed as a PSW at Strathmore Lodge in Strathroy although she is currently on leave.
[47] The accused agreed that the accident scene was chaotic and that she required the assistance of passersby to be removed from her vehicle. She agreed that she did not inquire of the officers about the condition of the passengers in the other vehicle because it was not her focus. At the time, she was overwhelmed with trauma and anxiety. She was anxious about her mother worrying about her because she called her mother after the accident and then was unable to call her again.
[48] She testified that she has no criminal record and had never been arrested before. She indicated that she experienced anxiety when she was placed under arrest and was scared. She agreed that when PC Piunno moved her handcuffs from the rear to the front, this alleviated her anxiety somewhat.
[49] Ms. VanBree was shown video and was asked about her attendance at the Strathroy Detachment of the OPP on the morning of July 18, 2020 when she was notified that the child had died and her charges were upgraded. She acknowledged that she was provided a privacy gown by PC Elliot and he explained how to use it and she understood the explanation.
[50] She testified that she was told of the availability of a privacy gown when she was arrested on July 17, 2020 but did not ask for one because “it was not her focus”, she was scared and anxious. She testified that if she had been offered a gown, she would have used it because she would not expose herself so publicly by choice.
[51] She did not take issue with the evidence of PC Piunno and PC Scarpelli including when they testified that they made her aware that her activities in the cell would be recorded and that PC Scarpelli “mimed” the use of a privacy gown for her.
[52] Ms. VanBree testified that she felt mortified and “shameful” when she learned that her use of the toilet in the cell was video recorded. At the time that she was using the toilet in the cell, she felt that PC Piunno had actually walked into the cell but seeing the video she realizes that he did not walk fully into the cell.
[53] Ms. VanBree testified that she suffered injuries as a result of the accident, including swelling in both ankles, internal injuries from the seatbelt, a bloody nose and black eye from the air bag deploying. She indicated that the scene was chaotic and that’s why she did not ask for medical attention at that time.
[54] She denied that she shook her head and gestured “no” when offered a privacy gown by PC Scarpelli.
[55] When asked how she felt when she sat in the courtroom watching the video of her use of the toilet, she said she felt mortified and like she was sitting naked in the courtoom.
[56] The accused testified in cross-examination that she knew what a privacy gown was because she was familiar with them through her employment as a PSW. When pressed in cross-examination to acknowledge that she understood everything that went on that evening between herself and the police officers, she indicated that it appeared so on the video.
[57] When asked by the court why she did not knock on the door and ask for a privacy gown when she acknowledged that she was advised that one was available and was familiar with their use, Ms. VanBree testified that it was not her focus, that she was overwhelmed with fear and “trying to breathe”.
The Position of the Parties
[58] The accused takes the position that her rights pursuant to s. 8 of the Charter were violated when she was detained at the Strathroy OPP Detachment after being arrested, and was not provided with a privacy gown, and videotaped while using the washroom in the cell.
[59] The accused argues that while the police did take some steps to address the accused’s right to privacy, they did not go far enough, and should have provided her with a privacy gown, it was not enough to offer one for her use.
[60] As a result, the accused submits that the appropriate remedy is that the charges be stayed pursuant to s. 24(1) of the Charter because these circumstances involve a serious violation of the accused’s privacy interests, and that a message should be sent that this is not a novel area of the law, and the police should be expected to know what is required of them. Alternatively, the accused submits that all the evidence, namely the breath samples ought to be excluded pursuant to s. 24(2) of the Charter.
[61] The accused points to three main reasons in support of her argument. First, that this issue is not new and has been known since the decision in Regina v. Mok 2014 ONSC 64, secondly, that Staff Sergeant Rankin testified that the OPP are still evaluating their policy surrounding the use of privacy gowns and thirdly, that the actions of the police constitute a serious violation of her privacy and personal integrity.
[62] The accused argues that the gold standard is easily complied with, that is that every detainee should be provided with a privacy gown, not simply offered one. She argues that this case demonstrates a systemic issue and a lack of clear procedure.
[63] The Crown argues that there was no breach of the accused’s s. 8 privacy rights in the circumstances of this case because the police took reasonable steps to respect her privacy rights by advising her that she would be subject to audio and video recording, pointing to the signage and offering her a privacy gown.
[64] The Crown argues that evidence provided by the Crown is essentially uncontested except for the evidence of PC Scarpelli when he indicates that the accused shook her head no when she was asked if she wanted a gown. That evidence shows that the police treated the accused with respect while she was in their custody and were sensitive to her condition including her anxiety.
[65] The Crown says that the OPP have been responsive to the evolving caselaw in this area by making adjustments to their policies. This shows that they are alive to the issues and are actively attempting to be Charter-compliant. Furthermore, the Crown argues that it was clear from the evidence that the court heard, that the police offered the accused the use of a privacy gown on numerous occasions. She chose not to use one.
[66] If the court finds that there has been a breach of the accused’s rights pursuant to s. 8, the Crown submits that a stay of proceedings is not appropriate in the circumstances, nor should the evidence be excluded pursuant to s. 24(2) of the Charter.
The Legal Principles
[67] An individual who is under arrest and in the custody of the police has a reduced expectation of privacy, but not no expectation of privacy, see Regina v. Stillman 1997 384 (SCC), [1997] 1 SCR 607 at para. 61.
[68] Regina v. Jarvis 2019 SCC 10 dealt with a teacher who was surreptitiously videotaping female students. In that case, the Court recognizes the importance of personal privacy and says at para.65:
As this Court has recognized, our society places a high value on personal privacy — that is, privacy with respect to our bodies, including visual access to our bodies: see Tessling, at para. 21; R. v. M. (M.R.), 1998 770 (SCC), [1998] 3 S.C.R. 393, at para. 32; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 83, 89-90, 98-99 and 106. While all aspects of privacy — both from the state and from other individuals — serve to foster the values of dignity, integrity and autonomy in our society, the connection between personal privacy and human dignity is especially palpable: see Dyment, at pp. 427-29, per La Forest J.
[69] There have been a number of cases that have considered whether the video recording of the activities of detainees while in police cells, including their use of the toilet facilities constitutes an unreasonable breach of their reasonable expectation of privacy, and therefore, a breach of s. 8 of the Charter.
[70] The accused relies on the decision of Boswell J. in Regina v. Mok 2014 ONSC 64, a summary conviction appeal which upheld in part the ruling of the trial judge that the accused’s s. 8 Charter rights were violated because the videotaping of detainees using a toilet in a cell is a highly intrusive invasion of privacy. However, Boswell J. disagreed with the trial judge that a stay of proceedings pursuant to s. 24(1) of the Charter was the appropriate remedy and that was set aside.
[71] In Mok, the respondent was arrested for Impaired Driving and taken to 2 District Station in Richmond Hill, where she was lodged in cells. She subsequently provided two samples of her breath which showed an extremely high concentration of alcohol in her blood. The accused was lodged in a cell at the police station that contained a toilet and was equipped with a video camera in the ceiling that monitored all activities in the cell including when the accused used the toilet.
[72] The facts reflect that the accused was advised that there were video cameras throughout the police station and that everything was videotaped including the cell. The officer did not point out the camera in her cell when she was lodged in it, did not offer a privacy gown, and at trial, the accused testified that she was unaware that there was a video camera in the ceiling of the cell. Boswell J. found at para. 69, that Ms. Mok was so intoxicated at the time that it would “impair her ability to process information regarding the presence of video recording devices”. The video of the cell showed Ms. Mok completely exposed when she used the toilet on two occasions.
[73] The summary conviction appeal judge found that the videotaping of police holding cells including the toilet area had not been previously challenged and that there was an appropriate “fix” to the situation which would be, for example, the installation of modesty screens which would cover the lower half of a person’s body while using the toilet.
[74] This decision was appealed to the Ontario Court of Appeal, but the Court declined to grant leave to appeal because the only issue on the appeal was whether a stay was the appropriate remedy and because steps had been taken by the York Regional Police to change their practice since the ruling was made to ensure the privacy of prisoners while using the toilet.[^2]
[75] Following this decision, there were a number of cases in the Ontario Court of Justice and the Superior Court of Justice that followed this ruling. In Regina v. Moondi 2019 ONCJ 293, the accused was captured twice on video surveillance in the cell area, where he could clearly be seen urinating. The accused alleged that his s. 8 Charter rights were violated.
[76] The evidence was that when he was lodged in cells, Mr. Moondi was advised that the cell area was under video surveillance, including the toilet area. A warning was painted on the wall over the toilet indicating that the cell and toilet area were being monitored. However, the lodging process was interrupted by the request by the accused to use the toilet before he was provided with a privacy gown and accordingly his use of the toilet was captured on video.
[77] The court found that on the first occasion when he used the toilet, Mr. Moondi did not have a privacy gown, nor had one yet been offered to him and as a result, reasonable steps were not taken to accommodate the accused’s privacy. On the second use of the toilet, the court did not accept the evidence of the officer as it related to what was said to the accused regarding the video surveillance and the use of a privacy gown and was not satisfied that the accused was provided with an explanation or demonstration of how to use the privacy gown. The evidence of the breath test results was excluded pursuant to s. 24(2) of the Charter.
[78] In Regina v. Wijesuriya 2018 ONCJ 211, a police officer accompanied a detainee when she used the toilet while in custody, on two occasions. The officer stood close by and watched the accused directly, at least part of the time, while she was using the toilet. Prisoners in custody at Peel Regional Police 22 Division were not given a privacy gown or screen, nor were they offered one. There was no video camera in the bathroom area, and her use of the toilet was not recorded.
[79] In this case, Monahan J. found that persons in police custody must be accorded basic privacy when using the toilet, and that the accused should have at least been provided with a privacy gown or blanket to wrap around her waist, and the police officer should have turned her back while the accused used the toilet. In this case, the court found a violation of the accused’s s. 8 rights and following an analysis under s. 24(2) of the Charter, found that the issue appeared to be a systemic one, rendering the breach more serious, and tipping the balance in favour of exclusion of the evidence.
[80] In Regina v. Singh 2016 ONSC 1144, K. L. Campbell, J. determined on a summary conviction appeal that the accused’s reasonable expectation of privacy was violated when the accused’s use of the toilet on three occasions in the cell block was observed by a police officer and recorded on video. The accused’s body was not exposed.
[81] In that case, the accused was unaware that his activities were being recorded and no efforts were made to afford him any privacy while using the toilet in the cells. This was found to be a breach of s. 8 of the Charter, however, Campbell J. determined that the evidence should not have been excluded pursuant to s. 24(2) of the Charter because the circumstances of that case, where the accused was captured on video, urinating, he was fully clothed, and this did not have a significant impact on the accused’s privacy interests.
[82] Furthermore, Campbell J. found that there was no causal connection whatsoever between the Charter violation and the Intoxilyzer results as they were “entirely independent events” (at para. 50). The acquittal was set aside, and a new trial was ordered.
[83] In Regina v. Lacku 2019 ONCJ 738, the accused was arrested for Impaired Driving and taken to a police station so that he could provide suitable samples of his breath for testing. Once at the station, he was immediately taken to cells and requested the use of the bathroom. The officer pointed to the toilet for his use, which was captured on surveillance video. Above the toilet was a large sign that warned that the cell was under video surveillance. The accused testified that he did not see the sign and that he only became aware of the video surveillance later in the evening when he was told by the officer who took his breath samples. This was found to be a breach of the accused’s s. 8 rights. DeFilippis J. found that the police, in the circumstances of that case, took no steps to protect the accused’s privacy and dignity and as a result, the breach was particularly serious. The court considered that this was not a novel issue, and that many police forces across the province had taken steps in accordance with the earlier court decisions to protect a detainee’s privacy while in custody.
[84] The Crown referred to the decision of Gee J. in Regina v. Sweers 2021 ONCJ 271 where there was no violation of s. 8 found in the circumstances. In that case, the officer gave evidence that he made the accused aware that he was under video surveillance throughout the Detachment, he was offered a privacy gown which was declined by him. The court found that how the gown is to be used was not explained, but that the sign above the toilet was quite prominent and the accused admitted that he read it before using the toilet. The action of the police in those circumstances was found to strike a proper balance between the accused’s reasonable expectation of privacy and the police need to monitor detainees.
Analysis
[85] A detainee retains a reasonable expectation of privacy, even when in the custody of the police, although that right is diminished. The s. 8 Charter right against unreasonable search and seizure is a personal right that protects an individual’s personal privacy from unreasonable intrusions by the state.
[86] Personal privacy and dignity have been recognized as a right protected by s. 8 of the Charter, see Regina v. Spencer 2014 SCC 43 at paras. 17 and 18, and Regina v. Patrick 2009 SCC 17 at para. 26 and Jarvis at para. 65.
[87] In Regina v. Patrick at para. 38 the Court states:
The reasonable expectation of privacy “can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion”: R. v. Colarusso, 1994 134 (SCC), [1994] 1 S.C.R. 20, at p. 53; see also R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 22, 23 and 24.
[88] The video recording of individuals while they are detained in custody has been determined to be a warrantless search within the scope of s. 8 of the Charter see: Regina v. Mok at para. 81, Regina v. Singh at para. 28. This finding has been made because although the video recording may not be conducted for an investigative purpose, such as the discovery of evidence, the recording impacts upon an individual’s personal privacy and dignity, particularly where it intrudes upon a fundamentally private activity, such as the use of the toilet.
[89] The monitoring of detainees while in police custody is conducted for the purpose of maintaining the safety of detainees and of police officers. This is a legitimate police concern.
[90] Video recording of detainees by the police garners Charter scrutiny. Since it falls within the scope of s. 8 of the Charter, the issue to be determined is whether the video recording of detainees while in custody, even if for purposes of monitoring their safety, which includes recording their use of the toilet facilities constitutes an unreasonable search.
[91] Since the search is warrantless, the onus is to the Crown to satisfy the court that it is nonetheless reasonable.
[92] A review of the caselaw that has developed in relation to this issue reflects that the determination of whether this conduct constitutes a breach of s. 8 is entirely fact driven. What, if any steps the police take to protect the privacy and dignity of a detainee is a relevant consideration.
[93] In this case, based on all the evidence heard, I find the following facts:
i. upon entry into the detention area, the accused was advised more than once, that she was being audio and video recorded; ii. she was told by PC Piunno and PC Scarpelli that the entire cell area and breath room is subject to audio and video surveillance including the toilet area; iii. both officers pointed out the signage in the cell block area, as well as the stencilled sign over the toilet which indicates that the area is being recorded; iv. the accused was made aware of the availability of a privacy gown by both officers; v. the accused was familiar with the use of a privacy gown through her employment as a Personal Support Worker; vi. the accused asked that her handcuffs be removed when she was speaking with PC Piunno and he did remove them; vii. the accused can be observed on the recording shaking her head no and declining a privacy gown after PC Scarpelli describes on his body how it would be used; viii. although the accused testified that “it was not her focus” and that is why she did not request a privacy gown, she is observed on the video interacting with the police officers on multiple occasions. She knocked on the cell door to get their attention. She asked for Kleenex because her nose was bleeding, she asked for ice for her ankle because it was injured, she asked for medical attention, she made inquiries about her driver’s licence and yet she did not request a privacy gown when she had the opportunity to do so. ix. each inquiry or request she made was met with a response by the officers; x. she was treated respectfully by each of the officers that evening with the exception of PC Stafford who was apparently distressed by the condition of the 8-year-old child and spoke harshly and disrespectfully to the accused; xi. the breath tests were taken before the accused used the toilet facilities and was recorded doing so; xii. although Ms. VanBree’s use of the toilet is clearly captured on the video recording, the accused was wearing a dress and she can be seen pulling down her underwear and sitting on the toilet, but her genital area was not exposed; xiii. Ms. VanBree was humiliated by the experience of having this recorded on video; xiv. the video recording is kept in a secure location and there are measures in place to ensure that access to such recordings is restricted.
[94] The evidence in this case shows that the OPP recognize that detainees have a reasonable expectation of privacy while in custody and that their rights have to be balanced against the requirement by the police to monitor detainees for safety reasons. In response to the caselaw that has found that a failure to respect an individual’s right to privacy in these circumstances constitutes a breach of s. 8, the OPP have implemented procedures to try to respect a detainee’s privacy rights and they regularly review these procedures.
[95] Their policy requires the police to ensure that a detainee is aware of the existence of video surveillance in the cell area that records all activity including the use of the toilet, that the cameras are pointed out to them, that there is signage to reinforce this and that all detainees be advised of the availability of a privacy gown and how to use it. Furthermore, the OPP have implemented a system to restrict and regulate access to these videos.
[96] Ms. VanBree argues that despite this, the OPP have an unclear policy regarding privacy and personal integrity of detainees as is reflected in the evidence of the officers who had varying individual practices relating to this policy.
[97] She argues that she should have been provided with a privacy gown and that due to her emotional state, she was not focusing on the gown, but was overcome with fear and anxiety. A review of her communications and her actions that can be heard and observed on the video does not support this position.
[98] Ms. VanBree does not hesitate to knock on the cell door on several occasions to get the attention of the police. She asks for her handcuffs to be removed. She inquires about what is going to happen to her car and her belongings in the car. She expresses concern about being without her driver’s licence. She asks for medical attention and receives it. She asks the police “why am I here?”
[99] That is not to say that I do not accept that she was suffering from anxiety that evening, that she was scared, crying and emotional. However, I do not accept that she was so distraught that she could not have requested a privacy gown if she wished to use one.
[100] Ms. VanBree was clearly advised that the gown was available, she was clearly aware that her activities while in the cell would be monitored and recorded and she elected not to accept the privacy gown which was offered to her.
[101] Is it unreasonable to require a detainee to make a request for a privacy gown rather than simply providing them one? The answer to that question is no. While it may be preferable to simply provide a gown to each detainee, and it would likely avoid situations such as this one, advising a detainee of the availability of the privacy gown and ensuring that they are aware of the video surveillance system strikes an appropriate balance.
[102] This is not a novel idea. In Regina v. Taylor 2014 SCC 50 at para. 24, Abella J. says the following in relation to the right to counsel pursuant to s. 10(b) of the Charter:
The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. …[emphasis added]
[103] Upon being informed of their right to counsel, an accused is required to invoke that right and make a request to speak to counsel. Making a detainee aware of the availability of, and how to use a privacy gown, and making her aware that she will be subject to video surveillance at all times and advising her that she will be provided a privacy gown if she wants one does not put too high an onus on the detainee.
[104] There must be a balancing of the competing rights between a detainee’s reasonable, albeit diminished, expectation of privacy while in detention and the state’s legitimate need to monitor persons in custody. The use of various measures, such as privacy gowns or privacy screens strikes that balance.
[105] In many of the cases where the accused’s privacy rights have been found to have been breached, it has been determined that the police have not gone far enough to accommodate a detainee’s privacy. For example, where detainees have not been made aware of the existence of video recording systems or have not been provided with an option to protect their modesty.
[106] In the circumstances of this case, I am not satisfied that there has been a breach of Ms. VanBree’s rights pursuant to s. 8 of the Charter because the steps taken by the police to protect her privacy were reasonable in the circumstances and, accordingly, the Application will be dismissed.
[107] Given my finding that there was no breach of s. 8 of the Charter, there is no need to address the arguments relating to the appropriate remedy under s. 24(1) and 24(2) of the Charter.
Original Signed by “Justice M.V. Carroccia”
Maria V. Carroccia
Justice
Released: Delivered Orally on August 26, 2022
COURT FILE NO.: 172/21 (London Court)
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Alicia VanBree
RULING ON VOIR DIRE ON THE
CHARTER APPLICATION
Carroccia J.
Released: Delivered Orally on August 26, 2022
[^1]: Regina v. Tessling 2004 SCC 67 at para. 19
[^2]: Regina v. Mok 2015 ONCA 608