COURT FILE NO.: CR-22-00000472-00AP DATE: 2023-05-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING M. Birsan, for the Crown Appellant

• and -

Olivia Miller C. Avery, for the Defendant Respondent

Heard: March 1, 2023

REASONS ON APPEAL

M.J. DONOHUE, J.

OVERVIEW

[1] In 2020, the respondent was arrested and charged with Impaired Driving and Over 80.

[2] At her trial in the Ontario Court of Justice, De Filippis J. found a s. 8 Charter breach and stayed both charges.

[3] The Crown appeals on the submission that it was an error of law to find any s. 8 breach and on the submission that the trial judge misdirected himself in law by staying both the Impaired and Over 80 charges.

[4] The Crown requests the stay be overturned and a finding of guilt rendered with an appropriate sentence to be imposed.

[5] The defence requests that the appeal be dismissed.

RELEVANT FACTUAL BACKGROUND

Offence

[6] On August 17, 2020, the respondent was driving home after work at a bar in Fonthill. Around 12:30 a.m., in the town of Thorold, she drove off the road, Highway 58, into a ditch. Two witnesses observed her drive off the road.

[7] Ontario Provincial Police (“O.P.P.”) Constable Massie who arrived on the scene formed reasonable and probable grounds that the respondent was impaired. He arrested her and brought her to the Niagara O.P.P. detachment where she provided two breath samples. The readings were 227 and 221 milligrams of alcohol in 100 milliliters of blood.

Detained in the Cell

[8] Before being placed in the cell, the respondent was advised that the cell was video monitored. She was provided a paper privacy gown and shown how to pull it on over the arms through the arm holes.

[9] The officers pointed out the rear cell camera to the respondent. They pointed out signage above the toilet which said there was video monitoring.

[10] While detained, the respondent twice used the cell toilet. She did not put on the privacy gown. She tore pieces from it to use to wipe herself after toileting.

Two Cameras

[11] The cell was monitored by two cameras. One camera was on the exterior of the cell. Its view was from a higher angle and aimed at the front of the cell through the bars. This camera did not clearly show any private body parts when the respondent used the toilet. The images on that camera were fuzzy and grainy.

[12] The second camera was located in the cell and was pointed directly at the cell toilet which was angled out from the wall. For a person seated on the toilet, it showed their buttocks area (the same court heard an earlier case in R. v. Lacku, 2019 ONCJ 88, which involved this same cell camera viewing and recording the detainee’s penis as he used the toilet).

[13] The videotape of the rear cell camera contained clear images. It showed the respondent’s bare buttocks and legs on the toilet. When she stood, it showed her entire bare backside and the clear pattern of her underwear. The video also showed her cleaning herself after using the toilet with pieces torn from the paper gown.

Camera Monitoring

[14] The camera monitoring may be seen in two locations. It would be seen in the office (which was empty at the time) and the constables’ room. This room with a large-screen television may have had an unknown number of constables doing paperwork and spending time there during their shift.

No Other Option

[15] Detainees in these cells are not permitted to use any other toilet facilities apart from the cell facilities.

Privacy Gown

[16] The respondent described the privacy gown given to her as something similar to a dentist X-ray cover for one’s chest and groin area.

[17] There was no tie to hold it on.

[18] The respondent testified that even had she used the gown her entire backside would be exposed when she stood up. She said it was not a functional item “by any means”.

[19] Officer Massie described the privacy cover as a chest piece that would cover the chest and front portion of a person.

[20] Officer Thourson testified that it was designed to cover the front of a person when using the washroom. He said it could wrap around.

[21] The cells are not provided with toilet paper. The respondent testified that she needed to use the paper privacy cover as toilet paper.

Safety

[22] The two cameras monitored and recorded the respondent while in the cell. The purpose of the cameras was safety of the detainee. Constable Massie testified that he had no concerns that the respondent would harm herself that night.

Reasons for Judgment by the Trial Judge

[23] In an oral ruling, the trial judge stayed both charges on the basis that the police breached the respondent’s privacy rights. He found it was sufficiently serious to warrant exclusion of the evidence (the breath sample certificates) and to stay the Impaired charge on the basis of a temporal connection to the breach.

[24] He acknowledged that detainees have a lower expectation of privacy but that the law requires the police to “afford a measure of dignity and privacy to a person in custody and that context is important.”

[25] He found that the angle of the cell camera monitoring and permanently recording the respondent’s act of urinating, cleaning herself, and showing her full buttocks as she pulled up her underwear and pants was a breach. The camera was the same camera which he found to be a breach two years prior.

[26] The trial judge considered a stay of both charges to be justified because the O.P.P. at this detachment had not changed their policies sufficiently in accordance with the law, despite nine years since they were told to do so.

Was There a Violation of s. 8 of the Charter?

[27] Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to be secure against unreasonable search or seizure.

[28] The purpose of that right is to protect a reasonable expectation of privacy (SCC).

[29] The analysis used to determine whether there has been a s. 8 Charter breach is set out by the Supreme Court of Canada in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 11:

First, the claimant must show that a state act constituted a search or seizure because it invaded his or her reasonable expectation of privacy in the subject matter of the search. Second, the claimant must show that the search or seizure was itself unreasonable. As a general rule, a Charter claimant must prove both the existence of a reasonable expectation of privacy in the relevant subject matter and the unreasonableness of the search or seizure of that subject matter in order to make out a breach of s. 8. [Citations omitted.]

[30] As discussed in the Supreme Court decision of R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 16, for a search to be reasonable it must be authorized by law. The authorizing law must itself be reasonable, and the search must be conducted in a reasonable manner.

[31] Video surveillance to monitor and/or record individuals can amount to a “search” within the meaning of s. 8: R. v. Singh, 2016 ONSC 1144, at para. 20.

[32] The warrantless video recording of an individual using toilet facilities while in police custody amounts to an unreasonable search in violation of s. 8 of the Charter: See Singh at para. 28, citing R. v. Mok, 2012 ONCJ 291, 34 M.V.R. (6th) 116 (Ont. C.J.) at paras. 72-105, affirmed on this issue, 2014 ONSC 64, 59 M.V.R. (6th) 234 (Ont. S.C.), at paras. 48-82.

Did State Conduct Intrude on the Respondent’s Reasonable Expectation of Privacy?

[33] The Crown submitted that the trial judge erred in finding a breach because the police took reasonable steps to provide privacy;

• They advised the cameras monitored the cell;
• They provided a privacy gown; and
• They showed how to put the privacy gown on.

[34] The Crown submitted that these steps have been shown in the caselaw to be sufficient to provide privacy.

[35] The respondent argued that the trial judge took a functional approach and determined that these steps were not enough because of the angle and view of the rear cell camera aimed at the cell toilet.

Was the Search Authorized by Law?

[36] The respondent concedes that the search was authorized by law. They recognize that the police may videotape detainees in cells for safety reasons.

Was the Search Conducted Reasonably?

[37] The Crown submitted that the search was conducted in a reasonable manner for the detainee's safety.

[38] The respondent submitted that the trial judge was justified on the evidence in finding that it was not reasonable in these circumstances.

ANALYSIS OF THE BREACH

[39] The trial judge had evidence before him that:

• the privacy gown was designed to cover the front of the body;
• the privacy gown functionally would not cover the detainee’s backside;
• the privacy gown did not tie in the back;
• no toilet paper was provided;
• the rear cell camera was aimed directly at the toilet and a person’s backside; and
• the rear cell camera was a clear image.

[40] This evidence supports his finding that, “And so, the privacy gown would allow a person to sit on that toilet and go to the washroom. That person would then be seen, in behind the gown, cleaning themselves after they go to washroom. And in certain circumstances, that applies to men as well.”

[41] The trial judge noted that the cell camera “captures the defendant’s naked buttocks in this case. Even if she is fully protected from the front view, it is just the way the camera angles are.”

[42] He further found, “But the fact of the matter is, the camera angle is such that the defendant’s going to the bathroom, urinating, ripping the gown, which is paper, and cleaning herself and then standing up to pull-up her underwear and her pants, fully reveals, in very clear detail, her buttocks. And it fully shows, although I cannot see her vaginal area, it fully shows that she is cleaning herself.”

[43] His conclusion was that it “does not provide her with suitable dignity and privacy.”

Speculation

[44] The Crown submitted that it was speculation on the part of the trial judge to find that the privacy gown would not provide coverage for a detainee sitting on the toilet and cleaning themselves and then pulling up their pants.

[45] In light of the evidence before him that there were no ties and that it covered the front, this reasonably supports his conclusion.

Two Cameras

[46] The trial judge’s focus was the rear cell camera which was angled at the cell toilet.

[47] He referred to his prior decision in Lacku where the detainee was filmed urinating by that rear cell camera in that same cell. The detainee’s penis was clearly viewed.

[48] Evidence before the trial judge was that the other camera facing the front of the cell adequately monitored the respondent’s safety.

[49] The evidence of Constable Massie regarding the rear cell camera was:

• the toilet was installed on an angle and that the camera was pointed at the buttocks area of whoever’s using the toilet;
• if the camera was pixilated in view of the toilet area, it would not prevent officers from observing if the respondent was hurting herself;
• the only reason to not pixilate the camera was to keep a close watch to see if detainees are hiding something within themselves;
• that it would be unusual for a prisoner without a criminal record brought in on an impaired case to secret drugs or weapons in their body cavities; and
• in this case there was no basis for a strip search.

[50] On review in this appeal, this results in a fundamental inconsistency wherein the police seek to say they protect the dignity of detainees when toileting themselves, while having a cell camera monitor and recording those very toileting actions.

[51] There was no error by the trial judge in finding a breach of the respondent’s s. 8 privacy rights.

The “Fix”

[52] As noted by Boswell J. in R. v. Mok, 2014 ONSC 64, 59 MVR (6th) 234 (Ont. S.C.), the “fix” in these cases is relatively minor; a modesty screen to cover the lower part of the body or repositioning the camera could ensure privacy and dignity. Other cases have noted digital masking, pixilation, or blocking specifically of the toilet area of the video view.

Did the Trial Judge Err in Excluding the Breath Samples?

[53] Included in the trial judge’s reasons were his reasons from his prior decision in Lacku wherein he excluded the breath test results.

[54] The three lines of inquiry as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71 for the court to consider before excluding unconstitutionally obtained evidence are:

A) the seriousness of the Charter-infringing state conduct; B) the impact of the breach on the Charter-protected interest of the accused; and C) Society’s interest in the adjudication of the case on its merits.

A) The Seriousness of the Breach

[55] The trial judge stated, “My point is that the O.P.P. at least at the detachment in question, has elected to do nothing in response to the judicial commentary with the result that the genitals of detainees, including this defendant, are routinely monitored and recorded as they use the toilet.”

[56] His conclusion was the seriousness of the breach favoured exclusion of evidence.

B) The Impact of the Breach on the Accused

[57] As set out in McWilliams' Canadian Criminal Evidence, 5th ed., this line of inquiry “examines the breach from the perspective of the accused” (paras. 19-44).

[58] The Crown argued that the impact on the respondent’s interests were minimal as it did not show her genitalia.

[59] The trial judge noted that her naked buttocks were viewed as well as her wiping herself.

[60] As the respondent’s counsel pointed out, this cannot be considered insignificant when the Criminal Code makes it an offence to surreptitiously record a person’s “anal region” as set out in s. 162(1) of the Code.

[61] The respondent testified that on the video “you got to see a bit of a show”. It made her feel embarrassed, humiliated, and it was degrading.

[62] The court has noted the indignity of filming someone while they are wiping themselves.

[63] The Crown submitted that there was no connection between the Charter breach and the taking of the respondent’s breath samples.

[64] Here, the trial judge had the evidence of very intrusive filming of the respondent’s naked buttocks on two occasions, one before the breath samples were taken and one following.

[65] The Supreme Court in R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83 stated, “This court has confirmed that a causal connection is not necessary in order to engage s. 24(2) of the Charter. … [A] temporal connection is in theory sufficient to engage s. 24(2).”

[66] The reasons of the trial judge show that he found a temporal connection between the breach and the evidence of the breath samples and that he favoured exclusion on the second step of the test.

C) Society’s Interest in the Adjudication of the Case on Its Merits

[67] The trial judge noted that the pull towards inclusion of the evidence of the breath samples was particularly strong where the evidence is reliable and critical to the Crown’s case, that in most Over 80 cases the exclusion of the breath tests results would require a finding of state misconduct that is significant or otherwise troubling: Lacku at para. 33.

[68] The trial judge decided that “the Charter-infringing state misconduct occurred against the background of repeated judicial pronouncements; over several years, about the issue in question. As such, it is particularly troubling and trumps the other factors in the Grant analysis”: Lacku at para. 34.

[69] This is a similar conclusion to a more recent decision in R. v. Paterson, 2021 SKCA 13, 71 M.V.R. (7th) 179, at para. 47, the Court of Appeal for Saskatchewan endorsed the trial judge’s conclusion that the police should have taken action to address the privacy concerns their conduct raised:

In the absence of evidence to the contrary, the trial judge concluded that the failure of police forces in Saskatchewan to change their practices following Wildfong and the several decisions dealing with the same issue in Ontario reflected a lack of diligence. This was a reasonable inference considering four years had passed since Wildfong. In the circumstances, she appropriately noted that once the issue was raised, it should have been apparent to the persons responsible for police policies that changes needed to be made and that video recording persons using the washroom could constitute a serious invasion of their privacy and personal integrity.

[70] The Crown submitted that the officers had followed O.P.P. privacy practices and that there was nothing further that they could have done to provide the respondent with privacy.

[71] This is not persuasive as this trial judge and the jurisprudence point to a number of methods to “fix” this issue.

[72] In the respondent’s case, the trial judge noted the severe impairment of the respondent in this case.

[73] The Supreme Court in Grant recognized that s. 24(2)’s focus was societal and aimed at systemic concerns, that s. 24(2) focuses on the broad impact of admission of evidence on the long-term repute of the justice system. The court stated, “Although the seriousness of the charge remains a valid consideration, it must not take on disproportionate significance.” (Paras. 70 and 84).

[74] Read in context with the reasons of the trial judge in his prior decision which involved the same cell camera, there was no error in excluding the evidence of the breath samples in light of the s. 8 breach.

REMEDY

Did the Trial Judge Err in Staying the Over 80 And Impaired Charges?

[75] The Supreme Court case of R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, discussed the rare cases in which a stay would be appropriate at paras. 30-32 and 35 [citations omitted]:

[30] A stay of proceedings is the most drastic remedy a criminal court can order. It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

[31] Nonetheless, this Court has recognized that there are rare occasions — “the clearest of cases” — when a stay of proceedings for an abuse of process will be warranted. These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

[32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through conduct of the trial, or by its outcome”; (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

[35] [W]hen the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[76] At para. 41, the court stated,

Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.

[77] At para. 44, the court noted that, in the residual category, cases warranting a stay of proceedings will be “exceptional” and “very rare”.

[78] Finally, at para. 48, the court noted the applicable standard of review when an appellate court is examining the exercise of a Charter remedy:

The standard of review for a remedy ordered under s. 24(1) of the Charter is well established. Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice” (Bellusci, at para. 19; Regan, at para. 117; Tobiass, at para. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 15 and 51).

[79] The Crown submitted that the trial judge did not apply the entire test for staying a proceeding either in this decision or in his reasons in Lacku. They submit that he focused his decision on the third step of the test, and further, that he failed to consider alternate remedies.

[80] It was clear however that the trial judge’s decisions were grounded in the decisions of Mok at the trial level, at Superior Court summary conviction appeal level, and as affirmed by the Court of Appeal.

[81] Justice Boswell of the Superior Court in Mok wrote in 2014 at para. 81,

I agree with the trial judge’s conclusion that the monitoring and videotaping of detainees using the cell toilet by police officers of either gender is a “highly intrusive invasion of privacy”.

[82] The court at that time suggested a limited modesty screen to block the camera’s view of the toilet (para. 80) or repositioning the video camera (para. 98).

[83] Justice Boswell stated that a stay was not an appropriate remedy in that case as it was a “case of first instance” and that the police ought to be afforded the opportunity to effect appropriate changes. (Paras. 93 and 99).

[84] By 2015, the Court of Appeal in R. v. Mok, 2015 ONCA 608, 82 M.V.R. (6th) 1 (Ont. C.A.), at para. 5, was provided assurances that steps had been taken by police “to ensure that prisoners’ privacy while using the toilet is now protected from both viewing and videotaping”.

[85] Nonetheless, three years later in 2018, Mr. Lacku was viewed and videotaped by the rear cell camera angled at the toilet at this O.P.P. Niagara detachment.

[86] The trial judge in 2019 found that this breached Mr. Lacku’s privacy rights and that this O.P.P. detachment had “elected to do nothing in response to the judicial commentary with the result that the genitals of detainees…are routinely monitored and recorded as they use the toilet.” [Emphasis added.] Lacku at para. 29.

[87] The trial judge then saw that in 2020 the situation was unchanged.

Alternate Remedies

[88] The Crown submitted that the trial judge failed to consider alternate remedies. They submit that he had found the breath samples to be inadmissible. When the breach was related to an Impaired charge and an Over 80 charge the Crown submitted that another remedy could be a reduced sentence on the Impaired charge.

[89] The Crown referred to the recent case of R. v. Assefa, 2022 ONCJ 185, at para. 51, where the court denied a stay as it was not “the clearest of cases where the misconduct of the police is ‘so egregious that the mere fact of going forward in the light of it will be offensive’”.

[90] The court made this conclusion by considering the Supreme Court’s direction on residual stays. At para. 47, Silverstein J. wrote, “Mr. Assefa’s case falls into the second, or residual category. In Canada (Minister of Citizenship and Immigration) v. Tobiass [1997] 3 S.C.R. 39, at para. 91, the Supreme Court described this category as follows:

For a stay of proceedings to be appropriate in a case falling into residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well – society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.” [Emphasis added.]

[91] This trial judge had previously stayed the Over 80 charges because of this O.P.P. detachment’s use of this rear cell camera aimed at this cell toilet.

[92] This detachment ignored this condemnation of their misconduct and continued the behaviour.

[93] It is apparent that the stay of Mr. Lacku’s Over 80 charges did not communicate a sufficiently strong message such that action would be taken regarding that camera. The further step of staying the respondent’s Impaired charge as well was reasonably required.

[94] This court on the appeal was not given any assurances that:

• the rear cell camera angle had been since altered;
• the rear cell camera had been pixilated/blocked/blurred in the toilet area; or
• a modesty screen of the toilet functions had been provided.

[95] It is apparent that the viewing and videotaping of detainees in that cell using the toilet and cleaning themselves continues to this day.

[96] As recently stated by Libman J. of the Ontario Court of Justice in R. v. Simpson, 2022 ONCJ 262, at para. 104, “A stay of proceedings is required to prevent the implementation of a police policy in a way that continues to be fundamentally flawed. It is constitutionally offensive because no real effort is being made to address the underlying dignity concerns of detainees that the policy is designed to address.”

[97] Although provided with a gown which would cover her front, the trial judge found on the evidence that, even if used, the rear cell camera would be viewing and recording the respondent toileting herself, wiping herself and pulling up her pants.

[98] Although his reasons are sparse, they may be read in context of the jurisprudence to which he refers and the prior decision he gave in Lacku, which involved the same cell and same rear camera at the same O.P.P. detachment. They support the finding that the breach was egregious, that the police continued the misconduct, and that a stay of both charges was reasonably required to communicate the need for change.

CONCLUSION

[99] For these reasons, the appeal is dismissed.

M.J. DONOHUE J. Released: May 19, 2023