Court File and Parties
COURT FILE NO.: CR-21-103-AP DATE: 2023 06 27
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING Patrick Quilty, for the Appellant Appellant
- and -
ANDREA WILCZEWSKI Adam Little, for the Respondent Respondent
HEARD: December 14, 15, 2022, by video conference in Milton
REASONS FOR JUDGMENT
[On appeal from the acquittal entered by the Hon. Alan D. Cooper of the Ontario Court of Justice dated November 23, 2021, at Burlington]
F. DAWSON J.
[1] The Crown appeals from the respondent’s acquittal on a charge that on April 17, 2019 she had a blood alcohol level exceeding 80 milligrams of alcohol in 100 millilitres of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1) (b) of the Criminal Code.
[2] The acquittal flowed from the trial judge’s exclusion of the Intoxilizer breath testing results essential to a conviction based on his determination that the respondent’s Charter rights had been breached in two respects. First, the trial judge found that the respondent was arbitrarily detained when the investigating police officer placed her in the rear of his police vehicle while he had her provide a sample of her breath into an approved screening device (ASD). The respondent registered a fail on that test, as a result of which she was arrested and taken to a police detachment where two Intoxilizer tests were administered. Both showed the respondent had a blood alcohol concentration over the legal limit. Second, the trial judge found that the respondent’s s. 7 and s. 8 Charter rights were violated when she was video monitored and recorded while using the toilet in the cell she was placed in at the police detachment following the breath tests.
[3] In determining whether to exclude the evidence under s. 24(2) of the Charter, the trial judge held that the s. 9 violation would not favour exclusion on its own. Concerning the s. 7 and s. 8 violation, the trial judge concluded that breach was so serious that it warranted exclusion by itself.
[4] The appellant submits that the trial judge erred in finding that any Charter violations occurred. With respect to the s. 9 breach, the appellant submits that an investigating officer is unconstrained in determining where to administer an ASD test following a lawful demand pursuant to s. 320.27 of the Criminal Code. With respect to the s. 7 and s. 8 breach, the appellant submits that the police are entitled to use video surveillance to record the cell areas of police stations, including toilets, particularly where they have taken steps to protect the privacy interests of detainees while using the toilet. The appellant submits that cases holding otherwise have been wrongly decided.
[5] The appellant further submits that the trial judge erred in his s. 24(2) analysis, both in deciding that the Intoxilizer tests were “obtained in a manner” that violated the Charter, and in his assessment and balancing of the three avenues of inquiry mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.
Factual Background
[6] The respondent was driving westbound on the Queen Elizabeth Way (QEW) at 10:35 p.m. on April 17, 2019 when she came alongside the vehicle of Ontario Provincial Police (OPP) officer Tyson Dykman. The officer’s attention was attracted to the respondent when she proceeded to pass him. The officer observed that the wheels of the respondent’s vehicle drifted towards the high occupancy vehicle lane to her left several times.
[7] Officer Dykman signalled the respondent to stop her vehicle. He intended to check the respondent’s sobriety. However, after the stop the officer only spoke to the respondent about her driving behaviour. The officer did not ask the respondent whether she had consumed alcohol. He then demanded that the respondent provide a breath sample into an ASD and that she accompany him for that purpose. The officer testified that he did not have a reasonable suspicion that the respondent had alcohol in her system when he made the ASD demand. He testified that he had an ASD with him and that he relied upon the “mandatory” ASD breath test provision found in s. 320.27(2) of the Criminal Code.
[8] Officer Dykman took the respondent to his police vehicle to administer the ASD test. The respondent was seated in the rear of the police vehicle with the door open when she performed the test. The officer agreed that he had no reason for placing the respondent in the rear seat of his police vehicle to administer the test, other than it was his normal practice to do so at the time. Officer Dykman testified that he had since changed his practice because of instructions he received from the OPP. His current practice is to conduct ASD tests with the subject sitting in their own vehicle unless he determines that it is reasonably necessary to do the test elsewhere.
[9] Officer Dykman readily agreed that there was no such reasonable necessity in this case. There was no evidence of traffic, safety or other concerns which would support a conclusion of reasonable necessity. The trial judge relied upon his factual finding in this regard to support his conclusion that s. 9 of the Charter was violated when the respondent was placed in the police vehicle for the ASD test.
[10] When the respondent failed the ASD test she was arrested for the offence charged, provided with her rights and transported to the Burlington Detachment of the OPP. Following the booking procedure the respondent was placed in a cell. She was removed from her cell for Intoxilizer testing by Officer Crossfield. The first test was at 11:38 p.m. The second test was at 12:03 p.m. The test results were 160 milligrams of alcohol in 100 millilitres of blood. The respondent was returned to her cell between the two breath tests and after the second test.
[11] During the booking procedure and when she was initially placed in her cell the respondent was advised by Officer Dykman that all areas of the police detachment were monitored and recorded by video cameras. This included the toilet area of the cell. There was also signage posted to that effect. The officer pointed out the locations of the video cameras to the respondent. Officer Dykman also advised the respondent that a paper medical privacy gown was available to her to assist in providing privacy should she wish to use the toilet.
[12] Contrary to Officer Dykman’s initial recollection, he did not provide the respondent with a privacy gown or any instructions on how to use it. As the trial judge found when he accepted the respondent’s evidence on the Charter voir dire, she had to ask for a privacy gown later when she needed to use the toilet. The paper gown was provided by the breath technician, Officer Crossfield, very shortly after the respondent was returned to her cell at 12:07 a.m., following her second breath test. Officer Crossfield can be seen providing the gown on the video played at trial. There is no audio. The trial judge accepted the respondent’s testimony on the voir dire that she received no instruction on the gown’s use and that after examining the gown, which she can be seen doing on the video, she could not figure out how she could use the gown to protect her privacy while using the toilet hygienically.
[13] Everything I have said about the facts so far can be found in the trial judge’s reasons at one place or another and form part of his findings of fact.
[14] At this point I pause to make some observations based on the evidence which was before the trial judge and about which there is no controversy. The cell the respondent was placed in does not have a solid door. It has bars. Consequently, anyone in the hallway outside the cell could look in and have a view of the respondent using the toilet. This is shown on the video which was played at the trial. I have been provided with screenshots from that video with the consent of the parties as, due to technical reasons, the video itself could not be transmitted to me electronically for the hearing of the appeal, which was by video link.
[15] The screenshots from the video show that the cell is quite small. A combination stainless steel sink and toilet juts out into the cell across from what appears to be a concrete bench or bed. There is no toilet seat. Therefore, unless a female detainee was willing to sit on the stainless steel itself, they would be required to squat over the toilet to urinate. This would make it somewhat more difficult to utilize the paper gown while managing clothing and other aspects of using the toilet.
[16] Significantly, the screenshots demonstrate that the camera must be located on the ceiling or high on the wall near the back corner of the cell, looking down from behind and to the side of anyone using the toilet. In order words, there is no privacy at the front of the cell due to the door made of bars and the camera is at the back of the cell. In addition, the toilet bowl one would have to squat over juts out from the front of the fixture holding the sink at an angle. It is very difficult see how the paper gown, which is open at the back, could be effective in protecting the privacy of a female urinating because the video camera in this cell is behind the toilet.
[17] While not all these features of the evidence were mentioned specifically by the trial judge in his reasons, the trial judge made several references to the video played at trial and all aspects of the video were before him as an uncontroversial representation of the events. He did specifically rely on the fact that the privacy gown was open at the back in reaching his conclusion that ss. 7 and 8 of the Charter were breached.
[18] I have already mentioned that the trial judge found the respondent to be a credible and reliable witness on the Charter voir dire. She testified that after receiving the paper privacy gown she opened it and held it up to examine it but could not understand how it would assist her. This can be seen on the video. The respondent, who was wearing tight fitting pants, proceeded to push her pants down and urinate while squatting over the toilet without using the gown. She said she tried to protect her front from the view of anyone who might come to the front area of the cell. She hurried. The video depicts her squatting over the toilet with her buttocks exposed. The camera is obviously behind her and above her to her right side as she squats over the toilet.
[19] At para. 19 of his reasons, the trial judge said of the privacy gown: “The officer agreed that one’s arms are put through arm holes and it is closed at the front but not at the back, so that depending on where the camera was located, one’s private parts could be exposed when trying to use the toilet.”
[20] The evidence supports the following additional factual findings made by the trial judge. There were three male officers and no female officers in the detachment at the time. The video of the cell is displayed on a monitor in another area of the detachment. While no one was assigned to maintain observation of the monitor, what was displayed on it could be seen by anyone near the monitor. However, the video recordings of what was captured by the camera were only accessible to two designated persons at the detachment. The videos were stored on a computer and protected by a password. Copies of the videos could be requested and obtained for proper purposes, such as for disclosure to the defence and use in court.
[21] In his reasons the trial judge quoted extensively from the testimony of the respondent regarding her efforts to urinate without revealing much. He found that she is a very private person who was embarrassed and upset by being monitored and recorded while using the toilet.
[22] Evidence about the reason for the video surveillance and recording of the cell block and cell areas of OPP detachments was provided by the Acting Manager of the Information Management Section of the Business Management Bureau of the OPP, Lori MacIntyre. Ms. MacIntyre is a civilian employee of the OPP. Ms. MacIntyre testified that video surveillance and recording was introduced at OPP detachments province-wide in 2009 in response to the recommendations of four coroner’s juries pursuant to inquests held regarding deaths of prisoners in OPP custody.
[23] Ms. MacIntyre testified that in 2014 additional measures were introduced to respond to concerns about the privacy of detainees while using the toilet which were set out in the judgment of Boswell J. in R. v. Mok, 2014 ONSC 64 (S.C.J.), leave to appeal refused, 2015 ONCA 608. The additional measures included putting up signs and instituting a requirement that officers advise detainees of the video monitoring and recording. In addition, paper medical gowns were distributed to all detachments for use as privacy covers for prisoners while using the toilet. An OPP order, exhibit 3 at trial, requires, under the heading “Communication Barrier”, that officers are to ensure that prisoners are aware of the availability of “privacy covers” and how they are designed to protect privacy. If it is questionable whether the prisoner understands, then a demonstration of the use of the cover is mandated.
[24] Ms. MacIntyre testified in cross-examination that she was aware that other police forces had taken a different approach to protecting detainee’s privacy while using the toilet. Some police forces pixelate or grey out parts of the camera’s view, to avoid capturing images of detainees using the toilet. Ms. MacIntyre testified the OPP is aware of ongoing court cases where the privacy issue is being raised but said that the OPP has not engaged in re-evaluating its response to the toilet privacy issue. Ms. MacIntyre’s evidence was accepted and relied upon by the trial judge.
Resolution of the Issues on the Appeal
Section 9 – Arbitrary Detention
[25] Here the question is whether the trial judge erred in ruling that the respondent was arbitrarily detained in violation of s. 9 of the Charter when she was placed in the rear of officer Dykman’s vehicle for administration of the ASD test following a demand pursuant to s. 320.27(2) of the Criminal Code. The trial judge concluded that she was, based on Officer Dykman’s agreement that it was not reasonably necessary for him to conduct the test in his cruiser and that there was no reason the test could not have been done in the respondent’s vehicle or at the roadside.
[26] At trial Crown counsel argued that testing in the police vehicle was appropriate for safety reasons as the respondent had been stopped on a major highway. However, there was no evidence of any traffic or safety concern. The Crown also submitted that a demand for an ASD breath sample pursuant to either s. 320.27(1) (b) or s. 320.27(2) of the Criminal Code includes both that the subject of the demand immediately provide a sample and that the subject accompany the peace officer for that purpose. The Crown submitted that was sufficient authority for a brief detention in a police vehicle for ASD testing.
[27] I observe that a motorist who is the subject of a lawful ASD demand is temporarily detained solely for the purpose of completing the screening test, which can often be safely and effectively performed while the motorist remains in their vehicle or stands at the roadside. Placing the motorist in the rear of a police vehicle, even with the door open, has a further negative impact on an individual’s liberty interests. For members of some minority communities, those impacts may be seen as particularly significant.
[28] In rejecting the trial Crown’s position and finding a s. 9 violation the trial judge relied on the decision of Schreck J., then a judge of the Ontario Court of Justice, in R. v. Cole, 2017 ONCJ 83, [2017] O.J. No. 977 (O.C.J.). In Cole the Crown conceded that, absent reasonable necessity, securing a driver in a police vehicle pursuant to a lawful ASD demand violated s. 9 of the Charter. Schreck J. made a point of writing that the Crown was correct to make the concession, citing R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 39. In Cole, at para. 35, Schreck J. cited several other decisions when Aucoin had been applied in the context of drivers subject to ASD demands being placed in the rear of a police vehicle for the testing. The cases so cited were R. v. Azarnush, [2016] O.J. No. 3248 (O.C.J.), at paras. 40-42; R. v. Ng, [2013] O.J. No. 2823 (O.C.J.), at paras. 6-11; R. v. Singh, [2015] O.J. No. 5922 (O.C.J.), at paras. 21-28; and R. v. Schwab, (2015), 22 C.R. (7th) 36 (Alta. P.C.) at paras. 45-49.
[29] I will discuss Aucoin in more detail below. It is sufficient to say at this point that Aucoin dealt with a situation in which an individual, who was temporarily detained pursuant to a provincial highway traffic statute, was being placed into the rear of a police vehicle while the investigating officer prepared a ticket charging a regulatory offence. Moldaver J. held that, because placing the detainee in the police vehicle had a further negative impact on the detainee’s liberty interests, that action had to be justified on a standard of reasonable necessity to avoid becoming an arbitrary detention in contravention of s. 9 of the Charter.
[30] In the present case the trial judge noted, as was the case in Cole and the other cases cited therein, that the respondent was not under arrest when she was placed into the police vehicle in response to the ASD demand. He also accepted the submission of defence counsel at trial that there was no evidence of any safety concern. The trial judge then held, at para. 57:
Given the reasons for Moldaver J. in R. v. Aucoin [supra], section 320.27 (b) [sic] of the Criminal Code would not justify having the defendant accompany him into the rear of the cruiser for testing unless it was reasonably necessary, which it was not on the facts of our case.
[31] The appellant and the respondent agree on the approach to determining whether a detention is arbitrary. As held in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 56, the “approach mirrors the framework developed for assessing unreasonable searches and seizures under s. 8 of the Charter”. For a detention to be non-arbitrary it must be authorized by law, the law authorizing the detention must be non-arbitrary and the detention must be carried out in a reasonable fashion. The submissions of the parties on this appeal are directed primarily to the third requirement.
[32] There are two prongs to the appellant’s submissions on the arbitrary detention issue in this count. The first is that Cole and the cases cited by Schreck J. in Cole were all decided under the previous legislative regime dealing with drinking and driving offences, which has been repealed and replaced by a new regime. The amendments, which were brought about by S.C., 2018, c. 41 (Bill-46) came into effect on December 18, 2018. Prior to those amendments, a demand for an ASD test was governed by s. 254(2) (b) of the Criminal Code, which required the subject of the demand:
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [Emphasis added.]
The appellant points to the words “if necessary” appearing in the since repealed section and notes that those words were not included when s. 320.27(1)(b) and s. 320.27(2) were enacted.
[33] Two ASD demand provisions appear in the amended statutory regime. The first, found in s. 320.27(1) (b), like the repealed s. 254(2) (b), authorizes a demand in circumstances where a peace officer forms a reasonable suspicion that the subject has alcohol in their body. I again observe that in the present case the officer testified that he did not have such a reasonable suspicion at the time he made the ASD demand. Rather, as he had an ASD with him, he relied on the new mandatory demand provision found in s. 320.27(2) of the Criminal Code. It reads as follows:
If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officers opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
As mentioned, there is no express precondition of necessity in respect of the requirement for a driver to accompany the officer for the purpose of ASD testing.
[34] I pause to note that the trial judge referred to the demand provided for in “section 320.27(b) [sic]”. Nothing turns on this as the demands described in s. 320.27(1) (b) and s. 320.27(2) are identical in all significant respects.
[35] The appellant submits that by removing the words “if necessary” from the ASD demand provision, Parliament must have intended to confer a broader discretion on police officers to determine where to administer ASD tests. The submission continues that effect must be given to this change by the courts, rendering Cole and cases to similar effect inapplicable to cases to be decided under s. 320.27 of the Criminal Code.
[36] The second prong of the appellant’s submission is that the trial judge erred in relying upon Aucoin, which the appellant submits “deals with an entirely different detention power than the authority exercised by the officer in this case” and which was primarily concerned with the validity of a search. The appellant submits that the “reasonable necessity” requirement for detention discussed in Aucoin is restricted to detentions based on the common law police power to detain in contexts involving a search. The appellant submits that the reasonable necessity requirement described in Aucoin is inapplicable in the present case, where the ASD demand authorized by s. 320.27 of the Criminal Code provided all the authority Officer Dykman required.
[37] Pulling the two prongs of its argument together, the appellant submits that the trial judge erred in relying upon the officer’s testimony that there was no reasonable necessity to perform the ASD test in his police vehicle as a foundation for his conclusion that the respondent was arbitrarily detained. The appellant submits that because the ASD demand provisions in s. 320.27 of the Criminal Code confer a broad discretion on the police officer to determine where to administer the test, in the absence of an affirmative demonstration that the officer’s determination was unreasonable, arbitrary detention will not be established. The appellant submits the trial judge erred in finding otherwise.
[38] For the reasons which follow I am unable to accept that Aucoin is inapplicable or that the slight change in the wording of the ASD demand provisions brought about by the 2018 amendments has the impact the appellant submits.
[39] If I am wrong regarding the application of Aucoin, and the test is simple reasonableness, as suggested by the appellant, I would add that due to the complete absence of any evidence to support placing the respondent in the cruiser, the increased negative impact on her liberty interest remains entirely arbitrary under that test as well.
[40] Before examining the judgment in Aucoin, I point out that Aucoin was decided in 2012, well before the amendments in question. If, as I conclude, Aucoin is applicable, there would be no need for Parliament to specify a necessity requirement in the ASD demand provisions concerning the driver accompanying the police officer for the purpose of administering the ASD test. Parliament must be taken as having understood the law as developed in Aucoin. The reference to necessity found in the repealed provision may well have been removed from the new provisions as it was no longer required in view of Aucoin.
[41] I turn to the applicability of Aucoin.
[42] In Aucoin the accused was stopped by a police officer who noticed that the licence plate on the vehicle the accused was driving was registered to a different vehicle, a regulatory offence under provincial legislation. Upon stopping the accused the investigating officer then noticed alcohol on the accused’s breath. Based on that observation the officer made a demand for an ASD test.
[43] The ASD test result showed that the accused did not have a level of alcohol in his system high enough to trigger an arrest under the Criminal Code. However, it did show that the accused had some alcohol in his system. As the accused was a newly licenced driver, applicable provincial legislation prohibited him from having any amount of alcohol in his system while operating a motor vehicle. The investigating officer decided to impound the accused’s vehicle and to issue him a ticket under the provincial legislation.
[44] At that point the police officer in Aucoin decided to hold the accused in his police vehicle while he completed the required paperwork. The officer was concerned that the accused might walk off into a nearby crowd celebrating the local apple blossom festival. As the accused’s vehicle was to be impounded and the accused had alcohol in his system, the officer did not consider it appropriate to permit the accused to wait in his own vehicle.
[45] The officer decided that a pat-down search was required for officer safety prior to placing the accused in his police vehicle. That search led to the officer finding cocaine in the accused’s pocket. The accused was charged with possession of cocaine for the purpose of trafficking. At his trial for that offence the accused applied to exclude the evidence. The accused submitted that he was subjected to an unreasonable search in breach of s. 8 of the Charter on the basis that the officer’s decision to hold him in the police vehicle pending the writing of the ticket was unlawful and constituted an arbitrary detention in breach of s. 9 of the Charter.
[46] The trial judge determined that there was no Charter violation on the basis that, in the circumstances, the investigating officer acted reasonably in deciding to place the accused in his police vehicle while writing the ticket and that the pat down search was also reasonable in the circumstances. A majority of the Nova Scotia Court of Appeal (Hamilton and Fichoud J.J.A.) upheld the trial judge’s decision. The case proceeded to the Supreme Court of Canada based on the dissent of Beveridge J.A.
[47] In the Supreme Court of Canada, Moldaver J. concluded that both the trial judge and the majority in the Court of Appeal erred because the trial judge applied the wrong test. Moldaver J. concluded that the fact that the officer acted reasonably in deciding to place the accused in his vehicle was insufficient to justify the search which led to finding the drugs. The lawfulness of the search depended on the lawfulness of the detention in the police vehicle. Moldaver J. concluded that placing the accused in the police vehicle pending completion of the ticket would only be lawful if it was “reasonably necessary in the circumstances”. He explained why that test was not met on the facts. He found that the pat-down search was unreasonable because it was based on an unlawful and arbitrary detention.
[48] The appellant submits that the focus in Aucoin was on the search, a context which is not present in our case. The appellant cites the decisions of Duncan J. in R. v. Chandarh, [2018] O.J. No. 7499 (O.C.J.) and R. v. Mahipaul, [2018] O.J. No. 2688 (O.C.J.) for the proposition that Aucoin is limited “to its context or similar context, and/or to situations where placement in the police car will trigger a search that is not otherwise authorized”: Chandarh, at para. 13, citing Mahipaul, at para. 20. In Mahipaul, at para. 20, Duncan J. expressed his opinion that Aucoin should not be viewed as supporting a conclusion that it is per se unlawful to place a detainee in the back of a police car in an ASD situation “where the officer is specifically authorized to require the detainee to accompany him for the purpose of conducting the test.” At para. 14 of Chandarh, Duncan J. opined that it is only where putting the detainee in the police car permitted the police to do something they were not otherwise permitted to do that the reasonable necessity issue is reached.
[49] I observe that in Chandarh, Duncan J.’s comments are obiter, as he went on at para. 15 to find that there were factual circumstances which met the reasonable necessity standard, justifying the officer’s decision to place the accused in a police vehicle for administration of the ASD test. I also observe that in Chandarh, Duncan J. recognized that several of his colleagues, including Schreck J. in Cole, held a different view.
[50] As indicated previously, the appellant also submits that Aucoin should be limited in application to circumstances in which the police are relying on a common law power of detention and not a statutory power of detention, such as that found in s. 320.27 of the Code.
[51] I will deal with each of the appellant’s submissions in turn.
[52] I am unable to accept the submission, supported by the two decisions of Duncan J. which I have referred to, that the absence of a search context going beyond the administration of the ASD test, renders Aucoin inapplicable. While the ultimate question in Aucoin was the reasonableness of the pat-down search leading to the discovery of the cocaine, the critical preliminary issue was whether the detention leading to the search was unlawful and, therefore, arbitrary. This appears most clearly in footnote 2, which is found in para. 39 of Moldaver J.’s judgment, where he refers to the context of the case as important. Footnote 2, tied to that issue, reads as follows:
- Of itself, the increased restriction on the appellant’s liberty interests by placing him in the rear of the police cruiser required a standard of reasonable necessity. On these facts, the accompanying pat-down search, which affected his privacy interests, amounted to an aggravating factor. [Emphasis added.]
In my respectful view, this is a complete answer to the contention that something more than an increased level of detention is necessary to trigger the reasonable necessity requirement discussed in Aucoin.
[53] Nor, in my view, is the fact that the increased restriction on the accused’s liberty interest in Aucoin flowed from a common law power determinative. It seems to me that it was the increased restriction on the liberty interests of the accused that was the focus of the Court’s attention in Aucoin, not the parameters of the common law power to detain, which is mentioned only once, at para. 36 of the judgment. In Aucoin Moldaver J. noted that the accused was detained pursuant to his contraventions of a provincial statute: paras. 32-33. While the detention was part of an investigation, it was not an investigative detention of the sort discussed in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. At para. 30 of Aucoin, Moldaver J. emphasized that securing the accused in the police cruiser “fundamentally altered the nature of his ongoing detention”. The same thing can be said in the present case. As in the present case there was no doubt that the accused in Aucoin was lawfully detained prior to the increase in the level of his detention: paras. 32-33. As noted by Moldaver J., at para. 34, the problem in Aucoin arose “from the shift in the nature and extent of the appellant’s detention”, which “carried with it increased restriction on the appellant’s liberty interests…” At para. 35, Moldaver J. expressed that the case did not turn on whether the police officer had the authority to detain the appellant in the rear of the police cruiser, but on whether the officer “was justified in exercising it as he did in the circumstances of this case” (emphasis in original). The same can be said in the present case.
[54] At para. 37, Moldaver J. said that it was “the adverse impact the decision to secure the appellant in the rear of the cruiser would have on the liberty and privacy interests” of the accused that led him to the conclusion that a more stringent test than the simple reasonableness test applied by the courts below was required. He then adopted the test of reasonable necessity as the appropriate test. The accused was lawfully detained pursuant to two violations of a provincial statute pending receipt of the issuance of a ticket, yet the increase in the level of his detention, which negatively impacted his liberty interests, required justification on the reasonable necessity standard.
[55] There are strong parallels between the circumstances in Aucoin and the circumstances of the present case. In this case the trial judge found as a fact, based on the uncontradicted evidence of the investigating officer, that there was no reason at all, let alone one which could meet the standard of reasonable necessity, to justify placing the respondent in his police vehicle to achieve the purpose of the respondent’s initial detention, the obtaining of a suitable breath sample for testing by means of an ASD. Placing the respondent in the rear of the police vehicle significantly increased the impact on her liberty interests beyond what was reasonably necessary to achieve the purpose of her detention. It must be remembered that members of the public stopped while operating a motor vehicle for mandatory ASD testing are not under arrest and may not even be subject to a reasonable suspicion at the time an ASD demand is made.
[56] In my view, Aucoin requires justification on a standard of reasonable necessity for placing a detainee in a police vehicle to administer an ASD test. That test is not one which will be difficult to meet, provided there is evidence of some circumstance which would make it reasonably necessary to place the motorist in the police vehicle to administer the test effectively and expeditiously. As there was no such evidence in this case the trial judge was correct in finding that the respondent was arbitrarily detained in contravention of s. 9. of the Charter.
[57] In addition, even if I am wrong and Aucoin is not applicable, the officer’s decision to further restrict the respondent’s liberty interest would still have to be reasonable. The appellant concedes that. Based on the testimony of the police officer there was no basis at all for administering the ASD test in the rear seat of his police vehicle, even on a simple reasonableness standard, the increased impact on the respondent’s liberty interests that flowed from his doing so constituted an arbitrary detention.
Sections 7 and 8 of The Charter
[58] The issue is whether the trial judge erred in determining that the respondent’s right to be free from unreasonable search and seizure, as protected by s. 8 of the Charter, and/or her right to be deprived of her security of the person except in accordance with the principles of fundamental justice, as protected by s. 7 of the Charter, were violated by the police video monitoring and recording her using the toilet while she was in police custody. At trial and on the appeal the focus was on s. 8 of the Charter. The trial judge added at the end of his reasons for finding a s. 8 violation that the same considerations led him to conclude that s. 7 of the Charter was also violated. In my view the matter can be fully dealt with under s. 8 of the Charter. If there is no s. 8 violation, there is no violation of s. 7. In the circumstances the converse is also true.
[59] The trial judge made several factual findings relevant to his s. 8 decision. He found that the respondent’s buttocks were clearly exposed to the camera as she used the toilet. Use of the privacy gown would have made no difference as it was open at the back. He found that it was the breath technician, not Officer Dykman who gave the respondent the privacy cover referred to in Ms. MacIntyre’s evidence and in OPP orders. He found that the respondent received no explanation or demonstration of how to use the privacy gown. He found that the respondent gave credible and trustworthy evidence. He found that the respondent was a very private person, that she did not know how to use the gown, could not see how it would protect her privacy and did not believe she could use the gown while using the toilet in a hygienic manner. He found that the respondent’s comprehension was not affected by the consumption of alcohol.
[60] In terms of factual matters, the trial judge did misapprehend the evidence in one respect by stating, at para. 60 of his reasons, that Lori Macintyre testified that a uniformed officer or guard was to ensure that every prisoner was aware of the privacy cover, how it is designed to protect privacy, and to demonstrate its use if the prisoner’s understanding is questionable. This evidence was not given by Ms. MacIntyre but is found in an OPP order introduced through Ms. MacIntyre and marked as an exhibit at trial. As the trial judge did not misapprehend the nature of the evidence but only its source, this error is of no significance. I also observe that the trial judge correctly identified the source of this evidence earlier, at para. 23 of his reasons.
[61] The trial judge held that the respondent had a reasonable expectation of privacy when using the toilet. Although he did not refer to any of the decided cases in reaching his conclusion, he titled the section of his reasons dealing with ss. 7 and 8 of the Charter “The Mok Issue Concerning Video Monitoring of Use of Cell Toilet”. This is an obvious reference to the leading case of R. v. Mok, 2014 ONSC 64, leave to appeal denied, 2015 ONCA 608. That case was before the trial judge.
[62] In Mok Boswell J., after a thorough analysis on a summary conviction appeal, explained that while detainees at a police station have a reduced expectation of privacy they nonetheless have a reasonable expectation of privacy while using the toilet. He also upheld the decision at trial in that case that, in the circumstances of that case, video monitoring and recording of the respondent detainee constituted a breach of s. 8 of the Charter.
[63] In reaching his decision the trial judge mentioned that the cell camera was not live monitored and that the video recordings from the camera could only be accessed by two designated persons working at the detachment. He observed, however, that it would be possible to create a permanent record available for distribution by filming the station monitor with a cell phone. He also mentioned that the OPP have no plans to electronically pixelate or black out the cell toilet area as some other police forces have done, so that images of prisoners using the toilet cannot be seen or recorded.
[64] Finally, the trial judge found that what occurred amounted to a search. As it was a warrantless search, the onus was on the Crown to establish on a balance of probabilities that the search was reasonable. As the Crown had failed to discharge that burden, he found the search to be unreasonable and a violation of s. 8 of the Charter.
[65] The appellant contends that the trial judge erred in finding a s. 8 breach for several reasons. The appellant’s first submission is that, despite several decisions in this court to the contrary, detainees in police custody have no reasonable expectation of privacy when using the toilet. Second, and in the alternative, the appellant submits that video monitoring and recording of the toilet area of a cell does not violate a reasonable expectation of privacy where the police take steps to provide privacy, such as by providing a privacy gown as in this case. This submission has several parts to it. I will deal with each submission in turn.
[66] Regarding its first submission, the appellant acknowledges that multiple superior court decisions have found that the police intrude on a reasonable expectation of privacy when they video monitor and record a detainee using the toilet. These cases include Mok; R. v. Walker, 2020 ONSC 2139, at paras. 31-87; R. v. Rowan, 2019 ONSC 7099; at paras. 19-29; R. v. Singh, 2016 ONSC 1144, at paras. 23-30; R. v. Noel, 2015 ONSC 2140, at paras. 28-42. The appellant recognizes that, applying the principle of horizontal stare decisis most recently discussed in R. v. Sullivan, 2022 SCC 19, 413 C.C.C. (3d) 447, it is likely that I will follow those cases. Nonetheless, the appellant persists in its first submission on the basis that, for various reasons, the prior decisions of this court are all wrongly decided.
[67] In Sullivan, at para. 75, Kasirer J. on behalf of the Court, held:
…Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.
[68] The appellant has not shown that any of these three narrow circumstances apply in this case. That being so, Mok and the other judgments referred to have determined this issue at this court level. While it is unnecessary for me to say so, I agree with the analysis on this issue undertaken by my colleagues. It follows that I reject the appellant’s first submission.
[69] Before leaving this submission, however, I will deal briefly with one of the appellant’s arguments. The appellant says these cases are wrongly decided because they failed to consider the decision in Weatherall v. Canada (Attorney General), 1993 SCC 112, [1993] 2 S.C.R. 872, [1993] 3 S.C.J. No. 81. In that case, at para. 5, the Supreme Court of Canada dismissed a s. 8 Charter challenge based on female correctional officers conducting visual inspections of male prisoner’s cells, including at times when the male prisoners may have been using the toilet. At para. 5, La Forest J. wrote:
Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play; nor is s. 7 implicated.
[70] In my view, Weatherall is distinguishable on its facts and is not a binding authority on this issue. Weatherall dealt with a post-conviction situation where inmates were housed in a penitentiary on a long-term basis. The present case involves what happens to presumptively innocent temporary detainees held at a police station. It has been recognized that such detainees have a residual, albeit reduced, expectation of privacy because they have not been convicted. This point was made by Cory J. in R. v. Stillman, 1997 SCC 384, [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, at para. 61, where he held that an accused’s reduced expectation of privacy upon arrest remained higher than for a convicted inmate. He held that the expectation of privacy of someone under arrest but not convicted was not reduced to the point where it permitted the police to seize without a warrant a tissue discarded while Mr. Stillman was in custody which contained Mr. Stillman’s bodily fluids. I observe that video monitoring and recording of toilet usage, like the seizure of bodily samples, is something which attracts a high level of privacy in our society. See also R. v. Deveau, 2013 ONCJ 644, at paras. 53-54; R. v. Patterson, 2019 SKQB 305, at para. 17; R. v. Patrick, 2009 SCC 17, 2009 SCC17 at para. 38.
[71] I also observe that in Weatherall, at para. 6, La Forest J. distinguished between female guards monitoring male inmates and male guards monitoring female inmates. In this regard he noted the historical reality that more violence has been perpetrated by men against women than vice versa and that women have generally occupied a disadvantaged position in society in relation to men, suggesting there may be reasons which justify treating the two situations differently. In our case the trial judge noted that there were three male officers in the detachment and no female officers to help the respondent.
[72] For these reasons I reject the submission that Weatherall has direct application to the circumstances under consideration here.
[73] That said it is apparent from most of the cases dealing with this issue that, for reasons of the safety and security of everyone involved and having regard to the reduced expectation of privacy of prisoners in temporary police custody, the monitoring and recording of prisoners other than when using the toilet or engaging in intimate matters of personal hygiene, does not violate s. 8 of the Charter.
[74] The appellant’s second and alternative submission is that video monitoring and recording of prisoners using the toilet does not violate a reasonable expectation of privacy where the police take steps to provide privacy, such as by providing a privacy cover as they did in this case, or by pixelating the area around the toilet or taking other similar steps.
[75] It is important to make the point that I am dealing with the facts of this case, as found by the trial judge. There was no pixelation here. In terms of the privacy cover, its effectiveness in providing privacy must be determined in the context of the facts of this case, where the front door to the cell was open bars to a corridor, and the camera was above and behind the toilet in a manner which would render the use of the privacy gown, even utilized as intended, ineffective. The issue I must determine is whether the trial judge erred in finding a s. 8 breach in the circumstances of this case.
[76] In terms of the trial judge’s factual findings, the appellant also submits that the trial judge somewhat misstated the OPP policy as found in the order. I do not accept that there was any misstatement of significance. The trial judge said expressly, at para. 23 of his reasons, that the policy required that if there was any communication barrier, the privacy gown was to be demonstrated to the detainee. What is more significant are the trial judge’s findings that the respondent could not understand how to use the gown, that it was never explained to her and that even if used as intended it would be ineffective as it was open at the back. While the trial judge did not specifically mention the location of the camera, that was obvious to everyone from the video.
[77] I am not persuaded that anything the trial judge said about the OPP policy, the source of the evidence or pixelation, or which could be viewed as critical of the OPP, has any bearing on the outcome of the appeal. No factual errors have been demonstrated by the appellant concerning the trial judge’s centrally important factual findings. No palpable and overriding factual error has been demonstrated.
[78] Returning to the legal aspects of the appellant’s submissions, the appellant contends that providing a privacy cover is a reasonable step that was approved of by the Court of Appeal when it dismissed the application for leave to appeal in Mok on the basis that police forces across the province were taking steps to protect detainees’ privacy. The appellant points out that one of the cases cited by the Court of Appeal in denying leave in Mok was R. v. Griffin, 2015 ONSC 927, which involved a privacy gown and arose from the same OPP detachment in Burlington as this case. Consequently, the appellant submits that the trial judge erred in failing to find that the available privacy cover provided adequate protection for the respondent in this case, such that there was no violation of s. 8.
[79] I am not persuaded by this submission. Consideration must be given to what was at issue on the application for leave to appeal to the Court of Appeal in Mok and on the appeal in Griffin. The issue in both cases was restricted solely to remedy. The underlying finding of a s. 8 breach was not challenged in either case. In Mok, Boswell J. upheld the decision of the trial judge that video monitoring and recording of the accused in that case using the toilet violated s. 8 of the Charter. However, he found that the trial judge erred in granting a stay of proceedings under s. 24(1) of the Charter, which was the only remedy sought in that case. There was no application to exclude evidence pursuant to s. 24(2) of the Charter. The subsequent appeal to the Court of Appeal involved only whether Boswell J. erred in overturning the stay.
[80] A stay is a prospective remedy. It focuses on preventing harm going forward. In denying leave to appeal the Court of Appeal noted that a stay of proceedings is only available in the clearest of cases. The Court of Appeal indicated, at para. 5, that on the appeal the court learned that in response to the decision of Boswell J. the York Regional Police had taken steps to ensure that prisoners’ privacy while using the toilet is protected from both viewing and videotaping. Griffin was one of three additional cases the Court of Appeal cited to support that there was evidence the police were taking remedial steps in response to the privacy problem identified in Mok. That proactive approach by the police to the emerging privacy issue supported a conclusion that leave should be denied in Mok as it was not one of the clearest of cases where the prospective remedy of a stay was appropriate.
[81] In Griffin the trial judge found a s. 8 violation based on video monitoring and recording of the appellant using the toilet. That finding was not challenged on the appeal. The only issues were whether the trial judge erred in declining to grant a stay under s. 24(1) Charter or to exclude the evidence under s. 24(2) of the Charter as a remedy for the s. 8 violation. In Griffin the trial judge declined to issue a stay, in part because the police were taking remedial steps. That decision was entitled to deference and was upheld on appeal to this court. The trial judge’s consideration of the fact that the police were not ignoring the problems identified in Mok was also a relevant consideration for the trial judge in determining whether to exclude the evidence under s. 24(2) as it addressed the issue of whether there was an ongoing systemic problem.
[82] There was no issue in Griffin and no issue in the Court of Appeal in Mok regarding whether the mere availability of a privacy cover was adequate to prevent a s. 8 breach. I was the summary conviction appeal judge in Griffin. There was no consideration on the appeal about the location of the camera.
[83] The denial of leave in Mok and dismissal of the appeal in Griffin does not, given these considerations, convert into support for a generalized finding that on any set of facts the availability of a privacy cover will pre-empt finding a s. 8 breach when a detainee is viewed and recorded using a toilet while in police custody.
[84] The appellant also points to a few recent decisions at the trial level which have found that the OPP did not intrude on a reasonable expectation of privacy when officers followed the OPP policy of pointing out cameras and advising detainees that a privacy cover was available: R. v. Kaur, [2021] O.J. No. 4177 (O.C.J.) at paras. 39-54; R. v. Sweers, 2021 ONCJ 271, at paras. 63-74; R. v. VanBree, 2022 ONSC 4948. The appellant submits that these cases are well-reasoned and that I should follow them.
[85] I observe that whether the policies implemented by the police are effective in protecting prisoners’ privacy while using the toilet will depend on the facts of the particular case. Even if the policy would generally be effective, it must be followed to be so. In addition, as has become obvious in this case, the physical characteristics of the place where the policy is to be applied may render the policy ineffective in that location. A privacy gown designed to be open at the back may well provide privacy if the camera is in front of the prisoner but not if the camera is behind the prisoner. Keeping these considerations in mind I do not find the additional trial decisions the appellant has referred to be of much assistance.
[86] In Kaur the parties agreed that where a reasonable policy to ensure privacy is in place, such as the availability of a privacy gown, there will be no s. 8 violation unless the police failed to follow their policy: para. 41. This agreement eliminated any issue of the effectiveness of the policy being undermined by the physical set up of the space in which the policy applied. In the present case that was an important factor the trial judge relied upon.
[87] In Kaur the trial judge also disbelieved the testimony of the accused that she was not told that the toilet in her cell was under video surveillance and that she was not advised of the availability of a privacy gown. The trial judge believed the police testimony to the contrary. Consequently, the case was decided on the basis that the accused made an informed choice not to use the privacy gown while using the toilet in circumstances where she was aware of its availability and its use was agreed to be effective.
[88] In Sweers the trial judge also rejected the accused’s testimony that he was not offered a privacy cover. The trial judge found as a fact that a privacy cover was offered. There was no issue as to whether the privacy cover would have been effective if employed.
[89] VanBree is a helpful case as Carroccia J. thoroughly reviews the applicable legal principles. At para. 92 Carroccia J. noted that a review of the decided cases reflects that the determination of whether there has been a s. 8 violation when the police video monitor and record a prisoner using the toilet “is entirely fact driven”. I agree with that assessment. On the facts of that case Carroccia J. held that there was no s. 8 breach.
[90] In that case the female accused used the toilet without making use of the privacy gown. The accused was aware of how to use the privacy gown through her employment as a personal support worker. The trial judge accepted the police evidence that the accused was advised of the cameras and of the availability of a privacy gown. The accused was also wearing a dress which effectively prevented her private areas from being revealed as she used the toilet without using the privacy gown. The effectiveness of the privacy gown, had it been used, was not challenged in terms of the location of the camera. The VanBree case does not assist the appellant in this case.
[91] I also wish to point out that a police policy, which is not a law, cannot serve as legal authority validating a search which would otherwise be an unreasonable search in violation of s. 8 of the Charter: Fleming v. Ontario, 2019 SCC 45, at para. 104. No matter how effective the policy may be in preventing Charter violations if complied with, the policy is not legal authority for a search. I mention this because the appellant submits that the trial judge erred in finding that the officers in this case failed to comply with the police policy when they failed to explain the use of the privacy gown to the respondent because he failed to recognize that the policy only required an explanation under the heading of “Communication Barrier”. The appellant submits there was no communication barrier here.
[92] Even assuming the trial judge made the error the appellant submits, and I am not persuaded that he did, that would not be an error which could affect the outcome of the appeal as the policy is not a law and it cannot authorize the search. All the policy can do is try to prevent a violation of s. 8 from occurring by preventing the monitoring and recording of the highly private activity of using the toilet. In any event, here that policy failed because the privacy gown would not have prevented what occurred. It was open at the back and the camera was behind the respondent, who also needed to protect her privacy from the front.
[93] The trial judge based his determination that a s. 8 breach occurred on the fact that the respondent’s private areas were captured as she was video monitored and recorded while using the toilet and use of the privacy cover would not have prevented that. Moreover, the use of the cover was not explained. The respondent could not determine how its use would be effective.
[94] The appellant also submits that the trial judge erred because he criticized the OPP for failing to use pixelation as a means of protecting privacy when there was no evidence regarding the effectiveness of pixelation led at the trial. I would not give effect to this submission. It is clear from the trial judge’s reasons that he did not decide the case on this basis. His references in this regard were additional comments which did not impact his reasons for deciding the s. 8 issue as he did. The trial judge made his determination that a s. 8 breach occurred because the respondent’s private areas were captured on video and because her dignity was negatively impacted by being video recorded using the toilet. Based on Mok and similar authorities that was the correct approach.
[95] The appellant’s final submission in relation to s. 8 is that video monitoring and recording of prisoners in police custody using the toilet is authorized under the common law ancillary powers doctrine pursuant to the Waterfield test: R. v. Waterfield, [1963] 3 All E.R. 659; Fleming v. Ontario, 2019 SCC 45, at paras. 44-46.
[96] Under the ancillary powers doctrine the police may interfere with a person’s liberty interest if it is reasonably necessary to do so. A liberty interest includes constitutional rights and common law civil liberties: Fleming, at para. 46. The court must identify the police power and the liberty interest at stake and then conduct a two-stage analysis considering the following questions:
Does the police action fall within the general scope of a statutory or common law police duty?
Does the action involve a justifiable exercise of police powers associated with that duty?
[97] At the second stage of the analysis, the court must ask whether the police action is reasonably necessary and, as described in Fleming, at paras. 46-47, citing R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 35-36, consider three factors:
The importance of the performance of duty to the public good;
The necessity of the interference with individual liberty for the performance of the duty; and
The extent of the interference with individual liberty.
The onus is on the state to justify the existence of a common law police power that involves interference with liberty: Fleming, at para. 48.
[98] The appellant submits that the police power in issue is the power of the police to video monitor and record prisoners, including when using the toilet. The liberty interest at stake is the prisoner’s privacy. The appellant emphasizes that the OPP decision to employ video monitoring flows from four coroner’s inquests regarding persons who died in police custody and the fact that the police have a clear duty to maintain the safety of persons in their custody: Police Services Act, R.S.O. 1990, c.P.15, s.1(1). The appellant submits that it is necessary to video monitor and record the toilet area to ensure effective protection and relies on the fact that privacy covers are provided so that prisoners can shield their private areas. The appellant emphasizes that the OPP also have insured that access to video recordings is limited. The submission continues that this balancing of safety and protection of privacy withstands analysis under the Waterfield test and should be respected.
[99] In Mok, Boswell J. did not expressly consider the Waterfield test. However, I agree with the respondent’s submission that all the factors of the Waterfield test were effectively considered in Mok and that video recording of prisoners using the toilet was found to be unjustified. The police power and the liberty interest identified by the appellant were similarly identified in Mok. In Mok Boswell J. accepted that video monitoring of holding cells, including the toilet area, would assist in the police duty to ensure safety. As the respondent submits, Boswell J. effectively weighed the importance of the police duty against intrusion on privacy rights and concluded that “the worthiness and reasonableness of videotaping everything that happens in a detention cell for safety reasons does not necessitate the surveillance and recording of the use of the toilet in the cell”: Mok, 2014 ONSC 64, at para. 77.
[100] I further agree with the respondent’s submission that the appellant is effectively asking me under the auspices of the Waterfield test, to redo the analysis that Boswell J. has already carefully conducted in Mok. I have already concluded that I am bound to follow Mok, a judgment I also incidentally agree with. Based on the analysis in Mok I reject this submission.
[101] I also return to an important determining factor in this particular case: use of the privacy gown would not have made any difference on the facts of this case as it was open at the back and the camera was behind the toilet. To the extent efforts by the police to protect privacy in the circumstances of this case fall to be considered under the Waterfield test, there is a deficiency in this regard.
[102] Having dealt with all the appellant’s submissions, I conclude the trial judge did not err in finding a breach of s. 8 of the Charter in the circumstances of this case.
Section 24(2)
[103] The trial judge excluded the results of the breath testing conducted at the police detachment following the respondent’s arrest. The appellant submits the trial judge erred in doing so.
[104] The appellant first submits that the trial judge erred at the threshold stage of his analysis in finding that the evidence was “obtained in a manner” that infringed the Charter. The appellant submits that the s. 9 violation associated with having the respondent perform the ASD test in the police vehicle was “too remote from the breath samples to engage s. 24(2)”. Regarding the s. 8 violation, as the respondent’s use of the toilet took place after the breath testing at the detachment was complete, the appellant submits that there was no connection between the s. 8 breach and the obtaining of the breath samples. During oral submissions regarding the s. 9 breach the appellant added that the police made a “fresh start” before conducting the breath tests at the detachment. That submission is based on the fact that the respondent was arrested and provided with her rights subsequent to failing the ASD test.
[105] In my view the trial judge made no error in concluding that the breath tests were obtained in a manner that infringed the Charter. The trial judge recognized that there was no causal connection between the breath test results and the s. 8 breach. He correctly indicated that there did not have to be and then went on to explain that he found that there was a strong temporal and contextual connection between the s. 8 breach and the impugned evidence. He noted that the s. 8 breach occurred within minutes of the completion of the breath testing and that the privacy gown was provided to the respondent by the breath technician. The trial judge referred to a number of authorities. He quoted from R. v. Jarrett, 2021 ONCA 758, at paras. 32 and 44, where Zarnett J.A. cited R. v. Pino, 2016 ONCA 389 and R. v. Rover, 2018 ONCA 745. These cases confirm that evidence obtained prior to a Charter breach will be obtained in a manner that violates the Charter when both events were part of the same transaction. It is apparent that the trial judge understood and applied the correct threshold test and that he took only relevant factors into account. His threshold determination is entitled to deference.
[106] While the trial judge did not refer specifically to the s. 9 breach in terms of the threshold, I observe that the s. 9 breach occurred as part of the foundational step in this investigation which led to the breath tests sought to be excluded. There is clearly a causal, temporal and contextual connection: it was all one transaction.
[107] No argument was advanced at trial that the police made a fresh start. Moreover, as held in R. v. Beaver, 2022 SCC 54, at para. 99, concerning “fresh starts”: “Whether evidence was ‘obtained in a manner’ is not determined by whether the state eventually complied with its Charter obligations, but instead is based on whether there remains a sufficient causal, temporal or contextual connection between the Charter breach and the impugned evidence.” In addition to this submission not being made at trial, I am of the view that the test for a fresh start as discussed in Beaver at paras. 99 and 103 is not satisfied on this record.
[108] The appellant also advances several arguments to support his submission that the trial judge came to the wrong conclusion after conducting his s. 24(2) analysis. The appellant submits that neither breach was serious. Regarding the s. 9 breach, the appellant submits s. 320.27 appears to give the officer the authority to determine where the ASD will be administered. With respect to the s. 8 breach the appellant submits the OPP implemented its policy concerning video monitoring and recording and providing privacy gowns in good faith. Concerning the impact of the breaches on Charter protected interests, the appellant submits that the trial judge erred because he failed to consider that the video did not capture the respondent’s genital area. The appellant then lists a number of other things which he submits the trial judge failed to take into account. For the moment I will simply say that, based on a reading of the trial judge’s reasons as a whole, the trial judge did mention at one place or another in his reasons the factors the appellant submits he failed to consider. I am not persuaded he erred by failing to consider them.
[109] The appellant concludes his submission on s. 24(2) in his factum by asserting that, had the trial judge conducted a proper s. 24(2) analysis, he would have reached a different conclusion. The appellant is really asking me to undertake my own s. 24(2) analysis and to substitute my analysis for that of the trial judge. I agree with the respondent that the appellant’s submissions do not take the standard of review into account. A high degree of deference is owed to a trial judge’s s. 24(2) decision. In R. v. McGuffie, 2016 ONCA 365, at para. 64, Doherty J.A. wrote:
[64] The three inquiries identified in Grant require both fact-finding and the weighing of various, often competing interests. Appellate review of either task on a correctness standard is neither practical, nor beneficial to the overall administration of justice. 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: [Citations omitted].
To similar effect, see R. v. Buhay, 2003 SCC 30, at para. 44 and R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 at para. 32. In R. v. Cote, 2011 SCC 46, at para. 51, the court held that an appellate court considering a s. 24(2) ruling must take care not to recharacterize the evidence and must proceed based on the trial judge’s findings of fact, absent “any clear and determinative error”.
[110] In the present case the trial judge undertook the three lines of inquiry mandated by the Supreme Court of Canada in Grant. He quoted from Grant. He applied the correct test. Under “Seriousness of the Charter-Infringing State Conduct” he stated that he considered both breaches to be serious, although he would not have excluded the evidence based on the s. 9 breach on its own. He also said that the s. 8 breach was serious enough on its own to warrant exclusion. I observe that in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 141, the court held that the seriousness of Charter-infringing conduct may be sufficient on its own to justify exclusion.
[111] In analyzing the seriousness of the s. 8 breach, the trial judge emphasized that the police had failed to explain how the privacy gown was to be used and that the respondent’s bare buttocks were videotaped as she squatted over the toilet bowl. He also referred to the fact that the OPP had no plans to consider pixelation technology which he thought might eliminate “the need for Mok issue judgments”.
[112] Based on the facts of this case, it is obvious that pixelation of the toilet area on the video feed would have prevented the video capture of the respondent’s bare buttocks as she squatted and urinated. As the trial judge made clear earlier in his judgment, the privacy gown was open at the back and the camera was behind anyone squatting over the toilet. These were relevant considerations that increased the seriousness of the breach, particularly having regard to the fact this issue was one which had arisen a number of times in the trial judge’s jurisdiction, including at the same OPP detachment: see Walker and Griffin for example. As such, there was a systemic aspect to the issue. This tends to make the breach more serious: Rover, at para. 37. The availability of privacy gowns did not protect personal privacy in the circumstances, where the camera was positioned behind the toilet and the front of the cell consisted of steel bars rather than a solid door.
[113] In terms of the impact of the breach on Charter protected interests, it is apparent from the trial judge’s reasons as a whole that he was very concerned about the negative impact the s. 8 breach had on the respondent’s dignity and integrity interests. This was entirely appropriate. The circumstances here are quite different than in Singh, where a male was seen standing in front of a cell toilet to urinate with the camera recording from behind him. Nothing was revealed. The camera caught only Mr. Singh’s back. No private areas of the body were visible. The camera view in Singh was like what might be seen from behind a man standing at a urinal in any public washroom. The video capture of the respondent’s use of the toilet in this case was considerably more intrusive. As Coroza J. (as he then was) stated in Walker, at para. 109: “I do not think it can be seriously contested that being videotaped on the toilet… with your buttocks exposed is an egregious intrusion on personal privacy.”
[114] The trial judge found that the first and second lines of inquiry pursuant to Grant pulled in favour of exclusion. He concluded that the third line of inquiry, society’s interest in the adjudication of the case on its merits, pulled in favour of admitting the evidence. In doing so he quoted from Grant, at paras. 110-111, dealing with bodily samples. He then noted that he was dealing with breath samples, which was something that he considered favoured admission. As an experienced judge of the Ontario Court of Justice the trial judge would be aware of the general reliability of breath testing, its relatively unintrusive nature and the public interest in prosecuting drinking and driving offences.
[115] The trial judge then indicated that he balanced all the factors in reaching his conclusion to exclude the evidence.
[116] Contrary to the appellant’s submission that the trial judge failed to consider that the videos were not for investigative purposes, were securely stored and not available to be viewed by the public, there were places in the trial judge’s reasons where he mentioned these features of the case. While they were not all referred to specifically in the portion of his reasons dedicated to his s. 24(2) analysis, I do not think it can be said that he failed to consider them.
[117] I am not persuaded that the trial judge erred in his s. 24(2) analysis. While it would have been better if the trial judge had given more fulsome reasons situating the seriousness of the Charter-infringing state conduct along the continuum from minor to very serious, on the record it is apparent why the trial judge found the s. 8 breach to be serious and why he considered the impact on Charter-protected interests to also be serious. It is readily apparent why the trial judge reached the final balancing result that he did. I am not persuaded that he erred in his s. 24(2) analysis.
Additional Matters
[118] The respondent raised an alternative argument that, should I find the trial judge erred as submitted by the appellant, the appeal should nonetheless be dismissed due to an error made by the trial judge concerning proof of the substantive offence, which, if corrected on appeal, would inevitably lead to an acquittal. That matter, which is of some complexity, was fully argued. However, in my view of my conclusions expressed above, it is not necessary or advisable for me to deal with that additional issue.
Conclusion
[119] The appeal is dismissed.
F. Dawson J. Released: June 27, 2023
