Superior Court of Justice – Ontario

Court File No.: CV-21-87791-00CP
Date: 2025/05/09

RE: Rodney Wilson, Plaintiff
AND: His Majesty the King in Right of Ontario, on behalf of the Ontario Provincial Police, Defendant

Before: Justice A. Kaufman

Counsel:
Andrew Lister and Brandon Crawford, Counsel for the Plaintiff
Waleed Malik and Elizabeth Guilbault, Counsel for the Defendant

Heard: December 4, 2024

Endorsement

Introduction

[1] Rodney Wilson seeks an order certifying this action as a class proceeding under s. 5(1) of the Class Proceedings Act, 1992 (“CPA”) and appointing him as the class representative.

[2] This action alleges privacy breaches arising from the video recording of individuals using the toilet while detained in Ontario Provincial Police (“OPP”) jail cells. The plaintiff claims that OPP procedures require officers to inform detainees that cells are video monitored and to advise them that a privacy cover is available upon request. The plaintiff asserts that failing to provide such notice and adequate privacy measures constitutes an unlawful search under s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”). Mr. Wilson seeks damages under s. 24 of the Charter, as well as general, special, and punitive damages.

Background

[3] On March 17, 2019, at 12:56 a.m., an OPP officer arrested Mr. Wilson for operating a motor vehicle while impaired by alcohol. He was transported to the Arnprior OPP detachment and placed in a cell.

[4] At 2:29 a.m., Mr. Wilson used the toilet in the cell. He alleges that he was not informed that he would be recorded while using the toilet and was not offered any means to shield himself from being recorded.

[5] A camera, located in the top left corner of the cell, was positioned directly above the toilet. It recorded Mr. Wilson exposing his genitals and urinating for approximately one minute. The video was high-quality, in color, and clearly captured his genitals.

[6] Mr. Wilson claims that the recording, made without his knowledge, caused him stress, embarrassment, and humiliation.

[7] Since 2010, the OPP has equipped its detachments with video recording systems to implement jury recommendations from four coroner’s inquests. These recommendations called for video surveillance to enhance the safety of detainees and officers. The recordings aim to monitor detainees who may pose risks to themselves or others, including those impaired by alcohol or drugs, requiring medical attention, experiencing mental health issues, at risk of self-harm or suicide, or carrying concealed weapons.

[8] In R. v. Mok, 2014 ONSC 64, released on January 7, 2014, a heavily intoxicated female detainee was held in a “drunk tank” at a police detachment for nine hours. She was informed of video cameras throughout the station but testified she was unaware of a camera in the cell. She used the toilet twice, lowering her pants to her ankles and stepping forward to retrieve toilet paper, exposing herself fully to the camera. On summary conviction appeal, Boswell J. held that, despite a reduced expectation of privacy in custody, detainees retain a reasonable expectation of minimal privacy, particularly while presumed innocent.

[9] On February 6, 2014, the OPP Deputy Commissioner issued an interim directive to all detachments, mandating the following measures for detainees:

• Officers must visibly point to the cell camera when placing a detainee in a cell to ensure the detainee understands that all actions, including toilet use, are recorded.
• Officers must verbally notify detainees that the cell is video monitored.
• Signs indicating video monitoring must be prominently displayed, and officers must draw detainees’ attention to them.
• Officers must document the steps taken to inform detainees of video recording.
• Detainees entitled to a blanket under OPP policy may use it for privacy, if available.
• Toilet paper, if provided, must be placed near the toilet.
• Video footage access must be restricted to authorized personnel (e.g., for court purposes).
• Cases involving cell video recording issues raised in court must be reported to Risk Management.

[10] On April 16, 2014, the OPP launched a pilot project at 12 detachments, which was adopted province-wide by August 2014. The project introduced the provision of a paper privacy gown to detainees wishing to use the cell toilet, provided it was deemed safe.

[11] The OPP Commissioner issues “Police Orders,” which are binding policies, procedures, and guidelines for all OPP employees. Police Order No. 2.47.1 addresses detainee privacy during toilet use. It requires officers to inform detainees that cells, including toilets, are continuously recorded and to show them the recording equipment’s location. Detainees must be advised that a privacy cover is available upon request for toilet use, unless safety concerns (e.g., suicide risk) preclude its provision.

[12] If a safety concern is identified, officers must notify a supervisor, and the decision must be documented on Form LE205. Officers are also required to record on Form LE205 whether a privacy cover was requested, offered, or declined.

[13] Officers must explain how to use the privacy gown and, if there is reason to believe the detainee does not understand, demonstrate its use.

[14] In September 2023, the OPP implemented a software privacy mask, applying an opaque grey box over the toilet in detachment cell video feeds. This mask obscured the toilet from view. The privacy mask was to be used alongside existing policies, including the privacy cover.

[15] This technological solution created security challenges, leading to its modification. Reported incidents included:

• a prisoner removing a drug pipe from a body cavity and ingesting drugs;
• a detainee attempting to hang himself with his shirt in front of the toilet; and
• a detainee removing fentanyl from a body cavity and ingesting it. He remained hidden by the mask for nearly seven minutes before collapsing and alerting a guard.

[16] Due to these security concerns, between June 10 and 14, 2024, the OPP replaced the opaque privacy mask with a blur effect.

General Principles in Certification Motions

[17] Certification of a proceeding is a procedural step. The issue at the certification stage is whether the proceeding is appropriately prosecuted as a class proceeding. The certification stage is not intended to be a determination of the merits.

[18] Under s. 5 of the CPA, a court must certify an action as a class proceeding if the following five criteria are met:

1. The pleadings disclose a cause of action.
2. There is an identifiable class of two or more persons to be represented by the representative plaintiff.
3. The class members’ claims raise common issues.
4. A class proceeding is the preferable procedure for resolving these common issues.
5. There is a representative plaintiff who: a. Will fairly and adequately represent the class’s interests; b. Has produced a workable plan for advancing the proceeding and notifying class members; and c. Has no conflicting interests with other class members regarding the common issues.

[19] The plaintiff bears the burden of establishing “some basis in fact” for each criterion, except the cause of action requirement. The court must balance efficiency and fairness while considering the CPA’s goals of judicial economy, access to justice, and behaviour modification.

Application of the Criteria

A. The Pleading Discloses a Cause of Action

[20] To certify a class proceeding, the pleadings must disclose a cause of action. This is assessed using the “plain and obvious” test for striking pleadings under Rule 21 of the Rules of Civil Procedure.

[21] The court finds, and the respondent concedes, that the Statement of Claim pleads a breach of s. 8 of the Charter, satisfying the first criterion.

B. Existence of an Identifiable Class

[22] Section 5(1)(b) of the CPA requires an identifiable class of two or more persons to be represented by the representative plaintiff. To satisfy this criterion, the plaintiff must show that: (1) the class is defined by objective criteria; (2) the definition does not depend on the merits of the action; and (3) there is a rational connection between the common issues and the proposed class definition.

[23] The plaintiff need not prove that all class members share an identical interest in resolving the common issues. However, the class must be appropriately defined and not overly broad. A class is overly broad if it could be more narrowly tailored without arbitrarily excluding individuals who share the same interest in resolving the common issues. If a narrower definition is feasible, the court may deny certification or grant it on the condition that the class definition be revised.

[24] In the Notice of Motion, the plaintiff proposed defining the class as: “Individuals who, after January 7, 2014, were detained by the Ontario Provincial Police and held in a jail-cell, which video surveilled and recorded the toilet area of the cell.” This definition is overly broad as it includes detainees who did not use the toilet and thus could not have experienced a breach of their s. 8 Charter rights.

[25] In its factum and oral submissions, the plaintiff proposed an amended definition: “All individuals detained in cells since 2017 who were recorded while using the toilet and were provided insufficient means to preserve their privacy by the OPP”.

[26] The first part of the amended definition—“all individuals detained in cells since 2017 who were recorded while using the toilet”—uses objective criteria, is appropriately limited, and allows membership to be determined without reference to the merits. However, the second part—“were provided insufficient means to preserve their privacy”—violates the requirement that the class definition avoid reliance on the merits, as it implies a successful claim based on the OPP’s failure to provide adequate privacy measures.

[27] Circular class definitions referencing the merits of the claim ought to be avoided because they make it difficult to identify who is a member of the class until the merits have been determined.

[28] Without the merits-based second part, the amended class definition would likely satisfy the identifiable class requirement. The class, consisting of detainees recorded while using the toilet in OPP cells, shares a common experience. The possibility that some class members may not have valid claims or may fail to prove harm does not preclude certification. The requirement that success for one class member implies success for all applies to resolving the common issues, not to whether each member will ultimately establish a claim for damages or other relief.

[29] The respondent submits that if the court finds the class definition can be amended, procedural fairness requires allowing the parties to make further submissions. However, given my findings on the common issues criterion, such submissions are unnecessary.

C. The Class Members’ Claims Raise Common Issues

[30] A class proceeding enables individuals with shared litigation concerns to resolve common issues in a single action, avoiding multiple, inefficient, repetitive proceedings. The class members’ claims must share a substantial common element, the resolution of which would significantly advance the litigation. There must be issues of fact or law common to all class members, and success for one must imply success for all.

[31] The plaintiff submits that the following common issues are essential to the class members’ claims:

a. By its operation or management of its jail-cells, did the Defendant breach the right of the class to be secure against unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms?
b. By its operation or management of its jail-cells, did the Defendant breach their own internal policies regarding the protection of the privacy of the class?
c. If the answer to common issue (a) is “yes”, do the resulting breaches make damages an appropriate and just remedy under section 24 of the Canadian Charter of Rights and Freedoms?
d. Can the court make an aggregate assessment of damages suffered by all class members as part of the common issues trial, and if so, in what amount?
e. Does the Defendants’ conduct justify an award of punitive damages?
f. If the answer to common issue outlined above in (e) is “yes”, what amount of punitive damages should be awarded against the Defendant?

[32] The respondent submits that these issues cannot be resolved collectively, as they require individual adjudication of Charter rights. I agree.

i) Breach of section 8 of the Charter

[33] Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure.” It protects dignity, integrity, and autonomy by safeguarding a sphere of individual autonomy where people may be free from state intrusion without permission. However, section 8 permits reasonable searches and seizures in recognition that the state’s legitimate interest in advancing its goals, or enforcing its laws, will sometimes require a degree of intrusion into the private sphere.

[34] The plaintiff’s first proposed common issue asserts that the OPP’s failure to provide a privacy cover to detainees constitutes a breach of their s. 8 Charter rights to be secure against unreasonable search or seizure. The plaintiff submits that a Charter breach can be established by determining:

a. Was the detainee recorded while using the toilet?
b. Was the detainee offered a means to protect their privacy?

[35] I am not persuaded by this submission.

[36] An issue cannot be considered common if its resolution depends on individual fact-finding for each class member. Since a Charter right is inherently individual, assessing whether a breach has occurred requires a case-specific evaluation of each class member’s particular circumstances. Jurisprudence concerning s. 8 Charter breaches involving detainees recorded while using the toilet highlights the importance of examining the “totality of the circumstances,” including both the “subjective expectation of privacy” and whether that expectation is objectively reasonable. Because the determination of a Charter breach is entirely fact-driven, it generally does not lend itself to resolution as a common issue across the class.

[37] To illustrate why individual adjudication is necessary for s. 8 Charter breach claims, it is helpful to examine specific factors highlighted in the jurisprudence. These factors, which vary by case, underscore the fact-driven nature of the “totality of the circumstances” analysis and demonstrate why a common resolution across class members is not feasible.

Timing of the Recording and Interruption of Booking Procedure

[38] In R. v. Anthony, 2019 ONCJ 115, the detainee was heavily intoxicated upon arrival at a police cell. During the booking procedure, which included pointing to the cameras and explaining that the detainee was being recorded, the officer paused to allow the detainee to urgently use the toilet. The video captured the detainee urinating. The court concluded that there was no breach of the detainee’s s. 8 Charter rights, reasoning that the interruption to the procedure, which would have included providing a privacy gown, was justified to accommodate the detainee’s immediate need to relieve himself.

[39] This case demonstrates that the timing of the video recording and the nature of specific interactions with police can be critical, and in that instance determinative, in assessing whether a s. 8 Charter breach occurred.

Manner of the Search

[40] The manner of a search is a key factor in determining whether a section 8 Charter breach has occurred. In the plaintiff’s case, a camera positioned directly above and in front of the toilet captured the plaintiff’s genitals. However, jurisprudence involving the OPP demonstrates that not all cell cameras are similarly positioned. For example, in Anthony, at another OPP detachment, the camera only captured the detainee’s fully clothed back, not any private or sensitive body parts. The court considered these minimally intrusive circumstances and found no s. 8 Charter breach.

[41] In R. v. Singh, 2016 ONSC 1144, K.L. Campbell J. held that recording a fully clothed detainee urinating, without capturing private body parts, amounted to a minimal s. 8 Charter violation with negligible impact on privacy interests, noting:

Every day, in public washrooms across the country, men regularly engage in precisely such mundane bodily functions, fully clothed but similarly in full view of any number of random male strangers who might coincidentally find themselves in similar need of such facilities at the same time. This common feature of mankind can be readily seen in all manner of public facilities, including public washrooms in restaurants, government buildings, schools, movie theatres, concerts, and sporting events. Indeed, it is hard to imagine how being observed from behind, fully clothed, engaged in such a mundane but common and regular bodily function could have caused the respondent any “significant” measure of embarrassment, humiliation, or shame.

[42] In R. v. Fletcher, 2014 ONCJ 726, the detainee turned his back to the camera while urinating in a cell. The camera did not capture his genitals. The court concluded that the detainee was able to preserve his privacy and found no breach of his s. 8 Charter rights.

Presence or Absence of Security Concerns

[43] Section 8 of the Charter protects against unreasonable searches and seizures, requiring a balance between the state’s interest in monitoring detainees and their residual privacy rights in custody. Where a detainee poses a serious security risk to themselves or others, withholding a privacy cover could be justified. This determination requires a case-specific assessment.

[44] OPP Policy Order 2.47 addresses situations where safety concerns justify withholding a privacy cover. It requires a uniform member or guard to “assess whether a risk of suicide exists prior to issuing a privacy cover” and states that a privacy cover “shall not be provided if [the detainee is] on suicide watch or there is a risk of suicide.” (Emphasis added).

[45] The jurisprudence on this issue underscores that the presence or absence of security concerns is a factor in assessing a s. 8 Charter breach. For example, in R. v. Wijesuriya, 2018 ONCJ 211, the court noted that no reasonable evidence suggested the detainee posed a risk to herself or others. In R. v. Busch, 2021 ONCJ 716, the court emphasized that the Crown provided no evidence to justify exposing the detainee to the camera while using the toilet for safety or security reasons. In R. v. Rowan, 2018 ONCJ 777, the court considered that the detainee was not dangerous, posed no medical risk, and was not suspected of concealing drugs or evidence.

[46] The plaintiff implicitly acknowledges this factor’s relevance, when he states in paragraph 20 of the Statement of Claim that, as he “did not represent a danger (to others or himself), there existed no justifiable reason to record his use of the toilet without pixelation or privacy of any kind”.

Offer or Refusal of a Privacy Cover

[47] In Mok, this court held that a modesty screen shielding the lower body during toilet use preserves a detainee’s dignity and bodily integrity. Most jurisprudence on s. 8 Charter breaches involving recordings of detainees using the toilet examines whether a privacy cover was offered or declined.

[48] The plaintiff submits that, by policy, police officers must record each instance when a privacy cover is offered, its use explained, and whether it was refused. He argues that this issue can be resolved by consulting the requisite form. I am not persuaded by this submission.

[49] While the form is relevant evidence, it is not conclusive proof of what occurred in any given case. For example, in R. v. Sweers, 2021 ONCJ 271, the officer indicated on the form that a privacy cover was offered and testified that the detainee declined it. However, the detainee provided contrary testimony, asserting that no such offer was made or explanation provided. The court had to assess credibility to resolve this conflicting evidence.

[50] Similarly, in R. v. Grewal, 2015 ONCJ 517, the officer did not check the box indicating that he had explained the privacy cover to the detainee. He testified that he forgot to tick the box but assured the court that he always followed the same procedure and would have discussed privacy with the detainee. The court accepted the officer’s testimony and subsequently dismissed the section 8 Charter application.

[51] These cases demonstrate that determining whether a privacy cover was offered or declined requires an individualized assessment. The presence or absence of a mark on a form cannot conclusively resolve this issue for the class.

State of Intoxication and Ability to Understand

[52] Even when a privacy cover is offered, significant intoxication may impair a detainee’s ability to understand privacy warnings. In such cases, the jurisprudence suggests that police must take additional steps to ensure the detainee is aware of the video recording and available privacy measure.

[53] In R. v. Walker, 2020 ONSC 2139, the court found that, although the officer informed the detainee that the cells were being video recorded and provided him with a privacy cover, there was ample evidence that the detainee did not understand what he was told. The detainee used the toilet without the privacy cover. As a result, the court concluded that a section 8 Charter breach had occurred.

[54] Similarly, in R. v. Rowan, 2018 ONCJ 777, the detainee was offered a privacy cover, but the officer’s explanation “did not register with her.” The trial court found that the officer should have clarified the cover’s purpose. On appeal, this court held that “a simple recitation of a privacy statement to a person whose ability to comprehend may be compromised by alcohol or drug consumption will not suffice.”

[55] In R. v. VanBree, 2022 ONSC 4948, the detainee was offered a privacy cover but testified that her emotional state, fear, and anxiety prevented her from focusing on it. This court held that, despite her anxiety, she was not so distraught as to be unable to request a cover if she wished to use one. Therefore, her Charter rights had not been breached.

[56] Factors such as the degree of intoxication, the clarity of the officer’s explanation, and the detainee’s capacity to request a cover vary widely, as evidenced by differing judicial outcomes. A class-wide resolution cannot account for these case-specific circumstances, further underscoring that the plaintiff’s proposed common issue is unsuitable for certification.

Conclusion

[57] The jurisprudence reviewed demonstrates that s. 8 Charter breaches require individualized adjudication based on the specific facts and evidence of each case. The plaintiff’s proposed common issue does not permit a universal determination of liability, as each class member’s circumstances demand a particularized assessment. Factors such as the timing of recordings, manner of the search, security concerns, offer or refusal of a privacy cover, and the detainee’s state of intoxication or ability of comprehension vary significantly, and preclude a generalized analysis. Consequently, the proposed common issues related to the Charter claims are not suitable for certification under the CPA, as they cannot be resolved collectively for the class.

ii) Breach of OPP Internal Policies

[58] I agree with the respondent that the alleged breach of OPP’s internal policies cannot constitute a common issue, as it fails to satisfy the cause of action criterion under the CPA. The plaintiff has not pleaded a cause of action for breach of policy, nor does such a cause of action exist in law. While a failure to follow policy may serve as evidence supporting another cause of action, such as negligence, it does not independently give rise to liability.

iii) Charter and Aggregate Damages

[59] As the s. 8 Charter breach does not constitute a common issue, it follows that Charter damages cannot be a common issue. The jurisprudence reviewed demonstrates that any Charter remedy depends on the specific circumstances of each case, precluding a universal or generalized analysis.

[60] The Alberta Court of Queen’s Bench in R. v. Marty, 2021 ABQB 279 stated: “It is impossible to dream up all the possible scenarios that might arise surrounding a detainee needing to use the bathroom while in custody. It is equally impossible to create one rule to cover all the possibilities.” The court further noted that “slight changes in the facts might result in different findings,” with breaches ranging from minor, requiring no remedy under s. 24 of the Charter, to serious infringements warranting a judicial stay in the “clearest of cases”. This variability underscores the necessity of individualized adjudication, as the diverse circumstances of each detainee preclude a common remedy for the plaintiff’s proposed s. 8 Charter issue.

[61] Finally, a prior finding of liability is required before applying the CPA’s aggregate damages provision. As liability for s. 8 Charter breaches cannot be established through common issues, an aggregate damages issue cannot be certified.

D. Preferable Procedure

[62] As the common issues requirement is not satisfied, the preferable procedure requirement set out in s. 5(1)(d) of the CPA is likewise not satisfied.

E. Suitable Representative Plaintiff

[63] Since no proposed common issues are certified and there is no basis for a class proceeding, the requirements for a suitable representative plaintiff under s. 5(1)(e) of the CPA need not be addressed.

Disposition

[64] The motion for certification is dismissed.

Costs

[65] The court has reviewed the parties’ costs outlines. The plaintiff claims $33,668.35 for fees and disbursements on a partial indemnity basis, including the Statement of Claim’s filing fees, which would have been incurred regardless of the certification motion. The defendant seeks $60,000, inclusive of taxes and disbursements, with total costs calculated at $92,544.

[66] Fixing costs is not a mechanical exercise. Costs should reflect what the court considers a fair and reasonable amount for the unsuccessful party to pay, rather than simply the successful party's actual costs. Under s. 31 of the CPA, costs in class proceedings follow the same principles as in ordinary actions, but the court may consider whether the proceeding was a test case, raised a novel point of law, or involved a matter of public interest.

[67] The court recognizes that certification motions are complex. The defendant filed extensive evidence regarding its operations across Ontario, with affiants cross-examined and the plaintiff requesting numerous undertakings. The significance of the issue for both parties justified the substantial work undertaken.

[68] The court finds the hourly rate claimed by the defendant’s lead counsel ($316 per hour on a partial indemnity basis, equivalent to $526 per hour as an actual rate) high for counsel with 10 years’ experience. In contrast, the plaintiff’s lead counsel, with 30 years’ experience, claimed $400 per hour as his actual rate.

[69] The defendant was the successful party. Although the plaintiff attempted to advance a constitutional claim, the defendant should not be required to shoulder the entire costs burden of resisting this certification motion.

[70] A costs award of $35,000, payable by the plaintiff to the defendant, within thirty days, is fair and reasonable in the circumstances.

A. Kaufman
Date: May 9, 2025