Court File and Parties

Court File No.: CR 25-009-00AP Date: 2025-12-05 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent -- and -- Claire Rayner, Appellant

Counsel: Breanna Carson, counsel for the Respondent Robert Geurts, counsel for the Appellant

Heard: virtually at Gore Bay: December 1, 2025

Decision on Summary Conviction Appeal

A.D. Kurke, J.

Overview

[1] The appellant appeals against her conviction by Justice J. Wolfe in the Ontario Court of Justice at Gore Bay on April 28, 2025, for being "over 80" within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code.

[2] By way of pre-trial application, the appellant sought a stay of proceedings on the basis that her s. 8 Charter right to be secure against unreasonable search and seizure had been breached by police after her arrest, on the principle in the decision of R. v. Mok, 2014 ONSC 64. That application was dismissed with written reasons by the application judge on February 3, 2025.

[3] The matter returned for trial on April 28, 2025. On that date, the appellant pleaded not guilty to charges of Impaired Operation, "Over 80", and Dangerous Operation. An agreed statement of facts was provided to the court. The appellant was found guilty of the "Over 80," the Impaired Operation was stayed pursuant to the Kienapple principle, and the Dangerous Operation was withdrawn at the request of the Crown. On a joint sentencing position, the appellant was sentenced to a $2,000 fine and she was prohibited from driving for one year.

[4] Of the various grounds of appeal raised by the appellant, she advanced two in her written materials and oral argument. She submits that the trial judge erred:

a. in concluding that no Mok violation or breach of s. 8 of the Charter had occurred; and

b. in not staying the proceedings under s. 24(1) of the Charter on the breach.

[5] As remedy, the appellant seeks that her conviction be quashed and that the proceedings against her be stayed.

Test on appeal

[6] The powers of a summary conviction appeal court are set out in s. 822(1) of the Criminal Code. That provision incorporates the powers of an appellate court found in s. 686. A court may allow an appeal on the bases that the verdict is unreasonable or cannot be supported by the evidence, on the ground of a wrong decision on a question of law, or on any ground there was a miscarriage of justice.

[7] Findings of fact made by a trial judge are not to be reversed unless it can be established that the trial judge made a palpable or overriding error: Housen v. Nikolaisen, 2002 SCC 33, at para. 10. Where the appeal involves a question of law, the standard is that of correctness: Housen v. Nikolaisen, at para. 17.

Facts

[8] Only the pre-trial application is at issue on this appeal.

[9] On the evidence of O.P.P. officer William Verreault, the appellant was arrested on drinking and driving charges on July 31, 2022 and lodged in cells at the O.P.P detachment in Little Current. Before breath testing, she was placed in cell 3, and afterwards in cell 1. Cell 1 is dedicated to youth or female detainees, when it is available. In each cell the appellant used the toilet. In cell 3, the toilet is close to four large unobstructed windows exposed to a holding area hallway to which all officers at the detachment had access. In cell 1, there is only a small window high up in the cell door, that does not directly face the toilet in the cell. The hallway outside cell 3 sees less traffic than the area outside cell 1. Photographs developed from the videos in cell 1 show the presence of a cushion that the appellant appears at one point to use for privacy, and a blanket at her feet on the floor as she sits on the toilet. A privacy gown or blanket are provided upon a prisoner's request, unless there are safety issues.

[10] After conducting a frisk search on the appellant upon her arrival, P/C Lingheart Ramos reviewed with the appellant the fact of video and audio recording in the cells. Guided by the lists of topics on the prisoner custody report, P/C Ramos explained the availability of "privacy covers," including privacy gowns, for when the appellant had to use the toilet in a cell, and of bed sheets and blankets that detainees could also request. P/C Ramos did not recall the appellant asking for a privacy cover. Police provide privacy gowns to detainees when they ask for them, if they need to use the bathroom and want privacy. It appears that the privacy gowns are depicted on at least one sign at the detachment. Signage in the cells warns that the cell and toilets are under video surveillance.

[11] The appellant offered no evidence on the application.

Discussion

The "Mok" issue

[12] The application judge properly set out the law in this area. Authorities in this court have recognized that persons in police custody have a reasonable expectation of privacy, albeit an attenuated one: R. v. Mok, 2014 ONSC 64, paras. 53-83; aff'd 2015 ONCA 608. The videotaping of toilets in cells is a warrantless search, but a reasonable security measure that nevertheless requires mitigation of intrusion on the dignity and integrity of detained persons: Mok, at para. 81; R. v. Walker, 2020 ONSC 2139, at para. 74. Such mitigation should include informing the detainee of the fact of surveillance of the entire cell, including the toilet area, and providing an opportunity to access privacy protection, should the detainee choose to make use of it: see, e.g., R. v. VanBree, 2022 ONSC 4948, at paras. 89, 104-110; R. v. Rowan, 2019 ONSC 7099, at paras. 24-25; R. v. Beckford-Johnson, 2018 ONSC 2766, at para. 73.

[13] The application judge referenced factors that have been found to be relevant in the authorities in considering whether police have sufficiently ensured the individual privacy and dignity of detainees, including: notice that the toilet area was subject to surveillance, the nature of the video, the location of cameras and what parts of the detainee can be observed, whether the detainee was offered a privacy blanket or gown, the gender of the monitoring officer, and the effect on the detainee of being monitored.

[14] In this case, the application judge noted the existence of signage in the holding area and cells that in clear words and images pointed out that there was video and audio recording. She pointed out that photographs from the videos that were put into evidence did not show clear details of the appellant's head or face, and did not show her genitals or buttocks while she was on the toilet. The application judge found that police had explained to the appellant that she would be video and audio recorded but that she could ask for a privacy gown or blanket.

[15] However, the appellant complains that she was first put into cell 3 when she was initially lodged, a cell with four windows making the toilet area clearly visible to anyone in the internal hallway on the other side of the windows. The other cell, cell 1, was the cell into which the appellant was put after breath testing, and which was intended for women and young persons. It has only a small window high up on the door and would have more privacy for toileting. The appellant argues that she should only have been put in that cell, and that her lodging in cell 3 breached her s. 8 right. She also complains that she should not have had to ask for a privacy gown, and that one should automatically have been provided and instructions given for its use on entry into the holding cell.

[16] The appellant argues that the application judge failed to consider not only the fact of video recording as a privacy issue, but also the indignity to the appellant, a woman, of having had to use the toilet in cell 3, in which she was lodged before her breath testing, when she was thereby openly exposed to anyone, male or female, who passed down the hallway on the other side of the windows looking into that cell. The indignity was compounded by the absence of evidence of a privacy gown or blanket when the appellant was using the toilet in cell 3.

[17] In analyzing the issues in the case, the application judge observed that it had been a female officer who had frisked the appellant. The application judge found that the appellant had been told about the cells being video and audio recorded and her ability to ask for and obtain a privacy gown or blanket. And indeed, such a blanket is visible in cell 1. There were signs directly over the toilet explaining surveillance. She observed that there were four windows "making the area visible to anyone on the other side," though one of the officers who testified noted that this was a lower traffic area than cell 1. The application judge noted that "no one is observed outside the cell through the windows" in the photographic exhibits of the appellant using the toilet and observed that no one had asked the police witnesses why the appellant had not been put into the cell for female detainees immediately on her arrival at the detachment. The application judge was plainly aware of the issues of privacy in cell 3.

[18] The application judge noted that there was no evidence before her that anyone had been in the hallway outside cell 3 when the appellant was using the toilet, and the argument that the appellant could have been viewed by persons in the hallway was "entirely speculative." The application judge found that the existence of the blanket in cell 1 shows that the appellant was able to access such an item if she wanted one. The application judge also found that there was no evidence of any sense of humiliation, upset, disgust or shame felt by the appellant as a result of being exposed to view in cell 3.

[19] I am satisfied that the police did everything that the law required of them in the circumstances of this case, in explaining to the appellant that she was being video and audio recorded, and that she could ask for a privacy gown or blanket, and that one would have been provided. It was open to the application judge to find, as she appears to have done, that the appellant was aware that she could ask for a blanket and did so, when she was in cell 1. That she did not ask for a privacy gown or blanket in cell 3 can be understood to represent the appellant's choice. Her lack of concern for privacy likely relates to there being no one in the hallway outside the windows of the cell. There was no evidence on the application that the appellant did not understand that she could get a privacy gown if she wanted one. As the application judge found, "the steps taken by the police to protect her privacy were reasonable in the circumstances."

[20] The application judge was correct in finding no breach of the appellant's s. 8 Charter right.

The trial judge did not reverse the burden of proof

[21] The appellant argues that the application judge reversed the burden of proof by requiring her to offer evidence that she did not understand the information that police had told her about video surveillance and privacy gowns, that she had been refused a gown when she asked for one, her feelings of humiliation and shame at having to use the toilet next to the windows in cell 3, or that someone passed in the hallway when she was using the toilet in cell 3.

[22] I disagree. The application judge was aware and stated in para. 7 of her ruling that a warrantless search is presumed to be unreasonable, and the onus was on the Crown to prove the reasonableness of the search. In the circumstances of this case, witness evidence had established the reasonable efforts made by police to mitigate the intrusions on the appellant's privacy. In those circumstances, it was up to the defence to call evidence to show problems with police efforts. The appellant, who perhaps could have assisted on these issues, chose not to testify.

[23] The application judge did not improperly place an onus on the appellant to prove a violation of her s. 8 right on the warrantless search in the Little Current detachment.

Conclusion

[24] As the application judge correctly found that there was no breach of the appellant's s. 8 Charter right, there was no need to consider appropriate remedies for a breach under s. 24.

[25] For the above reasons, the appeal is dismissed.

The Honourable Mr. Justice A.D. Kurke

Released: December 5, 2025