R v Marty, 2021 ABQB 279

Court of Queen’s Bench of Alberta Citation: R v Marty , 2021 ABQB 279 Date: 20210407 Docket: 190529891S1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Leah Marty Accused _____________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.R. Fraser _______________________________________________________ [ 1 ] The Crown is appealing the dismissal of two charges against Ms. Marty, impaired driving and driving with a blood alcohol level over .08. The focus of the appeal is Judge DePoe’s decision on a voir dire in which he found a breach of Ms. Marty’s

section 8 Charter rights. Judge DePoe then went on to find that the certificate of analysis should be excluded under

section 24 of the Charter . The exclusion of this evidence was fatal to the Crown’s case. [ 2 ] Both parties to this appeal agree on the facts. They are relatively straightforward, and I will briefly summarize them. [ 3 ] On the morning of March 21, 2019, Ms. Marty was operating a motor vehicle that became involved in a collision in Edmonton, Alberta. Police arrived on the scene, and after forming reasonable and probable grounds to believe that her ability to operate a motor vehicle was impaired by alcohol, Ms. Marty was placed under arrest. She was taken to the West Division police station.

She was read the breath demand and agreed to provide a breath sample. Prior to providing a second breath sample, she asked to use the washroom. She was escorted by a male officer to an empty cell where she used the toilet. The door to the cell was closed, but not locked. The officer waited outside the cell. There is a narrow window in the cell door, but the officer did not use it.

[4] Unbeknownst to Ms. Marty, the cell, like all cells in the police station, was being video monitored. A camera in the corner ofthe cell was linked to two monitors that provided a video feed displaying not only that cell, but all the other cells. The feed was beingmonitored in a different room by a male civilian employee on that day. The video feed is live streamed and there is no ability to pause orrewind the video. It is automatically recorded and saved. The video was played during the voir dire. [5] The video showed Ms. Marty entering the cell and using the toilet.

She was in the cell for less than two minutes. Brieflyvisible on the video were her bare thighs and buttocks. [6] At trial, Ms. Marty testified on the voir dire that she did not know the cell was being video monitored. Constable Hodges,the investigating officer, testified that there were signs in the main area indicating that the premises were under audio and videosurveillance. There were no such signs in or near the cells. [7] The only issue being appealed by the Crown is Judge DePoe’s finding that the video recording of Ms. Marty using thebathroom constituted a violation of her

section 8 Charter rights. Initially, the Crown was also appealing Judge Depoe’s finding regardingsection 24 of the Charter, but that aspect of the appeal has been abandoned. [8] As this appeal is solely based on the finding of a

section 8 Charter breach, the standard of review is correctness. As thealleged breach involves a warrantless search, the onus is on the Crown to prove its reasonableness on a balance of probabilities. [9] Although this is an issue that has likely existed for decades, it has only recently become the focus of litigation. Courts acrossthe country have tackled this general situation and have come to different conclusions. It is clear from the various decisions, and bothparties to this appeal agree, that a person has a lower expectation of privacy when the person is in police custody.

The disagreementarises, to paraphrase Justice LaForest in R v Duarte (1990), (SCC), 53 C.C.C. (3d) 1, when the Courts try to strike areasonable balance between the right of the individual to be left alone and the right of the state to intrude on privacy, in the furtherance ofits law enforcement responsibilities. [10] When examining

section 8 breaches, the Court must first examine whether the person had a subjective expectation of privacy.In this case, Ms. Marty, through her testimony, provided evidence to that effect. Judge Depoe found that step was met. The parties agreewith Judge Depoe that Ms. Marty had a subjective expectation of privacy while using the toilet in the cell. The next step is to determinewhether her subjective belief was objectively reasonable. This is where the parties disagree. [11] The Crown submits that it is objectively reasonable to video record all the activities of a person in cells.

People in custodypresent many varied risks. There is the possibility they can destroy evidence. There is a possibility they could consume drugs andpossibly overdose. There is a possibility that they could physically harm themselves or others in some other way. There is a possibilitythat they could damage police property. There is also a possibility that they could present a safety risk to the officers. This could comefrom bodily fluids, or from weapons that were concealed and not found during an initial search. Additionally, video recording in the cellsprotects the prisoner from possible improper police conduct.

Not properly monitoring prisoners could create serious liability risks for thepolice. It is the Crown’s position that these risks make it objectively reasonable to monitor all persons in custody all of the time. [12] In contrast, Ms. Marty submits that there are limits to the need to monitor persons in custody. Although everyone in custodyhas a diminished expectation of privacy, they do not have zero expectation of privacy. They should still be able to rely on some level ofprivacy while performing what is normally a very private bodily function. This is especially true in situations such as Ms.

Marty’s, wherethe evidence showed that she was cooperative, and although possibly drunk, she presented little risk to herself or any of the officers. [13] The respondent provides examples from cases that suggest possible solutions to this problem. Cameras could be switched offwhen it is known that someone is using the toilet. Permanent or temporary privacy screens could be used in the cell. That portion of thecell video could be pixelated or blurred so that the video still shows a very generalized picture of what is happening, but does not revealany details.

Some of these solutions have been employed in other jurisdictions. [14] I note that some changes have been made to EPS practices since the March 21, 2019 arrest date. Between that date and thetrial date, the Edmonton Police Service added signs to every cell indicating that the cell is under 24-hour video surveillance. They alsonow provide individuals with a larger paper towel that may be used to provide some level of privacy.

This evidence was given at the trialby Staff Sergeant Mark Farnell during the voir dire. [15] Although there are multiple cases from other Canadian jurisdictions on the subject, there appear to be only three Alberta casesdealing with this subject, all from the Provincial Court. They are R v Andre, 2018 ABPC 261, R v Dean, 2017 ABPC 37 and R vAlfreds, 2020 ABPC 32. [16] In Andre, Judge Shagic found that the female detainee had a reasonable expectation of privacy when using the toilet while incells. The facts in the case are quite similar to those regarding Ms. Marty. Ms.

Andre was detained as part of an impaired drivinginvestigation. She was taken to a police station to provide breath samples; she subsequently did. While at the station, she needed to usethe bathroom. She was taken to an empty cell by a male police officer who stayed at the door while she used the toilet. Judge Shagicfound that Ms. Andre had an objectively reasonable expectation of privacy in that situation, consequently her

section 8 Charter rightswere violated. He then excluded the certificate of analysis under

section 24 of the Charter. [17] In making his decision, Judge Shagic relied heavily upon the Ontario line of cases regarding this issue, most notably R v Mok,2012 ONCJ 291, aff’d R v Mok, 2014 ONSC 64, aff’d R v Mok, 2015 ONCA 608. Those cases found that although a person in custodyhas a reduced expectation of privacy, that expectation does not completely disappear. It is objectively reasonable to expect at least somelevel of privacy while using the toilet. [18] Both the Dean and the Alfreds cases were decided by Assistant Chief Judge Shynkar.

Both cases also involved individualsdetained as a result of an impaired driving investigation who were then videotaped while using the bathroom. Mr. Dean is male, Ms.Alfreds is female. In both cases, no

section 8 Charter breach was found.

[19] The Alfreds case was the most recent of the three Alberta cases on this subject. Judge Shynkar had the benefit of reviewingthe Ontario line of cases along with cases from other provinces. It is unclear if he was aware of the Andre decision. After reviewing thecases, he found that Ms. Alfreds did have a privacy interest in her personal activities. However, that privacy interest was diminished. Hefound that the reduction in the extent of her personal privacy was consistent with the requirement for protection of detainees anddetachment personnel, as well as the reasonable need to preserve evidence.

Therefore, her subjective belief in privacy was not objectivelyreasonable. [20] The Alfred’s decision was upheld on appeal, but no reasons are available. [21] It is clear from all the provided cases that it is objectively reasonable for an individual to have a reduced expectation ofprivacy while in police custody. What is unclear is the degree to which that expectation of privacy should be reduced. Parading in asquad of male recruits to watch a female detainee use the bathroom would be an obvious breach. Being escorted to a private bathroom byan officer of the same gender who waits outside would be acceptable.

These two extremes leave a large grey area in between. [22] Turning to the facts in this case, I find no error in Judge DePoe’s ruling that Ms. Marty’s

section 8 Charter rights wereviolated. It is clear from the case law that videotaping a person can constitute a search under

section 8 of the Charter, even if the personis unaware of the surveillance. See R v Wong, (SCC). [1990] 3 SCR 36. The video monitoring and recording of Ms.Marty using the toilet in an otherwise empty cell constitutes a search. I agree with Judge DePoe’s finding that although Ms.

Marty had adiminished expectation of privacy, she still had an objectively reasonable right to expect some degree of privacy while using the toilet.Displaying her actions on a monitor that could possibly be observed by multiple people goes beyond what is objectively reasonable.Recording her actions so that others may view them at a later date is also objectively unreasonable. Consequently, Judge Depoe wascorrect in finding a violation of Ms. Marty’s

section 8 Charter rights. [23] My decision relies on the specific facts of this case. Slight changes in the facts might result in different findings. It isimpossible to dream up all the possible scenarios that might arise surrounding a detainee needing to use the bathroom while in custody. Itis equally impossible to create one rule to cover all the possibilities. Instead, it would be preferable for the judge hearing the case todetermine the facts and then decide whether or not those facts warrant some remedy. This is precisely the role

section 24 of the Charterplays. [24] In most cases, it is likely that the monitoring of the individual in custody constitutes a search and a breach of

section 8 of theCharter. As discussed earlier, the nature of that breach can vary widely. It may be minor, one that requires no remedy under

section 24of the Charter. The breach may be a serious infringement of the detainee’s rights, one of the “clearest of cases” that can only beremedied through a judicial stay. The trial judge will have determined the facts surrounding the breach and be in the best position toevaluate the severity of the breach.

Section 24 of the Charter then provides the trial judge with the tools to implement the appropriateremedy for the circumstances. [25] In this case, the Crown chose not to proceed on the

section 24 aspect of the appeal. I am unaware of all the circumstancessurrounding this case. I only reviewed Judge DePoe’s findings of facts and his decision. On the limited information that I have, I amunsure if I would have agreed with his

section 24 analysis of the case. However, as it is not an issue on this appeal, I make no furthercomments. [26] The Crown’s appeal is dismissed Heard on the 11th day of February, 2021. Dated at the City of Edmonton, Alberta this 7th day of April, 2021. G.R. Fraser J.C.Q.B.A. Appearances: Luke Craggs for the Crown Anny Wang

for the Accused