R. v. C.D., 2020 NUCJ 16

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. C.D., 2020 NUCJ 16 Date: 202004 20 Docket: 11-18-74 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: C.D. ________________________________________________________________________ Before: Mr. Justice Lyons Counsel (Crown): P. Plourde Counsel (Accused): M. Kempt, K. Selkirk Location Heard: Iqaluit, Nunavut Date Heard: November 18 and 19, 2019 Matters: Application for stay or exclusion of evidence based on breaches of the Canadian Charter of Rights and Freedoms , ss. 8 and 10(

b) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] On August 8, 2018 the police arrested C.D. for impaired driving. She was read her Charter rights and asked if she wanted to call a lawyer. She responded “no”. The police then drove her to the RCMP detachment and attempted to get a breath sample from her.

C.D. failed to properly blow into the breathalyzer machine on six occasions and police charged her with failing to provide a breath sample. She was not read her Charter rights again and was lodged in an RCMP detachment cell to sober up. [ 2 ] C.D used the toilet in the cell. This was captured by the cell video camera and recorded by the RCMP. [ 3 ] C.D. pleaded not guilty to both charges and made an application under the Canadian Charter of Rights and Freedoms (the Charter ) asserting that the police violated her

section 10(

b) right to counsel by not properly informing her that she could speak to a lawyer, and her

section 8 right not to be subject to an unreasonable search when she was recorded using the toilet in cells. As a result, she asserts that the court should stay the charges against her, or exclude the Crown’s evidence from the trial, resulting in her acquittal on the charges due to lack of evidence. [ 4 ] The Charter application and trial were heard together in a blended voir dire /trial. The evidence consisted of the testimony of one witness, Cst. Armstrong. [ 5 ] In submissions after trial, Defence counsel conceded that C.D.’s defence hinged on the Court’s decision regarding the Charter application, as Cst.

Armstrong’s observations of C.D.’s intoxication and driving pattern established that her ability to drive was impaired by alcohol, and that she failed to provide a breath sample without lawful excuse. [ 6 ] I agree that the officer’s observations of intoxication and driving pattern prove beyond a reasonable doubt that C.D. drove while her ability to do so was impaired by alcohol, and that she failed to provide a breath sample. [ 7 ] This decision then rests on the Court’s assessment of C.D.’s application to have either the charges stayed, or the evidence demonstrating her guilt excluded. II. THE ALLEGED S. 10(

B) CHARTER BREACHES [ 8 ]

Section 10(

b) of the Charter states that “Everyone has the right on arrest or detention…to retain and instruct counsel without

delay and to be informed of that right”. [ 9 ] C.D. alleges that her s. 10(

b) rights were violated on two occasions: when she was not properly told that she could speak to a lawyer when she was arrested for impaired driving, and when police failed to tell her she could speak to a lawyer when they decided to charge her with failing to provide a breath sample. III. EVIDENCE RELATED TO ALLEGED S. 10(

B) BREACHES [ 10 ] Cst. Armstrong arrested C.D. for impaired driving. While she was in the police truck at the scene, he informed her of her Charter rights by reading verbatim from a small card provided to Nunavut RCMP referred to as a “ Charter card”. The card reads: You have the right to retain and instruct counsel in private without delay. You may call any lawyer you want. There is a 24-hour legal aid number available. This advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number.

Do you understand? [ 11 ] Cst. Armstrong testified that C.D. seemed to understand what he had said and responded with a long, drawn-out “yeah”. [ 12 ] He then asked her if she wanted to call a lawyer. He said that she seemed to understand the question and responded “no” without hesitation. [ 13 ] The officer then read to her what is referred to as a “police caution” from the same card: You are arrested. You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence.

Do you understand? [ 14 ] She responded “Yes”. [ 15 ] He then read her the breath demand, and asked her if she understood. She responded “yes I understand”. [ 16 ] C.D. was cooperative and was not angry or acting out. Although Cst. Armstrong described her as having strong signs of intoxication, including poor balance, difficulty standing on her own, glossy eyes, and having a strong odor of alcohol from her breath, he said he believed that she could understand what he was saying to her. [ 17 ] Cst. Armstrong had previously dealt with C.D. on two or three occasions when she was sober.

They had always spoken English with each other and he described her English-speaking skills as “very strong”.

[ 18 ] He further described conversations they had at the detachment where she was responsive and comprehending of numerous questions. [ 19 ] After C.D. failed to provide a breath sample at the detachment, she was told that she would be charged with failure to provide a breath sample. Cst. Armstrong did not read C.D. her s. 10(

b) rights at that time even though he intended to charge her with another offence. IV. WERE C.D.’S S. 10(

B) RIGHTS BREACHED? [ 20 ] After considering the evidence and submissions of counsel I conclude that the police did not breach C.D’’s right to counsel when they initially arrested her for impaired driving. They did, however, breach her right to counsel by not advising her she could speak with a lawyer when they decided to charge her with failing to provide a breath sample. V.

ANALYSIS [ 21 ] The applicant has the burden of establishing that it is more likely than not that her rights were violated. [ 22 ] There was no evidence from C.D. that she did not understand her right to counsel by reason of language, intoxication, or any other reason. The evidence of Cst. Armstrong that C.D. has very strong English skills, and that she unequivocally responded “no” when asked if she wanted to speak to a lawyer was not challenged by the accused.

The evidence that she responded in a way that made sense to other questions asked by the officer, and seemed to understand what was said to her, was also not challenged by the accused. [ 23 ] Cst. Armstrong’s evidence was credible and reliable and I accept it. The information he read to her from the Charter card includes all the information that the police are required to communicate about the right to counsel. [ 24 ] Absent special circumstances that indicate that a detainee may not have understood the s. 10(

b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(

b) caution. [1] [ 25 ] I do not consider C.D.’s intoxication to be a special circumstance sufficient to make it more likely than not that she did not understood her right to counsel, given the absence of evidence that she did not understand. I do not infer that she did not understand just because she was intoxicated. [ 26 ] Defence counsel urges me to conclude that C.D. did not waive her right to counsel.

The issue of waiver, however, only comes into play when an accused person has invoked the right in the first place by indicating in some way that she would like to speak with a lawyer, or might like to speak to a lawyer. [2] [ 27 ] C.D. did not invoke her right to counsel given her unequivocal response of “no” to the question of whether she would like to speak to a lawyer. Accordingly, the issue of waiver does not arise. [ 28 ] Based on the evidence, I do not find that the accused has established that her s. 10(

b) right to counsel was violated when she was arrested on the impaired driving charge. VI. COMMENTARY

[ 29 ] Although I do not find a breach in relation to this aspect of the Charter application, I can imagine cases where reading the Charter card to a detainee, without any further explanation, could amount to a s. 10(

b) breach, despite a detainee giving clear and unequivocal responses. This could occur where there is evidence the detainee did not understand what was said to them. [ 30 ] Although the Charter card uses language as recommended by the Supreme Court of Canada, some of it might be difficult to understand for some detainees. English is not the first language of a large proportion of Nunavummiut, and some have limited English language skills, or formal western education.

For many, the words “retain and instruct counsel in private without delay” would be incomprehensible, and follow-up plain language such as, “you can speak to a free lawyer on the telephone in private as soon as we get to the RCMP detachment”, would help facilitate understanding. VII. ANALYSIS IN RELATION TO SECOND ALLEGED S. 10(

B) BREACH [ 31 ] C.D. was not advised of her rights to counsel after the police decided to charge her with failing to provide a breath sample. The Crown has conceded that this was a breach of C.D.’s s. 10(

b) rights, and I agree. [ 32 ] When the police decided they were going to charge C.D. with failure to provide a breath sample her legal jeopardy changed and the police were required to advise her of her s. 10(

b) rights. [ 33 ] The new charge constituted a change in circumstances that suggested that consultation with counsel was necessary for C.D. to have the information relevant to her choosing whether or not to cooperate with the police investigation. [3] [ 34 ] Accordingly, C.D. should have been told a second time that she could speak with a lawyer. Failure to do so amounted to a significant breach. Had she spoken to a lawyer she would have been advised to provide a breath sample.

Perhaps she would have been able to persuade the police to give her another chance to provide a sample. [ 35 ] Although there is no causal connection between the refusal and the breach, in my view there is a strong contextual connection between the breach, the evidence, and the charge. [ 36 ] Police are expected to understand that people who are being charged with another offence while in custody for a different offence must be re-read their s. 10 Charter rights. [ 37 ] Because of this, and the connection between the breach, the evidence, and the charge, and their impact on C.D.’s Charter protected interests, and taking into account society’s interest in having the charge adjudicated on its merits, I find inclusion of this evidence would bring the administration of justice into disrepute. [ 38 ] Accordingly, I exclude this evidence and I acquit C.D. of failing to provide a breath sample.

VIII. THE ALLEGED S. 8 BREACH [ 39 ] C.D. also asserts that her right under

section 8 of the Charter not to be subject to an unreasonable search was violated when she was videotaped using the toilet in the cell at the RCMP detachment, and that this was a substantial and troubling breach of her privacy that warrants a stay of proceedings.

IX. EVIDENCE RELATED TO THE ALLEGED S. 8 BREACH [ 40 ] Inside the cell in the upper right corner from the vantage point of someone looking from inside the cell towards the door, there is a protruding video camera that captures and records the entirety of the cell area, including the toilet, which is to the left of the cell door. [ 41 ] What is recorded is viewable in real time on a monitor on a desk close to the cell area. This monitor can be seen by the supervising RCMP members, and/or civilian guard.

There is no public access to the area where the monitor is and it is not viewable by other prisoners in cells. [ 42 ] There is a sign in the area outside the cells which reads: “This area is under video surveillance, your activities can be monitored and recorded”. There are no signs in the cells alerting prisoners that they are being recorded and C.D. was not told that she was being video recorded in cells or in the area outside the cell area. It appears C.D. was unaware that she was being video recorded in the cell. [ 43 ] Soon after being secured in the cell, C.D. sat on the toilet briefly.

There was no toilet paper in the cell, as the RCMP has a policy to only provide toilet paper upon request to prevent prisoners from clogging the toilets with paper and flooding the cell. While on the toilet, C.D. requested toilet paper. [ 44 ] Cst. Armstrong heard the request and retrieved toilet paper that was by the video monitor outside the cell area. As he retrieved the paper, he glanced at the video monitor.

He then went and tossed the toilet paper through the meal slot in the cell door without looking into the cell and walked back to the area with the video monitor. [ 45 ] C.D. got up from the toilet to retrieve the toilet paper as it was out of reach, and bent down to pick it up from the floor. Part of her buttock was visible in the video recording as she sat on the toilet, and as she bent down to pick up the toilet paper. She then sat again on the toilet and briefly wiped herself with the paper and flushed the toilet. She then got up and lay down on the cell bed. [ 46 ] After giving C.D. the toilet paper, Cst.

Armstrong briefly glanced at the video monitor. He said he did this to check to see what C.D. was using the toilet paper for. It is unclear if C.D. was on the toilet when he glanced at the monitor. [ 47 ] The recording of C.D. in cells was stored on an internal hard-drive on the station commander’s password protected computer. These recordings are only accessible via this computer. Civilian community guards do not have access to the recordings. [ 48 ] In the preparation of disclosure, the recording was retrieved and saved to a disc and disclosed to the Crown and Defence counsel. [ 49 ] Other than Cst.

Armstrong’s two glances at the video monitor, there is no evidence that anyone saw C.D. using the toilet in the cell or viewed the recording prior to Defence counsel reviewing disclosure. X. WAS C.D.’S S. 8 CHARTER RIGHT BREACHED? [ 50 ] In their materials and submissions, the Crown has conceded that C.D.’s s.8 privacy rights were breached, and I agree. XI. S. 8 ANALYSIS [ 51 ]

Section 8 of the Charter protects people from unreasonable searches. Video surveillance can, in appropriate circumstances, constitute a search within the meaning of s. 8, but only where the person monitored has a reasonable expectation of privacy. [4] [ 52 ] Can it be said that a person in police custody has a reasonable expectation of privacy?

[ 53 ] There is clearly a substantially reduced expectation of privacy while in custody, but the Supreme Court of Canada, and other courts in Canada, have found that there are circumstances where persons in custody have a reasonable expectation of privacy - for example, when speaking with a lawyer, when bodily substances are seized without consent, and when being strip searched. [5] [ 54 ] The specific issue that arises in this case - whether or not a person has a reasonable expectation of privacy when using a toilet in a police cell - was addressed in the R. v. Mok case from Ontario.

In that case it was found by the trial judge, and affirmed by the Superior Court on appeal, that Ms.

Mok had a reasonable expectation of privacy when using the toilet in cells, and that her s. 8 Charter right was breached. [6] [ 55 ] Turning to the circumstances in this case, in order for a s. 8 breach to be made out, C.D. must have had a subjective expectation of privacy that was objectively reasonable when she used the toilet in the cell. [ 56 ] Regarding whether or not she had a subjective expectation of privacy, the Crown concedes that C.D.’s s. 8 charter right was breached, and Defence materials and Defence counsel submissions indicated that C.D. did not know, or expect, that the cell was being video monitored when she used the toilet. [ 57 ] These materials and submissions were not evidence, however, and my finding on whether or not C.D. had a subjective expectation of privacy must be based on the evidence - specifically the video recordings and the testimony of the officer. [ 58 ] C.D. was not told by the police that the cell area was under video surveillance.

Although there was a small sign in an area outside the cell advising that the general area was videotaped, the sign did not specify that the interior of the cell was video monitored, and her attention was not drawn to it. She did not appear to look at the sign. [ 59 ] When viewing the video of her in the cell, C.D. does not appear to be aware she was being video monitored.

Although there was a camera in the cell protruding from the ceiling, she did not look up at it, and her demeanour did not suggest that she was aware it was there. [ 60 ] C.D. was alone in the cell, and there was no one outside looking in the cell door window when she used the toilet. [ 61 ] For these reasons I determine that there is sufficient evidence for me to find that C.D. had a subjective expectation of privacy, and I make that finding. [ 62 ] I also find that this expectation of privacy was objectively reasonable.

Using the toilet is an inherently private activity and a person does not generally expect to be observed in such a circumstance. [ 63 ] It is important in this case that C.D. was not told that the toilet area in the cell was video monitored and recorded.

While prisoners have a reduced expectation of privacy while in custody, I find that there remains an objectively reasonable expectation of privacy when using a toilet alone in a cell you did not know was being video monitored, and were not told was being video monitored. [ 64 ] For these reasons, I determine that the video monitoring and recording of C.D. using the toilet was unreasonable in the circumstances, and constituted a breach of her s.8 Charter right. XII.

SERIOUSNESS OF THE S. 8 BREACH [ 65 ] To assess the seriousness of the breach, I must look at the reasons why the police video monitor cells, including the toilet area.

[ 66 ] The police are responsible for keeping prisoners safe. Video monitoring helps them do this by making it easier for them to see when a prisoner is in medical distress, or being assaulted by another prisoner. [ 67 ] Tragically, numerous Nunavummiut have self-harmed and died by suicide while in RCMP cells.

Coroner inquests into these deaths have been conducted and inquest juries composed of Nunavummiut have recommended that all cells in Nunavut be video monitored to protect prisoners from acts of self-harm and suicide. [ 68 ] Prisoners can fall into medical distress on the toilet, and the toilets themselves can be used to self-harm or harm others, as they have sharper metal edges and standing water that a person could potentially drown in.

Accordingly, the RCMP have no choice but to video monitor cells, including the toilet area, despite the associated privacy concerns. [ 69 ] In addition to making cells safer for prisoners, cells are video monitored to create a record that can be used as evidence of possible criminal behaviour by prisoners and or police. This serves to deter misbehaviour, and encourages police accountability. [ 70 ] Something else to be considered when assessing the seriousness of the privacy breach is what was captured on the video, and how it was viewed and handled.

Although the video recording momentarily showed a part of the side of C.D.’s buttock, and upper buttock, there were no other private parts of her body visible. [ 71 ] Cst. Armstrong briefly glanced at the monitor on two occasions while standing from some distance when she may have been on the toilet. [ 72 ] Part of Cst.

Armstrong’s job was to monitor the prisoner in his care and his glancing at the monitor was not done in an inappropriate, or prurient manner. [ 73 ] The recordings of C.D. inside and outside the cell were saved to the detachment commander’s password protected computer and later put on a disc and disclosed to counsel.

There was no evidence that these recordings were seen by anyone else other than the lawyers involved in the case. [ 74 ] In the circumstances, the s. 8 breach was minor, given both the necessity of the toilet area being video monitored, what was visible on the recording, and the fact that there is no evidence the video recording was viewed or used improperly. [ 75 ] This is also to my knowledge the first case where this issue has been litigated in Nunavut. The police have not previously been put on notice that recording people using the toilet in cells engages s. 8 Charter concerns.

This decision brings this issue to their attention. [ 76 ] Police should be sensitive to the fact that being video monitored and recorded using the toilet would be an embarrassing and humiliating experience for many prisoners, and that some prisoners would understandably be concerned about who might be watching while they use the toilet, or who might have access to the recording. [ 77 ] This concern is heightened in Nunavut by the fact that local civilian community members often work as cell guards.

In the small communities of Nunavut, it can be expected that these guards, and in some cases the community police officers, will personally know many of the prisoners they are monitoring. Being observed using the toilet by someone who knows you obviously engages privacy concerns. XIII. RECOMMENDATIONS TO RCMP

[ 78 ] To ameliorate these concerns, the RCMP should tell every prisoner they are putting in a detachment cell that the cell is being video monitored and recorded. Consideration should also be given to having a sign in each cell advising the same. [ 79 ] Some sort of cover or screen should also be made available to shield prisoners from the camera’s view when using the toilet. In appropriate circumstances, prisoners should be told about the availability of the cover or screen and, depending on the danger posed by the prisoner, the cover or screen could be provided. XIV.

DO THE BREACHES WARRANT A STAY OF PROCEEDINGS? [ 80 ] A stay of proceedings is the most drastic remedy a criminal court can order and is only appropriate in the clearest of cases. [ 81 ] This is not the clearest of cases. There was nothing malicious or vexatious about the state conduct. It has not undermined the fairness of C.D.’s trial, nor has it contravened fundamental notions of justice, or undermined the integrity of the judicial process. [ 82 ] I accordingly do not order a stay of proceedings. XV. DO THE SS. 8 AND 10(

B) BREACHES WARRANT AN EXCLUSION OF THE OFFICER’S OBSERVATIONS OF C.D.’S IMPAIRMENT AND DRIVING? [ 83 ] Cst. Armstrong made his observations of C.D.’s driving and her level of impairment prior to C.D.’s rights being breached. There is no temporal or causal connection between the breaches and Cst.

Armstrong’s observations of impairment and driving. [ 84 ] Although a temporal or causal connection between breaches and evidence sought to be excluded is not necessarily required for exclusion to be warranted, it is generally required. [ 85 ] Cases where evidence is excluded despite a lack of temporal or causal connection involve more serious and unacceptable police conduct than occurred in this case; conduct that courts needed to condemn by the exclusion of evidence not causally related to the breach. [7] [ 86 ] The breaches in this case were not malicious nor the product of abuse or other police misconduct that the court must distance itself from by the exclusion of Cst.

Armstrong’s observations of C.D.’s driving and intoxication level, which were made prior to her rights being breached, and I decline to do so. XVI. CONCLUSION [ 87 ] I find C.D. guilty of impaired operation of a motor vehicle based on the officer’s observation of intoxication and driving pattern. NOTE [ 88 ] C.D. made some inculpatory statements to Cst. Armstrong at the detachment. In the Defence materials it was argued that these remarks should be excluded as they were made in breach of her right to silence.

I have not addressed this aspect of the Defence argument as Defence counsel at trial conceded that the officer’s observations of intoxication and driving pattern proved the offence of impaired driving. The inculpatory remarks did not add in any significant way to the Crown case and were not factored in to the finding of guilt.

Dated at the City of Iqaluit this 20 th day of April, 2020 ___________________ Justice C. Lyons Nunavut Court of Justice