Her Majesty the Queen - v. -, 2019 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 007 Date: January 24, 2019 Information: 991052206 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christine Paterson Appearing: Ms. O. Belton For the Crown Mr. R. Piche For the Accused RULING ON CHARTER VOIR DIRE SNELL , J INTRODUCTION [ 1 ] The accused is charged with having the care or control of a motor vehicle when her ability to operate a vehicle was impaired by alcohol or a drug.

She alleges that her Charter rights were breached during her involvement with the police on May 18, 2018. First, she alleges her rights under ss. 8 and 9 of the Charter were breached when she was arrested without proper grounds. She requests, pursuant to s. 24(2) of the Charter, that all evidence obtained following the breach be excluded. For the

reasons below I have determined that these alleged breaches did not occur. [ 2 ] Secondly, she alleges that her rights under ss. 7, 8 and 12 of the Charter were breached when the police videotaped her using the washroom at the police station . The accused asks the Court to enter a stay of proceedings, pursuant to s. 24(1) of the Charter for these breaches . For the reasons provided below, I am granting the accused that remedy. CIRCUMSTANCES GIVING RISE TO THE BREACH ALLEGATIONS [ 3 ] On May 18, 2018 a 911 call received at 8:46 p.m. resulted in Csts.

Robinson and Thull attending at 8:55 p.m. to a parking lot adjacent to Movado’s bar in Regina. The report was that two intoxicated persons, a male and a female, had attempted to buy alcohol but had been refused service because of their intoxicated condition. The two people were reported to have gone to a vehicle in the parking lot where they were now, with the female in the driver’s seat slumped over the console, and the male, wearing pyjama bottoms, in the front passenger seat. [ 4 ] Upon arrival at the scene, Cst. Robinson noted that the reverse lights of the vehicle were on.

She went to the driver’s door of the car, which was locked, and saw a female, later identified as the accused, located in the driver’s seat. It had been lowered against the back seat. The accused was lying on her right side with her hair covering her face. She did not react to the officer’s tapping on the window. After unlocking the driver’s door with her partner’s assistance, Cst. Robinson reached into the vehicle, moved the gearshift from reverse into park and attempted, unsuccessfully, to remove the key from the ignition. The vehicle was not running, but Cst.

Robinson did confirm that the vehicle was capable of running prior to leaving the scene. [ 5 ] Cst. Robinson said initially in her examination-in-chief that there was a strong smell of beverage alcohol coming from the accused, but later in her testimony and in cross-examination she made it clear that she could not tell that it was coming from the accused until she had the accused in her police vehicle, which was after the initial arrest. The accused was very difficult to arouse. Cst. Robinson had to shake her a number of times. When she finally awakened the accused opened her eyes but could not focus. Cst.

Robinson advised her she was under arrest for impaired care or control and got her out of the car. At this point Cst. Robinson’s grounds for arrest included the contents of the 911 call, her observations of the accused, her difficulties in arousing the accused and the accused’s inability to focus her eyes. [ 6 ] Once the accused was out of the vehicle her impaired condition was obvious. She had great difficulty walking and the officers had to physically pull her into their police vehicle due to her condition.

A videotape taken at the police station and which is the subject of the second alleged Charter breach makes it clear that the accused was highly intoxicated, so I do not consider it necessary to recount additional evidence provided by the officer about the accused’s condition for the purposes of this decision. [ 7 ] It is important to note, however, that despite stating that she arrested the accused prior to having her get out of her car, Cst.

Robinson also testified that the time of her arrest was 9:04 p.m., in the police vehicle, when she formally advised the accused she was under arrest and provided her with her Charter rights and the police warning. I emphasize this because the defence argument is focussed on the arrest while the accused was still sitting in her own vehicle. The arrest at 9:04 took place in the police vehicle, as noted above.

Although not admitted, defence counsel did not submit any argument to suggest there were not sufficient grounds for the second arrest at 9:04 p.m. [ 8 ] The circumstances surrounding the alleged ss. 7, 8 and 12 breaches of the Charter concern the fact that a videotape was made of the accused using a toilet in a cell in the police detention area. Csts. Robinson and Thull, both of whom are female, were present in the cell with Ms. Paterson when she used the toilet, and the accused did need their assistance due to her intoxicated condition.

[9] The video camera is positioned so that it faces the toilet. The video taken of the accused clearly shows her naked from the bottom of her shirt, around her navel, to about her knees where her pants were, when she rises from thetoilet. [10] The Crown did not tender any evidence concerning the purpose for the surveillance system or any policy directives regarding the surveillance system in place in the Regina Police station detention area. The only evidenceconcerning the surveillance system was provided by the investigating officer, Cst.

Robinson, who said the system used in May of 2018has been in place for many years. She advised there is constant surveillance of various sites in the detention area. The surveillancecameras are always on and the scenes depicted are shown on a bank of about 30 monitors in the booking area. This area is open tomembers of the police service but is not open to the public.

Her evidence was that there was no one who monitored the screens at alltimes, but it was the responsibility of the detention staff to be able to respond to any problems by looking and listening to what might behappening in the various areas which are shown on the monitors. Thus, all detention staff had the ability and, at times, obligation to viewthe monitors. [11] I do not believe there is a need for specific evidence regarding the purpose for the surveillance system. Clearly there is a need for some surveillance for the protection of both the police and persons detained in custody.

However, there was no evidence provided to suggest any consideration had been given to the privacy interests of persons using thewashroom while they were in the detention area. [12] I repeat that the evidence of Cst. Robinson was that the camera is always on. There was no evidence provided about what technology is used for the surveillance or of any policies which might exist concerning access to andmaintenance of the recordings of the surveillance cameras.

However, the fact Exhibit D1 was available to be played and filed in courtestablishes that the surveillance camera is not solely for the purpose of allowing observation in real time, but that a videotape is createdand preserved for some time. [13] The accused did not testify. Since the evidence established that she was grossly impaired and that she was seated in the driver’s seat of the vehicle, the presumption in s. 258(1)(

a) of the Criminal Code applies and she is deemed tohave been in the care or control of the motor vehicle. There is some evidence that the accused did not intend to drive the vehicle, in lightof her fully reclining the driver’s seat, but this is not sufficient, in my view, to rebut the presumption that she was in care or control of thevehicle in circumstances where there was a realistic risk of danger. (See R v Boudreault, 2012 SCC 56), [2012] 3 SCR 157) Accordingly, but for the Charter applications, the accused would be found guilty of the offence as charged.

THE LAW AND ANALYSIS Did the arrest of the accused prior to her exiting her vehicle breach her rights under ss. 8 and 9 of the Charter, and if so, should aremedy be granted under s. 24(2) of the Charter? [14] A valid arrest takes place when a peace officer has both a subjective and objective belief that the person has committed an offence. (R v Storrey, (SCC), [1990] 1 SCR 241) Here, the peace officer clearly had thesubjective belief, but the defence alleges that there were not sufficient grounds to provide the officer with the objective belief required toarrest the accused prior to the time when the accused exited her vehicle.

At the time of that arrest, the officer had the information fromthe 911 call as well as her observations about how difficult it was to awaken the accused and her lack of ability to focus her eyes. [15] Defence counsel suggests that since Cst. Robinson was not able to state that the smell of alcohol in the vehicle came from the accused, and she had not yet observed the accused’s lack of motor skills, the grounds for arrestwere not then present.

[16] The law is clear that the police are entitled to rely on information provided by a third party and they are not required to confirm that information if there is no reason to question the reliability of the information. (R v Golub(1997), (ON CA), 117 CCC (3d) 193 (Ont CA); leave to appeal refused 128 CCC (3d) vi) [17] In some cases the information from a citizen who contacted the police regarding a possible impaired driver may not be sufficient to provide grounds for arrest. Evidence of unusual driving requires investigation, but there couldbe explanations for the driving behaviour other than intoxication.

In the present case, however, information came from personsemployed in the business of serving and selling alcohol. [18] Since they are required to assess a potential customer’s level of intoxication, such employees can be presumed to have some experience in that regard. Their belief and stated opinion was that both the accused and her companionwere too intoxicated to be sold any alcohol and were at that time in a vehicle in the parking lot close to the bar. Cst.

Robinson thenobserved the accused in the driver’s seat of a vehicle in the parking lot adjacent to the bar with a passenger also matching the descriptionof the male person who had been in the off-sale. The vehicle had its reverse lights on, there was a smell of alcohol coming from insidethe vehicle and the officer had great difficulty arousing the accused. In my view, the information provided by the 911 call, coupled withthe officer’s observations, though brief, did provide sufficient grounds for Cst.

Robinson to arrest the accused for impaired care orcontrol of a motor vehicle even before the accused was out of the car. [19] Accordingly, I find there was no breach of the accused’s rights under ss. 8 and 9 of the Charter. As a result, there is no need to conduct an analysis pursuant to R v Grant, 2009 SCC 32, [2009] 2 SCR 353.

However, I wantto address a submission used by defence counsel regarding the alleged unlawful arrest. [20] Defence counsel suggested that the events which occurred at the police station after the arrest, which are the subject of the second Charter argument “serve to compound the seriousness of the state conduct” regarding thearrest. I reject that argument. I do not believe that the events which occurred later have any relevance to the earlier arrest.

Was there a breach of the accused’s ss. 7, 8 and 12 Charter rights, and if so, what, if any, remedy should be granted? [21] I do not believe there is any dispute concerning the question of whether the accused had a right of privacy when using the washroom in the police cell area.

Persons in short term police custody have a reduced right of privacy,but they are still to be presumed innocent and therefore they are in a different category from persons entering the general prisonpopulation. (R v Stillman, (SCC), [1997] 1 SCR 607) Although in some cases there may be as much of a concern aboutviewing a person using the toilet as videotaping it, in the present case defence counsel does not dispute that the accused requiredassistance and there was nothing untoward about female officers being present while she used the toilet. [22] Similarly, the law is clear that videotaping someone at a time when they have a reasonable expectation of privacy will constitute a “seizure” within the meaning of s. 8 of the Charter. (See R v Wong, (SCC),[1990] 3 SCR 36) [23] This fact situation has arisen in officers on a number of occasions.

It appears that R v Mok, [2012] ONCJ 291 (CJ); 2014 ONSC 64; 2015 ONCA 608 [Mok] is the earliest case where this fact situation was discussed. At the triallevel, in 2012, the Court found a clear breach of the accused’s s. 8 rights by reason of the monitoring and videotaping a woman using the toilet in police custody on a drinking and driving charge. This finding was accepted and approved by the other Courts on appeal[1]. Thetrial judge ordered a stay of proceedings.

[ 24 ] On the

summary conviction appeal, in 2014, the Court stated the following at paragraph 82: In the result, I find, as the trial judge did, that Ms. Mok’s s. 8 right was violated when the police videotaped her using the toilet in her cell. I find that she had a subjective expectation of privacy and that her subjective expectation was reasonably held in all the circumstances.

The reasonableness of her expectation is supported by a balancing of her individual interest in privacy, dignity, integrity and autonomy, against the state’s legitimate interests in monitoring the cell area for safety concerns and the preservation of evidence. [ 25 ] The Court had earlier stated at paragraph 77: In my view, 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.

The use of a modesty screen that protects the lower part of a person’s body while using the toilet would not significantly hamper the ability of the police to monitor the health and safety of anyone inside the cell. At the same time, it would preserve the dignity and bodily integrity of the detainee. [ 26 ] The Superior Court Justice disagreed with the trial judge in this case, however, with respect to the remedy granted.

The stay was set aside for a number of reasons, but a significant reason was that this was a case of first instance and since a stay is a remedy of “last resort”, the Court felt the police ought to be afforded the opportunity to effect appropriate changes. (See 2014 ONSC 64 , paragraphs 93-99 ) The Superior Court also noted that the public interest in having this particular impaired driving charge resolved on its merits was significant, since the accused had driven in an extremely dangerous manner while in an extremely intoxicated condition. [ 27 ] The Ontario Court of Appeal refused leave to appeal in the Mok case primarily, it would appear, because the police force involved had taken steps to address the privacy issue identified by the lower courts. (See 2015 ONCA 608 ) At paragraph 5 the Court stated: The stay was originally granted by the trial judge as the remedy in this case based on the evidence that this was not a unique incident.

At the time, the York Regional Police viewed and videotaped all prisoners using the toilets in their cells as a matter of policy. However, on this appeal, the court was told that since the decision of the

summary conviction appeal judge upholding the finding of a s. 8 breach, steps have been taken by the York Regional Police to ensure that prisoners ’ privacy while using the toilet is now protected from both viewing and videotaping.

This information confirmed the findings made by a number of other trial courts recently faced with the same issue, who declined to order stays: see R v Arbelo, 2014 ONCJ 257 , at para. 31 on changes to York Regional Police’s videotaping practices; see also R v Orenchuk , 2014 ONCJ 650 , at para. 63 and R v Griffin , 2015 ONSC 927 at paras. 10-11 , on changes in practice at other police forces. [emphasis added] [ 28 ] Since the Superior Court decision was issued in the Mok case, courts in Ontario have excluded breathalyzer results where accused persons were videotaped while in police detention cells resulting in those accused persons being acquitted of the charge they faced. (See, for example, R v Joseph , 2014 ONCJ 559 [ Joseph ]; R v Deveau , 2014 ONSC 3756 ). [2] [ 29 ] When the issue of the privacy rights of detained persons using toilets while in police protection arose later, in 2018, the Court had far less patience, because the problem was then viewed as a systemic one and no longer a case of “first instance”.

In R v Wijesuriya , 2018 ONCJ 211 [ Wijesuriya ] the facts were that a female police officer accompanied the female accused to the washroom and had her under constant observation as this was part of the observation period in preparation for breathalyzer tests. The door to the toilet was open so male officers could have walked by, but there was no evidence that had occurred. The Crown argued that there was no breach because there was no videotaping, but also argued that there should be no remedy of exclusion of evidence if a breach was found.

However, the Court determined that the Charter- infringing conduct in the case was serious and pointed towards exclusion of the breath test results. The Court found there was a moderate impact on the Charter protected rights, primarily because there was no videotape.

However, the Court stated that even though the third factor would favour inclusion, on balance the long-term interests of the justice system would be best served by the exclusion of the breath sample evidence. [ 30 ] In the Alberta case of R v Andre , 2018 ABPC 261 [ Andre ] the female accused was observed by a male police officer while she used the toilet. A female officer had performed a pat down search of the accused and was still

available in the detachment. There was a separate washroom at the detachment which was used by female police officers so an alternative location without surveillance was available. However, the accused was taken to a prisoner cell for use of the toilet. The officer stood at the door of the cell and watched the accused. Although he said he only saw the accused’s face as she sat on the toilet he advised that he did not turn away while she was urinating.

The Court excluded the breath test results referring to both the Mok and Wijesuriya decisions. [ 31 ] There is nothing in the Andre decision to suggest there had been any previous decisions in Alberta with similar facts. Nevertheless, the Court characterized the state conduct as serious and falling far below the constitutional standard established by courts with respect to the monitoring of detainees of the opposite gender.

The Court stated that the use of a toilet could easily have been accommodated in a way that complied with constitutional standards, while maintaining general security and preserving the integrity of the breath testing process. [ 32 ] This is not the first time this fact situation has been considered in Saskatchewan. In R v Wildfong, 2015 SKPC 55 my sister Judge M.L. Gray found the female accused’s s. 8 right to privacy had been breached when the police videotaped her using the washroom.

Judge Gray found that the police should have provided the accused with a blanket or screen of some sort to cover herself or at the least she should have been told about the camera so she could make an informed choice about using the toilet, or discuss other reasonable alternatives. [ 33 ] While acknowledging that there are valid reasons for recording and monitoring activities in places where individuals are detained, Judge Gray found the violation of the personal integrity of the accused came about through inadvertence or negligence and there was no evidence before her as to whether this was an isolated incident or whether it was the usual manner in which individuals waiting to provide breath samples were treated.

It was a significant factor in her decision, as it had been in Mok , that this was a case of first instance and the issues arising had not previously been considered by courts in this province.

After careful consideration and analysis, Judge Gray declined to order a stay of proceedings, and also declined to exclude the results of the breath tests. [ 34 ] In the present case, since there were two female officers present in the washroom to provide security, there is nothing in the evidence to suggest there was anything preventing the officers from ensuring there was no videotaping of the accused while she was using the toilet, or from providing a privacy screen of some sort in front of the toilet. What was apparent from Cst.

Robinson’s evidence was that there was simply no thought given to the fact that it was being videotaped and therefore I must assume that this is the routine practice for the treatment of detained individuals in the police station, not an isolated incident. [ 35 ] Police forces in Saskatchewan, even if they do not educate themselves with respect to developments in the law affecting police practices across the country, have had notice since Judge Gray’s decision in 2015 of the need to remedy the defects in their detention surveillance system .

Although Judge Gray did not grant a remedy in her case, she clearly identified that the police practices breached accused person’s rights under s. 8 of the Charter. [ 36 ] I think it is clear that the accused’s rights under s. 8 of the Charter have been breached in this case. Defence counsel included alleged breaches of the accused’s ss. 7 and 12 Charter rights in his materials. However, none of the reported cases have commented on whether the police practice in videotaping persons using the toilets in detention areas also breaches those persons’ ss. 7 and 12 Charter rights.

Since there were no cases provided to assist me in addressing the defence submission that those rights were breached, nor any specific argument presented on those rights by either the Crown or the defence, I decline to comment on that submission, given my conclusion with respect to the alleged breach of the accused’s rights under s. 8 of the Charter. [ 37 ] In my opinion, the failure of the police forces in Saskatchewan to change their procedures following Judge Gray’s decision, and the several decisions in Ontario, reflects a lack of diligence on the part of the police authorities.

It might not occur to persons responsible for the policies relating to treatment of detained persons that practices which have been in existence for some time need to be re-assessed in the absence of something which brings the need to do so to their attention. However, once the issue was raised it should have been immediately apparent to those persons that changes needed to be made. The videotaping of persons using a washroom is a serious invasion of their privacy and personal integrity.

[38] Having found a breach of the accused’s rights under s. 8 of the Charter, I must now determine if a remedy under s. 24(1) of the Charter should be granted. The law is clear that a judicial stay of proceedings is an exceptional remedyreserved for the “clearest of cases”. The leading authorities are R v O’Connor, (SCC), [1995] 4 SCR 411; Canada vTobiass, (SCC), [1997] 3 SCR 391 [Tobiass] and R v Regan, 2002 SCC 12 [Regan]. The principles of those cases weresummarized by the Ontario Court of Appeal in R v Zarinchang, 2010 ONCA 286 at para. 57 as follows:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual’strial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves stateconduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceeding under either of the above categories, the following criteria must be satisfied: (

i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; it must be directed at prospective prejudice, not to redress past prejudice; and (ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases of either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious tocreate the prejudice to warrant a stay, there is a third criterion that the court may consider -the balancing of the interests in granting a stayagainst society’s interest in having a trial on the merits. [39] Clearly, this case falls within the “residual category” of cases that may attract the remedy of a judicial stay. The Supreme Court stated in Regan at para. 55: As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair.

Under s. 7 of the Charter, however,a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of thesystem (O’Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied:“[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, atpara. 91).

When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is onlyappropriate when the abuse is likely to continue or be carried forward.

Only in “exceptional”, “relatively very rare” cases will the pastmisconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91). [40] As indicated in paragraph 3 of the quotation above from Zarinchang, it is often necessary to consider a third criterion where the court balances the interests in granting a stay against society’s interest in having a trial on the merits. I think that analysis should be taken in most cases.

While offences concerning drinking and driving are of great concern to the courtsand to the public, it should be remembered that in this case there was no evidence of bad driving. While there can be a clear danger tothe public when an intoxicated person is in the driver’s seat of an operational vehicle, the facts of this case are not egregious.

Societyalso has a significant interest in the enforcement and protection of Charter rights. [41] When I balance the particulars of the present case, the nature of the charge the accused faces, the previous decision of this Court and other courts and the broader interest of the community in having the charge disposed of on themerits, I have come to the conclusion that a stay is the only appropriate remedy. [42] Crown counsel suggested there are other remedies the accused could pursue, such as a civil claim or an application to the Human Rights Commission.

In my view the possibility of such remedies does not mean that a stay shouldnot be entered. The remedy under the Charter is intended to be prospective; its purpose here is to ensure the state misconduct invideotaping persons using toilets while in detention does not continue.

Similarly, I do not believe that a reduction in sentence, in thecircumstances, properly conveys the Court’s need to disassociate itself from the police policy at issue in this case. [43] For the reasons set out above, I direct a judicial stay of proceedings of the charge the accused is facing, pursuant to s. 24(1) of the Charter of Rights and Freedoms.

______________________________ C. Snell, J [1] All of the reported decisions which have been cited by the Crown and the defence have found videotaping persons in detention areas of police stations to breach the s. 8 Charter rights of the detained person . [2] In cases where the accused is charged with driving or having care or control of a motor vehicle while over .08, s. 24(2) is available as a remedy.

However, in cases like Mok and the present case, where the only charge is of impaired driving or care or control, a stay is the only remedy that can be granted under the Charter , if one is to be granted, other than a reduction in the sentence. For example, in Joseph , the Court noted that since the impaired driving charge was to be dismissed on the basis of reasonable doubt, there was no need to address the question of whether a stay of proceedings was an appropriate remedy, since the exclusion of the evidence was available as a remedy to lead to the accused ’ s acquittal on the over .08 charge.