Her Majesty the Queen - v. -, 2015 SKPC 55

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 055 Date: April 17, 2015 Information: 24537641 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Danielle Marie Wildfong Appearing: S. Fillo For the Crown A. Fox For the Accused DECISION ON VOIR DIRE M.L. GRAY , J Background [ 1 ] On April 27, 2014 at Corman Park, Saskatchewan, the accused was charged with operating a motor vehicle while her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1) (

b) of the Criminal Code . A Charter notice was filed asking that the charge be stayed pursuant to s. 24(1) of the Charter of Rights and Freedoms or alternatively, that evidence of the breath samples be excluded as a result of a violation of s. 8 of the Charter . The evidence was called on a voir dire . The issues left for the Court centre on whether there was a violation of s. 8 and, if so, the appropriate remedy.

Evidence [ 2 ] On April 27, shortly before 5:30 in the afternoon, the Saskatoon RCMP received a request from staff at a local casino to investigate a possible impaired driver who had just left. Constable Bouchard made a patrol, located the described vehicle and pulled it over. The accused was the operator of that vehicle. [ 3 ] The accused produced a driver’s licence and registration and told the officer that she had consumed two drinks.

As a result, he formed the suspicion that she had alcohol in her body and asked her to go to the police vehicle in order to provide a sample of her breath into an approved screening device (ASD). Counsel for the accused advised that there was no issue with the form of the demand pursuant to s. 254(2) or the subsequent s. 254(3) demand; nor was any issue being taken with the grounds to support those demands.

Nonetheless, evidence was called establishing the grounds for the demands and that the demands were made in a proper form. [ 4 ] As a result of a fail on the ASD, the accused was arrested at 17:34 for operating a motor vehicle while her blood alcohol content exceeded the lawful limit. She was advised of her rights to counsel, given the police warning and a breath demand was made at 17:38. She said that she understood. At 17:39 the officer left the scene with the accused to attend at the Saskatoon detachment for the purpose of providing breath samples into the Intoxilyzer. En route, Ms.

Wildfong advised the officer that she needed to urinate. The officer slowed, and started to pull over to the side of the road while informing her that she would not have any privacy. She said that she could wait until they got to Saskatoon. [ 5 ] When they arrived at the detachment at 17:40, she was given an opportunity to use the toilet and was told that she would have to be accompanied by a matron to ensure that she did not take anything by mouth; she had not been searched. Ms. Wildfong was placed in an unlocked cell for the purpose of using the toilet.

A matron was required to watch the accused through the window of a closed cell door. Once the accused used the toilet, she was given an opportunity to make a private call to a lawyer on her own cell phone. That call was placed at 17:55, and at 18:06 the officer noted that the cell phone was on the desk and that the accused was typing on it. He asked if her call was completed, then took her to the booking desk where he started a 15 minute observation period before the first breath test. Constable Lebraun was the breathalyzer technician and the first attempt did not yield a suitable sample.

A further 15 minutes of observation followed before a second attempt at providing a sample was made. Two suitable samples were ultimately provided and the technician prepared a Certificate of Qualified Technician which was photocopied by Constable Bouchard and served upon the accused. The original Certificate was marked as P-1 on the voir dire . [ 6 ] The accused had provided photo identification and was identified by the officer in Court. [ 7 ] In cross-examination, Constable Bouchard acknowledged that he knew the accused wanted privacy in order to go to the bathroom.

A matron was present at the detachment when the accused was directed to one of the possible seven holding cells; a male guard or commissionaire was on duty as well. The officer could not recall whether anyone else was being held in the other cells or whether any other peace officers were present when they initially arrived at the detachment. Constable Lebraun, the breath technician, arrived after Constable Bouchard and the accused. Constable Bouchard agreed that the accused was cooperative and that he had no security concerns with respect to her; she did seem nervous.

He acknowledged that all of the holding cells are monitored by cameras and that a bank of monitors are available for guards to observe the cells. These monitors are seen only by the guard, matron or peace officers, not by the public. The matron watches the monitors of the females in cells while the commissionaire watches the monitors for the males. He agreed there was nothing preventing police personnel from walking into the room containing the monitors. Further, the cameras videotape the holding cells and a record is kept of those videos.

The detachment has other washrooms including one in the men’s locker room or a public washroom at the front of the building; these do not have surveillance cameras. He agreed that the 15 minute observation period began after the matron had escorted the accused to use the toilet. He did not advise the accused that the cell which she used was monitored but said the camera in the cell was visible. He did not mention the cameras or the videotaping to her as it simply did not cross his mind to do so.

He further acknowledged that the accused asked to use the washroom a second time at 18:46, approximately one hour after arriving at the detachment. He could not recall what procedure was followed on that occasion but presumed the accused would have gone to the same cell with the same matron and that no information was given to her about the monitor or videotape. He did not watch the videotape that was created that night. He did not know how the video system at the detachment works.

He identified Exhibit D-1 as representing the detachment and identified both himself and the accused on the video. [ 8 ] On re-examination, he described the cameras in every cell and hallway as mounted on the ceiling and clearly visible. He

was not aware of any signs posted to advise of the recording and/or monitoring. That concluded the case for the Crown. [ 9 ] Ms. Wildfong testified that she is 29 years old and has a university degree in business. She had never been arrested prior to April 27, 2014. On that date, she was driving north on Highway #219 when she saw the lights of the police vehicle. As a result, she turned onto a quiet grid road and stopped. The officer approached and asked her for her driver’s licence and registration which she provided. The registered owner was the passenger in the vehicle.

The officer confirmed that she had consumed alcohol and asked her to go to the patrol car to provide an ASD sample. She did so, and it resulted in a fail reading. The officer read a formal demand from a card for samples on the Intoxilyzer, arrested her and drove her to the detachment office in Saskatoon for this purpose. [ 10 ] They chatted en route and she asked the officer if she could stop to “pee”. He pulled over and told her that there would be no privacy at the roadside; she responded that she could wait until they got to the detachment so she could have some privacy.

When they arrived at the detachment, the officer told her that the matron would observe her as she went to the toilet. She was taken to a cell, the door was closed and the matron remained outside with her back to the door. She had not been told that the cell was monitored by a camera and she saw nothing to suggest that it was being videotaped. She did not notice a camera in the cell. After she had used the bathroom, she called a lawyer after which she was observed before the first sample was attempted.

That first sample did not provide a reading and so she was taken to another room to be observed for a further 15 minutes. She asked to use the washroom again before the second attempt to provide a breath sample. The same process occurred with the matron taking her to a cell, and closing the door. She was given no information with respect to the monitor or the videotape. After she blew into the Intoxilyzer the third time, she was released from custody. [ 11 ] The first time she became aware that she had been videotaped and monitored was when her lawyer showed her the video. She was embarrassed and shocked.

She identified herself on the video which was marked as Exhibit D-1. The video depicts what you would expect: the accused is seen lowering her garments, sitting on the toilet, then standing and raising her undergarments and pants. Her bare legs and buttocks were exposed to the camera. [ 12 ] In cross-examination, she said that she did not recall being cut off from being served any further alcohol and agreed that would be an unusual occurrence. She denied that the consumption of alcohol had affected her memory, but said that the passage of time had.

She was aware that her companion was not being served as he told her this and suggested that they leave. She agreed that readings of 160 and 150 would suggest a considerable amount of consumption. She could not say how long she had been at the casino but estimated it to be one and one-half to two hours. Prior to attending at the casino, she had consumed one beer and believed she had one further drink there. She could not specifically say how much alcohol she had that evening. When it was suggested that her blood alcohol levels would suggest more than two drinks she said she did not know.

She did not agree that she had more than ten. When asked whether this was the cause for her needing to go to the bathroom she said that she “has to pee a lot” because she “drinks a lot of water”. She denied that she spoke to a security officer before driving away and felt she had been driving for about ten minutes before being stopped. The drive home would have taken another five to ten minutes. She agreed that she asked the police officer to stop en route to Saskatoon to relieve herself and asked if she could go to a service station.

She would not have urinated on the side of the road as she would have been very exposed and did not want to be observed. She agreed that the officer had no issue with her using the bathroom first thing upon arriving at the detachment and that everything in the detention area was in very close proximity. She accepted that the matron would be watching her when she went to the bathroom but she would not have been prepared to do so if she had known of the camera. She would have asked that the video be turned off and if it could not be stopped, she would have waited until she was out of custody to go to the bathroom.

This comprised the case for the defence. Positions of the Parties [ 13 ] Counsel for the accused argues that the recording of the accused while she used the toilet was an egregious breach of her right to privacy and constitutes a violation of her rights pursuant to s. 8 of the Charter . Although this issue has not been litigated in Saskatchewan, a number of cases in Ontario have considered it.

The defence referred the Court to: R v Mok, 2012 ONCJ 291 appealed 2014 ONSC 64 [ Mok ]; R v Deveau , 2014 ONSC 3756 ; R v Joseph, 2014 ONCJ 559 [ Joseph] ; R v Chasovskikh, [2013] OJ No 16 [ Chasovskikh ] ; R v Arbelo, 2014 ONCJ 275 [ Arbelo ] and R v Griffin, 2014 ONCJ 204 [ Griffin ]. [ 14 ] Counsel for the Crown argues that there is no violation of s. 8 and that there is no nexus between the act complained of and the obtaining of evidence; therefore no remedy is warranted in a criminal proceeding. Rather, it is an issue to be addressed in another forum such as the Human Rights Commission or a civil suit.

Further, if there is a breach, this is not a situation where the extraordinary remedy of a stay is necessary.

The Law [15]

Section 8 of the Charter is inextricably linked to the protection of the personal privacy of an individual and the SupremeCourt of Canada has held that the “violation of the sanctity of a person’s body is much more serious than that of his office or even of hishome”: see R v Stillman (1997), (SCC), 113 CCC (3d) 321 at para 42. However, not every privacy interest is grantedconstitutional protection; rather the protection of s. 8 is against unreasonable search and seizure where there is a reasonable expectationof privacy.

There must be a subjective expectation of privacy and that expectation must be objectively reasonable: see R v Edwards, (SCC), [1996] SCJ No 11. [16] In R v Wong, (SCC), [1990] SCJ No 118, the Supreme Court of Canada held that video surveillance, in someinstances, can amount to a search if the individual under surveillance had a reasonable expectation of privacy. [17] In Mok, the trial judge, West J., found that although individuals in custody have a lowered expectation of privacy, it isreasonable for a detainee to expect a minimal degree of privacy.

Although the accused was advised that activities at the police stationwere video recorded, the court found that recording her use of the toilet was a violation of s. 8. Ultimately, a stay of proceedings wasordered but the accused was then placed on a common law peace bond with a condition that she not operate a motor vehicle for oneyear. On appeal, Boswell J. upheld the finding of a s. 8 violation but set aside the stay. In coming to that conclusion, the court foundthat the trial judge failed to: (

i) consider that a stay of proceedings is a prospective remedy, not intended to compensate an accused for apast prejudice; (ii) take into account that this was a case of first instance that raised an issue previously not considered by the courts and,as a stay is a remedy of “last resort” the police must be given an opportunity to correct the situation (para. 99) ; (iii) that the trial judgegave undue weight to the egregiousness of the breach; and (iv) gave insufficient weight to the public interest in having the matterdecided on its merits. The stay of proceedings was set aside.

This decision is under appeal to the Ontario Court of Appeal. [18] In Deveau, the accused was also video recorded while relieving herself on the toilet. The trial judge found that thisconstituted a s. 8 violation and excluded the breath results of 135 and 127 milligrams of alcohol in 100 millilitres of blood. This decisionwas upheld on appeal where it was argued that there was no causal connection between the violation of privacy and the taking of thebreath samples.

The court found no causal connection but held that a temporal and contextual connection was made out given the closerelationship in time between the two events. At para. 20, Howden J. states: . . .She is denied a basic right to privacy which touches on her dignity and worth as an individual. In that hour and a half between theincarceration and the breath samples being taken, she is treated no better than a convicted prisoner even though she has not been tried,and she is entitled to the presumption of innocence that any detainee before trial is entitled to.

The deprivation of her right to privacy forher most basic human functions becomes one transaction in time, in experience, and no doubt in her consciousness with then having toprovide samples of her breath to the police, another taking from her though not as invasive as being video and audio-recorded whileurinating or excreting her waste substances open to view of anyone who wandered in and to those monitoring the recording equipment. [19] With respect to the s. 24(2) analysis, the appeal court in Deveau distinguished Mok, saying, at para. 24: Unlike Ms. Mok, her (Ms.

Deveau) condition and behaviour was controlled and compliant. While no case of drinking and driving is notserious, this case simply does not reach the same imperative of adjudication in the societal interest. [20] In Joseph, the accused was also video-taped using the toilet while in police custody on drinking and driving charges. Abathroom without surveillance was available between the booking desk and the holding cell. In this case, the Crown conceded the s. 8breach and the only issue was whether exclusion of the certificate was warranted. The court found that the conduct of the state wasegregious.

First, an unmonitored washroom was readily available thus rendering the video-taping unnecessary and avoidable. Second,the conduct is more serious than some strip searches in that the recording was preserved and viewed by an unknown number of people. Third, this occurred approximately one year after the trial decision in Mok and the police had not acted to remedy the situation. Moresignificantly, the court found that the officer had been less than truthful with the court.

The impact upon the accused was found to behighly intrusive, leaving the accused feeling “angry, disgusted and personally violated” (para. 42) when he learned of the recordingthrough disclosure of the police file. The court found that an exclusionary remedy was favoured on the first two arms of the s. 24(2)analysis but inclusion was favoured on the third arm. After balancing these considerations, the court found that inclusion of thecertificate would harm public confidence in the administration of justice. The court noted that although the accused’s BAC was high,

there was no accident and indeed no evidence of impaired driving. The indifference of the officer to the accused’s right to privacy and tohis obligation to be honest with the court amounted to an institutional indifference to the rights of the accused. The Certificate wasexcluded. [21] In Chasovskikh, a decision of West J. the author of Mok, the accused was recorded using the toilet prior to the taking ofbreath samples.

She was not told of the surveillance at the time and learned of it upon her release when she was provided a document tothat effect, along with notice that the recording would be retained for one year. The court stayed the proceedings and, as in Mok, placedthe accused on a one year common law peace bond ordering that she not drive a motor vehicle. The court found that the circumstancesfell into the residual category of cases that can attract the remedy of a stay.

Here, as no steps had been taken to address the issue ofvideo-taping toilet use by detainees, the court concluded that the state misconduct had and would occur in the future and that continuinga prosecution in those circumstances would offend society’s sense of justice. [22] In Arbelo, the male accused was also video-taped using the toilet while he was in police custody pursuant to a breathdemand. The evidence showed the accused “probably urinating”, although his trousers were never lowered and his genitals were notexposed to the camera. He testified that he was “humiliated” by the process: (para. 23).

The trial judge followed Mok and Deveau andfound a breach of s. 8 of the Charter. The court denied the application for a stay, saying that the depiction on the video was “the leastundignified scene” (in comparison to the precedents cited) and neither private parts or undergarments were visible. Further, since Mok,the police had corrected the situation by blurring the toilet area on the video.

With respect to the issue of whether the evidence of thebreath test should be excluded, the court found that the only connection between the impugned conduct and the taking of the tests wasthe fact that the accused had been recorded in the washroom prior to the taking of the tests. Given the lack of nexus, it was the view ofthe court that the accused was not entitled to the remedy of exclusion. However, the trial judge went on to a s. 24(2) analysis in theevent that he was in error with respect to the lack of connection between the breach and the gathering of evidence.

After doing so, heconcluded that exclusion was not warranted. [23] Griffin was also a decision of the Ontario Court of Justice and arose in the context of a trial of drinking and driving offences. In this instance, the accused knew that her use of the toilet would be recorded. The court found this an important consideration as itpermitted the accused the choice of whether to use the toilet and the manner in which she did so. The court found that the accused had asubjective expectation of privacy, albeit very low.

That expectation was objectively reasonable and the conduct of the police ran afoul ofs. 8 of the Charter. The court also found that recording activity in police holding cells was premised on sound and valid public policy. In considering whether the matter should be stayed, the court found that the conduct was unrelated to trial fairness, but rather fell into theresidual category based on state conduct that undermines the integrity of the judicial process. Ultimately, the court held that a stay wasnot warranted because: (

i) the recording of cells is for solid public policy reasons; (ii) the police were respectful of the privacy of theaccused, the video came to light only through disclosure and very few people had access to the video; (iii) the law at the time of therecording was not settled; (iv) evidence was called to show that the police were taking the matter very seriously; and (

v) the policemisconduct did not outweigh the public interest in having drinking and driving offences resolved on the merits. [24] The court in Griffin also dealt with the alternative application to have the evidence excluded. Although in agreement with thecourt in Deveau that there was a sufficient nexus between the misconduct and the obtaining of the evidence to make exclusion anavailable remedy, the court did not exclude the results of the breath test after a s. 24(2) analysis.

In considering the seriousness of theconduct which infringed the Charter, the court found that the officers acted in good faith and in accordance with sound safety practicesthat were in place at the time. Although the recording of the accused was an affront to her dignity, the court noted that the effect waslessened by the fact that the accused knew she was being recorded and consequently the camera captured but a fleeting glimpse of herbare buttock. Further, the video was seen by few individuals and publication or broadcast of the video was banned once it became partof the court record.

The court found that the impact on the accused’s privacy rights to be “negligible”. Society’s interest in theadjudication of drinking and driving cases is high given the toll that these offences take. Further, the evidence sought to be excluded isscientific, reliable and necessary to the proof of the Crown’s case. This factor, too, was found to favour inclusion. In conclusion, thecourt held that exclusion of the breath tests would bring the administration of justice into disrepute.

Analysis Was s. 8 of the Charter infringed? [25] Video surveillance of an individual can amount to a search if the subject had a reasonable expectation of privacy: Wong. Although privacy expectations are necessarily lowered in police custody, they are not totally removed: R v Beare,

(SCC), [1987] SCJ No 92 at para 59; R v Stillman, (SCC), [1997] SCJ No 34 at para 61. In this instance, the accusedclearly expected some privacy. Further, she was given the illusion of privacy when she was placed in the cell and the door closed. Theaccused also testified that the matron who accompanied her stayed outside the cell and turned her back, adding to that illusion. Thisevidence was not challenged or contradicted. Although the surveillance cameras were visible, they were not drawn to the attention of theaccused nor was she ever told that she was being recorded.

Her subjective expectation of privacy under these circumstances isobjectively reasonable. [26] Was the conduct of the state unreasonable? No evidence was led as to the reason for recording activities in the cells, but Iaccept, in general, that there are valid safety and security reasons for doing so. The question is whether implementation of those soundpolicy reasons infringed the rights of this particular accused. Here, Constable Bouchard testified that he had no security concerns withMs. Wildfong and indeed did not recall even doing a pat down search of her. He described her as cooperative.

It is clear on the evidencethat the officer simply did not turn his mind to the fact that cameras were capturing the activity in the secure area of the detachment,including the cells and he candidly admitted as much. He did not watch the recording at any time, and indeed sought the permission ofthe court not to watch the more intimate aspects of the recording when it was played during the trial. He could not say whether anyonewas watching the monitor while the accused used the toilet although the matron is normally responsible for doing so.

At the time theaccused came into the detachment, there was a matron and a commissionaire on duty; he did not recall any officers being there other thanConstable Lebraun who was the breath technician. Only staff members would have access to the monitors. Further, there were twowomen’s washrooms without any video surveillance: one in the female officers’ locker room and a public washroom in the main foyer ofthe building.

No thought was given to whether the accused could have been accommodated in either of those facilities. [27] After carefully weighing all of these circumstances, I find that, although the accused’s expectation of privacy was reducedwhile she was in custody, she was still entitled to some privacy while using the toilet and some consideration should have been given toher in that regard.

As suggested in Mok, she might have been provided with a blanket or a screen of some sort to cover herself or, at thevery least, should have been told of the surveillance camera so that she could have made an informed choice or discussed possiblealternatives. By failing to do so, the officers violated her right to privacy thus subjecting her to an unreasonable search and seizurecontrary to s. 8 of the Charter. Is a judicial stay of proceedings pursuant to s. 24(1) the appropriate remedy? [28] It is well accepted that a stay of proceedings is an exceptional remedy to be granted in only the clearest of cases.

In Griffin, atpara. 37, the court quoted the Ontario Court of Appeal in R v Zaringchang which set out the legal principles respecting a stay ofproceedings: 1. There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of anindividual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, butinvolves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process. 2.

In considering whether to grant a stay of proceedings under either of the two 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 in either of the above categories where there remains uncertainty as to whether the abuse is sufficiently serious to warranta stay, there is a third criterion that the court may consider - the balancing of the interests in granting the stay against society’s interest inhaving a trial on the merits. [29] As in Mok, Griffin and Chasovskikh, the case before me also falls into the residual category in determining whether a stay isthe appropriate remedy. In that regard, I note the following: (

i) there are valid reasons for recording and monitoring activities in places where individuals are detained;

(ii) the violation of the personal integrity of this accused came about through inadvertence or negligence, not malice. The recordingcame to light only through complete disclosure and only a few individuals had access to either the monitor or the recording. Thepublication and broadcast of the recording which was filed as an exhibit will be banned to protect against further dissemination; (iii) this is a case of first instance and the issues arising have not previously been considered by courts in this province.

In Ontario,where the issue has been litigated, different approaches have been taken and the Ontario Court of Appeal has yet to consider them; (iv) there is no evidence before me as to whether this is an isolated incident or whether it is the usual manner in which individualswaiting to provide breath samples are treated. Consequently, it cannot be said that a stay is required to ensure the misconduct does notcontinue; and (

v) the courts have long considered that drinking and driving offences are very serious and that the public has a high expectation inhaving them adjudicated on their merits. [30] Recording an individual who is using the toilet is offensive and demeaning; however, when it occurs in circumstances wherethe expectation of privacy is significantly diminished, and access to the images is limited, I do not view this as a rare case where thecontinued prosecution will offend the public sense of justice. Neither can it be said that the prosecution of Ms.

Wildfong wouldperpetuate the wrong-doing since this is a first instance and an opportunity must be granted to the police to redress the problem. Further,other recourse is available, such as: the exclusion of evidence, civil proceedings, or a complaint to the police commission or HumanRights. On balance, societal interest in having the matter heard on the merits in these circumstances outweighs any prejudice to thisaccused. The application for a judicial stay is denied.

Is exclusion of the results of the breath tests warranted pursuant to s. 24(2) of the Charter? [31] Counsel for the accused argues that the temporal nexus between the breach and the taking of samples warrants exclusion ofthe test results.

Counsel for the Crown argues that exclusion is not justified in the absence of a causal link. [32] Section 24(2) of the Charter states, in part: Where. . .a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by thisCharter, the evidence shall be excluded if. . .having regard to all the circumstances, the admission of it in the proceedings would bringthe administration of justice into disrepute. [33] In R v Manchulenko, 2013 ONCA 543 , [2013] OJ No 3977 (Ont CA) [Manchulenko], Watt J.A. , at paras 71-73,interpreted s. 24(2) in this fashion: 71.

Section 24(2) of the Charter only excludes evidence where an accused has demonstrated, on a balance of probabilities, aninfringement or denial of his or her enumerated Charter rights or freedoms, and that the evidence proposed for admission was "obtainedin a manner" that infringed or denied the accused's Charter right or freedom. This latter requirement insists that there be a nexus,expressed in the language "obtained in a manner" in s. 24(2), between the infringement and the evidence proposed for admission.

In theabsence of a nexus, or of an infringement, s. 24(2) has no application and the admissibility issue must be resolved otherwise. 72. To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis:Simon, at para. 69. Courts have adopted a purposive and generous approach to the nexus requirement: Wittwer, at para. 21. An accusedneed not establish a strict causal relationship between the breach and the subsequent evidence.

The subsequent evidence will be tainted ifthe breach and the evidence can be said to be part of the same transaction or course of conduct: Wittwer, at para. 21; R. v. Strachan, (SCC), [1988] 2 S.C.R. 980, at p. 1005. The essential nexus between the breach and the evidence acquired later may be

temporal, contextual, causal, or the three in combination: Plaha, at para. 45; Wittwer, at para. 21; and R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40. . . 73. As a general rule, a temporal connection between the Charter breach and the acquisition of the evidence will suffice to make out thenexus requirement under s. 24(2). But the temporal connection involves more than simply counting up the time that has elapsed betweenthe two events.

What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha,at para. 49. [34] Manchulenko dealt with the admissibility of breath samples where the accused was given an opportunity, but did notspeak to a lawyer before the first sample was given. He then spoke to counsel prior to the second sample. At trial, and on the

summaryconviction appeal, the courts held that the results of both tests should be excluded because of the s. 10(

b) violation. On appeal to theCourt of Appeal, a new trial was ordered on the basis that the lower courts neglected to take into account the effect of Chartercompliance before the second sample was obtained and whether that compliance had the effect of severing the second sample from theinitial breach.

Further, even if a nexus between the breach and the second sample could be established, the trial judge erred in failing toconduct a s. 24(2) analysis with respect to the second sample. [35] In Plaha (2004), (ON CA), 188 CCC (3d) 289, the Ontario Court of Appeal confirmed that a causalrelationship between the breach and the evidence sought to be admitted was not necessary. The accused in this case was arrested formurder and questioned by police through a Punjabi interpreter both before being advised of his right to counsel and before he had anopportunity to do so.

He was unable to consult a Punjabi-speaking lawyer until several hours after his arrest. At trial, statements hemade subsequent to that consultation were admitted. The Court of Appeal found that this was an error as the conduct of the policesupported the conclusion that all the statements were part of an ongoing process. The entire circumstances from the time of his arrest tothe completion of the interrogation had to be taken into account.

Nothing in the circumstances had changed –the accused remained inthe same interrogation room, questioned by the same officers who made no effort to sever the statements he made prior to speaking to alawyer from those he made afterward. At para. 45, the court stated: The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach andthe obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breachmay be temporal, contextual, causal or a combination of all three.

The connection must be more than tenuous: R. v. Goldhart (1996), (SCC), 107 C.C.C. (3d) 481 at 492-97 (S.C.C.). (Emphasis mine) [36] In the case at hand, I find that a nexus between the breach and the evidence obtained is tenuous. Apart from the two eventsoccurring close in time, there is nothing linking them. Indeed, the officer had not even turned his mind to the likelihood that the cellused by the accused was being recorded. Thus, it cannot be said that the breach and the obtaining of the evidence were part of acontinuing transaction or course of conduct in the pursuit of evidence.

Although, as expressed by Howden J. in Deveau at para. 20, thedeprivation of the privacy of the accused has become “one transaction in time, in experience and no doubt in her consciousness withhaving to provide samples of her breath to the police”, this link arose after the fact and not during the taking of the samples.

Therefore,it cannot be said that the evidence was obtained in a manner that infringed the right of the accused to be free from unreasonable searchand seizure. [37] However, in the event that I am in error and the proximity in time does constitute a sufficient nexus between the breach andthe evidence sought to be admitted, I would not exclude the breath sample results for the reasons that follow. [38] With respect to the seriousness of the breach and the nature of the state misconduct, the Supreme Court of Canada in R vGrant, 2009 SCC 32 [Grant] directed that the more severe or deliberate the state misconduct, the more likely the courts will disassociatefrom that conduct by excluding the evidence obtained.

As already stated, the recording and monitoring of holding cells, generally, is forvalid reasons. I am satisfied that the recording in this case arose from inadvertence and the failure of Constable Bouchard to advise theaccused of the cameras that have become part of the landscape in the officer’s work environment. It was not the result of a serious orwilful disrespect of the accused’s rights. This is a case of first instance and there is no evidence as to whether it was an isolatedoccurrence or a routine problem.

Overall, this is not serious Charter-infringing behaviour and a consideration of this aspect wouldfavour admission of the evidence. [39] Secondly, the effect of the Charter breach on the accused must be considered. The Court has no doubt that the accused feltembarrassed and humiliated to discover that what she believed was

an act being done in privacy was in fact recorded. However, there isno evidence as to whether the camera was monitored at the time of the recording or who, other than those present in court, was privy tothe resulting video. The evidence is that the matron, who should have been in the monitor room, was with the accused and that only two

or three others were present in the general area. The video was disclosed of necessity and it is probable that only a very few people have seen the recording. A publication ban will further limit the impact the breach has had on the privacy of the accused. The Court concludes that although the impact on the accused is not egregious, it is more than notional. Consideration on this arm would lean toward exclusion of the evidence. [ 40 ] The third line of inquiry enunciated in Grant centres on society’s interest in having criminal cases adjudicated on their merits.

The question is whether “the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”: see Grant para. 79 . The Court is obliged to take into account not only the negative impact on the administration of justice by admitting the evidence but also the negative impact of failing to do so.

The reliability of the evidence and its importance to the prosecution are relevant and, as was pointed out in Grant , the results of breath sample analyses are generally considered reliable and their exclusion would end any prosecution for driving over the legal limit: Grant para. 99-110 . Given the toll that drinking and driving takes on individual lives and on the community, societal interest in pursuing these prosecutions is high.

When weighed along with the accused’s diminished expectation of privacy while in police custody, the third factor also militates toward inclusion of the evidence. [ 41 ] After considering all aspects of the Grant analysis, this Court concludes that the admission of the evidence would not bring the administration of justice into disrepute particularly since this is a case of first instance and arose inadvertently rather than deliberately or flagrantly. [ 42 ] Accordingly, the defence application for a judicial stay of proceedings is denied as is the application for the exclusion of evidence.

The certificate is therefore admissible on the trial of this matter. [ 43 ] Finally, there is an order banning the publication or broadcast of the recording (D-1) and counsel are invited to address the question of destruction of that exhibit at the conclusion of the trial. _________________________ M.L. Gray, J