R. v. Stoney, 2015 ONCJ 740

CITATION: R. v. Stoney , 2015 ONCJ 740 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- RANDY STONEY REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with exceed 80, offence date March 4 2014. That the defendant was driving and blew well over the legal limit less than 2 hours later is not disputed. The case is defended on various Charter grounds and a contention that the “as soon as practicable” requirement has not been met. 2 .

The facts can be briefly stated: At around 3:30 pm, the defendant was seen driving and allegedly speeding by police officers who followed him a short distance before activating roof lights and then sirens. He did not pull over immediately but turned into a strip plaza parking lot. He seemed oblivious to the police presence (and later testified that he did not see or hear them). The police pulled up beside him and one of the officers went to his car, reached in and either turned it off or otherwise gained the defendant’s attention.

The officer took the defendant from the driver’s seat to the rear of his car and conducted a pat down search at the trunk. Nothing was found though a smell of alcohol coming from the defendant was detected. An ASD test ensued resulting in a fail, an arrest and transport for Intoxilizer tests. 3 . As they left for the station, the defendant said that he had to go to the bathroom. 4 . On arrival at 22 Division at 4:19 the police and the defendant were kept waiting at the door from the sally port into the booking area for 25 minutes. During this time the defendant again said that he had to go to the bathroom.

He was told to “hold it in”. He tried to do so, experiencing considerable pain in the attempt. He eventually could hold on no longer and urinated in his pants at 4:31. The police were aware that he had done so. Eventually, at 4:44, they were let in. Breath tests were conducted at 5:20 and 5:44 betraying a BAC of 200. 5 . The defendant was lodged in a cold cell for about 9 hours before being released. At no time was he provided with a change of clothes or alternate covering and remained in his wet jeans throughout. He was not fed.

Stay of proceedings: 6 . It goes without saying that a person held in police detention and custody must be treated with such dignity and respect as the circumstances permit, and his basic human needs must be met. 7 . Here the defendant twice told the police that he had to go to the bathroom yet was told to hold it in and was kept waiting while a bathroom and relief were mere steps away. The rationale for keeping him waiting – that only one prisoner at a time is permitted in the booking area – seems rather thin even as a general policy.

How problematic could it be to have more than one handcuffed arrestee in the area? But even if it is a generally sound policy, it can’t be inflexible and must bend to at least temporarily accommodate particular circumstances such as those presented here. 8 . Crown counsel argues that the defendant did not make it clear that his need was urgent. But the defendant had expressed his need twice which I think should have been enough for an inquiry to be made by the police as to how urgent the situation was, rather than a dismissive “hold it in”. 9 .

After failing to accommodate the defendant’s need to urinate, the situation was aggravated by subsequent actions and non-actions by the police. First, the urination situation was not unique and clothing changes or “bunny suits” were available at the station. Yet the defendant was not offered or given one. The arresting officers say they told the custodial officers that the defendant had wet himself (as did the defendant) but the information was either over-looked or ignored. 10 . Again it is suggested that the defendant should have been more vocal.

But I think it is understandable that he would not want to draw additional attention to his embarrassing situation particularly when he likely would not know that a change of clothing was available. 11 . Next the situation was then compounded by his being kept in custody for 9 hours in that condition . While detention for that length of time could be justified given the Intoxilizer results, such lengthy detention in wet pants would prolong the discomfort and indignity of the situation even in reasonably comfortable custodial conditions. 12 .

But the custodial conditions were far from reasonably comfortable and in fact aggravated the situation. Aside from being small and very Spartan – a tiny concrete box with a concrete slab for a “bed” - the cell area was, I find, unreasonably cold. The defendant testified that he was freezing and shivering- that it was very cold to the point of being painful. His evidence is supported by the cells video in which he is seen wearing only a T shirt and the wet jeans. (He had been wearing a winter coat and sweater on arrest – couldn’t he have kept at least the sweater?).

He shows all the signs of being uncomfortably cold including trying to put his arms and head inside his T shirt for whatever warmth that might provide. Eventually he asked for a blanket and after more than half an hour was given a thin yellow plastic sheet. He said it did not help. The cells officer could not say how effective these “blankets” are since he had never tried one. 13 . I am concerned that defence counsel neglected his duty under Browne and Dunn to question the cells officer about the temperature in the cells area.

In considering what effect this omission should have, I take into account the fact that the coldness of the cell was mentioned in the written Charter application filed before trial and therefore the issue was, to that extent [1] , raised before the defendant testified.

Further, even if the officer had been asked and had testified that the area was held at a comfortable temperature I don’t think much weight could be given to that evidence having regard to the video and other evidence [2] summarized above and the fact that the officer’s experience, being periodically in and out of the cells area, would be substantially different from that of the defendant who was held in prolonged uninterrupted custody in the area while wearing wet clothes. 14 . The defendant testified that he was hungry during the time he was in cells.

He had been in police custody since about 3:30 pm and was ultimately released at around 3am – just short of 12 hours. There is no record of his having been offered (or declining) food during that period of detention. The cells video shows the inmate in the adjacent cell being given food. 15 . In

summary, during his time in police custody the police failed to provide him with • Access to toilet facilities at a time when such facilities were needed, requested and readily available. • Change of wet clothing • Warmth – commensurate with the clothing he was wearing and the length of his detention

• Food 16. In my view the totality of this neglect amounted to failure of the police to meet their obligation to ensure fair, humane and dignifiedtreatment of a person held in their custody. It was offensive to societal notions of fairness and decency. 17. Does it amount to a Charter violation? It doesn’t fit into any of the specific rights in sections 8-11. If it fits anywhere, it must bewithin the vague and fluid boundaries of

section 7 – the constitutional black hole that sucks in all manner of non-specific police/statewrongs that arise in the context of arrest detention and prosecution.

Section 7 has been held to be engaged in the use of excessive forceon arrest by police: R v Nasogaluak 2010 SCC 6 , [2010] 1 SCR 206 and in taking bodily samples from a detained personwithout consent: R v Stillman (SCC), [1997] 1 SCR 607. I can think of no reason in principle to distinguish thosesituations from the present one. Accordingly, the treatment of the defendant in this case also amounted to a violation of Charter section7. 18.

A stay of proceedings is to be reserved for the clearest of cases, where there has been prejudice to the integrity of the justice system,where no other remedy will adequately address the prejudice or dissociate the justice system from the impugned conduct; R v Babos [2014 SCC 16 , 2014]1 SCR 309. 19.

A stay of proceedings was directed by Feldman J in R v Sathymoorthy 2014 ONCJ 318 in circumstances quite similar to this case.While in that case there was some “slight mocking” by police of the urine soaked accused, a factor not present here, this case carries theaggravating feature of the police bearing substantial responsibility for the defendant wetting himself in the first place.

Accordingly Iregard the breach here as somewhat more serious than in Sathymoorthy while the public interest in trial on the merits here issubstantially less than in that case where a potentially serious accident was caused and the defendant’s level of impairment wasgrotesque. Here there is no impaired charge at all, albeit the readings were high. 20. In the result I adopt Justice Feldman’s balancing of the competing interests (para 38) and reach the same conclusion that he did. Theproceedings will be stayed. November 12 2015 B Duncan J J Carolin for the defendant T Powell for the Crown