R. v. Fletcher, 2014 ONCJ 726

No. 13-571 Citation: R. v. Fletcher , 2014 ONCJ 726 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. SETH FLETCHER R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE B.E.PUGSLEY on December 16, 2014, at ORANGEVILLE, Ontario

APPEARANCES : L. Marcon Counsel for the Crown I. Izakelian Counsel for Seth Fletcher TUESDAY, DECEMBER 16, 2014 Pugsley, J (Orally): R E A S O N S F O R J U D G M E N T Seth Fletcher faces a single count of driving with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood. The matter proceeded as a blended trial and Charter application. The focus of the defence submission on the Charter application related to the alleged breach of the defendant’s privacy right by virtue of his being video recorded using the toilet in the cell.

For convenience, this was referred to as the Regina v. Mok application. The defendant also submitted that the Crown case failed on the merits, as the breath tests were not taken as soon as practicable. There were four Crown witnesses, all police officers employed at the time of the defendant’s arrest by the Orangeville Police Service. The defendant testified on his Charter application only. Constable Jonathan Dempster testified that on May 17 th , 2013, he was on duty as a police officer in Orangeville. At about 2:09 a.m., he noted the defendant’s motor vehicle travelling very slowly on Townline.

He saw the vehicle being driven with a lack of precision and stopped it. The defendant was the driver, and the officer noted a strong odour of alcohol on the defendant’s breath and that he had watery, bloodshot eyes. The defendant admitted to some alcohol consumption. Constable Dempster made a demand for a sample of Mr. Fletcher’s breath for analysis by an approved screening device. On his third attempt, the ASD registered a fail. At 2:15 a.m., the defendant was arrested for the offence before the court. Constable Dempster read the defendant his rights to counsel, the breath demand and the caution.

At 2:20 a.m., they left the scene for the Orangeville Police station. Constable Dempster went there because it was the closest location available for a breath test. If no qualified technician had been available there, they would have gone to a sister police service for the testing. They arrived at the Orangeville Police station at 2:24 a.m. At the station, they had to wait outside to enter the sally port. This was because there were other prisoners ahead of them waiting to be processed by the sergeant and lodged in the cells. By the time Mr.

Fletcher was paraded before Sergeant Dryden in the booking room, it was 2:44 a.m. The booking process took about 15 minutes, and then the defendant was lodged in the cells. At 3:10 a.m., Sergeant Dryden told Constable Dempster that Mr. Fletcher had changed his mind and wished to speak to the duty counsel. At 3:11 a.m., the officer called duty counsel, and at 3:21 a.m., duty counsel called back and then spoke to the defendant. That call was completed at 3:25 a.m. At 3:27 a.m., Mr. Fletcher was turned over to Constable Button for breath tests. Mr. Fletcher was processed and later released.

In cross-examination, Constable Dempster testified that he knew that there was a qualified breath technician working and so he didn’t need to consider what he would do if there was no breath technician at the station. He testified that there was an unusually large number of parties being lodged at the station when they arrived there. He made no inquiry of the availability of a qualified technician working at a different police force.

Selections from the booking room video and cell video were identified by the officer. Constable Robert Button was the qualified technician who tested the defendant. He described the usual process by which a qualified technician would be located if Orangeville did not have one available to conduct a breath test. On the morning in question, he was at home and was called out to test Mr. Fletcher. He received the call at 2:22 a.m. and was at the station just before 3:03 a.m. He readied the approved instrument, reviewed Constable Dempster’s grounds sheet and met the defendant at about 3:30.

The first sample was received at 3:39 a.m., and the second at 4:01 a.m. The analysis of the defendant’s breath on test one was 151 milligrams of alcohol in 100 millilitres of blood, and on the second test was 143 milligrams of alcohol in 100 millilitres of blood. Constable Button completed the Certificate of Qualified Technician, which was filed as Exhibit 1. He also testified that the cell video at the Orangeville Police station was motion-activated, that is, it recorded only when there was movement within the cell.

There is a large sign beside the sally port interior door indicating that the premises were audio and video recorded. The breath room activity was also video and audio recorded. Only that room and the witness interview room have a separate camera microphone system. All the rest of the station is video recorded and can be monitored from the dispatcher’s area, the sergeant’s office, the security area and possibly the chief’s office. Only Orangeville Police employees can monitor the cameras.

The trial continued with the evidence of the sergeant in charge of the police station on that morning when the defendant was arrested, Sergeant Chris Dryden. Sergeant Dryden booked in Mr. Fletcher. He himself was a qualified technician at the time but had not done his re-qualification. The officer explained the booking process, seen on the DVD entered as Exhibit 1 on the trial. He also gave the rationale for the video recording of the prisoner cells at the station. In particular, there had been a recent cell death in the Orangeville Police cells and an inquest into that death had also recently been concluded.

The video system also watches for prisoners concealing or using weapons or contraband, or damaging the cells. A log is kept as to how often the prisons are checked. That morning, besides the defendant, there were three other prisoners booked in ahead of Mr. Fletcher at 2:12 a.m., 2:25 a.m. and 2:34 a.m. Each needed to be properly processed by the sergeant one at a time and each was described as having some special needs. Mr. Fletcher was the fourth person booked in. The defendant did not seek counsel at first, and then asked to speak to duty counsel.

Sergeant Dryden testified that in exigent circumstances, he could have done the defendant’s breath test but that he was the officer in charge of another occurrence at the time and was fully occupied. His training was to have a qualified technician contacted and if no one was available, to call in the on-call technician or seek out another police service for help. He does not believe that there was an on-duty Orangeville qualified technician that morning. The dispatcher would consult the

schedule and call in the available off-duty technician. The process is that first they find out if there is an Orangeville Police Service officer available to come in and, if not, then to call another facility to see if they have a qualified technician available to assist. Sergeant Dryden described the coverage of the security cameras in the station. He testified that the cameras are clearly visible and there is a large sign in the sally port as to the use of security cameras within the building. The usual practice is to point out that sign to the prisoner on entering into the building.

Staff Sergeant Daniel Maloney testified as the last witness on the trial proper. He is the administrative staff sergeant of the Orangeville Police Service. He first became a police officer in 1986 and has worked in that capacity in the City of London and in Orangeville. He described the sally port sign. After Mr. Fletcher’s arrest date, an added reference to the cells being under video and audio surveillance has been added. Staff Sergeant Maloney testified that cell cameras had been in use in the London Police Service when he was a police officer there starting in 1986.

With regard to Orangeville, to his own knowledge, there were cell cameras since at least 2001 when he joined the Orangeville Police Service.

The monitoring of prisoners was required by the Ministry for all police services as part of a risk management system, and had been for many years. He is aware of inquests that had addressed the issue of prisoner risks, including medical, substance abuse, self-harm, violence and mental health issues. Every person in custody is personally checked out at least every 15 minutes, and is continuously monitored by a guard. The monitoring also assists officer safety when police have personal contact with a person in custody and provides evidence of any criminal acts.

All cells have a toilet and sink for the use of the detainee. Cell videos are not public but can be accessed, as needed, by the Special Investigations Unit, the police service and other agencies. On a monthly basis, the videos are audited for compliance with the policies of the Orangeville Police Service. The Orangeville Police Service policies from both before and after Mr. Fletcher’s arrest were produced and explained by Staff Sergeant Maloney. The cell cameras are clearly visible in plain view.

The new procedure formalizes the notification system whereby detainees are informed about the cameras, plus a paper sheet is available now on request to be used to protect the detainee’s privacy when using the toilet. The witness testified that there is an audio feed to his desk from that cell area. The defendant gave evidence on the Charter application. He testified that no one told him that he was being monitored on camera at the station. He used the toilet in the cell and didn’t know that he was being recorded. In retrospect, it made him feel humiliated. He did not know who might see that video.

He would not have used the washroom or would have asked for an alternative had he known. In cross-examination, the defendant agreed that the arrest and trial were also humiliating, but on a different level. He did not see or read the sign beside the sally port door. He did not recall seeing any of the cameras in the station or in the cell area. The defendant testified that he plays sports but does not shower with others, and never has. He has used public washrooms before.

He agreed that at no time on the cell video was his penis visible, and that he turned away from the hallway when he urinated in case someone came past the door. He then argued that at the resolution used on the video, his private parts were not visible but he would not speculate as to whether they would have been visible at a higher resolution. The process of urinating on camera was embarrassing. The sign on the sally port wall was not read and was never pointed out to him. Before considering the defendant’s Charter application, I will determine if the Crown has met its onus on the merits.

If the Crown has not, then it will not be necessary to consider the effect of any Charter violation. The Crown submits that on the merits, the charge is proven beyond a reasonable doubt. The defendant submits that the breath test was not taken as soon as practicable as required by the Criminal Code and that this is a fatal flaw such that the Crown cannot rely upon the results of the breath test. I do not agree. The Court of Appeal has recently and repeatedly stressed that the test is not as soon as possible, but rather as soon as practicable.

This court is not to parse every minute of time, but is rather to assess the reasonableness of the overall delay. The most recent re-statement of the test that I’m aware of is set out by the Court of Appeal in R. v. Singh, [2014] O.N.C.A. 293 , released in April of this year. In this case, Mr. Fletcher was stopped at 2:09 a.m. At 2:15 a.m., he was arrested by Constable Dempster after the failure of an approved screening device test. They left the scene at 2:20 a.m. and arrived at the station at 2:24 a.m.

Unusually, according to Sergeant Dryden’s evidence, there had been three other persons arrested at that early morning hour, and when the defendant arrived at the police station, there was a wait while these three were booked in by Sergeant Dryden. Mr. Fletcher was paraded before Sergeant Dryden at 2:44 a.m. and lodged in a cell soon after, as can be seen on the booking room video. Mr. Fletcher initially unsure about wanting to speak to counsel, agreed that he wished to do so, and just after 3:00 a.m., duty counsel is called and subsequently spoken to.

Meanwhile, at 2:22 a.m., Constable Button was called at home to come into the station and start to ready the approved instrument. Notably, this was before Constable Dempster had reached the police station. Constable Dempster believed that a qualified technician was on duty when he left the scene enroute to the station for the test. This was actually correct technically, because Sergeant Dryden was himself a qualified technician, although in need of his re-qualification. In the event he was not available to do the test and Constable Button was enroute before Constable Dempster got to the station.

He had the approved instrument ready essentially by the time Mr. Fletcher was off the phone with duty counsel. The tests were started within the statutory time limit provided by the Criminal Code . To point to the short time between the end of the booking and the start of the duty counsel calling process as a fatal flaw such that the charge cannot be proven, is to fly in the face of the Court of Appeal direction in Singh and many other cases, and to hold the police to an

unnecessarily and impossibly high standard of precision. Sergeant Dryden described having five police officers on duty, and in close proximity four prisoners came in to be processed. The qualified technician had been started on his way into the station before the prisoner arrived at that station. There was no necessity to explore other police services on the hypothetical basis that one of those forces, none closer than 20 to 25 minutes away, might have an available qualified technician.

The defendant was not stopped at a RIDE check when it would be reasonable to suspect that the services of a qualified technician might be needed. This was early on a Friday morning, not on a weekend. On the evidence of the times and explanations taken as a whole, the tests were taken as soon as practicable and provide evidence of the defendant’s blood alcohol concentration at the time of driving. The evidence as a whole is not otherwise challenged by the defendant.

The defendant was operating a motor vehicle, was stopped for his imprecise driving, admitted to alcohol consumption and failed an approved screening device test. He was properly then arrested for the over 80 charge that he now faces. He was provided his rights to counsel which, after a time, he decided to exercise, and gave two breath samples for analysis by an approved instrument. Both of those samples were taken pursuant to lawful demand and both well exceeded the legal limit.

Unless the breath test evidence is excluded, pursuant to a successful defence Charter application, the Crown has proven its case beyond a reasonable doubt. The key to the defence Charter submission lies in the assessment of the effect on Mr. Fletcher’s privacy right caused by his being video recorded while urinating in the cell, and what remedy is appropriate if a breach is so found. The defendant primarily relies on the Superior Court of Justice

summary conviction appeal decisions in R. v. Mok, [2014] O.N.S.C. 64 and R. v. Deveau, [2014] O.N.S.C. 3756 . Both cases stand for the proposition that, even in the cells of a police station, there is some perhaps modest expectation of privacy when using the toilet. Both cases focus on the appropriate remedy to the

Section 8 Charter breach that the judge found in each of those cases. In Mr. Fletcher’s case, he testified that he felt humiliated when he discovered that he had been on video while urinating in the prisoner cells. He noted that his female counsel and her female law student had watched the video after it was disclosed by the Crown. The purpose of the cameras being on continuously in the cell is, without question, a valid and indeed legally-required policy of all police services in Ontario, if not Canada. As noted in this case, prisoners die in police cells.

Recently, one died in Orangeville and a Coroner’s inquest examined the process of monitoring prisoners in the Orangeville cells and made recommendations to the Orangeville Police Force. Staff Sergeant Maloney noted that when he started as a police officer with the London, Ontario Police Department in 1986, prisoner cells were already being monitored on video to try and prevent violence, illness, suicides and mischief taking place in their holding cells. He testified that the cameras were in plain view and were notorious, and that a sign at the prisoner entrance told all persons about video surveillance. Mr.

Fletcher passed by that sign but states that he did not read it and that no one ever told him that he was going to be on video in the cells. Mr. Fletcher did, however, believe that someone might physically come by his cell while he urinated in the toilet, and so he turned his back away from the cell entrance concealing his penis from view while he urinated. By doing so, he also turned away from the camera. At no time was any part of his genitals visible to the camera on the three occasions when he urinated.

In the result, what may be recorded on the cell security video was a man turned away to protect his privacy, apparently urinating into a toilet bowl. As noted in Mok and Deveau , there is a reduced expectation of privacy for a prisoner who is legally held in custody at a police station. On the facts of this case, Mr. Fletcher himself acted to preserve his own privacy and was able to do so.

He stated in cross-examination that it was to stop someone from seeing him if they physically walked passed the cell, because he testified that he did not notice the clearly visible cameras and never read the sign, and had never been told about those cameras. In saying that, he was less than credible in this evidence. For example, he prevaricated about the resolution of the video and the likelihood of a passerby. I don’t believe that the defendant was turning away from a hypothetical passerby when he used the toilet.

Rather, he saw the clearly visible cameras and was acting to preserve his own privacy, successfully, as it turns out. So the evidence establishes that the cell cameras have a valid and, indeed, essential public purpose. The images recorded are kept private by the police force and are not disseminated beyond the station, unless in extraordinary circumstances. Here, ironically, but for the defendant’s proper request, they would never have left the building, let alone been shown in court. There is a notoriously visible sign warning of video surveillance and a greatly-reduced expectation of privacy.

See the Supreme Court of Canada in Stillman . Further, there is no right to constitutional protection of all privacy interests. There must be a balancing of interests. Here by his own action, Mr. Fletcher accurately preserved his own privacy. All that can be seen is his side and his back while apparently urinating into the toilet bowl.

I am aware of my brother Justice Bourque’s decision in R. v. Arbelo, [2014] O.N.S.J. 275 . But on the facts of Mr. Fletcher’s case, there was no breach of his much-reduced privacy right here because, while exercising his normal bodily function, there is no exposure of his genitals to anyone’s view. On the exclusive facts of this case, no

Section 8 breach has been demonstrated and the defendant’s application is, accordingly, dismissed. If I am wrong, having heard the evidence here, I would not grant the remedy sought. Here Mr. Fletcher, in argument, conceded that a stay was not appropriate but sought to exclude the breath test results. Accordingly, this engages a R. v. Grant analysis. R. v.

Grant , in the Supreme Court of Canada 2009, requires that a court considering a Section 24(2) Charter remedy consider: 1) the seriousness of the Charter infringing conduct; 2) the impact of the breach on the defendant’s Charter protected interests; and 3) the interests of society in the adjudication of each case on its merits. This consideration is to be determined on the facts of each individual case. R. v. Deveau , in the Superior Court of Justice, already cited, found a proper nexus exists between the

Section 8 breach found in that case and the breath test results, such that a Section 24(2) remedy of exclusion was available to the court. I turn, then, to a Grant analysis of the facts in this case. I first note that there is, on the evidence, a clear and manifestly bona fide basis for the monitoring of prisoners in a police holding cell. Such monitoring is required to protect prisoners from harm due to drunkenness, medical emergency, drug overdose or mental health crisis. Staff Sergeant Maloney testified that cell cameras were in use in London, Ontario when he became a police officer in 1986. In the second decade of the 2000’s, a reported case has now found such cameras to be a breach of

Section 8 of the Charter. Police take their direction from the courts on Charter issues. It appears that the courts may have been remiss in not giving such direction on this issue for at least 20 years. Coroner’s juries have not been so remiss in repeatedly emphasizing proper and effective monitoring of police cells. With the decisions in R. v. Mok and R. v. Deveau , the Orangeville police have emphasized their pre-existing policy of advising all prisoners of the video monitoring and have commenced a process of providing modesty sheets to prisoners on request.

These factors ameliorate the first leg of the Grant analysis, since the police, having been told by the court that the breach is considered a serious breach, have, in return, acted reasonably to try and mend that breach. On the second leg of Grant , any breach of Mr. Fletcher’s reduced right to privacy here, while a serious breach, had it existed, is much less than that found in either Deveau or Mok , since at no time are his genitals exposed to the camera.

Finally, on the third leg of Grant , there is a high degree of reliability in the breath test results here, tests never seriously challenged by the defendant, and the Crown’s case stands or falls on the admissibility of those breath test results. Drink/drive offences in this jurisdiction, if not elsewhere, are the scourge of the public highways. In this region, they make up a high percentage of the cases brought before the court. There is a high degree of societal interest in the trial of drink/drive cases on the merits of those cases.

In this case, a Grant analysis favours inclusion, not exclusion, of the breath test results. Had I found a

Section 8 breach, I would not have excluded the test results on the facts before me here. In the event, the Crown has proven each aspect of the over 80 charge beyond a reasonable doubt. The defendant must be and is necessarily convicted. (

i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Judgment................................Page 1

Transcript Ordered: December 16, 2014 Transcript Completed: January 24, 2015 Returned by Justice: January 27, 2015 Ordering Party Notified: January 28, 2015

F O R M 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Nancy Byers, certify that this document is a true and accurate transcription of the recording of Regina v. Seth Fletcher, in the Ontario Court of Justice held at Court House, 10 Louisa Street, Orangeville, Ontario taken from Recording No. 0611-101-20141216- 090602, which has been certified in Form 1. ______________________ _______________________________________ (Date) (Signature of authorized persons)