R v Paterson, 2021 SKCA 13

Court of Appeal for Saskatchewan Docket: CACR3327 Citation: R v Paterson , 2021 SKCA 13 Date: 2021-01-21 Between: Christine Paterson Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Barrington-Foote and Tholl JJ.A. Disposition: Application for leave to appeal granted; Appeal allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr. Justice Tholl On appeal from: 2019 SKQB 305 , Regina Appeal heard: October 19, 2020 Counsel: Ronald Piché for the Appellant Andrew Davis for the Respondent Ottenbreit J.A. I.

INTRODUCTION [ 1 ] Christine Paterson was charged with impaired driving contrary to ss. 255(1) and 253(1) (

a) of the Criminal Code . After trial in the Provincial Court of Saskatchewan, that charge was judicially stayed: R v Paterson , 2019 SKPC 7 , 43 MVR (7th) 61. The Crown appealed to the Court of Queen’s Bench for Saskatchewan, which set aside the stay: R v Paterson , 2019 SKQB 305 , 57 MVR (7th) 226. Ms. Paterson seeks leave to appeal and appeals that decision. [ 2 ] The Crown also applies to adduce fresh evidence. [ 3 ] The matter of leave to appeal was not put in issue by the Crown. Moreover, the issues raised in this appeal, as will be noted, are questions of law. Accordingly, leave to appeal is granted.

For the reasons hereinafter set forth, the appeal is allowed. The application to adduce fresh evidence is dismissed. II. FACTS AND BACKGROUND [ 4 ] As a result of information received, members of the Regina Police Service [RPS] attended to an off-sale alcohol establishment in Regina. Outside of the location, the officers observed Ms. Paterson slumped over in the driver’s seat of a car. The car was not running. One of the officers opened the driver’s door and shook Ms. Paterson. She opened her eyes, but had trouble focusing. The officer arrested Ms. Paterson, who smelled of alcohol. When she left the vehicle, Ms.

Paterson had difficulty walking. [ 5 ] Ms. Paterson was taken to the RPS station and placed in a detention cell. While she was in the cell, she indicated that she needed to go to the bathroom. She was unable to do so by herself and was assisted by the two female officers who had arrested her. She fell down twice when she first attempted to use the toilet. Eventually, the officers had to physically support her as she got on and off the toilet. [ 6 ] Like all other cells at the station, the cell in which Ms.

Paterson was placed was monitored by a closed circuit television video camera attached to the ceiling near the door of the cell that captured nearly all of the cell area, including the toilet area. The video of the cell was sent to one of a bank of approximately 30 video monitors in the booking area of the station. This area was not open to the public and members of the public could not view the monitors.

However, police officers and other detention staff who might enter the area could view them, although they were discouraged from congregating in the booking area when they were not required to be there for a specific purpose. [ 7 ] No particular member of the detention staff had the job of actively monitoring the screens displaying the video, but the staff present did have a general obligation to monitor the screens at all times and at all times had the ability to do so.

The video was in colour and equipped with sound, which assisted the detention staff in identifying whether a detainee was yelling or in distress. [ 8 ] When Ms. Paterson used the toilet, the two police officers who assisted her did not take steps to shield her from the camera in her cell. Ms. Paterson made no attempt to cover herself when she was standing or when she was reaching for toilet paper. When Ms. Paterson rose with the assistance of the officers, her pants were lowered to above her knees and she was captured on video naked from about her navel to about her knees for a couple of seconds.

Although the video capture depicted the entire cell, it was not focused on the toilet or on Ms. Paterson’s private area.

III. DECISION OF THE TRIAL JUDGE [ 9 ] The trial was heard in the Provincial Court of Saskatchewan. Ms. Paterson brought an application alleging that her ss. 7 and 8 Charter rights had been violated when she was arrested without proper grounds. She also alleged her ss. 7, 8 and 12 Charter rights had been breached as a result of the capture by the video system of her use of the toilet. [ 10 ] The Crown called its entire case in a Charter voir dire and the evidence was applied to the trial proper.

The Crown did not call evidence as to the purpose of recording video of the cells, the visibility of cameras themselves, the usual practice of RPS members when detainees use the toilet in the cells or RPS policy regarding the surveillance of detainees. There was also no evidence as to whether officers in other cases took measures to give detainees additional privacy in some circumstances or whether they had considered doing so. There was no evidence that Ms. Paterson was made aware of the video system while she was detained. [ 11 ] There was no evidence that anyone viewed the video feed of Ms.

Paterson using the toilet at the time it happened or that anyone viewed the video thereafter, apart from Ms. Paterson’s counsel, who viewed the video prior to it being played in open court. There was no evidence regarding how long the recordings were retained by the RPS, although it is common ground that they were not retained indefinitely. One of the police officers testified that the video system had been in place for eight to ten years. [ 12 ] After considering the evidence of the time of Ms. Paterson’s arrest, the trial judge found that Ms.

Paterson was grossly impaired and it was plain that she was in care and control of a motor vehicle. The trial judge dismissed Ms. Paterson’s arguments that her arrest had been improper and found no breach of her ss. 8 and 9 Charter rights with respect to the arrest. The trial judge was satisfied that but for the Charter application with respect to the video system capturing her using the toilet, Ms. Paterson was guilty of the charge. [ 13 ] The trial judge then turned to Ms. Paterson’s submissions that the video capture of her use of the toilet breached her ss. 7, 8 and 12 Charter rights.

The trial judge was satisfied that, although there was a need for some surveillance of persons in custody, Ms. Paterson had a reduced but still reasonable expectation of privacy when using the toilet in the cell. The trial judge acknowledged that the presence and assistance of the police officers was appropriate. [ 14 ] The trial judge found the video recording of Ms. Paterson going to the toilet was a seizure within the meaning of s. 8.

The trial judge noted that the earliest case dealing with a similar fact situation was in 2012 and, since that time, a body of jurisprudence had been established regarding the breach of Charter rights in relation to video recording a person’s use of washroom facilities while in detention. She reviewed those cases. [ 15 ] The trial judge also noted that a similar fact situation had arisen in a Saskatchewan case: R v Wildfong , 2015 SKPC 55 , 471 Sask R 295 [ Wildfong ].

In that case, it was determined that the accused’s Charter rights had been violated when the police video recorded her using the washroom but a stay was not granted nor was the evidence excluded as a result. [ 16 ] The trial judge found there was no thought given to the fact that Ms.

Paterson’s bathroom activity was being video recorded and that she must assume that was the routine practice for the treatment of detained individuals in RPS cells and not an isolated event. [ 17 ] She found police forces in Saskatchewan had notice since Wildfong of the issue before her and that a violation of s. 8 rights was implicated in video recording an accused’s toilet activities. [ 18 ] The trial judge found that Ms. Paterson’s s. 8 rights had been violated and that the video recording was a serious invasion of her privacy and personal integrity.

She declined to comment on whether ss. 7 and 12 of the Charter were breached. [ 19 ] The trial judge found that the failure of the police forces in Saskatchewan to change their practices following Wildfong and similar cases in other jurisdictions reflected a lack of due diligence. [ 20 ] She then considered what remedy, if any, should be granted under s. 24(1) of the Charter . The trial judge stated that the law is clear that a stay should only be granted in the clearest of cases.

She noted that two categories of cases may attract a stay: one where the fairness of a person’s trial is implicated; and a residual category unrelated to fairness of the trial but involving the state’s contravention of fundamental notions of justice which undermines the integrity of the judicial process. She determined that this case fell into the residual category. [ 21 ] The trial judge reviewed the criteria when considering whether to grant a stay: (

a) whether the prejudice caused by the abuse in question would be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and (

b) no other remedy is reasonably capable of removing that prejudice.

She noted that where there remains some uncertainty as to whether the abuse was sufficiently serious to create the prejudice to warrant a stay, there was a third criterion that the court may consider – the balancing of the interests in granting a stay against society’s interest in having a trial on the merits. [ 22 ] The trial judge concluded : [40] As indicated in paragraph 3 of the quotation above from [ R v Zarinchang , 2010 ONCA 286 , 254 CCC (3d) 133], 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 courts and 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 to the public when an intoxicated person is in the driver’s seat of an operational vehicle, the facts of this case are not egregious.

Society also 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 the merits, 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 HumanRights Commission. In my view the possibility of such remedies does not mean that a stay should not be entered. The remedy under theCharter is intended to be prospective; its purpose here is to ensure the state misconduct in videotaping persons using toilets while indetention does not continue.

Similarly, I do not believe that a reduction in sentence, in the circumstances, properly conveys the Court’sneed to disassociate itself from the police policy at issue in this case. [23] The trial judge directed a stay of proceedings on the charge. IV. DECISION OF THE APPEAL JUDGE [24] The Crown appealed the decision of the trial judge. It argued she had erred by finding a violation of s. 8. It submitted there is alow expectation of privacy for a person being detained and, in any event, the intrusion was not unreasonable in the circumstances.

TheCrown also argued the trial judge erred in the application of the law regarding stays. [25] The appeal judge found no error in the trial judge’s analysis and conclusion that Ms. Paterson had an expectation of privacyand that there had been a violation of her rights under s. 8 of the Charter. [26] He then turned to the remedy the trial judge had imposed. He noted that the standard of review for and the ability to overturnthe granting of a stay was limited to circumstances where a trial judge misdirects him or herself or where a decision is so clearly wrong asto amount to an injustice.

He also noted that the factors considered by courts in granting or refusing a stay were heavily contextual. [27] The appeal judge found that the trial judge had misdirected herself on the law: [28] It is unnecessary and not useful to compare all the factors which the courts considered in deciding to refuse a stay in these cases asthey are heavily contextual and are shaped by [R v Mok, 2014 ONSC 64, 59 MVR (6th) 234, leave to appeal to Ont CA refused, 20155ONCA 608, 2015 ONCA 608 , 82 MVR (6th) 1] and policy changes made by the Ontario Provincial Police following Mok.

Thefact that these cases exist nonetheless demonstrates that not being a case of first instance is not determinative in deciding whether a stay isnecessary. Rather, whether a case is of first instance or not is merely a factor that can affect how egregious the breach is: Mok, at para 94.If there is a deliberate ignorance of Charter rights as interpreted by courts, the breach will be considered more egregious than if there is alongstanding practice newly being challenged: see [R v Korzh, 2015 ONCJ 738], at para 29. [29] At paragraph 33 of her decision in Paterson, the trial judge writes: [33] ...

It was a significant factor in [Judge Gray’s] decision, as it had been in Mok, that this was a case of first instance and the issuesarising had not previously been considered by courts in this province. [30] In Wildfong, the fact that it was a case of first instance was one factor listed among several others: see Wildfong, at para 29. InMok, the Ontario Superior Court of Justice indicated that whether a breach is a first instance or not affects how egregious it is considered:Mok, at para 94.

The failure to consider that the case was of first instance was one of four errors the Ontario Superior Court identified inMok. [31] I agree with the appellant that the trial judge misdirected herself on the law in terms of expanding the effect that the factor of firstinstance should have on the overall balancing exercise required under s. 24(1). [32] Additionally, although the Wildfong case was decided several years before Ms. Paterson was arrested, it was a case directedtoward the RCMP in Saskatoon.

Given that there is only one case in Saskatchewan, that the issue has not been ruled upon by the Court ofAppeal for Saskatchewan and that the case that exists was not directed at the RPS, there is no evidence to suggest that this breachdemonstrates systemic disregard for detainees' rights or that policy changes will not occur if a stay is refused. [28] The appeal judge then turned to whether the stay had been entered for a punitive rather than a prospective purpose. He foundthat the trial judge erred by failing to address whether the stay was necessary and prospective.

He said the trial judge presumed, based onthe evidence of one of the police officers, that the thoughtlessness regarding privacy rights was “routine practice for the treatment ofdetained individuals … [and] not an isolated incident” (at para 33).

He found there was no evidence that the surveillance of detaineesusing the toilet without privacy protection was systemic. [29] The appeal judge concluded: [34] Using the assumption of systematic disregard for privacy rights, the trial judge writes in her decision that “once the issue wasraised [in Wildfong] it should have been immediately apparent to those persons that changes needed to be made”: Paterson, at para 37.

Inresponse to the availability of other remedies through the Human Rights Commission, the trial judge notes that the existence of suchremedies “does not mean that a stay should not be entered”: Paterson, at para 42. It appears that the trial judge took a punitive approach asa result of the thoughtlessness demonstrated by the officers in this case. The trial judge used this testimony both to find that thisthoughtlessness pervaded through the organization and to also find that the court had to disassociate itself from that “policy”: Paterson,para 42. Although there was a serious breach of Ms.

Paterson’s privacy rights, the s. 24(1) analysis here misinterprets Wildfong and Mokand relies on assumptions to punish the officers’ thoughtlessness as opposed to considering whether a stay is necessary in thecircumstances to change policing practices moving forward. [35] Given that stays are to be a remedy of last resort to only be used in the clearest of cases, I find that these assumptions weremisdirections of the trial judge in applying the s. 24(1) test.

[30] Accordingly, he allowed the appeal, vacated the stay of proceedings and entered a conviction. It is from this decision that Ms.Paterson seeks leave to appeal. V. ISSUES [31] The issues in this appeal can be restated as follows: (

a) Should the fresh evidence be admitted? (

b) Did the appeal judge err by rejecting the trial judge’s analysis as to whether the Wildfong decision ought to have been knownto the RPS so as to cause it to address its video surveillance practices? (

c) Did the appeal judge err in ruling that the trial judge entered a stay for a “punitive purpose” and did not consider whether astay of proceedings was necessary? VI. STANDARD OF REVIEW [32] The standard of review with respect to the imposition of a stay was reiterated in R v Babos, 2014 SCC 16, [2014] 1 SCR 309: [48] The standard of review for a remedy ordered under s. 24(1) of the Charter is well established.

Appellate intervention is warrantedonly where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrongas to amount to an injustice” ([R v Bellusci, 2012 SCC 44, [2012] 2 SCR 509], at para. 19; [R v Regan, 2002 SCC 12, [2002] 1 SCR 297],at para. 117; [R v Tobiass, (SCC), [1997] 3 SCR 391], at para. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, atparas. 15 and 51). [33] The standard of review applicable to the appeal judge’s decision is correctness: did he correctly apply the above standard ofreview to the trial judge’s decision?

VII. ANALYSIS [34] As a preliminary matter, I will deal first with the Crown’s argument that the appeal judge erred by concluding the trial judgewas correct to find that a s. 8 Charter violation had occurred and that there was a reasonable expectation of privacy by Ms. Paterson. Thisissue is not raised in Ms.

Paterson’s notice of appeal, but the Crown is entitled to make additional arguments on appeal in an attempt tosustain the judgment below, provided that there is a sufficient evidentiary basis for those arguments: R v Perka, (SCC),[1984] 2 SCR 232 at 240; and R v Farnham, 2016 SKCA 111 at para 72, [2016] 12 WWR 635. This was an issue that was argued fully atboth the trial and at the

summary conviction appeal, and there is a suitable record from the trial. As such, the Crown is entitled tochallenge the appeal judge’s decision on this basis. However, it is my view that this argument is of no assistance to the Crown. Theanalysis conducted by the appeal judge on this issue is compelling and his conclusion is correct. Ms. Paterson’s s. 8 Charter rights wereviolated. [35] I turn now to the issues raised by Ms. Paterson’s notice of appeal. A.

Should the fresh evidence be admitted? [36] The Crown sought to tender as fresh evidence the transcript of the testimony of Inspector Darrin McKechnie in April and Mayof 2019 in another matter, heard after Ms. Paterson’s case, that also involved video surveillance of a detainee. In that testimony, heexplained the nature and extent of the video surveillance system of detainees in the RPS cells and its capture of the toilet area therein.

Heindicated that the search for a way to resolve the matter of the cameras capturing the toilet area had been going on since the case “inSaskatoon” (obviously referring to Wildfong). Inspector McKechnie indicated that after the trial decision in Wildfong, the police hadconsulted several companies to explore solutions to the privacy issue. In the end, a low-cost, low-tech solution was chosen, whichinvolved placing a small place of translucent tape over the exterior of the camera lens in order to blur the image of the toilet area.

The tapesolution to the privacy issue had been implemented only in the last few months before his testimony. [37] The Crown submits the fresh evidence bears on the analysis of the seriousness of the state’s misconduct under s. 24 of theCharter and the determination of whether a stay was warranted. [38] The Crown argues that the fresh evidence should be admitted because it was not available at the time of the trial, it is credibleand it contradicts the trial judge’s assumption that the RPS routinely disregard both detainees’ rights and previous court judgments.

Itsubmits that it shows the RPS was, in fact, trying to be responsive to the Wildfong case. [39] The fresh evidence must satisfy the test in R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer] to be admitted.

Theprinciples set out therein are well known and I need not repeat them. [40] Having reviewed the fresh evidence, I conclude it does not meet the test for admissibility in the circumstances of this case.While the Crown argues the evidence did not exist in its current form – namely, that of Inspector McKechnie’s testimony in a subsequentmatter – it is difficult to see how the form the evidence takes is relevant in these circumstances. It is the existence of the facts at the timeof the trial that matters.

Apart from the ultimate solution to the privacy issue chosen by the RPS, most of the evidence reflected in thetestimony of Inspector McKechnie was available at the time of Ms. Paterson’s trial. He indicated that the RPS began looking for solutionsto the lack of privacy problem presented by the video monitoring after Wildfong was issued in 2015 and continued to consider various

solutions thereafter. The video system had been in place for at least eight years at the time of Ms. Paterson’s trial. Therefore, the nature and extent of the system and how it operated, as well as the policy of the RPS with respect to the issue, was available at the time of the trial. In short, I do not accept the Crown’s argument that it was not available earlier. [ 41 ] Unfortunately, at the trial, the Crown did not tender any evidence of the kind given by Inspector McKechnie. While it clearly might have been relevant to the issues in Ms.

Paterson’s case, the Crown cannot adduce evidence of facts that it failed to prove when it clearly had the chance to do so, thereby completely changing the factual underpinnings relied on by the trial judge. [ 42 ] I find that the fresh evidence application fails to meet the Palmer criteria. This application is dismissed. B. Did the appeal judge err by rejecting the trial judge’s analysis as to whether the Wildfong decision ought to have been known to the RPS so as to cause it to address its video surveillance practices? [ 43 ] Ms.

Paterson argues that the appeal judge erred by determining the trial judge gave undue importance to the existence of Wildfong and by rejecting her analysis that Wildfong ought to have been known to RPS at the time she was placed in cells. Ms. Paterson notes there were several cases from the Ontario courts from 2012 onwards that raised the issue of privacy regarding the video recording of detainees using the bathroom.

She argues that at the time she was detained, just under four years had passed since Wildfong had been issued and by that time it should have been apparent to the RPS that its practice of surveilling detainees using the toilet was a Charter violation. [ 44 ] The Crown submits that the appeal judge correctly found that the trial judge gave inordinate weight to Ms. Paterson’s case not being the first of its kind in Saskatchewan.

It argues the effect of Wildfong was limited because it was a single Provincial Court decision from a different part of the province directed at a different police service. [ 45 ] The Crown’s argument must fail. [ 46 ] The trial judge, in her analysis of whether a stay should be imposed, was correct to note that even if the RPS was unaware of similar cases in the rest of Canada, Wildfong – the first similar Saskatchewan case – should have alerted the RPS to the issue of surveilling detainees going to the bathroom. I agree with her analysis. This case was four years prior to that of Ms. Paterson.

The trial judge had no evidence before her that any effort was being made by the RPS to address the issue of privacy raised in Wildfong . [ 47 ] In the absence of evidence to the contrary, the trial judge concluded that the failure of police forces in Saskatchewan to change their practices following Wildfong and the several decisions dealing with the same issue in Ontario reflected a lack of diligence. This was a reasonable inference considering four years had passed since Wildfong .

In the circumstances, she appropriately noted that once the issue was raised, it should have been apparent to the persons responsible for police policies that changes needed to be made and that video recording persons using the washroom could constitute a serious invasion of their privacy and personal integrity. [ 48 ] The appeal judge was wrong to draw the distinction that Wildfong was decided in Saskatoon and not Regina and involved another police force. Such distinctions are neither here nor there. Decisions of the trial courts have the same significance throughout the province.

Nor is the fact identified by the appeal judge that this Court had not ruled on the privacy issue involved determinative. The absence of a ruling by this Court on any issue does not necessarily mean that police forces need not address legitimate issues identified by the trial courts.

The question of whether they must do so depends on the circumstances including, but not limited to: the nature of the issue that has been decided; the level and number of courts that have addressed the issue; whether the issue has been fully argued; the extent to which the law could reasonably be characterized as unsettled; and the nature, cost and ability to carry out remedial action that would respond to the court’s decision. [ 49 ] I see no indication that the trial judge gave undue effect to Wildfong in the balancing stage of determining whether a stay was warranted.

In fact, Wildfong was only one consideration along with the nature of the charge, the other decisions in Canada and the broader interest of the community in having the charge disposed of on the merits that the trial judge explicitly noted. [ 50 ] The appeal judge erred when he determined that the trial judge gave inordinate significance to the Wildfong case. C. Did the appeal judge err in ruling that the trial judge entered a stay for a “punitive purpose” and did not consider whether a stay of proceedings was necessary? [ 51 ] Ms.

Paterson argues that the appeal judge erred in finding the trial judge had entered a stay for punitive rather than prospective reasons. Ms. Paterson further submits that the appeal judge failed to fully consider the scope of and principles applicable to, the residual category of a stay of proceedings set forth above. [ 52 ] The Crown submits that the appeal judge correctly found the trial judge misapplied the law regarding stays and failed to consider other remedies.

It argues that the imposition of a stay was punitive and not prospective. [ 53 ] A review of the decision of the trial judge satisfies me that she did not misdirect herself on the law with respect to stays. She noted that a stay is only to be imposed in the clearest of cases, referring to R v Regan , 2002 SCC 12 , [2002] 1 SCR 297.

She also noted that the remedy was intended to be prospective, i.e., to ensure that the state misconduct in video recording persons using the toilet while in detention did not continue. [ 54 ] The Crown submits the appeal judge properly concluded that there was no evidence to support the trial judge’s assumption that the surveillance of detainees using the toilet was systemic or that no thought was given by the RPS to a detainee’s privacy rights. It argues that the evidence regarding how long the video monitoring system had been operating in any event shed no light on what other methods

had been considered or attempted to afford detainees a degree of privacy, nor did it say anything about a routine disregard of the Charter protected rights and freedoms of detained persons by the RPS. [ 55 ] Let me first address the use of the word assume by the trial judge when she found the police failure to provide extra privacy to detainees using the toilet was routine.

The trial judge stated: [34] … What was apparent from [the officer’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. While the word assume might be somewhat awkward usage by the trial judge, when her analysis is read in context, I am certain that she used the word to mean infer.

In short, this statement was an inference by her from all the evidence before her. [ 56 ] That evidence was that the video monitoring system had been in place for eight to ten years, that every cell had a camera and that each camera recorded the entire cell in which it was placed and was recording at all times. The evidence was that the video from the cameras was fed to monitors. All of that looks very much like a system of continuous surveillance. Additionally, the trial judge had evidence that the officers helping Ms. Paterson were aware of the video surveillance when Ms.

Paterson was using the toilet but that they made no effort to take extra measures to protect her privacy when doing so. [ 57 ] As mentioned earlier, the Crown failed to call any evidence about the nature and extent of the video monitoring that was taking place when Ms. Paterson was placed into the cell or the length of time it had been in existence. There was also no evidence regarding what steps, if any, officers were instructed to take to afford detainees some privacy when using the toilet and what RPS policies regarding the issue were in place.

On this latter point, all the trial judge had to consider was the behaviour of the police officers while assisting Ms. Paterson. [ 58 ] In the absence of any such evidence before her that could address the foregoing issues, the trial judge was entitled to reasonably infer there had been a video system in place for a long time that captured detainees going to the toilet and, that being the case, the behaviour of the officer in not providing extra privacy to Ms. Paterson was routine.

The appeal judge erred in concluding the trial judge was wrong to draw such an inference. [ 59 ] The appeal judge also wrongly concluded that trial judge imposed a stay for punitive purposes as a result of the thoughtlessness of the officers. I see no indication of that.

Her comments that once the issue was raised in Wildfong , it should have been apparent that changes needed to be made and her comments that the existence of other remedies did not rule out the imposition of a stay, do not suggest that the stay was punitive. [ 60 ] I have already found that it was correct to conclude in all the circumstances that, based on the evidence before the trial judge, the RPS had failed to recognize the issues in Wildfong and done nothing about it in four years. [ 61 ] The trial judge’s comment that the existence of other remedies did not rule out a stay is not an incorrect statement of the law.

In most cases, there will be other remedies available for a breach of the Charter . The question to be determined in every case is whether they are, in all the circumstances, appropriate instead of a stay. The trial judge assessed whether lesser remedies would suffice and came to the conclusion that they would not. For example, she concluded that a reduction in sentence would not properly convey the court’s need to disassociate itself from the police policy at issue. [ 62 ] When the trial judge’s analysis is looked at as a whole, there is no indication that she sought to punish the police by imposing the stay.

The choice by the trial judge of a stay, given the evidence before her, was completely justifiable. [ 63 ] As noted above, a decision to impose stay of proceedings is entitled to substantial deference and should only be interfered with where the lower court judge clearly misdirects him or herself as to the law, commits a reviewable error of fact or renders a decision that is so clearly wrong that it amounts to an injustice.

I can find no such errors in the trial judge’s analysis and conclusion to impose a stay. [ 64 ] For these reasons, I find the appeal judge erred when he found the trial judge had imposed the stay for a “punitive purpose” and did not consider whether a stay of proceedings was necessary. VIII. CONCLUSION [ 65 ] Leave to appeal is granted and the appeal is allowed. The application to introduce fresh evidence is dismissed. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Tholl J.A.” Tholl J.A.