Stay of drinking and driving charge granted where police videotaped accused’s toilet use

R. v. Joseph 2014 ONCJ 559 – The Honourable Justice Melvyn Green held that the s. 253(1)(a) of the Criminal Code charge was not made out based on the evidence, but the main reason for my post on this case is the second charge on which the defendant was arraigned, that of driving with a legally excessive BAC, which depended on the admissibility of the evidence respecting the defendant’s Breath readings.

The defendant’s s. 8 privacy rights as a result of the videotaping of his use of the toilet while in a holding cell at the OPP detachment was the issue. This invasion of the defendant’s privacy interests occurred before his BAC readings were obtained, thus establishing a temporal connection between the breach and the impugned evidence.

The department in question has three holding cells; two with vertical metal bars and a third with a solid metal door. Signage across from each of the two barred cells advises that the area is under video surveillance. The third cell is in a separate area and it is equipped with an overhead CCTV camera in a dome fitted to the ceiling. There is no signage cautioning detainees about video surveillance in or around this third cell. The defendant was placed in this third cell. The cell was empty, as were the two other cells. There is a constant live feed from the cell cameras to a large video monitor in the “constables’ room” at the detachment. Six to eight officers, both male and female, occupy this room at any given time, as do, on occasion, Ministry of Transport, emergency and towing personnel. The video panel is also visible to anyone passing the room.

There is a washroom between the booking room and the holding cell with the solid steel door and that washroom is not equipped with video surveillance. One of the arresting officers testified that before he lodged the defendant in a cell, he may have asked to use a toilet, but the defendant was placed in the cell with the steel door (which contains a toilet) rather than escorting him to the adjacent washroom. The officer said that no police policy prevented him from permitting the defendant to use the non-monitored washroom. At no time did the officer inform the defendant of the CCTV camera in his cell.

The frame of vision of the overhead camera in the defendant’s cell included an unobstructed view of the toilet. The video captured the defendant pulling down his pants and sitting on the toilet for about two minutes. An image, if somewhat blurry, of the defendant’s penis was visible for about six seconds. It cannot be said with certainty what bodily function, if any, the defendant performed. It does not appear that any toilet paper was used. Justice Green said:

“The breach of the defendant’s privacy interests was, in my view both unnecessary and avoidable. The OPP’s installation of video-monitoring of cells in the force’s detachments was undoubtedly well-intended. There are situations where concerns respecting prisoner health and safety, institutional security and the preservation of evidence justify the constant video surveillance of detainees. It is unclear, however, why every prisoner’s toilet functions and genitalia need be closely scrutinized and digitally preserved. Evidentiary concerns can generally be tackled by way of searches conducted before being lodged in a cell including, as is hardly uncommon, non-videotaped strip-searches by officers of the same gender as the detainee. Modesty screens (such, for example, as that described in R. v. Robb, 2014 ONCJ 514, at para. 7), hospital gowns or the provision of other coverings could readily mitigate the predictable privacy claims arising from the routine taping of prisoners’ use of a toilet. Nor, as with search-level determinations, does every prisoner present such degree of concern or jeopardy as to warrant constant video surveillance. (The defendant, by way of immediate example, was documented as negative for any health, safety or security risks and was polite and co-operative throughout the investigation.)”

Justice Green said it is at least arguable that the video-taping of prisoners’ use of a toilet is even more invasive than strip searches in so far as the privacy violation is exposed to an unknown number of others and indefinitely preserved. Especially, said Justice Green, having been alerted to judicial expressions of concern respecting constitutional improprieties at least a year before the defendant’s arrest, it is almost incomprehensible that the force awaited appellate authority before recalibrating the balance between safety and privacy. These systematic or institutional considerations clearly argue against admission of the defendant’s BAC results.

Justice Green said the video recording of any prisoner’s toilet functions is a violation of his or her personal dignity and bodily integrity. The defendant had never previously been in police custody. He assumed his cell’s solid steel door afforded him a measure of privacy. No one suggested otherwise. He was left feeling angry, disgusted and personally violated when he learned, only through disclosure, that his use of a toilet and images of his penis had been displayed indiscriminately to police and possibly other personnel in the detachment’s common room and permanently preserved on videotape.

The result: Justice Green excluded the evidence of the Breath tests. As the Crown’s case respecting driving with an excessive BAC was dependent on this evidence, an acquittal was entered.


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