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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: R. v. C.D., 2020 NUCJ 16


Date: 20200420
Docket: 11-18-74
Registry: Iqaluit

Crown: Her Majesty the Queen


-and-

Accused: C.D.

________________________________________________________________________

Before: Mr. Justice Lyons

Counsel (Crown): P. Plourde


Counsel (Accused): M. Kempt, K. Selkirk

Location Heard: Iqaluit, Nunavut


Date Heard: November 18 and 19, 2019
Matters: Application for stay or exclusion of evidence based on
breaches of the Canadian Charter of Rights and Freedoms,
ss. 8 and 10(b)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)


2

DISCLAIMER PAGE

Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with


legislative requirements or at the discretion of the
authoring Justice to protect vulnerable parties. Letters
have been assigned at random.
3

I. INTRODUCTION

[1] On August 8, 2018 the police arrested C.D. for impaired driving. She
was read her Charter rights and asked if she wanted to call a lawyer.
She responded “no”. The police then drove her to the RCMP
detachment and attempted to get a breath sample from her. C.D.
failed to properly blow into the breathalyzer machine on six occasions
and police charged her with failing to provide a breath sample. She
was not read her Charter rights again and was lodged in an RCMP
detachment cell to sober up.

[2] C.D used the toilet in the cell. This was captured by the cell video
camera and recorded by the RCMP.

[3] C.D. pleaded not guilty to both charges and made an application
under the Canadian Charter of Rights and Freedoms (the Charter)
asserting that the police violated her section 10(b) right to counsel by
not properly informing her that she could speak to a lawyer, and her
section 8 right not to be subject to an unreasonable search when she
was recording using the toilet in cells. As a result, she asserts that the
court should stay the charges against her, or exclude the Crown’s
evidence from the trial, resulting in her acquittal on the charges due to
lack of evidence.

[4] The Charter application and trial were heard together in a blended
voir dire/trial. The evidence consisted of the testimony of one witness,
Cst. Armstrong.

[5] In submissions after trial, Defence counsel conceded that C.D.’s


defence hinged on the Court’s decision regarding the Charter
application, as Cst. Armstrong’s observations of C.D.’s intoxication
and driving pattern established that her ability to drive was impaired
by alcohol, and that she failed to provide a breath sample without
lawful excuse.

[6] I agree that the officer’s observations of intoxication and driving


pattern prove beyond a reasonable doubt that C.D. drove while her
ability to do so was impaired by alcohol, and that she failed to provide
a breath sample.

[7] This decision then rests on the Court’s assessment of C.D.’s


application to have either the charges stayed, or the evidence
demonstrating her guilt excluded.
4

II. THE ALLEGED S. 10(B) CHARTER BREACHES

[8] Section 10(b) of the Charter states that “Everyone has the right on
arrest or detention…to retain and instruct counsel without delay and
to be informed of that right”.

[9] C.D. alleges that her s. 10(b) rights were violated on two occasions:
when she was not properly told that she could speak to a lawyer when
she was arrested for impaired driving, and when police failed to tell
her she could speak to a lawyer when they decided to charge her with
failing to provide a breath sample.

III. EVIDENCE RELATED TO ALLEGED S. 10(B) BREACHES

[10] Cst. Armstrong arrested C.D. for impaired driving. While she was in
the police truck at the scene, he informed her of her Charter rights by
reading verbatim from a small card provided to Nunavut RCMP
referred to as a “Charter card”. The card reads:

You have the right to retain and instruct counsel in private without
delay. You may call any lawyer you want.

There is a 24-hour legal aid number available. This advice is given


without charge and the lawyer can explain the legal aid plan to you.

If you wish to contact a legal aid duty lawyer, I can provide you with a
telephone number.

Do you understand?

[11] Cst. Armstrong testified that C.D. seemed to understand what he had
said and responded with a long, drawn-out “yeah”.

[12] He then asked her if she wanted to call a lawyer. He said that she
seemed to understand the question and responded “no” without
hesitation.
5

[13] The officer then read to her what is referred to as a “police caution”
from the same card:

You are arrested. You need not say anything. You have nothing to
hope from any promise or favour and nothing to fear from any threat
whether or not you say anything.

Anything you do say may be used as evidence. Do you understand?

[14] She responded “Yes”.

[15] He then read her the breath demand, and asked her if she
understood. She responded “yes I understand”.

[16] C.D. was cooperative and was not angry or acting out. Although Cst.
Armstrong described her as having strong signs of intoxication,
including poor balance, difficulty standing on her own, glossy eyes,
and having a strong odor of alcohol from her breath, he said he
believed that she could understand what he was saying to her.

[17] Cst. Armstrong had previously dealt with C.D. on two or three
occasions when she was sober. They had always spoken English with
each other and he described her English-speaking skills as “very
strong”.

[18] He further described conversations they had at the detachment where


she was responsive and comprehending of numerous questions.

[19] After C.D. failed to provide a breath sample at the detachment, she
was told that she would be charged with failure to provide a breath
sample. Cst. Armstrong did not read C.D. her s. 10(b) rights at that
time even though he intended to charge her with another offence.

IV. WERE C.D.’S S. 10(B) RIGHTS BREACHED?

[20] After considering the evidence and submissions of counsel I conclude


that the police did not breach C.D’’s right to counsel when they initially
arrested her for impaired driving. They did, however, breach her right
to counsel by not advising her she could speak with a lawyer when
they decided to charge her with failing to provide a breath sample.
6

V. ANALYSIS

[21] The applicant has the burden of establishing that it is more likely than
not that her rights were violated.

[22] There was no evidence from C.D. that she did not understand her
right to counsel by reason of language, intoxication, or any other
reason. The evidence of Cst. Armstrong that C.D. has very strong
English skills, and that she unequivocally responded “no” when asked
if she wanted to speak to a lawyer was not challenged by the
accused. The evidence that she responded in a way that made sense
to other questions asked by the officer, and seemed to understand
what was said to her, was also not challenged by the accused.

[23] Cst. Armstrong’s evidence was credible and reliable and I accept it.
The information he read to her from the Charter card includes all the
information that the police are required to communicate about the
right to counsel.

[24] Absent special circumstances that indicate that a detainee may not
have understood the s. 10(b) caution, such as language difficulties or
a known or obvious mental disability, police are not required to assure
themselves that a detainee fully understands the s. 10(b) caution.1

[25] I do not consider C.D.’s intoxication to be a special circumstance


sufficient to make it more likely than not that she did not understood
her right to counsel, given the absence of evidence that she did not
understand. I do not infer that she did not understand just because
she was intoxicated.

[26] Defence counsel urges me to conclude that C.D. did not waive her
right to counsel. The issue of waiver, however, only comes into play
when an accused person has invoked the right in the first place by
indicating in some way that she would like to speak with a lawyer, or
might like to speak to a lawyer.2

1
R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173
2
R. v. Owens, 2015 ONCA 652 (CanLII) leave to SCC not granted; R. v. Prosper, 1994 CanLII 65
(SCC), [1994] 3 S.C.R. 236, at pp. 274-75; R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR
310 [“Sinclair”], at paras. 27-28.
7

[27] C.D. did not invoke her right to counsel given her unequivocal
response of “no” to the question of whether she would like to speak to
a lawyer. Accordingly, the issue of waiver does not arise.

[28] Based on the evidence, I do not find that the accused has established
that her s. 10(b) right to counsel was violated when she was arrested
on the impaired driving charge.

VI. COMMENTARY

[29] Although I do not find a breach in relation to this aspect of the Charter
application, I can imagine cases where reading the Charter card to a
detainee, without any further explanation, could amount to a s. 10(b)
breach, despite a detainee giving clear and unequivocal responses.
This could occur where there is evidence the detainee did not
understand what was said to them.

[30] Although the Charter card uses language as recommended by the


Supreme Court of Canada, some of it might be difficult to understand
for some detainees. English is not the first language of a large
proportion of Nunavummiut, and some have limited English language
skills, or formal western education. For many, the words “retain and
instruct counsel in private without delay” would be incomprehensible,
and follow-up plain language such as, “you can speak to a free lawyer
on the telephone in private as soon as we get to the RCMP
detachment”, would help facilitate understanding.

VII. ANALYSIS IN RELATION TO SECOND ALLEGED S. 10(B)


BREACH

[31] C.D. was not advised of her rights to counsel after the police decided
to charge her with failing to provide a breath sample. The Crown has
conceded that this was a breach of C.D.’s s. 10(b) rights, and I agree.

[32] When the police decided they were going to charge C.D. with failure
to provide a breath sample her legal jeopardy changed and the police
were required to advise her of her s. 10(b) rights.
8

[33] The new charge constituted a change in circumstances that


suggested that consultation with counsel was necessary for C.D. to
have the information relevant to her choosing whether or not to
cooperate with the police investigation.3

[34] Accordingly, C.D. should have been told a second time that she could
speak with a lawyer. Failure to do so amounted to a significant
breach. Had she spoken to a lawyer she would have been advised to
provide a breath sample. Perhaps she would have been able to
persuade the police to give her another chance to provide a sample.

[35] Although there is no causal connection between the refusal and the
breach, in my view there is a strong contextual connection between
the breach, the evidence, and the charge.

[36] Police are expected to understand that people who are being charged
with another offence while in custody for a different offence must be
re-read their s. 10 Charter rights.

[37] Because of this, and the connection between the breach, the
evidence, and the charge, and their impact on C.D.’s Charter
protected interests, and taking into account society’s interest in having
the charge adjudicated on its merits, I find inclusion of this evidence
would bring the administration of justice into disrepute.

[38] Accordingly, I exclude this evidence and I acquit C.D. of failing to


provide a breath sample.

VIII. THE ALLEGED S. 8 BREACH

[39] C.D. also asserts that her right under section 8 of the Charter not to
be subject to an unreasonable search was violated when she was
videotaped using the toilet in the cell at the RCMP detachment, and
that this was a substantial and troubling breach of her privacy that
warrants a stay of proceedings.

3
Ibid, Sinclair at para 48.
9

IX. EVIDENCE RELATED TO THE ALLEGED S. 8 BREACH

[40] Inside the cell in the upper right corner from the vantage point of
someone looking from inside the cell towards the door, there is a
protruding video camera that captures and records the entirety of the
cell area, including the toilet, which is to the left of the cell door.

[41] What is recorded is viewable in real time on a monitor on a desk close


to the cell area. This monitor can be seen by the supervising RCMP
members, and/or civilian guard. There is no public access to the area
where the monitor is and it is not viewable by other prisoners in cells.

[42] There is a sign in the area outside the cells which reads: “This area is
under video surveillance, your activities can be monitored and
recorded”. There are no signs in the cells alerting prisoners that they
are being recorded and C.D. was not told that she was being video
recorded in cells or in the area outside the cell area. It appears C.D.
was unaware that she was being video recorded in the cell.

[43] Soon after being secured in the cell, C.D. sat on the toilet briefly.
There was no toilet paper in the cell, as the RCMP has a policy to
only provide toilet paper upon request to prevent prisoners from
clogging the toilets with paper and flooding the cell. While on the
toilet, C.D. requested toilet paper.

[44] Cst. Armstrong heard the request and retrieved toilet paper that was
by the video monitor outside the cell area. As he retrieved the paper,
he glanced at the video monitor. He then went and tossed the toilet
paper through the meal slot in the cell door without looking into the
cell and walked back to the area with the video monitor.

[45] C.D. got up from the toilet to retrieve the toilet paper as it was out of
reach, and bent down to pick it up from the floor. Part of her buttock
was visible in the video recording as she sat on the toilet, and as she
bent down to pick up the toilet paper. She then sat again on the toilet
and briefly wiped herself with the paper and flushed the toilet. She
then got up and lay down on the cell bed.

[46] After giving C.D. the toilet paper, Cst. Armstrong briefly glanced at the
video monitor. He said he did this to check to see what C.D. was
using the toilet paper for. It is unclear if C.D. was on the toilet when he
glanced at the monitor.
10

[47] The recording of C.D. in cells was stored on an internal hard-drive on


the station commander’s password protected computer. These
recordings are only accessible via this computer. Civilian community
guards do not have access to the recordings.

[48] In the preparation of disclosure, the recording was retrieved and


saved to a disc and disclosed to the Crown and Defence counsel.

[49] Other than Cst. Armstrong’s two glances at the video monitor, there is
no evidence that anyone saw C.D. using the toilet in the cell or viewed
the recording prior to Defence counsel reviewing disclosure.

X. WAS C.D.’S S. 8 CHARTER RIGHT BREACHED?

[50] In their materials and submissions, the Crown has conceded that
C.D.’s s.8 privacy rights were breached, and I agree.

XI. S. 8 ANALYSIS

[51] Section 8 of the Charter protects people from unreasonable searches.


Video surveillance can, in appropriate circumstances, constitute a
search within the meaning of s. 8, but only where the person
monitored has a reasonable expectation of privacy.4

[52] Can it be said that a person in police custody has a reasonable


expectation of privacy?

[53] There is clearly a substantially reduced expectation of privacy while in


custody, but the Supreme Court of Canada, and other courts in
Canada, have found that there are circumstances where persons in
custody have a reasonable expectation of privacy - for example, when
speaking with a lawyer, when bodily substances are seized without
consent, and when being strip searched.5

4
R. v. Wong, 1990 CanLII 56 (SCC), [1990] S.C.J. No. 118, at para. 10.
5
R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.J. No. 34, at para. 61; R. v. Golden, [2001] 3
S.C.R. 679, 2001 SCC 83).
11

[54] The specific issue that arises in this case - whether or not a person
has a reasonable expectation of privacy when using a toilet in a police
cell - was addressed in the R. v. Mok case from Ontario. In that case
it was found by the trial judge, and affirmed by the Superior Court on
appeal, that Ms. Mok had a reasonable expectation of privacy when
using the toilet in cells, and that her s. 8 Charter right was breached.6

[55] Turning to the circumstances in this case, in order for a s. 8 breach to


be made out, C.D. must have had a subjective expectation of privacy
that was objectively reasonable when she used the toilet in the cell.

[56] Regarding whether or not she had a subjective expectation of privacy,


the Crown concedes that C.D.’s s. 8 charter right was breached, and
Defence materials and Defence counsel submissions indicated that
C.D. did not know, or expect, that the cell was being video monitored
when she used the toilet.

[57] These materials and submissions were not evidence, however, and
my finding on whether or not C.D. had a subjective expectation of
privacy must be based on the evidence - specifically the video
recordings and the testimony of the officer.

[58] C.D. was not told by the police that the cell area was under video
surveillance. Although there was a small sign in an area outside the
cell advising that the general area was videotaped, the sign did not
specify that the interior of the cell was video monitored, and her
attention was not drawn to it. She did not appear to look at the sign.

[59] When viewing the video of her in the cell, C.D. does not appear to be
aware she was being video monitored. Although there was a camera
in the cell protruding from the ceiling, she did not look up at it, and her
demeanour did not suggest that she was aware it was there.

[60] C.D. was alone in the cell, and there was no one outside looking in
the cell door window when she used the toilet.

[61] For these reasons I determine that there is sufficient evidence for me
to find that C.D. had a subjective expectation of privacy, and I make
that finding.

6
R. v. Mok, 2012 ONCJ 291; R. v. Mok 2014 ONSC 64; R. v. Mok, 2015 ONCA 608.
12

[62] I also find that this expectation of privacy was objectively reasonable.
Using the toilet is an inherently private activity and a person does not
generally expect to be observed in such a circumstance.

[63] It is important in this case that C.D. was not told that the toilet area in
the cell was video monitored and recorded. While prisoners have a
reduced expectation of privacy while in custody, I find that there
remains an objectively reasonable expectation of privacy when using
a toilet alone in a cell you did not know was being video monitored,
and were not told was being video monitored.

[64] For these reasons, I determine that the video monitoring and
recording of C.D. using the toilet was unreasonable in the
circumstances, and constituted a breach of her s.8 Charter right.

XII. SERIOUSNESS OF THE S. 8 BREACH

[65] To assess the seriousness of the breach, I must look at the reasons
why the police video monitor cells, including the toilet area.

[66] The police are responsible for keeping prisoners safe. Video
monitoring helps them do this by making it easier for them to see
when a prisoner is in medical distress, or being assaulted by another
prisoner.

[67] Tragically, numerous Nunavummiut have self-harmed and died by


suicide while in RCMP cells. Coroner inquests into these deaths have
been conducted and inquest juries composed of Nunavummiut have
recommended that all cells in Nunavut be video monitored to protect
prisoners from acts of self-harm and suicide.

[68] Prisoners can fall into medical distress on the toilet, and the toilets
themselves can be used to self-harm or harm others, as they have
sharper metal edges and standing water that a person could
potentially drown in. Accordingly, the RCMP have no choice but to
video monitor cells, including the toilet area, despite the associated
privacy concerns.

[69] In addition to making cells safer for prisoners, cells are video
monitored to create a record that can be used as evidence of possible
criminal behaviour by prisoners and or police. This serves to deter
misbehaviour, and encourages police accountability.
13

[70] Something else to be considered when assessing the seriousness of


the privacy breach is what was captured on the video, and how it was
viewed and handled. Although the video recording momentarily
showed a part of the side of C.D.’s buttock, and upper buttock, there
were no other private parts of her body visible.

[71] Cst. Armstrong briefly glanced at the monitor on two occasions while
standing from some distance when she may have been on the toilet.

[72] Part of Cst. Armstrong’s job was to monitor the prisoner in his care
and his glancing at the monitor was not done in an inappropriate, or
prurient manner.

[73] The recordings of C.D. inside and outside the cell were saved to the
detachment commander’s password protected computer and later put
on a disc and disclosed to counsel. There was no evidence that these
recordings were seen by anyone else other than the lawyers involved
in the case.

[74] In the circumstances, the s. 8 breach was minor, given both the
necessity of the toilet area being video monitored, what was visible on
the recording, and the fact that there is no evidence the video
recording was viewed or used improperly.

[75] This is also to my knowledge the first case where this issue has been
litigated in Nunavut. The police have not previously been put on
notice that recording people using the toilet in cells engages s. 8
Charter concerns. This decision brings this issue to their attention.

[76] Police should be sensitive to the fact that being video monitored and
recorded using the toilet would be an embarrassing and humiliating
experience for many prisoners, and that some prisoners would
understandably be concerned about who might be watching while
they use the toilet, or who might have access to the recording.

[77] This concern is heightened in Nunavut by the fact that local civilian
community members often work as cell guards. In the small
communities of Nunavut, it can be expected that these guards, and in
some cases the community police officers, will personally know many
of the prisoners they are monitoring. Being observed using the toilet
by someone who knows you obviously engages privacy concerns.
14

XIII. RECOMMENDATIONS TO RCMP

[78] To ameliorate these concerns, the RCMP should tell every prisoner
they are putting in a detachment cell that the cell is being video
monitored and recorded. Consideration should also be given to
having a sign in each cell advising the same.

[79] Some sort of cover or screen should also be made available to shield
prisoners from the camera’s view when using the toilet. In appropriate
circumstances, prisoners should be told about the availability of the
cover or screen and, depending on the danger posed by the prisoner,
the cover or screen could be provided.

XIV. DO THE BREACHES WARRANT A STAY OF PROCEEDINGS?

[80] A stay of proceedings is the most drastic remedy a criminal court can
order and is only appropriate in the clearest of cases.

[81] This is not the clearest of cases. There was nothing malicious or
vexatious about the state conduct. It has not undermined the fairness
of C.D.’s trial, nor has it contravened fundamental notions of justice,
or undermined the integrity of the judicial process.

[82] I accordingly do not order a stay of proceedings.

XV. DO THE SS. 8 AND 10(B) BREACHES WARRANT AN EXCLUSION


OF THE OFFICER’S OBSERVATIONS OF C.D.’S IMPAIRMENT AND
DRIVING?

[83] Cst. Armstrong made his observations of C.D.’s driving and her level
of impairment prior to C.D.’s rights being breached. There is no
temporal or causal connection between the breaches and Cst.
Armstrong’s observations of impairment and driving.

[84] Although a temporal or causal connection between breaches and


evidence sought to be excluded is not necessarily required for
exclusion to be warranted, it is generally required.
15

[85] Cases where evidence is excluded despite a lack of temporal or


causal connection involve more serious and unacceptable police
conduct than occurred in this case; conduct that courts needed to
condemn by the exclusion of evidence not causally related to the
breach.7

[86] The breaches in this case were not malicious nor the product of
abuse or other police misconduct that the court must distance itself
from by the exclusion of Cst. Armstrong’s observations of C.D.’s
driving and intoxication level, which were made prior to her rights
being breached, and I decline to do so.

XVI. CONCLUSION

[87] I find C.D. guilty of impaired operation of a motor vehicle based on the
officer’s observation of intoxication and driving pattern.

NOTE

[88] C.D. made some inculpatory statements to Cst. Armstrong at the


detachment. In the Defence materials it was argued that these
remarks should be excluded as they were made in breach of her right
to silence. I have not addressed this aspect of the Defence argument
as Defence counsel at trial conceded that the officer’s observations of
intoxication and driving pattern proved the offence of impaired driving.
The inculpatory remarks did not add in any significant way to the
Crown case and were not factored in to the finding of guilt.

Dated at the City of Iqaluit this 20th day of April, 2020

___________________
Justice C. Lyons
Nunavut Court of Justice

7
R. v. Pino, 2016 ONCA 389.

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