The outcome of Ms. M’s trial was not only a victory for Ms. M herself, but also for all those detained by the York Regional Police moving forward.
Ms. M had been struggling to abstain from alcohol for several months while attending programs to treat her addiction. After a relapse one January evening she was driving home from a pub and was pulled over by police for driving in a dangerous manner. The officer, smelling alcohol on Ms. M’s breath, turned off the vehicle and performed a roadside breath test before bringing her to the local station for further testing. Ms. M was read her rights and connected with duty counsel before being tested by a breath technician. Ms. M’s reading was 296mg/100ml of blood, only 4mg short of being considered a medical emergency and being rushed to the hospital.
After the breath reading Ms. M was detained for roughly 6.5 hours before being released on a promise to appear. During her detention Ms. M was monitored by police using a surveillance camera aimed at the cell, which was common practice. Two times throughout the detainment Ms. M used the toilet in her cell, both times she was monitored and recorded (without censoring) by the police through the surveillance camera.
Ms. M later testified at trial that she was unaware that all her actions inside the cell were visible on camera, and that she felt “humiliated, upset, disgusted, and ashamed” that she had been monitored and recorded using the toilet.
Ms. M hired Edmund Chan for her defence to help her avoid severe criminal charges to allow her to continue recovery and to contest the invasion of privacy from her time in holding.
In engaging with treatment programs and attempting to abstain from alcohol Ms. M had shown a clear desire to combat her addiction and self-improve. Her relapse was unfortunate, but relapsing is not uncommon amongst those in recovery, and we wanted to help Ms. M continue on her path to recovery. Our goal for Ms. M would be to avoid prison sentences or any outcome that would impact her recovery.
More than that, we recognized that monitoring a detained individual (not yet convicted, and therefore presumed innocent) while using the bathroom was a clear violation of one’s privacy interests. We would push to have this issue addressed by the court.
Our focus was on two Charter violations by YPS. First, we contested that the lengthy detention of Ms. M was a violation of her section 9 right against arbitrary detention. Second, we contested that in monitoring and recording Ms. M while she used the toilet the police had violated her section 8 rights against unreasonable search and seizure.
For the section 9 breach we referred the court to the decisions of R. v. Iseler and R. v. Price. The former held that the length of a detention can be used to determine arbitrariness on its own, while the latter held that level of intoxication was insufficient on its own to justify not releasing someone from detention after they’d been charged. We suggested that on these principles Ms. M should have been released far earlier than she had been, and her section 9 rights were violated.
Regarding the section 8 breach we referred the court to R. v. Wong, which held that video surveillance could constitute “search” under the definition of section 8. For section 8 to be engaged the surveillance must take place in circumstances where a person has a reasonable expectation of privacy. We submitted to the court that while it is reasonable to be surveilled while in holding, detainees have a reasonable expectation of privacy while using the bathroom.
If convinced that a Charter right had been breached we would be able to seek remedies such as a stay of proceedings.
The court agreed that Ms. M’s section 8 rights had been breached. It was held that a detainee had a right to privacy while using the bathroom in their cell. Particular concern was raised regarding the possibility that such footage could be leaked to the public, and the possibility that a police officer of the opposite sex of the detainee may be monitoring the cameras.
A stay of proceedings was ordered and Ms. M agreed to sign a peace bond to maintain good behaviour, to abstain from operating a motor vehicle with any alcohol in her system and to have an Interlock ignition device installed on her car.
Subsequently, the York Regional Police modified their privacy directives for detainees. Security cameras viewing cells were outfitted with “Privacy Masking,” and the toilet in each cell would appear as a grey rectangle to prevent detainees being seen or being recorded while using it. Mr. Chan established a very important precedent with this case.