May 30th, 2012
Having taken criminal law courses in law school, and having written numerous commentaries on criminal cases before the courts for TheCourt.ca, I have developed a rather strong stomach. Not much gets under my skin anymore. One case decided by a lower court in Ontario earlier this month stood out for me, though. The case of R. v. Mok, 2012 ONCJ 291, poses difficult questions about our expectations of privacy, particularly when under police custody. In the case, the accused, a young woman by the name of Stephanie Mok, was recorded on video using toilet facilities in her holding cell. Given the facts of the case, the judge deemed the video surveillance to be unnecessary, invasive and even dehumanizing. For this reason primarily, the judge decided to stay the charges altogether.
The accused had a history of alcohol abuse. On the night of January 25, 2010, she left a local pub and proceeded to drive herself home. She was pulled over by police officers, who detected a strong smell of alcohol coming from her mouth. Her blood alcohol level was tested twice. Both times, her blood alcohol level exceeded the legal limit by more than 4 times: 296 mg of alcohol in 100 ml of blood and, two hours later, 284 mg of alcohol in 100 ml of blood. (According to section 253(1)(a) and (b) of the Criminal Code, RSC 1985, c C-46, the legal limit is 80 mg of alcohol in 100 ml of blood. If Mok’s reading had exceeded 300 mg of alcohol, a medical emergency would have been declared and she would have had to go to the hospital.)
All in all, Mok was in the police’s hands for more than seven and a half hours. Because her blood alcohol level was so extraordinarily high, the police kept her behind bars for longer than usual; they needed to make sure that she would not reoffend once she was released. Shortly after she arrived at the police station (around 2:30am), Mok was put in a cell that contained a metal bench, sink and toilet. The video camera, which has a clear shot of the toilet area, is visible on the wall, as it measures 3-4 inches wide. At trial, the police sergeant testified that he did not inform the accused of the video camera (para 20). The accused later admitted that, had she been sober, she would have seen it on the white ceiling (para 35). At 5:00am that same morning, Mok was served with documents. The events that night in the police station were strung together by police officers, who took the stand at Mok’s trial. The accused herself has no recollation whatsoever of that night. When Mok was finally told about the video surveillance while she was using the toilet, she told the court she was, “humiliated, upset, disgusted and ashamed” (para 31).
Two Charter Challenges
The accused made two challenges in this case. The judge dismissed the first one, which concerned the right of the accused to be free from arbitrary detention, enshrined in Section 9 of the Charter. Even if the police were negligent in how they treated her that night – namely, they failed to check up on her regularly to make sure her health was not deteriorating – their actions (or lack thereof)
“had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness,”
Justice Peter C. West concluded in paragraph 39. The challenge failed, in his opinion.
The challenge was a Section 8 challenge. Section 8 states that “[e]veryone has the right to be secure against unreasonable search or seizure.” The ‘search’ that took place in the accused’s cell, particularly when she was using the toilet on two separate occasions, is called into question. When the accused first arrived at the police station, Sgt. Cummins, who took her blood alcohol level and placed her in the cell, informed her that the entire police station was under video surveillance. He also pointed up to the camera – the same one that would be in her cell, even though he did not specifically mention that her cell would be videotaped (para 72). Sgt. Cummins explained that this was police protocol, as it helps facilitate police investigations. If there were no cameras around, those detained in their holding cells could flush illegal substances, contraband and firearms down the toilet. It is also meant to protect the accused in the case of multiple detainees in one cell. Given the fact that the accused was so intoxicated, the police decided that she would be labeled a “high risk” detainee.
Furthermore, Sgt. Cummins noted that there has never been a policy stipulating that only members of the same sex can view videotape footage of the accused(s). This is contrasted against strip searches. When Mok underwent this kind of invasive search, it was done in a private room and by a female police officer. It was not recorded. By noting this incident, the trial judge seems to pose another difficult question before us: what is the actual difference between physical and electronic searches?
Section 8 Case Law
A plethora of case law on search and seizure in the context of police custody is cited by Justice West. “Imprisonment necessarily entails surveillance, searching, and scrutiny,” he begins (para 83). He then turns to the case, R. v. Wong,  SCR 118 [Wong], which held that video surveillance could, in appropriate circumstances, constitute a search within the meaning of section 8 of the Charter. But that result would only follow where the person, who was the object of the intrusion, had a reasonable expectation of privacy. So, in Wong, judges debated about whether being in a rented hotel room, with the door open, could constitute a reasonable expectation of privacy.
Factually, then, this case is very different from Wong. If we cannot determine that, in the specific circumstances, the accused had a reasonable expectation of privacy, then we cannot make a Section 8 challenge. Justice West turns to a decision from the Ontario lower courts in 2001. In R. v. Ramsoondar, 2001 ONCJ 897, Justice Kastner references an earlier Supreme Court decision, R. v. Stillman,  SCR 34 [Stillman]:
One distils from that decision that although a person does not possess a complete lack of any reasonable expectation of privacy in a police station, such an expectation is lower than that of persons out of custody. Clearly situations are contemplated where there is some expectation of privacy in the police station, such as privileged communications with counsel, visits to the rest facilities, and bodily samples without consent [emphasis added] (Stillman, para 17).
This statement is basically the linchpin of the defense’s case. The trial judge agrees that this earlier case from Ontario is important. It is in line with higher court decisions, especially those from Supreme Court, which have held that accused persons have a substantially reduced expectation of privacy. This is not the same as having no expectation of privacy, though. By implementing such safeguards (i.e. private room, no video surveillance, police officers of the same sex, etc.) when strip searches need to be done, the law in Canada clearly supports the position that everyone, even those detained and arrested, have some expectation of privacy.
A closer examination of the facts of the case helps to further shore up the defense’s position. Earlier in the decision, the judge underlines the fact that the police never made any effort to ascertain whether the accused understood Sgt. Cummins’ warnings about the video surveillance. At the time the conversation took place, Mok’s blood alcohol level would have been at, or in excess of, 300 mg of alcohol in 100 ml of blood. Strip searches, on the other hand, are done after the accused is allowed a period of time to sober up. Moreover, the police really had no good reason to suspect that she would be carrying illegal substances, contraband or weapons on her body, and that she would subsequently dispose of them in the toilet. She was a first time offender, and behaved politely and cooperatively throughout the night, displaying no aggregation at any point. Lastly, Mok was charged with a crime that has no relation to drugs, weapons or contraband.
Justice West concluded his rather lengthy decision by slapping the police officers’ wrists. He described the video surveillance, which had an unobstructed view of the toilet, as “highly intrusive” and “offensive.” It is “demeaning” and “contrary” to human dignity to be recorded while using the toilet, he argued. While the police, and the public at large, should try to prevent detainees from obstructing or destroying evidence, the facts of this case would have quickly dispelled our worries (para 103). Due to how “degrading, humiliating, abhorrent and demeaning” the invasion of privacy was, the trial judge ultimately stayed the charges (para 115). At the very end, he gravely warned the accused, Stephanie Mok, of the severity of what she had done over two years ago. But this warning is fairer than a prison sentence, which would have been the result of a case in which police flagrantly disregarded the accused’s Charter rights and freedoms.[filed: Criminal Law Criminal Procedure]