Her Majesty The Queen v Stephanie Mok, 2014 ONSC 64 (2 August 2013)
The Ontario Superior Court of Justice held that videotaping a detainee using the toilet in a police cell was a breach of her right to be free from unreasonable search and seizure. However, this breach of her privacy did not warrant a stay of the criminal proceedings against her.
Mok was arrested for impaired driving. The police observed her driving dangerously and conducted breath tests showing she was more than three times over the legal alcohol limit. She was detained in a cell in a local police station until she sobered up.
The cell was under video surveillance. Mok was advised that there were video cameras throughout the entire police station and that everything in the station was being videotaped. Despite the cameras being clearly visible, Mok testified that she was not aware that there was a video camera in her cell.
The video captured a full frontal view of Mok on the toilet. The trial judge noted that it was particularly offensive and abhorrent that the toilet paper roll was not on the wall beside the toilet but was eight feet away. The video captured Mok standing up and walking to retrieve the toilet paper with her pants at her ankles.
Mok argued that the video surveillance and permanent record of her pulling down her pants, exposing her genitalia and using the toilet humiliated and degraded her. She applied for a ruling that the police had violated her section 8 right under the Canadian Charter of Rights and Freedoms – the right to be free from unreasonable search and seizure.
The trial judge found that her section 8 Charter right to be free from unreasonable search and seizure had been violated. He held that the only reasonable remedy was a stay of the proceedings.
The Crown appealed arguing that the trial judge erred both in his finding that there was a section 8 breach and in the imposition of a stay of proceedings.
While the Ontario Superior Court of Justice agreed Mok's section 8 right had been violated, the Court found that a stay of proceedings was unwarranted in this instance and allowed the appeal on that basis.
Breach of Section 8
The Court noted that the Canadian courts have identified a spectrum of privacy interests protected by section 8 of the Charter, including personal privacy. The Supreme Court has recognised that the right to be free from unreasonable search and seizure directly engages concerns for human dignity, integrity and autonomy. The Court emphasised that section 8 guarantees against unreasonable search and seizure and protects only reasonable expectations of privacy. The plaintiff must establish that, subjectively, they expected privacy; however, that expectation must still be objectively reasonable.
The Court noted that Mok's actions in the cell reflected a lack of awareness of the surveillance; she walked across the cell with her pants around her ankles without any attempt to cover herself up. These circumstances were considered sufficient to establish she had a subjective expectation of privacy.
The Court found that while detainees must, objectively, have a lowered expectation of privacy while in police custody, it remains reasonable for detainees to expect at least some minimal level of privacy.
While the Crown argued that Mok did not have a reasonable expectation of privacy because she had been warned about the video cameras, the Court held:
- she was too intoxicated to process information regarding the presence of video recording devices;
- although she was told that everything in the police station was video recorded, this was not meant to be taken literally as there were clearly areas of the police station which were not recorded, such as private search rooms; and
- the police cannot avoid breaching section 8 simply by notifying in advance that there would be video surveillance. Notification might be a more persuasive justification for breaching section 8 if it were open to the detainee not to enter the videotaped cell or not to use the toilet being videotaped.
The Court noted that whether Mok's subjective expectation of privacy was objectively reasonable depends on striking the balance between individual and state interests. The Court agreed with the trial judge's conclusion that the videotaping of detainees using the cell toilet by police officers of either gender is a "highly intrusive invasion of privacy." On the other hand, the state's legitimate interests in monitoring cells for safety and presentation of evidence are not so compelling that they ought not to give way to at least a modesty screen that partially blocks the camera's view of the toilet.
Therefore, Mok's section 8 right was violated as she had a reasonable expectation of privacy.
Stay of Proceedings
The Court noted that ordering a stay of proceedings where state conduct has contravened fundamental notions of justice is a drastic remedy that should only be granted in the "clearest of cases."
The Court held that this was not the "clearest of cases" as the issue of videotaping toilets in police cells had not come before the courts before. The case involved a difficult balance between state and individual interests.
Further, a stay of proceedings can only be a prospective remedy to prevent future perpetuation of a wrong rather than redress a past wrong. The Court found that the trial judge erred by granting the stay to compensate Mok for the past injustice she had experienced.
The Court disagreed with the trial judge's view that a stay of the proceedings was necessary to achieve a change in the way the police monitor their cells, expecting that the police would change their surveillance practices following this decision.
Finally, the Court found that the trial judge did not give sufficient weight to the public interest in having this particular impaired driving charge resolved on its merits. The Court emphasised the seriousness of the crime and concluded that staying these charges was not an appropriate response.
This case confirms that, in Canada, detainees have a reasonable expectation to a minimal level of privacy while in police custody. Any restrictions on a detainee's privacy must be necessary to achieve a legitimate aim and must be the least restrictive measures available.
In Australia, there is no general right to privacy. Australian common law and specific purpose statutes (like privacy and surveillance devices legislation) provide incomplete protection against invasions of privacy.
In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) protects, for an individual:
- the right not to have his or her privacy unlawfully or arbitrarily interfered with (section 13); and
- the right of all persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person (section 22).
Similar rights are protected in the Australia Capital Territory by the Human Rights Act 2004 (ACT).
As far as we are aware, no case has yet been brought under either piece of legislation regarding the privacy of prisoners.
This decision is available online at: http://canlii.ca/t/g2j11
Jessica Courtney is a Solicitor at DLA Piper.