A judge from the Ontario Court of Justice had terse words for the Ontario Provincial Police after a charge against an alleged impaired driver was dismissed after the man was captured urinating twice on video surveillance at a police station.
The ruling by Justice Robert S. Gee chastised officers for what happened after the man lost control of his pickup truck and ended up in a ditch, near Simcoe, Ont.
He was taken to an OPP station and charged with operating his motor vehicle while having an excessive amount of alcohol in his blood.
However, Gee stayed the charge after finding the man’s Charter rights were violated and that blood samples from the man had to be excluded from being used as evidence against him.
The judge said video surveillance in the station that showed the man using the washroom on two occasions were unacceptable and police did not caution the man correctly about wearing a privacy gown.
“In this case, on balance I find that the administration of justice would be brought into disrepute if the evidence was admitted,” said the ruling. “There was serious indifference to both the policy of the OPP and to the effect of their actions by the officers on the dignity of [the accused] so much so that these factors outweigh society’s interest in having this matter determined on its merits, in spite of how serious it is. As such, the results of the analysis of [the accused’s] breath sample will be excluded.”
Gee expressed frustration in the ruling with the nature of the breaches of police.
“I acknowledge the more intrusive the video the more serious is the breach, but I would add it is getting to the point where it is unseemly for courts to have to continue to undertake such an analysis,” he said.
“I do not want to have to watch the video in cases such as this to see for instance if [the accused’s] penis was visible and if so for how long. I no longer want to have to listen to witnesses being asked as we did in this case, if they saw [the accused’s] penis on the videos. I no longer want to be told as I was in this case by the Crown that he watched the videotape several times in preparation to see if he could see [the accused’s] penis. This is unseemly and only exacerbates the affront to the dignity of a person like [the accused].”
Lisa Jørgensen, a partner at Cooper Jørgensen, said the judge’s tone in the ruling is unusual.
“The decision’s tone is somewhat unusual in that it is clear that the judge feels that the way we have been evaluating these types of cases is of itself undignified and unfair to accused persons,” she says. “I think the directness of the judge’s tone and judge’s concern with this issue is unusual and breaks a trend that we have been seeing with these types of cases.”
Annamaria Enenajor, a partner at Ruby Shiller Enenajor DiGiuseppe Barristers, says the ruling is symptomatic of ongoing issues with the way police treat people who are in detention.
“The affront to the dignity to a lot of these people is horrendous in many cases, and it’s because they have the power to do so and these people are in a position of great vulnerability,” she says.