Recording detainee on toilet a privacy breach but not so bad to warrant a stay

Videotaping a detainee while she uses the toilet in her cell is a violation of privacy but it isn’t a breach so egregious as to warrant a stay of proceedings, a judge ruled this month in a case that presented a unique issue for the court to consider.

In May 2012, another judge stayed the proceedings in the case of Stephanie Mok, a Richmond Hill, Ont., woman caught on a police camera while she used the toilet in her jail cell on the night police arrested her for drunk driving. Police had decided to detain her overnight due to her level of intoxication.

The trial judge, who watched the surveillance video of the woman inside the cell, said it was a “degrading, humiliating, abhorrent, and demeaning invasion of privacy.”

“I find that the prejudice suffered by Ms. Mok, which is directly attributable to the s. 8 Charter breach, is substantial,” wrote Ontario Court Justice Peter West.
But on Jan. 7, the Crown was successful in appealing the order to stay the proceedings.

“All this is to say, this was a difficult balancing of state and individual interests, in a context where there is clearly a significantly reduced expectation of privacy. While I find there to have been a breach of Ms. Mok’s rights, I do not consider it egregious under the circumstances, particularly because it is a case of first instance,” wrote Justice Cary Boswell in R. v. Mok.

Criminal lawyer Adam Weisberg says the court should have given deference to the trial judge in this case.

“The trial judge is often in the best position to assess the egregiousness of a breach,” he says. “The appellate judge did not actually view the video of Ms. Mok when she was detained and subjected to having to urinate while under surveillance.”

For West, the details in the video were key factors in his decision to order a stay.

“What is particularly offensive and abhorrent in the circumstances of this case is that the toilet paper roll was not on the wall beside the toilet,” he wrote.

“It was sitting eight feet away on the metal bench which is against the wall opposite to where the toilet is located. After sitting on the toilet for approximately five minutes, Ms. Mok realized that the roll of paper was on the other side of the cell. She had to stand up, with her pants at her ankles and take two steps in order to retrieve the paper and then return to sitting on the toilet.”

But according to Boswell, West had put too much weight on that detail.

“The trial judge, in my view, put undue emphasis on the fact that Ms. Mok walked across the cell area with her pants around her ankles to retrieve the toilet paper. The fact that she did so was likely a function of her level of intoxication. Had she been sober, she may have had the foresight to bring the toilet paper roll over to the toilet with her.”

Even so, Boswell urged Peel Regional Police to change their detainee monitoring practices to allow for more privacy.

Abby Deshman, director of the public safety program at the Canadian Civil Liberties Association, says privacy is a common concern for people in detention and notes it’s often difficult to get a remedy for a breach of this nature. It’s good to see the courts reaffirming detainees’ right to privacy, she says.

“If another case came before the court and if the privacy measures the courts had suggested haven’t been implemented and similar privacy violations had occurred, I think that would be a stronger case,” she adds.

As part of its appeal, the Crown suggested detainees have a lowered expectation of privacy.

Boswell, however, found otherwise. “The detainee’s expectation of privacy in the cell area is not so significant as to warrant a finding that any surveillance is inappropriate. But it is sufficient to require that the police do not monitor and record the use of the toilet by detainees.”

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