Law Times

Law Times • January 20, 2014 Recording detainee on toilet a privacy breach but not so bad to warrant a stay BY YAMRI TADDESE Law Times V ideotaping 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." LT Page 5 NEWS No-costs rule among issues as LCO readies for review of class actions law is far from exhaustive" and promises consideration of additional areas that arise as the project proceeds. Christopher Naudie, of Osler oncerns about self-dealing Hoskin & Harcourt LLP, says both by plaintiffs' counsel and the sides of the bar will welcome the dangers of third-party fundreview. ing permeate the Law Com"The law commission has clearly mission of Ontario's recent announcesignalled that it is going to explore ment of a sweeping framework for an the full waterfront of issues relating ambitious review of the province's class to class actions practice in Ontario," action legislation. The framework emerged in early 'The law commission has clearly he says. "Given that it has been over January when the law commission re- signalled that it is going to explore 20 years since the original passage of leased a paper on the issues to consider the full waterfront of issues relat- the act in 1992, it is certainly time for ing to class actions practice in as part of the review. In it, the law com- Ontario,' says Christopher Naudie. a refresh to consider whether the act is meeting its original goals." mission acknowledges that Ontario Access to justice, a primary goal of the act, is an courts are aware of the risks and benefits posed by third-party funding practices and have done their overriding concern throughout the law commisbest to impose terms that protect class members from sion's discussion paper. Under the heading of procedural efficiency, it cites the certification test, the improper interference in strategic decisions. Still, the discussion paper raises concerns about burden of proof, evidentiary requirements, appeal situations where plaintiff's counsel "have effective free routes, and carriage motions as being among the rein" and where their interests "may be more closely more troubling issues. Equally concerning are the "potential frailties" aligned" with the funder. "In the absence of a savvy or interested plaintiff within the structure of the class proceedings fund. representative to supervise the litigation, and in the The law commission noted that since its inception, face of the financial temptations that class actions of- the fund has considered more than 130 applications fer, how can the court reduce the risk of self-dealing?" for funding and has approved 82 of them, 30 of which the law commission asks. "Does the [Class Proceed- produced settlements or awards. "Given that Ontario's ings Act] offer sufficient tools and guidance to the class proceedings legislation adopted 'ordinary' costs rules for class proceedings (instead of a regime of 'no courts to assist in this regard?" These concerns, however, are but two of the issues costs'), there appears to be some agreement amongst that emerge in a list that embraces such core issues as all that a sustainable public fund is required to achieve access to justice, whether Ontario should become a meaningful access to justice for litigants." As it stands, however, the fund's sustainability is no-costs class action jurisdiction, and the shape and vulnerable. There's no assurance, for example, that sustainability of the class proceedings fund. The list goes on to embrace other procedural, sub- the fund and the courts will agree on what engages stantive, and costs matters, including national classes, the public interest, a finding that's central to the juprocedural efficiency, certification and evidentiary dicial determination of whether the court should requirements, take-up rates, the cy-près doctrine, the discount costs against publicly funded plaintiffs. "If the [class proceedings fund] were to run out interaction of common law and statutory causes of acof funds, there is no statutory guarantee that the tion, and the treatment of the waiver-of-tort principle. Despite the breadth of the issues mentioned in government would step in to prevent a fiscal cliff," LT the paper, the law commission cautions that "the list the law commission noted. BY Julius Melnitzer For Law Times C • Professional Development • Cutting Edge Content • Variety and Flexibility • Networking Opportunities ...than ever before. n v f r FEBRUARY 6-8, 2014 Be a part of Canada's largest legal conference. Institute 2014 is your chance to connect with over 1700 of your peers, 300 leading speakers and choose from 29 accredited sessions. Get all your 2014 credits in just 2 days. Register at oba.org/Institute2014 Follow us on Twitter @OBAcpd #OBAInstitute www.lawtimesnews.com Untitled-5 1 13-12-19 3:13 PM

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