Everyone has a right to relieve themselves in private — even suspected drunk drivers.
So yet another judge has had to toss evidence and acquit a driver who blew more than double the legal limit after finding his Charter rights were violated by police — this time because his right to privacy was breached when surveillance video in the OPP detachment captured him naked from the waist down during his two trips to the toilet.
“His urine stream was visible as was his penis,” wrote perturbed Ontario Court Justice Robert S. Gee.
“This would have been a highly embarrassing and uncomfortable situation for anyone to be put in.”
According to the recent decision, Bhavandip Moondi lost control of his pick-up truck and ended up in a ditch near Simcoe shortly after 1 am on Jan. 19, 2018.
Moondi was charged by the OPP with operating his vehicle while having an excessive amount of alcohol in his blood: his readings were 185 and 187 — far over the 80 limit.
When brought to the detachment, Moondi was advised that booking and cell areas are under constant video surveillance.
He never imagined that included the toilet area.
“This strikes me as a reasonable interpretation,” agreed the judge.
“Video surveillance is ubiquitous in this day and age and people have generally come to realize that. However, people generally assume that this does not extend to them being videotaped in washroom facilities.”
The OPP has a policy of offering blankets or paper gowns to preserve a suspect’s toilet privacy but in this case, Gee found the policy wasn’t properly followed.
“Not much more than the bare minimum was attempted” to protect Moondi from the washroom camera — he wasn’t offered the gown when he first used the toilet just minutes after arriving at the station and was later handed one but without any further information about how it was to be used.
“There needs to be more than a rote recitation of a few words so a box can be checked off on a form,” Gee insisted.
The judge found his Charter rights had been seriously breached and excluded his blood samples as a result.
Gee didn’t try to hide his frustration with the police.
“This is no longer a novel issue. That the police have to make reasonable accommodations for the privacy and dignity of detainees while they use the toilet has been subject to judicial scrutiny now for at least six years since Mok was before the courts,” Gee wrote.
In Mok, charges were stayed against a woman who blew three times the legal limit after video at the York Regional Police detachment showed her genitals as she used the toilet.
The ruling was later reversed on appeal, in part because York police made changes so all cells now have a pixelated area over the toilet so it can’t be seen or recorded.
Why can’t the OPP do the same?
Gee complained the cases keep coming, including a 2018 decision where breath samples were thrown out after a woman was videotaped while urinating at the OPP’s Fergus detachment.
“It is getting to the point where it is unseemly for courts to have to continue to undertake such an analysis. I do not want to have to watch the video in cases such as this to see for instance if Mr. Moondi’s penis was visible and if so for how long,” he noted.
“I no longer want to have to listen to witnesses being asked as we did in this case, if they saw Mr. Moondi’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 Mr. Moondi’s penis.
“This is unseemly and only exacerbates the affront to the dignity of a person like Mr. Moondi.”
So caught with his pants down, he gets to walk.