Do police have the right to videotape you using a toilet?
It turns out they do — if you’re in custody, according to several — but not all — recent Ontario court decisions.
But regardless of which way these cases land, they’re already changing the way police deal with prisoners.
It’s a case of safety versus privacy, police and the courts say. It’s also about respect for human dignity, say opponents of the practice.
The argument became personal for one young law student, Aislyn Griffin, when she was pulled over and arrested in Oakville one night in September 2012 on suspicion of drunk driving. Griffin, who’s since joined a London law practice, was recorded (in both video and audio) using the toilet in her holding cell at the Burlington Detachment of the Ontario Provincial Police.
Griffin, whom the courts described as “polite and co-operative” throughout her time in police custody, asked for a private toilet, but was told OPP policies would not permit it.
So she did her business, and they filmed and recorded it.
It should be noted that the arresting officer took pains to leave the immediate area for the duration and was described as “respectful” in her dealings with Griffin.
But those recordings were provided as disclosure in her drunk driving case and introduced as evidence at her trial, albeit sealed by a publication ban.
Griffin did not respond to interview requests, but her lawyer, Peter Metzler spoke in general about the growing number of these cases. An appeal decision in Griffin’s case, released last month, lists eight similar Ontario cases where people complained about police video surveillance of toilets.
Metzler said he was in a Hamilton court representing another client with the same complaint just last week.“My staff were shocked to find (these recordings were) part of the Crown’s disclosure … while you’re involved in one of the most private intimate acts, it’s recorded. You understand it’s being monitored, but then to find out it’s being distributed, albeit in a limited way?”
Griffin argued at trial that her Charter rights had been violated and the case should be tossed or the police evidence excluded. In an affidavit, Griffin told the court she was embarrassed and degraded to find out the recording existed and had been distributed to the crown and defence.Justice Maria Speyer ruled that, the taping did indeed violate her Section 8 Charter rights which are enshrined in the simple phrase: “Everyone has the right to be secure against unreasonable search or seizure.”
But, while her privacy rights had been breached, applying tests and guidelines from higher court decisions, Speyer ruled that, on balance, the violation wasn’t severe enough to warrant staying the charges or excluding the evidence. Griffin was convicted of the lesser of two charges: driving with a blood-alcohol level in excess of 0.08.
Her appeal of that conviction, focusing on the charter challenge, was heard in January of this year and last month Justice Fletcher Dawson released a 24-page decision, turning her down, saying the trial judge’s decisions were reasonable, balanced and supported by the facts in front of her.
Metzler noted, “the case law is still emerging and the rules are being revised. No case has gotten as high as the Court of Appeals yet. It’s still evolving.”
But Griffin’s battle did spark change — both at the OPP and the Halton police.
Acting Insp. Doug Fenske, commander of the Burlington OPP detachment, said OPP policies have been evolving for some time because of Griffin’s case and other’s like hers.
“We’ve changed what we do,” Fenske said Thursday.
Fenske is not apologizing for the video surveillance, like every police service The Spectator spoke with, he stressed that the monitoring and recording was for safety reasons and became widespread due to the recommendations of at least four coroner’s juries.
“Basically from the time they are brought in … they’re on video. And not just them, but us — it’s for everyone’s safety, for everybody’s well being.”
But with one eye on the rising Charter challenges, the OPP has begun to change.
Signs — including stencils painted right on the walls in the cells — were put up warning prisoners they were being monitored and recorded at all times.
“That was the first step,” Fenske said.
A year after Griffin was arrested, OPP officers were instructed to ensure prisoners were directly informed they were being taped, and to make sure they knew they could use bunk blankets to cover themselves while using the toilet.
That too was a preliminary step.
A year after that, a whole new video and audio system was put in place at the detachment, ending audio recording (except while prisoners are interviewed as part of the breath tests).
And about six months ago, the detachment policy changed again: “we provide people with paper smocks that they can wear,” Fenske said. “We encourage them to use them.”
The disposable smocks — reminiscent of hospital gowns are now “being used everywhere, in OPP detachments everywhere they’re doing this,” Fenske said.
The story is different at the local police level.
Halton Regional Police media relations officer Sgt. Chantal Corner said her service has modified their policies in response to the Griffin case. Halton police continue to use video to monitor and record the interior of their holding cells, including the toilets, and prisoners are advised of that.
But recently they began offering prisoners the use of disposable, two- by three-foot “paper towels” to drape over themselves while using the toilet.
Hamilton has moved less rapidly.
Prisoners are under audio and video monitoring and recording throughout their time in custody and are advised of that by a sergeant, Hamilton police Insp. Glen Bullock said Thursday.
“We have a duty to care for people in our area which is why we monitor them … it’s primarily about their safety and the safety of everyone involved.”
But Hamilton has not moved to provide disposable paper ‘towels’ used by Halton police, nor the paper smocks offered by the OPP.
“There’s an opportunity for them to use the blanket in the cell,” Bullock explained, adding he didn’t know its size but “it’s certainly big enough to cover someone using the toilet.”
However, Bullock noted Hamilton’s policies are being reviewed and he expects they will be revised as well.http://www.thestar.com/news/crime/2015/ ... enges.htmlhttp://www.thespec.com/news-story/55164 ... practices/