I don’t practice criminal law for a reason. The extension of Charter rights to every facet of police and detention procedure in dealing with an accused, and the resulting dismissal or stay of charges for minor breaches, has always infuriated me.
When I was in law school, the Charter of Rights seemed like a good idea, especially section 8:
“8. Everyone has the right to be secure against unreasonable search or seizure.”
At first glance, that says the police cannot arbitrarily detain and search you or seize your property. For your average, ordinary citizen that is a good thing.
So imagine that section being extended to having a right to privacy in a police detention cell after being arrested for drunk driving (and using the toilet in the cell). It happened: http://www.lawtimesnews.com/201401203719/headline-news/recording-detainee-on-toilet-a-privacy-breach-but-not-so-bad-to-warrant-a-stay?utm_source=responsys&utm_medium=email&utm_campaign=CLNewswire_20140120
Thankfully, the court of appeal overturned the original stay of proceedings order. But the court still indicated that videotaping the cell (and the accused using the toilet) was a violation of the Charter, just not so egregious that a stay was warranted.
But should there be ANY expectation of privacy when detained in a prison (except when meeting with your lawyer)??? You have been arrested. Video surveillance of the cells is done so that a guard does not need to stand guard outside the cell to observe behavior. Video cameras are somehow different from the eyes of a guard?
Here’s a quote from the article:
“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.
As part of its appeal, the Crown suggested detainees have a lowered expectation of privacy.
[Court of Appeal Justice] 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.””
Does that mean the guards have to avert their eyes if they see someone using the toilet in a prison cell? Shower areas are off limits from surveillance? There now has to be areas of a cell that are blacked out from the monitoring cameras?
Sadly, the inmates continue to run the asylum.
Paul H. Voorn