The Saskatchewan Court of Appeal Confirms That Detainees Have an Expectation of Privacy While Using Toilet Facilities

Earlier this year I wrote a brief piece with respect to the right of privacy we all enjoy from the intrusion of the State into our affairs, our private life and our private property/space. That article primarily considered the powers of law enforcement officials to conduct what are commonly referred to as “Covid-19 Compliance Checks” at our homes.  

Since then, our Court of Appeal released its decision in R v Paterson, 2021 SKCA 13 which upheld the trial judge’s decision to grant a stay of proceedings against Ms. Paterson as a result of Ms. Paterson being video recorded while using the toilet in a police cell. There was no disputing that Ms. Paterson was legally detained as a result of an investigation into criminal driving charges. The issues though, were whether Ms. Paterson’s right to privacy had been infringed when she was video recorded using a toilet in a police cell and if so, what was the appropriate remedy for the trial judge to award as a result of the invasion of her privacy?

The trial judge held that while Ms. Paterson’s expectation of privacy was reduced as a result of being legally detained in a police cell, and that video surveillance of detained individuals was necessary, Ms. Paterson still had a right not to be recorded without her knowledge while using the toilet located in the cell.

The trial judge noted a prior 2015 Provincial Court decision where Aaron A. Fox., of the McDougall Gauley Defence Group, successfully argued his client’s rights had been violated while his client was recorded using the washroom at the police station. Some four years later, there was no evidence presented by the Crown at Ms. Paterson’s trial of any steps taken to notify her of the video recording, attempts to blur the area over the toilet, or to otherwise limit the invasion of her privacy and integrity. The trial judge noted that ample time had passed to have taken steps to limit invasions of detainees’ privacy since the Court provided its prior 2015 decision and it appeared no steps had been taken to remedy the infringement. The trial judge concluded that a stay of proceedings was the only appropriate remedy which ended the criminal proceedings against Ms. Paterson.

Our Court of Appeal found no error in the trial judge’s legal analysis.

Members of the McDougall Gauley Defence Group have experience dealing with a wide range of criminal charges including charges that have been dropped on the same basis as was ordered in the Paterson case. If you have been charged with a criminal offence or believe you may be the subject of a criminal investigation, it is important to seek legal advice immediately.