BC drunk driver to get lighter sentence after he was filmed on toilet

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A British Columbia driver who blew more than three times over the legal limit after his Mercedes was involved in a two-vehicle crash nearly three years ago will get a lighter sentence because he was recorded on video in a police holding cell using the toilet.

Mounties arrested Gurinder Pal Singh Bajwa for impaired driving on May 11, 2022, after he rear-ended a white Hyundai Tucson in the parking lot of Wholesale Club. They found a copper cup that smelled like liquor in the console of his grey Mercedes sport utility vehicle and a bottle of Alberta Premium Whiskey in the back, along with a bottle of mouthwash under a jacket. The Hyundai’s driver told police that she could smell liquor on the breath of the driver who hit her and that he was unsteady on his feet.

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“In my view, should there be a finding of guilt on one or more of the offences Mr. Bajwa is accused of, the videotaping of Mr. Bajwa using the toilet while in police cells can be remedied through a reduction in sentence,” Judge David Patterson of B.C.’s provincial court wrote in a recent decision.

Since that ruling came down March 20, Bajwa “invited a conviction” on charges of impaired and prohibited driving, Damienne Darby, who speaks for B.C.’s Prosecution Service, said Monday in an email.

“This procedure is used by an accused, instead of a guilty plea, in circumstances when they concede the Crown has proven its case in light of a court’s ruling but wish to preserve the right to appeal the decision,” Darby said, noting Bajwa is scheduled to be sentenced April 29.

Bajwa’s lawyer had argued unsuccessfully that the violation of his client’s right to be free from unreasonable search and seizure when Mounties recorded him using the toilet in a holding cell at the Vernon RCMP detachment should warrant a stay of proceedings.

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“The video recording of Mr. Bajwa using the toilet was not so egregious as to offend society’s sense of fair play and decency when balanced against society’s interests in having Mr. Bajwa tried on the merits of the case against him,” Patterson said in his March 20 decision.

Bajwa’s lawyer also failed to convince the judge that taking video of his client using the toilet justified the exclusion of “all physical and documentary evidence obtained by the police in this case, including the certificate of a qualified technician,” who administered the breathalyzer twice that night to the 57-year-old mechanic.

The Crown argued “that excluding evidence would also be inappropriate, especially considering Mr. Bajwa having breathalyzer results with readings of 270 and 260 milligrams of alcohol in 100 millilitres of blood,” said the decision.

The legal limit for blood alcohol concentration for drivers in Canada is .08 per cent, or 80 milligrams of alcohol per 100 milliliters of blood.

“Recognizing the high public interest in adjudicating drunk-driving cases on their merits, combined with the reliability and accuracy of breathalyzer results, the prosecutor argues that excluding evidence would also undermine the administration of justice,” said the decision.

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The judge sided with the Crown, concluding the “breach on (Bajwa’s) dignity was real but not significant and favours the inclusion of the evidence that pre-existed the breach.”

There was signage in the detachment’s “cell bay area, booking room and hallway, advising detainees that their use of cell toilets may be video-recorded or live monitored,” said the decision.

The RCMP failed to explain to Bajwa that he would be recorded while using the toilet and that he had options “to enhance his privacy by using a screen, gown, or other modesty device,” said the decision.

Mounties also failed to use technology to blur or black out the video, it said.

His lawyer argued the “intrusive privacy breach” was “an affront to human decency and Mr. Bajwa’s dignity. The breach intruded upon a fundamentally private activity: the use of the toilet. Therefore, this court should not endorse such unseemly police conduct and must disassociate the administration of justice from it.”

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When Mounties demanded Bajwa provide a breath sample for their roadside screening device at the accident scene, after two unsuccessful attempts, he blew a fail at 6:47 p.m., said the decision.

At 7:48 p.m. a constable took a breath sample from Bajwa at the Vernon RCMP detachment. He took another 21 minutes later.

Bajwa used the toilet once while in police custody at 9:45 p.m. In the video, “part of his left buttocks and left upper thigh” are visible, said the decision, which notes he was done “under a minute” later.

The detachment “did not have a policy or requirement that detainees be offered a privacy screen when using the toilet. Furthermore, there was no signage advising detainees of their right to a privacy screen when using the toilet in their cell,” said the decision.

Though it notes a May 2024 update to the RCMP operations manual includes directions to “tell prisoners about the availability of privacy screens,” unless that would compromise anyone’s safety.

Bajwa doesn’t “remember seeing any signs in the Vernon RCMP detachment cells indicating privacy was available while using the toilet,” said the decision. “His jailers failed to tell him that his washroom use was being recorded. No one advised him of the possibility of obscuring the video recording of his toilet use. No one offered him a privacy gown or any other device to protect his privacy while he used the toilet in cells.”

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Bajwa “shares a home with his extended family and is used to having privacy when using the washroom,” it said.

He told the court he did not want to be naked in front of anybody else. “It’s embarrassing that everybody was able to see me naked.”

The court heard from an RCMP officer that “cell cameras are necessary to monitor detainees for their safety.”

The judge determined that Bajwa’s “right to a fair trial has not been prejudiced” by the video of him using the toilet.

“Recognizing, as I must, that people accused of a crime and in police custody have a reduced expectation of privacy but not a complete loss of privacy, I agree that the videotaping of Mr. Bajwa using the toilet in the present case impacted Mr. Bajwa’s dignity and was embarrassing for him,” Patterson said. “Accordingly, the video recording of Mr. Bajwa using the toilet, as conducted in the present case, is offensive to societal notions of decency.”

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