A woman found intoxicated and asleep behind the wheel is free to go after a Regina judge has ruled the Regina Police Service breached her Charter rights by videotaping her using the toilet.

The woman was charged with having the care or control of a motor vehicle while impaired after being found in the driver's seat of a vehicle on May 18, 2018.

Two officers were called to a parking lot near Movado's bar at about 9 p.m. after a woman and a man who appeared drunk were turned away from buying alcohol.

The woman was reportedly laying down in the front seat, which was reclined, with hair covering her face when police arrived. When police entered the vehicle, with the help of the male passenger, they said the woman smelled strongly of alcohol and had to be shaken awake.

The vehicle was in reverse but was not on. Officers said the woman opened her eyes but couldn't focus.

Justice Carol Snell said video footage of the accused at the police station proved she was highly intoxicated. But it's that video footage that the defense contested.

Guilty if not for breach, says judge

The woman's lawyer, Ron Piché argued that her Charter rights were breached when the police videotaped her using the washroom at the police station and asked the court to enter a stay of proceedings.

"The camera fed a bank of monitors and those monitors were accessible by both male and female officers and depicted her in a state of undress that I thought was frankly disgusting," Piché told CBC. "I think Judge Snell was quite properly repulsed by the activity here."

Two female officers were present in the cell with the woman when she used the toilet, which she needed help with because of her intoxicated condition.

The video camera faces the toilet and the video taken of the accused shows her naked from the bottom of her shirt, at her belly button, to her knees.

An investigating officer told the court that there is constant surveillance in some areas of the detention site. No one monitors the screen at all times, but it can be viewed and replayed by detention staff who have to respond to problems.

"Clearly there is a need for some surveillance for the protection of both the police and persons detained in custody," said Snell, according to online court records. "However, there was no evidence provided to suggest any consideration had been given to the privacy interests of persons using the washroom while they were in the detention area."

"Persons in short term police custody have a reduced right of privacy, but they are still to be presumed innocent and therefore they are in a different category from persons entering the general prison population."

Regina Police Service acknowledges judge's ruling

The Regina Police Service says it has to balance prisoner safety with prisoner privacy— especially when people are distressed, intoxicated, or having suicidal thoughts.

"We have been researching best practices and different options to reduce or eliminate the concerns about privacy," said an RPS spokesperson in an emailed statement.

"We acknowledge the court's criticism, but we are also aware of coroners' inquests involving in-custody deaths and recommendations made by juries asking for increased monitoring of people in police detention.

"We need to be sure that any solutions we come up with ensure prisoner privacy, but also meet our legal obligations to keep those in our custody and care safe."

Snell said the two officers in the room could have provided a privacy screen of some sort in front of the toilet.

If it weren't for the Charter breach, Judge Snell said the accused would be found guilty of the offence as charged.

Precedent-setting cases

This isn't the first time this has happened in Saskatchewan. In 2015, a judge in Saskatoon found that a woman accused of driving impaired had her privacy breached when she was seen on video using the washroom at the Saskatoon RCMP detachment. Piché said that incident should have served as a warning for RPS.

Another case in Ontario led to changes by a local police force there.

Const. Andy Pattenden with York Regional Police said the video cameras recording all cells now have a pixelated area over the toilet so that it cannot be seen or recorded.

Officers then do routine cell checks to visually scan the full cell and make sure prisoners are OK.

He said the new system improves privacy while not compromising safety.

"It's a tough balancing act and a fine line for sure because we do have these people in our custody and their safety is most important to us," said Pattenden.