strip search

This decision addresses the lawfulness of a warrantless arrest and subsequent searches, including multiple strip searches, of John Kikiantonis by Toronto Police Service officers.

The court found the arrest unlawful due to insufficient reasonable and probable grounds, primarily relying on uncorroborated confidential source information and subjective officer observations.

The court held that the strip searches violated sections 7 and 8 of the Charter, emphasizing the intrusive nature of strip searches and the necessity of case-specific grounds and proper documentation.

The failure to properly record the strip search and the lack of opportunity for re-consultation with counsel after authorization of the strip search were also Charter breaches.

The evidence obtained was excluded under section 24(2), resulting in an acquittal.

The Court of Appeal for Ontario considered whether the right to counsel under section 10(b) of the Charter requires police to provide a detainee with a renewed opportunity to consult counsel before a strip search incident to arrest.

The Court held that, given the highly invasive nature of strip searches, the right to reconsult is necessary to fulfill the purpose of section 10(b).

The Court found two additional Charter breaches: a 20-minute delay in informing the appellant of his right to counsel, and the failure to provide an opportunity to reconsult before the strip search.

However, after a fresh section 24(2) analysis, the Court concluded that the evidence was properly admitted and dismissed the appeal.

This sentencing decision addresses whether strip searches of the accused in pre-sentence custody breached section 8 of the Charter and, if not, whether the frequency and manner of those searches should mitigate sentence.

The court finds no Charter breach but considers the conditions as mitigating.

The court also reviews the appropriate sentencing range for serious gun-related offences, ultimately imposing a nine-year sentence, below the Crown’s request, in light of mitigating factors including the accused’s background, lack of record, and harsh pretrial conditions.

A.B., a young person, pleaded guilty to manslaughter in the death of Kenneth Lee, which occurred during a swarming incident involving eight youths.

The court considered the sentencing framework under the Youth Criminal Justice Act (YCJA), emphasizing accountability, rehabilitation, and reintegration.

Key factors included A.B.'s active participation, intoxication, lack of knowledge about the knife, and significant pre-sentence custody, including unreasonable strip searches.

The court credited A.B. with 15 months of pre-sentence custody and imposed a 21-month Intensive Support and Supervision Program (ISSP) order concurrently with probation, along with ancillary orders.

The applicant, Sayzer Sherif, brought a Charter application to exclude evidence (cocaine and currency) seized during a traffic stop and subsequent arrest.

The applicant alleged breaches of sections 7, 10(a), and 10(b) of the Charter, including failure to promptly inform of reasons for detention/arrest, delayed access to counsel, questioning after invoking right to counsel, dissuading from counsel before a strip search, and muting of body-worn cameras.

The court found breaches of sections 10(a) and 10(b) regarding delayed information, delayed access to counsel, improper questioning, and dissuasion from counsel before a strip search.

However, the court found no breach of section 7 regarding the muted body-worn cameras.

Applying the Grant factors, the court determined that the breaches were not serious enough, and their impact on the applicant's Charter interests was limited, thus the admission of the reliable evidence would not bring the administration of justice into disrepute.

The application to exclude evidence was dismissed.

The appellant, Shaun Rootenberg, appealed his conviction for fraud over $5,000 and his six-year sentence.

The conviction appeal raised two issues: the unreasonableness of the verdict regarding the dishonest diversion of funds, and the trial judge's refusal to grant a stay of proceedings due to alleged section 8 Charter violations from strip searches during pre-trial custody.

The Court of Appeal dismissed both grounds of appeal, finding the fraud conviction overwhelmingly supported by evidence and no Charter breach in the strip searches, or if there was, it did not warrant a stay.

The court also dismissed the sentence appeal, finding the six-year sentence was not demonstrably unfit given the appellant's prior fraud convictions and the devastating impact on the complainant.

The accused, Abel Hailu, brought a Charter application to exclude evidence obtained through alleged breaches of his ss. 8 and 9 Charter rights, specifically concerning police takeover of the complainant's phone for text messaging, his arrest, strip search, and search of his residence and electronic devices.

The court found that the accused did not have a reasonable expectation of privacy in the text messages with the complainant, who was a stranger and alleged victim of a sexual assault and kidnapping.

Therefore, no s. 8 breach occurred regarding the text messages, and the subsequent arrest was lawful.

The court also found no s. 8 breaches regarding the strip search or the search of his residence and electronic devices, as these were conducted reasonably and based on valid warrants.

The application to exclude evidence was dismissed.

The applicant, Damaine Sitladeen, faced firearm and drug charges and brought a Charter application under ss. 8 and 9 to exclude evidence.

He alleged unlawful arrest due to racial bias, an overbroad search incident to arrest, and an unconstitutional strip search.

The court found no Charter violations, concluding that the arrest was based on reasonable grounds (missing license plate), the vehicle search was incidental to arrest and reasonable (including for identification and after drug discovery), and the strip search was justified and conducted reasonably.

The application to exclude evidence was dismissed.

The accused, Kenneth Hill, brought an application to stay proceedings or exclude evidence, alleging multiple Charter breaches by police during his arrest and detention for random assaults.

The court found a violation of the accused's s. 10(b) right to counsel, specifically regarding the police's premature interruption of his call to duty counsel and failure to ensure he received legal advice, particularly given his apparent mental health issues.

However, the court found no violations of s. 8 (unreasonable search, including strip search and state of undress) or s. 10(a) (right to be informed of reasons for arrest).

Applying the Grant factors, the court determined that the s. 10(b) breach was at the low end of the spectrum in terms of impact on the accused's Charter interests, and that admitting the evidence (identification photos/videos taken prior to the breach) would not bring the administration of justice into disrepute.

The application for a stay of proceedings or exclusion of evidence was dismissed.

The applicant, charged with multiple offences including attempted murder, brought a Charter application alleging breaches of ss. 7, 8, and 10(b) during her arrest and the execution of search warrants.

She sought various remedies including setting aside a warrant, a stay of proceedings, and exclusion of evidence.

The court found a breach of the applicant's s. 8 rights due to a warrantless search of her cell phone and a minor informational breach of her s. 10(b) right to counsel.

However, the court found no breach of s. 7 (rejecting claims of an unlawful strip search or denial of dignity/child access) and no implementational breach of s. 10(b).

The court excluded the evidence obtained from the cell phone but dismissed the application to exclude other physical evidence seized under the Criminal Code warrant and denied a stay of proceedings.

The applicant, Dontay Williams, brought Charter applications under sections 8, 9, and 10(b) of the Charter of Rights and Freedoms, seeking a stay of proceedings or exclusion of evidence.

He alleged unlawful detention and arrest without reasonable grounds, insufficient grounds for a search warrant, an unreasonable strip search, and unreasonable delay in accessing counsel.

The court dismissed all Charter applications, finding that the police had reasonable grounds for arrest, the search warrant was valid despite a technical error in its execution timeframe, the strip search was justified and conducted reasonably, and the delay in accessing counsel was reasonable given the circumstances.

Shamar Bailey, charged with first-degree murder, sought to exclude his video-recorded statement to homicide officers under section 24(2) of the Charter, arguing that two strip searches conducted after his arrest violated his section 8 Charter rights.

The court found that the second strip search, conducted at 42 Division, was unconstitutional as it lacked objective justification, being based solely on the officer-in-charge's lack of knowledge about the thoroughness of the initial search.

Applying the Grant factors for section 24(2) exclusion, the court found the Charter-infringing conduct serious, the impact on the accused's privacy significant, and the utility of the evidence for the prosecution marginal.

Consequently, the court excluded the statement, concluding that its admission would bring the administration of justice into disrepute.

The defendant, Gerard Gopaul, faced charges of impaired operation, 80 plus operation, taking a motor vehicle without owner's consent, and possession of cocaine.

The court addressed several Charter applications, finding violations of sections 8 (unlawful strip search, lost video evidence) and 10(a) and (b) (failure to advise of drug jeopardy, insufficient steps for counsel of choice).

Applying the R. v. Grant test, the court excluded the cocaine and breath test evidence due to the seriousness and cumulative impact of the Charter breaches.

Consequently, the defendant was found guilty of taking a motor vehicle without consent and impaired operation, but the charges related to cocaine and 80 plus operation were effectively dismissed due to the exclusion of evidence.

The accused, Di’on Jahil Wong, brought an application alleging breaches of his Charter rights under sections 8 (unreasonable search) and 10(b) (right to counsel).

The court found that police delayed facilitating access to counsel without justification and conducted an unreasonable strip search without sufficient grounds, relying solely on the nature of the drug trafficking charge.

The court dismissed the s. 10(a) breach claim and found the pat-down search reasonable.

As a remedy for the s. 8 and s. 10(b) breaches, the court ordered a stay of all charges against the accused, emphasizing the need to denounce police misconduct and preserve the integrity of the justice system, particularly given the invasive and humiliating nature of the unjustified strip search.

The appellant, Ricardo Francis, appealed his convictions for possessing a loaded firearm and possession of drugs for trafficking, and his seven-year sentence.

The convictions arose from vehicle and strip searches conducted after his arrest on an outstanding warrant.

The Court of Appeal dismissed the conviction appeal, finding the searches lawful under s. 8 of the Charter.

However, the Court granted leave to appeal the sentence, finding that the trial judge erred in principle by failing to adequately consider the principle of restraint for a youthful, first-time offender.

The sentence was varied from seven years to five years imprisonment.

The offender, Jonathan Weir, pleaded guilty to manslaughter after killing his best friend with an unlawfully possessed, prohibited machine gun.

The court considered the appropriate sentence, including the four-year minimum for manslaughter with a firearm, and arguments regarding police misconduct during arrest and detention.

The judge found Weir's moral blameworthiness to be high, closer to criminal negligence than a "near accident," due to his reckless handling and storage of firearms and ammunition while intoxicated.

While acknowledging some police misconduct (improper strip searches), the court found it not egregious enough to justify a sentence below the statutory minimum.

The final sentence was 51 months (4¼ years) after credits for pre-sentence custody, rights violations, and strict bail conditions.

The appellant appealed his conviction, primarily challenging the lawfulness of a strip search conducted in the presence of a female officer, arguing it violated his Charter rights.

The Court of Appeal upheld the trial judge's finding that exigent circumstances justified the female officer's continued involvement during the appellant's violent resistance, and that the evidence obtained from the search was admissible.

The appeal was dismissed.

The accused, Jason Ronald Martin, faced multiple charges including impaired driving, drug possession, and probation breaches.

The defence brought Charter applications alleging breaches of ss. 8 (unreasonable search due to a routine strip search and inadequate record-keeping), 9 (arbitrary detention due to delay in bail hearing), and 10(a) and (b) (right to be informed of reasons for arrest and right to counsel).

The court found breaches of s. 8 and ss. 10(a) and (b), noting the police's routine strip search policy and their failure to promptly and clearly inform the accused of all charges.

The s. 9 application was dismissed as the delay in bringing the accused before a justice was deemed reasonable given the circumstances.

Applying the Grant test under s. 24(2) of the Charter, the court determined that the serious nature of the breaches and their significant impact on the accused's Charter-protected interests warranted the exclusion of all evidence.

Consequently, all charges against the accused were dismissed.

The accused was charged with operating a conveyance in excess of the legal limit.

The court found a serious breach of the accused's section 10(b) Charter right to counsel due to the police officer's failure to adequately explain the distinction between a paralegal and a lawyer in the context of impaired driving charges.

While other alleged Charter breaches (delay in right to counsel, roadside call, strip search, and overhold) were dismissed, the s. 10(b) breach was deemed serious enough to warrant the exclusion of breath testing evidence under s. 24(2) of the Charter.

Consequently, the accused was found not guilty.

The applicants, Rebecca Paredes and Matthew Stewart, faced drug and firearms charges.

They brought Charter applications under sections 8, 9, and 10(b), seeking exclusion of evidence (a loaded firearm and drugs) seized incident to their arrest.

The court found that the police lacked reasonable and probable grounds for arrest, leading to arbitrary detention (s. 9 breach).

It also found a s. 10(b) breach for Paredes due to delayed access to counsel, but not for Stewart.

The s. 8 strip search claim for Paredes was dismissed.

Applying the R. v. Grant factors, the court concluded that the serious s. 9 breach and its significant impact on the applicants' liberty, coupled with the police conduct, warranted the exclusion of the evidence to maintain the administration of justice's reputation, despite the societal interest in a trial on the merits for serious charges.