Court File and Parties
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
REGAN McGEE
Before Justice J. M. Grossman
Heard on August 15, 16 and 31; September 20, October 3, November 28, 2011;
Ruling: February 3, 2012
B. Stagg / K. Nedelkopoulos Counsel for the Crown
E. Schmid / C. Barry Counsel for the Accused
Grossman, J.:
1Regan McGee is charged that on or about the 3rd day of March, in the year 2009, in the City of Toronto, in the Toronto Region while his ability to operate a motor vehicle was impaired by alcohol or a drug, did operate a motor vehicle contrary to the Criminal Code.
2He is further charged that on or about the 4th day of March, in the year 2009, in the City of Toronto, in the Toronto Region did without reasonable excuse refuse to comply with a demand made to him by P.C. Robert Kerr, a peace officer to provide then or as soon thereafter as was practicable samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood contrary to the Criminal Code.
3Charter Applications were filed. Counsel abandoned the section 11(b) Application. At the commencement of these proceedings on August 15, 2011, I determined that I would hear the Charter Application alleging a breach of Section 8 of The Canadian Charter of Rights and Freedoms on the basis that the Applicant conceded impairment and refusal to provide proper breath samples and agreed the results of said motion would be determinative of all matters, one way or the other.
[4]
Factual Background
It is useful to summarize the factual evidence. On March 3, 2009, Paul Ross was operating his 1995 Saturn motor vehicle at about 10:30 p.m. He was travelling southbound on Leslie Street and came to a stop for the red signal light at Lawrence Avenue East, in the City of Toronto.
5Mr. McGee, the accused before the Court, was also operating a motor vehicle southbound on Leslie Street and collided with Mr. Ross’ motor vehicle, striking it from behind. The damage was substantial.
6Mr. McGee approached Mr. Ross and engaged in conversation. Mr. Ross described Mr. McGee as teetering as if he couldn’t keep his balance. He could smell alcohol and believed he was intoxicated. He related that Mr. McGee introduced himself three times.
7Police were called. Officer MacPherson testified he received a radio call at 11:03 p.m. on March 3, 2009 to attend a traffic accident at Lawrence and Leslie. He arrived on scene at 11:08 p.m.
8The officer approached Mr. McGee. In so doing, he testified Mr. McGee was swaying side to side, was unsteady on his feet and answered with a slurred speech. The odour of an alcoholic beverage was detected coming from his breath. The officer formed the opinion Mr. McGee was “very intoxicated, barely able to stand up on his own”...“using his rear end to stabilize himself on the rear of the Audi.” The officer formed a further opinion at 11:14 p.m., that Mr. McGee’s ability to operate a motor vehicle was seriously impaired by alcohol and he hand-cuffed him and placed him in the rear of the scout car with some difficulty because of his height of approximately six foot, six inches and weight of about 320 pounds at the time.
9At 11:20 p.m., the officer read him his rights and cautioned him. Mr. McGee complained about the handcuffs. At 11:21 p.m., the officer read a demand for suitable samples of breath into an approved instrument. They left the scene at 11:35 p.m. and arrived at 32 Division at about 11:45 p.m. where Mr. McGee was paraded before Sergeant Momeni, the Sergeant in charge of the booking room.
10Entered as Exhibit 4 on this Application is a video of the events involving Mr. McGee in the booking room from 11:44:44 p.m., being eleven hours, forty-four minutes and forty-four seconds to 11:54:04, being eleven hours, fifty-four minutes and four seconds, a total time of nine minutes and twenty seconds.
11The same exhibit also relates the video events involving Mr. McGee in the breath room from 00:26:36, being twenty-six minutes and thirty-six seconds after midnight on March 4, 2009 until 00:37:30, being 12:37 a.m. and thirty seconds, a total of ten minutes and fifty-four seconds.
12The total time observed on video collectively in the booking room and in the breath room amounts to twenty minutes and fourteen seconds.
13At about 11:51 p.m., it appears Mr. McGee is becoming agitated. He appears to be upset, crying and repeatedly complaining about the handcuffs, ultimately pleading they be loosened for thirty seconds before he falls or lunges or moves and is taken down onto a bench by two officers, with two other officers present in the room. Seconds later, four other officers attend. Six of these eight officers appear to be merely observing. Mr. McGee is taken from the booking room to the report room where duty counsel is called on his behalf at 12:02 a.m. He speaks to duty counsel at 12:10 a.m. in a private booth and leaves to enter the breath room at 12:26 a.m.
14He leaves the breath room at 12:37 a.m. and after a washroom visit, Mr. McGee returns to the report room where he is handcuffed to a bench at 1:19 a.m.
15Officer MacPherson testified he consulted Staff-Sergeant Tutchener as to whether Mr. McGee should be released or lodged because of his level of intoxication. He stated Mr. McGee was to be lodged in cell number three and taken to a private room for a complete level three search, more colloquially referred to as a strip search.
16Officer MacPherson was asked by Crown counsel what the point was of doing the level three search to which he responded:
“In -- -- my experience as not only a police officer, but also a correctional officer at one point, whenever a person is entering a facility and going to be housed with -- -- by themselves or with other people in a cell scenario they’re to be completely searched to ensure everyone else’s safety and their safety, to ensure they don’t have any weapons or any means to commit suicide to themselves, or do any other harm to themselves.”
In Cross-Examination, he agreed that’s done routinely whenever someone is to be lodged in a cell. (See Transcript August 16, 2011, page 30, lines 15 – 31).
17Mr. McGee was taken to a private room and searched completely by Officer MacPherson and Officer Choi at 2:35 a.m. Officer MacPherson related from 1:19 to 2:35 a.m., he was completing paperwork. Officer MacPherson testified Mr. McGee was not anxious to have a complete search. Officer MacPherson stated Mr. McGee clenched his hands, ripped open his shirt and showed “a demeanour now that he’s going to be more aggressive.” However, when asked further by the Crown whether there was any physical aggression, the response was “no”.
18The officer was asked about the manner in which the search was conducted. In response to whether very personal and invasive searches were carried out with respect to Mr. McGee’s testicles or buttocks, the Officer replied: “I can’t recall”. I have only the evidence of Officer MacPherson and Mr. McGee in relation to what transpired in respect of that search in that private room. Each of Officer MacPherson and Mr. McGee have a different recollection of the events. I will refer to Mr. McGee’s testimony in due course.
19After completion of the search, Mr. McGee was lodged in cell three at 2:50 p.m. Subsequently, he was taken to North York General Hospital from where he was ultimately released after being served with documents. Officer MacPherson could not recall if there was anybody else in the cell adjacent to Mr. McGee although if there was, it is something he routinely put in his notes. He had no note of it.
20The agitation in the booking room, accompanied by crying and pleas to release the handcuffs did not continue in the report room or breath room where either one or both of the handcuffs were removed. In Officer MacPherson’s words: “He became calmer throughout the whole evening.” (Transcript August 16, 2011, p. 38, lines 15-16).
21Q: And he is polite at this stage, to you and Officer Kerr?
A: Yes, joking with us, in fact.
Q: Right. So, not a problem?
A: Not at this point, no.”
(Transcript August 16, 2011, p. 38, lines 23-27)
22Retired Staff-Sergeant Steven Tutchener testified. He acknowledged he was Officer-in-Charge on March 3and 4, 2009 at 32 Division and entered the booking room just as Mr. McGee was being lifted to his feet. He stated he observed on camera that Mr. McGee “was acting up, flailing a little bit, and he had gone down – it appeared on the camera that he went down on his knees…” He asked if a level two search had been done, which he stated was not a complete search but rather a pat-down and perhaps removal of outer clothing. I quote him: “…just a search they would do on the road during arrest…” (Transcript August 16, 2011, page 103, line 26).
23Mr. Tutchener related he made up his mind, based on Mr. McGee’s condition, that he would be held in custody until he sobered up.
24He stated he instructed a complete search. However, he did not have any note of it in his notebook nor was he able to recollect to which officer he gave those instructions.
25He was asked by Crown counsel to relate the basis for the complete search. He first replied:
“The basis was that he was not going to be released. He was going to be held in custody.”
(See Transcript August 16, 2011, page 106, lines 7 – 10).
He then referred to possible other persons arriving and being lodged in cells or the large common cell referred to as the “bullpen”.
26He went on to mention he had suspicions there were some emotional things going on and also wanted to make sure there was no contraband on Mr. McGee. He learned of minor injuries in the form of cuts or scratches to Mr. McGee’s stomach but never learned their source.
27Mr. Tutchener agreed in Cross-Examination that it’s pretty standard that a strip search is conducted:
“If they’re going to be having any remote chance of having a contact with another prisoner…”. (See Transcript August 16, 2011, page 113, lines 14-16).
For him, that was fairly routine. He later stated:
“It’s not routine. It’s – we find it’s a necessity.” (See Transcript August 16, 2011, page 115, lines 24-25).
28He continued:
“…I search everyone that goes in the cell that’s going to have contact with any other prisoners.”
29He stated he knew he did authorize a level three search on Mr. McGee. He agreed, however, “there’s nothing in my notes that indicates that.” (See Transcript August 16, 2011, page 131, lines 18-19).
30He did not recall whether he was involved in the McGee matter between 12:42 a.m. and 3:03 a.m. nor did he have anything in his notes.
31Sergeant Momeni testified he was the booking Sergeant but couldn’t recall having anything to do with authorizing any further searches or having any involvement with that. He did not authorize a level three search because he didn’t feel it necessary.
32He related that at 32 Division, they used to do level three searches “for every show cause, or when the person stayed in the cells, because they are staying in custody and they could be in contact with other prisoners.” He said that happened routinely, even with those held just to sober up.
33However, he stated he was not involved in determining in which cell Mr. McGee would be lodged nor could he assist on the issue of who was lodged where that evening.
34Regan McGee testified on his own behalf. His version of events conveys a much different accounting of what transpired.
35He acknowledged that he suffered from agoraphobia with a panic disorder. He related the symptoms, talking quickly, elevated heart rate, becoming dizzy or light-headed, shortness of breath, hyperventilation. The condition may be induced by situations where he feels trapped or where he feels he doesn’t have control. He referred to Officer MacPherson’s comments that agoraphobia is a fear of open spaces as being a very common misconception. Moreso, he said, it’s a fear of an environment where you don’t have control.
36He stated that after the accident on March 3, 2009, he experienced anxiety, was very upset and suffered a panic attack. He felt he was in a situation where he had zero control.
37He testified that he was searched at the scene. He stated:
“I was asked to turn my pockets inside out. He - - I guess he took off my coat, because he was sort of feeling it, making sure there was nothing in it. And then he – he searched every part of me. I mean, there was nothing that was unsearched.”
(See Transcript August 16, 2011, page 20, lines 12-16).
38He related in the booking room he “was in the middle of the most severe panic attack” of his life. (See Transcript August 16, 2011, page 23, lines 12-13). He said he was terrified, dizzy, light-headed and his knees, at one point, “started buckling because my breathing was so off.” (See Transcript August 16, 2011, page 24, lines 5-6). He said he did not wish to attack anybody in that room.
39He confirmed he underwent a second search after leaving the booking room and stated:
“… this one was again equally thorough. I was asked to take off my shoes, my socks, untuck my shirt, turn out my pockets out – inside out. And this one was, again, equally thorough. There was no part of me that wasn’t thoroughly searched.” (See Transcript August 16, 2011, page 25, lines 11-15).
40It appears quite clear from the evidence that he underwent three searches, one at the scene, one after the booking room procedure and the level three search thereafter which is the subject of this Application. In all cases, it appears no contraband was found.
41Mr. McGee testified he was placed in a jail cell and he was alone and no other persons were in the adjacent cells.
42He talked about the strip search. He related that Officer Choi, who conducted the strip search with Officer MacPherson, was yelling at him, so much so that a few other officers entered the room where he was naked. Mr. McGee was so anxious to get it over with, he agreed he actually ripped a couple of shirt buttons while he was removing his shirt quickly in response to Officer Choi’s directive. I have the benefit of Mr. McGee’s evidence and Officer MacPherson’s evidence in respect of what transpired in that room.
43Mr. McGee shared the events when he was taken that evening to North York General Hospital, was seen by a doctor and psychiatric nurse and released. He attended a program for people who had experienced extreme trauma and major traumatic events for several months thereafter.
44Filed as Exhibit 8 on this Application is a letter from Dr. Roger Dacre, dated August 10, 2011. Dr. Dacre states he is Family Physician to Mr. McGee since 1998 and confirms Mr. McGee was diagnosed with Panic Disorder and Agoraphobia in 2003. The Doctor relates Mr. McPhee struggled with entering confined spaces. It is quite clear that a man of Mr. McGee’s height and weight, handcuffed to the rear and placed in the rear of a police scout car would likely attract consequences in light of his diagnosed condition. The Doctor also confirms Mr. McGee participated in the Day Hospital Program at North York General Hospital from March 4, 2009 until he was discharged in April, 2009.
45He also attended the North York General Hospital Substance Abuse Program and Court Support Program from April 2009 until August 2009 when he was discharged.
46This information creates some concern when viewed with Mr. McGee’s testimony that he didn’t believe he had a substance abuse problem and his admission that he lied to the police officers stating he never had anything to drink his entire life. He agreed he mixed medication with alcohol that night. However, the nature of how everyone conducted themselves is depicted on the video which I have reviewed several times and speaks for itself.
[47]
The Law
This Application invites me to stay the proceedings on the grounds that the Applicant’s right to be free of unreasonable search enshrined in Section 8 of the Charter was infringed.
48Section 8 of the Charter reads as follows:
“Everyone has the right to be secure again unreasonable search or seizure.”
49In R. v. Golden, (2001) 2001 SCC 83, 159 C.C.C. (3d) 449; 2001 S.C.C. 83, the Supreme Court of Canada commented on level three searches colloquially referred to as strip searches. The Court stated at paragraph 89 as follows:
“89 Given that the purpose of s. 8 of the Charter is to protect individuals from unjustified state intrusions upon their privacy, it is necessary to have a means of preventing unjustified searches before they occur, rather than simply determining after the fact whether the search should have occurred (Hunter, supra, at p. 160). The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy. Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestee's experience of being strip searched. Thus, the need to prevent unjustified searches before they occur is more acute in the case of strip searches than it is in the context of less intrusive personal searches, such as pat or frisk searches.”
50The Court continued at paragraph 90:
“90 Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: "humiliating", "degrading", [page729] "demeaning", "upsetting", and "devastating" (see King, supra; R. v. Christopher, [1994] O.J. No. 3120 (QL) (Gen. Div.); J. S. Lyons, Toronto Police Services Board Review, Search of Persons Policy -- The Search of Persons -- A Position Paper (April 12, 1999)). Some commentators have gone as far as to describe strip searches as "visual rape" (P. R. Shuldiner, "Visual Rape: A Look at the Dubious Legality of Strip Searches" (1979), 13 J. Marshall L. Rev. 273).”
51In consequence of this decision, as is reported in a number of cases, Toronto Police Services amended its Policy and Procedure Manual dealing with Level 3 searches. There are now requirements to assess the risk factors when a person is arrested and taken to a police station. Generally, a pat-down search is sufficient at point of arrest.
52In R. v. Flintoff, 1998 CanLII 632 (ON CA), [1998] 126 C.C.C. (3d) 321, the Ontario Court of Appeal referred to strip searches at para. 24:
“Strip-searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power.”
[53]
Analysis
It is clear Mr. McGee was strip-searched by Officer MacPherson and Officer Choi. Was the search authorized? Was it reasonable? What was the basis for conducting a level three search? Let me review the evidence.
54It is clear that a pat-down search was conducted at the scene and a further level two search was conducted after leaving the booking room. Each search resulted in no weapons, drugs or any other contraband being found.
55Was Mr. McGee suicidal? Did he suffer from any mental illness? He responded that he suffered from agoraphobia. There is medical evidence before me confirming this and the impact on his behaviour. He told the officers it was a fear of being tied up, among other things. When asked if he ever tried to commit suicide, he stated “earlier tonight, look at my left wrist.” No one gave it any serious concern. There is no evidence anyone looked at his left wrist prior to the strip search. When asked again, he stated:
“no, I never thought of doing that in my life.”
56Officer MacPherson stated he conferred with Staff-Sergeant Tutchener between 1:19 a.m. and 2:30 a.m. to determine whether to release Mr. McGee or lodge him in the cells because of his level of intoxication. However, there is no notation of this in his notes. This raises another aspect for my consideration in assessing the basis for the search.
57There are several areas of importance for which no officer has made any notes.
58No officer had any note:
(1) indicating who authorized the level three search;
(2) whether there were any persons in Mr. McGee’s cell;
(3) whether there were any persons in any adjacent cell;
(4) who instructed that Mr. McGee be lodged in cell number 3;
(5) whether Mr. McGee had a criminal record;
(6) regarding any discussion between Officer MacPherson and Staff-Sergeant Tutchener;
(7) of any mention of suicide;
(8) of Mr. McGee referring to his belt fitting around his neck;
(9) of Mr. McGee becoming belligerent prior to search;
(10) of a Search Supplementary Form being completed which asks for the authority and reasons for a level three search.
59Former Staff-Sergeant Tutchener stated he authorized the search, yet he had no notes that he instructed a complete search or who he instructed. He had no recollection of any notes involving Officer MacPherson from 12:42 to 3:03 a.m. Yet, Officer MacPherson stated he spoke to Mr. Tutchener between 1:19 a.m. and 2:35 a.m. and that’s when he received authorization.
60The officers were testifying at least twenty-nine months after the occurrence. Note-taking is important in view of the passage of time and the likelihood of failing memory mindful that police officers are engaged in the execution of their duties and become involved in many, and sometimes similar, investigations.
61In R. v. Zack, [1999] O.J. No. 5747 (Ont. C.J.), Duncan J. considered the issue of the importance of proper note-taking. At page 2 of that judgment he stated:
“In this day of full disclosure, it cannot be an acceptable explanation for an officer to say ‘I did not note it because I would remember it.’ It is necessary for the officer to at least somewhere … Put the significant observations he made … The absence of questioned observations in his notebook lead to the conclusions that those observations were not, in fact made at the time, but are perhaps something that over the course of time the officer has come to believe that he saw.”
62Feldman J. in R. v. Lozanovski, 2005 ONCJ 112, [2005] O.C.J. 112, 64 W.C.B. (2d) 630 at page 3 said the following:
“It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by the police and not left to the whim of memory.”
63Gorewich J. in R. v. Khan (2006), O.J. 2717 referred to Duncan J. in R. v. Zack and Feldman J. in R. v. Lozanovski and stated at paragraph 17 of his judgment as follows:
“17 In considering that evidence, the comments of Duncan, J. to which I referred to a moment ago, are particularly applicable. The officer testified that these are facts he knew he would remember from almost two years ago. I must ask myself how does this lack of note taking on key issues impact on the reliability of his evidence. It is not difficult to conclude that the reliability of this evidence is diminished. I have also referred to Feldman, J. comments in R. v. Lozanovski.
18 The failure to make a note of these observations is serious. It is simply not acceptable for the officer to say that I did not note these things because I knew I would remember them. It bears on the credibility of the officer, as well as the reliability of his evidence.”
64In Khan, two years had passed from the arrest date to the trial date. In the case at bar, over twenty-nine months had passed.
65In R. v. Hayes, [2005] O.J. No. 5057, P. Wright J. made reference to the absence of important information in a police officer’s notebook and stated at paragraph 9 as follows:
“9 The decisions of this Court R. v. Zack, [1999] O.J. No. 5747, decision of Justice Duncan, a decision of mine in R. v. Burrows, 2004 ONCJ 357, [2004] O.J. No. 5377, and R. v. Makhota, [2004] O.J. No. 5415, make it quite clear that the absence in the police officer's notes of specific recollection of the important information have allowed me to conclude that that information, that evidence is not reliable. In other words, for an officer to come to court and simply say I have an independent recollection doesn't cut it in this court. Not in front of me. Not in front of Justice Duncan and I suspect probably not in front of very many judges anymore.”
66The absence of notes in relation to pivotal issues by any of the police officers is troubling and to a certain degree, diminishes the weight attached to their evidence. I do not overlook the evidence of Officer MacPherson who stated; in reference to his note-taking:
“I try and put as much important information as I can.” (See Transcript August 16, 2011, page 33, lines 16-17)
He also stated:
“… what I go in – what goes in my notes is what I think is important at the time.” (See Transcript August 16, 2011, page 33, lines 1-2)
67Notwithstanding, several important pieces of information, as noted in Paragraph 58 of this Ruling, were not recorded in his notes, or any other officers’ notes. Of particular concern, is the absence of any note indicating who authorized the level three search. Officer MacPherson stated he never heard it was police protocol that he must include in his notes authorization for a level three search. Notwithstanding whether it’s protocol or not, it would seem to me the issue of who authorized the search is a feature that is important enough to be noted.
68He couldn’t agree or disagree that it was police policy and protocol to include the basis for a particular search in his notes and acknowledged he hadn’t done it over the last few years or ever before.
69Filed as Exhibit 6 at this trial, is the Search Supplementary Form completed by Officer MacPherson. This form is completed in respect of level three searches. It became apparent during the course of the trial, that this document was not disclosed to defence counsel. Crown counsel indicated it would have been disclosed if the Crown had it in its possession. While Officer MacPherson testified he gave it to the Crown, the Crown did not have it. It wasn’t until the second day of trial that it was revealed and disclosed. Of interest, the form does not disclose who authorized the search. Officer MacPherson’s notes equally do not say who authorized the search. While the form asks what the authority for the search was and provides six options, none are checked off. Officer MacPherson agreed that in looking at the form, it was really difficult to discern what his grounds were for conducting a level three search.
70In R. v. Wilson, [2006] O.J. No. 4566, L.M. Baldwin J. stated at paragraph 35 in reference to R. v. Golden, (supra) at paragraph 101, as follows:
“The Supreme Court also stated that a proper record should be kept of the reasons for and the manner in which strip searches are conducted on detainees.”
71When asked by Crown counsel about doing a level three search, Officer MacPherson stated:
“In – in my experience as not only a police officer, but also a correctional officer at one point, whenever (italics added) a person is entering a facility and going to be housed with – by themselves or with other people in a cell scenario they’re to be completely searched to ensure everyone else’s safety and their safety, to ensure they don’t have any weapons or any means to commit suicide to themselves, or do any other harm to themselves.” (See Transcript – August 16, 2011, Page 11, lines 1-9)
72In cross-examination, former Staff-Sergeant Tutchener stated as follows:
“… All I know is that when prisoners come into my station and I’m responsible for them, even though they may appear that there’s nothing untowards, you just never know what’s going to happen. And so, I can’t – I search everyone that goes in the cell that’s going to have contact with any other prisoners.”
73In cross-examination, he continued as follows regarding the routine nature of strip searches:
“Q: Correct. And you say – – I’m going to ask you this, it’s pretty standard when somebody’s going to be lodged in a cell and has potential other contact – – contact with other prisoners, that they are strip searched?
A: That’s my – – that’s what I do, yes.
Q: That – –
A: I can’t answer for any other staff sergeants, but …
Q: Right.
A: … the ultimate decision is left up to the Officer-in-Charge, and that’s what I do.
Q: Okay.
A: If they’re going to be having any remote chance of having a contact with another prisoner they are to be strip searched before they’re placed in a cell.
Q: Okay. And – – and so, that’s fairly routine according to your policy?
A: For me, …
Q: For you?
A: … when I’m working.
Q: Okay. Routine if they’re going to be held in a cell they will be strip searched?
A: Yes.”
(See Transcript – August 16, 2011, Page 113, lines 1-24)
74His notes did not reflect whether there were any other prisoners in the cells.
75Officer MacPherson in his evidence, testified:
“I don’t recall if there was somebody next to him or not”.
(See Transcript – August 16, 2011, Page 32, lines 6-7)
76He was asked further:
“Q: Okay. But you would agree with me that it’s not in your notes?
A: Of course, it’s not in my notes.”
(See Transcript – August 16, 2011, Page 32, lines 8-10)
77In reference to level three searches, Officer MacPherson testified:
“Q: Okay. So that’s done, in your experience, routinely, whenever they’re to be lodged in a cell?
A: Yes.”
(See Transcript – August 16, 2011, Page 30, lines 29-31)
78In R. v. Golden, (supra), the Supreme Court of Canada had this to say about strip searches being carried out routinely:
95 The requirement that the strip search be for evidence related to the grounds for the arrest or for weapons reflects the twin rationales for the common law power of search incident to arrest. Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 of the Charter. A strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee. Yet a "routine" strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest.
96 It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells: R. v. Toulouse, [1994] O.J. No. 2746 (QL) (Prov. Div.).
79In reference to strip searches, Finlayson J.A. in the Ontario Court of Appeal in R. v. Flintoff, (supra) stated at paragraph 32 as follows:
“It is important to me that we are dealing with a policy that results in a Charter violation. The court cannot sit idly by as the police, for their own reasons, import an unconstitutional procedural requirement into the Code.”
80The movement of Mr. McGee in the booking room did not justify a level three search. Referred to by one officer as a “lunge”, by another officer “that he went down on his knees”, I find it is equally consistent with agitation, panic, fear and being drunk. At one point, there were eight officers in the room of which six stood by simply observing. I don’t find I am persuaded there was any aggressive behaviour from Mr. McGee who was crying, pleading to have the handcuffs removed and obviously quite upset.
81I do not overlook this was a case of impaired driving, not one involving drugs or weapons. Mr. McGee had no prior criminal record. Any anxiety about concealing drugs, weapons or other contraband could be relaxed through pat-down searches. Two such searches were conducted, at the scene and after the booking room. There was no concern raised as nothing was found.
82In R. v. Golden (supra), the Court stated at paragraph 94 as follows:
94 In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, a "frisk" or "pat-down" search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person. Only if the frisk search reveals a possible weapon secreted on the detainee's person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee's person will a strip search be justified. Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search.
83The evidence relates superficial wounds or cuts were observed to Mr. McGee’s belly and left wrist. However, these observations were made after the strip search had already commenced and therefore could not have been one of the reasons for considering such an intrusive search. In any event, the evidence does not disclose how these superficial cuts occurred. It is known Mr. McGee was involved in a forceful motor vehicle accident that evening. However, there is no evidence to link that accident to these cuts.
84The manner in which the search was conducted is important. I have the evidence of Officer MacPherson and Mr. McGee. They differ in their recollection in this regard. Mr. McGee did refer to Officer MacPherson as being polite and the breath technician, Officer Kerr, as being very professional and polite. His comments about Officer Choi, the only other person in the strip search room were not complimentary. I did not have the benefit of Officer Choi’s evidence.
85I refer to R. v. Golden (supra) at paragraph 98 where it states:
“98 The fact that the police have reasonable and probable grounds to carry out an arrest does not confer upon them the automatic authority to carry out a strip search, even where the strip search meets the definition of being "incident to lawful arrest" as discussed above. Rather, additional grounds pertaining to the purpose of the strip search are required. In Cloutier, supra, this Court concluded that a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself: Cloutier, supra, at pp. 185-86. However, this conclusion was reached in the context of a "frisk" search, which involved a minimal invasion of the detainee's privacy and personal integrity. In contrast, a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity. In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.”
86I find there were no justifiable safety concerns regarding Mr. McGee’s potential possession of a weapon or contraband. I take into account the nature of the offence; he had no prior criminal record or contact with the police; there is no evidence of co-mingling with other prisoners; and two pat-down searches were already conducted which produced nothing of concern. The only mental illness Mr. McGee referred to was agoraphobia which, he stated, produced panic attacks. No one took his suicidal reference serious enough to even look at his wrist.
[87] I am of the view and accordingly find that there were no reasonable and probable grounds for concluding a strip search was necessary. The level three search conducted on Mr. McGee was not justified in law and constitutes a breach of his Section 8 Charter rights.
[88]
Remedy
What then is the appropriate remedy? In my view of the case law, I have recognized and considered several options available to me.
89In Flintoff (supra), the accused was charged with Impaired Driving and Over 80 mgs. After arrival at the station and before the taking of the breath samples, the strip search was conducted. Here the strip search occurred after the refusal and there was, in any event, no readings to exclude. The result in Flintoff is distinguishable.
90Another option is to consider potential remedy in the civil courts for damages. I refer to R. v. Samuels, 2008 ONCJ 85, [2008] O.J. No. 786; 67 M.V.R. (5th) 132; 76 W.C.B. (2d) 588, Justice Nakatsuru addressed this issue while referring to R. v. Golden (supra) and I agree with his analysis. He stated at paragraph 73 and 74 of the Judgment as follows:
“73 In the same vein, the Crown has emphasized other potential remedies in the civil courts including damages. However, such a remedy is again largely illusionary. The practical obstacles to an effective civil remedy were commented on by Iacobucci and Arbour JJ. in Golden itself when they highlighted the lack of Canadian cases that dealt with strip searches (at para. 67):
- Prior to the advent of s. 8 of the Charter, the only possible remedy for an unlawful strip search would have been a tort action for assault, battery or false imprisonment. The cost of bringing such an action, the low amount of damages potentially recoverable and the ineffectiveness of civil actions as a remedy when real evidence was seized through an unlawful search likely explains the dearth of case law. Recent cases illustrate that damage awards in tort for unlawful strip searches remain low, and the costs of bringing a civil action would far exceed the nominal damages awarded.
74 Thus, in assessing the issue of remedy, I am inclined to agree with the defence position. Looking at the range of practical remedies available to Mr. Samuels, aside from a stay of proceedings, there is really no other way to address the wrong done to him. Naturally, this does not automatically mean a stay should be granted, but it is certainly a factor in support of it. A right without a remedy is a hollow one. A judicial system that is unable or unwilling to remedy constitutional wrongs done to those who appear before it, may suffer prejudice to its repute.”
[91] In R. v. Muthuthamby, [2010] O.J. No. 4110; 2010 ONCJ 435, 2010 O.N.C.J. 435; 79 C.R. (6th) 64, Justice ODonnell addressed the appropriate remedy arising out of a Section 8 Charter breach where he found there was no valid reasons for conducting a strip search. Mindful that Impaired Driving attracted a statutory minimum sentence, Justice ODonnell decided upon a very creative and innovative sentence in his well thought out decision by providing the accused with an option to select a one day conditional sentence and a 12 month driving prohibition or a $1.00 fine and a 12 month drive prohibition.
92Notwithstanding Justice ODonnell’s inspired originality, I’m inclined to agree with the Supreme Court of Canada which declined a sentence reduction outside statutory limits except for some exceptional circumstances. The Court stated, in this regard, in R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6; [2010] 1 S.C.R. 206; 251 C.C.C. (3d) 293 as follows at paragraph 6:
“6 Save in exceptional cases, these constraints also apply where the remedial power of the court under the Charter is invoked. A sentence reduction outside statutory limits does not generally constitute an "appropriate" remedy within the meaning of s. 24(1), unless the constitutionality of the statutory limit itself is challenged. However, the remedial power of the court under s. 24(1) is broad. I therefore do not foreclose the possibility that, in some exceptional cases, a sentence reduction outside statutory limits may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and the offender. However, this is not such a case.”
93In R. v. Mesh, [2009] O.J. No. 6194 (Rutherford J.) and in R. v. Samuels (supra), where stays were granted for a strip search violation, the trial judges were of the view that the minimum sentence associated with impaired driving prevented them from delivering a meaningful remedy through a sentence reduction.
94I am of the view that a stay of proceedings is the just and appropriate remedy under Section 24(1) of the Charter.
95In R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1 at paragraph 82, the Supreme Court of Canada addressed the test to be considered when imposing a judicial stay of proceedings. The Court stated:
“82 It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.”
96Trial fairness is not at issue, rather the integrity of the justice system is the principal focus. I adopt the remarks of Nakatsuru J. in R. v. Samuels (supra) at paragraphs 64-66 where he states as follows:
“64 In my opinion, the central issue before me is whether the continuing prosecution would cause irreparable prejudice to the integrity of the judicial system. On this issue, there are a number of considerations that are significant to the conclusion that I have come to.
65 In commencing my analysis, I find it worthwhile to reflect on the nature of the intrusion into privacy and dignity that is involved in a strip search. I wish to be clear there is no suggestion that the police officers in this case conducted the strip search in anything but the most appropriate manner. Regardless of this, the violation must be considered a serious one. I would be the first to acknowledge that it is easy to become de-sensitized to the personal and psychological effects of a strip search. Over time, as one becomes aware of how commonly they may be performed, a strip search may not appear to be that objectionable. This is especially so in settings where prisoners are serving custodial sentences. Yet I find it valuable to be reminded of the perspective of the person who is being compelled to remove his or her clothing. Having to expose one's intimate areas to complete strangers may have a profound psychological impact. This may be heightened by the great imbalance of power existing between the detainee and the police officers. This imbalance of power would leave any detainee feeling extremely vulnerable. This fact was not lost upon the court in Golden when they soundly rejected arguments that downplayed the intrusiveness of strip searches. The Supreme Court of Canada described strip searches as often "humiliating, degrading and traumatic" even when conducted in the most sensitive fashion. See R. v. Golden, supra, at para. 83.
66 It is because strip searches are so inherently humiliating and degrading regardless of the manner in which they are carried out, they cannot be done as a matter of routine. I would add whether it is by departmental written policy or the personal practice of the officer-in-charge of the station, it is the routine nature of the strip search which is offensive. In other words, what is unacceptable is the blind disregard to the individual merits of its necessity.”
97There must be recognition by law enforcement of the judgment and direction of the Courts. Former Staff-Sergeant Tutchener was asked:
“Q: Okay. Were you ever given any direction by the Crown or the courts about routine strip searches conducted at 32 Division?
A: Was I given instructions?
Q: Yes.
A: No.
Q: No? Never heard of any cases that should be brought to the attention of 32 Division as a result of conduct - - that division conducting routine strip searches?
A: Not routine strip searches, no.”
98I refer to R. v. Wilson (supra). Justice Baldwin stated at paragraph 55 (and I am particularly mindful of the last sentence of the paragraph):
“55 As the court concluded in Flintoff in 1998, I find that the strip search conducted on Mr. Wilson was a flagrant violation of the Charter and an abuse of police power. It was not justified under law and constitutes a violation of the public’s trust in its police force and is at odds with common decency. The breach of the Charter in this case was flagrant, deliberate, unjustified and not conducted in good faith. It was conducted in ignorance of the law that has been in place in this province for some (8) years now.”
99Judicial attention has focused on the concern arising out of disregard for law by conducting unjustified strip searches. The concern extends to how this impacts on the integrity of the judicial system.
100In R. v. Flintoff (supra), the Court stated at paragraph 23 as follows:
“23 The public places a great deal of power into the hands of its police forces to meet the heavy responsibility police forces take upon themselves everyday in protecting our safety and security. The public also places a corresponding amount of trust in its police forces to wield this power in accordance with common sense and in compliance with our laws. The strip search conducted in this case is not justified in law. It was not incidental to arrest. The strip search was an unreasonable search and accordingly was a violation of the appellant's s. 8 Charter right "to be secure against unreasonable search or seizure". The strip search was also a violation of the public's trust in its police forces and at odds with common decency. I agree with the Summary Conviction Appeal judge when he concluded that the breach of the appellant's Charter rights in this case was "outrageous". I would add that the breach was flagrant since, in the words of Mitchell J.A. in R. v. MacDonald (1989), 1988 CanLII 1362 (PE SCAD), 44 C.C.C. (3d) 134 (P.E.I. C.A.), "the actions of the police were quite deliberate, unjustified and in no way could one characterize the violations as trivial, inadvertent, merely technical or made in good faith". Furthermore, I find that the Charter violation in this case would shock the public.”
101Just as citizens in the community are expected to uphold the law, similarly law enforcement officers have a corresponding obligation to do so and abide by judicial authority.
102I borrow heavily from R. v. Samuels (supra) in this regard, particularly paragraphs 75-80 and 84-85:
“75 In addition to the lack of other remedies, there is another factor that is more influential to my reasoning. This is the future effect on the police practice of conducting inappropriate strip searches if a meaningful remedy is not granted, if a stay of proceedings is not ordered.
76 One of the key concerns of the court in Golden was the clarification of the permissible scope of the common law power of the police to conduct a warrantless strip search. This objective should be not undermined by a police practice of offering only lip service to those concerns.
77 Looking carefully over the evidence presented on this issue, what I find troubling is the prevalent attitude of the police with respect to these types of strip searches. I note that Sgt. Sterling testified that his approach is in keeping with the policy and he conducts all his strip searches in this fashion. Despite my finding of a s. 8 violation, Sgt. Sterling struck me as an officer who is experienced and tries to be both competent and professional in his approach to his duties. Both P.C. Kachur and P.C. Campbell testified to their experience conducting strip searches and their testimony is consistent with Sgt. Sterling regarding what is understood to be the police practice.
78 I am left with the inevitable conclusion that the failure to abide by the constitutional limits for the strip search of short term detainees is not an exceptional error on Sgt. Sterling's part but rather is part of a larger more systemic problem. From the evidence, I do not see him as some rogue officer or one who has in this one instance made an isolated mistake. It is clear to me that his practice is one which he not only generally follows but is an accepted one in his profession.
79 Thus, the violation was clear and flagrant, not because of some ill will or malice by the officer-in-charge, but because of its noncompliance with now well-established judicial authority and police policy. I should further add that the decision whether to conduct an appropriate strip search is not a difficult one. It can be made with due deliberation and without any investigative pressure in the structured confines of a police station. Further, there were no exigent circumstances justifying the strip search. It is in this way the violation of s. 8 was serious and flagrant.
80 Despite the considerable body of reported cases in which the courts have time and again frowned upon the way police have conducted such strip searches, it is apparent to me something is missing in their conduct whereby the rights of short term detainees are not being taken seriously. Whether it is a lack of training or an attitude, I cannot say. However, to be frank, what I can say, is that the message does not appear to be getting through. In other cases where a stay of proceedings was rejected as a remedy, it was emphasized by the courts that the issue of these types of strip searches was either novel or had not been clearly disapproved of by the judiciary. See for example, R. v. Coulter, [2000] O.J. No. 3452 (C.J.) at para. 34; R. v. B. (A.), 2003 CanLII 35574 (ON SC), [2003] O.J. No. 2010 (S.C.J.); R. v. Clarke, 2003 CanLII 64244 (ON SC), [2003] O.J. No. 3884 (S.C.J.). These cases can be distinguished at this point in time.
84 What the community would find alarming is what I perceive as a systemic problem in the conduct of police strip searches of short term detainees. See R. v. Mangat, 2006 CanLII 20227 (ON CA), [2006] O.J. No. 2418 (C.A.). Despite the efforts of the judicial system to denounce such instances and the efforts of the police service boards to enact appropriate policy to guide the police, the right to be free from such significant intrusions into personal privacy and integrity is not being taken seriously enough.
85 In making the findings I have, I fully appreciate the nature of the evidence called before me. Only a few officers have testified to the police conduct of strip searches. It obviously has its inherent limits. I have not heard evidence regarding strip search practices of every officer-in-charge of every police station. Nor does this court sit as if it were a judicial inquiry into police practices of strip searches. Nevertheless, having heard the evidence and being aware of the context of the jurisprudence in this area, I find that a stay of proceedings is supported by the need to prevent, in the future, the continuation of this type of strip search. The community has an interest in seeing this practice end; a practice that no doubt flies beneath the judicial radar unless an accused raises it in an application such as this.”
103It is, with these comments in mind, that I share the view that the appropriate remedy must acknowledge the need for this prospective impact on the integrity of the judicial system.
[104]
Conclusion
The only appropriate remedy is a stay of proceedings. Both charges of Impaired Driving and Refuse Breath Test are stayed.
Released: February 3, 2012.
Signed: “Justice J. M. Grossman”