Court File and Parties

Ontario Court of Justice

Date: 2017-09-11

Court File No.: Toronto 14-15010789

Between:

Her Majesty the Queen

— and —

Stuart MacPherson

Before: Justice S. Ray

Heard on: September 15, 2016, January 9, 2017, and April 6, 2017

Reasons for Judgment released on: September 11, 2017

Counsel

V. Chan — counsel for the Crown

G. J. Partington — counsel for the defendant Stuart MacPherson

Judgment

Ray J.:

Introduction

1The defendant Stuart MacPherson has been charged with possession of crack cocaine for the purpose of trafficking, simple possession of marijuana, and failing to comply with a condition of his recognizance not to possess or consume unlawful drugs or substances. A Charter application has been filed alleging breaches of sections 7, 8, 9, and 10(b) and seeking a stay of proceedings. Should the Court not see fit to order a stay of proceedings, the Applicant seeks exclusion pursuant to s. 24(2) of all statements and utterances made and drugs seized subsequent to the Charter breaches. Before the Court can reach any conclusions with respect to Charter breaches and appropriate remedies, the Court must address inconsistencies in the evidence and make credibility assessments.

Evidence of the Applicant

2The Applicant testified that he woke up on the day in question at a friend's house on 22nd street and Lakeshore Boulevard West in the City of Toronto. He answered the phone and accepted an invitation to socialize with another friend, who lived at the East Mall. He drove there taking Highway 427. He arrived there shortly after 3:15 pm and stayed between three and three and a half hours. He left and picked up some other friends and ended up at another address on Lakeshore Boulevard West, where he stayed for about half an hour and left. After he left, he got a call from his girlfriend, who was at 100 Cavell, which is also in the vicinity of Lakeshore Boulevard, and wanted him to pick her up. He drove slightly above the speed limit with the speed of the traffic. It was dark outside, raining slightly, and the traffic was the usual post rush hour moderate traffic. He had a valid driver's licence in his back right pocket. If I believe the Applicant's evidence, the drive was unremarkable, and there was no interaction with pedestrians, nor was he driving close to any pedestrians.

3The car that the Applicant was driving was described in a variety of ways during his evidence. He described it early in his evidence as "a 2003 dark grey Honda Accord four door sedan" with "tinted windows." It was described again in his evidence as "my grey Honda." He later described it as, "dark – dark green, dark greyish," following which his counsel suggested to him that it was an "off-colour," and he agreed with this. When asked whether the colour of the car on the video was accurate, the Applicant responded, "Not…quite…it's not catching up the green, like the dark – the dark blue…dark grey – greyish type…off colour. It's kind of mono-colour there." Later he said it was a "grey green mix," and then again, "an off colour…it's not like a set colour, dark green or grey." Finally, he agreed on cross-examination that it was a dark colour.

4When he arrived at 100 Cavell, his girlfriend stopped walking on the way to his car and warned him that the police were there. First, the appellant said, she said, "oh great, the police are here." Then he said, she said, "Oh, there's police here." She backed away as soon as she said this. He checked his mirror and found out she was right. This was the first time he noticed it. There were no sirens. There was no chase. When he noticed two officers coming to his car, one towards each side, driver's and passenger's, he reached for his driver's licence and related documents. He noticed in his rear view mirror that the Officer, who approached the driver's side, was wearing his "blue doctor gloves," "his surgical latex surgical doctor gloves." He first said passenger's side, then self-corrected to driver's side. All I could see on a video-tape that recorded what had transpired, which was entered as an exhibit, was some white glare reflecting off the Officer's hand as he approached the driver's side of the car. I certainly did not see him put any gloves on. It is possible that a glove could have been placed on the Officer's hand prior to when he could have been seen on the video-tape.

5The Appellant testified that he reached into his back right pocket with his right hand. His left hand was just idle and resting on the steering wheel. According to the Appellant, he was not trying to conceal anything behind his back. His windows were half way down and the interior lights were off. The Constable, who came to the driver's side, grabbed him. At first the Appellant said it was his side, the passenger's side, but after help from his counsel, he realized that it must have been his side, the driver's side. The Appellant gave the following testimony:

So, the officer from the driver's side reached into my car…he was practically inside my car, with his whole hand just grab my arms, and…restrained my whole body so I couldn't really move. And, meanwhile, his friend reached in and grabbed my gear shifter and put it into park, and…I couldn't really move… [T]he officer on the passenger side – sorry, on the driver's side…unlocked my car from the inside…that's when he pulled me out of the car.

6The Applicant testified that his hand was in his pocket when he was grabbed, and he never did remove his licence and other documents from his pocket. The only verbal interaction that the Appellant recollected in his testimony at first was an exchange of, "Oh, it's you," which does not make sense given that the witnesses all agree that they did not recognize each other. When reminded by his Counsel, he remembered that he was told that they had received complaints about his driving. He testified that he did not make any attempt to shield the right side of his body. He was not told to show his hands and his hands were not moving up and down. When reminded by his Counsel, he did recall hearing one Officer tell the other that he was concealing something in his pants.

7Once outside the car, he testified that the Officer on the passenger's side held him up, while the Officer from the passenger side came around to the driver's side and pulled down his underwear and pants. I think he meant the Officer on the driver's side held him up, while the Officer from the passenger's side came around and pulled down his pants. It is impossible for the same Officer to have done both. The Officer, who pulled down his pants, then "proceeded to start grabbing around down there," "acquired something," "and then put whatever was in his hand on top of the hood of my car…"

8The Applicant testified that there were several people out walking their dogs, 30 people at a bar nearby, his girlfriend and an older friend just meters away, and numerous people, who could see from their balconies. Having viewed a video of the search myself, my opinion is that the Applicant's evidence is exaggerated on this point, and he was adding details to help establish that his privacy had been violated. Furthermore, the videotape showed that he was being concealed by one of the Officers, while the search was occurring. It was not possible to see where the Officer was searching and what he found. Our view and the view of passers-by was blocked by the other Officer. The video was too dark for me to be able to tell who was on the balconies and who may be able to see, and my understanding of this issue was not assisted by the vague evidence of the Applicant on this point. I found it disingenuous when he suggested in examination in chief that he could be suffering from post-traumatic stress syndrome due to this incident, and there is no medical evidence before the court that independently confirms this. His evidence changed on cross-examination, where he suggested there had been a medical diagnosis and named a doctor, but said his post-traumatic stress occurred due to an accumulation of this and other incidents. The Applicant also suggested that he was arrested a millisecond after the Officers found the cocaine in his pants. I don't believe that it could have taken a millisecond to retrieve the drugs if the search included checking inside the rectum with a glove covered finger. This could only happen if the drugs were found exactly where the Officers say they found them, tucked into his underwear proximate to his tail bone.

9The Applicant's story became even more unbelievable, when he was recalled to explain exactly what happened when the Officers were searching inside his pants. It seems that they yanked and pulled and a glove covered finger was inserted into his rear end. They were grabbing below the buttocks and his waistband was below the thighs. The pants were pulled down and the buttocks exposed. I do not believe that all this could have happened within the seconds it took to search inside the Applicant's pants and find the drugs. The video confirms it took seconds, and the Applicant himself referred to a millisecond between finding the drugs and getting arrested, then corrected himself to say they arrested him before they finished retrieving the drugs. According to his previous evidence, the glove that was used was apparently being worn even before the Officer got to the car. The videotape does not confirm this. I saw shiny hands. The glare was reflecting off them. I could not tell if they were covered with any kind of plastic. They looked white and not blue.

10The Applicant appeared to me to be making up the story as he went along, continually correcting himself when it was obvious that there was something in the story that did not make sense. He needed to correct himself with respect to which officer did what, and where he and others were situated. After he said they arrested him a millisecond after the drugs were found, he added that he didn't believe they had yet taken all the drugs. His evidence sounded to me like he kept correcting himself to make the story sound more convincing. We also know from other evidence that what was found was a hard rock-like substance. It is hard to believe that a hard rock-like substance could be so quickly retrieved if it were placed such that pants needed to be pulled down low in order to retrieve it, or they were found in between the buttock cheeks, or his anus needed to be probed by gloved fingers. It is more likely that the boxer shorts were pulled back, and the drugs were tucked inside them behind the buttocks close to the tail bone just as the officers attested to, for them to be retrieved so quickly. The Applicant testified that a pat down search followed retrieval of the drugs, and I believe that part of his evidence because it is consistent with the evidence of the Officers.

11The Applicant testified in examination in chief that he was not advised of any rights at the scene, that only happened much later, and he only had a vague memory of speaking to a lawyer. On cross-examination, he said he did not "specifically recall" being read his rights to counsel at the scene, not that they were not read. His evidence with respect to speaking to a lawyer lacked detail. The Applicant's suggestion on cross-examination that he "did not recall" placing drugs in his pants is also disingenuous. There is no doubt that drugs were found either where the police say they found them or somewhere lower down. I do not see how anyone could not feel the package described, if it were placed in any of those locations, and if the Applicant did not put it there, I do not see how he could not know how it ended up there. I do not believe that placing a package of illegal drugs down one's underwear is something that is easily forgotten or difficult to recall, unless there is a special reason for it. There is no evidence of any special reason before the court as to why the Applicant either wouldn't know a package was there, could not perceive that it was there, or wouldn't know how it got there.

12On cross-examination the Applicant suggested that he could see his skin on the video. He also said that his pants rested on his waist even though he agreed that his red underwear band was higher. I could see much more of his red underwear on the video that the witness agreed could be seen, and his pants did not look to me like they were resting properly on his waist as he suggested. What I saw on the video is consistent with what the police said, which was that his boxers were exposed, and his pants were below his boxers. I could not see on the videotape whether his pants were pulled back or down, because viewing the actual search inside the pants was obscured due to where the Officer was standing, but the Applicant's description of how his underwear was situated over his pants is not consistent with what I saw on the videotape. What I saw on the videotape is consistent with the testimony of the Officers as to how the pants and boxer shorts were situated. Furthermore, if the search itself proceeded as quickly as it appeared to on the video, I do not believe that the pants could have been pulled down that far and that there would have been enough time to place a gloved finger in his anus. There simply would not have been time for all this, even if the glove was already on the hand, and definitely if the glove had to be placed on the hand first. The police evidence is that it took ten seconds from when the driver was removed from his vehicle and the baggies were retrieved, and this is consistent with how long it seemed to have taken on the videotape. The Applicant's version of what happened simply does not add up, when considered with reference to what I could see on the video.

13The Applicant testified that he had his foot on the break as he was reaching into his pocket for his wallet. He was not placing drugs in his pants or removing them from his pants. In my view it would be very difficult to pull a licence out of a back pocket, while the car engine was running and the driver's foot was on the break. It would be easier to take a package and conceal it in low hanging pants or boxer shorts above low hanging pants. One would have to reach lower down for the pocket, and if one were sitting on the pocket, one would have to raise oneself, all the while holding down the break with one's foot, a very difficult, although not impossible, manoeuvre. If the Applicant were trying to conceal the drugs inside his anus, as is sometimes suggested in these situations, this would be an even more difficult manoeuvre, especially when taking into account the evidence that the Officers ultimately found hard white substances, one about as large as a golf ball. I can't imagine how the process of insertion would feel or how uncomfortable it would feel once inside, while someone is sitting, but it would certainly be very tricky to accomplish this from a seated position, while a car is running, and the driver's foot is on the break. The evidence of the Officers does not help me much with respect to whether or not a wallet was ever found inside the Applicant's pocket. Officer Doyle testified in chief that the driver's licence wasn't found on him, but on cross he agreed that it could have been in the Applicant's pocket. Neither of the two Officers remembered clearly where the licence was found.

14I do not believe the Applicant's story. I do not find him to be credible. His evidence is internally inconsistent, disingenuous, and does not make sense. It is inconsistent with the videotape, and it is inconsistent with the evidence of the Officers. Even if I do not consider the police version of what occurred, I still do not find the Applicant to be believable.

Evidence of the Police

15Officer Matthew Steele testified that he and Constable James Doyle had been flagged down by pedestrians and told they were almost just hit by a dark coloured Honda Accord with a single driver occupant driving at a very high rate of speed. The vehicle was seen heading in the direction of Cavell Avenue. They proceeded in the direction indicated and saw the Applicant's dark Honda Accord parked in the driveway at 100 Cavell Avenue. The Court heard a fair amount of conflicting evidence from the police and the Applicant with respect to what colour this car was; grey, blue, green, a dark colour, an off-colour. The bottom line is that it was a dark car, and even the Applicant seems to accept that it was an off-colour, a dark colour, that could be perceived as blue, green, or grey. I could not tell from the video what colour the car was. Given the mutable nature of this car's colour, it is my view that evidence of the car's colour does not assist the Court much with respect to deciding the credibility issues in this case. Doyle testified that the car in question "was the only running Honda Accord that's darkly coloured in the area," and this seems to be the reason why the police officers thought that it was the relevant car.

16Officer Steele testified that he told the Applicant that complaints had been received about his driving, and the Applicant did seem to remember in his evidence that something like this was said. So he knew why the police were interested in speaking to him. The plan was just to inform him that complaints about his driving had been received, ensure that he was in a sober state, check his documents, and if there were no issues, allow him to move on. Steele saw the Applicant's hand moving up and down, while shielding his body away from him. His partner, Doyle, testified that he saw his left hand moving behind his right hand trying to open the top part of his boxers, so he could stick something down them. It looked to both like he was concealing something in his pants. Doyle was observing from the passenger's side, and confirmed that something was being concealed in the back of the pants.

17Officer James Doyle's evidence confirmed that the driving complaint had been received, they saw the Applicant's dark Honda Accord which appeared to match the description of the car they were looking for, and he approached from the passenger side and saw what appeared to be the Applicant trying to stuff something down the back of his pants. Doyle testified that he saw something "silver and white, like a dark grey colour," that could have been a weapon. But he also said that it was the feverish way the Applicant was trying to get his hands down there, which really made him worry that it was a weapon. He couldn't see what was in his right hand, because it was underneath his boxers. Doyle attested to doing more than Steele recollected including grabbing the driver by the top of the boxers near the belt, and demanding to know what was in his hands. He confirmed that he came around to the other side to assist his escort, reached inside and took the baggies. The drugs were at the back of his boxers at the elastic part of the belt line. Doyle described the drugs as feeling like hard rocks, a golf ball inside the baggie.

18Officer Steele testified that his escort got into the vehicle and placed it in park. This is consistent with the evidence of the Applicant. Steele had concerns about officer safety, thought he might be concealing a weapon, unlocked the driver side door, and removed the driver. He placed the driver against the car door facing the car. He put his hand against his back. His partner comes around. The Officers did not know what had been placed in the driver's pants. His pants were lower than his boxer shorts. Doyle described them as "super low." Steele's escort pulled back the Appellant's boxer shorts and observed one grey and one white baggie in his underwear at the base of his tail bone. His escort removed them from his boxer shorts and placed them on the hood of the vehicle. The video confirms that something was placed on the hood of the vehicle and retrieved later, and this is consistent with the Applicant's testimony. He was placed under arrest for possession of crack cocaine for the purpose of trafficking and cuffed. This was followed by a pat down search and a search of the car incident to arrest, during which a small amount of marijuana was found. Doyle testified that he read him his rights to counsel.

19Cross-examination of Officer Steele revealed that his note taking was deficient, and he was relying on his independent recollection. Important things were left out. He also expressed the view that the search that was conducted was not a strip search. No clothing was removed. It was not an invasive search. His underwear was pulled back and baggies were removed from near the tail bone. This appears inconsistent at first with Doyle's evidence that the drugs were found "at the top of his boxers on the belt line." But Doyle attested to the pants being super low, and he also said that the drugs were just below the belt line almost right on the back of the tail bone, so it is not so inconsistent. Steele did not agree with the suggestion that they were found between the cheeks of the buttocks. When counsel suggested that if weapons were the concern, he could have done a pat down search to satisfy that concern, and do the more detailed search at the station, Officer Steele testified that he thought it would be prudent to see what the Applicant had concealed down his underwear. He also attested to concerns that drugs could be secreted in the police vehicle, but did agree that it would be unlikely that a prisoner could secret drugs into a body cavity as he walked handcuffed down a lighted police corridor.

20Cross-examination of Officer Doyle revealed some deficient note taking, less than in the case of his escort, plus a few internal inconsistencies, mostly minor. He also relied more on his independent recollection that he should have, but there was greater particularity to his recollection than in the case of Officer Steele. The evidence of Officers Steele and Doyle was not ideal, but I find some of it to be reliable. Their accounts are plausible. I do not believe that Officer Doyle would have engaged in the disagreeable task of inserting his finger inside a stranger's anus, if he had already found drugs. Given the seconds of time in which this all occurred, it is plausible that the search inside the pants occurred in the manner described in the police evidence. It is not plausible that it occurred in the manner suggested by the Applicant.

21If I were to believe the Applicant, Officer Doyle already had the gloves on his hands before he got to the car. This suggests that he was spoiling to insert his finger into the Applicant's anus right from the outset. This smacks of exaggeration, as do other parts of the Applicant's evidence that I have already pointed out. Given the context, I do not find this to be plausible. The video tape does not independently confirm whether or not the Officer was wearing a glove. All I can see from the hand area is glare. There's no evidence that the Officers or the Applicant had previously known each other, but for the Applicant's evidence that he may have seen one of them before. So his suggestion that he was greeted by the Officer with the statement, "It's you," does not make any sense. For all of these reasons, I simply do not accept the incredible evidence of the Applicant, and I do find parts of the evidence of the Officers to be reliable.

Was there a violation of s. 8 of the Charter?

22The Applicant bears the initial burden of persuading the Court that his Charter rights have been violated. The standard of persuasion required is the civil one of a balance of probabilities. Once the Applicant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable. A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable. This often quoted and well-known framework for analysis was articulated by the Supreme Court of Canada in R v Collins, and it has been followed by trial judges ever since.

23In R v Golden, the Supreme Court of Canada decided that the common law power to search incident to arrest does not include the power to strip search immediately upon arrest. There would rarely be an urgent need to conduct such searches, and the serious infringement of privacy and personal dignity would be an inevitable consequence. They would only be reasonable at the roadside, when conducted in a reasonable manner "as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reasons for the arrest," and the police "have reasonable and probably grounds for concluding that a strip search is necessary in the particular circumstances of the arrest." The following definition of "strip search" taken from statutory materials and policy manuals in Canada and other jurisdictions was adopted by the Court:

The removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.

24The definition distinguished strip searches from less intrusive "frisk" or "pat-down" searches, which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of the detainee's genital or anal regions. A search of the mouth would not be a body cavity search.

25The reasonableness of a search for evidence is governed by the need to preserve the evidence and to prevent its disposal. Where arresting officers suspect that evidence may have been secreted on areas of the body that can only be exposed by a strip search, the risk of disposal must be reasonably assessed in the circumstances. In the Golden case, it was suggested that the appellant may have dropped the drugs on the sidewalk or in the police cruiser on the way to the station, and it was therefore necessary to search him at the scene. The Court viewed the likelihood of this occurring as low, and that if it did, circumstantial evidence could easily link it to an Accused. The Court also remarked that a "frisk" or "pat-down" search at the point of arrest will generally be enough in order to verify whether or not an Accused has weapons on his person. The Court concluded that:

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.

26The Supreme Court in Golden distinguished between searches in a custodial setting or police station and searches in the field, at the scene, or at the roadside. They propounded that:

Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported to the police station. Such exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station. Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee's bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances.

27In R v Mann, the Supreme Court of Canada recognized a limited police power to detain for investigative purposes, and a corresponding limited search power. The Court maintained a strong distinction between search incidental to arrest and search incidental to an investigative detention, but adopted some of the criteria for reasonableness from jurisprudence governing search incidental to arrest. The Court adopted the standard articulated in R v Golden, supra, that in the absence of a warrant, police officers are empowered to search for weapons or to preserve evidence. A search incidental to an investigative detention would necessarily have to be warrantless, given the brief nature of such searches, and the Collins criteria would apply. The Court warned that any search power that would accompany an investigative detention, "does not give licence to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible." The Court summarized the power to search incidental to investigative detention as follows:

[P]olice officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which does not arise in this case.

28R v Shaheed Bacchus Ali was a case involving a detention for investigative purposes. Police officers on duty received dispatched information about a potential crack dealer, who was armed and dangerous. The trial judge found that the firearms warning was sufficient to justify a pat down search for weapons incidental to investigative detention. The Officer, who was searching the detainee, observed that Mr. Ali's pants were lower than the waistband of his underwear, and that his underwear was lower than his buttock cleavage. He observed a plastic baggy sticking about a quarter inch above his underwear line from the cleavage of his clenched buttock cheeks. When he spotted the baggy sticking out from the buttock cleavage, the focus of his investigation changed from being directed towards a firearms search to a search for drugs. Without pulling the pants down, he lowered him to the ground, where he lowered the pants three quarters of the way down his buttocks and retrieved the drugs. Mr Ali was then arrested. The trial judge found that the definition of a strip search in Golden was sufficient to cover this situation, where underwear is pulled out exposing a portion of the detainee's buttock. The exigent and exceptional circumstances that would justify such a search in the field did not exist in that case, and the search should have been conducted at the police station. The search was not conducted in a reasonable manner. It was more intrusive than the law allows.

29The search of the Applicant, Mr MacPherson, was a warrantless search. It was incidental to an investigative detention. The Officers had received information that a car matching the description of Mr MacPherson's car was driving erratically, and I accept the evidence of Constable Doyle that Mr MacPherson's car "was the only running Honda Accord that's darkly coloured in the area." For the reasons that I have already explained, I am not concerned about the inconsistent descriptions of this car's colour throughout the Applicant's and police evidence. The Officers had a good reason to stop the car and speak to Mr MacPherson. I accept the evidence that the Applicant was told that there was a complaint about his driving, and the initial purpose of their investigation was to inform Mr MacPherson that complaints about his driving had been received, ensure that he was in a sober state, check his documents, and if there were no issues, allow him to move on. Then Steele saw the Applicant's hand moving up and down, both Officers saw hand movements that suggested Mr MacPherson was concealing something down his pants, and the purpose of the investigative detention changed. While it is possible that Mr. MacPherson was reaching into his pocket for his licence, one Officer saw both his right and left hand moving, as if he was using one hand to hold the pants back and the other to stuff something into them. Officer Doyle testified that he saw something "silver and white, like a dark grey colour." Neither Officer knew what was being stuffed into either Mr MacPherson's underwear or pants. There was in my opinion a legitimate concern that he was concealing a weapon. The detention was lawful. A search for weapons incidental to an investigative detention was appropriate. A pat down search was all that was necessary at the scene to alleviate the concern. It was totally unnecessary to verify in the field what exactly was being stuffed down the pants or underwear. That could have waited. There was no urgency. Nothing in Mr MacPherson's pants was running away.

30I do not agree with the police evidence that there was urgency about conducting a search inside Mr MacPherson's pants, because it would be prudent to see what the Applicant had concealed down his underwear. A pat-down search could have alleviated any concern that a weapon was being concealed in his pants. It is plain from the police evidence that they wanted to know what was in Mr MacPherson's pants, whatever it was. Steele also attested to concerns that drugs could be secreted in the police vehicle or secreted into a body cavity at the police station. Officer Steele did eventually change his mind about whether drugs could be secreted into a body cavity at the police station, and conceded that this would be unlikely to occur as Mr MacPherson walked handcuffed down a lighted police corridor. These types of police concerns were dealt with by the Supreme Court of Canada in the Golden case.

31As I indicated earlier, it was suggested in Golden that drugs could be dropped on the sidewalk or in the police cruiser on the way to the station, and it was therefore necessary to search Mr Golden at the scene. The Court viewed the likelihood of this occurring as low, and that if it did, circumstantial evidence could easily link it to an Accused. The Court also remarked that a "frisk" or "pat-down" search at the point of arrest will generally be enough in order to verify whether or not an Accused has weapons on his person. No frisk or pat-down search of Mr MacPherson was done at the outset of the investigative detention. If the frisk search revealed a possible weapon secreted on Mr MacPherson's person, there may have been a justification for a more intrusive search. What existed here was the mere possibility that Mr MacPherson may have been concealing a weapon, and this was not sufficient to justify the strip search. The situation in this case was not fluid. The Officers had firm control of Mr MacPherson. It is unlikely that anything would have happened to the drugs inside Mr MacPherson's clothing, before they reached the station.

32I do not agree with the police evidence that the search inside Mr MacPherson's clothing was not a strip search. The removal of clothing, pulling down a detainee's pants to the knee, or insertion of a glove covered finger into a detainee's anus are not essential to the definition of a strip search. I accept the police evidence that the pants were pulled back. The buttocks would have to be exposed, if the boxer shorts and pants were pulled back, and the drugs removed. I accept the police evidence that the drugs were not found in between the cheeks of the buttocks and removed from that location. But even so, this was still a strip search. It involved rearrangement of the boxer shorts and pants, that is, pulling them back. This permitted a visual inspection of a private area, the buttocks, and further exposed undergarments, which were already partially exposed. This is a strip search, and I found the trial judgment in R v Ali, supra, instructive in this regard. The strip search was not justified by exigent or exceptional circumstances. The search was not carried out in a reasonable manner.

33There has been a violation of Mr MacPherson's s. 8 rights.

Has there been a violation of Mr MacPherson's s. 7, 9, and 10(b) rights?

34There was a lawful reason for stopping and questioning Mr MacPherson. He was not unlawfully detained. There was a valid concern that he had a weapon. A pat-down search was justified, but a strip search was not. I accept the police evidence that after Mr MacPherson was arrested he was read his rights to counsel. Mr MacPherson said in his evidence that he did not "recall" being given his rights to counsel. That is not the same thing as remembering that he had not been given his rights to counsel. After Mr MacPherson was arrested, there was a pat down search and a search of the car. These were lawful searches incidental to arrest. Only s. 8 of the Charter has been violated.

Should I stay the charges for abuse of process?

35This is not one of those clearest of cases in which charges should be stayed. While every strip search is humiliating, degrading, and violates human dignity, and every strip search is serious, this one did not involve removal of clothing, it was very quick, and only exposed the buttocks for seconds. Mr MacPherson may have been afraid that many people could see what was happening, but based on the totality of the evidence and what I can see on the videotape, or perhaps I should say what I cannot see, Mr MacPherson appears to have been shielded from view by one of the officers, while the search was occurring. The officers were ignorant of the law. They thought that exigent circumstances justified what they did, and that what they did was not a strip search. They were wrong, and this should not have happened. But it is still not one of those clearest of cases in which charges should be stayed.

Should evidence be excluded?

36The Grant criteria are well known and are routinely and frequently applied by this Court. Strip searches in public are serious misconduct, even when they do not involve removal of clothing, are relatively brief, and there is no evidence of onlookers. Still, they violate the dignity, privacy, and self-respect of the individual being searched. As in the Ali case, supra, Mr MacPherson perceived that people were watching and he found the experience humiliating. I found he was exaggerating and disingenuous, when he suggested that the experience caused him to suffer subsequently from post-traumatic stress, and I was influenced by the internal inconsistency of his evidence on this point, but a strip search does not have to trigger a psychological illness for the impact to be serious and humiliating. In the Ali case, more than one pat-down search was done, before the strip search was conducted. No pat down search at all was attempted on Mr MacPherson before he was strip searched. If the true concern was officer safety and a potential weapon, a pat down search was all that was necessary. But the real reason for the strip search was that the officers just wanted to know what was in Mr MacPherson's pants. Searching inside the pants and boxer shorts could have waited until they got to the police station.

37It does not mitigate the seriousness of the breach that the Officers were ignorant of the law governing strip searches, and that they did not even understand that this was a strip search. Golden was not decided yesterday. It was decided in 2001. Mann was not decided yesterday. It was decided in 2004. There was police evidence in this case that is suggestive that there has been no training and there is no police directive or protocol on this. In answer to a question, one of the Officers did not seem to have heard of a protocol or policy on it. They both seemed to think that what they did was entirely appropriate. This suggests a systemic problem, and if the problem is systemic, then it aggravates the seriousness of the breach. Ignorance is not mitigating and it does not show good faith. But I do not have to go that far. All I need say is ignorance of the important standards created by Golden and Mann, which have been in existence since 2001 and 2004, is unacceptable. The Court must disassociate itself from the strip search that was conducted in this case.

38The strip search had a serious impact on Mr MacPherson's Charter protected rights of privacy, security of the person, dignity, and liberty. The drugs obtained as a result of this Charter violation are highly reliable evidence. They would not operate unfairly in the Court's search for the truth, were they not to be excluded. However, I share the same concern that the trial judge had in Ali. I find that appearing to condone Charter violations that represent such a substantial invasion of protected rights, rather than enhancing the long-term repute of the administration of justice, would undermine it.

39Evidence of all the drugs seized is excluded.

Footnotes

1. Transcript, September 15, 2016, page 24, lines 16-17.
2. Ibid, line 20.
3. Ibid, page 37, line 6.
4. Transcript, January 9, 2017, page 3, line 32.
5. Ibid, page 4, line 3.
6. Ibid, page 21, line 20.
7. Ibid, lines 29-30.
8. Ibid, page 11, lines 3-6.
9. Ibid, page 22, line 31.
10. Supra, footnote 1, page 28, line 22.
11. Ibid, page 29, line 2.
12. Ibid, page 35, lines 24-25.
13. Ibid, page 32, lines 14-25.
14. Ibid, line 30.
15. Ibid, page 35, lines 8-16.
16. Ibid, page 37, lines 2-3.
17. Ibid, line 4.
18. Ibid, lines 5-6.
19. Supra, footnote 4, lines 31-32.
20. Ibid, page 41, lines 4-6.
21. Ibid, page 108, lines 21-22.
22. Transcript, April 26, 2017, p. 12, lines 26-27.
23. Supra, footnote 4, page 108, lines 22-23.
24. Ibid, page 112, line 14.
25. Ibid, page 113, lines 21-22.
26. In R v Golden 2001 SCC 83 (CanLII), the Supreme Court of Canada acknowledged that "strip searches may also be distasteful and difficult for the police officers conducting them," at para 90.
27. 1987 CanLII 84 (SCC), [1987] 1 SCR 265.
28. Supra, footnote 26.
29. Ibid, paras 98-99.
30. Ibid, para 47.
31. Ibid.
32. Ibid, para 94.
33. Ibid, para 102.
34. R v Mann 2004 SCC 52 (CanLII)
35. Ibid, para 37.
36. Ibid.
37. Ibid, para 45.

Released: September 11, 2017

Signed: Justice S. Ray