Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
ā and ā
Jamal Harrison
Before: Justice P.H. Wilkie
Reasons for Judgment released: April 30, 2018
Counsel:
Mr. D. Anger for the Federal Crown
Ms. B. Walker for the accused Jamal Harrison
Reasons for Judgment
Introduction
1These are the reasons for judgment in respect of Jamal Harrison tried before me on a charge of Possession for the Purpose of Trafficking cocaine.
2As a result of some CI information and some surveillance he was arrested by police on June 17, 2015 while travelling with two others in a motor vehicle. A pat down search of his person at the scene, which included a search of his pockets, revealed no drugs. A search of the motor vehicle proved negative as well. He was nonetheless arrested and taken to the police station pending the execution of a search warrant at his home.
3At the police station, after being booked, he was strip searched. When his pants were removed some contraband wrapped in plastic fell to the floor which formed the basis of the charge he now faces.
4At the outset of the trial I was called upon to rule on whether the police had the requisite grounds to make the arrest and conduct the initial search, incidental thereto. I found that they did and for reasons released on September 28, 2017, dismissed the defence application alleging breaches of sections 8 and 9 of the Charter having regard to the initial stop.
5Following that ruling the court heard from eight further witnesses and I am now called upon by the defence to exclude the evidence found because the strip search at the station breached his section 8 Charter rights.
6In addition, and in the alternative, the defence argues that the charge must in any event be dismissed because lapses in the chain of custody of the alleged drugs raise significant doubt that the plastic bag and contents that came from the accused's clothing was in fact the same substance that was sent for analysis by the police and tested positive for cocaine.
The Continuity Issue
7By way of overview the position of the defence is that deficiencies, omissions and contradictions in the evidence of the various officers involved in the chain of custody of the package seized from the accused, ought to leave the court with a real and substantial concern that it is the same item as the package of drugs before the court which tested as cocaine.
8After his arrest Mr. Harrison was placed in the custody of Officer Selimovic for transport to the station. Selimovic to that point had not otherwise been involved in the investigation. A video of the booking area (Exhibit 1) shows him bringing Harrison before Sergeant Hollingshad to be booked into the station whereupon a further pat down search was conducted and some personal property turned over to a Special Constable.
9Very shortly thereafter, within less than a minute, Harrison was then led through an open door to a corridor or hallway just outside the booking area where the strip search took place. The search itself was also recorded on videotape and forms part of Exhibit 1 as well.
10The video showed Mr. Harrison initially in the presence of two Niagara Regional Police Special Constables. Demizio was the constable tasked to carry out the search. He stood close by the accused and directed him to remove and hand over for inspection each article of clothing. Also present but a few feet further away was Special Constable Cole who was standing by as it were to observe, assist if necessary and ensure officer safety.
11On the video Mr. Harrison is seen to remove his trousers. Demizio takes them in his hand and shakes them and holds them as Mr. Harrison is directed to remove his underwear. As the pants are shaken a small object can be seen to fall to the floor near Demizio's feet. Demizio does not seem to notice but after a few seconds Cole comes over and while the strip search is continuing, slides the object with his foot out of the way towards an adjacent wall.
12By this time a third constable, Bolton has entered the hallway from the booking area and is also watching the search. As it continues, it is Bolton who bends over and picks the object off the floor. After showing it to Demizio and Cole he walks back out the open door to the booking area.
13The initial problem with the chain of custody is that Bolton had no recollection that he seized the suspected drugs, no notes about doing so and was unable to tell the court what he did with them. While he had notes about processing Harrison and his property, there was nothing in them about retrieving or handling any drugs.
14Acknowledging that the video showed him picking the item off the floor, Bolton testified that he assumed he would have left the search room and handed the package to the booking sergeant but he could not say. He said that the proper procedure would have been to place the item in a property bag and give it to the officer who brought the accused to the station but conceded he did not do that.
15The next witness to testify about the suspected drugs was Selimovic, the transport officer. He said that the booking sergeant told him suspected drugs had been found on the accused and handed him a clear plastic baggie and told him to deliver it to Detective Waselovich at an office in Thorold which was being used by the investigators on the case.
16The problem with this from a chain of custody perspective is that it is contradicted by the booking sergeant who testified that she never dealt with the contraband. She said she was aware suspected drugs were found on the strip search but denied ever coming into contact with them.
17As for what it was Selimovic was delivering, his notes had no description of what was in the bag and he had no recollection of what the substance looked like. All he could say was there was something in a clear plastic bag and that there was no property bag. Shown the proposed exhibit he could not identify it as the item he transported. He said he delivered the package as directed, by handing it directly to Waselovich at the office at 619 Allenburg Road.
18He agreed that what happened here was contrary to established practice which called for the contraband to be placed in an exhibit bag and put in property at the station.
19Waselovich testified that he received suspected drugs from Selimovic but contradicted him on two matters. First he said the item that was given to him was in a property bag and second says he received them from Selimovic not at the detective's office but at the residence of Mr. Harrison which was being searched pursuant to the warrant. When asked what he did with the package he testified not what he did but what he would have done, which was to look at it for a few seconds and then put it in the property box that was being used by the exhibits officer Levasseur to collect items seized pursuant to the search.
20Waselovich's choice of the conditional tense may be understandable since he had nothing whatsoever noted about meeting with Selimovic, about receiving any drugs from him or placing them in a property box. This was especially remarkable in my view given that no other drugs were found at the house or anywhere else for that matter during the investigation and given that the Detective had notes about other items of interest found during the search.
21Levasseur was the exhibits officer. He was at the house where the warrant was being executed tasked with collecting items that were seized. He said he received the suspected drugs from Waselovich just as they were about to leave the house, that he took the package back to the Intelligence office that night, locked them away and the next day retrieved them and took them to the station where a sample was sent for analysis. His evidence failed to make it clear to the court how the contraband was packaged when he received it. At some point in the course of handling the item, although again the evidence is unclear when, Levasseur put the item he had in a exhibits/property bag and initialled it. He recognized the drugs before the court as the same substance he had received and processed and the property bag he had initialled.
22Remarkably this officer as well had no note of when or from whom he came into possession of the suspected drugs. Nor did the exhibit list in relation to this investigation on which he listed all items seized, contain any reference to any drugs. This is hard to understand given their significance as the only alleged drugs found during the entire investigation.
23Based on the evidence of Levasseur there can be no question the drugs in court were the ones that Levasseur took the sample from and sent for analysis. The question is where did they come from?
24It should be clear from this review of the evidence that it established nothing close to a documented chain of custody in relation to the suspected drugs. The officer who first took custody of them did not know what he did with them. The officer who took the package of what he believed were drugs says he got them from an officer who denies any involvement with them. He says he delivered them without a property bag to a particular officer at a particular location. The officer who received them says it was at a different location and in a property bag. Something is then turned over to the exhibits officer who makes no record of when or where they were received and fails to include them on a list of all property seized during the investigation. Indeed the only officer in the alleged chain of custody with any note about handling them before being sent off for analysis was Selimovic the transport officer.
25The absence of a documented chain of custody takes on added significance because the only noted description of the suspected drugs that were seized from the accused is significantly at odds with the drugs that were analyzed and placed in evidence. Demizio, the only officer to make any note of what the content of the package looked like, said it contained a white powder. The package that Waselovich and Levasseur identified contained not powder but a series of individually wrapped brownish grey pellets which caused Waselovich to assume it was crack cocaine. The plastic bags put into evidence contained nothing in powder form and nothing that could be described as white.
26I would note that the Crown chose to introduce the drugs that were analyzed into evidence through Special Constable Cole. In chief he identified the package shown to him by the Crown as the same one that had fallen from the accused's clothing. In cross it was revealed that he was trying to testify about an event two years prior without the benefit of notes due to a job transfer. In conclusion the best he could say in the absence of notes was that they could be the same drugs.
27In this case the absence of a proper chain of custody from the time of seizure to the time the item was sent for analysis takes on added significance because the only description of the substance seized from the accused did not match the exhibit before the court.
28I have significant doubt therefore that the substance analyzed was the same substance that was seized. There is no evidence therefore on which the court to rely that the package that fell from the accused's clothing contained a prohibited substance and for this reason the charge must be dismissed.
The Charter Application Relating to the Strip Search
29The defence brought an application asserting that the strip search carried out at the station violated Mr. Harrison's rights under section 8 of the Charter and that the contraband seized be excluded from the evidence.
30Notwithstanding this was a search incident to a lawful arrest, being a strip search the onus is on the Crown to establish on a balance of probabilities that it was reasonable.
31There are two prongs to the defence argument, first that there were no reasonable and probable grounds to conduct such a search and secondly, even if there were, it was not carried out in a reasonable manner.
32For the following reasons I would give effect to both arguments and find that this search was unreasonable and did violate section 8 of the Charter. I am also satisfied that the repute of the administration of justice would be far better served by the exclusion rather than the admission of the evidence.
Lack of Reasonable and Probable Grounds
33It is well settled law that a strip search, because of its inherently degrading and humiliating nature, even when carried out incidental to an otherwise lawful arrest, requires additional grounds beyond those justifying the arrest. What is required are circumstances relating to the accused and/or the arrest which give rise to a reasonable belief that the detainee is concealing weapons or evidence relating to the crime for which he was arrested.
34In other words, police concerns of a routine or general nature are not sufficient. In the context of a drug arrest, the mere possibility that drugs will be found does not justify a strip search.
35As noted above Harrison was the target of an investigation that had begun in earnest about two weeks before. After several days of surveillance the police stopped the car in which he was travelling and arrested him and the other two occupants. He and the others were subjected to a frisk search at that point. The car was also searched. No drugs or drug paraphernalia were found.
36Harrison was then turned over to Officer Selimovic, for transport to the police station. This officer testified that apart from the charge that Harrison was being arrested for, he had no knowledge of the details of the investigation or the circumstances that led to the arrest.
37At the station Selimovic presented and then turned over Harrison to the booking officer, Sergeant Hollingshad. A further search was then done of Harrison's person and some property turned over. This process, which only took about three to four minutes, was captured on video and is part of Exhibit 1.
38Sergeant Hollingshad was the officer who directed that the strip search take place. She testified that while a strip search "was requested" it remained a matter within her discretion whether to authorize it or not. It seemed clear from her evidence that she understood that it required grounds over and above those that would justify the arrest.
39Sergeant Hollingshad set out in her evidence the grounds she relied upon. They included both information received from other officers and knowledge accumulated as a result of many years experience as a cells officer.
40As for the information received, she said she was told that Harrison was charged with Possession for the Purpose of Trafficking, that he was known to be within the drug culture, that he was a mobile trafficker known to hide drugs on his person and that he had a criminal history that supported those facts.
41As to what her experience taught her it was "that people coming into the cells for trafficking are known to hide drugs on their person" and that "persons in this line of business know the limitations of the police and where they could be frisked and they know to hide them against their bodies or inside different cavities where the police would not be allowed to go without just cause."
42While clearly the grounds based on her experience would not, standing alone, be sufficiently case or offender specific to justify a strip search, it would also seem that those based on the information received, if present in her mind at the time, would be sufficient to create a reasonable belief that evidence was being concealed and a strip search required. They are also grounds that are not inconsistent with the evidence the court heard about the investigation leading to the arrest.
43Despite the adequacy of these grounds I am not satisfied on the record before me that more likely than not they had been communicated to the authorizing officer before the search was carried out. The unsatisfactory nature of the booking sergeant's testimony, leaves me unsatisfied on a balance of probabilities that the details she recounted about Mr. Harrison and the investigation were in fact available to her at the point when she authorized the search.
44The first thing to note in this regard, is that Sergeant Hollingshad was unable to tell the court how when or from whom she received the grounds. At first she endorsed that it was Selimovic, the officer who brought Harrison to the station, as the source of this information. She said he told her that a strip search was being requested because he was a mobile trafficker who hid drugs on his person.
45The difficulty here however is that this was flatly contradicted by the evidence of Selimovic himself who as noted above, said he knew nothing of the accused or the investigation that led to his arrest and gave no information to the sergeant, save what he was charged with, and conveyed no requests from the investigators.
46During cross-examination the evidence of the officer changed. She said she could not recall now from whom she received the grounds but that it must have been from one of the officers involved in the investigation.
47The problem for the court with this testimony is that the record before me does not disclose any opportunity for this to have occurred. The search is commenced within minutes of Mr. Harrison arriving at the station. The period between Harrison's arrival at the station and the search is captured on video. The only officer the sergeant interacts with during this time is Selimovic. The sergeant is not seen to be communicating with anyone else by telephone or radio during this time, nor, despite being pressed repeatedly on the source of the information does she offer any explanation as to how or when this communication with unnamed officers occurred. If, for example, she had been contacted by investigators in the field before Harrison arrived it would have been a simple matter to have told the court as much.
48The second area of concern about the testimony is that the officer did not have a single contemporaneous note about the search. Nowhere was it recorded who requested the search, by what means the request was conveyed, what grounds she was provided with, what grounds she relied upon or the fact that she made a considered decision to authorize it. Contemporaneous notes serve to verify what was in the witness's mind at the time of an event. The absence of any, especially when the testimony is over two years removed from the event, cause the court to look elsewhere in the record to find support for the witness's assertions about what occurred and what information she had received.
49In addition to the absence of notes the court's confidence in the officer's assertions is undermined by the fact that when pressed for detail about the grounds for the search of Harrison and other persons arrested with him, it was clear she had a very poor recollection of the encounter and could provide no detail. When asked if other persons arrested with Mr. Harrison were strip searched she initially said no and then that she believed so. She could not recall if she did a CPIC search on Harrison. She did not know if he had a record or other outstanding charges at the time. She did not know if any drugs had been found on Harrison or in his car during the first search incident to his arrest. Nor could she say by the time of the trial whether other drugs were found during the frisk search conducted in front of her at the station or whether she asked him before the strip search if he had drugs on his person.
50Overall I found the sergeant's evidence problematic. It was at times contradictory, short on detail and given in a defensive manner.
51I have not overlooked that the witness more than once adamantly asserted that she had the grounds for this search even though unable to explain how or from whom she got them, but at the end of the day I'm asked to find on a balance of probabilities that such grounds existed two years prior in the mind of the officer, who kept no contemporaneous notes, who had virtually no recollection of other aspects of her interaction with the accused, who had no recollection who provided these grounds to her, and who, in the face of a record that discloses no apparent opportunity to receive the information from another officer, herself provides no explanation as to when or by what means that occurred.
52Looking at her evidence as a whole I find that I am left with a real concern that the grounds the officer referred to were not communicated to her before the search and that the search was conducted solely on the basis of the charge he was facing.
53On this record the Crown has not met its onus to establish that the officer who authorized the search had the reasonable and probable grounds to do so.
The Manner of the Search
54As to the second aspect of the defendant's section 8 application I am satisfied that this search was not carried out in a reasonable manner and for that reason as well violated the accused's rights under section 8 of the Charter.
55The search took place at the police station by two same gender officers under the authority of a supervisory officer. It was not carried out in a place however that afforded privacy to the defendant.
56As described above, Harrison was taken from the booking area through a door which led directly into a square hallway. In addition to the booking room entrance there were three other doors that opened into the hallway, from the male cells, from the female cells, from the breath room and from the police building itself. During the search those doors remained closed but the door to the booking area remained open, permitting persons not involved in the search to look in or enter. According to the evidence that door was rarely if ever closed.
57And indeed the lack of privacy created by the open door was demonstrated in this case when a third officer, not involved in the search, wandered in to watch what was happening while Harrison was removing his clothing. By his own evidence Officer Bolton had no particular purpose in entering except to satisfy his curiosity as to what was going on.
58But that is not all. The hallway was under video surveillance and the search was live streamed as one of a number of images projected onto three monitors in the booking area where two female officers were working that evening. The result is that the search was broadcast to other areas of the police facility so that any number of officers or civilian personnel could have watched some or all of the entire search process.
59The video was also being recorded and stored with the police. There was no evidence as to who might have access to the recording, but in preparation for the trial it was retrieved, viewed by a police force employee and in preparation for disclosure, partially modified to add a blur box to obscure the accused's private parts. According to Crown counsel, he occasionally received disclosure of the original unredacted version of the tape which he would return to be modified before passing it on to the defence.
60To make matters worse in my view, the evidence on the application would suggest that what took place here had been standard practice at that station for many years and remained so until the fall of 2017 when a new police station was built with larger improved facilities. While the evidence was not entirely clear, I took it that the new facility included a more secure private place for strip searches to be conducted.
61It was confirmed however that along with the new facility came new procedures for strip searches which mandated that the authorizing officer record her grounds for authorizing or refusing each search. As well, strip searches are no longer being videotaped.
62Without question then the guidelines adopted by the Supreme Court of Canada in R. v. Golden, some 14 years prior, to ensure that the police conduct Charter compliant strip searches were not followed in this case. Quite simply it was not carried out in a private. The door to the search area was left completely open and during the search a third officer not involved with the search wandered in to observe. Further the search was videotaped and thus available for real time viewing by others in other parts of the station. It was also recorded and available for viewing by others including those involved in the disclosure process. Finally, apart from the video, there was no adequate record kept of the search.
63Accordingly it is clear in this case that the manner in which the strip search was carried out violated the applicant's section 8 rights.
Section 24(2)
64As indicated at the outset, applying the section 24(2) analysis to the circumstances of this case leads me to conclude that the repute of the administration of justice would be better served by the exclusion of the evidence.
65There are two ways in which the applicant's section 8 rights were breached. The seriousness of the state misconduct associated with the court's finding that reasonable and probable grounds was not established is difficult to assess. If the grounds articulated by the police witness were not in fact received, so that the search proceeded on the basis of the charge alone, that would be a very serious matter indeed. More so obviously given the officer's testimony designed to obscure that fact. On the other hand if the failure of the evidence to satisfy the court as to the existence of reasonable and probable grounds was the result of the prosecution failing to call a witness to fill the evidentiary gap (such as an officer who did somehow communicate grounds to the booking sergeant), then the breach is far less serious, especially since it would appear that on an objective basis reasonable and probable grounds probably existed.
66Having said that, the breach connected with the manner of the search is significantly serious enough standing on its own to strongly favour exclusion. The police were in total control of a process which deliberately and blatantly breached his right to privacy. Standards for a Charter compliant strip search were set by the Supreme Court of Canada well over a decade ago. By conducting this search in a hallway just beyond an open door that apparently could be, but was rarely closed and by showing it live on monitors elsewhere in the station, the officers here demonstrated a shocking indifference to or ignorance of well-established constitutional norms.
67It is more serious as well because there is a systemic aspect to the breach. It is apparent that there was nothing unusual about what happened here but in fact was in accordance with standard routine police practices at that station, practices which remained in place until a new police facility was opened two years later. The fact that the police have apparently adopted new procedures which are more respectful of the detainee's privacy is obviously a positive development but in my view does not serve to render prior breaches less serious.
68I am of the view that the state misconduct that resulted in this section 8 breach falls well beyond the midway point on the spectrum of seriousness.
69The Charter-protected interest at issue here is the right to privacy. There was a complete failure here to take basic steps to protect that right such as by closing the door of the hallway and as well, there was a deliberate mechanism in place, namely the videotaping, to disregard it altogether. The impact of the first would have been felt immediately by Mr. Harrison as he undressed within a few feet of a wide open door leading to a room where police personnel of both sexes and other arrested persons come and go with frequency. A humiliating, invasive procedure under the most private of circumstances was rendered more so by this circumstance.
70The record here leaves me uncertain whether Mr. Harrison knew the search was being videotaped. That said, the impact of this aspect of the breach may have been felt more profoundly at a later date when Harrison became aware through disclosure or the trial process itself that the search was seen elsewhere in the station and that there was an ongoing dimension to it, in that it was recorded for future viewing.
71In my view the impact of the breaches on the right to privacy of the applicant are also closer to the more serious end of the spectrum and this factor favours exclusion as well.
72The third line of enquiry under the Grant analysis, points as it often does when the evidence is reliable and crucial to the prosecution, to the inclusion of the evidence. However this is a case where the first two factors so strongly support the case for exclusion that society's interest in the determination of the case on the merits must give way.
73Had there not been an acquittal on the merits, I would have excluded the evidence under section 24(2) due to the section 8 violation.
74The accused is acquitted of the charge.
Released: April 30, 2018
Signed: "Justice P.H. Wilkie"
Justice P.H. Wilkie