ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TREMAINE DALEY-HYATT
Before Justice Paul Burstein
Heard on September 24 and 27, 2018
Reasons for Judgment released on October 15, 2018
P. Greenway counsel for the Crown
J. Struthers and A. Pinnock for the defendant Daley-Hyatt
BURSTEIN J.:
Overview of the case
1At about 12:13 p.m. on October 5, 2017, Mr. Daley-Hyatt and his two female passengers were driving along Highway 401 approaching the Courtice Road exit. His vehicle was spotted by D.R.P.S. Cst. Dicresce who was out on patrol in his cruiser with Cst. Petrovic, a brand new officer who Dicresce was training. After a computer check of the vehicle’s plate revealed that the registered owner’s licence was suspended, Cst. Dicresce decided to stop the vehicle to check on the driver.
2The officers followed Daley-Hyatt as he exited the 401 at Courtice and drove into the parking lot of a low-rise office building at the corner of Courtice Road and Baseline Road. Both Dicresce and Petrovic approached the driver’s side of Daley-Hyatt’s vehicle. When Daley-Hyatt verbally identified himself in response to Petrovic’s demand for licence and registration, both officers detected a strong odour of burnt marijuana. Petrovic returned to the police vehicle to conduct a computer check on Daley-Hyatt. Dicresce, however, decided to arrest Daley-Hyatt and the two female passengers for the possession of marijuana. Only a few minutes had passed since the officers had first spotted Daley-Hyatt’s vehicle at 12:13 p.m.
3After the three occupants had been removed from the vehicle by the police, Daley-Hyatt was handcuffed and subjected to a frisk search by Petrovic. During that frisk search Petrovic discovered 2 cell phones, $1000 cash and a plastic bag with a substance believed to be psilocybin. Petrovic also detected a suspicious round bulge about 2-3 inches in diameter near the front pocket-area of Daley-Hyatt’s pants. Petrovic then directed Daley-Hyatt around to the back of the officer building for the purposes of conducting a more intrusive “strip search” to investigate that bulge. After complaining that Petrovic had no right to do that, Daley-Hyatt began to resist the more intrusive search. Daley-Hyatt was wrestled to the ground by Petrovic. By this time, Dicresce had come over to assist Petrovic with the strip search and ended up helping to secure Daley-Hyatt on the ground. During the struggle on the ground, Petrovic reached inside the back of Daley-Hyatt’s track pants and removed a plastic bag containing substances believed to be cocaine and heroin. At approximately 12:45 p.m., Daley-Hyatt was also arrested for possession of a drug for the purpose of trafficking, for breach of probation and for assault resist arrest. He was placed in the rear of the police cruiser, still in handcuffs.
4At 1:07 p.m., 50 minutes after he had first been arrested and handcuffed for possession of marijuana, and 22 minutes after he had been secured in the rear of the police cruiser, Daley-Hyatt was finally informed of his right to consult with counsel. Daley-Hyatt said “yes” when asked if he wanted to call a lawyer now.
5At approximately 1:47 p.m., Daley-Hyatt was transported to 17 Division in the rear of Dicresce and Petrovic’s cruiser. They arrived at the station at 1:59 p.m. After being paraded in front of the booking sergeant at approximately 2:18 p.m., he was taken to a room in the booking hall for another strip search instead of first being provided an opportunity to contact his lawyer. A second plastic bag containing a powdery substance was discovered. However, during the course of that strip search, the baggie was torn open and the powdery substance was scattered all over the room, including on Daley-Hyatt and the two officers.
6No marijuana was ever found in Mr. Daley-Hyatt’s vehicle. However, the plastic bags seized from him at roadside were analyzed and found to contain cocaine and psilocybin. The powdery substance that had been in the baggie discovered during the search at the station was also analyzed and found to contain a mixture of heroin and fentanyl.
7Mr. Daley-Hyatt now stands charged with four counts of possessing controlled drugs for the purpose of trafficking and one count of possessing property obtained by crime. He was also charged with assaulting Csts. Petrovic and Dicresce with the intent to resist arrest and with administering a noxious substance to them (i.e., the controlled drug that was in the plastic bag which the officers alleged he deliberately tore open in the search room at the station).
8The defence does not contest that the police ultimately seized those four controlled drugs from Mr. Daley-Hyatt nor that he was in possession of those drugs for the purpose of trafficking. Rather, Mr. Daley-Hyatt argues that all of the seized evidence ought to be excluded pursuant to s. 24(2) of the Charter on the basis that his ss. 8, 9 and 10(b) rights were violated by the police. In particular, he contends that:
(1) His ss. 8 and 9 rights were violated given that there were insufficient grounds to arrest him (and his two passengers) for possession of marijuana based only on the smell of burnt marijuana.
(2) His s. 10(b) rights were violated by virtue of the 50 minutes which passed between his initial arrest for possession of marijuana and when he was finally informed of his rights to counsel.
(3) His s. 8 rights were violated by the manner in which the strip search was conducted; that is, in open view of the public and without having first informed him of the grounds relied upon to authorize that strip search.
9The defence also argues that, irrespective of whether the evidence is excluded, the Crown has not proven beyond a reasonable doubt that Daley-Hyatt assaulted the police officers nor that he intentionally “administered” the powdery substance that was in the plastic bag. While I would ultimately have acquitted Mr. Daley-Hyatt on those two charges as a result of a reasonable doubt on both, I need not deal with either issue given my decision to exclude all of the seized evidence pursuant to s. 24(2) of the Charter.
The evidence on the blended voir dire and trial
10The part of the narrative relevant to the Charter issues in this case begins once Daley-Hyatt had stopped his vehicle in the parking lot of the office building and was approached by Csts. Dicresce and Petrovic.
11After approaching the driver’s side window together, both officers positively identified an odour emanating from Daley-Hyatt’s vehicle as burnt marijuana. I am satisfied that both of the officers had sufficient experience and training to reliably determine the nature of the odour they detected. Cst. Dicresce had been an officer for 11 years and had investigated dozens of marijuana-related offences. Despite only having been a police officer for 8 days at the time of Daley-Hyatt’s arrest, Cst. Petrovic had previously served several tours of duty in the Canadian Armed Forces in Afghanistan where he had participated in a number of controlled burns of marijuana fields. Based on each officer’s considerable experience dealing with marijuana, they both readily identified the odour emanating from the vehicle as being burnt marijuana. Neither officer purported to have ever detected an odour of any fresh marijuana emanating from the vehicle or from Daley-Hyatt. Indeed, at no point during their investigation of Daley-Hyatt, his vehicle or his passengers did the police locate any marijuana.
12Based only upon his subjective belief that there was a strong odour of burnt marijuana, Cst. Dicresce decided that he had sufficient grounds to arrest Daley-Hyatt and his two passengers for possession of marijuana. Dicresce made no other observations which supported his decision to arrest nor did he pose any further questions to Daley-Hyatt prior to the arrest.
13Unlike Cst. Dicresce, when he had detected the odour of burnt marijuana, Cst. Petrovic did not believe that Daley-Hyatt or any of the vehicle’s occupants should be arrested. Instead, Petrovic simply returned to the police cruiser to conduct a computer check in an attempt to verify Daley-Hyatt’s verbal identification. Cst. Petrovic’s police college training had taught him that the odour of burnt marijuana alone is not a sufficient basis to arrest someone for possession of marijuana. Something indicative of present (as opposed to past) possession is required. When Petrovic returned from running the computer check in the police cruiser, he learned that Dicresce had decided to arrest everyone in the vehicle for possession of marijuana. As the junior officer that day, Petrovic simply deferred to Dicresce’s lead.
14When Petrovic had returned from the cruiser, Dicresce had already removed Daley-Hyatt from the vehicle and handcuffed him to the rear. Petrovic was told to deal with Daley-Hyatt while Dicresce continued to deal with the female passengers pending the arrival of a female officer to assist with searching them. Believing that he had already been formally arrested by Dicresce, Petrovic directed Daley-Hyatt away from the vehicle and conducted a frisk search of him. Petrovic discovered some cell phones, $1000 in cash and a plastic bag containing what he believed to be psilocybin. During the frisk search, Petrovic also felt a 2-3 inch round bulge on the upper front part of Daley-Hyatt’s pants which Petrovic had not detected when he had reached into Daley-Hyatt’s pockets. It was a hard rock like substance which, according to Petrovic, seemed out of place. After Petrovic had detected the bulge, Daley-Hyatt kept backing away and putting his hands down the back of his track pants. Petrovic asked Daley-Hyatt about the object, but Daley-Hyatt remained silent.
15Petrovic decided that he had to do a “better search” before placing Daley-Hyatt in the police cruiser. Petrovic testified that he believed the object he had felt in Daley-Hyatt’s pants could be a weapon. He relayed his belief to Dicresce who had rejoined Petrovic to help with Daley-Hyatt. Petrovic and Dicresce escorted Daley-Hyatt to the rear of the office building. As they walked him over behind the building with his hands still handcuffed to the rear, Daley-Hyatt’s track pants were falling down. When Petrovic began trying to reach inside Daley-Hyatt’s pants, Daley-Hyatt complained that what Petrovic was doing was “against [his] rights”. Petrovic testified that when Daley-Hyatt began physically resisting the search, Petrovic took him down to the ground. Daley-Hyatt continued to thrash around on the ground with his legs and arms while Dicresce and Petrovic tried to secure him. While they had him on the ground, Petrovic was able to lift the rear waistbands of Daley-Hyatt’s pants and underwear, reach inside and remove a plastic bag containing substances believed to be cocaine and heroin. According to Dicresce, the struggle relating to the search of Daley-Hyatt’s underwear lasted 25-30 minutes.
16At 12:45 p.m., Daley-Hyatt was arrested for possession for the purpose, breach of probation and assault resist arrest. He was placed in the rear of the cruiser. However, it was not until 1:07 p.m., another 22 minutes later, that Daley-Hyatt was finally read his rights to counsel by Petrovic.
17Dicresce and Petrovic transported Daley-Hyatt to 17 Division, arriving at 1:59 p.m. Daley-Hyatt was not paraded before the booking sergeant until 2:18 p.m. Daley-Hyatt again indicated that he wanted to call a lawyer. First, however, he was taken to a small room in the booking hall for another strip search by Csts. Dicresce and Petrovic. Before being taken to the room, the booking sergeant informed Daley-Hyatt of the pending strip search and the reasons for it.
18Once in the search room, Dicresce told Daley-Hyatt to remove his shirt and pants. He did so, but was seen to be touching something inside his underwear that was positioned between his legs. Petrovic ordered Daley-Hyatt to hand over what was between his legs. Daley-Hyatt responded that it was nothing. Petrovic then told him to remove his underwear. At that point Dicresce observed another plastic bag between Daley-Hyatt’s legs. He ordered Daley-Hyatt to place both of his hands on the wall in front of him. Instead, Daley-Hyatt reached for the plastic bag with both of his hands. Dicresce tried to grab one of Daley-Hyatt’s hands. During the physical struggle, the plastic bag tore open and the powdery contents were dispersed all over the room, including all over the two officers. Both Dicresce and Petrovic testified that Daley-Hyatt had deliberately torn open the bag.
19Following the struggle to gain control of the bag in the search room, Petrovic took Daley-Hyatt to the ground in the booking hall just outside the door. Dicresce drew his tazer but did not use it. Other officers intervened to secure Daley-Hyatt. Another officer collected the powdery substance off the floor of the search room and seized it as evidence.
Analysis and findings
a) Did the initial arrest for possession of marijuana violate Daley-Hyatt’s ss. 8 and/or 9 Charter rights?
20The s. 9 issue raised by Daley-Hyatt is inextricable linked to his s. 8 complaints about the search incident to his arrest for possession of marijuana. The seizure of the evidentiary items in this case, including the drugs, from the warrantless search incident to his initial arrest. It is well established that a warrantless search is presumptively unreasonable unless justified by the Crown. In this case, the Crown seeks to justify all of the searches as having been lawfully conducted pursuant to what it claims was a valid initial arrest. It follows that the central issue to be determined is whether the arrest for possession of marijuana was valid. If the initial arrest for possession of marijuana was valid then, subject to consideration of the manner in which Daley-Hyatt was strip searched at the scene, neither s. 8 or s. 9 of the Charter would have been infringed. On the other hand, if the initial arrest was unlawful then s. 9 was violated and the warrantless search incident to that unlawful arrest would violate s. 8.
21When assessing the constitutional adequacy of grounds for an arrest, a court must be satisfied that the arresting officer held an honest view that there were grounds for the arrest and that a person in the position of the officer would have reasonably believed there were sufficient grounds for the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at pp. 250-1 and R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at paras. 28-35.
22In deciding whether the Crown has discharged its burden of justifying Daley-Hyatt’s initial arrest for possession of marijuana, I have some grave reservations about Cst. Dicresce’s testimony concerning what transpired during the traffic stop. When first asked about how he had detected the odour of marijuana which led him to decide to arrest Daley-Hyatt and the two passengers, Dicresce claimed that the driver’s window had only ever been rolled down two or three inches. Then, after being a given to review a report he had typed at the conclusion of the investigation, Dicresce claimed that it was only after Daley-Hyatt had rolled his window down all the way that Dicresce was able to detect the odour of marijuana. When asked a third time in-chief, Dicresce again sought refuge in his typed report before testifying that the driver’s window had been rolled all the way down when the odour of marijuana was detected. Given that his decision to arrest the occupants of the vehicle was based entirely on his detection of that odour, Dicresce would have known that this was an essential detail. His apparent uncertainty on the positioning of the window which had provided the opportunity for him to make that observation causes me to doubt the credibility and reliability of his testimony on this particular issue.
23I am even more troubled by Cst. Dicresce’s purported belief that Daley-Hyatt was in possession of marijuana and, thus, that he should be placed under arrest. Dicresce’s belief was based entirely upon his detection of a strong odour of burnt marijuana. As Dicresce testified, he is an experienced officer with 70-80 marijuana investigations under his belt. His evidence made clear that he would have known the difference between an odour of burnt marijuana and an odour of fresh marijuana. He did not explain (nor was he asked) how the odour resulting from marijuana having been consumed would lead him to believe that there was still marijuana present in the vehicle, let alone in Daley-Hyatt’s possession. There was no evidence that Dicresce (or Petrovic) saw anything in the vehicle to link the odour from consumption with the ongoing possession of marijuana. Moreover, there was no evidence from Dicresce (or Petrovic) linking the odour of consumption to Daley-Hyatt. Neither officer testified to having detected the odour of burnt (or fresh) marijuana on Daley-Hyatt once he had exited the vehicle, nor any other physical sign that he had consumed marijuana. It defies logic that Dicresce honestly believed that while driving along the 401 Daley-Hyatt had been involved in the consumption of marijuana but yet did nothing to investigate whether Daley-Hyatt was driving while impaired by a drug, a charge far more serious than the simple possession of marijuana.
24Even were I to accept that Cst. Dicresce honestly believed that Daley-Hyatt was in possession of marijuana when Dicresce arrested him for it, the evidence does not satisfy me that this belief was reasonable in all the circumstances. The odour of burnt marijuana was the only basis for Dicresce’s putative belief that Daley-Hyatt was in possession of marijuana. Since R. v. Polashek, 1999 CanLII 3714 (ON CA), [1999] O.J. No. 968, the Ontario Court of Appeal seems to have accepted that the odour of marijuana alone will seldomly provide an objectively reasonable basis for believing that someone is in possession of marijuana: see R. v. Carvalho, [2017] O.J. No. 2720 at para. 93 (C.A.) and R. v. Barclay, [2018] O.J. No. 664 at para. 36 (C.A.). In cases where the police have relied on the detection of that odour as the basis for an arrest, the arresting officer has been able to provide an experiential link between the detection of that odour and the ongoing possession of marijuana. As I have already explained, in this case, Dicresce offered no such testimony. Moreover, unlike this case, an arresting officer’s experience has been held to be a relevant factor in determining whether grounds based upon the detection of an odour of fresh marijuana were objectively reasonable: see R. v. Gonzales, 2017 ONCA 543, [2017] O.J. No. 3437 at para. 107 (C.A.). None of the reported cases have found that the smell of burnt marijuana alone could provide an objectively reasonable basis for arresting someone for possession of marijuana.
25Furthermore, the evidence in this case shows that a reasonable person in the position of Cst. Dicresce would not have believed that the odour of burnt marijuana provided sufficient grounds to arrest Daley-Hyatt. Cst. Petrovic was in the same position as Dicresce when the two of them detected the same strong odour of burnt marijuana. Unlike Dicresce, however, Petrovic did not jump to a conclusion that Daley-Hyatt should be arrested for possession of marijuana. Instead, Petrovic continued on with the Highway Traffic Act investigation which had supposedly motivated the stop of Daley-Hyatt’s vehicle in the first place.
26I am not satisfied that the Crown has discharged its burden of proving that Cst. Dicresce subjectively believed on reasonable grounds that Mr. Daley-Hyatt was in possession of marijuana when Dicresce arrested him. By doing so, Cst. Dicresce violated Mr. Daley-Hyatt’s s. 9 Charter rights. The subsequent warrantless frisk search of him was also unjustified and therefore in violation of his s. 8 Charter rights.
b) Did the police violate Daley-Hyatt’s s. 10(b) Charter rights?
27From the testimony of the two officers, it would seem that the arrest occurred within minutes of when they had first spotted Daley-Hyatt’s vehicle on the 401 at 12:13 p.m. Daley-Hyatt was handcuffed to the rear immediately after Cst. Dicresce had told him that he and his two passengers were all under arrest for possession of marijuana. Daley-Hyatt remained in handcuffs and under arrest through until 1:07 p.m., the time that he was first informed of his rights to counsel by Cst. Petrovic. Indeed, at 12:45 p.m., Cst. Petrovic had arrested Daley-Hyatt for the additional (and more serious) charges of possession for the purpose of trafficking and assault resist arrest. Daley-Hyatt was not informed of his rights to counsel until roughly 50 minutes after his initial arrest and handcuffing, and 22 minutes after his subsequent arrest for the more serious charges.
28The officers’ testimony provides a faint suggestion that the very lengthy delay in discharging their s. 10(b) informational obligation was due to the exigent circumstances at the scene. I reject any such suggestion. Any exigencies in the situation were entirely a result of the manner by which the officers chose to process Daley-Hyatt and his two passengers. I accept that there is some basis for saying that once Daley-Hyatt began to resist the strip search, the officers had to first focus on regaining physical control over him. However, that does not excuse the delay which preceded that point in time nor the delay which followed him being secured in the cruiser. There is nothing in the evidence to explain why Dicresce or Petrovic did not inform Daley-Hyatt of his s. 10(b) rights immediately following Daley-Hyatt being handcuffed at the very beginning of the interaction. Nor is there any evidence as to why Petrovic could not have informed Daley-Hyatt of his s. 10(b) rights prior to escorting him to the rear of the building for a strip search nor after he had placed him in the rear of the cruiser. I find that the evidence in this case falls well short of the “exceptional circumstances” required to justify the police having delayed reading Daley-Hyatt the s. 10(b) warning: R. v. Mian, 2014 SCC 54, [2014] S.C.J. No. 54 at para. 74.
29I am fortified in that conclusion by the Ontario Court of Appeal’s recent decision in R. v. McGuffie, 2016 ONCA 365. McGuffie had been investigatively detained walking away from a bar because the officer had suspected he was involved with the possession of a firearm at that bar. McGuffie was handcuffed, frisked and then placed in the rear of the officer’s cruiser while the officer went back to the bar to continue his investigation. The officer returned to the cruiser approximately 30 minutes later and conducted a more thorough search of McGuffie. The search revealed some cocaine. It was then that McGuffie was arrested and, for the first time, informed of his rights to counsel. Even though the officer was in the midst of investigating reports of a firearm being seen at the bar, the Court of Appeal found that the delay in informing McGuffie of his s. 10(b) rights was unreasonable (at paras. 42 and 44):
The rights created by s. 10(b) attach immediately upon detention, subject to legitimate concerns for officer or public safety: Suberu, at para. 42. On the facts of this case, the appellant should have been told by Constable Greenwood that he had a right to speak to his lawyer no later than immediately after Constable Greenwood had handcuffed the appellant and conducted the pat-down search while standing on the street. The appellant should have been asked if he wanted to speak with counsel and, if he did, Constable Greenwood should have afforded him that opportunity without delay.
The purpose animating s. 10(b) applied with full force in this case. The appellant was under the control of the police. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser. Constable Greenwood took advantage of that control to subject the appellant to an unconstitutional detention and two intrusive unconstitutional searches, both of which yielded incriminatory evidence. The appellant was in serious legal jeopardy.
30In this case, leaving aside whether or not Mr. Daley-Hyatt would have been entitled to actually speak with counsel at the roadside, following his initial arrest he was constitutionally entitled to an immediate assurance that he had a right to consult with counsel and that he would soon be afforded that right at the station. As in McGuffie, once Dicresce had handcuffed Daley-Hyatt, he should have immediately informed him about his s. 10(b) rights. Instead, Daley-Hyatt remained in handcuffs for another 50 minutes and was forced to undergo a strip search before being informed of his right to consult counsel. In all the circumstances, I am satisfied that the police violated his s. 10(b) rights.
c) Did the “strip search” of Daley-Hyatt violate s. 8 of the Charter?
31The Crown did not seriously contest that Cst. Petrovic’s “better search” of Daley-Hyatt following the initial frisk search amounted to a “strip search” as defined by the Supreme Court’s in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 (at para. 47):
… the term “strip search” is properly defined as follows: 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, breast (in the case of a female), or undergarments.
Cst. Petrovic admitted to having lifted the rear waist bands of Daley-Hyatt’s pants and underwear in order to access what was inside Daley-Hyatt’s underwear. In the course of escorting him to the area at which he would conduct the strip search, Daley-Hyatt’s pants fell down. According to Dicresce, the strip search lasted approximately 25-30 minutes.
32In Golden, the Supreme Court recognized that the significant invasion of privacy occasioned by a strip search incident to arrest requires an added level of s. 8 Charter protection (at para. 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.
In this case, I am satisfied that Cst. Petrovic had reasonable grounds to believe it was necessary to conduct a more intrusive strip search “in the field” prior to placing Daley-Hyatt in the cruiser for transport to the station. Cst. Petrovic’s had detected a 2-3 inch hard rock like object secreted in Daley-Hyatt’s pants during the post-arrest frisk search. It seemed out of place to him. Daley-Hyatt continuously attempted to thwart Petrovic’s efforts to further examine that object. All considered, Petrovic reasonably believed that it was necessary to engage in a strip search of Daley-Hyatt in the field.
33The reasonableness of Petrovic’s belief that a strip search was necessary, however, does not end the s. 8 inquiry into the constitutional validity of that strip search. In Golden, the Supreme Court made clear that the unreasonable manner in which a strip search is conducted may also violate s. 8 of the Charter: R. v. Golden, supra at para. 99. On the evidence in this case, it is readily apparent that Petrovic made little effort to minimize the privacy impact of the strip search he was intending to conduct in the field. Escorting Daley-Hyatt to the rear of the office building in the middle of the work day did little to remove Daley-Hyatt from the view of the public. Petrovic did not consider less intrusive options, such as looking for a washroom inside the office building or directing Daley-Hyatt to lay prone across the rear seat of the cruiser while Petrovic conducted the search from outside the car. Petrovic’s intention to conduct the search in full public view was an unreasonable exercise of the exceptional authority conferred upon him. The unreasonable manner of execution was exacerbated by the fact that Petrovic persisted with the strip search in that location for 25-30 minutes.
34The manner by which Petrovic conducted the strip search was also unreasonable insofar as he failed to first inform Daley-Hyatt of the proposed strip search and the reasons for it. The Court in Golden focussed only on the s. 8 requirements for a constitutionally valid common law power to conduct post-arrest strip searches. The Court was not asked to consider what other constitutional imperatives must be respected when the police decide to subject a detainee to a strip search. As an exceptional post-arrest procedure, a strip search must also be considered a material change in circumstances for the purposes of s. 10 of the Charter. For the same reason that the Charter imposes an additional probable cause requirement on the common law power to strip search following an otherwise lawful arrest, so too does the Charter impose an additional informational requirement on that common law power.
35In my view, when the police intend to conduct a strip search, especially in the field, they must first inform the detainee of their intention to do so and the reasons for it. Given the absence of an opportunity for the detainee to immediately consult with counsel prior to the field search, this basic informational requirement would allow detainees to gain some understanding of their legal situation and thereby help minimize the number of times the police must use force to gain compliance. As the Supreme Court said in R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217 at para. 28, “[it is] a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons for that arrest”. The same can equally be said about a person having to submit to a post-arrest strip search in the field without knowing the reasons for that search. The evidence in this case shows that such an informational requirement would not create any onerous obligation on the police. Prior to being taken into the room in the booking hall to be strip searched by Dicresce and Petrovic, the booking sergeant not only informed Daley-Hyatt that he was about to be strip searched but also told him the reasons why the police believe such a search was justified.
36In this case, prior to subjecting him to the strip search at the scene, Petrovic did not explain why he was taking Daley-Hyatt to the rear of the office building. Petrovic also did not provide Daley-Hyatt with any clear statement of the grounds which led Petrovic to believe that a strip search in the field was necessary. Daley-Hyatt expressed his concern about Petrovic’s authority to conduct such a search before Daley-Hyatt started to physically resist. In the circumstances of this case, I find that the failure to properly inform Daley-Hyatt of the nature and reasons for the strip search in the field contributed to the unreasonable manner in which it was conducted.
d) Should the evidence be excluded pursuant to s. 24(2) of the Charter?
37My decision of whether to exclude the seized evidence flows from a consideration of the three factors articulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; namely, (1) the seriousness of the violation(s), (2) the impact of the violation(s) on the Charter protected interests, and (3) the public’s interest in an adjudication of the case on its merits.
38First, I find that the Charter violations in this case, in their totality, were on the more serious end of the spectrum:
a. The fact that there were multiple violations in this case evidences a larger pattern of disregard for the Charter: see R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215 at para. 51. As I have already said, following an initial unlawful arrest, the police then unreasonably delayed providing Daley-Hyatt with his rights to counsel. During that delay, the police forced him to submit to a strip search which they unreasonably conducted in open view of the nearby public. When Daley-Hyatt was eventually transported to the police station, rather than prioritizing his access to counsel (which he had already been delayed), the police subjected him to a second more intrusive strip search. The persistent pattern of rights violations shows that the police involved in this case were not concerned with honouring their Charter obligations.
b. For the reasons set out above, I do not accept that Cst. Dicresce honestly believed that detecting the odour of burnt marijuana provided a lawful basis to arrest Daley-Hyatt for possession of marijuana. Dicresce is an officer with 11 years of experience, including dozens of marijuana arrests. Even his junior partner, with only 8 days experience, knew that the law required more than just that to make such an arrest. In other words, I infer that Dicresce recklessly disregarded the probable grounds requirement for making an arrest in these circumstances.
c. In any event, I have also found that Dicresce’s putative grounds for the arrest were not objectively reasonable. The lack of objectively reasonable grounds for an arrest has long been recognized to be a more serious violation of s. 8: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 24.
d. As the Supreme Court recognized in R. v. Mian, supra (at para. 83), the lack of causal connection between a s. 10(b) breach and the discovery of evidence does not determine whether that breach ought to be considered “serious” for the purposes of s. 24(2): “the first line of inquiry in the Grant analysis is concerned with the police conduct, and is not focused on the connection or lack thereof between the police conduct and the evidence”. Although I do not believe that the excessive delay in discharging their immediate s. 10(b) information obligation was deliberate, the lack of any credible explanation for much of the 50-minute delay satisfies me that Dicresce was once again reckless in not complying with the Charter.
e. While there is no evidence that the breaches in this case were a function of any systemic failing, the fact that Cst. Dicresce recklessly violated ss. 8, 9 and 10(b) of the Charter while he was in the midst of training Cst. Petrovic enhances the need for this court to dissociate itself from Dicresce’s infringements.
f. Conversely, Cst. Dicresce’s failure to adequately supervise Cst. Petrovic’s execution of a strip search in the field also aggravates the resulting s. 8 violation. Dicresce testified that, when they arrived at the station, he assumed responsibility for making a request of the booking sergeant for a strip search (i.e., a “detailed search”) because Dicresce knew that Petrovic was not yet familiar with the legal requirements to justify such a request. If Dicresce knew that Petrovic was unfamiliar with the legal requirements for a strip search at the station, he must have known that Petrovic would have been equally unfamiliar with the more rigorous legal requirements involved for conducting a strip search in the field.
39The seriousness of the Charter violations in this case weighs heavily in favour of exclusion.
40Second, in terms of the impact of the Charter breaches, the consequences to Mr. Daley-Hyatt of the first s. 8 violation were dramatic. Despite the relatively minor nature of the charge for which he was initially arrested, Mr. Daley-Hyatt was immediately removed from his vehicle and handcuffed behind his back. This ultimately led to him being strip searched in public which, in turn, led to him being physically subdued by the police at the scene. As the Supreme Court said in Grant (at para. 78): “[a]n unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy … is more serious than one that does not”. The unreasonable searches in this case impacted Mr. Daley-Hyatt’s personal privacy and bodily integrity, interests which are central to s. 8 of the Charter.
41I find that the Court of Appeal’s description of the impact of the unlawful arrest in McGuffie is apposite to this case:
The serious negative impact of the Charter breaches on the appellant’s Charter-protected interests also compels exclusion. None of the Charter breaches could be characterized as technical or minor. The appellant’s arbitrary detention effectively negated his personal liberty. Not only was he imprisoned, but he was imprisoned in a manner that left him vulnerable to further police misconduct. The police took advantage of the appellant’s arbitrary detention to unlawfully search the appellant. That conduct led directly to the discovery of incriminating evidence. The strong causal connection between the denial of the appellant’s liberty, the unconstitutional search of his person and the subsequent obtaining of the incriminating evidence speaks to the profound impact of the breaches on the appellant’s Charter-protected interests.
In short, like in McGuffie, but for the arbitrary detention arising from Daley-Hyatt’s initial unlawful arrest, the police would never have subjected him to any of the intrusive physical searches which led to the discovery of incriminating evidence on his person. The impact of the s. 9 Charter breach was profound.
42Although there was minimal impact to his right against self-incrimination from the police violating his s. 10(b) rights, I find that the significant impact of the ss. 8 and 9 violations supports exclusion of the evidence.
43Finally, I must factor in that the drugs seized are reliable evidence which is indispensable to the Crown’s case on serious charges. This third factor would tend to favour admission, not exclusion, of the evidence. However, in Grant, the Court cautioned against the s. 24(2) analysis becoming overwhelmed by consideration of the seriousness of the offence (at para. 84):
The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
44In this case, the third factor does weigh against exclusion. However, given that the other two factors weigh strongly in favour of exclusion, the long-term repute of the administration is best served by exclusion: see R. v. McGuffie, supra at para. 63. The court cannot be seen to excuse multiple serious Charter violations which significantly impacted the interests those Charter rights were meant to protect. Indeed, at this stage of our country’s legal history, the court cannot possibly condone the police running roughshod over the Charter because they smell the odour of burnt marijuana. The evidence of the items seized from Mr. Daley-Hyatt will be excluded.
Conclusion
45In view of my decision to exclude all of the seized evidence under s. 24(2) of the Charter, I need not address Daley-Hyatt’s argument concerning whether the evidence of the bag breaking open in the search room satisfies the actus reus and mens rea for administering a noxious substance. The exclusion of the evidence concerning the alleged substance is enough to raise a reasonable doubt on that charge.
46Given my finding that the original arrest was unlawful, Daley-Hyatt must also be acquitted on the charge of assault resist arrest. In any event, the discrepancies in the testimony of Cst. Dicresce and Cst. Petrovic about whether Daley-Hyatt actually applied force to either of them while he was squirming and flailing on the ground during the strip search would have left me with a reasonable doubt on this count.
47As for the four charges of possessing a controlled drug for the purposes of trafficking and the charge of possessing proceeds of crime, the exclusion of the seized items must result in acquittals.
48Finally, for the same reasons that Mr. Daley-Hyatt has been acquitted of all the above-noted charges, the charge of failing to comply with probation must also be dismissed.
49Mr. Daley-Hyatt is found not guilty of all charges.
Released: “October 15, 2018”
Signed: Justice Paul Burstein