R. v. Martin, 2021 ONCJ 82
Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DARHYN MARTIN
Before Justice Mara Greene
Reasons for Judgement released February 10, 2021
E. Lo Re and V. Fedorchuk………………………………………………………for the Crown
J. Casey …………………………………………………………………………..for Ms. Martin
M.B. Greene J.:
1Ms. Martin was arrested on August 14 for robbery, break and enter and uttering threats. At the time of her arrest, she was allegedly carrying a black satchel that contained fentanyl and cocaine. Upon discovering the narcotics, Ms. Martin was also arrested for possession of cocaine and fentanyl for the purpose of trafficking. Ms. Martin is presently before me on the latter set of charges only. Ms. Martin seeks a stay of this proceeding of her drug charges due to a breach of her section 7 rights. The basis for this argument is that the police failed to secure video footage of Ms. Martin from August 12 and August 14. If a stay of proceedings is not granted, Ms. Martin seeks an order excluding the narcotics seized from the bag at the time of her arrest. Counsel for Ms. Martin argued that Ms. Martin’s section 8 Charter rights were violated when the arresting officer seized her bra and had a civilian police employee present during the strip search. Crown counsel took the position that there were no Charter violations in this case and us such no remedy should be granted.
Section 7 of the Charter
(i) Summary of the relevant evidence
2On August 10, 2019 after receiving a complaint in relation to a B&E/home invasion, Officer De Gurra started to investigate Ms. Martin. He quickly discovered that that Ms. Martin resided at 7 Capri Road in Toronto. He attended at that address on August 10 to confirm that Ms. Martin resided there. As part of his investigation, the Toronto Housing staff allowed Officer De Gurra access to their video footage from the elevators and lobby of the building. Officer De Gurra was able to confirm that Ms. Martin resided at that address and ordered a copy of the video footage from that date. Officer De Gurra returned to 7 Capri Road on August 12, this time armed with a search warrant. He again was permitted access to the video footage from the elevator and lobby in order to determine if Ms. Martin was present. Officer De Gurra testified that Ms. Martin was in the building that day but not when he was present. She was not arrested on this date and the officer did not order the video footage from this date.
3On August 14, 2019, Officer De Gurra and a number of other officers attended again at 7 Capri Road with the intention of arresting Ms. Martin on the charge of Break and enter and robbery. They were also going to execute a search warrant at her address. Again officer De Gurra was granted access to the video footage from portions of the building. Officer De Gurra saw Ms. Martin on the video feed and took screen shots of some of his observations. He failed to order a copy of the video footage from this date.
4Eventually, Ms. Martin was seen entering the elevator from her unit and going to the lobby where she walked towards a taxi. She was in the company of two males at the time. Officers attended and arrested Ms. Martin before she could leave the area. As noted above, it is alleged that Ms. Martin was carrying a black satchel at the time. This satchel was seized and searched by officer Featherstonhaugh who found some fentanyl in the satchel. Officer Featherstonhaugh handed the satchel over to Officer De Gurra and then transported Ms. Martin to the police station.
5Later that day, other officers took a closer look at the contents of this black satchel and a quantity of cocaine was found.
6Ms. Martin retained counsel who received the disclosure in this matter months after Ms. Martin’s arrest. Counsel for Ms. Martin requested a copy of the video footage from August 12 and August 14 and in particular the video footage linked to the screen shots in officer De Gurra’s notes. Crown counsel was unable to provide this material to Ms. Martin’s counsel because it was destroyed two weeks after her arrest. Officer De Gurra explained at trial that Toronto housing only retains the video footage from their buildings for 14 days. Since he failed to order a copy of the footage within this time frame, it was not preserved. Officer De Gurra further testified that if had he asked for a copy of the videos with that time frame they would have been provided to him.
7Officer De Gurra was questioned extensively about his failure to order a copy of the videos from August 12 and 14. The officer testified that at the time he did not turn his mind to their potential relevance, although he did take screen shots of some of what he saw on the video on the 14th. These screen shots were filed with court as part of the Applicant’s application record on the Charter motion but were not admitted as evidence at the trial proper. In one of the screen shots from 3 a.m., Ms. Martin can be seen carrying a black purse over her shoulder and across her chest. I note that the Crown has undertaken not to rely on any of the screen shots at trial or to present any evidence about what officer De Gurra saw on the videos.
8Officer De Gurra testified that in retrospect he should have ordered the videos as they could have shown whether Ms. Martin was in possession of the black satchel prior to her arrest. It was his opinion that he made a mistake by not ordering the video.
(ii) General Legal Principles
9Section 7 of the Charter includes the right to make full answer and defence. Included in this protection is an obligation on the state to preserve and disclose all potentially relevant evidence to the defence. The collection of evidence is a human process and as such there are occasions were evidence is lost or destroyed. Where this occurs, the Crown must explain why this happened. If the evidence was lost or destroyed because of unacceptable negligence, there will be a breach of the duty to disclose (R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680; R. v. F.C.B., 2000 NSCA 35 and R. v. Bero, 2000 16956 (ON CA), [2000] O.J. No. 4199 (CA) at paragraph 30).
10In assessing whether there has been unacceptable negligence, the burden lies with the Crown to provide an explanation for the loss of the evidence. Factors the court can consider include whether the evidence was perceived to have been relevant at the time and whether the police acted reasonably in attempting to preserve it (R. v. Bero at para 30).
11Where the loss of evidence does not rise to the level of a breach of the duty to disclose because the evidence was not lost due to unacceptable negligence, the court must then consider whether the loss of evidence has prejudiced the defendant’s ability to make full answer and defence such that it has impaired her right to a fair trial.
(iii) Was there an obligation to preserve the videos?
12Crown counsel argued that the applicant’s argument fails for a number of reasons the first of which is that the videos were never in the control of the police and as such their destruction is not due to police negligence. As I understand it, the videos belong to Toronto community housing. The police are given liberal access to the videos at both the apartment buildings and the main office, but the police cannot record them on their own. Instead, they must request a copy from the security staff. Crown counsel argued that while Toronto housing will provide the videos to the police upon request, until such a request is made the videos remain in the possession of a third party and not the police.
13I appreciate that in the ordinary course material not in the possession of the police is viewed to be outside their control. I also appreciate that there is no duty on the police to seize material from third parties or investigate in a manner suggested by the defence. Having said that, in the case at bar, I am satisfied that the videos from August 12 and 14th were effectively in the control of the police. Officer De Gurra knew about the videos, was able to rewind, fast forward and pause the videos as he saw fit. In other words, he could manipulate the videos in every way except one – that is to copy them. While he could not copy them himself, all he had to do to obtain a copy was ask. I further note that Officer De Gurra was fully aware of the relatively short retention period for these videos. In light of all these factors it is my view that if the videos were relevant, the officers had an obligation to retain them.
(iv) Were the videos lost due to police negligence?
14Once it is established that evidence has been lost, the burden shifts to the Crown to explain the loss. In the case at bar, Officer De Gurra testified that at the time that he was watching the videos, he was looking at them to determine if Ms. Martin was in the building as they were attempting to execute a search warrant and arrest her on the robbery/B&E charges and television theft charges. Officer De Gurra readily admitted that he ought to have ordered a copy of the video from August 9 as this was the date of the alleged television theft. The video from the building would have shown whether Ms. Martin returned with the television. While this is important if or when Ms. Martin’s B&E trial proceeds, it is not relevant to this case. In relation to August 12 and 14, Officer De Gurra only watched the video footage to determine Ms. Martin’s presence in the building. He did not readily see the potential evidentiary value of the videos at the time, though he did take some screen shots of Ms. Martin on the video. By the end of his evidence, Officer De Gurra conceded that he made a mistake when he failed to secure the video footage from August 12 and 14 as this could potentially assist in determining whether Ms. Martin or someone else was in possession of the satchel where the drugs were located.
15In R. v. Bero, supra, the Court of Appeal held that an officer’s failure to consider the needs of the defence before destroying evidence was not acceptable (R. v. Bero, supra, at paragraph 39). The court stated “…the failure to preserve the vehicle was caused by the failure to look beyond the needs of the prosecution to the wider question of the potential relevance of the vehicle to the defence. Had anyone directed their mind to the disclosure obligations set out in Stinchcombe, supra, I think the vehicle would have been preserved”. Counsel for Ms. Martin argues that the same reasoning applies here since Officer De Gurra failed to consider the potential usefulness of those videos for the defence.
16Despite counsel’s very able advocacy, I respectfully disagree that this case is similar to that of Bero. In the case at bar, at the time the officer was viewing the video he did not turn his mind to how the evidence might be helpful to the defence on a charge of possession of narcotics because at that time she was not being investigated for this offence. It was only after her arrest that the drugs were found. Officer De Gurra at that point was still investigating the B&E which included the execution of the search warrant at Ms. Martin’s residence. I appreciate that in the aftermath of the search, officer De Gurra was well aware of the drug charges and as such it was incumbent on him to consider what evidence ought to be secured for both the Crown and the defence, however, in my view the videos from the building are not so obviously relevant that the officer ought to have turned his mind to them. The information he had was that Ms. Martin was wearing a black satchel at the time of her arrest and drugs were found in it. The potential relevance of video footage that may or may not have shown whether someone else was carrying a similar looking black satchel at an earlier time is understandably not readily apparent. Contrast this to the facts in Bero, where Mr. Bero was charged with a driving offence related to a car accident and the police failed to retain the vehicle for inspection by the defence. It is easily foreseeable that the defence may want to determine if the accident was caused by a mechanical malfunction.
17Counsel for Ms. Martin argued that the fact that Officer De Gurra took screen shots of what he saw on the video footage is evidence that the officer knew the footage was relevant. Respectfully, I disagree. At the time he took those screen shots, he did not know that Ms. Martin was going to be charged with possession of a narcotic so to the extent that the video was relevant at that point in time, the screen shots were not taken in order to help prosecute the drug charges that are presently before the court. While officers are required to turn their mind to the potential value to the of evidence to the case as a whole and not just the prosecution before destroying it (or failing to preserve it), it is my view the nature of the lost evidence in this case is not such that the failure to preserve rises to the level of unacceptable negligence.
(v) Does the loss of evidence impact Ms. Martin’s ability to make full answer and defence?
18Even where the loss of evidence does not rise to the level of unacceptable negligence, there will be still a violation of section 7 of the Charter if the lost evidence impairs Ms. Martins’ ability to make full answer and defence. Like in the case of R. v. Bero, had the police preserved the video tapes they may or may not have provided exculpatory evidence. In other words, the lost evidence while possibly advantageous to the defence, it could equally have been adverse or neutral to the defence position. To that end, I note that in at least one screen shot Ms. Martin appears to be wearing a black bag in the same manner as when she was arrested. Unlike in R. v. Bero, in the case at bar, the Crown has undertaken to i) not rely on the screen shots at trial; ii) not lead any evidence to suggest that Ms. Martin was in possession of the black satchel at any point in time other than the time of her arrest; and, iii) not present any evidence that other persons were NOT in possession of the black satchel at an earlier point in time. I am mindful that this is not the same as having positive evidence that someone else was carrying it, but it does provide some protection to her ability to make full answer and defense.
19At this stage, I am unable to conclude that Ms. Martin’s ability to make full answer and defence has been hampered by the loss of video tapes. Having said that, I am mindful that a true assessment of the loss of the evidence on Ms. Martin’s ability to make full answer and defence cannot be truly understood until all the evidence, including defence evidence has been heard. I therefore invite counsel to re-address this aspect of the section 7 argument after the remainder of the evidence is heard.
Section 8 of the Charter
20Ms. Martin, after her arrest, was taken to the police station where she was subjected to a strip search. Officer Featherstonhaugh was the officer who conducted the strip search along with a female civilian police employee. During the search, Ms. Martin was told to remove her bra. When Officer Featherstonhaugh returned her clothes to Ms. Martin, the officer refused to return Ms. Martin’s bra. It is the retention of Ms. Martin’s bra coupled with the presence of a second person during the strip search that Ms. Martin argues violated her section 8 rights.
21Unlike many other strip search cases, Ms. Martin does not take issue with the lawfulness of the actual strip search. She conceded at trial that given the nature of the charges, the fact that she was going to be held for a show cause hearing, and the officer’s concern that she had potentially ingested some drugs due to her slow responses was a sufficient basis to justify the strip search in this case. For a s search to be lawful, however, it must also be conducted in a reasonable manner. Counsel for Ms. Martin argued that the retention of the bra and the presence of a second person during the search was not reasonable. Crown counsel argued that the police were justified in keeping Ms. Martin’s bra for safety reasons. Moreover, there was nothing improper with having a second police employee present during the search.
(i) Summary of the Relevant Evidence
22Ms. Martin was arrested at 1:20 p.m. for a home invasion/break and enter and uttering threats. At the time of her arrest, the police found some fentanyl in a satchel she was allegedly carrying. Ms. Martin was taken to the police station where she was paraded and strip searched. During the parade Ms. Martin appeared to be slow to respond and was blinking slowly. This caused Officer Featherstonhaugh to think that perhaps she had consumed drugs but when asked, Ms. Martin denied having any drugs in her system.
23Sometime later, the satchel, which was seized from Ms. Martin at the time of her arrest, was examined in more detail and the police found a further quantity of cocaine. This latter search appears to have taken place sometime after Ms. Martin was strip searched. As I understand the evidence, Ms. Martin was strip searched at approximately 2:30 pm and the cocaine was found at approximately 5:30 pm.
24Officer Featherstonhaugh testified on the Charter application that she had no notes of what actually occurred during the strip search other than that a female police civilian employee joined her for the strip search. It is the officer’s practice to always have a second person with her when conducting a strip search. As no female officer was present, she enlisted the services of a female police civilian employee.
25In relation to her notes, the officer testified that she does not take notes of an uneventful strip search. It was her practice to only note in her memo books unusual events. As a result of this less than satisfactory note taking practice, Officer Featherstonhaugh has no notes of what took place during the strip search. She also had no memory of what took place during the strip search. Instead, she was only able the tell the court what her normal practice is and that she knows she did not deviate from this practice because she made no notes.
26According to Officer Featherstonhaugh at the time of the strip search she would have asked Ms. Martin to remove the top half of her clothing first, the clothing would be searched and all the clothing, except for her bra would be returned to her. Ms. Martin would then be asked to remove the bottom half of her clothing. These clothes would be searched and then returned to her. Officer Featherstonhaugh had no recollection of what happened with Mr. Martin’s bra, however, she did explain that in every case where a woman is being held for a show cause hearing and that woman is wearing a bra with an underwire in it, the female arrested party is given the choice of the having the bra returned with the underwire removed (in other words destroying the bra) or having the intact bra placed with her property. It was Officer Featherstonhaugh’s personal policy to not let women keep bras with underwires in them when they are being held for a show cause hearing. Officer Featherstonhaugh testified that this is her policy because it is her belief that the underwire can be removed from the bra and made into a weapon. As Ms. Martin’s bra was seized by the officer, it was her belief that Ms. Martin must have chosen to have the officer keep it instead of destroying the bra by ripping out the underwire. Ms. Martin was not provided with a replacement garment. The strip search concluded at approximately 2:30 p.m.
27At 5:30 p.m., Ms. Martin was found unresponsive in her cell and taken to the hospital. No evidence was presented about what occurred after she was taken to hospital.
28Ms. Martin did not testify on the Charter application.
(ii) The Removal and Seizure of the bra
(a) Relevant Legal Principles
29In my view the issue raised in the case at bar is somewhat novel. While there is a growing body of case law condemning the removal of a woman’s bra when a strip search would otherwise not be warranted, there is no case law that I could find where the issue of the lawfulness of the retention of a bra after a lawful strip search has been explored. The authorities addressing bra removal where a strip search was not warranted, however, do provide some helpful guidance on the issue I am being asked to address here.
30Fifteen years ago in R. v. P.F.G., 2005 BCPC 187, the British Columbia Provincial Court addressed the lawfulness of seizing the bra of an arrested female young person. In that case, the officer had not even turned his mind to whether a strip search was necessary. Instead, the bra was removed and retained as a matter of routine policy because the bra had an underwire in it. In finding that this was an unlawful strip search, the court held that the search was unlawful in part because it was done as a matter of routine policy without any specific consideration to individual circumstances as is required in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. The court stated at paragraphs 41 through 43 of R. v. P.F.G.,
41When I apply the law as set out in Golden to the case at bar, I find that the actions of Constable Redlich, in requiring this Accused to remove her brassiere pursuant to general policy, constituted a strip search of the Accused. I find that such a strip search was unreasonable for the following reasons:
A request of a female youth, from a First Nations background, to remove her brassiere, made by a male police officer, in the proximity of another male officer, is a situation which a reasonable and objective observer would perceive to be frightening, humiliating, and threatening to the young person, likely to make that young person feel as if her bodily integrity is being violated;
The request was not made for the purpose of searching for a concealed weapon or for evidence pertaining to any offence for which the Accused was arrested;
The search can not be justified by reason of the application of a general policy; the law requires that there must be something specific to this Accused which justifies this type of a search (e.g. known suicidal tendencies on the part of an accused). This is particularly so where the detention is of short duration, as in this case.
42In finding this practice to be unreasonable, I am mindful of the difficult position that police officers who lodge prisoners in cells often find themselves in. There have been unfortunate incidents when prisoners have committed suicide inside of a cell, using what might have been previously thought an apparently harmless item of clothing. When this happens, there is no shortage of those with 20-20 hindsight who point accusatory fingers at jailors for lacking the clairvoyance to predict and prevent the tragic event. Often civil litigation or administrative review ensues.
43No doubt the general policy of which Constable Redlich testified was designed to head off such incidents as a well-intentioned method of preventing any future prisoner suicides. The difficulty is that general "one size fits all" policies or zero-tolerance policies are blunt instruments which can often cause other significant problems. These policies may, as in this case, lead to vulnerable persons experiencing legitimate feelings of violation at the hands of a powerful system that can seem to them to be unjust and bullying. These policies can also contribute into an atmosphere in which classes of prisoners such as members of First Nations are belittled and degraded.
31In R. v. Lee, 2013 ONSC 1000, eight years after the police in British Columbia were criticized for having a blanket policy that called for the removal of all underwire bras from women detained in custody, Justice Fuerst was faced with the same issue. Like the trial judge in R. v. P.F.G., Fuerst J. concluded that Ms. Lee’s rights were violated when she was subjected to a strip search through the removal of her bra due to a police policy. In commenting on this breach, Fuerst J. also questioned the reasonableness of this policy and its discriminatory impact on women. Fuerst J. stated at paragraphs 44 through 46,
44Even if the trial judge’s reasons are understood to mean that she considered that the police had reasonable and probable grounds to justify the strip search once the pat-down search yielded discovery of the underwire bra, she erred by failing to consider the reasonableness of a police policy that characterizes every underwire bra as a potential weapon.
45The trial judge agreed with the analogy advanced by Crown counsel, that there is no difference between two rigid pieces of metal wire whether in an arrestee’s pocket or in her bra. That analogy was not supported by the evidence in this case. Sergeant Robertson acknowledged that the wiring in an underwire bra is sewn into the bra itself, and that in order to remove it, a woman would have to unstitch the bra. Wearing an underwire bra is not tantamount to carrying two wires loose in a pocket, where they are immediately accessible to the wearer. Further, Sergeant Robertson and Constable Martin were asked, but could not identify any occasion when a female prisoner used or attempted to use the wiring from her bra to injure herself, police officers or other prisoners, or for that matter to damage a cell. Nor was there evidence that the unwritten police policy, which according to Sergeant Robertson had been in effect in his district for over 20 years, was re-evaluated after release of the decision in Golden. To the contrary, it seems that it was not.
46The trial judge also did not consider the appropriateness of an unwritten police policy that leads to potentially differential treatment of female and male arrestees, with female arrestees wearing underwire bras being automatically and without exception subjected to a form of strip search.
32In an article written by Michelle Pusutka and Elizabeth Sheehy, Strip-Searching of Women in Canada: Wrongs and Rights, Canadian Bar Review, vol. 94 No. 2, 2016 Docs 152, this notion of gender discrimination in strip searches was explored in more detail. After reviewing a significant number of cases, the authors noted that there is a “preoccupation with women’s bras being fashioned into weapons or otherwise posing safety concerns” by the police (at page 256). The authors went on to note that policy’s around women’s undergarments “subject women to a different standard of grounds for a strip search than men based on their undergarments”. In my view, the obvious difference in treatment between men and women arrestees must be considered when assessing the legitimacy of Officer Featherstonhaugh’s usual practice and her actions in this case.
(b) Analysis
33A search is reasonable and not in violation of section 8 of the Charter, where the search is authorized by law and if the manner in which it is carried out is reasonable (R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 at paragraph 23). In the case at bar, counsel for Ms. Martin conceded that the search itself was reasonable in that there were sufficient grounds to justify a strip search which would include removal of the bra. Counsel argued, however, that the manner of the search was unreasonable because Officer Featherstonhaugh failed to return the bra to Ms. Martin. For the reasons that follow, I agree with counsel on this point.
34Typically, when manner of search is raised in strip search cases it relates to the way in which the search is conducted as opposed to the retention of the clothing. This does not mean that unreasonable post search seizures are not captured under this aspect of the section 8 jurisprudence. I am satisfied that where clothing is seized during a strip search, it speaks to the manner of the search and can turn what started out as lawful search, unlawful. I am mindful that the bra, while taken away from Ms. Martin was not seized in the typical sense of the word in that the police did not retain it. Instead it was placed in Mr. Martin’s property bag. Ms. Martin was nonetheless deprived of her necessary undergarment as it was placed in a location where she could not access it until she was released from custody. I also appreciate that she was given the option of having the bra returned, albeit only after the officer destroyed it by removing the underwire. In my view, the fact that the officer gave Ms. Martin this choice is irrelevant to whether a breach occurred. Ms. Martin did not voluntarily consent to the seizure of her bra. Her choice was to relinquish the bra or have it destroyed. In these circumstances her decision to relinquish the bra cannot be viewed as consent to have it taken away.
35Crown counsel sought to justify the seizure of Ms. Martin’s bra on the basis that it was necessary to protect Ms. Martin and others. Counsel argued that this was specifically addressed in R. v. Golden, supra when the court stated, “We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment”. Since Ms. Martin was going to be held for a show cause hearing, she would eventually be placed with other inmates and as such safety issues were heightened. To the extent that the bra could be made into a weapon, safety measures demanded that it be seized. I see three problems with applying this holding from R. v. Golden to the case at bar. Firstly, while the officer personally believed that the underwire could be fashioned into a weapon, there is no evidence as to the basis for her belief or whether or not it is reasonably true. I note that there was no evidence before me as to what kind of wire was in Ms. Martin’s bra. There is no uniformity in the material used to construct the wire in underwire bras. Some are plastic and some are steal. Surely the potential harm associated with an underwire bra may be impacted by the material used to create it. Moreover, the wire is stitched into the bra. No evidence was presented about how difficult or easy it is to remove this underwire, especially when Ms. Martin had no tool to help take out the stitching in her bra and remove the underwire. Finally, as noted by Fuerst J. in R. v. Lee, there is no evidence that the underwire in a bra has ever been used as a weapon.
36The second problem that I see with the Crown’s argument is that the issue in this case was not the fact of the search, but the retention of the bra absent any evidence that the wire was a real safety hazard and where Ms. Martin was not provided a replacement undergarment. In R. v. Golden, the court identified that safety issues at play that would justify a strip search prior to being placed with other inmates. Thirdly, while in Golden the Supreme Court of Canada indicated that different considerations apply when an arrestee is being placed in prison population, the court still maintained the need for individual considerations as opposed to routine policies.
37In my view, the officer failed to consider the specific circumstances in this case. Instead she relied on her own personal policy. A policy that is not supported by any evidence and appears to be nothing more than a discriminatory practice that causes additional hardship to women held in custody. Moreover, even if there was some justification for seizing the bra, the failure to provide a replacement undergarment is not acceptable. In my view Ms. Martin’s section 8 rights were violated when the officer seized her bra and failed to provide a replacement bra and thereby deprived her of her necessary undergarment.
(iii) The presence of a second person at the strip search
38As previously stated, Office Featherstonhaugh asked a female civilian employee to accompany her during the strip search. The officer testified that it is her practice to always have a second person in the room when conducting a strip search. As no female officer was present, she asked a female civilian employee to assist. In R. v. Golden, supra, the court identified best practices for strip searches. One of the factors listed is that number of officers present should be no more than is reasonably necessary in the circumstances. In the case at bar, the officer concluded that she required a second person present. I have no basis to find that this was unreasonable in the circumstances. The strip search was otherwise conducted in private, at the police station. Ms. Martin was never fully naked, she was given the opportunity to remove the clothing herself and the strip search was completed expeditiously. I cannot find fault in this aspect of the strip search.
Section 24(2) of the Charter
39Pursuant to section 24(2) of the Charter evidence obtained in a manner that breaches the Charter will be excluded if its admission into evidence would bring the administration of justice into disrepute. In determining whether the evidence should be excluded the court is to consider the seriousness of the Charter breach, the impact of the breach on the Applicant’s Charter protected interests and society’s interest in the adjudication of the case on its merits (See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353).
40In the case at bar, counsel seeks exclusion of the narcotics found in the black satchel. The discovery of the narcotics is somewhat removed from the strip search in that narcotics were not located during the strip search. The narcotics would have been located with or without the strip search. In R. v. Pino, 2016 ONCA 389, however, the Court of Appeal confirmed that in determining whether a remedy can be provided under s.24(2) of the Charter, the court need not find a causal link between the discovered evidence and the breach. A strong temporal link is sufficient. I am satisfied that there is a sufficient temporal link between the discovery of the narcotics and the section 8 breach that 24(2) applies in this case.
(i) Seriousness of the breach
41There is no suggestion in the case at bar that Officer Featherstonhaugh was acting maliciously when she chose to retain Ms. Martin’s bra. In her mind, this is just her regular practice. It was her view that underwire bras are dangerous and she was not going to allow any woman held in custody keep an underwire bra. What is aggravating about this breach is the fact that officer Featherstonhaugh’s personal policy of taking away all female detainee’s underwire bras effectively treats women differently from men. It ensures that all women are deprived of an essential undergarment upon their detention while men do not face a similar deprivation. Given the absence of evidence supporting this differential treatment it is easily viewed as discriminatory. Moreover, if this was officer Featherstonhaugh’s usual practice, one would expect that replacement clothing would be made available to reduce the discomfort and humiliation of having to remain braless while in custody. All these factors make this a relatively serious breach.
42On the other hand, while there is an abundance of case law denouncing police engaging in a strip search for the sole reason of taking away a woman’s underwire bra and there is an abundance of case law prohibiting officers from engaging in a strip search because of some routine policy, there is no authority on the appropriateness of retention of a bra after a lawful strip search. While it is common sense to me that depriving a woman of a necessary undergarment requires some thought to whether it is necessary for public or individual safety, I appreciate that it may not be as obvious to others. This is not a case where there was clear authority that the officer ought to have known about at the time of the search. In light of this reality this prong militates slightly in favour of inclusion of the evidence.
(ii) Impact of the Charter infringing conduct
43In assessing the impact of the breach on the interests that the Charter right is meant to protect, it is necessary to consider what took place after the bra was seized. As I understand the evidence, the strip search took place at 2:30 pm. At 5:30 pm Ms. Martin was taken to hospital after she was found unresponsive in her cell. I have no information about what happened to Ms. Martin thereafter except that she was eventually placed on a release pending her trial. I do not have any evidence of whether she remained braless at the hospital or after her release from the hospital. I do not know if she was brought to court missing this undergarment or if she had to attend the courtroom without her bra. Nonetheless it is my view that this prong militates in favour of exclusion of the evidence. It is well recognized that strip searches are degrading and humiliating. Failing to allow a woman to wear a necessary undergarment while she remains in custody and is brought to court furthers this humiliation that arises from the fact of the strip search. In R. v. Golden, the Supreme Court of Canada noted that strip searches, even conducted in the most humane way possible can still be traumatic and humiliating. To then take away what many women consider to be an essential undergarment only serves to prolong the harm associated with strip searches. Given these realities, while I appreciate that I do not know how long Ms. Martin was personally deprived of her bra, it is my view that it is important not to minimize the impact of depriving women of necessary under garments. I therefore find that this prong militates slightly in favour of exclusion of the evidence.
(iii) Interest in trial on its merits
44This prong strongly favours admission of the evidence. Ms. Martin is charged with possession of very dangerous narcotics for the purpose of trafficking in those narcotics. These are very serious offences and that go to the heart of public safety, in particular the charge relating to the possession of fentanyl for the purpose of trafficking. Moreover, the Crown’s case will surely fail if the evidence is excluded. When I balance all three of these factors, I am satisfied that the administration of justice will not be brought into disrepute if the evidence is admitted at trial. The application is therefore dismissed.
Released February 10, 2021
Justice Mara Greene