Warning

The court hearing this matter directs that the following notices be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2025-01-28
COURT FILE No.: 998 22Y 8210910

BETWEEN:
His Majesty the King
— AND —
J.F., a young person & S.S., a young person

Ruling on Charter Application – Lawfulness of Youth Strip Searches

Before Justice David S. Rose
Heard on September 5, 6, October 1, December 4, 17, 18, 19, 2024
Reasons for Judgment released on January 28, 2025

Counsel for the Crown: Ms. Humphrey, Ms. Di Filippis, Ms. Guirguis
Counsel for accused J.F.: Ms. Morphew, Ms. Symes
Counsel for accused S.S.: Ms. Lau-Po-Hung

Overview

1J.F. and S.S. pleaded guilty before me to charges arising from the swarming and ensuing death of a homeless man, Kenneth Lee, in the early morning hours of 18 December 2022. J.F. and S.S. were in a group of 8 at the time. Both pleaded guilty after a Preliminary Hearing. J.F. was committed for trial on the charge of second degree murder but pleaded guilty on June 24, 2024 to manslaughter. S.S. was committed for trial on the charge of manslaughter but pleaded guilty on June 4, 2024 to the charges of Assault Causing Bodily Harm and Assault with a Weapon. On those days each admitted to the factual and legal requirements of each offence. Each testified under oath and confirmed that they were admitting to the elements of the offence they had pleaded guilty to. Accordingly, each was found guilty of each offence.

2After entering the guilty pleas both J.F. and S.S. filed Applications alleging Charter infringements and to stay the charges because they were strip searched while being confined after arrest.

3This ruling follows the sentencing hearings for two of the other participants: M.J. and A.B., which are found at R. v. M.J., 2024 ONCJ 455, and R. v. A.B., 2024 ONCJ 486. Four of the group are still before the Superior Court awaiting trial and for that reason I would limit my discussion of their involvement.

4The Charter Applications for J.F. and S.S. proceeded together because there is a commonality to the facts alleged in their Charter Applications. Because of this it is appropriate to decide their Applications together.

5Several youth custody workers testified at the Charter Application. For reasons only known to the Craigwood Facility or the witnesses’ union most were unwilling to provide statements in advance of their testimony despite being asked by the Crown. This was one of the reasons the evidentiary portion of the Charter Application was prolonged. The Court is disappointed that those involved in the statutory confinement of young persons were unwilling to cooperate with legitimate Crown requests for information about the goings on in their facility. This does not meet the high standards expected of custodial officers in this province.

Facts

Custodial Periods and Strip Searches

6All 8 young persons were initially charged with second degree murder. Seven had a joint show cause hearing before Sirivar J. over several days in January and February of 2023. J.F. and S.S. were part of that group of seven. J.F. was released by Sirivar J. on February 9, 2023 with written reasons released on June 4, 2023. S.S. was released from custody after 41 days. Reasons for bail were released on April 14, 2023.

7There is no dispute that S.S. was strip searched three times before her release on bail: twice on December 19, 2022 – once when she was admitted to the Craigwood youth custody facility (“Craigwood”), and once when she was returned from Court that day; and a third time on January 20, 2023 when she returned from Court.

8J.F. was strip searched seven times: twice on December 19, 2022 when she first arrived at Woodview and a second time when she arrived later that evening from Court; once on January 13, 2023 when she arrived from the hospital; January 20, 2023 when she arrived from Court; on July 7 and 11, 2023 when she arrived from Court; and once on August 29, 2024 when she arrived at Woodview. The July 7 strip search is recorded both as July 7, 2008 and also July 7, 2023 when she was dropped off to the Woodview Program (which is run by Craigwood) by the Peel Police.

9The January 13, 2023 strip search of J.F. occurred after she had been taken to a local hospital. While at the hospital she was handcuffed but was out of sight of her youth guards while she was providing a urine sample. That was the triggering event for that strip search, namely that she was out of sight of the guards while providing a urine sample even though she was handcuffed at the time.

10Documents filed on the Application record the strip searches, although as will be seen it is unclear that each record is accurate. The July 7 strip search for J.F. was recorded as July 7, 2008 which is impossible and that document had the name “Tiffany” as the staff member completing the search but in her evidence Ms. Bourne was clear that she did not sign that strip search record, and she knows of no other Tiffany at Woodview. It is therefore unclear who strip searched J.F. on July 7, 2023.

11Several youth custody workers testified at the Charter Application and identified the strip search records. Tiffany Bourne was one of them. She worked at Woodview where J.F. and S.S. were held in custody while on remand. She started at Woodview in December 2022 and finished there in August 2023. Conducting strip searches was one of her roles. She was trained for that both in person and via online education. One of the strip search records of J.F. has her name on it but she could not identify the signature on it as hers. The date on that was July 7, 2008 which is clearly wrong. When asked if she strip searched J.F. on July 7, 2023 she did not remember that. She testified that J.F. looked familiar but had no independent recollection of her. She had no memory of S.S. She disagreed that she could ever do a strip search and not fill out a record of it.

12Ms. Bourne described the strip search procedure at Woodview, which involved two youth workers: one with the youth; and another down the hall monitoring the first youth worker. The monitoring officer could not see the youth. Strip searches were done in a nurse's room. The youth is given a towel and told to remove clothing and cover up with the towel. The removed clothing is inspected for objects and the youth is asked to open the towel to see the front half, and then spin around to expose the back half. Clothes are then given back. Ms. Bourne testified that she faces the youth when they take their clothes off, and told the youths to cover themselves while they remove their clothes. At no time is the person totally nude because the towel is a partial cover. Once the search is complete new clothes are provided and the youth showers in the nurse's room.

13Youths can deny the strip search. Ms. Bourne testified that Woodview cannot force the youth to strip search but if they don’t then they cannot participate in programs. The strip search is required to eliminate contraband like weapons or snacks from the youth. Ms. Bourne testified that the strip searching procedure lasts about a minute or two.

14Chelsea Jackson was another youth worker who gave evidence. She remembered J.F. to a point and remembers doing a strip search of her. Nothing out of the ordinary happened when she did that. Her description of the strip search procedure was similar to Ms. Bourne’s. She added that the cover-up towel was an option and if the youth says no to the towel they would be fully naked. She knew that the no towel option was not in compliance with Craigwood policy. She could not remember if J.F. did not want the towel. In her evidence, most youths being strip searched just want it over with and say no to the towel, but she always tells them there is a towel there to cover up with. She testified that she never touches the youth during the procedure or removes their clothing. Ms. Jackson also identified documents which recorded S.S. being strip searched at the same time. She put the total time of total nudity at around 20 seconds.

15Another youth worker still at Woodview who testified was Kelsey Campbell. She conducts strip searches of youths in accordance with the Craigwood policy document dated October 1, 2022. Her description of the strip search procedure was the same as Ms. Jackson. Ms. Campbell said that a routine strip search takes maybe 30 seconds – “not even a minute”. Ms. Campbell said that since she was originally trained to do strip searches there was a policy review of the practice. She was told that youths could be naked on their top half and then on the bottom half of their body. Ms. Campbell told her supervisors that that is not in the policy. She has not done a strip search since.

16Hasanati Alexander was a youth worker at Woodview and had looked at the strip search policy as well as the Ministry Standards about them. She did 3 searches at Woodview and found no contraband. She remembers strip searching J.F. but cannot remember which day. She testified that she did the strip searches the same way. A towel was provided and the upper half of the youth’s body was bared. The towel was to then cover the bare portion and the other half of the young person was exposed. A quick turn around was done after that. Two staff persons were involved but only one could see the young person. She said that some young persons were comfortable being fully nude and there were no rules about complete nudity. It is possible that J.F. was completely naked during one of the strip searches.

17She was asked about strip searching S.S. and said that she tried not to remember because it is in the moment. The process is uncomfortable for both the youth and the youth worker.

18Jo-Lyn Vercuteren finished working at Craigwood this past November. She testified that she had never seen the Ministry standards for strip searches before testifying. She was never trained on the Woodview search policy, but she read it over annually. Ms. Vercuteren said that on January 20, 2023 she did a routine strip search of S.S. following Court. She testified that she also strip searched J.F. that day. She asked J.F. if that was ok. She knew that total nudity was prohibited during strip searches, but at some point she saw the youths in that state. She did not realize that was a problem relative to her training. Total nudity would last about 30 seconds.

19Ms. Vercuteren had given a statement saying that she required to see the young person totally nude, but she didn’t need that. In her evidence her supervisor Mr. Goman asked her to change her statement about the duration of total nudity for the young person – from 30 seconds to 5 seconds. Mr. Goman denied ever saying that to her.

20Mr. Goman testified that Woodview is not operational. It is no longer accepting inmates. That was a Ministry of Children, Community and Social Services (MCCSS) Decision (“The Ministry”) and there is no plan to send young people to Woodview. He explained that the closure decision was based on a staff shortage at Woodview. There is a very small possibility that Woodview will ever open again, and the reasons for its closure have nothing to do with this case.

21Mr. Goman worked at Craigwood from June of 2009 and joined management in 2014. He was aware of the strip search policy at Woodview and the Ministry policy changes regarding the strip searching of inmates. As he put it, Woodview’s policies must follow and meet Ministry standards. He was aware that the Ministry policy in Policy 3.7 prohibited complete undress of inmates during the strip search procedure. Mr. Goman admitted to writing the updated Craigwood policy procedure of October 1, 2022. The policy update procedure involves providing the updated policy to the Ministry for review for 30 days before implementation. On this basis the Craigwood policy titled “Searches” dated October 1, 2022 was provided to the Ministry for comment before its implementation. There is no evidence that the Ministry had any comment on the October 1, 2022 Search Procedure.

22He testified about the strip search procedure, and that the October 1, 2022 policy permitted routine strip searches in the circumstances outlined in page 3–4 of that document, namely:

• upon admission;
• upon re-entry to the unit from an unescorted pass;
• after unsupervised visits;
• prior to transporting young persons out of the unit due to the nature of the situation where safety may be an issue; and
• when there are safety/security issues.

23Mr. Goman testified to the training which was given to staff about the Search policy. They received training which involved distribution to staff by email and discussion in person. There was also orientation at the Craigwood head office. He expected that all staff were aware of the policy.

24Mr. Goman explained that the policy change of October 1, 2022 required no complete nudity during the strip search. Routine strip searches in situations i), ii), and iii) required no managerial approval whereas iv) and v) do.

25Additionally, Mr. Goman testified that the October 1, 2022 procedure statement had additional language, namely:

The young person will be given the opportunity to remove their own clothing and must not be completely undressed for any period of time (e.g. the young person is given a sheet while they are undressing so they are not left standing undressed for any period of time). All strip searches of young persons will be done quietly, quickly, thoroughly, and in private.

26Mr. Goman provided evidence about the structure of Craigwood and Woodview. Craigwood is a licensed agency which provides facilities to the Ministry for the custody of young persons. It receives an annual licensing. There is a 4-day annual audit or review by the Ministry.

27Mr. Goman had testified at the joint bail hearing for 7 of the charged youths before Sirivar J. During that testimony he gave evidence that none of the young persons were totally nude during the strip search procedure at Woodview. Before me he testified that strip searches of young persons involving total nudity were happening at other facilities, not Woodview. That is what he meant by not being aware of any such strip searches leading to total nudity. His explanation made little sense to me. The questioning at the bail hearing was focused on strip searches at Woodview. Before Sirivar J. he was asked directly about J.F. being left completely naked when being searched at Woodview. He answered that such a scenario was concerning. His evidence before me that there was no challenge to strip searching at Woodview until recently makes no sense. His evidence that the concerns about strip searching were focused on another facility makes no sense. His evidence flies in the face of his evidence at the bail hearing before Sirivar J. His evidence that there was no review of the strip searching policy at Woodview after the joint bail hearing also makes little sense. Having been confronted on January 31, 2023 with an allegation of total nudity during searches of arriving young persons at Woodview his evidence is that nothing was done to review the Woodview search procedure.

28Mr. Goman also provided evidence about the reason for the October 1, 2022 search policy document. These include health and safety for both inmates and staff. Weapons and drugs are the primary concerns. He said that such contraband has been found about a half dozen times that he is aware of, and that they would not have been found with a search less intrusive than a strip search. He said that such things can be concealed under a waistband or under a bra. Once something was found in an inmate's hair. Jewelry can be converted to a weapon, and plastic can be used to interfere with locks in doors. He has personally witnessed all manner of self-harm or harm to other inmates.

29Mr. Goman was confronted with the suggestion that he encouraged Jo-Lyn Vercuteren to change her position on the length of the strip search. He denied pressuring her at all. An email was put into evidence which confirmed that Mr. Goman asked Ms. De Filippis if he could speak with Ms. Vercuteren about her submissions on the strip searching issue and was told by email less than an hour not to. He testified that by the time he received Ms. De Filippis’ email he had already spoken to her, and that Ms. Vercuteren stood by her written response to the Crown.

30His evidence that he did not know when he testified at the show cause that he was being questioned about Woodview is not believable. With that said, I accept the balance of his evidence, and I would not reject his evidence as incredible. His experience with why young persons are searched on arrival at Woodview makes sense.

31Two Agreed Statements of Facts (ASF) were filed at the Charter Application. The first covered another Youth Facility Sundance, which is another temporary detention and custody facility for females held while facing YCJA proceedings. Sundance had been requiring youths being strip searched to be totally nude for a portion of the procedure, which is inconsistent with Ministry Policy 3.7. Sometime in 2023 Sundance management realized that its strip search policy did not conform with Ministry policy.

32This ASF outlined that on January 26, 2023 Justice Sirivar made an order prohibiting Sundance from conducting a routine strip search of one of J.F. and S.S.’ co-accused. That order led to Sundance becoming aware of the inconsistency between their strip search procedure and Ministry Policy 3.7. Sundance enacted a new search policy on January 4, 2024 which is clear that at no time can a youth who is being searched be permitted to be completely naked.

33The second ASF outlines the manner in which the Ministry licenses and funds outside agencies to provide youth custody facilities in Ontario. Until November of 2024 the Ministry had three: Don Doucet in Sault Ste. Marie, which is directly operated by the Ministry; Sundance which is an outside agency operating under Ministry licence and funding (which is called a Transfer Payment Recipient, or TPR); and Woodview (which is also a TPR). There are two open detention facilities, one run in Brampton and another in Thunder Bay which are also TPRs.

34Notably, the Ministry established standards regarding searches in all youth custody facilities, whether they are directly operated by the Ministry or privately run TPRs. Ministry Policy 3.7 in Appendix “A” is one such directive. Policy 3.7 is not publicly accessible. It is only available internally to Ministry personnel or TPR staff via a password protected internet.

35The Ministry oversees TPRs by both licensing, which involves both annual and quadrennial reviews, and through the TPR funding agreement which contractually obliges the TPR to comply with Ministry guidelines and requirements.

36The annual review of a TPR involves Ministry licensing inspectors to physically attend the TPR. The inspection takes from 5-10 days, and assesses whether the facility is in compliance with Ministry requirements, including documentation and whether the TPRs procedures are current to Ministry policy. The quadrennial review is comprehensive and covers similar ground. The reviews lead to a report by the inspector which is provided to the TPR and is expected to result in compliance.

37One of the results of Justice Sirivar’s January 26, 2023 Order was that the Ministry began a review of its six youth detention facilities. It was during this review that Sundance was found to be non-compliant with Ministry strip search policy.

38Sirivar J.’s January 6, 2023 ruling came to the knowledge of the West Region of the Ministry, where Woodview is located. It led to a review of Woodview’s policies. Woodview advised the Ministry that it was aware of the issues at Sundance but that Woodview had a different strip search policy. In the summer of 2024 Woodview advised the Ministry that there was an issue with strip searches at their facility. This led to an internal review of the strip search policy at Woodview and a full re-training of staff.

39Dr. Nina Vitopoulos provided two written reports about the effects of strip searching on both J.F. and S.S. She gave evidence viva voce and was qualified as an expert in clinical and forensic psychology, developmental psychology, and the psychological effect of trauma on youth. In her evidence every strip search has a high possibility of trauma to a youth. Routineness of a strip search is traumatic to a youth because of its arbitrariness. Dr. Vitopoulos therefore focused on the routineness of strip searching and lack of explanation to the subject about the reason for the procedure. Both lead to adverse psychological effects on youth who are subjected to the practice.

Impact on each Young Person

40Both S.S. and J.F. filed Assessment reports from Dr. Vitopoulos. Both contain statements by each young person about the effects of the strip searching. The Crown did not object to their evidence going in this way.

S.S.

41In her report S.S. described the experience of being strip searched three times. The first was upon her entry to Woodview on December 19, 2022. She had never been in custody before.

42Generally S.S. found her time in isolating custody difficult and depressing. Once the isolation period ended she got along with her peers for the most part. She was in regular contact with her parents, although it is unclear how many times she actually spoke with her father.

43Notably, she described being strip searched 3 times. The first incident on December 19, 2022 took about 30 minutes to comply because she was deeply uncomfortable having to remove her clothes in front of an adult stranger. She had to turn around while fully naked in front of one staff member. She reported that there were two staff members present during this first strip search. This appears to have exacerbated her body image insecurities.

44When she was strip searched the second time that day she was offered the choice to take off her clothes one piece at a time and cover herself with a towel during the procedure. That was a change from the first strip search earlier in the day. On the second strip search on December 19 she felt like she had more privacy and the process went faster than the first. When she was offered the option of only taking one item off at a time she opted to fully strip naked because she believed the process would go more quickly.

45The third strip search happened when S.S. had come back from Court. It was at the direction of the staff person who did the second strip search. There was a second staff person behind a door. In the third incident she was told to “spin” during the search and that a staff member held a towel up for her privacy during the process. On the third strip search she was again given the option of taking her clothes off one piece at a time or all at once. She chose the latter to get it over more quickly.

46Overall S.S. reported being moderately insecure about her body when she was first arrested but those insecurities became substantially more intense after the strip searchings. She was very uncomfortable with adults seeing her body. This in turn contributed to restricted eating when she was ultimately released from custody.

47S.S. reported that the custodial experience “could have been better” and “could have been worse”. Her ten day isolation period when she arrived at Woodview was the most difficult part of the experience.

J.F.

48Dr. Vitopoulos’ report on J.F. covered 7 strip searches: December 19, 2022 (x2); January 13, 2023; January 20, 2023; July 7, 2023; July 11, 2023; and August 2024.

49The Jan. 13 search was identified by Counsel as particularly egregious because she was taken to a local hospital by staff members in handcuffs. She was apparently strip searched because she had to provide a urine sample at the hospital and because of that was out of the sight of the custodial staff. She argues that this strip search was particularly egregious and impactful.

50J.F. described her time in custody as being “okay.” With that said, she could describe two strip searches most clearly for Dr. Vitopoulos. These were the ones on December 19, 2022 at intake and on January 13, 2023. She remembered that at times when she was strip searched she was both fully naked and also times when male staff members were secondary staff during the procedure. She felt like he could see her. On one occasion she recalled a male staff member walking into the room and popping around a corner.

51J.F. recalls it being almost impossible to use a towel as a modesty covering because she could not both hold a towel up and also take off her pants. J.F. told Dr. Vitopoulos that she felt very uncomfortable during the strip search process. She adapted to the process, getting used to it. She felt particularly uncomfortable on the one or two instances when she was completely naked. One time saying there was no towel and then being brought one by a male guard who handed it over to a female guard.

52What is clear from the report of Dr. Vitopoulos is that J.F. felt deeply uncomfortable on those one or two occasions when she was completely naked. With that said, the strip searches did not to her feel sexual. They were to her weird. She felt very uncomfortable but did not see them as sexual trauma as such.

Analysis and Discussion

53It is against those facts that both S.S. and J.F. allege several different Charter violations, and seek a stay of proceedings or alternatively a sentence reduction. They allege that their individual strip searches and the institutional response result in violations of their rights under ss. 7, 8, 12, and 15 of the Charter.

54The Applicants argue that the strip searches violate s. 7 under the Charter two ways: both as a violation of the right to security of the person, and because the Ministry failed to supervise and monitor the use of strip searches. The s. 12 claim is that a strip search is a treatment or punishment, and the s. 15 claim is that routine strip searches have a disproportionate impact on black female children, such as S.S. and J.F.

55The Crown concedes that the strip searching which resulted in S.S. and J.F. being completely naked is a s. 8 violation. The Crown argues that an appropriate remedy is a sentence reduction but not a stay of proceedings.

56Some preliminary findings are necessary at this stage. The first concerns the Applicants’ claim that several Charter sections are engaged, ss. 7, 8, 12, and 15.

57As regards the s. 7 claim, that section of the Charter does not expand a right already contained in s. 8. This was established in R. v. Mills, 1999 SCC 25, [1999] 3 S.C.R. 668, at pars 87-88 where the Court said that, “…we infer that a reasonable search or seizure is consistent with the principles of fundamental justice”. There is no “… incongruity between ss7 and 8 – 14 related to principles of fundamental justice and not to the scope of life liberty and security of the person”.

58One of the components of the Applicants’ s. 7 claim is that there was insufficient supervision of the TPRs. Factually the Ministry conducted regular audits of the TPRs. As I will find the problem identified is that Ministry policy permitted J.F. and S.S. to be strip searched routinely, and that J.F. and S.S. were completely nude during strip searches. This has little to do with the auditing of TPRs. I reject the s. 7 claim accordingly.

59As regards the s. 12 claim the Applicant’s claim must establish that the strip searching is either a treatment or a punishment. It is possible that strip searching is a treatment for purposes of s. 12 because conditions of detention can be a form of treatment for s. 12 purposes, see Ogiamien v. Ontario, 2017 ONCA 667 at par. 7. The challenge the Applicant’s face is meeting the high bar to engage s. 12. As Laskin JA described it in Ogiamien, (at par. 9), a treatment in custody will be grossly disproportionate for purposes of s. 12 under the Charter if the treatment is,

"so excessive as to outrage standards of decency"; "grossly disproportionate to what would have been appropriate"; "grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable".

60Not every excessive or disproportionate treatment amounts to a constitutional violation under s. 12, see Ogiamien at par. 9. So too here. I cannot conclude that the strip searching as heard on the evidence here meets that high bar. As will be discussed later, the strip searching policy and practice for youths in Ontario is unreasonable, but it is nonetheless grounded in entirely valid safety concerns for youth inmates and the staff supervising them. I would not find a s. 12 violation.

61The Applicants s. 15 claim must fail too. In order to establish a s. 15 violation the Applicants must show on the evidence that the strip search policy and practice created a distinction based on an enumerated or analogous grounds on its face or in its impact; and that it imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage, see R. v. Sharma, 2022 SCC 39 at par. 28.

62The Applicants argument is that “The use of routine strip searches in female youth detention centres has a disproportionately negative impact on black female children”. In support of that proposition several studies were cited about the over incarceration of black youth in correctional services.

63The Applicants argument fails, in my finding by establishing a comparator group which are not subjected to the strip search policy. In this case the strip search policy applies to all youths held in detention in provincial institutions. It is of equal application to the entire youth custodial population. More to the point, the strip search policy is applied on a routine basis to all youths entering the facility regardless of their ethnicity or background. That is one of the basis that I will later find what happened to S.S. and J.F. to be a Charter violation under s. 8, but the allegation of discriminatory conduct is significantly muted when the claim is cast against the routine, universal strip search policy applying to young persons entering the facility.

64I would also find that youths have an entirely different regime than adults when being held in custody before detention. They enjoy certain rights not available to adults such as different levels of detention pre-trial, which can be subjected to judicial review, see CYFSA s. 148(2) and (5). Given the number and substance of youth custodial detention law I find that there is no comparator group for s. 15 purposes outside youths held pre-trial in detention. Any comparator group must be within the cohort of youths detained before trial. This is a small group, but more to the point all youths held pre-trial are subjected to strip searching. The Craigwood strip search policy, despite other deficiencies requires searches of youths to accommodate cultural, religious or spiritual values of the searched youths. As discussed above, only a person of same sex may conduct the search.

65For these reasons I do not find a s. 15 violation.

66This is first and foremost a s. 8 case. The question of constitutional violations other than s. 8 are redundant. The claim of ancillary constitutional violations outside s. 8 came before the Supreme Court in R. v. Rodgers, 2006 SCC 15. In Rodgers the constitutionality of DNA databanking was in issue. The appellant made claims under s. 8 of the Charter but also ss 7, 11(h), and (i). The Court found, at par. 23, that the legal analysis was properly undertaken within s. 8. Other arguments were redundant to that:

23. The Crown contends that the constitutional analysis on both grounds (a) and (b) should be conducted under s. 8, not because s. 7 is not triggered, but because s. 8 provides a more specific and complete illustration of the s. 7 right in this particular context, making any s. 7 analysis redundant. I agree. Mr. Rodgers' ex parte argument concerns the procedural fairness of the very process that authorizes the seizure. In these circumstances, the question is necessarily encompassed in the s. 8 assessment of reasonableness and is more properly considered in that context. As we shall see, what is fair depends entirely on the context. This Court described the rapport between s. 8 and principles of fundamental justice in R. v. Mills, 1999 SCC 25, [1999] 3 S.C.R. 668 (S.C.C.), where the interests at play were the right to make full answer and defence and the complainant's privacy right. This Court stated as follows (at para. 88):

Given that s. 8 protects a person's privacy by prohibiting unreasonable searches or seizures, and given that s. 8 addresses a particular application of the principles of fundamental justice, we can infer that a reasonable search or seizure is consistent with the principles of fundamental justice. Moreover, as we have already discussed, the principles of fundamental justice include the right to make full answer and defence. Therefore, a reasonable search and seizure will be one that accommodates both the accused's ability to make full answer and defence and the complainant's privacy right.

67I would adopt a similar analysis. In this case the Charter arguments can be analyzed completely by asking whether the strip searching was completed under a reasonable law and whether it was reasonably completed. When the constitutional standard under parallel Charter sections is engaged it is not necessary to make findings under both, or all particularly where the remedy would be the same, see R. v. Malmo-Levine, 2003 SCC 74 at paras 159 - 162.

68More recently, in R. v. Brunelle, 2024 SCC 3 the Supreme Court again considered the co-existence of s. 7 with other Charter sections. Speaking for the majority, O’Bonsawin J. found (at par. 71) that,

“…in the abuse of process context, both s. 7 and ss. 8 to 14 of the Charter are intended to protect individuals from conduct that is unfair or vexatious and thus undermines the integrity of the justice system (O’Connor at paras 64 and 73). It follows that the frameworks for analyzing these provisions can co-exist.”

It may be appropriate to analyze an accumulation of Charter infringements as an abuse of process, “..that is, prejudice to the integrity of the justice system” (Brunelle ibid). Given the permissible co-existence, I find that in law this Application can be analyzed from standpoint of the constitutional guarantee embedded in s. 8.

69Another preliminary finding involves the strip searches themselves. I heard evidence which is uncontradicted that strip searching at Woodview involves complete nudity at times. Despite the policy prohibiting complete nudity it appears that young persons simply opted to completely undress to get the process over with faster. It is unclear on the evidence how many times this happened to either S.S. or J.F.

70In J.F.’s report from Dr. Vitopoulos she discussed “…that there was one or two instances wherein she was completely nude during the searches and that these had been especially uncomfortable”.

71S.S. described three strip searches. On the first, on December 19 she removed all her clothes at once as per the staff member’s direction. On the second, later that day she was offered the choice of taking off her clothing one piece at a time. She opted to completely strip down naked to get the search over more quickly. On the third search she again chose to remove all her clothing at once to “get it over with quickly”.

72The evidence that both J.F. and S.S. were completely naked during some of the strip searches is confirmed by Woodview personnel who testified that some young persons opted to go completely naked as opposed to removing their clothing one piece at a time simply to get it over with more quickly.

73I would also find that there is no evidence that the strip searching was done gratuitously. The process was dictated by Woodview’s policy, and not any individual staff member’s inappropriate interest in seeing young persons naked. There is no evidence of that. The question comes down to whether the policy conformed with Charter principles and also whether the search practice as it impacted J.F. and S.S. conformed with the policy. To the extent that both J.F. and S.S. were completely nude during some of the strip searches the fact of complete nudity did not conform with Woodview’s policy prohibiting just that.

74In this case there is no dispute that what occurred was a search. The evidence is uncontradicted that both S.S. and J.F. were stripped of their clothing when they entered Woodview for purposes of searching for contraband. It is axiomatic that persons have a reasonable expectation of privacy in their bodily integrity which is protected by s. 8 under the Charter, see R. v. Stillman, 1997 SCC 38, par. 42, R. v. Pohoretsky, [1987] 1 S.C.R. 945.

75The Supreme Court in R. v. Collins, [1987] 1 S.C.R. 265, par. 33 articulated the appropriate general framework for scrutiny of s. 8 claims:

“A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”

76In this case the authority for the strip searching was furnished by O/Reg 155/18. It permitted, in par. 68.(4) searches of young persons which could involve the removal of all their clothes. It outlined 3 requirements for such searches: at least two staff members; presumptively by persons of the same sex unless there are reasonable grounds to believe that an immediate search is necessary. O/Reg 155/18 then proceeds to require the person in charge of the custodial facility to develop and maintain written procedures for searches of young persons. The Craigwood Policy Directive dated October 1, 2022 titled Searches therefore is a regulatory requirement imposed on Craigwood, and its Woodview facility. It is directly related to O/Reg 155/18. There is, therefore, legal authority for strip searching young persons at youth detention facilities.

77In argument I was asked to find that Ministry Policy 3.7 has the effect of a Regulation. It is not necessary for this ruling to make that finding and I decline to do so. While Policy 3.7 is not publicly available and so lacks that essential hallmark of a Regulation it appears to have some considerable weight in the development of Craigwood’s October 1, 2022 Search Policy, even if the Craigwood policy takes its authority from O/Reg 155/18 par. 69.

78What is relevant for purposes of examining whether the law authorizing the search is reasonable is that Craigwood sought to bring its search policy into alignment with Ministry policy directive. Even if Policy 3.7 is not a Regulation as such, through it, the Ministry had a pivotal role crafting the regulatory search policy at Woodview.

79No analysis of a legal challenge such as this can proceed without considering the statutory privacy provisions in the YCJA. S. 3 of the YCJA says:

3(1) Policy for Canada with respect to young persons
The following principles apply in this Act:
(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

80The enhanced procedural protections speaking to young persons privacy is found in many places within the YCJA. They principally enhance the informational privacy of youths by protecting records of youth proceedings and requiring special procedures for unsealing youth records. Part 6 (ie ss 110 to 129) of the YCJA is entirely devoted to the special protections afforded young persons regarding their privacy from YCJA prosecutions.

81The privacy provisions of s. 3(1)(b)(iii) are not, however, limited to informational privacy. In R. v. C.R., 2005 SCC 61 the Court grappled with DNA databanking for young persons. In C.R. the appellant pleaded guilty to assault with a weapon after stabbing his mother with a pen. The trial judge imposed sentence but declined to order DNA Databanking under s. 487.051 of the Code. The Nova Scotia Court of Appeal overturned the DNA Databanking Order and required a sample be taken. On appeal, Fish J. for the majority of the Court framed the issue this way at par. 32:

The central controversy in this case is whether a youth court judge may, in contemplating a DNA order with respect to a young person, take into account the underlying principles and defining characteristics of criminal justice legislation adopted by Parliament specifically for dealing with young persons.

82The majority reversed the Court of Appeal and upheld the trial judge’s refusal to order DNA databanking. It did not matter whether the case was considered under the previous Young Offenders Act or Youth Criminal Justice Act. It said,

37. In particular, Parliament has taken care to ensure that the consequences of conviction for young persons are imposed in a manner that advances the objectives of youth criminal justice legislation. This legislative policy is apparent in both Acts. To disregard it is to frustrate Parliament's will.

83This includes the right to privacy under s. 3(1)(b)(iii) of the YCJA. In the case of C.R. the legislative policy permitted a finding that the trial judge made no error in declining to order DNA databanking when balanced against the circumstances of the youth and the case.

84I would also observe that within the hierarchy of expectations of privacy under s. 8 of the Charter, privacy of the person is the “…strongest claim to constitutional shelter because it protects bodily integrity”, see R. v. Tessling, 2004 SCC 67, par. 21. The privacy provisions in the YCJA are therefore relevant beyond informational privacy and include bodily integrity. Strip searches involve bodily integrity and therefore attract the strongest protection of the privacy interests under s. 8 of the Charter.

The guidelines for strip searching young persons in custody

85The Child, Youth and Family Services Act, S.O. 2017, c. 14 (CYFSA) provides statutory authority for detention of young persons detained under the YCJA. S. 148(1) of the CYFSA presumptively requires open detention for young persons unless they fall within the criteria of s. 148(2) of the CYFSA. Secure detention is lawful if the young person is charged with an offence punishable by 5 years or more as an adult and the offence serious bodily harm to another, failed to appear, or in the previous 12 months been convicted of an offence punishable by more than 5 years if it were an adult proceeding. A youth justice may review the decision to hold the young person in closed custody.

86S. 155 of the CYFSA authorizes searches of an open or closed custodial facility for young persons and the young persons held there, their property, or a vehicle entering the facility. S. 155(2) permits the seizure of contraband, which is defined under s. 155(3) very broadly as anything the young person is not authorized to have, is authorized to have but not in a place they are not authorized to have it in, or use of something they are authorized to have but for which they are using it in an unauthorized manner.

87s. 344(13) of the CYFSA permits rules about the search of young persons in custody. Those are found in O Reg 155/18. Sections 68 – 71 of O Reg 155/18 are:

68. Rules respecting searches

A search authorized by a person in charge of a place of open custody, of secure custody or of temporary detention shall be carried out in accordance with the following rules:

1. In no circumstance shall a search involve a body cavity search.

2. All searches shall be conducted in a manner that,
   i. respects the dignity of the person being searched and does not subject the person to undue embarrassment or humiliation,
   ii. considers the cultural, religious and spiritual beliefs of the person being searched,
   iii. respects any personal property or clothing that has cultural, religious or spiritual value to the person being searched, and
   iv. respects any personal property so that it will not be wilfully discarded, broken or misplaced.

3. A person shall be given the opportunity to express their views as to how any of the following searches are conducted:
   i. A search of the person.
   ii. A search of the person's property.
   iii. A search of a bedroom used by a young person in place of open custody, of secure custody or of temporary detention, but only if the search also involves the young person's property.

4. A search that could involve physical contact between the staff member and the person being searched or the removal of some or all clothes, other than outer garments, of the person being searched may only be performed on a young person and the following rules apply to such searches:
   i. At least two staff members shall be present for the search.
   ii. The young person being searched shall not be searched by a person of the opposite sex unless the person who authorized the search has reasonable cause to believe that an immediate search is necessary because the young person is concealing contraband that poses an immediate threat to the safety of young persons, staff members or any other person in the place, or to the safety or security of the place.
   iii. Despite subparagraph ii and unless the person who authorized the search has reasonable cause to believe that an immediate search is necessary because the young person is concealing contraband that poses an immediate threat to the safety of young persons, staff members or any other person in the place or to the safety or security of the place, a trans young person shall have the option of,
   A. requesting that the search be conducted by only a male staff member,
   B. requesting that the search be conducted by only a female staff member, or
   C. requesting that the search be conducted by staff members of both sexes and identifying how each of those persons may perform the search.

69. Procedures re searches

69(1) A person in charge of a place of open custody, of secure custody or of temporary detention shall develop and maintain written procedures with respect to searches of the person of a young person or the property of a young person, which shall include the following:

1. A description of the different types of searches that may be conducted and the circumstances when those different types of searches may be conducted, based on the principle that the least intrusive search should be conducted whenever possible.

2. Procedures to be followed when a young person refuses a search, resists a search or fails to co-operate with a search.

3. Procedures to be followed in circumstances where there is a reasonable cause to believe that a young person is concealing an item in a body cavity that may affect the health of the young person or pose a threat to the safety of young persons, staff members or any other person in the place, or to the security of the place.

69(2) A person in charge of a place of open custody, of secure custody or of temporary detention shall do the following:

1. Post conspicuous notices stating that all persons, vehicles and items entering or exiting the place may be searched in accordance with the Act and the regulations.

2. Advise a person before they are searched or their property or vehicle is searched of any policies governing searches that have been established in accordance with the Act and the regulations, including providing a description of all search equipment that may be used at the place and describing the circumstances when the equipment may be used.

70. Records

A person in charge of a place of open custody, of secure custody or of temporary detention shall maintain a written record of every search and the record shall include the following information:

1. If the search was of a person or of a person's property, the name of the person who was searched or who is identified as the owner of the property that was searched.

2. If the search was of the place of open custody, of secure custody or of temporary detention, a description of the area or part of the place that was searched.

3. If a person was given the opportunity under paragraph 3 of section 68 to express their views as to how a search was to be conducted, a description of the views they expressed and what, if anything, was done in response to those views.

4. If the search was of a vehicle entering or on the premises of the place of open custody, of secure custody or of temporary detention, a description of the vehicle and the area of the vehicle or the part of the vehicle that was searched.

5. The reason for the search.

6. If a young person refuses a search, resists a search or fails to co-operate with a search, the action taken as result of the refusal, resistance or failure to co-operate.

7. If there is reasonable cause to believe that a young person is concealing an item in a body cavity, the basis for that belief and the action taken as a result of that belief.

8. A description of any property seized, discarded, broken or misplaced during the search.

9. Any action taken as a result of the search.

71. Training and education

71(1) A person in charge of a place of open custody, of secure custody or of temporary detention shall ensure that the following training and education is successfully completed by all staff members who provide direct care to young persons at the place:

1. Training related to how to conduct the searches referred to in section 155 of the Act that the person in charge of the place has authorized.

2. Education respecting the following subject matters:
   i. The provisions of the Act and of this Regulation concerning searches referred to in section 155 of the Act that the person in charge of the place has authorized.
   ii. The policies and standards established by the Ministry concerning searches under section 155 of the Act.
   iii. The procedures of the place of open custody, of secure custody or of temporary detention, as required under section 69.

71(2) If a staff member commences employment at a place of open custody, of secure custody or of temporary detention, the person in charge of the place shall ensure that the new staff member's training and education described in paragraphs 1 and 2 of subsection (1) is completed within 30 days after the person commences employment.

71(3) The person in charge of the place of open custody, of secure custody or of temporary detention shall ensure that the education and training of staff members is completed within the following time periods:

1. With respect to the subject matter described in subparagraph 2 i of subsection (1), within 30 days after this section comes into force and within 30 days after any amendment to the Act or this Regulation concerning searches comes into force.

2. With respect to the subject matter described in subparagraph 2 ii of subsection (1), within 30 days after each new or revised Ministry policy or standard concerning searches under section 155 of the Act is received by the person in charge of the place of open custody, of secure custody or of temporary detention.

3. With respect to the subject matter described in subparagraph 2 iii of subsection (1), within 30 days after each new or revised procedure referred to in that subparagraph is established.

71(4) The person in charge of the place of open custody, of secure custody or of temporary detention shall maintain a written record of the training and education provided to each staff member and the date the training and education was provided.

Emphasis added

88What is apparent is that O. Reg. 155/18 says little specifically about strip searches of young persons. Par. 68.4 contains an oblique reference:

4. A search that could involve physical contact between the staff member and the person being searched or the removal of some or all clothes, other than outer garments, of the person being searched may only be performed on a young person and the following rules apply to such searches:

Emphasis added

89In those circumstances the search must be done by two staff members, and the search must be done by a same sex staff member unless there is some urgency. Beyond that the officer in charge of the detention facility must come up with their own rules. It is apparent on the evidence of Brennan Goman that Ministry Policy 3.7 guided their Craigwood Policy. The Craigwood Policy forbade complete nudity, which is consistent with Policy 3.7, and required routine strip searches upon entry to the facility by the young person. Other situations would trigger the routine strip search as well: after unsupervised visits; and before transporting young persons out of the facility if safety may be an issue.

90What is also apparent is that O/Reg 155/18 and Policy 3.7 permitted, and the Craigwood Search Policy then required, routine strip searching of young persons entering the facility without any individualized suspicion or grounds. I find that the Craigwood routine search policy would have required the strip searching of young persons to the point of partial nudity upon entering Woodview even if the staff had no concerns about the entry of contraband into the facility. It was routine.

91Routine strip searches of inmates in a detention facility has been litigated in the past. In R. v. Rootenberg, 2020 ONSC 171; aff’d 2024 ONCA 493, the accused, an adult argued that being routinely strip searched was a Charter violation both upon entry to the Toronto South Detention Facility and then while moving within the jail. This was argued as a s.8 violation under the Charter. Justice Allen did not find a s. 8 violation. She found that it was not unreasonable for inmates to be subjected to searches of their cells or their person. As she put it “…safety and security outweighs the interest in privacy and reduces an inmates expectation of privacy” (supra at par. 116). The Court of Appeal found no error in this finding. They said that “These were authorized strip searches conducted for the purpose of ensuring the safety of people at the detention centre” (see R. v. Rootenberg 2024 ONCA 493 at par. 8). This reflects the principle that correctional authorities are given deference to decide what is reasonable care for the safety of inmates, see Mission v. Khela, 2014 SCC 24.

92Notably, Allen J. distinguished the landmark case R. v. Golden, 2001 SCC 83. While that case does outline a procedure for strip searching in order to comply with s. 8 of the Charter, Golden distinguishes between police strip searching upon arrest on one hand and correctional institutional strip searches on the other. Golden rules on the former, recognizing (at par. 96) that institutional strip searching involves different considerations. While the Court of Appeal did not consider that part of her analysis, i.e. the distinguishing characteristics of Golden, her ruling was upheld. I would therefore approach Golden the same way Justice Allen did. It is distinguishable, subject to my comments below about the invasiveness of strip searching.

93If the ratio of Rootenberg applied to this case, the Applicant’s Charter Application would be dismissed. I find, however, that it does not. Rootenberg was an adult being held on straightforward charges in an adult facility. J.F. and S.S. are youths. As was seen above youth proceedings are very different than adult proceedings. I find that s. 3(1)(b)(iii) of the YCJA requires all justice system participants to deliver enhanced procedural protections to young persons facing criminal proceedings, including their right to privacy. That provision has been in place since April 1, 2003, and has remained intact. Parliament can expect this to be firmly embedded in the minds of all justice system participants. Simply put, the privacy enjoyed by youths in custody is greater than that of adults.

94In her recent decision R. v. S.M., 2024 ONCJ 656 Henschel J. (then in the Ontario Court) found that search and seizure provisions applying to adults attract a different balancing exercise when applied to youths. In S.M. the impugned search was a penile swab incidental to arrest. Her Honour said at par. 312,

The privacy interests engaged where the youth is the subject of the search are greater than in cases involving an adult. The potential impact of such an investigative technique on a young person is more profound than in the case of an adult.

I agree, and would apply the same reasoning to a strip search upon entry to a custodial facility.

95With that established I find it troubling that youths entering custodial facilities would be subjected to routine strip searching without any individualized basis to do so. That happened in Woodview, and it would appear other youth institutions as well. Ministry Policy 3.7 effectively guided transfer payment recipients delivering youth custody services by telling them that routine strip searches of youths was a standard of service delivery. Policy 3.7 spells that out clearly. Craigwood, and therefore its Woodview facility surely had an independent obligation to come up with its own search policy by virtue of O/Reg 155/18 par. 69(1), but that in-house policy had to comply with par. 68.4 which minimally referred to strip searches. Policy 3.7 introduced the concept of routine strip searches, and on the evidence before me Craigwood brought its policy into alignment with Policy 3.7. The result is that routine strip searches of young persons was being done at Woodview. J.F. and S.S. bore the burden of that, as did every young person entering a detention facility. This did not reflect the enhanced privacy protections under the YCJA. Routinely strip searching young persons without any individualized suspicion to ground the search, as happened to both S.S. and J.F. was a violation of their rights under s. 8 of the Charter.

96A reasonable suspicion standard, in my opinion, tends to balance the valid safety and security concerns applicable to detention facilities with the privacy rights of youths. In this case it may not have been difficult to surmount the threshold for some of the searches. Both J.F. and S.S. were arrested because of their involvement in a fatal stabbing where the murder weapon was never recovered. If there was no evidence that the police had eliminated the possibility of either one possessing the murder weapon after arrest that may well have furnished a valid basis to search both upon entering Woodview for the first time. But once the detention facility had no reasonable grounds to suspect that either one had contraband the strip searching served no legitimate purpose. Therefore, to answer the second question from R. v. Collins (supra) the law requiring routine strip searches of J.F. and S.S. was unreasonable.

97Proceeding to whether the searches of J.F. and S.S. were completed in a reasonable manner I find that they were not. Policy 3.7 and the Craigwood strip search policy both spell out that “the young person must not be completely undressed for any period of time”. The evidence is uncontradicted that that happened on more than one occasion with J.F. and S.S. Beyond the lack of individualized basis to conduct the strip search, the strip searches of J.F. and S.S. involved at times complete nudity which was unreasonable. The evidence I heard establishes that this happened because youths simply wanted to get the procedure over with quickly, and covering up part of the body with the provided towel simply extended the procedure. Be that as it may, total nudity was prohibited, for good reason. Staff members were not at liberty to simply disregard the search protocol at the request of the young person.

98Therefore in answer to the third question from R. v. Collins (supra) the searches were not conducted in a reasonable manner.

99To summarize thus far: The strip searching of J.F. and S.S. violated s. 8 under the Charter two ways. The Regulatory structure outlining the engagement of strip searches required strip searches on a routine basis without regard to any individualized basis. On the evidence before me staff members violated the Craigwood search policy by permitting total nudity of the searched youths, including J.F. and S.S.

Remedy

100The Applicants seek a stay of proceedings under s. 24(1) of the Charter. Discussion of this remedy must begin with the strong language used by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, par. 30:

A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2022 SCC 12, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

101For these reasons a stay of proceedings is a remedy which is rarely granted. Only the clearest of cases should be stayed. The high bar set for a judicial stay reflects the idea that public confidence in the administration of justice is most often served by the completion of a trial on its merits.

102There are two general categories of cases where a stay is appropriate: where state conduct compromises trial fairness (the main category) and where there is no threat to trial fairness but state conduct risks undermining the integrity of the judicial process (the residual category). If the impugned state conduct does not engage the main category then it falls within the residual one.

103In this case there is no trial remaining. Only imposition of sentence remains in this proceeding. I would therefore consider the Applicant’s claim to a stay of proceedings under the residual category.

104The test for a stay has three components, per Babos (supra) at par. 32:

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan at para. 54);

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

105Trial fairness in part 1) of the test asks whether the accused right to a fair trial was prejudiced and whether that prejudice will carry forward through the conduct of the trial. The first part of the test examines the ongoing nature of the prejudice.

106The residual category, when invoked asks whether the state conduct is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that type of conduct would be harmful to the justice system, see Babos (supra) at paras 34 and 35.

107I would pause at this point to find that the language of Babos contemplates a prospective trial. In other words the ratio of Babos speaks to an Applicant who is an accused, with the presumption of innocence. This case is exceptional to the extent that both J.F. and S.S. have been found guilty after entering guilty pleas. This does not disentitle them to a stay of proceedings if they satisfy the test for that remedy, but it cannot be ignored.

108As part of the process before me both J.F. and S.S. admitted the offences in lengthy Agreed Statements of Facts, and did so under oath. What is therefore sought is not a stay of an impending trial but of the imposition of sentence. Granting a stay of proceedings will therefore have the effect of stopping all further prosecution of two young persons who are guilty in fact and in law, and otherwise awaiting the imposition of sentence.

109The trial fairness limb of the argument must consider the fact that the persons who strip searched both J.F. and S.S. appeared in Court on this application and testified about having done so. This was because, having filed a Charter Application alleging warrantless searches, the Crown responded by calling evidence to justify the searches. While the custodial witnesses mostly did not cooperate with out of Court interviews, that was not known at the time. The Charter Applications therefore were the only reason why the officers conducting the strip searches appeared in Court with J.F. and S.S.

110This case therefore is quite distinguishable from R. v. Tran, 2010 ONCA 471 where the police officers who beat the appellant when he turned himself in appeared at the ultimate trial and sat at counsel table with the Crown. The presence of the officers who beat the appellant was one of the reasons the Court of Appeal found that trial fairness was implicated when considering a stay of proceedings. The case at bar is quite different, both as regards the level of state conduct, and secondly the only reason for the presence of the various Woodview officers was the Charter Application. For these reasons there is no trial fairness aspect of the stay of proceedings analysis. This case must be analysed in the residual category of stay of proceedings.

111In submissions I was told that this was the first case to seek a stay of proceedings where the strip searching of youths in detention was considered. I consider the evidence that Woodview has now effectively closed and so there will be no strip searching there going forward. I must ask at the initial stage of the test whether the state conduct is so troublesome that proceeding to sentencing will leave the impression that the justice system condones society’s sense of fair play and decency. This is admittedly a difficult question to answer. The strip searching of both J.F. and S.S. is troubling, at least because it reflects a pattern of institutional conduct. This tends to pull toward granting a stay.

112The Applicants’ claim to a stay of proceedings really fails on the second and third limbs.

113There is an alternate remedy available, namely a sentence reduction. The YCJA mandates that time spent in detention by the young person as a result of the offence shall be taken into account, see YCJA s. 38(3)(d). There is no specific formula, and the conditions of the youth’s pre-sentence custody may be included, see R. v. D.S., 2008 ONCA 740. In related cases I took into consideration strip searches as part of that analysis, see R. v. A.B. (supra) at par. 43, R. v. M.J. (supra) at par. 52(5). I therefore find that there is clear alternate remedy.

114I also find that the strip searching had some effect on the decision by Sirivar J. to grant both Applicants bail, see R. v. J.F., 2023 ONCJ 180 at par. 94, R. v. S.S., 2023 ONCJ 177 at pars 32–37, 82. The effect of strip searching has already been judicially mitigated for both Applicants to some extent. The decision to grant bail was within weeks of the strip searching and therefore had some immediate remedial effect.

115Beyond bail and a sentence reduction the effect of a judicial pronouncement about the lawfulness of state conduct is in and of itself an alternate remedy. This is the prospective remedy which tends to mitigate systemic Charter violations such as this, see R. v. Brown, 2024 ONCA 453, par. 80. This is the first such finding about the lawfulness of routine strip searching of youths. It is expected that the Ministry take this into account in revisiting its search policy and regulations for young persons in custody. In previous paragraphs I have offered a reasonable suspicion standard for youth strip searches in custody, but it is ultimately for the legislature to craft appropriate rules which comply with s. 8 of the Charter and YCJA s. 3(1)(b) in this context.

116The Applicant’s claim for a stay also fails on the final ground, namely the balancing exercise. This limb of the test takes on added importance in the residual category of abuse of process cases. The balancing exercise must consider: the nature and seriousness of the impugned conduct; whether the conduct is isolated or systemic; the nature and circumstances of the accused; the charges sought to be stayed; and the interest in having the charges disposed of on their merits, see Babos (supra) at par. 41.

117With that in mind I would make the following findings at the balancing phase of the test. There is clear evidence that strip searching of youths happens across the system of youth detention. Routine strip searching of youths is of some seriousness because it fails to take into the legal protections of youths when balancing the valid safety concerns of having contraband in a detention facility. I would also find that the impact of the strip searching of both J.F. and S.S. was brief, even if it took place 7 times in the case of J.F. and 3 times for S.S.

118J.F. pleaded guilt to being an active participant in the swarming of Kenneth Lee a homeless man. She admitted that her conduct made her guilty of manslaughter. S.S. admitted to being a participant in that swarming but only guilty of the lesser charges of Assault with a Weapon and Assault Causing Bodily Harm.

119From my involvement in the case I find, rather easily, that strip searching J.F. and S.S. does not rise to the level where it would shock the conscience of the community to the point where a stay of proceedings is appropriate. Rather, I find the opposite – it would shock the community to stay the charges against J.F. and S.S. particularly where alternate remedies are available. Routine strip searching of J.F. and S.S. was offensive, but nowhere near the level where the Court should stay the charges.

120For these reasons the Application to stay the charges is dismissed.

Released: January 28, 2025
Signed: Justice David S. Rose

Appendix A

Custody / Detention – Standards

Section: 03.0 Security and Controls
3.7 Searches

STANDARD
Service providers shall post clearly visible notices stating that all persons, vehicles and items entering or exiting the custody/detention facility may be searched in accordance with the Child, Youth and Family Services Act, 2017 (CYFSA) and regulations.

STANDARD
Each service provider shall develop and maintain written policies and procedures that include a description of the different types of searches that may be conducted, based on the principle that the least intrusive search should be conducted whenever possible, which shall include:

Routine non-intrusive searches

A person in charge of the facility may authorize staff members to conduct routine non-intrusive searches of a young person may be carried out in order to safeguard the security of the facility or the safety of staff or young persons.

A person in charge of the facility may authorize staff members to conduct a routine non-intrusive search of every young person when they are admitted to or otherwise enter the custody/detention facility (e.g. return from court).

Non-routine, non-intrusive searches

If a staff member believes on reasonable grounds that a young person is carrying contraband or evidence related to a criminal offence, a non-routine, non-intrusive search of the young person may be conducted.

In addition to the documentation requirements set out in the regulation, the staff member who conducted the search must report the search to the person in charge of the custody/detention facility as soon as possible after the search has been conducted.

Routine strip searches

The person in charge of the custody/detention facility may authorize that a strip search of a young person be carried out in order to safeguard the security of the facility or the safety of staff or young persons:

• when a young person enters or leaves the facility, other than when the young person is being released from custody
• when a young person leaves an area (such as a kitchen or workshop) where there was a reasonable likelihood of the young person having access to contraband (e.g. items that may not be approved outside of the program area) that is capable of being hidden on or in the body, and all of the following conditions are met:
  • a staff member believes on reasonable grounds that the young person is carrying contraband
  • the young person refuses, resists or fails to co-operate with the staff member’s request to turn over contraband
  • a non-intrusive search has failed to recover contraband
  • the person in charge determines that a strip search is necessary to find contraband

Non-routine strip searches

The person in charge of the facility shall not authorize a non-routine strip search of a young person unless all of the following conditions are met:

• a staff member believes on reasonable grounds that the young person is carrying contraband or evidence relating to a criminal offence
• the young person refuses, resists or fails to co-operate with the staff member’s request to turn over contraband or evidence
• it has been determined that a non-intrusive search is insufficient to find contraband or evidence
• a young person or another person’s safety is at immediate risk of harm
• the person in charge is satisfied that a non-routine strip search is necessary in the circumstances

Written authorization shall be obtained from the person in charge of the facility prior to conducting a non-routine strip search of a young person.

STANDARD
Each service provider shall develop and maintain written policies and procedures that describe how and under what circumstances searches are conducted that minimally include the following:

• a description of what constitutes a health, safety or security risk
• procedures for advising persons before they are searched of any policies and procedures governing searches that have been established in accordance with the CYFSA and the regulations, including providing a description of all search equipment (e.g. walk-through metal detector, hand-held wand, Ranger Security Scanner Chair) that may be used and describing the circumstances when the equipment may be used
• the requirement that all searches shall be conducted in a manner that:
  • respects the dignity of the person being searched and does not subject the person to undue embarrassment or humiliation
  • considers the cultural, religious and spiritual beliefs of the person being searched
  • respects any personal property or clothing that has cultural, religious or spiritual value to the person being searched
  • respects any personal property so that it will not be wilfully discarded, broken or misplaced
• a person shall be given the opportunity to express their views as to how any of the following searches are conducted:
  • a search of the person
  • a search of the person’s property
  • a search of a bedroom used by a young person, but only if the search also involves the young person’s property
• a search that involves physical contact or the removal of some or all clothes, other than outer garments, may only be performed on a young person
• minimum frequency for physical plant searches

Searches may only be carried out by staff members who have successfully completed required training and education.

STANDARD
Each service provider shall develop and maintain written policies and procedures that describe how and under what circumstances searches of young persons, their living accommodations, and their personal items are conducted, that minimally include the following:

• procedures to be followed when a young person refuses a search, resists a search or fails to co-operate with a search, including that:
  • a young person may be separated from other young persons until they submit to the search or until there is no longer a need to conduct the search
  • identification of opportunities for giving the young person an opportunity to express their views as to how a search is conducted and what action, if any, is to be taken by staff in response to those views
• the expectation that staff are to return the room contents to the original state following a search

STANDARD
The following rules apply to searches that could involve any physical contact between the staff member and the young person being searched or the removal of some or all clothes, other than outer garments, of the young person being searched, such as non-intrusive and strip searches:

• searches must be completed one at a time, in a private area
• searches must be conducted in a place and manner that respects the human dignity of the young person and does not subject them to undue embarrassment or humiliation
• at least two staff members shall be present for the search
• one of the staff members must be the same sex as the young person
• when conducting a search of a young person where they are required to remove some or all clothes, the search shall be conducted in accordance with the following:
  • the search shall be conducted as quickly as possible
  • the young person must be given the option of removing their own clothing
  • the young person must not be completely undressed for any period of time (e.g. the young person is given a sheet while they are undressing so that they are not left standing undressed for any period of time)
  • the young person being searched shall not be searched by a person of the opposite sex unless the person who authorized the search has reasonable cause to believe that an immediate search is necessary because the young person is concealing contraband that poses an immediate threat to the safety of young persons, staff members or any other person in the custody/detention facility or to the safety or security of the custody/detention facility
  • if the second staff person present is of the opposite sex as the young person and the search involves removal of some or all of the young person’s clothing, that staff person must be positioned in a way so as to view only the other staff person and not the young person

The following rules apply to searches that could involve any physical contact between the staff member and a trans young person being searched or the removal of some or all clothes, other than outer garments, of the trans young person being searched, such as non-intrusive and strip searches:

• unless the person who authorized the search has reasonable cause to believe that an immediate search is necessary because the young person is concealing contraband that poses an immediate threat to the safety of young persons, staff members or any other person in the custody/detention facility or to the safety or security of the custody/detention facility, a trans young person shall have the option of:
  • requesting that the search be conducted by only a male staff member,
  • requesting that the search be conducted by only a female staff member, or
  • requesting that the search be conducted by staff members of both sexes and identifying how each of those persons may perform the search.

STANDARD
Each service provider shall develop and maintain written procedures to be followed in circumstances where there is a reasonable cause to believe that a young person is concealing an item in a body cavity that may affect the health of the young person or pose a threat to the safety of young persons, staff members or any other person in the facility or to the security of the facility, which shall include the following:

• in no circumstance shall a search within a facility involve a body cavity search
• if it is suspected that any delay in removing the contraband may result in a risk to the health of the young person, the young person shall be taken to a community hospital for assessment
• the young person may be placed in a “dry room” (i.e. a room in which the water supply has been shut off) and kept under observation until the person in charge is satisfied that there is no longer cause for the young person to be in the “dry room”
• one-on-one supervision must be provided
• drinking water will be provided in limited quantity (e.g. in a cup) and replenished at the request of the young person

STANDARD
A written record of every search shall be maintained that minimally includes the following information:

• the name of the young person who was searched or who is identified as the owner of the property that was searched
• a description of the area or part of the physical plant that was searched
• the views expressed by a young person and what, if anything, was done in response to those views
• the reason for the search
• action taken if a young person refused, resisted or failed to co-operate with a search
• action taken if there is a reasonable cause to believe a young person is concealing an item in a body cavity, and the basis for the belief
• a description of any property seized, discarded, broken or misplaced during the search
• action taken as a result of the search

Definitions

• Body cavity means the rectum or the vagina.
• Body cavity search means the physical probing of a body cavity. A non-intrusive search involves any of the following:
  • a manual search of a clothed young person
  • search by technical means such as a portable scanning device, or similar nonintrusive search equipment
  • a hand search of personal possessions, including clothing a person may be carrying or that they have been requested to remove
• A strip search is a visual inspection of a young person by a staff member that does not involve any physical contact, requires the removal of some or all of the young person’s clothing, other than outer garments, in the presence of staff, and the young person may be required to open their mouth, display the soles of their feet, run their fingers through their hair, present open hands and arms, bend over or otherwise enable the staff member to perform a visual inspection of the external surface areas of body cavities.
• A physical plant search includes all parts of the building, including communal areas, workshops, program rooms, elevators, stairwells, storage and maintenance areas, and the grounds, including outside the perimeter, parking areas, and outdoor recreation areas. A physical plant search does not include a young person’s bedroom or its contents.
• Trans or Transgender is an umbrella term that refers to people with diverse gender identities and gender expressions who do not conform to stereotypical gender norms. “Trans” can mean transcending beyond, existing between, or crossing over the gender spectrum. It includes but is not limited to people who identify as: trans, transgender, trans woman (male to female), trans man (female to male), transsexual, cross dresser, gender non-conforming, gender variant or gender queer.

Legislative References

• Canadian Charter of Rights and Freedoms, s. 8
• Youth Criminal Justice Act
• Child, Youth and Family Services Act, 2017, s. 155
• Regulation 155/18, ss. 67-71

Cross References

• Custody/Detention Standards
  • 3.8 Contraband
  • 4.2 Rights of Young Persons

Appendix B

3,043,292
WV 04-19b
Safety and Security
Revision Effective Date: October 1, 2022
Approved by: G. Ashbourne
Page 1 of 5

Searches

Purpose

To provide a safe environment for young persons and facility staff.

Policy

• Searches will be conducted to prevent the introduction into the unit of drugs, weapons, or other dangerous items or contraband and to discover any hazard posed to the health, safety, or security of a young person or facility staff.
• A health, safety, or security risk is defined by the staff team in consultation with the shift monitor or management at the time of concern. In general, this risk includes a reasonable suspicion of any situation or possession of an item that is not allowed in the facility or that may adversely impact the health and safety of young persons, visitors, or staff (e.g. weapons, drugs, items used to tamper with safety equipment) or evidence relating to criminal activity.
• If there is reasonable cause to believe that a young person is concealing contraband in a body cavity that may impact the safety/security of the facility or other persons, staff will isolate the individual, consult the shift monitor or supervisor, and develop a plan to address the concern. If there is concern for the health of the young person, a health care practitioner will be consulted for direction. If it is suspected that any delay in removing the contraband may result in a risk to the health of the young person, the young person shall be taken to a community hospital for assessment. This procedure does not apply to visual inspection of a young person’s mouth which may be conducted by facility staff.
• At the entrance to the Woodview building, a clearly visible sign will be posted in both official languages stating that all persons, vehicles, and items entering or exiting the custody/detention facility may be searched in accordance with the Child, Youth, and Family Services Act, 2017 (CYFSA) and regulations.
• Searches may only be carried out by facility staff who have successfully completed required training and education.

Procedure

• All searches are to be done with sensitivity to the young person having adults search their private and personal space.
• All searches shall be conducted in a manner that:
  • respects the dignity of the person being searched and does not subject the person to undue embarrassment or humiliation;
  • considers the cultural, religious, and spiritual beliefs of the young person being searched (where necessary, facility staff are to refer to the handbook on cultural issues, to clarify any issues in this regard);
  • respects any personal property or clothing that has cultural, religious, or spiritual value to the young person being searched; and
  • respects any personal property so that it will not be willfully discarded, broken, or misplaced.
• All searches will be done respecting the principle of “least intrusive yet effective” as possible.
• The young person will be informed of the search and how it will be done, including a description of all search equipment that may be used (e.g. handheld wand) as part of the program orientation and prior to any search.
• While the search process itself is non-negotiable, the young person can suggest ways and means as to how the search may be conducted and the suggestions implemented if they can be reasonably accommodated without compromising resources, the procedure, or safety. This includes a search of a bedroom used by a young person, but only if the search also involves the young person’s property.
• When a young person refuses a search, resists a search, or fails to cooperate with a search, the young person may be separated from other young persons until they submit to the search or until there is no longer a need to conduct the search.
• No equipment such as a walk-through metal detector or Ranger Security Scanner Chair may be used to complete a search.
• The following rules apply to searches that could involve any physical contact between the facility staff and trans young person being searched or the removal of some or all clothes, other than outer garments, of the trans young person being searched, such as non-intrusive and strip searches. A trans young person shall have the option of:
  • requesting that the search be conducted by only male facility staff,
  • requesting that the search be conducted by only female facility staff, or
  • requesting that the search be conducted by facility staff of both sexes and identifying how each of those persons may perform the search.

There are four types of searches:

• Search of the Physical Plant – This is a search of the facility, including living quarters, program areas of the building, equipment, and personal possessions as a general security measure to discover any contraband, stolen property, or dangerous items.
  • External Plant – Security checks of the Woodview enclosure, vehicle, and building will be made by staff, as designated by the program supervisor. This will be done on a shift basis and recorded in the movement log.
  • Internal Plant
• Common Living Quarters – A search is completed in common areas on the night shift weekly.
• Young Person Bedrooms – A young person in care has a right to have reasonable privacy and possession of their own personal property. There must be reasonable grounds to search a young person’s private bedroom and personal property. When a young person’s room and personal property is disturbed, it must be returned as it was found.

Items cannot be removed from a young person’s bedroom unless the item(s) found are contraband or there is a clear health or safety concern. When this occurs, it is to be clearly documented in the young person’s daily log what was removed and the reason.

• Visiting Area – Searches may be done of the visiting area prior to, and at the conclusion of, each visit. Except when circumstances warrant, visitors or their purses will not be searched since the young person can be searched after the visit, if there is a concern.
• Outer Clothing/Property Search – This is a hand search of a young person’s outer clothing, pockets, and carried bags. It does not involve physical contact as the young person’s outer clothing/bag is handed to staff to search, and the young person is asked to turn their pockets inside out. This is conducted when there is suspicion of possession of contraband and may be conducted in any area of the building giving thought to privacy. It does not need to be done after a professional visit unless at the discretion of facility staff one is considered necessary. Whenever possible, it is conducted by two facility staff, one of whom must be of the same sex as the young person. Any exceptions to this must be documented in the young person’s case file and noted to the program supervisor. Note: It must always be done before placing a young person in secure de-escalation. Young persons will turn in their shoes upon return to the building as a standard safety practice.
• Non-Intrusive Searches (Frisk)
  • Routine Non-Intrusive Searches (Frisk) – A routine non-intrusive (frisk) search is a light hand search of a clothed young person’s clothing that involves some physical contact. It is only conducted by a facility staff of the same gender under the observation of a second facility staff. This search may be conducted at facility staff’s discretion if there is a plausible suspicion of contraband, and a general clothing search is deemed insufficient. Both outer clothing and frisk searches may include the young person removing footwear, socks, and extra clothing to allow for proper inspection of those items while the young person remains clothed. It does not need to be done after a professional visit unless at the discretion of staff, one is considered necessary.
  • Non-Routine, Non-Intrusive Searches (Frisk) – A non-routine, non-intrusive (frisk) search may be completed if facility staff believes on reasonable ground that a young person is carrying contraband or evidence related to a criminal offence. In addition to required search documentation, the facility staff who conducted the search must report the search to the program supervisor or on-call supervisor as soon as possible after the search has been conducted.
• Strip Searches
  • Routine Strip Search – This is a search of a young person which involves the removal and search of all clothing but does not involve physical contact. A young person may be required to open their mouth, display the soles of their feet, run their fingers through their hair, present open hands and arms, bend over, or otherwise enable the facility staff to perform a visual inspection of the external surface areas of body cavities. This type of search is required:
    • upon admission,
    • upon re-entry to the unit from an unescorted pass,
    • after unsupervised visits,
    • prior to transporting young persons out of the unit due to the nature of the situation where safety may be an issue, and
    • when there are safety/security issues.

It is usually conducted in the intake area, but can take place in the unit, one young person at a time in a private area. It requires the presence of two facility staff, at least one of whom must be of the same sex as the young person. When facility staff of the opposite sex is involved, they must position themselves in such a manner that they can only observe the same sex facility staff as the young person as they carry out the search. The young person will be given the opportunity to remove their own clothing and must not be completely undressed for any period of time (e.g. the young person is given a sheet while they are undressing so they are not left standing undressed for any period of time). All strip searches of young persons will be done quietly, quickly, thoroughly, and in private.

• Non-Routine Strip Search – A non-routine strip search of a young person shall not be authorized unless all of the following conditions are met:
  • a staff member believes on reasonable ground that a young person is carrying contraband or evidence relating to a criminal offence;
  • the young person refuses, resists, or fails to cooperate with facility staff’s request to turn over contraband or evidence;
  • it has been determined that a non-intrusive search is insufficient to find contraband or evidence;
  • a young person or another person’s safety is at immediate risk of harm;
  • the program supervisor or on-call manager is satisfied that a non-routine strip search is necessary in the circumstance; and
  • written authorization is obtained from the program supervisor or on-call manager prior to conducting a non-routine strip search of a young person.

Recording Searches

• A written record of every search shall be maintained that minimally includes the following information:

  • the name of the young person who was searched or who is identified as the owner of the property that was searched;
  • a description of the area or part of the physical plant that was searched;
  • the views expressed by a young person and what, if anything, was done in response to those views;
  • the reason for the search;
  • action taken if a young person refused, resisted, or failed to cooperate with a search;
  • action taken if there is a reasonable cause to believe a young person is concealing an item in a body cavity, and the basis for the belief;
  • a description of any property seized, discarded, broken, or misplaced during the search; and
  • action taken as a result of the search.

• All searches will be documented on a Search Report by staff and documented in the movement log. These reports are to be recorded and placed in the young person’s case file.

• Facility searches are to be documented in the movement log.

• In addition to the documentation requirements, facility staff who conducted the search must report the search to the program supervisor as soon as possible after the search has been conducted.

End of Document