Her Majesty the Queen v. Pilon

[Indexed as: R. v. Pilon]

Ontario Reports

Court of Appeal for Ontario

Lauwers, Hourigan and Pardu JJ.A.

November 29, 2018

144 O.R. (3d) 54 | 2018 ONCA 959

Case Summary

Charter of Rights and Freedoms — Search and seizure — Strip search

The accused was arrested and handcuffed in a motel room while executing a search warrant. The accused was observed moving his hands around his shorts as if attempting to hide something. No possibility existed that the accused could successfully hide or destroy evidence while handcuffed and surrounded by police. No safety concerns existed. Police were not justified in conducting field strip searches of the accused in the motel room. The strip searches violated the accused's rights under section 8 of the Charter because of the field location despite otherwise being textbook strip searches. The admission of evidence of drugs found on the accused did not bring the administration of justice into disrepute.

Court Information

APPEAL by the accused from the conviction entered by Gauthier J. of the Superior Court of Justice on September 6, 2016 and from the sentence imposed on September 6, 2016.

Counsel:

• Joseph Wilkinson and Maureen Salama, for appellant
• Howard Piafsky, for respondent

The judgment of the court was delivered by

HOURIGAN J.A.:

I. Overview

[1] The appellant was convicted of possession of crack cocaine and fentanyl for the purpose of trafficking and was sentenced to 30 months' incarceration. He appeals his convictions on the ground that the trial judge erred in finding that two strip searches conducted by police did not violate his section 8 Canadian Charter of Rights and Freedoms rights.

[2] As will be explained below, I come to a different conclusion than the trial judge on whether the strip searches were Charter compliant. In my view, the police violated the appellant's section 8 rights by conducting the searches in the field instead of at a police station. However, I would not exclude the evidence from the strip searches on a section 24(2) analysis. Consequently, I would dismiss the appeal, even though my reasoning departs from the reasoning of the trial judge.

II. Facts

[3] On July 7, 2015, the Sudbury Police Service obtained a warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 for a room at the Knights Inn motel. When police entered the room they found three individuals, including the appellant. All occupants of the room were arrested. The appellant resisted arrest, while the arrest of the other occupants occurred without incident. The appellant was eventually placed in handcuffs, with his hands behind his back. Despite the handcuffs, he was observed repeatedly trying to place his hands in the front and back of the shorts he was wearing.

[4] The police conducted a search incident to arrest and noticed that the appellant was wearing two pairs of athletic shorts. They removed the outer pair of shorts and discovered a roll of cash tucked in the pocket of the inner pair of shorts. Sergeant Train decided to continue the search incident to arrest and looked inside the second pair of shorts. The appellant was not wearing underwear and Sergeant Train briefly observed the top of the appellant's buttocks and an elastic band attached to the appellant's penis.

[5] The appellant remained non-compliant and continued reaching inside his shorts. The police believed that he was attempting to hide items. They also had concerns about their safety and the safety of the appellant. When asked by police whether he was concealing anything in his shorts, the appellant repeatedly denied doing so.

[6] Sergeant Train authorized officers to take the appellant to the bathroom in the motel room. There, Sergeant Train conducted a strip search, which consisted of pulling the waistband of the appellant's shorts away from his body, so that Sergeant Train could view his genital area, and reaching in and pulling out objects attached by the elastic band. Sergeant Train was wearing surgical gloves at the time and did not touch the appellant's genitals. The objects retrieved were a pill bottle containing fentanyl patches and a ball of electrical tape with crack cocaine inside.

III. Decision Below

[7] A voir dire was conducted regarding the strip searches. The officers involved in the search testified and the defence called no evidence. Trial counsel for the appellant took no issue with the search warrant and conceded that the appellant's arrest was lawful. He also conceded that the police were searching incident to arrest for evidence related to the offences for which his client had been arrested. The appellant only took issue with the reasonableness of the decision to strip search him and the lack of exigent circumstances justifying a strip search in the field.

[8] Sergeant Train testified that the first strip search was accidental. He intended to continue the ongoing pat down search when he pulled the appellant's inner shorts out towards him and observed the elastic around the appellant's penis. According to Sergeant Train, he did not anticipate that the appellant would not be wearing underwear.

[9] The trial judge accepted Sergeant Train's unchallenged evidence that this was an unintentional strip search. She noted that the search was not very intrusive and was discontinued once Sergeant Train observed the elastic band tied to the appellant's penis. Furthermore, no other person saw the appellant's genital area and there was no bodily contact. Given these circumstances, the trial judge concluded that the first strip search did not violate section 8.

[10] The trial judge carefully considered the factual circumstances leading up to the second search. She found as a fact that, despite the testimony of Sergeant Train that he was concerned the appellant may have been hiding a weapon, there was no basis for the officers to believe that the item being concealed was a weapon. However, she found that the police had good reason to believe that the appellant was attempting to dispose of drugs or otherwise prevent their detection. In addition, she found that there was a risk of danger to the appellant, "given his level of physical resistance and his continual attempts to get at the drugs". The trial judge concluded that these two factors justified the decision to conduct the search on site. In her estimation, the risk of loss of evidence and danger to the appellant amounted to exigent circumstances that rendered a strip search in the motel room reasonable.

[11] The trial judge went on to consider whether the second strip search was conducted in a manner consistent with the directions from the Supreme Court of Canada in the seminal case on strip searches, R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83. She noted that the search was minimally invasive of the appellant's privacy rights; it was a very brief search conducted in a separate room. At no time was the appellant naked. Only Sergeant Train saw the appellant's groin area. He wore gloves when he removed the drugs and, if there was any contact with the appellant's genitals, it would have been fleeting and incidental to the removal of the drugs. In addition, the search was only conducted after the appellant repeatedly refused to yield the drugs.

[12] The trial judge found that both strip searches were Charter compliant. The defence did not call any evidence at trial and convictions were entered on two counts of possession for the purpose of trafficking.

IV. Analysis

(1) Legal Principles

(a) Strip Searches Incident to Arrest

[13] In Golden, the issue for determination was whether the power to search incident to arrest is broad enough to encompass the authority to strip search an arrested individual. Justices Iacobucci and Arbour, writing for the majority, undertook an exhaustive review of the law regarding strip searches in Canada and other jurisdictions. A number of legal principles emerge from their analysis of the preconditions to a lawful strip search incident to arrest that are relevant to the issues in this case.

[14] First, a strip search is defined as "the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments": Golden, at para. 47.

[15] Second, even the most sensitively conducted strip search is highly intrusive, as strip searches are considered a humiliating, degrading and traumatic experience. Therefore, they should not be carried out as a matter of routine policy: Golden, at paras. 83, 90.

[16] Third, strip searches are only constitutionally valid where (1) they are conducted incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the arrest; (2) the police establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest; and (3) the strip search is carried out in a manner that does not infringe section 8: Golden, at para. 99.

[17] Fourth, strip searches should be conducted at a police station unless there are exigent circumstances requiring that the detainee be searched prior to being transported to a police station: Golden, at para. 102.

[18] Fifth, an arrested person's non-cooperation and resistance does not necessarily entitle the police to engage in behaviour that disregards or compromises his physical and psychological integrity and safety: Golden, at para. 116.

[19] Sixth, the Supreme Court adopted the guidelines in English legislation concerning the conduct of strip searches. These guidelines provide a series of questions, which the court, at para. 101, found will provide a framework for police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter:

1. Can the strip search be conducted at the police station and, if not, why not?

2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?

3. Will the strip search be authorized by a police officer acting in a supervisory capacity?

4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?

5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?

6. What is the minimum of force necessary to conduct the strip search?

7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?

9. Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?

10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?

11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

(b) Field Strip Searches and Exigent Circumstances

[20] The foregoing principles offer lower courts clear guidance in determining whether a strip search is Charter compliant. However, an issue arose in this case about the court's intention in Golden as to whether a field strip search can be justified where the concern is the preservation of evidence.

[21] The appellant submitted that exigent circumstances must be related to a safety concern and not the preservation of evidence. He relied on the statement made by the court in Golden, at para. 102:

Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field.

[22] The appellant also cited Moldaver J.'s comment in R. v. Saeed, [2016] 1 S.C.R. 518, 2016 SCC 24, at para. 79, where, in the context of a discussion on penile swabs, he stated, "[s]afety concerns may justify a strip search for weapons in the field".

[23] In contrast, both the trial judge and counsel for the respondent read the Supreme Court's comments in para. 93 of Golden as authorizing field strip searches in order to preserve evidence. There, the court stated that the "reasonableness of a search for evidence is governed by the need to preserve the evidence and to prevent its disposal by the arrestee". Contrary to the submission of the appellant's counsel, a careful review of that paragraph makes clear that the court was not considering strip searches generally, but was examining the circumstances that justify a field search.

[24] In addition, it is important to note that in Golden, after detailing the legal principles regarding strip searches, the court went on, at paras. 107 to 108, to consider whether the strip search in that case was a violation of the accused's section 8 rights. The Crown attempted to justify the field search in Golden on the basis "that exigency arose from the risk that this evidence might be lost or destroyed if police waited to conduct the strip search until the appellant was transported to a police station". The court rejected that argument, finding that the police station was very close by and there was no reasonable prospect that the handcuffed accused could have surreptitiously discarded the drugs hidden on his person. Moreover, even if he were able to discard the drugs, it is unlikely that he could do so unnoticed by one of the officers at scene and there would then be strong circumstantial evidence tying the accused to the drugs.

[25] Tellingly, the court did not dismiss the Crown's argument on the ground that the preservation of evidence could never qualify as exigent circumstances to justify a field search. To the contrary, after examining the facts of this case, the court concluded [at para. 108] that "this case was not one involving an urgent and necessary need to conduct a strip search 'in the field' for the purpose of preserving evidence".

[26] In the jurisprudence since Golden, I have not found any case from an appellate or trial court that explicitly found that concerns over the need to preserve evidence constituted exigent circumstances that justified a field strip search. I note that in R. v. Kelsy, [2011] O.J. No. 4159, 2011 ONCA 605, Rosenberg J.A. reviewed the context in which exigent circumstances have been recognized at common law. First, at paras. 25-31, he discussed how the doctrine of exigent circumstances has been used to justify a search without prior judicial authorization when there is an imminent risk of loss or destruction of evidence. When discussing exigent circumstances and the risk of loss of evidence, there was no reference to strip searches. Then, Rosenberg J.A. discussed exigent circumstances in the context of public and police safety. It is here, at para. 33, that he noted that a strip search in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons. That analysis might suggest that preservation of evidence is not a recognized basis for authorizing a strip search in the field.

[27] Notwithstanding the broad statement in para. 102 of Golden, that exigent circumstances are limited to safety concerns, and the absence of case law considering preservation of evidence as an exigent circumstance justifying a field strip search, it is at least arguable that the Supreme Court in Golden left open the possibility that the need to preserve evidence could qualify as exigent circumstances that permit a field search. For the purposes of my analysis below of the two strip searches in this case, I am prepared to assume that the preservation of evidence can qualify as exigent circumstances. I do this because, as will be explained, in the present case I am not satisfied that there was an exigent need to preserve evidence. I leave open the possibility that another case might provide a factual matrix that presents very serious and immediate concerns about the preservation of evidence such that there is an urgent and necessary need to conduct a strip search in the field.

(2) Was the First Strip Search Charter Compliant?

[28] The trial judge found that the first strip search was an accidental search because Sergeant Train did not anticipate that the appellant would not be wearing underwear. This was an error of law. As noted above, in Golden the court defined a strip search to include the rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's undergarments. Thus, when Sergeant Train pulled on the waistband of the shorts in an effort to view the appellant's underwear, he was engaged in a strip search. The search was not an accident and therefore the principal basis for the trial judge's finding that it was reasonable is unsustainable.

[29] In light of this error, it falls to this court to examine the circumstances of the first strip search afresh to determine whether it was Charter compliant. There can be no issue that the search was conducted in a manner that was minimally intrusive of the appellant's privacy rights. It amounted to a very quick glimpse of the appellant's upper buttocks and groin. No one other than Sergeant Train saw the appellant's genitals during this search. No one touched the appellant's buttocks or genitalia during this search.

[30] The real concern with this search is not the manner in which it was conducted, but where it was conducted. In short, did the Crown meet its onus of establishing that there were exigent circumstances that justified a field search? In my view, the answer to that question is no.

[31] Sergeant Train testified that he observed the appellant attempting to reach into the waistband of his shorts. Although he did not know what the appellant was reaching for, it does not appear that his concerns were safety related. Instead, he had a hunch, based on prior investigations, that the appellant was carrying drugs in his groin area. However, Sergeant Train did not attempt to justify the first strip search on the basis that there was a real possibility that evidence would be destroyed.

[32] In my view, in submitting at trial and on this appeal that the first strip search was Charter compliant, the Crown relied solely on the ground that it was accidental. The Crown failed to lead sufficient evidence that there were exigent circumstances based on safety grounds or the need to preserve evidence that justified a field search. Accordingly, I would find that the first strip search violated the appellant's section 8 rights.

(3) Was the Second Strip Search Charter Compliant?

[33] The respondent submits it was reasonable to conduct the second strip search in the field because there were exigent circumstances, namely, an urgent need to preserve evidence and a need to protect the safety of the appellant, the civilians in the motel room and the police officers present.

(a) Preservation of Evidence

[34] With respect to the preservation of evidence, the trial judge placed reliance on the fact that the appellant continued to attempt to access the objects in his shorts. She found that the police reasonably believed that the objects were drugs and that the appellant was attempting to conceal or dispose of the drugs.

[35] This analysis ignores the finding in Golden, where in similar circumstances the court concluded that the Crown failed to establish that there were exigent circumstances regarding the preservation of evidence. In the present case, the appellant was in a confined space, handcuffed and surrounded by police officers. If he somehow was able to dispose of the drugs undetected, it is a common sense inference that they would be easily retrievable by the police. Further, there would be strong circumstantial evidence that the appellant was in possession of the drugs.

[36] In my view, the trial judge erred in finding that the Crown met its onus of establishing that the risk of loss of evidence constituted exigent circumstances that would justify a strip search in the field.

(b) Safety Concerns

[37] There remains the alternative ground of safety concerns. It is important to look carefully at the trial judge's reasons on this issue. She found as a fact that "there was nothing to lead the officers to believe that the object was a weapon". Thus, there were no exigent circumstances that justified a search for a weapon. Instead, she found that, given the appellant's ongoing efforts to gain access to what was hidden in his shorts and his level of physical resistance, there was a risk that he would harm himself if he was placed in a cruiser and taken to the police station for a strip search.

[38] In considering exigent circumstances where there is a possibility of a weapon, Golden, at para. 94, is instructive:

Only if the frisk search reveals a possible weapon secreted on the detainee's person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee's person will a strip search be justified. Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search.

[39] There is, of course, a fine distinction between "particular circumstances of a case" that raise a risk that a weapon is being concealed and the "mere possibility" that there may be weapons. That distinction may be debated endlessly at trial or on appeal. But a police officer does not have the luxury of time. The officer must make a decision in a matter of seconds, all the while mindful of his or her duty to the accused not to breach Charter rights and his or her obligation to protect the safety of people in the immediate vicinity, including civilians, other police officers and the accused.

[40] In the present case, Sergeant Train testified that his primary concern was the preservation of evidence, but that he also had safety concerns because the object could have been a weapon. Given the trial judge's finding that the officers had no reason to believe that the object was a weapon, we can infer that Sergeant Train's evidence was rejected. Although she did not explain her thought process in reaching this conclusion, it is reasonable to infer that the trial judge found that the police, having observed the object and with knowledge of the appellant's practice of hiding drugs in his groin area, did not actually believe that the object could be a weapon. That was a finding that was open to the trial judge and there is no basis for interference by this court.

[41] The trial judge's finding regarding the safety of the appellant is another matter. In my view, this finding cannot stand. The trial judge found that given his conduct there was a safety concern about transporting the appellant to the police station. With respect, the difficulty in transporting the appellant is not causally connected to, let alone resolved by, the police conducting a strip search in the motel room. The appellant had been defiant and physically uncooperative from the moment the police entered the motel room. There was no basis for the police to speculate or the trial judge to conclude that the appellant would become compliant if the strip search was conducted at the motel room. The police were still required to transport the appellant to the police station after the strip search was conducted.

[42] In my view, the police have failed to meet their onus of establishing exigent circumstances that would justify a field strip search. Both strip searches violated the appellant's section 8 rights.

(4) Section 24(2) Analysis

[43] The trial judge did not conduct a section 24(2) analysis. There is, in my view, a sufficient evidentiary basis for this court to undertake the test mandated by R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32. That test requires a consideration of the seriousness of the violation, the impact of the violation on the Charter protected interests of the appellant and society's interest in an adjudication of the case on its merits, along with a balancing of these factors.

[44] Turning first to the seriousness of the violation, it is clear from the trial judge's reasons that she believed that the officers were acting in good faith. There was no evidence to suggest that strip searches were part of the police force's routine practice and no suggestion that the police regularly conducted strip searches in the field.

[45] The manner in which the strip searches were carried out is also important. The first strip search consisted of a momentary glimpse of the appellant's upper buttocks and groin area. The second strip search was also very brief and took place in a private area. Sergeant Train, a senior officer acting in a supervisory capacity, wore gloves and was the only officer who observed the appellant's private areas. There was no body contact and the appellant was never naked. In addition, the search only took place after the appellant was repeatedly asked to yield the drugs. The circumstances of the searches in this case contrast sharply with the facts in Golden. In that case, the strip searches included a body cavity search undertaken in a restaurant and involved forceful physical contact.

[46] In the case at bar, the only error the police made in conducting the strip searches was doing them in the field. Had these searches been conducted in the same manner at the police station, there would have been no section 8 violation. Other than location, they were textbook examples of how strip searches should be conducted. In my view, the seriousness of the violation factor militates in favour of admission of the evidence.

[47] As noted above, in Golden the Supreme Court stated that even the most sensitively conducted strip search is highly intrusive. Accordingly, I find that the impact of the breach on the appellant's Charter protected interests favours exclusion of the evidence.

[48] The third factor, society's interest in an adjudication on the merits, strongly favours admission of the evidence. This is highly reliable evidence and the charges against the appellant are very serious, as he was found in possession of two highly pernicious drugs.

[49] In balancing these factors, I conclude that admission of the evidence would not bring the administration of justice into disrepute. The officers were acting in good faith and conducted searches that were minimally intrusive of the appellant's privacy rights. Other than the location of the searches, they were conducted in a manner that is consistent with the best practices endorsed by the Supreme Court in Golden. In addition, the evidence is highly reliable and society has a genuine interest in the adjudication of these serious crimes on the merits. As such, I would not exclude the evidence from the strip searches on a section 24(2) analysis.

V. Disposition

[50] I would dismiss the conviction appeal and dismiss the sentence appeal as abandoned.

Appeal dismissed.

Notes

1 The appellant also sought leave to appeal his sentence, but by the time this appeal was heard he had served his custodial sentence. His counsel advised this court that he was abandoning the sentence appeal as moot.

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