Court File and Parties

Court of Appeal for Ontario Date: 20220902 Docket: C69177

Pepall, van Rensburg and Paciocco JJ.A.

Between: Her Majesty the Queen, Respondent and Antony Black, Appellant

Counsel: Adam Weisberg and Samiyyah Ganga, for the appellant Brendan Gluckman, for the respondent

Heard: April 27, 2022

On appeal from the conviction entered on January 24, 2020 by Justice Patrick J. Monahan of the Superior Court of Justice, sitting without a jury, with reasons reported at 2020 ONSC 495.

Pepall J.A.:

[1] The appellant, Antony Black, appeals from his conviction of possession of heroin for the purpose of trafficking, possession of heroin, possession of MDEA, wilfully obstructing a police officer, and failure to comply with the terms of his probation order. He has abandoned his sentence appeal.

[2] The principal focus of the appeal is whether the trial judge erred in determining that a strip search of the appellant, a male accused, in the presence of a female police officer, did not violate the appellant’s rights under the Canadian Charter of Rights and Freedoms because the search took place under exigent circumstances.

[3] For the reasons that follow, I would dismiss the appeal.

Facts

[4] On October 26, 2014, the appellant was driving a Honda Civic in Toronto. At approximately 9:25 p.m., Officer Stacey McCabe, who was on patrol in a scout car with Officer Christopher Ferko, noticed that the headlights of the appellant’s vehicle were not on. Officer McCabe ran a vehicle license plate check, which described the license plate on the Honda Civic as being “missing”. The officers stopped the vehicle and asked the appellant to produce his driver’s license, ownership and insurance documents. The interactions between the police and the appellant were all captured on the police in-car-camera system.

[5] The appellant was unable to produce a driver’s license or proof of insurance. He provided the plate portion of the vehicle ownership but indicated that he had just purchased the vehicle the day before and was using license plates given to him by a friend in order to drive the vehicle home.

[6] He gave his name as Anthony Denroy Brown but on checking, the police were unable to identify any licensed driver with that name. Officer McCabe explained that the appellant was obligated to identify himself to her and if he failed to do so, he was going to be arrested. Officer McCabe said she was going to give him one more chance to provide his name as it appeared on his driver’s license. The appellant then stated that his name was Anthony Denroy Odeen Brown. He attempted to explain why he did not have his license and appeared to answer a call on his cell phone. The two officers then arrested him. They did not read him his rights under the Charter. Two other officers arrived on the scene and assisted in handcuffing the appellant.

[7] The appellant then disclosed that his last name was Black rather than Brown. Within a few moments, Officer McCabe was able to locate the appellant’s driver’s license with his correct name in a pouch that the appellant had with him.

[8] Officers McCabe and Ferko checked his name and discovered there was an outstanding warrant for his arrest for robbery and that he was on probation. Meanwhile, one of the other officers searched the vehicle and discovered a black jacket with ballistic or bullet resistant panels. Upon searching the jacket, the officer discovered a bandanna and a knife in one of the pockets.

[9] Officer McCabe informed the appellant that he was under arrest for robbery, failure to comply with his probation, and obstruction of a police officer. The officers read him his s. 10(b) rights and transported him to the police station. On the way, the appellant advised the police that he was on medication and expressed suicidal thoughts.

[10] At the station, Officer McCabe obtained permission from the booking sergeant to conduct a strip search of the appellant based upon the seriousness of the charges and the fact that he was going to be kept in custody.

[11] Because she was a female officer, Officer McCabe did not initially participate in the search. Instead, Officer Anthony Tomei, who was on duty at the station that night, assisted Officer Ferko in the search, which commenced at 10:04 p.m.

[12] The two took the appellant to an interview room to conduct the search. The appellant was cooperative until asked to remove his socks, at which point he refused and suddenly stuck his right hand down the front of his jogging pants. The two officers could not see the appellant’s right hand and were concerned that he might have a weapon or other contraband concealed in his jogging pants. Officer Ferko grabbed his right arm and attempted to remove his hand from his pants while Officer Tomei grabbed his left arm to prevent the appellant from inserting it into his pants. When they were unsuccessful in forcing the appellant to remove his hand from his pants, they began to strike his upper body and head with their fists. They described these blows as “distractionary strikes” designed to force him to remove his hand from his pants.

[13] They eventually succeeded in forcing him to remove his hand from his pants, but they were still encountering difficulties. The appellant was kicking, pushing, banging his head against the wall, and screaming that the officers should “kill him”.

[14] Officer Ferko called for assistance. Officer Hryhorsky and Officer McCabe, who had been doing paperwork in a nearby office, ran in to assist.

[15] The four officers eventually managed to take the appellant to the ground and applied handcuffs and leg shackles to him. He continued to resist by kicking his legs, squirming, banging his head on the floor, and screaming.

[16] Officer McCabe then left to get scissors that were right outside the interview room and which Officer Ferko subsequently used to cut away the appellant’s clothing. A small plastic baggie containing heroin fell from his socks and a black pouch fell from his underwear. Inside the black pouch were 30 small plastic baggies containing heroin, a plastic baggie containing two MDEA pills, a plastic bag of marijuana, as well as a set of electronic scales.

[17] At this point, the appellant was entirely naked. Although he was handcuffed and in shackles, he continued to resist and attempted to kick out at the officers.

[18] Officer Hryhorsky left the interview room briefly to retrieve a jumpsuit from the booking area and returned and offered it to the appellant to put on, but the appellant refused.

[19] The officers decided to move the appellant to a nearby holding cell where he could be isolated from the police officers and monitored by video camera. Officers Ferko, Tomei and McCabe carried the appellant down the hall to the holding cell. While being carried, he was naked, handcuffed and in leg shackles.

[20] The officers placed the appellant in the holding cell and removed his restraints. The officers then quickly left the cell. The appellant remained quite agitated for about 10 minutes, pounding and kicking the cell door, and striking or spitting on the video cameras monitoring the cell. Eventually he put on the jumpsuit left for him by the officers.

[21] By 11:30 p.m., he had removed the jumpsuit and appeared to be attempting to attach it to the ceiling, create tension, and tie it in a knot while standing on a bench. After about 10 minutes, he abandoned this activity. He was subsequently taken to the hospital where he was cleared medically and ultimately returned to a holding cell at the police station.

[22] He was charged with possession of heroin for the purpose of trafficking, possession of heroin, possession of MDEA, wilfully obstructing a police officer, and failure to comply with the terms of his probation order. At trial, the appellant conceded that he was in possession of the heroin and MDEA that were seized during the strip search, that the quantity and packaging of the heroin were consistent with trafficking, that he was on probation at the time of his arrest, and that a condition of the probation order was that he keep the peace and be of good behaviour.

Trial Judge’s Reasons for Decision

[23] The trial judge conducted a voir dire and subsequently provided comprehensive reasons. First, he concluded that the police had failed to promptly advise the appellant of his right to counsel contrary to s. 10(b) of the Charter. The appellant was arrested at 9:34 p.m. but not advised of his right to counsel at this time. He was read his right to counsel at 9:41 p.m. when he was arrested on a warrant for robbery and for breach of probation. Officer McCabe indicated that she failed to initially read him his right to counsel because she was still unsure of his correct identity. The trial judge concluded that there was not any concern for officer or public safety that could have precluded the giving of his right to counsel and s. 10(b) had been violated.

[24] The appellant also argued that the warrantless search of his vehicle was unreasonable, unlawful, and a violation of his rights to be secure against unreasonable search and seizure under s. 8 of the Charter. The police evidence was in part that the search was for weapons and incidental to the arrest of the appellant for robbery. However, at the time of the search, the appellant had not yet been arrested on the warrant for robbery or for breaching his probation. Nor was the search justified pursuant to s. 221 of the Highway Traffic Act, as contended by the Crown. The trial judge concluded that the search was unlawful and violated the appellant’s s. 8 right to be secure against unreasonable search and seizure.

[25] The trial judge then turned to consider whether the strip search violated the appellant’s rights under ss. 7, 8, or 12 of the Charter.

[26] The appellant conceded that there was lawful authority to conduct a strip search at the police station, given that he had been arrested for robbery and had a criminal record that included crimes of violence. He was also going to be held in custody with other prisoners. Officer McCabe had obtained approval from the booking sergeant to conduct the strip search on these bases. The trial judge found that, in accordance with the principles identified in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, there were sufficient grounds for the officers to conduct the strip search.

[27] At para. 60 of his reasons, the trial judge addressed the plan for the strip search of the appellant:

It is also clear that the search was initiated and was intended to be carried out in accordance with the guidelines set out in Golden. The strip search was to take place in a private area of the station, such that no one other than the individuals engaged in the search could observe it. The officers tasked with carrying out the search, namely Officers Ferko and Tomei, were of the same gender as Mr. Black. Officer Ferko testified that it was his normal practice, which he followed in this case, to invite the person being searched to remove his or her own clothing rather than have the clothing forcibly removed by the officers. Moreover, Officer Ferko indicated that it was not intended that Mr. Black would ever be fully naked during the search; instead Mr. Black would be invited to remove clothing from certain areas of his body and then, following a visual inspection, put that clothing back on before proceeding to remove his clothing from other areas. Thus, while any strip search inevitably involves a serious infringement of privacy and personal dignity, the procedures which the police intended to follow in this case were calculated to minimize that indignity. [Footnotes omitted.]

[28] The search did not go as planned. The appellant acknowledged that he actively resisted the search. Officers Ferko and Tomei found it necessary to apply force and call for assistance in restraining him. The trial judge found that Officer Ferko was engaged in an intense physical struggle in which he and Officer Tomei were trying to gain control of the appellant. Officer Ferko was concerned that the appellant may have had a weapon in his pants, a concern the trial judge considered objectively reasonable. In a very detailed review of the evidence, the trial judge rejected the appellant’s submission that the two officers applied excessive force and concluded that the appellant’s Charter rights were not violated in that regard.

[29] The trial judge then addressed the issue that is at the heart of this appeal: the involvement of Officer McCabe, a female officer, in the efforts to restrain the appellant. At trial, the appellant acknowledged that Officer McCabe may have been justified in responding to Officer Ferko’s initial call for assistance but asserted that she should have stepped aside once the appellant was handcuffed and shackled and the appellant’s clothes were cut off. [^1]

[30] The trial judge instructed himself on the Supreme Court’s direction in Golden that strip searches should generally be conducted by officers of the same gender as the person being searched. Applying Strayer J.’s dicta in Weatherall v. Canada (Attorney General), [1988] 1 F.C. 369, varied, , [1989] 1 F.C. 18 (C.A.), he found that the appellant’s resistance constituted a “true emergency”. Officers Ferko and Tomei reasonably feared for their own safety and that of the appellant, who was banging his head on the wall and floor and calling on the officers to kill him. The trial judge reasoned that Officer McCabe was entirely justified in responding to Officer Ferko’s call for assistance.

[31] At para. 85 of his reasons, he wrote:

All four of the officers involved in the efforts to restrain Mr. Black made it quite clear that he did not cease resisting and fighting them until he was transported to the holding cell. As such, the exigent circumstances continued throughout that entire period of time. I also find that Officer McCabe was acting in good faith throughout the time she was involved in attempting to restrain Mr. Black.

[32] He noted that, as cautioned by this court in R. v. Amofa, 2011 ONCA 368, at para. 19, a reviewing court should resist the impulse to engage in “an over-analytical parsing of events into static moments without practical regard for the overall picture.” He observed that with the benefit of hindsight, it might have been preferable for Officer McCabe to have enlisted a male officer to replace her, assuming she saw the opportunity to do so, but she was reacting in real time to a dangerous and challenging situation which could have involved serious injury to her fellow officers as well as to the appellant. He concluded that her involvement did not violate any Charter protected right of the appellant. He also found that the officers, including Officer McCabe, were justified in carrying the appellant, while naked, in handcuffs and leg shackles, from the interview room to the holding cell. It was not feasible or practical to leave him in the interview room. Even though he was in restraints, he continued to resist and struggle. He was offered a jumpsuit but refused the opportunity to put it on. When his restraints were removed in the holding cell, he could still be seen on the video resisting and attempting to strike the officers with his hand.

[33] Relying on the earlier Charter violations that occurred during the roadside vehicle stop, [^2] the appellant sought to have the evidence obtained through the strip search excluded under s. 24(2) of the Charter but the trial judge declined to do so. He asked himself whether there was a sufficient causal, contextual, or temporal connection between the breaches of the appellant’s s. 10(b) and s. 8 rights at the time of the vehicle stop and the evidence obtained through the strip search. He reasoned that the breaches were too far removed from the drugs uncovered during the strip search. Although there was a temporal connection, there was no causal or contextual connection. The evidence obtained through the strip search arose from the appellant being lawfully arrested and held in custody. The appellant made no admissions when denied his right to counsel and the discovery of the knife did not inform the decision to strip search him. Rather, the trial judge found that the appellant was strip searched because there was a need to ensure that he was not concealing weapons or illegal drugs and due to the seriousness of the charges for which he was arrested. As for any contextual connection, intervening events broke the chain between the breaches and the discovery of the drugs. The appellant was promptly read his rights to counsel when he was arrested the second time and the strip search was authorized by the booking sergeant based on the decision to hold the appellant in custody. In sum, s. 24(2) of the Charter was not engaged as the evidence had not been obtained in a manner that violated the Charter.

[34] In the event he was mistaken in that regard, the trial judge also followed the framework set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 to determine whether the evidence should be excluded. Defence counsel conceded that the s. 10(b) violation was minimal and of a technical nature and the trial judge found the violation to be of a minor nature. The warrantless search of the vehicle was more serious, but the Crown did not rely upon the evidence found in that search. The evidence discovered in the strip search would have been discovered in any event because the officers had lawful grounds on which to conduct the search. The charges against the appellant were serious and the physical evidence was highly reliable. In balancing the factors, the trial judge concluded that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence obtained through the strip search would not bring the administration of justice into disrepute. The evidence was therefore admissible.

[35] He subsequently found the appellant guilty of all charges.

Grounds of Appeal

[36] The appellant advanced the following grounds of appeal:

i. first, he submitted that the trial judge erred in finding that the involvement of Officer McCabe, a female officer, in the strip search was justified and did not violate the appellant’s s. 8 Charter rights; ii. second, the appellant argued that the trial judge erred in considering the female officer’s good faith in deciding whether there was a s. 8 breach; and iii. third, the appellant argued that the trial judge erred in not excluding the evidence seized during the strip search under s. 24(2) of the Charter.

[37] Before this court, appellant’s counsel fairly conceded that if we did not agree that a Charter breach arose from the strip search, there was no need to address the third ground of appeal. I have not addressed this ground as I have concluded that the first two grounds of appeal should be dismissed.

i. Strip Search by a Female Officer

[38] Strip searches are demeaning no matter the circumstances. As stated by this court in R. v. Pilon, 2018 ONCA 959, at para. 15, even the most sensitively conducted strip search is a highly intrusive, humiliating, degrading and traumatic experience. Strip searches are a significant invasion of privacy. Accordingly, they are considered prima facie unreasonable. In Golden, the Supreme Court stated that strip searches were only constitutionally valid when:

(i) 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; (ii) the police establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest; and (iii) the strip search is carried out in a manner that does not infringe s. 8 of the Charter.

[39] Golden set forth guidelines taken from U.K. legislation on how a strip search is to be carried out. The guidelines describe how best to conduct a strip search so as to be in compliance with the Charter: Golden at para. 101. The Crown bears the onus of proving their legality: Golden, at para. 105. The more intrusive the search, the greater the degree of justification required.

[40] As Koehnen J. stated in R. v. Atule, 2018 ONSC 5416, at paras. 51-52: “The goal always is to determine whether the search maintained the privacy and dignity of the detainee; not to complete a check list in [a] mechanical fashion … If the failure to follow a guideline has no material impact on the detainee’s dignity, there is no Charter breach. In certain cases, the failure to adhere to a single Golden factor will result in a Charter breach, in other cases the failure to adhere to multiple factors will not result in a Charter breach.”

[41] Extraordinary circumstances that are exigent may excuse a departure from the Golden guidelines. In R. v. Kelsy, 2011 ONCA 605, at para. 35, Rosenberg J.A. explained: “[W]hether exigent circumstances are invoked to search for evidence or to protect the public or for officer safety, it is the nature of the exigent circumstances that makes some less intrusive investigatory procedure insufficient. By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only where necessary.”

[42] Accordingly, the Crown must show that the purported exigent circumstances rendered a less intrusive procedure insufficient. In addition, the majority of the Supreme Court of Canada stated at para. 116 of Golden: “ We particularly disagree with the suggestion that an arrested person’s non-cooperation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety.”

[43] One of the guidelines identified in Golden is that the police officer(s) carrying out the strip search should be the same gender as the individual being searched. Weatherall concerned a constitutional challenge to the Penitentiary Service Regulations governing strip searches in federal prisons. In that case, Strayer J. stated that exposure to a strip search by a member of the opposite sex offended “normal standards of public decency”. He opined that the involvement of female officers in a strip search was only justified in a “true emergency where the security of the institution generally, or of particular officers or inmates, is seriously endangered or where the lack of a sudden action would likely enable the concealment, importation, or passing of contraband.”

[44] Of course, societal mores may have changed since 1988, when Weatherall was decided, and arguably there has been a relaxation in society’s reaction to the exposure of sexual organs. That said, there remains a stark difference between voluntary exposure and involuntary exposure at the behest of the state for law enforcement purposes.

[45] Both at trial and on appeal, the appellant conceded that a strip search was lawful in the circumstances and that Officer McCabe’s involvement was warranted for at least a portion of the search. The appellant also did not dispute the trial judge’s findings that the appellant started violently resisting part way through the search or that he continued to resist until he was moved to the holding cell.

[46] On appeal, the appellant objects to Officer McCabe’s presence after he had been handcuffed and shackled. He maintains that she ought to have stepped aside and allowed other male officers who were nearby to complete the search. He argues that the trial judge erred by misapprehending the evidence and ignoring both the availability of other officers to assist and the temporary departures of each of Officers McCabe and Hryhorsky from the interview room.

[47] I would reject this argument.

[48] First, at trial, the appellant took a different position: he maintained that Officer McCabe’s involvement was justified beyond the placing of the physical restraints and extended to include the removal of his clothes. He argued that it was only after the drugs had been seized, that Officer McCabe’s presence was objectionable. It is difficult to fault a trial judge for accepting a concession that counsel has made.

[49] More significantly however, the trial judge made findings of fact that were supported by the evidence and the findings were reasonable in all the circumstances.

[50] As mentioned, the trial judge concluded that the appellant’s resistance, which he found continued throughout, constituted a true emergency, and that Officers Ferko and Tomei reasonably feared for their own safety and that of the appellant who was banging his head on the wall and floor and calling on the officers to kill him.

[51] The trial judge accepted the evidence of the police officers that the appellant did not stop resisting until he was left in the holding cell. Even after he was restrained, the appellant continued to kick Officer Ferko, punch out, scream that he wanted to be killed, contort his body and bang his head on the floor. By all accounts, the situation was chaotic and dynamic. Officer Hryhorsky testified that Officer Ferko called for assistance, the appellant continued to have range of motion with the shackles, and he continued to kick and resist after being shackled. Although Officer Hryhorsky briefly left the interview room twice to get a jumpsuit and shackles for the appellant and Officer McCabe also briefly left to get a pair of scissors from right outside the interview room, these brief exits from the scene do not meaningfully detract from the emergency conditions that presented themselves.

[52] Officer McCabe testified that the situation was never under control until the appellant was brought into the cell: “[t]here was never a point where I would have been comfortable enough saying ‘well, they’ve got this, I can leave now’ without concerns that [the appellant] would have been injured or one of my fellow officers would have been injured … I appreciate that he was in handcuffs and he was in shackles but, I mean, he still had the ability to kick out and punch out, and he did.”

[53] Officer McCabe did not expect to be involved in the search and she knew that men are supposed to be searched by men and women by women. As the trial judge pointed out: “With the benefit of hindsight, it might have been preferable for Officer McCabe to have attempted to enlist another male officer to take her place, assuming she saw the opportunity to do so.” In that regard, Officer McCabe testified in cross-examination that she was unaware as to whether there were other officers nearby, as she was focused on the emergency that had presented itself.

[54] I also reject the appellant’s contention that the trial judge failed to consider the availability of other police officers to assist. It is evident from both paragraph 82 of his reasons and the transcripts that he considered this issue. The same is true with respect to the brief departures from the interview room by Officers McCabe and Hryhorsky. In any event, a trial judge is not required to expressly describe every argument advanced by counsel: R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 46.

[55] Lastly, I agree with the trial judge’s observation and the Crown’s submission, based on this Court’s decision in Amofa, that there is a danger associated with reviewing dynamic situations in a way that amounts to “an over-analytical parsing of events into static moments without practical regard for the overall picture.”

[56] The trial judge’s findings that there were exigent circumstances and that the continued involvement of Officer McCabe in the strip search was fully justified were supported by the evidence and were reasonable in the circumstances. His factual findings are entitled to deference: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 at para. 25. I would dismiss this ground of appeal.

ii. Consideration of Officer McCabe’s Good Faith

[57] The second ground of appeal advanced by the appellant is that, in deciding whether there was a s. 8 breach, the trial judge made a legal error in considering Officer McCabe’s good faith.

[58] I disagree. While good faith does not excuse a Charter breach, the context here must be considered. The good faith of Officer McCabe lent support to the trial judge’s conclusion that Officer McCabe was animated by a legitimate safety purpose rather than by a desire to humiliate or punish the appellant in any way. This consideration would fairly inform the reasonableness of the search and her continued presence: see also Golden at para. 95.

[59] I would not give effect to this second ground of appeal.

Disposition

[60] For these reasons, I would dismiss the appeal.

Released: September 2, 2022 “S.E.P.” “S.E. Pepall J.A.” “I agree. K. van Rensburg J.A.” “I agree. David M. Paciocco J.A.”

Footnotes

[^1]: As I will explain, the appellant’s position on appeal differed from that at trial in this regard. [^2]: The Crown had decided not to proceed with charges resulting from the evidence seized through the search of the appellant’s vehicle and no application was made to exclude that evidence at trial. The trial judge stated that he did not rely on the evidence seized through the vehicle search, namely the black jacket and the knife found in one of the pockets.