Ontario Court of Justice

Date: 2013-12-31

Court File No.: Regional Municipality of Durham 998 12 11749

Between:

Her Majesty the Queen

— AND —

Stephen Hendrickson

Before: Justice J. De Filippis

Heard on: 25 November 2013

Reasons for Judgment released on: 31 December 2013

Counsel:

• Mr. M. Hill — counsel for the Crown
• Mr. B. Scott — for the defendant

De Filippis J.:

[1] Charges and Concessions

The defendant is charged with (1) having care and control of a motor vehicle at a time his blood alcohol level exceeded the legal limit (i.e. "over 80") and (2) possession of marihuana. It is conceded there must be finding of guilt with respect to the second charge. Moreover, the defendant did not challenge the evidence that would support a finding of guilt with respect to the first charge. However, he claims he was strip searched and seeks a stay of those proceedings. The Crown argues that the defendant has not proven he was strip searched and, in the alternative, pleads that the appropriate remedy is a reduction in sentence. Accordingly, apart from the dispute about whether there was a strip search, the evidence is not controversial and these reasons reflect that fact.

[2] Facts of the Arrest

On 1 April 2012 at 3:12 AM, Cst. Johns was on routine patrol in the city of Oshawa and saw the defendant drive erratically as stopped at a red light. The officer approached the defendant and in speaking to him detected a strong odour of alcohol. He demanded and obtained a sample of the defendant's breath into an approved screening device. The result was a "fail" and, accordingly, the defendant was arrested, advised of his right to counsel, cautioned, and subjected to a breath demand. All this was completed by 3:25 AM. A search of the defendant at the roadside confirmed he did not possess weapons but the officer found 2.5 grams of marihuana in the motor vehicle. The defendant was transported to the nearest police station and paraded before the booking sergeant at 3:43 AM. Arrangements were made for the defendant to speak to duty counsel and, afterwards, he provided suitable samples of his breath into an approved instrument that was in proper working order and operated by a qualified person. These samples, taken at 4:31 AM and 4:52 AM, revealed a blood alcohol level of 140 and 130 respectively. These results are over the legal limit.

[3] Cst. Johns' Observations

Cst. Johns testified that after his appearance before the booking sergeant, the defendant was taken into a search room by Cst. Helmer and that the latter exited the room about two minutes later, followed by the defendant 30 seconds after that. Cst. Johns has observed about 20 searches in this room over several years that involved the detainee "dropping his pants" as the search officer checked the underwear waist band in aid of a visual inspection. Cst. Johns is unaware of the nature of those cases and, therefore, could not say why these searches occurred.

[4] Video Evidence

The defendant's appearance before the booking sergeant was captured on video. That record reveals the following: The defendant's handcuffs, belt and shoes were removed and his pockets emptied. After answering certain questions put to him by the sergeant, he was escorted by Cst. Helmer to an adjacent room. As the parties entered that room, Cst. Helmer asked, "how many shirts are you wearing?" and the defendant responded, "three". The video does not capture what transpired in the search room. The door to the room was slightly open. Cst. Helmer exited one minute and five seconds later, followed, after another 40 seconds, by the defendant who emerged buttoning his shirt.

[5] Police Directive on Searches

In February 2000, the Durham Regional Police Service adopted a policy to deal with "Search of Persons" (Directive LE-15-001). The policy includes criteria for searches of detainees at police facilities and provides that in such circumstances an officer may "remove all of the prisoner's outer clothing (in excess of one layer over underwear, when applicable)". This means that, in the normal course, the detainee cannot be compelled to remove all outer garments and searched while clothed only in underwear. "Detailed Searches" and "Body Cavity Searches" are authorized when the officer has reasonable grounds to believe the search will reveal weapons, evidence of a crime, or anything that might be used to facilitate an escape from custody.

[6] Cst. Helmer's Testimony

Cst. Helmer testified that in April 2012 his duties included searching detainees at police stations. He does not have notes about his interaction with the defendant and refreshed his memory by reviewing the aforementioned cell block video. He stated that the defendant was taken into the search room and directed to remove his outer shirt. This was examined by the officer and he also visually inspected the defendant as he stood before him. Cst. Helmer testified that "there was no reason for a greater search". The officer conceded that he had previously misinterpreted the police directive and routinely compelled detainees to strip down to their undergarments for a visual inspection. He denied directing the defendant to "drop his pants" for a closer examination. The officer could not say why the search he described took slightly over one minute or why, after he left, the defendant remained in the room for an additional 40 seconds.

[7] Defendant's Evidence

The defendant filed an affidavit in support of his Charter motion and also testified at this trial. On the day in question, he was employed as a chef at a local restaurant and now works in Alberta at the "tar sands". He does not have a criminal record. He stated that while standing before the booking sergeant his belt, shoes, and glasses were removed and his pockets emptied, after which, he was taken to a private room and told to remove his shirts and drop his pants. He testified that while standing in his boxer shorts, Cst. Helmer used his hand to check his underwear waist band and touched his thigh. The defendant said he was embarrassed by the intrusiveness of the search and the fact that the door to the room was slightly open. He added that once the search was completed, the officer left the room and he dressed and followed.

[8] Relevant Charter Provisions

The defendant submits that the police lacked the requisite grounds to conduct a strip search thereby violating his rights and seeks a stay of proceedings. These are relevant provisions of the Canadian Charter of Rights and Freedoms:

Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 8: Everyone has the right to be secure against unreasonable search or seizure.

Section 24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[9] Definition of Strip Search — R v Golden

The leading case with respect to strip searches is R v Golden, 2001 SCC 83, in which the Supreme Court of Canada stated that:

The appellant submits that the term "strip search" is properly defined as follows: the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments. This definition in essence reflects the definition of a strip search that has been adopted in various statutory materials and policy manuals in Canada and other jurisdictions…. In our view, this definition accurately captures the meaning of the term "strip search" and we adopt it for the purpose of these reasons. This definition distinguishes strip searches from less intrusive "frisk" or "pat-down" searches, which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of the detainee's genital or anal regions….

[10] Requirements for Justified Strip Searches

The court held that strip searches are "inherently humiliating and degrading…and cannot be carried out as a matter of routine policy". In this regard, the court noted that:

91 In order for a strip search to be justified as an incident to arrest, it is of course necessary that the arrest itself be lawful….

92 The second requirement before a strip search incident to arrest may be performed is that the search must be incident to the arrest. What this means is that the search must be related to the reasons for the arrest itself. As expressed by Lamer C.J. in Caslake, supra, at para. 17, a search "is only justifiable if the purpose of the search is related to the purpose of the arrest"….

94 In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, a "frisk" or "pat-down" search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person. 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.

95 The requirement that the strip search be for evidence related to the grounds for the arrest or for weapons reflects the twin rationales for the common law power of search incident to arrest. Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics….

96 It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment….

97 The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27, which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees.

[11] Analysis of Crown's Arguments

There is no doubt that what the defendant said occurred in the search room amounts to a strip search, as defined in Golden. It is also clear that such a search would not have been justified in the circumstances of this case, having regard to the criteria identified by the Supreme Court of Canada and set out in Directive LE-15-001. The Crown argues that this is so obvious that I should conclude a strip search did not occur. Counsel asks, "Why would Helmer do it?" and immediately adds that there is no basis to conclude the officer was confused about the policy. In this regard, the Crown relies on the fact that Cst. Helmer asked the defendant how many shirts he was wearing. This is said to confirm the officer understood he was not to go beyond "one layer of clothing above the underwear limit".

[12] Credibility Assessment — Cst. Helmer

I cannot rely upon the evidence of Cst. Helmer. He testified to events that lasted mere minutes and happened almost two years ago. He does not have the benefit of contemporaneous notes. He refreshed his memory from the cell block video but, in my view, this record does not support the officer's testimony.

[13] Credibility Assessment — Defendant

The Crown points out that the suggestion Cst. Helmer touched the defendant's thigh emerged for the first time at trial. The Crown is also suspicious of the defendant's explanation that on the night of his arrest it took him one hour to drive from Whitby to Oshawa because he did not know the local roads. These are minor matters and I am not troubled by them. Indeed, I accept the defendant's evidence; he impressed me as a man who strived to be truthful and accurate. Moreover, his version of events is consistent with other evidence, including the video record.

[14] Circumstantial Evidence of Strip Search

At all times the defendant was polite and compliant. He was subjected to a standard search on arrest and before the booking sergeant. Neither the circumstances of the offence nor that of the offender justified a strip search. All agree on this point. Yet, he was taken to a private room. Assuming this was necessary to complete a pat down search for weapons, the length of time spent in that room suggests something more occurred. The evidence before me is that this is a small room without toilet facilities. A frisk search could not have taken as long as one minute and five seconds. That the defendant remained in the room another 40 seconds after the officer left is consistent with pulling up and fastening his pants and putting on his shirt. He is captured on video buttoning that shirt as he exited the room.

[15] Finding of Strip Search

To advance his claim the defendant must prove it on a balance of probabilities. He has done more; I have no doubt he was strip searched. This was done without just cause. It is presumed to be humiliating and embarrassed the defendant. Yet he is guilty of the offence in question. Should he avoid the consequences of his transgression because of police misconduct?

[16] Collateral Charter Breaches and Stay of Proceedings

A stay of proceedings is an extraordinary remedy. Moreover, a court should be particularly cautious in granting this relief when the underlying complaint is collateral to the criminal allegations and there are other avenues of redress. In R v W.(D.), 2009 ONCJ 13, Justice Duncan observed that:

7 …it seems to me that the court should not permit Charter applications of this sort to highjack a trial, potentially consuming four or five times the trial time that the original criminal allegation would require. When I say "of this sort" I am referring first to the fact that the alleged Charter infringement is plainly collateral - it has nothing to do with the obtaining of evidence in relation to the charge before the court or issues of due process or fairness in the way that charge will be tried. Instead, the application seeks to raise the police treatment of the defendant after the alleged offence as a bar to prosecution for it. It is effectively the joinder of trials of a civil action in tort and a criminal charge with the dubious assumption that success on the former should somehow lead to nullification of the latter. Since the early days of the Charter such linkage has been discouraged if not forbidden: R. v. Cutforth (1987), 40 C.C.C. (3d) 253 (Alta. C.A.). There the Court cautioned:

If the occasion of a post-Charter criminal trial permits an open-ended review of all aspects of the arrest and detention of the accused as somehow probative of a substantive defence or answer to the indictment, the legacy is not attractive. The protection of the public - the rationale which escorts the codification and enforcement of the Criminal Law - will be eased to the sidelines as the accused trades the equities of his arrest and detention against the Crown's proof of his guilt.

8 Over the years this caution has often been over-looked or ignored and there have been many cases, particularly dealing with strip searching and/or over-holding of post test breathalyzer subjects where such Charter applications have been entertained without issue being raised about the propriety of doing so: see most recently R. v. Samuels (2008) 2008 ONCJ 85, 67 M.V.R. (5th) 132 (Ont. C.J. Nakatsuru J.) and authorities cited therein. The issue now is usually seen as one of remedy - whether it is appropriate and just to give a remedy in the criminal trial, particularly a stay, for a collateral Charter breach of this sort: see R. v. Weaver (2004) 2005 ABCA 105, 194 C.C.C. (3d) 350 (Alta. C.A.); R. v. Coulter [2000] O.J. No. 3452; R. v. Pellagrino [2007] O.J. No. 3190. Apart from those cases, I am not aware of any case that has acquiesced in the linkage of the type of complaint raised here with the trial of the criminal charge. It must be concluded that the issue is still unresolved by high authority.

9 But even if there remains some leeway to permit linkage and set-off of Charter wrong against criminal wrong, in my view there comes a point where the defendant should be referred to the civil court to seek redress rather than imposing his grievance on a criminal court trying an entirely different issue. That point comes where the applicant's chances of success are negligible and inordinate and disproportionate time will be consumed in the attempt.

[17] Systemic Police Misconduct — Basis for Stay

I am of the opinion that this is one of those rare cases in which a stay of proceedings is warranted. I so order because it is reasonable to conclude that what happened to the defendant is not an isolated event. The evidence in this case shows that Cst. Helmer routinely strip searched detainees without justification because he did not understand the relevant Police Directive. After this was brought to his attention, he remained confused or ignored the policy in dealing with the defendant. Cst. Johns has seen other detainees similarly treated. While I do not know the background to those cases, Cst. Helmer's confusion does not inspire confidence that they were properly conducted. Nor does the fact that the courts have previously admonished the local police service for this practice.

[18] Prior Judicial Warnings

In 1999, the Court of Appeal for Ontario excluded the evidence of breath test results because an officer with the Durham Regional Police Service unlawfully strip searched a person arrested for impaired driving; R v Flintoff, [1998] O.J. No. 2337. In R v Burke, unreported, 15 January 2003, (OCJ), Justice Halikowski dealt with request to stay proceedings because of a strip search. In that case, the defendant had been arrested for obstructing a peace officer (by giving a false name) and was strip searched when taken to the police station to be processed. The officer in charge of the police cells testified that this was a routine practice to ensure the safety of other inmates in custody. Justice Halikowski wondered why the defendant was lodged in the cells at all and, in any event, found her Charter rights were violated because there was no basis to conclude she concealed weapons or evidence. Justice Halikowski held as follows:

The defence seeks a stay of proceedings. This is an extraordinary remedy to be granted only in cases where there is a clear abuse of police power since, essentially, the prosecution of a criminal charge is being barred forever from proceeding….The accused's right to full answer and defence has not been prejudiced by the police conduct prior to the strip search and the strip search itself, taken in totality, does not bring the administration of justice into such disrepute that it calls for the halting of this prosecution. However, further breaches of this nature, if accompanied by no change in the standard operating procedures of the Durham Regional Police will almost certainly be viewed otherwise.

[19] Conclusion — Stay of Proceedings Granted

Thirteen years ago the Supreme Court of Canada held that strip searches of short-term detainees could not be routine and must be justified by reasonable grounds. Ten years ago a local judge warned against the continuation of unlawful strip searches in Durham Region. It has happened again. This court must defend the Constitution. In this case, that means staying the proceedings with respect to the over 80 charge.

Released: December 31, 2013

Signed: "Justice De Filippis"