Court Information

Court: Ontario Court of Justice

Date: June 21, 2017

Court File No.: Belleville

Before: Justice E. Deluzio

Heard: June 9, 2017

Reasons for Judgment Released: June 21, 2017

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Jillian Judson

Counsel:

V. Bae — counsel for the Crown

P. Kort — for the defendant

Judgment

Deluzio J.:

Facts and Charges

[1] The accused, Jillian Judson, is charged with Over 80 and Impaired Driving. She was stopped by police after she was observed making a left turn on a red light in Trenton on May 12, 2016.

[2] The arresting officer, Officer Doak, made a roadside demand and Ms. Judson provided a sample and registered a fail. She was then arrested and placed in the rear of the police vehicle.

[3] Ms. Judson ultimately provided two breath samples truncated down to 2 readings of 150 mg of alcohol in 100 ml of blood.

[4] While in police custody, and after she had been subjected to a roadside pat down search and a more thorough secondary pat down search at the detachment, Ms. Judson was asked to remove her bra, before she was placed in a holding cell.

[5] The Crown concedes that the removal of Ms. Judson's bra was an illegal strip search that violated Ms. Judson's Section 8 rights. Ms. Judson asks the Court to remedy this breach by ordering a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms or in the alternative by excluding the breath test results pursuant to section 24(2). In the event that the Court imposes a section 24(2) remedy it is the defence position that the Crown has failed to prove the impaired driving charge beyond a reasonable doubt.

[6] The Crown agrees that the police did not have reasonable and probable grounds to conclude that the strip search was necessary and therefore that the police breached Ms. Judson's section 8 charter rights. But the Crown opposes the remedies sought by the defence and asks the Court to consider a sentence reduction or penalty adjustment as the appropriate charter remedy. The Crown argues that even if the Court imposes a section 24(2) remedy, the evidence proves the impaired driving charge, beyond a reasonable doubt.

Trial Proceedings

[7] The trial proceeded as a blended voir dire. The Crown called the arresting officer Doak, and the two female officers who dealt with Ms. Judson that night, the searching officer, McFadden, and the Breath tech officer, Allaire. Ms. Judson testified. Video evidence of Ms. Judson in the booking area, before and after she was directed to remove her bra, and of Ms. Judson in the breath room, while she was providing her breath samples, was presented for the Court.

[8] The police evidence, except the impaired driving evidence, is unopposed. Absent a stay of proceedings or the exclusion of the evidence of the breath readings, Ms Judson is guilty of the Over 80 offence. The position of the defence is that if the breath results are excluded, leaving the court to consider the impaired driving charge, Ms Judson should be acquitted because there is limited evidence of bad driving by Ms Judson, and no evidence of any physical signs of impairment, except the odour of alcohol.

Evidence Regarding the Strip Search

Officer McFadden's Evidence

[9] After Ms. Judson provided a roadside sample and registered a fail, Officer Doak called for a female officer to attend at the scene to search Ms. Judson incident to arrest. Officer Amanda McFadden arrived on scene at 9:31 p.m. McFadden asked Ms. Judson to step out of the police vehicle and then she conducted a roadside pat down search of Ms. Judson. Officer McFadden says that she conducted this search to make sure that Ms. Judson did not have anything on her person that she could use to hurt herself, or the officers dealing with her, or anything she could use to aid in any escape. Under cross examination she agreed that one of the escape aids she was searching for was a handcuff key. After completing the roadside pat down search and finding nothing, Officer McFadden placed Ms. Judson in her police vehicle and transported Ms. Judson to the Quinte West OPP detachment.

[10] Ms. Judson was wearing a hoodie, t-shirt and capri-pants when she was arrested. She was not wearing any shoes. After she arrived at the detachment booking area, Officer McFadden asked Ms. Judson to remove her hoodie. Officer McFadden explained that it is the policy of QWOPP to allow detainees to wear only one layer of clothing. Officer McFadden then conducted a second, more thorough pat down search of Ms. Judson, again finding nothing, and then asked Ms. Judson if she was wearing an underwire bra. When Ms. Judson said yes, Officer McFadden asked Ms. Judson to remove her bra. Officer McFadden directed Ms. Judson to a corner of the booking area where she was under the video surveillance camera and therefore out of sight of the camera, so that Ms. Judson, while standing facing the wall, with her back towards the officer, could remove her bra. Video of the booking area, played in Court shows Ms Judson handing her bra to the officer and then immediately covering her breasts, over her t-shirt, with her hands. Her hands remain in this position until she leaves the booking area and enters her cell, where she is given a thin mattress and a blanket.

[11] Officer McFadden tried to characterize her direction to Ms. Judson to remove her bra as a request. She said she asked Ms. Judson "can you please remove your bra for safety reasons" and she said that Ms. Judson agreed to remove her bra. But she agreed under cross examination that she did not tell Ms. Judson that she could refuse to remove her bra, and it is clear to me that as a prisoner, under arrest and in police custody, Ms Judson was compelled, by the officer's request, to remove her bra.

[12] Officer McFadden testified that it is her practice to ask female inmates to remove their underwire bras. She says that she tells female inmates that their bras are removed "for their safety and ours". She says she has personally found objects in women's underwire bras, such as bear mace, and crack cocaine. She was not asked whether she found these items during her pat down searches of female detainees, or after their bras were removed, but it is reasonable to infer from her evidence, including her evidence that during the pat down search she was searching for items as small as handcuff keys, that items such as crack cocaine and cans of bear mace, would be likely be found during thorough, pat down, over the clothing, body searches.

[13] Officer McFadden testified that when she dealt with Ms. Judson she was not aware that asking a female detainee to remove her bra is in fact a strip search. She says that since the arrest she has been told by a senior officer that the removal of a female inmate's bra is a strip search, so she knows now. But she testified that she has not changed her practice and she continues to ask every female prisoner wearing an underwire bra to remove it. She says that she was taught that the removal of an underwire bra is a "normal part" of searching someone in police custody and so she still does this. She believes that anyone wearing an underwire bra poses a danger to police.

[14] Officer McFadden described Ms. Judson as visibly shaken, quiet, reserved, and on the brink of tears, throughout her interactions with her.

Officer Allaire's Evidence

[15] The female Breath tech officer, Allaire, testified and a video of her dealings with Ms. Judson in the breath room was played for the Court. Officer Allaire testified that she did not observe any outward signs of impairment, other than a strong odour of alcohol. She said that Ms. Judson's speech was clear and not slurred, and she had no issues with balance or coordination. She said that Ms. Judson's face was flushed, but said that could have been due to the fact that Ms. Judson was crying during the breath testing procedure. Officer Allaire described Ms. Judson as polite and cooperative throughout her dealings with her, and this is confirmed by the video evidence.

[16] On the video, Ms. Judson enters the breath room with a white blanket (the blanket she was given in her cell), wrapped around her chest area, below her arms. Her arms are uncovered so it is clear that she isn't using the blanket to keep warm. During the entire time that she sits in the breath room, Ms. Judson is holding the blanket up over her breast area. Several times she is seen on the video pulling the blanket up when it starts to slip down. It is clear that Ms. Judson is using the blanket to try to keep her breasts covered up.

[17] Officer Allaire, who had been a police officer for 5 years when she dealt with Ms. Judson, testified that she knew that Ms. Judson wasn't wearing a bra because she expects that every female prisoner she deals with has removed her bra. She said she could tell that Ms. Judson was uncomfortable because she wasn't wearing a bra. She said that it is her practice to direct every female prisoner to take her bra off, whether it is an underwire bra or not. She said that she has found bear mace, and other items tucked in prisoner's bras, both underwire and regular bras. Under cross examination, Officer Allaire agreed that female detainees will be asked to remove their bras, whether or not they have a prior criminal record or prior police involvement, even when their detentions are going to be temporary, and even when the female inmate is going to be placed in a separate cell, without any possibility of interacting with other inmates, under constant video surveillance.

[18] Officer Allaire also testified that she had been trained to direct female detainees to remove their bras, and she said that until this case, she had not been aware that directing an arrested female to remove her bra was a strip search. When asked under cross examination whether she had been directed to do anything differently in light of this new information, Officer Allaire said she had not changed her practice. She said she had not been asked to change her practice and she said she is not aware of any new training at the detachment dealing with the searching of female prisoners.

Accused's Evidence

[19] Jill Judson testified. She adopted the contents of her sworn statement filed in support of her Charter application. She says in her statement that she was asked whether her bra had an underwire, and then told that she had to remove it for safety reasons. She said she had to remove her bra in the room attached to the cell area where there was a camera and a window in the door directly behind her. She said she was extremely uncomfortable but wasn't given a choice and was left wearing only a thin t-shirt. She says in her statement that she is "not a small person" and that "having to be in that state in front of strangers was intensely embarrassing. Having no control over being made to remove personal items or where or how to remove them as a 35 year old woman was degrading and humiliating". She explains in her statement that after she was placed in her cell she found a blanket and used it to cover herself. She says that when she was brought out of the cell she could tell that the officers knew she was using the blanket to cover herself. She says she found the experience "embarrassing and stressful" and she couldn't understand why she "couldn't just have her sweater back". She said that if she had been given a choice about which single layer of clothing she could have worn, she would have chosen to wear her sweater. She used her blanket to cover herself until after she was released and given back her clothing. Under cross examination Ms. Judson agreed that the officers had otherwise treated her with respect and that in particular the officer who conducted the breath tests was nice to her.

Legal Analysis

Definition of Strip Search

[20] The issue of whether the removal of a female inmate's bra constitutes a strip search was considered by Justice Fuerst, sitting as a summary conviction appeal judge, in the binding appellate decision of R. v. Lee, 2013 ONSC 1000. In that case, like this one, the female accused was arrested for impaired driving and taken to the station for breath tests. A pat down search at the station revealed that the accused was wearing an underwire bra and the accused was told to remove it. At trial defence counsel argued unsuccessfully that the accused had been subjected to a strip search, that the strip search was unreasonable and a violation of section 8 and that the proceedings should be stayed. The trial judge held that there was no strip search and therefore no section 8 breach, and that even if there was a section 8 breach a stay was not the appropriate remedy. Justice Fuerst disagreed. She relied on the Supreme Court of Canada decision in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 where the SCC adopted the following definition of a strip search 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" and found that the removal of a female detainee's bra is a strip search.

Constitutional Limitations on Strip Searches

[21] In Golden, the SCC held that the power of search incident to arrest includes the power to strip search, but that because all strip searches are "inherently humiliating and degrading to detainees regardless of the manner in which they are carried out" the power to strip search is subject to limitations.

[22] A constitutionally valid strip search is a search conducted in accordance with the common law power of search incident to arrest, and therefore it must be conducted for the purpose of discovering evidence related to the reason for the arrest itself; and/or for the purpose of discovering weapons in the arrestee's possession if a frisk or pat–down search reveals a possible weapon secreted on the arrestee's person, or the circumstances of the case raise the risk that a weapon is concealed on the arrestee's person. The police must establish reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. See: R. v. Lee, supra. The SCC in Golden also drew a distinction between strip searches of individuals temporarily detained in police cells, and searches of persons entering the prison environment: "The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells"

[23] In Lee, Justice Fuerst found that the trial judge had failed to characterize the removal of the accused's bra as a strip search and therefore had failed to apply the Golden test, to determine "whether the police had reasonable and probable grounds to conclude that a strip search was necessary in the particular circumstances of the appellant's arrest".

[24] At paragraph 42 Justice Fuerst writes: "the trial judge failed to consider the Court's caution in Golden, that concerns that short term detainees may conceal weapons must be addressed on a case-by-case basis and cannot justify routine strip searches. A policy applied without exception to any female detainee wearing an underwire bra is not a case-specific circumstance. Rather it is a basis for routine strip searches of female detainees, in contravention of section 8 of the Charter."

Application of Golden Test to This Case

[25] Justice Fuerst concluded that the trial judge had failed to consider the particular circumstances in that case, which I find on the Crown's evidence, are all applicable in this case, including the following:

• that the charge was impaired driving;
• that the accused was going to spend only a few hours in police cells;
• that she would be monitored by video camera at all times and placed in a cell by herself;
• that a pat down search had failed to reveal that the bra was damaged such that the under wiring was exposed or easily removed from its casing;
• that the accused had made no threats to harm herself or others;
• that the accused had not been violent or aggressive;
• that the police had no information to suggest that the accused had a history of mental health problems.

[26] Justice Fuerst also concluded that the trial judge had failed to consider "the appropriateness of an unwritten police policy that leads to potentially different treatment of female and male arrestees, with female arrestees wearing underwire bras being automatically and without exception subjected to a form of strip search".

[27] Justice Fuerst ordered a new trial and therefore did not address the issue of a Section 24(1) remedy but she did observe that "depending on the findings of the judge presiding at any new trial, conduct by the police violative of Charter rights that is systemic in nature may be relevant to a consideration on a section 24(1) application."

Test for Stay of Proceedings

[28] A stay of proceedings is a drastic remedy, justified only in the clearest of cases, where the state conduct compromises the fairness of an accused's trial and/or in cases in which the state conduct risks undermining the integrity of the judicial process.

[29] The test to determine whether a stay of proceedings is warranted in either category consists of three requirements:

1. The prejudice to the accused's right to a fair trial or the integrity of the justice system would be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome;
2. There is no alternative remedy capable of redressing the prejudice; and
3. If there is uncertainty after steps 1 and 2, the Court must 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.

See: R. v. Babos, 2014 SCC 16.

Step 1: Prejudice Analysis

[30] Step 1 requires an analysis of whether the prejudice caused by the police misconduct will occur at trial or be made worse by a trial.

[31] Ms. Judson says in her affidavit that the humiliation and embarrassment she experienced as a result of the illegal strip search has been made worse during the experience of the trial: "Even more upsetting now is not only the embarrassment of the situation, but that people are actually reviewing and analyzing everything I thought was humiliating. Having to write this, having it read and the video watched by who knows how many people, is really disturbing". I found Ms. Judson to be a credible witness and I accept her evidence that she felt humiliated and embarrassed throughout her detention and this trial process, directly as a result of the illegal strip search. Her testimony was corroborated by the evidence of Officer Allaire, and confirmed by the video evidence.

[32] The Crown argues that the legal tests for a stay under section 24(1) and/or the exclusion of evidence under section 24(2) have not been met in this case because this is not "the clearest of cases" involving "egregious" police conduct. She contends that the police conduct was reasonable since the accused was asked as opposed to being physically forced to remove her bra, and was given the opportunity to remove her bra in a private corner of the booking area, underneath and out of sight of the surveillance camera. The Crown challenges Ms. Judson's evidence that she was humiliated and embarrassed as a result of the strip search and asks the Court to find that it was the experience of being arrested for the first time that was in itself upsetting and embarrassing to Ms. Judson, but the trial evidence does not support this finding.

[33] Where the accused seeks a stay of proceedings on the basis of state misconduct, the accused must establish, on a balance of probabilities, that the misconduct of the state prejudiced or had an adverse effect on his ability to make full answer and defence, or that the state conduct risks undermining the integrity of the judicial process. Prejudice to the integrity of the administration of justice will occur when the Charter breach is serious enough that if left unanswered, the trial itself may appear to condone the serious police conduct. See: R. v. O'Connor, [1995] 4 S.C.R. 411.

Step 2: Alternative Remedies

[34] Step 2 requires that I consider whether an alternative remedy will remove the prejudice to Ms. Judson and to the integrity of justice. Remedies less drastic than a stay are available under section 24(1) in situations where an abuse of process has occurred but the "clearest of cases" threshold is not met. See R. v. O'Connor, [1995] 4 S.C.R. 411.

Step 3: Balancing of Interests

[35] Finally, the Court must 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. This third stage requires that I consider the circumstances of the accused, the nature of the charges, the seriousness of the state conduct, whether the conduct is isolated or an ongoing problem, and the broader interest of the community in having serious charges disposed of on the merits.

[36] In this case, I have carefully considered that drinking and driving cases are viewed seriously by the public because drunk driving can have tragic and devastating consequences. There is a strong societal interest in the adjudication of drinking and driving cases on their merits. I also take into account that while there was no accident or injury in this case, Ms. Judson's breath readings were almost twice the legal limit.

[37] I have also taken into consideration that the Charter breach here is significant. Ms. Judson was subjected to a strip search without reasonable and probable grounds. She was humiliated and embarrassed throughout her detention and her humiliation has continued throughout the trial process which involved by necessity the viewing and analysis of the video evidence and Ms. Judson's testimony.

Systemic Nature of the Breach

[38] It is clear, from the evidence of the Officers McFadden and Allaire, that the illegal strip search of Ms. Judson was not an isolated incident. The removal of underwire bras, and possibly, at least according to Officer Allaire's testimony, the removal of any type of bra, of all female detainees, is a routine police procedure at the Quinte West OPP detachment.

[39] Furthermore, according to both officers, this systemic police practice at the Quinte West OPP detachment has continued for many years after the Supreme Court in Canada in Golden defined a strip search to include not just the removal of clothing to expose a person's private areas, but also the removal of clothing to expose a detainee's undergarments. Both Officer McFadden and Officer Allaire testified that they have just become aware, as a result of the issue being raised in preparation for this trial, that the removal of a female detainee's bra, is in fact a strip search. Yet both officers testified that they have continued with this practice and their intention is to continue to do so, out of concern for "police safety". They have not received any training or directive from their superiors to remedy this routine police misconduct. It seems that police officers at the Quinte West OPP detachment continue to routinely and without factual foundation, purporting to address a vaguely conceptualized notion of "prisoner and police safety", at the expense of the privacy and dignity of female detainees.

[40] The indifference expressed by both Officers McFadden and Allaire to their obligation as police officers to abide by the legal constraints surrounding strip searches is very concerning. And the apparent willingness of both officers, and possibly other police officers at Quinte West OPP detachment, to continue with a practice of removing at least every underwire bra worn by female detainees, knowing that this practice, when implemented automatically and without exception towards every female detainee, is illegal, is an egregious abuse of police power.

Inadequacy of Alternative Remedies

[41] I also find that there is no alternative remedy, such as a sentence reduction, that will suffice, given the narrow range of penalties available to the Court when upon conviction the Court must impose a mandatory minimum fine and a mandatory one year driving prohibition. It is possible given the elevated readings, that the Crown could have sought a fine higher than the mandatory minimum fine, but even if that were the case, the remedy available to the Court would be a fine reduction of only several hundred dollars, which would be inadequate to address the harm done to Ms. Judson and the integrity of the justice system in this case.

Decision

[42] For these reasons I find that the prejudice caused by the breach of Ms. Judson's rights under section 8 of the Charter will be manifested, perpetuated and aggravated if her trial is continued. Proceeding to a final adjudication on the merits in this case would cause irreparable prejudice to the integrity of the justice system. Therefore the Over 80 and Impaired charges against her, arising from this incident, will be stayed. The Highway Traffic Act offences set to be spoken to on this date are also stayed.

Alternative Analysis Under Section 24(2)

[43] Had the 24(1) application had not been before me, I would have excluded the breath tests pursuant to Section 24(2) of the Charter, for the reasons I have outlined above, and applying the Grant test. I note in particular that the illegal strip search occurred before the breath tests were taken, and it is clear from the evidence, including the video evidence, that Ms Judson continued to experience humiliation and embarrassment throughout the breath test procedure. If the remedy imposed had been the exclusion of the breath test results I would have acquitted Ms Judson of the impaired driving charge. There is minimal evidence of bad driving by Ms Judson and except for the odour of alcohol detected by all officers who dealt with Ms Judson there is no evidence that Ms Judson exhibited any signs of impairment. Officer Doak testified that when he first observed the vehicle at approximately 9:04 p.m. a male was driving and he noticed the vehicle hit the curb twice. He followed the car into an LCBO parking lot and watched the male driver and Ms. Judson enter the LCBO and exit with purchases. When they returned to the vehicle Ms. Judson got into the driver's seat and her male companion sat in the passenger seat. Officer Doak testified that Ms. Judson failed to turn on the car exterior lights. Officer Doak followed Ms. Judson as she drove out of the LCBO parking lot and then drove halfway through an intersection to make a left turn on a red light, forcing a vehicle coming through the intersection to brake suddenly. It was at this point that Officer Doak stopped the vehicle. There is no other evidence of bad driving. Officer Allaire, the breath tech officer, testified that she did not observe any outward signs of impairment. She said that Ms. Judson's speech was good and she did not have any issues with balance or coordination. All three officers who interacted with Ms. Judson noted an odour of alcohol but they did not observe any other outward signs of impairment. The Crown's evidence fails to prove the offence of impaired driving beyond a reasonable doubt.

June 21, 2017

Signed: Justice E. Deluzio