Court File and Parties
Court File No.: 15-15023222 Court: Toronto Old City Hall Date: 2017-09-08
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Tafari Gerson-Foster
Before: Justice Beverly A. Brown
Heard on: April 10, 11, 12, and June 28 of 2017
Reasons for Charter Application released on: September 8, 2017
Counsel:
- Mr. Kelvin Ramchand, for the Crown
- Mr. Andrew Stastny, for the accused
Reasons for Decision
BROWN, B., J.:
Introduction
[1] The applicant was charged with possession for the purpose of trafficking in cocaine, and in marihuana, and for possession of monies under $5,000 being the proceeds of crime, in relation to December 23, 2015. These charges arose from searches conducted on December 23, 2015, following his arrest on a surety warrant that had been issued weeks prior to the arrest.
[2] The applicant has argued that there were breaches of sections 8 and 9 of the Charter. The applicant has argued that Mr. Gerson-Foster was arrested in breach of his s. 9 Charter rights arising from a surety warrant for arrest submitted to be invalid. The applicant has submitted that the surety warrant should not have been on the CPIC system on December 23, 2015. Secondly, the applicant has argued that there was a concurrent breach of his s. 8 Charter rights to be free from unreasonable search and seizure, following the surety warrant arrest when he was taken into custody and to the police station. At the roadside before being placed in the cruiser, the applicant was given a pat down search and found to be in possession of marihuana and wads of $50, $20, and $10 bills folded in half and held together with elastic (which totaled $3,495). When he arrived at the police station he was searched in a level 3 search, which followed the prior pat-down search at the roadside, wherein drugs had been found on his person together with monies that were the subject of the charges. It was not until sometime after the searches and seizures that counsel for the applicant took the position with the police that the surety warrant was not valid and in effect should not have been in existence. The applicant has also argued that there was a breach of s. 10(a) of the Charter arising from the failure to advise the applicant earlier of the reason for arrest, and has added to that at the late stage of submissions, a breach of s. 10(b) of the Charter as well.
[3] The respondent has argued that the surety warrant that was originally issued was properly issued, that it was never properly executed, and that it was proper for the surety warrant to remain on the CPIC system. The respondent has argued that the continued existence of this surety warrant, and its placement on the CPIC system as evident to the arresting officers, arose from there being an informal but invalid procedure on an earlier court date. Essentially, the respondent has argued that on a prior court appearance following the issuance of the surety warrant for arrest, counsel for Mr. Gerson-Foster invited the court to substitute a surety rather than to properly execute the surety warrant. This more casual approach to the existence of the surety warrant created a situation where the surety warrant was not properly executed. This more casual approach seemed to arise from the defence request that Mr. Gerson-Foster not be placed in custody for proper processing on the execution of the surety warrant for arrest. Instead, the case was treated as a substitution of a surety. The respondent has argued that this error in procedure caused the problem of the surety warrant not having been "executed" and accordingly the surety warrant was not removed from the CPIC system. The respondent argues that the surety warrant continued to be a live and valid warrant for arrest on December 23, 2015, when Mr. Gerson-Foster was placed under arrest, and subsequently searched and evidence was seized which is the subject of this Charter application. In essence, the Respondent argues that the arrest was valid. In the alternative, the respondent argues that any breach in keeping the surety warrant in place on CPIC, arising from a new surety and the applicant attending at court on November 18, 2015, was at worst a technical breach of s. 9 of the Charter arising from a series of events wherein the police were not properly notified that the surety warrant had been dealt with by the court and the applicant properly released on a new bail order.
[4] This case, through the issues raised, illustrates for the court why procedural shortcuts suggested by counsel, which do not comply with the requirements of the Criminal Code, as interpreted by case law, can cause huge problems at a later point in time. In this case, it caused the applicant to be arrested and searched, and drugs and proceeds, as alleged by the crown, were seized from him and have become the subject of the charges currently before this court.
[5] The applicant has argued that the arrest on the surety warrant was an arrest in breach of s. 9 of the Charter, and that evidence seized arising from this arrest constituted a breach of s. 8 of the Charter. As well the applicant has argued that there was a further breach of s. 8 of the Charter arising from the invasiveness of the search at the police station, which was a strip search. The applicant has argued that the strip search was not justified in this case. The applicant has argued that the evidence seized in this case should be excluded pursuant to s. 24(2) of the Charter.
[6] The respondent has argued that there were no breaches of s. 8 and 9 of the Charter, and that even if there were breaches that there should be no exclusion of evidence arising from a consideration of s. 24(2) of the Charter.
[7] There was a voluminous amount of evidence in this trial, both written, in the form of exhibits, DVD video of portions of the police investigation, and supplemented by viva voce evidence of many police witnesses, witnesses related to practices of the police service and court regarding procedures and agreed facts with respect to other aspects of this case. Most of the evidence led by the applicant, and relied upon in the applicant's argument, was to the effect that the Toronto Police Service was negligent in updating CPIC, through the actions or omissions of Toronto Police Court Officers, or others in the records office, or elsewhere managing records or documents.
[8] However, as will be developed in the reasons, the issue boils down and will be decided on a much simpler question, that is to say, on Nov. 18, 2015 when counsel sought a "deemed execution" of the surety warrant, is that a legal or valid procedure? Was the surety warrant for arrest "executed" on that date? If it was not "executed" on that date, notwithstanding that a new bail order had been entered, should the surety warrant for arrest have been removed from the CPIC system relied upon by the police? The findings in this regard drive the Charter analysis as it relates to sections 9 and 8. The analysis related to the s. 10 Charter argument is dealt with at the end of the reasons.
Uncontroverted Evidence
[9] A great deal of evidence, and facts, in this case are not in dispute.
[10] Having been charged with assault, contrary to s. 266 of the Criminal Code, Mr. Gerson-Foster was released on a Recognizance of bail, naming his sister, Sachanna Gerson, as a surety in the amount of $1,000, together with various conditions, dated May 4, 2015. He was not required to live with his surety as a term of this bail.
[11] Approximately 6 months later, the surety attended before a justice of the peace, on November 3, 2015, and advised that the accused was out of control, had destroyed her home, and she wished to have a restraining order. She also applied as surety for relief on this bail order. The justice of the peace issued a surety warrant for arrest, aka an order for committal, to arrest Mr. Gerson-Foster, on November 3, 2015, pursuant to s. 766 and 769 of the criminal code. The case was scheduled to be in court next on November 18, 2015.
[12] On November 18, 2015, the case and Mr. Gerson-Foster were traversed from the 111 remand court, to appear before a judge in the Old City Hall practice and procedure court, 112 court. Counsel appeared for Mr. Gerson-Foster, advising the court that there was a surety warrant, and that the Crown had instructed the police not to arrest Mr. Gerson-Foster. Defence counsel advised the court that counsel were asking the judge to "deem the warrant executed". The suggestion was made that there be a "brand new bail". Initially, the information and material was not before the court. It is not clear when the information was brought before the court. The case was held down.
[13] Counsel for Mr. Gerson-Foster advised the court when the case was re-called that the "mother was stepping in" for the sister of Mr. Gerson-Foster who had relieved herself of her obligation. The court was asked to release him on a new bail, naming the new surety, Carla Gerson (Mr. Gerson-Foster's mother), and setting out various conditions on the new bail. One of the conditions on the new bail required Mr. Gerson-Foster to live with the surety. Many aspects of the way in which this procedure was discussed appeared more in keeping with the substitution of a surety procedure, rather than the execution of a surety warrant, which is a totally different procedure as discussed herein.
[14] After the new Recognizance of bail was prepared, setting out the name of the new surety and all of the conditions, counsel for Mr. Gerson-Foster stated "and if the surety warrant can be deemed executed". The court responded to this defence request by stating "I will note that it's been executed". The court stated that he was "technically" in custody, and defence counsel asked that he be permitted to sit in the body of the court. When an issue arose as to whether the Crown consented to a particular condition, and wanted to speak to the Crown who had more knowledge of the situation, the judge stated that Mr. Gerson-Foster had to step in custody. It is not clear as to whether the applicant simply remained physically positioned in the body of the court. The court made this statement after having an opportunity to review the surety relief form. The case was held down pending the Crown consultation, and there were equipment issues in the court. At that point the defence consented to the additional condition that Mr. Gerson-Foster have no contact with his sister, the previous surety. This was the condition on which the crown was seeking to consult the other crown. Defence counsel then left the courtroom with the consent of the court to be excused. There was no indication in the transcript as to what happened, if anything, with the surety warrant or the associated paperwork.
[15] There is no doubt that a new bail, which was a new Recognizance with the new surety in the amount of $1,000, and new conditions, was entered in court for the original charge of assault. In some ways, it appears that the proceeding was dealt with as a surety substitution, rather than an execution of a surety warrant, and that seems to be the source of the problem in this case.
[16] Since Mr. Gerson-Foster did not go into custody, he was not processed by the police, the surety warrant was not noted by the police to have been executed with his concurrent delivery into custody, and accordingly the surety warrant was not removed from CPIC. This procedure for execution of a surety warrant was outlined in the evidence of Ms. Gowanlock and Mr. Patitucci.
[17] The court officer working in the court where Mr. Gerson-Foster's bail was discussed, 112 court, on Nov. 18, 2015, did not have a copy of the brief, and noted on the docket beside this case the description of the action "surety relief". As noted herein, the procedure for "surety relief" is to be contrasted with the procedure of execution of "surety warrant". He understood the difference between surety relief (substituting a surety on a bail order) and surety warrant. He does not recall being told that there was a surety warrant in this case. He did not have a brief. He may not have seen any surety warrant for this case. The only paperwork he was given for this case was a copy of the new bail order. In the surety warrant cases he has dealt with in the past, the person was arrested, the person was brought to the cells, searched, and placed in a cell for the police division to pick up the person and process the warrant. On a surety warrant the person is arrested. Court officers do not remove surety warrants from CPIC. The only warrants removed from CPIC by court officers are bench warrant rescissions (which relate to an accused failing to appear in court).
[18] Ms. Karen Gowanlock, an employee of the Toronto Police Service, gave viva voce evidence. She was a senior advisor with court services, attending as the designate for the Toronto Police Service Superintendant. She testified that the procedure is that on an application by a surety for relief, where the justice creates a warrant, an order for committal, the hard copy documents consisting of the surety warrant and a supplementary form are scanned and sent to versadex and sent to records. The Toronto Police Service records office then places this information on CPIC. She testified as to the state of the information on CPIC related to Mr. Gerson-Foster. As of December 23, 2015, the surety warrant that was placed on the system for Mr. Gerson-Foster on November 3, 2015, remained in place. It was not noted as an executed surety warrant until December 23, 2015. There was an indication of a new bail being in place on November 18, 2015, but no indication that any surety warrant had been executed on that date. She explained that before any surety warrant could be removed from CPIC, the office would need to receive a document to indicate that it had in fact been executed. When a surety warrant for arrest is executed, the police officer handling the arrest has the obligation of preparing the paperwork confirming the execution of that warrant. She explained that the normal procedure when a surety warrant is executed is for the police officer doing the arrest to prepare paperwork to that effect, and attach it to the new bail order, both of which would be sent and put on CPIC as two separate documents. In essence, her evidence was that without the proper execution of a surety warrant, the CPIC system still reflects the surety warrant as being in effect.
[19] Ms. Gowanlock also explained the difference between surety relief and the execution of a surety warrant. Surety relief means the substitution of sureties.
[20] Mr. Maurizio Patitucci, Manager of Court Support at Old City Hall court, also gave evidence in this trial. He testified from his experience in his prior career as a clerk and as a manager. He testified that surety relief can mean the substitution of a surety. He testified that normally when there is a surety warrant the person must be arrested. When a surety warrant is executed, there is a line through the Recognizance with a notation that the warrant has been executed, and a signature of the justice is affixed.
[21] It is clear on the evidence in this application, that Mr. Gerson-Foster did not go into custody on November 18, 2015, as part of any surety warrant procedure. He remained in the courtroom, and was not removed and was not placed in the custody of the police at any time, from the evidence in this application. The certified copy of the earlier Recognizance of bail, which had a line through it with the initials of a justice, and which named the first surety who sought relief and was the precursor to the surety warrant of arrest, was not sent to the records of the Toronto police, nor to CPIC. Those records reflected the continued existence of the surety warrant for arrest.
Police Investigation and Arrest of Applicant on December 23, 2015
[22] On December 23, 2015, PC Daniel KIM and PC Atul Sharma were working in uniform, and attended a police briefing in relation to a shooting the previous night. They were detailed to attend the area of the investigation, and advised that Mr. Gerson-Foster was in the area and was the subject of a surety warrant for arrest. They were to arrest him if they found him. This area was described as a violent area. They saw him walking, at approximately 12:55 pm that day, and they called out to him. Mr. Gerson-Foster briefly turned around but continued to walk away, eastbound on Flemington Road, in the Lawrence Heights community. The officers approached him, and placed him under arrest for the surety warrant. They performed a pat down search of Mr. Gerson-Foster before placing him in the scout car. This search was done as a search incident to arrest, and for officer safety. It was done to look for items that could assist as a means of escape or cause harm to the person or an officer. The area of the arrest was known for violence. In this pat down search, the officers located a zip lock bag with approximately 5 g. of marihuana, in the pocket of his hoody sweater, and two amounts of cash. One was in his left pant pocket, was a half inch thick wad of $50 and $20 bills, folded in half without an elastic band. The second wad was a larger wad, approx. 1.5 inches thick, of $20 and $10 bills, Canadian, which were folded in half and held together with an elastic band. Mr. Gerson-Foster verbally identified himself and gave his date of birth. The officers advised him he was under arrest for a surety warrant and advised him of his rights to counsel. He indicated he understood and wanted to call a lawyer. At some point, Mr. Gerson-Foster asked the officer to check the system to confirm that the surety warrant was no longer there. The surety warrant had a date of November 3, 2015. There was some discussion as between the officers and Mr. Gerson-Foster that sometimes it can take awhile to update the police database. The officers confirmed that the surety warrant was on the system. Mr. Gerson-Foster was speaking about how he had entered a new bail. Mr. Gerson-Foster said he had taken care of the warrant. In P.C. Kim's mind, it was a valid warrant. The officers were also told previously at the briefing by Officer Jackson about this surety warrant, and relied upon both CPIC and this other officer for their opinion of the validity of the surety warrant. Although P.C. Kim had experienced a problem with the accuracy and timeliness of CPIC information in the past, he testified that in the vast majority of cases it is a reliable system and it is up to date. P.C. Sharma testified he had never encountered such a problem with CPIC in his nine years as a police officer.
[23] Upon arrival at the police station, P.C. Kim and P.C. Sharma presented Mr. Gerson-Foster before the booking officer, and the staff sergeant authorized a level 3 search because drugs had been found in the pat down search in articles of his clothing. He also had $3,495 cash on his person. In the pat down search by both arresting officers, they discovered cocaine which had dropped to the floor from Mr. Gerson-Foster's buttocks when he was removing his clothing. Mr. Gerson-Foster tried to cover this cocaine when it fell to the floor.
[24] At approximately 2:15 pm, P.C. Kim and P.C. Sharma turned over one small plastic baggy of an unknown white substance, and a small black plastic bag with a white substance, together with marihuana (from the previous pat down search), to PC Radoslaw Figlarz. By the time P.C. Figlarz dealt with Mr. Gerson-Foster, the level 3 search had already been done. There seemed to be some confusion as to whether Mr. Gerson-Foster was placed under arrest at that time, or earlier, or later, for the charges of possession for the purpose of trafficking in cocaine and possession of proceeds of crime. P.C. Figlarz was the officer who laid those charges. At some point however, P.C. Figlarz did advise Mr. Gerson-Foster that he would be charged with the drugs that had been found. In any event, Mr. Gerson-Foster advised he had a lawyer, and this officer called the office number for Andrew Stastny, his lawyer. There was no answer, so the officer called the after hours number for that lawyer, and there was no answer there. A message was left on voice mail, at approx. 2:23 pm, and at 3:34 pm, a return call from defence counsel came in to the station. Mr. Stastny mentioned that the surety warrant had been executed in court, and Mr. Gerson-Foster had been released on a new bail. Mr. Gerson-Foster had earlier stated that there may be a problem with the surety warrant. No officer had previously mentioned a problem or asked P.C. Figlarz to look further in to the validity of the surety warrant. Later, after speaking to Mr. Stastny, at approx. 4:04 pm, P.C. Figlarz spoke to someone in the clerks' office at Old City Hall, who checked ICON, and confirmed that the case had been addressed on November 18 and dealt with at that time. He understood that this meant that there was no longer a surety warrant on December 23. As matters proceeded, with Mr. Gerson-Foster going into custody on December 23, the surety warrant was noted as executed on CPIC at that time.
Analysis
Can a Surety Warrant be "Deemed Executed"?
[25] Where a surety for a person bound by a Recognizance wishes to be relieved of his or her obligation under the recognizance, there are two separate procedures that may follow.
[26] One option is for the surety to attend before the justice of the peace, to substitute another suitable person as the replacement surety. This procedure is governed by s. 767.1 of the Criminal Code. This option did not take place in the case at bar. This option is distinct from the issuance of a surety warrant for arrest by a judicial officer.
Section 767.1 of the Criminal Code:
(1) Notwithstanding subsection 766(1) and section 767, where a surety for a person who is bound by a recognizance has rendered the person into the custody of a court pursuant to section 767 or applies to be relieved of his obligation under the recognizance pursuant to subsection 766(1), the court, justice or provincial court judge, as the case may be, may, instead of committing or issuing an order for the committal of the person to prison, substitute any other suitable person for the surety under the recognizance.
(2) Where a person substituted for a surety under a recognizance pursuant to subsection (1) signs the recognizance, the original surety is discharged, but the recognizance and the order for judicial interim release pursuant to which the recognizance was entered into are not otherwise affected.
[27] The second option is for the surety to attend before a justice of the peace, and for that justice to issue a surety warrant to arrest the defendant. Following the arrest of the defendant, and the defendant going into custody, a new bail can be put in place. This procedure is governed by sections 766 and 769 of the Criminal Code:
Sections 766 and 769 of the Criminal Code:
766 (1) A surety for a person who is bound by recognizance to appear may, by an application in writing to a court, justice or provincial court judge, apply to be relieved of his obligation under the recognizance, and the court, justice or provincial court judge shall thereupon issue an order in writing for committal of that person to the prison nearest to the place where he was, under the recognizance, bound to appear.
(2) An order under subsection (1) shall be given to the surety and on receipt thereof he or any peace officer may arrest the person named in the order and deliver that person with the order to the keeper of the prison named therein, and the keeper shall receive and imprison that person until he is discharged according to law.
(3) Where a court, justice or provincial court judge issues an order under subsection (1) and receives from the sheriff a certificate that the person named in the order has been committed to prison pursuant to subsection (2), the court, justice or provincial court judge shall order an entry of the committal to be endorsed on the recognizance.
(4) An endorsement under subsection (3) vacates the recognizance and discharges the sureties.
769 Where a surety for a person has rendered him into custody and that person has been committed to prison, the provisions of Parts XVI, XXI and XXVII relating to judicial interim release apply, with such modifications as the circumstances require, in respect of him and he shall forthwith be taken before a justice or judge as an accused charged with an offence or as an appellant, as the case may be, for the purposes of those provisions.
[28] These provisions have been the subject of judicial commentary. In R. v. Smith, 2013 ONSC 1341, Justice Dambrot considered the provision. The court held that once a committal warrant is issued, a surety warrant for arrest, that, following Gary Trotter, The Law of Bail in Canada, 3d ed. (Toronto: Thomson Reuters Canada Limited, 2010) ("Trotter") at pp. 6-10 and 6-11), this author now being a justice on the Court of Appeal for Ontario, that once a committal order is made, the court cannot simply substitute sureties. In effect, the person must be placed in custody, and a new bail determination be made including a determination of the suitability of a new proposed surety. This judgment was followed in R. v. Mott, 2013 ONSC 1768, by Justice Gauthier, who considered the case of an application by the surety for relief, pursuant to s. 766, of the Criminal Code which was executed and the accused turned himself in custody. In essence, the accused was required, in custody, to apply for release all over again, following "Trotter" at p. 195, and the common law, including R. v. Burke (1893), 24 O.R. 64. In both Smith and Mott, the Recognizances had specifically named sureties, and the courts ordered that there should be a hearing and consideration of release with a new named surety. This is to be distinguished from the court's consideration in R. v. Alexander, 2012 ONSC 3792. In that case, Justice Hill considered the situation where there had been a release on a Recognizance, with no named sureties. After some period of time, sureties did come forward and the accused was released on that bail. The issue subsequently arose, when the sureties no longer wanted to act as sureties, as to whether there should be a new bail hearing or simply a substitution of sureties. In that case, the court held that no new bail hearing was required, taking a view of the provisions contrary to the courts stated above. There had been no s. 766(3) certificate of a sheriff that the accused had been committed to prison. The accused had consented to his detention at that time. Given the factual context of that case, however, this court distinguishes Alexander, in that no sureties had previously been named in the Recognizance [see paras 47 to 50 of Smith]. The holding that once a surety warrant is issued, and a committal order is made, and an accused in custody, the Recognizance is at an end, was also taken by the Court of Appeal in Nova Scotia in R. v. Delorey, 2012 NSCA 5. The Recognizance was at an end and a new determination needed to be made for a new order of release.
[29] In his consideration of the issue, Justice Dambrot distinguished the procedures in the Criminal Code of a surety warrant, pursuant to s. 766, and a substitution of sureties, pursuant to s. 767.1. The court in Smith held that it would not be appropriate for there to be a substitution of surety pursuant to s. 767.1 where the original Recognizance ordered, for instance, that the accused live with the surety and the surety's address is specified. (That was not the case in the case at bar, although the surety was named, the first Recognizance did not require the accused to live with the surety, who was his sister.) Nonetheless, the court in Smith, at para. 52 made a compelling argument that the suitability of a particular surety might be integral to the actual decision to release an accused on bail, such that the need to get a new surety would trigger the need for a new bail hearing. A simple substitution of a surety would not be appropriate.
[30] The court held very clearly in Smith, at para. 41, that once the s. 766 Criminal Code procedure is followed and a surety warrant is issued for the arrest of an accused, the alternative procedure of a substitution of sureties, pursuant to s. 767.1 is no longer available.
[31] The court notes that there is no Criminal Code provision to permit a "deemed execution" of a surety warrant, which is set out in s. 766, in Part XXV of the Code. This is to be contrasted with the Criminal Code provision which permits a deemed execution of a warrant to arrest for example for failure to appear in court, when an accused returns to court, as set out in s. 511(4), which applies to provisions in Part XVI of the Code. The clear procedure set out in Part XXV of the Code, s. 766, where a surety has applied to a justice for relief, and a surety warrant by means of an order of committal is issued, the procedure is that the warrant for arrest be acted upon, the accused must go into actual detention and into custody. The process which then follows would consist of processing the person while in custody, and as set out in the evidence in this trial, including Ms. Gowanlock, Mr. Patitucci and the agreed facts from the court officer, that the surety warrant would be noted as having been executed, and the warrant removed from the CPIC system. The person would be eligible for consideration for release, which could include a new Recognizance of bail, as was done in this case, naming a new surety and including the same or different conditions. The proper procedure for executing a surety warrant for arrest was not followed on the court appearance on November 18, 2015. It appears that if the proper procedure had been followed in this case and Mr. Gerson-Foster had gone into actual custody, the procedure could have been followed of the police noting the execution of that surety warrant, and notifying CPIC that the warrant was no longer in existence. He could subsequently have been released on the new Recognizance. It is clear on the evidence in this case that since Mr. Gerson-Foster did not go into custody, he was not held by the police for a notation that the warrant was executed and a notification to CPIC that it was to be removed as an outstanding warrant. Skipping the critical step of Mr. Gerson-Foster going into custody resulted in skipping the critical steps of properly executing the surety warrant and removing the surety warrant from CPIC.
[32] The consequence flowing from this omission, was that CPIC still showed the surety warrant for arrest of Mr. Gerson-Foster as still being in place, which is consistent with it not having been properly "executed". The warrant still existed. An arrest on this warrant, accordingly, was a proper and legal arrest. As held above, the warrant was not executed as required by the Criminal Code, as Mr. Gerson-Foster was not actually taken into custody and delivered to the police. He clearly remained out of custody throughout the proceeding on November 18, 2015. Legally, the surety warrant was not "executed" and this court finds that the surety warrant continued to exist. There was no error in failing to remove the surety warrant from CPIC as it still existed. The existence of a new order of bail, ironically, was a separate document that was not attached to any order or document signifying that the particular surety warrant was executed and should thereby be relieved. As this court knows, an individual can have a bail order on some charges, and not have bail on other charges. That is not an unusual situation. Having a bail order on a charge, and an outstanding earlier warrant on another charge is also not unusual. There was nothing in the granting of the new Recognizance that by operation of law concurrently executed the surety warrant. Those two procedures are separate and distinct, even though the Code contemplates a surety warrant be executed, properly, before that person be on another bail order. That did not happen in this case. By operation of law, in this case, the surety warrant remained in existence due to the failure of it being properly executed, and it was legally and properly in place on CPIC, which grounded the arrest of Mr. Gerson-Foster on December 23, 2015.
[33] The court makes this finding notwithstanding its appreciation that counsel for Mr. Gerson-Foster did not intend for this to happen, and instead intended that it be noted "executed" and accordingly removed from CPIC. The problem, as this court has found, is that the surety warrant for arrest was never actually executed. Counsel and the court instead proceeded with the case on the alternative basis, of replacing the former bail and former surety, as is contemplated as an alternate procedure in s. 767.1. This created a problem as that procedure ignored the fact that there had been a surety warrant for arrest that had already been issued, so the court could not proceed on an alternate procedure outlined in s. 767.1. Accordingly, Mr. Gerson-Foster was required to go into custody or detention, actual custody, for processing. Had that happened, the steps could have been taken place following a proper execution of that surety warrant, including any processing by the police or jail authorities, to be followed by a notation on the police system that he had gone into custody and the warrant therefore had been executed. This would have removed the prior surety warrant for the arrest of Mr. Gerson-Foster from CPIC. Mr. Gerson-Foster could have then been released on the new Recognizance of bail that counsel agreed upon. The procedure suggested by counsel in court, of avoiding Mr. Gerson-Foster going into custody on that date as was required by the Criminal Code, saved Mr. Gerson-Foster the need to go into custody on that date, but was in fact an improper procedure, that left the surety warrant for arrest outstanding, and in place, for December 23, 2015, when he was subject to arrest on that ongoing surety warrant that the police noted from CPIC remained outstanding.
Section 9 of the Charter
[34] Accordingly, this court finds that the police acted upon a surety warrant to arrest Mr. Gerson-Foster that was on CPIC, and properly in existence, as not having been previously executed and removed from the system. The arrest was not contrary to s. 9 of the Charter. The court is mindful of the fact that Mr. Gerson-Foster told the police upon his arrest that there was a concern about this warrant. The police checked the system and confirmed CPIC noted the existence of the warrant for arrest. He was taken to the police station, where the arresting officers communicated their intention to clarify the situation later at the station. The problem arose, in this case, from the fact that when he was presented for booking before the officer in charge, having previously on arrest being in possession of drugs, the officer ordered a level 3 search before he was to be put in custody for subsequent bail consideration. As noted herein, a new bail determination was required, and this court finds that an assumption he would be going in custody before consideration of bail was a proper assumption for the officer in charge to make, to justify the level 3 search. The discovery of a large quantity of cocaine in the level 3 search preceded any new credible information that there was any problem with the arrest.
[35] This court would note, in passing, the following. Although defence counsel told the police that the surety warrant had been executed, that was not legally what had happened in this case. This is the finding of this court. Although the police relied upon this information from defence counsel, the new information was not at that point determinative in any decision to detain or release Mr. Gerson-Foster, as at that point there were new offences that had been discovered, following the discovery of a large quantity of cocaine, and a large quantity of marihuana, together with a very large sum of money, which was going to be the basis of new charges and a determination of bail on those charges. With these new developments, the validity or invalidity of a prior surety warrant was no longer determinative.
Section 8 of the Charter
Pat Down Search Incident to Surety Warrant Arrest
[36] Essentially the applicant makes two arguments in relation to the submission related to s. 8 of the Charter. Firstly it is the applicant's position that any search incident to arrest, being the pat down search at the roadside, where the arrest is contrary to s. 9 of the Charter also makes unreasonable any search incident to that arrest. As set out above, the court has found that there was no s. 9 Charter breach arising from the surety warrant arrest, and accordingly this court would find that there is no s. 8 Charter breach for a search incident to that valid and lawful arrest.
Strip Search at Police Station
[37] The second argument made by the applicant is that there was a s. 8 Charter breach arising from the level 3 strip search at the police station, after the applicant was taken there as an arrested person. As set out above, the officer in charge authorized the strip search of the applicant at the police station following the prior discovery of drugs on the person of the applicant at the roadside, and the concern that he would be going in to the prison population before release. The applicant has taken the position that the strip search was not justified on the basis of the nature of the arrest, which was for a surety warrant, and not at that time an arrest in relation to drug possession or other criminal charges.
[38] Warrantless searches are prima facie unreasonable. Searches incident to arrest are an established exception to this general rule. In the seminal case which considered the law relating to strip searches, R. v. Golden, 2001 SCC 83, speaking for the majority, Iacobucci and Arbour, JJ, considered the common law search incident to arrest power. The Court held that this power does include the power to strip search. The power is subject to limitations. The prerequisites and considerations balance the competing interests of valid law enforcement goals with individual privacy rights. Following the Court's judgment in R. v. Stillman (1997), to be valid as a search incident to arrest, a warrantless search must be in relation to a lawful arrest, the search must be truly incidental to the arrest and it must be carried out in a reasonable manner. In its subsequent judgment in R. v. Caslake, the Court held that a search incident to arrest must have as its main purposes ensuring the safety of the police and the public, preventing the destruction of evidence, and discovering evidence of the offence or offences for which the accused was arrested.
[39] In this case, the court has held that the arrest on the surety warrant was lawful. The next question is whether the search was related to the reasons for arrest. In this case, the applicant was originally placed under arrest for a surety warrant. At the roadside, in a pat down search before he was placed in the police cruiser and taken to the police station, officers discovered on his person 6.66 grams of marihuana, and $3,495 in two wads of Canadian currency, being $50, $20 and $10 bills held together with two elastics. He was then taken to the police station, where the officer in charge authorized a level 3, also known as strip, search. At that point he was in police custody, having been arrested on a surety warrant of arrest, and subject to potentially being released on a subsequent bail order. In the meantime, as stated by the Supreme Court of Canada in para 96 of Golden, it is important to distinguish between strip searches immediately incidental to arrest, and strip searches related to safety issues in a custodial setting. In the latter scenario, there is a greater need to ensure that persons are not concealing weapons or illegal drugs on their person prior to their entry into the prison environment. In the case at bar, the applicant's recognizance had effectively been cancelled by the surety warrant of arrest, and applying the law stated herein, including the case of R. v. Smith, supra, he would be subject to subsequent consideration for a new bail order. In the meantime, he would be entering the prison population, until he had an opportunity for consideration of release on a new Recognizance. That was the situation reflected by the information on CPIC at that time, and his status as an arrested person. The court also is mindful of the situation that he had been found previously, in the pat down search, to have on his person in excess of 5 grams of marihuana. While the record was not clear as to whether he was placed in arrest for this possession of drugs, in addition to the surety warrant, the court will assume that he was only under arrest for the surety warrant. Applying the context of the scenario that he was about to go in the prison population, this court finds that it was in all of the circumstances reasonable to authorize a strip search of the applicant before he went in the prison population. While this court is also mindful of the applicant's argument, and phone call by defence counsel to the investigating officer that the defence took the position that the surety warrant for arrest was not properly in existence, this court has found in this case that he was properly under arrest pursuant to a valid surety warrant for arrest which had not been properly executed. In all of the circumstances, this court finds that the strip search which was authorized was reasonable in light of the applicant being about to enter the prison population, and having been moments before being in possession of a quantity of drugs. The next issue is whether the strip search was conducted in a reasonable manner. In all of the circumstances, including the evidence in this regard, the court also finds that this strip search was conducted in a reasonable manner. Accordingly, the court finds that there is no breach of s. 8 of the Charter arising from the strip search.
Section 10 Right to Counsel Issue
[40] In this case, the court finds that the applicant was only under arrest for the surety warrant prior to the discovery of the drugs in the strip search. He was placed under arrest for the drug offences after the drugs were discovered in that strip search at the police station. He was advised of that arrest, and his rights to counsel following the discovery of the drugs at the station. The applicant's argument is essentially that the applicant was not advised of this arrest at some earlier stage in the investigation. Nonetheless, the applicant has argued that this is an exceptional case where physical evidence seized at an earlier point of time should be excluded given the seriousness of the state conduct. The applicant has essentially in submissions conceded that if the court does not find any breaches of s. 8 and s. 9 of the Charter in relation to the other arguments, it would be difficult to justify exclusion of the evidence on the basis of a s. 10 Charter breach as argued in this case, on the evidence in this case. The court finds that there is no breach of s. 10(a) in relation to advising the applicant of the reasons for his arrest, and in providing him with the s. 10(b) opportunity to exercise the right to counsel, on the evidence in this case. The court has considered the relevant law in that regard, including the cases referred to by counsel for the applicant.
Conclusion
[41] The court finds that there are no Charter breaches of sections 8, 9, and 10, as argued by the applicant, on the evidence in this motion. Accordingly, the evidence is admitted in the trial.
Released: September 8, 2017
Signed: Justice Beverly A. Brown