Ontario Court of Justice
Date: 2022-11-16 Court File No.: 19-15007625 Location: Toronto Region – Old City Hall
Between:
HIS MAJESTY THE KING
— AND —
DI’ON JAHIL WONG
Before: Justice H. Pringle
Heard on: June 10, 2022; June 14, 2022; August 3, 2022; August 4, 2022; August 9, 2022 Oral Decision released on: August 11, 2022 Written Reasons for Judgment released on: November 16, 2022
Counsel: Christie Black and Venus Sayed.................................................... counsel for the Crown Marvash Mirza.................................................................................. counsel for the accused
PRINGLE J.:
[1] On August 11, 2022, I stayed all charges against Mr. Wong. This conclusion rested on breaches of his ss. 8 and 10(b) Charter protections. These reasons will explain how and when those Charter breaches occurred, and why the only appropriate remedy for them was a stay.
[2] This case was not, in its essence, an exercise in determining witness credibility and reliability. Most salient events were captured on police video. I preferred this video evidence over viva voce testimony, where they differed.
[3] The details of Mr. Wong’s strip search was descried differently by witnesses. On the issue of manner of strip search, I accepted the testimony of the searching officers as credible and reliable. I found they corroborated one another on the salient aspects. I did find Mr. Wong to be a generally credible witness, but somewhat unreliable given material inconsistencies established.
[4] What follows is an overview of testimony and findings, as opposed to a recitation of all evidence.
Evidentiary Overview and Findings
The Defendant is Arrested and Searched at the Roadside
[5] Officers Campbell and Faragitakis were, on October 23, 2019, watching for H.T.A. offences at Bathurst and Eglinton. They saw the defendant’s vehicle make a prohibited left turn, and initiated a vehicle stop at 12:43 a.m.
[6] Remaining in their scout car, the officers ran the stopped car’s licence plate through police databases. They learned the defendant, Mr. Wong, was the car’s registered owner, and that there was a warrant [1] out for his arrest.
[7] The officers searched CPIC for more information, learning there was “a warrant in the first for trafficking substance - a Schedule I substance and possession of proceeds of crime” issued by the Toronto Drug Squad (TDS). They also knew, from CPIC, that there were no flags about weapons/violence, and that Mr. Wong had no criminal record.
[8] The outstanding warrant was from August 13, 2019. This H.T.A. stop was happening on October 23, 2019. Cst. Campbell could not recall whether, when they stopped the defendant, they knew that the warrant issued in mid-August. She agreed that this information would, generally, be visible in their system.
[9] The officers approached the drivers’ side of the defendant’s car, told him he was stopped for making a prohibited left turn, and confirmed his appearance matched their digital driver’s licence photo. It was 12:48 a.m. They asked him to step out of the car.
[10] When he did, he was arrested and cuffed. The scout car video revealed the reason for arrest was explained, to the defendant, as being an outstanding warrant for “trafficking a substance”.
[11] Next, Mr. Wong was searched at the roadside. PC Campbell wisely directed PC Faragitakis to conduct most of this search in front of the scout car camera. As previously stated, where testimony differed from video footage, I accepted the video as accurate and true.
[12] This initial search was mostly conducted by PC Faragitakis, and began at 12:53 a.m. He described it as a “pat-down” search, designed to check for weapons and objects that could compromise safety. He went through Mr. Wong’s jacket pockets and his inner pockets. A belt and a necklace were removed.
[13] PC Campbell, a female officer, participated in this search to a limited degree. She took a ring from Mr. Wong’s fingers, patted the lining of his jacket to ensure no items were inside, and lifted the bottom of the defendant’s shirt to visually inspect his waistband. This did involve the defendant’s bare midriff being exposed to her and on camera.
[14] The defendant was calm and cooperative during both arrest and search. No weapons were found. No drugs were found. No items of concern were found.
[15] This “pat-down” search ended at 12:55 a.m., at which time Mr. Wong was placed inside the scout car with PC Faragitakis. The officer again informed him of the reason for the arrest. This time, the reason was specifically explained as:
You have a warrant in the first degree. So basically you have a warrant out for controlled substance.
The Defendant Invokes His Right to Counsel and Waits
[16] At 12:55 a.m., Mr. Wong was told about his rights to counsel. This was done correctly, with PC Faragitakis reading s. 10(b) Charter rights and a caution verbatim from his notebook. Mr. Wong listened, said he understood and that he wanted to call a lawyer. In other words, at 12:55 a.m. the defendant invoked his right to speak with counsel.
[17] PC Faragitakis was asked when the informational and implementational aspects of Mr. Wong’s right to counsel were triggered:
Q. When is, when is Mr. Wong supposed to be provided with his rights to counsel?
A. If Mr. Wong or whomever is going to be show cause he will be given his rights to counsel and given privacy and a phone to access - to speak to his counsel. So I read the rights to counsel and after he says he understand we'll - I'll facilitate it when it's a secure space.
[18] At this juncture, PC Faragitakis did nothing to facilitate access to counsel. He knew that he needed to implement access to counsel “as soon as reasonably possible” However, police believed the back of their car, where they had detained Mr. Wong, was not a private, secure space. Thus no access to counsel was offered.
[19] The officers kept Mr. Wong at the roadside scene, in their scout car, from 12:55 a.m. to 1:29 a.m. The division was two minutes drive away. But they remained on the road to complete some tasks, all of which received greater priority than immediately facilitating access to counsel.
[20] No doubt some administrative tasks were necessary to move forward with next steps. PC Campbell made phone calls to Toronto Drug Squad. She did this to ensure the warrant was still valid, and to find out what division the defendant should go to. This was prudent and careful.
[21] PC Campbell also apparently called 13 division to let them know they were coming. This was supposed to help those at the station to get ready for his processing. None of these advance phone calls, however, resulted in the booking sergeant knowing Mr. Wong was coming until shortly before 2 a.m.
[22] Meanwhile, PC Faragitakis was busy with similar administrative tasks at the roadside scene. He felt his presence was necessary to deal with the defendant’s parked car. He was making notes about the arrest in his notebook. He was inputting all arrest details into the computer, again so that 13 division would be ready to process the defendant when he arrived.
[23] These administrative tasks were not stopping PC Faragitakis from taking steps to implement the requested access to counsel. As he frankly admitted, the thought did not occur to him then:
Q. Sorry, my question is, you did not facilitate access to counsel while Mr. Wong was waiting at the roadside in the squad car, correct?
A. That's correct.
Q. Okay and is there a reason why you did not facilitate that given that Mr. Wong's - you also had access to Mr. Wong's phone?
A. At that time?
Q. Mm-hmm.
A. [ Indiscernible ] standby with Mr. Wong, we were still investigating, me and my escort, just what was going to happen with the vehicle.
Q. But there were two other officers on scene to assist with the vehicle, correct?
A. There were two other officers on scene, but it was our work to do to determine what was going to happen.
Q. Sorry, so the other two officers - and you, you requested them in order to assist, correct?
A. Yes, that's accurate.
Q. Okay and so are you indicating that it was the arresting officers' job to still remain at the roadside until the entirety of the investigation is complete?
A. No, that wouldn't have to happen - so they were asked to help to keep an eye on the - excuse me - keep an eye on the passenger and at the same time we were trying to figure out what would happen with the vehicle. Depending on what the outcome was would dictate what would happen from there, but myself and Campbell were the ones taking carriage of just figuring it out.
Q. So despite what happens with the vehicle Mr. Wong was going to be held in custody and was going to be held for show cause, correct?
A. Yes, he was going to be show cause.
Q. Okay. Now one of the things you said was that you couldn't ensure complete privacy of Mr. Wong and that was why you didn't facilitate access to counsel at the roadside, correct?
A. Yeah, that’s accurate.
Q. Okay and isn't it also not - is it also not possible in order for you to turn off the in car cameras and the microphone and step out to allow him access?
A. We do have that option. We can mute the microphones in the car.
Q. Okay and but is there a reason why you didn't use that option in this case?
A. Truthfully it didn’t come across for us to say hey I need to get the call, the call now. I wasn't cognisant of how much time had passed. We were focusing on what are we going to do, verifying the warrants to get everything - so just it wasn't - didn't pop up.
Q. Sorry, it didn't pop up from Mr. Wong?
A. No, I mean - so no he didn't indicate anything nor during our work did it dawn on us that we need to facilitate a call now and can we facilitate it.
[24] I accepted this evidence as completely and accurately describing the mindset of the arresting officers, when it came to implementing Mr. Wong’s right to counsel.
[25] There was no practical need for the arresting officers to remain, for at least thirty minutes, to deal with the defendant’s car. It was not parked in a live lane. There was no evidence suggesting it was a danger or hazard. Moreover, two additional officers quickly arrived to assist with such matters. Police had no concerns the vehicle needed to be seized. PC Faragitakis acknowledged he had no grounds to search it.
[26] I was not persuaded the arresting officers needed to keep the defendant on scene, suspending his constitutional right all the while, in order to deal with these tasks. I found, as PC Faragitakis admitted, that once Mr. Wong invoked his right to speak to counsel, facilitating that right immediately was not an important police priority.
[27] Mr. Wong remained in the control of police, at the roadside and in the backseat of the police car, from 12:55 a.m. to 1:29 a.m. Given that a secure, private space was a prerequisite to implementing the defendant’s right to counsel, the arresting officers were in no hurry to get him to one.
[28] Once the phone calls were completed, arrest information inputted, memobook notes completed and the issue of the defendant’s car was under control, the officers took Mr. Wong to 13 division. It took but two minutes to drive to the division where, the officers found, they had to wait behind another police car in the sallyport.
[29] This foreseeable circumstance meant the defendant remained inside that scout car for another thirty-two minutes without being permitted access to counsel:
Q. Now during this wait of 32 minutes in the sallyport is there a reason why you didn’t facilitate access to – at that time – to counsel at that time?
A. No, I can’t – other than giving him somewhere private and we were waiting our turn.
Q. Right, but you also indicated that the option to turn off the microphone you know didn’t dawn on you at the roadside. Are you indicating that it’s still something that you sort of overlooked in the sallyport as well?
A. No, my thinking at the time is we’re going to go up shortly, we will parade, and he’ll get his phone call. We didn’t think – I didn’t think at the time that it was excessive. I thought it everything reasonable and he didn’t indicate anything to trigger me.
[30] Both officers testified that, had the defendant asked to speak with counsel while inside the scout car police chose to detain him in, he would not have been permitted due to privacy concerns:
Q. Now if you knew that he had requested to speak to his own lawyer would you have facilitated that call while you were waiting in the sallyport?
PC Campbell: In the sallyport? No, just because there is – it’s all camera-ed, it’s all mic-ed up. It wouldn’t – he wouldn’t be able to have the privacy for the phone call.
Q. Now if you knew at the roadside that Mr. Wong had requested to speak to his own counsel would you have assisted – would you have allowed for that access while he was in the squad car waiting to be transported?
A. No, because it’s the same – it’s the same scenario. It’s all mic—ed up, it’ s- there’s a camera, there’s – there’s a speaker system, it’s all recorded, he wouldn’t be able to have any privacy inside the scout car.
Q. Is it also not possible to turn off the camera and the mic as well as step out of the vehicle so he can have privacy?
A. Procedurally we keep the cameras on for the entire duration of the transport.
[31] During and after the booking process, implementing Mr. Wong’s access to counsel continued to receive no priority, in contrast to all other tasks:
MS. MIRZA: Q. Okay, so Officer, you heard, hear the booking sergeant ask Mr. Wong that, whether he wants to speak to a lawyer and he said yes. Whether he had a, whether he had his own lawyer, and he indicated yes. Correct?
PC Faragitakis: Yes, I heard that.
Q. At that point, you didn't provide any information about Mr. Wong's counsel of choice. Correct?
A. No, that is correct.
Q. And neither did you advise or ask for his counsel of choice information.
A. At that point we weren't prepared to call counsel, so that didn't come up .
Q. And what's the reason that you weren't prepared at that time?
A. At that moment, we were in the middle of booking him.
Q. All right, but you could have called the lawyer once the booking was completed. Correct?
A. I believe we did call when the first opportunity arose.
Q. Right, but that was after the search had been conducted and Mr. Wong was processed and the Level 3 had been done. Correct?
A. That was at the end of the complete booking procedure and he was in the interview room. Correct.
Q. Right. So my question is, was there some sort of urgency that was barring you from calling Mr. Wong's counsel prior to the search being conducted?
A. There was no urgency to call or not call at that moment .
Q. Well, he did indicate he would like to speak to his lawyer as soon as possible. Correct?
A. Yes, that is correct.
Q. And rights to counsel indicate that you have to facilitate rights to counsel as soon as possible if there are no exigent circumstances or any, that, any sort of reasons that are stopping the officer from facilitating that right. Correct?
A. Yes, and at that point, as soon as possible hadn't arisen yet. We were still going from the time of arrest to here. We were doing an investigation, taking him off a busy street on Eglinton, seeing what would happen with the vehicle, bringing it, verify everything was acceptable, bring him before the station, wait for prisoners to leave and parade him. It wasn't unreasonable amount of time for me looking at it. It didn't seem excessive or unreasonable at any point.
Q. So are you indicating that completing the investigation to figure out what would happen to the vehicle and booking and the search was all, that all took precedence over Mr. Wong's rights to counsel?
A. No. I'm saying the amount of time it took to go through everything wasn't unreasonable, and we just took everything, the appropriate steps to make sure the warrants were active, where he would go, what was going to happen. So we just did everything step-by-step. Again the first opportunity when we can give him somewhere private and appropriate.
Q. So the 40 minutes at the roadside after the arrest, the 30 minutes in the sally port, the 40 minutes which involved the booking and the search; all of that in your opinion was reasonable delay?
A. And none of those times didn't seem excessive from the time, from one a.m. approximately, 12:44, when we stopped him, to that point, to have somewhere we give him complete privacy and freedom to call a lawyer, his duty counsel.
A. I was just going to say, I tried to give him the first opportunity we could.
Q. Right, but the first opportunity, according to you, was when he could get access to a private setting to speak to his counsel. Right?
A. Yes.
Q. And that first private setting was once you're at the division. Correct?
A. That was the best opportunity I had to give him, yes.
Q. Right. Yet you still didn't exercise it until 40 minutes later. Correct?
A. Because I still wasn't able to give him that privacy or set him up. Correct.
Q. And what was stopping you from taking him to the, to the phone room to allow him that access before any search took place, or even the booking was complete?
A. At that point when we got there, the timing didn't feel excessive . It's not an - to me it didn't - at that point it wasn't unreasonable amount of time. It wasn't two or three hours. It wasn't me taking him to the hospital where I would facilitate something private there. This is us waiting in our queue, knowing we were coming up shortly. It didn't seem an unreasonable amount of time before I could parade him before my officer in charge and then get him to a room to call.
Q. So at what point would you believe that it would have been excessive?
A. Again, I, I'd say it's case-by-case. In this matter, everything was progressing from when we were on the roadside. Determined that everything was accurate. The vehicle was free to go. And came to the station. We now, we were advised people were just finishing parading and we would be up quickly. So I didn't feel that timeline was excessive in this scenario, in this event.
Q. Was there any sense of urgency in the booking or the search that was necessary while suspending his rights to counsel?
A. Sorry. Never felt the sense of urgency during this process.
Q. Was there any sense of urgency in trying to seize evidence with risk of the evidence being disposed of?
A. Because he was in custody and he was in handcuffs and in someone's control at all times, I felt secure that he was not going to dispose of evidence, if there was any.
Q. But you felt that it was important to complete the processing at the station and the search, and then allow him access. Right?
A. Sorry. Access to?
Q. Counsel.
A. I found I couldn't provide him with privacy to call counsel until this time .
The Defendant is Booked and Strip Searched
[32] Sgt. Edwicker, the booking sergeant, was first told about the defendant’s arrest shortly before 2 a.m. She could not recall if she was informed by phone at that time, or if PC Campbell told her at the station.
[33] At 2:00 am the defendant was paraded before her. She had access to some arrest warrant information from the computer system. It informed the sergeant of “name, date of birth, charges…time of arrest, time of rights to counsel”.
[34] She was candidly unsure whether she had time to “run” Mr. Wong’s name through the system, to get background information, before she booked him. She had completed another detail at 1:53 a.m., and moved right from that task to booking Mr. Wong.
[35] PC Faragitakis told Sgt. Edwicker that the arrest related to two outstanding warrants: one for possession of proceeds of crime, and the other for “controlled substance”. He did not tell her what the “controlled substance” was, nor what the defendant allegedly did with the controlled substance that was illegal.
[36] During the booking process, PC Faragitakis requested authorization for the defendant to be strip searched. To the booker, he said this request was justified:
…due to the nature of the offences and at the same time to mention that he has been brought before you to stop the repeat of the offence and ensure his appearance in court.
[37] PC Faragitakis was cross-examined about the temporal distance between the date of arrest and date of alleged offence, as it pertained to grounds to strip search for drugs. He seemed unaware of this fact, but also said that it did not matter:
Q. Okay, and you indicate that you were also looking for possession of evidence in relation to the offence.
A. Yes, that is correct.
Q. Despite the fact that the information that you had was that the warrant was from August of 2019 to almost two and a half months before the date of the arrest. You'll agree. Right?
A. The timeline is there, but the reason hasn't changed.
Q. Sorry. So the reason for?
A. At that point I don't know this individual. I don't know anything other than what his arrest is for, what his - excuse me, what his warrant is for, so if he is wanted for trafficking drugs, it doesn't usually just go away overnight .
[38] Mr. Wong confirmed that he wanted to speak to his lawyer. Sergeant Edwicker then completed the booking, including inventorying all of the defendant’s personal belongings. He had no weapons on him, no suspected drugs on him, no drug paraphernalia on him. He did have $700, in unbundled twenty dollar bills, in his wallet.
[39] As stated above, PC Faragitakis had asked for authorization to strip search the defendant. A search template set out the grounds for his request. This form was supposed to reflect the booking sergeant’s grounds for authorizing the strip search. Sgt. Edwicker subsequently reviewed and approved it.
[40] The grounds for the search were recorded as:
(i) reasonable grounds re possession of items that could assist escape; (ii) reasonable grounds re possession of evidence that could assist escape; (iii) reasonable grounds re possession of evidence in relation to the offence.
[41] Not included as grounds for the search were, according to PC Faragitakis’ search template, were:
(i) Reasonable grounds re possession of weapons; (ii) Heightened safety concerns applicable to show cause / detention order or other safety concerns.
[42] PC Faragitakis characterized the failure to check off the latter factor as his mistake, and that he had checked off the first two factors even though the booking sergeant had made no mention of them in her authorization.
[43] After all booking questions were complete, Sgt. Edwicker authorized the requested strip search, telling Mr. Wong that:
I’m going to authorize that given the nature of the offence being drug-related.
[44] This was the only basis that Mr. Wong was given for his strip search. Sgt. Edwicker properly explained how and where the strip search would take place, adding that the purpose of this search was:
Ensure your safety nothing on you to hurt yourself or us (and that)…. I understand you are probably going to court in the morning…
[45] In her evidence, Sgt. Edwicker echoed this basis for the strip search authorization:
I explain to him (Mr. Wong) that given the fact that there are drug offences that are being alleged in this case, safety concerns that I have for him and others while he’s in our care, and the addition of the fact that it will be a show cause, that I authorized the Level 3…
[46] I found that Sgt. Edwicker did not “run” Mr. Wong’s name through the system before she authorized the strip search. Consequently, she knew only there was an arrest warrant for drug and proceeds offences, and that this warrant was not endorsed for Mr. Wong’s release. She knew nothing about his background, other than what she was told during booking. She knew no details of the alleged drug offending.
[47] More specifically, prior to authorizing the strip search, Sgt. Edwicker did not know that the alleged drug offence was from August 13, 2019. Further, although she testified that she knew it was a trafficking offence, she admitted in cross-examination that she could have thought it was a CDSA possession simpliciter case, or a CDSA possession for the purpose of trafficking.
[48] I concluded that Sgt. Edwicker did not inform herself [2] about the person in her custody, his history, or the details of his alleged drug offence before she authorized officers to strip search him.
[49] Thus her grounds for the Level 3 search were entirely rooted in the drug-related nature of the alleged offences. The nature of those offences, in turn, led to concerns about safety of others who would come in contact with the defendant while he was in custody.
[50] At the heart of each safety concern, however, was the conclusion that the fact of the drug trafficking charge, in and of itself, gave rise to reasonable grounds to believe Mr. Wong presently had drugs or weapons on his person:
Q. …. So can you take us through how you came to the conclusion that the Level 3 was necessary in this case?
A. Sure. So initially, I …. I’ve written grounds being drugs . So let me take you through where that, how that process works in my mind. So at this point obviously I am aware that he’s under arrest for trafficking in a controlled substance as well as proceeds of crime. My responsibility obviously as the officer in charge of the station is to ensure the safety of Mr. Wong, the safety of any officer that may come into contact Mr. Wong, or any other person through the Court process. At that time, we were still, they were being transported to Court and having Court contact with people associated to the Court process as well as being potentially, have contact with additional prisoners. So it’s ultimately my responsibility to keep him safe and to keep everyone else safe.
So in my mind in this case again, the allegations before the Court were drug related and they were trafficking related. So my number one concern obviously is that there’s the potential that he could have drugs on his person. So obviously the inherent risk that comes with drugs and danger that comes with drugs, so I wanted to ensure his safety, that there wouldn’t be any, he didn’t have any drugs on him. Obviously things to search for would include things that could hurt him and drugs is included in that. That can be a danger to him or to anyone else.
So I wanted to make sure for his safety that he didn’t have any drugs on him, in addition to the safety of any other prisoner that we might have and by way of anybody else he may have contact with. So there was that aspect of it, to make sure of that. I mean from my perspective, a minor side note, obviously he could have evidence on him, being drugs. Again I resort back to when I explain that it’s about safety.
In addition, this is a drug offence and it’s a trafficking offence, and violence and weapons can, are known to go hand-in-hand and so I just also in addition wanted to ensure that he didn’t have any weapon on him that could hurt himself or us as I understand those two things to go together, so I obviously was searching for weapons. I wanted to ensure that there was nothing, no weapon on him that could hurt him.
And finally I was aware that he was going to be a show cause. The warrant was not endorsed. And as a result that he would have multiple contacts along the way with other prisoners or members, Court staff, and so it was the totality of ensuring everyone’s safety.
[51] The $700 in cash, Sgt. Edwicker added, played a:
minor role for me in being concerned about the drug aspect….it’s certainly not common in the number, in my experience, and so it, it makes me cognizant of the fact that that could also be something to do with proceeds, and/or so that some transaction may have, you know, just happened or was going to happen, and so I just again wanted to ensure that there was nothing on him that could hurt him or us.
[52] Sgt. Edwicker was specifically, directly, asked what her subjective grounds to strip search Mr. Wong were. She continued to explain the safety concerns that can arise if a person in their custody possesses drugs or weapons. None of those concerns were specific to the circumstances of either Mr. Wong, his arrest, or his alleged offending over two months before.
[53] Finally, Sgt. Edwicker admitted that aside from the nature of the charge, she lacked evidentiary grounds to strip search Mr. Wong:
Q. Did you have any information from your own investigation and from your, information that you had from officer Faragitakis or Campbell or O’Leary, ( inaudible ) officers, whether or not there were any reasonable grounds to believe that Mr. Wong had secreted any weapon or evidence on his body?
A. No. [3]
[54] Mr. Wong was then led to the strip search room by two male officers. Their strip search of him took eight minutes, ending at 2:20 a.m. I have found the mechanisms of this strip search were done properly. I concluded the defendant was not left entirely naked at any given time, and that if he was required to squat with buttocks spread more than once, this was not done for an arbitrary or abusive purpose.
[55] To the extent that the defendant’s testimony varied from that of the searching officers on the manner of the search, I preferred that of the searching officers. I found Mr. Wong generally a credible witness, but had concerns about his reliability. These concerns were exemplified by material inconsistencies about the pat-down search, as between his testimony and the scout car video.
[56] That said, I accepted that the strip search was invasive and humiliating for Mr. Wong. I also accepted that there was no audio recording of events in the search room, and the details of the search were not otherwise properly recorded by either searching officer.
[57] I also accepted that Mr. Wong, when asked to remove his boxers, asked to speak to his lawyer. I found corroboration for this in the testimony of Sgt. O’Leary, who said the strip search took longer than normal because Mr. Wong kept asking questions. It was not policy, at that time, to permit access to counsel prior to a strip search. Thus access to counsel was not allowed before the strip search was completed.
[58] The strip search produced no substantive evidence. No weapons were found. No drugs were found. Nothing of concern was found.
[59] At 2:34 a.m., a phone call was placed to Mr. Wong’s counsel of choice. This was the first moment, since the defendant’s arrest at 12:53 a.m., that police was prepared to let him speak to counsel:
Q. So at the, once you got to the station or even during transport, you didn't get contact information for Mr. Wong's counsel?
A. No, I didn't ask him 'til I was prepared to call.
Q. Okay, so the first time you were prepared to call was at 2:34 a.m.?
A. Yes, that sounds about right.
Ruling: Section 8 – Patdown Search
[60] The defendant submitted the manner of search at the roadside was unreasonable. More specifically, he took umbrage with the constitutionality of a female officer participating in the pat-down search. Her search included exposing his bare midriff at one point. He testified that she also removed his belt.
[61] I have watched the pat-down search on the scout car video footage. PC Campbell conducted herself appropriately at all times, as did PC Faragitakis. The exposure of skin was brief, relatively non-invasive, and conducted for an undisputed safety purpose. The officers were obviously checking the defendant’s waistband for secreted objects. PC Campbell did not remove the defendant’s belt.
[62] While it may have been more prudent for PC Campbell to request a male officer’s assistance at that part of the search, I cannot call her decision to view the defendant’s waistband herself anything other than reasonable. I accept there is no policy in place rendering opposite gender pat-down searches impermissible, and was taken to no legal authority that suggested otherwise.
Ruling: Section 10(a)
[63] The defendant submitted his s. 10(a) right was breached. I found no such breach. I appreciate that information given about the defendant’s charges was not perfect. Telling someone they have a warrant for “controlled substance” does not communicate what offence that warrant was issued for. Ideally, the alleged offences should have been more clearly and consistently communicated.
[64] That said, the defendant had sufficient information to understand, in general, the legal jeopardy he was in. He was told, upon exiting the car, that the warrant was for “trafficking a substance”. He was told, inside the scout car, that the warrant was for “controlled substance”. This met the functional threshold from R. v. Evans , [1991] 1 S.C.R. 869 at para. 35 :
It is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern.
Ruling: Section 10(b)
[65] The defendant found more fertile ground in arguing the delay in implementing access to counsel was unconstitutional.
[66] Police must implement access to counsel immediately upon arrest or detention: R. v. Suberu, 2009 SCC 33 at paras. 41-42 . “Immediately” should not leave much room for interpretation. Access to counsel, once that right has been invoked by a detainee, must be a police priority or run afoul of s. 10(b) protection.
[67] Doherty J.A., in R. v. Rover, 2018 ONCA 745 held at paras. 26-28 :
The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan [ cite omitted ], the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning [ cite omitted ].
These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel….
Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:
The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:
a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or whether there are concerns for officer or public safety.
[ emphasis added ]
[68] Paragraph 78 in R. v. Wu, 2017 ONSC 1003 provided a non-exhaustive list of circumstances where access to counsel has properly been suspended: safety concerns for police, the accused, the public; medical concerns; concerns for destruction of evidence or compromise to an ongoing investigation; practical concerns justifying “some” delay such as lack of privacy, an arrest location with no phone access, interpretation needs.
[69] DiLuca J., who authored Wu, added that:
a. The suspension of the right must be only for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581 , at para. 83 . In this reg ard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances .
[ emphasis added ]
[70] Once Mr. Wong invoked his right to speak with counsel, the state suspended implementation of that right until they got him to the station, booked, and strip searched. I do not believe that PC Faragitakis understood this fact, or perhaps not the import of it.
[71] The state was in complete control of how, when, and where Mr. Wong could exercise this fundamental right. Therefore, those officers had a resulting constitutional responsibility to discharge. As per R. v. Taylor, 2014 SCC 50 at paras. 24 and 28 :
The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances…
But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a ‘right’ to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity. [ emphasis in original ]
[72] It took one hour and forty minutes to make the defendant’s requested phone call to counsel, despite the station being two minutes away from the scene of arrest. But reasonableness of delay is not measured by the minutes that pass on a clock. It is measured by the decisions being made that cause delay in accessing counsel; that prolong delay in accessing counsel; and/or that minimize delay in accessing counsel.
[73] I was not persuaded that any of the routine tasks police were completely, at roadside right up to the strip search, was necessary before permitting him access to counsel. I found the following excerpts aptly summed up the state’s understanding of their constitutional obligation:
…and at that point (of the booking), as soon as possible hadn't arisen yet.
Q. Right. So my question is, was there some sort of urgency that was barring you from calling Mr. Wong's counsel prior to the search being conducted?
A. There was no urgency to call or not call at that moment.
[74] There may have been no urgency, from the police perspective, to call counsel for the defendant. A person under arrest, however, may not share the view that delaying access to counsel is an acceptable matter of routine: see R. v. Rover at para. 45 .
[75] The testimony of PC Faragitakis, in particular, proved he did not understand his obligation to Mr. Wong, as set out in R. v. Taylor , R. v. Rover , and R. v. Jarrett, 2021 ONCA 758 at para. 43 :
There are a number of ways in which the police may facilitate a detainee's right to immediate contact with counsel. Where the police assume the responsibility of making first contact, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have " assumed the obligation to pursue [the detainee's] constitutional right to [access counsel] as diligently as she would have": R. v. O'Shea, 2019 ONSC 1514 , 372 C.C.C. (3d) 352 , at para. 42 ; R. v. Doobay, 2019 ONSC 7272 , 61 M.V.R. (7th) 225 , at paras. 29-33 . "Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing": Doobay , at para. 30 .
[ emphasis added ]
[76] This constitutional responsibility means, as per Rover at para. 33 :
…to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance.
[77] I found the arresting officers waited at the scene until 1:29 a.m. not because it was necessary to do so, but because they felt in no hurry to leave. It was not necessary for them to remain there to deal with the defendant’s car, or make notes, or make phone calls. I was not satisfied that any of these tasks needed to be done before they left for that two-minute drive to 13 Division.
[78] When they encountered a wait at the station sallyport, I found that again no thought was given to how they could try to facilitate access to counsel as soon as possible. I found no thought was given to how to minimize delay in access to counsel.
[79] Police were in complete control of when and how the defendant could get to a private space. The fact that police chose to detain the defendant in the back of the scout car, meant they could not rely on the lack of privacy there to justify delayed access to counsel see Rover , supra, at para. 33 .
[80] The Crown failed to discharge the burden to show that the delay in implementing Mr. Wong’s access to counsel was reasonable. Clearly, PC Faragitakis felt that, as long as the officers were busy with other tasks and the delay did not feel excessive to him personally, he had no obligation to do anything substantive about the request to speak with counsel. This was incorrect.
[81] As per R. v. Taylor , at para. 33 , “Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel”.
[82] Given where the burden rests, it was not for the defendant to convince me of what police could have done better, or faster, or differently. It was not the defendant’s burden to show me there was a private way he could have accessed counsel from the roadside or while waiting in the sallyport, or once he was brought inside the station. It was not the defendant’s burden to show it was safe to give him a phone call before he was booked or strip searched. He did not need to establish that the delay prejudiced him, or that he would have chosen expediency in speaking with counsel over privacy.
[83] The police evidence needed to convince me, on a balance of probabilities, that the delay from when he invoked his right to speak with counsel to when he was permitted to implement that right was reasonable in these circumstances. Their evidence did not. Section 10(b) was breached.
Ruling: Section 8 Strip Search
[84] I also found that Mr. Wong’s s. 8 right was breached. “[W]here the reasonableness of a strip search is challenged, it is the Crown that bears the onus of proving its legality”: R. v. Golden, 2001 SCC 83 at para. 105 .
[85] As per the Supreme Court in R. v. Tim, 2022 SCC 12 at para. 66 :
A strip search can be justified at common law as incident to a lawful arrest where there are "reasonable and probable grounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest" (R. v. Ali, 2022 SCC 1 , at para. 2 ; R. v. Golden, 2001 SCC 83 , [2001] 3 S.C.R. 679 , at para. 99 ). Reasonable and probable grounds exist to justify a strip search "where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest" (Ali , at para. 2 ; see also Golden , at paras. 94 and 111 ). The strip search must also be conducted reasonably, in a manner that "interferes with the privacy and dignity of the person being searched as little as possible" (Golden , at para. 104 ).
[86] The strip search of Mr. Wong was conducted pursuant to a lawful arrest. I have found it was conducted in a reasonable manner. However, the officers lacked the requisite reasonable grounds to strip search Mr. Wong.
[87] As found in paras. 44 through 52, the subjective grounds entirely rested on the drug-related nature of the warrant. Certainly, people who sell drugs can have more drugs on them. Certainly, people who sell drugs can have weapons on them. But the existence of a drug trafficking allegation cannot, automatically and always equate to reasonable grounds to strip search a person. Each case must be assessed on its individual facts.
[88] Mr. Wong’s case received no individual assessment on its facts. The booking sergeant knew no offence details [4] , beyond the nature of the charge. She had no knowledge of his personal history, other than the generic information given during processing. As she admitted, she had no investigative information that gave her grounds to believe he had weapons or drugs on him at the time. The $700 in cash, standing alone, did not meet that requisite threshold.
[89] Mr. Wong had no criminal record. He had been stopped for committing an H.T.A. offence. He had already been searched, incident to arrest and including a visual inspection of his exposed midriff. He did nothing before, during, or after the arrest to even hint at the ongoing commission of an offence or the present possession of drugs/weapons. The dated nature of that warrant significantly increased the unlikelihood of him possessing evidence of the offence.
[90] Sgt. Edwicker spoke at length about ensuring Mr. Wong had nothing that could harm himself or others while in police custody. He was to be held for show cause hearing because the arrest warrant was not endorsed for release. This meant he would necessarily spend some time in the station’s single-person cells, and then be transported to court. She wanted to ensure he had nothing on him that could harm others while he was in custody.
[91] Custodial strip searches, even those unrelated to the reason for arrest, are permissible: R. v. Gerson-Foster, 2019 ONCA 405 . But there is a difference between strip searches conducted when persons are going into prison, and those conducted on short-term detainees like Mr. Wong. The latter still require “a high degree of justification and necessity … to tip the balance in favour of permitting such intrusion”: R. v. Coulter, [2000] O.J. No. 3452 (C.J.) at para. 27 ; R. v. Golden , supra, at para. 96-97 .
[92] In other words, evidential reasonable grounds, specific to the facts of Mr. Wong’s case, were still required. The fact of his brief detention for show cause was no substitute for evidence. The testimony of the police still failed to establish the requisite reasonable grounds. There was no evidence suggesting the reasonable possibility that Mr. Wong had drugs or weapons on him.
[93] I found that he was strip searched because the officers wanted to make sure he had no drugs or weapons on him before he went into custody, as opposed to having any evidence suggesting that he did. Section 8 was breached.
[94] Although it was not integral to finding a s. 8 breach, I must comment on the record-keeping of Mr. Wong’s strip search which did exacerbate the breach. Golden at para. 101 recommends that a “proper record be kept of the reasons for and the manner in which the strip search was conducted”: Golden , supra, at para. 101 .
[95] There were no records, at all, of the manner of this search. No detailed notes were kept by anyone. Some indication of an audio recording of the process turned out to be incorrect. The records kept of the reasons for the search were, apparently, the search template authored by PC Faragitakis and approved of by Sgt. Edwicker. Salient aspects of the forms’ contents were acknowledged to be incorrect.
[96] The purpose underlying record-keeping is to be accountable to the person searched and to the public. Proper record-keeping is not a minor technicality. Where police actions are transparent and understandable, this strengthens public trust in their institution. Conversely, a failure to be transparent can sow distrust of police. In this case, the approach to recording the reasons for, and manner of, strip search was poor.
Ruling: Remedy
[97] The charges against Mr. Wong must be stayed. I have concluded the ss. 8 and 10(b) Charter breaches, in combination with each other, merit that “most drastic” of remedies: R. v. Babos 2014 SCC 16 at para. 30 . Indeed, I would have reached this same conclusion absent the s. 10(b) breach [5] .
[98] A stay of proceedings is justified where the state conduct compromises trial fairness. A stay of proceedings will also be justified where the state conduct poses no threat to trial fairness but risks undermining the integrity of the judicial process. This latter category is often described as “the residual category”.
[99] Babos , at para. 32 , set out the applicable three-stage test for a stay:
(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; (2) There must be no alternative remedy capable of redressing the prejudice; and, (3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to 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.
[100] There was no prejudice to the right to a fair trial here. I did conclude, however, that the groundless strip search of Mr. Wong caused harm to the integrity of the justice system. Police have significant power over other human beings. When that power is exacted over the intimate bodily integrity of another human being, wrongly, carelessly, and baselessly, the repute of the whole justice system suffers.
[101] That form of prejudice would be perpetuated and aggravated, were the trial to continue. It would communicate the wrong message to police charged with respecting, protecting, and implementing Charter rights. It would communicate that these Charter breaches were not serious when the s. 8 breach, in particular, was gravely so.
[102] Continuing to prosecute Mr. Wong while imposing a lesser remedy, or no remedy at all, would fail to give effect to the importance of preventing unjustified strip searches before they occur. The latter point the Supreme Court emphasized [6] in Golden at para. 89 :
Given that the purpose of s. 8 of the Charter is to protect individuals from unjustified state intrusions upon their privacy, it is necessary to have a means of preventing unjustified searches before they occur, rather than simply determining after the fact whether the search should have occurred (Hunter, supra, at p. 160). The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy. Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestee's experience of being strip searched. Thus, the need to prevent unjustified searches before they occur is more acute in the case of strip searches than it is in the context of less intrusive personal searches , such as pat or frisk searches. As was pointed out in Flintoff, supra, at p. 257, "[s]trip-searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power".
[ emphasis added ]
[103] Golden is hardly new law, and police in this case missed the constitutional mark by a significant margin. There was no exigent or unusual reason underlying either the s. 8 or the 10(b) breach. These breaches were the product of lack of knowledge coupled with lack of accord to Mr. Wong’s constitutional rights and freedoms.
[104] Any lesser remedy, or no remedy at all, would send harmful messages to both police and society. Any lesser remedy would communicate judicial approval of, or judicial indifference to, police seriously infringing the constitutional rights of a young black man.
[105] That, in turn, would contribute to skeptical public opinions about police infringing the rights of the public without consequence. Imposing any remedy short of a stay would, in my opinion, do far more harm than good.
[106] I was convinced, after applying the first two steps, that a stay was the only apt remedy. That said, I have also balanced the interests in favour of granting a stay against the interest society has in a trial on the merits.
[107] In this case, the Charter breaches occurred because the police fundamentally misunderstood their constitutional obligations. The breaches were serious and the unreasonable strip search had a traumatic impact. The police failed to properly record the strip search’s basis and process. I had no doubt that a strong, denunciatory message was necessary to stop all of this conduct from repeating.
[108] The absence of any substantive basis for the strip search reflected a laissez - faire approach to stripping another human being naked and inspecting his genitals. This is unacceptable. It must be denounced in order to preserve the integrity of the justice system.
[109] The charges against Mr. Wong are serious. I understand, from the Crown’s Charter response, that he allegedly sold a small amount of cocaine on one occasion to an undercover officer. He then failed to respond to the officer’s requests for more.
[110] The seriousness of this alleged misconduct and society’s interest in trying the allegations pale in significance when weighed against the need to denounce the s. 8 Charter breach. Balancing these interests only led to the same conclusion: a stay must be ordered.
Impact on the Defendant
[111] I emphasize the prejudice to the justice system and to society not to minimize the prejudice Mr. Wong suffered: harm to the integrity of the justice system is the legal test to be applied. That said, I want to recognize, in obiter, that Mr. Wong was strongly impacted by the invasive strip search.
[112] His evidence easily convinced me he was scared, humiliated, isolated, and helpless. I will not repeat the details of his search, except to say even though it was conducted in a reasonable manner, it was exceptionally invasive. Like the Court observed in Golden , at para. 90 :
Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy. The adjectives used by individuals to describe their experience of being strip searched give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: "humiliating", "degrading", [page729] "demeaning", "upsetting ", and "devastating" (see King, supra; R. v. Christopher, [1994] O.J. No. 3120 (QL) (Gen. Div.) ; J. S. Lyons, Toronto Police Services Board Review, Search of Persons Policy -- The Search of Persons -- A Position Paper (April 12, 1999)). Some commentators have gone as far as to describe strip searches as "visual rape" (P. R. Shuldiner, "Visual Rape: A Look at the Dubious Legality of Strip Searches" (1979), 13 J. Marshall L. Rev. 273 ). Women and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault (Lyons, supra, at p. 4).
[ emphasis added ]
[113] That impact occurred here, and Mr. Wong should understand that his evidence on this point was seen, heard, and accepted as true by the court.
Conclusion
[114] I was persuaded that the unreasonable strip search prejudiced the integrity of the justice system. I was persuaded this prejudice would be aggravated if the trial were allowed to continue. I have considered lesser remedies, such as a sentence reduction if Mr. Wong were to be convicted. No lesser remedy will redress this prejudice. Balancing the interests in favour of granting a stay outweighed society’s interest in a trial on the merits.
[115] Accordingly, the two charges against Mr. Wong must be stayed.
Released: November 16, 2022 Signed: Justice H. Pringle
Post-Script – This case has taught me a valuable lesson about the lack of wisdom in releasing a decision with reasons to follow. To all that were inconvenienced, I apologize for the delay in releasing these final reasons.
[1] The witnesses (and these reasons) often referred to an outstanding “warrant”, but this was understood to be two separate warrants (one federal charge, one provincial charge) from the same occurrence.
[2] This conclusion was based on all of her testimony on the point, including her own uncertainty about whether she had run his name; the timing between her prior booking and Mr. Wong’s booking; and the lack of reference during the booking to knowledge of his stayed charges/lack of reliance on them as adding to grounds to strip search.
[3] August 3, 2022, at 12:18 pm.
[4] By way of factual contrast, see the grounds in R. v. Golden at paras. 110-112 ; R. v. Tim at para. 67 .
[5] Conversely, had there been no s. 8 breach, the s. 10(b) breach alone would not have met the test for a stay.
[6] In the context of requiring reasonable grounds.