COURT FILE NO.: 12-9/324 DATE: 20160502

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – LEON BOOKAL Defendant

COUNSEL: Kerry Benzakein, for the Crown Alonzo Abbey, for the Defendant

HEARD: April 20, 21, 2016

K.P. WRIGHT, J.

RULING SECTION 8 CHARTER APPLICATION

Introduction

1Mr. Bookal comes before this court charged with one count of possession for the purpose of trafficking cocaine, and one count of being in possession of the proceeds of crime.

2At the outset of trial defence, brought an application to exclude one ounce of crack cocaine found in Mr. Bookal’s condominium during the execution of a search warrant pursuant to section 24(2) of the Charter. He argues that Mr. Bookal’s rights under section 8 of the Charter were breached when police conducted a strip search of him at the police station subsequent to his arrest. Although no evidence was found during the level three strip search, defence take the position that the crack cocaine found in the condominium should be excluded as a remedy to the breach.

3The Crown responds by arguing that the police did not infringe Mr. Bookal's rights. She takes the position that the level three strip search was both authorized and justified. In the event of a finding that a breach did occur, the Crown submits that the evidence should nevertheless be admitted under section 24(2) of the Charter.

4This is my ruling on the application.

Overview

5On September 29, 2010, members of the Toronto Drug Squad, specifically team six, executed a search warrant on Mr. Bookal’s condominium. In the course of that search, Det/Cst Edgar seized an ounce of crack cocaine from a pair of men’s blue jeans found in a laundry basket. During that same search, some Canadian currency was seized along with a large quantity of cocaine from a storage locker allegedly belonging to Mr. Bookal. Mr Bookal was located inside the condominium and placed under arrest. Following his arrest, he was transported by two uniform officers, Lee and Steele, to 41 Division for booking and processing. Upon arrival Mr. Bookal was paraded before Sgt. Haines. Lee and Steele requested permission to conduct a level three strip search. Sgt. Haines authorized the search.

6Officers Lee and Steele have no notation or memory as to why they requested a level three strip search, other than it is often done when a person is arrested on drug charges. Both testified that because drugs can be easily concealed on and in a person’s body, a level three strip search is often necessary. They could not speak to the specifics of Mr. Bookal’s case as they had no memory or note of it, other than he was arrested on drug charges. There was no evidence about what, if any, conversation or information they relayed to Sgt. Haines about Mr. Bookal’s circumstances.

7Sgt. Haines testified that he authorized the level three strip search of Mr. Bookal. Apart from some very generic notes, he had absolutely no independent memory of Mr. Bookal or why he authorized the level three strip search. He did testify that he knew Mr. Bookal was arrested on drug related charges. He also said he did not authorize these searches as a matter of routine. He readily admitted that his notes were wholly inadequate.

8As to the search itself, Mr. Bookal testified that the officers had him remove all his clothes, leaving him standing naked in the room. He says as he took off each piece of clothing it was left in a pile on the floor next to him and at the end of the search the officers instructed him to get dressed without checking the clothing. He says the door to the room was partially ajar but that one of the officers was standing at or by the door. He said that he had never been through anything like this before and the experience was embarrassing.

9Officers Lee and Steele had no independent memory and absolutely no notes of how the search was conducted. They both testified that they had a common practice when strip searching and that the search of Mr. Bookal was consistent with their common practice. Part of their common practice was to only make notes in the event evidence was found or something out of the ordinary happened during the search. In this case, no evidence was recovered and nothing out of the ordinary took place so no notes were made.

Analysis

10To be constitutionally valid, a strip search must be:

(1) Conducted as incident to a lawful arrest; (2) Conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest; (3) Based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest; (4) Conducted in a reasonable manner.

R. v. Golden, 2001 SCC 83, at para 99.

11The strip search of Mr. Bookal occurred shortly after his lawful arrest. On this point there is not dispute.

12The search must be related to the purpose of the arrest: Caslake (1998), 48 C.R.R. (2d) 189, at par 17. In this case, Mr. Bookal was arrested for being in possession of the drugs for the purpose of trafficking. It is to this purpose the strip search has to relate. I find that it does. This requirement is satisfied.

13The reasonableness of the search for evidence, including the reasonableness of the strip search, is governed by the need to preserve evidence and prevent its disposal by the arrested person. When arresting officers suspect the arrested person may have secreted evidence on areas of his or her body that can only be exposed by a strip search, the risk of disposal must be reasonably assessed in all the circumstances: Golden, at para 93.

14The mere possibility that an individual may be concealing drugs on his or her person is not sufficient to justify a strip search of that person: Golden, para 94. Further strip searches conducted as a matter of routine policy, even if executed in a reasonable manner, are not reasonable within section 8 of the Charter. Compelling reasons, rooted in the circumstances of the arrest, are required to render a strip search reasonable. Even where the execution is flawless: Golden, para 95.

15There was very little in the way of evidence to justify the search of Mr. Bookal. The only evidence came from Officers Lee and Steele. They both said that they had experienced situations where individuals arrested on drug related charges had hidden drugs on their body. Their failure to relate this back to Mr. Bookal’s arrest amounts to nothing more than a mere possibility that he may have had drugs concealed on his person.

16Sgt. Haines testified that the cells were busy that night and it was likely that Mr. Bookal would be lodged in a cell connected to another prisoner and that this would likely have been a factor in deciding if Mr. Bookal should be strip searched. He could not be certain that he turned his mind to this prior to authorizing the search.

17Mr. Bookal testified that he was initially lodged at the station and then in the cells at Old City Hall prior to his bail hearing. When his bail hearing did not commence he was transported to the Don Jail.

18The courts have long recognized the need to search individuals being interrogated into the general prison population: Golden, para 96.

19Although Mr. Bookal was not initially going to be housed in a general prison population, he was initially lodged in a busy holding cell and then taken to a busy court house where he was in close contact with other prisoners in the same situation. I find, as Justice Durno did in R. v. A.B., [2003] O.J. No. 2010, at para 22, that there is not a significant distinction between those being interrogated into a general prison population and those being placed in busy court cells at court houses.

20In this case, I find that reasonable and probable grounds did exist to justify the level three strip search of Mr. Bookal. Unfortunately, Sgt. Haines had no recall of the factors or considerations that formed the basis for his direction to search Mr. Bookal. Accordingly, I am unable to find that Sgt. Haines’ authorization was in compliance with the well-established judicial authorities and guidelines.

21Turning to the final factor; the manner in which the level three strip search was carried out.

22Mr. Bookal testified that the officers had him remove all his clothes and left him completely naked in the room.

23I am not inclined to rely upon Mr. Bookal’s memory of how the search unfolded. The issue for me is one of reliability. He was clearly mistaken about the sequence of events during the booking procedure. As such, I find myself, under these circumstances, concerned with Mr. Bookal’s ability to recall the details of the search with any accuracy.

24Officers Lee and Steele testified that they had a routine and systematic approach to level three strip searches. Both testified that they would have asked Mr. Bookal to remove one article of clothing at time. They said that each piece of clothing would be searched by one of them and then handed back to Mr. Bookal to put on before the next piece of clothing was removed. They both testified that this procedure was to ensure that Mr. Bookal was never completely naked during the search. They both testified that there was no physical contact with Mr. Bookal and that it was done as efficiently as possible in a private room. The officers were uncertain if the door to the room was left partially open. Unfortunately neither officer made any notation about how the search was conducted and have no memory of it. They both relied purely on what they described as their common practices.

25It is against this backdrop that I must assess whether the strip search conduct guidelines as set out by the Supreme Court of Canada in R. v. Golden have been met. They are as follows:

(1) Can the Strip search be conducted at the police station and, if not, why not? (2) Will the strip search be conducted in a manner that ensures the health and safety of all involved? (3) Will the strip search be authorized by a police officer acting in a supervisory capacity? (4) Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched? (5) Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances? (6) What is the minimum of force necessary to conduct the strip search? (7) Will the strip search be carried out in a private area such that no other than the individuals engaged in the search can observe the search? (8) Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time? (9) Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact? (10) If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or having the object removed by a trained medical professional? (11) Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

Golden, at para 101.

26I am satisfied that the strip search was carried out in an appropriate room at the police station by two officers who were the same gender as Mr. Bookal. I am satisfied that Sgt. Haines directed and authorized the level three strip search. I am further satisfied that the search was conducted efficiently, without force, and only a visual inspection of Mr. Bookal’s genital areas was conducted.

27There is some uncertainty about whether the door to the room was partially open or ajar during the search. One of the officers testified that it would have been left ajar for officer safety reasons. Mr. Bookal did say that one of the officers was standing in or around the door. I am satisfied that if the door was partially open, that one of the officers was standing in the doorway to protect Mr. Bookal’s privacy. Officer Lee testified that he was sensitive to the intrusive nature of the search and the detrimental effect it can have on the person being searched. I accept his evidence in that regard and find that he would have been alive to protecting Mr. Bookal’s privacy during the search.

28I find that for the most part, the search of Mr. Bookal was compliant with the guidelines in Golden. However, the blatant lack of record keeping of the reasons for and the manner in which the strip search was conducted, make any meaningful analysis impossible and, in my view, must amount to a denial of Mr. Bookal’s section 8 Charter rights.

Section 24(2) Analysis

29Notwithstanding the breach, in order to trigger a remedy under section 24(2) of the Charter, I must be satisfied that the evidence was obtained in a manner that violated the Charter. If the evidence was obtained following a Charter breach, then exclusion is available under section 24(2). If, however, the evidence was obtained before a Charter breach occurred, then the court must be satisfied that there is some connection between the breach and the evidence sought to be excluded. The connection may be temporal, contextual, casual or a combination of the three: R. v. Wittwer 2008 SCC 33, [2008] 2 S.C.R. 235 at para 21; R. v. Gangl, 2011 ABCA 357 at para 22; R. v. Anel, 2014 BCCA 179 at par. 33; R. v. LaChappelle (2007) 2007 ONCA 655, 226 C.C.C. (3d) 518 at paras. 45-47 (O.C.A.).

30In this case, the evidence sought to be excluded was obtained pursuant to a valid and constitutionally confirmed prior judicial authorization hours before the level three strip search of Mr. Bookal took place. The level three strip search of Mr. Bookal took place at the police station well after the evidence was obtained and the investigation was complete. The officers involved in the search were not part of the investigative team that yielded the evidence in question. Far from it. They were transport officers who took it upon themselves to request a level three search of Mr. Bookal. I find the evidence and the obtaining of it to be entirely severable from what took place at the police station. As such, the evidence remains untainted and intact despite the action of the police that resulted in the breach: R. v. Flintoff [1998] OJO no 2337.

Conclusion

31I find that the evidence was not obtained by or connected to the Charter violation. Accordingly, there is no basis for invoking a remedy under section 24(2) of the Charter.

32As such, the application is dismissed.

K.P. Wright, J.