Court File and Parties

Court File No.: CR-18-30000252 Date: 2019-04-16 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Tashanna Mullings, Applicant

Counsel: Jason Gorda, for the Crown Robert Lepore, for the Applicant

Heard: March 25-29, 2019 and April 1-6, 2019

Reasons for Judgment

BOUCHER J.

Overview

[1] The applicant, Tashanna Mullings, is charged with fraud and breach of trust over $5,000. The applicant argues that she was unreasonably strip searched following her arrest for these offences and applies for a stay of proceedings under s. 24(1) of the Charter.

[2] The police decided to strip search the applicant because the lead officer asserted that she might be in possession of evidence, and because the applicant was being held for a show cause hearing. On that basis, the applicant was then subject to a degrading strip search. She was required to perform squats while naked from the waist down. Her bra was seized from her, as it was alleged to be a potential weapon, and she was not provided with a replacement to wear in detention. The search was performed in a visually private area, but the search was audible to the male officers in the vicinity. The police kept inadequate records of the search. The applicant had no criminal record and presented no indication of drugs, violence or self-harm.

[3] As I explain below, I find that the officers failed to follow the requirements of R. v. Golden, 2001 SCC 83 by engaging in a strip search without reasonable and probable grounds to justify the necessity of conducting the search. Further, the strip search was conducted in an unreasonable manner.

[4] The charges will be stayed pursuant to s. 24(1). A lesser remedy would be wholly inadequate in the circumstances, given the extent of the breach in this circumstance, the overall police treatment of the applicant’s Charter rights, and the evidence of systemic inadequacies in protecting detainees’ s. 8 privacy rights regarding strip searches. This is one of the clearest of cases meriting a stay of proceedings.

Factual Background

[5] The applicant is a black Canadian woman who was employed by a major bank. She worked as a credit card specialist on the high-performance team at the bank’s call center. The police allege that the applicant accessed client credit card data, and that the data was later used to make fraudulent purchases of construction materials like hardwood flooring. All of the fraudulent purchases were made from US businesses. It is not alleged that the applicant herself made the fraudulent purchases, only that she facilitated the frauds by providing the credit card information and breached her employer’s trust in the process. The case against the applicant is circumstantial. It is alleged that the fraudulent purchases totaled over one million dollars, although the bank itself lost only about $30,000 of that amount because most of the transactions were charged back to the US businesses.

[6] The police coordinated the applicant’s arrest with her employer. The police waited in the lobby of the office building and arrested her as she was escorted out by the bank’s security at the agreed upon time. She was transported to the 42 Division station of the Toronto Police Service. Upon arrival, she was subject to a “Level 2” search, which can be described as a pat-down or frisk search. During the search, the police noted she was wearing a nose ring and an underwire bra. The officer in charge of the lockup noted that those items would be dealt with if the situation changed and she were to be held for a show cause hearing.

[7] Prior to the applicant exercising her right to counsel, the police brought her into an interview room and engaged in a discussion with her about her overall jeopardy. As I explain below, the applicant gave evidence that the lead officer threatened to turn her over the US authorities who were also investigating the matter if she failed to cooperate and identify her associates in the alleged fraud. She asserted her innocence. The lead officer then brought her back to the officer in charge of the lockup to obtain authorization to strip search.

Witness Credibility

[8] I accept the applicant’s evidence on the voir dire. Her account was straightforward and is largely corroborated by the evidence of the police. The edits she made to her affidavit were minor details in the context of a larger narrative and show that she was being careful to not overstate matters and to specify where her memory was not as strong. On the main details of her evidence, she was not successfully challenged.

[9] On points where the applicant’s evidence differed from that of the police regarding the arrest and strip search, I prefer her evidence. The lead officer did not have detailed notes regarding the arrest or strip search from which to refresh the memories, so the police are in no better position, and in indeed, a worse position than the applicant to recall the specifics of the incident. The incident was unique to the applicant and was more routine to the officers, given the police evidence about the number of arrests and strip searches effected on a regular basis.

[10] There were in fact no major differences between their evidence, with the exception of one issue. The applicant testified that the officers had an off-camera discussion with her before she had an opportunity to speak to a lawyer. In that discussion, the officers tried to get her to reveal her associates in the alleged fraud, promising her bail in exchange for their identities and threatening to turn her over to US authorities if she failed to cooperate. The officer did not deny the off-camera discussion and did not deny mentioning the US aspect of the investigation, though the lead officer denied making promises or threats and describing the discussion as ensuring that the applicant understood the situation.

[11] I accept the applicant’ evidence. Her evidence largely accorded with the officer’s account. I note that the officers breached her s. 10(b) rights by not holding off on discussing the case with her until she had the opportunity to speak to a lawyer, and then they made no recording or notes of the conversation that would corroborate their denial. In all the circumstances, I prefer the applicant’ evidence as it accords with a credible version of why the police would speak with her off-camera and not note it, given the breach of her s. 10(b) rights in that process.

[12] Although the applicant did not specifically plead that there was s.10(b) breach, the applicant relies on those facts to support the s. 8 and s. 24(1) applications.

Application of the Law

The Test from Golden

[13] Strip searches are one of the most intrusive forms of common law searches that can be performed by police. Strip searches are inherently humiliating, traumatic and degrading experiences. Women, minorities, and abuse victims may suffer more acutely from the exercise of these powers, many perceiving the experience as traumatic and akin to sexual assault. With those considerations in mind, the Supreme Court of Canada in Golden, 2001 SCC 83, established a framework for the lawful exercise of the common law police power to strip search in a Charter compliant fashion.

[14] The Golden framework requires the crown to establish the lawfulness of the detainee’s arrest, and to establish that the strip search of the person incidental to that arrest was necessary on reasonable and probable grounds in the particular circumstances of the arrest: Golden paras. 91-98. The strip search must also be conducted in a reasonable manner, applying the framework set out in paragraph 101 of Golden.

Lawful Arrest

[15] The defence and crown agree that the police had reasonable and probable grounds to arrest the applicant. The defence however argues that the subsequent detention for a show cause hearing was unlawful. Specifically, the defence argues that the officers did not comply with their s.497 and s.498 obligations to release the applicant as soon as practicable because the police failed to evaluate the criteria in subsection (1.1.). Moreover, the defence argues that the police were only holding her for a bail hearing as a means to secure her cooperation, to try to intimidate her to provide information to the police, based on the off-camera discussion they had with the applicant before she had a chance to speak with counsel.

[16] Both s. 497(3) and s. 498(3) provide that if the police officer does not release the person as soon as practicable as described in subsection (1) of the respective sections, the officer is nonetheless deemed to be acting lawfully and within the execution of duties. In R. v. Jutras at para. 82, Wilson J. held that subsection (3) does not purport to make lawful a police officer’s actions pursuant to subsection (1.1), because the provision only relates to the issue of the police obligation to release the detainee as soon as practicable pursuant to subsection (1). I agree that the plain wording of the provision in English and French reflects that interpretation. The subsection could render lawful for example, delays in releasing a person from police custody under s. 497 or s. 498. The subsection would not in its plain wording appear to cure any defects on the basis for the continued detention of the person in cases where the police do not ultimately release the detainee.

[17] The lead officer testified that she detained the applicant for a bail hearing because the offence was a substantial fraud and breach of trust, with a monetary value allegedly in excess of a million dollars. She also had concerns about the potential for fake identification and flight. She testified that many of the accused she dealt with in prior fraud cases had fled, because there were large amounts money involved and the possibility of significant sentences for such offences. She denied that she decided to hold the applicant for a bail hearing after the applicant refused to cooperate and provide the names of her associates but rather that she planned to detain the applicant from the outset.

[18] The police were obligated to find a suitable form of release for the applicant if possible. However, the most significant form of bail available to the police on release at the station was a $500 recognizance and a short list of conditions. Objectively speaking, those forms of bail would have been far out of proportion with the value of recognizance generally expected to secure attendance in a million-dollar fraud case. For example, the applicant in this case was ultimately released before a justice on a recognizance of $10,000 with no deposit. I infer from the lead officer’s testimony about the seriousness of the offences as a reason for rejecting police bail as an option that she was referring to the inadequacy of these measures to address the concerns present in the case, including having the applicant attend to answer for the charges, and to ensure the offence would not continue. Accordingly, I find that the lead officer’s decision to have the applicant’s detention or release determined under another provision of the Code, as provided for in (1.1.), was lawful in the circumstances.

[19] There was very limited evidence called about the detention decision made by the officer in charge of the lockup. He was not called as a witness, but the video of his interaction with the applicant and the lead officer was filed on the voir dire. The officer in charge had separate duties from the lead officer, by virtue of s. 498 of the Criminal Code, to ensure that the detainee was released as soon as practicable or to ensure that the failure to release was justified under the Code. On video, the officer in charge appeared to rely on the lead officer’s decision that the applicant’s detention would be dealt with by a show cause hearing. In the circumstances, that reliance did not appear to be misplaced. The lead officer was an experienced financial crime officer arresting the applicant for fraud over and breach of trust and could be presumed to have detailed knowledge of the relevant circumstances. A bail hearing would have been the normal procedure for a serious fraud of this magnitude, given the available forms of police release. In other circumstances, there may well be additional duties on the officer in charge of the lockup to make additional inquiries to validate the decision to have the matter dealt with in another forum. On the evidence before the Court, on balance, it appears that the failure to release the applicant was lawful and conformed to the Code.

Was The Strip Search Incidental To Arrest Reasonably Necessary?

[20] Unlike a regular search incident to arrest, a strip search cannot be based simply on the reasonable and probable grounds for the arrest. Because a strip search is a much more intrusive type of search incidental to arrest, there instead must be reasonable and probable grounds for concluding that the strip search is necessary in the particular circumstances of the arrest: Golden para. 98. The object of the search must be linked either to the probability of finding evidence related to the arrest or to ensuring safety.

[21] The mere possibility that a detainee may be concealing evidence or weapons is not sufficient to justify a strip search. The basis for conducting the strip search must be justified by a sufficient basis such as the results of a frisk search, or by the particular circumstances of the case: Golden para 94.

[22] The police offered two justifications for having conducted the strip search: 1) to search for evidence, because it was possible that the accused possessed a USB key or other means of electronic storage; and 2) for safety reasons, because she was being held for a show cause, or bail hearing, and would be in contact with other prisoners and staff in the police cells, the transport wagon and her ultimate place of lodging. The police did not specify where she was to be held pending her bail hearing.

Evidence Gathering

[23] The applicant was arrested at work, at a major bank. She was taken into custody in a plan coordinated with the bank’s security department. She was escorted from the building by security and the police immediately apprehended her. The nature of the offence was credit card fraud related to her employment and was the subject of an intensive investigation conducted by both the police and the bank, in advance of the arrest. The relevant financial information had been preserved by the bank in advance of the arrest.

[24] The lead officer testified that it was possible the applicant possessed an electronic means of storage of financial data as the officer opined she must have been storing it somewhere. A mere possibility of finding evidence is not a sufficient basis to justify a strip search: Golden para. 94. There was no evidence justifying an evidentiary strip search, apart from mere speculation that the applicant could have had some sort of electronic storage means for financial information. The pat-down, or level 2, search conducted following the arrest had not revealed any additional grounds to progress to a strip search: see Golden para. 94. It would appear that the police could have pursued a more thorough pat-down search if electronic storage devices were truly the concern for the search.

[25] I note as well that based on the evidence in the case, it appeared that the police seemed to suspect the applicant was capturing images on her phone or transmitting the data by phone. Logically, one would not need a strip search to locate a mobile phone.

Detention With Other Prisoners

[26] The crown argues that the decision to hold the applicant for a bail hearing was a sufficient stand-alone justification for the strip search, because of the potential for contact with other prisoners.

[27] The Supreme Court in Golden did not pronounce on the standard for conducting strip searches of detainees being introduced into the “general prison population”. The Court approved of the distinction made in Coulter between those going into the general prison population and those being held in short-term police detention pending release, with the prisoner in Coulter forming part of the short-term detainee sub-group. The Supreme Court held that the strip search of short-term detainees must be justified on a case-by-case basis, and not by routine application of policy, but noted that different considerations might apply in regard to others going into the “general prison population” as there is a greater need to ensure the detainee has no weapons or drugs. See Golden paras. 96-97.

[28] The lead officer testified that the applicant was going to be lodged in police cells, then transported for lodging, and then brought to court for a bail hearing. The evidence in this case was not clear as to where the applicant would be lodged, and whether she would be held by herself or with other prisoners. Based on the evidence before the Court, I consider the applicant to have been a short-term detainee, since the police needed to bring her before the Court for a bail hearing within a relatively short time frame following her arrest. As such, the police needed to follow the case-by-case procedure dictated by Golden.

[29] However, even if the applicant should not be considered a short-term detainee, and should instead be considered a regular prisoner, I would still find that the police must engage in a case-specific assessment of the circumstances to determine whether a strip search is necessary in order for the search to comply with s. 8 of the Charter.

[30] The police authority to conduct strip searches comes from the common law, informed by the development of the common law in Golden. There is a fairly low bar for the police to decide to opt for the “show cause” or “release by justice” bail option rather than releasing the detainee on a police bail. To have all people arrested and held for show cause subject to automatic strip search powers by the police would be an unduly intrusive measure, and one that has not been justified by any evidence before this Court.

[31] Strip searches conducted by police as matters of routine police policy, even if done in a reasonable manner, violate s. 8 of the Charter. There is no recognized common law police power to conduct routine strip searches, even where the detainee is being transferred to a “general prison population”. On the current jurisprudence, a case by case assessment is required in all cases, even as some courts have noted that many cases might fall into a category of prisoners requiring a more intrusive search: see for example R. v. Clarke 2003 ONSC 64244; R. v. Fuglerud, 2012 ONSC 6535. This standard should not interpreted as a reverse onus on the detainee to prove why they should not be strip searched. A compelling individualized rationale is required to justify strip searches incidental to arrest: Golden para. 95.

[32] On the hand, correctional centers, or other jailers, may have the power to conduct routine strip searches in appropriate circumstances, and on lower thresholds than the reasonable grounds threshold required in a police arrest context. The particular legislative mandates or other lawful authority governing those correctional centers would inform their ability to decide who, when and how to search detainees, for the security of the detainee, the other prisoners and the staff. For an example of the authorities governing searching by correctional centers, see the Corrections and Conditional Release Act, SC 1992 c. 20 along with its regulations, and Commissioner’s Directive Number 566-7 regarding the Searching of Offenders. Courts must be mindful that detainees being sent to correctional centers may well be strip searched on arrival at the center, or upon leaving the center. A police strip search prior to entry at a correctional center could compound the number of highly invasive procedures a detainee must experience in a sometimes relatively short time frame.

[33] The report of the Office of the Independent Police Review Director entitled “Breaking the Golden Rule: A Review of Police Strip Searches in Ontario”, filed as Exhibit H on this hearing, is a recent systemic review of this issue, based on the high number of public complaints about police strip searches in the nearly two decades since Golden. The report found Toronto Police Services officers frequently relied solely on the fact that the arrestee was being held for a show cause hearing as grounds for the strip search, despite contrary directions from their chief on the point. Recommendation 19 (and pages 91-93) of that report reinforces the conclusion that being held for a show cause hearing does not conclusively determine whether a strip search is permissible, though it is a relevant consideration along with the other case specific circumstances.

[34] In the video evidence, I observed that the police were attempting to follow Golden by pointing to more than just the fact of the bail hearing to find a sufficient basis to justify the strip search. As I noted above however, their additional justification was merely speculative, and amounted to little more than box checking, and as such was insufficient to justify the intrusive search that followed. Indeed, their practice in this case accords with both the lead officer and assisting officer’s evidence as to the nearly universal practice of strip searching detainees held for show cause hearings. These officers worked in financial crimes and seemed to primarily deal with detainees in that category. The officer testified that she moved from a level 2 search to a level 3 search because the level 3 had not yet been performed. On all the evidence, the applicant’s strip search was the inevitable outcome of her being detained for show cause, as were all the officer’s prior detainees for show cause.

Case Specific Security Concerns

[35] There were no case-specific grounds here sufficient to justify the applicant’s strip search for safety reasons. The applicant had no criminal record or background. She had no indication of violence at the time, or any history of violence, or any circumstances suggesting the possibility of a weapon. She was not arrested on the street, or from her home, or out in the community, but rather at her workplace, a major bank. The pat-down search at the station revealed no possible evidence of weapons, apart from the applicant’s underwire bra and nose ring.

[36] The officer asserted that the wire contained in the underwire bra posed a security threat. Apart from this assertion, there was no evidence before the Court that the underwire bra posed either a specific or generalized threat for the applicant’s detention setting: see R. v. Lee, 2013 ONSC 1000; R. v. Robb, 2013 ONCJ 514; R. v. Evong, 2014 ONCJ 745; R. v. Judson, 2017 ONCJ 439; R. v. Bouchard, 2011 ONCJ 610. There was no evidence of concerns related to self-harm. The police also provided no substitute undergarment to the applicant, which I address below. The seizure of the bra was not reasonable in the context.

[37] Even if the police were justified in seizing the bra, they could have affected the search in a less intrusive manner, which I address further below. The police could have requested the applicant simply turn over the problematic items. Instead, she had to participate in a full strip search, when there were no grounds to believe or suspect she was carrying evidence and out of proportion to the security threat she may have posed.

Was The Strip Search Conducted In A Reasonable Manner?

[38] While the police observed several of the best practices outlined in Golden, the factors noted below rendered the search unreasonable.

1. As admitted by the parties, there were no proper records kept of the strip search, in the manner recommended by Golden. There was apparently a form filled out that had only basic information related to the applicant’s arrest, and that a strip search happened, but no details as to how the search was conducted. The police officer wrote no notes about the strip search itself. There was a video recording of the booking area however, which was of assistance in this application.
2. Golden permits only visual inspection of the detainee’s body during a strip search: para. 101. Here, the applicant was required to remove her clothing on her lower half and perform multiple squats for the observing officers. These actions were grossly more intrusive than the mere display of body parts for inspection for brief observation as contemplated in Golden. The officer explained that this was her normal practice for female detainees because squatting forces the expulsion of anything that might be hidden within the vagina. The officer’s practice amounts to a body cavity search, or if not, it is on the spectrum towards one, which is markedly more intrusive than a strip search and requires an even higher level of justification. It is not reasonable for the police, incidental to arrest, to require a detainee to perform exertive physical actions of a degrading nature that would force expulsion of items from a body cavity.
3. The applicant was left without undergarments for her chest after the police seized her bra. The applicant was given the choice of the police destroying her bra by removing the wire base or going without underwear and having the bra stored with her effects. She chose not to have her clothing destroyed. This was not an adequate solution. If female detainees are going to have their underwear seized, they should be provided with suitable substitute garments. It was not reasonable for her to be left with no bra in the detention setting, in the context, where there was no evidence justifying the seizure.
4. While it appears that the strip search was conducted in a visually private area, it appears there was no audio privacy for the search. The strip search of the female detainee was audible to the male officer in charge of the lockup and the male booking officer seated outside the search room, and to anyone else who might have come into that area. It seems that the discussion was sufficiently loud that it was picked up on the video recording of the booking area. There was no compelling safety or other justification offered for this lack of privacy. All of the disrobing and squatting commands and the applicant’s responses were capable of being observed in an auditory fashion by the people in the vicinity and were preserved on the video. This was a highly invasive procedure in which the applicant merited a higher degree of privacy protection, including that the search not be fully audible to those outside the room. I recognize that it is recommended practice for the police to have an “audio recording” of the strip search: see Breaking the Golden Rule, Recommendation 42. However, there is a significant difference between the searching officers making an audio recording in the private setting for both their own and the detainee’s protection, and having the search be incidentally recorded on another system and contemporaneously audible to an entire booking area. The latter is not private, and more intrusive.
5. The police discussion with applicant before the strip search, prior to her consulting counsel, where the officer threatened to turn her over to the US authorities if she failed to cooperate, added to the oppressive atmosphere of the degrading strip search.
6. Although the officer in charge authorized the strip search, as evidenced on the video, the authorization was done in a perfunctory manner that did not adequately assess the grounds for the intrusive search requested. The officer in charge heard no evidence of reasonable grounds to believe that the applicant had evidence on her person or weapons (apart from the bra and nose ring) – at most, the police articulated speculation. That she had been “out of their sight” while at work did not provide evidence for the officer in charge, since her workplace was a bank, and her arrest was coordinated with the bank’s security, not the type of circumstance demanding the need to strip search for security or evidentiary reasons. There was no evidence that the offences were occurring contemporaneously with the arrest, and no evidence suggesting the applicant had been concealing evidence secreted under her clothes, so there was a marginal link between the prospect of discovering evidence and the strip search.
7. The officer in charge’s verification of medical issues for the applicant was also done in a slightly perfunctory manner, which resulted in the police not learning that the applicant was pregnant. The officer asked whether she was injured, whether she had ever tried to harm herself, whether she had consumed intoxicants, and the officer made a conclusory statement that she was in overall good health. This was a rather rushed and likely inadequate canvassing of health issues prior to detention. A detainee might not point out pregnancy as a health issue, in a discussion framed in that manner. In other contexts, such as before medical or dental procedures are performed, women are directly asked if they are pregnant, not simply whether they have health concerns. The fact that she was pregnant was a factor relevant to how the police should have dealt with her in detention, and may have been a consideration in the mix regarding the procedures employed for searching. The police should ask female detainees if they are pregnant or other more specific health type questions so they can take these factors into account prior to deciding to detain and prior to engaging in invasive and degrading procedures.
8. If a strip search as defined by Golden (which includes examination of undergarments) was required at all, the police could have performed a more targeted one, in a less intrusive manner, given the circumstances of the case. The police could have requested applicant to simply turn over the problematic items, without requiring her to participate in a full search involving the rest of her body. There was no evidence that a police strip search as defined by Golden must be an all-or-nothing type procedure – given the test in Golden, it could and should be tailored to what is necessary in the circumstances to address the concerns that are founded on reasonable grounds.

Remedy

[39] As a remedy for the breach of s. 8 of the Charter, the applicant applies for a stay under s. 24(1) of the Charter.

[40] A stay of proceedings is the most drastic remedy available in a criminal case for a Charter violation. A stay will be warranted only in the clearest of cases, where state conduct either compromises the fairness of an accused’s trial, or risks undermining the integrity of the judicial process. The test for determining whether to grant a stay has three requirements:

1. there must be prejudice to the accused’s right to a fair trial or to 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 must balance the interests in favor of granting a stay against the interest that society has in having a final decision on the merits.

See R. v. Babos, 2014 SCC 16; R. v. Regan, 2002 SCC 12.

[41] Here, the police conduct in strip searching the applicant was “offensive to societal notions of fair play and decency” such that “proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system.” Babos, para. 35.

[42] The applicant is a black Canadian woman, who was pregnant, and who was at work at her job at a major financial institution upon her arrest. She had no criminal record nor any indication of violent conduct or drugs or weapons. The police far exceeded the bounds of appropriate conduct in engaging in the strip search at all, on a basis less than suspicion, and then exacerbated the situation by unduly humiliating the applicant, forcing her to perform squats, having the search audible to the booking area, and leaving her without undergarments, and then failing to properly document the search. All this was done after the police failed to hold off questioning her before she had an opportunity to exercise her s. 10(b) rights, and after they threatened to turn her over to the US authorities unless she cooperated.

[43] The test in Golden was adopted in 2001 – roughly 14 years before this search was conducted. The police knew or ought to have known the threshold to justify a strip search and how to reasonably conduct it. This is not a situation where the law was unclear. The search bore little resemblance to the individualized case assessment mandated by the Supreme Court, resembling more of a rote procedure for processing arrestees being held for hearings before justices regardless of the individual circumstances.

[44] The failure to follow the dictates of Golden continues to be a systemic problem, as outlined in the March 2019 report of the Office of the Independent Police Review Director entitled Breaking the Golden Rule, a Review of Police Strip Searches in Ontario. This report was filed on this voir dire. The report identifies systemic issues with the adequacy of police training regarding strip searches, the lack of consistency in forms and procedures governing the process across the various police services in the province, and the variables levels of strip searching depending on the police service. Relevant to this case in particular was the theme that strip searches are nearly universally used for prisoners being held for show cause with some police services. The issues raised in the report demonstrate systemic inadequacies with police strip searching in Ontario. The continuing attitude of police with respect to strip searches adversely impacts the integrity of the justice system.

[45] The report also urged that the police respect the threshold set out in Golden and ensure that policies are redrafted to make clear that the mere fact of being held for show cause hearings was insufficient to ground a strip search, lamenting the extremely slow uptake or intransigence in some quarters in changing procedures regarding strip searches. These systemic findings accorded with the evidence in this case. The police officers testified that either all or nearly all detainees for show cause hearings are strip searched, and that these outcomes had not really changed post-2001. One officer said that the only difference now was that they had to request approval to do it. Effectively, though, nothing had changed in practice. This was borne out in the applicant’s case. The supervising officer asked some of the right questions, but the answers that should have been insufficient justification ended up in an unmerited degrading outcome.

[46] There is no remedy, aside from a stay of the proceedings that would be capable of adequately addressing the harm to the system. It is commendable that the Toronto Police Service is exploring alternatives to strip searching, but there is no indication that these or other measures will be more broadly incorporated or whether other training or standard setting is in the works. Given the passage of time since Golden, and the development of technology in the interim, the police should indeed be moving to find less intrusive means of achieving safe outcomes for detention. While the charges are very serious, with significant losses to businesses and the bank, there is no evidence that this remedy would cause additional difficulties for those parties. The harm to the system that would arise from imposing an inadequate remedy outweighs the value in continuing the case. The violation speaks to systemic problems that are incapable of being remedied by an individualized remedy such a sentence reduction. A stay speaks to the Court’s attempt to dissociate from this conduct going forward, and better protects the integrity of the system from condonation of a gross departure from the expected standard.

[47] The report included a 72 page appendix of case summaries from Ontario documenting violations of the Golden principles. The overall evidence both from this case and the wider police community is that the principles in Golden are not being heeded and that detainees are too frequently unduly subject to highly intrusive unlawful searches. These are searches that in the eyes of many, may amount to sexual assaults particularly when unjustified and beyond the scope of what is reasonable in the situation. Given all the circumstances, the integrity of the justice system would be severely prejudiced if the matter were to continue and would serve to condone the continued violation of the principles enunciated in Golden.

[48] There is a stay of proceedings entered on both charges before the Court.

Boucher J. Released: April 16, 2019