Ontario Court of Justice

Old City Hall – Toronto

Between

Her Majesty the Queen

And

Duc Quan Nguyen

Counsel and Hearing

For the Crown/Respondent: S. Sood

For the Defendant/Applicant: T. Kaye

Heard: June 11, August 30 and September 19, 2012

Reasons for Ruling

(Re Application for Charter Relief)

Justice Melvyn Green

A. Introduction

[1] Plainclothes officers were conducting surveillance on an after-hours club in central Toronto at about 9:00am on Sunday, April 24, 2011. They observed the defendant, Duc Quan Nguyen, leave the club and enter a car parked in a lot across the street. The police found the defendant's behaviour suspect. They approached the car and, in a matter of minutes, arrested him for two Criminal Code offences (care and control of a motor vehicle while his ability to drive was impaired by drugs and, second, assault with intent to resist his lawful arrest) and a third charge, contrary to the Controlled Drugs and Substances Act, of possession of a prohibited substance, Ketamine.

[2] The defendant, at his trial before me, claims that a number of his constitutionally protected rights were violated by the arresting officers and by the duty sergeant at the police station, 14 Division, from which he was eventually released. In brief, he says that he was arrested arbitrarily, contrary to s. 9 of the Charter, that the police, contrary to s. 10(a), failed to immediately advise him of the reasons for his arrest, and that the searches that followed his arrest (including the seizure of a vial of Ketamine at the scene and subsequent seizures of a urine sample and the test results of a drug response evaluation ("DRE")) violated his s. 8 privacy rights. The defendant also claims that his s. 8 rights were independently infringed when he was compelled to undergo a Level 3, or "strip", search at 14 Division without, he alleges, reasonable grounds for such search. By way of remedy for these constitutional breaches, the defendant applies for a stay of all proceedings against him or, in the alternative, an order excluding evidence of the above-noted seizures. Like a court-ordered stay, a finding that the arrest was unlawful and order excluding the above-noted seizures would, in the circumstances of this case, effectively terminate the prosecution of the defendant.

[3] A preliminary voir dire was conducted with respect to these Charter-based claims. The two arresting officers, Csts. Leary and Paglia, testified at this hearing, as did the duty sergeant at 14 Division, Sgt. Male, who authorized the Level 3 search of the defendant. The defendant did not testify on the voir dire. Whether the defendant's trial proper proceeds, and if so its contours, depends on whether I determine that Charter breaches have occurred and, if so, the nature of the remedy or remedies, if any, properly afforded.

B. Evidence

(a) Introduction

[4] The following review of the evidence is organized by the location of the alleged breaches. Accordingly, I first address the officers' observations of the defendant's behaviour immediately before, during and after his arrest and at Traffic Services where he was first taken following that arrest. I then turn to the evidence bearing on the alleged s. 8 breach at 14 Division.

(b) Events Surrounding the Defendant's Arrest

[5] Around 9:00 o'clock on the Sunday morning of April 24, 2011, Toronto Police Service (TPS) officers, PC Derek Leary and Det. Cst. Giancarlo Paglia were watching the front door of the Comfort Zone from an unmarked police car parked in a laneway directly across the street from the Spadina Avenue location of the club. The Comfort Zone is an unlicensed after-hours club familiar to both officers as a place frequented by users of "rave" or "party" drugs after licensed bars have closed. Both officers had conducted many drug-related investigations at the Comfort Zone in the past and had spent many shifts watching the pedestrian traffic at its front door. Indeed, both had made over a 100 drug-related arrests at the Comfort Zone over several years of "vice" work. The officers were responding to complaints of drug dealing and looking for identifiable dealers. Given the day and hour, their view across the six lanes of Spadina was unobstructed.

[6] There are some inconsistencies in the officers' accounts of their specific vantage points and as to precisely what occurred in the few minutes preceding the defendant's arrest. Neither officer was making a contemporaneous note. I am satisfied that the minor exceptions, as I view them, to their generally co-confirmatory narratives do not materially detract from the reliability of their accounts. Nor, of course, is there any contradictory evidence. I return to these considerations below.

[7] The defendant and his friend or acquaintance left the club and slowly made their way west, across Spadina, directly passing the driver's side and then front of the officers' unmarked vehicle. The two men moved slowly, were unsteady on their feet, and appeared to be disoriented and supporting each other. They seemed wary, looking around as though unsure of their direction as they crossed the street in something other than a straight trajectory. The defendant entered the driver's door of a Toyota parked about ten feet from the officers' vehicle. His friend entered the passenger seat. The two officers approached the Toyota as its lights were activated and its engine became audible. Leary went to the driver's door and Paglia to the passenger's. Both officers were in plainclothes and both say they would not have approached either man had the defendant not entered and started the car.

[8] PC Leary held his badge up the window and said loudly, "It's the Toronto police. Turn the vehicle off and put the keys on the dash". The defendant stared blankly at Leary, his eyes dilated. Leary repeated his command and the defendant turned the car off. Leary then opened the door. He intended to arrest the defendant for having for care and control of a vehicle while his ability to drive was impaired by drugs. He grounded his belief in the reasonableness of the arrest on his familiarity with the after-hour denizens of the Comfort Zone and the defendant's staggering gait, dilated eyes and open, dry mouth. He asked the defendant to step out of the car, taking the defendant's left arm to remove him from the vehicle. The defendant, who appeared to be grinding his teeth, stepped out. Leary then, and for the first time, advised him that he was under arrest for drug-impaired care and control of a motor vehicle. This was approximately two minutes after he first directed the defendant to turn off the car and about five seconds, according to Leary, after the driver's door was opened.

[9] The defendant moved to the rear of the Toyota at Leary's command. Leary then felt the defendant try and pull away as he asked him to face the trunk of the car and place his hands behind him. Leary responded by pushing back. Both fell to the ground as they pushed and pulled at each other. Leary was on top of the defendant as he lay facedown with his hand beneath his body. Uncertain whether the defendant was concealing a weapon or drugs, Leary threw two distractionary blows at the defendant as he continued to struggle and then, with Paglia's assistance, managed to cuff the defendant.

[10] The defendant, on standing up, asked, "Why did you do that, bro?" Leary again told him he was under arrest for drug-impaired care and control. This was approximately ten minutes after the police first saw the defendant exit the Comfort Zone. Leary conducted a pat-down search for weapons or drugs as an incident of arrest. He located a blue-capped vial containing a white crystalline substance inside the defendant's right, front jeans pocket. Based on his drug enforcement experience, Leary tentatively identified the substance as Ketamine. He then read the defendant his rights to counsel. Asked if he understood, the defendant replied, "Yo bro, why did you do this? Just let me go." Asked again if he understood, the defendant just looked blankly at Leary while wiggling, grinding his jaw and licking his lips. Leary advised the defendant he was also under arrest for possession of a controlled substance. He also read the defendant a "drug recognition expert" (DRE) demand from a card he borrowed from PC McBride, a uniformed officer who had attended the scene. The defendant said he understood the demand.

[11] McBride transported the defendant to Traffic Services Division. Leary and Paglia followed. The defendant, while still in cuffs, appeared to have no difficulty walking from the police car to the booking hall door in the sallyport at Traffic Services at 9:49am. He is responsive, coherent and stands without fidgeting, swaying or acting in any conspicuously anxious or otherwise unusual manner during his booking a few minutes later, as captured by a videotape of that process. The defendant replied, "M", at the "club", when asked whether and when he consumed any "street drugs". He denied being "suicidal" or having any injuries. (The duty sergeant later noted some redness to the defendant's cheek and an injury report was prepared by one of the arresting officers before the defendant was transported to 14 Division). The defendant's belt and a necklace were removed from the defendant. It was anticipated that his shoes would be removed during the DRE. Although the defendant's detention in a "cell" before his transfer to 14 Division was expressly contemplated, the booking sergeant at Traffic Services authorized only a Level 2 search. Nothing of concern was located. Neither Leary nor Paglia requested a Level 3 search.

[12] Leary called duty counsel and the defendant spoke with counsel privately when he called back. Leary also briefed the DRE examiner at Traffic Services and attended a portion of the defendant's DRE testing. He was later informed that the results supported a charge of drug-impaired care and control. McBride then transported the defendant to the 14 Division station, and Leary and Paglia again followed, at 11:22am.

(c) The Events at 14 Division

[13] PCs Leary and McBride paraded the defendant before Sgt. Joe Male, the booking sergeant at 14 Division, a few minutes after noon. Leary told Male of the three charges for which the defendant had been arrested. He also told Male that they had been to Traffic Services where all the necessary tests were completed and where the defendant spoke with duty counsel. In answer to Male's questions, Leary indicated that a release from the station was anticipated and that the defendant had been "searched thoroughly at the scene", which he then qualified as a "field search only" and "a pat-down search". Although he did not expressly ask, Male assumed the defendant had been Level 2 searched at Traffic Services.

[14] In answer to Male's questions, the defendant acknowledged that he had consumed drugs or alcohol in the previous 24 hours. McBride added that the defendant had "previously admitted to taking two pills of M, Ecstasy". The defendant indicated that he felt "fine", and denied having any addictions, taking prescription medicines, being diagnosed with mental illness or ever attempting suicide or other self-harm. Male agreed (and the video record confirms) that the defendant was quiet and co-operative while in his presence, and that he appeared coherent and responsive.

[15] Male directed the officers to place the defendant in cell number 2 at about 12:06pm, with the intention that he would be released from the station once "the paperwork's done". McBride and Leary then escorted the defendant through a door to the cell area. No further search of the defendant was contemplated at this time, nor did the attending officers seek one. Male testified that he anticipated the defendant would be lodged in the cell until it was felt safe to release him due to his drug consumption. This delay, Male added, was generally from four to six hours.

[16] There are eight single-prisoner cells at 14 Division, four on each side of a corridor. The bars on the cells render it possible for a prisoner in one cell to pass an item to a prisoner in an immediately contiguous cell. Male could not recall if there were any other prisoners held at 14 Division when the defendant was lodged in cell number 2, although it appears that the cell area had been vacant for the preceding couple of hours. There were at least two arrestees in the station's criminal investigation unit at the time, one or both of whom, Male thought, was likely to end up in the cell area. A camera was focused on each cell with a live video-feed of each to monitors in the booking sergeant's area and the staff-sergeant's office, a few meters away from the cells.

[17] Very soon after the defendant was taken to the cells, Male "realized" he "should have" authorized a Level 3 search. He summoned McBride and told him that a Level 3 search of the defendant was appropriate because of the drug charges. The defendant was returned to the booking hall where Male told him that, in view of his charges, he "wanted to ensure that you don't have any drugs concealed on you". The defendant denied possessing any drugs, to which Male replied, "I don't know that. I can't see through your clothing". He then told the defendant he would be subject to a "strip search" and to attend with the officers for that purpose.

[18] A Level 1 search, as explained by Male, is a "pat-down" of a detainee while a Level 2 search involves the removal of an arrestee's outer clothes, belt, and shoes and a "thorough pat-down". He described a Level 3 search as "intrusive"; he volunteered that he "wouldn't want a Level 3 search" performed on himself.

[19] Male testified that "drugs" were the primary reason he authorized the Level 3 search. Drugs, he explained, could be easily concealed, passed off to others, left behind or consumed while in custody, nor could he risk a prisoner committing suicide. Further, and although of lesser concern, the assault-resist charge raised the possibility of violent behaviour by the defendant. Male agreed that there had been no suggestion of weapons or suicidal behaviour when he authorized the defendant's Level 3 search. He believed he had reasonable grounds for such a search in light of the drug-related elements of the offences with which the defendant was charged and that such a search was "necessary". In advancing his reasons for the Level 3 search, Male relied on notes he had made in upon reviewing the TPS search "manual" in preparation for testifying at the defendant's trial.

[20] Copies of portions of the manual on which Sgt. Male relied (the "Toronto Police Policy and Procedure Manual") were filed on consent sometime after he completed his testimony. The Manual directs that due to its "high degree of intrusiveness", a Level 3 search "shall only be conducted when it is reasonable and necessary, considering the purpose and the grounds that exist at the time, which justify the search". An Appendix titled "Risk Assessment – Level of Search" instructs that the officer in charge (as was Sgt. Male) is to assess the appropriate "level of search" of persons brought to a police station on a "case-by-case basis". The Supreme Court's decision in R. v. Golden is expressly invoked to explain the policy adopted by TPS to govern Level 3 searches. "[A]ll of the circumstances" are to be contemplated, including the following non-exhaustive list of "risk factors":

• The details of the current arrest
• The history of the person
• Any items already located on the person during a Level 1 or 2 search
• The demeanour or mental state of the individual
• The risks to the individual, the police, or others associated with not performing a Level 3 search
• The potential threat the person will come into contact with other detainees, creating an opportunity for the person to hand off contraband, weapons, etc. to another prisoner.

The "risk factors" Male listed in his trial preparation notes were drugs and the possibility of locating further evidence.

[21] Leary and McBride conducted the Level 3 search of the defendant in a large room off the booking hall. The door to the room was shut. There were no windows in the room nor did it contain a video camera. As is typical in such searches, the defendant was required to remove all of his clothing, one item at a time. He was also required to bend over and spread the cheeks of his buttocks to permit a rectal examination. The officers did not touch the defendant. The entire Level 3 search lasted for about two minutes, of which the defendant was entirely naked for about 20 seconds. Nothing of forensic or security interest was located as a result of the search. The defendant was placed into cell number 2 at 12:20pm. He was finally released from the station on a Form 10 at 3:44pm, more than three hours later. Leary attributed the delay to paperwork.

C. Analysis

(a) Introduction

[22] I intend to address the defendant's Charter claims in the chronological sequence in which they arise. Some matters of general concern bear noting at this introductory point. First, the allegations of s. 8 breach universally focus on whether the legal or constitutional standard for authorizing each challenged search are here met; there is no complaint about the manner of any of the searches to which the defendant was subject. Second, the defendant did not testify during the course of the Charter voir dire. He, of course, was under no obligation to do so nor may I draw any adverse inference as a result of his failure to testify. The result, however, is that the evidence of the officers as to the salient events is testimonially uncontradicted by any witness for the defence. Unless internally or inter-officer inconsistent, contrary to the video evidence of the defendant's bookings or patently preposterous, there is little if any reason to reject the police testimony as to circumstances surrounding the defendant's arrest, transport, bookings and searches on the morning in question. Indeed, while there are some minor (as I find them) inconsistencies between the officers' accounts, I accept their evidence as to the occurrences at issue but for, where contradictions or discrepancies arise, those at 14 Division. In this latter case I rely on the videotaped evidence of the events in the booking hall.

(b) Charter Claims Arising from the Defendant's Detention

(i) Introduction

[23] Crown and defence counsel agree, as do I, that the defendant was "detained" at the point PC Leary approached his driver's side window and commanded him to turn the car off and place the keys on the dash. At issue is whether there was a lawful basis for the defendant's detention and, particularly, the arrest that followed, and whether the alacrity with which he was informed of the reasons for his detention complied with constitutional standards. The lawfulness of the defendant's arrest impacts on the constitutionality of a series of derivative searches that followed: the roadside search incidental to the defendant's arrest and the seizure of the Ketamine from him at that time; the results of the urine sample later taken from him at Traffic Services; and, finally, the results of the DRE assessment conducted at the same station. (See, by way of doctrinal guidance: R. v. Stillman, [1997] 1 S.C.R. 607, esp. at para. 27, and R. v. Caslake, [1998] 1 S.C.R. 51, esp. at para. 13.) Although not directly germane to this Charter application, the defendant's arrest, if found unlawful, may well afford him a defence to the charge of assault resist arrest.

[24] The defendant's challenge to the Level 3 search is addressed separately in a subsequent section.

(ii) The Defendant's Detention and Arrest

[25] The defendant was arrested for having care and control of a motor vehicle while his ability to operate the vehicle was impaired by a drug. He contends, at bottom, that his car-side arrest for this offence violated his s. 9 Charter right "not to be arbitrarily detained". If the arrest comports with the arresting officer's lawful powers in this regard, there was no breach of the defendant's s. 9 protections. It follows, on the other hand, that a constitutional infringement occurred if the officer acted beyond his lawful authority.

[26] For the defendant's arrest to here be lawful the arresting officer must subjectively believe he has reasonable grounds for the arrest and a reasonable persons clothed in the officer's shoes must be able to reach the same conclusion on the same evidence: R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.), esp. at 324, and R. v. Brown, 2012 ONCA 225, at para 14. The defence does not quarrel with the sincerity of PC Leary's stated belief in the existence of the requisite grounds. The attack, rather, is on the purported absence of an objective basis for his belief. In my view, the totality of circumstances does afford sufficient objective rationale for the defendant's arrest for the "impaired" charge. The factors and/or indicia that cumulatively satisfy me as to the reasonableness of inferring the defendant's impairment include the following:

• The defendant and his friend both appeared impaired as they left the Comfort Zone and crossed Spadina: They were unsteady on their feet. They physically supported each other. They looked wary, unsure of their direction and disoriented.
• Despite the minimal traffic, the two men took an inordinate amount of time and an inexplicably indirect route to cross the street.
• The club the defendant exited was, to the arresting officers, a notorious venue for consumers of "rave" and "party" drugs after licensed bars closed.
• The hour of the defendant's departure, approximately 9am on a Sunday, was also consistent with a pattern of after-hours, weekend drug consumption with which both officers were personally familiar.
• The defendant's eyes were dilated and he initially appeared uncomprehending as PC Leary first addressed him by the window of his car.

[27] The concern, here, is not whether the defendant was in care or control of the vehicle he had entered and activated. The concern, rather, is with respect to the existence, or not, of reasonable grounds to infer that the defendant's ability to drive was impaired by drugs at the time. It may well be, of course, that there are legally benign explanations, such as fatigue, for at least parts of the defendant's suspect behaviour. It may also be that any consumption of drugs on his part did not in any way impair his ability to drive. These, however, are not the questions that must be asked and answered at this analytical stage. (See R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 (Ont. C.A.), esp. at paras. 54 and 56, and R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.)). Given the reported conduct of the defendant, it was, I find, reasonable for PC Leary to infer that his ability to operate a motor vehicle was impaired. Given the location and timing of these observations, it was also reasonable for an experienced officer to infer that the defendant's impaired ability was attributable to the consumption of drugs. In these circumstances, his arrest for the predicate offence was lawful and, accordingly, his s. 9 rights were adequately respected.

(iii) The Informational Obligations Arising on Detention

[28] Section 10 of the Charter gives rise to two informational obligations on detention. The second, embodied in s. 10(b), requires detainees to be informed of their right to counsel. The first, and that germane to this application, is contained in s. 10(a), the Charter guarantee that "everyone has the right on arrest or detention to be informed promptly of the reasons therefor". The word "promptly" is authoritatively construed as "immediately": R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 20. Further, as said at para. 18 of the same judgement, the immediacy requirement "is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it". As the Court of Appeal goes on to explain, at para. 21:

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill … the breach of the obligation to provide that information cannot be considered a trivial matter.

[29] There are undoubtedly circumstances where the conduct or security of a detainee or pressing officer or public safety concerns justify some situationally reasonable delay in honouring the immediacy requirement. (See, for example, R. v. Balatoni, [2003] O.J. No. 5787, at paras. 16-18, and R. v. Sibblies, [2006] O.J. No. 2407, at paras. 138-141.) In my view, such considerations do not obtain in this case. PC Leary did not invoke concerns for "officer safety" or the safety of others in the context of his first approach to the defendant. Nor, on close examination of the record, do I discern any objective basis for such concerns. Indeed, the defendant's initial confusion or failure to apprehend the quickly developing events may well have been allayed had Leary – then in plainclothes – simply and immediately advised him that he was under arrest and the reasons for that arrest rather than waiting until he had physically removed the defendant from the car. In my view, the defendant's s. 10(a) rights were not appropriately honoured in the circumstances of this case.

[30] That said, Leary's delay in complying with his s. 10(a) obligations appears to have lasted no more than about two minutes. No tactical reason for the delay has been identified nor any other basis to conclude that it was a product of bad faith on the part of the officer. Further, and unlike the circumstances in Nguyen, supra, the delay in verbalizing the reason for the defendant's detention did not in any way contribute to the production or detection of any incriminating evidence.

[31] I turn then to the three lines of s. 24(2) inquiry directed by the Supreme Court in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1. As to the first: while not trivial, in my view the failure to immediately inform the defendant of the offence for which he was being arrested was, here, not a grave form of Charter misconduct. The constitutional defect was brief, occurred in the course of a dynamic situation, and was, I find, neither deliberate or intentional. It had no discernable impact on the defendant's Charter protected interests, in particular those related to his rights to privacy and counsel. As to the derivative seizures that temporally followed: while some can rightly be characterized as self-incriminatory and compelled, all fall along a spectrum of reliable evidence that, in the case of two of the three charges, are crucial to the effective prosecution of those alleged offences. Further, and as higher courts have often said, there is a strong societal interest in determining cases of impaired driving on their merits. The balancing of these considerations, I find, weighs in favour of admission, rather than exclusion, of the impugned evidence: the Ketamine, the urine assay, and the results of the DRE.

(c) Charter Claims Arising from the Strip Search of the Defendant

(i) The Alleged Breach of the Defendant's S. 8 Rights

[32] Short of those involving anatomical procedures or body cavity searches, it is difficult to conceive of a more invasive search than that captured by the bland bureaucratese of "Level 3". Typically, a person is compelled to remove all of his or her clothing in the presence of uniformed strangers who, at some point, inevitably ask him or her to bend over and spread their buttocks for purposes of a rectal examination. The trespass on personal privacy and indignity are patent. As said of strip searches by the Supreme Court in R. v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449, at para. 83:

[I]t is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for the individuals subject to them … [E]ven the most sensitively conducted strip search is highly intrusive.

See, also, R. v. Flintoff (1998), 126 C.C.C. (3d) 321 (Ont. C.A.), at para. 24.

[33] Despite their intrusiveness, there are occasions when even the most intimate of privacy interests must yield to those of law enforcement, including, where demonstrated, the need to conduct a strip or Level 3 search. The analytical framework for determining the appropriate balance point between these interests was set out in R. v. Golden, supra. The immediate question is whether that test is here met. In this regard, it must be borne in mind that our highest court has concluded that the intrusive nature of strip searches, when combined with the absence of prior judicial authorization, necessarily places the burden to demonstrate the reasonableness of such searches on the prosecution. As said in Golden, at para. 98: "In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest". Put otherwise, the police must have "a higher degree of justification" to constitutionally ground a strip search than other searches incidental to arrest and, unlike "frisk" or "pat down" searches, the grounds must be "additional" to those upon which the lawfulness of the predicate arrest is based. (See, also, Golden, para. 99.)

[34] The directives of the Supreme Court in Golden make clear that a strip search can only be justified where it is incident to a lawful arrest. (In rejecting the defendant's s. 9 claim I have effectively recognized the lawfulness of his arrest.) A second necessary precondition to a strip search incident to arrest is that, as said in Golden, at para. 92, the search is "related to the reasons for the arrest itself" – drugs, for example, in the case of a drug trafficking investigation. A concern for weapons may also justify such a search where related safety concerns are satisfactorily demonstrated. Importantly, "[w]hether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search": Golden, para. 94. Strip searches, of course cannot be carried out abusively or for purposes of humiliation or punishment. And of vital importance, strip searches cannot be conducted as a matter of routine policy. As said in Golden, at para. 95, even if "carried out in good faith" a "'routine' strip search will … violate s. 8 where there is no compelling reasons for performing a strip search in the circumstances of the arrest".

[35] The Golden decision expressly recognizes that the calculus of justification for a strip search may vary depending on whether the proposed search is immediately upon arrest or informed by concerns arising as a prisoner is about to be placed in a custodial setting. As to the latter situation, the Court observes that:

[W]hereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population.

The Supreme Court repeatedly condemns "routine strip searches" in Golden and, unsurprisingly, emphasizes the importance of "case-by-case" assessments.

[36] Applying Golden, many trial courts have since found s. 8 Charter breaches in circumstances where persons arrested for impaired driving offences have been strip-searched at police stations before being temporarily housed in the station's cells. (See R. v. Samuels, 2008 ONCJ 85, [2008] O.J. No. 786, at para. 81, for a voluminous collection of such cases. For more recent examples, see R. v. Muthuthamby (2010), 79 C.R. (6th) 64 (O.C.J.), R. v. McGee (2012), 2012 ONCJ 63, 92 C.R. (6th) 96 (O.C.J.) and R. v. Carrion-Munoz, 2012 ONCJ 539.) However, none of these cases address the situation where, as in the matter before me, the substance alleged to give rise to the driving-related impairment charge is a drug rather than alcohol and where the defendant was found in, and charged with, possession of the same prohibited substance he is alleged to have consumed. Drugs, I accept, can be more easily and effectively secreted on a person than a container of alcohol.

[37] A case-specific assessment of the constellation of factors bearing on the determination of whether the defendant should have been subjected to a strip search at 14 Division leads me to the conclusion that the "high degree of justification" dictated by Golden is not met in this case. The defendant had been searched in the field. He underwent a second, Level 2, search at Traffic Services during which nothing giving rise to safety or forensic interest was located. It appears he was placed in the cells at that station without report of anything untoward. The arresting officers did not request authorization for a Level 3 search at either Traffic Services or, later, at 14 Division, nor did they testify to having grounds for the necessity of such a search. Nothing in the defendant's conduct, as recorded by the police or evidenced on videotape, suggested a basis for mental health or suicidal concern. But for the defendant, the cell area at 14 Division was empty when he was housed there, thus minimizing if not eliminating the theoretical risk of contraband being transferred from one prisoner to another. There were no other arrestees in the booking or sallyport areas. Although Sgt. Male testified to one or two other prisoners then being in the criminal investigation unit at 14 Division and to his belief that they would eventually make their way to the cell area, no evidence of this occurring during the defendant's residency in the cells was ever tendered by the Crown – as might have been expected given its burden on this aspect of the Charter application. In any event, the cells were individually video-monitored with live feeds to two sets of screens monitored by officers who were a short distance from the cells.

[38] The reasons Male advanced during the course of his testimony for ordering the defendant strip-searched are patently post facto rationalizations that he constructed upon consulting the TPS Manual in anticipation of having to testify at the defendant's trial. At bottom, Male's grounds for authorizing the Level 3 search, as expressed on the videotape and thematically through his evidence, were that the defendant faced a drug charge and, accordingly, there was a risk he may be concealing further drugs. I do not find these grounds "compelling", as required by Golden. They are inimical to the letter and spirit of Golden which, at minimum, commands a careful assessment of all the relevant factors in light of the intrusive invasions of privacy and personal dignity inevitably engaged by a strip search. Male, I find, made a mechanical decision: the possibility of hidden drugs, he reasoned, requires a strip search. This decision – or, perhaps more importantly, the facile manner in which it was reached – complied with neither TPS policy nor constitutional imperatives. It reflected a myopic focus on a single factor that for Male appears to have been dispositive. This is not the case-by-case, particular-circumstances-of-the-case analysis directed by the Supreme Court. Nor is it properly responsive to the Court's caution, as earlier quoted, that, "the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search".

[39] In the result, the Crown has not satisfied me that the strip search of the defendant was, in all the circumstances, reasonable. Accordingly, I find that the police-ordered strip search violated the defendant's s. 8 rights.

(ii) The Question of Remedy

[40] Nothing of evidentiary value was seized during or following the strip search of the defendant. Accordingly, the remedy of exclusion, even if otherwise appropriate, is of no practical advantage to him. By way of constitutional vindication, the defendant instead seeks an order staying the proceedings. In cases where alcohol rather than drugs are the alleged source of impairment, some judges have granted stays in roughly parallel circumstances (see, for but one example, R. v. McGee, supra). Some (as in R. v. Carrion-Munoz, supra) have not. I decline the opportunity to endeavour to reconcile these disparate authorities. "Each case," as said in Carrion-Munoz, at para. 76, "ultimately depends upon its own facts and the context surrounding the violations". Each case also depends on the proper application of the principles that govern the remedy of a court-ordered stay for breach of an individual's Charter rights. I begin with these more general considerations.

[41] A stay of proceedings terminates a prosecution without any determination on the merits. The currency of judicial stays (even in cases unreliant on infringement of s. 11(b) rights) precludes characterizing them as "extraordinary" or "most exceptional" remedies for the infringement of a defendant's Charter rights. Nonetheless, as said by the Supreme Court in R. v. O'Connor, [1995] 4 S.C.R. 411, at paras. 59 and 82 (and since oft repeated), "a stay of proceedings is only appropriate 'in the clearest of cases'".

[42] The Court of Appeal, in R. v. Zarinchang (2010), 2010 ONCA 286, 254 C.C.C. (3d) 133, at para. 57, set out the prevailing test respecting the availability of a stay of proceedings as a constitutional remedy:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider -- the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

To be clear, the case before me has resonance only with respect to the "residual" category. The state misconduct reflected in the strip search of the defendant in no way compromises the fairness of defendant's pending trial. It is, rather, the integrity of the judicial process that is arguably brought into question. The instruction contained in the very next paragraph in Zarinchang is thus particularly pertinent:

Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.

[43] Applying these principles, I have determined that this is not one of the "clearest of cases" that warrants a stay of proceedings. The factors that inform this conclusion include the following:

• The strip search of the defendant was not the product of routine institutional practice. The TPS has, it appears, gone to some effort to articulate a strip search protocol that respects the Charter dictates enunciated in Golden and other cases. The Level 3 search to which the defendant was here subjected was not a result of a constitutionally defective procedure but, rather, because a single officer, Sgt. Male, failed to properly follow company directives. Had, for example, TPS policy encouraged or even condoned strip searches of all arrestees charged with drug-related offences, I would have little hesitation about entering a stay of proceedings to, at minimum, distance this court from the practice and, hopefully, to inhibit its perpetuation.

• As to Sgt. Male, I have no evidence before me as to whether his decision to authorize the strip search of the defendant was personally routine or idiosyncratic. Male was simply never asked how he had addressed parallel situations in the past or whether he would likely make the same decision in every case where an arrestee charged with drug possession and/or drug-impaired care-and-control was about to enter the station's cell area. I do not intend to draw an adverse inference of consistent constitutionally bad behaviour from a single occurrence.

• The fact that the impairment provoking substance was, in the matter before me, a drug rather than alcohol distinguishes it from the legal authorities pressed on me. The complex of considerations that must be canvassed and weighed in deciding to authorize or not authorize a strip search are the same whether alcohol or drugs are involved but, depending on case-specific circumstances, the ultimate exercise of an officer's discretion is not necessarily the same. The seeming novelty of the presenting situation leaves some room, at least to this stage in the evolving jurisprudence, for the possibility of honest mistake.

• There is no suggestion that the strip search of the defendant was intended to serve a prohibited purpose such as punishment or retribution.

• The search process itself was relatively brief, lasting for no more than two minutes. While its impact was undoubtedly offensive to the defendant's personal privacy and dignity, there is no evidence – in the testimony of the officers or the video recordings – of any embarrassment or humiliation beyond that poignantly canvassed in Golden. The defendant, of course, did not amplify the generic through his own testimony.

• Finally, and as directed by Zarinchang in the case, as here, of residual category prosecutions, my "balancing of the interests in granting a stay against society's interest in having a trial on the merits" favours, upon consideration of all the relevant factors, proceeding to a trial on the merits. The consistent reminders by appellate courts of the gravity of impaired driving-related offences buttress this conclusion.

[44] It may well be that the defendant is acquitted of all charges following his trial. Any vindication for the breach of his constitutional rights will then have to be found, if at all, in some other forum. If, however, the defendant is found guilty of one or more of the charges he faces, it remains open to him to ask that any infringement of his rights be factored into the crafting of an appropriate sentence: R. v. Nasogaluak (2010), 2010 SCC 6, 251 C.C.C. (3d) 293 (S.C.C.). It is, of course, far too premature to anticipate such application or, more sharply to the point, what reception it would receive at that time.

D. Conclusion

[45] I have found that the police infringed the defendant's rights under ss. 8 and 10(a) of the Charter during the course of their investigation. Nonetheless, and for the reasons set out, I do not find that a remedy pursuant to either s-ss. 24(1) or (2) is appropriate in the circumstances of this case. The application for Charter relief is accordingly dismissed.

Released on October 9, 2012

Justice Melvyn Green