R. v. Melo

Court File No.: Toronto Region, Metro North Court

Date: 2012-10-25

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jose Melo

Before: Justice Leslie Pringle

Heard on: February 2-3, 2012; July 3, 2012; September 7, 2012; October 10, 2012

Reasons for Judgment released on: October 25, 2012

Counsel:

Ms. S. Kim, for the Crown

Mr. S. Price, for the accused Jose Melo

PRINGLE J.:

1. Introduction and Overview

[1] On the morning of October 12th, 2010, Margaret Iacovone was driving to work and saw Mr. Melo's truck swerving drastically on Highway 401 in heavy traffic. She called 911, and continued to follow him for about 17 km until police were able to pull him over. Mr. Melo was eventually arrested for impaired driving by Cst. Parkin and taken to the police station to provide samples of his breath. After providing samples and blowing more than three times the legal limit, Mr. Melo was held until he sobered up and then released.

[2] This should have been a simple case to be tried on the merits of the allegations of impaired driving and over 80. Unfortunately, matters were complicated by the fact that Mr. Melo was taken to 32 division, where it appears all persons held in the cells at that time were strip searched, regardless of their circumstances. This policy was contrary to the law, and the Crown concedes that the search was illegal and contravened Mr. Melo's rights under s.8 of the Charter.

[3] Mr. Melo's first language was Portuguese, and the Crown also acknowledges that an interpreter should have been provided to him in order that he could understand and properly exercise his rights to counsel pursuant to s.10(b) of the Charter.

[4] In light of the breaches, Ms. Kim concedes that the evidence of the breath samples should be excluded from evidence under s.24(2) of the Charter. With respect to the charge of impaired driving however, she submits that the evidence demonstrates that Mr. Melo's ability to drive was impaired by alcohol, and says that this evidence is severable from the police conduct at the police station. The Crown position is that a stay of the charge of impaired driving is not warranted.

[5] On behalf of Mr. Melo, Mr. Price submits that the Crown has not proven the charge of impaired driving beyond a reasonable doubt. Even if it has, the defence submits that the conduct of the police at 32 division in strip searching Mr. Melo was a flagrant violation of the law, and all charges should be stayed against him as an abuse of process.

[6] I have determined that there were breaches of both s.8 and 10(b) in this case, and I accept the Crown's concession that accordingly the evidence of the breath samples should be excluded under s.24(2) of the Charter. There will therefore be an acquittal on the charge of "over 80".

[7] With respect to the charge of impaired driving, I find that it has been proven beyond a reasonable doubt. However, I do not find that this is one of the clearest of cases where a stay of that charge should be entered due to the police conduct of strip searching Mr. Melo. Rather, in order to reflect the breach occasioned by the illegal search, I will reduce the fine to $1 and impose the minimum one year driving prohibition subject to the ignition interlock program.

[8] Let me explain my reasons.

2. The Evidence

2.1 The driving

[9] Margherita Iacovone was driving to work around 8.45 a.m. when she saw Mr. Melo's truck swerving drastically left and right on Highway 401 eastbound. Traffic was heavy, and other cars were moving out of the way as the truck moved back and forth, crossing the lines on either side of its lane. Ms. Iacovone saw that at one point, the driver's eyes were closed, and she thought he was either drunk or asleep. She called 911 because she thought something was wrong. While she was on the telephone to the dispatch operator, she activated her hazard lights and continued to follow Mr. Melo so that the OPP could locate him. He exited onto the Allen Road north, and as he drove he would speed up, and then slam on his brakes as the traffic moved or stopped. She witnessed several near-collisions by Mr. Melo, and also observed something liquid leaking out of his truck. When Mr. Melo turned right on Sheppard Avenue, Ms. Iacovone saw a police officer who dealt with the situation, and she continued on to work. Later an officer contacted her to give a statement.

[10] Ms. Iacovone's call to OPP dispatch which captured her description of Mr. Melo's driving at the time was played in court, and was adopted by her. During this call, she was heard to exclaim repeatedly, "oh my God", or "he's going to hit someone", or "he's going to kill someone". In court, she explained that at the time she was observing Mr. Melo's truck swerving towards other cars or the guardrail.

[11] Cst. Andrew Parkin from 32 division heard the call for assistance and noticed Mr. Melo's car turn right onto Sheppard Avenue from the Allen. His attention was drawn by fluid gushing out of the back part of the bed of the truck, and he could smell a strong odour of gas. He put on his emergency lights, followed Mr. Melo and pulled him over. Cst. Parkin asked Mr. Melo for his licence and then went to the rear of the vehicle and saw gas pouring out of a gas can that had fallen on its side in the back of the truck. The officer tightened the cap on the gas can, and noticed that Mr. Melo was staring at his vehicle and had glossy eyes, but at that point the officer didn't smell alcohol on his breath. He said Mr. Melo seemed unaffected by the cold weather or the smell of the gas, and told him that he was on his way to work at a landscaping job. Cst. Parkin asked Mr. Melo to wait in his vehicle to stay warm, and told him he was going to give him a ticket for having an insecure load. Mr. Melo handed him his insurance, and the officer went to his vehicle with Mr. Melo's documentation to write the ticket.

[12] However, to the officer's surprise, Mr. Melo started his truck and began to drive away. Cst. Parkin followed and motioned for him to pull over, and he pulled into a gas station. When Cst. Parkin said "what are you doing", Mr. Melo tapped his forehead and said "I'm sorry, I forgot". At this time, Cst. Parkin did detect alcohol on his breath and made a demand for a sample on an approved screening device.

[13] Cst. Parkin demonstrated how to provide a sample to Mr. Melo, and noted that he seemed a little unsteady on his feet. His eyes were very glossy, and then he stumbled back and pulled the cord out of the adaptor. As the officer went to plug the cord back in, Mr. Melo began to blow into the mouthpiece while looking at the device, however, the mouthpiece wasn't yet attached to the device. At this point the officer formed the opinion that Mr. Melo's ability to drive a motor vehicle was impaired by alcohol and arrested him.

[14] Mr. Melo testified on the trial proper in relation to the issue of impaired driving. He said he was 67 years old at the time of this incident, and explained that he had "a cup or two of wine" on the evening of October 11th, which was Thanksgiving. He said it was two glasses with his turkey dinner, and that he had gone to bed around midnight. The next morning when he was driving to work he said he did not feel his ability to drive was impaired by alcohol, and said he was not drunk.

[15] Mr. Melo explained that he did have a momentary problem on the 401 when he tried to grab an invoice that looked like it was going to blow off the dashboard and out the window, but he said he straightened out the steering wheel and got back on track right away. He said that his truck did not leave its lane then or at any other time, and he denied that he almost hit any other cars or the guardrail. He also testified that he wasn't taking medication, and said he wasn't tired or falling asleep. According to Mr. Melo, nothing else except the invoice affected his driving on that day, and that was only for a second.

[16] Mr. Melo said that when the officer stopped him, he was close to the gas station, and he moved into the gas station when the officer told him to do so. He didn't recall any problem in relation to the gas container in the back of his truck, and denied that anything had spilled.

2.2 The arrest, booking and breath testing

[17] Cst. Parkin spoke to Mr. Melo in English and didn't feel that he had trouble communicating with him. He said Mr. Melo's English wasn't perfect, but he appeared to understand the demand to provide a sample of his breath at the roadside, and once arrested and read his rights to counsel he said he understood and wanted to call his lawyer. When he was cautioned, Mr. Melo responded by saying, "Oh yeah, oh my God, I'm in trouble". After he was read the breath demand, he was asked "Do you understand?", and he stated, "yes yes".

[18] The video confirms that at the station, Cst. Parkin did have to explain the warning about video-recording to Mr. Melo. At this point Mr. Melo said, "I not speak very well english". When the officer in charge at the station asked Mr. Melo if he understood that he was there to provide breath samples, Mr. Melo shrugged. When he was asked if he had contemplated suicide, he stated, "it's difficult to say. I no speak very good".

[19] Cst. Daley was the breath technician who administered the breath tests to Mr. Melo at 11.51 a.m. and 12.18 a.m. He observed his balance was fair, and the effects of alcohol were slight.

[20] When Cst. Daley asked Mr. Melo if just got off the phone with duty counsel, Mr. Melo told him, "I talked to the lawyer, I got to find another guy, I don't know". Cst. Daley testified that he took this to mean that Mr. Melo wanted to get another lawyer since duty counsel wouldn't be able to act for him. He believed that Mr. Melo understood him even though his first language was Portuguese, especially since he followed all his directions.

[21] Mr. Melo testified on the Charter hearing in relation to the language issue. He said he found questions such as "how much do you weigh?" to be easy in English, and he didn't find the instructions about blowing into the instrument to be difficult. However, he said that he didn't understand duty counsel very well, and he would have liked an interpreter. He said he knew there were lawyers that spoke Portuguese, but he didn't ask for one because he didn't understand the officers well and he was nervous.

2.3 Level 3 search authorized

[22] Cst. Parkin stated that Mr. Melo was very polite and cooperative and cordial, and remained calm and composed throughout the investigation. He performed a pat down search on Mr. Melo at the roadside and was satisfied he had no weapons. Cst. Parkin had no safety concerns regarding Mr. Melo.

[23] Cst. Daley also confirmed that Mr. Melo was cooperative, and not in the least violent.

[24] Sgt. Wood didn't make any notes about Mr. Melo's history or behaviour and didn't recall if she asked the other officers about it. However, in light of Mr. Melo's readings, she made a determination that he wouldn't be released until he had sobered up and therefore she authorized a "level 3" search, or a strip search. She said that he was not aggressive, but he was intoxicated and she had no way of knowing his state of mind. She said she believed that people can become aggressive in the cell once they are aware they are being held.

[25] Sgt. Wood also noted that she is aware that it is the policy of the Toronto Police Service to require grounds for a search, but she was concerned that since 32 division is a central lock up, there could be prisoners brought in from other divisions at any time. Although Mr. Melo was the only prisoner at the time, she said that could change, and contraband or weapons could be passed from adjacent cells. In her view, it was better to err on the side of safety, both for Mr. Melo and for any other prisoners who could be brought in. As she put it, "it's my personal policy. It's an unwritten policy. For me personally I search. Anyone to be lodged is searched".

[26] Sgt. Wood couldn't say if she had made any inquiry into Mr. Melo's history since she made no notes of it. However, eventually in cross-examination she agreed that it was a long shot that Mr. Melo would have drugs or a weapon. She also acknowledged that at age 67, Mr. Melo was an unlikely candidate to double up in a cell, even if other prisoners did come in.

[27] Cst. Parkin carried out the strip search with Cst. Peters. The search took 3 minutes, from 1.25 to 1.28 a.m. It took place off camera in an area in the cell room. There was no personal contact between the officers and Mr. Melo. Cst. Parkin recalled that Peters was the one who instructed which items Mr. Melo was to remove and in what order; Cst. Peters recalled that it was Parkin who did that.

[28] Cst. Peters had no notes of the search, and said that he would only have made a note if something was found. According to him, "if it's just procedure, we wouldn't [note anything]".

[29] None of the officers recalled who completed the necessary form setting out the grounds for a strip search, and each stated they had not completed one. No form was ever produced.

[30] Mr. Melo testified on the Charter hearing in relation to the search. He said that he found it very embarrassing and he always remembered it.

2.4 A new era for 32 division?

[31] Cst. Peters mentioned in passing that "the policy in recent months is that we don't search impaireds unless there is drugs or something like that". He believed that this was an overall policy for the Toronto Police such that when a person who was charged with a drinking and driving offence was held to sober up, that person was to be held in a separate cell and not searched unless there were specific reasons to do so. If the cells happened to be full, the staff sergeant would have to determine if a strip search was warranted.

[32] By way of Agreed Statement of Facts, Staff Sgt. Coulson provided more precise information about the practice at 32 division relating to strip searches. Sgt. Coulson arrived at 32 division in July 2010, when Sgt. Wood was the booking sergeant. Sometime in 2011, Sgt. Wood was transferred to another unit and Sgt. Coulson took a more active role in booking prisoners at 32 division.

[33] Sgt. Coulson understood that all level 3 searches must be evaluated on a case by case basis, and that since 2005 the TPS policy has been that "when a person is held in short term detention and will be released from custody, reasonable and probable grounds are required prior to conducting a complete search". Sgt. Coulson indicated that on one occasion he had to remind Cst. Peters of this policy, and as a result Sgt. Coulson believed that this was not the practice that Peters was accustomed to. Accordingly, Sgt. Coulson spoke at some length regarding the subject with this officer.

[34] Sgt. Coulson also explained that in 2007, as a result of the Coulter case, all prisoners held for short term detention are segregated from prisoners entering the court system. A complete search would only be done in those cases when absolutely necessary.

3. Law and Analysis

3.1 Impaired Driving

[35] Mr. Price challenged Margaret Iacovone's evidence of poor driving and submitted that it was exaggerated and should not be believed. He made 4 points:

1. if Ms. Iacovone's evidence of constant swaying was accurate, surely there would have been an accident in light of the heavy traffic;

2. if her description was reliable, why didn't a police car on the Allen Rd. take note of Mr. Melo's vehicle?

3. her description that Mr. Melo's right turn onto Sheppard was "shaky" was not corroborated by Cst. Parkin who noticed nothing unusual about Mr. Melo's driving except that it was slower than the speed limit; and

4. her recollection that Mr. Melo's vehicle was waved over by Cst. Parkin as he stood at the side of the road was inconsistent with Cst. Parkin's evidence that he did not get out of his police car, but instead used his lights to signal to Mr. Melo to pull over.

[36] I will consider those issues briefly. Ms. Iacovone did describe the swaying of Mr. Melo's truck as "constant" and agreed that the traffic was heavy. However, while it may have been lucky that no accident was caused, I didn't find that her testimony was unreasonable or unbelievable as a result.

[37] She also acknowledged that a police car was beside her at one point, and the officer didn't appear to notice anything wrong with Mr. Melo's driving. I have to consider that in addition, Cst. Parkin didn't notice that Mr. Melo's turn on to Sheppard was shaky nor did he observe any unusual or drastic swerving. In the circumstances, I agree with Mr. Price that there may have been an element of overstatement in some of her testimony in court, and that I should be cautious about its reliability.

[38] I don't have similar concerns about her lack of recollection as to how Mr. Melo was pulled over. Although she did say that she believed that an officer got out and motioned for the truck to stop, she also said that she couldn't recall how Mr. Melo was pulled over. Since the events had taken place about 15 months prior, this was not surprising.

[39] Notwithstanding some concern about overstatement, I believe that Ms. Iacovone's demeanour in her audio statement demonstrates her genuine concern for Mr. Melo's driving in a very compelling and credible fashion. During the time she was observing Mr. Melo, she described that he was really swerving, he almost hit the guard rail twice, that transport trucks had to swerve around him, and people were literally trying to get away from him. As she spoke to the 911 operator, she repeatedly exclaimed "oh my God" and said "I've never seen anything like this", "he's going to hit someone" or "he's going to kill someone". While this statement should not be treated as a prior consistent statement, it does demonstrate in a clear way that she was simply a concerned citizen calling in to report this man's driving to the best of her ability.

[40] While Cst. Parkin or the other officer who passed Mr. Melo didn't immediately notice the same signs of bad driving, they only had contact with him for a short distance. Ms. Iacovone followed Mr. Melo for approximately 17 km, and had a very good and prolonged opportunity to observe his ability to drive.

[41] Mr. Melo testified that except for a momentary problem that lasted about one second on the 401 highway, his driving was fine. He said that he was not swerving or weaving, and he denied there was any problem with gas spilling out of the container in his truck. However, his recollection about much of the evening was uncertain and vague. He said when he was first stopped, it was right at the gas station. At first he didn't recall talking to the officer, or getting out of his truck and looking at the gas spilling out. He didn't seem to recall leaving the scene and being pulled over again. He didn't know if the officer told him he was going to get a ticket for an insecure load. Frankly, his recollection was poor and his evidence simply didn't fit with that of either Ms. Iacovone or that of Cst. Parkin.

[42] When I consider Mr. Melo's evidence in the context of the whole of the evidence, I find I do not believe it nor does it leave me with a reasonable doubt. To the contrary, I am satisfied that even allowing for some degree of overstatement in Ms. Iacovone's testimony, Mr. Melo's driving was terrible that morning. I find that he posed a major risk to himself, and to other drivers on the road.

[43] I agree with Mr. Price that bad driving alone is not sufficient for the Crown to prove the charge. Rather, the Crown must prove beyond a reasonable doubt that the impairment in driving was caused, or contributed to, by alcohol.

[44] In R. v. Walton, 2012 S.C.C.A. 95, the Supreme Court of Canada recently refused leave to appeal. In the court below, the B.C. Court of Appeal held as follows, (2011 BCCA 535 at para.12):

It is fair to say that the indicia of impairment by alcohol generally include evidence that points to consumption of alcohol - seeing the accused drinking, an admission that he was drinking, or an odour of alcohol emanating from his breath or body. Nevertheless, there is no particular test or checklist of factors for determining impairment for the purposes of s. 253(1) (a) of the Criminal Code, nor is there any definitive behaviour or factor required to establish that condition. Typically, the fact-finder will consider evidence of the driving pattern, the physical appearance of the accused, his or her conduct, particularly the ability to walk and communicate, and evidence suggesting ingestion of alcohol. This evidence must be examined as a whole, with a view to determining whether the conduct of the accused shows a marked departure from the norm: R. v. Stellato, 12 O.R. (3d) 90 at 92-95, 78 C.C.C. (3d) 380 (C.A.), aff'd , [1994] 2 S.C.R. 478; R. v. Todd, 2007 BCCA 176, 239 B.C.A.C. 154 (emphasis added).

[45] In this case, it is true that Cst. Parkin did not immediately smell alcohol on Mr. Melo's breath and didn't initially think much of his glossy eyes and slow demeanour in staring at the gas can in his truck. However, after Mr. Melo left the scene and had to be pulled over again, the officer detected the odour of an alcoholic beverage on his breath, and began to notice signs of impairment by alcohol. Mr. Melo was a little unsteady on his feet, his eyes were very glossy, and at one point he stumbled back and pulled the cord out of the approved screening device as he did so. After he saw Mr. Melo blowing into the detached mouthpiece, Cst. Parkin concluded that Mr. Melo's ability to drive was impaired by alcohol.

[46] Cst. Daley also noted that the effects of alcohol on Mr. Melo were slight. He stated that he was cooperative and his balance was fair. However, his face was flushed and he too, noted an odour of alcohol.

[47] I find that although it is not overwhelming, the evidence of impairment by alcohol is clear. Mr. Melo testified that he had been drinking the night before but the officers noted an odour of alcoholic beverage on him that morning, and there were a number of tell-tale signs such as flushed features, glossy eyes and some unsteadiness on his feet. His judgement was obviously poor: he left the scene of a police investigation while an officer was writing him a ticket. Coupled with his terrible driving, these factors suggest a clear and compelling inference that his ability to drive was impaired by alcohol.

[48] This is not a case where there were other plausible explanations for Mr. Melo's prolonged poor driving. Ms. Iacovone disagreed that Mr. Melo's erratic driving was simply a case a 67 year old person trying to manoeuvre in stop and go traffic. And Mr. Melo himself steadfastly maintained that he was not tired and he was not ill. Indeed he was adamant that nothing was affecting his driving that day except a momentary problem with an errant invoice.

[49] When I consider the totality of the evidence, I find I am satisfied beyond a reasonable doubt that Mr. Melo's ability to drive his truck that day was impaired by alcohol.

3.2 Over 80: assessing the Charter breaches under s.24(2)

[50] The Crown concedes a Charter breach under s.10(b) and also concedes a violation of s.8 by way of a routine strip search. Ms. Kim states that therefore, the evidence of the breath samples should be excluded and Mr. Melo acquitted of the charge of over 80.

[51] With respect to the violation under s.10(b) of the Charter, the law imposes obligations on the police to act reasonably in ascertaining that an accused person understands his rights to counsel. When there are "special circumstances" arising from language concerns, the police must do more than simply recite the rights to counsel. In R. v. Vanstaceghem, 36 C.C.C. (3d) 142 (Ont. C.A.), the court explained that an accused must be meaningfully informed of his rights. He must understand what is being said to him and understand what his options are in order that he may make a choice in the exercise of his rights.

[52] Here, the Crown admits that although the officers believed in good faith that Mr. Melo understood what was taking place, the video reveals that he did have some difficulty understanding what was being said to him. Ms. Kim notes that Mr. Melo appeared to have some of the same problems in comprehension at trial even with an interpreter, but she concedes that Mr. Melo's difficulties were compounded on the night of his arrest by the lack of an interpreter.

[53] I agree with this concession. According to the video evidence, Mr. Melo did appear to have comprehension difficulties and expressed that he didn't understand English very well. I didn't find this was simply posturing on his part, and in the circumstances, an interpreter should have been provided.

[54] With respect to the strip search, the law has been clear since the time of R. v. Flintoff, [1998] O.J. No. 2337 (C.A.), that a strip search conducted on the basis of general policy and not founded on circumstances related to the particular investigation or suspect is unreasonable. Indeed, in Flintoff the Ontario Court of Appeal noted that the routine strip search of a suspected impaired driver was "outrageous".

[55] Then, three years later in R. v. Golden, 2001 SCC 83, [2001] S.C.J. No.81, the Supreme Court of Canada confirmed that:

Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees…

In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainees's possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest.

[56] The Crown's concession that the strip search of Mr. Melo was unreasonable in this case was entirely appropriate. There was absolutely no reason to strip search this 67 year old man who was polite, calm and cooperative throughout the investigation. Cst. Parkin was satisfied that Mr. Melo had no weapons and that he posed no safety concerns. Even Sgt. Wood agreed that Mr. Melo was a "long shot" to have weapons or contraband, and also accepted that even if other prisoners came into 32 division, Mr. Melo was not likely to be one of the people who was doubled up in a cell.

[57] It's obvious to me that the strip search in this case had nothing to do with any grounds or concerns relating to Mr. Melo; rather the strip search was simply a matter of routine procedure for the officers. I say so because no officer seemed to have any personal recollection of the search, and Cst. Parkin was the only one who had brief notes. Cst. Peters said he didn't have notes because "if it's just procedure", there's no need for them. No one recalled who might have filled out the required form for the search, and none was ever produced.

[58] Sgt. Wood was quite candid that even though she knew there was a Toronto Police Services policy requiring grounds for a search, her personal policy was that anyone lodged in the cells was to be strip searched regardless of grounds. Sgt. Wood's policy was completely contrary to her own force's policy, and also flew in the face of the law laid down by the Supreme Court of Canada almost ten years prior.

[59] Therefore, considering the factors set out in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 in relation to exclusion under s.24(2), I find that the illegal strip search was a very serious violation. While the search itself was carried out in a reasonable manner and was brief, it was intrusive and Mr. Melo found it embarrassing. These factors strongly favour exclusion.

[60] On the other hand, there are two factors that favour admission in this case. The first is that the breath samples were reliable evidence of a serious crime.

[61] The second is that, here, the breath samples arguably cannot be said to have been obtained "in a manner" that infringed or denied Mr. Melo's rights under s.8, because the breath samples were obtained long before the illegal search even occurred. In that sense, the breath samples did not have any real nexus to the search - they had already been gathered and were arguably not tainted by the search.

[62] In a number of cases, s.24(2) was seen as the appropriate remedy when the samples were gathered after an illegal strip search. In these cases the evidence gathered after the breach was found to be tainted by the search, with the search and subsequent breath samples forming part of a single investigatory transaction: Gravel, [1997] O.J. No. 1919 (C.J.); Flintoff, [1998] O.J. No. 2337 (C.A.); Wilson, [2006] O.J. No. 4566 (C.J.); Avarino, [2006] O.J. No. 2453 (C.J.); McPhail, [2011] O.J. No. 2877 (C.J.).

[63] After reviewing all the many cases provided to me by counsel, I could find no case where a court had excluded evidence under s.24(2) where the breath samples were gathered before the breach.

[64] I am inclined to think that if the only breach in this case had been the strip search, s.24(2) might not have been an appropriate remedy. However, the Crown relies in part on the breach of Mr. Melo's rights under s.10(b) as the anchor for a s.24(2) remedy, thereby avoiding the more drastic remedy of the stay sought by the defence under s.24(1).

[65] It is somewhat ironic that the Crown is advocating the exclusion of reliable evidence here. However, in light of the two breaches and the clear nexus to at least the 10(b) breach, I am prepared to accept the Crown's position that exclusion of the breath samples is warranted under s.24(2).

[66] Accordingly, Mr. Melo will be found not guilty on the charge of over 80.

3.3 Impaired driving: assessing the breaches under s.24(1)

[67] While the courts have been unanimous in their condemnation and disapproval of routine strip searches without proper grounds, they have frequently disagreed on the appropriateness of a stay of the charges as a remedy, since a stay is reserved for the "clearest of cases". Accordingly, even when the Ontario Court of Appeal found an outrageous breach of s.8 by virtue of a routine strip search in Flintoff, the Court declined to stay the charge of impaired driving, noting that the charge was "entirely severable" from what took place at the police station. Other courts that have made similar findings include: Grenke, [2004] O.J. No. 3062 (C.J.); Ferguson, [2005] O.J. No. 182 (S.C.J.); McPhail, cited above.

[68] In some cases, judges have opted to consider a reduction in sentence as a remedy for an illegal strip search: Coulter, [2000] O.J. No. 3452 (C.J.); Padda, [2003] O.J. No. 5503 (C.J.); Grenke, cited above; Muthuthamby, [2010] O.J. No. 4110 (C.J.).

[69] In Coulter, Justice Duncan found that a stay of charges of impaired driving and over 80 was not appropriate. He noted that the violation formed no part of the evidence gathering process, it was not done for abusive or improper reasons, and it was carried out in a benign manner. He further added, "as far as I am aware, no court in this jurisdiction has disapproved of the practice that I have now found to be unreasonable in this case, so it is not as if the police were acting in defiance of judicial decision": see para.34.

[70] However, in recent years a steady stream of judgements has expressed frustration that despite the clear statements of the law regarding routine strip searches in cases such as Flintoff, Coulter and Golden, the police continue the practice. In these cases, judges have stayed the charges in order to prevent the prejudice caused by routine strip searches from continuing in the future: see for example, R. v. Samuels, 2008 ONCJ 85, [2008] O.J. No. 786 (C.J.); Chowdhury, [2011] O.J. No. 2171 (S.C.J.); Mesh, [2009] O.J. No. 6194 (C.J.); Jackson, [2004] O.J. No. 4168 (C.J.); Sheppard, [2002] O.J. No. 5008 (C.J.); and McGee, [2012] O.J. No. 523 (C.J.).

[71] The need for a stay to prevent routine strip searches from continuing was eloquently expressed by Justice Nakatsuru in the Samuels case at paras. 80-82:

Despite the considerable body of reported cases in which the courts have time and again frowned upon the way police have conducted such strip searches, it is apparent to me something is missing in their conduct whereby the rights of short term detainees are not being taken seriously. Whether it is a lack of training or an attitude, I cannot say. However, to be frank, what I can say, is that the message does not appear to be getting through. In other cases where a stay of proceedings was rejected as a remedy, it was emphasized by the courts that the issue of these types of strip searches was either novel or had not been clearly disapproved of by the judiciary. See for example, R. v. Coulter, [2000] O.J. No. 3452 (C.J.) at para. 34; R. v. B. (A.), [2003] O.J. No. 2010 (S.C.J.); R. v. Clarke, [2003] O.J. No. 3884 (S.C.J.). These cases can be distinguished at this point in time.

We have now travelled some distance from Golden. Repeatedly, the courts have addressed and censured the practice of routinely strip searching short term detainees, largely for drinking and driving offences. In some cases, the exclusion of evidence, an acquittal or a stay of proceedings was ordered. See for example: R. v. Toulouse, [1994] O.J. No. 2746 (C.J.); R. v. F. (S.), (2003), 102 C.R.R. (2d) 288 (O.C.J.); R. v. Agostinelli, [2002] O.J. No. 5008 (C.J.); R. v. Wilson, [2006] O.J. No. 4566 (C.J.); R. v. Pringle, 2003 AHRC 7, [2003] A.J. No. 118 (Prov. Ct.); R. v. Sandmaier, [2005] A.J. No. 1873 (Q.B.). In other cases, while the courts found a s. 8 violation, a stay of proceedings was not ordered. See R. v. Flintoff, supra; R. v. Ferguson, [2005] O.J. No. 182 (S.C.J.); R. v. Dipersio, [2003] O.J. No. 2917 (C.J.); R. v. Padda, [2003] O.J. No. 5502 (C.J.); R. v. Raugust, [2004] S.J. No. 30362 (Prov. Ct.); R. v. Grenke, [2004] O.J. No. 3062 (C.J.); R. v. B. (A.), [2003] O.J. No. 2010 (S.C.J.); R. v. C. (N.), [2004] O.J. No. 2723 (C.J.); R. v. Douglas, [2003] B.C.J. No. 2832 (Prov. Ct.). Regardless of whether the charges were stayed in these cases, it was made patent that the strip searches violated s. 8 of the Charter.

It is not a matter of simply tallying the number of cases for or against a stay of proceedings. Nor is it merely an exercise in making factual comparisons to determine the closest analogous case, in deciding whether a stay is warranted in Mr. Samuels' instance. Remedy is always a matter of discretion for the trial judge. What is critical to my thinking is the significant number of authorities over an extended period of time which have all consistently held that strip searches conducted like this are wrong. This is no longer novel. Nor is a constitutional practice for strip searches difficult to comprehend or institute. Yet the practice continues. More particularly, in Agostinell, F. (S.), and Grenke the police officers in those cases were conducting similar searches based upon similar Golden compliant police policy. Despite these earlier cases, the same issue has again arisen in Mr. Samuels' case. (my emphasis added)

[72] Unfortunately, the practice of a routine strip search for short term detainees appears to have been prevalent at 32 division for some years now: see the cases of Mesh, cited above, which was a routine strip search of an impaired driver in 2007 where the charges were stayed in 2009; R. v. Muthuthamby, cited above, which was a routine strip search of an impaired driver in 2008 where a reduced penalty was imposed in 2010; and R. v. McGee, cited above, another routine strip search of an impaired driver in 2009 where the charges were stayed in 2012. Mr. Melo was subjected to the same practice in 2010.

[73] Has the practice now stopped? Certainly, the change in procedure in 2007 of segregating short term detainees from other prisoners, referred to in the Agreed Statement of Facts by Staff Sgt. Coulson, does not appear to have stopped the routine strip searches performed in the cases noted in the paragraph above. Even in 2010, Mr. Melo was strip searched and lodged in the same cells that Sgt. Wood said were still being used for all other incoming prisoners.

[74] Mr. Melo's search took place about 2 weeks after Muthuthamby was released. Whether that decision eventually had the effect that Justice O'Donnell had hoped, I can't say. However, based on the evidence of Staff Sgt. Coulson and Cst. Peters, it may be that there is now a better understanding in 2012 by the police at 32 division of their legal obligations relating to strip searches of short term detainees, although I don't want to overstate this. What I can say is that, after Mr. Melo's case, I could find no reported cases of a routine strip search being performed on someone held for a short time to sober up at 32 division.

[75] Is a stay then the appropriate remedy on the facts of this case? The Ontario Court of Appeal set out the principles that must guide this assessment in R. v. Zarinchang, 2010 ONCA 286 at paras. 57-61:

[57] From the above cases in the Supreme Court, the following principles emerge:

(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.

[58] 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.

[59] When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity.

[60] However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

[61] Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category.

[76] Mr. Melo's case involves the residual category, that is, state conduct that undermines the integrity of the judicial process. Therefore, as Zarinchang directs, it is important to balance the interests of granting a stay against society's interest in having a trial on the merits, and to consider the particulars of the case including: the circumstances of the accused, the nature of the charge, the interest of the victim and the interest of the community in having the case disposed on its merits.

[77] In this case, the factors that favour a stay are as follows:

• Mr. Melo was 67 years old and posed no threat to have weapons or contraband; he was very embarrassed by the process and has never forgotten it;

• The strip search was clearly illegal and violated long established law from the Ontario Court of Appeal, the Supreme Court of Canada as well as numerous decisions from this court;

• Additionally, the strip search was contrary to TPS' own policy;

• Regardless of the law or the TPS policy, Sgt. Wood's personal policy was to strip search all short term detainees, and it seemed to be "routine" for all the officers who conducted it, since they couldn't remember who did what, and no one could remember who filed the necessary form setting out the grounds;

• The practice of routine strip searches at 32 division was not new, as demonstrated by Mesh in 2007, Muthuthamby in 2008 and McGee in 2009;

• A stay would reinforce judicial condemnation of this practice which has repeatedly undermined the integrity of the administration of justice in the past.

[78] Factors that weigh in favour of the public interest and against a stay include:

• The search of Mr. Melo by police was entirely severable from Ms. Iacovone's observations of his driving and unconnected to Cst. Parkin's investigation of him at the roadside; in fact the search took place several hours after the events that led to his arrest;

• Mr. Melo's impaired driving involved a course of conduct that posed a major risk to himself and to the public on one of Canada's busiest highways;

• Mr. Melo appears to have little insight into the danger he presented, and if he is permitted to drive without sanction, he will continue to pose a risk to himself and to others;

• The force of a message to the police at 32 division is questionable at this point in time when the events date back to 2010 and when there is some indication that there is now a better understanding of the law by officers there;

• Other remedies are available to address the illegal strip search.

[79] Considering and balancing those factors, I find I cannot say that this is one of the "clearest of cases" that requires a stay. While I agree whole heartedly with the importance of sending the message to police to prevent further illegal strip searches as expressed by Justice Nakatsuru in Samuels, the need for the message at the present time is not quite so obvious in this case. Moreover, this case engages the public interest in a more profound way than some of the other cases, in light of the risk posed by Mr. Melo's impaired driving. In my view, a stay would be a disproportionate windfall for Mr. Melo, and would fail to protect the public interest.

[80] Accordingly, I find the appropriate remedy to recognize and condemn the seriousness of the Charter violation is to reduce the fine to $1, following the approach of Justice Duncan in Padda and Justice O'Donnell in Muthuthamby, cited above. While I agree with those judges that this sentencing option results in a somewhat contrived remedy for the breach, in my view it is preferable to the path taken in R. v. Ferguson, cited above, where the court found that there was no s.24 remedy available at all. On the one hand, the reduced fine recognizes and compensates Mr. Melo in some measure for the indignity suffered from an unnecessary strip search; and on the other hand, it sends the message to the police that this was serious, unconstitutional behaviour that undermined the integrity of the administration of justice. To further reinforce that message, I request that the Crown send a copy of this judgement to Sgt. Wood, Cst. Parkin and Cst. Peters.

[81] In the circumstances of this case I also find that the public interest requires that I recognize the danger posed by Mr. Melo's impaired driving. Accordingly, I will impose the mandatory one year driving prohibition set out in the Criminal Code. If Mr. Melo is accepted into and meets the requirements of the Ontario ignition interlock program, he will be eligible for the reduced suspension period.

Released: to the parties on October 16, 2012; in court on October 25, 2012

Signed: "Justice Leslie Pringle"