Court File and Parties

Court File No.: 11-6002

Ontario Court of Justice

Between:

Her Majesty the Queen

Ms. S. Curry, for the Crown

— And —

Paul Marchildon

Mr. R. Jourard, for the defendant

Heard

June 12, 2012, October 25, 2012, November 2, 2012

Decision

Harpur J.:

Introduction

[1] In reasons released December 14, 2012 in this matter, I found that, subject to Mr. Marchildon's Charter application, the Crown has proven the offence of care or control with excess blood alcohol. Counsel agreed to provide their submissions concerning the Charter subsequently in writing. Those submissions, which I understand to be comprehensive in relation to the issues which were outstanding as at December 14, 2012, have now been received from Mr. Jourard for Mr. Marchildon and from Ms. Curry for the Crown. The outstanding issues were: (i) the appropriate disposition of the over 80 charge, notwithstanding the Crown having provisionally proven the offence; (ii) the issue of whether the Crown has proven the impaired care or control offence; and (iii) the appropriate disposition of the impaired offence if proven by the Crown.

[2] The first and third of these remaining issues arise by reason of Mr. Marchildon's Charter application. In it, Mr. Marchildon alleges three wrongful acts by the police in his dealings with them and one by the Crown in its prosecution. These, he asserts, should give rise to s. 24(1) Charter relief in the form of a stay of both charges or, in the alternative to a stay of the over 80 charge, an exclusion under Charter s. 24(1) or (2) of the results of the Intoxilyzer analyses essential to the opinion of Crown toxicology expert Inger Bugyra of excess blood alcohol.

[3] The wrongful acts alleged are the following: (i) ongoing, abusive conduct by the police toward Mr. Marchildon and, in particular, the refusal to accommodate Mr. Marchildon's repeated requests for a loosening of his handcuffs; (ii) a "planting" of a baggie of a seemingly-illicit drug by P.C. Jason Stamp following Mr. Marchildon's provision of breath samples at the police station while he was still in custody; (iii) the failure of the Crown to preserve and disclose the video recording of the cell area to which Mr. Marchildon was led by P.C. Stamp following Mr. Marchildon's provision of breath samples; and (iv) the conducting by the police without reasonable and probable grounds of a "complete" or "strip" search of Mr. Marchildon following his fingerprinting and prior to his release from the police station.

The Issue of Impaired Care or Control

[4] The second outstanding issue – proof by the Crown of impaired care or control – can be dealt with relatively quickly. It was the subject of brief written submissions by Ms. Curry and none by Mr. Jourard, apart from the submissions concerning the imposition of stays or alternative remedies, but I am proceeding on the basis that proof of the offence remains in issue.

[5] Leaving aside the Charter for the moment, I find that the offence has been proven. The only evidence on the record is the Crown's. Mr. Geniole testified to observing Mr. Marchildon drive in a highly erratic manner on Highway 400, "drifting" from one lane to another, almost hitting the center highway barrier, straying onto the highway shoulder, jumping a ramp curb and not responding to Mr. Geniole's warning blowing of the horn on his truck. Mr. Geniole, bartender James Stewart and P.C. Sarah Bamford all gave evidence of Mr. Marchildon's manifest signs of impairment either as he staggered from his car to Crossovers bar, while in the bar, or when he exited the bar and was confronted by the police. The video of Mr. Marchildon in the Barrie Police Service detachment booking room depicts a man clearly lacking in full control of his body's movements. The breath technician, P.C. Jason Storey, like P.C. Sarah Bamford, observed unsteadiness by Mr. Marchildon on his feet and a strong odour of alcohol on his breath.

[6] In sum, the Crown's evidence satisfies me beyond reasonable doubt that Mr. Marchildon's ability to operate his car was impaired when he was observed in care or control of it by Mr. Geniole at 6:08 - 6:12 p.m. on July 29, 2011. R. v. Stellato, (1993), 78 C.C.C. (3d) 380 (O.C.A.) requires proof by the Crown of "any degree of impairment ranging from slight to great" to make out the offence. Such proof certainly exists here.

The Charter Issues

[7] I turn then to the issues to which the alleged misconduct of the Crown and the police give rise.

(a) The Handcuffs and Over-all Abusive Police Treatment

[8] On the voir dire, Mr. Marchildon testified to finding the handcuffs applied by a male officer at the scene as too tight, to complaining repeatedly to P.C. Bamford of this fact en route to the detachment (to which she responded that they would be removed at the detachment), to complaining again to other officers at the detachment, to remaining in the cuffs at the detachment for approximately forty-five minutes before they were removed, and to having suffered wrist bruising from the cuffs for several days after being released. Mr. Jourard submits that this indifference on the part of the police, together with the unnecessarily dictatorial and mean-spirited fashion in which Mr. Marchildon was treated by them during his time at the detachment, militates in favour of the imposition of a stay.

[9] I cannot agree.

[10] As indicated in my earlier reasons, I consider as unduly peremptory and mocking the way in which the police officers dealt with Mr. Marchildon's request to look for Mr. Jourard's number in his cell phone. Mr. Marchildon, like any suspect or arrestee in a criminal investigation, was entitled to respectful and rights-observant treatment by the police throughout, absent exigent circumstances. However, even if one combines the rudeness concerning the cell phone with an initial, over-tight application of Mr. Marchildon's handcuffs and a subsequent, less than prompt removal of those cuffs at the detachment, to put Mr. Marchildon's case at its highest on the latter point, a stay would not be an appropriate remedy.

[11] The decisions of the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. 411 and R. v. Regan 2002 SCC 12, [2002] S.C.J. No. 14, among many others, make clear that a stay will only be granted in the clearest of cases where (i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through a trial and the giving of effect to its findings and (ii) no other remedy is capable of removing the prejudice. Further, from Regan, where, as here, the allegedly abusive action of the state does not affect trial fairness, the action must be one of those rare examples of egregiousness whereby "the mere fact of going forward will be offensive". This is not such an example.

[12] The decisions to which Mr. Jourard has referred in his factum demonstrate the broad gulf between the state conduct complained of here and that which triggered stays in those cases. In R. v. Murphy, [2001] S.J. No. 582 (Sask Prov. Ct.), the accused was forced to remain seated in his excrement, denied clean-up facilities with any privacy, ridiculed when he attempted to clean himself, and unnecessarily held in custody overnight. In R. v. Gladue, [1993] A.J. No. 1045 (Alta. Prov. Ct.), the court found that, without need, the accused was pushed face-first by the police into a cement wall in addition to being subjected to an over-tight, bruising application of a handcuff. In R. v. Bennett, [2009] O.J. No. 991 (O.C.J.), the finding of an over-tight handcuff was made in conjunction with findings that Mr. Bennett was denied access to counsel for two hours and remained handcuffed for one hour without any cause. In R. v. Tran (2010), 2010 ONCA 471, 257 C.C.C. (3d) 18 (O.N.C.A.), the accused was found to have been severely beaten by two police officers, including one who assisted the Crown in court at trial. In R. v. Fidler, [2009] B.C.J. No. 1833 (B.C.S.C.), the court found that the police had used excessive force in subduing the accused at the police detachment, necessitating a hospital visit, as well as finding an unnecessarily tight application at the scene of handcuffs and a lack of response to the handcuff complaint. In R. v. Ogertschnig, [2008] A.J. No. 111 (Alta. Prov. Ct.), the accused was found both to have been handcuffed and pushed into the police cruiser on exiting his vehicle to give a roadside sample, despite his immediate indication to the police that he would cooperate in the giving of that sample, and to have been subjected to the application by the police of over-tight handcuffs.

[13] These instances of police conduct can fairly be characterized as egregious. Mr. Marchildon's treatment, in respect of the handcuffs and rudeness, cannot be. In the first of the cases cited by Mr. Jourard on this point in his book of authorities, Murphy, the Saskatchewan Provincial Court expresses, in obiter dicta, the principle which appears to me to be apt concerning this aspect of Mr. Marchildon's application for Charter relief:

"In my view, conduct of police officers which results only in over tight handcuffs, forces slightly in excess of what may have been reasonable, or other activities occasioning minor discomfort or disrespect, would in and of itself be in most cases too trivial to engage the fundamental values prescribed in the Charter. Police officers are required to be reasoned and professional, not perfect".

[14] Mr. Marchildon relies primarily on Charter s. 24(1). However, his Notice of Application also seeks to exclude evidence pursuant to s. 24(2) of the Charter for alleged breaches of ss. 8 and s. 10(b). The alleged s. 8 breach specified in Mr. Marchildon's factum is the strip search, subsequently considered. The strip search followed the acquisition by the police of Mr. Marchildon's breath samples and, even if in violation of Mr. Marchildon's s. 8 right, would not provide a basis to exclude them pursuant to s. 24(2). As to s. 10(b), in his Notice of Application Mr. Marchildon seeks exclusion of "statements by the Applicant made prior to arrest or consulting counsel, and subsequent related statements". The Crown did not seek to rely on any such statements in the proof of its case.

[15] It seems to me that the only factual matters which could form the basis for a s. 24(2) exclusion are these pertaining to the handcuffs and Mr. Marchildon's treatment concerning access to his cell phone. These were matters which did occur in the course of the seizure of inculpatory breath samples.

[16] For the reasons set out above under this heading, I am satisfied on a balance of probabilities that Mr. Marchildon's treatment cannot be characterized as a deprivation of his liberty contrary to principles of fundamental justice, nor as unreasonable conduct by the police in the process of searching and seizing Mr. Marchildon's breath samples, nor as abusive conduct on the part of the police which rendered Mr. Marchildon's arrest arbitrary. Again, in the language of the court in Murphy, while the police conduct was disrespectful, it was "too trivial to engage the fundamental values prescribed in the Charter".

(b) The Strip Search and the Video

(i) The location of the third baggie

[17] Mr. Marchildon's allegation of an illegal strip search and the Crown's failure to disclose the cell video are interdependent. He says that there were no grounds to conduct the search and that, in any event, it was carried out in a manner contrary to common law, thus breaching his s. 8 Charter right to be secure against unreasonable search and seizure. As to grounds, Mr. Marchildon says that the baggie of seemingly-illicit drug which led to the strip search was either (a) located outside his cell in an area subject to traffic by others in custody or (b) "planted" in the cell area by the police as a pretext for the strip search which followed.

[18] Mr. Marchildon testified on the voir dire that the baggie seized following his fingerprinting and return to the cells was several feet outside the bars of his cell. P.C. Stamp, on the other hand, testified to finding the baggie approximately one foot inside Mr. Marchildon's cell "in clear view of the cell camera". Sgt. Dave Berriault, the booking officer and the officer who conducted the strip search with P.C. Stamp, testified to being told by P.C. Stamp that the baggie was found in Mr. Marchildon's cell area (testimony I have not considered on the issue of where the baggie was found), that Mr. Marchildon denied that the contents were his, and that he proceeded to authorize the strip search.

[19] Mr. Jourard submits that the cell video thus becomes very significant in that, by its absence, Mr. Marchildon "was denied access to evidence which had a realistic possibility of assisting his defence" since the video could have demonstrated that the strip search was "patently unjustifiable" and that the police "lied about where the pill was found or whether they had planted it". Hence, the defence says, the failure of the Crown to preserve and disclose the video gives rise to a breach of Mr. Marchildon's right to make full answer and defence under Charter s. 7 and the proper remedy is a stay of the charges.

[20] In my view, these positions are untenable, for several reasons.

[21] As to the significance of the video, one of the alternative propositions which Mr. Marchildon says the video would support is that the police had no grounds to conduct a strip search since the baggie of apparently-illicit drug was found outside Mr. Marchildon's cell. The evidence is to the contrary. When asked by Ms. Curry about whether he had considered watching the cell area video before deciding to conduct a strip search, Sgt. Berriault stated the following:

Q. Okay. And so in terms of potential continuity of that capsule that you described before, did you consider watching that videotape to see where the capsule came from?

A. In honesty I didn't think of it at that time.

Mr. Jourard: You didn't think of it at that time?

A. Yes.

Q. And in terms of your decision to conduct a complete or a strip search, did you consider watching that video before conducting a strip search in order to see if there was any continuity issues with that capsule?

A. I would say obviously I didn't. It wasn't part of my decision-making at that time. I was satisfied with the information that I got from Constable Stamp that obviously there was a pill in the cell area. The fact that there was other, believed to be narcotics that was located on him prior to this incident, allowed me to be satisfied that a complete search was necessary, just to make sure that there wasn't any further pills in his possession, for his safety, obviously.

Q. That kind of leads to my next question. Once you got this information from Officer Stamp, would you have delayed the strip search process in order to, let's say, find the video, rewind, watch it, examine it, would you have waited to do that strip search?

A. No, because if I waited there was potentially more pills concealed on his person and if he was to swallow them it could be very detrimental obviously to him.

[22] The record indicates that Mr. Marchildon had been searched on booking and that the police then recovered from each of two of his pants pockets a small baggie containing a white substance, one white baggie and one blue. He was immediately charged with a CDSA offence. The evidence is, further, that (i) Mr. Marchildon had undergone a pat-down search at the scene and that these baggies had not then been discovered and (ii) the third baggie containing a white substance found by P.C. Stamp in the cell area was similar to the blue baggie seized earlier from Mr. Marchildon.

[23] In R. v. Golden (1999), 2001 SCC 83, 159 C.C.C. (3d) 449 (S.C.C.), the Supreme Court of Canada affirmed the common law power of police officers to search a person, including by way of strip search, as an incident to arrest but cautioned that such searches must clearly be related to the purpose of the arrest and, when the search is for evidence, must be reasonable in the sense of necessary to preserve the evidence and prevent its disposal by the arrestee. I have applied these criteria to the situation faced by Sgt. Berriault on July 29, 2011 when told by P.C. Stamp about his discovery of an additional baggie similar in appearance to the blue one previously seized from Mr. Marchildon. I have also hypothesized that Sgt. Berriault learned that the baggie was found outside, but in front of, Mr. Marchildon's cell in the prisoner concourse, as Mr. Marchildon testified. My conclusion is that these circumstances would, nonetheless, have provided Sgt. Berriault with reasonable grounds to order the strip search. The search would have been incidental to the drug possession arrest already made. The subject would have been an individual who, although not through any proven fault of his own, had come through a pat-down search at the scene still in possession of apparently-illicit drugs. And the subject would have been a prisoner in whose vicinity in the cells a small blue transparent baggie similar to the one the police had seized earlier had been found.

[24] Indeed, even if the strip search is not to be seen as incidental to Mr. Marchildon's earlier arrest on the drug charge and, rather, should be regarded as a fresh event, there again Sgt. Berriault had grounds. He would not be obliged to disabuse his mind of the earlier discovery of drugs on Mr. Marchildon's person. A routine search of a detainee in the course of a booking procedure at a police detachment does not permit routine strip searches, any more than does the authority to search incidental to arrest: R. v. Carltes [2000] O.J. No. 3452 (O.C.J.). However, there is no evidence that the strip search of Mr. Marchildon was part of a routine. Until the third baggie was found, the police did not intend to strip search him.

[25] Thus, what the video would show about the third baggie's location inside or outside the cell would not affect Mr. Marchildon's allegation of a baseless strip-search on this footing and its absence does not prejudice him in this aspect of his defence.

(ii) "Planting"

[26] Mr. Marchildon also submits that, since the cell area video was not preserved and disclosed by the Crown because of unacceptable negligence, I should draw the inference that P.C. Stamp himself placed the third blue baggie outside Mr. Marchildon's cell, fabricating a basis for the ensuing strip search.

[27] I cannot agree.

[28] I do accept the defence position that the Crown was given timely and sufficient notice of the defence request for production of the cell area video, that, at the time of the requests, the video had potential relevance for trial of the Criminal Code charges, and that the Crown failed without justification to preserve and disclose the video.

[29] Mr. Marchildon's arrest was July 29, 2011. Mr. Jourard requested disclosure, including the cell area video, on August 4, 8 and 17, 2011 (including reference in the last of these requests to the alleged location of third baggie and the fact of the strip search). On August 23, 2011 the Crown wrote Mr. Jourard stating that it did not propose to provide further video. That same day, Mr. Jourard responded, reiterating the request for the video. The Crown did not respond.

[30] On October 14 and 17, 2011, Mr. Jourard wrote again with his request. On October 18, 2011, a representative of the provincial Crown wrote back, incorrectly saying of the video, "you indicated it was relevant to the drug charge. I don't prosecute drug charges so presumed you would have followed up with the federal Crown". The provincial Crown's representative went on to say that she had now requested the video for the purposes of the drug charge. The same day Mr. Jourard wrote back explaining that the video was requested in respect of the s. 253 C.C. charges.

[31] Exhibit "J" to the affidavit of Selva Sorin filed by Mr. Marchildon on his application is an anticipated evidence statement of Sgt. Don Moore of the Barrie Police Service. It was tendered on consent as evidence on the voir dire. It indicates that Sgt. Moore had received a request for the cell and cell area video on April 5, 2012 and, on attempting to retrieve it, became aware that the video had been purged.

[32] My conclusion from this evidence is that the Crown's efforts in response to Mr. Jourard's requests were inadequate, that no reasonable explanation has been provided by the Crown for its failure and, pursuant to R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.), that Mr. Marchildon's s. 7 Charter right was breached in this manner.

[33] For the reasons already indicated, in the event, the video would not have been relevant to Mr. Marchildon's defence to the charges based on a groundless strip search because the third baggie was outside his cell. Might it be relevant to Mr. Marchildon's defence based on a groundless strip-search, as well as egregious police misconduct, because the baggie was planted? The answer would clearly be yes if planting were a viable inference in this case, but it is not. The circumstantial evidence is squarely against the allegation. Mr. Marchildon's own evidence on the voir dire was that P.C. Stamp picked up the third baggie outside his cell and said "I'm going to check the videos and if it's yours I'm going to throw the book at you". If P.C. Stamp had just planted the baggie, why would he be speaking of review of the video before proceeding further against Mr. Marchildon; he knew what the video disclosed. Nor would P.C. Stamp's saying to Mr. Marchildon that he intended to check the video, if in fact he did not intend to, provide any discernible advantage to the officer in maintaining a specious drug charge. There was no reason for him to utter those words other than as a genuine expression of intent. Moreover, since P.C. Stamp testified, and I accept, that he knew of the fact that a recording was being made in the cell area on July 29, 2011, why, if he had planted the baggie, would he go to Sgt. Berriault and say he had found it inside Mr. Marchildon's cell knowing this could readily be disproven?

[34] Thus, in my view, the evidence opposes the planting-of-the-baggie theory. Mr. Jourard proposes however, that the inference of planting can and should nonetheless be drawn as an appropriate remedy under Charter s. 24(1) per se, since the Crown breached its disclosure obligation to Mr. Marchildon concerning the video. With respect, this argument puts the cart before the horse. Before looking to the remedy, if any, to be provided under s. 24(1) the court must first find a breach and consider its nature. The breach does not flow from the remedy.

(iii) Loss of the video per se

[35] I find that the Crown did breach its disclosure obligation to Mr. Marchildon concerning the cell area video. This fact does not lead to an inference of police misconduct, but should it nonetheless result in a stay?

[36] The Ontario Court of Appeal has underscored in R. v. Bero, (2000), 151 C.C.C. (3d) 545 and R. v. Bradford, [2001] O.J. No. 107, that a breach of Charter s. 7 of this type will only result in the imposition of a stay where, in "the clearest of cases", the "prejudice to the accused's right to make full answer and defence cannot be remedied or when irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued".

[37] Here, no stay is merited for two reasons: (i) the degree of prejudice to Mr. Marchildon is negligible given the overwhelming weight of the circumstantial evidence against the notion of a planting of the drug baggie and the insignificance to the Charter-impeachability of the charges of whether the baggie was inside or outside Mr. Marchildon's cell; and (ii) if some remedy is appropriate in response to the Crown's disclosure breach, there are alternatives to a stay, such as mitigation of sentence, which would not deprive the public of a determination of criminal liability for these charges on their merits and which would serve to address any prejudice to the administration of justice as arises in this case.

(iv) The manner of carrying out the strip search

[38] The onus rests on the Crown not only to prove reasonable and probable grounds for the strip search of Mr. Marchildon but also that the search was carried out in a reasonable manner. A strip search is inherently humiliating and degrading and must be carried out with a view to minimizing these features: Golden, supra. The framework set out by the majority of the Supreme Court of Canada in Golden for the optimal manner of conducting a strip search comprises compliance with eleven standards. Of the eleven, the following are said by Mr. Jourard not to have been met.

[39] "Will the strip search be carried out in a private room such that no one other than the individuals engaged in the search can observe the search?"

Mr. Marchildon's search was conducted in the detachment breath room by P.C. Stamp and Sgt. Berriault. P.C. Stamp said he covered the camera in the room when the search took place so that what occurred could not be seen on the monitor at the front desk of the detachment by passersby. He said one blocks the camera by way of a small metal door. He said that police standard procedure is also to stand in front of the 6" x 8" window in the breath room during a strip search to block any possible view by that means and that he thought Sgt. Berriault blocked the window.

Sgt. Berriault testified that both the camera and window were blocked, although he was uncertain whether it was he or P.C. Stamp who did the blocking. Sgt. Berriault said the small window is or can be blocked by way of a metal door.

Mr. Marchildon gave no evidence on the matter of blocking the window or the camera.

Mr. Jourard submits that the Crown has not proven that Mr. Marchildon's search was conducted in private. I disagree. The record establishes that the window and camera were blocked, eliminating observation by third parties.

[40] "Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?"

Mr. Marchildon testified that he was required to remove all of his clothes and that he remained naked for approximately five minutes. Sgt. Berriault estimated the time elapsed from the commencement of the search until Mr. Marchildon's clothes were returned to him to be a maximum of two minutes. P.C. Stamp said the entire search lasted three to five minutes, that Mr. Marchildon was asked to and did remove his clothing one article at a time, and that each article was searched as received.

I accept the evidence of the officers that, although Mr. Marchildon was made to disrobe completely, the time during which he was completely naked was substantially less than the five minutes to which Mr. Marchildon testified. In assessing credibility on this point, I note that Mr. Marchildon was still exhibiting significant signs of intoxication approximately two hours before the strip search when he was providing his breath samples. While the effects of the alcohol he had consumed had no doubt dissipated somewhat by the time of the search, his ability to appreciate the particulars, including the period he was naked, is likely to be less than that of the two sober police officers.

[41] "Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?"

P.C. Stamp and Sgt. Berriault each made a note of the fact of the search. However, in P.C. Stamp's case, his note was simply "search – complete full search, negative results" and, in Sgt. Berriault's case, his note had no detail of the manner in which Mr. Marchildon was searched although he said he was aware of the Supreme Court of Canada recommendation in Golden that police conducting a strip search make such notes.

[42] Tab 6 of Mr. Marchildon's Application Record is the Barrie Police Service written procedure for "Search of Persons". Section 8.5 deals with complete searches and reiterates the framework from Golden. As to note-taking regarding such searches, the protocol says "all officers involved in the search shall make entries in their notebooks including the results of the search". P.C. Stamp said he was aware of this policy.

[43] Mr. Jourard's submission, on the basis of the failure of the officers to keep detailed notes and to ensure that Mr. Marchildon was at least partially clothed at all times during the search, is that their conduct violated the Golden framework and justifies the imposition of a stay or other Charter remedy. I agree that Mr. Marchildon's search did not adhere strictly to the Golden framework in these respects. However, I bear in mind that the other recommendations expressed in Golden for strip searches appear to have been met in this case and that the Barrie Police Service was, at the time, cognizant of the Golden recommendations and trying to communicate them to its officers by way of written policy. Thus, while the manner in which the search was conducted was less than perfect, its shortcomings were relatively minor and certainly were not such as to shock the conscience of the public and to call for the extraordinary remedy of a stay.

Conclusion

[44] Mr. Marchildon's Charter application for exclusion of the Intoxilyzer readings or for stays is dismissed. The offences have been proven. I find Mr. Marchildon guilty of both.

Released: March 8, 2013

Signed: "Justice C.M. Harpur"

Justice C.M. Harpur