WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

ONTARIO COURT OF JUSTICE

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

BETWEEN:

Her Majesty the Queen

— AND —

S.M., a young person

Before: Justice D.P. Cole

Heard on: March 18 & 19, 2013

Reasons for Judgment released on: April 29, 2013

Counsel:

• C. Blondell for the Crown
• T. MacDonald, counsel for the accused

COLE J.:

ISSUES

[1] Were this 12 year-old's Charter rights violated when he was strip searched at a police station following his arrest on gun possession and assault charges? If so, should the proceedings be ordered stayed?

FACTS

[2] On April 20, 2012 around 3:30 p.m. police were summoned via a "hotshot" (high priority) radio call to a Toronto elementary school because of reports of a fight between two students where a gun might have been involved. When uniformed P.C.s Christian and Saini arrived they went to the school office; as they were speaking with the Vice-Principal a request came over the school walkie-talkie system that she should immediately come to a particular classroom. The officers ran down to this room, where they found the school Principal and other police officers looking at a small black revolver and ammunition that had been discovered in a backpack apparently belonging to S.M. (I say "apparently" because defence counsel was careful to stipulate in this pre-trial motion that no admission of that fact is conceded should this matter proceed on to trial).

[3] The two constables returned to the school office, where they found the Vice-Principal, a teacher, S.M. (d.o.b. […], 1999), and his mother. The officers testified that S.M. was crying, expressing concern that he might be in trouble over what had been found in his backpack. After a few minutes Sgt. Rowsome, another officer who had responded to the radio call, came into the office and advised the constables that S.M. "was arrestable for firearms offences" arising from the discovery of the revolver in his backpack, whereupon P.C. Christian formally arrested him at 4:04 p.m. (Defence counsel agreed that for purposes of this motion no issues arise regarding the formalities of the arrest and the provision of rights to counsel).

[4] Following normal Toronto Police Service (TPS) procedures, immediately following his arrest S.M. was briefly "given a cursory pat down of his pockets outside his clothing" to search for weapons or other things that might jeopardize the safety of the officers. A bulge in one of his pockets turned out to be nothing more than a cellular telephone.

[5] The officers explained to S.M. and his mother that he would be taken to the police station in their marked police cruiser. On the suggestion of the Principal it was agreed that in order to minimize the possibilities of embarrassment to the young person, the police officers would bring their cruiser to the back of the school, and the police agreed that they would not handcuff S.M. on the way to the cruiser and the station. The police further agreed that S.M.'s mother could accompany her son in the police car. Officers Christian and Saini should be commended for their good sense and tact for exercising their discretion in this manner.

[6] When the police reached the station at 4:20 p.m. they dropped Mrs. M. at the front door, explaining to her and to S.M. that she could not be present during the booking process, but that he would be able to see her later. After handcuffing the accused (to the front), they then drove to the station's "sallyport", and then entered into the booking hall, where S.M. was presented before Staff. Sgt. Lamond, the officer in charge of the station. All of this was captured on video, and the video was played in court (Exhibit 1).

[7] When S.M. appeared before Staff. Sgt. Lamond, P.C. Christian requested authority to conduct a "Level 3 search" of S.M.'s person. He explained on the video that he made this request as it was his opinion that "because of the nature of the offence(s) [with which S.M. was about to be charged], he would be held [in custody] for a show cause [bail] hearing". In his evidence he supplemented this first reason by offering a secondary rationale, namely that because the accused would come into contact with unarmed detectives who would interview him at the station, he should be strip searched to protect the safety of those officers (and any others with whom he might come in contact).

[8] On the video Staff Sgt. Lamond gave much the same reason for authorizing P.C. Christian (and P.C. Saini) to conduct this type of search. In his evidence, he offered the same secondary rationale for ordering a Level 3 search as had P.C. Christian, namely for the protection of unarmed officers.

[9] I should add that on the video Staff Sgt. Lamond gave no direction to the constables as to how this search should be conducted, presumably because he believed that the officers would follow specified TPS procedures.

[10] The two constables then escorted the young person to a secure interview room. They removed the handcuffs and asked S.M. to take off items of his clothing. As discussed later in these reasons TPS policy dictates that what is supposed to happen is that the detainee is to remove one item of clothing at a time; once each is inspected the officer conducting the search should return it to him and allow him to put it back on before the next item is removed for inspection. Importantly, the policy directs that – absent exigent circumstances – a detainee is never to be left naked.

[11] There was a dispute in the evidence about what happened next. P.C. Christian testified that TPS policy was followed. However, both P.C. Saini and the accused testified that though the first part of this procedure was followed i.e. that the accused removed one item of clothing at a time and presented each for inspection, the second part of the procedure was not followed in that the accused was not allowed to put each item of clothing back on as it was returned to him, to the point that when the officers had finished inspecting the clothing and had placed each item on the chair in the room, he was completely naked. Having heard this evidence, I am prepared to find as a fact that what P.C. Saini and the accused testified to was what actually happened, rather than what P.C. Christian recalled.

[12] While the accused was naked – again following what I understand to be standard practices regularly followed in such searches - he was told to lift his scrotum so that the officers could visually inspect between his legs. He was then told to turn around and open his buttocks, similarly so that the officers could briefly inspect his rectal cavity. Though the accused testified that he found this entire process to be "scar[y] and uncomfortable", as he had never been naked in front of strangers before, at no time did the officers come into physical contact with him during this (approximately) five minute search process. He also agreed that the officers were polite and non-threatening in their behaviour.

[13] Both P.C. Saini and the accused testified that it was only when the officers were about to leave the interview room that S.M. was told he could put his clothes back on, which he did. He then waited until he was interviewed later in the evening by the detectives in charge of the investigation. Though I have not heard any evidence about the accused's interview with the detectives, for purposes of this motion it is agreed that at the end of the interview the detectives recommended, and Staff Sgt. Lamond agreed, that the accused should be held in custody until he appeared in court next day for a bail hearing.

Was the initial decision to order a strip search unconstitutional?

[14] Defence counsel's major complaint about Staff Sgt. Lamond's decision to direct that the accused be strip searched because he was going to be held for a bail hearing was that this amounted to an improper fettering of his discretion as the officer in charge of the station. Counsel argued that Officer Lamond's behaviour was "robotic and academic", as a blanket policy was applied without proper attention to individual circumstances, particularly given the age of the accused.

[15] I agree that there is some support in the evidence for this argument. It will be recalled that the police witnesses gave as secondary reasons for recommending (P.C. Christian) and directing (Staff Sgt. Lamond) that a strip search take place was to protect the safety of (unarmed) officers with whom the accused would come into contact during his time in the station. Under this rationale, all accused persons being detained in a police station would be automatically strip searched for the protection of officers. According to those portions of the TPS search policy that were put into evidence, it is clear that this is not the police service's policy. Thus, if Staff Sgt. Lamond based his decision to order a strip search of the accused on this rationale, it would offend TPS policy and would amount to an improper fettering of his discretion.

[16] Though this might have been in the back of Staff Sgt. Lamond's mind, I am not satisfied that he ordered a strip search only for this reason. He testified that there had been cases where he did not order that a person being detained at his station be strip searched, even though they might come into contact with unarmed officers. He offered the examples of a person being detained pending the arrival of officers from another police service or immigration officials. In this case, he said several times in his evidence that it was the nature of the charges he anticipated would be laid and the fact that the accused would be held for a bail hearing that were the most important factors.

[17] Counsel's second argument on this issue was that Staff Sgt. Lamond had "jumped the gun" by ordering a strip search before the accused had been interviewed by the detectives. What if the detectives had concluded that there was an innocent explanation for the accused's possession of the revolver, and had decided that no charges (other than perhaps a charge of common assault arising from the fight at the school) should be laid? In that event this very youthful accused would have been subjected to what both counsel agreed is a very intrusive procedure in the absence of any charges. Counsel argues that at the very least Staff Sgt. Lamond should have waited until the detectives made their decision about charges before ordering a strip search, and that his failure to do so amounts to a further improper fettering of his discretion.

[18] I agree with defence counsel that it would certainly have been preferable if Staff Sgt. Lamond had waited until the detectives had completed their work and had decided whether (and which) charges should be laid. However, Staff Sgt. Lamond is a senior officer (of 22 years experience), who has obviously been entrusted by his superiors with the responsibility of acting as officer in charge of the station precisely because of his seniority and judgment. Though he had no notes, he recalled that he had some knowledge of the allegations even before the accused was presented to him in the booking hall. He testified that he would have directed that the accused be strip searched regardless of what the transporting officers might have told him – "having been found in possession of one gun, I would have been negligent not to order a search".

[19] Having given serious consideration to this aspect of the case, though I reiterate that it would have been better for Staff Sgt. Lamond to have awaited the outcome of the detectives' investigation, I cannot conclude that I find his behaviour to have been so "robotic" as to amount in law to an improper fettering of his discretion. He was authorized to exercise his discretion. He considered his options, and he applied what he thought was best in the circumstances. Particularly in light of the fact that what he predicted would happen did happen i.e. that the detectives decided that serious gun charges should be laid, I conclude that Staff Sgt. Lamond's exercise of discretion was justifiable.

[20] To Staff Sgt. Lamond's knowledge the accused's mother was present in the waiting area of the station. During the course of his oral presentation defence counsel expanded his second argument to suggest that the Staff Sgt.'s apparent refusal even to consider that the young person could be released from the station upon an undertaking given to the officer in charge amounts to further evidence that he had improperly fettered his discretion.

[21] In my judgment this argument may be quickly dealt with. First, as I had occasion to discuss in R. v. L. (M.C.) (2005) 2005 ONCJ 124, 196 C.C.C. (3d) 571, it is by no means clear that an officer in charge of a station even has the power to release a young person from the station where, as here, the young person is charged with an offence for which, if he were an adult, he could be sentenced to custody for more than five years (Criminal Code s. 498(1)). Though Staff Sgt. Lamond was not directly questioned on this, even assuming that an officer in charge of a station does have the power to order release from the station on serious gun charges, in my experience officers in charge almost never order the release of an accused person (adult or youth) charged with serious gun offences, preferring to refer the question of bail release to a bail justice presiding in open court. Crown counsel stressed this point in her oral argument and factum.

[22] Secondly, though both in his factum and in oral argument counsel reminded me of the very youthful age of the accused (12 years 7 months at the time of his arrest), he did not direct me to any sections of the Youth Criminal Justice Act in support of this submission. In evaluating this argument, I have briefly considered the fourth clause of the Preamble, reiterated in s. 3(1)(d)(i) ("young persons…have special guarantees of their rights and freedoms"), the requirement in s. 3(1)(b)(v) that "persons responsible for enforcing this Act must act [prompt(ly) and speed(ily)] given young persons' perceptions of time", and the general emphasis throughout the Act on taking steps to ensure that rehabilitation remains in the forefront of decision-making about young persons. While I again agree that Staff Sgt. Lamond may have been so concerned with the very serious nature of the offences charged that he was unwilling even to consider exercising his discretion to release the young person from the station under his mother's supervision, I do not see anything in the Youth Criminal Justice Act that suggests he breached any of the provisions of the Act that might give rise to the relief sought here.

[23] Finally, even if it can be said that Staff Sgt. Lamond's various decisions amount to some improper fettering of his discretion, I do not consider that his laches give rise to the rare constitutional remedy of the nature sought here. I reiterate: Staff Sgt. Lamond had discretion to do what he did. In my judgment there was nothing egregiously wrong with the way in which he exercised his discretion, particularly given the serious nature of the charges laid.

Was the manner in which the strip search was conducted unconstitutional?

[24] Having made the finding of fact that S.M. was required to remove all of his clothing (paras. 11-13 supra), it is entirely obvious that the search procedure was not conducted according to the clearly expressed rules laid down by the Supreme Court of Canada over 13 years ago in the leading case of R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679.

[25] In Golden the Supreme Court was asked to determine the appropriate constitutional balance between the need for police officers to conduct searches of freshly arrested persons with the general rule that warrantless searches are prima facie unreasonable. Though the fact pattern was considerably different from the case at bar, in that it involved several very intrusive searches of an accused drug trafficker moments after his arrest in an environment where his nakedness could have been seen by passersby, the majority of the court chose to lay down general rules for the conduct of both "field" police searches and searches conducted in police stations.

[26] In its canvass of legislation and practice from other jurisdictions the majority of the court cited with approval the definition of a "strip" search contained in the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60 ("P.A.C.E."). Annex A to P.A.C.E. Code of Practice C defines a strip search as "a search involving the removal of more than outer clothing". That Code further directs that such searches may only be conducted in compliance with the rules relating to strip searches set out in the P.A.C.E. Code, one of which is that "[a]lthough the search involves the removal of all clothing, it should be done in such a way that the person is never completely undressed …". (Golden at para. 58; emphasis added).

[27] Later in the majority judgment the court expressly ruled that "the guidelines contained in the English legislation, P.A.C.E. concerning the conduct of strip searches [are] in accordance with the constitutional requirements of s. 8 of the Charter" (para. 101). The court then went on to list a series of "questions…[that] provide a framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter. Question 8 directs the police to consider "Will the strip search be conducted…in a way that ensures that the person is not completely undressed at any one time?"

[28] It is of course important that the court referred to "questions" that the police must address rather than creating a more rigid structure within which police must exercise their discretion. This no doubt reflects the court's sensitivity both to the multifarious circumstances in which police officers are required to conduct searches, and to the need for officers to respond quickly and appropriately to what they may find during their searches (as the facts in Golden themselves clearly demonstrated).

[29] In my judgment no exigent circumstances existed in the case at bar that might have excused the police from following the general "P.A.C.E. rule" that the detainee should not be completely undressed during the search process. Neither the facts known to the police at the time the accused was apprehended nor the "pat down" search that had taken place at the school revealed anything suggesting that S.M. had weapons on his person. Though the charges ultimately laid are inherently serious, none of the charges involved allegations of drug trafficking or use which might give rise to some reasonable suspicion that he might have drugs secreted on his person (as was the case with the accused in Golden). Unlike the facts in Golden the [now] accused was in a secure room in a police station with two experienced officers. Unlike the accused in Golden S.M. was co-operative throughout.

[30] Regrettably neither counsel has put before the court the full text of the TPS policy on how searches are to be conducted post-Golden. What has been put into evidence (Exhibit 2) are three procedural appendices to what is apparently the actual policy. One of these "Appendix D – Handling Items of Religious Significance" is irrelevant to the disposition of the case at bar, and will not be referred to further. The second "Appendix A – Search of Person Template" appears to be a direction to officers who conduct Level 3 (or Level 4) searches to complete a Form "designed for the purpose of gathering statistics for the [Toronto Police Services] Board…on the number of strip searches conducted". Later in these reasons I comment on the apparent failure of P.C.s Christian and Saini to complete a form in this case. For current purposes, I merely note that this Appendix contains nothing about the rules police officers are expected to follow in non-exigent circumstances.

[31] The final procedural appendix "Appendix B – Risk Assessment – Level of Search" is of assistance to me here in two ways. First, it assists me to better understand the factors that an officer in charge of a station (or other police officer) should consider in deciding whether to order that a search be conducted, as well as the level of the search to be employed. In light of my previously expressed conclusion that Staff Sgt. Lamond's directions neither amount to an improper fettering of his discretion nor achieve a level of constitutional significance, I do not propose to consider these factors further.

[32] Absent the actual TPS policy on point, the second way in which Appendix B assists me here is in its express adoption of the principles established in R. v. Golden. Under the heading "Level 3 Searches" the procedure specifies:

In 2001, the Supreme Court of Canada, in the matter of R. v. Golden, while upholding the common law right to search a person who had been lawfully arrested, placed restrictions on police officers contemplating Level 3 searches.

In light of this decision, the Toronto Police Service has adopted the following official policy in regard to Level 3 searches of persons who are in custody, incident to arrest.

Unfortunately, though no doubt helpful to officers in charge and other police officers in considering how to exercise their discretion in this difficult area, the remainder of this procedural Appendix contains nothing about whether officers must attempt to ensure that a detainee is never left completely naked during the search process.

[33] While this evidentiary deficiency has caused me some concern, I feel confident in assuming that there is some statement to this effect in the actual policy, both because of the official adoption of R. v. Golden and because some of the case law which I shall now discuss has dealt with this issue in the context of considering strip searches conducted by TPS officers post-Golden.

[34] The first post-Golden case I wish to discuss (in chronological order) is the 2003 decision of Katarynych J. in R. v. S.F. and J.L. [2003] O.J. No. 92, a case in which two teenage girls were strip searched by TPS officers despite voluntarily attending at the police station (accompanied by adult family members) once they learned the police were looking for them in relation to an allegation of robbery that had allegedly happened about a month previous to the date they surrendered. Among Her Honour's findings of fact was that:

As directed by the matron, each girl undressed herself to complete nakedness to expose her breasts, buttocks and genitalia for the matron's visual inspection….While each girl stood naked, her clothing was inspected, including the cuffs, seams, and pockets of each item to check for weapons or drugs. (para. 7, point 26)

[35] Her Honour found the specifics of the search to have "veered outside the boundaries required by the common law for searches of this level of intrusion" (para. 40). Later in her reasons she went on to "find that the manner in which this search was conducted fell short of what was required for these two young girls" (para. 75). After referencing the passage in Golden about the requirement that a detainee not normally be completely undressed at any one time, Katarynych J. detailed that "[t]hese girls were not given the option of partially undressing themselves. They were told to remove all their clothes at one time, and they did just that" (paras. 83-84). Her Honour thus concluded that "there were no reasonable and probable grounds, on the whole of the evidence in this voir dire bearing on the circumstances of these two girls to require either of them to expose their naked bodies to a matron for her visual inspection. This strip search was an unreasonable search and an infringement of the rights given to each girl under s.8 of the Charter." (paras. 102-103)

[36] I next turn to the decision of Nakatsuru J. in the adult case of R. v. Samuels 2008 ONCJ 85, [2008] O.J. No. 786. As this case principally turns on whether the officer in charge of the station had improperly fettered his discretion by ordering that an accused drunk driver being briefly held in a police station while he "sobered up" should nevertheless be strip searched, I cite the case for a different reason. His Honour described the process of the strip search by TPS officers as follows:

Mr. Samuels…was taken into a room….His articles of clothing were searched, each being removed and gone through. He was left in his underwear. He was then allowed to put on his shirt and his underwear was removed. There was a visual search of his groin and anus area…". (para. 16)

What I derive from this is that despite the fact His Honour ultimately found that a Charter breach had occurred, on this point he went out of his way to compliment the officers involved on the way the search had been conducted: "I wish to be clear there is no suggestion in this case that the police officers in this case conducted the strip search in anything but the most appropriate manner" (para. 65).

[37] The next case to which I wish to refer (in chronological sequence) is R. v. V.K. 2011 ONCJ 573, [2011] O.J. No. 5128, another decision of Katarynych J. In this case the accused challenged the reasonableness of the strip search, principally on the basis that the TPS officers had confused the "Golden obligations" by conducting a "routine strip search of all arrestees…or detainees". In the course of dismissing this application, Her Honour had some comments to make about the way she found the search to have been conducted. She wrote:

Both [searching] officers displayed both in the tone and the content of their evidence an appreciation that strip searches are inherently humiliating and degrading for detainees, and pointed to practices they had built into their work in this regard to try to minimize the humiliation.

Among those practices was the step by step removal and return of clothing, to the extent possible, to enable the person being searched to be at least partially dressed during the search.

The youth himself was permitted to remove each item of clothing for inspection and hand it to the officer. He did not suffer the indignity of having either of the officers undress him.

This was not a drawn-out exposure to indignity. The entire search lasted less than six minutes. (paras. 86-89; emphasis added)

[38] Finally, I turn to the 2012 decision of Cohen J. in R. v. Z.A. [2012] O.J. No. 4043, where, among other breaches of Charter rights, Her Honour found that a strip search had been improperly conducted by TPS officers. She wrote:

Although Z.A. removed his clothing item by item to be searched, the clothing was not immediately returned to him. At the end of the search Z.A. was completely naked. It is contrary to police policy for a detained person in these circumstances, whether an adult or, as in this case, a young person, to be stripped completely naked. No reason was given why Z.A. was reduced to this condition.

According to the police policy and procedure manual filed in this case …[t]he officers conducting the search…are to ensure that a person is not left completely naked at the end of a search. (paras. 31-32; emphases added).

[39] From all of this I feel comfortable concluding that, despite not having the full text of the current TPS policy on strip searches filed as an exhibit in this case, it is as discussed in the case law I have cited. I thus conclude that the policy reflects the principle laid down in Golden, that absent exigent circumstances, a detainee subjected to a strip search should not be fully naked by the end of the search. As I have already found as a fact, neither did the two searching constables follow the mandated procedures, nor were there any exigent circumstances that might have excused them from doing so. As such, they breached S.M.'s s. 8 Charter right not be subjected to an unreasonable search.

[40] I wish to return briefly to the issue of the apparent failure of the searching constables to complete the Form referred to in the TPS Search of the Person Template. Katarynych J. had occasion to consider this in her two judgments previously referred to. In R. v. S.F. & J.L., supra, while Her Honour was critical of deficiencies in various aspects of "the documentation required by the protocol for the search", she ultimately concluded that "the [uncontradicted] evidence…[was that] [n]othing much turned on the deficiencies" (para. 97). I contrast this with the case at bar where I have no evidence of anything contemporaneously recorded that might have directed the officers to conduct the search according to policy. Furthermore, if a completed Form had been available to be put into evidence, it likely would have assisted me in deciding which version of the evidence was more likely.

[41] But defence counsel goes further. He argues that the searching officers' failure to complete the Form mandated by the Search of Person Template in and of itself rises to the level of a failure of constitutional significance. I respectfully disagree. I think that Katarynych J. had it right when she wrote in R. v. V.K., supra, that while deficient note-taking practices "may not be the optimum way to conduct strip searches, [they are not] determinative of the reasonableness of the search" (para. 106). In my judgment, though the failure of the officers to complete the mandated Form is regrettable, it does not rise to a level of constitutional significance.

What is the remedy to be applied?

[42] It seems to me that the first level of analysis to be applied here is to recall that, unlike in Golden, nothing was directly seized from the accused in the case at bar which could be ordered excluded from evidence. Thus, this is not a case of exclusion of evidence under s. 24(2) of the Charter. Rather, the accused applies to me for an "appropriate and just" remedy under s. 24(1) of the Charter.

[43] What remedies short of ordering a stay could be applied here? In the oft-cited non-exhaustive list of possible remedies described in The Canadian Charter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences, vol. 3 by R.M. McLeod, J.D. Takach, H.F. Morton and M.D. Segal (Carswell: 1989), it seems to me that "cost and monetary compensation" would be the only conceivable alternative remedy that might be available here short of an order of a stay of proceedings. Even that is fairly remote; not only do I lack the jurisdiction to assess and award compensation for the breach of Charter rights that I have found occurred here, but also, given the relatively brief period of the breach, the fact that (unlike in Golden) it occurred in private, and given the accused's age, I strongly doubt whether any significant amount might be ordered.

[44] One of the reasons I went through the case law I have cited – and there are others – was to demonstrate that there is now at least a decade-long history of TPS strip searches sometimes being found to be unconstitutional for failure of officers to follow mandated procedures brought into effect following the Golden decision. Against this backdrop, it seems to me that what the Supreme Court of Canada said in Tobiass on the subject of remedies is important:

…a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future… it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice…society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue.

A stay is not a form of punishment. It is not a kind of retribution against the state and it is not a general deterrent. If it is appropriate to use punitive language at all, then probably the best way to describe a stay is as a specific deterrent -- a remedy aimed at preventing the perpetuation or aggravation of a particular abuse. Admittedly, if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice. Canada v. Tobiass, [1997] 3 S.C.R. 391 at paras. 91, 96

With all due respect to the TPS (and perhaps also to the Police Services Board), it seems to me clear that unless the admittedly rather draconian remedy of a stay of proceedings is imposed, "state misconduct is likely to continue in the future".

[45] More recently, in Zarinchang, the Ontario Court of Appeal offered the following helpful summary of the law in relation to the category of cases and circumstances in which a stay may be granted:

(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.

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. (R v Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 at paras 57-58 (Ont. C.A.); emphasis added).

[46] To this point in the analysis, I reiterate that I have concluded that in my judgment the record demonstrates that the abuse of s. 8 rights by TPS officers not following mandated procedures will likely continue – albeit rarely. Secondly, I have come to the conclusion that no other court-imposed remedy is capable of removing that prospectively prejudicial behaviour. I now turn to the balancing exercise referred to in the "residual" category discussed in Zarinchang. In so doing, I keep in mind what the Supreme Court of Canada noted in Regan, where the court wrote about the "residual category" that:

The Court's judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

…When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in light of it will be offensive." (Tobiass, at para. 91). (R v Regan, 2002 SCC 12, [2002] S.C.J. No. 14 at paras 54, 55 and 57; emphasis added).

[47] In R. v. Arcand, the Ontario Court of Appeal offered the following instructive comments on the standard that should be considered when undertaking the "balancing" under the residual category:

A stay of proceedings in a case falling within the latter category, however, may be granted only where the impugned conduct shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. See for example, R. v. Power (1994), 89 C.C.C. (3d) 1 (S.C.C.) and R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 (S.C.C.). (R v Arcand, 2008 CarswellOnt 4971 (Ont. C.A.); emphasis added).

[48] In considering what comprises "the conscience of the community" I acknowledge that such is the present concern about guns in this city that there are many otherwise reasonable and tolerant members of society who seem to be of the view that as soon as the possibility of excluding a firearm from evidence becomes a possibility as a result of a breach of s. 8 of an accused's Charter rights, no constitutional remedy that might have such an affect should be applied. But, with all due respect, history demonstrates that all too often "moral panics" result in significant collective errors in law, not to mention individual wrongful convictions. The conscience of the community cannot and should not be governed by knee-jerk reactions to the latest headline. In my judgment it should be governed by at least:

• careful reflection about the facts of the case in issue;
• knowledge of the history of breaches by State officials in similar cases;
• appreciation of the lack of response by State officials to judicial decisions criticizing these practices;
• understanding the importance of the views of the Supreme Court of Canada and other senior courts consistently reiterating that precisely because strip searches are inherently highly intrusive practices that involve a "significant and very direct interference with personal privacy" (Golden para. 89), they should be conducted according to strict adherence to the rules.

[49] To this I would add – and here I speak particularly to parents of school-age children who may be troubled by the notion that the application of Charter rights will allow S.M. to "escape justice" – that one important aspect of what comprises "the conscience of the community" is an anticipation of how we expect the police to treat our children should they be taken to the police station for processing, even on very serious charges. Leaving a 12 ½ year-old naked in violation of expressly mandated policies prohibiting such official behaviours is not what we should expect. And the repetition found by the courts to have occurred with other young persons over at least the past decade is particularly troubling.

DISPOSITION

[49] In my view, this is one of those rare cases where past misconduct in this and other similar cases is so egregious that "the mere fact of going forward in light of it will be offensive" (Tobiass at para. 91). The charges are stayed.

[50] Though what I have written is sufficient to dispose of the charges before the court, I do want to say a word to S.M. Because this case has been decided without going through a full trial, I have not heard your version of how you came into possession of this highly dangerous weapon, made even more dangerous by the presence of ammunition. Whatever is your version of this, I sincerely hope that you have learned from this experience. Young persons have absolutely no business being in possession of guns. They do not make you cool, they do not make you powerful, they do not make you into a tough guy. Just the converse: possession of them is foolish, not only because they can get you thrown out of school or put you in jail, but more importantly because they can injure or kill you or your fellow students. Be smart, make the right choices. Leave guns alone. The parent community at large, your teachers and fellow students have a right to expect that schools will be a safe environment for everybody. It is of grave concern when guns are found in the schools and threaten the safety net for all involved. As such, although your case is being stayed, nevertheless the circumstances of you being before the court should not be minimized or misunderstood.

Released: April 29, 2013

Signed: Justice D.P. Cole

Footnotes

[1] Staff Sgt. Lamond correctly stated in evidence that TPS policy contains no direction to officers that they are to treat youths at all differently from adults in deciding either whether or how to conduct strip searches. He said that he had this in mind when he directed the constables to strip search S.M. While I agree that he applied the policy correctly, with respect it seems to me that he should have given more thought to the extreme youth of this accused.

[2] Staff Sgt. Lamond offered in evidence that in one case he did not order a strip search because the accused was already naked when he entered the police station. In another case, the accused had been arrested wearing only his underwear, and the arresting officers had already conducted a search of his groin before he was brought into the station.

[3] I presume that, unlike what happened in Golden, the accused was the one who lowered or removed his underwear.

[4] I have also considered the decision of the Saskatchewan Court of Queen's Bench in R. v. B.A.P. [2013] S.J. No. 60. Even though that case dealt with whether or not evidence seized from swabbing an accused young person's penis and groin area should be excluded from evidence under s. 24(2) of the Charter, rather than s. 24(1) as I am considering here, the analysis at paras. 8-24 of that case very much commends itself to me here.

[5] I have not forgotten that, though the facts were very different, R. v. Nasogaluak 2010 SCC 6, [2010] S.C.J. No. 6 established that a reduction of sentence is a possible remedy for misbehaviour by State officials. But I am not dealing here with a possible remedy to be applied following a finding of guilt. If this trial is allowed to proceed, that stage may never be reached, which would leave the accused without a real remedy for the breach of his Charter rights.

[6] I am aware that the Toronto Police Services Board is currently conducting a review of strip search policies, and some might say that a judge should leave it to that legislative body to decide how best to impose policies that it considers appropriate (and constitutionally valid). However, it must be kept in mind that the abuses which judges have found have occurred despite existing policies mandating that prisoners should not normally be stripped naked.