Court File and Parties

Court File No.: Toronto

Date: 2013-05-29

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ruth McKay

Before: Justice Mara B. Greene

Reasons for Judgment released May 29, 2013

Counsel:

D. Lerner, for the Crown

D. Burke, for Ms. McKay

Introduction

[1] On May 23, 2011, Ms. McKay was arrested and charged with assault, assault with a weapon, dangerous driving, impaired driving and failing to provide a breath sample. The charges of assault with a weapon, assault and dangerous driving were subsequently withdrawn and a trial date was set for February 11, 2013 for the impaired driving and the charge of refusing to provide a breath sample.

[2] Prior to trial, counsel for Ms. McKay filed a notice of application arguing that Ms. McKay's rights as guaranteed by section 8 of the Charter were violated when the officers chose to subject her to a strip search at the police station. It was Ms. McKay's position that as a result of this breach the charges against her should be stayed. The Crown filed a notice of response stating that no charter violation occurred in the case at bar.

[3] On February 11, 2013, the trial and charter application proceeded as planned. The matter was adjourned for judgment.

Summary of the Evidence

The evidence relevant to the charge of impaired driving

[4] On May 23, 2011, Robin O'Donnell, a Toronto Transit Commission employee, was working at the Rosedale subway station when he saw Ms. McKay outside her vehicle talking to a male with luggage. Ms. McKay appeared to be unsteady on her feet. Mr. O'Donnell then saw Ms. McKay enter her vehicle, a white Solera, and drive it up onto the curb, nearly hitting the male she had previously been talking to. According to Mr. O'Donnell Ms. McKay then backed up her vehicle and then drove back over the curb almost hitting the same male for a second time.

[5] Mr. O'Donnell continued to watch Ms. McKay; concerned that she was either intentionally trying to run over the male or that she was impaired and therefor unfit to drive. Mr. O'Donnell then saw the male put his luggage in Ms. McKay's vehicle and drive off with Ms. McKay. Mr. O'Donnell called the police to report what he had seen.

[6] P.C. Miller and P.C. Karimloo responded to the call about Ms. McKay's driving. Moments after receiving the call, they located her vehicle parked in front of a TD Bank on Yonge Street. The vehicle was partially hanging over the sidewalk, parked on a diagonal.

[7] P.C. Miller stopped her vehicle and pulled up next to Ms. McKay's vehicle. The engine was running but no one was in the vehicle. Moments later, at 3:28pm, P.C. Miller saw Ms. McKay and the male, who was later identified as Mr. Rhus, exit the bank and walk back to the car. P.C. Miller spoke to Ms. McKay while P.C. Karimloo spoke to Mr. Rhus.

[8] While talking to Ms. McKay, P.C. Miller detected an odor of alcohol emanating from her mouth. Ms McKay advised the officer that she had been driving the vehicle and that she was on her way to take Mr. Rhus to the airport. During her discussion with Ms. McKay, P.C. Miller noticed a scrape to Ms. McKay's neck and a scrape on her knee.

[9] Based on these observations, P.C. Miller formed the grounds to make an ASD demand. Ms. McKay complied and blew a fail, signifying to the officer that Ms. McKay had over 100mg of alcohol in 100ml of blood.

[10] At 4:10pm, P.C. Miller arrested Ms. McKay for driving while having over 80mg of alcohol in 100ml of blood and at 4:15pm a breath demand was made.

[11] Ms. McKay was also arrested for assaulting Mr. Rhus with a weapon, to wit her vehicle, and with dangerous driving.

[12] Mr. McKay remained on scene for approximately one hour while the officers waited for a tow truck to impound Ms. McKay's vehicle.

[13] At 5:10pm, Ms. McKay and the officers finally left the scene for 32 division. According to P.C. Miller and P.C. Karimloo, while on route to 32 Division, they had to stop the vehicle to check on Ms. McKay as it looked like she had passed out in the back of the vehicle. P.C. Miller and P.C. Karimloo also testified that at other times during the ride to 32 division, Ms. McKay appeared to be having a hard time keeping upright and that she slouched over several times. Moreover, both officers testified that the odor of alcohol emanating from Ms. McKay's breath became more intense once they were in the police vehicle together.

[14] Ms. McKay testified at trial. She was 61 years old at the time of the alleged offences, had no prior record and was a retired school teacher. At the time of the allegations, Ms. McKay was receiving ODSP because she was suffering from a number of chronic ailments including: fibromyalgia, chronic fatigue, asthma, high blood pressure and arthritis.

[15] On May 23, 2010, Ms. McKay and her boyfriend, John Rhus got into an argument about him leaving the country and travelling to Brazil without her. Ms. McKay was very upset about the argument and told Mr. Rhus that he should leave. Ms. McKay then made herself a vodka martini and drank it while Mr. Rhus packed his bags.

[16] After consuming the martini, Mr. Rhus knocked on her door and asked her to drive him to the airport, which she refused. He then advised her that he needed to retrieve his golf clubs from her vehicle. Despite being barefoot and still wearing only a nightgown, Ms. McKay went with Mr. Rhus to her vehicle to retrieve his golf clubs. They had a further argument by her car ultimately leading to Mr. Rhus walking away from Ms. McKay to catch a cab to take him to the airport.

[17] After a few moments, Ms. McKay felt bad for not taking Mr. Rhus at least to a bank so that he could obtain money to pay for a cab to take him to the airport. She was also worried about him walking with all of his bags as he also was not well. As a result, she drove up to him and asked him to enter her car. When Mr. Rhus refused, Ms. McKay continued to drive beside him pleading with him to enter her vehicle.

[18] Approximately two to three blocks later, Mr. Rhus asked Ms. McKay to pull over her vehicle, which she did by doing a U-turn and then pulling up on the sidewalk. She then backed up and opened her trunk so that Mr. Rhus could put his luggage in the vehicle.

[19] As Ms. McKay stepped out of the vehicle, she told Mr. Rhus that she was only prepared to drive him to a bank and he could grab a cab from there. She tried to help with the luggage, but they both grabbed for a bag at the same time. Mr. Rhus shook the bag hard enough that Ms. McKay fell and received a scratch to her leg and a bruise to her foot.

[20] Eventually, Ms. McKay and Mr. Rhus left the area and drove to a bank on Yonge Street. She parked in what she thought was a lawful parking spot, although she did have to drive up onto the sidewalk to park. She and Mr. Rhus were about to use the bank machine when the police arrived.

[21] Ms. McKay testified that she told the officer she had one martini and then had to provide a breath sample. Upon failing the test, she was arrested, cuffed and placed in a police car.

[22] At trial Ms. McKay denied being impaired and maintained that she only consumed one martini that day.

[23] According to Ms. McKay, she did not pass out in the back of the cruiser, she did, however, slump over in an attempt to find a more comfortable position as her hands were cuffed to her back and causing her pain and difficulty. She was anxious and was just trying to keep herself calm.

Evidence of refusal to provide a breath sample

[24] Once at 32 division, Ms. McKay was given a chance to speak to counsel. In fact the police made a number of calls to facilitate Ms. McKay accessing counsel of choice. Ms. McKay was eventually taken to the breath technician room where she was given numerous opportunities to provide a breath sample but failed to do so. As a result she was arrested for refusing to provide a breath sample.

[25] P.C. Thompson, the qualified breath technician, testified about his observations of Ms. McKay during the breath test that led him to conclude that she was refusing to provide a breath sample. The Crown also played a videotape of what occurred while Ms. McKay was with the breath technician.

[26] On the video Ms. McKay is heard advising P.C. Thompson that she is taking a whole host of medication including Chlorazepam, Advil and a medication that helps with her breathing problems. After this, P.C. Thompson slowly and clearly advised Ms. McKay how to provide a breath sample.

[27] On the video Ms. McKay is seen blowing into the mouthpiece but no air, or an insufficient amount of air is actually going into the machine. P.C. Thompson is heard expressing his opinion that she was intentionally not providing a sufficient sample. Ms. McKay was given a number of opportunities to provide a sample. On each occasion the officer noted that she was intentionally not breathing hard enough into the machine. After a number of warnings and cautions that refusing to provide a sample is a criminal offence, P.C. Thompson stopped the testing and arrested Ms. McKay for refusing to provide a breath sample. During the video, Ms. McKay was heard advising the officer that she was in fact trying her best.

[28] Ms. McKay testified that once at the station she did try to provide a sample but by then she was anxious, under extreme stress, and her breath had become shallow. Ms. McKay suffers from a number of physical ailments including asthma. Ms. McKay testified that she tried to provide a sample but physically was unable to do so. Ms. McKay testified that the officer kept talking at her, not giving her a chance to calm herself down so that she could gain enough breath to provide a sample.

[29] Ms. McKay was then transported to 53 division to be processed on all the charges.

Evidence relevant to the section 8 argument

[30] Mr. Rhus was transported by the police from the bank to 53 division so that the officers could further investigate the allegations of domestic assault. He arrived at 53 division at approximately 5:00 p.m. and shortly thereafter he was taken to an interview room where he provided a videotaped statement to Sgt. Surphis which ended at 8:15 p.m.

[31] Sgt. Surphis testified that during this interview, Mr. Rhus advised that Ms. McKay attempted to hit him with her vehicle earlier that evening. Mr. Rhus further advised that he was an American citizen and that he was returning home to Florida that day. The officer noted that Mr. Rhus did in fact have his luggage with him. He was further advised that the source of the domestic dispute was that he had just advised Ms. McKay that he was leaving the country and travelling to Brazil without her.

[32] After taking the statement from Mr. Rhus, Sgt. Surphis was advised that Ms. McKay had arrived at the station. At that point Sgt. Surphis was of the opinion, given the seriousness of the offence, that Ms. McKay should be detained and held for a show cause hearing. It was his opinion that there were safety concerns for Mr. Rhus. Sgt. Surphis testified that while he had information that Mr. Rhus was leaving the country, which could have resolved the safety concerns, he wanted to investigate this further and confirm that Mr. Rhus was really going to leave the country.

[33] As a result of this recommendation, the Officer-in-Charge, Staff Sgt. Grey, decided that Ms. McKay would be held for a show cause hearing and therefore a level three search, better known as a strip search, had to be conducted. The strip search occurred at 9:00 p.m.; some 45 minutes after Sgt. Surphis completed his interview with Mr. Rhus.

[34] During the strip search, Ms. McKay was upset, crying and embarrassed. While the strip search occurred in private with two female officers who acted completely appropriately, Ms. McKay still had to remove her nightgown, and while naked squat three times.

[35] According to Sgt. Surphis, at some point after the strip search was completed he became satisfied that Mr. Rhus was in fact leaving the country. As a result, he no longer had concerns for Mr. Rhus' safety if Ms. McKay was release. He then advised the officer-in-charge of the station that he was now recommending that Ms. McKay be released from the station.

[36] Sgt. Surphis was asked what additional investigating he did post the original interview with Mr. Rhus that helped him confirm that Mr. Rhus was in fact leaving the country. In response, the officer testified that he spoke to some officers. He had no note of which officers or what they told him. In re-examination, Sgt. Surphis testified that he actually re-interviewed Mr. Rhus and this is what led him to be satisfied that Mr. Rhus was leaving the country. This conversation was also not in his notes. In fact, Mr. Rhus had no notes what so ever of any investigation into Mr. Rhus' travel plans post 8:15 p.m.

[37] Staff Sgt. Dennis testified that on the night in question, he started his shift at 10:00pm at which time he became the officer in charge of the station. He was not at work when the initial decision to detain Ms. McKay was made. Sgt. Dennis testified that after he started his shift he was advised that given a change in circumstances Ms. McKay's detention pending a show cause hearing was not necessary. When asked what circumstances changed, Sgt. Dennis testified that he had been advised that initially there were concerns about the safety of Mr. Rhus, but that once it was discovered that he was leaving the country, these concerns cease to exist.

[38] Ms. McKay testified that upon arriving at 53 division, she was subject to a strip search. She was humiliated by the strip search and a year later, still feels traumatized by the event. She is now in counselling to help her overcome her ongoing anxiety arising from the events of this evening.

Issues Raised at Trial

[39] At trial, the following issues were raised:

a) Did the police violate Ms. McKay's section 8 charter rights when she was strip searched at 53 division?

b) If so, what is the appropriate remedy?

c) Has the crown proven beyond a reasonable doubt that Ms. McKay was impaired by alcohol or drug on the night in question?

d) Has the Crown proven beyond a reasonable doubt that Ms. McKay refused to provide a breath sample?

Section 8 of the Charter – General Principles

[40] The section 8 charter argument raised in the case at bar relates solely to the lawfulness of the strip search. In the case at bar, Ms. McKay was strip searched upon her arrival at 53 division. The officers testified that the sole basis for the strip search was because Ms. McKay was going to be detained pending a show cause hearing on the domestic assault allegations, the impaired driving charge and the charge of refusing to provide a breath sample.

[41] In R. v. Golden, [2001] S.C.J. No. 679 the Supreme Court of Canada considered in detail the scope of the police power to conduct strip searches. In addressing this issue, the Court referenced the long standing principle that "the more intrusive the search the greater the degree of justification and constitutional protection that is appropriate" (see R. v. Golden, supra, at paragraph 88).

[42] With this in mind, the Supreme Court of Canada stated in R. v. Golden, supra, that "the importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy." The court went on to state, "Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestees experience." (see R. v. Golden, supra at paragraph 89).

[43] In light of the real harm caused by strip searches, the Supreme Court of Canada ultimately held that strip searches incidental to arrest will only be lawful if they are related to the reason for arrest and are conducted in a reasonable manner. (see R. v. Golden, supra, at paragraph 92).

[44] In reaching this conclusion, the Court distinguished between strip searches incidental to arrest and strip searches conducted at a police station for reasons related to safety issues in a custodial setting. The Court accepted that a strip search may be necessary when integrating a detainee into a prison population to prevent the individual from bringing contraband or weapons into prison. (see R. v. Golden, supra, at paragraphs 96-97).

[45] It is this passage from Golden that the Crown relies on to support the strip search in the case at bar. Crown counsel argued that because Ms. McKay was going to be integrated with other prisoners when she was brought to court for her show cause hearing, it was necessary to search her for contraband and weapons.

[46] Defence counsel argued that despite this passage from R. v. Golden, the search in the case at bar was still unlawful and in violation of section 8 of the Charter in two respects. Firstly, there was never any basis in law to hold Ms. McKay for a show cause hearing and secondly, contrary to the Supreme Court of Canada's decision in R. v. Golden, Ms. McKay was only stripped searched because of a broad policy and without any thought to the reality that a strip search was not necessary to protect anyone.

a) Compliance with section 497 of the Criminal Code

[47] In the case at bar, Ms. McKay was arrested for impaired driving, refusing to provide breath sample, assault with a weapon and dangerous driving. After attending at 32 division for the breathalyser test, Ms. McKay was transported to 53 division for processing.

[48] The officers involved in investigating Ms. McKay initially decided to detain Ms. McKay for a show cause hearing. It was a direct result of this decision that Ms. McKay was strip searched.

[49] It was only a short time after the strip search was completed that the officers changed their minds and decided that Ms. McKay could in fact be released from the station.

[50] Counsel for Ms. McKay argued that the police never had any basis to hold Ms. McKay for a show cause hearing and as such, the subsequent strip search was in violation of her rights as guaranteed by section 8 of the Charter. In support of this position, counsel highlighted the fact that just hours later, with no additional information in hand, the police changed their minds and decided to release Ms. McKay from the police station. Counsel for Ms. McKay argued that this alone is indicative of the fact that there was never any basis to hold Ms. McKay for a bail hearing and therefore no reason to conduct a strip search.

[51] Crown counsel argued that the decision to detain Ms. McKay for a show cause hearing was in fact a lawful decision. He argued that I should accept Sgt. Surphis explanation for his change in position and that Sgt. Surphis acted diligently and responsibly when he chose to re-evaluate his initial position once knew information came to light.

[52] In order to appreciate this argument, it is necessary to review some of the evidence and determine what grounds, if any, the police had to detain Ms. McKay pending a show cause hearing.

[53] It was not disputed that the ultimate decision to release Ms. McKay was based on the reality that even though she was facing serious allegations of domestic violence, given her lack of criminal record, her age and the fact that Mr. Rhus was leaving the country that day there was no risk of harm to the public or Mr. Rhus and no risk of repetition of her re-offending. What is in dispute is when the police really knew and accepted that Mr. Rhus was leaving the country that day. If it was always known and accepted that Mr. Rhus was leaving the country immediately, then the officers could not reasonably have had concerns for his safety, and the decision to hold Ms. McKay for a show cause hearing should never have been made.

[54] Sgt. Surphis was the lead investigating officer. It was because of his recommendation to hold Ms. McKay for a show cause hearing that staff Sgt. Grey made the decision to detain her and order the strip search. Moreover, while Sgt. Dennis made the decision to release Ms. McKay from the station hours later, like Sgt. Grey, his decision was also based on the recommendation of Sgt. Surphis. In my view, it was therefore effectively Sgt. Surphis' recommendation that led to Ms. McKay being strip searched. It is therefore necessary to assess Sgt. Surphis' reasons for recommending the detention and the subsequent release.

[55] Sgt. Surphis testified at trial that while Mr. Rhus told him in the initial interview that he was leaving the country that day, he did not satisfy himself of this fact until much later. As a result, at the time Ms. McKay was booked at the station, he recommended she be held for a show cause hearing. It was not until later on when he spoke to unknown officers and to Mr. Rhus again that he satisfied himself that Mr. Rhus was in fact leaving the country. With this confirmed, he decided that Ms. McKay could be released from the station.

[56] I reject Sgt. Surphis' evidence that his change in mind about whether to release Ms. McKay from the station was a product of additional investigation and new information coming forward. I find that the officer did not receive any relevant new information after 8:15p.m. I reach this conclusion for the following reasons:

a) When first stopped by police, Mr. Rhus advised the officers that he was on his way to the airport;

b) Ms. McKay made a similar statement to the police upon her arrest;

c) Mr. Rhus told Sgt. Surphis during his interview that: i) he was an American citizen ii) that he was returning to his home Florida that day iii) that he had his luggage with him as he was on his way to the airport and iv) that the source of disagreement between himself and Ms. McKay was that he was leaving without her;

d) Mr. Rhus did in fact have his luggage with him when interviewed at the station;

e) While Sgt. Surphis maintained that he in fact did conduct further investigation into whether or not Mr. Rhus was leaving the country after 8:15 p.m., during the entire examination-in-chief and in cross-examination he was unable to articulate what investigative steps he actually took other than that he spoke to officers, the content of these conversations is utterly unknown;

f) It was only during re-examination that Sgt. Surphis stated for the first time that he spoke to Mr. Rhus for a second time after 8:15pm. If this in fact occurred, it is hard to imagine why the officer would not have expressed this earlier in his evidence when asked directly about what steps he took after 8:15pm to confirm that Mr. Rhus was in fact leaving the country; and,

g) Sgt. Surphis made no notes of any further investigation into Mr. Rhus leaving the country post 8:15pm. That is he has no notes of his alleged conversations with officers or his second interview with Mr. Rhus.

[57] I find that at 8:15pm, when the interview with Mr. Rhus concluded, Sgt. Surphis knew that Mr. Rhus was leaving the country. I find that he did not conduct any further investigation into this issue after 8:15pm, that officers did not provide him with additional relevant information and that he did not re-interview Mr. Rhus. I therefore reject Sgt. Surphis' evidence on this point and find that his change of mind in relation to whether to detain Ms. McKay was not the product of additional investigation and a change in circumstances. While I appreciate that this is what Sgt. Surphis reported to Sgt. Dennis, I find that there was no change in circumstances and that Sgt. Dennis had no way of knowing this, as he was not working when the investigation began.

[58] This leads into whether in law, the initial decision to hold Ms. McKay for a show cause was lawful.

[59] Pursuant to section 497(1) of the Criminal Code, a police officer who arrests a person without a warrant, shall:

a) Release the person from custody with the intention of compelling their appearance by way of a summons; or

b) Issue an appearance notice to the person and then release them.

[60] Pursuant to section 497(1.1), a police officer shall not release a person if that officer believes, on reasonable grounds, that it is necessary having regard to a number of factors, including the safety of the victim and the public, the need to establish the identity of the person, to secure or preserve evidence and to prevent the continuation or repetition of an offence. In the case at bar, while not specifically articulated by any of the officers, it was clear from all the evidence and from the Crown's submissions that the sole basis for originally ordering her detention pending a show cause hearing was out of concern for the safety of the victim and the potential for a repeated assault on him. Ms. McKay was a 61 year one year old retired school teacher with no prior record. While the domestic assault allegations were serious, there was no live concern that she posed a general risk to the public, that she was hiding evidence or that she was lying about her identity.

[61] In light of my credibility findings above, I find that at the time of the decision to detain Ms. McKay for a show cause hearing, Sgt. Surphis could not reasonably have had any safety concerns for the victim. As noted above, Sgt. Surphis had ample information and proof that Mr. Rhus was in fact returning to the United States.

[62] I agree with the Crown that officers should be encouraged to reconsider their decisions and be applauded when they have the courage to admit to making a mistake, but that is not the case here. Sgt. Surphis did not admit to making a mistake, but instead, maintained that his change of heart was the product of a change in circumstances, a change I have found did not exist.

[63] Given what appears to be the general policy at the station, Sgt. Surphis must have known the severe consequences of prematurely deciding to hold someone for a show cause hearing. In my view, given the severe consequences of such a decision, Sgt. Surphis ought to have been more careful in reaching this decision. To the extent that he had any doubt about Mr. Rhus actually leaving the country, the officer ought to have delayed making a recommendation until he was satisfied one way or another.

[64] In my view, the analysis in the case at bar is much like that from R. v. Aucoin, 2012 SCC 66. In that case, the majority of the Supreme Court of Canada held that Mr. Aucoin's section 8 charter rights were violated when he was subjected to a pat down search prior to being secured in the rear of scout car. The majority of the Court held that while it is appropriate to conduct a pat down search before securing a detainee in the back seat of a police cruiser, the search becomes unlawful if there was no basis so secure the individual in the back seat of the car. The Court stated at paragraph 44,

As it is, Constable Burke chose to secure the appellant in the rear of the cruiser and pat him down as a prelude to doing so. But for that decision, there would have been no pat-down search. 3 Because detaining the appellant in the back of the cruiser would have been an unlawful detention -- given there were other reasonable means by which Constable Burke could have addressed his concern that the appellant might flee -- it cannot constitute the requisite basis in law to support a warrantless search: Collins , at p. 278. Therefore, the pat-down search was unreasonable within the meaning of s. 8 and constituted a breach of the appellant's Charter right against unreasonable search and seizure. With respect, the trial judge and the majority of the Court of Appeal erred in concluding otherwise.

[65] In the case at bar, I find that Sgt. Surphis made a premature recommendation to detain Ms. McKay pending a show cause hearing when there was really no basis to do so. This recommendation was followed by the staff sergeant. It was only later, when Sgt. Surphis properly assessed all the information that he reached the right conclusion, that there was no basis to hold Ms. McKay for a show cause hearing. But for this hasty decision by Sgt. Surphis, Ms. McKay would never have been subjected to a strip search.

[66] There was no urgency here in deciding how to move forward. There was no reason why the decision to release or detain had to be made at 8:15 or 9:00 p.m. as opposed to some later time. At the very least, if some further investigation was in fact necessary to confirm that Mr. Rhus was being truthful when he told the officers he was leaving the country that day, the officers should have held off deciding the issue until they were able to confirm this information.

[67] In my view, having found that the police had no basis to detain Ms. McKay for a show cause hearing, I find that the strip search cannot be justified in law. I therefore find a breach of her section 8 rights.

Was the strip search a product of a routine policy?

[68] Since the Supreme Court of Canada's decision in R. v. Golden, supra, it has generally been accepted that when it is necessary to place a detainee in cells with other inmates, a strip search is usually necessary to ensure the protection of the detainee, other inmates and the officers. Having said that, the Supreme Court of Canada also held that strip searches should not be the product of a routine policy but instead, the decision of whether or not to conduct a strip search should occur on a case by case basis. The Court held at paragraph 95,

… Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting, or trafficking in narcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of section 8 of the Charter. A strip search will always be unreasonable if it carried out abusively or for the purpose of humiliating or punishing the arrestee. Yet a "routine" strip search carried out in good faith without violence will also violate s.8 where there is no compelling reason for performing a strip search in the circumstances of the arrest.

[69] In the case at bar, counsel argued that Ms. McKay was strip searched because of some broad policy that anyone being held for a show cause hearing will be subjected to a strip search. Counsel further argued that the officers failed to even consider whether, given her unique circumstances, a strip search was warranted.

[70] I agree with counsel that from the evidence heard at trial, the only factor considered by the police before deciding to conduct a strip search was that Ms. McKay was going to be held pending a show cause hearing. The evidence supports the finding, and I so find, that at 53 division, all persons being held for a show cause hearing are subjected to a strip search. The rationale behind this routine policy is that once a person is being held for a show cause hearing, that person is likely to mix with other inmates and detainees either in the wagon on the way to court, or while in the court cells. Given the increased risk associated with this inter-mingling the strip search is necessary.

[71] Crown counsel argued, that this approach is completely lawful. The Supreme Court of Canada in R. v. Golden, supra, recognized that a different standard is necessary to assess the validity of a search in preparation of being housed with other inmates as opposed to a search incident to arrest. The Court stated at paragraphs 96-7

96. It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population; there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells: [page732] R. v. Toulouse, [1994] O.J. No. 2746 (QL) (Prov. Div.) .

97. The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27 , which involved a routine strip search, carried out incident to an arrest and short term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees.

[72] In R. v. V.K. 2011 ONCJ 573, Justice Katarynych highlighted the safety concerns that arise once the decision is made to conduct a show cause hearing,

[42] The decision to strip-search was inextricably tied to the decision to detain this youth for a show cause.

[43] What loomed large as a focus was the safety of those for whom police are responsible, once a detention decision is taken. As a matter of common sense, police cells and police paddy wagon transport are environments that need to be kept safe. The expectation of safety is no less important to and in relation to this youth than it is for any other person detained in police custody awaiting a bail hearing. Golden acknowledges the legitimacy of a reasonably grounded police concern about safety in custody environments (paragraphs 42 and 43)

[73] I agree that these passages support the conclusion that there is a broader search power when a person is going to be entering a prison population because of the obvious heightened safety concerns. This heightened concern, in most cases, will likely lead to the conclusion that a strip search is in fact necessary. It does not, however, allow the police to create a routine policy to this end and thereby fail to consider the personal circumstances of the person before them. In my view, it is still incumbent on the police to make decisions in a case by case manner. The police failed to do so in this case.

[74] In the case at bar, the police were dealing with a 61 year old retired school teacher with no prior criminal record. She suffered from a host of physical ailments, was in her nightgown and had no shoes on. At the time of her arrest, she was in the process of driving her boyfriend to the airport. Given these facts, there was no reason to believe that Ms. McKay was securing weapons or contraband inside her body or in places that could not be reached by a thorough pat down search. The police were required to consider these personal circumstances before deciding whether or not a strip search was warranted. Having failed to consider these relevant personal factors, the police acted as a matter of routine policy and in doing so breached Ms. McKay's section 8 rights.

[75] In making this finding, I do appreciate that in the vast majority of cases the police will be justified in conducting strip searches when detaining a person pending a show cause hearing. However, the police must still turn their mind to whether or not there is a risk that the person being detained does in fact have contraband or weapons on them. In my view this was not done in the case at bar.

Remedy

[76] Counsel for Ms. McKay argued that the only appropriate remedy in the case at bar is a stay of proceedings pursuant to section 24(1) of the Charter. Crown counsel argued that such a remedy should only be reserved for the clearest of cases and that this is not one of those cases

[77] I agree with the Crown counsel that a stay of proceedings is a remedy that should rarely be granted and only granted in the clearest of cases. This is because when a trial judge stays the proceedings, that judge effectively robs the community from a trial on its merits. A charge that is stayed can never be prosecuted and society will never have the matter tried on its merits. For these reasons, a stay of proceedings is an exceptional remedy and should be reserved for only the "clearest of cases. (see R. v. Regan 2002 SCC 12, [2002] S.C.J. No. 14 at para 53 ).

[78] It is however, recognized that some charter breaches are so egregious that a stay of proceedings is necessary. A stay of proceedings may be the appropriate remedy where trial fairness is in issue or where the integrity of the justice system is called into question by the state conduct. In R. v. Zarinchang 2010 ONCA 286, [2010] O.J. No. 1548 (C.A.), the Court of Appeal summarized the test for determining if a stay of proceedings is the appropriate remedy. The Court held,

(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 the 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 (at paragraph 57).

[79] In the case at bar, the issue is not trial fairness. Instead, the concern is for the overall integrity of the criminal justice system. As was noted by the Court of Appeal in Zarinchang, whenever the residual category is engaged, like it is in the case at bar, the court must engage in the balancing noted above because the concern is not with ongoing prejudice to the applicant but for the overall integrity of the justice system.

[80] There have been a number of cases in the recent past where courts have stayed the proceedings in response to an unlawful strip search. For example, In R. v. Samuels, 2008 ONCJ 85, [2008] O.J. No. 786 (OCJ), Justice Nakatsuru stayed the charges of impaired driving and driving while having over 80 mg of alcohol in 100ml of blood where Mr. Samuels was strip searched at the police station, despite the fact that he was only going to be detained in a cell at the police station for a short while until he sobered up. In deciding that a stay of proceedings was necessary to maintain the integrity of the criminal justice system, Justice Nakatsuru commented on the humiliating nature of strip searches and the fact that the search was utterly unnecessary and just the product of a general policy at the police station.

[81] In my view this case is somewhat different. Firstly, I note that the decision to conduct a strip search was because of the initial decision to detain Ms. McKay pending a show cause hearing. If held for a show cause hearing, Ms. McKay may very well have been housed in a cell with other inmates. Secondly, the decision to detain and therefore strip search related more to the domestic assault charges than to the charges that are presently before the Court, albeit she was arrested and detained for all charges at the same time.

[82] Had the sole issue in the case at bar been that Ms. McKay was subjected to a strip search because of a routine policy to strip search all persons held for a show cause hearing, a stay of proceedings would likely not be an appropriate remedy. Given the comments from all levels of court about the increased risk to the safety of others that arises once a person is placed in the prison population, while in the case at bar I found a breach, the breach in my view was not so serious so as to necessitate a stay of proceedings.

[83] What is more concerning is the general cavalier attitude by the police towards strip searches. In my view, when I consider all the evidence, the officers dealing with Ms. McKay did not seem to appreciate the gravity of the strip search and the necessity to only conduct such searches when necessary. I reach this conclusion by the fact that Sgt. Surphis made a snap decision to hold Ms. McKay for a bail hearing and once this decision was made, the officers proceeded to conduct a strip search on Ms. McKay without any thought to whether it was in fact necessary in this case.

[84] The snap decision to hold Ms. McKay for a bail hearing had immediate severe implications – a strip search. Given this harsh reality, it is difficult to understand why the officers would not have taken the time to consider all the relevant factors prior to making the order to detain her. As noted earlier, there was no urgency here. The officers were alive to the fact that Ms. McKay had no prior record, was on numerous medications and was not a danger to the public. They also had a plethora of information that, had it been properly considered, would have led to the conclusion that the officers ultimately made, that Ms. McKay was not a risk to Mr. Rhus as he was leaving the country. To the extent that there was any doubt of this (and I have found there reasonably there was none), the police ought to have delayed making a formal decision until that doubt was resolved. Their failure to do so suggests a lack of concern for the implications associated with this decision – that is that Ms. McKay would be exposed to a humiliating and degrading strip search.

[85] Over ten years ago, the Supreme Court of Canada noted how humiliating and degrading strip searches are. The Court stated in R. v. Golden that "the adjectives used by individuals to describe their experience of being strip search give some sense of how a strip search, even one that is carried out in a reasonable manner, can affect detainees: "humiliating", "degrading:, "demeaning", "upsetting", and "devastating". Given the obvious emotionally damaging impact of strip searches, it is an affront to the administration of justice when the members of the system hold such cavalier attitudes about strip searches thereby exposing detainees to unnecessary intrusions on their privacy. As noted in Golden, supra, it is important to prevent such invasive searches before they even occur (at paragraph 89). In my view, the police conduct in the case at bar does call into question the integrity of the justice system and a remedy of some weight is necessary.

[86] Ms. McKay testified about how humiliated she was by the strip search. How she continues to suffer emotionally from this event. Her evidence is completely consistent with the known impact of strip searches on people. In my view, given this reality balancing society's need for a trial on its merits with the impact of this charter breach on the integrity of the justice system, I find that a stay of proceedings is the appropriate remedy. I appreciate that impaired driving is a very serious offence and that there is a strong public interest in trying these cases on their merits, but when I balance the seriousness of the breach, in my view a stay of proceedings is necessary to maintain public confidence in the integrity of the criminal justice system.

Impaired Driving

[87] While I would have stayed the proceedings in the case at bar to address the charter issue, in my view, if the defendant is otherwise entitled to an acquittal, then an acquittal ought to be entered. This case proceeded in a blended fashion with the charter and trial issues addressed all at once. I have therefore heard all the evidence on the trial proper and heard fulsome submissions. In light of this, I am going to address the trial issues on their merits.

[88] In the case at bar, officers Karimloo and Miller testified about their observations of Ms. McKay on May 23, 2010. The Crown argued that these observations coupled with the evidence of Mr. O'Donnell support the conclusion that Ms. McKay was impaired by alcohol when she driving her motor vehicle. There is no issue that Ms. McKay was in fact driving her motor vehicle on the day in question, she admitted this during her evidence. The sole issue was whether she was impaired.

[89] In determining whether the crown has proven its case beyond a reasonable doubt, I must keep in mind that proof of impairment does not require a marked departure from normal behaviour. Any degree of impairment of the ability to operate a motor vehicle caused by alcohol is sufficient, no matter how slight (R. v. Stellato (1994), 90 C.C.C. (3d) 160 (S.C.C.)). However, a conviction is not required on the production of any evidence consistent with impairment, however, minimal. The Crown must prove at least a slight impairment by alcohol of accused's ability to drive (R. v. Elvikis [1997], O.J. No. 234 at paragraph 28).

[90] In the case at bar, the Crown pointed to the following pieces of evidence that support a finding of impairment:

a) Ms. McKay was seen by Mr. O'Donnell driving up on the curb near the TTC station two times nearly hitting Mr. Rhus;

b) Mr. O'Donnell noticed that Ms. McKay seemed unsteady on her feet

c) P.C. Miller and P.C. Karimloo detected a strong odor of alcohol emanated from her mouth;

d) Ms. McKay passed out, or nearly passed out in the police cruiser on the way to the police station;

e) Ms. McKay was barefoot and wearing only a nightgown when arrested;

f) Ms. McKay kept slouching over in the police vehicle; and,

g) Ms. McKay's vehicle was parked poorly in front of the bank, partly over the curb and blocking the sidewalk.

[91] Firstly, I note that I have no basis to reject Mr. O'Donnell's evidence or the evidence of P.C. Miller and P.C. Karimloo. Having said that, Ms. McKay did testify in her own defence. At times her evidence runs contrary to the observations of the above noted witnesses and at other times, her evidence served to clarify or explain her conduct. Ms. McKay's evidence was effectively a denial that she was impaired on the day in question. In light of this evidence, I must consider whether her evidence raises a reasonable doubt.

[92] Crown counsel urged me to reject Ms. McKay's evidence. He argued that Ms. McKay had a selective memory, was inconsistent and that her evidence made no sense. I disagree. I found Ms. McKay to be both a credible and reliable witness. I appreciate that there were some inconsistencies in her evidence in particular in relation to what injuries she suffered. In my view these inconsistencies do not lead me to reject the majority of Ms. McKay's evidence and are understandable given the stress she was suffering on the night in question and the passage of time. In my view, Ms. McKay presented generally as a forthright and honest witness who on the day in question she was undergoing a lot of stress in relation to her relationship with Mr. Rhus and made some irrational decisions because of it, like going outside barefoot wearing only a nightgown.

[93] Ms. McKay, during her evidence, addressed and explained the majority of the indicia of impairment noted by the officers. I have no reason to reject her explanations. In relation to the driving seen by Mr. O'Donnell, Ms. McKay testified that she drove up onto the curb in order to pick up Mr. Rhus and take him to a bank. I appreciate that the driving seen by Mr. O'Donnell was troubling indeed. It looked to him like she was impaired or that she was intentionally trying to hit Mr. Rhus. I, however, accept Ms. McKay's explanation for this driving. I accept that her driving was purposeful and not a product of impairment. I also appreciate that the driving seen by Mr. O'Donnell was slightly different from the driving as explained by Ms. McKay. This difference does not mean that either party is lying. This difference could be explained by the passage of time or by the varying vantage points.

[94] Mr. O'Donnell also saw Ms. McKay trip and he formed the opinion that she appeared unsteady on her feet. Ms. McKay testified that she only fell when she struggled with Mr. Rhus over his luggage. Mr. O'Donnell did not see this struggle. While it may be that he did not see the struggle because it did not happen, it is equally possible that from his vantage point he could not see them both grabbing for the luggage. I am unable to reject Ms. McKay's evidence on this point.

[95] In relation to the officers' evidence, while their observations were consistent with impairment, Ms. McKay did, during her evidence at trial, explain these actions. Ms. McKay testified that she did consume one martini that day which would explain the odor of alcohol (I appreciate that this is inconsistent with the fail on the ASD but as the results of the ASD were admissible for grounds for arrest only, I am unable to use this evidence to assess Ms. McKay's overall credibility). Ms. McKay denied passing out in the police vehicle but did admit that she slumped over. Ms. McKay testified that she did this in order to be more comfortable in the vehicle given the position of the handcuffs on her wrists. I accept, in particular given her host of ailments, that she was suffering great discomfort while sitting in the back seat of the police cruiser for over an hour awaiting the arrival of the tow truck and then additional time when driving to 32 division. In my view, while slouching in the vehicle could be a sign of impairment, I accept Ms. McKay's explanation and therefore find that it is not evidence that she was in fact impaired by alcohol.

[96] The officers also testified that the way Ms. McKay's vehicle was parked was concerning as she was not parked in a legal parking spot and her vehicle was partially obstructing the sidewalk. Ms. McKay testified that the parking spots in front of the bank were unusual, required one to drive over the curb to access the spot and that the parking spot did run on a diagonal. No other, independent, objective evidence was presented about these parking spots. As I believe both Ms. McKay and the officers, I am unable to determine if Ms. McKay was in fact improperly parked and therefore am unable to rely on this piece of evidence as some evidence of impairment.

[97] Trial judges are also able to consider a refusal to provide a breath sample as some evidence of impairment, but for the reasons that follow I do not find Ms. McKay's inability to provide a sample as evidence that she was impaired.

[98] When I consider all the evidence, I am left in a reasonable doubt by Ms. McKay's evidence. I am unable reject her evidence that she consumed only one martini that day and that she not impaired by alcohol or drug when driving her motor vehicle.

[99] I therefore find Ms. McKay not guilty of this offence.

Refuse/Failure to Provide a Breath Sample

[100] The offence of refusing to provide a breath sample is proven where the accused declines to provide a breath sample. Failure to provide a breath sample is proven from the inference to be drawn from proof that the accused appeared to blow into the device that was in good working order and failed to register an adequate sample. It is open for a trial judge to infer that the person intentionally failed to provide a sample thereby making out the offence.

[101] In the case at bar, the Crown alleges that Ms. McKay effectively refused to provide a breath sample when she intentionally failed to provide a breath sample at 32 division.

[102] In support of this position the Crown relied on the video tape of what occurred in the breath room and on P.C. Thompson's evidence. The video is credible and reliable evidence. It clearly shows that Ms. McKay attempted to blow into the breath machine many times with no success. The issue is whether she was unable to provide a sample or whether she was intentionally holding her breath to avoid providing a sample.

[103] On the video, Ms. McKay advised the officer that she was taking a number of different medications including chlorazapam, advil and atavar (a medication related to her breathing condition). P.C. Thompson then clearly and slowly explained to Ms. McKay how to blow into the machine and she proceeded to blow into the mouthpiece. On the video, the officer can be heard telling Ms. McKay that she is not really trying to and that she is holding her breath. Ms. McKay responded that she was trying and that she was doing the best she could. After a number of attempts, P.C. Thompson is heard advising Ms. McKay that if she did not provide a sufficient sample she would be charged with refusing to provide a breath sample. At this point, Ms. McKay advised the officer that she suffers from Asthma.

[104] Ms. McKay attempted to blow quite a few more times, she was cautioned again and a new mouth piece was provided. Finally, the officer advised Ms. McKay that he was satisfied that her conduct was intentional and that she was clearly unwilling to provide a breath sample. P.C. Thompson then arrested her for refusing to provide a breath sample.

[105] P.C. Thompson testified at trial and explained to the Court the foundation for his belief that Ms. McKay was intentionally failing to provide a sample as opposed to being physically incapable of providing a sample. I am unable to rely on P.C. Thompson's evidence in any way. Throughout his entire evidence, when speaking about Ms. McKay, P.C. Thompson appeared angry and mad at her. The level of anger displayed by P.C. Thompson towards Ms. McKay seemed disproportionate to the nature and extent of his contact with her. As the trier of fact, I could not understand why he appeared so angry with Ms. McKay, in particular since they had no contact since the date of her arrest. P.C. Thompson's clear animosity towards Ms. McKay caused me to have real concerns about the reliability of P.C. Thompson's observations and his interpretation of her actions. I fear that P.C. Thompson's perceptions of Ms. McKay's actions were tainted by his clear animus towards her. I appreciate that while in the breath room with Ms. McKay, there was no anger. P.C. Thompson was calm and polite but this does detract from the obvious anger displayed at trial and it does not resolve my concern about the reliability of his opinions about her overall conduct.

[106] Ms. McKay testified at trial about why she was unable to provide a breath sample. She testified that at the roadside she was not anxious nor was she nervous and as a result she had no difficulty providing a breath sample. Ms. McKay testified that she was in a completely different state of mind by the time she reached 32 division.

[107] Ms. McKay spent an hour hand cuffed in the back seat of a police cruiser at the scene of her arrest waiting for a tow truck. She was uncomfortable, distressed and anxious by the time she reached the police station, almost an hour and a half after her arrest. She was then taken to the breath room where she tried to provide a breath sample but by then her breath had become quite shallow and she could not produce enough air for the test.

[108] Ms. McKay testified that she tried to blow, had no reason not to provide the sample but could not produce enough breath to satisfy the machine. McKay testified that in her opinion, had she been given some time to calm down she would have been able to provide a proper sample of her breath, but this did not happen. Ms. McKay testified that the officer kept talking at her as she tried to blow causing her to remain anxious and incapable of calming down. The video confirms that the officer talked constantly at Ms. McKay while in the breath room, not in an angry or aggressive voice, but it was constant, leaving Ms. McKay no opportunity to calm herself down.

[109] I found Ms. McKay's evidence on this point credible and reliable and I accept her evidence. I find that Ms. McKay did in fact try to provide a sample, but due to her health problems and her anxiety she was unable to do so. She did not, in my view, intentionally fail to provide a sample nor did she effectively refuse to provide a sample, she was simply physically incapable of complying.

[110] For these reasons, I find that the Crown has not proven the two charges before the court beyond a reasonable doubt and as a result Ms. McKay is acquitted of both charges.

Released on May 29, 2013

Justice M. B. Greene