COURT: Hamilton

DATE: 2014·08·19

Citation: R. v. Magaya, 2014 ONCJ 434

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ROBIN MAGAYA

Before Justice M. Speyer

Heard on July 24, 2014

Ruling on s. 8 and s. 24(2) Application released on August 19, 2014

N. A. White ............................................................................................................. for the Crown

J. DeFilippis ................................................................................. for the accused Robin Magaya

M. SPEYER, J.:

Introduction:

[1] Mr. Magaya is charged with possessing 2 grams of marijuana contrary to s. 4(1) of the Controlled Drugs and Substances Act. The offence is alleged to have occurred on November 12, 2013 while Mr. Magaya was an inmate at the Hamilton Wentworth Detention Centre (“H.W.D.C.”). He does not dispute that he possessed the marijuana, but argues that the drug was discovered following an illegal strip search of his person by jail guard, Kari Anttila. Mr. Magaya takes the position that his rights under s. 8 of the Charter of Rights and Freedoms were violated. He seeks to have the evidence obtained from that search excluded from the trial of this charge pursuant to s. 24(2) of the Charter.

[2] The Crown’s position is that the search was lawful and authorized by section 22 of the Ministry of Correctional Services Regulation, R.R.O. 1990, Reg. 778. The Crown argues in the alternative, that even if Mr. Magaya’s rights under s. 8 of the Charter were contravened, it was a minor breach and the evidence ought not to be excluded from the trial.

[3] For the reasons stated below, I find that the strip search of Mr. Magaya violated his rights under s. 8 of the Charter, and the evidence obtained from that search is excluded.

Evidence:

[4] Mr. Kari Anttila is a correctional officer at the H.W.D.C. He testified that on November 12, 2013 he was the officer in charge of inmates on range 5C. This is a general population area. Mr. Magaya was housed in cell #17 with inmate Abdifatal Okash in area 5C Right. Cell doors in this area are made of solid metal with a 6 x18 inch window through which guards can look into the cell. Mr. Anttila’s responsibilities included looking into each cell to ensure the safety of the inmates and to ensure that they are not doing anything illegal.

[5] Mr. Anttila testified that at approximately 12:35 p.m. he entered area 5C Right to inspect the activities inside the cells. When he came to cell #17, he saw Mr. Okash standing in front of the door, obstructing his view into the cell. This caused him to be suspicious that the occupants of cell #17 were doing something that they were not supposed to do, or had contraband such as drugs or weapons. As a result of his suspicion, he unlocked the door and ordered both Mr. Okash and Mr. Magaya to come out of the cell to be subject to a strip search.

[6] Mr. Anttila and another correctional officer, Mr. Craig Fournier, took Mr. Okash and Mr. Magaya to a small interview room to be strip searched. The interview room is in an area away from other prisoners, but still visible to them. Mr. Anttila testified that he brought each inmate into the room to be searched individually while the other inmate remained outside with Mr. Fournier. Mr. Anttila testified he searched each inmate in an area of the interview room that is out of view of other prisoners. However, for safety reasons, the door of the room was left open so Mr. Fournier could see inside.

[7] Mr. Anttila conducted the search by having the inmate remove each article of clothing separately and hand it to him to be searched. Mr. Anttila testified that all clothing was removed and searched, leaving the inmate completely nude by the end of the search. Mr. Anttila searched Mr. Okash first and found nothing. He searched Mr. Magaya next and found two grams of marijuana hidden in his sock.

[8] Mr. Anttila testified that he is familiar with search policies of the H.W.D.C. He testified that officers have discretion to conduct random pat down or frisk searches of inmates as they see fit to ensure the safety of inmates and staff. Inmates are subject to strip searches when they return to or are admitted into the institution. They are also subject to random strip searches, but these are authorized by the Superintendent of the institution. Authorizations are given to staff in “standing orders”. Strip searches are conducted in private areas of the institution, out of view of other inmates, to afford the inmate with dignity and respect. Mr. Anttila testified that in his view, strip searches do not always have to be authorized by the Superintendent and can be conducted if the officer suspects an inmate to be in possession of contraband.

[9] Mr. Anttila testified he did not obtain authorization from the Superintendent of the detention centre prior to conducting the strip searches of Mr. Okash or Mr. Magaya because he did not have time. He was concerned that if the inmates had any contraband, they would dispose of it while he sought the Superintendent’s authorization. He testified that any delay would have allowed Mr. Okash and Mr. Magaya with the opportunity to flush the contraband down the toilet, conceal it in a body cavity or pass it to another inmate. He also could not leave the inmates alone with Mr. Fournier while he obtained the permission of the Superintendent as this would put Mr. Fournier at risk. He did not have handcuffs readily available to him and even if he did, he did not think he had sufficient grounds to restrain Mr. Okash and Mr. Magaya while he obtained the Superintendent’s authorization.

[10] Mr. Fournier was Mr. Anttila’s support officer. He testified that he was at the “grill” of Area 5C Right observing as Mr. Anttila did a tour of the day area. He saw Mr. Anttila open cell #17 and heard him instruct Mr. Okash and Mr. Magaya to exit the cell to be searched. Mr. Fournier had a radio on his person but was not asked by Mr. Anttila to call the Superintendent to get authorization to search the inmates. Mr. Fournier stood outside the interview room during the search and could see the inmates being searched.

[11] Mr. Magaya testified that at the time of this offence, he was at the H.W.D.C. awaiting trial on a domestic assault charge. He was lodged in cell #17 with Mr. Okash. When Mr. Anttila passed by his cell, he was standing and Mr. Okash was sitting on his bunk. Mr. Magaya testified that neither he nor Mr. Okash obstructed the cell door window. He testified that Mr. Anttila passed by once, looked in the window, and left. Mr Anttila then returned, entered the cell, and told them to come out to be strip searched. Mr Anttila did not tell them why they were being searched.

[12] Mr. Magaya testified that prior to this incident, he had been subjected to random strip searches along with other inmates at the H.W.D.C. These random searches occurred approximately once per week and were conducted in a bathroom, in private. Mr. Magaya testified that on this occasion, he felt that Mr. Anttila picked on him and Mr. Okash for no reason and he felt as though he had no rights as a human being.

The law:

[13] As this was a warrantless search of Mr. Magaya, the Crown bears the onus of establishing that it was reasonable: Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] 2 S.C.R. 144. A search will be reasonable if it is authorized by law, if the law is reasonable and the search is carried out in a reasonable manner: R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 at p. 14 (S.C.C.).

[14] The Crown relies on section 23.1 of the Ministry of Correctional Services Act, R.S. O. 1990, c. M-22 and section 22(1) and (3) of the Ministry of Correctional Services Act Regulations, R.R.O., Reg. 778.

[15] Section 23.1 of the Act states as follows:

23.1. (1) The superintendent of a correctional institution may authorize a search, to be carried out in the prescribed manner, of,

(a) the correctional institution or any part of the correctional institution;

(b) the person of any inmate or other person on the premises of the correctional institution;

(c) the property of any inmate or other person on the premises of the correctional institution;

(d) any vehicle entering or on the premises of the correctional institution.

(2) Any contraband found during a search may be seized and disposed of in the prescribed manner.

(3) For the purpose of subsection (2), “contraband” means,

(a) anything that an inmate is not authorized to have,

(b) anything that an inmate is authorized to have but in a place where he or she is not authorized to have it,

(c) anything that an inmate is authorized to have but in a quantity that he or she is not authorized to have it, and

(d) anything that an inmate is authorized to have but which is being used for a purpose for which he or she is not authorized to use it.

[16] The relevant sections of the regulation are s. 22(1) and (3) and s. 24(1):

22(1) The Superintendent may authorize a search, at any time, of,

(a) the institution or any part of the institution;

(b) the person of an inmate;

(c) the property of an inmate; or

(d) any vehicle located on the premises of the institution.

22(3) An officer may conduct an immediate search without the authorization of the Superintendent where the officer has reasonable cause to believe that the inmate will destroy or dispose of contraband during the delay necessary to obtain the authorization.

24(1) Any person conducting a search during which an inmate is required to undress shall conduct the search in a place and manner such that the inmate is not subject to embarrassment or humiliation.

[17] Any discussion about whether state conduct is or is not a breach of a person’s s. 8 rights must begin with a consideration of whether, contextually, the individual had an objectively reasonable expectation of privacy in the thing that is searched or seized. The Supreme Court of Canada has held that inmates in a custodial setting have, objectively, a considerably reduced expectation of privacy.

[18] In R. v. Weatherall, 1993 CanLII 112 (SCC), [1993] 2 S.C.R.872, para.5, the Supreme Court of Canada dealt specifically with the practice of female guards patrolling and frisk searching male inmates in a federal penitentiary. Justice La Forest held that imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and subject to observation. Patrols and frisk searches are necessary in a penitentiary for the security of the institution, the public and the inmates. A substantially reduced level of privacy is present in these institutions and a prisoner cannot hold a reasonable expectation of privacy with respect to those practices. The Court did not address whether inmates have any greater expectation of privacy when it comes to strip searches.

[19] In R. v. Golden, 2001 SCC 83, [2001] S.C.J. No. 81, the Supreme Court of Canada dealt with the extent to which police may conduct a strip search as part of a search incidental to arrest. The court held that strip searches are a significant invasion of privacy and are often humiliating, degrading and traumatic experience for individuals. The Court distinguished between quick pat down searches and more intrusive searches such as strip searches or body cavity searches. It held that the more intrusive the personal search, the greater the need for justification and constitutional protection. In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. The police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest.

[20] However, in R. v. Golden, at paragraph 96 and 97, the Court specifically distinguished between strip searches immediately incidental to arrest and searches related to safety issues in a custodial setting:

[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 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: R. v. Toulouse, [1994] O.J. No. 2746 (QL) (Prov. Div.) [summarized 25 W.C.B. (2d) 475].

[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.

Analysis:

[21] The accused does not challenge the constitutional validity of the Ministry of Correctional Services Act or regulations. Mr. Magaya argues that in the circumstances of this case, the search was not authorized by the legislation as Mr. Anttila did not have the prior authorization of the Superintendent, and he lacked reasonable and probable grounds to conduct the search in the absence of such authorization. In addition, he argues that the manner in which the search was conducted was not reasonable in that it was carried out in an interview room that was potentially visible to other staff and inmates.

[22] Counsel for Mr. Magaya argues that absent a specific prior authorization from the Superintendent, Mr. Anttila’s suspicion was not sufficient as he required reasonable and probable grounds to conduct such an intrusive search. She points to s. 22(3) of the regulation which permits an officer to conduct an immediate search without the authorization of the Superintendent where the officer has reasonable cause to believe that the inmate will destroy or dispose of the contraband during the delay necessary to obtain the authorization.

[23] The Crown argues that reasonable suspicion is all that is required for correctional officers to conduct unauthorized strip searches. It argues that in the context of a correctional facility, where safety of the inmates and staff are paramount, the requirement for reasonable and probable grounds would unduly restrain correctional officers’ ability to act quickly to prevent a dangerous situation from developing further.

[24] As was noted by the Supreme Court of Canada in R. v. Chehill 2013 SCC 49, [2013] 3 S.C.R. 220, at paragraph 27, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, that an individual is involved in a crime.

[25] I am not aware and nor has counsel provided me with any case law interpreting the meaning of “reasonable cause to believe” in the context of a prison strip search. However, in the circumstances of this case, it is not necessary for me to make a determination of whether “reasonable cause to believe” should be interpreted as “reasonable grounds” or the lesser standard of “reasonable suspicion” that the inmate is in possession of contraband. I say this because of the lack of evidence presented by the Crown that is capable of establishing even the lower standard of reasonable suspicion.

[26] In R. v. Chehill, supra, Justice Karakatsanis held that reasonable suspicion must be grounded in “objectively discernible facts, which can then be subjected to independent judicial scrutiny” (para. 26).

[27] In R. v. MacKenzie, [1993] S.C.J. No. 50, the Supreme Court of Canada dealt with whether the police had reasonable suspicion to conduct a sniffer dog search of a motor vehicle during a traffic stop. The court held that the analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the shoes of the officer:

62 Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police" (Yeh, at para. 53). Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.

63 Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person "standing in the shoes of the police officer" (R. v. Tran, 2007 BCCA 491, 247 B.C.A.C. 109, at para. 12; see also R. v. Whyte, 2011 ONCA 24, 272 O.A.C. 317, at para. 31).

64 That is not to say, however, that police training and experience must be accepted uncritically by the courts. As my colleague Karakatsanis J. notes in Chehil, "hunches or intuition grounded in an officer's experience will [not] suffice", nor is deference necessarily owed to a police officer's view of the circumstances because of his or her training or experience in the field (para. 47). Reasonable suspicion, after all, is an objective standard that must stand up to independent scrutiny.

[28] In the case before me, there is insufficient evidence of objectively discernible facts that would allow this court to independently assess the reasonableness of Mr. Anttila’s suspicion. Mr. Anttila’s evidence in chief and cross-examination was that he became suspicious when he could not see into cell #17 because Mr. Okash was standing in front of the door. He testified that this was his hunch based on over 20 years of experience in the corrections industry.

[29] Mr. Anttila gave no evidence of how long Mr. Okash stood in front of the door or what he was doing as he stood there. I do not accept Mr. Anttila’s evidence that he asked Mr. Okash to stand aside but that Okash did not move. This is an important detail that was only offered in response to a clarifying question from the court and was not in his original occurrence report. He gave no details about what he said to Mr. Okash, how many times he said it, or how Mr. Okash reacted to the instruction given. Moreover, this aspect of his evidence is inconsistent with the testimony of Mr. Fournier who testified that he saw Mr. Anttila open cell #17 and heard him instruct the inmates to exit. Had I accepted Mr. Anttila’s evidence on this point, my view of the case would be different, as there would have been more “objectively discernible facts” upon which to establish reasonable suspicion.

[30] I am satisfied that Mr. Anttila had a hunch about what was going on inside cell #17, but, on the evidence before me, his hunch does not amount to reasonable suspicion. Evidence that someone stood in front of a door does not, on its own, establish a reasonable suspicion that the inmates were in possession of contraband. The Crown cannot rely on the officer’s years of experience to bolster its case. The fact that Mr. Anttila’s hunch turned out to be correct, does not make it any more reasonable. There must be a constellation of objectively discernible facts that support the officer’s suspicion and there were none in this case.

[31] As the officer did not have the Superintendent’s authority, and he lacked even a reasonable suspicion that Mr. Magaya was in possession of contraband, I find that the strip search was not authorized by law and amounted to a breach of Mr. Magaya’s rights under s. 8 of the Charter. Having come to this conclusion, it is not necessary for me to determine whether the search itself was conducted in a reasonable manner.

Section 24(2) Remedy:

[32] Having found that Mr. Magaya’s s. 8 Charter rights were breached, the court must next decide whether to exclude the evidence pursuant to s. 24(2) on the basis that its admission would bring the administration of justice into disrepute.

[33] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada established a framework for determining whether inclusion of evidence obtained in violation of the Charter will bring the administration of justice into disrepute. An application to exclude evidence entails an assessment of the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the matter on its merits.

[34] At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[35] In this case, the marijuana was seized by correctional officers as a result of an unauthorized and highly intrusive strip search based on nothing more than a hunch. In my view, this is a serious violation of Mr. Magaya’s right to be free of unwarranted intrusions on his person, even in a prison setting.

[36] The Ministry of Correctional Services Act and the Ministry of Correctional Service Regulations confer upon the Superintendent of the jail the power to authorize a search of the person of an inmate. Correctional officers do not have the same power. Their ability to search an inmate without the prior authorization of the Superintendent is limited to those situations where they have reasonable cause to believe that an inmate will destroy or dispose of the contraband during the delay necessary to obtain the required authorization. Clearly, this legislation is meant to protect inmates from unwarranted strip searches.

[37] Mr. Anttila disregarded the limits of his authority to strip search an inmate without the prior authorization of the Superintendent. I do not accept as reasonable his explanation of why he chose to not even attempt to obtain the Supervisor’s permission. Mr. Fournier testified he was in possession of a walkie-talkie radio. He and Mr. Anttila could easily have stood guard over the inmates while they communicated with the Superintendent to obtain his or her permission to conduct the strip search. I do not accept Mr. Anttila’s evidence that there was no safe opportunity to do this. Convenience and expediency cannot trump the rights of inmates. In this regard I find that Mr. Anttila’s disregard for the legislative framework within which he must perform his duties to be serious Charter-infringing conduct.

[38] The second factor to consider is the impact of the breach on the Charter-protected interests of the accused. This calls for an evaluation of the extent to which the breach actually undermined the interests protected by the Charter. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[39] Section 8 aims to protect Mr. Magaya’s personal human dignity. An infringement of that privacy is a serious matter. In this case, correctional officers conducted an unlawful strip search. Strip searches have been recognized by appellate courts to be highly intrusive and are humiliating and degrading to the individual, regardless of the manner in which they are carried out.

[40] On the other hand, Mr. Magaya had a substantially reduced expectation of privacy while in the H.W.D.C. As observed by Justice La Forest, J. in R. v Weatherall, supra, imprisonment necessarily entails surveillance, searching and scrutiny. Mr. Magaya testified that he had been subjected to random searches on approximately a weekly basis. He was upset by this search because he felt that he was unfairly singled out. In the circumstances of this case, I find that the state’s misconduct negatively impacted on Mr. Magaya’s Charter-protected rights, even though he had a reduced expectation of personal privacy.

[41] Lastly, the court must consider society’s interest in the adjudication of the matter on its merits. While the amount of marijuana seized as a result of the state’s Charter-infringing conduct is very small, the danger posed by drugs in correctional institutions cannot be overstated. The community has a strong interest in an adjudication of these cases on their merits. The evidence is presumptively reliable and essential to the Crown’s proof of the offence. This must be weighed against Mr. Magaya’s considerably lowered expectation of privacy while in custody at the H.W.D.C. On the other hand the reliability of the evidence cannot be given undue weight as this would be true of virtually all evidence obtained by unlawful strip searches.

[42] On a consideration of all of the Grant factors, I am satisfied that the admission of the evidence will bring the administration of justice into disrepute. Correctional officers hold considerable power over inmates. Courts must be vigilant to ensure that legislated safeguards meant to protect inmates are followed, or there is a real risk that such safeguards become meaningless. In the circumstances of this case, admitting the fruits of an unlawful strip search would seriously undermine those safeguards.

Conclusion:

[43] In conclusion, the evidence obtained from the strip search is excluded. As the Crown has no other evidence against Mr. Magaya, I find him not guilty.

Released: August 19, 2014

Signed: “Justice M. Speyer”