Court File and Parties

Court File No.: Central East – Newmarket – 14-03558

Date: 2016-03-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Brittany Dunwell

Before: Justice P.N. Bourque

Reasons for Judgment

Released on March 7, 2016

Counsel:

J. Lee/D. Moull for the Crown

J. Dos Santos for the accused

Decision

BOURQUE J.:

Overview

[1] The defence admits that the defendant was in care and control of a motor vehicle on May 4, 2014 and was impaired and had a blood alcohol reading of 160 milligrams of alcohol in 100 millilitres of blood. The defence alleges that she was subsequently "strip searched" at the police detachment and this so offended her section 9 rights that I should stay all charges against her under section 24(1) of the Charter.

[2] The defendant was in her car stopped in the right hand lane of traffic. A civilian reported the matter and Constable Cummins attended. He parked behind her Honda Civic which had the lights on and the right signal was on. He went up to the vehicle and the defendant was alone in the car and was slumped over the wheel. He tried to arouse her by knocking at the driver's side window but was unsuccessful. He walked around the vehicle checking the doors but they were all locked. He went back to the driver's side and she aroused and revved the engine and the officer thought she was going to drive away and he put his hand on his baton and would have struck out a rear window to stop her but she then unlocked the car door and the officer opened it.

[3] The car smelled of alcohol and vomit which was on the floor and seat and perhaps on her clothing. He noted she was very lethargic and had very red eyes. He called for a female police officer as he was going to arrest her. He asked her out of the cruiser and she walked to the back of the cruiser and he noted she walked in hesitating steps.

[4] He took her to his cruiser and did a cursory pat down search but not a complete one as no female officer had arrived. He placed her in the cruiser and read her rights to counsel and breath demand. He then took her to the station where she was paraded before the duty sergeant, searched by two female police officers and then put in the cells.

[5] The detachment video was shown to the officer and marked as Exhibit Number 3. It shows the defendant being taken into the booking room and she sits on a bench. She appears to be swaying forwards and backwards as she is sitting on the bench. She is wearing a blue one piece pant and top garment with a white open coat on top. The two female officers begin a search and the top white coat is taken off. It is clear from the video that as she is moved into various positions by the officers as she is having some difficulty with the top portion of her clothing. She is seen adjusting it on several occasions. From the video her breasts are always covered by a combination of her pant suit and the coat. The officers remove her white coat and never return it to her.

[6] The two female officers then lead the defendant into a cell which is some 10 feet up the hall from the booking area. At one point, one officer can be seen leaving that cell and carrying a blue piece of clothing and returns with a white coverall.

[7] The cell has the door open but the video image captures nothing inside and no officers walk by the door while this is going inside. However, if anyone else walked by, they could have seen inside the room, and perhaps whatever the state of undress that the defendant was in.

Testimony of Brittany Dunwell

[8] She testified on the Charter application. She is 26 years of age and is now a registered nurse and works at the Osler Health Care Centre. She admits that she had been to a party at a club and that she drank to excess. She states that on her way home, she began to feel ill and pulled over to vomit. She states she opened the door and vomited out the door but some vomit was on the seat and some on the bottom of her pant leg.

[9] She does not recall much of the roadside interaction with the police officer and admits that it could have transpired as the police officer stated. She recalls being cold and being very sleepy in the back of the police cruiser.

[10] She was shown the booking room video. She states that she was wearing a blue single piece pantsuit with a white jacket with blue sleeves over top. She had some jewellery on including earrings, an ankle bracelet and a belly button ring. She stated that while at the station, her arms were behind her back, she felt her top being uncomfortable and showing cleavage, but did not think that her nipples were exposed (the video exhibit does not show her nipples being exposed). She states that the officers took off her jacket and she took off a necklace, her earrings and an ankle bracelet. She was then taken by the two female officers into a cell. The door was ajar at all times.

[11] She states that when inside the cell, she was told to take off her pantsuit, and she did so. She was not wearing a bra and her entire breasts and back were exposed. She stated that the only clothing she was left wearing was a "thong". The only part of her that was not exposed was her vaginal area.

[12] She states that one of the officers took her jumpsuit and returned some moments later with a white overall which she was told to put on. She was then taken to the breath room and the investigation continued.

[13] In cross-examination, the Crown skillfully led her through the evening including her degree of inebriation and the fact that her memory was not clear on a lot of the events that evening. The witness agreed with the Crown on these issues. The crown cross-examined on the details of her clothing including the fact that her blue jumpsuit had a belt. The defendant agreed there was a belt but insisted that the belt was sewn into the jumpsuit and could not be taken off the garment. The Crown put to her that the officers did not tell her to remove her jumpsuit but only to take off her belly ring, and she pulled her suit down to her waist for this purpose. She denied that and insisted that her suit was taken off and indeed the officers would have had to help her undo the back of the jumpsuit to get it completely off. The witness also stated that she got up later in the morning to go to the bathroom and realized she was naked underneath the jumpsuit.

[14] Several things were suggested by the Crown in reviewing the video and I will review them based on my own review of the video in chambers.

[15] The Crown suggested that when the officer came out of the "search room" with a blue piece of cloth, she was holding only a belt and not the entire jumpsuit.

[16] On my review of the video, looking at the bottom right screen and the top right screen at approx 05:12:13, the officer can be seen with a blue cloth in her hand. It does not appear to be a great deal of cloth, and unless it is very much folded up, it would be hard to say that it is anything more than a belt. At 05:12:13:120 in the bottom right screen, it looks like a folded belt.

[17] There is a point on the top right screen where the officer is putting the cloth onto the desk. At 05:12:20:251, the material is almost completely obscured by her hand. It is then laid upon the desk and while it is possible that there is more material than a belt but is folded up, it could still just be the belt.

[18] At 05:15:12 on the top right video, the duty sergeant is seen to move the blue material from off of the white jacket. At this point of the movement, the material looks to be a small amount.

[19] The Crown suggested that when the defendant is seen coming out of the "search room", there can be seen between the bottom of the coveralls and her feet, some blue material.

[20] I have reviewed the video and I cannot see any such material. It would appear however that her sandals are on her feet at 15:17:03 on bottom right video and 05:17:11 on the top left booking room video. I cannot see in any way through the coveralls and cannot tell what if anything she may be wearing underneath the coveralls.

[21] With regard to the issue of what was left with the duty sergeant, I am sure that in the normal course, the sergeant would have made some sort of written inventory of the defendant's belongings. That was never produced. In my final assessment, the video evidence is inconclusive as to whether the entire pant suit was taken or just a belt.

[22] However, there is the mere fact that the defendant has been placed in coveralls at all. Why is it necessary if she has the clothes that she came to the police station in. If they did not take them away, why the need to put her in coveralls? Such a question supports the defendant's evidence that her clothes were taken from her, save her underwear. While the video does not seem to indicate that the officer took a jumpsuit out of the room, it does not conclusively show that they did not take it off. It could have been taken out and put with her things at another time. With regard to the evidence of the "strip search", I am on balance inclined to believe the defendant. Her evidence was not significantly shaken, even by skillful cross-examination. To be relieved of your clothing in such a situation is something that you would not forget.

Testimony of Lisa Moskovitz

[23] She is a woman York Regional Police officer and was asked to attend to assist in the search of this defendant. She stated that the defendant was very inebriated and that the nature of her clothing, the fact that she was handcuffed from behind and the fact she was inebriated led to a situation where her clothing was on some occasions coming down and exposing one of her breasts (As I have noted, above, the video at the station does not support that contention.).

[24] She decided to perform the search of her in the duty counsel telephone room where there would be more privacy for the defendant. She asserted that she was at all times trying to preserve the dignity of the defendant. She does not recall doing a pat down search but believes that officer Betina Fong did it. She does not recall how the existence of a belly ring was ascertained. She does not remember seeing how the defendant removed the ring and specifically does not remember her pulling down the top part of her clothing and exposing her breasts in order to get at the ring. She agreed with defence counsel that based on the clothing she was wearing, the defendant would have had to have pulled down her top and her breasts would have been exposed. She stated that her pantsuit was not removed from her and it was only her belt that was removed. She states that after the search, she obtained a white (paper) coverall for the defendant to wear as this would be more dignified for her.

[25] She believed that when the defendant attended the station, she had a jacket (white with black sleeves) which could have covered her top but she did not remember if it could be zipped up. She did not take the coat from her but believed it had been done on instructions from the duty sergeant and it was not returned to her for some "security" reasons. She could not, in my opinion, (nor could officer Fong) give any satisfactory explanation why this jacket, which was clearly part of her outfit that evening, would pose some sort of issue of danger to herself or to any other person at the police station.

Testimony of Benita Fong

[26] She is a York Regional Police officer and along with Officer Moskovitz, performed the search upon the defendant. She believed that the defendant's breasts were exposed on two occasions (during the time of the video at the station), but she could not point out these incidents in her testimony and her view of the video. She states that she did a pat down search of the defendant in the duty counsel room. She stated that she felt the "belly button ring" and told the defendant to remove it and all other jewellery. She does not remember any issues with taking off any belt.

[27] She stated that at all times when the defendant pulled down her top to remove the ring that the defendant was facing the wall and other than her bare back, she did not view her breasts. She stated that they got the "bunny suit" for the defendant as this would assist with her dignity.

[28] Both the officers stated that for security reasons that they had to be present in the room when the defendant lowered her clothing for security reasons, and one officer said that they always had to keep their eyes on her. When it was pointed out to Officer Fong that the defendant would have been allowed her privacy to go to the bathroom, she seemed to believe that lowering her top and exposing her breasts was not such an affront to her privacy that they should let her do that in private.

[29] Very little of the officers' actions in the room when they could not be seen by the video was contained in their notes. I do not fault them for that, as this was something of a routine matter for them. However, when it comes to assessing how the search was conducted, especially the amount of clothing removed and whether the defendant was facing the wall, I cannot and do not give their evidence any greater credence than that of the defendant.

[30] Neither of the officers were of the opinion that this was a "strip search".

Analysis

[31] The law on the common right for the police to strip search an arrested person is set out in R. v. Golden. The law was further summarized by Fuerst J. in R. v. Lee.

[32] The court defined a "strip search" as "the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments". The court went on to say that all strip searches are inherently humiliating and degrading for detainees regardless of the manner in which they are carried out. Strip searches cannot be carried out simply as a matter of routine police department policy applicable to all arrests. It must be conducted only as a power to search incident to "lawful arrest" in two situations; one, where it is conducted to discover evidence related to the reason for the arrest itself, and two, for the purpose of discovering weapons in the arrestee's possession if a frisk or pat-down search reveals a possible weapon secreted on the arrestee's person, or the circumstances of the case raise the risk that a weapon is concealed on the arrestee's person. The police must have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. Finally, the search must be conducted in a manner that does not infringe section 8 of the Charter.

[33] Specifically, the court held that strip searches while in temporary police detention are not subject to the same justification for a strip search when a person is entering a general prison population (i.e., a jail).

[34] In this case, while there is a dispute in the evidence of the extent of the strip search, there can be no doubt that the defendant was strip searched. Her breasts were exposed at the minimum and her buttocks were exposed on the strength of her evidence, which I am inclined to believe.

[35] [Paragraph 35 is blank in the original]

[36] The issue here is whether the police have lead evidence to satisfy me that such a search was justified under the law as set out above.

[37] I am initially concerned that the police would not return her jacket to her after they had satisfied themselves that it did not contain any dangerous elements. They stated that it was up to the sergeant to decide this. The sergeant did not testify. Both officers who did the search thought that it was not a matter of policy to take a jacket away. I was not told of any such policy. This I believe is important as it became the justification to ultimately dress up the defendant in a "bunny suit", which was itself a humiliating exercise, over and above any issues of the "strip search".

[38] Both officers thought that the provision of the "bunny suit" was somehow assisting the defendant. Returning her jacket to her so she could proceed with the rest of the police investigation in her own choice of (not inappropriate) clothing would have "assisted" the defendant in the preservation of her dignity. As I have already pointed out, the "bunny suit" was in my opinion a further affront to her dignity.

[39] I was not given any real evidence as to why it was necessary to take this "belly ring" from the defendant. As the officers described it, virtually any and all items of personal clothing could potentially be a weapon of some sort. While earrings dangling below someone's ears could become easily detached or could be caught on some object and cause injury, it is hard to see how a ring could be any real danger to a person sitting in a cell for a few hours, by themselves and under constant video surveillance.

[40] While the removal of such an object may be justifiable, I had no reliable evidence upon which I could find that it was necessary to go to the extent of making this woman expose her breasts in furtherance of this goal. Like the policy to remove an underwire bra (R. v. Lee above), such a policy applied "without exception" to any female detainee with jewellery on her body is not a case-specific circumstance. Rather (as stated in R. v. Lee) "it is a basis for routine strip searches of female detainees, in contravention of section 8 of the Charter.

[41] As I review this matter, the following circumstances must be taken into account:

(a) the defendant was arrested for impaired driving;

(b) the defendant would only spend a few hours at the police station and there was no circumstances present which would lead anyone to detain her for a bail hearing;

(c) she would be monitored by video camera while she was in the cells, and on camera wherever she was in the station;

(d) she was in a cell by herself at all times;

(e) she was severely impaired;

(f) there was no sign that she was upset;

(g) she was cooperative and compliant at all times with the officer's directions and orders;

(h) she made no threats and was not physically aggressive to any officers;

(i) she did not have a criminal record and no officer had any information that she had any mental health issues.

[42] In coming to my decision on this matter, it does not make any difference as to whether her pant suit was entirely removed or whether she had to lower her top in the presence of the two officers and expose her breasts for a short period of time. Both constitute a "strip search" and both are humiliating and degrading, the only difference being the degree of humiliation. In my opinion, the total circumstances, even if I only accept the officer's evidence, were humiliating and degrading enough. Having said that, I do not disbelieve the defendant's version of events.

[43] Based on all of the above it is my opinion that the police have not established on a balance of probabilities that this was a reasonable search. I therefore conclude that in performing this search in the fashion that they did, the section 8 rights of the defendant were breached.

Should this infringement result in a stay of proceedings?

[44] In Lee, Justice Fuerst did not perform an analysis but sent the matter back for a re-trial.

[45] In R. v. Samuels, Justice Nakatsuru was of the opinion that a strip search of a male defendant in a drink and drive arrest was such that the strict test in R. v. O'Connor would be met. That is, is this the clearest of cases where such a remedy would be appropriate where "irreparable prejudice would be caused to the integrity of the judicial system if the prosecution continued. It is a drastic remedy and has typically been seen as a remedy of last resort". (I note that this is not a case where the breach would affect the fairness of the trial).

[46] In R. v. D'Andrade, Justice Bovard also found that a strip search of a woman at the side of the road during a drinking and driving investigation was a breach of her section 8 Charter rights. In that case, the remedy was an exclusion of the breath readings and since over 80 was the only charge, it brought an end to the prosecution.

[47] Other cases have held that it is appropriate to apply a lesser remedy such as an exclusion of evidence (i.e., the breath readings) but in this case, if that was done, the impaired charge would continue and no practical remedy would be available to the defendant: see R. v. Flintoff. A lower penalty would in this case also not afford a practical remedy, as there being a statutory minimum the penalty options are very narrow. Golden also points out the futility of a remedy by means of a civil lawsuit (at para 67).

[48] I am concerned that police forces put vague concepts of police safety before the human dignity of people they have in detention. While police safety can clearly (in the appropriate case) trump the dignity of a detainee, I do not see how that was the case here. I am concerned that there was no thought given to this. If the removal of the belly ring was that important, surely the defendant could have been allowed to do it in privacy of that room, or a washroom. I also note that if she had been allowed to keep her jacket, she could have lowered her top without exposing herself.

[49] I am of course aware that drinking and driving offences are serious and while there was no accident in this case, it may only because the defendant was taken out of her motor vehicle. However this is far from the worst criminal offence committed by the worst offender.

[50] After reviewing these various factors, I am of the opinion that this is one of the clearest of cases calling for a stay.

Signed: "Justice P.N. Bourque"

Released: March 7, 2016