Court File and Parties

Date: June 27, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Sung Woo Im

Before: Justice Heather McArthur

Reasons for Judgment released: June 27, 2016

Counsel:

• P. Vandenbergh for the Crown
• A. Little for the Defendant

McArthur, J.

A. Introduction

[1] Almost 15 years ago, in R. v. Golden, the Supreme Court of Canada defined a strip search as "the removal of some or all of the clothing of a person to permit a visual inspection of a person's private areas …. or undergarments". Noting that strip searches are "inherently humiliating and degrading", the court held that warrantless strip searches were constitutionally permissible only in certain circumstances. When a strip search is conducted incident to a lawful arrest, it will be constitutional when conducted for the purpose of finding weapons or evidence related to the reason for the arrest, when performed in a reasonable manner and where the police have reasonable and probable grounds to believe that the search is necessary in the circumstances. In 2006, the Toronto Police Services Policy and Procedure Manual adopted the definition of a strip search set out in R. v. Golden, and provided a framework, based on the recommendations set out by the court, for ensuring that strip searches are constitutionally compliant.

[2] Despite the clear guidance from the Supreme Court, the case law reveals that in the years that followed R. v. Golden, a number of police officers in Ontario engaged in unconstitutional strip searches. (See for example, R. v. F.(S.); R. v. Agostinelli; R. v. Padda; R. v. Grenke; R. v. B.(A.); R. v. C.(N.); R. v. Ferguson; R. v. Wilson; R. v. Samuels; R. v. Loboda; R. v. Chowdhury; R. v. Hendrickson; R. v. Lee)

[3] A number of the reported cases involving unconstitutional strip searches arose from Toronto's 32 Division. (See for example, R. v. Mesh; R. v. Muthuthamby; R. v. McGee) In R. v. Melo, Pringle J. found that officers at 32 Division had improperly strip searched the defendant. She declined to stay the charges, however, since the evidence before her suggested that in the two years since the defendant's arrest in 2010, the officers at 32 Division had gained a better understanding of the law surrounding strip searches. Given that, she found it unnecessary to stay the proceedings to send a message to the officers.

[4] On May 12, 2013, less than a year after the decision in R. v. Melo, officers at 32 Division arrested the defendant, Mr. Sung Woo Im, for impaired driving. During what was purported to be a Level 2, or non-strip search, at the station, officers made Mr. Im remove his pants, thereby exposing his undergarments. Thus, by definition, the police subjected Mr. Im to a strip search. The search was conducted despite the absence of reasonable and probable grounds to believe that it was necessary to find weapons or evidence of the offence.

[5] There is no dispute that Mr. Im was driving while impaired. Both counsel also agree that the police violated Mr. Im's s. 8 right by strip searching him in the absence of reasonable and probable grounds. The parties diverge only on what they argue should be the appropriate remedy. Defence counsel submits that the charge should be stayed pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. Crown counsel counters that such a drastic remedy is unwarranted and suggests instead that a reduction in sentence would be appropriate.

[6] I have concluded that this is one of the clearest of cases where a stay of proceedings is required to preserve and protect the integrity of the justice system. Sadly, the evidence before me reveals that the unconstitutional strip search of Mr. Im was not an isolated incident; indeed, the evidence highlights troubling systemic issues relating to strip searches at 32 Division. Despite the clear direction from the Supreme Court, numerous lower court rulings and the TPS's own policy, officers at 32 Division still do not seem to understand the limits on their authority to conduct strip searches. Anything short of a stay of proceedings would amount to judicial condonation of egregious police misconduct and erode the public's confidence in the administration of justice. I propose to briefly address the relevant facts before turning to my analysis.

B. The Facts

[7] Given the legal issue to be determined, it is unnecessary to go through a detailed recitation of all of the evidence called. Suffice to say that, in the early morning hours of May 12, 2013, Mr. Im drove into a parked bus while impaired by alcohol. Officer Joao Fernandes and his partner, Officer Deborah Garbutt, investigated, arrested Mr. Im for impaired driving and took him to 32 Division. Given Mr. Im's difficulties with the English language, Officer Sang Park interpreted during the booking.

[8] Officer Fernandes testified in-chief that he conducted a Level 2 search of Mr. Im with the assistance of Officer Park. A Level 2 search is defined in the TPS Policy and Procedure Manual as a more thorough search than a pat-down, "that may include the removal of clothing which does not expose a person's undergarments or the areas of the body normally covered by undergarments" (emphasis added). A Level 3 search is defined as "a search that includes the removal of some or all of a person's clothing and a visual inspection of the body. More specifically, a Level 3 search involves the removal of clothing that fully exposes the undergarments or an area of the body normally covered by undergarments" (emphasis added). This definition is consistent with the one set out in R. v. Golden.

[9] Officer Fernandes's initial evidence regarding Mr. Im's search seemed routine and unremarkable. What emerged in cross-examination, however, was troubling. Despite referring to the search (in both his evidence and in his notebook) as a Level 2 search, Fernandes made Mr. Im remove his pants, thereby exposing his undergarments. Thus, by definition he subjected Mr. Im to a Level 3, strip search. Fernandes conducted the search without obtaining authorization from the Officer in Charge (OIC) of the station, and he failed to properly record the details of his search.

[10] Fernandes said he conducted the search in this manner out of an abundance of caution, noting that someone could have a hidden pocket, or a filed-down pant button that could be used as a weapon. He agreed that he did not have reasonable and probable grounds to believe this to be the case with Mr. Im, but said that he always had the individuals he was searching remove their pants as a matter of "standard procedure".

[11] Fernandes testified that he received his police training in 2010 and that he "hit the road" in 2011. Fernandes agreed that during his initial training he had reviewed the TPS Policy and Procedure Manual regarding Level 2 and 3 searches. Following that, however, senior officers trained him to conduct Level 2 searches by having the searched individual remove their pants. Fernandes said it was "something that senior officers teach everyone around". According to Fernandes, he has conducted at least 100 searches that he termed Level 2 searches, where he made arrested persons remove their pants, thereby exposing their undergarments.

[12] Officer Park did not dispute that he assisted Fernandes in Mr. Im's search. That said, he had no memory or note of the search. He speculated that he may have failed to make notes about the search because he was in a rush to get back to his front desk duties. Park, a more senior officer than Fernandes, agreed that according to TPS policy, a Level 2 search should not involve removing someone's pants and exposing their undergarments.

[13] Staff Sgt. Stuart King was the acting OIC of the station when Mr. Im was first brought to 32 Division. King testified that he only authorized a Level 2 search of Mr. Im. He agreed that a Level 2 search should not involve having the individual remove their pants, such that their undergarments are exposed. When asked if he had heard about this type of Level 2 search occurring, however, he responded, "it's quite possible that that's happened". He explained his comment by saying, "…if officers have a misunderstanding of what a level two search is, and quite honestly in recent times the levels of searches and what should or should [sic] be done seems to be, again, a contentious issue with officers, what should be done and what shouldn't be done…".

[14] Officer Alan Hobbins also testified. On the night of Mr. Im's arrest he was the acting OIC of 32 Division who took over from King when he went off-shift. Hobbins has been a police officer for 19 years. He spent much of his career at 32 Division. He spent approximately five years, from 2006 to 2011, training officers at the police college. He returned to 32 Division in 2011, and was there until 2014. In addition to the training he did while at the police college, Hobbins has been involved in on-the-road training of junior officers on how to conduct Level 2 and Level 3 searches.

[15] Hobbins testified that there may be some circumstances, such as when an arrested person seems uncooperative, where he might have them remove their pants. When asked if that amounted to a Level 3 search, he said "I would think you're stepping very close to doing a level three search at that point, yeah". When defence counsel confronted him with the fact that according to TPS policy, such a search would amount to a Level 3 strip search, he responded, "… I haven't read the policy…. current- recently. And it's been in a bit of a state of flux". Hobbins agreed that from the time of Mr. Im's search, up to the present day, he remained unsure if the removal of someone's pants would mean that the search was a Level 3.

[16] Mr. Im testified that he felt humiliated by the search.

[17] I turn now to my analysis of the legal issue raised.

C. Issue and Analysis: Should the charge against Mr. Im be stayed?

[18] A stay of proceedings is the most drastic remedy a criminal court can order. In light of that, the situations where a stay is granted will necessarily be limited. That said, there are rare occasions when a stay of proceedings will be warranted. Cases where a stay is appropriate will usually fall into one of two categories: 1) where the state conduct compromises the fairness of a defendant's trial; and 2) where state conduct creates no threat to trial fairness, but risks undermining the integrity of the judicial process. This has been referred to as the residual category. (R. v. O'Connor; Canada (Minister of Citizenship and Immigration) v. Tobiass)

[19] The framework for determining whether a stay is warranted is the same whether the "main" or "residual" category is invoked. There are three stages to the test. First, the court must consider whether any prejudice to the defendant's right to a fair trial or the integrity of the justice system "will be manifested, perpetuated or aggravated through the conduct of the trial of by its outcome". Second, the court must consider whether there is an alternative remedy capable of redressing the prejudice. Third, if after considering the first two questions, there is still uncertainty over whether a stay is warranted, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. (See R. v. Babos)

[20] As noted by Moldaver J., in R. v. Babos, supra, while the framework is the same for both categories, the analysis will often play out differently where the residual category is concerned. In the present case, there is no suggestion that Mr. Im's fair trial rights are implicated, rather, the submissions have focused on the residual category. Thus, my analysis of the three stages, to which I now turn, will be restricted to considerations arising when the residual category is invoked.

The First Stage: Will any prejudice to the integrity of the justice system "be manifested, perpetuated or aggravated through the conduct of the trial of by its outcome"?

[21] At the first stage of the test, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency. The court must assess whether proceeding in light of the impugned conduct would do further harm to the integrity of justice. The court must also consider whether proceeding would lend judicial condonation to the impugned conduct.

[22] In the present case, Officer Fernandes strip searched Mr. Im in the absence of reasonable and probable grounds. Fernandes did so as a matter of "standard procedure". This represents a significant violation of Mr. Im's s. 8 rights. The seriousness of the violation is compounded by the fact that, contrary to the recommendations in R. v. Golden and the TPS policy manual, the search was conducted without authorization by a supervisory officer.

[23] Further, Fernandes did not record the details of his search. Similarly, Officer Park failed to make any note about the search. The breach of Mr. Im's constitutional right was rendered more serious by the failure of the officers to keep to keep a proper record of the search. (See R. v. Golden, supra; R. v. Bookal) The manner in which Fernandes's evidence unfolded highlights the constitutional importance of proper record keeping. Neither Fernandes's notes, nor his initial evidence before me, gave any hint that he had conducted a strip search of Mr. Im. But for the diligent cross-examination of defence counsel, it would never have emerged that Fernandes had subjected Mr. Im to a Level 3 search. Fernandes has conducted at least 100 strip searches that he wrongly referred to as a Level 2 search. By improperly referring to such searches as Level 2, his actions have escaped constitutional scrutiny.

[24] Given how Officer Fernandes's evidence regarding the search unfolded before me, I am somewhat suspicious that Fernandes either knew, or had reason to believe, that he had improperly strip searched Mr. Im. Although Fernandes was asked to explain what he did by both counsel, he failed to mention anything about having Mr. Im remove his pants until pressed in cross-examination. If, as he said, Fernandes thought it was proper to have Mr. Im remove his pants, then why did he repeatedly neglect to mention that point? That said, there were times in his evidence, when he truly seemed to have difficulty understanding basic concepts. In light of that, I am unsure whether Fernandes was being deliberately evasive before me. But if he was being forthright, then his actions and testimony display a disturbing and unacceptable ignorance of the law.

[25] Further, the evidence establishes significant ongoing systemic issues at 32 Division regarding strip searches. Officer Park translated at Mr. Im's booking procedure, so he knew that only a Level 2 search had been authorized. He also knew that a Level 2 search should not involve having someone remove their pants and expose their undergarments. Yet despite being a senior officer, aware of the governing law, Park apparently took no steps to stop Fernandes from engaging in an unauthorized and unconstitutional search. Moreover, Fernandes testified he has conducted at least 100 searches that he called Level 2, where he has had searched persons remove their pants and expose their undergarments. Presumably, he had another officer with him for most, if not all, of those searches. Yet again, apparently none of these officers ever stopped Fernandes, or told him that what he was doing wrong.

[26] Fernandes reviewed the TPS policy on strip searches during his training. Despite that, once he "hit the streets", senior officers taught him to follow a procedure that is clearly constitutionally improper. While Fernandes started in 2011, the evidence suggests things have not changed since then. Officer Hobbins, who has assisted in training junior officers, is still unsure whether having someone remove their pants, thereby exposing their undergarments, amounts to a Level 3 search. Officer King said he would not be surprised if officers were making people remove their pants during Level 2 searches, because in "recent times", what is allowed in such searches has been a contentious issue with officers.

[27] As I said at the outset of these reasons, it was almost 15 years ago that the Supreme Court defined a strip search as including a situation where the removal of clothing leaves someone's undergarments exposed. The TPS policy is to the same effect. The law is clear: there should be no contention, confusion or uncertainty. In my view, proceeding in the circumstances of this case would do further harm to the integrity of the administration of justice and would lend judicial condonation to the impugned conduct.

The Second Stage: Is there an alternative remedy capable of redressing the prejudice?

[28] At the second stage of the test, where the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed toward that harm. As Moldaver J. cautioned, in R. v. Babos, supra, with cases which fall within the residual category, the goal is not to provide redress to a defendant for a past wrong. Rather, the focus must be on whether an alternative remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct.

[29] I find that there is no alternative remedy that will suffice in this case. There have been a number of instances involving improper strip searches arising from 32 Division where the court determined that a reduction in sentence would be an adequate remedy. Clearly though, such remedies were insufficient to drive home the message and to deter officers at 32 Division from engaging in blatantly unconstitutional behaviour. Given the evidence regarding the wide-ranging, systemic nature of the problem, a stay is required to provide judicial condemnation of the state misconduct and to dissociate the justice system from such improper conduct moving forward.

The Third Stage: The Balancing of Interests

[30] The third stage of the test involves a balancing of the competing interests at play. This balancing of interests is of particular importance when the residual category is invoked. (See R. v. Babos, supra; R. v. Zarinchang; R. v. S.B.)

[31] When balancing the interests, the court should consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the defendant, the charges he or she faces, and the interest in society in having the charges disposed of on the merits. As noted by Moldaver J., where the conduct is ongoing and systemic, it may be more difficult for the court to dissociate itself from it with anything less than a stay of proceedings. (R. v. Babos, supra)

[32] Mr. Im is facing a count of impaired driving. Drinking and driving is a serious offence that can have tragic effects and devastating consequences. (See R. v. Bernshaw) Moreover, Mr. Im was involved in an accident, which places the facts in this case at the more serious end of the spectrum. There is a clear public interest in a trial on the merits.

[33] On the other hand, the Charter violation here is significant. Mr. Im was subjected to a strip search in the absence of reasonable and probable grounds. The officers who dealt with Mr. Im were not authorized to conduct such a search and failed to record the details of their search. Moreover, the search of Mr. Im is symptomatic of an ongoing systemic issue. Officer Fernandes has participated in at least 100 similar unconstitutional searches. By improperly referring to these searches as Level 2, he has sheltered his actions from constitutional scrutiny. Senior officers trained Fernandes to conduct unconstitutional searches. Despite clear direction from the Supreme Court almost 15 years ago and the TPS manual, officers at 32 Division still see this as a "contentious" issue.

[34] In my view, a proper balancing of the interests leads to the conclusion that this is one of the exceptional cases where a stay of proceedings is warranted. To move forward in the face of the police misconduct in this case would be harmful to the integrity of the justice system and would amount to judicial condonation of the impugned conduct. A stay of proceedings is essential to denounce the police misconduct in Mr. Im's case and to deter the police from continuing to act in flagrant disregard of the prevailing law and their own policy regarding strip searches.

D. Conclusion

[35] The police violated Mr. Im's right pursuant to s. 8 by subjecting him to a strip search without the appropriate grounds. In light of the evidence of significant, systemic issues at 32 Division, this is one of the clearest of cases where a stay of proceedings is warranted. As a result, I am staying the charge against Mr. Im.

Date: June 27, 2016

Signed: Justice Heather McArthur