R v. Graham

Court Information

Court: Ontario Court of Justice

Citation: 2016 ONCJ 698

Date: October 24, 2016

Court File No.: Central East Region (Oshawa)

Judge: F. Javed J.

Parties

Crown: Her Majesty the Queen

Counsel for Crown: P. Greenway

Defendant: Morell Graham

Counsel for Defendant: S. Yeghoyan

Hearing Dates

March 16, September 8, 9, 14, 29, October 7, 2016

Reasons for Judgment released on October 24, 2016

A. Introduction

[1] The defendant Morell Graham is charged on an information alleging the following counts contrary to the Controlled Drugs and Substances Act:

1. Trafficking in a schedule I substance;
2. Possession of cocaine for the purpose of trafficking;
3. Possession of heroin for the purpose of trafficking;
4. Possession of hydromorphone for the purpose of trafficking;
5. Possession of cannabis marihuana for the purpose of trafficking;
6. Possession of hashish for the purpose of trafficking; and
7. Possession of hashish oil for the purpose of trafficking.

[2] He is also charged with the offence of failing to comply with probation order, namely by failing to keep the peace and be of good behaviour contrary to s.733.1(1) of the Criminal Code.

[3] In summary, it's alleged that Mr. Graham trafficked 1.6 grams of cocaine to Christopher Reynolds (count 1). As a result, he was arrested for the offence and strip searched revealing further contraband secreted in his rectum and sock (count 2). A subsequent search warrant of a premises resulted in the discovery of a safe containing a plethora of controlled substances (counts 3-7).

[4] At the conclusion of the trial, Mr. Greenway invited dismissal of count 1 on the basis that the evidence could not prove beyond a reasonable doubt that Mr. Graham trafficked cocaine to Mr. Reynolds. He also invited dismissal of count 3 as the alleged heroin did not test as such. I agree with both concessions.

[5] The primary issue in the case depends on the resolution of alleged constitutional violations surrounding the lawfulness of the arrest and the circumstances of the strip search, which the defence submits was intrusive and therefore unlawful. The secondary issue engages whether Mr. Graham was in possession of the impugned controlled substances and if so, whether it was for the purpose of trafficking.

B. The Evidence

[6] I propose to summarize the evidence before moving to the two broad issues, which I will analyze in four separate questions.

(i) The Investigation

[7] Cst. Parker of the Durham Regional Police Service (DRPS) testified that the police received information from a confidential informant that a "male black", "50 years" was selling crack cocaine, hydromorphone, percocets and dilaudids in the Durham region. The transactions would involve "mobile deals" and included him frequenting 220 Gibb St., Oshawa. Further details including another address attributed to Mr. Graham (295 Banff Ave., Oshawa), a phone number, 289-988-3888 and a license plate of a vehicle, BMEY177, were also provided. Initial checks revealed the identity of Mr. Graham and the vehicle in question as a rental vehicle, namely, a black ford explorer. The police had a mugshot photo of Mr. Graham from 2013 where he was wearing a red football jersey.

[8] On February 12, 2015, Cst. Parker briefed a team of police officers, which included: Cst. Laloo, Cst. Richer, Cst. Green, Cst. Scholtes and Cst. Baldini. The officers were given the above information as well as the photo of their target, Mr. Graham. The premises at 220 Gibb St. was located within a residential neighborhood and was described as a duplex or triplex with 2-3 floors. In cross-examination, Mr. Yeghoyan pressed the suggestion that the premises was in fact an art gallery which was not adopted by the police.

[9] The police set up surveillance at 220 Gibb St. and followed a black ford Explorer to a couple of residences in Oshawa. Cst. Parker saw Mr. Graham meet briefly with a male at Cedar Valley Rd., which he said was indicative of a drug deal. This male was not investigated. It was suggested to him that the male was one Kyle Jackson, a construction worker. He could not confirm this to be the case.

[10] Cst. Richer saw Mr. Graham pick up a woman later identified as Melissa Panas and bring her back to 220 Gibb St. He knew Ms. Panas from past investigations as being entrenched in the drug subculture as a user and "possibly" a prostitute. Neither he or Cst. Parker knew if Mr. Graham and Ms. Panas were in a relationship. In cross-examination, he stated it was possible the two were meeting for a sexual rendez-vous.

[11] On February 17, 2015, surveillance at 220 Gibb St. continued. Cst. Laloo testified that he and Cst. Richer saw the lights on at 220 Gibb St. and a male arrive in a taxi. Their view of the rear door was not obstructed as there was ambient street lighting. The male knocked on the rear door and Mr. Graham opened it to let him in. Four minutes later, this same male exited the premises. He suspected this "short meet" to be indicative of a drug deal. Later in the evening, he saw Mr. Graham exit the premises through the rear door and lock the door with a key. He entered a black ford Explorer.

[12] In the interim, the police had applied for a production order on the above number and a tracking warrant on the vehicle, both of which were denied by the authorizing Justice of the Peace. However, on March 5, 2015, the same authorizations were granted.

[13] On March 6, 2015, Cst. Parker attended at 220 Gibb St. and identified Mr. Graham as the occupant of a motor vehicle who entered the residence with a key. He was able to do so with the police photo of Mr. Graham.

[14] The investigation fell dormant until May 1, 2015, when Cst. Parker saw a white male enter 220 Gibb St. through the rear door. Approximately 22 minutes later this same male exited. A couple minutes later, a female entered the rear door and exited quickly. He described this as a "short meet" indicative of drug trafficking. The observation was made at night but he said the area was "lit well enough" for him to make his observations. He could not recall if she was carrying a "rolled piece of paper", the implicit suggestion being a piece of artwork. He was not able to identify this woman. He testified that he observed 5 "short meetings" which he said were indicative of drug trafficking.

[15] Overall, the police had seen a total of 13-16 "short meetings", which they believed were indicative of drug trafficking. An individual was investigated only on the last meeting (May 7, 2015). Moreover, on no occasion were actual drugs seen to be exchanged. Nevertheless, the quantity of "short meetings" coupled with Mr. Graham using a rental vehicle raised suspicions about drug trafficking and corroborated the information from the confidential informant.

[16] Shortly after the last meeting on May 7, 2015, the police arrested the person who they believed had exited 220 Gibb St. This person was identified as Christopher Reynolds. He had 1.6 grams of cocaine on his possession and made some utterances in relation to Mr. Graham, which are arguably hearsay. They were not relied upon in the search warrant. Cst. Parker denied knowing at the time as to whether Mr. Reynolds had an "extensive criminal history". There's no direct evidence that Mr. Reynolds purchased this cocaine from somebody within 220 Gibb St. The Crown theorizes that it was Mr. Graham who sold him the drugs, although as noted above, the prosecution is not proceeding on the trafficking count.

[17] In cross-examination, Cst. Richer noted that on the same day, he also saw a male enter and exit the home after a brief meeting but this wasn't a drug deal as he appeared to grab a box of some sort. It was suggested to him that this person was one Stuart McMahon, which he couldn't confirm. He agreed that on this day, he saw 5 people enter and exit quickly but only one person (Mr. Reynolds) was arrested. In addition, Cst. Forget agreed that a woman, Tina Barrette was also seen on this day but wasn't sure if she was known to the other members of his team as well.

(ii) The Arrest

[18] On the strength of the above observations and arrest of Mr. Reynolds, Mr. Graham was arrested after he left 220 Gibb St. He was in the company of two individuals later identified as Stuart McMahon and Katherine Henderson. Mr. Graham was driving a vehicle with Mr. McMahon as the front passenger and Ms. Henderson in the rear. The vehicle had stopped at an Esso gas station. The parties were arrested inside the gas station.

[19] During the search of Mr. Graham incident to his arrest, Cst. Scholtes testified that Mr. Graham began to pull away and tense up. He was grounded to the floor by the police, an ordeal which took 1-2 minutes. Cst. Scholtes denied that it was a "violent take down" but acknowledged that some force was used as Mr. Graham was resisting the arrest and had to be grounded near an aisle. He agreed that Mr. Graham complained of being "sore". The search revealed a small digital scale and approximately $750.00 in cash. No drugs were located.

[20] Mr. Graham was turned over to Cst. Waldman who testified that Mr. Graham complained that his back was "severed" and his leg was broken. Despite this, he saw him get into the rear of his cruiser without any apparent difficulty. The booking video shows Mr. Graham hobbling but able to walk such that I can reasonably conclude that his leg was not broken. Cst. Waldman told Acting Sgt. Lafontaine at the police station of Mr. Graham's comments with respect to his purported injuries. Mr. Graham would eventually be strip searched.

[21] Cst. Richer arrested Mr. McMahon. A search incident to his arrest did not reveal any drugs but did reveal a key, which he surmised was for 220 Gibb St. He couldn't recall if he made an utterance to him that he worked at an art gallery.

[22] Cst. Forget arrested Ms. Henderson. A search incident to her arrest revealed a crack pipe.

(iii) The Strip Search

[23] At the police station and prior to the execution of the warrant, Mr. Graham was paraded before Acting Sgt. Lafontaine. Cst. Scholtes and Cst. Marsh provided him with their grounds for arrest and requested that a "detailed" (strip) search be conducted. The defence challenges the lawfulness of this search. Cst. Scholtes testified that his grounds for the strip search were as follows: (a) Mr. Graham had a history of drug trafficking, (b) he was found with a digital scale and a large amount of currency and (c) the grounds for the arrest were gleaned through surveillance and behavior indicative of drug trafficking. In addition, the police had seen what they believed to be drug deals, which corroborated information from an informant and finally it was common practice to conceal drugs on one's person to hide it where they can't be detected, including the rectum. In cross-examination, he agreed that at the time of making the request, neither he nor the police had directly witnessed a hand to hand drug deal involving Mr. Graham or that drugs were on his possession upon his arrest. Cst. Marsh maintained that the grounds (to strip search) crystalized with the combination of the informant information coupled with the arrest of Mr. Reynolds who had a small amount of drugs on his possession after the police witnessed many "short meets".

[24] Acting Sgt. Lafontaine testified that he permitted strip searches of all three arrestees. The evidence is unclear as to when Mr. McMahon and Ms. Henderson were strip searched and where. He noted that the grounds he was provided included the above information as well as additional information that three parties had been arrested for numerous drug related offences. In addition, he was advised that Mr. Graham exhibited "subject behavior" which included him moving around in the back of the cruiser during transport. It is noteworthy that neither Cst. Waldman or Cst. Marsh were asked about this particular detail by any counsel. In cross-examination on this issue, Acting Sgt. Lafointaine testified that if the "subject behavior" was removed from the equation, it would be hard to say whether he would or would not have permitted the strip search but he considered the totality of the information given to him.

[25] After Mr. Graham was paraded, he was turned over to Special Constable Andrew Van Essen of the DRPS who was to assist with the strip search. He was escorted into a search room adjacent to the booking desk. Of note, the door was left open (a point I will return to later). Mr. Graham was permitted to remove his clothing on his own as he complained of back pain. It was explained to him why a detailed search was being done. His response wasn't noted. As he removed his socks, Cst. Scholtes said that a small "rock" of what he believed to be drugs fell onto the floor. He could not recall if it was his left or right sock. Cst. Van Essen described the item as simply cellophane and not a "rock". It was seized by Cst. Scholtes and weighed to be .15 grams of suspected crack cocaine (exhibit 1).

[26] Mr. Graham was told to remove his underwear and face the wall by placing his hands on the wall. He agreed. He was told to bend over and spread the cheeks of his buttocks. Cst. Scholtes said this was done to see if he had concealed anything in his buttocks. As he bent slightly, he observed the tail of a clear plastic item hanging from the buttocks. He explained that it was 2-3 inches in length. Cst. Van Essen said he too noticed "a bit" of cellophane and asked Mr. Graham "what do you have?" As Mr. Graham turned around to face the officers, he attempted to put his hands towards his rectum. Mr. Graham responded "he didn't have anything". Cst. Scholtes thought that he moved his hands "presumably to shove it up his rectum". He added that doing so would be dangerous for him as the suspected drugs could explode in his body and the police would lose evidence. He along with Cst. Marsh proceeded to take control of his arm, while Cst. Van Essen tried to gain control of the other arm. A struggle ensued. Acting Sgt. Lafontaine entered the search room. The police tried to keep Mr. Graham's arms to his back at which point, Mr. Graham began to resist. This resulted in him being grounded to the floor on his stomach, ostensibly, fully naked. He was ordered to relax his buttock muscles. Cst. Scholtes put on latex gloves and was able to get a hold of the plastic by wrapping his finger to the tail. He stated that after Mr. Graham relaxed his butt cheeks, the item fell out.

[27] In cross-examination, he categorically denied placing his fingers in Mr. Graham's rectum to pull the item out. He also denied that Mr. Graham was "kicking his legs". He testified "I can't apply force. I didn't want to risk an injury. If the product rips, we lose evidence". He added that doing so might push the item in the rectum so he didn't do so. Instead, he applied "steady pressure" until he relaxed and it came out. Moreover, he denied smiling or laughing about it to his peers. Cst. Van Essen and Acting Sgt. Lafontaine both testified that they didn't see how the item fell out.

[28] Cst. Marsh was also asked why he didn't take other steps to remove the evidence, such as taking Mr. Graham to a hospital or putting him in a "dry cell" while handcuffed. He explained that he didn't put Mr. Graham in a dry cell as that wouldn't guarantee the item would fall out and instead could be ingested into the body. Moreover, it would be inhumane to handcuff a detainee, naked. He didn't take him to the hospital as he knows from experience that "they won't remove it". He couldn't recall if Mr. Graham complained of any pain or discomfort. He did recall Mr. Graham screaming at the police that he didn't want it removed and that "he was being raped". The whole ordeal took 5-10 minutes.

[29] In addition to the viva voce evidence, the circumstances of the strip search are captured on the booking video, which was entered as exhibit 9. There is no audio and the video does not show the physical search but does provide somewhat of a view of the search room, which was described as 8 x 10 feet. Given the importance of the strip search to the Charter issues, I propose to summarize the video in its entirety:

• At 12:34 a.m., Mr. Graham enters the police station escorted by Cst. Marsh. He appears to be hobbling;

• At 12:31 a.m., he is turned over to Special Constable Andrew Van Essen who appears to have a brief discussion with him;

• At 12:42 a.m., Mr. Graham is seen seated on a bench in the company of Special Constable Van Essen and Cst. Marsh;

• At 12:44 a.m., he is escorted into the search room with Cst. Marsh, Cst. Scholtes and Special Constable Van Essen. The door, which does not have any windows, is closed;

• At 12:47 a.m., the door to the search room is opened from within. It appears that it was done so, indirectly, by Cst. Scholtes whose back can be seen on video. Acting Sgt. Lafontaine enters the room and is seen bending down, ostensibly to assist with restraining Mr. Graham. Remarkably, the door remains open. When asked why the door remained open, nobody could explain why. Cst. Scholtes added: "it doesn't mean anything". A short while later, another officer appears on screen immediately across the open door and doesn't bother closing it. Special Constable Tracy Lenehan, (a female) is seen on video although not in viewing sight of the interior of the search room. The parties in the search room remain in their position (restraining Mr. Graham) all while an officer and another female officer walk past the door. Again, remarkably, the door remains open. The female officer returns to the booking desk and continues with her duties but has a view of the search room. It's unclear whether she would be able to see inside. Another female officer walks across the open room. Moments later, another female officer attends at the doorway of the open search room and proceeds to have what appears to be a conversation with Acting Sgt. Lafontaine. I can reasonably infer that she would be able to view inside the room, which would have included Mr. Graham, naked. It's unclear whether he would still be on the floor on a supine position or some other position before he got dressed;

• Cst. Scholtes emerges with the drug exhibit and stands in the doorway which somehow is still open and indeed, now fully open. The officers proceed to have a casual conversation with the female officers who are present but not in the search room. The door still remains open. At another point, a female officer walks past the open door, twice. It's unclear whether she looked in the room although she clearly the opportunity to do so;

• At 1:01 a.m. (14 minutes later), Mr. Graham walks out of the search room, clothed and still appears to be hobbling;

• At 1:02 a.m., Cst. Sholtes is seen explaining to his colleagues who have assembled outside the booking desk how he was able to secure the exhibit. He makes a gesture of pulling the item out and using his hands to explain its' size. The discussion is animated. In cross-examination, he denied he was laughing about the ordeal.

[30] The search of the item from Mr. Graham's rectum revealed approximately 8.7 grams of crack cocaine packaged in three separate packages (exhibits 2, 4, 5, 6, 7). There was also .23 grams of marihuana (exhibit 3). When combined with the small amount in the sock, the total crack was 8.8 grams.

[31] Mr. Graham remained seated on the floor for a period of time and was allowed to get dressed in private and did so eventually. It appears that the door to the search room was still left open. He was subsequently lodged in the holding cells and held for a bail hearing.

(iv) The Search Warrant

[32] After the arrest of Mr. Graham, Cst. Parker authored a search warrant for 220 Gibb St. A copy of the warrant was appended to the Notice of Application for my review on the Charter issues. The warrant was approved on May 8, 2015 at approximately 4:00 a.m.

[33] A key to the premises was secured from Mr. Graham. The search was videotaped (exhibit 10). The premises had been renovated and had various rooms consistent with residential use as there was a kitchen and bedrooms. The police labelled each room that was searched. Room 2 contained some items on a desk with some packaging that the police believed was related to drug activity. Room 4 appeared to be a storage room. Room 5 was locked and had to be forced open. It was configured as an office and was on the east side of the property. The police suspected this to be Mr. Graham's room as it contained some of what they believed to be his personal effects. Among the items, was a red football jersey of the Tampa Bay Buccaneers, a team in the National Football League, hanging on the wall. The jersey was similar to that worn by Mr. Graham in his police mugshot.

[34] Cst. Richer did a more detailed search of this room. He testified that he seized, among other things, a crack pipe, a bowl and spoon with cocaine residue, barilo pads and a smoker's kit. He also located 3 digital scales on top of the desk in plain view.

[35] During the search, the police found a metal box (1.5x1), which they described as a "safe" in the floor of the closet. It was locked. It was pried open with a hammer and screwdriver. Inside, Cst. Scholtes found a number of items, which were catalogued by Cst. Green on an exhibit log (exhibit 11). They included: a $5.00 bill, a pink container with 12 pills (30 mg) in the name of Ronda Jackson, 16 pills (30 mgs) of hydromorhpone with Stuart McMahon's name on the label, two bags of marijuana (.2, .6 grams), a vial of hashish oil, alleged cocaine which was individually packaged and 32.4 grams of hasish.

[36] The parties agree that at the time, Mr. McMahon had been prescribed 1 hydromorph tablet two times daily staring on May 5, 2015 (exhibit 42). The prescription is dated April 30, 2015.

[37] The police also found other items including 5 pill bottles, one of which had the name of Stuart McMahon with a label dated April 16, 2015. On another bottle was a label made out to a "Kimberley". The last name is unknown. Among the items was Mr. Graham's health card.

[38] The suspected drugs were sent to the Centre of Forensic Sciences (CFS). The certificates of analyses and accompanying notices, confirm their status as controlled substances with the exception of the heroin, which did not test as such. (Exhibit 8) Curiously, the alleged cocaine found in the safe did not result in a charge(s) on the information. In submissions, Mr. Greenway confirmed the theory of the prosecution that count 2 relating to the cocaine involved the four packages (total 8.8 grams) found on Mr. Graham's person – not the safe. No amendment was sought with respect to the alleged heroin.

[39] Cst. Parker along with other police officers denied knowing that the premises was an art gallery, going by the name "Winter Night Studios" despite acknowledging that he saw artwork strewn about. He also denied the suggestion that Ms. Jackson was employed there. In my view, the status of the building as an art gallery (if that was the case) doesn't mean much in the larger context of this case.

(v) The Expert Evidence

[40] Det. Sgt. Craig Hudson of the DRPS was qualified as an expert in the area of sale, distribution of cocaine, hydromorphone, cannabis, hashish, hashish oil and indicators of possession for the purpose of trafficking in these substances. Mr. Yeghoyan conceded his expertise.

[41] His expert report was admitted as exhibit 40. Briefly, Det. Sgt. Hudson testified that based on a set of hypothetical circumstances similar to this case, he opined that the combination of the following factors lead to him conclude that the drugs found on Mr. Graham and the safe were for the purpose of trafficking: quantities of the drugs, the fact that they were separated and pre-packaged which in his view would be done for selling, the presence of digital scales, cell phones etc.

[42] With respect to the items found in the perception bottles, he opined that while the amount of the prescribed drug could be consistent with personal possession, their location in the safe and the circumstances in which they were found (with other drugs and not in a medicine cabinet etc.), an inference of trafficking became stronger. He did not disagree that these items also supported an inference of personal possession.

(vi) The Defence Evidence

[43] Mr. Graham did not testify on the Charter issues or the trial. I am mindful of the fact that he is not required to do so to meet his onus on the Charter issues or to raise a doubt.

[44] I also note that the defence advanced many issues through cross-examination by suggestion, many of which were not adopted. Only answers, not questions constitute evidence. Having said this, the parties agreed to blend the evidence on all issues.

[45] The defence called two witnesses. Henry Smith testified that he knew Mr. Graham for 2.5 years and worked with him as a contractor. In May 2015, he was hired to do renovations in the premises, which he was told was an art gallery. Another defence witness, Ron Recalla, testified to the same effect. As noted above, the status of the building as an art gallery doesn't mean much in this case.

[46] Mr. Smith had access to the 1st and 2nd floor of 220 Gibb St. While he had free access to these two floors, he did not have any access to room 5, which was locked. He testified that Mr. McMahon, who looked very "sick" was supervising the work at 220 Gibb St. and had a key to the premises. He knew Ms. Rhonda Jackson to be a cleaner. Mr. Graham was rarely around and he himself would not work beyond 5:00 pm.

C. The Positions of the Parties

[47] The procedural and substantive positions of the parties in the litigation are important to the resolution of the issues. First, the parties agreed that the evidence adduced on the Charter voir dire and the trial proper could be blended. Second, the defence launched a facial challenge to the search warrant arguing that there were insufficient grounds for its issuance. There was no formal application to cross-examine the affiant, but on consent, Cst. Parker, was cross-examined on both the search warrant and his role in the investigation. Third, the prosecution did not raise an issue of standing, namely that Mr. Graham lacked a reasonable expectation of privacy at 220 Gibb St.

[48] Mr. Yeghoyan applied to exclude evidence, namely "the alleged controlled substances that were seized as a result of the violations of section 7, 8 and 9 of the Charter". The Notice of Application alleges (a) the police lacked reasonable and probable grounds to arrest the defendant and (b) violated his rights under s.7/8 by conducting a strip search, namely an "anal cavity" search. He seeks a stay of proceedings under s.24(1) or alternatively, an exclusion of all the evidence under s.24(2) of the Charter.

[49] Mr. Greenway submits that there were no breaches of Mr. Graham's rights as the police had the requisite grounds to both arrest him for the trafficking offence as well as to conduct a strip search. If there were any violations of his right(s), the evidence should not be excluded under s.24(2) of the Charter, nor should a remedy under s.24(1) be granted.

[50] Finally, there is no issue that at the time, Mr. Graham was bound by a probation order requiring him to keep the peace. (Exhibit 41) Indeed, Mr. Yeghoyan submits, fairly in my view, that if a conviction on any count is entered, a conviction on count 8 would necessarily follow.

D. Analysis

[51] Given the positions of the parties, the analytical framework engages four broad questions:

1. Did the police have reasonable and probable grounds to arrest Mr. Graham for the offence of trafficking?

2. If so, were the searches conducted of him lawful? This includes (a) the search incident to arrest, (b) the strip search and (c) the search of 220 Gibb St.

3. If there was a Charter violation(s), should there be a remedy? This engages three discrete inquiries: (a) should a stay of proceedings under s.24(1) be granted, alternatively, (b) should the evidence from the strip search be excluded under s.24(2), and finally, (c) should the evidence located in the safe pursuant to the search warrant be excluded under s.24(2)?; and finally

4. If the impugned evidence is not excluded, does the admissible evidence constitute proof beyond a reasonable doubt of the offence(s)?

(i) Did the Police Have Reasonable and Probable Grounds to Arrest Mr. Graham for the Offence of Trafficking?

[52] Section 495(1)(a) of the Criminal Code permits a peace officer to arrest, without a warrant, a person

(i) who has committed an indictable offence; or

(ii) who the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.

[53] Here, it's alleged Mr. Graham trafficked crack/cocaine to Mr. Reynolds affording the police lawful authority to arrest him as he committed an indictable offence. Mr. Greenway has conceded, fairly in my view, that the overall circumstances would not constitute proof beyond a reasonable doubt that Mr. Graham trafficked drugs to Mr. Reynolds. However, contrary to Mr. Yeghoyan's submission, this concession does not mean that the police did not have reasonable grounds for an arrest. Some discussion of the principles is necessary to place the effect of this concession on the other issues in proper context.

[54] The controlling principles were nicely distilled in the case of R v. Muller, 2014 ONCA 780 (C.A.). The circumstances of Muller are quite similar thus I will liberally draw upon the analysis of Watt J.A. to assist with the resolution of this matter.

[55] In Muller, the police received information from a confidential informant that "Biggie" was involved in the sale of crack cocaine from an apartment. The police obtained a search warrant to search the premises and in the process, observed a man matching the description of the male they believed was "Biggie". They searched him (Mr. Muller) and found him to be in possession of three cell phones and some money but no drugs. They had previously seen him discard a digital scale (with suspected crack/cocaine residue). A decision was made to strip search him at the police station. A plastic bag with crack/cocaine was wedged in his buttocks and seized as evidence.

[56] At trial, Mr. Muller was convicted. The trial court did not engage in a s.24(2) analysis. On appeal he argued that the warrantless arrest was unlawful and the strip search was unreasonable and the evidence therein, should have been excluded under s.24(2) of the Charter.

[57] Watt J.A. helpfully summarized the governing principles, including section 495 of the Criminal Code. At paragraph 36 he wrote:

[36] Where the basis for the arrest falls within category [s.495] (ii) above, the arresting officer must subjectively have reasonable grounds on which to base the arrest. However, that on its own is not enough to make the arrest lawful. In addition, those grounds must be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to conclude there were indeed reasonable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, [1990] S.C.J No. 12, at p. 251 S.C.R.; R. v. Golub (1997), 34 O.R. (3d) 743, [1997] O.J. No. 3097, 117 C.C.C. (3d) 193 (C.A.), at para. 20, leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 571.

[37] Whether information provided by an informant can constitute reasonable grounds for an arrest requires consideration of the totality of the circumstances: R. v. Debot, [1986] O.J. No. 994, 30 C.C.C. (3d) 207 (C.A.), at pp. 218-19 C.C.C., affd , [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, at p. 1168 S.C.R.; R. v. Lewis (1998), 38 O.R. (3d) 540, [1998] O.J. No. 376, 122 C.C.C. (3d) 481 (C.A.), at para. 15. Where the information originates in a source outside the police, the totality of the circumstances encompasses factors relevant to either the accuracy of the specific information provided or the reliability of the informant as a source of information to the police: Lewis, at para. 16. In this case, the allegation relates to possession of drugs. It follows that the totality of the circumstances must raise a belief, on reasonable grounds, that the target had committed or was about to commit the offence of possession of drugs for the purpose of trafficking, not as Ms. Pringle asserts, that the target was at the time of the arrest in possession of drugs.

[58] In this case, the police received information from a confidential informant that implicated Mr. Graham in the trafficking of narcotics. This ultimately led to the issuance of search warrant, which I will review later on. I'm satisfied that based on the totality of the circumstances, the police had the requisite grounds to arrest Mr. Graham for trafficking. Objectively viewed, the information supplied to them by the informant was corroborated by their investigation that Mr. Graham was involved on 13-16 occasions, selling narcotics. Moreover, the informant information was corroborated by objective means which furnished them with the objective grounds to buttress their subjective belief. Indeed, one of the "short meetings" resulted in the discovery of drugs on Mr. Reynolds.

[59] I do not view Mr. Greenway's concession to not proceed on the trafficking count as somehow diluting these grounds because the focus of the inquiry is at the time the reasonable grounds crystalized, not at trial. The totality of the circumstances as viewed from the perspective of the arresting officers must be taken into account. (R. v. Wu, 2015 ONCA 667; R. v. MacKenzie, 2013 SCC 50, at paras. 62-63, per Moldaver J.) The test at this stage is credibly based probability to form grounds to arrest - not proof beyond a reasonable doubt.

[60] I am satisfied that the police had reasonable grounds to arrest Mr. Graham without a warrant. Accordingly, I do not find that his arrest resulted in a breach of s.8 of the Charter. For similar reasons, he was not arbitrarily detained, thus there was no violation of s.9 of the Charter.

(ii) Were the Searches Conducted of Mr. Graham Lawful?

[61] This issue engages three discrete searches: (a) the search at the Esso Gas station incident to his arrest, (b) the strip search and (c) the search of 220 Gibb St. pursuant to a search warrant. In many ways, each search will inform the other, especially if a search is found to be unlawful, triggering potential remedies under the Charter.

(a) The Search Incident to Arrest

[62] Mr. Graham was searched upon arrest, which revealed no drugs but $750.00 in cash and a small digital scale. Mr. Yeghoyan submits this search was unlawful. With respect, I disagree.

[63] Watt J.A. in Muller, provided the following guidance at paragraph 38:

[38] A search incident to arrest derives its authority from the lawful arrest and requires no independent justification, either at common law or under the Canadian Charter of Rights and Freedoms: Golub, at para. 31; Cloutier v. Langlois, [1990] 1 S.C.R. 158, [1990] S.C.J. No. 10, at pp. 185-86 S.C.R. Breaking this down, for a search to be justified as an incident to arrest, the arrest itself must have been lawful and the search must have been incident to the arrest, meaning the search must have related to the reasons for the arrest itself: R. v. Golden, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81, 2001 SCC 83, at paras. 91-92, 98; R. v. Caslake, [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at para. 17

[64] As noted above, the decision to arrest was not only premised on the information provided by the informant(s). The police investigation corroborated the information and the question for the police that preceded the search incident to arrest was whether the police had grounds to believe that Mr. Graham was in possession of drugs for the purpose of trafficking.

[65] In my view, the totality of the circumstances furnished the police with the requisite grounds. They had seen what they believed to be a short meet indicative of drug trafficking and the person they arrested (Mr. Reynolds) had drugs on his person. Mr. Graham had been seen at 220 Gibb St. for quite some time during the course of the surveillance and they had seen others prior to Mr. Reynolds enter and exit the premises quickly. The belief that he had trafficked drugs was reasonable. This permitted the police to not only arrest Mr. Graham for the offence but also to conduct a frisk search of him incidental to his arrest for this offence. The purpose of the frisk search was to discover evidence of the offence, namely, drugs or drug paraphernalia on his person: Muller, at para. 43, Golden, at para. 92, Golub, at para. 28, Caslake, at para. 17; Cloutier, at p.186.

[66] Moreover, I do not find that the manner of Mr. Graham's search at the gas station was unreasonable. In particular, I do not find that it was a "violent" take down. The only evidence on this issue comes from the police who testified that Mr. Graham resisted the arrest and had to be grounded. I accept this account. While the objective evidence on the booking video (exhibit 9) shows Mr. Graham hobbling to some extent, this could be from the circumstances of the arrest. It does not necessarily support his position that he was treated violently. I accept that he resisted and had to be grounded. I'm mindful that there's no onus on him to testify and the reasonableness of the search must be proven by the Crown under s.8 of the Charter. On this record, this onus has been met.

[67] Accordingly, the search incident to his arrest was not in contravention of s.8 of the Charter.

(b) The Strip Search

[68] The decision to conduct a strip search flows from the search incident to the arrest. Again, Watt J.A. in Muller guides trial judges on this issue at paragraph 54:

[54] Different types of searches raise different constitutional considerations: the more intrusive the search, the greater the degree of justification and constitutional protection appropriate: Golden, at para. 88; R. v. Simmons, [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, at p. 517 S.C.R.

[55] Section 8 of the Charter has as its purpose the protection of individuals from unjustified state intrusions on their privacy. It follows that we must have some means of preventing unjustified searches before they occur, rather than simply determining after the fact whether the search should have occurred in the first place: Golden, at para. 89; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at p. 160 S.C.R. The importance of preventing unjustified searches before they occur is especially acute for strip searches. They involve a significant and direct interference with personal privacy and can be humiliating, embarrassing and degrading for those subjected to them: Golden, at para. 89.

[56] Where a strip search is justified as an incident to arrest, the arrest itself must be lawful: Golden, at para. 91. The search must also be incident to the arrest. In other words, the search must be related to the purpose of the arrest: Caslake, at para. 17; Golden, at para. 92. In this case, the arrest was for drug trafficking, more accurately, possession of drugs for the purpose of trafficking. It is to that purpose the strip search had to relate.

[57] The reasonableness of the search for evidence, including the reasonableness of the strip search, is governed by the need to preserve evidence and prevent its disposal by the arrested person. Where arresting officers suspect the arrested person may have secreted evidence on areas of his or her body that can only be exposed by a strip search, the risk of disposal must be reasonably assessed in all the circumstances: Golden, at para. 93.

[58] The mere possibility that an individual may be concealing drugs on his or her person is not sufficient to justify a strip search of that person: Golden, at para. 94. Further, strip searches conducted as a matter of routine policy, even if executed in a reasonable manner, are not reasonable within s. 8 of the Charter. Compelling reasons, rooted in the circumstances of the arrest, are required to render a strip search reasonable, even where the execution is flawless: Golden, at para. 95. Rote application of police policy is anathema to the case-specific, fact-sensitive consideration mandated by Hunter v. Southam Inc.

[59] The fact that police have reasonable grounds to arrest a person without warrant under s. 495(1)(a) does not, on its own, clothe them with automatic authority to carry out a strip search. This is so even where the strip search qualifies as incidental to a lawful arrest: Golden, at para. 98. Something further relating to the purpose of the strip search is required. That something further is that the police must have reasonable and probable grounds for concluding a strip search is necessary in the specific circumstances of the arrest: Golden, at para. 98.

[60] The serious infringements of privacy and personal dignity that are inevitable consequences of strip searches require that, to be constitutionally valid, the strip search must be

(i) conducted as an incident to a lawful arrest;

(ii) conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest;

(iii) based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest; and

(iv) conducted in a reasonable manner. Golden, at para. 99.

[69] When an accused challenges the manner of a search, the Crown must justify the police's conduct. Relying on Muller, I'm of the view that the Crown has met their onus in proving that the strip search was justified. However, I reach a different conclusion as to the reasonableness (or the manner) of the search.

[70] Cst. Scholtes testified that Mr. Graham's search incident to arrest revealed the discovery of a weigh scale and a large sum of money but did not lead to the discovery of any drugs. In my view, the lack of any drugs does not add much to this issue because the belief that Mr. Graham was a drug dealer was a reasonable one. I accept the evidence of Cst. Scholtes that in his experience, drug traffickers often conceal evidence on their person and a strip search would be required for this reason. The risk of disposing the evidence was considered by him as he stated that drug traffickers can conceal the evidence and have the means of destroying it by secreting it in their body. Cst. Marsh took a similar view based on his experience. In arriving at this conclusion, I'm careful to not reason backwards or put differently, I have not considered the positive discovery of concealed drugs as corroborative of their evidence. My focus is at the time the decision to strip search was made. Considering the totality of the circumstances, I am satisfied that the police had reasonable grounds to be believe that a strip search was necessary.

[71] However, the same cannot be said as to the issue of whether the strip search was conducted in a reasonable manner. Watt J.A. came to a similar conclusion in Muller, disagreeing with the trial judge who had come to a contrary view. At paragraph 81, he set out the controlling principles:

81 In Golden, at para. 101, the Supreme Court of Canada concluded the guidelines for strip searches contained in the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60 (PACE), accorded with the constitutional requirements of s. 8 of the Charter. PACE lists several questions that provide a framework for police deciding how to best conduct a Charter compliant strip search incident to arrest. The PACE questions are these:

1. Can the strip search be conducted at the police station and, if not, why not?

2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?

3. Will the strip search be authorized by a police officer acting in a supervisory capacity?

4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?

5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?

6. What is the minimum of force necessary to conduct the strip search?

7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?

9. Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?

10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?

11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

[72] Muller adopts the PACE guidelines, which are binding on me. Applying the above factors to this case, I find that the Crown has not met their onus in proving that the strip search was conducted reasonably. I arrive at this conclusion for a number of reasons.

[73] First, while I accept that the police had the requisite grounds to conduct a strip search and obtained permission from Acting Sgt. Lafontaine in doing so, I have difficulty in reconciling the police evidence as to the grounds that were provided to him justifying the search. In particular, I am concerned by the evidence of the police that Acting Sgt. Lafontaine was told that Mr. Graham was exhibiting "subject behavior" (or moving around) during transport which could lead to an inference that he had concealed something on his person. Oddly, this issue, which one might surmise would be front and center in the mind of the police requesting a strip search, was never canvassed in the evidence of Cst. Scholtes or Cst. Marsh. It wasn't even raised in the evidence of Cst. Waldman who conducted the transport as he would have been in the best position to make such an observation. When this is juxtaposed with the evidence of Acting Sgt. Lafontaine who said "it would depend" on whether he would have approved the strip search if he wasn't provided the added information about "subject behavior", I am concerned that the record remains unclear on this issue.

[74] Second, the circumstances of the strip search were problematic as they did not adequately protect Mr. Graham's privacy. In particular, while male officers were involved in the execution, there is no adequate explanation as to why the door to the search room remained open for the entire 18 minutes. This was not just a momentary lapse in time, but rather the entire period Mr. Graham was in the search room, he was not afforded the privacy that he was entitled to. I have reviewed the cell block and booking video several times and it's clear that while the door may have been opened inadvertently by Cst. Scholtes, there were several opportunities to close it but it never was. There's no evidence as to any exigent circumstances that necessitated it being open. It should have been closed to afford privacy.

[75] Third, the indifference to Mr. Graham's privacy is heightened because the video depicts that on several occasions, female officers were present in the vicinity, certainly within earshot of the search but also had the opportunity to see Mr. Graham being restrained, naked on the floor. While there's no evidence that his genitalia was exposed, I can reasonably infer that whatever position he was in, either his anus or genitalia would have been exposed to some degree. At the very least, there's no evidence that any steps were taken to cover his naked body in the search room, even if, for some reason the door had to remain open. Moreover, on at least two occasions, a female officer walked past the open door.

[76] Fourth, there is no evidence that Mr. Graham was given the option of removing the item secreted in his rectum on his own. Instead, the record reveals that the police asked him what the item was, he denied having anything, moved his arms (ostensibly towards his rectum) than a struggle ensued. The police knew that he was sore due to the arrest because he complained about it before the search. No extra steps were taken to mitigate the physical discomfort. It would have been more appropriate for the police to indicate to Mr. Graham their concern about losing the evidence (despite his soreness), the possible effect of him ingesting it and then giving him the opportunity to remove it himself, failing which they might have to take other steps to remove it. None of those steps were taken and in my view were contrary to the PACE guidelines.

[77] Fifth, I have some difficulty in accepting the evidence of Cst. Scholtes that the item simply fell out of Mr. Graham's rectum when he relaxed his buttocks. According to the police evidence, Mr. Graham had to be grounded, on his stomach, which would mean that his buttocks were facing upwards when the item came out. It's difficult to conceive, logically, how an item would just fall out in his supine position, especially because it didn't fall out when he was standing and bent over. I can infer that it was wedged into his body to a point where it would require some manual force to be removed. The more logical conclusion is that some force was applied to remove it as opposed to it falling out on its own. While I accept the evidence of Cst. Scholtes that he didn't place his hands into Mr. Graham's rectum to remove the item, I cannot accept that he applied no force. Instead, I find that he held on to the item as he stated and when Mr. Graham would have eventually relaxed his butt muscles, it was pulled out manually. In my view, this is problematic because there's no evidence that at any point, Mr. Graham was told what had to be done to remove it and be given a chance to remove it himself. This despite the evidence of Cst. Marsh that the usual practice is to tell a detainee that that the item would have to be removed for safety reasons and they would be given a chance to remove it themselves. An atmosphere of mistrust, if that's what it was, doesn't legitimize this activity. Nor did the police avert to the possibility of keeping him handcuffed and taken to a hospital to have it medically removed. Simply relying on past experience that "they won't remove it" isn't responsive to the circumstances of each strip search. Moreover, there didn't appear to be any urgency as a search warrant was being prepared.

[78] Overall, applying the PACE guidelines as set out by Watt J.A. in Muller, on this record, the Crown has not met their onus to prove that the search was reasonably conducted. I find that a breach of s.8 of the Charter has been established. Given all the circumstances, I also find that Mr. Graham has met his onus in proving that his s.7 rights were violated by the strip search. Before I turn to the question of remedy, I will assess the last search, the search warrant.

(c) The Search Warrant

[79] The final search involved the premises of 220 Gibb St., which was conducted after the strip search. The warrant at issue was granted pursuant to s.11 of the CDSA on May 8, 2015 and authorized entry to search for "cocaine, debt lists, weigh scales, drug packaging, cell phones, currency and identification documents".

[80] As noted above, the parties agreed to blend the evidence on all issues, which included the Charter issues. Mr. Yeghoyan did not seek to cross-examine the affiant, Cst. Parker on the Information to Obtain (ITO) but otherwise raised a facial challenge to the warrant. Likewise, Mr. Greenway did not seek to resort to the "step six" procedure outlined by the Supreme Court of Canada in R. v. Garofoli. Accordingly, the record before the court contains the redacted ITO (exhibit 43) and the viva voce evidence of the various officers. Mr. Yeghoyan's position is that absent the unconstitutional conduct, it is "conceivable" the warrant would not have issued.

[81] While I agree with the defence that the strip search tainted the search warrant, I disagree that the warrant could not have issued. The totality of the circumstances could have supported issuance of the search warrant.

[82] The principles that animate the sufficiency of search warrants have long been established. To be reasonable under s.8 of the Charter, a search must be authorized by law. In this case, the search was authorized by a justice of the peace, thus, it is presumed valid and the onus is on Mr. Graham to show that there was not sufficient credible and reliable evidence to permit a justice to issue the warrant. In Muller, Watt J.A. directed trial courts to ask "the right question" in assessing this issue. In this case, the right question is whether the ITO sets out the grounds from which the issuing justice could reasonably conclude that cocaine (and other items in Appendix A) were present in a dwelling house at 220 Gibb St., Oshawa and that it would afford evidence that Mr. Graham had trafficked in cocaine on May 7, 2015. A negative answer to either question could result in a breach of s.8 of the Charter. The answer to the above question commands consideration of the totality of the circumstances based on the sufficiency of the ITO. The standard is one of credibly based probability and requires proof of reasonable probability or reasonable belief. It requires more than an experienced based "hunch" or "reasonable suspicion".

[83] A Charter review is not a de novo hearing. The test on review is whether the issuing justice "could' not "would" have issued the warrant on the basis of the sworn ITO before him or her. In R. v. Morelli (2010), 2010 SCC 8, 252 C.C.C. (3d) 273 at para. 40 the Supreme Court stated:

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[84] A search warrant is obtained ex parte thus the affiant must provide full, frank and fair disclosure of relevant facts. In Morelli, Fish J. made it clear that a reviewing court does not undertake its review based on the ITO, but must also exclude erroneous information and may have reference to "amplification" evidence. Recently, Forestell J. in R. v. Ferreira, [2016] O.J. No. 1472 (SCJ) observed the following which is apt here:

23 As summarized by Paccioco J. in R. v. Floyd, the relevant principles in settling the record for review are as follows.

para14 First, factual claims made in the "Information to Obtain" affidavit that are without an objective foundation of credibility should be disregarded. For this reason, bald unsupported conclusions and erroneous or false facts should notionally be excised from an "Information to Obtain" affidavit.

para15 Second, facts that should have been disclosed that weaken the significance or credibility of the grounds relied upon should also be taken into account since it is expected that during ex parte warrant applications the affiant will make full and frank disclosure of the actual state of affairs. Where this has not occurred such facts can be considered by the reviewing judge as if they had been before the reviewing judge.

para16 Third, in appropriate cases even information that could have supported the warrant but that was not put before the issuing justice by the affiant can be added during the review stage through "amplification." In particular, amplification can occur where additional information that was available to the affiant at the time the "Information to Obtain" affidavit was sworn is inserted to correct errors or inaccuracies in the "Information to Obtain" affidavit that have been made in good faith. [citations omitted]

[85] Moreover, in Garofoli at para. 56, the Supreme Court noted: "the existence of "fraud, nondisclosure, misleading evidence and new evidence are all relevant but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge."

[86] The record reveals the following material omissions:

(1) The ITO omitted the fact that prior to March 5, 2015, the police had applied for a production order and tracking warrant which was denied by the justice of the peace. It's unclear if any reasons were given for the refusal. Regardless, this would signify that the application at that time didn't meet the test of reasonable suspicion. In any event, the same authorizations were granted, albeit later on. This too was not disclosed. Regardless, it was not disclosed that the tracker or the production order yielded any evidence;

(2) The ITO omitted the fact that a search incident to Mr. Graham's arrest revealed no drugs, but did reveal, $750.00 cash and a weigh scale;

(3) While the ITO did indicate that 8.8 grams of crack/cocaine was found on Mr. Graham's person, it did not explain how this was retrieved, namely through a strip search where the item was secreted in his rectum;

(4) The ITO omitted the fact that the "buyer" (Mr. Reynolds) was found in possession of 1.6 grams of cocaine to allow the issuing Justice to determine the cogency of this information when coupled with the $750.00 on Mr. Graham's possession; and

(5) The ITO omitted that one of the two individuals arrested with Mr. Graham had a crack pipe on her possession.

[87] Finally, the affiant swore (at para. 36 of the ITO) that the 8.8 grams of cocaine seized from Mr. Graham was "wrapped in the same plastic seized from his customer earlier". This wasn't couched in language of believing it to be the same but rather, it was the same, implying that the two sources of plastic had been tested. There is nothing in the ITO or the amplified record that supports this assertion. In my view, this was misleading and should be excised.

[88] Given that the ITO also depended on informant information, the review also mandates an inquiry into this information to determine if it was compelling, credible and corroborated. See R. v. Debot (1986), 30 C.C.C. (3d) 207 (C.A.). In R. v. Greaves-Bissesarsingh, [2014] O.J. No. 3892 (SCJ) at para. 35 Justice Code explained:

It appears from Wilson J.'s reasons in Debot, and from the subsequent jurisprudence, that the term "compelling" refers to considerations that relate to the reliability of the informer's tip such as the degree of detail provided and the informer's means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term "credibility" would appear to capture considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. The term "corroboration" refers to any supporting information uncovered by the police investigation.

[89] Here, the affiant, Cst. Parker relied on information from an informant that implicated Mr. Graham in the trafficking of cocaine (para. 13, exhibit 43). The information was provided in February, 2015 and indicated that Mr. Graham was selling cocaine, hydromorphone, percocets and dilaudids. Details about his vehicle and a phone number were also provided. I propose to examine the Debot factors below.

i. Credibility of the Informant

[89] The ITO indicated that the informant is providing information for monetary consideration and understands will not be provided as such if the information is misleading or untruthful. It also states that the informant has a criminal record but no crimes of "dishonesty". Again, I was not asked to consider the redactions, thus I know little about the informant's credibility.

ii. Compelling Nature of the Information

[90] I have considered the degree of detail of the tip as well as the means of the informer's knowledge. The informant described some details including that Mr. Graham does "mobile drug transactions" which implies that he travels to meet potential customers. The informant also said that he frequents an address on the north east corner of Burk and Gibb to conduct drug transactions. In my view, this information goes beyond generic information that he was selling drugs. Here, the informant pointed to some specific means by which the drug deals are taking place. While it's not the most compelling information, it's sufficiently compelling to make it reliable.

iii. Corroboration of the Information

[91] The police corroborated some details by accessing Mr. Graham's criminal record and an occurrence report in which his phone number was secured and confirmed to be the same one provided by the informant. While this furthers the obligation to be "full, frank and fair", I'm mindful of the comments of Wilson J. in Debot at paras. 56-58, where it was stated "reputation alone would never provide reasonable grounds for a search". Having said that, "bad character" evidence does get considered with the totality of the circumstances.

[92] The police also corroborated the information through surveillance. In R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, the Supreme Court explained that while there doesn't have to be corroboration of the actual criminality alleged, corroboration must relate to material elements of what the informer told the police. There must be something more than confirmation of innocent facts, which might readily be known. Here, the ITO notes:

d. CHS advised that Morrell will conduct mobile drug transactions

e. GRAHAM frequents an address on the north east corner of Burk Street and Gibb Street, Oshawa to conduct drug transactions.

[93] The police started surveillance on February 12, 2015. The affiant swore that the police saw Mr. Graham on three occasions going to Burk and Gibb St. and met with three different individuals. No hand to hand transactions were observed. Five days later, the affiant swore that the police saw Mr. Graham at 220 Gibb St. letting in three different individuals to the premises, again for brief periods of time. On March 5, 2015, a production order and tracking warrant was authorized but there's no evidence that either was resorted to or resulted in any further evidence.

[94] The next investigative step took place on May 1, 2015, almost 8 weeks after the last surveillance at 220 Gibb St. and confirmed an innocuous detail, namely, that he was driving a rental vehicle. The police also saw 5 different people enter the rear of 220 Gibb St. for a brief period of time. Six days later, the police saw 6 people enter the rear of 220 Gibb St. and one male (Mr. Reynolds) was investigated to have 1.6 grams of cocaine.

[95] Given the totality of the circumstances, I am satisfied that there was some independent corroboration which supported the belief that Mr. Graham was meeting with individuals for short periods of time. Importantly, the surveillance was not just fleeting but persisted for over 90 days. The police saw many (13-16) "short meets" and arrested a suspected buyer. Moreover, the surveillance also established that Mr. Graham had a substantial connection to 220 Gibb St. in light of the many "short meetings" where he answered the door and on the one occasion, entered the premises with a key.

[96] Overall, when I consider the state of the amplified record, along with the excision of the strip search (Wu, at para. 38), the totality of the circumstances support the view that the warrant could have issued. See R. v. Nguyen 2011 ONCA 465, 2011 OJ No. 2787 (C.A.) at para. 57. In particular, even when the strip search is removed from the equation, the informant information alone, including the detailed tip and corroboration that Mr. Graham was involved in the sale of drugs on 13-16 occasions, was sufficient to grant the warrant. While I may have arrived at a different conclusion, that is not the test. Accordingly, the search warrant into 220 Gibb St. didn't result in a breach of s.8 of the Charter.

(iii) If There Were Charter Violation(s), Should There Be a Remedy?

[97] I now propose to address the effect of the s.8/7 breaches which was occasioned by the strip search. I will first consider Mr. Yeghoyan's submission that the charges should be stayed under s.24(1) of the Charter because it was an invasive search.

(a) Stay of Proceedings – s.24(1)

[98] A stay of proceedings is an exceptional remedy that is reserved for the clearest of cases. In R. v. Zarinchang, 2010 ONCA 286, the Court of Appeal at para. 57 stated:

(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:

a. the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

b. 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.

[99] This case engages the residual, not first category of cases. In R. v. Smith, [2010] O.J. No. 1596 (Ont. C.J.), Justice Greene considered this issue in a similar case where an accused was strip searched after the police found a small amount of cocaine on his possession. He found that the strip search was not conducted reasonably as the door was left open and the police didn't have proper grounds. Further, the police operated outside their protocols/policies and weren't acting in good faith. He stayed the charges but said he wouldn't have done so if the police had the grounds for the strip search. I find this reasoning persuasive. Here, the police had the requisite grounds for the strip search. Moreover, I do not find that the police conduct in this case was so serious that it reflected a systemic failing on part of the entire police force which could only be addressed by a prospective remedy of a stay. While clearly troubling, the conduct of the police does not rise to the level of shocking the conscience of the public. See also R. v. Mok, [2015] O.J. No. 4702 (C.A.) which discussed this issue in the context of videotaping detainees during strip searches.

[100] Finally, as a remedy of last resort, I do have other means under s.24(2) to consider whether the evidence should be excluded which militates against a stay as well. For all these reasons, Mr. Graham has not met his onus to prove that the proceedings should be stayed under s.24(1).

(b) Exclusion of Evidence – s.24(2)

[101] In order to obtain an order excluding the evidence, an accused must satisfy two requirements of s. 24(2) of the Charter:

24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[102] As the words of s. 24(2) indicate, Mr. Graham must show, on a balance of probabilities, two things: the evidence sought to be excluded was obtained in a manner that infringed a Charter right and the admission of the evidence would bring the administration of justice into disrepute.

[103] The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (SCC). Before I consider these factors, there is a threshold issue.

i. The Threshold Issue

[104] The purpose of s.24(2) is to ensure that the admission of the evidence obtained by a Charter violation will not further damage the repute of the justice system beyond what has already been caused by the breach itself. (Grant, at para. 69). In this case, I have found a breach of s.8/7 of the Charter, namely, the strip search. This engages two items of evidence found in the sock and the rectum, which collectively is count 2 on the information. I find that the drugs found in Mr. Graham's sock, which preceded the strip search, meets the 'obtained in a manner' requirement as it was part of the strip search and therefore forms part of the same transaction. I note this because count 2 pertains to a general allegation of possession for the purpose of trafficking in both items, not one. Mr. Greenway submits that I could consider each piece of evidence individually although concedes, fairly, that if I excluded the items found from the rectum, it would leave the .16 grams from the sock which would only make out possession, not the additional purpose of trafficking. I agree with this concession. However, with respect, I disagree that they should be assessed separately. The discovery of the drugs from the sock was part and parcel of the strip search and is temporally and causally connected. (See R. v. Plaha, (2004, 188 C.C.C. (3d) 289 (C.A.).)

[105] In Plaha, the court stated, at para. 45, that the connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. It must be more than tenuous. Recently, in R. v. Pino, 2016 ONCA 389, Laskin J.A. on behalf of the Court of Appeal wrote that courts can take a "generous and broad approach" to the 'obtained in a manner' requirement under s.24(2). In my view, the drugs from the sock immediately preceded the strip search and thus were connected to the more invasive search which followed. The obtained in a manner standard has been met. In R. v. Mian, 2014 SCC 54, the Supreme Court clarified that the once a court concludes that this standard has been met, the connection between the breaches and the discovery of the evidence is irrelevant to the first factor in Grant but remains relevant to the second factor.

[106] The second body of evidence, namely the fruits of the warrant at 220 Gibb St., is less clear. The question that arises is whether this too was 'obtained in a manner' that violated Mr. Graham's Charter rights – based on the strip search which preceded it. This is somewhat of a convoluted question which was not argued by the parties. I was not asked to extend the 'obtained in a manner requirement' to evidence that is secured after a Charter breach and more importantly, through valid means (the search warrant). I excised the strip search from the warrant which is the proscribed remedy. In my view, there is no s.24(2) remedy for the drugs in the safe as they were not illegally obtained. The same, however, cannot be said for the item from the sock. I now propose to apply the Grant test to both the item from the sock and Mr. Graham's rectum.

ii. Seriousness of the Charter Infringing State Conduct

[107] In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice. (See R. v. Mahmood, 2011 ONCA 693 (C.A.))

[108] In my view, the circumstances of the strip search were very serious. A strip search is a very significant violation of the right to privacy and Mr. Graham's right to be protected from an unreasonable search. It is the most invasive type of search.

[109] In Muller, a s.24(2) analysis was not undertaken and the case was sent back to the trial court for this purpose. Importantly, Watt J.A. noted at para. 83 that the search was not authorized which isn't the case here. However, he went on to note that much like this case, the search room contrary to the usual practice, was left open. Mr. Muller, much like Mr. Graham, was not given a choice to remove the item himself. Mr. Muller's state of nudity was accessible to others in the police station, which also is the case here. In addition to these circumstances, I would add that the manner of the search which involved four police officers restraining a naked adult on the floor and then removing the item from his buttocks, was a serious violation of privacy. Despite being authorized by Acting Sgt. Lafontaine, the conflict in the police evidence about Mr. Graham exhibiting "behavior" such that he was trying to conceal an item leads me to conclude more reasonably that this strip search was effected more as a matter of routine, rather than responsive to the unique issues in this case. The fact that the other two parties (Mr. McMahon and Ms. Henderson) were also strip searched seems to confirm this position. Institutional or systemic non-compliance with the requirements of the Charter do not mitigate the seriousness of the conduct. See R. v. McGuffie, 2016 ONCA 365.

[110] In R. v. Kokesch, [1990] 3 S.C.R. 3, the Supreme Court drew a distinction between reliance by police upon existing laws or jurisprudence, and situations in which the law is settled and the police knew or ought to have known that their conduct did not comply with the Charter. Here, the PACE guidelines in Golden were enunciated almost 15 years ago. If the police undertake an invasive strip search, care must be taken to follow the guidelines. Presumably, the police would have received training on these guidelines, which are 15 years old. In Mahmood, the Court noted that the failure to use lawful means to obtain evidence may indicate a blatant disregard for Charter rights and thus render the breach more serious. The same applies here. Cst. Scholtes presumed that Mr. Graham was going to try to further secrete the package in his rectum, which is problematic because he wasn't asked to remove it himself. Moreover, his insistence that he didn't use manual force to pull it out of the rectum simply doesn't make sense. The reality is the police were completely indifferent to Mr. Graham's privacy and prioritized the removal of the item forthwith. This is evidenced by the position of Cst. Scholtes who said "it didn't mean anything" when asked why the door to the search room remained open. In my view, it meant a lot to the person being strip searched and extra care should have been taken.

[111] In R. v. Poirier 2016 ONCA 582, Weiler J. on behalf of the Court of Appeal held in similar circumstances that a strip search of an accused prior to executing a bedpan vigil search where drugs were expelled from an accused's rectum demonstrated "a disregard for the appellant's privacy, dignity, health and safety". She went on to note that "in these circumstances, I do not accept that the officers were acting in good faith. The same applies here as even though the door might have been inadvertently opened, it remained open for 18 minutes. There was no urgency to the removal of the crack and Mr. Graham could have been placed in a dry cell or taken to a hospital. The evidence that "they won't remove it" demonstrates no efforts were made at all. The breaches of both s.7 and s.8 displays an indifference to the issue which was problematic.

[112] While the drugs from the sock did not emanate from the search, it was part of the decision to conduct a strip search. As noted by the Supreme Court in R. v. Wittwer, 2008 SCC 33 (SCC) at para. 26 "to hold otherwise is to invite the perception that the police are legally entitled to reap the benefit of their own infringements of a suspect's constitutional rights".

iii. The Impact of the Breach

[113] Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. There is a spectrum of conduct from fleeting or technical to profoundly intrusive. In Grant at para. 78, the Court stated that an unreasonable search that intrudes on an area in which an individual enjoys a high expectation of privacy or that demeans his or her dignity is more serious than one that does not. See also Mahmood, at para. 123.

[114] This was not a technical or fleeting breach of Mr. Graham's right to be free from an unreasonable search. The manner in which the strip search was conducted demeaned his dignity. While the police obtained permission to conduct the strip search, not enough care was taken to make sure it was done with the utmost of privacy. The door remained open, inexplicably, for 18 minutes with female officers walking around. While I don't find that Mr. Graham was seriously injured before he was strip searched, the irrefutable evidence is that he was at least hobbling, impacted by the take down arrest. This would have been another reason to perhaps exercise greater care and turn him over to a medical professional to remove the drugs. This wasn't done. The strip search was profoundly intrusive and nobody seemed to care about Mr. Graham's privacy. In McGuffie, the Court of Appeal said the following, which is also apt here:

82 The significant negative impact of the unconstitutional strip search on the appellant's privacy rights is obvious. The police misconduct was highly intrusive and struck at the core of even the most restrictive notion of personal privacy.

iv. Society's Interest in a Trial on the Merits

[115] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. In McGuffie, at paras. 62-64, the Court of Appeal indicated that practically, this branch becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence.

[116] In the circumstances of this case, this branch is less important as the first two factors pull toward exclusion. While the impact on Mr. Graham's privacy rights was less with the item found from the sock, when I consider the marginal amount (.15 grams), the concession that it would only be enough for possession, I find that it was not so serious that on balance it should be excluded. The same analysis applies for the crack from the rectum, despite being 8.8 grams. While the reliability of the evidence favours admission, the seriousness of the strip search and its' impact on Mr. Graham's s.8 rights favors exclusion of the evidence.

v. Balancing

[117] This part of the analysis should focus on the "long-term, prospective and societal" effect of the violation(s). It should be looked at from an objective point of view and ask "whether a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute". (Grant, at paras. 68-70). On this record, I have no difficulty in concluding that the drugs removed from Mr. Graham's rectum as well as his sock which preceded the strip search should be excluded. The long-term message needs to be sent that strip searches must be conducted with the utmost of care, mindful of the legal guidelines and attentive to one's privacy. A reasonable person would demand no less.

[118] For clarity, I should add that my conclusion with respect to the exclusion of evidence is limited to the record that was placed before the Court. My decision does not mean that in all cases the removal of drugs from one's rectum will result in exclusion of evidence. The Grant analysis is contextual and fact based and responsive to the issues in the litigation.

(iv) Have the Offence(s) Been Proven Beyond a Reasonable Doubt?

[119] This leaves consideration of the items found in the safe at 220 Gibb St. including the hydromorphone, cannabis, hashish and hashish oil. Mr. Greenway's position is that Mr. Graham was in personal and/or constructive possession of these items. Mr. Yeghoyan submits that there is no evidence of possession.

(a) The Legal Principles

[120] Possession can be proven to be personal, joint or constructive. Personal possession requires proof that Mr. Graham had physical custody of the object, knowing what it was and that he intended to exercise control over it. Knowledge is proven through direct evidence or more often indirectly through inferences. Some of the factors that courts can look to include whether the item was in plain view or not. If the item is hidden, it would be proper to consider the relationship of the item to the area where it was hidden. Other considerations include whether the accused had access to the area and the type of access etc.

[121] In Morelli, the Supreme Court of Canada described constructive possession at paras. 16-17:

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person" ... Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [Emphasis omitted.]

[122] Passive acquiescence, indifference to the existence of the item or proven lawful possession is not sufficient to ground a conviction. (R. v. Spooner, [1954] B.C.J. No. 94 (BCCA.)) Control means some measure of control, which can be inferred from knowledge and opportunity. Again, courts will look to ones' connection to the premises (if any) and whether the accused had the ability to withhold or grant consent to the presence of the item located. See R. v. Terrence, (1983), 4 CCC (3d) 193 (SCC); R. v. Beaver, (1957), 118 CCC 129 (SCC).

(b) Has Possession Been Proven?

[123] I am satisfied that viewed as a whole, personal and constructive possession of the marihuana, hashish and vial of hash oil has been made out. While there is some evidence that the premises may have also been used as an art gallery, the police surveillance confirmed that Mr. Graham had liberal access to the premises and in any event, the location of the items in bedroom 5, along with his personal effects, imputes knowledge to him. While there is no evidence that he had a key to the locked safe, his personal effects including his health card were found among the drugs. I can reasonably infer from this that he had control over the items, even if he was sharing the items with others who had access to the premises, including Mr. McMahon and Ms. Jackson. The bedroom and safe were locked which implies that Mr. Graham was consciously attempting to limit access to others. This invariably means that he intended to assert some control over them and did so. The fact that there were other items not attributed to him, including the pill bottles were also found in the safe doesn't detract from him being in possession of the items.

[124] The same cannot be said for the hydromorphone pills. The police found 16 hyrdromorphone pills in a prescription bottle for Mr. McMahon. I can't be satisfied that Mr. Graham possessed them for an unlawful purpose. Exhibit 42 confirms that Mr. McMahon had been prescribed the pills on May 5, 2015, simply two days before the execution of the warrant. The clear inference is that he (Mr. McMahon) was in lawful possession of them. There is other circumstantial evidence that supports the position that the safe was being shared by many people, not just Mr. Graham. The police located a prescription bottle in the name of Ronda King-Jackson (exhibit 27) which had a label dated February 13, 2015, which is not far from May 7, 2015 when the warrant was executed. This implies that she too had lawful possession of an item. Merely storing drugs that one is lawfully entitled to possess can't ground a conviction.

(c) Has for the Purpose of Trafficking Been Proven?

[125] While the record proves that Mr. Graham was in constructive possession of the items, the information also alleges that his purpose in doing so was for the purpose of trafficking in them. Mr. Greenway points to the expert as well as circumstantial evidence to ground a conviction. Viewed as a whole, I find that the inference of trafficking is not the only rational inference that is available. Indeed, the stronger inference is that the possessed items were being used for personal possession.

[126] The police found 1 vial of hash oil and 32.4 grams of cannabis resin (hashish) in two plastic packages. Despite these items being found among other items which might be related to trafficking, that inference is weakened as the evidence supports the conclusion that Mr. Graham was sharing the safe with others (Mr. McMahon and Ms. Jackson) and all appeared to be drug addicts as opposed to just traffickers. The presence of items such as a cooking spoon, steel wool, barilo pads etc. seems to support this position. The amount of hashish (32.4 grams) and the manner in which it was packaged, seems to suggest that it was being possessed for personal possession. Moreover, the informant information that Mr. Graham was trafficking in narcotics, did not relate to trafficking in hashish. It was limited to cocaine. I can't be satisfied beyond a reasonable doubt that the inference of trafficking has been made out.

[127] Accordingly, I'm satisfied that the evidence proves beyond a reasonable doubt that Mr. Graham was in personal and/or constructive possession of the marihuana, hashish and vial of hash oil. There is a strong inference that the safe was jointly controlled by Mr. Graham and Mr. McMahon but possession of the hydromorphone was lawful.

E. Conclusion

[128] For the foregoing reasons, there is insufficient evidence to ground a conviction on counts 2 and 4. They will be dismissed. Mr. Greenway has invited dismissal of counts 1 and 3. They too will be dismissed.

[129] Moreover, the evidence doesn't prove beyond a reasonable doubt that Mr. Graham possessed the cannabis, hash and hashish oil for the purpose of trafficking. Instead, it does prove the included offence of simple possession. He will be convicted of the included offences of possession of marihuana (count 5), possession of hashish (count 6) and possession of hashish oil (count 7).

[130] Given Mr. Yeghoyan's concession on the fail to comply count, there will also be a conviction of failing to comply with his probation order (count 8).

Released: October 24, 2016

F. Javed J.