Court File and Parties

Ontario Court of Justice

Date: November 1, 2016

Court File No.: Sudbury 998-16

Between:

Her Majesty the Queen

— and —

Marco Brillant

Before: Justice Randall W. Lalande

Heard on: September 12 and October 3, 2016

Ruling on Charter Application released on: November 1, 2016

Counsel:

• Denys Bradley, for the Crown
• Denis Michel, for the defendant Marco Brillant

LALANDE J.:

1: INTRODUCTION

[1] Marco Brillant entered a plea of not guilty to a single count information alleging that on May 26, 2016 he was in possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act ("CDSA").

[2] Mr. Brillant was arrested by Constable Darrell Rivers in the open parking lot of the Overtime Bar and Grill located at 941 Notre Dame Avenue, in the City of Greater Sudbury. He was searched by Constable Rivers incident to arrest. A cell phone and cash were found in his possession.

[3] Detective Constable Douglas McNaught arrived at the scene of the arrest upon Mr. Brillant being arrested by Constable Rivers. He arrived at 5:46 p.m. He conducted a second search prior to Mr. Brillant being transported, in custody, to the police station (downtown Sudbury). He located two plastic baggies inside Mr. Brillant's underwear, one on each side of Mr. Brillant's groin area.

[4] Defence counsel, Mr. Michel, brings an application under the Canadian Charter of Rights and Freedoms ("the Charter") asking for an order excluding evidence on the basis of an unreasonable search and seizure. He argues that the search was conducted in violation of Mr. Brillant's section 8 Charter right.

[5] The grounds advanced in support of the Charter application are as follows:

1. That the strip search was intrusive, excessive, unwarranted, assaultive and carried out in a public area;

2. The accused's dignity and integrity and security of his person were violated;

3. That no warrant was obtained to strip search the accused in public; and

4. Such further and other grounds as counsel may advise and the Court permit.

[6] The Crown states that police had reasonable grounds to arrest Mr. Brillant and were entitled to search him incident to arrest to ensure officer safety and to gather and preserve evidence.

2: OVERVIEW

2:1 Reasonable and Probable Grounds

[7] Staff Sergeant Alan Asunmaa is a senior officer with over 30 years' experience. He has an extensive history in dealing with drug cases and confidential informants. This investigation unfolded further to several calls received by Officer Asunmaa. The calls were made by three separate confidential informants ("CI"). On May 11, 2016 he met with CI #1. He met CI #2 on May 26, 2016. He also spoke with CI #3 (over the phone) on May 26, 2016.

[8] All three CIs were known to Officer Asunmaa and had given reliable information in the past upon which police action was taken. According to Officer Asunmaa all three CIs were familiar with packaging, pricing and distribution of controlled substances. Police had never found their information to have been false or misleading. None of the three CIs had a criminal conviction for perjury, fraud or obstruct justice.

[9] The following is a brief summary of Officer Asunmaa's evidence relative to information from each CI from which he formed reasonable and probable grounds to arrest Mr. Brillant:

CI #1

Told Officer Asunmaa that Mr. Brillant was out of jail and back in "full swing" and dealing in large amounts of cocaine. The CI said that Mr. Brillant was frequently at the Overtime Bar and Grill and at another establishment referred to as Rhythm and Cues.

CI #2

Likewise told Officer Asunmaa that Mr. Brillant (age 40) was dealing in large quantities of cocaine. CI #2 said that Mr. Brillant was being driven around by a male and hanging around the Overtime Bar and Grill and Rhythm and Cues.

CI #3

Said Mr. Brillant (age 40 approx.) was wearing a white shirt, blue jeans and was in possession of cocaine. He was being driven around by an unknown male in a silver-grey BMW and frequenting establishments identified as the Overtime Bar and Grill and Rhythm and Cues.

[10] Officer Asunmaa said he met with Detective Constable Pagnutti and Constable Gelinas at 16:35 hours on May 26, 2016 and apprised them of the information he had received from the CIs including that Mr. Brillant was in possession of cocaine and that he would be in the area of one of the two above-named locations. He further advised the officers that Mr. Brillant was being driven around in a silver BMW vehicle. He also testified that he has known Mr. Brillant for about 20 years and had on occasions in the past arrested him.

[11] He stated that in his view he had reasonable and probable grounds to arrest or have Mr. Brillant arrested. Detective Constable William Pagnutti testified that after speaking with Officer Asunmaa, he determined that he had reasonable and probable grounds to arrest Mr. Brillant. Officer Asunmaa also indicated that he knew about some of Mr. Brillant's criminal history and had also arrested him in the past.

[12] Officer Asunmaa testified that further to speaking with Officer Asunmaa he set up surveillance at or near the location of the Overtime Bar and Grill. Observations within a short time were made consistent with information he had obtained from Officer Asunmaa including the fact that Mr. Brillant was at the bar, he was with another male, and he was wearing a white shirt, upon exiting the establishment he got into a BMW vehicle. The vehicle was driven by the other male.

[13] Mr. Brillant was followed from the Overtime Bar and Grill to municipal address 171 Pine Street (Sudbury). He and the male driver stayed at that address for a short time. Upon exiting that address, Mr. Brillant had changed shirts. Within approximately 45 minutes, Mr. Brillant and the other male had returned to the Overtime Bar and Grill. Mr. Brillant was driving.

[14] Several officers had been in contact with Officer Pagnutti and with one another including Constable Darrell Rivers and Detective Constable Douglas McNaught who participated in Mr. Brillant's arrest. Officer Rivers (who actually arrested Mr. Brillant) testified that he had received information that Mr. Brillant would be at the Overtime Bar and Grill that he had cocaine on his person and was dealing cocaine. Officer McNaught gave similar information. Both officers had spoken to Officer Pagnutti and possibly Officer Gelinas.

[15] Overall and considering the totality of the evidence, I am satisfied that Officer Asunmaa (who had met two of the CIs in person and spoke to a third over the telephone) shared the crux of the information he received with Officers Pagnutti and Gelinas. The essence of the information worked its way down to Officers Rivers and McNaught who were both on site when Mr. Brillant was arrested.

[16] On these facts, the court must pay special attention to the totality of the circumstances. When all circumstances are factored in it becomes evident that in the minds of the participating officers, there existed a subjective belief that reasonable grounds to arrest existed. Although they may not have individually been privy to all exact details (as was Officer Asunmaa), they were sufficiently briefed to subjectively have grounds to arrest Mr. Brillant. I would categorize this investigation and subsequent arrest of Mr. Brillant as a form of teamwork. The main direction came from Officer Asunmaa who clearly subjectively had reasonable and probable grounds. The information was passed down to Officer Pagnutti who also subjectively had reasonable and probable grounds. Officers Rivers and McNaught did not act in a vacuum. They became the arresting arms of the teamwork project and were privy to sufficient information to proceed with Mr. Brillant's arrest.

[17] The arresting officers must possess both subjectively and objectively reasonable grounds to arrest. In assessing whether a case for reasonable grounds has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the shoes of the police officer or officers.

[18] The threshold as gleaned by the cases submitted by the Crown and defence is not overly high. I am satisfied, taking into account the level of information obtained by Officer Asunmaa, the diligence with which the information was conveyed to other participating officers, the surveillance which was conducted and resulted in several observations consistent with information received that a reasonable person standing in the shoes of participating police would conclude that police had reasonable grounds to arrest.

2:2 The Search

[19] The arrest took place in the open parking lot of a local bar/restaurant business located along a busy city street. There is an open patio adjacent to the main restaurant building, not distant from the point of arrest. There is also an open parking lot immediately across an intersecting street which accommodates another restaurant, the My Thai Palace restaurant.

[20] It is generally accepted that the arrest took place in open view to patrons frequenting the Overtime Bar and Grill and patrons frequenting other businesses in the immediate vicinity. The evidence also established that there were several patrons on the outside patio of the restaurant. Also several patrons came out from the restaurant to see what was going on as the arrest was unfolding.

[21] I accept the prosecutors submission that the search incident to arrest power of police is a long standing common law concept which is an exception to the general rule that police must obtain prior authorization for a search and seizure to be valid.

[22] In this case Mr. Brillant was searched twice. The first search was conducted immediately upon arrest by Constable Rivers. The second search was conducted very soon after by Detective Constable McNaught. Both officers described Mr. Brillant as being very co-operative. As a result of the second search by Detective Constable McNaught, drugs (namely cocaine) were found on Mr. Brillant's person. The drugs were contained in two separate baggies. One baggy contained 29 grams of cocaine. The second plastic baggy contained 26.01 grams of cocaine.

[23] Officer McNaught was questioned on the issue of why he conducted a second search. He indicated that although he knew that Mr. Brillant had already been searched, he decided to conduct a second search prior to Mr. Brillant being transported to the police station. He said he felt this was necessary for officer safety reasons. Officer McNaught testified that police often conduct more than one search incident to arrest. In his view it is not uncommon for police to conduct more than one search. Officer McNaught also indicated that before placing Mr. Brillant in a police cruiser for transportation, he wanted to make sure there were no weapons.

[24] Officer McNaught testified that after drugs were found on Mr. Brillant, it would not have been feasible or practical to allow him to be transported without removing the drugs. In his view it was also necessary at this point ensure that the drugs be preserved as evidence.

[25] Both counsel made extensive reference to the seminal decision of R. v. Golden, 2001 SCC 83, decided by the Supreme Court of Canada in 2001. In paragraph 101 of that decision the court adopted guidelines contained in English legislation on the issue of strip searches and advanced them as a framework for police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter. The framework is set out in a series of eleven questions as follows:

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 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 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?

[26] Constable Rivers conducted what is often referred to as a "frisk" or "pat" search over the clothing. Detective Constable McNaught conducted a not dissimilar type of search, also mostly over the clothing. Officer McNaught explained that at the top of Mr. Brillant's left leg and toward his groin area he felt a "circular like and harder object". He said that in his mind, the object could have been a weapon or drugs. In his thinking, he also factored in that he was, to some extent, familiar with Mr. Brillant's past history including his involvement in prior arrests and weapons.

[27] Officer McNaught testified in his examination in chief that Mr. Brillant was wearing jeans. He pulled the front of Mr. Brillant's jeans and underwear away from his stomach area; he saw a baggy with white substance which he believed to be cocaine in Mr. Brillant's left groin area. He reached inside the top of Mr. Brillant's pants with his thumb and index finger. He accessed the edge of the plastic baggy and pulled it out.

[28] Officer McNaught made the same observation of a baggy on Mr. Brillant's right groin area. He also accessed that baggy in the same manner. More specifically he said he simply pinched the top of each bag to remove them from Mr. Brillant's possession.

[29] According to Officer McNaught, although from his vantage point looking down Mr. Brillant's pants he saw the top of his penis, Mr. Brillant's genitals were at no time exposed to the public. Furthermore, no clothing was ever removed. The search, in Officer McNaught's estimation lasted no more than 4 seconds for the removal of each baggy.

[30] In cross-examination, Officer McNaught stated that he did not recall if Mr. Brillant was wearing a belt. He said he did not believe he undid Mr. Brillant's zipper. He did not recall if Mr. Brillant after the search, asked him to zip up his pants.

[31] Officer Rivers was more specific in his recollection. He said the Mr. Brillant was wearing a belt. He was holding Mr. Brillant's right arm as Officer McNaught searched him. He said that Officer McNaught twisted the top of Mr. Brillant's belt and pants. He gestured how Officer McNaught did so by twisting his wrist. It is when Officer McNaught twisted the top of Mr. Brillant's pants and belt that Officer Rivers saw the top of a baggy sticking out of Mr. Brillant's underwear. Officer Rivers also testified that at no time were Mr. Brillant's clothes removed and at no time did he see Mr. Brillant's genitals.

[32] Officer Rivers said he recalled that Officer McNaught indeed undid Mr. Brillant's belt and zipper. After the search was concluded, he also confirmed Mr. Brillant asked Officer McNaught if he (Officer McNaught) could do up his zipper.

[33] Despite Officer McNaught not recalling undoing Mr. Brillant's belt and zipper, the evidence is consistent in establishing that at no time was Mr. Brillant's clothing removed or his genitals publicly exposed. It strongly appears that Mr. Brillant's pants may have been opened to gain easier access to the drugs and that this was done from the top of his pants and within seconds.

[34] Officer Rivers who was standing right next to Mr. Brillant did not see Mr. Brillant's genitals and confirmed that Mr. Brillant's private parts were never exposed. The evidence also establishes that Office McNaught in removing the baggies did so effectively with two fingers and within seconds. He also confirmed that no clothing was actually removed from Mr. Brillant's body.

[35] In the Golden decision the Supreme Court adopted the following definition of "strip search":

"The removal or rearrangement of some or all of the clothing of a person so as to permit visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments."

The Supreme Court went on to say that this definition distinguishes strip searches from less intrusive "frisk or pat-down" searches, which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of a detainees' genital or anal regions.

[36] Although the scenario here may have been embarrassing to Mr. Brillant because the arrest and search were conducted in an open parking lot subject to public view, it remains debatable whether the search as described can in fact be described as a "strip search" as defined by the Supreme Court. There is no evidence that any of Mr. Brillant's clothing was actually removed to permit a visual inspection of his private areas, namely his genitals. Although his pant belt may have been undone and his zipper lowered, there is no evidence that any of his private areas were exposed or open to view.

[37] This case is certainly not akin to the facts in the Golden decision. In that case, the investigating officer undid Mr. Golden's pants and pulled them back together with his long underwear. The officer saw a clear plastic wrap protruding from between Mr. Golden's buttocks as well as a white substance within the wrap. The officer was not initially able to retrieve the plastic wrap. Mr. Golden was escorted to a seating booth in a public area. Several officers then forced Mr. Golden to bend over a table. His pants were lowered to his knees and his underwear again pulled down. There was somewhat of a struggle because Mr. Golden was resisting and clenching his buttock muscles tightly. Eventually officers were able to extract the package containing 10.1 grams of crack cocaine. Mr. Golden was then taken to the police station located about two minutes away where he was again strip searched.

3: ANALYSIS

[38] Unlike in the Golden decision, on these facts I am satisfied that minimum force was used to conduct the search, that the search was conducted swiftly, that no female officer was involved, that no clothing was actually removed, that Mr. Brillant's genitals were never openly exposed and that physical contact was minimal.

[39] On these facts the concept of a "strip search" as defined by the Supreme Court does not come to mind. There was no removal of clothing. There may have been a modest re-arrangement of Mr. Brillant's clothing but this was done only to accommodate a visual inspection just below the belt line. It was not necessary for police to have a visual inspection of his private areas, namely his genitalia. Even if the search is categorized as a form of "strip search", it was not taking into account all relevant circumstances, conducted unreasonably.

[40] This decision, of course, should not be taken to establish that police should not exercise caution in conducting searches. It is well stated in the Golden decision that generally strip searches should be conducted at the police station except where there are exigent circumstances. In cases involving strip searches, the Crown bears the onus of convincing the court on a balance of probabilities that reasonable and probably grounds as well as exigent circumstances existed to conduct the search in the "field" and that the strip search itself in a reasonable manner.

[41] I found the evidence of the officers who testified to be credible. There may have been some discrepancies in their evidence, however, not to the extent of detracting from their overall reliability.

[42] The search in this case was initially minimally invasive. The search allowed the police to confirm that a weapon was not concealed. After determining that Mr. Brillant was carrying drugs, the police acted responsibly in removing the drugs prior to Mr. Brillant being transported to the police station. The search was carried out quickly and Mr. Brillant, although possibly embarrassed, was not subjected to any personal indignity. The circumstances of the removal of the drugs have already been described in these reasons and cannot be said to have been unreasonable.

[43] In conclusion, Mr. Brillant's section 8 Charter rights were not breached in the search incidental to arrest. The Charter argument ably advanced by defence counsel must fail.

Released: November 1, 2016

Signed: "Justice Randall W. Lalande"