Court File and Parties
Ontario Court of Justice
Date: 2018-05-11
Court File No.: Barrie 3811 998 17 6814
Between:
Her Majesty the Queen
— and —
Kayla Armstrong
Before: Justice Carlton
Heard on: April 18, 2018
Reasons for Judgment released on: May 11, 2018
Counsel
Rachel Jones — counsel for the Crown
The defendant Kayla Armstrong — on her own behalf
Judgment
Carlton J.:
Charge
[1] Kayla Armstrong is charged that she did unlawfully possess a controlled substance, to wit, cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act.
Crown's Case
[2] The Crown called three witnesses, the arresting officer P.C. Matthew Ellwood, the searching officer, P.C. Leah Benham and the property officer, Ralph Luppe, all of the Huronia West O.P.P. detachment.
[3] Ms. Armstrong, who defended herself, did not call any evidence.
Summary of the Case
[4] Ms. Armstrong was arrested at 0135 hours on October 26, 2017 on a charge of impaired operation by P.C. Ellwood, a male officer.
[5] At the scene, on Main Street in Wasaga Beach, P.C. Ellwood, who was alone conducted a pat-down search "with the back of his hand" before placing Ms. Armstrong into his cruiser and transporting her to the detachment. Nothing was found during this pat-down search. No drugs or weapons were found at the scene.
[6] Ms. Armstrong was the subject of a more intrusive search at the detachment. I will address the circumstances of that search later in the judgment. P.C. Benham found a small amount of a powdery substance wrapped in lined or graph paper in the left bra cup of Ms. Armstrong.
[7] This substance and paper were entered in evidence as Exhibit #1. They were placed within a Ziploc bag by P.C. Benham. The small amount of powdered substance and the paper are visible within the bag.
[8] P.C. Benham weighed the paper and substance at 2 g and estimated that each had a mass of approximately 1 g each.
[9] The Court heard about the processing of the exhibit. I am satisfied beyond a reasonable doubt by that evidence that the substance seized from within the graph paper found inside of the bra of Ms. Armstrong is the substance analysed by Health Canada described in the Certificate of an Analyst in Exhibit #2. I am satisfied beyond a reasonable doubt that this substance is cocaine.
[10] A voir dire was held in regards to utterances made by Ms. Armstrong after the substance was seized by P.C. Benham. P.C. Benham testified that Ms. Armstrong was reaching for the substance. I found these statements to be voluntary.
[11] P.C. Benham arrested Ms. Armstrong for possession of a controlled substance. P.C. Benham testified that Ms. Armstrong stated to her that, "I didn't know it was there" and "It's my boyfriends". P.C. Benham then relayed a caution to Ms. Armstrong, after which Ms. Armstrong stated, "How do you know it's cocaine?"
Analysis
Possession of Cocaine
[12] I have found to a criminal standard that the Crown has proven the substance seized to be cocaine.
[13] The Crown must prove to the criminal standard that Ms. Armstrong had knowledge of the nature of the substance and control over the substance.
[14] I find that the Crown has proven the issues of knowledge and control beyond a reasonable doubt.
[15] The substance was found in an intimate area of the body. There is no evidence it was placed there without the knowledge of Ms. Armstrong. The only reasonable inference is that she had control over it on her person.
[16] Her knowledge of the illicit substance can be inferred by its placement in a private area of the body. Such placement is designed to prevent any observation of the items. The substance was only lightly wrapped in a makeshift envelope from a small piece of graph paper. The character of the substance would be known by anyone handling the paper.
[17] I note as well that Ms. Armstrong reached for the item when seized by P.C. Benham.
[18] While I admitted the utterances of Ms. Armstrong, I do not need to rely on those statements to make this finding.
[19] I find that the only reasonable inference on the evidence is that Ms. Armstrong was aware of the illicit character of the substance, specifically that she had knowledge and control of the cocaine secreted in her bra. I find her knowledge and control to be established to the criminal standard.
Nature of the Search
[20] This does not entirely end the matter.
[21] During the evidence the Court raised the issue of the authority for and reasonableness of the search carried out by P.C. Benham.
[22] I was advised that while Ms. Armstrong had given some indication prior to trial that she was going to file a Charter application alleging a breach of her section 8 rights against unreasonable search and seizure she did not do so.
[23] I advised the Federal Crown that the Court may be obliged to consider the issue (see R. v. Tran, [2001] O.J. No. 3056 (C.A.)). The Federal Crown very fairly did not object to the consideration of this issue and called additional evidence from P.C. Benham on the circumstances of the search.
[24] Ms. Armstrong raised the issue in her submissions to the Court. She noted that she was searched at the scene and she did not understand why a second search was conducted. She submitted that she was arrested for drinking and driving and nothing was found at the scene regarding alcohol.
[25] The Federal Crown also provided written submissions on the legitimacy of the search.
[26] I appreciate that given the manner in which the issue is raised it may be that certain aspects of the record are incomplete. That said, given that the onus is on the Crown, there is a sufficient record to make a determination as to the legitimacy of the search.
The Search
[27] P.C. Benham conducted the search. It took place in the booking room of the Huronia West detachment between 0152 and 0200 hours.
[28] P.C. Ellwood was not present for the search. He stood in a nearby hallway in case he was needed. P.C. Benham instructed Ms. Armstrong to remove first the clothing on the top half of her body, put clothing back on the top half and remove the clothing on the lower half of her body, or in the reverse order.
[29] P.C. Benham testified she located the substance inside the bra without actually removing the bra itself. P.C. Benham testified that the bra was not removed.
[30] It is not entirely clear in the evidence how P.C. Benham observed the paper containing the substance; whether she asked Ms. Armstrong to pull the bra away from her body to inspect the area covered by the bra or whether she could determine that there was something in the bra just by its appearance.
[31] In the search on the lower half of the body P.C. Benham testified that Ms. Armstrong was wearing skintight pants. She had Ms. Armstrong take those pants off. P.C. Benham testified that the underwear was "checked" but not removed. P.C. Benham was not asked as to the precise meaning of checked. P.C. Benham did not have any notes about the search of the lower half of Ms. Armstrong. It is not clear whether this was only a visual inspection of the underwear or whether the underwear was pulled away from her body to allow for a visual inspection of the areas of the body covered by the underwear.
[32] P.C. Benham testified that the purpose of this search was to ensure that the person being lodged in a cell did not have any weapons, drugs or anything she could use to hurt herself or an officer or any other person. P.C. Benham testified that when a female is wearing an underwire bra, the bra is taken from the detainee until they are released.
[33] P.C. Benham's evidence was based primarily on her reference to notes made at or near the time of the search. Her independent recollection of events, other than the finding of the narcotic and of the utterances of Ms. Armstrong, was limited. P.C. Benham often relied on her standard practise when describing what had happened with Ms. Armstrong.
[34] The evidence in this case is that Ms. Armstrong is kept in custody until approximately 0442 hours when P.C. Ellwood drove her back to her residence. She spent some of the time in the detachment in the breath room for the testing process as well as in a cell in the detachment.
[35] I note two additional matters.
[36] First, there is no information that Ms. Armstrong was ever going to be held for bail or introduced into a general prison population. It is clear that Ms. Armstrong was going to be subject to the breath testing process and then released after spending a period of time in a holding cell. There is no evidence that Ms. Armstrong was ever placed in a cell with another detainee.
[37] Second, there is no evidence that caused P.C. Ellwood or P.C. Benham to specifically believe that Ms. Armstrong was in possession of weapons or narcotics at the time of the search.
Position of the Parties
[38] The Court has raised the reasonableness of the search. It is a warrantless search and under section 8 of the Charter, the Crown must show that the search is authorized by law, the law itself is reasonable and the search was carried out in a reasonable manner (see R. v. Collins, [1987] 1 S.C.R. 265).
[39] The Crown relies on the power to search incident to arrest. I accept that authority, as set out by the Supreme Court in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, as the basis for a search of Ms. Armstrong before she was placed in the cells.
[40] The issue in this case are the first and third ground of the Collins test: was the search authorized by law and was the manner of the search reasonable.
[41] The Crown describes the search as a "lodging search" and states that it is short of a "complete" or "strip" search as defined in Golden.
[42] The Crown submits that appropriate steps were taken to ensure that Ms. Armstrong was treated in a dignified manner. The male officer was absent. P.C. Benham addressed separately the search of the top and then the bottom half of Ms. Armstrong's body. The bra and underwear of Ms. Armstrong remained on at all times.
[43] The Federal Crown concedes P.C. Benham's decision to carry out this search was based not on the specific circumstances of Ms. Armstrong's encounter with police but as the standard fashion in which P.C. Benham searches a female being placed in the cells.
[44] The Federal Crown states that it is reasonable to conduct this search given the responsibility that police have for the welfare of those in their cells. Police are entitled to conduct a search of this intrusiveness to ensure that the detainee does not have anything that can be used to hurt an officer, themselves, or another inmate. They have a responsibility to search for substances that could be ingested while in the cells.
Was this a "Strip Search"?
[45] In Golden, the majority judgment accepts the following as a working definition of a strip search:
The appellant submits that the term "strip search" is properly defined as follows: the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.
[46] The test in Golden does not require that undergarments be removed; removing clothing such that undergarments can be visually inspected meets this definition of a strip search.
[47] The Court noted that such searches were more intrusive than frisk searches and less intrusive than body cavity searches.
[48] It is clear that the search of Ms. Armstrong meets the definition of a "strip search". The language used by P.C. Benham mirrors that given in Golden. P.C. Benham testified that she had Ms. Armstrong "remove the clothing, check each piece, and then I would get down to their undergarments". As set out above, P.C. Benham did not have a strong recollection of the details of the search. I find that the folded paper containing the narcotic could not have been found or removed without at least some visual inspection of the breast of Ms. Armstrong.
Were There Grounds for a Strip Search?
[49] In Golden, the Supreme Court set out a number of limits on the power at common law to carry out a strip search of a detainee:
Strip searches cannot be carried out as a matter of routine policy (at para. 90 and 95).
The strip search must be pursuant to a lawful arrest for which there were reasonable and probable grounds (at para. 91).
The strip search can be justified as one incident to arrest if the search is related to the reasons for which the person is arrested (at para. 92).
Alternatively, the strip search can be justified if police are searching for weapons to ensure the safety of police, the detainee or other persons. There must be evidence from the frisk search or some other particular circumstances to justify a strip search for weapons. The mere possibility that a weapon may be concealed is not sufficient (at para. 94).
There is a greater need for a strip search when a detainee is entering a prison population as opposed to a detainee who will be detained for a short period and then released (at para. 96).
"Police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest" (at para. 99; see as well R. v. Gonzales, 2017 ONCA 543, [2017] O.J. No. 3437 (C.A.) at para. 138).
Strip searches should generally be conducted at a police station. The search should be authorized by a police supervisor. The search should be conducted by a police officer of the same gender (at para. 101-102).
[50] The submission of the Federal Crown that what occurred is a lodging search is related to point (5) above, namely that a basis for a strip search can be premised on the detainee entering into the general prison population.
[51] I find that reasonable grounds for the strip search of Ms. Armstrong have not been made out on the evidence.
[52] The strip search was not incident to the reasons for her arrest. Ms. Armstrong had been arrested for an impaired driving charge. There was no evidence presented that a strip search would reasonably provide evidence in relation to that charge.
[53] The primary reason offered by P.C. Benham for the strip search was to ensure that Ms. Armstrong did not have weapons on her person prior to being placed in a holding cell. On the basis of the evidence in this case I find that reasonable and probable grounds justifying the strip search have not been made out. I make this finding for the following reasons:
There was no individual assessment of the need for a search of Ms. Armstrong. P.C. Benham had not been involved in the arrest of Ms. Armstrong. Her involvement was solely in relation to the search of Ms. Armstrong. Neither she nor P.C. Ellwood gave evidence about any observations or issues specific to Ms. Armstrong to justify a strip search to search for weapons.
At the time of the strip search there had only been a very limited frisk search of Ms. Armstrong at the scene of her arrest. P.C. Ellwood described carrying out a frisk search with the back of his hand. There were clearly grounds for P.C. Benham to conduct a more comprehensive frisk search. This is sometimes referred to in the caselaw as a Level II search in which footwear and all but one layer of clothing over top of any undergarments is removed to allow for the frisk search (see R. v. Samuels, 2008 ONCJ 85, [2008] O.J. No. 786 (C.J.) at para. 13). Such a search may provide grounds for a strip search but such a search was never conducted in this case.
Ms. Armstrong was described as wearing "skintight white pants". Ms. Armstrong was wearing a shirt over top of her bra. It was described as compression garment that "was quite tight around her" upper body. There was no evidence as to why, given Ms. Armstrong was wearing clothing of this description that a comprehensive frisk search would not locate any weapons secreted in her clothing.
There is no evidence that Ms. Armstrong would ever be held for bail or otherwise introduced into the general prison population. There is no evidence she was ever in a cell with another detainee. Her entire stay at the detachment was less than three hours. This included the time in the breath room. The statements made at paragraph 97 of the Golden decision make clear that strip searches in such situations may only be justified on the specific facts of the case and "cannot justify" routine strip searches of all arrestees".
[54] As to the manner of the search I note that there is no evidence that a supervisor authorized the search of Ms. Armstrong.
[55] P.C. Benham spoke in general terms of the manner in which she conducts these searches for women entering into a cell. While she testified to having conducted such searches before she did not testify that every female entering the cells is searched in the same manner as Ms. Armstrong. Nor did she testify that these searches are only carried out on a case by case basis. The record is silent on this issue.
[56] Lastly, I note that this search occurred in the main booking room of the Huronia West Detachment. I understand from the evidence this is an area that officers or other persons present use to travel through the detachment. P.C. Ellwood testified that he stood "probably in the hallway" to afford Ms. Armstrong some privacy. The Court did not hear any evidence as to why the search was not or could not be conducted in a room where the possibility of others coming onto the search could be reduced or removed. That said, there is no evidence that anyone other than P.C. Benham was present when this search occurred.
[57] I find that the Crown has not met onus of showing that the search of Ms. Armstrong was authorized by law. I find that Ms. Armstrong's right to be secure against unreasonable search and seizure in section 8 of the Charter was breached by this search.
Section 24(2) of the Charter
[58] There remains the issue of whether the evidence gathered from the search of Ms. Armstrong should be admitted or excluded at trial. Section 24(2) of the Charter reads as follows:
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.
[59] The onus is on the applicant to show on a balance of probabilities that the admission of the evidence, in this case the cocaine found on Ms. Armstrong, would bring the administration of justice into disrepute (see R. v. Harper, [1994] 3 S.C.R. 343).
[60] This question is governed by the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 in which the court is directed to considering the impact of the admission of the evidence on society's confidence in the administration of justice through an examination of three areas of inquiry: the seriousness of the Charter violation, the impact of the Charter breach on the Charter protected interests of the accused and society's interests in the adjudication of the case on its merits.
[61] The Court must put itself in the position of a reasonable person, informed of all of the relevant circumstances and of the purpose of the Charter right at issue in determining whether the evidence should be excluded.
[62] Dealing now with the first arm of the Grant test I assess the Charter violation in this case as serious.
[63] The Supreme Court decision in Golden dates from 2001. It clearly sets out the basis for when strip searches can be conducted and the manner in which they are to be conducted. The core of that decision is that strip searches are "a significant and very direct interference with personal privacy" (at para. 89) and as such, can only be justified, particularly for those not entering the general prison population, on a case by case basis. No such evaluation occurred here.
[64] The facts here do not support a finding that police here honestly but unreasonably believed that the grounds for a strip search existed based on the circumstances specific to Ms. Armstrong. The evidence is that there was no consideration given to the necessity or justification for a strip search. It was seen as a precondition to Ms. Armstrong entering a holding cell.
[65] In R. v. Flintoff, [1998] O.J. No. 2337, the Ontario Court of Appeal, in assessing the seriousness of the breach (albeit under the pre-Grant test for exclusion) related to a strip search conducted in a drinking and driving case, stated as follows:
It was unreasonable to strip search the appellant and there was no tenable justification for the intrusive violation of the appellant's Charter rights. The protection against unreasonable search of one's person is a very important Charter right. The seriousness of the Charter violation is so great that the admission of the evidence would bring the administration of justice into disrepute.
[66] In regards to the second arm of the Grant test, I find that the impact or effect on Ms. Armstrong was serious. While I do not have any evidence from Ms. Armstrong, the Supreme Court in Golden stated that "strip searches can be humiliating, embarrassing and degrading for those subject to them" (at para. 89).
[67] The third ground to consider is society's interest in an adjudication on the finding of the cocaine is the basis of the Crown's case. It is reliable evidence. This line of inquiry strongly favours admission as opposed to exclusion.
[68] The balancing process for the three lines of inquiry is set out in R. v. Gonzales. At paragraph 157, the Court states "[W]here the first two lines of inquiry under Grant advance a strong case for exclusion, the third line of inquiry will rarely, if ever, tip the balance in favour of admissibility".
[69] This is a case where the first and second inquiries in this case make a strong case for exclusion. This is not one of the rare cases in which, in the face of the strong case for exclusion made by the first two factors, that the third inquiry tips the balance in favour of admission.
[70] Weighing all three inquiries I do find that the admission of the seized cocaine into evidence would bring the administration of justice into disrepute.
[71] Given that finding there will be a finding of not guilty on the charge before the Court.
Released: May 11, 2018
Signed: Justice Carlton