Court Information

Date: March 2, 2018

Court File No.: Toronto Region

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

S. Rogers, for the Crown

— And —

Kimberly Bruce

P. Dotsikas, for the accused

Hearing and Decision

Heard: July 31, December 6, 2017

Before: Feldman J.

Introduction

[1] Kimberly Bruce entered a not guilty plea to Operation Over 80. It is alleged that she was found unconscious in her motor vehicle while having more than the legal limit of alcohol in her system. In addition, the arresting officer smelled marihuana in her car while checking up on her medical well-being.

[2] Following her arrest and booking, she was strip searched. Ms. Bruce argues that this level 3 search breached her ss. 7 and 8 Charter rights. She says that the charge should either be stayed or the breath readings excluded under s. 24(2).

[3] The Crown called a civilian witness and three police officers in support of its case. I must weigh the evidence and the credibility of the witnesses in making my findings of fact in this blended proceeding. I am mindful of the burden of proof on the Crown.

The Evidence

[4] On May 15, 2016, at about 5:40-50 a.m., Uthayachandran Sivasubramaniam, age 54, was stopped at a red light on Nielson Ave. waiting to turn left onto McLevan Rd., a street that led to Highway 401. Kimberly Bruce was in the driver's seat of her motor vehicle ahead of him. The light turned green, but the defendant's car didn't move. When the light turned red and then green again, her vehicle remained stationary. Mr. Sivasubramaniam honked his horn twice, but got no response. It was dark outside. He could not see inside Ms. Bruce's car.

[5] Mr. Sivasubramaniam was concerned that the driver was in difficulty. He drove up beside the vehicle to check on the well-being of the occupant. The defendant's head was leaning on her arms that were folded across the steering wheel. Mr. Sivasubramaniam also saw that the passenger's head was tilted back on her seat. Neither woman was moving for the 5-10 minutes this witness made his observations.

[6] Mr. Sivasubramaniam called 911. He remained in the area for about 5-10 minutes until a fire truck arrived. He left, but was later contacted by the police.

[7] P.C. Vernon Colaco received a radio call at 5:54 a.m. regarding two unresponsive females at this location. He arrived at 6 a.m. He parked behind an ambulance.

[8] The officer knocked on the driver's door, but initially got no response from the defendant, whose head was down. She soon woke up, but seemed disoriented. Her door was locked. The officer continued to bang on the window and motioned for Ms. Bruce to open the door. There was no response. The passenger remained slumped in her seat.

[9] P.C. Colaco was concerned the women may be in medical distress. He had a fire fighter break the rear passenger window, unlock the door and turn off the ignition. A paramedic looked after the passenger.

[10] P.C. Colaco talked to Ms. Bruce through either an open window or door. He asked for her identifying documents at 6:14 a.m. He smelled alcohol and marihuana coming from inside the car and saw that the defendant had dry lips. He suspected she had alcohol in her system. He requested that an Approved Screening Device (ASD) be brought to the scene.

[11] The officer noticed that Ms. Bruce barely opened her mouth to speak. She failed to produce her documents, so he retrieved them himself from the centre consul. He only found her driver's license. Ms. Bruce didn't respond to his request for her insurance and ownership papers.

[12] P.C. Colaco took the defendant back to his cruiser. She walked without difficulty. At 6:16 a.m., he placed her in the rear of his cruiser. He demanded that she provide a suitable sample into an ASD. It arrived at 6:26 a.m.

[13] Ms. Bruce provided a sample of her breath into the instrument and registered a Fail. P.C. Colaco arrested her. She was provided her rights to counsel at 6:34 a.m. The officer initially forgot to read her the Intoxilyzer demand, but did so on the way to 41 Division, where he arrived at 6:56 a.m.

[14] While waiting in the sallyport, the officer's escort, P.C. Chaisson informed him that he had found some marihuana in the defendant's purse. Ms. Bruce was paraded at 7:07 a.m. She was then subjected to a strip search by 2 female officers.

[15] During the booking process, P.C. Colaco had recommended only a pat down search. He felt a level 3 search was unnecessary, even though a small amount of marihuana had been found. He noted that the defendant was cooperative, had no criminal record and was to be handcuffed to a bench in the report room. He felt it improbable she had hidden more drugs on her person. The officer in charge, Sgt. David Zebeski, felt differently and directed that she be strip searched.

[16] Ms. Bruce was handcuffed to a bench at 7:27 a.m. while waiting to be called in for her breath tests. She spoke to duty counsel at 7:35 a.m. The defendant provided two breath samples of 135 and 130 milligrams within the required time. She was released at 9:20 a.m. and driven home by the officers.

[17] Sgt. David Zebeski was the officer-in-charge who informed the defendant in front of both the booking Sgt. and arresting officer that she would be subject to a level 3 search. He explained it was because she had marijuana with her and that he wished to ensure she had no more drugs on her person. The strip search took 12 minutes.

[18] Sgt. Zebeski explained to the court that he could not know if the detainee's use was only recreational. He was concerned she might hand some marihuana off to others. She might even have something else of risk in her brassiere or underwear.

[19] The officer could not recall if he was told where the marijuana was found, on her person, or elsewhere. He felt it necessary to check her private areas given his experience with people hiding things and because he had responsibility for everyone's safety at the station.

[20] Prior to making his decision, Sgt. Zebeski did not know nor did he ask about the amount of marijuana seized, where it was found, or the defendant's antecedents. In fact, he only inquired as to the circumstances of her arrest while the level 3 search was ongoing, information he conceded relevant to exercising his original discretion as to the level of search. There was little he relied on that was specific to this detainee.

[21] Sgt. Zebeski felt that drinking and driving indicated poor decision-making of a kind that meant this defendant might also chose to hand out marijuana to other detainees. It is unclear if the officer contemplated her doing so while handcuffed to a bench or in a cell by herself, usually the case with female prisoners. As well, he also pointed out as a saving grace that searching officers have discretion in how the search is to be conducted. That was news to P.C. Carmen Wong, one of the searching officers.

[22] It is notable that P.C. Wong, unnecessary for the booking process, was directed to be present in the booking hall prior to the ordering of the level 3 search. Curiously, in fact, she knew there would be such a search before being so instructed by Sgt. Zebeski. This reinforces the inference that the officer-in-charge contemplated a strip search before having all the facts.

[23] P.C. Wong testified that she cannot recall reading the Toronto Police Service (TPS) Risk Assessment Guidelines regarding how such a search is to be conducted. She told the court that she is unaware, nor was she told, that she had discretion to remove only some of the clothing of a detainee. She agrees that removing the wire from a brassiere bears little relation to the secreting and discovery of drugs.

[24] The TPS Protocol for level 3 searches is set out in a document, 'Risk Assessment – Level of Search', produced in evidence at this trial. Relevant here, it contemplates, on a case-by-case basis, a search for weapons, anything that could cause injury (including drugs and alcohol) and evidence.

[25] Risk factors include details of the current arrest, history of the person, items already located on the person, the demeanour or mental state of the individual, risks to the individual, police or others that might arise from not performing a level 3 search and the potential the person will come into contact with other detainees, creating an opportunity for the person to hand off contraband or weapons to another prisoner.

[26] There are heightened safety concerns where the individual is lodged in court cells with other prisoners. There is no evidence that was the case here.

Did the Strip Search Violate the Defendant's ss. 7 and 8 Charter Rights?

[27] On this question, it is helpful to review some of the relevant authorities.

[28] In R. v. Ferguson, the defendant was found asleep in the driver's seat of her motor vehicle. She was obviously impaired. She was strip searched at the station. The officer-in-charge explained that it was done for her own protection and that of other prisoners given her intoxication and admission she was on anti-depressant medication.

[29] The defendant was 51 years of age, an English instructor and had no criminal record. Justice Thomas concluded that the trial judge failed to find beyond speculation on the particular facts articulable cause or reasonable suspicion that the detainee might be concealing a dangerous object. Even on the basis of that low standard, he found there to be an s. 8 violation.

[30] The standard is higher. In the seminal decision of R. v. Golden, 2001 SCC 83, the Supreme Court of Canada, at para. 98, held that the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest, "in order to support the higher degree of interference with individual freedom and dignity".

[31] As well, of relevance here, Golden, at para. 96, drew a distinction, between the type of searches that are appropriate when a detainee is integrated into the prison population, where contraband or weapons threaten the safety of others, and those circumstances in which a suspect, such as an intoxicated driver, is subject to short-term detention in police cells. In the latter case, police must conduct an assessment of the individual on a case-by-case basis with regard to safety concerns or the secreting of evidence, mindful of his or her privacy and personal integrity.

[32] Nakatsuru J., as he then was, applied these principles in R. v. Samuels, 2008 ONCJ 85. There, the accused was arrested for Operation Impaired. He was subject to a level 2 search prior to his breath tests, then a strip search after the tests because the booking Sgt. required that he be kept in a police cell given his elevated readings. The accused sought a stay of proceedings for breach of his security interests.

[33] Justice Nakatsuru, at paras. 65-66, described the intrusion into the privacy and dignity of the individual in a strip search as inherently humiliating and degrading and was mindful that in Golden the court also gave emphasis to prevention when considering a stay.

[34] Of note, Justice Nakatsuru indicated, at paras. 70-71, that in some cases, exclusion of evidence may be preferable to a stay, as was the case in R. v. Flintoff, where Finlayson J.A. concluded that a stay of the Impaired Driving charge was not warranted, "particularly when a proper result can be obtained by a more surgical use of s. 24(2) of the Charter".

[35] In Samuels, the level 3 search occurred after the Charter violation, leading the defence to seek a stay rather than an exclusion of the evidence on the basis of an incorrect assumption that the obtaining of evidence occurred prior to the violation and limited the remedy to a stay. Both the defence and the court might have chosen differently had they been aware of the more recent decision in R. v. Pinol, 2016 ONCA 389, where Laskin J.A. held that Charter violations, both before and after the obtaining of evidence, are part of the entire "chain of events" and may fall under an s. 24(2) application for exclusion.

[36] Relying on Golden principles, the court in R. v. Evong, [2014] O.J. No. 6435 (Ont. C.J.), found a breach of the defendant's Charter ss. 7 and 8 rights when she was required, following arrest on a Refuse Sample charge, to remove her brassiere and check for underwire in the presence of a female police officer.

[37] The police had relied on a general policy to prevent harm to this short-term detainee or others and to locate contraband. Justice Blacklock found little in the individual circumstances of the detainee to warrant the level 3 search. However, he denied an application for a stay on the basis it was not one of the clearest of cases.

[38] In R. v. Perinpanathan, 2017 ONCJ 36, the defendant was arrested on drinking and driving charges. A small amount of marihuana was found in his car. During the investigation, he was at times angry and aggressive. He was strip searched.

[39] In that case, I viewed the booker's reasoning that the detainee might have secreted drugs or weapons on his person to be speculative. I found the search neither reasonable nor necessary and to be highly intrusive and degrading, leading to in an infringement of the defendant's ss. 7 and 8 rights. I concluded that the violation was serious, that the search undermined the defendant's security interests in a significant way and that on a balancing of the R. v. Grant, 2009 SCC 32 factors, the breath tests should be excluded.

[40] I have come to a similar view in the case at bar. The arresting officer understood and articulated reasons why it was neither reasonable nor necessary to subject this defendant to a strip search. By contrast, Sgt Zebeski made little effort to inform himself about the defendant's individual circumstances, as required in Golden, and mandated by the TPS Protocol for level 3 searches. It is telling that he made some inquiries only after the search had been undertaken.

[41] Sgt. Zebeski's wish to ensure there were no more drugs was of a general nature and likely routine. His concern that the defendant might hand off contraband to others was pure speculation, belied by the fact she would be handcuffed to the bench in the report room in the presence of the arresting officer. His assertion that prisoners hide things was not specific to this accused. It was meaningless in these circumstances. His decision-making here fell below the Protocol's standard.

[42] On this evidence, Ms. Bruce has met her onus of establishing violations of her ss. 7 and 8 rights. On the question of a stay, I infer from the obiter comment of Nakatsuru J. in Samuels regarding exclusion under s. 24(2), that it might have been his preferred remedy. At the time, he did not have the benefit of the reasoning in Pinol. I view reliance on that section for a remedy as a more logical and proportionate approach.

Should the Evidence be Excluded under s. 24(2)?

[43] On an application for exclusion under this section, the court must assess and balance the effect of admitting the evidence on the public's confidence in the justice system upon consideration of three lines of inquiry, including: the seriousness of the Charter-infringing state conduct; the impact of the breach on the Charter-protected interests of the defendant; and society's interest in the adjudication of criminal cases on their merits.

[44] At the first stage, the more deliberate or egregious the police conduct leading to a violation, the greater the need for the court to dissociate itself from that conduct by excluding the impugned evidence, in this way helping to preserve respect for the Charter. At the second stage, the more serious the intrusion on the defendant's protected interests, the greater the concern that admission of the evidence would bring the administration of justice into disrepute. At the third stage, the court gives emphasis to the value of a trial on the merits, particularly where the evidence is reliable and important to the Crown's case.

[45] In the case at bar, P.C. Colaco was aware of the defendant's personal circumstances. He recommended a level 2 search. His suggestion was correct and proportionate to any risk. Sgt. Zebelski's decision was not. He made little effort to inform himself about the defendant or the marihuana so that his direction was seemingly routine. His reasoning was, in significant part, based on speculation.

[46] I am persuaded on this evidence that the officer-in-charge lacked reasonable and probable grounds to order a level 3 search, resulting in a serious infringement of the defendant's security and privacy interests. On the first line of inquiry, the violation favours exclusion of the evidence. On the second line of inquiry, the humiliation and loss of dignity was unnecessary and egregious. This factor favours exclusion. At the same time, the taking of breath samples is minimally invasive and the evidence reliable and necessary to support the truth-seeking function of a trial on the merits. The third line of inquiry favours admission.

[47] On an assessment and balancing of these factors, I am of the view on the evidence that it is necessary to exclude the evidence in order to dissociate the court from the conduct here and to preserve public confidence in the administration of justice and the rule of law.

[48] In the result, the breath readings having been excluded, the charge is dismissed.

Released: March 2, 2018

Signed: "Justice L. Feldman"