Court Information

Court File No.: Newmarket 16 06638 & 16 06640 Date: 2019-04-23 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Neil Davis

Before: Justice David S. Rose

Heard on: April 9, November 13, 14, 15, 2018, March 25, 26, 2019

Reasons for Judgment released on: April 23, 2019

Counsel

For the Crown: Mr. Arvisu, Mr. Ghosh

For the Accused Neil Davis: Mr. Moon, Ms. Rozier

Charges

[1] Mr. Davis is charged with:

1. Possession of Cocaine for the purpose of trafficking on August 31, 2016;
2. Trafficking in Cocaine on August 31, 2016;
3. Possession of Property obtained by Crime, namely money, on August 31, 2016.

Procedural History

[2] This trial heard 4 days of evidence over the last year. It has had just as much time in the Superior Court and the Court of Appeal in that time frame.

[3] Mr. Davis appeared before me on April 9, 2018 for the first time. It was scheduled for a 3 day trial. He was late for Court and a Bench Warrant issued. He ultimately showed up later that morning, and the Warrant was cancelled. Prior to arraignment he argued that I had no jurisdiction to hear the case because it was a Peel Region case improperly being tried in Newmarket. After I dismissed that Motion he entered pleas of not guilty. He then immediately applied for Certiorari, and no evidence was heard. That Motion was dismissed by the Superior Court on July 31, 2018, see R. v. Davis 2018 ONSC 4058. A trial continuation was scheduled for November 13 – 15, 2018. Two case management conferences were conducted by me after the case was remitted back to this Court for trial. Mr. Davis pursued an appeal to the Court of Appeal. A single judge of that Court dismissed Mr. Davis' motion to stay the trial pending the Appeal. The Court of Appeal dismissed Mr. Davis' appeal on November 9, 2018, see R. v. Davis 2018 ONCA 946. On the first day of trial Mr. Davis argued for a change of venue, which was dismissed by me. The trial did not finish in the two remaining days scheduled and 4 more continuation days were scheduled – 2 in March of 2019 and 2 more in May of 2019. On March 10, 2019 Mr. Davis moved a second time for Certiorari in Superior Court, but his lawyer was not available to pursue that Application until June. There is therefore a second Certiorari in this trial scheduled for June 5, 2019 see R. v. Davis 2019 ONSC 1847. Mr. Davis' resort to Rule 43 of the Rules of the Superior Court has therefore ensured that this trial has been subject to some appellate guidance on an ongoing basis.

[4] On March 20, 2019 the Superior Court ordered the trial to continue as scheduled on March 25, 2019. Trial evidence was heard on March 25, and 26. Submissions were completed on March 26.

Overview

[5] Mr. Davis was arrested after York Regional Police (YRP) began investigating a series of shoplifting incidents. YRP officers organized themselves into a team which investigated the vehicle common to the shopliftings. The vehicle, its owner and another occupant of the car were surveilled and seen to interact with Mr. Davis. That lead to the arrest of Mr. Davis and the seizure of a substance and money.

[6] Mr. Davis alleges that the police violated his constitutional rights when they arrested him without reasonable and probable grounds, strip searched him during the booking procedure and submitted a Report to a Justice late.

[7] Mr. Davis, in his testimony, denied that he was in possession of the cocaine said to be found on him but admitted that the quantity is sufficient to make out the possession for the purpose of trafficking. He denied trafficking cocaine, and provided an explanation for the money found on him.

Evidence

Investigation of Shop Lifting

[8] Det. Borovskis was in a briefing on the morning of August 31, 2016. It was conducted by D/C Capurro into a series of shoplifting incidents which had a common get away car, namely an Oldsmobile Alero with licence plate 922 RJO. The owner of the car was Michael Marshall, and the briefing covered Mr. Marshall's personal details including his drug history. Capurro identified Mr. Marshall as the target of the days surveillance. Borovskis was joined in the briefing by: D/C Meredith Woodland; D/C Neil Matte; and D/C Graham Cummins. The objective for the day was to surveil the Alero, investigate the thefts and identify associates of Mr. Marshall.

[9] D/C Capurro located the Alero at about 10:50 that morning. He described the car as being unkempt and dirty. The team followed the car to an address on Weston Road where it picked up an unknown black male. The car went to an address on Wilson Avenue where that man left the vehicle and got back in.

[10] At 11:45 Det. Borovskis was on the road in a car doing plainclothes surveillance on the Alero with his team. They were in the area of Jane and Wilson Avenue in Toronto by then. By 12:25 there was an unknown person in the car with Mr. Marshall who was dropped off at Benson Road and Jane Street. The Alero was kept under surveillance as it went to 1775 Weston Road where it picked up a female at 12:45 pm. That female turned out to be Lynn Bennett.

[11] By 1:05 Det. Borovskis had seen the Alero drive into a parking lot at Highway 27 and Finch Avenue. It parked nose into a parking spot and then reversed out into another spot. That put it many spots away from a Harvey's restaurant in the plaza. Mr. Marshall was still in the driver's seat and Ms. Bennett in the front passenger seat. They stayed in the car. Two minutes later the car left the lot. It was surveilled by the team to a plaza at 6995 Rexdale Road. It was by then 1:15 pm. That plaza also had a Harvey's restaurant, and the car parked in a spot away from the Harvey's. Again Mr. Marshall and his female passenger did not leave the car. At 1:50 pm the car relocated in the same parking lot.

[12] Borovskis was not alone at this time. His team was making observations too and from this he learned from D/C Matte that the female passenger had waved to an unknown male parked in an adjacent lot in a Red Fusion. That male was later identified as Mr. Neil Davis.

[13] Matte told Borovskis that the female passenger left the Alero on foot and walked to the driver's side of the Fusion parked nearby. He reported to Borovskis that she had leaned into the vehicle and that shortly afterwards she and the male driver of the Fusion were seen standing beside the Red Fusion by the driver's door. Matte reported to Borovskis that right after that the female walked away from the Red Fusion with something clenched in her hand. She returned to the Alero directly, got in the front passenger seat with her head down looking at her lap area. The Red Fusion then left the parking lot. With that information Borovskis directed D/C Capurro and D/C Matte to arrest the occupants of the Alero for drug possession, because, with the information he had about Mr. Marshall being a drug user, the pattern of conduct he had seen and that his team had reported to him were consistent with a drug purchase.

Arrest of Mr. Marshall and Ms. Bennett

[14] Det. Borovskis explained that the basis for ordering the arrest of Mr. Marshall and Ms. Bennett was that in his 10 years experience investigating drug and property crimes he has seen thefts of baby formula to fund drug addictions. That and the combination of Mr. Marshall's age (he was 67), his long history of drug use, the parking of the car and then re-positioning and re-location to another Harvey's, along with the team observations of the female passenger meeting the male in the Red Fusion for a short duration, her clenching her fist as she left the vehicle to go back to the Alero and her gaze into her lap when she got into the Alero, gave him reasonable grounds to believe that she had just done a drug deal with the male in the Red Fusion. D/C Woodland also saw Ms. Bennett walk back from the Fusion to the Alero but didn't see her clench her hands and testified that she never saw a hand to hand transaction between Ms. Bennett and the driver of the Red Fusion.

[15] Borovskis ordered the arrest of the occupants of the Alero, who turned out to be Mr. Marshall, as they believed, and Ms. Bennett, who they didn't know before. D/C Matte and D/C Capurro were directed to make the arrest while Borovskis, and Dets. Woodland and Cummins continued surveillance on the second car, the Red Fusion. Their surveillance gave them its licence plate BZNT 861, which returned to a car rental agency.

[16] D/C Capurro testified that he approached the driver's side of the Alero and arrested Mr. Marshall. The female passenger had a crack pipe in her hands. She was arrested by Cst. Matte. Capurro searched Mr. Marshall, as well as the Alero. Mr. Marshall had $1.60 on him. On the front passenger side of the car was a fanny pack with a yellow Kinder Egg with something in it which looked like crack cocaine. D/C Matte testified that the arrest of Mr. Marshall and Ms. Bennett was at 2:06 pm. Matte broadcast on the police radio that drugs had been seized from Mr. Marshall and Ms. Bennett.

Continued Surveillance of the Red Fusion

[17] After Borovskis directed Officers Matte and Capurro to arrest the occupants of the Alero he continued surveillance on the Fusion with Officers Woodland and Cummins to a plaza at 3233 Brandon Gate in Mississauga. The trip from the location of the meeting with Ms. Bennett took about 15 or 20 minutes. D/C Woodland arrived at the Brandon Gate location first. Borovskis arrived and D/C Cummins arrived shortly after Woodland. The plaza had a large parking lot, but the Fusion parked along at the side of the building. The plaza was fairly empty.

[18] By this time Borovskis was advised by D/C Matte that the occupants of the Alero had been arrested and crack cocaine had been seized on them. Borovskis saw a male walk up to the driver's window of the Fusion, reach in, and walk away quickly. Borovskis thought that the short duration of that meeting was consistent with the one earlier with Ms. Bennett. Det. Borovskis testified that his experience led him to believe that the short duration of the exchange was consistent with the exchange of drugs for money.

[19] Borovskis described the lay out of the parking lot at Brandon Gate as large, and U or C shaped with a tent set up in the parking lot. It had people socializing. After the male pedestrian left the Ford Fusion, Borovskis, Woodland and Cummins set up observation points to observe the Fusion. Mr. Davis left the Fusion and went to the tent and socialized with the people in the area. He was wearing camouflaged Capri pants, and a blue T-shirt. Borovskis told Woodland and Cummins that he wanted to arrest Mr. Davis and coordinated a plan to do that. The arrest would be done once he left the tent area and returned to the Fusion.

[20] Borovskis testified that his grounds to arrest Mr. Davis were the original grounds to arrest Mr. Marshall and Ms. Bennett plus the information that crack cocaine was found when they were arrested, and the continued surveillance on the Red Fusion as it completes another short transaction with a white male as it was parked at Brandon Gate. He also added that the Fusion was a rental, which experience told him was a method for drug dealers to conceal their identity.

[21] The arrest of Mr. Davis took place at 2:20 pm. When he went back to the Fusion and entered the driver's door Borovskis went over the radio and ordered the arrest. Borovskis approached the Fusion. The drivers door was by then closed and Borovskis callled out "police", and "you're under arrest". He was wearing a police vest with the letters "Police" across the vest. As Borovskis approached the drivers door Woodland was approaching the passenger side window and yelled to Borovskis that the driver had put something down his waistband. As Woodland testified, it was a "plastic, clear bag like a ziplog bag". Borovskis opened the drivers door and immediately grabbed a hold of the drivers arms and repeated that he was under arrest and not to move. The driver was Mr. Davis, the accused.

[22] After Mr. Davis was arrested he was placed on the sidewalk beside the vehicle. Woodland put handcuffs on him to the rear. Borovskis then searched his waistband area and found a clear plastic sandwich bag in the waistband with a quantity of crack cocaine. It turned out to be just over one ounce. Woodland testified that it was the same plastic bag that she had seen on Mr. Davis earlier.

[23] Borovskis also located two large bundles of currency in his front pockets and a cell phone. Mr. Davis had been arrested for trafficking but once the bag of cocaine was found Borovskis advised him that he was also under arrest for possession for the purpose of trafficking. Some of the people from the tent area came over and could see the arrest.

[24] Borovskis read rights to counsel, and a caution. Mr. Davis said that he understood. Borovskis then explained the reasons for the arrest and Mr. Davis said that he had a personal lawyer. Borovskis had D/C Cummins and Woodland search the Fusion and they located a scale, ID for Mr. Davis and a car rental agreement. Woodland took custody of the exhibits. Borovskis handed the drug seizure to her. Woodland searched the whole car and found various receipts and a scale in the center console of the car. She found a small amount of marijuana in the pocket of the door.

[25] Borovskis requested that Peel Regional Police come to transport Mr. Davis to York Regional Police 4 district. D/C Woodland was present at the booking procedure for Mr. Davis and told the booking officer, Sgt. Kennedy, that he had concealed drugs and that potentially there would be other drugs on him. After Mr. Davis was searched and booked she asked him if he needed any food or water and he declined. She later provided him access to counsel. At 4:43, Counsel N. Rozier, an associate of Mr. Moon called and she put Mr. Davis on the phone with him.

[26] Borovskis denied in cross-examination that the arrest of Mr. Davis was racial profiling. He denied ever engaging in racial profiling during an investigation. He was cross-examined about the observations of the Alero when it was parked in the same lot as the Red Fusion. He denied that there was anything interfering with his team's ability to see the two cars. He was adamant that from the police observations there was a coordinated meeting between Ms. Bennett and the driver of the Fusion. He admitted that none of the cell phones seized during the arrests that day were analyzed. He denied drawing his sidearm during the arrest and denied that Mr. Davis was seated halfway out the driver's door when he was arrested. He denied putting his hands into Mr. Davis' groin during the first search. He denied planting the drugs on Mr. Davis.

[27] Capurro was also asked about racial profiling. He denied ever seeing Mr. Davis. He denied ever searching Mr. Davis' car. He denied framing Mr. Davis.

Report to a Justice

[28] After the arrest of Mr. Marshall, Ms. Bennett and Mr. Davis, D/C Capurro submitted a report to a Justice itemizing the things seized that day. It was done a little more than a month after the fact. Capurro was asked why he didn't submit the Report sooner and said that "I – that's an error simply that is on my part. I did not – I simply forgot at the time of and when it came to light I got it done immediately".

Evidence at the Station

[29] Sgt. Kennedy testified that he was the booking officer at 4 District on August 31, 2016. He booked Mr. Davis into the station at 15:28, and had spoken with Det. Woodland. She told him that when Mr. Davis was arrested he had drugs in his underwear. For that reason he ordered a level 3 search to be done on Mr. Davis. He called it a strip search. Two male officers did the search in the duty counsel room. Nothing was located.

[30] Sgt. Kennedy testified that strip searches are done by two officers off camera. As he put it, the level 3 search is "To protect, obviously his privacy, and depending on the officer, its literally: drop your drawers, just to ensure that there's nothing else concealed". He said that in 13 years as a supervisor he has done 3 or 4 strip searches.

[31] PC Shaw was the YRP officer who attended at the strip search. He had very limited memory of the day when he dealt with Mr. Davis. He identified himself in the booking video which was played in Court. In it he identified another officer dealing with Mr. Davis, beside himself and Sgt. Kennedy. At 15:43:22 the video shows him being tasked to strip search Mr. Davis. He and the Peel officer took Mr. Davis to the duty counsel room.

[32] On the video the three men leave the duty counsel room at 15:45:47 – about 2.5 minutes later. PC Shaw had very little memory of the strip search inside the duty counsel booth. He had never done a strip search before. He said that he had no physical contact with Mr. Davis' genital or anal areas, and had no memory of the other officer having any such contact. He couldn't say that there was zero contact. He recalled no use of force. He said that nothing was seized from Mr. Davis.

Certificates of Analyst

[33] The Crown submitted Certificates of Analyst in the case. One of them was returned unanalyzed.

[34] Mr. Moon objected to the admission of the Certificates because he had no notice that the Crown intended to do so. In an oral ruling I found that the notice provisions under the CDSA were repealed in May of 2017, before the trial date was set. I found that s. 50(3) is a procedural section, not a substantive one and therefore the Crown didn't have to prove notice as it did if s. 50(3) was in effect. Mr. Davis moved to cross-examine the lab analyst on the reason for sending back one of the samples unanalyzed but I denied that motion.

[35] D/C Woodland processed the exhibits. She weighed the cocaine seizure from Mr. Davis at 26.2 grams. From that seizure she removed 1.3 grams and put it in an exhibit envelope with an exhibit number 201417415. The bulk seizure was put in an exhibit bag D035936. She documented that the cash bundles seized from Mr. Davis were counted. One was $615, and a second had $4550, all in Canadian currency. That totalled $5615.

[36] The 1.3 gram seizure turned out to be too large and had to be re-submitted. On September 29 she took .2 grams out of D041715 (715) and gave it a new tag D0420962 (962). The remaining 1.1 grams from …715 was placed in a new bulk bag with tag D063000. The substance in 962 was tested by Health Canada as Cocaine. Woodland denied framing Mr. Davis. She admitted in cross-examination that the Drug Disposition report (Exhibit 6) had a typographical error insofar as that document alleges that 24.9 grams of cocaine was seized from Ms. Bennett, when in fact it was seized from Mr. Davis, as indicated in Exhibit 5.

Mr. Davis' Evidence

[37] Mr. Davis testified in his own defence. He is 35 years old and has a criminal record for drugs and failing to comply. On the day of his arrest he was driving a car which he had rented. He knew nothing of Ms. Bennett until she came up to his car while he was eating a meal from Harvey's. She asked him if he had cigarettes and tried to offer him something. He said he was good and she walked off. Mr. Davis doesn't smoke cigarettes. She asked him if he wanted something but didn't get into details. He never got out of his car. He said that exchange lasted about 5 or 7 seconds.

[38] Mr. Davis then drove to his next destination which was the plaza he was arrested at. He went there to visit the barbershop. His barber wasn't there so he waited on the patio. He was socializing when an acquaintance of his named DaCosta asked him for some change. He went to his car, gave him some change, and was then ambushed. The ambush was from 3 cars. The police had their handguns drawn. The female officer was yelling that he had a gun or something.

[39] Mr. Davis testified that he was pulled out of the open door of the car and laid on the side walk. The police went straight to his boxers. The officer's hand accidentally touched his genitals. Mr. Davis admitted that he had marijuana in his underwear, but not the cocaine alleged. He denied having a scale in his car. He did have money on him, it could have been "$4000 – something". The money was for rent because he was to meet a landlord that day to provide first and last months rent on a new condo that he and his girlfriend were renting. Mr. Davis testified that he was meant to move into a condo with his girlfriend at the end of August.

[40] When Mr. Davis was brought to the police station he testified to being brought into a room and being told to take off his socks and shorts and hand everything to the police one by one. He was completely naked. Mr. Davis was told by the Peel Officer to bend over and spread his cheeks. He wasn't touched in the strip search process.

[41] Mr. Davis testified to an incident in 2012 when his cousin's house was raided by the police. It was a bad incident. Mr. Davis ended up being dragged down the pavement by the police and his dog was killed.

[42] Mr. Davis denied possessing any cocaine on August 31, 2016 and denied trafficking it to Ms. Bennett.

Issues

Credibility

[43] Mr. Davis testified and denied culpability of all charges. This requires an analysis of his credibility. Where the defendant testifies in such manner the first step in the analysis is to determine if the defendant's testimony is believed, or if it raises a reasonable doubt. Much has been written about the Supreme Court's ruling in R. v. W.D, [1991] 1 S.C.R. 742. I find Justice Paciocco's essay on the topic to be both convenient and authoritative, see Doubt about Doubt: Coping with R. v. W.D. and Credibility Assessment (2017), 22 Can. Crim.L.Rev. 31, and I charge myself in accordance with those principles.

[44] Mr. Davis' evidence has frailties, which I would list as follows:

i) Mr. Davis has a criminal record which includes a recent conviction for failing to comply. This entry for an offence against the administration of justice detracts from his credibility which was exacerbated, to some degree by the fact that he disclosed only his drug conviction in his direct examination. His Fail to Comply entry only came out in cross-examination;

ii) He could not remember a number of things about the day of his arrest, including:

• how long he had his rental car for;
• how Ms. Bennett came up to his car at the Harvey's parking lot ("I remember a little bit of it");
• he was unsure how many police officers were there at the arrest. It could be four to five;
• he wasn't sure what the female officer was yelling. "I had a gun or something. She said something – he has something.";
• how much marijuana he had on him when he was arrested. It could have been a half a quarter, or "something like that";
• how much money he had on him;
• when he was to meet the landlord with his girlfriend the day of his arrest;
• when he actually met the landlord;
• how much the rent for his new condo was. Was it 13 or 14 a month;
• how he met Da Costa;
• Da Costa's real name, even if he saw Da Costa after his arrest;
• how long he knew Da Costa;
• how much the car rental fee was;

iii) Mr. Davis testified that he was meant to move into the condo at the end of August. By the time he was, on his evidence, getting a hair cut at Brandon Gate in Mississauga it was mid-afternoon on the last day of August. It is implausible that he was planning to meet a landlord and move into a brand new condominium with only several hours left in the month of August. On his evidence he had done nothing more to move into a condominium than make vague plans to meet a landlord that day. His evidence was quite shaky when pressed on his plans for moving into the condominium. He said that the landlord gave him the key at the end of August, but then admitted that he didn't get the key until he had been released on Bail in September;

iv) Mr. Davis wasn't sure when he had been arrested. He thought it was August 21st, and had to be corrected that it was actually 10 days later.

v) On Mr. Davis' evidence he had needed at most two rental installments of $1400 a month, namely just shy of $3000.00. His explanation for needing the cash for rent did not explain the reason for having much more than that on his person when arrested. His only explanation was vague at best. The money came from work, and he had extra money. He gets paid in cash and doesn't have a bank account. I could understand if the surplus above the rental payments was a few hundred dollars, but in this case Mr. Davis could not account for having over $2000 in cash on him.

vi) The person he gave change to was Da Costa. He was internally inconsistent about how much he knew about Da Costa. As he put it "I knew him, but I didn't know him personally".

vii) Mr. Davis struggled to explain why he even needed a rental car. He drove it to his uncle's house but didn't need to because he usually walked to his uncle's place who then drove him to whatever work site they were going to that day.

viii) Mr. Davis gave a contradictory explanation about knowing that the people ambushing him in the parking lot were police. First he said that he knew they were police from past experiences - he'd seen undercovers before. Later he said that they told him they were police. If the police did, as he ultimately admitted, identify themselves as police then his description of the scene as an 'ambush' detracts from his credibility.

[45] For these reasons I find Mr. Davis to be an incredible witness. I accept his admission that he had drugs secreted down his pants as an admission against interest but I cannot accept the rest of his evidence about what happened the day of his arrest. It is unworthy of belief. Nor does it raise a reasonable doubt.

Charter Arguments

[46] Defence raises the following Charter Based Arguments:

The Section 8/9 Argument: No Reasonable and Probable Ground for Arrest – Racial Profiling

[47] A lawful arrest is one in which the police officer subjectively believes that there are grounds to arrest and those grounds are objectively reasonable. It is the totality of the circumstances which furnish the basis for the objective assessment. See R. v. Lawes 2007 ONCA 10. As the Court of Appeal said in R. v. Canary 2018 ONCA 304 at par. 21,

The objective inquiry asks whether "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest": R. v. Storrey, [1990] 1 S.C.R. 241 at pp 250 – 251.

[48] The officer's experience matters. See Canary (supra) at par. 22. What is also clear is that where the officer's grounds for arrest are derived solely from their perception of the circumstances, the constitutional threshold is not met, see R. v. Brown 2012 ONCA 225.

[49] In this case I have no difficulty finding that Det. Borovskis had reasonable and probable grounds to arrest Mr. Davis. He had been following Mr. Marshall's Alero for some time, and his team had seen the passenger in the Alero engage in a short meeting with Mr. Davis. Immediately upon seeing that Mr. Marshall and Ms. Bennett were arrested and found in possession of drugs. There may well have been other explanations for them being in possession of cocaine, but the most prominent one was that Mr. Davis was the one who gave Ms. Bennett the cocaine. The seizure from the Alero so quickly after Ms. Bennett's meeting with Mr. Davis provided objective grounds for Det. Borovskis to believe that Mr. Davis had given the drugs to her.

[50] Mr. Davis' argument about RPG has an additional component, namely that the police engaged in racialized thinking, which infected the arrest in a manner which lead to a constitutional violation.

[51] Racism in the justice community is a matter which has been subject to thoughtful comment by senior appellate courts going back many years. That marginalized communities have been treated unfairly by the Courts in the past is now beyond dispute. See R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.); Peart v. Peel Municipality, 39 M.V..R. (5 th ) 123. What is clear and accepted is that racism and racial profiling is corrosive and unacceptable.

[52] Regrettably the problem has not gone away. More recently, another Court of Appeal Judge said,

Within Black communities, there is a prevailing perception that they have always been over-policed and targeted as criminals. This, some say, reinforces insidious stereotypes associating Blacks with criminality.

Justice M. Tulloch Independent Police Oversight Review 2017

[53] A generation ago, In R. v. Parks (1993), 65 O.A.C. 122 Doherty J. A. observed that,

42 The existence and the extent of racial bias are not issues which can be established in the manner normally associated with the proof of adjudicative facts. Unlike claims of partiality based on pre-trial publicity, the source of the alleged racial prejudice cannot be identified. There are no specific media reports to examine, and no circulation figures to consider. There is, however, an ever growing body of studies and reports documenting the extent and intensity of racist beliefs in contemporary Canadian society. Many deal with racism in general, others with racism directed at black persons. Those materials lend support to counsel's submission that wide-spread anti-black racism is a grim reality in Canada and in particular in Metropolitan Toronto.

43 That racism is manifested in three ways. There are those who expressly espouse racist views as part of a personal credo. There are others who subconsciously hold negative attitudes towards black persons based on stereotypical assumptions concerning persons of colour. Finally, and perhaps most pervasively, racism exists within the interstices of our institutions. This systemic racism is a product of individual attitudes and beliefs concerning blacks and it fosters and legitimizes those assumptions and stereotypes.

[54] More recently, Harris J. rendered a thoughtful judgment on the topic of racial profiling which I found quite helpful, see R. v. Byrnes 2019 ONSC 1287. In it he ruled that,

[23] It is easy to be seduced into thinking that racial profiling should be approached in a different way and with a higher degree of rigor than other Charter issues the conduct of the police: see counsel's position in R. v. Richards, at para. 25. This would be wrong. It is true that a racial profiling conclusion may have more profound and wide-ranging social implications than the run-of-the-mill Charter issue. But the judicial tools and methods used to ascertain whether racial profiling is present are no different than those used in other Charter cases. Moreover, the level of scrutiny remains the same: Peart , at paras. 102-103 .

[55] I would therefore make the following findings. Standing on their own, the police in this case had RPG to arrest Mr. Davis. There is no evidence that Mr. Davis was targeted because of skin colour. Notably his arrest only came some 14 minutes after the arrest of Mr. Marshall and Ms. Bennett. The seizure of drugs from Ms. Bennett was the information which Det. Borovskis took, along with the rest of the day's information, and made the order to arrest Mr. Davis. Sometimes racial profiling can become manifest when the reasons for a detention are spurious: a pedestrian stopped because of something which doesn't look right according to the police; or a motor vehicle seemingly singled out for no obvious reason. The list of situations exposed to racial profiling is not fixed. But this is not one of those cases. On the evidence before me the police were pursuing Mr. Marshall because he was tied to a series of thefts. He led them to Ms. Bennett who then led them to Mr. Davis. The grounds to arrest Mr. Davis were developed and built over a span of hours. Having paused to reflect on whether racial profiling played a part in Mr. Davis' arrest I reject that submission.

[56] For these reasons the first Charter Argument is dismissed.

Was the search of Mr. Davis a violation of his rights in the manner of the search?

[57] Mr. Davis alleges in this limb of his Charter argument that the police violated his rights when they strip searched his underwear at the scene of the arrest and then later at the police station when PC Shaw and the unnamed Peel Officer did a level 3 search of his body during the booking procedure.

[58] In my reasons above on Mr. Davis' credibility I rejected his evidence, save and except for his testimony that when he was arrested he had drugs in his underwear. In his evidence the drugs were marijuana. I accept that he had contraband in his underwear, but I reject his evidence about the nature of the drugs.

[59] With that finding of fact in place I make the following findings. When Mr. Davis was arrested at the Brandon Gate plaza he had contraband down his pants. As Det. Borovskis explained, he searched the waistband area and found a plastic bag with drugs. He was alerted to this by D/C Woodland, who saw Mr. Davis put the drugs down his pants. There is no evidence that I accept that the search at the roadside was anything more invasive than that.

[60] When Mr. Davis was brought to 4 District for booking, D/C Woodland told Sgt. Kennedy that Mr. Davis had tried to hide contraband in his underwear. With that information in hand Sgt. Kennedy ordered a level 3 search of Mr. Davis. The only evidence that I have is that such a search is quite rare. The basis for the search was the fact that Mr. Davis had tried to hide contraband in his underwear, and a level 3 search was required to rule out anything more in there.

[61] I am also prepared to find that the search at 4 District was conducted in less than 3 minutes by PC Shaw and an as yet unnamed officer from Peel Regional Police. The Crown did not lead evidence about who, other than PC Shaw did the strip search at the station. Nonetheless, the strip search occurred in a private room. There is no real record of the search other than the video showing Mr. Davis and the two officers going into, and out of the Duty Counsel room for the search.

[62] There is no evidence of anything more invasive than a visual inspection of Mr. Davis' genitals and anal areas and there is no evidence of any real physical contact. Even with the adverse finding of credibility against Mr. Davis, he said the same in his evidence.

[63] In R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679 the Supreme Court set out several questions which provided a framework for the police when deciding how to conduct a strip search in a Charter compliant manner. They are:

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?

[64] In the case at Bar, the search of Mr. Davis at 4 District attracts the following analysis. The search was conducted at a police station, in private and on consideration by the Sergeant in charge of the station. Officers of the same gender did the search, and there is no evidence that the search involved anything more than a minimum of force. The search took less than 3 minutes from beginning to end, which is very brief. There is no evidence of anything more than a visual inspection of Mr. Davis' genital and anal areas. There is no record of the search other than the video, which can tell only when the search started and when it ended.

[65] When cast against the facts of this case all of the factors listed by the Court in Golden point towards a Charter compliant search at 4 District. What pulls in the other direction is the fact that there is no record of the manner in which the search was conducted. PC Shaw had very little memory of it. This, I find, is a minor deviation of the guidelines from Golden. The brevity of the search, and the appearance of Mr. Davis going both to and from the Duty counsel room lead me to conclude that he was not distressed by the level 3 search. The minor deviation from the Golden guidelines is insufficient to found a Charter violation, see R. v. Lee 2018 ONCA 1067.

[66] I also find that Mr. Davis' actions in secreting contraband down his pants when first confronted by the police was sufficiently exigent to warrant Det. Borovskis searching his waistband to retrieve the baggie. Even if Mr. Davis was handcuffed upon arrest it is verging on absurd to suggest that the police had to leave the drugs in his waistband until they arrived at the police station. I would not do so. There is no evidence that the search of his waistband at the roadside involved anything more than Borovskis reaching into the waistband portion of the underwear and pulling out the drugs. No clothes were removed. By all accounts it was a very brief single action. There was no aspect of violation of Mr. Davis' personal privacy in the search. The roadside search did not lead to a Charter violation.

The Return to a Justice was filed 27 days after the arrest

[67] The Crown agrees that the Report to a Justice was filed late and that such a delay resulted in a Charter violation under s. 8. The defence accepts that if that is the only Charter violation then no exclusionary remedy under s. 24(2) would follow.

[68] D/C Capurro was candid with the Court that he had made a mistake in filing the Report to a Justice late. In this case the Report was filed one month after the seizure, and it should have been filed within a day or two. It is therefore about one month late. Filing the Report is not a meaningless exercise in paperwork see R. v. Canary 2018 ONCA 304, but with that said, I would not find that its late filing by D/C Capurro is a serious violation of Mr. Davis's rights. The initial seizure of both