R. v. Adams

Court: Ontario Court of Justice

Date: November 20, 2019

Between:

Her Majesty the Queen

— AND —

Samantha Adams

Before: Justice B. Green

Heard on: September 30th, October 4th, October 22nd and 23rd

Reasons for Charter ruling released on: November 20th

Counsel:

• Mr. G. Black, for the Crown
• Ms. D. Condo, for the Defendant

A. Introduction

[1] Ms. Adams is charged with three counts of possession for the purpose of trafficking. Following an arrest for a firearms offence, she surrendered a variety of drugs that were secreted on her person to a cell Sergeant while she was being paraded at the police station.

[2] The trial proceeded by way of a blended voir dire and the crown called its entire case. Counsel indicated that she did not have any witnesses to call for the issues to be determined on the voir dire and the crown closed its case. Counsel is seeking a ruling on the voir dire before continuing with the trial proper.

[3] Counsel submitted that, as a result of a cumulative series of Charter violations, the evidence of the statements that Ms. Adams made during the parade process as well as the drugs that she surrendered in response to questions that she was asked by the cell Sergeant should be excluded from the trial. Counsel argued that:

i. The police did not have reasonable grounds to arrest Ms. Adams and violated her rights as protected by sections 8 and 9 of the Charter;

ii. The police ignored their professional and constitutional obligations to implement Ms. Adams' rights to counsel without delay thereby flagrantly breaching her section 10(b) Charter protected rights;

iii. The police strip searched a visibly upset 19-year detainee without reasonable grounds. The manner of arrest and subsequent detention was an unjustified and unconstitutional violation of her Charter protected rights; and

iv. The state misconduct was very serious. This Court ought not to be seen to condone it. The impact on Ms. Adams' Charter protected interests was so significant that the evidence ought to be excluded.

[4] Although the voluntariness of Ms. Adams' statements to the cell Sergeant was initially in issue, counsel abandoned this argument during submissions.

[5] The crown submitted that there were reasonable grounds for Ms. Adams' arrest and the strip search that occurred later on at the station. Alternatively, if the Court finds that the strip search breached Ms. Adams' rights, the crown submitted that the appropriate remedy is a sentence reduction pursuant to section 24(1) of the Charter as opposed to an exclusion of the evidence.

[6] The crown eventually conceded that the police violated the accused's rights to counsel by failing to implement her access to counsel for hours. However, he submitted that this breach only occurred after the Defendant voluntarily handed over the drugs that she was concealing on her person and after she was strip searched. Furthermore, the crown submitted that the implementational breach was minor and merely technical and it would be contrary to the public interest to exclude the evidence.

[7] While I agree that there were reasonable grounds for Ms. Adams' arrest, the police flagrantly violated Ms. Adams' rights to consult with counsel. The crown's position that this breach only occurred after Ms. Adams was finally paraded is irreconcilable with the unequivocal requirement that the police must implement the rights to counsel "without delay". Moreover, the police performed a full strip search without first performing a pat down or giving any apparent consideration to the unique circumstances of this detainee or the nature of the allegations with respect to each of the individual detainees involved in this arrest. The police misconduct was neither trivial nor were the breaches technical. These violations were serious and the impact on Ms. Adams' rights was significant.

[8] These are serious charges of possession for the purpose of trafficking in potent dangerous drugs. While society undoubtedly has an interest in an adjudication on the merits, our community also has an interest in ensuring that the police respect Constitutional rights, diligently ensure that the rights to counsel are implemented and do not engage in invasive and degrading strip searches of detainees without reasonable grounds. It is important to set out the facts and a detailed legal analysis that has lead to my findings that the breaches of Ms. Adams' rights were so significant that the admission of this evidence would undermine the integrity of the criminal justice system.

B. Facts

i. The initial arrest

[9] On December 14th, 2018, various police officers were responding to a serious incident that occurred very close to the main police station in Oshawa. Acting Duty Inspector Patrick (hereinafter referred to as Inspector Patrick) was on scene addressing the incident when another call for service was received from dispatch. A tow truck driver called the police to report that he was following a possible impaired driver that was close by Inspector Patrick's location. As a result, he chose to respond to the call. Other officers must have also heard the dispatch because they arrived on scene shortly after Inspector Patrick.

[10] Inspector Patrick quickly located the subject vehicle and began following it. He could see three people in the back of the vehicle who appeared to be looking back at him and he noticed some movement within the back seat. He was aware that the tow truck driver reported that he observed a bottle of Crown Royal alcohol being passed around by the occupants. Inspector Patrick decided to pull the vehicle over. His investigation was initially entirely focussed on the driver since he was conducting a sobriety check. He did not speak to any of the occupants in the vehicle other than the driver. He noted that there were 4 occupants in addition to the driver. One male in the front passenger seat and another male and two females in the back seat.

[11] Inspector Patrick asked the driver to exit the vehicle and he moved him towards his police vehicle. He did not make any observations of any weapons in or around the driver. As Inspector Patrick was dealing with the driver, other officers were arriving on scene. The occupants of the vehicle suddenly exited without any prompting by the police. Ms. Adams emerged from the rear of the vehicle. She was immediately confrontational and verbally abusive with the police. She was yelling, screaming and swearing. In contrast, one of the other rear occupants chose to quietly walk away from the scene. None of the officers who were present tried to detain this unidentified male nor were they interested in any of the other occupants at that point.

[12] I find that Ms. Adams was not detained in any way when she chose to instigate a verbal confrontation with the police. She accused the police of arresting her "man" because he was black even though she used racial epithets while referring to him. As Inspector Patrick moved the driver away from the vehicle and towards his cruiser to arrest him, Ms. Adams continued to yell at him and she approached him. Officer Wintle was one of the other responding officers and his attention was immediately drawn to Ms. Adams because of her excited state and verbally abusive conduct.

[13] PC Wintle interacted directly with Ms. Adams. He is an experienced police officer who has been employed by Durham Regional Police Services for 20 years. He should be very familiar with the duties of the police with respect to frisk searching and the implementation of the rights to counsel.

[14] Ms. Adams was screaming that the police were racist and demanding to speak to a senior officer on the scene. PC Wintle felt that she was "trying to draw attention to herself". This behaviour seemed to be an exaggerated reaction to the situation that both Officers Patrick and Wintle believed was intended to distract them. PC Wintle tried to explain the reasons for the stop to her and that their behaviour was not racially motivated. While he was interacting with Ms. Adams, PC Wintle heard a commotion from the back of the subject vehicle. Inspector Patrick explained that the commotion was as a result of the front passenger unexpectedly diving back into the driver's seat area of the vehicle. Two officers jumped on that person and they yelled "gun". A struggle ensued within the vehicle between the officers and the person who had been the front passenger.

[15] Although there were some issues during the evidence with respect to what the officers heard or saw or what they were told by other officers, I accept that Inspector Patrick believed that a gun was thrown from the back-seat area of the vehicle during the struggle. The gun was a fully loaded prohibited 9-millimetre Smith and Wesson handgun with spent casings in the breach.

[16] The scene became very chaotic considering how a routine stop suddenly turned into a very dangerous situation. The area where the vehicle was stopped is in the center of Oshawa and it is busy and populated even at that time of night. Inspector Patrick described the area as mixed residential and commercial area with a men's hostel right across the street. There were several officers on scene who were trying to control four suspects at once while also trying to ensure their own safety and the safety of anyone around them.

[17] PC Wintle heard officers yelling gun and he actually saw a gun "flying through the air and landing on the sidewalk." He immediately grabbed onto Ms. Adams and used a grounding technique that he referred to as "spinning" to arrest her. He grabbed her arm, spun her around and forcibly pushed her to the ground while holding on to one of her hands to gain immediate control. He handcuffed her while she was on the ground. He did not have time at that moment to pat her down or frisk search her because he was focussed on the "preservation of the public". He drew his firearm to take control of the other female occupant because she was standing close to where the firearm had been thrown on the ground. Tactical officers attended and they took custody of Ms. Adams while PC Wintle secured the scene.

[18] Inspector Patrick advised all the officers to arrest the occupants of the vehicle for possession of a prohibited weapon. He recalled having a discussion with PC Wintle and he clearly recalled making the decision with respect to the grounds for the arrest of the occupants of the vehicle. PC Wintle explained that he initially made the decision to arrest Ms. Adams because she was in the vehicle and her conduct with the officers. This was a highly stressful, dangerous and volatile situation in which officers had to make quick but informed decisions based on the information that they had available to them at the time. Ms. Adams was arrested for being in joint possession of a loaded prohibited handgun.

ii. Time period between the arrest and the parade

[19] After speaking with other officers, PC Wintle returned to his cruiser and discovered that Ms. Adams was detained in the back seat. He did not know if the tactical officers patted her down or searched her before placing her in his cruiser. By the time he returned to his cruiser, the scene was under control. He had time to perform a pat down to ensure that she had no weapons on her or anything that could harm herself or anyone else. Counsel specifically suggested to the officer that he had no "concern to search my client before taking her to the station". PC Wintle would not initially answer the question. Instead, he kept explaining that the situation was "chaotic" and that he did not know if she had been searched by the tactical officers. After being directed by the Court to respond to the question, he finally agreed that it was fair to say that he did not have any concerns with having Ms. Adams in the back seat of his police vehicle without knowing whether she had been frisk searched.

[20] PC Wintle informed Ms. Adams that she was being arrested for possession of a prohibited weapon and he read her rights to counsel and caution. Ms. Adams yelled "yes, I want my fucking lawyer". He did not recall any further conversation. During cross-examination he was confronted with the contents of his written report that indicated that Ms. Adams was actually "yelling at me that she wanted to speak to her lawyer and her mother" as he approached his vehicle. Albeit rudely, she was unquestionably asserting her rights to counsel.

[21] PC Wintle drove the two minutes that it took to get to the station. Once in the parking lot of the police station, there was a significant delay with parading each of the accused. The arresting officers waited in the parking lot until they were advised that it was their turn for the parade process. An understanding of the time line of events is essential to contextualize my findings with respect to the complete lack of any effort by the police to implement Ms. Adams' rights to counsel other than a perfunctory call in the middle of the night hours later:

Timeline of Events:

• 10:10 p.m. — Dispatched to respond to a possible impaired driving
• 10:13 p.m. — Inspector Patrick was the first on scene and he stopped the subject vehicle
• 10:15 p.m. — Driver arrested for impaired driving by Inspector Patrick and Ms. Adams began yelling and screaming at police
• 10:16 p.m. — Police yelled gun and Ms. Adams was forcibly grounded and handcuffed by PC Wintle. Tactical officer responded and took custody of Ms. Adams
• 10:30 p.m. — PC Wintle discovered Ms. Adams was in the back of his police vehicle with her hands cuffed behind her back. He informed her of the charge against her and read her rights to counsel and caution. She immediately asserted her rights to counsel
• 10:32 p.m. — PC Wintle arrived at the central cells parking lot with Ms. Adams in the back seat with her hands cuffed behind her back
• 11:20 p.m. — Ms. Adams was finally brought in to be paraded after 48 minutes waiting while handcuffed behind her back in the back seat of a cruiser

[22] PC Wintle left Ms. Adams in handcuffs in the backseat of his cruiser for 48 minutes at the rear entrance to the police station until he received instructions to bring her in to the station to be paraded. During that period of time, Ms. Wintle did not even consider whether he should take any steps to implement Ms. Adams rights to counsel. He was asked what he was doing while he was waiting during cross-examination. He recalled that he was sitting with Ms. Adams in the cruiser. Counsel suggested that what really happened was that PC Wintle left her client alone in the back seat of the cruiser during this time period and he denied that had occurred. Counsel repeated PC Wintle's response to him that "you believe you stayed in the cruiser". He replied that, other than when he briefly went inside to inform the cell sergeant of the particulars, "I believe so". Counsel challenged PC Wintle about leaving her client alone in the back seat of the cruiser and he said restated that, other than a period of a few minutes when he went into the station, "I don't recall being at the back parking lot and leaving my vehicle".

[23] Counsel introduced a video of PC Wintle's recorded conduct in the parking lot while he was waiting for Ms. Adams to be paraded. It was evident that he had not seen the video before he testified since his recollection of remaining in the vehicle did not accord at all with what he was actually doing during those 48 minutes. For a significant portion of the 48 minutes, PC Wintle was video recorded walking around outside of his police vehicle, casually conversing with other officers in the parking lot and he appeared to be talking on a cell phone. At some points, he walked so far away from his cruiser that he can't even be seen on the recording. PC Wintle didn't appear to have any safety concerns with leaving Ms. Adams alone and he did not directly supervise her while she was in the back seat of his cruiser. When confronted with his behaviour in the recording, he indicated that he didn't recall "any of this really".

[24] During the recording, PC Wintle went to the back-seat window and appeared to be conversing with Ms. Adams. He speculated that he was explaining the procedure to her. When counsel pressed him on why he was talking to her client through the window of the closed cruiser door for 3 minutes, he said that he didn't have an answer, he couldn't remember what she was saying but then he suddenly recalled that she was "yelling expletives" at him.

[25] I accept that Ms. Adams was verbally abusive and belligerent when she first encountered the police and when she asserted her rights to counsel. These observations were shared by Inspector Patrick and recorded in PC Wintle's notes to refresh his memory. The crown referred to Ms. Adams' "less than admirable" behaviour towards the police which may have influenced the officer's choices with respect to accommodating access to counsel. Undoubtedly, her behaviour at the roadside and the manner in which she initially asserted her rights to counsel was far from ideal. I do not condone the unwarranted verbal abuse of police officers. Nevertheless, this misconduct does not alter the officer's constitutional obligations.

[26] While I accept that Ms. Adams was belligerent at the roadside and swore when asserting her rights to counsel, I do not accept that there is any credible or reliable evidence that she was verbally abusive after PC Wintle left the scene and headed to the police station. PC Wintle did not relate any observations of Ms. Adams behaviour while she was in the cruiser on the way to the station. Once he arrived at the station, PC Wintle clearly stated that he did not have any recollection of the time he spent in the parking lot. It was obvious that he didn't recall what really happened. I do not accept that he ever explained to Ms. Adams what was going on when he arrived at the station. I do not accept PC Wintle's spontaneous recollection that she was yelling and swearing at him from the back seat. I accept the evidence of the other officers who checked on Ms. Adams that she was yelling at one point from the back seat of the cruiser because she was complaining about medical issues.

[27] It was evident in the recording that there were female officers in the parking lot while they were waiting to be paraded, including the officer who ultimately strip-searched Ms. Adams. If Officer Wintle had any safety concerns that required this young woman to be handcuffed behind her back for a long time, he could have removed Ms. Adams from the back seat of the cruiser and a female officer could have patted her down in an area that he knew was recorded. Nevertheless, PC Wintle insisted that he would not have removed her handcuffs due to safety concerns.

[28] There were four prisoners in total to be paraded and a lot of traffic in that back parking lot. PC Wintle was aware that there was going to be a significant delay before Ms. Adams was paraded. He knew that she was demanding to call her counsel of choice. In these unusual circumstances, despite the police practice that a detainee does not get to call counsel until after being paraded, he should have turned his mind to his implementational duties. He could have taken various steps to fulfill his professional obligations. For example, at the very least, he could have called Ms. Adams' counsel of choice to advise her that her client was in police custody. He should have considered whether there were feasible options to call counsel while in the cruiser by herself since he clearly felt comfortable giving her plenty of privacy. Instead, he did absolutely nothing because it was not a "secure area" and he didn't feel there was any "appropriate place" for her to exercise her rights to counsel.

iii. The parade and the strip search

[29] Once inside the station, the interaction between Ms. Adams and the cell Sergeant was both audio and video recorded. It is evident from a review of the recording that Sergeant Swain had decided that Ms. Adams was going to be strip searched before he ever even spoke with her. As she was brought to the parade desk, the door to the search room was opened and female officers arrived and stood beside Ms. Adams.

[30] Ms. Adams immediately and politely asserted her rights to counsel and advised Sgt. Swain of her lawyer's name and where she practiced law. She told the police that she had a cell phone in her bag, but she didn't know where her bag was at that time. There were two Sergeants on duty in the cells. As Ms. Adams was speaking with Sgt. Swain, Sgt. Davidson looked up the contact information on the computer for her lawyer. Even though they had her lawyer's information, none of the officers made any attempt to contact Ms. Condo and apprise her of her client's arrest or that she was about to be strip searched.

[31] Ms. Adams was visibly upset and shaken. She pleaded with the Sergeant to call her mother and he assured her "for sure she'll be called". He asked her about any medical conditions, and she related that she has "anxiety that's all, like I'm crying, like I can't breathe". The Sergeant told her she was doing a "a great job" and continued to ask her questions about whether she had consumed any alcohol or drugs. They had the following exchange:

SS: Do you have any injuries?

SA: I have broken ribs now

SS: Right now?

SA: cause they broke them, yeah

The sergeant completely ignored her indication that she had an injury that was inflicted during her arrest. He did not ask her if she wanted medical help instead, he continued to question her:

SS: Do you own or have access to firearms

SA: I am not going to lie I have a knife in this thing here (she gestured to a bag of some kind)

Cst.: Don't reach for it

SA: I'm not I was pointing, I was not reaching I'm just pointing, I was just showing you guys

SS: you don't own or have access to firearms?

SA: No, I have a knife there and I'm not going to lie I have cocaine in my bra

SS: Samantha listen to me, I'm going to advise that because there were weapons located (unintelligible) there was lots of (unintelligible) found, a female officer and this female officer will be conducting a detailed search

[32] Ms. Adams was coherent and emotional during this process. She had lost all track of time. She told the police she wanted her lawyer, her mother and that she was injured. All of these requests and concerns were ignored by the police. Ms. Adams was not swearing, she was not belligerent or abusive in any manner during the parade process. Quite the contrary, she was articulate, appropriately responsive to the questions being asked and entirely cooperative with Sgt. Swain. She assured the police that, other than the knife in her bag and the drugs in her bra, she had nothing else on her person. In addition, once she removed her sweater, it would have been challenging to conceal items in the type of clothing that she was wearing.

[33] It is essential to note that Inspector Patrick testified that he did not have any involvement or provide additional grounds to any police officer or sergeant to perform a strip search on Ms. Adams. His recollection makes sense since he did not have any direct involvement with Ms. Adams' physical arrest or transportation. Although Inspector Patrick indicated that he does not have the police directives memorized, he related that a cell sergeant must approve any strip search before it is conducted, and an officer must provide reasonable grounds for a detailed search to the cell sergeant.

[34] Sgt Swain testified that Inspector Patrick had provided him with grounds for a strip search for all four arrested parties, but it became apparent during his evidence that the only information that was provided to Sgt. Swain with respect to this individual was that she was arrested for possession of a loaded prohibited firearm. Sgt Swain referred to this information as "solid grounds" for a detailed search. I find that Inspector Patrick did not request a strip search and I find that he did not provide additional reasonable grounds for a strip search of Ms. Adams to Sgt. Swain.

[35] PC Wintle testified that he did not provide anyone with grounds to conduct an invasive strip search. He didn't even know Ms. Adams was going to be strip searched until he was standing at the parade desk. Moreover, he agreed that he did not engage in a pat down search and he did not have any concerns about searching her prior to going to the station. At page 125 of the transcript, the arresting officer testified as follows:

Q. you did not know that Ms. Adams was going to be strip searched when you brought her into the central block?

A. No, I had no cause to believe that she was going to be strip searched.

Q. And, to you and your handling of Ms. Adams, there was no reasons for her to be strip searched; do you agree with me?

A. in my handling of her?

Q. yes.

A. yes, that's fair.

[36] Sgt. Swain explained that he is responsible for the health and safety of prisoners in his custody. He related that the grounds to strip search Ms. Adams would have been provided to him by the arresting or investigating officer. There is no evidence that any officer provided him with reasonable grounds to strip search Ms. Adams. Rather, he related that he had been told that a weapon with live rounds was recovered from a vehicle that Ms. Adams occupied. He did not relate being aware of any additional information like where Ms. Adams was in the vehicle, where the gun was located or what happened at the scene. Rather, it was apparent that his view was that nothing more than an allegation that a detainee was arrested for being in a vehicle with a loaded firearm was necessary to justify a detailed search.

[37] Although Sgt. Swain had already made the determination that a detailed search would be conducted prior to Ms. Adams being paraded, once she was paraded, he testified that he had additional grounds because she admitted that she had cocaine in her bra and a knife on her person. He did not however, consider her age, her antecedents if any, her attire or her cooperation with the police while she was being paraded. He did not consider any alternative means of searching her or even inquire whether she had been frisk searched prior to her parade. He did not consider any other options like using a metal screening device that he agreed was available in the 17 division cells. He did not consider that she was wearing very little clothing once she removed her sweater and her shoes during the parade. She assured the officers that she had nothing else in her pockets. She had a tight bandeau covering her bra and tight pants on.

[38] Sgt. Swain could not explain why he felt that it was necessary to escalate to strip searching this particular detainee other than reciting the standard policy reasons for why he would authorize a detailed search. In his role as the cell Sergeant, he needs to determine if the detainee has anything on them that could injure themselves or someone else whether that is a weapon or drugs. He had to determine if the person has anything on them that could be used as a means of escape and/or whether they are in possession of any evidence related to the crime. Finally, a detainee cannot be lodged in the cells until s/he has been searched.

[39] These were all very generic grounds without providing any evidence specific to this decision, this accused or these unique circumstances. I find that Sgt. Swain believed that a detailed search could be conducted in every case with individuals who were arrested for being an occupant of a vehicle with a loaded firearm. The additional grounds for the search of Ms. Adams turning over drugs that were secreted on her person occurred after he had already made the decision to strip search her.

[40] In terms of the actual search, none of the officers who were present explained to Ms. Adams what it meant to be subjected to a "detailed search". Instead, two female officers accompanied her into a private room to conduct the search. Neither or these female officers inquired about or conducted a frisk search first. Neither of them inquired about or noted the grounds for the detailed search of this particular accused. Neither of these officers took detailed notes of the search process. Neither of them could recall most of the details of the search other than it was routine. They described Ms. Adams as polite and cooperative despite the circumstances. They did not touch her during the search process. Ms. Adams handed each of her pieces of clothing to the officers and they searched the clothing. They agreed that she would have been asked to lift her breasts so they could look underneath them. Since neither of the female officers could recall the details, they could not specifically say if Ms. Adams was completely naked in the room during the search other than reciting usual practices. One of the officers recalled that Ms. Adams was instructed to bend over while she was undressed and spread the cheeks of her behind while they visually examined her.

[41] I acknowledge and appreciate that one of the female officers was very gentle with Ms. Adams. This officer even held Ms. Adams' hand after the search process was complete and they stepped out of the room. This act of kindness however, does not alter the degrading and humiliating search that Ms. Adams was subjected to in the room.

[42] The full parade process and subsequent strip search was relatively brief:

• 11:27 p.m. — Ms. Adams was finally paraded in front of the cell Sergeant and immediately requested to speak to her lawyer and gave the name of that lawyer
• 11:29 p.m. — Female officers arrived at the front desk to conduct the strip search and officers opened the search room door
• 11:30 p.m. — Ms. Adams advised the Sergeant that her ribs were broken, and her medical complaint was completely ignored
• 11:31 p.m. — In response to a question about whether she has a firearm, she volunteered information that she had a knife in a pouch on her side and cocaine in her bra and assured the police she had nothing else on her person
• 11:33 p.m. — She voluntarily removed the drugs from her bra and handed them to the police, she was immediately told that "you are going to be charged with the cocaine" and she replied, "I know". She was taken into a room and a strip searched over a period of 4 minutes
• 11:37 p.m. — She exited the room and she was told again that there would be additional charges for the cocaine

[43] The police did not find any other prohibited items on Ms. Adams. Once Ms. Adams exited the search room, she was advised again that "the cocaine your going to be charged with. The cocaine is going to added onto your charges, you still got a right to call a lawyer. We're going to take care of that." She provided the police with the name of an alternative counsel that the police could call if they could not reach Ms. Condo stating, "you're going to have to call Michael Jusky. He is in Toronto." Despite the assurance that her counsel of choice would be contacted, once again the police did nothing to implement her rights to counsel.

iv. Time period after the strip search

[44] Ms. Adams asserted her rights to contact counsel from the moment of her arrest, throughout her interactions with PC Wintle and on the parade video. Despite Sgt. Swain assuring Ms. Adams that her mother would be contacted, and her lawyer would be contacted, none of the officers responsible for the implementation of her rights took any steps to make any calls on her behalf. Instead, even though she was clearly told on the parade video that she was facing additional charges of possession of narcotics, PC Wintle took his time to weigh and sort out the drugs that were recovered from Ms. Adams before he took any steps to call anyone.

[45] PC Wintle determined that Ms. Adams was in possession of individually packaged amounts of cocaine, methamphetamines and marijuana. He claimed that he wanted to determine the exact amounts and nature of the drugs before giving her the opportunity to call a lawyer because he wanted to inform her of the charges that she was facing before she consulted with counsel. I found this explanation insincere. Ms. Adams had been clearly advised twice that she was facing additional charges of possession of narcotics. If the officers decided that they were going to charge her with more serious offences of possession for the purpose of trafficking after they processed the drugs, they could have given her another opportunity to consult with counsel at that time. There was no reason to delay implementing her rights to counsel in these circumstances.

[46] PC Wintle showed little if any regard throughout his dealings with Ms. Adams for his professional obligations to implement Ms. Adams rights to counsel. Accordingly, counsel challenged him about his understanding of what it means to provide access to counsel without delay and he replied, "that means as soon as practical". That is, whenever it was practical for PC Wintle to make the call, that's when he chose to do it. PC Wintle left Ms. Adams sitting in a cell for more than an hour after she had been strip searched before he spoke with her again:

• 12:50 p.m. — An hour after she had been searched, PC Wintle attended the cells and advised Ms. Adams of the additional charges of possession for the purpose of trafficking
• 1:05 a.m. — PC Wintle finally called Ms. Condo and left a message
• 1:10 a.m. — PC Wintle made a phone call to the other counsel Ms. Adams mentioned and left a message
• 2:30 a.m. — PC Wintle finally attended the cell and indicated that her lawyer had not called back. He did not give her any other options to speak with any other counsel at that point

[47] Ms. Adams was in police custody in the back seat of a cruiser for some time between 10:15 and 10:30 p.m. without being advised of her rights to counsel. This initial period of delay was entirely justified because the police were dealing with a dangerous emergency situation. Once that situation was under control, PC Wintle should have had different priorities. Instead, he disregarded his obligations to implement Ms. Adams' rights to counsel for the next three hours. The statement that best summarized PC Wintle's view of when he was required to implement the rights to counsel was when he testified that, "I made the call as soon as I found it practical". He explained that this delay was due to three reasons:

• He would not remove the handcuffs from Ms. Adams while she was in the cruiser due to officer safety concerns and there was no appropriate place to consult with counsel so she couldn't call counsel at that point
• Ms. Adams had to be paraded prior to being able to speak with counsel and they were waiting in line to be paraded and then she had to be strip searched
• He had to document the drugs seized and weigh it in order to advise her of the additional charges before she was given an opportunity to consult with counsel

[48] It is obvious that PC Wintle has an erroneous concept of the nature of his obligation to implement the rights to counsel "without delay". He blindly followed procedure that he could not call counsel before a prisoner is paraded without considering these exceptional circumstances or even turning his mind to, at the very least, calling Ms. Adams counsel himself while he was waiting in the parking lot. Counsel could have taken steps to protect her client's rights. Once Ms. Adams was finally paraded, PC Wintle continued on with his own priorities instead of calling counsel. This was more than a cavalier attitude towards his obligations, it was a flagrant disregard of his implementational duties.

C. Legal Analysis

i. Grounds for the arrest and detention

[49] I do not intend to address this issue beyond a summary dismissal of the sections 8 and 9 application in terms of the grounds for Ms. Adams' arrest. Counsel submitted that the arresting officers had grounds to investigatively detain Ms. Adams but they did not possess objectively reasonable grounds for her arrest. Counsel argued that in order for the Court to find that there were objectively reasonable grounds for the arrest, the firearm had to be in plain view or some direct evidence of her client's knowledge of the presence of the firearm within the vehicle. I disagree. The police can make reasonable inferences about knowledge from their observations.

[50] First, I accept that both Officers Patrick and Wintle possessed subjective reasonable and probable grounds to arrest Ms. Adams. Secondly, while neither Officer provided a helpful summary of the factors that they considered, there is a readily discernable constellation of factors that support a finding that this subjectively held belief was objectively reasonable:

• As Inspector Patrick followed the vehicle, he noticed all three rear passengers looked towards his cruiser and there was movement in the back seat
• Inspector Patrick did not see a gun in or around the driver when he asked him to step out of the vehicle
• Ms. Adams identified the driver of the vehicle, the person who had control of the vehicle, as her "man"
• While Inspector Patrick was engaged in a lawful arrest of the driver, Ms. Adams exited the car for no apparent reason and immediately became verbally abusive and belligerent. She approached Inspector Patrick as he moved away from the vehicle. The police believed her behaviour was intended to distract the police
• While police were distracted by her behaviour, the front seat passenger dove back into the vehicle and grabbed for a gun. Two nearby officers yelled "gun", so they clearly saw it. I infer that the gun was readily accessible since this passenger was able to grab it so quickly
• A struggle ensued between the officers and the passenger and the gun was thrown out of the car. Inspector Patrick believed that the gun had been retrieved and thrown from the back-seat area of the vehicle

[51] Counsel invited the Court to elevate the reasonable grounds standard to that of a balance of probabilities or having to meet at least a prima facie case. That is not the standard. In addition, I note that the conclusions drawn by the officers do not have to be the only possible conclusion, the best conclusion or even the ultimately correct conclusion however it must be reasonable. Please see: R. v. Bush, 2010 ONCA 554. Moreover, this was a dangerous and chaotic situation in which the police were expected to make quick but informed decisions.

[52] I find that there were objectively reasonable grounds for the arrest of Ms. Adams, and she was not arbitrarily detained at any point prior to her arrest. The sections 8 and 9 Charter applications with respect to the reasonableness of Ms. Adams' arrest are dismissed.

[53] While the initial arrest of Ms. Adams was lawful, the conduct of the police that followed was both constitutionally flawed and unprofessional.

ii. Failure of the police to implement Ms. Adams' access to counsel

[54] Section 10(b) of the Charter guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The seminal Supreme Court of Canada decision on this issue is R. v. Suberu, 2009 SCC 33. At paragraphs 40 to 42, the Supreme Court explained that:

[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[55] Undoubtedly, there are situations when the police will not be in a position to immediately implement a detainee's rights to counsel. In R. v. Wu, 2017 ONSC 1003, Justice Di Luca carefully reviewed multiple decisions wherein implementational delays did not result in a Charter violation. For example, police can delay the implementation of this right in circumstances of urgency or danger. After reviewing multiple decisions, Justice Di Luca provided the following helpful guiding legal principles when assessing the reasonableness of the delay at paragraph 78:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 at para. 75.

b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law:

i. Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J., 2010 ONSC 735 at paras 276-8, and R. v. Learning, at para. 75;

ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-15 and 122;

iii. Cases where there safety concerns for the accused, see R. v. Strehl at para. 4;

iv. Cases where there are medical concerns, see R. v. Willier, 2010 SCC 37 at para. 8 and R. v. Taylor, 2014 SCC 50 at para. 31;

v. Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover, 2016 ONSC 4795 at para. 66 and 70, R. v. Kiloh, 2003 BCSC 209 at para. 15 and 38, and R. v. Salmon, 2012 ONSC 1553 at para. 92; and,

vi. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay, see R. v. J.(K.W.), 2012 NWTCA 3 at para. 29-30, and R. v. Khairi, 2012 ONSC 5549.

c. The right to counsel cannot be suspended simply on the basis that a search warrant is pending, see R. v. Soto, 2010 ONSC 1734 at para. 69, and R. v. Liew and Yu, 2012 ONSC 1826 at para.70.

d. A general or bald assertion of "officer safety" or "destruction of evidence" concerns will not justify a suspension of the right to counsel, see R. v. Patterson, 2006 BCCA 24 at para 41-42, and R. v. Proulx, 2016 ONCJ 352 at para. 47.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

f. The suspension of the right must be only for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581, at para. 83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances.

g. The longer the delay, the greater the need for justification. The right to counsel must be given "without delay." The case law addressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to an extreme example of a suspension of the right to counsel for a period of approximately 26 hours; see Blakely v. Parker. In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and the target of the search was known to be part of a criminal organization that was willing to confront and shoot police.

h. The suspension of the right to counsel must be communicated to the detainee, see: R. v. Rover, 2016 ONSC 4795 at para. 70.

[56] It is obvious that Cst. Wintle blindly adhered to a police practice of waiting to contact counsel until after the parade process without any consideration of the unique situation of the unusually lengthy delay. While an initial delay may have been justified, he did not reassess his obligations in these circumstances. He didn't even consider them. He could have taken steps to implement Ms. Adams rights to counsel in that parking lot, he just didn't think about it because he believed that "without delay" meant whenever it was "practical" for the police to make the call. As noted, he could have called counsel himself to alert her that her client would need legal advice. He could have inquired if Ms. Adams had a cell phone and considered whether a private call could be accommodated in the back seat of the cruiser. PC Wintle clearly had no difficulty leaving her completely alone in the cruiser and stepping an appreciable distance away from it.

[57] In R. v. Taylor, 2014 SCC 50, the Supreme Court reiterated the importance of implementing the rights to counsel particularly in situations wherein the detainee is vulnerable to the coercive powers of the state at paragraphs 21 to 24:

The purpose of the s. 10(b) right is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights": Manninen, at pp. 1242-43. The right to retain and instruct counsel is also "meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy "is able to make a choice to speak to the police investigators that is both free and informed": R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25.

In R. v. Bartle, [1994] 3 S.C.R. 173, Lamer C.J. explained why the right to counsel must be facilitated "without delay":

This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty ... Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request... [T]he right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [Emphasis added; p. 191.]

He also confirmed the three corresponding duties set out in Manninen which are imposed on police who arrest or detain an individual:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[58] To be clear, I am not suggesting that Officer Wintle had to give Ms. Adams his cell phone for her to call counsel. There were other options. For example, Ms. Adams told the cell Sergeant that she had a cell phone in her bag although she did not know where it was at that time. In Taylor, supra, at paragraphs 29 and 30 the Supreme Court agreed that officers do not have to hand over their cell phones to a detainee, but they should consider a means to provide private access to a phone:

The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray's acknowledgement that he could have provided his own cell phone, the "'mistake' in failing to provide it" gave rise to a breach of s. 10(b). The Crown takes issue with this finding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.

But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.

[59] PC Wintle did not even consider what he could do to implement the rights to counsel in this situation. While he emphatically stated that he would not have removed Ms. Adams' handcuffs due to safety concerns while she was in the back seat of the cruiser, he didn't explain whether there were any other creative solutions. As the Court stated in Taylor at paragraph 33, "constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel."

[60] The crown submitted that the failure to implement the rights to counsel over this period of 48 minutes was justifiable because the officer was waiting for the prerequisite parade process to be completed before he contacted counsel. The crown provided me with a few distinguishable precedents that support the legal proposition that police are entitled to hold off on their implementational duties until after a detainee has been paraded and asked questions that are intended to protect the safety of the officers and the detainees as opposed to investigative purposes.

[61] I agree that the police may delay the implementation of the rights to counsel for a reasonable period of time to allow for the parade process to be completed. However, none of the cases provided by the crown contemplated a remarkably extended delay in the parade process. Moreover, I am not concerned with the nature of or the propriety of the questions asked by the cell Sergeant. The issue in this case is the inordinate delay prior to the booking, the way she was detained during this period of delay and how this may have impacted her responses to the cell Sergeant. It is also about the strip search that was conducted after she was booked and before she was given any opportunity to speak with counsel. This 19-year-old defendant was held in an intimidating situation without any explanation to her about what was happening, without any sincere assurance that her lawyer would be contacted or any attempt to mitigate the delay by contacting counsel while they were waiting. She was in an incredibly vulnerable position and needed that "lifeline" to counsel.

[62] In R. v. McGuffie, 2016 ONCA 365, the Court of Appeal dealt with a factual scenario involving the detention of the appellant who police believed had a handgun. The Court observed at paragraph 44 that the "appellant was in serious legal jeopardy. He needed legal advice. More importantly, he was constitutionally entitled to it."

[63] Once Ms. Adams was being paraded and before she was stripped searched, the cell Sergeant should have considered whether her request to consult with counsel could be accommodated but he also ignored her request to contact her lawyer. Similarly, in McGuffie, supra, at paragraph 68, the Court noted that:

When Constable Greenwood finally got the appellant to the police station, his superiors did not express any concern about the appellant's s. 10(b) rights or, more specifically, any concern about whether the appellant had been given the opportunity to speak to his lawyer before undergoing the proposed strip search.

[64] The Ontario Court of Appeal provided a succinct and applicable statement of law in an endorsement in R. v. Philogene, [2006] O.J. No. 4601 at paragraphs 17 to 19:

We also agree with the appellant's submission that his s. 10(b) rights were violated.

Although the appellant told the arresting officer that he wished to speak to a lawyer when he arrived at the station, and this wish was communicated to the booking sergeant by the arresting officer, the appellant was not provided with access to a telephone in the hour and thirty-five minutes that he was detained in an interview room before he was interviewed by Constable Imrie.

The duty to facilitate contact with counsel requires the police to offer to use of the telephone. See Bartle v. The Queen (1994), 92 C.C.C. (3d) 289 (S.C.C.). The fact that the breach of the appellant's right to counsel involved the implementational aspect of the right as opposed to the informational aspect still resulted in the infringement of the appellant's s. 10(b) rights. This is not a situation of the appellant failing to be diligent in the exercise of his right to counsel; he was never given the opportunity to be diligent in exercising that right prior to the breach of his right to counsel.

[65] Shortly after Ms. Adams arrived in the parking lot at 10:32 p.m. until her lawyer was finally called at 1:05 a.m., she was not given any opportunity to contact counsel despite diligently asserting her rights. A 19 year-old woman spent two and a half hours in police custody before any officer took any steps to implement her rights to counsel. Thereafter, from 1:05 a.m. to 2:30 a.m., another hour and a half went by without consulting with counsel. During this time, she was not told what was happening with respect to the calls to her counsel and, once counsel could not be reached at that time of the morning, she was not given any other options.

[66] Ms. Adams spent a total of 4 hours in police custody without any opportunity to consult with counsel and she never did get to speak with counsel. The implementation of her rights to counsel was not just delayed it was completely denied. I find that Ms. Adams' section 10(b) rights were obviously and flagrantly violated.

iii. Section 8 violation

[67] Section 8 of the Charter guarantees that everyone has the right to be secure against an unreasonable search and seizure. I find that Ms. Adams' initial arrest was lawful, and this was a search incident a lawful arrest however, it is the manner of the search that is the subject of consideration. The warrantless strip search of Ms. Adams was presumptively unreasonable. The Crown must rebut this presumption.

[68] The leading case on the constitutionality of strip searches is the Supreme Court of Canada's decision in R. v. Golden, 2001 SCC 83. I do not need to consider any cases beyond Golden to arrive at the conclusion that the strip search in the circumstances of this case violated Ms. Adams' rights to be free from an unreasonable search. Nevertheless, I also found the decisions of R. v. Gonzales, 2017 ONCA 543 and R. v. McGuffie, 2016 ONCA 365 to be very instructive.

[69] At paragraph 46, the majority of the Supreme Court in Golden, supra, recognized that Courts must find a balance between the liberty interests of the accused and legitimate law enforcement concerns:

This Court has emphasized on many occasions the need to strike the appropriate balance between the privacy interests of the accused on the one hand and the realities and difficulties of law enforcement on the other hand, most recently in the case of R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65. Similarly, in the present case, an appropriate balance must be achieved between the interest of citizens to be free from unjustified, excessive and humiliating strip searches upon arrest, and the interests of the police and of society in ensuring that persons who are arrested are not armed with weapons that they may use against the police, themselves or others, and in finding and preserving relevant evidence.

[70] Throughout this seminal decision, the majority emphasized the unique considerations with respect to this type of search because of how invasive and degrading it is for the detainee. The Supreme Court repeated a number of times that:

it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive.

[71] Considering the invasive nature of a strip search, the Court cautioned at paragraph 90 that:

Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy.

[72] Sgt. Swain made the decision to strip search all 4 individuals who were arrested that night because of the nature of the charge. He treated this important decision as a matter of routine practice due to the nature of the charge. The fact that the arresting officers had reasonable grounds to arrest Ms. Adams for a firearms offence is not enough on its own to justify a strip search. If that were the case, police could routinely strip search every person who was arrested for possessing a firearm regardless of the individual circumstances of the arrest or of the detainee. In Golden, supra, the Supreme Court clearly stated at paragraphs 98 and 99 that:

The fact that the police have reasonable and probable grounds to carry out an arrest does not confer upon them the automatic authority to carry out a strip search, even where the strip search meets the definition of being "incident to lawful arrest" as discussed above. Rather, additional grounds pertaining to the purpose of the strip search are required. In Cloutier, supra, this Court concluded that a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself: Cloutier, supra, at pp. 185-86. However, this conclusion was reached in the context of a "frisk" search, which involved a minimal invasion of the detainee's privacy and personal integrity. In contrast, a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity. In order to meet the constitutional standard of reasonableness that will justify a strip search, 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 light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter.

[73] Similarly, in R. v. Gonzales, supra, at paragraphs 137 to 139 the Ontario Court of Appeal emphasized once again that something more than reasonable grounds for an arrest is necessary to justify a strip search and the mere possibility that a person may be concealing evidence is not sufficient:

Third, strip searches must not be carried out as a matter of routine, an inevitable consequence of every arrest: Golden, at paras. 90-95.

Fourth, in addition to the reasonable grounds which must underpin the arrest for it to be lawful, additional reasonable and probable grounds must also justify the strip search: Golden, at paras. 98-99.

Finally, and it follows logically from the necessity of reasonable and probable grounds to justify the strip search, the mere possibility of an individual concealing evidence is not sufficient to justify a strip search to locate that evidence: Golden, at para. 94.

And further at paragraphs 142 and 143:

As we have seen, the inquiry into the unreasonableness of a strip search is not co-extensive with the basis for the arrest to which it is said to be incident. As with all searches incident to arrest, a strip search must be for a purpose related to the arrest. But reasonable and probable grounds beyond those that justify the arrest are required to render the strip search reasonable. And where the purpose of the strip search is to discover or prevent the destruction of evidence, the mere possibility that evidence might be found falls short of what is required.

From what I have said, it follows that the trial judge erred in treating as dispositive of the lawfulness of the strip search the existence of reasonable grounds for the predicate arrest. Further, to the extent that his statement [at para. 35] "[t]here were no additional factors advanced suggesting this strip search was not warranted" suggests that it was for the appellant to adduce evidence, it comes uncomfortably close to reversing the burden of proof. After all, this was a warrantless search that is presumptively unreasonable. The burden of overcoming presumptive unreasonableness lies on the Crown, not the appellant.

[74] It is the crown's burden to overcome the presumptively unreasonable nature of this search. The crown submitted that the additional evidence that Ms. Adams concealed illicit evidence in her bra was enough to establish the reasonableness of the strip search. Even if Sgt. Swain's initial reason to strip search Ms. Adams was bolstered or supported by the subsequent discovery of drugs secreted in her bra, he was still obliged to reasonably assess all of the circumstances before making an informed decision. Sgt. Swain's decision was only informed by the nature of the initial charge and thereafter, he didn't consider the full circumstances of this particular detainee. More importantly, he didn't turn his mind to other alternative means of addressing his expressed safety concerns. At paragraphs 93 and 94 in Golden, the Court provided the police with guidance on how to deal with concerns for the preservation of evidence and safety concerns:

The reasonableness of a search for evidence is governed by the need to preserve the evidence and to prevent its disposal by the arrestee. Where arresting officers suspect that evidence may have been secreted on areas of the body that can only be exposed by a strip search, the risk of disposal must be reasonably assessed in the circumstances. For instance, in the present case, it was suggested that the appellant might have dropped the drugs on the sidewalk or in the police cruiser on the way to the station and that it was therefore necessary to search him in the field. As we discuss below, however, the risk of his disposing of the evidence on the way to the police station was low and, had the evidence been dropped in the police cruiser on the way to the station, circumstantial evidence could easily link it back to the accused.

In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, a "frisk" or "pat-down" search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person. Only if the frisk search reveals a possible weapon secreted on the detainee's person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee's person will a strip search be justified. Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search.

[75] There is no evidence that any officer performed a frisk search on Ms. Adams at any point that night to attenuate any concerns prior to strip searching her. The Inspector did not request a strip search. The arresting officer said that he had no safety concerns and he didn't even know she was going to be strip searched until the parade. The cell Sergeant was not provided with any additional reasonable grounds for the strip search by any of the investigating officers. The cell Sergeant did not inquire if Ms. Adams had been a frisk search. He was faced with a cooperative, tightly clad, underdressed young female who voluntarily handed over items that were secreted in her bra. The Sergeant should have considered all other alternatives prior to the strip search. Instead, he authorized a highly invasive search based on a mere possibility of locating evidence or weapons.

[76] The crown submitted that the police have an obligation to ensure the safety of other prisoners in the cells and that there are heightened safety issues in a custodial setting that would justify a strip search. However, Ms. Adams was not being transported to an institution, she was being held over night at the police station. The Supreme Court addressed these concerns in Golden, supra, at paras 96 and 97:

It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells: R. v. Toulouse, [1994] O.J. No. 2746 (QL) (Prov. Div.).

The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. 26-27, which involved a routine strip search carried out incident to an arrest and short-term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees.

[77] Finally, in addition to the failure of the parading Sergeant to consider other alternatives to strip-searching Ms. Adams, I found the cavalier attitude of the two female officers about what they viewed as the "routine" nature of this invasive search quite troubling. They should have turned their minds to why they were conducting a strip search. They should have taken proper notes of the search process. Most importantly, they should never have had a young woman standing completely naked in the search room particularly when she was being instructed to bend over to have her anus visually examined by the police.

iv. Section 24(2) analysis

[78] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada provided the three guiding considerations for a Court to assess and balance when determining the effect of excluding or admitting constitutionally tainted evidence on society's confidence in the justice system:

I. the seriousness of the Charter-infringing state conduct;

II. the impact of the breach on the Charter-protected interests of the accused; and

III. society's interest in the adjudication of the case on its merits.

[79] I must consider the seriousness of the police misconduct with respect to two different Charter violations, the impact that these Charter violations had on Ms. Adams' rights and society's interests in proceeding with this matter considering the serious nature of the charges. Balancing these considerations as well as society's interests in proceeding on the merits because these are serious drug charges, I must decide if the Applicant has established on the balance of probabilities that the admission of this evidence would bring the administration of justice into disrepute.

[80] Prior to embarking on this analysis, I must first decide whether there is some connection between the evidence that is sought to be excluded and the Charter violations. Section 24(2) of the Charter requires that the impugned evidence must have been "obtained in a manner" that infringed the Applicant's rights. The crown submitted that the implementational breach and the strip search only occurred after the applicant's statement and after she handed over the drugs to the cell Sergeant, so this evidence was not obtained in a manner that infringed her rights.

a. Section 10(b) violations

[81] Considering my findings that Ms. Adams' section 10(b) rights were violated before she interacted with the cell Sergeant, the evidence that was subsequently obtained from her was temporally and contextually related to the breach. As a result, I find that this case is clearly factually distinguishable from R. v. Boukhalfa, 2017 ONCA 660 and R. v. Do, 2019 ONCA 482. Moreover, the section 10(b) breach was coupled with an unlawful strip search and each of the breaches were a part of a continuous transaction. As Justice Laskin observed in R. v. Pino, (3d) 130 O.R. 561 (Ont.C.A.) at paragraph 73:

Here, the two s. 10(b) breaches along with the s. 8 breach meet the "obtained in a manner" requirement. The marijuana seized from the trunk of Ms. Pino's car and all three Charter breaches are part of the same transaction. That transaction or the common link between the evidence and the breaches is Ms. Pino's arrest.

[82] In addition, even if I am in error and the implementational breach only occurred after the Applicant was paraded, I would still find that the evidence was obtained in a manner that infringed Ms. Adams' rights. In R. v. Pino, supra, at paragraphs 48 to 50, the Court specifically addressed an implementational breach that occurred after evidence was discovered and found that:

This is a difficult issue. I have concluded that the trial judge erred in law by holding that Charter breaches after the discovery of the challenged evidence cannot meet the "obtained in a manner" requirement in s. 24(2). He considered himself bound by appellate authority. I take a different view of that authority; I do not read it as precluding my conclusion. I think the Supreme Court's generous and increasingly broad approach to the "obtained in a manner" requirement allows the court, in an appropriate case, to exclude the evidence because of a Charter breach occurring after the evidence was discovered. I find support for my conclusion in the trial judge's own extra-judicial writing as well as in other academic commentary.

In this case, I accept Ms. Pino's submission that all three Charter breaches found by the trial judge satisfy the "obtained in a manner" requirement in s. 24(2). They are all "temporally" and "contextually" connected to the evidence sought to be excluded; and they all occurred in the course of the same "transaction": Ms. Pino's arrest.

On a superficial reading of s. 24(2), one might be tempted to conclude that the "obtained in a manner" requirement can only be met by a causal connection between the breach and the discovery of the evidence: "but for" the breach the evidence would not have been discovered. But the Supreme Court has long recognized that a causal connection is unnecessary.

[83] PC Wintle's apathy towards his professional obligations throughout his dealings with Ms. Adams to implement her rights to counsel without delay was confounding and disturbing. In addition, once she was being paraded, the cell Sergeant did not address Ms. Adams' immediate request to consult with counsel of choice or even consider whether she should have been given that opportunity before she was strip searched. The Court of Appeal's description of the officers' conduct in the McGuffie, supra, decision at paragraph 76 is apt:

The police misconduct falls at the very serious end of the continuum described in Grant, at para. 74. Constable Greenwood and, to a lesser extent, other officers, totally disregarded the appellant's rights under ss. 8, 9 and 10(b) of the Charter. Constable Greenwood seemed wholly unaware of, or worse yet, wholly unconcerned with, the limits of his powers to detain and search individuals. He was equally oblivious to his obligations under s. 10(b).

[84] The officers' failings in this case are symptomatic of a more significant problem within Durham Regional Police services. There have been two recent Ontario Court of Appeal decision that specifically relate to issues within Durham Regional Police services that reflect a systemic lack of understanding of the nature of their obligations to implement a detainee's rights to counsel "without delay".

[85] In R. v. Rover, 2018 ONCA 745, the Court of Appeal addressed the unconstitutional practice of Durham Regional Police Officers delaying the implementation of an arrested person's access to counsel until after a search warrant has been executed. The Court of Appeal found that (at paragraphs 35 and on):

While there was no causal connection between the discovery of the drugs and the s. 10(b) breach, there was a close temporal connection. The parties acknowledge that the connection is sufficient to engage s. 24(2): see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.

The exclusionary rule in s. 24(2) operates on the assumption that the routine admission of constitutionally tainted evidence must have a long-term negative effect on the repute of the administration of criminal justice. As explained in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 70:

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

The rationale for the exclusionary rule identified in Grant, as applied in these circumstances, requires a consideration of the long-term impact on the reputation of the administration of justice caused by the admission of evidence obtained in an investigation conducted under a police practice that inevitably and routinely denies detained persons their constitutional right to access counsel. The systemic nature of the violation plays a central role in assessing its long-term impact on the proper administration of justice.

The trial judge described the state misconduct as "serious" and reflective of the police disinterest in the appellant's rights. Those observations are fully justified. Apart entirely from never turning their mind to the actual need to delay the appellant's access to counsel, the officers showed no interest in mitigating the delay.

And further:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

In this case, instead of providing the appellant with the lifeline to counsel when he requested it, the police put him in the cells. The appellant was held for several hours without any explanation for the police refusal of access to counsel, and without any indication of when he might be allowed to speak to someone. His right to security of the person was clearly compromised. The significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests.

Having regard to the security of the person interest protected by s. 10(b), and the risk posed by the police practice to the maintaining of the appellant's right against self-incrimination, I would hold that the s. 10(b) breach had a significant negative impact on the appellant's Charter-protected rights. While that impact was certainly not as serious as it would have been had there been a causal connection between the breach and the obtaining of the evidence, it was nonetheless significant.

[86] As noted, the crown provided a number of cases that relate to the constitutionality of a minor delay with implementing the rights to counsel until after a prisoner is paraded. However, none of these Courts found that the police can indefinitely delay their implementational duties while waiting for the parade process. The police cannot strictly or blindly adhere to practices or procedures without responding to unusual circumstances that may arise that justify a departure from that practice or procedure. PC Wintle didn't even consider attempting to mitigate the delay or other alternatives to the normal process given this unique situation. Moreover, he didn't understand the meaning of "without delay". Time and time again, courts have held that without delay does not mean when it is practical for the police to call counsel. This message doesn't seem to be getting across to Durham Regional Police.

[87] PC Wintle did not just delay Ms. Adams access to counsel, he completely denied it. He disregarded her desire to consult with counsel. This was a blatant and flagrant disregard of this officer's implementational duties.

[88] The crown submitted that there was no evidence of any impact on Ms. Adams rights to counsel. First, I can't imagine a more significant impact than a complete denial of her ability to access counsel while she was being detained for a significant period of time in a coercive manner prior to making incriminating statements and prior to being strip searched. Secondly, the crown's submissions miss the point. In R. v. Noel, 2019 ONCA 860, the Ontario Court of Appeal addressed another case involving the failure of Durham Regional Police to implement the rights to counsel without delay. The Court specifically addressed the Trial Judge's finding that there was no evidence of the impact on the applicant's rights to counsel and found at paragraphs 22 and on that:

With respect, this passage reflects a misunderstanding of the relevant Charter protected interest. That interest is the right is to consult counsel without delay. The loss of this right is in no way neutralized because the right to consult counsel is delayed, as opposed to denied. Nor is the impact of delayed access to counsel neutralized where an accused fails to demonstrate that the delay caused them to be unable to have a late but meaningful conversation with counsel. It would be inconsistent with solicitor-client privilege to expect a detainee to lead evidence about the quality of their solicitor-client conversation. More importantly, this inquiry misses the mark.

The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34.

For example, an arrest and the search of one's home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1144.

Detention also raises questions of immediate importance relating to the detainee's rights during detention, including the right against self-incrimination: Bartle, at p. 191; R. v. T.G.H, 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4.

Beyond this, the right to counsel is also important in providing "reassurance" and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

Mr. Noel was not required to offer direct evidence about why he required access to counsel without delay. He asked to speak to counsel promptly but that right was denied. In assessing the impact of such breaches, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as "quite neutral" in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated based on the interests it is meant to protect along with the length of the delay.

Given these errors in principle, the trial judge's determination that the admission of the evidence would not bring the administration of justice into disrepute does not require deference, nor do her assessments of the seriousness and impact of the breach. In considering these matters afresh, we come to a different conclusion.

The s. 10(b) violation found by the trial judge was serious. Three hours passed between the time of the arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. When Mr. Noel arrived at the station at 11:10 p.m., entirely under the control of the police, no one took charge of ensuring that he could speak to counsel as he had requested. Instead, he was placed in a cell and left there.

Rather, it was about an hour and a half later that Officer Capener called duty counsel on behalf of only two of the three detainees, keeping insufficient records to confirm who those detainees were.

It was not until 1:25 a.m., now about two and a half hours after Mr. Noel's arrival at the station, that Officer Wescott left a message with duty counsel, specifically on Mr. Noel's behalf. There is then no confirmation that counsel actually spoke to Mr. Noel.

From the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay. Indeed, the trial judge characterized the police conduct in this regard as demonstrating "carelessness" - a characterization with which the Crown does not take issue.

Moreover, the impact of the breach was significant, not neutral. Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.

We are mindful of the impact of excluding necessary, reliable evidence in this serious prosecution on the repute of the administration of justice. However, this was a clear violation of a well-established rule. The law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out. Furthermore, it is troubling that the police in this case could not provide any reasonable explanation for the delay, nor could they even say whether Mr. Noel did, in fact, speak to counsel. As noted by Brown J. in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44: "... exclusion has been found to be warranted for clear violations of well-established rules governing state conduct".

We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel's right to consult counsel without delay. Given the collection of facts in this case, we conclude that the evidence must be excluded, notwithstanding that doing so undermines the Crown's case against Mr. Noel.

[89] Finally, I am not required to speculate about what Ms. Adams would or would not have done had she been given access to counsel in order to find a breach and exclude the evidence. As the Ontario Court of Appeal stated in R. v. Philogene, supra, at para 20:

We do not propose to enter into speculation as to whether the appellant would have given his statements had there been compliance with the implementational component of his rights. The accused was treated unfairly while he was in custody and the admission of his videotaped statement would bring the administration of justice into disrepute. His statements should have been excluded pursuant to s. 24(2) of the Charter.

[90] This was a clear violation of Ms. Adams constitutionally protected rights to counsel by an officer who had a very cavalier attitude towards his professional obligations and an obvious misunderstanding of the meaning of implementing the rights to counsel without delay. It appears that this is not just an issue of individual police misconduct but a broader issue within Durham Regional Police Services. There is a demonstrated need for additional officer training with respect to the meaning of implementing the rights to counsel "without delay". The breach was serious, the impact on Ms. Adams' rights was significant and the long-term interest of the administration of justice would be adversely impacted by admitting this evidence.

[91] I would exclude the evidence of Ms. Adams admissions to the cell Sergeant and the items that were seized on the basis of the section 10(b) violations alone. However, I still must address the unconstitutional strip search that occurred at the police station.

b. Section 8 violation

[92] In R. v. Grant, supra at paragraph 11, the Supreme Court emphatically stated, "it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's ... bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability". Ms. Adams was subjected to a degrading and humiliating strip search. She was literally stripped of her personal dignity without additional reasonable grounds articulated or considered by the police to justify the strip search.

[93] Courts have consistently provided the police with guidance about the limitations of exercising their authority to perform strip searches. The Supreme Court of Canada's decision in Golden, supra, was over 18 years ago. Counsel also introduced the Durham Regional Police Practice directives through the police witnesses that specifically state that police members are responsible for "being familiar with the directive attachment R. v. Golden".

[94] Durham Regional Police officers should be well aware of the prerequisite reasonable grounds to justify a strip search. Their own directives state that a detailed search "shall not be conducted as a matter of routine procedure" and "a detailed search shall not involve the removal of more articles of clothing than is necessary nor a more extensive inspection of the prisoner's body than is necessary". In addition, the directives state:

When they have reasonable grounds to believe a prisoner is concealing an item mentioned above and further believe that a detailed search is required, members shall (emphasis mine)

When available use a metal screening device prior to a strip search.

Always frisk search a prisoner prior to conducting a strip search.

Discuss the reason for the detailed search with their patrol, platoon or central Cellblock supervisor and always obtain prior approval.

Explain the grounds for the detailed search to the prisoner.

Ask the prisoner if there is any information relative to the search that the member should be aware of before proceeding allowing the person to voluntarily identify the location of the items that they have on their person.

Conduct the search:

As quickly as possible and in a manner that ensures that the prisoner is not completely undressed at any given time.

Fully document:

The reasonable grounds for conducting the detailed search…

The patrol, platoon, or Central Cellblock supervisor who authorized the detailed search.

Any injuries noted or reported during the course of the detailed search.

[95] The police failed to comply with their own policy directives that are specifically designed to ensure that these types of invasive searches are not conducted without the proper steps being taken, the appropriate considerations made and the manner of the search being the least intrusive. This was another serious breach by the police of Ms. Adams' rights and the negative impact on her bodily integrity is obvious.

[96] Undoubtably, Sgt. Swain was not motivated by any malicious intent and he was acting in the good faith belief that he could order the strip search. Nevertheless, the sergeant's ignorance of long-established standards, particularly in light of his role as a cell sergeant, does not in any way mitigate the seriousness of the breach.

[97] The Crown suggested that the appropriate remedy would be a sentence reduction pursuant to section 24(1) of the Charter as opposed to an exclusion of the evidence. In the face of a flagrant violation, that would send the wrong message about the seriousness of the police misconduct. As the Supreme Court observed in Golden at paragraph 89:

The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy. Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestee's experience of being strip searched. Thus, the need to prevent unjustified searches before they occur is more acute in the case of strip searches than it is in the context of less intrusive personal searches, such as pat or frisk searches. As was pointed out in Flintoff, supra, at p. 257, "[s]trip-searching is one of the most intrusive manners of searching and also one of the most extreme exercises of police power".

[98] The Ontario Court of Appeal also provided this applicable summary in R. v. McGuffie, supra, at paragraph 83 when excluding the evidence:

In summary, the police conduct demonstrates a blatant disregard for the appellant's constitutional rights. That conduct all but negated several of the appellant's Charter-protected interests. The court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence. In doing so, the court acquits a person who is clearly guilty of serious criminal offences. In my view, the long-term interests of the due administration of justice require the exclusion of the evidence. This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.

[99] This Court cannot remedy the unnecessary degradation that Ms. Adams experienced that night. However, the exclusion of the evidence will protect the integrity of the administration of justice and the long-term interests of hopefully preventing further similar serious police misconduct in the future.

D. Conclusion

[100] While this judgement is intended to be a Charter ruling, the exclusion of all of the incriminating evidence in this case means that Ms. Adams must be acquitted of the charges before the Court of possession of different narcotics for the purpose of trafficking. Since it is not lawful to possess either cocaine or methamphetamines, the drugs seized will be ordered to be forfeited.

[101] Acquittals will be entered on all counts.

Released via email on November 20th, 2019