Ontario Court of Justice

Date: 2021-09-29

Court File Nos.:

• Toronto 4811 998 20-15003680-01
• 4811 998 20-15003680-02
• 4811 998 20-15003681-01
• 4811 998 20-15003681-02

Between:

HER MAJESTY THE QUEEN Respondent

— AND —

REBECCA PAREDES AND MATTHEW STEWART Applicants

Before: Justice F. Bhabha

Heard on: August 9-13 and 16-20, 23, 2021

Ruling on: Applications pursuant to Sections 8, 9 and 10(b) of the Charter

Released on: September 29th, 2021

Counsel:

• Mr. Evan Akriotis ..................................................................................... counsel for the Crown
• Mr. H. Roy Wellington....................................... counsel for the defendant Rebecca Paredes
• Mr. Alonzo Abbey............................................... counsel for the defendant Matthew Stewart

BHABHA, J.:

Introduction

[1] The Applicants, Rebecca Paredes (“Paredes”) and Matthew Stewart (“Stewart”) are both charged with several drug and firearms offences relating to a handgun and a quantity of fentanyl and cocaine.

[2] They have brought applications alleging breaches of their rights under sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms (“the Charter”).

[3] As a remedy, they seek the exclusion of all evidence seized from them on arrest or incident to arrest under s. 24(2) of the Charter, namely a loaded firearm that Paredes had in her possession in a cross-body satchel and a quantity of drugs that each of them had secreted in their respective undergarments.

[4] On September 23rd, 2021, I gave brief oral reasons allowing the applications and granted the remedy sought. These are my written reasons for the Ruling on the various applications.

Overview of the Case

[5] In June 2020, due to the pandemic, many homeless individuals in the Moss Park neighbourhood feared going to shelters. As a result, they set up tents in the park. This was the case in many parks in the City of Toronto.

[6] On the afternoon of Tuesday, June 30th, 2020 members of the Major Crimes Unit of 51 Division were investigating suspected drug-dealing at Moss Park. The investigation was in response to complaints from the community about increased drug use and drug dealing within the park.

[7] The surveillance operation involved many members of 51 Division. Some were operating undercover in or on the perimeters of the park, while two others were tasked with conducting surveillance from nearby observation posts. Some officers were on foot, others were on bicycles or in vehicles. All the officers were on scene in or around Moss Park by 2:10 that afternoon.

[8] Paredes, Stewart and a third individual named Gabriel Nanie (“Nanie”) first came to the attention of the police shortly after 3:00 p.m. before they entered the park. They were observed outside the Moss Park Convenience Store.

[9] The police then surveilled Paredes, Stewart and Nanie from the time they entered the park at around 3:15 until the time they left the park which was around 4:10 p.m.

[10] Based on the various observations the officers made as part of the surveillance operation that day, they suspected that Paredes, Stewart and Nanie were all involved in drug dealing in the park. They also suspected that the satchel that both Paredes and Stewart were seen wearing or handling, at different times in the day, contained a firearm. There was no evidence that Nanie ever handled the satchel.

[11] The police never observed any hand-to-hand drug transactions by either of the applicants, or Nanie. Nor did any of the officers ever actually catch a glimpse of the contents of the satchel or obtain information about its contents.

[12] Nevertheless, the police decided to arrest Paredes and Stewart approximately twenty minutes after they left the park. What appears to have precipitated the arrest is that members of 51 Division learned that Nanie, who had previously been with the applicants in the park, was placed under arrest “for drugs” by other members of 51 Division who were not involved in the surveillance operation at Moss Park that day. He is not currently facing any charges arising from his arrest. Officers testified that Nanie’s arrest did not form part of their grounds for the arrest of Paredes and Stewart.

[13] Paredes was wearing the satchel at the time of her arrest. As the police suspected, it did indeed contain a loaded firearm. As well, following searches incident to their respective arrests, the police found a quantity of drugs in Paredes’ bra and a quantity of drugs in the shorts Stewart was wearing under his sweatpants. The police also discovered a small scale in the pocket of Stewart’s shorts.

[14] As noted, both Paredes and Stewart challenge the lawfulness of their respective arrests. They submit that the police lacked the requisite grounds to arrest them; that the police were acting on mere hunches based on racially-based discriminatory presumptions and, as a result, they were arbitrarily detained. It follows that if the arrest was unlawful, then the police had no authority to search them or to seize anything they had in their possession. Paredes is Caucasian in appearance, whereas Stewart is African-Canadian.

[15] Paredes also alleges that her section 8 rights were violated when the police conducted a strip search at the station where they located the illicit substances.

[16] Finally, both Paredes and Stewart also assert that their right to access counsel without delay was infringed.

Central Issue and Findings

[17] The central issue in this case is whether the two applicants were arbitrarily detained and unlawfully arrested as they allege or whether the police did in fact have reasonable and probable grounds to arrest them based on their surveillance of the pair as the Crown contends.

[18] This case turned on the Court’s assessment of the evidence presented. No novel legal issues were raised. In particular, the jurisprudence relating to arbitrary detention and the grounds required to warrant an arrest are well settled. So is the caselaw on strip searches and the implementation of the right to counsel.

[19] The onus is on the applicants to satisfy the Court on a balance of probabilities that their Charter-protected rights were infringed.

[20] For the reasons articulated in this Ruling, I find that Paredes and Stewart have met their onus. I find that the decision to arrest Paredes and Stewart fell short of the reasonable and probable grounds required to effect a lawful arrest.

[21] The decision to make the arrests was precipitous and based on suspicion and hunches that were premised to some extent on racial profiling and stereotypes. I therefore find that Paredes and Stewart were arbitrarily detained and as a result their rights under section 9 of the Charter were breached.

[22] It follows that if the arrests of Paredes and Stewart were not lawful that they ought not to have been subjected to any searches, in particular strip searches which are inherently intrusive.

[23] However, because the Court can consider multiple Charter breaches in determining if the exclusion of evidence is warranted, I have considered whether Paredes’ right to be free of unreasonable search and seizure was infringed because of the way the strip search at the station was carried out. I find that it was not.

[24] Finally, with respect to the parties’ right to counsel, I find that Paredes’ right was infringed, but that Stewart’s was not.

[25] The Crown submits that if the Court finds any breaches, that the evidence ought not be excluded under s. 24(2) because of the serious nature of the charges that involve a loaded firearm, a handgun, carried in a public place, in combination with illicit substances. The Crown submits that there is a strong public interest in having a trial on the merits.

[26] For the reasons indicated in this Ruling, I have concluded that the s. 9 breach is a serious one and that having regard to the factors set out in R. v. Grant, 2009 SCC 32, the evidence ought to be excluded. In balancing the Grant factors, I find that while there is a very strong societal interest in a trial on the merits, in light of the police conduct in this case, the reputation of the administration of justice is better served and perhaps enhanced by the exclusion of the evidence than by its admission.

The Evidence

[27] The applicants chose not to testify in support of their respective applications.

[28] The Court heard evidence from the various officers involved in the surveillance operation. Although there were many officers involved, tasked with conducting the surveillance operation, the two main officers were Detective Fougère and Constable Kotzer.

[29] Both Fougère and Kotzer made their respective observations from static, but elevated positions. Neither of them was prepared to disclose the exact locations of their respective observation posts. They cited investigative privilege as the basis for not giving more precise details. This is understandable but it impacted the Court’s ability to fully assess the reliability of the observations they testified about.

[30] On the evidence, Constable Kotzer was positioned such that he could observe anyone entering Moss Park from the south east near the intersections of Sherbourne and Queen streets. He made his observations with the assistance of a camera with a zoom lens. To preserve investigative privilege, the best estimate he was prepared to give was that he was positioned 100 to 400 meters from the corner of Sherbourne and Queen. Based on the photographs he took, it is apparent that he made his observations from an elevated position. Many of the images appear to be a bird’s eye view of the area and the people who passed through it.

[31] Detective Fougère was stationed on the west side of the park facing east. He made his observations through a pair of binoculars. When Kotzer called out a person or persons of interest entering the park, Detective Fougère focused on those individuals. In that respect, Kotzer acted as a filter in that he observed many individuals in and around the intersection, but he called out the ones that he thought looked out of place or suspicious.

[32] Other officers made their observations from within the park or its perimeter, but it was primarily Fougère and Kotzer who made the relevant observations of the applicants.

[33] There was a central note-taker assigned to the investigation. Fougère, Kotzer and the other officers called out their respective observations which were then recorded by the note-taker.

[34] After the arrests, all the officers involved in the operation gathered at the station for a debriefing session. Fougère and Kotzer testified that they returned to their respective work areas to make their personal notes of the investigation and in particular, their individual observations of the applicants that ultimately formed their grounds for the arrest of Paredes and Stewart.

[35] Fougère and Kotzer made observations of Paredes and Stewart over the course of approximately one hour. The Crown submits that the observations establish the grounds for arrest, especially if viewed against the backdrop of the experience of these two officers. I will now review their evidence with respect to what they observed and the conclusions they each drew from their observations.

[36] At around 3:08 p.m. officer Kotzer identified three individuals outside the Moss Park Convenience Store and noted that they were being approached by various people. The threesome was Paredes, Stewart, and Gabriel Nanie.

[37] None of them were previously known to the police.

[38] At around 3:15 p.m. Paredes, Stewart and Nanie entered the park together. It was a hot June day. Paredes was wearing a short dress, and a dark-coloured, cross-body satchel. The two men wore track suits. Detective Fougère saw the two men sitting down on chairs in front of a tent at the south end of the park, while Paredes sat on a blanket on the ground not far away. Stewart took the satchel from Paredes when they were inside the park seated in front of the tent.

[39] At around 3:25 p.m. Paredes and Nanie left the park together to get some food. Paredes did not have the satchel with her. Paredes returned to the park at around 3:30 p.m. Nanie returned a few minutes after her. At around 3:48 p.m. Detective Fougère saw Nanie going to a less crowded area of the park where he counted what appeared to be a large quantity of money.

[40] Detective Fougère saw an unknown male dressed in black entering and exiting the tent where Stewart, Paredes and Nanie were sitting. He then rode off on a bicycle. After that happened, Detective Fougère saw Stewart take the satchel from Paredes and enter the tent with it. He testified that this is when he could tell that there was something heavy in the satchel because it looked like there was a strain on the strap. He voiced out that he believed that there was a gun in the satchel. He then saw Stewart leave the tent.

[41] Shortly thereafter, at around, 4:10 p.m., Detective Fougère saw Nanie, Paredes and Stewart leave the park. However, Nanie went in a different direction from Paredes and Stewart.

[42] Fougère and Kotzer each testified that as they observed the threesome, they noted several factors that are characteristic of people involved in the sale of drugs, and likely carrying a firearm. In respect of formulating reasonable and probable grounds, they noted the following:

a) The clothing Stewart and Nanie wore. The officers testified that the baggy clothing that the two men wore seemed out of place not only because of the warm weather, but also in a park such as Moss Park that is frequented or occupied by many homeless individuals. The officers testified that the clothes Stewart and Nanie wore were clean or newer looking. It stood out.

b) The satchel. The officers testified that the satchel that Paredes and Stewart were both seen carrying at various times drew attention to themselves as it is the current preferred mode for carrying illicit firearms. According to the police, it is practically a red flag for police in the context of a high crime area. Detective Fougère testified that he could clearly see that the satchel appeared to be “weighted”.

c) Their behaviour. Both Fougère and Kotzer testified about seeing Stewart and Paredes closely guarding or touching the satchel, signaling that they were protective of it. Also, the fact that Paredes carried the satchel whenever the couple were outside of the park also raised suspicions that there was a gun in the satchel. They testified that based on their experience, women are often used as “mules” to protect the men they are with from investigation or arrest.

Fougère testified that he saw Nanie leave Paredes and Stewart to go to a less crowded area within the park where he counted what looked like a lot of money. Fougère described Nanie fanning the money such that he could see the colour of the notes. They were green and red in colour, so mostly twenty- and fifty-dollar bills.

d) The behaviour of others around them. Kotzer testified that he saw that “regulars” of the park approach the threesome and engage in conversation with them. Although he could not hear any of the conversation, he testified that this is typical of many who are park regulars or dwellers who are also addicts looking to buy drugs from dealers.

e) Kotzer testified that given the homeless encampment at Moss Park that it was odd for people to come to Moss Park to simply visit or spend time there as one might in any other park. He and Fougère testified that apart from homeless people, the only other people to go through the park were those who were there to play sports at the tennis courts or the arena or to attend the Armory. On their evidence, it was not a pleasant place to simply pass time.

Position of the Parties

[43] The applicants submit that their arrests were unlawful and that their detentions were therefore arbitrary. They assert that this is because the requisite grounds for a lawful arrest were woefully absent. Instead, the applicants submit that the police acted on mere suspicion grounded in racial profiling and stereotypes. Although both Paredes and Stewart were subjected to strip searches following their arrests, only Paredes has alleged a Charter violation in that regard. She submits that the way the strip search was carried out was not only intrusive but degrading. Both applicants assert that the right to access counsel without delay was violated. The applicants submit that the multiple breaches of their respective Charter rights make this is a compelling case for excluding the evidence.

[44] The Crown submits that Detective Fougère’s observations of the parties, including Nanie, when considered together against the backdrop of the detective’s lived experience, provided the reasonable and probable grounds necessary to arrest Paredes and Stewart. As such, the Crown submits they were not arbitrarily detained. The Crown submits that the strip search of Paredes was reasonable in the circumstances. Finally, the Crown submits that any delay in accessing counsel, while regrettable, was explained and not intentional. Therefore, the exclusion of evidence is not warranted.

Grounds to Arrest – The Test

[45] The Criminal Code of Canada (“the Code”) empowers police officers to make a warrantless arrest where they believe on reasonable grounds that a person has committed an indictable offence: s. 495(1)(a).

[46] There is both a subjective and an objective component to the reasonable grounds inquiry. The subjective inquiry requires the officer hold an honest belief that the person has committed an offence before an arrest is made. The objective requirement is fulfilled where the officer’s belief is objectively reasonable in circumstances known to the officer at the time of the arrest: R. v. Storrey, [1990] 1 S.C.R. 241. The objective inquiry asks whether a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.

[47] In R. v. Chehil, 2013 SCC 49, the Supreme Court of Canada explained what to consider when assessing whether the officer’s subjective belief is objectively reasonable. “[T]he court should look at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training, and experience as the officer.” The examination of the sufficiency of grounds to arrest is not a “scientific or metaphysical exercise”, but one that calls for the application of common sense, flexibility, and practical everyday experience: R. v. MacKenzie, 2013 SCC 50.

[48] The standard required to meet the reasonable grounds threshold does not require a prima facie case or proof beyond a reasonable doubt. Where based on all the circumstances know to the officer “credibly-based probability replaces suspicion”, the test is met: R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Dhillon, 2016 ONCA 302 and R. v. Muller, 2014 ONCA 780.

[49] The question for this Court is whether the evidence of officers Fougère, Kotzer and Ito are “entirely compelling and reliable”: R. v. Shepherd, [2009] 2 S.C.R. 527. For the reasons explained below, I find that they are neither.

The Request to Disregard the Evidence of Officer Kotzer

[50] The Crown made an unusual request in his submissions on the s. 9 Charter application. He asked the Court to effectively disregard the evidence of Constable Kotzer in its entirety. He asked the Court to rely instead, solely on the testimony of Detectives Fougère and Ito in assessing the merits of application.

[51] He made the request even though both Detective Fougère and Constable Kotzer were central to the surveillance operation. They both testified as to why they believed Stewart and Nanie were engaged in the drug trade while using Paredes as a “mule”, and why they were convinced that the satchel concealed a gun.

[52] The Crown made the request because Constable Kotzer’s evidence was very problematic. Firstly, he was cross-examined on an incident for which he was charged and disciplined. This was the subject of a McNeil report disclosed to the defence. It involved him using excessive force. He used a taser on a homeless man who was handcuffed, contrary to police policy. Secondly, he was also cross-examined about disparaging comments he made about black people in a private chat group that included other officers. After Officer Kotzer was cross-examined about both these issues, he addressed the Court to advised and assure the Court that he has learned from the past, educated himself, and his comments on the group chat no longer reflect the person he is today.

[53] First, it is highly unusual to ask the Court to simply excise the testimony of an officer who played such an important role in the surveillance operation. Kotzer was calling out his observations and it is difficult to imagine that Detective Fougère was not relying on or being influenced by what he heard Fougère describe when Paredes and Stewart were out of his sight and being observed by Kotzer.

[54] Both Fougère and Kotzer testified that anyone who was not homeless who came into the park and who was not there for sport or to attend the Armory was likely there for a suspicious purpose – most likely to sell drugs.

[55] Apart from Paredes, who is Caucasian, almost every one of the dozen individuals that Kotzer observed and called out to Fougère as suspicious were black or dark-skinned individuals.

The Frailties in Fougère’s Evidence

[56] Even if the Court were prepared to disregard Constable Kotzer’s testimony in its entirety, the evidence of Detective Fougère is not without its own significant frailties.

[57] Detective Fougère is an officer with twenty years’ experience. His observations of the applicants were made with binoculars. He was situated south of Moss Park. He testified that he saw Paredes, Stewart and Nanie after they entered the park. The two men had their backs to him as they sat down on chairs in front of tent in the park. Paredes sat on the grass a short distance from the men as if she was being excluded from their discussion.

[58] Fougère, like Kotzer, testified that satchels are very often used to conceal weapons as drug dealers go about their business in the city. He testified that this was the first time in his long career that during an investigation that he made observations of a satchel that he believed contained a gun and where it turned out in fact to contain a gun.

[59] He also testified that drug dealers often wear baggy clothing to conceal their product and related paraphernalia. Like Kotzer, Fougère also testified that Paredes, Stewart and Nanie looked out of place in Moss Park. They were young and well-dressed compared to other inhabitants of the park. They stood out.

[60] On the day in question, which was a very warm day, Stewart was wearing a track suit, while Paredes was wearing what appeared to be a light weight, above-the-knee, short-sleeved dress. Part of the reason Fougère gave for believing that there was a gun in the satchel is the way the strap looked when he briefly saw Stewart enter the tent with it.

[61] He recalled that close to the time that the parties left the park, Stewart approached the tent with his back to Fougère and then turned around and entered the tent backwards. That afforded him the opportunity to see how the satchel lay from the front of Stewart’s body. On his evidence, he could see the strain on the strap. This allowed him to assess and determine that it appeared weighted, as if it had a gun.

[62] That brief observation confirmed for Fougère that the satchel did indeed conceal a gun within it.

[63] Yet, despite the significance of the observation, there was nothing in Detective Fougère’s notes about Stewart turning around to enter the tent backwards affording him the opportunity to get a better look at the strap of the satchel. I also find it significant that the detective did not testify about Stewart turning around in-chief. That significant detail emerged for the first time in cross-examination.

[64] Fougère testified that with the aid of binoculars he was able to get a good look at the satchel and assess from at least 100 meters away that it was weighted with a gun. Yet, he was not able to say what material the satchel was made of: leather, or some other material.

[65] I have some concerns about how and when this significant piece of evidence arose. As well, I find it both odd and inconsistent that while Detective Fougère testified that he was able to make a precise assessment of contents of the satchel based on his momentary observation, yet he was not able to determine what material the satchel was made of.

[66] I also find it odd that if Detective Fougère had a clear frontal view of Stewart with the satchel that he determined looked “weighted”, that he did not call out this observation to the central note-taker. I say that because there was no evidence that the note-taker recorded Fougère’s observation of Stewart entering the tent backwards. Yet, this was the moment he testified that his suspicion crystallized, and his grounds were formed.

[67] I am also troubled by the fact that Detective Fougère’s observations of the applicants at a critical time was not continuous and uninterrupted. Fougère testified that “just before [the three suspects] left the park his binoculars broke, and Detective Ito had to bring him a new pair.

[68] Detective Ito testified that it was at 3:57 p.m. that Fougère advised that he observed Stewart go into the tent with the satchel and at that time Fougère’s said satchel looked quite heavy. Detective Ito did not testify about Fougère voicing out that he could see Stewart turn around with the satchel. He testified that at 4:03 p.m. he had to provide Fougère with binoculars because they were not operating well at the time. It is unclear in the evidence at what time Detective Ito made his way to Fougère’s post. He was in the area on a bicycle.

[69] For all these reasons, I am unable to conclude that Detective Fougère’s evidence about his observations was reliable. It most definitely cannot be characterized as “compelling”. I find that the officers’ suspicions never rose to the level of “credibly-based probability”. Instead, the officers had a hunch based on intuition and stereotypes that the satchel concealed a gun. In this case, their hunch turned out to be correct. But, I find that at best, it was still merely a guess based on suspicion and not much more.

[70] As to when the grounds to arrest crystallized, Officer Kotzer testified that he felt he had grounds very early on in the investigation. Yet, Fougère, the more experienced officer, advised Kotzer that they should hold off arresting Paredes and Stewart as they left the park. Fougère preferred to carry on with the surveillance even after he purported to have seen Stewart facing him with the satchel. Fougère also testified that although he was the higher-ranking officer who had formulated his grounds, Detective Ito was the road boss and he was the one who had the responsibility to make the call as to when to order an arrest. Detective Ito agreed, but it was his evidence that Fougère could have stepped in at any time to order the arrest.

[71] Detective Ito gave instructions to arrest Paredes and Stewart some time after the couple had left the park. Ito explained that Nanie’s unexpected arrest changed the situation, although he was clear that Nanie’s arrest did not form part of the grounds for the arrest of Paredes and Stewart.

[72] Detective Ito explained that although he had grounds based on Fougère’s observations, he wanted to solidify those grounds by continuing the surveillance of the pair. The Crown submits that it is open to police to decide when it is tactically better to make an arrest, that an arrest need not be made even if grounds are established.

[73] Ito testified that he feared that once Nanie was arrested that Paredes and Stewart would somehow find out about this development and they would flee the area, depriving the police of continuing their surveillance and of an arrest for which they had, according to them, already formulated sufficient grounds.

[74] I find that this explanation ignores the fact that there were other officers available to follow the pair either by bicycle or by car. In that respect, I also have some difficulty accepting Detective Ito’s reason for allowing Stewart and Paredes to leave the park, but then to arrest them once he learned that Nanie was arrested.

[75] The objective that day was to watch out for suspected drug transactions within the park. Stewart and Paredes had left the park and were making their way to a pizza restaurant when they were arrested. No one observed them engaging in a drug transaction within the park or elsewhere.

[76] I find and accept that Stewart’s behaviour in relation to the satchel and his entry into the tent were both odd and suspicious. However, I find the explanation Detective Ito gave for wanting to observe the pair to see if they engaged in a drug transaction as they walked away from the park curious. There were no observations of them speaking to anyone immediately before they left the park, and no observations of them making a phone call. It seems highly unlikely that the police had any reasonable expectation that they would catch Paredes and Stewart engaged in a drug transaction once they left the park.

[77] The more likely and reasonable explanation for letting them leave the park was because the officers appreciated that the grounds for arrest at that time were insufficient. I find that what precipitated the arrest appears to have been the unexpected news of Nanie’s arrest.

The Alleged s. 8 Breach – the Strip Search of Paredes

[78] The applicant, Paredes, makes three complaints about the strip search she was subjected to. Firstly, that the level three search was not warranted in the first place. Secondly, that the way the search was conducted exceeded what is permitted in a level three search. Third, that the way the search was conducted was not reasonable and offended her dignity.

[79] The governing case from the Supreme Court of Canada on strip searches is R. v. Golden, [2001] 3 S.C.R. 679. In Golden the Court adopted the definition of a strip search that appears in various statutory materials and policy manuals. In essence the term “strip search” is properly defined as follows: the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments (emphasis added): see para. 47.

[80] “This definition distinguishes strip searches from less intrusive “frisk” or “pat down” searches which do not involve the removal of clothing, and from more intrusive body cavity searches, which involve a physical inspection of the detainee’s genital or anal regions (Emphasis added): see para. 47.

[81] In Golden, the Court noted that searches of the person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable under s. 8 of the Charter. Warrantless searches incident to lawful arrest are permitted under common law. However, the scope of this common law power is less clear. Generally, the more intrusive the search, the greater the degree of justification and constitutional protection required. The Court recognized that the need to prevent unjustified searches is more acute in the context of strip searches, which involve a significant and very direct interference with personal privacy and are inherently humiliating and degrading.

[82] For the strip search to be justified as incident to arrest, the search must also be incident to arrest in that it must be related to the reasons for the arrest itself.

[83] The information the police had was that Paredes was arrested with a firearm in a satchel she was carrying. In addition, on a pat down search the arresting officer felt two golf ball sized lumps under her left breast. A search in public was rightly deemed not appropriate or feasible as Paredes was wearing a dress.

[84] The reasonableness of the search for evidence is governed by the need to preserve the evidence and to prevent its disposal by the arrestee. Where officers suspect that evidence may be 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. Since the purpose of the search was to discover illegal drugs on Paredes’ person it was incident to the arrest on the gun charges. I find that the fact that Paredes was suspected of secreting contraband in her undergarments grounded the authorization to conduct a level three search. I find that if the arrest had been lawful, a strip search was warranted in all the circumstances.

[85] As for the way in which the search was carried out, there was nothing in the evidence that suggested that the officers conducting the search failed to comply with the framework the Court in Golden articulated for such a search to be Charter-compliant.

[86] The strip search was conducted in a private room with only the search officers present. On the evidence, the search room at 51 Division is adjacent to the booking area; but if anyone were standing at the booking area, they would still not be able to see directly into the room if door was open.

[87] The search was authorized by a superior officer. The search officers were female, the same gender as Paredes. There were only two of them; no more than necessary. There was no evidence that any force was applied. The search was conducted with dispatch and Paredes was never completely undressed at any given time.

[88] The search only involved a visual inspection. There was no physical contact with Paredes at any time. She was asked to remove her tampon, which she did. It was not removed for her. Paredes was asked to bend over for a visual inspection of her genitals. That she was asked to do so did not render the search a physical inspection. It was therefore no more intrusive than necessary.

[89] There was a record of the reasons for and the way the search was conducted.

[90] The applicant complained that the search was not entirely private in that it may have been possible for other officers nearby to hear what was taking place in the search room. Strip searches occur frequently enough that other officers are not likely to pay a great deal of attention to them unless they are directly involved in the search. Furthermore, police stations can be busy, hectic places. I therefore find that it is neither reasonable nor practical to require that searches take place in monastic seclusion or silence to be Charter-compliant.

[91] As well, the applicant raised a concern that insufficient precautions were taken during the search process to safeguard the applicant’s privacy and dignity. The two female officers testified that the door was closed when one of the officers, Dulude, left the room on a few occasions: first with the applicant’s bra and a second time when the contraband was discovered. [The police located two golf ball-sized packages under Paredes’ left breast. They fell once she removed her bra. One ball turned out to be Fentanyl while the other was a benign powdered substance.] The CCTV camera of the area reveals that the door may have been closed shut but may have been left slightly ajar. There is no evidence that any other officer walked past the door while the search was underway.

[92] On the evidence the door appeared to be partially open when officers determined that the search was over. However, Paredes submits that the “strip search” was not in fact concluded. This is because after Paredes got dressed, that is after she put on the clothes she had been wearing, the officers provided her with a pair of sweatpants for warmth. The officers explained that they offer the pants as a courtesy because the cells are cold.

[93] Paredes’s complaint in relation to the sweatpants is that she was required to put on the pants over her underwear but under her dress when the door to the search room was partly opened. As such, there were insufficient safeguards in place to protect her privacy and dignity.

[94] I find this complaint to be without merit. Firstly, Paredes did not testify on the application. Even if it could be said that putting on the track pants was part of the search process, there is no evidence that she found this aspect of the process to be particularly offensive to her dignity.

[95] Considering all the circumstances, I find that it was not offensive to her dignity to provide her with pants for warmth and to have her put the pants on in the circumstances described – i.e. in the search room with door partially open. No other officers walked past the door at the relevant time.

[96] Lastly, I also note that Paredes was wearing an above-the-knee dress. She was observed at the park sitting down on the ground and getting up in a public area all while wearing a short dress and a thong, thereby risking the potential to momentarily expose her underwear or worse.

[97] In all the circumstances, I find that the strip search was properly authorized and conducted in a reasonable manner. It was not disrespectful of the applicant’s right to privacy or dignity. The section 8 application is therefore dismissed.

[98] However, if I have erred in my assessment of the evidence, and Paredes’ right to be secure against unreasonable search or seizure was infringed, I would not have excluded the evidence base on this breach alone. The breach was not particularly serious. The officers acted in good faith; there was no intentional interference with Paredes’ Charter right. Any breaches were fleeting and did not persist throughout the process. In the result, there is no evidence to suggest that the impact on Paredes was anything more than minimal. Lastly, if this was the only breach, I find there is a very strong societal interest in a trial on the merits.

The Alleged s. 10(b) Breaches – Delay in Implementation

Paredes

[99] Paredes was arrested at 4:30 p.m., yet she was not put into contact with duty counsel until after 7:00 p.m. Police Constable Arnold testified that following the booking process and the strip search, Paredes was placed in the interview room at around 5:50, then there was a delay of over an hour as she waited in the interview room to speak to counsel. This was not a situation where she was waiting for counsel to return a call. Instead, the call to duty counsel was not made at the earliest opportunity. Paredes submits this violated her right to access counsel without delay. I agree. The wait was inordinately long, unnecessary, and avoidable.

[100] There were no exigent circumstances that could justify such a delay. There were other police resources available. The officer responsible for attending to Paredes’ call to counsel did not turn his mind to the important matter of implementing an arrestee’s right to counsel. He chose instead to prioritize another task – the booking of another arrestee when it was available to him to ask another officer to assist him in implementing Paredes’ s. 10(b) rights.

[101] I find that this was a simple task to delegate. It involved calling duty counsel and placing the phone in the interview room.

[102] The Crown submits that even if there is a finding that Paredes right to access counsel without delay was violated, that on a section 24(2) analysis, the extreme remedy of excluding real evidence is not warranted. He points to the fact that no statement or other inculpatory evidence was elicited. Once the process was implemented and Paredes was put into contact with duty counsel, she had no complaint.

[103] I agree with the Crown’s assessment of the merits of the s. 24(2) analysis for the 10(b) breach. Viewed in isolation, this violation would not warrant the exclusion of the gun and the drugs seized from Paredes.

Stewart

[104] As for Stewart, the implementation of his right to counsel was also significantly delayed. He was arrested at approximately16:30 but his right to counsel was not implemented until after 18:46, a delay of over two hours. However, the delay was explained by two factors: 1) usually long delays at 51 Division, which is a busy division, with only one booking desk where all detainees are processed, and 2) the exigent circumstances that evening. Specifically, there was another arrestee who in the normal course would have been booked after Stewart, but that individual was acting erratically. A decision was made by other officers to prioritize that prisoner’s booking.

[105] I find and accept that there were exigent circumstances that evening that explain the delay in implementing Stewart’s right to access counsel.

[106] I reject the submission that Stewart ought to have been permitted to contact Mr. Abbey from the police vehicle because Stewart had his phone with him and knew that he wanted to speak to Mr. Abbey.

[107] Firstly, in these circumstances, it is difficult to fathom how the police could have accommodated a private conversation in the police vehicle. Even if the police had attempted to allow Stewart to contact his counsel from the police car, that would not have afforded him with the necessary privacy to have a meaningful and confidential consultation with counsel. Had he complained about that process after the fact, his complaint would be valid, even if he had suggested the in-car consultation. This because consultation in private is a vital component of the s. 10(b) right: R. v. Playford (1987), 63 O.R. (2d) 289 (Ont. C.A.), R. v. McKane (1987), 35 C.C.C. (3d) 481 (Ont. C.A.). The appellant’s right to consult counsel in private would have been compromised by attempting to facilitate contact in the police car prior to booking.

[108] Secondly, Stewart had not yet been searched and the illicit substance and small scale had not yet been discovered. Therefore, the full extent of his jeopardy was not yet known. Even if his right to counsel had been implemented in the police car, on the facts of this case, Stewart would have had to have had another consultation with his counsel following the search because of the drugs and scale found in his shorts during the strip search.

[109] Finally, since Stewart already had Mr. Abbey’s name and the officers simply had to find the number which they did, he was able to speak to counsel once the booking and search procedures were completed. The delay in connection with counsel was far from ideal, but it was explained. In the result, I find no breach in all the circumstances.

[110] If, however, I have erred in reaching that conclusion, and Stewart’s access to counsel was unreasonably delayed, then on a s. 24(2) analysis on this breach alone, I would decline to exclude the evidence. There was no evidence elicited from Stewart, the delay was not deliberate or a result of bad faith on the part of the police. Nor was the delay the result of the poor allocation of resources with respect to that part of arrest process. There were exigent circumstances explaining the delay. In the circumstances, I would conclude that the breach was not so serious and the impact on Stewart’s right not so egregious as to warrant exclusion on this basis alone.

Section 24(2) Analysis

[111] Having found that reasonable and probable grounds did not exist to support the arrest and detention, and search of the applicants’ and that there was a s. 10(b) violation of Paredes’ rights, I will now address whether the breaches warrant exclusion of the evidence.

[112] As the Supreme Court of Canada held in R. v. Grant, 2009 SCC 32, the Court must consider three factors to determine whether to exclude evidence under section 24(2) of the Charter:

i. The seriousness of the Charter-infringing conduct. ii. The effect of the Charter-infringing conduct on the rights of the accused, and, iii. Society’s interest in having the case adjudicated on its merits.

(i) Seriousness of Charter-infringing Conduct

[113] As directed in Grant, the question the Court must consider is: would the administration of justice be brought into disrepute by communicating that the Courts effectively condone state deviation from the rule of law? The seriousness of the state conduct is relevant to this inquiry. See Grant at para. 71.

[114] There can be no doubt that the s. 9 beach in this case was very serious. It resulted in the arrest and detention of both applicants. As such, this factor militates against admission of the evidence.

(ii) Effect of the Charter-infringing Conduct

[115] Although neither Paredes nor Stewart testified about the impact of the breaches, it is not a difficult task for the Court to conclude that impact of the breaches was significant. The applicants were arbitrarily arrested on the street; and then both were strip searched at the division. As the Court noted in Golden, [2001] 3 S.C.R. 679, strip searches are intrusive and inherently degrading, and as the Court in Grant observed: “Public confidence would surely be undermined if people were unnecessarily exposed to humiliating strip searches”. See Grant at para. 71.

[116] As well, both applicants spent time in custody, although Paredes was able to secure her release after a bail hearing within weeks of her arrest. As for Stewart, he was ordered detained and has remained in custody since his arrest in June of last year.

[117] This factor militates against admission of the evidence.

iii. Society’s interest in having the case adjudicated on its merits.

[118] The question at this stage of the analysis is whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion. The evidence in this case consists of a loaded handgun, and a quantity of Fentanyl to justify charges of possession for the purpose of trafficking.

[119] The Crown relied on the dissenting reasons of Justice Brown in R. v. Omar, 2018 ONCA 745 to make the argument that notwithstanding the s. 9 Charter breaches, that should not automatically result in the exclusion of the evidence. Justice Brown in that case emphasized that in cases that involve a dangerous and potentially lethal handgun; that it is the security of the broader community that the Court needs to be mindful of.

[120] No one living in the City of Toronto needs reminding that gun violence remains a scourge in our city. While I agree that there is a strong societal interest in a trial on the merits, the Court must also consider and balance that with the reputation of the administration of justice. The fact that a handgun is involved cannot and should not justify police conduct that runs roughshod over citizens’ Charter rights. The admission of the evidence in such circumstances would only serve to further encourage and risk rewarding unacceptable police conduct. It would undermine the rule of law.

[121] When I balance the Grant factors, the conclusion I come to is that the reputation of the administration of the justice system would be better served by the exclusion of the evidence. A reasonable person informed of all the circumstances and familiar with Charter values would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute.

[122] The conduct of the police was serious and had a significant impact on the applicants’ liberty. The officers involved in this case, some of whom were very experienced, acted in haste to arrest the applicants, showing little regard for their Charter rights.

[123] Having found that the applicants met their onus and established that their rights under s. 9 were breached, and in the case of Paredes her s. 10(b) rights as well, I conclude that the evidence should be excluded. The application for an order excluding the evidence under s.24(2) of the Charter is, therefore, granted.

Released: September 29th, 2021 Signed: “Justice Bhabha”