CITATION: R. v. Smith, 2021 ONCJ 650
DATE: December 10, 2021
ONTARIO COURT OF JUSTICE
Old City Hall - Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
RICHARD SMITH
For the Crown A. Nash
For the Defendant B. Moss
Trial heard: May 21; June 3, 22, 25; August 18, 2021
REASONS for JUDGMENT
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] Mr. Smith is charged with one count of sexual assault and one count of indecent act, both alleged to have been committed on June 7, 2020. The Crown has proceeded summarily.
[2] Mr. Smith has pleaded not guilty to both counts on the information. As a result of being strip searched at the police station after his arrest, Mr. Smith brought an application alleging that the strip search was a breach of his s.7 Charter rights. He seeks a stay of proceedings.
[3] On the consent of counsel, the trial and Charter application proceeded in a blended fashion where the evidence called by the Crown was applied to both the trial of the offences and the Charter application.
[4] Before the trial began, Ms. Nash applied pursuant to s. 714.1 for an order permitting the complainant, C.S. to testify remotely. Principally because of COVID-19 considerations and because C.S.’s credibility was unlikely to be a significant issue, I provisionally granted the order on the understanding that I would make a final determination upon seeing the quality of the video link on the first day of trial. On the first day of trial I found the video link to be excellent and allowed C.S. to testify remotely.
[5] The Crown called three witnesses: C.S., and the two arresting officers, P.C. Robert Coops and P.C. David Hain. C.S.’s 911 call as well as the video and transcript of Mr. Smith’s booking at the station were made exhibits.
[6] Mr. Smith testified on his own behalf on both the trial and the Charter motion.
[7] Mr. Moss, on behalf of Mr. Smith, admits that the complainant was indeed sexually assaulted but argues that the Crown has failed to prove that Mr. Smith committed the offence. As for the alleged indecent act - masturbating in public as the police approached him - Mr. Smith denies this.
[8] There are three principal issues to be decided in this case:
Is Mr. Smith the man who sexually assaulted C.S.?
Did Mr. Smith commit the alleged indecent act?
Did the strip search of Mr. Smith infringe his Charter rights, and if so, what is the appropriate remedy?
B. THE TESTIMONY OF C.S.
[9] On the morning of June 7, 2020, C.S. was walking her dog northbound on the west sidewalk of Sudbury Street, just south of Queen Street. When she was about 20 feet south of the intersection, she saw a man standing on the sidewalk facing her, approximately 15 feet away. He took on what she described as a “predator position”. He became even more aggressive as she approached him. When she was five feet away, he started looking her in the eyes and as she continued to approach him, he reached out towards her groin and said: “you got pussy”. C.S. avoided being touched and walked past him. As she did so he slapped her hard on the butt. She kept walking and crossed to the north side of Queen Street.
[10] She continued north on Gladstone Avenue (the continuation of Sudbury Street north of Queen) and then turned left into an alley just north of Queen, losing sight of the perpetrator, whom she described at trial as being in his late 40’s or mid 50’s, black, with facial hair, short hair, 6’ tall, thick build, dressed all in black, wearing shorts and a t-shirt with no shoes. She testified that she had got a good look at him and that he appeared intoxicated.
[11] C.S. re-emerged from the alley and saw him again, in the same place she had last seen him. Approximately seven or eight minutes after the assault she called the police. During this 911 call she described the perpetrator as black, in his 40’s, 6’ tall, medium build, wearing a black hat, black socks, and no shoes. She told the 911 operator that the man did not appear intoxicated, but rather seemed mentally unwell.
[12] Within two or three minutes, two police officers arrived, and she pointed out the man she believed to be the perpetrator. There were several other people in the vicinity as well as several tents. He was still not wearing shoes and was similarly attired, although his shorts were at his knees. The police went over to speak to him, but she did not witness the arrest. Nor did she ever see him masturbating.
[13] Approximately 15 minutes later the police beckoned to C.S. and she approached them and saw Mr. Smith in handcuffs sitting on the ground. When she saw Mr. Smith in police custody, it was her opinion that he was the perpetrator.
[14] Several days later she gave a statement to police wherein she described the perpetrator as 6’1”-2”, black, wearing all black, barefoot, in his late 40’s, thick build, intimidating, black t-shirt, black shorts, somewhat of a beard, shorter hair - grown out buzz cut.
[15] C.S. met with the police before giving her statement. They encouraged her to proceed with the charges and told her that Mr. Smith had been previously charged with similar offences.
C. THE TESTIMONY OF P.C. KOOPS AND P.C. HAIN
[16] While there were some minor inconsistencies between their evidence as concerns the arrest, in my view, these inconsistencies are not material to the officers’ credibility concerning the arrest. I shall say more below about the credibility and reliability of the officers’ testimony concerning the strip search.
[17] Officer Robert Koops and his partner, P.C. Hain were on bicycles nearby when they received the radio call regarding a sexual assault. They arrived on scene within a minute and encountered C.S. who pointed to Mr. Smith and said that he was the perpetrator. She told the police that he was not wearing pants, which indeed Mr. Smith was not.
[18] Mr. Smith was 60-100 feet away. There were other people in the vicinity as were several tents.
[19] Both officers approached him. He had no pants on and his underwear was down around his knees. He was wearing a grey hat. He was masturbating as the police approached. The police asked him to pull his underwear up. Mr. Smith said: “I didn’t touch her…are you going to fuck me?”.
[20] The police arrested him for indecent act and raised his underwear. P.C. Koops asked Mr. Smith his name and received three responses: “Richard Smith”, “Administrator” and “Cliff Thompson” Mr. Smith gave the year of his birth as 1980.
[21] Outside one of the tents, about 10 feet away, was a pair of pants that Mr. Smith claimed were his. He put them on. P.C. Koops searched the pants and found a wallet with a S.I.N. card in the name of Richard Smith inside. P.C. Koops did a computer check on Mr. Smith but could not verify his identity and thus decided to have Mr. Smith taken to 14 Division.
[22] P.C. Koops found Mr. Smith’s behaviour to be bizarre, either due to mental illness or intoxication. There was an item on the ground near the place of Mr. Smith’s arrest that P.C. Koops thought was a crack pipe.
[23] Once at 14 Division, P.C. Koops and P.C. Hain requested authorization from desk Sergeant Nicholson to conduct a strip search of Mr. Smith because of his bizarre behaviour, the uncertainty regarding his identity and the fact that Mr. Smith admitted to prior drug use during the booking procedure. According to the officers, they were worried about Mr. Smith being in possession of drugs and the risk of injury to Mr. Smith or others.
[24] When the officers asked for the strip search authorization, they had no idea whether Mr. Smith was going to be released or held for bail. This was not their decision to make. Both officers admitted on cross-examination that the booking video does not contain the request for authorization to strip search and that the request for that authorization might have been made before Mr. Smith’s appearance before the booking Sergeant.
[25] Authorization for the strip search was granted and it was conducted by the two arresting officers in a room off the booking hall. Mr. Smith was permitted to take off his own clothes, one item at a time. The entire search took approximately five minutes.
[26] Reports are routinely prepared when strip searches are conducted. Neither officer had the report with him when they testified.
[27] As concerns the inability of the police to confirm Mr. Smith’s identity, both officers admitted on cross-examination that the police computer that they were using only contains data regarding individuals who have been arrested, and that the fact that Mr. Smith had never been arrested by Toronto Police would explain their inability to confirm his identity.
D. THE BOOKING PROCEDURE
[28] The booking video begins at a point where the arresting officers are speaking to Sgt. Nicholson in the absence of Mr. Smith. The first thing we hear on the video is Sgt. Nicholson saying: “We’ll get him fingerprinted and go from there”. Mr. Smith is then brought into the room. He is wearing grey pants, a black t-shirt, and black socks. An officer is holding his grey baseball cap.
[29] P.C. Koops explains to Sgt. Nicholson why Mr. Smith has been arrested and why he was brought to the station.
[30] Mr. Smith is then interviewed by Sgt. Nicholson. Mr. Smith is told about his right to counsel and acknowledges that he understands. Mr. Smith suggests (although it’s not clear) that he wants to speak to duty counsel.
[31] Mr. Smith admits to having done “drugs” within the last 24 hours and that it might be crack that he consumed. Mr. Smith denies ever having thoughts of self-harm and denies any diagnosis of mental illness. He is then told by Sgt. Nicholson that he will be strip searched.
[32] There is then a discussion about Mr. Smith’s identity. Mr. Smith clearly states that his name is Richard Smith.
[33] Mr. Smith is soon taken away by the arresting officers for his strip search and is returned approximately six minutes later by the same officers. Just before being led away for the last time Mr. Smith asks how long he’ll be staying and P.C. Koops tells him that he is going to have a bail hearing.
E. THE EVIDENCE OF MR. SMITH
[34] Mr. Smith was 51 years old at the time of his arrest. He was born in Windsor, Ontario and moved to the U.S.A. when he was 22 years old. He returned to Canada in 2019 and was living with his mother’s guardian in Toronto until he was evicted in November 2020. Mr. Smith was then homeless and was living in a tent at the corner of Sudbury and Queen Streets when he was arrested.
[35] Mr. Smith denied assaulting C.S. and did not see who did. He was facing away from the street, closer to the adjacent railway tracks, trying to change into new underwear he had found in a nearby shopping cart when he heard a police officer approach him from behind, telling him he was under arrest for sexual assault.
[36] Mr. Smith cooperated with the police and identified himself as Richard Smith. He denied saying anything to the police other than that. He denied masturbating as they approached.
[37] On cross-examination he admitted to using marijuana but denied using crack. He said that he told the police at 14 Division that he might have done crack recently because he was angry at having been arrested. He further admitted to drinking as many as six bottles of beer the night before his arrest but denied being intoxicated or hung over on the morning of his arrest.
[38] Mr. Smith admitted to seeing C.S. on the sidewalk and said that he saw no one near her and that he was the only man in the vicinity.
[39] He denied ever being diagnosed with a mental illness.
F. ANALYSIS OF THE CRIMINAL CHARGES
[40] As concerns the allegations of sexual assault and indecent act, the burden is on the Crown to prove these offences beyond a reasonable doubt.
[41] Because Mr. Smith testified and denied committing the alleged offences, the analysis of the evidence in the context of the criminal allegations must be undertaken in accordance with the law as set out by the Supreme Court in R. v. W. D., 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26. If I believe Mr. Smith, he must, of course, be acquitted of the charges. Even if I do not believe him, if his testimony, alone, or along with other evidence, leaves me with a reasonable doubt as to his guilt on either of the charges, he must be acquitted of those charges. Lastly, even if I do not accept his testimony and it does not, when viewed in the context of all the evidence, leave me with a reasonable doubt, I must examine the remaining evidence that I accept to see if either charge is proved beyond a reasonable doubt. If so, I must convict. If not, I must acquit.
[42] As for whether the Crown has proven that Mr. Smith committed the sexual assault, I believe it best to begin with the testimony of C.S.
[43] I see no credibility concerns with her testimony. There were no material inconsistencies in her evidence and no apparent motive to falsely accuse Mr. Smith. Indeed, C.S. was somewhat reluctant to follow through with her complaint to the police. Rather, what is at stake is the reliability of her identification of Mr. Smith as the perpetrator.
[44] Mr. Moss argues that because C.S. walked behind a building and lost sight of the perpetrator for some period of time, her subsequent identification of Mr. Smith cannot be relied upon. He also notes that her description of the perpetrator evolved somewhat over time and that while Mr. Smith wore a grey hat, C.S. described it as black in her 911 call. He also argues that when she learned from police that he had done this kind of thing before, she became more convinced that Mr. Smith was indeed the perpetrator, such that her description evolved to match his and her description at trial cannot be relied upon.
[45] I accept C.S.’s account of her initial confrontation with her assailant, which included a description of a long enough face to face encounter to get a strong mental image of his face, build, facial hair and clothing. Even though she did lose sight of him for some time before re-emerging and recognizing Mr. Smith as her assailant, I find that her recognition of Mr. Smith as her assailant was accurate and reliable.[^1] This conclusion is fortified by the fact that Mr. Smith’s clothing matched the clothing she saw on her assailant. I agree with Mr. Moss that the behaviour of the police would have had a tendency to undermine the reliability of C.S.’s later opinion, but the 911 description and her identification of Mr. Smith as the assailant after she came back out from behind the building both occurred before the problematic interactions with the police.
[46] The reliability of her identification is further supported by Mr. Smith’s testimony to the effect that when he saw her there were very few, if any, other men in the vicinity.
[47] Mr. Smith has denied assaulting C.S. I must weigh Mr. Smith’s testimony pursuant to the rule in W.D. as described above. Copeland J., in R. v. Azonwanna, 2020 ONSC 1513, at paras 17-19 has succinctly explained the proper approach to cases such as this one, where the accused has denied guilt, yet there exists a body of evidence indicative of guilt:
In assessing the evidence, the Court should consider all of the evidence together, rather than assessing individual pieces of evidence in isolation. This proposition is important to bear in mind in engaging in the W.(D.) analysis. A trier of fact, in considering whether it believes the defence evidence, or is left in a reasonable doubt by the defence evidence, must not make that assessment by looking at the defence evidence in isolation. Rather, the assessment must be made by considering the defence evidence in the context of the whole of the evidence at trial. Although in my analysis I will refer to specific pieces of evidence and comment on them, I bear in mind to consider the evidence as a whole, and its cumulative effect.
The court can accept some, none or all of any witness's testimony. For example, if some parts of the testimony of a defendant are disbelieved, other parts of his testimony may still be believed or raise a reasonable doubt: R. v. S. (J.H.) at para. 11.
It is open to a trial judge to reject a defendant's evidence as not credible and not raising a reasonable doubt based on a considered and reasoned acceptance beyond a reasonable doubt of conflicting credible evidence. Such an analysis is as much an explanation for the rejection of a defendant's evidence as is a rejection based on a problem identified with the way a defendant testified or the substance of a defendant's evidence, provided that the trial judge's reasoning process is clear, the trial judge's analysis of why they believed the complainant's evidence is reasoned and considered, and the reasons are clear that the trial judge has applied the reasonable doubt standard to the assessment of credibility, and has not engaged in a credibility contest R. v. J.J.R.D., 2006 CanLII 40088 at paras. 35-39, 44-47, 53 (ONCA); R. v. Slatter, 2019 ONCA 807 at paras. 83-84, 89; R. v. R.D., 2016 ONCA 574 at paras. 13-22.
[48] Mr. Smith’s denial of guilt with respect to the two alleged offences must be weighed in the context of the whole of the evidence, which in this case consists of C.S.’s identification evidence, which I consider to be reliable and strongly inculpatory, as well as the evidence of the arresting officers, both of whom testified that they saw Mr. Smith masturbating in public. While I will have more to say about the credibility of these officers in the context of the Charter application, I find this aspect of their evidence convincing. Neither officer needed to fabricate this allegation if arresting Mr. Smith was their goal. They had already received the sexual assault complaint from C.S. Furthermore, their evidence on this point is supported to some degree by C.S.’s testimony that Mr. Smith’s pants were down just before she pointed him out to the officers. I accept their evidence on this point.
[49] Officer Koop’s evidence about Mr. Smith giving other names when first arrested also rings true and is contrary to Mr. Smith’s testimony. I cannot see why this officer would go to the trouble of fabricating this evidence in this case. I accept his evidence on this point.
[50] As for Mr. Smith’s credibility as a witness generally, I was not impressed. He was snarky in cross-examination and denied ever using cocaine. Yet, he told Sgt. Nicholson that he might have consumed cocaine in the previous 24 hours. Both these assertions cannot be true.
[51] I do not accept Mr. Smith’s evidence where it is not supported by other evidence. Nor, in my opinion, does it raise a reasonable doubt on the criminal charges.
[52] Mr. Moss argues that even if I accept the evidence of the officers, the Crown has failed to prove that what they said they saw Mr. Smith doing as they approached him (masturbating) amounts to an indecent act.
[53] The leading authority as concerns what constitutes an indecent act is the Supreme Court’s judgment in R. v. Labaye, 2005 SCC 80, [2005] 3 S.C.R. 728 at para. 62. Conduct is indecent when it meets this test:
That by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
(b) predisposing others to anti-social behaviour, or
(c) physically or psychologically harming involved in the conduct, and
- That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.
[54] In my opinion, masturbating with one’s penis exposed, in a public place, clearly “confront[s] members of the public with conduct that significantly interferes with their autonomy”.
[55] I am convinced beyond a reasonable doubt that Mr. Smith committed the two alleged offences.
G. THE CHARTER APPLICATION
[56] As concerns the alleged Charter violation, while the onus is on Mr. Smith to prove the alleged violation, Ms. Nash concedes that because Mr. Smith was strip searched, the onus falls on the Crown to prove, on a balance of probabilities, that the strip search meets the test established in R. v. Golden, 2001 SCC 83.
[57] For the strip search of Mr. Smith to be Charter compliant, the Crown must prove on a balance of probability that the search was:
conducted incident to a lawful arrest.
conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest.
based on additional reasonable and probable grounds, beyond those of the arrest, for concluding that a strip search is necessary in the particular circumstances of the arrest. Further, “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”; and
conducted in a reasonable manner consistent with s. 8.
R. v. Golden, supra
[58] The Crown bears the burden of rebutting the presumptive unreasonableness of the strip search and to do so it must demonstrate additional reasonable and probable grounds justifying the strip search beyond the reasonable grounds that form the basis of the arrest. The reason for requiring additional reasonable grounds in excess of those forming the basis for the arrest is that “a strip search is a much more intrusive search than a ‘frisk’ search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity”: Golden, at para. 98.
[59] The requirement that officers have reasonable and probable grounds before conducting a strip search has both a subjective and objective component: R. v. Johnson, 2016 ONSC 3947
[60] I start by noting that both officers Koops and Hain testified that it was Sgt. Nicholson who authorized the strip search. It is thus incumbent on the Crown to prove that Sgt. Nicholson honestly believed that there were reasonable and probable grounds to support the strip search, i.e. that a strip search was necessary in the circumstances and that it was likely that weapons, or evidence of the crimes for which Mr. Smith was arrested would be found during the search. Yet Sgt. Nicholson did not testify.
[61] Ms. Nash argues that if I am satisfied that the necessary reasonable grounds existed, I can safely conclude that Sgt. Nicholson was aware of them and thus had the necessary subjective state of mind.
[62] I do not accept this argument. Even if there existed objective reasonable grounds for the strip search, that only proves that Sgt. Nicholson might have authorized the strip search based only on those reasonable grounds. It doesn’t prove that he was aware of them when he made the decision, nor does it prove that Sgt. Nicholson acted on that basis. While there is evidence from officers Koops and Hain that they told Sgt. Nicholson about their earlier dealings with Mr. Smith, given the problems with their testimony concerning the search (detailed below), and the fact that the video of Mr. Smith’s booking does not depict this discussion, I find the absence of Sgt. Nicholson’s testimony to be fatal to the Crown’s burden of proving subjective reasonable and probable grounds.
[63] As concerns whether there existed objective reasonable and probable grounds to support the strip search, in my opinion the Crown has failed to prove that the strip search conducted on Mr. Smith was reasonable in the circumstances.
[64] The arresting officers who requested the strip search testified that they requested a strip search because of Mr. Smith’s unusual behaviour, his admitted recent drug use and uncertainty regarding his identity. They believed that a strip search was required for the protection of other prisoners as well as Mr. Smith. They were also concerned about drug possession.
[65] It is important to note that, according to their evidence, the strip search was requested before any decision was made as to whether Mr. Smith would be held in custody. Furthermore, it is abundantly clear that the request to strip search, and the decision to authorize the strip search both occurred before the booking encounter. This is critical because the booking encounter was the first time Mr. Smith said anything about drug use. For this reason, I reject the evidence of the officers to the effect that Mr. Smith’s statements to Sgt. Nicholson added to their grounds for requesting a strip search. Concern about Mr. Smith secreting drugs on his person, based on the circumstances of his arrest, was completely unwarranted.
[66] Nor was there any evidence to suggest that Mr. Smith was a violent threat to himself or other prisoners or police. Nor was there any evidence to suggest he possessed a weapon. He was to be held in a single cell, and, according to the officers, when the decision to strip search him had been made, no decision had yet been made to hold him overnight for a show cause hearing.
[67] The assertion by the police officers that they relied on information they didn’t yet have when requesting the strip search leads me to reject the entirety of their evidence as concerns the decision to perform the strip search.
[68] As for the difficulty the police had in establishing Mr. Smith’s identity, this doubt was mostly fueled by the fact that the police were searching a data base whose foundation was prior arrests, which doesn’t apply to everyone in police custody. In any event, such concerns do not support conducting a strip search.
[69] As concerns his odd behaviour, the police suspected that Mr. Smith might be suffering from some mental illness. The presence of mental illness cannot support the serious invasion of a detainee’s privacy that is a strip search.
[70] In summary, nothing about the circumstances of Mr. Smith’s arrest, the alleged criminal behaviour, or Mr. Smith’s antecedents provide reasonable grounds for a strip search. I find that the Crown has failed to justify the strip search. In my view the strip search was a flagrant violation of Mr. Smith’s Charter rights.
H. WHAT IS THE APPROPRIATE REMEDY?
[71] Mr. Moss seeks a stay of proceedings. The leading authority as concerns the imposition of a stay of proceedings as a remedy for a s. 7 Charter breach is R. v. Babos, 2014 SCC 16.
31 …[T]his Court has recognized that there are rare occasions -the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73)…
- The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).
[72] Mr. Smith’s case falls into the second, or residual category. In Canada (Minister of Citizenship and Immigration) v. Tobiass [1997] 3 S.C.R. 39, the Supreme Court described this category as follows:
For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well - society will not [page324] take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para. 91]
[73] The criteria to be applied in considering whether a strip search of an accused is justified have been clear since Golden in 2001. The fact that the police in this case ignored this notorious legal test 20 years later leads me to conclude that there is a systemic problem in the Toronto Police Service, which if not addressed will continue. See R. v. Samuels, 2008 ONCJ 85.
[74] As concerns the availability of some other remedy, it is important to note that Ms. Nash concedes that Mr. Smith has already spent enough time in pre-trial custody such that no further carceral punishment would be called for. As a result, mitigation of sentence is not an available remedy in Mr. Smith’s case. The notion of finding Mr. Smith guilty and discharging him does not strike me as a sufficient remedy in the circumstances.
I. CONCLUSION
[75] I reiterate that the Supreme Court, in Golden, set out the law regarding strip searches in 2001, almost 20 years prior to Mr. Smith’s arrest. There has been much litigation in the ensuing years, all of which should have driven the message home to all police services, and to all individual officers across the country. Either the three officers involved in Mr. Smith’s strip search weren’t aware of the law established in Golden or chose to ignore it. The former is an outrageous systemic failure. The latter is high-handed disregard for Mr. Smith’s Charter rights.
[76] I find that in Mr. Smith’s case, denouncing misconduct and preserving the integrity of the justice system outweighs society’s interest in having a final decision on the merits.
[77] In my opinion, Mr. Smith’s case falls into the category of the clearest of cases and a stay of proceedings is the appropriate remedy.
[78] Because a stay is being entered, there will be no findings of guilt registered as concerns the alleged criminal offences.
Released on December 10, 2021
Justice Russell Silverstein
[^1]: Mr. Moss concedes that the man C.S. pointed out to police as her assailant was Mr. Smith. The evidence supports the conclusion that Mr. Smith was the man she believed was the assailant when she re-emerged from the alleyway and that she did not lose sight of him as she waited for the police.